American Bar Association
Forum on Communications Law

PLI Communications Law Conference 2000

Kimberly Chastain

On November 13 and 14, the Practising Law Institute hosted the 2000 Communications Law Conference in New York City. Participants focused on recent cases affecting the communications field, including access, reporter's privilege and prior restraint, commercial speech, convergence, antitrust, cyberliability and the Internet, information privacy and freedom of speech, newsgathering, right of privacy and related torts, and libel.

Floyd Abrams, Cahill Gordon & Reindel
Eve B. Burton, CNN
Herschel P. Fink, Honigman, Miller, Schwartz & Cohn
James C. Goodale, 2000 Conference Chair, Debevoise & Plimpton
Richard J. Ovelman, Jorden Burt Boros Cicchetti Berenson & Johnson, LLP
Dan Paul
Joseph D. Steinfieldm, Hill & Barlow

The conference's first panel revealed that proponents of access to documents in criminal cases appear to be gaining ground. After a trial court sealed documentary exhibits during a murder trial, the New York Appellate Division held in Daily News v. Teresi1 that the media's claims regarding access to those specific exhibits were moot but reaffirmed in general "the presumptive common-law right of the press to inspect trial exhibits contemporaneously with their introduction into evidence." Similarly, in United States v. Hsia2 and United States v. Ladd,3 the courts reiterated that the media have a common law right to access trial records. In Hsia, the court permitted public access to virtually all of the documents and photographs admitted as evidence. However, the court restricted access to a videotape of Vice President Al Gore's visit to the His Li Temple on the grounds that the videotape could influence the jury. The Ladd court, on the other hand, held that there was "no doubt" that it was in the public interest to reveal the names of five unindicted co-conspirators whose hearsay testimony had been admitted at trial.

The panel also discussed Smith v. U.S. District Court Officers,4 which dealt with whether and when audiotapes of a judicial proceeding should be deemed judicial records within the meaning of the access rule. The Seventh Circuit held that an audiotape is a judicial record and therefore subject to access if it was required to be filed with the court or there is reason to doubt the stenographic version. However, in United States v. Sealed Search Warrants,5 the New Jersey federal district court held that neither the First Amendment nor common law right of access allowed searches of warrant affidavits and inventories prior to an actual indictment. The court stated that disclosure would undermine grand jury secrecy and impair ongoing investigations. In In re Sealed Case,6 the court permitted a local rule that allowed disclosure of proceedings "ancillary" to grand jury proceedings when such disclosure does not compromise these proceedings. Also favoring the secrecy of the grand jury process was State Prosecutor v. Judicial Watch, Inc.,7 in which a group had requested a Vaughn index of documents held by state prosecutors relating to Linda Tripp, Lucianne Goldberg, and Monica Lewinsky.

Recent cases offer mixed results on the issue of closed courtrooms. In In re Landmark Communications, Inc.,8 the Fourth Circuit granted a media petition for mandamus, ordering the district court not to close the courtroom during a criminal trial without first making specific judicial findings and without giving advance public notice. In Bell v Jarvis,9 the same court held that complete closure of a courtroom during selected parts of a rape trial, and partial closure during the testimony of minor victims, constituted public trial violations that warranted allowing a writ of habeas corpus. Unlike the court in Nieblas v. Smith,10 the Bell court held that post-trial assertions in a habeas corpus affidavit made four years after trial did not make up for the deficiencies in the trial court record.

The panel also focused on whether intervention or mandamus should be used, in light of the Virginia Supreme Court's decision in Hertz v. Time-World Corp.11 In Hertz, media barred from two separate preliminary hearings sought and obtained writs of mandamus from the county circuit court, following clear direction from the state appellate court that mandamus, rather than an appeal, was the appropriate remedy. On appeal, the state supreme court reversed and vacated the writs, holding that the appellate court had "wrongly decided" the earlier cases. Although most states disagree with the Virginia Supreme Court on this issue, in the wake of Hertz media outlets may want to pursue both avenues simultaneously.

The panel discussed a number of recent decisions that fall under the three-part test of United States v. Amodeo ( Amodeo I),12 and United States v. Amodeo ( Amodeo II).13 One surprising recent decision was United States v. Ackert,14 in which the federal district court declined to release a transcript of the court's in camera review to determine whether certain testimony was privileged. Applying the three-part test, the court found that the transcript was a judicial document but that it enjoyed only a "weak" presumption of access. With the exception of Acker, however, Amodeo set the stage for several access victories during the year, including United States v. $15,270,885.69 Formerly on Deposit in Account No. 8900261137,15 in which the court refused a bank's sealing request made in order to "prevent a run on the bank." Similarly, in Castellano v. Young & Rubicam, Inc.,16 the magistrate refused to seal his report, which referred to merger discussions that the parties had designated "confidential." The parties had failed to demonstrate why confidentiality was warranted.

Dealing with unfiled discovery materials, the Wisconsin Supreme Court in State ex rel. Mitsubishi Heavy Industries v. Milwaukee County Circuit Court,17 held that neither the public nor the press had a common law or First Amendment right of access. Chief Justice Abrahamson noted that if the materials had been filed with the court, the Wisconsin rules of civil procedure would require a showing of "good cause" to keep the materials under seal. Espousing a similar view, in Universal City Studios, Inc. v. Goldstein,18 Judge Lewis Kaplan noted that any presumption of access to these materials may be overcome by a showing of good cause.

Proponents of access gained ground with the use of confidential settlement agreements in the case of Ashcroft v. Conoco, Inc.,19 in which the Fourth Circuit lifted contempt rulings against a reporter who published a description of an agreement that he had mistakenly received from a court clerk. The court held that the sealing order relating to the settlement was not a "valid decree" and noted that the reporter had not acted willfully or intentionally. In another important case, Virmani v. Presbyterian Health Services Corp.,20 the court required that a sealing order be preceded by notice and an opportunity for interested parties to object; courts were also required to give specific reasons and factual findings for sealing documents.

Other courts have apparently agreed that sealing orders are permissible provided there is public notice and an opportunity to object, but in Boone v. Suffolk,21 the court was more generous to access advocates. The Boone court held that it could seal documents only "if the public's right of access is outweighed by competing interests." The panel also discussed Union Oil Co. of California v. Leavell,22 in which the Seventh Circuit rejected a party's argument that a settlement agreement was confidential because it was designated so. The court ruled that once a confidential settlement agreement becomes the basis of a lawsuit alleging noncompliance, it normally becomes publicly available.

Recent decisions also addressed the issue of cameras in the courtroom. Although thirty-seven states allow trials to be televised and forty-eight states permit some form of audiovisual coverage, this issue continues to be debated. In Nichols v. District Court of Oklahoma County,23 in which media organizations sought to televise the proceedings in the prosecution of Terry Nichols, the court ultimately determined that Nichols's right to a fair trial outweighed the media's interest. Although a number of New York criminal courts have recently emphasized the right of press and public access to courtroom proceedings, in Santiago v. Bristol,24 the Appellate Division held that a county court judge had exceeded his authority by declaring New York Civil Rights Law section 52 unconstitutional and by allowing audio-visual coverage of the defendant's trial. In response, the New York legislature has taken up the question.

Reporter's Privilege and Prior Restraint
Patricia Fields Anderson, Rahdert Anderson McGowan & Steele
Floyd Abrams
George Freeman, New York Times Company
James C. Goodale
Barbara W. Wall, Gannett Co., Inc.
Richard N. Winfield, Clifford Chance Rogers & Wells LLP

The second session of the conference began with an examination of Steele v. Isikoff,25 in which the federal district court dismissed a breach of contract action brought against a reporter for failing to honor his promise to maintain the confidentiality of the plaintiff/source. The claim was dismissed on the ground that such promises of confidentiality are moral obligations, not contractual requirements. In another case dealing with confidential sources, United States v. Sanders,26 investigative journalist James Sanders and his wife, a TWA flight attendant, obtained residue from the wreckage of TWA Flight 800. The Sanderses refused to reveal their source and were convicted of conspiring to remove parts of an aircraft that had been involved in an accident. On appeal, they argued that their conviction violated the journalist's privilege barring governmental coercion to disclose a source, but the Second Circuit affirmed the conviction.

Additionally, the panel discussed several interesting state cases. In Miller v. Superior Court,27 the California Supreme Court balanced the state's shield law against a prosecutor's desire for information about a murder defendant. A prosecutor had sought a television station's unpublished video outtakes of an interview with the murder defendant. The intermediate appellate court held that the media's shield law interests could yield to the due process rights of the prosecution. However, the California Supreme Court reversed, holding that due process rights do not affect the journalist's absolute immunity from contempt for refusing to furnish unpublished information.

In People v. Pawlaczyk,28 the Illinois Supreme Court held that a journalist can be divested of his qualified statutory privilege if the information is relevant to the grand jury proceedings. The court, without considering the reporter's First Amendment argument, rejected his assertion that the privilege statute requires a finding of a compelling public interest before it can be overcome. In the decision In re Grand Jury Subpoena Dated January 26, 200029 involved a reporter and a newscaster, both of whom had interviewed a sheriff who was under grand jury investigation for misconduct. After the journalists were subpoenaed, both moved to quash the subpoenas. The trial court limited the subpoenas to require authentication of the published article and broadcast only. The appellate court affirmed, holding that the constitutional privilege did not prohobit such limited questioning.

The panel also discussed several recent developments in prior restraint law. In Hill v. Colorado,30 the U.S. Supreme Court upheld a Colorado statute that made it unlawful to come closer than eight feet of visitors to any health care facility for the purpose of "protesting, educating, or counseling" within 100 feet of the entrance to that facility. The Court held that the statute was content-neutral because: (1) it only regulates the place where speech may occur; (2) it was not adopted because of disagreement over the message the speech may convey; and (3) the state's interest in protecting access and privacy are unrelated to the content of the demonstrators' speech.

The panel also examined United States v. King,31 contrasting the courts' reluctance to impose prior restraints on the media with their willingness to place restrictions on trial participants. In King, the district court concluded that it was necessary both to allow the broadcast of an interview with one prosecution witness and at the same time to order other potential witnesses not to make any statements to the press.

Turning to restraints to protect a participant's identity, the panel discussed a number of cases, including Arkansas Democrat-Gazette v. Zimmerman32 and In re I.G. Services, Ltd.33 In Arkansas Democrat-Gazette, a newspaper photographer, who had learned of a gag order in a juvenile court proceeding, nonetheless took photographs of the defendant and his family leaving the courthouse. The next day, the newspaper published the photographs. The judge found the newspaper in contempt of court and imposed a fine. A media coalition challenged the order as it applied to photos taken in public places, and the Arkansas Supreme Court remanded to the trial court with directions to modify the order so as to prohibit only photographs taken in areas immediately adjacent to the courtroom.

In I.G. Services, the San Antonio Express News moved to vacate a confidentiality order entered by the bankruptcy court to protect the identities of numerous wealthy Mexican creditors. The newspaper and its reporter attended a closed hearing as a party to the action; the court rejected the newspaper's argument that the court's sealing order was a restraint on publication. The sealed information was not in the possession of the press per se, and the newspaper, like any other party, was required to comply with the court's order limiting extrajudicial commentary.

In United States v. Brown,34 the Fifth Circuit recently held that a district court can impose a gag order on trial participants if it concludes that there is a "substantial likelihood" that extrajudicial statements will undermine a defendant's right to a fair trial. The Fifth Circuit noted a lack of consensus among the circuits as to the appropriate standard for evaluating a gag order directed at trial participants, and explicitly adopted a standard less restrictive than the "clear and present danger" and "serious and imminent threat" tests used in the Sixth, Seventh, and Ninth Circuits.

Adding some local flavor to the discussion, the panel discussed Brooklyn Institute of Arts and Sciences v. City of New York,35 in which the mayor of New York called a planned art exhibit at the Brooklyn Museum "sick" and "disgusting" and threatened to terminate the museum's funding unless it canceled the exhibit. The court held that in light of the city's acknowledgment that its purpose was directly related to the particular viewpoints expressed in the exhibit, there could be no clearer example of a First Amendment violation.

Turning to business interests and the First Amendment, the panel discussed the recent decision in A&M Records, Inc. v. Napster, Inc.36 In this case, Napster argued that the injunction sought by the plaintiffs would impose a prior restraint on its speech, as well as that of its users and the unsigned artists who use its service. The court noted that an overly broad injunction might implicate the First Amendment, but stated that free speech concerns are protected by the fair use doctrine, and that the plaintiffs had not sought to enjoin any fair uses of the Napster service that were not "completely contrived or peripheral to its existence."

In Universal City Studios, Inc. v. Reimerdes,37 the district court granted a preliminary injunction enjoining defendants from providing a computer program that allows users to decrypt and copy the plaintiff's copyrighted motion pictures from digital versatile disks. The court assumed the computer code merited some constitutional protection, but found that the interests served by the Digital Millennium Copyright Act trumped the minimal expressive aspect of the computer code. The court further held that the prior restraint doctrine did not apply.

As it relates to indecency and obscenity, the Child Online Protection Act (COPA)38 was held unconstitutional by the Third Circuit. In ACLU v. Reno,39 in response to a challenge by website operators, the district court issued a preliminary injunction against the enforcement of the COPA. The Third Circuit affirmed, holding that although Congress has a compelling interest in protecting children from indecent and obscene materials, the COPA unconstitutionally curtailed the free speech rights of adults. Similarly, the Ninth Circuit, in Free Speech Coalition v. Reno,40 held that the COPA prohibited depictions that are protected by the First Amendment, that the statute's language was vague, and that the government's interest in preventing the secondary effects of child pornography was not sufficiently compelling to justify criminalizing the use of fictional images. On the other hand, the Ninth Circuit agreed with the district court that the statute was not a prior restraint.

In Urofsky v. Gilmore,41 several professors at public colleges in Virginia challenged the constitutionality of a state law restricting public employees' access to sexually explicit materials on computers owned or leased by the state. The district court held for the plaintiffs, but the Fourth Circuit reversed, holding that the law regulated only the speech of the employee as an employee, and not as a citizen at large. Accordingly, the court held that the law did not violate the professors' First Amendment rights.

Commercial Speech
Floyd Abrams
Steven G. Brody, Cadwalader, Wickersham & Taft
P. Cameron Devore, Davis Wright Tremaine LLP
James C. Goodale
Matthew L. Myers, National Center for Tobacco-Free Kids
Elaine S. Reiss, Weider Publications, Inc.

The panel discussed major developments in commercial speech during the past year, including the U.S. Supreme Court's decision in Los Angeles Police Department v. United Reporting Publishing Corp.42 In United Reporting, the Court reversed and remanded the decision of the Ninth Circuit, declining to decide whether a California Government Code provision violated the First Amendment by requiring that individuals requesting an arrestor's address declare that the request is made for one of five prescribed purposes. The Court held that the statute did not abridge anyone's right to engage in speech, but was merely a regulation of access to information held by the government. The Court noted that "alternative bases for affirmance" would remain open if properly presented.

Turning to the lower federal courts, in Consolidated Cigar Corporation v. Reilly,43 the federal district court upheld Massachusetts regulations banning outdoor advertising for tobacco products within 2,000 feet of a public playground or school. On appeal, the First Circuit rejected the plaintiffs' First Amendment argument and declined to subject the regulation to anything more than intermediate scrutiny, despite its acknowledgment that the regulations were content-based. In Greater New York Metropolitan Food Council, Inc. v. Giuliani,44 the district court had, based upon federal preemption and the Federal Cigarette Labeling and Advertising Act,45 enjoined enforcement of a New York City ordinance limiting visible outdoor advertising of tobacco products. On appeal, the Second Circuit affirmed in part and reversed in part. The U.S. Supreme Court has denied certiorari, but on July 24, 2000, the Court, sua sponte, requested briefs from the parties addressing whether the First Circuit's decision in Consolidated Cigar Corp. would require a ruling for the city pursuant to the First Amendment.

In Mason v. Florida Bar,46 the Eleventh Circuit considered a Florida state bar ethical rule prohibiting "self-laudatory" advertisements by lawyers. The district court denied the plaintiff's First Amendment challenge, but the Eleventh Circuit reversed, holding that the state had failed to meet the second prong of the Central Hudson test,47 noting that the state was not able to avoid its burden of showing a genuine danger merely by requiring a disclaimer.

Also examined were recent developments in advertising and commercial speech. In Wendt v. Host International, Inc.,48 the Ninth Circuit held that the publicity rights of actors under a California law were violated by the use of figures portraying their likenesses. Although the majority did not discuss the First Amendment issue, the dissent was concerned that the state law encroaches on First Amendment rights, even though the use of the figures was for a commercial purpose. The panel discussed the various federal and state provisions against misleading advertising and disparagement and the fact that almost all states now prohibit such practices. Although these laws are generally aimed at advertisers, they are broad enough to encompass publishers' activities. In Lacoff v. Buena Vista Publishing, Inc.,49 a New York Supreme Court recognized that claims for false or misleading advertising might be pursued and held that the First Amendment squarely barred a suit brought on behalf of persons who purchased a book the purchasers claimed contained deceptive information.

The regulation of advertising content was at issue in Glickman v. Wileman Bros. & Elliott, Inc.,50 in which the U.S. Supreme Court, applying the Central Hudson test, upheld U.S. Department of Agriculture regulations imposing assessments on certain fruit growers and handlers to finance product advertising. The Court ruled that the First Amendment did not apply to regulations that were merely a question of "economic policy." Following Glickman, the Ninth Circuit in Gallo Cattle Company v. California Milk Advisory Board,51 held that an assessment on milk and milk products did not infringe First Amendment rights.

However, the Sixth Circuit took a different approach in United Foods, Inc. v. United States.52 The court held that requiring the plaintiff to contribute funds for advertising mushrooms, which had been authorized under a federal law, was impermissible under the First Amendment. Differentiating this case from Glickman, the court noted that the mushroom industry, as opposed to the fruit industry , is unregulated and that "compelled commercial speech is not a price members must pay" in order to further their self-interest.

Antoinette Cook Bush, NorthPoint Technology/Broadware US
James C. Goodale
Patrick J. Grant, Arnold & Porter
Robert D. Joffe, Cravath, Swaine & Moore
Paul M. Smith, Jenner & Block
Gigi B. Sohn, Ford Foundation
Richard E. Wiley, Wiley, Rein & Fielding

The first case on the panel's agenda was A&T Corp. v. City of Portland,53 in which the district court upheld open access requirements as a condition to a cable franchise's transfer of control. The Ninth Circuit reversed, holding that the transmission of Internet service was a "telecommunications service" under the Communications Act of 1996 and not a "cable service." Similarly, in MediaOne Group, Inc. v. County of Henrico,54 the court barred the municipality from regulating Internet service providers (ISPs), which are considered to be telecommunications facilities. The FCC recently reported that it would initiate proceedings to "establish the national policy" on the question of open access and "bring certainty to the marketplace."55

The panel also discussed United States v. Playboy Entertainment Group, Inc.,56 in which the U.S. Supreme Court struck down § 505 of the Telecommunications Act of 1996.57 Section 505 required cable and satellite television systems to scramble or fully block both the picture and sound components of channels "primarily dedicated to" sexually oriented programming. As the parties had agreed that the programming at issue was "indecent" rather than "obscene," it was entitled to some First Amendment protection. The Court applied the "strict scrutiny" test, which requires the government to use the least restrictive means possible to accomplish its objectives. In a five-to-four decision, the Court held that the provision did not withstand this test because there were less restrictive alternatives available (such as targeted blocking available upon a subscriber's request).

The panel also examined online privacy. In April 2000, the Federal Trade Commission began limiting the collection, use, and distribution of information collected online about children under the age of thirteen years. These regulations were authorized under the Children's Online Privacy Protection Act of 1998 (COPPA)58 and apply to commercial websites that either target these children or have actual knowledge that children visit their websites. The following month, the FTC issued its report to Congress on online privacy,59 for the first time recommending legislation that would require consumer-oriented commercial websites that collect personal information about visitors to "comply with the four widely accepted fair information practices: notice, choice, access, and security."

The panel also discussed online copyright protection as reflected in the widely publicized case A&M Records, Inc. v. Napster, Inc.,60 in which the Recording Industry Association of America sued Napster for widespread and unauthorized copying and distribution of copyrighted sound recordings. The federal district judge denied Napster's motion for summary judgment and rejected its contention that it was a "mere conduit" service provider and therefore exempt from copyright infringement liability under the "service provider safe harbor" provisions of the Digital Millennium Copyright Act (DMCA).61 The court noted the interactivity between the users and Napster and found that Napster had "actual or constructive knowledge" of the infringing activity.

Cyberliability and the Internet
George Vradenburg III, America Online, Inc.
Jan F. Constantine, News America Publishing, Inc.
Jeffrey P. Cunard, Debevoise & Plimpton
James C. Goodale
Mary E. Snapp, Microsoft Corporation

The panel discussed some of the major legal issues involving the Internet, including the DMCA,62 which limits ISPs' liability for third-party infringements arising out of certain activities. The DCMA's safe harbors protect ISPs, which are generally defined as providers or operators of online services or network access, but are conditioned on removal of infringing material or notice, and are also based on procedural obligations. Failure to comply with the DCMA's statutory requirements places service providers outside the safe harbor provisions and leaves them vulnerable to common law or statutory claims based on copyright infringement.

The panel discussed the issue of unauthorized distribution of music on the Internet, including Napster and UMG Recordings v., Inc.63 In UMG Recordings, recording labels filed suit claiming direct copyright infringement by, which purchased tens of thousands of CDs and converted them to MP3 format without authorization. The court rejected's fair use defense, and in a second opinion found the defendants to be willful infringers and imposed damages.64 After the MP3 decisions, Representative Rick Boucher (D-Va.) introduced a bill that would make storage services lawful. By comparison, Napster indexes the MP3 files on users' computers and provides a searchable index of the files, allowing users to share MP3 files. The district court entered a preliminary injunction against Napster, but the Ninth Circuit stayed the injunction on appeal, and the case was argued before the Ninth Circuit on October 2, 2000. Several other cases are pending against other music sharing services.

The Internet also involves trademark issues. The Anticybersquatting Consumer Protection Act of 199965 added a section to the Lanham Act to prohibit a person who "has a bad faith intent to profit" from using another's trademark or service mark, or who registers, traffics in, or uses a domain name that is "identical to, confusingly similar to, or dilutive of such mark." The Act prohibits the practice of registering variations of famous trademarks in an attempt to divert Internet traffic. Further, it provides for an in rem civil action against the domain name if the cybersquatter is beyond the personal jurisdiction of the court.

The panel also reviewed the Communications Decency Act of 1996,66 which "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."67 The group concluded with a discussion of recent antispamming legislation that has been enacted in several states. Spam is unsolicited commercial e-mail, and online service providers have argued that the distribution of spam over the Internet is straining technical resources. Spam advocates, on the other hand, have asserted a First Amendment right. Antispam statutes have been struck down in California and Washington on the basis that the statutes unconstitutionally regulate interstate commerce.68

Newsgathering, Right of Privacy, and Related Torts
Patricia Fields Anderson
James C. Goodale
Victor A. Kovner
Davis Wright Tremaine
Barbara W. Wall
Diane Zimmerman, NYU School of Law

The panel discussed media liability for publication of unlawfully recorded conversations by people who received the recordings but were not involved in the unlawful recording. Of particular interest, this summer the U.S. Supreme Court agreed to review the Third Circuit's decision in Bartnicki v. Vopper,69 which dealt with the scope of Pennsylvania and federal wiretap statutes. In Bartnicki, recordings were made of cellular phone conversations between a union negotiator and the head of the union that contained threats against local school board members. The tapes were delivered to a union opponent, who gave them to local media outlets, which broadcast portions of them. The district court held that the First Amendment does not prevent imposing liability on the media. The Third Circuit held that the federal and state wiretapping statutes failed the intermediate scrutiny test under the First Amendment when civil damages and attorneys' fees provisions are used to penalize the disclosure of illegally intercepted information, and where there were no allegations that the defendants participated in or encouraged the interception. The panel also discussed Peavy v. WFAA-TV,70 in which the court took an approach different from that in Bartnicki. In Peavy, an individual called a WFAA reporter and gave him tapes of almost 200 illegally taped conversations. The district court ruled that the reporter had lawfully obtained the tapes and dismissed the claims, holding that the First Amendment provided a complete defense. The Fifth Circuit reversed in part, holding ruling that there was a triable issue as to whether the media defendants had violated the law by "obtaining" the illegal interception.

Hidden cameras continued to draw attention. In Sanders v. ABC,71 an undercover ABC employee interviewed employees of a "telepsychic" business, and a California court of appeals sustained the $600,000 judgment against ABC. After the court sustained the judgment, the claim was settled by paying the judgment, but Sanders's attempt to enjoin ABC from similar activities in the future was unsuccessful. Also dealing with undercover employee work, Food Lion v. Capital Cities/ABC,72 on appeal to the Fourth Circuit, reversed the punitive damage award but affirmed the $1,402 compensatory damage award as well as the nominal damage award for trespass and breach of the duty of loyalty. The Fourth Circuit's decision in the Food Lion case, although certainly a financial victory for ABC, may present future obstacles to undercover reporting.

Robin Bierstedt, Time, Inc.
James C. Goodale
Michael London, Paul Weiss Riftkin Wharton & Garrison
Bruce W. Sanford, Baker & Hostetler
Jack M. Weiss III, Gibson Dunn & Crutcher LLP
Thomas D. Yannucci, Kirkland & Ellis

The panel discussed Huckabee v. Time Warner Entertainment Co., L.P.73 This case concerned an HBO documentary on child custody battles in which children were awarded to fathers who had been accused of sexually abusing the children. Two of the four cases shown in the documentary were handled by family court Judge Charles Dean Huckabee, who sued for defamation, based on both statements in the documentary and HBO's portrayal of him as a judge who disregarded children's best interests. Judge Huckabee also asserted that, had certain facts not been omitted, the documentary's description of one of the cases would have led viewers to conclude that Huckabee was justified in his actions. Even after refusing to apply the "clear and convincing" standard for actual malice at the summary judgment stage, the Texas Supreme Court ruled in favor of HBO and rejected each of Huckabee's arguments in support of actual malice. The panel also discussed a case dealing with personal jurisdiction over a nonresident publisher. In Miracle v. N.Y.P. Holdings Inc.,74 the federal district court held that the defendant, the New York Post, was subject to jurisdiction in Hawaii. The court found that the defendant had purposefully availed itself of the privilege of conducting activities in Hawaii because the plaintiff was harmed there; the article stated that the plaintiff lived in Hawaii; and two copies of the newspaper were circulated in Hawaii.

A panel on antitrust issues featured Eleanor M. Fox, NYU School of Law; James C. Goodale; Patrick J. Grant; Robert D. Joffe; and Conrad M. Shumadine, Willcox & Savage, P.C.

Another panel on privacy and freedom of speech included James C. Goodale; Jane E. Kirtley, University of Minnesota; Joel R. Reidenberg, Fordham University School of Law; Marc Rotenberg, Electronic Privacy Information Center; Mary E. Snapp, and Eugene Volokh, UCLA School of Law.


1. 712 N.Y.S.2d 704 (N.Y. App. Div. Sept. 8, 2000).

2. 2000 U.S. Dist. LEXIS 2752 (D.D.C. Feb. 18, 2000).

3. 218 F.3d 701, 28 Media L. Rep. 2002 (7th Cir. 2000).

4. 203 F.3d 440 (7th Cir. 2000).

5. 28 Media L. Rep. 1151 (D.N.J. 1999).

6. 199 F.3d 522, 28 Media L. Rep. 1412 (D.C. Cir. 2000).

7. 737 A.2d 592, 28 Media L. Rep. 1031 (Md. 1999).

8. No. 99-2387 (4th Cir. Nov. 3, 1999).

9. 198 F.3d 432 (4th Cir. 2000), reh'g en banc granted, opinion vacated (4th Cir. Feb. 23, 2000).

10. 204 F.3d 29 (2d Cir. 1999).

11. 528 S.E.2d 458, 28 Media L. Rep. 1844 (Va. 2000).

12. 44 F.3d 141 (2d Cir. 1995).

13. 71 F.3d 1044 (2d Cir. 1995).

14. 76 F. Supp.2d 222 (D. Conn. 1999).

15. No. 99 CIV. 10255 (RCC), 2000 WL 1234593 (S.D.N.Y. Aug. 31, 2000).

16. No. 97 CIV. 5464 SHS HBP, 1999 WL 714063 (S.D.N.Y. 1999).

17. 28 Media L. Rep. 1685 (Wis. 2000).

18. 00 Civ. 277 (S.D.N.Y.).

19. 218 F.3d 288, 28 Media L. Rep. 2089 (4th Cir. 2000).

20. 350 N.C. 449, 515 S.E.2d 675, cert. denied., 120 S. Ct. 1452 (2000).

21. 79 F. Supp.2d 603, 28 Media L. Rep. 1612 (E.D. Va. 1999).

22. 220 F.3d 562 (7th Cir. 2000).

23. 6 P.3d 506, 508 (Okla. Crim. App. 2000).

24. 709 N.Y.S.2d 724, 2000 N.Y. App. Div. LEXIS 5962 (N.Y. App. Div. 2000), motion for leave to appeal denied, 2000 N.Y. LEXIS 1787 (N.Y. July 6, 2000), appeal dismissed, 2000 N.Y. LEXIS 1789 (N.Y. July 6, 2000).

25. No. 98-1471 (CCK) (D.D.C. Sept. 6, 2000).

26. 211 F.3d 711 (2d Cir. 2000).

27. 21 Cal. 4th 883, 89 Cal. Rptr.2d 834 (Cal. 1999).

28. 724 N.E.2d 901 (Ill. 2000).

29. 703 N.Y.S.2d 230 (N.Y. App. Div.2d Dep't 2000).

30. 120 S. Ct. 2480 (2000).

31. 192 F.R.D. 527 (E.D. Va. 2000).

32. 20 S.W.3d 301 (Ark. 2000).

33. 244 B.R. 377 (Bankr. W.D. Tex. 2000).

34. 218 F.3d 415 (5th Cir. 2000).

35. 64 F. Supp.2d 184 (E.D.N.Y. 1999).

36. 114 F. Supp.2d 896 (N.D. Cal. 2000).

37. 82 F. Supp.2d 211 (S.D.N.Y. 2000).

38. 47 U.S.C. § 231.

39. 217 F.3d 162 (3d Cir. 2000).

40. 198 F.3d 1083 (9th Cir. 1999), reh'g en banc denied, 220 F.3d 1113 (9th Cir. 2000).

41. 216 F.3d 401 (4th Cir. 2000).

42. 120 S. Ct. 630 (1999).

43. 2000 U.S. App. LEXIS 16977 (1st Cir. 2000).

44. 195 F.3d 100 (2d Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000).

45. 15 U.S.C. § 1334(b).

46. 208 F.3d 952 (11th Cir. 2000).

47. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).

48. 197 F.3d 1284 (9th Cir. 1999).

49. 704 N.Y.S.2d 183 (Sup. Ct. 2000).

50. 521 U.S. 457 (1997).

51. 998 F.3d 690 (9th Cir. 1999).

52. 197 F.3d 221 (6th Cir. 1999).

53. 216 F.3d 871 (9th Cir. 2000).

54. 97 F. Supp.2d 712 (E.D. Va. 2000).

55. See In re Inquiry Concerning the Development of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, Second Report, FCC 00-029, CC Docket NO. 98-146, available in 2000 WL 1199533 ¶ 267 (Aug. 21, 2000).

56. 120 S. Ct. 1878 (2000).

57. 47 U.S.C. § 561.

58. 15 U.S.C. § 6583.

59. Federal Trade Commission, Privacy Online: Fair Information Practices in the Electronic Marketplace: A Federal Trade Commission Report to Congress (May 2000),

60. 55 U.S.P.Q.2d (BNA) 780, stayed on appeal, 2000 WL 1055915 (9th Cir. 2000).

61. 17 U.S.C. § 512.

62. 17 U.S.C. § 512.

63. 92 F. Supp. 2d 349 (S.D.N.Y. 2000).

64. UMG Recordings v., Inc., No. Civ. 472, 2000, 2000 WL 1262568 (S.D.N.Y. Sept. 6, 2000).

65. 15 U.S.C. § 1125.

66. 47 U.S.C. § 230.

67. Zeran v. America Online , 129 F.3d 327 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998).

68. See State v. Heckel , No. 98-2-25480-7SEA (Wash. Super. Ct., King Cty., Mar. 10, 2000); Ferguson v. Friendfinder, 5 ILR (P&F) 3067 (Cal. Super. Ct., San Francisco 2000).

69. 200 F.3d 109 (3d Cir. 1999), cert. granted, 120 S. Ct. 2716 (2000).

70. 2000 WL 1210972 (5th Cir. 2000).

71. 978 P.2d 67, 85 Cal. Rptr. 2d 909 (Cal. 1999).

72. 194 F.3d 505 (4th Cir. 1999).

73. 19 S.W.3d 413 (Tex. 2000).

74. 87 F. Supp. 2d 1060, 28 Media L. Rep. 1875 (D. Haw. 2000).

Back to Table of Contents