American Bar Association
Forum on Communications Law
Report from the 5th Annual Conference
Duane A. Bosworth II, Alonzo B. Wickers IV, Jeffrey H. Blum, and Anke E. Steinecke
The Fifth Annual Conference of ABA's Forum on Communications Law took place February 17-19, 2000, in Rancho Bernardo, California. The conference included three plenary sessions: "Violence and the First Amendment: Is the Media Liable for the Crimes of Readers and Viewers?"; "We Have Seen the Enemy and They Is Us: How the Media Portrays the Media"; and "How Will the Communications Revolution Change First Amendment Law in the Next Century?" Each panel featured a distinguished faculty [see sidebars below].
The conference also offered a series of five "hot topics" workshops facilitated by leading practitioners who encouraged active participation by the audience. In the words of Forum Chair Kelli Sager, "[n]otwithstanding the impressive credentials of the [panelists], it is always in the workshops that I am most impressed with the wide range of experience and talent of our colleagues . . . [the workshops] provide a valuable learning and collaborative opportunity that simply does not exist at most conferences." Among the issues covered in 2000 were access and subpoenas, ethics, newsgathering, libel and privacy, and the Internet.
Coverage of the 5th Annual Forum starts below:
Violence and the First Amendment
The first plenary session of the conference addressed the question of whether and when the media can be held liable for the crimes and torts of its readers or viewers. Tom Kelley kicked off the discussion by asking Rodney Smolla to describe what First Amendment protections continue to exist against claims that the media have caused third parties to commit torts or crimes. Smolla, counsel for the plaintiff in Rice v. Paladin Enterprises,1 often referred to as the "hit man" case, argued that strong protections continue to exist. However, the doctrine in the Supreme Court decision in Brandenburg v. Ohio2 will not and should not protect all media portrayals in all cases. Addressing the Rice decision, Smolla said that the Fourth Circuit correctly established liability in an extreme case of a "how-to" murder manual. The publisher had stipulated, solely to isolate the issue for a summary judgment motion, that the purpose of the publication was to facilitate murder and that the publication was marketed to murderers and would-be criminals.
Although arguing that Rice was correctly decided, Smolla predicted that the media will frequently be victorious against claims that media portrayals caused a plaintiff's injury. Smolla reiterated that abstract advocacy, of the kind described in Brandenburg, will continue to be protected. However, First Amendment defenses may be quickly brushed aside where the essence of the claim is not the content, but rather conduct, such as in cases like Weirum v. RKO General, Inc.,3 or in "surprise TV," or where children are the intended targets of communication. Smolla also noted that the media may not be able to take advantage of procedural shortcuts in seeking to resolve claims. He pointed to Byers v. Edmondson,4 in which the court rejected the media defendants' motions to dismiss because the complaint on its face alleged the required intent on the part of the defendants. The Byers court also noted the heavy burden of proving intent, however, and observed that in other reported cases, plaintiffs had not been able to sustain that burden in response to motions for summary judgment.
Tom Kelley then displayed a fascinating series of film clips and excerpts from fiction that were juxtaposed with actual instructions from the "hit man" manual . How could the courts, asked Kelley, draw a line between "fiction" and "instruction." Professor Smolla answered that it appears that the type of presentation makes a practical difference to judges and juries alike. When material is presented in an instructional manual, the format is taken into account in the investigation into the publisher's intent.
Jack Weiss followed with reflections on his representation of Time Warner in Byers v. Edmondson (the Natural Born Killers case). Agreeing that there is a difference between fiction and instructional manuals, Weiss conceded that an incitement claim could possibly arise from a work of fiction if it contained large components of instruction. He argued, however, that the Rice decision should not pose any threat to pure fiction or drama and that its message should not spill over into pure works of imagination. Weiss argued that the Brandenburg test remains generally valid, if not precise, in all settings. Serious consideration should be given to a bright line rule granting absolute immunity for pure fiction, according to Weiss, who predicted that such a line would eventually be established.
Zazi Pope provided an overview of plaintiffs' claims regarding the movie Basketball Diaries, the Jenny Jones Show, and Natural Born Killers. She offered a veritable Brandeis brief in opposition to these claims. First, she said, there is no credible scientific evidence to show that violence in the media causes viewers or readers to commit violence. Second, the media have always portrayed violence, and although no one argues that there are fewer depictions today, the number of violent crimes in our country has steadily declined throughout the 1990s. Third, although American media products portraying violence are exported abroad, violence remains low in the receiving countries. Panelist Paul Smith joined in criticism of the claims that portrayals of violence beget violence and questioned causation in all such claims against the media.
Marianne Wesson argued that the First Amendment should not bar tort claims and indeed that the First Amendment should have a much smaller role in an analysis of these claims. The Brandenburg test continues to be appropriate for determining what may be criminalized and for discussing issues of prior restraint. The First Amendment, she said, should have a small role in assessing costs and determining liability in tort matters, and there should be a return to an emphasis on proof of harm, causation, foreseeability, and fault. The media should be liable if they cause harm within traditional tort analysis. Jack Weiss countered that this approach would be very chilling and that some media "goods" would not be produced if Professor Wesson's ideas were employed. While traditional tort analysis aims to shift costs, the result would not be that media products would cost more, but that they would not be made at all.
Tom Kelley argued that the Brandenburg test must be applied to instructional materials as well as to fiction. He pointed out that a test of intent is not a safe harbor for publishers or distributors, at least where the distinction is lost between specific intent, that is, abetting a known criminal act, and what he called "macro" intent, in which the defendant is not aware of any specific plans but is aware of the potential for criminal action.
Zazi Pope rounded out the discussion with observations about some of the anomalies in the Jenny Jones case. She pointed out that apparently such talk shows do not have the First Amendment protection of Brandenburg and concluded that when a tragedy happens and the material involved is deemed unsavory, legal niceties go by the wayside.
Violence & Free Speech
Thomas Kelley, Faegre & Benson, Denver
Clara "Zazi" Pope, Warner Brothers, Los Angeles
Paul Smith, Jenner & Block, Washington, D.C.
Rodney Smolla, University of Richmond School of Law
Jack Weiss, Gibson, Dunn & Crutcher, New York
Marianne Wesson, University of Colorado School of Law
How the Media Portrays the Media
In the second plenary session, another distinguished panel discussed the topic "We Have Seen the Enemy and They Is Us." This lively discussion began with observations of how lawyers and the judicial system have been portrayed in popular culture, especially film. Professor Asimow noted that lawyers were portrayed positively for the most part from the 1930s until the 1970s. The image of lawyers went "over the cliff" in the 1980s. Fiction is powerful, said Asimow, who pointed out that much of what we believe we "know" about cowboys, private eyes, World War II, or Vietnam, for example, is derived from fictional portrayals. John Martel expressed his concern that the portrayal of individual evil lawyers is one thing but the continuous critical pounding of the justice system as a whole is another. The depiction of lawyers may be on the upswing, said Howard Rosenberg, who observed that recent portrayals have been relatively positive. Maybe in television, countered Professor Asimow, but not film.
Jill Goldsmith entertained the audience with insights into how Ally McBeal and The Practice are written. Bruce Sanford commented that he does not object to the fact that The Practice fails to portray the practice of law realistically but what troubles him is that lawyers are rarely shown in deliberations about ethics. Turning to the media, Sanford said that the public used to think that the media were dedicated to improving the world. Today there is almost no perception of a "public service quotient." The truth is that journalism remains a public service and that journalists are in fact far more professional than ever before, he said.
Michael Asimow, UCLA School of Law
Jill Goldsmith, David E. Kelley Productions (writer on Ally McBeal and The Practice)
John Martel, Farella Braun & Martel, San Francisco (author of several novels)
Howard Rosenberg, Television Critic, Los Angeles Times
Bruce Sanford, Baker & Hostetler, Washington, D.C. (author of Don't Shoot the Messenger)
First Amendment Law in the Next Century
The final plenary session examined "How Will the Communications Revolution Change First Amendment Law in the Next Century?" Dan Waggoner launched the discussion by referring to the science fiction novels of William Gibson and Neal Stephenson, each of which present visions of the future of the communications revolution. Waggoner called for rethinking the building blocks of the First Amendment for a new age with its new media. Important to these building blocks are the changing definitions of "expression" and "speech." Courts recently have given First Amendment protection to encryption formulae as expression. Waggoner asked the audience to consider why the personal computer, Web hosting software, and streaming media should be treated differently than we have treated books or billboards in the past.
But the lines between television, personal computers, cellular telephones, and many other devices are blurring, said Mary Snapp. News will not be passively received in the near future. Individuals will have more control over what they get. Three circumstances are driving the changes: (1) microprocessor power is growing exponentially, (2) bandwidth is growing with "fatter" pipes, and (3) there is more opportunity for communicating with the source of the information with real-time feedback. The result is a transformation from the "push" technology of the old media to the "pull" technology of the new. Communica-tions will be personalized. Workspaces will include digital dashboards with self-selected news and data, updates on personal finances, project management at work, e-mail, and other specific information.
David Wittenstein thoughtfully commented on an article entitled "Fearless Predictions: The Content World 2005," by Michael Wolf and Geoffrey Sands. The lines between editorial content and advertising will continue to blur and a few conglomerates will dominate the mass news business. Wittenstein extrapolated on the prediction that television and the Web will finally converge, noting that actually they will complement each other. The new fatter pipes will allow continuous Internet access through cable television, and the PC will move out of the office and into kitchens. Television, the traditional haven of the couch potato, will be more interactive. Wittenstein also agreed that the demand for local news stations will continue, but that newspapers are in danger unless they can connect with the Internet. Classified advertising is very vulnerable now. E-books will transform publishing in the future. Wolf and Sands predict that half of our book purchases will be made online by 2005. There will be an increasing number of magazines, and the Internet will radically change radio broadcasting. Local markets will be less meaningful and local talk shows will travel well beyond local markets through the Internet.
Filling in for Andrew Shapiro, Barbara Wall admirably presented the arguments of Shapiro's book, The Control Revolution: How the Internet Is Putting Individuals in Charge and Changing the World We Know. Shapiro's central premise is that people will be able to target the news and information they receive to meet their own personal needs. The danger is obvious, according to Wall. By reading today's newspapers, as an example, we often receive information in which we did not know we were interested but our interest expands as we turn the pages. A future of totally "pulled" information may unfortunately allow us to focus our own interests to the detriment of society as a whole.
Judge Sack began his remarks by asking how the First Amendment will adapt as power starts to shift in the twenty-first century. He reminded the audience that modern libel and privacy law began in 1931 when the First Amendment was incorporated into the Fourteenth Amendment and therefore began to apply to the states. Will power in the future lie with the federal government, state government, hackers, Microsoft, or others? Leaving the question unanswered, he stated that the real danger of oppression is where the real power lies. Judge Sack predicted very few conceptual changes in defamation law but acknowledged that there will be many interesting variations, including the identification of authors on the Web. There will be massive changes with privacy. He also spoke about the incredible power of the Internet.
Free Speech in the 21st Century
Daniel Waggoner, Davis Wright Tremaine, Seattle
Barbara Wall, Gannet Co., Inc., Arlington, Virginia
Mary Snapp, Microsoft Corporation, Redmond, Washington
Robert Sack, U.S. Circuit Judge, Second Circuit
David Wittenstein, Dow Lohnes & Albertson, Washington, D.C.
Hot Issues in Newsgathering
The focus of the discussion on newsgathering was a hypothetical about a nationally syndicated tabloid television show. The show received a tip that a chain of auto dealerships was engaging in the practice of selling used cars that, without disclosure to the buyers, have been rebuilt after being totaled in accidents and sold as salvage for parts. The show knows that a well-known national celebrity has a majority ownership interest in the chain and that an expert is willing to say on camera that such vehicles are dangerous. The hypothetical show wants to use video and seeks legal advice about using hidden cameras to shoot footage inside the operation.
Among the potential camerapersons are: (1) a current disgruntled employee, (2) a staffer on the show who is ready to get a job at the dealership as a salesperson, (3) a staffer who offers to pose with his sister as a married couple interested in buying a used car from the dealership, (4) a staffer who is ready to pose as a potential supplier of wrecked vehicles to the dealership's body shop, (5) a reporter who is prepared to do an ambush interview of the general manager at the manager's home using a concealed microphone and a camera in a van on the street, and (6) law enforcement personnel who offer to take the show's reporter along when they execute a search warrant on the dealership.
Interestingly, in the several sessions on this hot topic, the practitioners attending the session reached varying conclusions about which cameraperson would be the safest to use. In the session attended by the author, option #1 received overwhelming approval because it would limit liability for trespass. The employee has the right to be present in the dealership. Several people, however, felt that this option presented an undue risk because it gave control over the hidden camera to a disgruntled employee and increased the risk of staging. Others stated that there should be some effort to obtain the information about the dealership before resorting to a hidden video camera in the first place.
Option #2 was universally discounted because of the risks of liability stemming from trespass, breach of fiduciary duty, intrusion, and fraud.
A small minority of the audience voted for Option #3, the staffer who offers to pose with his sister as a married couple interested in buying a used car from the dealership. Several people warned about misrepresenting details on any credit application, however.
Options #4 and #5 were seen as too legally risky or inadequate to get the story. Option #6, the "ride along," was unanimously rejected given the Supreme Court's decisions in Hanlon v. Berger5 and Wilson v. Layne.6
One of the themes of the discussion was that sometimes the best way to get the story may also be the best way to get into legal trouble. The use of hidden cameras must be carefully analyzed in light of state laws covering invasion of privacy, intrusion, trespass, fraud, and breach of fiduciary duty. The group bemoaned the fact that it is substantially more difficult to gather the news in California than in any other state. Cited as an example was Alpha Therapeutic v. Nippon Hoso Kyokai,7 in which the Ninth Circuit found that a claim for invasion of privacy under California law was stated where a reporter secretly wore a hidden microphone and camera on his necktie during an interview with the plaintiff.
Andrea Hartman, NBC, Burbank
Thomas Leatherbury, Vincent & Elkins, Dallas
Robert Lind, Southwestern University School of Law
Susanna Lowy, CBS, New York
Andrew White, White, O'Connor, et al., Los Angeles
Hot Issues on the Internet
This workshop made clear that in the fast changing world of the Internet, lawyers are constantly confronted with new issues, courts keep changing the rules of the road, and analogies to the brick and mortar world are of limited use. The exchange of experience becomes particularly important.
The workshop began with a brief alert to the problem of obtaining insurance protection for Internet-related activities and Web sites (e.g., accidentally transmitted viruses, security breaches, etc.). The discussion then moved to the use of disclaimers on Web sites. In order to enhance chances of enforceability, the language of any disclaimer should be as short, understandable, and posted conspicuously.
The next topic was the Children Online Privacy Protection Act, which became effective April 21, 2000. The controversial law requires that Web sites conspicuously post privacy policies and obtain parental consent for the collection, use, and disclosure of personal information of children under thirteen. These requirements apply to Web sites targeting children and to general Web sites that have actual knowledge that children visit the site. Web sites will have to make an effort to enforce the rules or risk an $11,000 fine for each offense. Two different approaches to compliance were discussed: (1) setting up procedures to monitor the site and collect parental permissions where required, or (2) filtering out visitors under age thirteen at every entry point where information may be collected. Some workshop participants estimated the costs of complying with the complicated procedures of the Act at almost $100,000 per site. Given the high cost of monitoring, participants speculated that most sites would probably opt for the cheaper, second alternative of precluding participation of children on the Web site.
Moving on to music licensing, it was noted that the Digital Millennium Copyright Act has established a separate copyright for sound recordings and requires a compulsory license to transmit the sound recording digitally. The rate for this license still has yet to be determined, but the user must agree to pay a retroactive rate that may be as high as 6 percent of the gross revenues of the music portion of the site on which the recording is transmitted.
The next topic discussed was how to deal with subpoenas served on Internet service providers that request user information such as the user's IP address and user ID. These subpoenas have occurred more frequently since the enactment of section 230 of the 1996 Telecommunications Act, which shields operators of chat rooms and Web sites from liability for the acts and statements of third parties. The audience agreed that it will be hard to oppose these subpoenas and that the IP address and user ID will probably have to be provided in response to such subpoenas. Although a notice to the user whose information is disclosed is not required, AOL and other companies usually provide notice to their customers. The question of the applicability of the reporter's privilege was raised, but the participants agreed that postings in chat rooms and on message boards would probably not be considered newsgathering.
The session concluded with a brief discussion of the subject of domain names and the recently enacted Anticybersquatting Consumer Protection Act. The usefulness of the Act was disputed among the participants, some of whom raised concern that the Act does not sufficiently address the problems of warehousing names.
Jerry Birenz, Sabin Bermant and Gould LLP, New York, New York
Mary Snapp, Microsoft Corporation, Redmond, Washington
David Wittenstein, Dow, Lohnes & Albertson, Washington, D.C.
Nicole Wong, Perkins Coie LLP, San Francisco
Hot Issues in Access and Subpoenas
Participants in this workshop discussed recent developments in a number of different areas, including television access to court proceedings, access to juvenile court proceedings and records, access to crime sites and disaster scenes, the enactment of reporter's privilege laws in several states, and access to grand jury materials. Of particular interest was a New York trial court's decision to allow television coverage of the trial of four police officers accused of murdering Amadou Diallo.8 The decision marked the first time that a court in the United States recognized a presumptive First Amendment right of the press to televise court proceedings and of the public to view those proceedings. The Diallo case presented an ideal fact pattern for challenging New York's per se ban on cameras in the courtroom; the case involved highly charged allegations of police brutality and racism, and the change of venue from New York City to Albany effectively prevented members of the community from observing the trial. In contrast to the trial court's decision in Diallo, participants from California noted increasing reluctance by state court judges in Los Angeles to allow televised trial coverage under Rule 980, which vests discretion entirely with the trial court judge. Other California courts, however, have been far more receptive to media requests to televise pretrial and trial proceedings in criminal and civil actions.
On the access front, participants discussed the California Supreme Court's decision in NBC Subsidiary (KNBC-TV) v. Superior Court,9 which recognized a First Amendment right of access to proceedings in civil cases. In an exhaustive review of the development of the right of access, Chief Justice George identified and rejected many of the arguments typically offered in favor of closure. Less promising were reports about the increasing willingness by trial courts to seal court records in civil cases to protect alleged trade secrets. In discussing the Ninth Circuit's decision in the Unabomber case,10 participants also noted a trend towards more restricted access to court proceedings and documents in high-profile cases.
Access to juvenile proceedings was another issue that sparked considerable discussion. Participants from Florida reported greater access to juvenile court proceedings, a development that was in part designed to promote accountability in the juvenile justice system. Public concern about juvenile courts appears to be weighing in favor of greater access in other states as well. Recent developments in access to grand jury materials were less promising. In Daily Journal Corp. v. Superior Court,11 the California Supreme Court overturned a lower court ruling that granted the media access to transcripts of grand jury proceedings from an investigation of Merrill Lynch's involvement in the 1994 Orange County bankruptcy. Participants also discussed the D.C. Circuit's decisions involving the Monica Lewinsky grand jury proceedings, that also favored grand jury secrecy.
In reporter's shield cases, 1999 was a good year overall. In Miller v. Superior Court,12 for example, the California Supreme Court overturned a lower court order compelling a television station to turn over outtakes of an interview with a murder defendant that had been subpoenaed by prosecutors. Developments in federal courts likewise were favorable to the press. In Gonzalez v. National Broadcasting Co.,13 the Second Circuit reversed course and reaffirmed the existence of a qualified privilege with respect to nonconfidential materials.
Access & Subpoenas
Karen Frederiksen, Davis Wright Tremaine LLP, Los Angeles
Guylyn R. Cummins, Gray Cary Ware & Freidenrich, San Diego
Carol J. LoCicero, Holland & Knight, Tampa, Florida
Roger Myers, Steinhart & Falconer, San Francisco
Karl Olson, Levy, Ram & Olson, San Francisco
Hot Issues in Ethics
The main topics of the workshop "Hot Topics in Ethics" were problems of multiple clients in litigation; the unauthorized practice of law; and various situational ethics problems, including clients engaged in crime or fraud. In most cases involving multiple clients, the interests of a media company and its reporters are generally in sync although the factor of punitive damages may often alter this alignment. The employer may not be liable for all of the reporter's actions without ratification or other action of some superior. A conflict may exist unless the reporter is clearly to be indemnified by the company. Another set of issues arises if a reporter tells a lawyer representing both the reporter and the company that he stole documents, for instance, or that he has a previously undisclosed criminal background. Such information cannot be provided to the company in most jurisdictions in the absence of clear agreements with regard to sharing all confidences. Similarly, there are occasions in which a reporter has just filed a discrimination claim or other claim against the media company. Joint representation is still possible with informed consent and a full explanation of the sharing of confidences and the plan to withdraw from representation of the reporter, if a conflict makes the continuation of joint representation impossible. Such explanations must be in writing.
The panel also discussed the occasional problem of the unauthorized practice of law in another jurisdiction. The fifty states have a range of restrictions. Enforcement of these restrictions usually comes to the fore in disputes over fees. In litigation cases, there are pro hac vice rules to be followed. The rules are less clear in transactional situations. The panel presented a relatively recent California case in which a New York firm was involved in a private California arbitration. The court held that the firm was not authorized to practice in the arbitration and refused to enforce a fee agreement. A new Restatement of the Law Governing Lawyers will soon present a model rule regarding unauthorized practice.
The third area discussed by the panel focused on illegal or fraudulent conduct by a party represented by a media lawyer. It is universally true that a lawyer may not counsel a client to engage in illegal conduct. In some states a lawyer must reveal a client's stated intention to commit a crime. Such revelations are absolutely prohibited in other states although a majority of states do permit them. No attorney-client privilege attaches where advice is sought regarding committing an illegal or fraudulent act.
Robert Bernius, Nixon Peabody, Washington, D.C.
Harold W. Fuson, Jr., Copley Press, Inc., LaJolla, California
Richard Goehler, Frost & Jacobs, Cincinnati, Ohio
Jane Kirtley, University of Minnesota School of Journalism and Mass Communications
Adam Liptak, New York Times
Hot Issues in Libel and Privacy
Hot issues included the impact that NHK,14 Sanders,15 and Schulman16 have had on reporting "private" matters. A consensus was reached that rights of privacy may now be waived for some purposes and not others. Case law has developed new "stratified" zones of privacy, with varying expectations depending on who is present and what is being said.
Other topics included media coverage of the police and government and whether there are continuing safe harbors for reporting on official conduct; the issue of whether retraction responses are admissible in a libel claim and, indeed, whether they are separately actionable; how anti-SLAPP statutes are working in California and elsewhere; the continuing problems of libel by implication; techniques of bifurcation, including sequencing discovery and sequencing trial matters of law and fact; protecting sources under the First Amendment and a variety of state shield statutes; and a wide ranging discussion of preparing for trial, including the use of focus groups or mock juries in trying libel and privacy cases.
Gary L. Bostwick, Davis Wright Tremaine LLP, Los Angeles
Peter Canfield, Dow Lohnes & Albertson, Atlanta
Thomas W. Tinkham, Dorsey & Whitney, Minneapolis
1. 128 F.3d 233 (4th Cir. 1997).
2. 395 U.S. 444 (1969).
3 539 P.2d 36 (Cal. 1975).
4. 712 So. 2d 681 (La. Ct. App. 1998).
5. 526 U.S. 808, 119 S. Ct. 1706 (1999).
6. 526 U.S. 603 (1999).
7. 199 F.3d 1078 (9th Cir. 1999).
8. People v. Boss, 701 N.Y.S.2d 891 (N.Y. Sup. Ct. 2000).
9. 980 P.2d 337 (Cal. 1999).
10. Unabom Trial Media Coalition v. District Court, 183 F.3d 949 (9th Cir. 1999).
11. 979 P.2d 982 (Cal. 1999).
12. 986 P.2d 170 (Cal. 1999).
13. 194 F.3d 29 (2d Cir. 1999).
14. Alpha Therapeutic Corp ., 199 F.3d at 1078.
15. Sanders v. American Broadcasting Co., 978 P.2d 67 (Cal. 1999).
16. Shulman v. Group W. Productions, Inc., 955 P.2d 469 (Cal. 1999).
Duane A. Bosworth II, Alonzo B. Wickers IV, Jeffrey H. Blum, and Anke E. Steinecke practice at Davis Wright Tremaine LLP. Mr. Bosworth is a partner in the Portland, Oregon, office; Mr. Wickers is a partner in the Los Angeles office; and Mr. Blum and Ms. Steinecke are associates in the New York office.