A Roundtable with Professors Clay Calvert, Amy Gajda, and Kyu Ho Youm
For our year-end Bulletin, we asked three renowned media law professors to discuss some of the most important and intriguing developments of the year – from the headline-grabbing Gawker trial to publication of hacked emails in the midst of a Presidential campaign. We are pleased to present their thoughtful and perceptive answers. – Dave Heller, MLRC
1. Hulk Hogan v. Gawker
No media case got more attention in 2016 than Terry Bollea's, aka Hulk Hogan's, invasion of privacy suit against Gawker. With a larger than life plaintiff, an edgy publisher pushing the boundaries of acceptable content, and an eye-popping $140 million damage award, the case pitted press freedom versus privacy in the controversial context of a sex tape
How serious a threat to press freedom is the Hulk Hogan v. Gawker case? Will the case chill the press or is it just a cautionary tale not to publish leaked sex tapes? How dangerous is it to have litigation funding in cases against the media?
CLAY CLAVERT: Setting aside the Peter Thiel funding issue, I don't believe the jury verdict itself signals that the sky is suddenly falling on the news media in celebrity cases involving causes of action for public disclosure of private facts and intentional infliction of emotional distress, both of which were in play in this case.
The case had a combustible combination of characters and facts, and the flippant deposition testimony of Albert J. Daulerio regarding his willingness to publish sex tapes of children unless they were under the age of four years may have been enough by itself to push the jury into ruling against the Gawker defendants. Most news organizations also would never publish or broadcast the underlying content of sex tapes, so they can't now be chilled from doing something that they wouldn't have done in the first place.
The verdict may simply be a one-off, as it were, but for two important lessons. First, jurors can be convinced by plaintiffs' attorneys that even famous celebrities – ones who openly talk about their sex lives in the media – maintain an expectation of privacy, at least when they are in a bedroom and having sex, that their actions will not be recorded and later published. And second, there are limits – in the views of jurors – on what constitutes newsworthy information.
As for the third-party litigation funding issue, Peter Thiel definitely has established a playbook for other wealthy individuals who hold grudges against members of the media – mainstream or otherwise – to follow. The notion of revenge litigation is far removed from the usual model of litigation funding. And even if a media organization successfully defends against a third-party financed lawsuit, it still will have paid dearly in attorneys' fees and other litigation costs. Plaintiffs' attorneys about to sue a high-profile news organization might soon find themselves looking around for someone to help bankroll the case. But I seriously doubt there will be more than three or four other people akin to Thiel who will are willing to throw everything (or at least several million dollars) they have behind a case or series of cases to bankrupt a specific media outlet.
AMY GAJDA: I think that the Hulk Hogan-Gawker case will have impact, not so much as precedent because the published cases on newsworthiness go Gawker's way, but because it opened potential plaintiffs' and plaintiff lawyers' eyes to the viability of these sorts of privacy and intentional-infliction-of-emotional distress claims. In my experience, many lawyers and others believe that publishers have the right to publish truthful information no matter what it is; they are more aware of defamation law and not as aware of the potentially pro-plaintiff nuances of privacy law. I think that this case teaches them in a high-profile way that not all truthful information will necessarily be protected.
One good recent, post-Gawker example of this is the 2016 case that Jason Pierre-Paul case brought against ESPN for its publication of his medical chart. There, in an early ruling, the federal trial court suggested that the information about Pierre-Paul's finger amputation may have been newsworthy, but that the publication of the medical chart itself was at least arguably not necessary to the story and, therefore, conceivably not newsworthy itself. It might be too much to say that that case would have been decided in ESPN's favor had the Gawker case ultimately gone in favor of Gawker, but it offers another example of a judge deciding that a journalist—here, a much more mainstream journalist, interestingly—had perhaps gone too far by including an image of the plaintiff's medical chart to illustrate a newsworthy story about an NFL player's injury.
To me, this case and others like it help show that judges are becoming more confident in their ability to assess newsworthiness and to suggest that a journalist has gone too far. There are earlier cases in which courts wrote that they hesitated to act as "super editors" because journalists knew better than judges what was newsworthy and what wasn't. I don't see that sort of deferential language as much today—and the Gawker case is bold evidence that deference to media is not a foregone conclusion.
This all has implications for Thiel-like funding. As I'm sure many know, there are financing firms that will underwrite litigation costs for valuable cases more generally. As these firms come to believe that privacy-based lawsuits have potential for strong jury awards, they may be more eager to finance such claims, leading to an increase in these lawsuits and, perhaps, these sorts of big-money outcomes.
KYU HO YOUM: Not as chillingly serious a threat as some media freedom advocates might assume. This is largely because the facts and key players involved were rather unusual. The perception, whether actual or perceived, of Gawker as boundary-pushing in news reporting, might have led the jurors to side with their "home-town hero." In this connection, the alleged newsworthiness of Hogan's sex videotape (or lack thereof) was less relevant than it might have been if the private facts were not so sexually intimate.
Also, the openly nonchalant attitude of Gawker before and during the trial toward its exposé in the increasingly privacy-less Internet era was considerably off-putting to the jury. Revealing someone's most private information could not jibe with even the encompassing concept of news reporting for the public's need to know. In a way, the Hogan sex tape revealed Gawker as a rule-bending outlier in news journalism.
Probably more disturbing to the media is the no-longer-covert but legitimate role of Peter Thiel in financing Hogan's lawsuit against Gawker. The billionaire's stated willingness to equalize the playing field for media victims will make some, if not all, news organizations more inhibited. This is especially true if Thiel follows up on his pledge to "gladly support" those whose privacy has been violated but cannot fight for justice financially. As he revealed, the Gawker case was not the only lawsuit that he had been subsidizing secretly!
It's true that there are not many Thiels who are willing to take the scorched-earth tactic against the press, whether vindictively or philanthropically, for the reputational or privacy interests of others. But the very fact that an agenda-driven billionaire can bankrupt a media company cannot be blithely ignored. And the financially vulnerable media owners might be tempted to play safe. As the media critic Jay Rosen at New York University observed recently, "As yet there is no known counter to this strategy. The fact that it worked once has an intimidating effect."
2. In an age of citizen journalism, can courts continue to defer to publishers to decide what information is in the public interest?
CLAY CALVERT: Deference has to be earned, and Professor Amy Gajda forcefully argues in her recent book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, that judicial deference to journalistic decision-making seems to be eroding as more non-traditional entities, such as Gawker, seek shelter under the blanket of First Amendment press freedom.
Rightly or wrongly, I think judges will probably grant greater deference to established news organizations like The New York Times, Wall Street Journal and Washington Post. Those organizations have earned deference over time and with their past reportage. Judges recognize those entities and are also likely to read (or have read) them. Such familiarity may subtly influence deference. That probably can't be said for judges when it comes to Gawker. It's hard to defer to an editor who, even jokingly, under oath suggests that a sex tape of a child celebrity over the age of four years is newsworthy.
When it comes to deference, then, we're probably likely to see what attorney Chuck Tobin called, in another context, a First Amendment caste system. Deference will flow from the judicial spigot in greater volume for The New York Timeses of the world than it will for others. Anyone can claim to be a citizen journalist. Even non-citizens can claim to be journalists (although Donald Trump might find otherwise!). But do they deserve the same amount of deference in their decision-making as The New York Times?
AMY GAJDA: My short answer is no, mostly because you've used the word "publisher." Today, "publisher" means anybody with access to the internet and many of those people have no regard for fact checking or for ethics. I routinely use screenshots in my classes of news websites on which commenters to news stories helpfully include story-related rumors or theorize by name about who might be responsible for a particular crime. These commenters may well fashion themselves citizen journalists out to reveal truth. But the truth that they reveal can be wrong or privacy-invading and reputations are harmed along the way. This is precisely why the Ohio Supreme Court a few years ago embraced false light as a tort in the state even though it had rejected it as being too similar to defamation in the past: the internet has created new publishers who publish without regard to fact checking or ethics.
There is a line in one of the published Gawker decisions in which the court quotes an early case that suggests that publishers have the right to publish what they believe to be newsworthy. If this is true, anybody who publishes revenge porn would have the ability to decide what is publishable and what isn't. The man who published images of Erin Andrews in her hotel room, for example, images that apparently attracted millions of viewers, might well fashion himself a citizen journalist publishing information of public interest. We cannot defer to him without killing off privacy as a tort concept for everyone.
That's why I've argued for a narrower definition for newsworthiness than some journalists might like: one that presumes the newsworthiness of truthful information but that would send to the jury cases involving traditionally private matters such as nudity to weigh privacy interests against press interests. In this way, I'm doing my best to protect journalism but also to protect privacy in egregious cases.
KYU HO YOUM: Citizen journalism leads courts to reconsider deferring to news publishers in the we-are-all-journalists era, when it comes to their decisions on what information to publish as news. Thus, the judicial deference to the mainstream media is no longer taken for granted, because the mainstream media are increasingly less distinctive from citizen media.
At the same time, however, the impact of citizen journalism is magnified when it collaborates with the professional media. In this case, the symbiotic relationship between the Fourth Estate and the "Fifth Estate" was showcased when WikiLeaks worked closely with the Guardian in 2011, although it was quite a controversial arrangement.
Whether judges accord deference to news publishers has more to do with how they perceive the definable and self-imposed news value judgments of professional journalists. When the traditional news reporting process is challenged by the fast-changing media landscape and the still evolving socio-cultural mores due in part to citizen journalism, judges are likely to turn to expert testimonies on the professional norms, practices, and customs. What are the prevailing news values that will be factored into the judicial rulings? No doubt deference to the news professionals' values is no longer assured. But it is not necessarily thrown out the window when the news published is expertly viewed to be of "public interest" and it is judicially accepted as such.
3. In a pretrial ruling, the state appellate court ruled that publication of the sex tape involved a matter of public interest – at least to prevent the issuance of a prior restraint. Given that ruling, was it a violation of the First Amendment for the case to go to trial? Or is the appellate court ruling limited to the issuance of a prior restraint?
CLAY CALVERT: Certainly a judge who was, by nature, more free-speech friendly would have looked to the appellate court's ruling for guidance, even if she was not bound by it because it occurred in the context of a restraining order scenario rather than the litigation of tort causes of action.
It should be noted that Judge Pamela Campbell did instruct the jury that the First Amendment provided a defense to all of the causes of action, not just to the public disclosure tort that garnered all of the publicity. That instruction said, in pertinent part:
"The issue of 'legitimate public concern' or 'newsworthiness' is an element of Plaintiff's claim for publication of private facts, as well as a First Amendment defense raised by Defendants to each of Plaintiff's claims. I will now define legitimate public concern.
The right of privacy and the right of freedom of the press are both fundamental rights, which must be balanced. The right to privacy can be outweighed if a publication relates to matters of legitimate public concern.
A matter of public concern is one that can be fairly considered as relating to any matter of political, social, or other concern to the community or that is subject to general interest and concern to the public. The mere fact that a publication contains arguably inappropriate content does not remove it from the realm of legitimate public interest."
The lead sentence to the third paragraph quoted above, it should be noted, is the definition of public concern the Supreme Court deployed in Snyder v. Phelps. The jury was swayed the contents of the sex-tape didn't satisfy this definition.
AMY GAJDA: I thought that it was pretty clear how the Florida appellate court would have ruled had it been deciding the underlying tort claim; the court's language was strongly supportive of Gawker and echoed the language written in the earlier federal trial court opinion that also decided the injunction request in Gawker's favor. In other words, had the jury already decided in favor of Hulk Hogan and had Gawker then appealed, at least at that point in time based upon available information, it seems that both of these courts would have deferred to Gawker's sense of what was newsworthy and would have overturned the jury decision.
What I don't know is what discovery showed when the case returned to the trial court. Something caused the case to go to trial despite language in two court opinions that was decidedly supportive of Gawker—and something caused Gawker to settle the case for $31 million despite two opinions that suggest in the context of an injunction request that it had the right to publish what it did.
KYU HO YOUM: The Florida District Court of Appeal for the Second District focused its ruling on the extraordinary nature of temporary injunction as an unconstitutional prior restraint on the press under the First Amendment. The appellate court's discussion of the applicable free-press legal standards revolves around what's at stake when temporary restraining is granted against the news media.
Noting that the primary objective of a temporary injunction is preserving the status quo, the Florida court said the status quo for the news media is to publish the news "promptly" that the news editors decide to publish, so the injunction disturb, not preserve, the status quo while at the same time violating the First Amendment exercise of news editorial discretion. The court simply refused to seriously consider Hogan's argument in favor of an injunction against Gawker. It stated time and again that the injunction should be invoked against the news media "sparingly" and "most exceptional[ly]." Drawing on Nebraska Press Association v. Stuart (1976), one of the First Amendment landmark cases, the Florida appellate court stressed: "[W]here ... a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment." This is particularly the case when the news reporting addresses a "matter of public concern," which is less discerningly used interchangeably with "of public interest."
4. How do you think the U.S. Supreme Court would decide this case? Would Gawker be protected under Bartnicki? Or is the Hogan sex tape akin to the "bedroom conversation" Justice Breyer suggested is not of public concern?
CLAY CALVERT: That's the $64,000 question – and one that we will never know now that the parties settled the case in early November. But given that bad facts sometimes make for bad law, I'm not so sure that this really was the kind of case the news media truly wanted going up to the high court.
Personally, I don't think asking the justices to either provide or apply a better or clearer definition of newsworthiness or public concern in a case involving a celebrity sex tape is a great idea. The Court gave about as clear of a definition of public concern as it probably could in Snyder v. Phelps in 2011. Issues like American tolerance of homosexuality, gays in the military and sexual abuse by members of the clergy that Chief Justice Roberts said were clear matters of public concern in Snyder seem very far removed from watching a fading wrestler/reality TV star romp in the sack with a woman other than his wife.
Assuming Gawker lawfully obtained the tape and that the tape was not altered – that it was, in other words, truthful information – then the issue definitely would have boiled down to whether, as the Court said in Florida Star v. B.J.F., the contents of the sex tape are "about a matter of public significance" or, as it put it in Bartnicki, "matters of public importance."
Justice Breyer found the audiotape in Bartnicki was "a matter of unusual public concern" (emphasis added) and he specified that was a key reason for his concurrence. His entire approach to free-speech jurisprudence is about proportionality, which is rather squishy, rather than following a jurisprudence of labels and tests like strict and intermediate scrutiny. In Bartnicki, he cited the Bret Michaels and Pamela Anderson sex-tape case of Michaels v. Internet Entertainment Group as standing for the proposition, in Breyer's words, that a "broadcast of videotape recording of sexual relations between famous actress and rock star not a matter of legitimate public concern." He called the audiotape at the heart of Bartnicki "far removed" from the sex tape in Michaels. So, no, I wouldn't want Justice Breyer to hear the Gawker case. It's probably better that the case did finally settle rather than risk it before the Supreme Court.
AMY GAJDA: I think that the Bartnicki Court would have sided with Hulk Hogan here. The concurring opinion literally notes without any seeming hesitation that a sex tape featuring a celebrity is an example of something that is not newsworthy. Those two concurring Justices added to the three dissenters makes at least a 5-4 majority in favor of Hulk Hogan. I'm not certain how the current Justices would decide the case, but there's enough pro-privacy language in recent criminal cases involving cell phone searches and the intimate information contained in cell phones that leads me to believe that strong pro-privacy sentiments could extend into publication cases similar to this one involving a graphic sex tape.
The Restatement makes an important and related distinction, finding information about celebrities newsworthy but suggesting that celebrities have a right to privacy in their sex lives. I think that a line drawn at graphic depictions of sexual activity, for one, is easy, just as the Bartnicki concurrence suggests. If Gawker had wanted to illustrate its article, it could have used an image from the tape with appropriately placed black boxes—and I think that most if not all courts would have decided that it had the right to do that.
KYU HO YOUM: Gawker would not do well under Bartnicki because its subject matter would not be a matter of public concern, although the access to the Hogan sex tape was not a major legal issue as such. As Justice Stevens stated in Bartnicki: "In this [privacy vs. free speech] case, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: 'The right of privacy does not prohibit any publication of matter which is of public or general interest.'"
The media defendant won in Bartnicki. But it was not a resounding victory for the media even where the privacy-violating speech is a matter of public concern. The Supreme Court's ruling was limited, as explicated by Justice Breyer in his pivotal concurring opinion. Breyer's privacy-sensitive balancing informed his argument that the Bartnicki Court did not create a "public interest" exception that trumps privacy concerns.
More revealing is Breyer's "bedroom" references in connection with the right to privacy. He gives weight to the privacy right of an individual to be left alone in a private bedroom, which would least likely be analogous to a matter of public importance. In the Hogan case, the sex tape concerned two individuals who engaged "in purely private affairs," i.e., consensual sexual relationship. Hence, the Supreme Court would find no or little ground for applying the public concern defense in favor of Gawker.
5. The debate over whether the Hulk Hogan sex tape is or isn't a matter of public concern, must seem strange to lawyers in Europe and other foreign jurisdictions. Is American privacy law sustainable in face of privacy protections in the rest of the world, such as the right to be forgotten and strong data privacy laws?
CLAY CALVERT: American privacy law is sustainable, but it's vital that both news organizations and educators do a much better job of explaining to the public the importance of protecting speech about matters of public concern in the face of privacy concerns.
We're already chipping away at the free speech interests, ranging from statutes such as California's incredibly ambiguous law (California Business & Professions Code § 22581) that gives minors the ability to remove postings from certain websites to the July 2016 decision by the U.S. Court of Appeals for the Sixth Circuit in Detroit Free Press, Inc. v. U.S. Department of Justice that FOIA Exemption 7(C) encompasses a person's privacy interest in a mug shot.
The paradox is that we are a nation of voyeurs, as I wrote in my 2000 book Voyeur Nation: Media, Privacy and Peering in Modern Culture, but also highly concerned about erasing the digital tracks of our own foibles from places like mug-shot websites.
AMY GAJDA: I'm working on a law review article right now that collects current court decisions and other materials and argues that the concept of a Right to Be Forgotten is not at all foreign to the United States. It often comes down to the clash between privacy and newsworthiness, just like in the Gawker case. As one example, today's courts are grappling with revenge-type websites that reveal others' long ago mundane arrests purely to embarrass private individuals. A reporter for a mainstream news publication would not consider these revelations newsworthy. How courts handle these sorts of cases will have implications for mainstream journalism's revelations of the past.
The 2016 FOIA-related decision by the Sixth Circuit to protect mugshots on privacy grounds is important here too. I suspect that cases like that one, one in which the court reversed itself based in part on worries about today's internet-based harms including how long embarrassing information can exist on the internet, help show a privacy-interested shift that may be more in line with European thinking.
My experience in talking about the Hulk Hogan case at scholarly conferences outside the U.S. is surprise that Gawker was found liable and that it agreed to settle for a significant sum despite strong press freedoms here. But I think that this is mostly because people around the world know of cases like Bartnicki and Florida Star and remember their pro-press outcomes, not the nuanced language that limits the holdings to the facts at bar and gives at least some nod to privacy-related interests.
KYU HO YOUM: Privacy, whether personal or informational, is more widely discussed even in the U.S. from an international and comparative perspective. One of the notable comparative analyses was Yale law professor James Q. Whitman's "The Two Western Cultures of Privacy: Dignity versus Liberty" in Yale Law Journal (2004). More recently, professor Ronald J. Krotoszynski, Jr., at the University of Alabama Law School has published Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016).
While privacy is still evolving as a culture-bound concept, it collides with freedom of expression globally. In the Internet century, the clash of privacy with speech is far less country-specific. Regardless, when it comes to privacy vs. freedom of speech and the press, the U.S. remains exceptional in that freedom of expression is in a preferred position.
Nonetheless, the U.S. is no longer setting the global agenda for freedom of expression, largely because it is in a class by itself globally. These days, the European Union's impact on informational privacy through data protection is palpable. The "right to be forgotten" (RTBF), as articulated by the European Court of Justice in 2014 and explicitly recognized by the newly enacted EU General Data Protection Regulation (2016), is a case in point.
The RTBF is not entirely alien to American law, since it can be conceptually analogized to the right to "practical obscurity," which the U.S. Supreme Court recognized in the late 1980s. And the new "online eraser law" of California was in no small measure inspired by the RTBF, although it is limited to California residents under 18 to scrub information from websites they have posted.
As privacy continues to emerge as a major global concern, international and foreign privacy laws will bear on American privacy interests to a greater extent. But American privacy law will remain more or less sustainable as an individual's qualified right. The First Amendment will still serve as a substantial obstacle to any sweeping expansion of privacy in U.S. law.
6. RIGHT OF PUBLICITY
While the Gawker case captured headlines, another privacy tort continues to vex publishers – the right of publicity – a claim that has affected books, movies, video games, and more. While the First Amendment protects references to people in art, entertainment and news, there is no coherent nationwide test or standard of protection.
If and when the Supreme Court decides to hear a right of publicity case, how will it define the contours of the tort? Will the Court narrow the tort to cases of falsified celebrity endorsements? Adopt the "transformative use" test? Or find another way to recognize a property right for celebrities' images?
CLAY CALVERT: This is one area that definitely needs clarification, especially after the Court's denial of certiorari in March 2016 in Electronic Arts v. Davis. The split two-to-one appellate court rulings in both Hart v. Electronic Arts and Keller v. Electronic Arts illustrate the elasticity of the transformative use test in right of publicity cases. All six judges in the two cases purported to apply the same transformative use test, but four ruled one way – against free-speech interests – and two ruled the other way.
It would be ideal, from a First Amendment-advocate perspective, if the Court held that right of publicity claims are only permitted where either: 1) the defendant, without permission, "seeks to capitalize off a celebrity's image in commercial advertisements" (quoting Sarver v. Chartier, 813 F.3d 891, 905 (9th Cir. 2016)); or 2) in artistic storytelling narratives such as movies, novels or videogames, the net impression a reasonable observer of the work, taken as a whole, would take away is that the celebrity either endorsed or was actively involved in its creation.
I'd add to the second part an admonition that "either the mere appearance of or the seemingly favorable portrayal of a character who appears, by name or otherwise, to be the plaintiff in an artistic storytelling narrative, whether the narrative be fiction or non-fiction, does not by itself signal either the plaintiff's endorsement or the plaintiff's active involvement in its creation." The prominent inclusion, both immediately before and immediately after such a work, of language unambiguously stating that none of the individuals or characters portrayed or named in it either endorsed it or were involved in its creation would constitute one factor in the net impression analysis.
KYU HO YOUM: Given that this year marks the 40th anniversary of the U.S. Supreme Court's decision in Zacchini v. Scripps-Howard Broadcasting Co., it is high time the Court revisited the right of publicity and offered a uniform test. More compellingly necessary than ever, because lower courts couldn't be more divergent and conflicting in addressing the conflict between the right of publicity and free speech.
The Supreme Court needs to take into account the influential Rogers test from the Second Circuit in Rogers v. Grimaldi (1989): "In the context of allegedly misleading titles using a celebrity's name, that balance [between trademark law and free expression] will normally not support application of the [Lanham] Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work." I agree with media law scholars Matthew Bunker and Clay Calvert that the Rogers test could be a better approach to the right of publicity law than the transformative use test. As Bunker and Calvert cogently noted, Rogers two-part test is a considerable improvement in its rigor, speech-protection, clarity and predictability (Matthew D. Bunker & Clay Calvert, "Video Games and the Right of Publicity: The Courts Drop the Ball," Journalism & Mass Communication Quarterly 93 (2016): 627-43)).
AMY GAJDA: Even though it's not precisely what you've asked, for me as a former journalist, the key issue in right-to-publicity cases is how to protect the use of images in what I might call "legitimate" news while still protecting privacy-related interests of the individual in some way. Despite my strong sense that Hulk Hogan had a law-based right to privacy in the sex tape and that Gawker's newsworthiness arguments should not have trumped that right, the 11th Circuit's complete rejection of any news value whatsoever in a murder victim's nude photographs in the underlying right-to-publicity case (Toffoloni v. LFP Publishing) is disconcerting to me for its broad sweep. But I also think that the Svenson case—the one in which the court found that neighbors, who had been surreptitiously photographed from across the street at night by an art photographer using a birding lens—is relevant here on the flip side to some extent; it shows that there will be some need at some point to protect the privacy of individuals even when art and similar publications are at issue, and that New York's narrow right to publicity-similar statute may not be protective enough of privacy interests. These cases don't precisely parallel what you ask, but they show the conflict in a way that's relevant to journalism.
I'm not sure how the Court will rule on future cases but I believe that such lines will need to be drawn someday, and it's not clear precisely where that appropriate line would be that would both protect privacy but also protect certain publishers as well.
7. SECTION 230
Section 230 has provided robust protection for online intermediaries and is credited with fostering the rise of many notable publishing platforms. But in light of recent developments one expert remarked that we may "look back at 2016 as the year Section 230 finally fell apart" (citing the recent criminal charges brought against Backpage.com and other recent cases, such as Doe v. Model Mayhem). Do you think courts will continue to apply Section 230 immunity broadly? Or will concern over sex trafficking, revenge porn, and other bad conduct spur courts (or Congress) to narrow Section 230's protections?
CLAY CALVERT: Both the opening sentence and the closing lines of the March 2016 opinion in Doe v. Backpage.Com by the U.S. Court of Appeals for the First Circuit certainly can be interpreted as begging Congress to step into the fray and to amend Section 230. Judge Bruce Selya wrote, "This is a hard case — hard not in the sense that the legal issues defy resolution, but hard in the sense that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke outrage." And he closed the opinion by writing, "Congress did not sound an uncertain trumpet when it enacted the CDA, and it chose to grant broad protections to Internet publishers. Showing that a website operates through a meretricious business model is not enough to strip away those protections. If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation." (emphasis added)
Rulings like that from the Washington Supreme Court in J.S. v. Village Voice Media Holdings in September 2015 also show that some courts may be increasingly reticent to liberally interpret Section 230, at least at the early motion-to-dismiss stage as was the case there.
Furthermore, the war on porn, as attorney Lawrence Walters argues, has been replaced with the war on sex trafficking. He points out, for instance, that the group Morality in Media changed its name in 2015 to the National Center on Sexual Exploitation. This shift in political winds and lobbying efforts could well result in efforts to lower the tall wall of immunity that Section 230 provides, especially as the focus becomes about trafficking in minors and children. How many members of Congress as going to step up and to proclaim, "I support Backpage's right to run 'escort' ads for what might be underage girls and I support a law which does exactly that"? Doubtful any.
Finally, the arrest on pimping charges in October 2016 of Carl Ferrer, the CEO of Backpage, illustrates the heat from all directions that the company is under. We might very well soon have a course called "The Law of Backpage" as the business tests the limits of free expression.
AMY GAJDA: I think that there is a pro-plaintiff shift occurring here too and that future courts will not apply Section 230 as broadly. You see that not only in the Washington case involving backpage.com, but in the recent Seventh Circuit decision, Huon v. Denton, a 2016 case involving the website Jezebel. There, the court wrote early in the litigation that despite Section 230 protections "[a] company can . . . be liable for creating and posting, inducing another to post, or otherwise actively participating in the posting of a defamatory statement in a forum that that company maintains." The plaintiff in the case had argued that the website had encouraged comments, had shaped discussion, had selected comments, and that website authors had written comments themselves. The court sided with the plaintiff, suggesting that Section 230 may not protect the website under those circumstances—and specifically noted the economic benefit that flows to the website from increasingly provocative comments. That to me says that Section 230 protections are weakening.
If decisions like that one become more common, there is some potential for liability for more mainstream news publications. I, for one, can usually tell what news stories will lead to defamatory or privacy-invading comments by readers—and, sure enough, I find them there. I have also read news stories by news reporters that end with questions such as "What do you think, readers?" Might those two things in the right combination be considered parallel to the allegations in the case involving Jezebel? I think that some courts today would be willing to say yes.
I have argued before that when courts recognize that revenge porn websites exist partly because of Section 230 protections, they'll begin to read Section 230 more narrowly. I suspect that's what is happening here in part. I also note the moves in Congress to amend Section 230, at least to carve out potential liability for websites that publish revenge porn and related privacy-invading information. So it's possible that the statute itself may soon be amended, leading to new questions about how courts might interpret it.
KYU HO YOUM: Section 230 is no longer the all-purpose weapon for ISPs. More people are now wondering about it as "the most important law protecting Internet speech." Credit the creative plaintiffs, whether individuals, corporations, and government authorities. As one blog commenter put it, Section 230 is "reaching its life cycle when a good idea start [sic] to turn bad."
If the anti-CDA trend continues, courts will interpret "information content provider" less narrowly than they initially did. ISPs will be found to be contributorily liable for UGC. Consider some courts applying textually the CDA language "responsible ... in part, for the ... development" of the challenged information. The "information content provider" is more expansively interpreted.
Section 230 immunity is increasingly perceived to be abused or misused for various illegal activities, including revenge porn, digital harassment, IIED, defamation, and privacy torts. Judges do notice it, and they are responding by re-interpreting the CDA. As Amy Gajda convincingly argues in The First Amendment Bubble (2015), revisions of the CDA would be "feasible" without undermining its intended purpose of protecting worthy ISPs. But I'm not certain if Congress will amend the CDA in the foreseeable future, given the failed state AGs' campaign to Congress to re-visit the CDA in 2013. Meanwhile, courts will read the CDA in a more flexible way to limit the scope of the website immunity.
8. DISPARAGING TRADEMARKS
In Lee v. Tam, the U.S. Supreme Court agreed to decide whether the government can prohibit the registration of disparaging trademarks. The Federal Circuit held that the PTO's refusal to register the name of an Asian-American rock-band, the Slants, violated the First Amendment as content-based and viewpoint-based discrimination. The government counters that the ban on registering disparaging trademarks does not prohibit any speech since trademark registrations are government speech. How do you think the Supreme Court will rule in this case?
CLAY CALVERT: If Chief Justice John Roberts gets his way, we probably can expect a decision that is minimalistic yet pro-free speech. The chief justice has a penchant for both judicial minimalism and constitutional avoidance, as the true threats case of Elonis v. United States in 2015 and the broadcast indecency decision of FCC v. Fox Television Stations, Inc. in 2012 make clear.
The issue before the Court in Lee v. Tam is limited to the facial validity of the disparagement clause of 15 U.S.C. § 1052(a). It thus will come down to either overbreadth or vagueness, and the void for vagueness doctrine is the more relevant of those two typical forms of facial challenges in Tam. The issue then becomes: would a person of ordinary and reasonable intelligence be able to know and understand what speech "may disparage" and bring "into contempt or disrepute" people who are "living or dead" and, conversely, what speech does not disparage or bring into contempt or disrepute such people? Given how inconsistently this provision actually has been enforced by the United States Patent and Trademark Office in the past, I doubt the clause will survive.
So, I predict the Court will affirm the power and authority of the U.S. PTO to register trademarks based upon their content, but will strike down the disparagement clause as unduly vague, thereby sending Congress back to the statutory drawing board.
I'd add that this is one case where the free-speech side will miss Justice Antonin Scalia's presence on the bench. I suspect he would have loved marching into the culture wars with this case and excoriated the U.S. PTO for how inconsistently it has applied the disparagement clause. That would make a great law school exam question: Write an opinion on behalf of the late Justice Antonin Scalia in Lee v. Tam, being sure to channel your inner Scalia, both substantively and sarcastically."
KYU HO YOUM: The Supreme Court will likely side with the Slants, given that the Court has been remarkably speech-protective, especially when the regulation is content-based, although the speech is offensive. Equally important, the band's argument that the PTO's "disparaging" decisions are laughably inconsistent enough to be no different from "tossing a coin."
Instead of the broad First Amendment issues in the case, however, the Supreme Court may simply look at the original purpose and applicational scope of the Lanham Act's disparagement clause. That is, the Court may concentrate on whether the clause aimed at what the PTO argues it was. The legislative intent behind the Lanham Act may play an important role if the Court opts for the doctrine of constitutional avoidance.
AMY GAJDA: My only addition to my colleagues' comments here is a more practical and generalized one: the PTO seems to have relied at least in part on crowd-sourced internet musings when it denied the application on disparagement grounds. Here, the motives of such online posters are presumably utterly unknown by the PTO; the potential for trademark-seeking or anti-trademark entities to sway an outcome in the future by pre-posting their sense of language that is or is not disparaging or scandalous or immoral seems at least possible, given recent internet-based campaigns to sway public opinion. As Justice Ginsburg explained in oral argument in the case, "the PTO thinks [The Slants] is a bad word" and it based that decision in part on what it found in comments on the internet. The fact that the PTO used crowdsourced opinion as part of a gauge of public sentiment when we don't know the motivations of the crowd and when only certain particularly motivated individuals are likely to post anything online is an interesting part of the case and one that's even more relevant today as we've come to recognize how fake news can persuade.
9. HACKING, LIES AND VIDEOTAPE
Finally, we've experienced one of the most bizarre Presidential election campaigns in recent American history, with leaked video tapes, tax returns, and hacked e-mails driving the news cycle. Does the law require the press to make distinctions when publishing information from whistleblowers vs. hackers? Should it? And is it ethical for the press to publish hacked information?
CLAY CALVERT: It's really part of the same debate that we witnessed this past January in downtown Los Angeles at the MLRC/Southwestern Entertainment and Media Law Conference on a panel regarding publishing Sony-hacked emails that featured Aaron Sorkin and which George Freeman moderated. There are legal issues – the Bartnicki analysis, for sure – and ethical ones about privacy, disclosing information the name of the public interest and, importantly, the possibility of being used as a pawn either by a foreign government (with Sony, it apparently was North Korea; with the Democratic National Committee emails, it appears to be Russia) or by some other entity with its own agenda.
The law shouldn't require the press to make distinctions between whistleblowers and hackers. In fact, a hacker could be a whistleblower. That's all too slippery.
It boils down to ethics and the unique facts surrounding each leak and the information or images that it brings to light. I don't believe that taking an entire trove of leaked materials and posting them all en masse on a news organization's website constitutes ethical journalism. Journalists are not mere conduits for information; they actively and carefully choose what information to publish and what not to disclose. The same holds true for leaked information. There's an ethical duty, in other words, to scour the leaked trove of documents carefully and then exercise news judgment about which ones merit publishing and which do not.
AMY GAJDA: Consider the outcome in Bartnicki, which is basically a hacking case in that the cell phone call was recorded surreptitiously. If the information that is hacked by another is shared with the press and is newsworthy, then, given Supreme Court precedent, it seems that the publisher that chooses to publish the information should be protected. I think that most journalists and most lawyers would agree here.
But there are two key matters in the above scenario that need resolution.
The first is the idea of newsworthiness, how to define it, and whether the information at issue has such a quality, the issue at the heart of the Hulk Hogan/Gawker case.
The second is the level of involvement of the press in the hacking or related behavior in the first place. Read the Dahlstrom v. Sun Times case decided by the Seventh Circuit in 2015, a case that didn't involve hacking per se but that did involve the allegedly knowing acquisition of material by media presumably through government sources who allegedly acted in violation of law. There, the court wrote that the defendant newspaper had cited to "no authority for the proposition that an entity that acquires information by breaking the law enjoys a First Amendment right to disseminate that information." In contrast, it suggested that in earlier pro-press Supreme Court cases such as Bartnicki and Florida Star that "the press's initial acquisition of sensitive information was lawful." In other words, Dahlstrom suggests that the cleaner the media's hands are with regard to the acquisition of the information, the more likely the media will be protected when it later publishes the information. The Supreme Court denied cert in that case, one that involved what seemed to be rather mundane information (such as individuals' height and weight) that had been acquired from a driver's license database protected by a privacy-based statute.
That suggests, again, that courts may be looking for ways to rein in media despite older, strongly protective-of-media Supreme Court decisions.
As regarding journalism ethics specifically, these matters often involve the balance between "Seek Truth and Report It" and "Minimize Harm." So it's a newsworthiness judgment in a journalistic sense as well.
KYU HO YOUM: I don't think there is or should be a distinction for the news media between whistleblowers and hackers as a matter of law. Should there be a legal requirement for the press to make the distinction in considering what to publish as news? No, because it raises more questions than answers.
It may be deceptively easy to differentiate hackers from whistleblowers. Hackers engage in illegal activities through computers to access data with no authorization, while whistleblowers expose illegal activities that are inimical to the welfare of individuals and the public. But whistleblowers can be hackers in the course of whistleblowing on what they deem to be criminal violations for the benefit of the public. Likewise, hackers can serve as whistleblowers when their activities are directly relating to their agenda to hold the government accountable.
The motives behind hacking and whistleblowing are not always clear-cut, although whistleblowing is more likely to advance the public good. It is often considerably challenging to divine what motivates whistleblowers and hackers to act the way they do.
Regardless, journalists should not consider the hacker v. whistleblower distinction as an overriding factor in deciding whether to use the stolen information they've accessed for news reporting. Insofar as journalists are not directly or indirectly involved in illegal hacking or accessing to information, they have the First Amendment right to use the information without legal consequences.
The informational news value should inform the news media's decision-making. Is the illegally stolen information from hackers or whistleblowers newsworthy enough for the public's right to know as a matter of public concern? Is the information primarily trivial and of little or no legitimate public interest?
The media have an ethical, if not legal, obligation to include in their stories the motives of hackers or whistleblowers if they are relevant to their readers in understanding why they publish the stories. This is particularly important when the public wonders about the credibility of the sources and their motivations behind releasing the information. When the hacking of individuals primarily concern privacy, the media should be extra careful in covering the hacked people. In balancing the right of privacy with the public's right to know, the news media should guard against a possibility that they may be unwittingly exploited as the purveyors of marginally relevant information to the public.
About the Roundtable Participants
Professor Clay Calvert is the Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida. He is co-author, along with Don R. Pember, of the media law textbook, Mass Media Law, 19th ed. (McGraw-Hill), and is author of the book Voyeur Nation: Media, Privacy, and Peering in Modern Culture (Westview Press, 2000).
Professor Amy Gajda, of Tulane University Law School, is recognized internationally for her expertise in media law, privacy law and higher education law. She brings her background as an award-winning television, radio and print journalist to her scholarly work navigating the tensions between social regulation and protected expression. Her most recent book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, was published in 2015 by Harvard University Press, and explores judicial oversight of journalistic news judgment.
Professor Kyu Ho Youm joined the University of Oregon School of Journalism and Communication in 2002 as the inaugural holder of the Jonathan Marshall First Amendment Chair. As a prolific communication law scholar, he has published a number of book chapters and research articles in a wide range of leading journalism and law journals. His articles on freedom of expression have been cited by U.S. and foreign courts, including the House of Lords in Great Britain, the High Court of Australia, the Supreme Court of Canada, and the Supreme Court of the Philippines.