Attorneys get current at ‘media bar’

by Genelle Belmas

NEW YORK — Attorneys of what is colloquially known as the “media bar,” scholars and analysts offered their opinions on the current state of media law at the Practising Law Institute’s 26th annual Communication’s Law conference, held Thursday and Friday in Manhattan.
The conference draws attendees from all over the country who have connection to or interest in mass communication law developments.
No major media law cases came down from the Supreme Court of the United States this year. However, that did not result in a lack of cases to discuss. Panels addressed legal issues from libel to newsgathering to the Internet and telecommunication policy.
What follows is just a sampling of the many issues and cases discussed by speakers and panelists at the conference:
One of the most interesting and potentially dangerous cases addressed at the conference was the Cincinnati Enquirer’s Chiquita case. Reporter Michael Gallagher allegedly broke into top Chiquita executive’s voice mails either by hacking or by using a confidential code to access the system. He could have obtained the code from someone inside Chiquita who was unauthorized to provide it.
Information Gallagher gathered was published in a series of articles claiming that Chiquita had engaged in abuses of the international business system. Gallagher initially denied that he had broken into the system, but Chiquita provided data from the voice mail system that showed someone had accessed one executive’s voice mail after another.
The Enquirer subsequently retracted the article in three front-page articles, apologized to Chiquita and settled out of court for more than $10 million — an amount that one panelist called “breathtaking.”
Chiquita claimed that if the Enquirer had not settled, it would have brought a libel suit. The company said it would be able to meet the “actual malice” standard for libel by showing that Gallagher had stolen the voice mails and thereby shown ill will and malice toward Chiquita.
One speaker wondered how this strategy would affect what most media attorneys consider to be well-established libel law as outlined in the 1964 Supreme Court case New York Times vs. Sullivan.
So while the strategy will not be tested in a libel case against the Enquirer, it remains a potential means of attack for plaintiffs in libel suits.
Reporter privilege
A number of cases made distinctions between confidential and non-confidential material.
While the new Minnesota shield law was a bright spot that now protects material whether or not it would identify someone, other jurisdictions did not fare as well.
In a case called Gonzales vs. NBC out of Louisiana, the Second Circuit held that journalists have no privilege to withhold non-confidential information acquired during the newsgathering process.
NBC had taped a deputy stopping a Hispanic driver and broadcast portions of the tape. The driver wanted access to the outtakes to demonstrate that the deputy had engaged in a pattern of stopping Hispanics without cause. The deputy wanted the outtakes to prove that he did have probable cause.
Since both parties wanted access to the outtakes, the court said a test of relevance had been met, and NBC had to turn over the outtakes. This is not a good precedent for protecting unpublished information.
Ride-alongs are becoming increasingly difficult to justify to judges and juries. In this kind of reporting, journalists and photographers “ride along” with law enforcement officials or ambulances to record their activities. One notable case in this area is Shulman vs. Group W Productions.
In this case, reporters joined a medical helicopter team as it responded to an accident where Ruth Shulman was pinned under her vehicle. The flight nurse who attended Shulman was wired with a microphone so her words and those of Shulman could be recorded, and videocameras also recorded images of both women.
Shulman claimed the recording of her pain and suffering without her consent violated her right to privacy in this situation.
This complex case resulted in four different opinions. The California Supreme Court held Shulman’s claim of disclosure of private facts (one of four commonly recognized privacy torts) should be dismissed, which was encouraging.
But a majority of the justices refused to dismiss Shulman’s claim of intrusion, saying that whether she could have had a reasonable expectation that her conversations with the nurse should be private was a question that needed to be addressed by a jury.
And neither judges nor juries are sympathetic.
In another ride-along case, Wilson vs. Layne from the Fourth Circuit, which will be heard by the Supreme Court, five judges delivered a furious dissent.
They suggested that an invitation for reporters to ride along with law enforcement during the execution of a search warrant would constitute an unreasonable search and seizure, and thus a violation of the Fourth Amendment, because reporters are inappropriate witnesses to search warrants.
One commentator suggested this response was indicative of judicial opinion about ride-alongs. Media attorneys were thus encouraged to discourage their clients from engaging in this journalistic tactic.
Antitrust laws
In the area of antitrust, commentators outlined the Department of Justice’s case against Microsoft in the “browser wars.”
In this case, Department of Justice attorneys want to demonstrate that Microsoft engaged in practices that violate antitrust laws and were intended to put Netscape, creator of the Internet browser Netscape Navigator, out of business.
Evidence against Microsoft include an array of companies who claim that Microsoft either threatened them with a lockout from licensure for Windows or offered to pay them handsomely to enter into arrangements with it over its competition.
For example, when Compaq and Hewlett-Packard wanted to include Netscape Navigator as part of the software on new computers, Microsoft threatened to cut off their Windows licenses. The companies backed down.
One attorney suggested that the Department of Justice is fighting hard to win this case, and if it does so, it will become increasingly active against mergers and other arrangements it deems to be in violation of antitrust regulations.

Internet libel
Internet libel law contains a line of cases that establish whether online service providers are legally responsible for content posted on their systems that might be libelous or infringing of intellectual property rights.
In three cases against America Online, courts indicated that OSPs could not reasonably be expected to monitor all the content that appears on their system; the amount of material is simply too vast.
Thus, if an OSP does not know illegal material appears on its system, it cannot be held accountable. Even if an OSP does engage in so-called “good Samaritan” activities where it removes problematic content from its system, the fact that it might not do so still does not make it liable for the illegal content.
The Digital Millennium Copyright Act of 1998 eliminates liability for OSPs if when an OSP is given notice of content that might be libelous or otherwise illegal, it takes steps to resolve the issue either by taking down the content or arranging for its removal.
Commercial speech
In the commercial speech arena, advertising bans were at issue. In 1996 in 44 Liquormart vs. Rhode Island, the Supreme Court had invalidated a Rhode Island law that banned alcohol price advertising, suggesting that commercial speech deserved substantial First Amendment protection.
Lower courts this year, however, had a different message. In a Fifth Circuit case, Greater New Orleans Broadcasting Association vs. United States, the court discounted the 44 Liquormart case and said a total broadcast ban on gambling advertising was no more than a time, place and manner regulation.
The judge reasoned that because other media such as newspapers, magazines and billboards were available for gambling advertising, this ban was not analogous to the one overturned in 44 Liquormart and thus constitutional.
In a Washington case, Lindsey vs. Tacoma-Pierce County Health Department, the district court upheld a ban on a tobacco advertising outside a school, playground, public park or street.
The court relied upon its assessment that more advertising results in more consumption of tobacco, particularly by minors. And again the court noted that other means of advertising were available inside stores and in other media.