SPRING 2004 DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT . INTELLECTUAL PROPERTY . NEW MEDIA . TELECOMMUNICATIONS . DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT . FFirstirst AmendmentAmendment LAW LETTER

WHEN DO “EXPERIENCE AND HIPAA AND NEWSGATHERING: LOGIC” MATTER UNDER THE BASIC TIPS FOR REPORTERS FIRST AMENDMENT? AND EDITORS Federal Government Challenges Traditional Public Disclosure BY ANDREW M. MAR AND Principles in War on Terror ALISON PAGE HOWARD

BY JEFFREY L. FISHER Journalists throughout the country are wrestling with the impact of the Health The federal government’s actions against Information Portability and Accountability Act (HIPAA), a federal health privacy law persons suspected of connections to that went into effect earlier last spring.3 terrorism continue to raise questions CONTENTS Fortunately, HIPAA does not regulate what about the Bill of Rights’ applicability to the media can report about. Nonetheless, When Do “Experience novel measures taken in the name of journalists should be prepared to deal with and Logic” Matter national security. Nowhere are those and, if necessary, challenge, the manner in Under the First questions more pressing than with regard which agencies they cover interpret these Amendment? P. 1 to the First Amendment’s guarantee of regulations. open government. Perhaps because HIPAA imposes stiff HIPAA and penalties on agencies that disclose private Newsgathering P. 1 A central objective of the First health information, there are instances of Amendment is to ensure that citizens law enforcement and fire department have access to information enabling them personnel saying they can no longer Cable Networks and to participate in and contribute to our disclose information – such as names, the FCC’s Political republican system of self-government. addresses and medical conditions – once Broadcasting Information about how the government commonly disclosed. In Chicago, for itself is operating lies at the core of this Rules P. 4 example, the media had a difficult time notion. Unless we know how the officials reporting on the deadly porch collapse in who serve us are behaving, how can we late June 2003 because hospitals refused govern ourselves? to disclose routine information about the victims. In addition, while the Washington Beginning in 1980, a short series of cases State Patrol quickly recognized that HIPAA established a test to protect our right to does not apply to it, other law enforce- know. In Richmond Newspapers, Inc. v. ment agencies have refused to respond to Virginia, 448 U.S. 555 (1980), the Supreme reporters’ requests for information, Court made it clear that the First claiming HIPAA prevented them from Amendment not only prevents the releasing it. Thus, the Vancouver, Wash., government from censoring private Police Department cited HIPAA when it parties’ expression; it also requires the refused to confirm whether a kidnap government to disclose certain victim had been assaulted. While information about itself. This latter municipal attorneys later clarified that doctrine, the Court explained in HIPAA did not apply to the police depart- subsequent cases, is driven by “experience ment, the department’s initial response – and logic”: When governmental records or and the related delay in release of proceedings traditionally have been made information – reflects the chilling effect public (“experience”) and doing so serves that HIPAA has created.

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EXPERIENCE AND LOGIC sufficient to satisfy” the test and could CONTINUED FROM PAGE ONE therefore remain closed. North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, an important function of monitoring 212 (3rd Cir. 2002). These opinions governmental conduct (“logic”), the First followed previous federal appellate Amendment imposes a presumption of rulings that the experience and logic test openness. See Press-Enterprise Co. v. applies outside the realm of criminal Superior Court, 478 U.S. 1, 8 (1986); judicial proceedings.1 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). The government But a decision last summer in another may not suppress such information important case took a sharply different absent an individualized showing of approach. In the weeks and months a particular need for secrecy. following 9/11, the federal government instituted a policy of detaining several The Supreme Court, however, has never hundred, if not thousands, of individuals laid down clear parameters explaining (the exact number is not known) on how broadly the experience and logic American soil that it suspected of having standard is applicable to governmental ties to terrorism. The government actions. The Court has held that the charged only a handful with crimes and standard imposes a presumption that confined the others based on alleged the government must hold criminal immigration violations and other trials and preliminary court proceedings suspicions, or using material witness in public. But does the experience and warrants. All the while, the government logic test impose a presumption that withheld the names and all other the government must hold non-criminal information concerning these proceedings in public? Does it generally “non-criminal” detainees, citing require the government to release national security concerns. information to the public about persons it has arrested or detained but not A coalition of public interest groups sued charged with any crime? the Department of Justice (DOJ), arguing principally that the Freedom of These are questions that Bush Information Act (FOIA) and the First Administration policies and court filings Amendment required the government to in the “war on terror” recently have disclose the detainees’ names and other required the federal circuit courts to basic information. The district court grapple with – and with differing results. ordered the DOJ to release the names of the detainees and their attorneys but In August of 2002, the Sixth Circuit of stayed its decision pending appeal. the United States Court of Appeals rejected the federal government’s On June 17, 2003, a divided panel of the attempt to close all terrorism-related D.C. Circuit reversed, interpreting the immigration deportation hearings – Richmond Newspapers doctrine much which, unlike criminal trials, are more narrowly than the Sixth or Third conducted by the executive branch – Circuits. Center for National Security holding that the First Amendment Studies v. U.S. Department of Justice, 331 requires such hearings to be held in F.3d 918 (D.C. Cir. 2003). The Court first public absent a showing that national held that FOIA did not require the security requires a particular hearing to government to disclose any of the be closed. Detroit Free Press v. Ashcroft, information sought because it was 303 F.3d 681 (6th Cir. 2002). Two months compiled for law enforcement purposes later, the Third Circuit agreed that the and the government contended that its experience and logic test applied to release could interfere with the ongoing deportation hearings, although a 2-1 terrorism investigation. majority disagreed with the Sixth Circuit and found that deportation hearings The Court, however, could not so easily did not “boast a tradition of openness overcome the First Amendment’s experience and logic test. The majority

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acknowledged that arrest records and never said that the standard does not jail logs “have traditionally been public” – apply outside of that context. And it is a remark that, if anything, is an hard to understand why the doctrine understatement. English common law should be so constrained. has demanded that records of detention be made public ever since the abolition Neither First Amendment precedent of the Star Chamber’s secret procedures nor basic civics dictates that it is more in the mid-seventeenth century. important for the public to monitor The Federalist Papers unambiguously governmental actions in criminal trials denounced secret arrests, terming them than in other adjudicative realms, in a “more dangerous engine of arbitrary which federal officials exercise enormous government” than convictions without power over persons and severely affect trials. The federal government disclosed their rights and freedoms. The the names of persons it detained government’s use of its arrest power pursuant to the Alien and Sedition Acts would seem to be exhibit A in this of 1798 as well as during the Civil War respect. By detaining people against (at the demand of Congress), even their will, the government deprives them while the writ of habeas corpus was of their physical liberty and imposes suspended. And since the turn of significant burdens on them. Arrests are the century, federal, state, and local often the first step in the process of the governments have kept “police blotters” criminal justice system – a system that and jail logs, and virtually every all acknowledge carries a presumption state has statutes or judicial decisions of openness. requiring these records to be made public. Unfortunately, we cannot expect the Supreme Court to clarify the scope of the The logic behind making detention Richmond Newspapers test anytime soon. records open is patent. As the Wisconsin The losing plaintiffs in the D.C. Circuit Supreme Court put it in requiring police case filed a petition for certiorari in the blotters to remain public:“The power to fall of 2003, asking the Supreme Court to arrest is one of the most awesome resolve the confusion surrounding this weapons in the arsenal of the state. It is issue and to rule that the experience and an awesome weapon for the protection logic test applies to arrest and detention of the people, but it also is a power that records. DWT, as it did in the D.C. Circuit, may be abused.” Newspapers, Inc. v. authored an amicus brief on behalf of the Breier, 279 N.W.2d 179, 188 (Wis. 1979). media in favor of such a presumption of openness. The Court denied the The D.C. Circuit nonetheless refused to plaintiffs’ petition without comment find a First Amendment presumption of on Jan. 12, 2004. openness of these records, reasoning that “[t]he narrow First Amendment right So the “war on terror” continues to access to information recognized in unabated, and we await guidance and Richmond Newspapers does not extend analysis as to when experience and logic to non-judicial documents that are not really matter under the First Amendment. part of a criminal trial, such as the investigatory documents at issue here.”2

This interpretation of Richmond 1 See, e.g., id. at 207 n.3 (collecting several Newspapers highlights the confusion decisions applying experience and logic among courts trying to articulate the standard to civil trials); Whiteland Woods, L.P. parameters of the First Amendment’s v. Township of W.Whiteland, 193 F.3d 177, 181 guarantee of public governmental (3rd Cir. 1999) (meeting of town planning information. It is true, as the D.C. Circuit commission); Cal-Almond, Inc v. United States noted, that the Supreme Court has never Dept. of Justice, 960 F.2d 105, 109 (9th Cir. applied the experience and logic 1992) (Department of Agriculture’s voter list). standard outside of criminal judicial proceedings. But the Court also has 2 CNSS, 331 F.3d at 934 (emphasis added).

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CABLE NETWORKS AND rules apply to any “use” by a candidate of broadcast facilities (including THE FCC’S POLITICAL appearances for any reason in BROADCASTING RULES: non-political programs). Consequently, the National Association of Broadcasters TIME FOR CLARIFICATION advised members to avoid airing programs with celebrity-candidates BY JAMES S. BLITZ AND during the California recall. However, the ROBERT CORN-REVERE situation for cable networks (such as A&E Television Network, Court TV, or In late 2003, just as the presidential Discovery) was far more ambiguous. election season of 2004 was preparing According to news reports, the FCC to swing into high gear, a series of quirky informally advised attorneys for the cable scenarios emerged that highlight the industry that the equal opportunities oddities of the FCC’s “equal opportunities” requirements do not apply to cable rule governing political broadcasting. networks, but it was reluctant to issue an For example, as the year drew to a close, official advisory on the issue. Thus, some a number of NBC affiliates refused to networks, such as the SciFi Channel, carry an episode of Saturday Night Live dropped plans to air Arnold hosted by Democratic presidential Schwarzenegger movies, while others, candidate Al Sharpton.4 They were such as TNT, did not alter their concerned that the appearance would programming schedules.6 trigger an obligation to provide similar free exposure to the large field of Over the years, the FCC has avoided candidates. opportunities to clarify the distinction between broadcasters and cable Stranger questions cropped up earlier in networks under its political broadcasting the year during the unprecedented rules. Indeed, the agency has been quite California recall election for governor, cagey about taking any action that would with its 135 candidates. Radio shock jock have the effect of limiting its jurisdiction. Howard Stern was advised to cancel a But the events of the California recall and proposed interview with front-runner the impending 2004 election suggest (and eventual winner) Arnold that resolving this matter is imperative. Schwarzenegger because of potentially staggering equal opportunities The political broadcasting rules requirements. Yet the dilemma led to A key political broadcasting regulation, an even more remarkable outcome: frequently but incorrectly referred to as the FCC declared interview the “equal time” rule, derives from Section segments of Stern’s show a 315 of the Communications Act of 1934, “bona fide news interview,” 47 U.S.C. § 315(a). Under this rule, if and therefore exempt from an FCC licensee permits a qualified the political broadcasting rules.5 candidate for public office to use its facilities, the licensee must afford equal While these two examples are not unlike opportunities to all other candidates for many of the questions that may arise in that same office to appear under the an election year, they pale in comparison same conditions. This means that if a to the anomaly of the rules’ disparate candidate appears on the air for free, application to broadcast stations and the licensee must make available a cable operators on the one hand and to comparable amount of free time to cable networks on the other. This, too, opposing candidates.7 A licensee has was highlighted by events in the no affirmative obligation to notify California recall election. Residents of the candidate’s opponents of this California could watch The Terminator opportunity but must promptly place a or reruns of Diff’rent Strokes on their notice in its “political file” providing full favorite cable channels but not on details about the nature, duration, and broadcast stations. The FCC’s political cost of the “use.” However, Section

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For more information on DWT’s Communications, 315(a)(1)-(4) exempts from the A typical provision in a cable television Media and Information definition of a “use” a legally qualified affiliation agreement requires that the Technologies Department, contact your DWT attorney candidate’s appearance on a bona fide “network shall comply with all provisions at any of our offices below newscast, interview or documentary (if of the Communications Act of 1934, the or call us on our toll-free client line at: the appearance is incidental to the Cable Communications Policy Act of (877) 398-8415 presentation of the subject covered by 1984, and the Cable Television Consumer the documentary) or on-the-spot Protection and Competition Act of 1992.” Anchorage, AK coverage of a bona fide news event Cable networks at times are obligated to (907) 257-5300 (including political conventions and warrant that they comply with, inter alia, Bellevue,WA related incidental activities). Thus, political equal time and personal attack (425) 646-6100 coverage of candidates in bona fide rules “to the extent applicable under Los Angeles, CA news programs is exempt from these federal law.” But a closer examination of (213) 633-6800 requirements. the law suggests that such conditions are New York, NY (212) 489-8230 unjustified. The question of what to do with Portland, OR (503) 241-2300 appearances by actors-turned-candi- The initial decisions applying Section 315 San Francisco, CA datesarose in California (where else?) to “non-political” programming were (415) 276-6500 during the first presidential bid of adopted when cable was in its infancy Seattle,WA Ronald Reagan. The FCC held that and the question of how the rules should (206) 622-3150 Section 315 applied to broadcasts of apply (if at all) to cable television Shanghai, China movies in which Reagan appeared as networks simply did not arise. In 1971 011-86-21-6279-8560 an actor because “[a] candidate who Congress amended Section 315 to cover Washington, DC becomes well-known to the public as a “community antenna television systems” (202) 508-6600 personable and popular individual (i.e., cable systems) as well as broadcast or visit our website at 12 www.dwt.com through ‘non-political’ appearances licensees. Due in part to the nascent certainly holds an advantage when he state of the cable industry in 1971 and or she formally discuss[es] political because the only non-broadcast issues to the public over the same programming carried on most cable media.”8 In that case the FCC simply systems was programming originated by applied the principle it had established the cable systems themselves, the FCC’s a few years earlier, in reviewing the rules implementing the change applied satirical presidential campaign of only to “origination cablecasting,” which comedian Pat Paulsen, that there was is defined as programming carried on a “no basis for distinguishing between cable system “subject to the exclusive political and non-political appearances control of the cable operator.”13 by candidates.”9 The Commission Consistent with this approach, all of the briefly rescinded this interpretation of Commission’s political programming Section 315 in the early 1990s, rules that apply to cable television reasoning that candidates lack control expressly target cable systems, not cable over the airing of movies or reruns of networks.14 The statutory language, entertainment shows in which they legislative history, and constitutional may appear.10 However, it reimposed considerations all support the conclusion the broader interpretation of Section that Section 315 does not apply to cable 315 after concluding that the issue networks, but the FCC has never clearly warranted “more comprehensive addressed this issue. examination.”11 “Origination cablecasting,” the focus of Cable networks and equal the 1971 amendment, clearly does not opportunities apply to the programming carried on cable networks. Although cable It is often assumed that the FCC has operators make editorial decisions about jurisdiction over political programming network carriage or channel placement, transmitted on cable networks; they do not exert editorial control over consequently, cable operators generally most networks or the content of require programmers to adhere to particular programs. In a typical the FCC’s political programming affiliation agreement, a cable operator requirements and other rules as a simply agrees to distribute network condition of their affiliation agreements. programming “without delay, addition

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(excepting local availabilities), deletion, respect to all programming broadcast by alteration, editing or amendment.” In this a station, cable systems are subject to regard, affiliation agreements for cable Section 315 only to the extent they networks are quite different from those ‘originate’ programming.”20 The full entered by broadcast networks, which Commission has not been presented with are governed by the FCC’s “chain a similar question. However, where it has broadcasting” rules.15 Those rules, which referred to the cablecasting requirements accord broadcast network affiliates the in connection with other requests, the FCC specific right to reject or refuse a network has stated that Section 315 applies only to program and to substitute their own programming over which a cable system content, do not apply to cable networks.16 exercises exclusive control.21 Accordingly, cable networks and the programs they present should fall outside Constitutional limits on regulating the scope of Section 315.17 Indeed, cable networks because of this fundamental difference in the regulatory treatment of broadcasting Excluding cable networks from the scope and cable networks, it would be of the political broadcasting rules implausible to suggest that the reflects the fact that the FCC has limited Commission has ancillary authority to jurisdiction over most cable networks and extend Section 315 to cable networks. the programming they transmit. Unlike The legislative history of the 1971 broadcast networks, which are subject amendment includes little discussion of to FCC rules by virtue of their status as its scope, but what exists supports the licensees of their “owned and operated” conclusion that Congress was concerned television stations, cable networks and with programming a cable operator origi- their owners are not licensed by or nates, rather than network programming directly subjected to FCC rules. Some may it retransmits.18 suggest that the solution is for Congress or the FCC to change the law and extend Similarly, while Commission interpretations equal opportunities requirements to cable of these regulations are sparse, networks as well as broadcasters. But any they support the straightforward attempt to extend Section 315 obligations understanding that cable networks are to cable television networks would raise excluded from Section 315 requirements.19 significant First Amendment obstacles. In Albert J. Zawicki, 60 R.R.2d 1657 (Mass Media Bureau 1986), FCC staff ruled The Supreme Court has made clear that that Section 315 does not apply to absent the “special characteristics” of the programming carried on PEG access broadcast medium, such as its use of the channels over which a cable operator limited radio spectrum, restrictions similar 22 lacks editorial control. In that case, the to Section 315 are unconstitutional. And staff reasoned that Section 315 was in Turner Broadcasting System v. FCC, 512 inapplicable to the program in question U.S. 622, 637 (1994), which held that the because “the designated user of the FCC’s must-carry rules would be evaluated channel retains editorial control over the under the “intermediate” level of scrutiny, channel” and the programmer “is not a the Court declared that “the rationale for cable operator.” Id. More recently, in A&E applying a less rigorous standard of First Television Networks, 15 FCC Rcd 10796 Amendment scrutiny to broadcast regula- (Mass Media Bureau 2000), FCC staff was tion, whatever its validity in the cases asked to rule on the applicability of elaborating it, does not apply in the 23 Section 315 to cable networks. It granted context of cable regulation.” Noting the an exemption to the A&E “Biography” “fundamental technological differences series as a “bona fide news interview” between broadcast and cable transmis- program, declining to resolve the ques- sion,” the Court found that application of tion of Commission jurisdiction. In doing “the more relaxed standard of scrutiny so, however, it observed that “[u]nlike adopted in Red Lion [Broadcasting Co. v. broadcast stations, which are potentially FCC, 395 U.S. 367 (1969)] and the other subject to Section 315 requirements with broadcast cases is inapt when

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HIPAA AND NEWSGATHERING the department PIO may disclose information CONTINUED FROM PAGE ONE about the injured person because it was not obtained as part of the fire department’s Fortunately, some states are clarifying what health care service. type of information is covered by HIPAA. In Texas, for example, the attorney general What journalists can do issued an opinion in February 2004 that the state’s public information law takes prece- Health care information the media obtains dence over HIPAA, and health care independently is not subject to HIPAA and information must be disclosed unless it is may be published or broadcast freely, subject covered by a specific exemption. The opinion to limitations and internal policies on printing is available at http://www.oag.state.tx.us/ information about minors or the deceased. opinions/or50abbott/ord-681.htm. Because HIPAA prevents covered agencies In addition, according to news reports, from disclosing names, reporters should Kentucky, Arkansas and Utah are also obtain as much information as possible from involved in HIPAA reviews. non-covered agencies before turning to hospitals or medical providers for What HIPAA does and does not cover confirmation.

HIPAA applies only to businesses or agencies Journalists should also be prepared to that bill or receive payment for health care challenge a source’s claim that a particular services or transmit information for payment agency is covered by HIPAA. If a law in electronic form. Business or agencies enforcement agency, fire department or other covered by HIPAA generally cannot disclose, agency claims it cannot provide health care without the patient’s consent, personally information because of HIPAA, one helpful identifying information such as names, resource may be the Department of Health addresses or specific medical condition. and Human Services web page “Is a Person, Thus, in most cases, a hospital cannot give Business or Agency a Covered Health Care journalists a patient’s name. However, the Provider” at http://www.cms.hhs.gov/ hospital should be able to confirm if a patient hipaa/hipaa2/support/tools/decision the journalist names is in the hospital and support/default.asp. This website will ask a provide some additional details such as few questions designed to determine if the general medical condition, an age range and business or agency is covered. Walking a a general address (including that person’s source through this short question-and- state or region). answer process may help convince him or her that HIPAA does not apply. It is not clear how HIPAA and the Freedom of Information Act (FOIA) interact. Some public To assist in efforts to understand and clarify information officers have contended HIPAA the impact of HIPAA, journalists should collect requirements supersede FOIA disclosures, but examples of information they are unable to journalists should still be able to obtain some obtain because of HIPAA (whether applied information from public records requests. correctly or incorrectly). With this information industry groups such as the Newspaper HIPAA does not apply to every entity that has Association of America and American Society a health care function. For example, it does of Newspaper Editors can explore lobbying not apply to a medical examiner’s or and potential litigation that will clarify the prosecuting attorney’s office. Records that impact of HIPAA on newsgathering at the should generally still be available include national level. At the local level, reporters and police- or fire-incident reports, birth records, editors should meet with agency Public autopsy records and court records. In fact, for Information Officers to clarify their applica- entities such as the fire department or police tion of HIPAA. In this way, the media can help department, which offer health care services structure the application of HIPAA and take as an ancillary service, HIPAA should apply action to remedy its inevitable misuses. only to health care information generated by the ancillary service. In other words, if a fire department public information officer (PIO) 3 HIPAA is codified at 42 U.S.C. § 1320d-6. The sees an individual burned at a fire, but the implementing regulations can be found at individual drives herself to the hospital, then 45 C.F.R.§§ 160, 164.

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CABLE NETWORKS already has aired interviews with six of CONTINUED FROM PAGE SIX the Democratic presidential candidates.27 While the network certainly could seek a determining the First Amendment validity “bona fide news interview” exemption if a of cable regulation.”24 Similarly, the United demand for equal opportunities is ever States Court of Appeals for the District of filed (it worked for Howard Stern, didn’t Columbia Circuit has held that the more it?), it raises the interesting question of rigorous First Amendment scrutiny what the FCC can say about a program precludes the Commission from applying whose host regularly describes his show to cable operators the same type of as a “fake newscast.” rules that have been upheld in the broadcasting context, even when the If the question is ever presented, there subject involves structural regulations. should be no doubt that the Daily Show The Commission’s authority is all the more interviews would qualify for an questionable when it seeks to regulate in exemption under Section 315(a) even the area of cable programming.25 though it is an entertainment show. But the more legally sound and intellectually Consequently, the First Amendment honest way to deal with the issue would should preclude the FCC or Congress from be for the Commission to declare that applying Section 315 to cable networks. Comedy Central and all other cable networks are excluded entirely from A time for clarity Section 315’s reach. Such an approach would preclude the recurring program- The question of whether the FCC’s by-program questions that come up with political broadcasting rules apply to cable increasing frequency during each networks has been simmering on the election cycle. The Commission might back burner for some time. In May 1999, also consider reinstating its 1991 for example, CNN initially scheduled, then decision that candidate appearances in canceled, an appearance by Vice President non-political programs, such as old Al Gore as guest host of the Larry King movies, do not trigger equal opportunities Show.26 The scheduling reportedly led the obligations even in the broadcasting Republican National Committee to urge context. But in the meantime, the FCC party activists to call the network and should clear up the confusion and demand equal time, and the offer to the formally declare what the law requires – Vice President was rescinded. The issue that cable networks are free from equal arose again in 2000, when A&E Television opportunities obligations. aired profiles of the presidential candi- dates as part of its Biography series. But the issue moved to the forefront during the 2003 California recall election because 4 Many Viewers Miss Sharpton’s ‘SNL’ Act, of its large candidate field that included USA TODAY, Dec. 8, 2003 former child TV actors, porn stars and (www.usatoday.com/life/television/news/200 current movie actors. 3-12-08-sharpton-snl_x.htm).

The bizarre scenario of the California 5 In re Request of Infinity Broadcasting recall may be unlikely to recur, but the Operations, Inc. for a Declaratory Ruling, question of how to treat cable networks 18 FCC Rcd. 18603 (2003).

under the FCC rules undoubtedly will re- 6 emerge as the 2004 presidential race Sue Zeidler, Cable TV Networks Pull heats up. Given the growth in basic cable Schwarzenegger Films, Forbes.com, viewership and the increasing tendency August 14, 2003. for candidates to appear on all types of 7 Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1989) shows, it is inevitable that sooner or later (newscaster-candidate would trigger free the issue will be presented squarely to the time requirement). Commission. For example, Comedy Central’s The Daily Show with Jon Stewart

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8 In re Request by Adrien Weiss, 58 F.C.C.2d the issue of programming originated by cable 342 (Broadcast Bureau 1976). When Reagan operators. See id. at 398 (Testimony of Dr. ran for Governor of California in the 1960s Frank Stanton) (“suppose the CATV originates the TV show Death Valley Days reportedly a political program themselves”); Political replaced him as host to avoid the Broadcasting–1971, Hearings before the constraints of the political broadcasting Subcomm. on Communications and Power, rules. See Gary Gentile, Schwarzenegger House Comm. on Interstate and Foreign Films Would Trigger FCC Equal Time Rule, Commerce, 92nd Cong. 1st Sess. 89 (1971) Associated Press, August 12, 2003. (Statement of Rep.Torbert MacDonald).

9 See Pat Paulsen, 33 F.C.C.2d 835 (1972), 19 In its comprehensive primers on the law of aff’d sub nom. Paulsen v. FCC, 491 F.2d 887 political broadcasting and cablecasting, the (9th Cir. 1974). Although Pat Paulsen was a FCC does not address how Section 315 comedian and not a politician, he qualified applies to uses by political candidates on for the ballot in one state, thus triggering cable television networks. See The Law of application of the FCC’s rules. Political Broadcasting and Cablecasting: A Political Primer (1984 Edition); The Law of 10 Codification of the Commission’s Political Political Broadcasting and Cablecasting, 69 Programming Policies, 7 FCC Rcd. 678, F.C.C.2d 2209 (1978); Use of Broadcast Facilities 685 (1991). by Candidates for Public Office, 24 F.C.C.2d 832 (1970). 11 Codification of the Commission’s Political Programming Policies, 9 FCC Rcd. 651, 20 Id. at 10796 n.2 (emphasis added). 651 (1994). 21 Fox Broadcasting Co., 11 FCC Rcd. 11,101, 12 See Federal Election Campaign Act of 11,107 n.12 (1996) (“In implementing [Section 1971, Pub. L. No. 92-225, 86th Stat. 3 (1972). 315(c)], the Commission has applied Section 315 only to a cable system’s origination cable- 13 47 C.F.R. § 76.5(p). This definition has casting, defined as programming over which it remained the same since the Commission exercises exclusive control.”); A.H. Belo Corp., adopted comprehensive cable television 11 FCC Rcd. 12306, 12,307 n.3. (1996). regulations in 1972. See Cable Television Report and Order, 36 F.C.C.2d 143, 215 (1972) 22 Miami Herald Publishing Co. v.Tornillo, 418 (definition initially codified at 47 C.F.R. § U.S. 241 (1974) (state right of reply law for 76.5(w)). newspapers violates the First Amendment).

14 See, e.g., 47 C.F.R. § 206(a) (“The charges, if 23 Id. at 639. any, made for the use of any system....”); id. § 207(a) (“Every cable television system 24 Compare Sinclair Broadcast Group, Inc. v. FCC, shall keep and permit public inspection of a 284 F.3d 148 (D.C. Cir. 2002) and Fox Television complete and orderly record (political file) Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. of all requests for cablecast time …”). 2002) (both affirming the constitutionality of FCC broadcast ownership rules), with Time 15 See 47 C.F.R. § 73.658 (2002). Warner Entertainment Co. v. FCC, 240 F.3d 1126 (D.C. Cir. 2001) (striking down national cable 16 47 C.F.R. § 73.658(e)(1). ownership rule).

17 See FCC v. Midwest Video Corp., 440 U.S. 689, 25 United States v. Playboy Entm’t Group, Inc., 529 707-709 (1979); MPAA v. FCC, 309 F.3d 796, U.S. 803, 815 (2000); MPAA v. FCC, 309 F.3d 796, 804 (D.C. Cir. 2002); Home Box Office v. FCC, 804-805 (D.C. Cir., 2002); HBO, Inc. v. FCC, 567 567 F.2d 9, 28 (D.C. Cir. 1977) (rejecting F.2d 9, 28 (D.C. Cir. 1977). ancillary authority to impose cable television content controls). 26 See Howard Kurtz, CNN Cancels Gore’s Gig as Talk Host, WASHINGTON POST, May 7, 1999 18 See Federal Election Campaign Act of 1971, at C 1. Hearings before the Subcomm. on 27 See Stewart Gets a General Visit, MULTI- Communications of the Senate Comm. on CHANNEL NEWS, December 10, 2003. Commerce, 92nd Cong., 1st Sess. 387 (1971). Those who testified on the issue focused on

Davis Wright Tremaine LLP First Amendment Law Letter 9 DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT . INTELLECTUAL PROPERTY . NEW MEDIA . TELECOMMUNICATIONS . DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT .

ABOUT THE AUTHORS

Jeffrey L. Fisher is an associate in DWT’s James S. Blitz is a partner in DWT’s Seattle office. He represents clients in Washington, D.C., office. His practice First Amendment, criminal defense and includes regulatory and transactional other constitutional matters, primarily at matters, representing owners of and the appellate level. He was one of the investors in competitive telephone attorneys involved in the amicus brief companies, cable television and wireless DWT filed on behalf of The Washington cable television system operators, cable Post Company and several other media television programmers, cellular entities in Center for National Security radio operators, television and radio Studies v. U.S. Dept. of Justice, 331 F.3d broadcasters, satellite operators and 918 (D.C. Cir. 2003), one of the cases international common carriers, FCC discussed herein. spectrum auctions for new services (including PCS, MDS, FM, and LMDS), and Jeff can be reached at (206) 622-3150 municipal regulation of communications or [email protected]. (right-of-way usage issues and FCC/local preemption issues).

Andrew M. Mar is an associate in DWT’s Jim can be contacted at (202) 508-6600 Seattle office, where he regularly or [email protected]. represents media clients in access and newsgathering matters involving health care issues, as well as in defamation and Robert Corn-Revere is a partner in intellectual property litigation. DWT’s Washington, D.C., office. His practice includes advising clients on Andrew can be reached at (206) 622-3150 First Amendment and Internet-related or [email protected]. issues, and FCC regulatory matters. Among other things, Bob has served as counsel in litigation involving the Alison Page Howard is an associate in Communications Decency Act, the Child DWT’s Seattle office. Her experience Online Protection Act, Internet content includes representing newspapers and filtering in public libraries, public communications companies on access broadcasting regulations and export issues under the Washington Public controls on encryption software. Disclosure Act and the federal Freedom of Information Act, establishing and Bob can be contacted at (202) 508-6600 enforcing intellectual property rights, or [email protected]. drafting publishing agreements and contracts, drafting briefs for proceedings in state court, federal court and the Trademark Trial and Appeal Board, and representing applicants for political asylum on a pro bono basis before the Board of Immigration Appeals and the Office of the Immigration Judge.

Alison can be reached at (206) 622-3150 or [email protected].

10 Davis Wright Tremaine LLP First Amendment Law Letter DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT . INTELLECTUAL PROPERTY . NEW MEDIA . TELECOMMUNICATIONS . DEFAMATION AND PRIVACY TORTS . FIRST AMENDMENT .

ABOUT OUR COMMUNICATIONS Related experience includes:

AND MEDIA LAW PRACTICE ■ Defending publishers and broadcasters against defamation, newsgathering and A national leader in the field, Davis invasion of privacy claims; Wright Tremaine's (DWT) Communications, Media and Information ■ Advising online content providers, Technologies Department has nearly publishers and other businesses 100 lawyers in seven offices from coast regarding compliance with privacy to coast. The department's experience regulations; is as broad as its geographic scope. ■ Obtaining dismissals and fee awards Our attorneys assist broadcasters, under anti-SLAPP (Strategic Lawsuits publishers, online content providers Against Public Participation) statutes; and journalists in all aspects of media ■ Defending media clients in law, including prepublication review, obscenity actions; access to courtrooms and public records, ■ Representing anonymous individuals newsroom subpoenas and defamation, in “cyber-libel” cases, defending both and invasion of privacy defense. Our their anonymity and their online First Amendment and intellectual speech; property lawyers represent advertisers nationwide. We provide counseling, ■ Opposing attempts to restrain regulatory, business and litigation publications and broadcasts; and services for national and regional clients. ■ Providing around-the-clock delivery of prepublication and newsgathering Our firm has been representing the counseling media and protecting First Amendment and intellectual property rights for FUTURE ADVISORY BULLETINS decades. In a time of unprecedented VIA EMAIL innovation, we understood the impact of new technology on intellectual property We invite you to join our growing and the need to expand our resources database of subscribers who are choosing to better serve the telecommunications to receive our First Amendment Law and information technology industries. Letter via email. Electronic delivery will Today we are a leader in these fields as keep you on the cutting edge of industry well; and with an already renowned issues and reduce the amount of paper leadership in media law, no firm knows on your desk. more about the issues affecting the content of new technologies. To take advantage of this service, please send an email to: Defamation, privacy, newsgathering [email protected]. and the First Amendment Be sure to include your full name, title, Our experience in this area is unparalleled company, mailing address and phone and encompasses matters of national, number in the message area of the email. local and international concern. For more than 40 years, DWT lawyers have been representing clients in all types of communications and media litigation, including defamation and privacy defense and a wide range of First Amendment matters before the U.S. Supreme Court and in federal and state trial and appellate courts throughout the country.

Davis Wright Tremaine LLP First Amendment Law Letter 11 eCOMMERCE . INTELLECTUAL PROPERTY/DOMAIN NAMES . WEBSITE LEGAL REVIEW . ADVERTISING . FIRST AMENDMENT/DEFAMATION . PRIVACY . WEBSITE DEVELOPMENT .

This First Amendment Law Davis Wright Tremaine LLP FIRST CLASS Letter is a publication of the 2600 Century Square PRE-SORT law firm of Davis Wright U.S POSTAGE PAID Tremaine LLP and is prepared 1501 Fourth Avenue by its Communications, SEATTLE,WA Media and Information Seattle, Washington 98101-1688 PERMIT NO. 1538 Technologies Department, Daniel M.Waggoner and Victor A. Kovner, co-chairs, Rochelle Wilcox, editor and Steve Chung, associate editor. Our purpose in publishing this law letter is to inform our clients and friends of recent First Amendment and communications law developments. It is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may be given only in response to inquiries regarding particular factual situations. To change your address or to receive additional information, please contact Margaret Roberts in our Seattle,Washington office at [email protected]. Copyright © 2004 Davis Wright Tremaine LLP Printed on Recycled Paper

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