A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2012 Leveson Inquiry Report Calls for New System of Press Regulation in United Kingdom n Nov. 29, 2012, Lord Justice Brian Leveson released The regulatory body proposed in the Leveson report would his 1,987-page report of fi ndings and recommendations not include any current newspaper editors, current Members of stemming from his 17-month inquiry into the culture, Parliament (MPs), or members of government. Retired editors practices, and ethics of the United Kingdom press. The and journalists, however, would be eligible to be members. The report, among other things, recommends a new system Standards Code Committee would be responsible for drafting ofO press regulation that would be mandated by a parliamentary a new standards code, and its breach could result in a fi ne of statute. The report and recommendations are drawing concern up to £1m, or about $1.5 million, to the publication. As with the from free press advocates who fear the changes suggested would PCC, individuals could complain to the new body at no cost. be detrimental to the UK’s 300-year old tradition of broad press Beyond fi nes, other potential sanctions would include mandated freedom. But those who have been frustrated and outraged publication of a correction or an apology. Lord Leveson’s proposals because of the British media’s actions in recent years argue the also include an attempt to lower litigation costs by suggesting a recommendations do not go far enough to curb the unethical new arbitration service that would offer an alternative to settle behavior of the press or to provide redress for victims. a dispute. The arbitration service would only be open to use by The Leveson Inquiry began in November 2011, prompted by the organizations who were members of the new regulatory body. British “phone hacking” scandal. The practice of phone hacking — To ensure the proper functioning of a new regulatory system, illegally accessing the voicemail of famous or prominent subjects Leveson also recommended that the new body be accompanied of coverage — had been known since 2006, but public and political by a “statutory underpinning,” meaning that legislation would be outrage grew after an investigations by the Guardian revealed that passed by Parliament to make sure the body remained independent the News of the World accessed the voice mail of Milly Dowler, and effective. “… I have recommended legislation that underpins a 13-year-old girl who went missing in 2002 and was later found the independent self-organized regulatory system and facilitates murdered. News of the World, owned by Rupert Murdoch’s News its recognition in legal processes. … This is not, and cannot International, closed its doors in July 2011 amid the scandal and be characterized as, regulation of the press,” the report said. a number of its previous editors, reporters, and investigators In a November 29 story summarizing the report, the BBC said face criminal charges. (For more on the phone hacking scandal, this legislation would “enshrine, for the fi rst time, a legal duty see “Update: Charges Filed in British Phone Hacking Cases” in of government to protect freedom of the press.” The executive the Summer 2012 issue of the Silha Bulletin, “Not Just a ‘Rogue summary and the Leveson Report in its entirety are available at Reporter’: ‘Phone Hacking’ Scandal Spreads Far and Wide” in the http://www.levesoninquiry.org.uk/. Summer 2011 issue, and “Murdoch-owned British Paper Embroiled The proposed “statutory underpinning” now being referred in Phone Scandal” in the Fall 2009 issue.) to as the “press law” is drawing concern from the industry and dividing politicians. British Prime Minister David Cameron told Report Calls for New British Press Regulation Entity with national newspaper editors at a December 4 meeting that in order Statutory Backing to avoid introduction of a new press law by the government, they In his public remarks on release of the report, Lord Justice must implement all of the Leveson report recommendations, Leveson said the evidence of the inquiry showed that “on too according a Guardian story the same day. Editors of the Daily many occasions” the press’ responsibility to democracy and to the Telegraph, the Sun, the Daily Mirror, the Guardian and The Times public interest, as well as the Editors’ Code written and enforced (of London) were among those present at the meeting. The most by the press, “have simply been ignored.” Therefore, Leveson notable absence, the Guardian reported, was Paul Dacre, the recommended a new press regulatory body entirely independent editor-in-chief of the Daily Mail, who was unable to attend because from the press that includes “an effective system of self-regulation of a funeral. After speaking, Cameron turned over the meeting to of standards, with obligations to the public interest.” This body his culture secretary, Maria Miller, and Oliver Letwin, the Cabinet would replace the Press Complaints Commission (PCC), the Offi cer Minister, whom the Guardian called Cameron’s “policy current self-regulatory body of the press, which was criticized after fi xer.” Letwin has been tasked with dealing with the legal aspects of it reported that the practice of phone hacking was not widespread. implementing Leveson’s recommendations, the story said. Letwin’s The PCC is a voluntary body for British print publications that is address to editors echoed that of Cameron and said, except for made up of representative of the major publishers. It is funded by its member newspapers and magazines and has no legal authority. Leveson, continued on page 3 Inside This Issue Fall 2012: Volume 18, No. 1

1 Leveson Inquiry Report Calls for New System of Press 15 Minnesota Courts Address Defamation Claims Stemming Regulation in United Kingdom from Blog Posts and Online Reviews

Cover Story Defamation

6 U.S. Supreme Court to Hear Challenge to Citizens-Only 18 New FCC Rule on Disclosure of Political Advertising Follows Limitations on Virginia Open Records Requests 2012 Election Spending FOIA FCC

8 Copyright Cases Around the Country Address Illegal 20 Social Media Policies Threaten Employee Privacy Downloading, the Sale of Foreign-Made Works in the U.S, Privacy and the Aggregation of Online Listings 22 Published Photos of Arguably Private Moments Raise Copyright Questions About Whether Media Acted Ethically 12 State Limits on Campaign Contributions Remain in Effect Media Ethics for 2012 Election Season; Voters Call for Amendment to Overturn Citizens United 26 Silha Lecture Features Experts on the Ethics and Craft of Writing Restaurant Reviews Campaign Finance Silha Center Events 14 Courts Struggle to Balance Privacy and Transparency Interests in Recent FERPA Case FERPA

SILHA CENTER STAFF JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

HOLLY MILLER SILHA BULLETIN EDITOR

CASSIE BATCHELDER SILHA RESEARCH ASSISTANT

EMILY MAWER SILHA RESEARCH ASSISTANT

ELAINE HARGROVE SILHA CENTER STAFF

2 Leveson, continued from page 1 But other critics argue that self-regulation of the press is not the statute, the report must be implemented “line by line.” Editors enough to keep the media accountable. Hacked Off, an advocacy expressed some concern about third parties lodging complaints group campaigning for tougher press regulation, called any reform with the ultimate aim of infl uencing news agendas, but otherwise, without statutory backing a “charade,” according to a December the Guardian reported that there was minimal dissent at the 6 Guardian story. At a press conference organized by the group meeting. on the same day, Natalie Fenton, a professor of media and According to a December 5 BBC report, UK news editors were communications at Goldsmiths University, said unless the new understood to have approved of 40 of the 47 proposals made in the body is recognized by law “everything else is pointless,” the story Leveson Report, including the proposed regulatory body with the said. Hacked Off is also hosting an online petition on its website power to impose monetary fi nes. A memorandum sent to editors by that individuals can sign in support of Leveson’s recommendations, former Mail on Sunday editor, Peter Wright, distributed to other news editors prior to the meeting, indicated concerns with the structure of a Standards Code Committee “The fact that self-regulation did not and who would ratify changes to an work does not mean that it cannot COVER STORY Editors’ Code, third-party complaints, pre- work. The PCC clearly failed to do its job publication advice, and the protection of confi dential sources. A copy of the editors’ properly but a system of meaningful memo with notations of what editors found acceptable and not self-regulation that ensures acceptable about each of Leveson’s proposals is available at http:// www.guardian.co.uk/media/interactive/2012/dec/05/leveson-inquiry- accountability and protects the rights of newspapers. individuals is not a lost cause.” Most of the newspaper editors publicly opposed the proposed statutory component, but were optimistic that the rest of Leveson’s — Agnes Callamard recommendations could be implemented. The Mirror’s Editor-in- Executive Director, Chief Lloyd Embley wrote on Twitter following the meeting that Article 19 “there is a fi rm belief that papers can deliver Leveson principles far more quickly without legislation – better for public and free speech.” The Guardian said there were “many good things about including the press law. The group has the support of many victims Leveson’s ideas” and the Daily Express said Cameron’s “challenge of “press intrusion” and had collected more than 141,000 signatures to the newspaper industry to devise its own regulatory system as of December 5, according to a BBC report the same day. that complies fully with the tough principles set out by Lord Sheila Hollins, a baroness and a cross-bench peer in the House Leveson, delivers fair play and yet does not require legislation is of Lords, also spoke out in support of the recommended press therefore one we are happy to take up. The task is an urgent one.” law. Her daughter, Abigail Witchalls, received a great deal of press A compilation of reactions from UK media is available on the BBC’s attention in 2005 when she was paralyzed after being stabbed in website at http://www.bbc.co.uk/news/uk-20546397. the neck, according to the December 6 Guardian report. Hollins Other organizations also support change to the current press told the Guardian her family had been harassed by the press for regulatory body. Article 19, an international press freedom fi ve years and that many reports were not “accurate or ethical,” advocacy group, agreed “effective self-regulation is the best way including a story in News of the World that said her daughter was to ensure a truly independent and diverse press” in a November 29 pregnant at the time of the stabbing. “I just don’t think there is press release. “The fact that self-regulation did not work does not a place for the sensationalism to which my family and daughter mean that it cannot work,” Agnes Callamard, executive director of were subjected,” Hollins said. “I would support something in law Article 19 said in the release. “The PCC clearly failed to do its job to verify that the future press regulator is actually fi t for purpose. properly but a system of meaningful self-regulation that ensures I do not believe that this can be left entirely to the owners of accountability and protects the rights of individuals is not a lost newspapers.” cause.” However, the organization expressed concern over any J.K. Rowling, the author of the Harry Potter series of books, said UK statute that would require self-regulation. Callamard said that she felt “duped and angry” at Prime Minister Cameron’s rejection although international law does not prohibit such a statute, history of the statutory underpinning of a new press regulatory body. “If has shown statutory regulation in the press often results in abuse of the prime minister did not wish to change the regulatory system these laws by government to “selectively control what newspapers even to the moderate, balanced and proportionate extent proposed and other periodicals may say.” by Lord Leveson, I am at a loss to understand why so much public But not all of the British press was on board to praise even money has been spent and why so many people have been asked to a part of the Leveson Report. London-based magazine The relive extremely painful episodes on the stand in front of millions,” Economist published one of the harshest critiques of the report in she told the Guardian for a November 30 report. a December 8 opinion piece, calling parts of the report “a scissors- and-paste job culled from Wikipedia.” The commentary said Political Leaders Split Over Leveson Statutory Leveson focused too much on tabloid journalism and “showed less Recommendation interest in serious journalism, even though his rulings will affect Political leaders are split over Leveson’s recommendation all papers.” Like many critics of the report, The Economist pointed that a new self-regulatory system be backed by a parliamentary out the lack of discussion in the report about new technology and statute. The statutory provision is supported by members of the argued that a government cannot impose standards on writing as it opposition Labour party and left-of-center Liberal Democrats, imposes standards on other professions like doctors or architects. but also numerous Conservatives, The New York Times reported “Every tweeter, blogger and author of a Facebook post is a reporter on November 29. Supporters argue the statutory underpinning of sorts.” The piece advocated that Parliament wait before taking would give the new body “real teeth,” the Times story said. But any action to introduce a press law and argued that the current opponents, including Conservative Prime Minister Cameron, said criminal prosecutions of “once-mighty journalists” is likely to this type of legislation would be headed down the pathway of state- change tabloid press behavior. sanctioned press controls, and reverse a tradition of a free press Leveson, continued on page 4 3 Leveson, continued from page 2 The Labour party appeared “willing to explore the proposal” in the UK dating back to the abandonment of newspaper licensing as long as there is some form of a statute that guarantees that in 1695. “I’m proud of the fact that we have managed to last for the royal charter could not be amended by the executive, the hundreds of years in this country without statutory regulation and Guardian reported. The Liberal Democrats support a statute if we can continue with that, we should.” Cameron said regarding requiring that two-thirds of MPs agree to any changes to a royal the report. charter that would oversee the new regulatory body. But the But Labour party MPs released a six-clause draft bill that would press reacted to the proposed charter with more nervousness, give the Lord Chief Justice the authority to certify the effectiveness the December 20 Guardian report said. At a press briefi ng the of the self-regulation of the newspaper industry every three years, same day, Lord Hunt, chairman of the PCC, said he thought according to a December 9 Guardian story. Further, the draft bill the royal charter “can be a way through, but only if it doesn’t also proposes (1) that the press regulatory body, to be named the seek to interfere with anything other than a verifi cation of the Press Standards Trust, be recognized by the Lord Chief Justice if a substantial majority of newspapers are members and (2) incentives “A media regulatory body anchored are provided for newspapers to join this trust through lower levels of high court damages and costs. The bill also suggests the judiciary by statute cannot be described as use the following criteria to examine whether the regulatory body voluntary. Moreover, adopting a is carrying out its proper function: (1) composition of the body; (2) the body’s investigation of complaints; and (3) the body’s statutory regulation would undermine publication of a code that includes guidance on the defi nition of press freedom in the U.K. and give “public interest.” The bill also includes a provision to “guarantee legitimacy to governments around the the freedom and independence of the media,” as the Leveson Report suggested, and requires ministers and government agents world that routinely silence journalists to protect press freedom. The full-text of the draft bill is available through such controls.” online at http://www.guardian.co.uk/media/interactive/2012/dec/10/ press-freedom-and-trust-bill-draft. Joel Simon In what the Guardian characterized as a “signifi cant switch,” Executive Director, the Labour party did not propose that Ofcom, the government entity in charge of broadcast regulation, act as the body to oversee Committee to Protect Journalists the new press regulation body. The Leveson Report proposed that Ofcom be the government entity involved, and Labour party leader Ed Milliband had initially said the party supported acceptance of the proposals in their entirety. “The debate showed a preference for independence of the overall structure.” Newspaper owners and something other than Ofcom to act as the recognizer, so we have editors plan to meet with leading politicians on Jan. 10, 2013 to responded to that,” Shadow Culture Secretary Harriet Hartman discuss the latest proposals for press regulation, according to (MP-Labour) said. “If there is greater comfort with the judges a December 21 Guardian story. Ed Millibrand is calling for a due to their independence from the executive that is fi ne. It is not solution to be reached by the end of January. tablets of stone. It is an effort to facilitate the talks.” (The Shadow Commentators have had mixed reactions to the political Culture Secretary is the deputy leader of the party in opposition in discussion surrounding the implementation of the Leveson Parliament.) recommendations. In a November 30 column for the Guardian, The release of the draft was supported by Liberal Democrats, former Times (of London) editor Simon Jenkins commented on the which indicates there may be a majority in the House of Commons “bizarre” agreement by Cameron to allow the drafting of a press to pass a statutory provision, the story said. But Conservatives law after publicly disagreeing with any statutory underpinning to dismissed the plans “as lacking in detail,” according to a December a new self-regulatory body. Jenkins characterized this as “huge 10 Independent report. The party planned to release its own gamble,” in which failure could mark the beginning of the end of proposal regarding press reform, with Cameron in agreement, press freedom in Britain. in time for cross-party talks on December 13, the Independent Joan Smith, a columnist, critic and novelist who regularly reported, but Oliver Letwin continued to discuss an evolving contributes to BBC radio, gave testimony during the inquiry, Conservative plan through December 20. articulating less concern over what she characterized as a “minimal Letwin, on behalf of Prime Minister Cameron, proposed a royal statutory underpinning” suggested by Leveson in a December charter to establish a body that will verify whether the new press 2 column for the Independent. “If, as I expect, the report is regulatory body is compliant with the Leveson report, a December eventually approved by Parliament, I suspect we will look back 20 Guardian story said. A royal charter is a type of formal and wonder what all the fuss was about,” she wrote. Smith said she document that dates back to before a constitutional monarchy found Leveson’s proposals to be cautions and to balance freedom and Parliament were introduced in the UK. They have been used of the press and individuals’ right to redress harm. “The reason this to establish cities, universities, and the BBC, among other entities. matters is that the public and victims of press intrusion want the In a meeting with Hacked Off, Letwin also suggested that a bill same thing: a better press, with stronger public interest defenses.” may also be introduced in Parliament that would require a “super majority” (up to two-thirds) vote in the Lords and Commons to Inquiry Finds no Widespread Corruption of Police by the change the royal charter, the Guardian reported. During talks Press of proposals, Cameron himself also indicated the possibility of The Metropolitan Police Service (MPS), commonly referred a statutory underpinning to bolster the charter, despite his early to as Scotland Yard, which has jurisdiction over Greater London declarations that he was not in support of a press statute. Normally, and also has signifi cant responsibilities such as leading counter- royal charters can be amended by ministers, using the power of the terrorism efforts and protection of the British Royal Family and monarch through the Privy Council. (The Privy Council is a body senior fi gures of government, was also a focus of the Leveson that advises the Sovereign of the United Kingdom, in this case, Inquiry. MPS was criticized for its failure to notify potential Queen Elizabeth II. It is mostly made up of current or former senior phone hacking victims and for too-close relationships between politicians of either the House of Commons or the House of Lords.) senior police offi cers and News International executives. But 4 Leveson said in his report that he did not see “any evidence that problems his inquiry identifi ed are “[un]likely to be eliminated by corruption by the press is a widespread problem in the police.” self-control.” Leveson acknowledged in the report that the relationship between senior offi cials of MPS and News International executives could U.S. Newspapers Critical of Leveson Report as Viewed understandably have been perceived as too close, but that he Through a First Amendment Lens saw “no basis for challenging at any stage the integrity of the Director of the Silha Center and Silha Professor of Media Ethics police, or that of the senior police offi cers concerned.” The and Law Jane Kirtley said in her Director’s Note for the Summer perception, he said, came from “poor decisions” that were “poorly 2012 issue of the Bulletin that “from a First Amendment-based executed.” The report, however, did recommend the creation of perspective, the Leveson Inquiry seems bizarre.” The launch of “consistent national standards and guidance” regarding corruption “a government inquiry into improper relationships between the and “enhanced training and awareness.” The proposal did not press and those in power with the intention of defi ning what include any additional statutory or regulatory tools to deal with constitutes journalism ‘in the public interest’ seems risky,” Kirtley corruption, and Leveson noted the criminal penalties in place were enough to deal with this problem. “A government inquiry into improper Report Warns Relationships Between Politicians and the relationships between the press and Press Have Been Too Close In the Leveson Report’s conclusions and recommendations those in power with the intention of chapter, the Lord Justice said in his view, “the evidence clearly defi ning what constitutes journalism ‘in demonstrates that the political parties of UK national government the public interest’ seems risky,” and UK offi cial opposition have had or developed too close of a relationship with the press.” Leveson advocated in the report that there be greater transparency of meetings between the press and — Professor Jane Kirtley politicians. However, the report did not go as far as to list specifi c Silha Center Director and relationships of concern. Silha Professor of Media Ethics and Law The inquiry, did, however, specifi cally examine the relationship between Rupert Murdoch and British politicians, including Prime Minister David Cameron. The report dismissed the allegations that wrote. Press freedom groups and U.S.-based newspapers shared Cameron and Murdoch made a “deal” to trade election support similar sentiments after the release of the report. The Murdoch- for Cameron’s Conservative Party in 2010 for policies favoring owned Wall Street Journal (WSJ) ran a highly critical November Murdoch’s media businesses, including Murdoch’s $12 billion bid 29 commentary about Leveson’s proposals. “Judge Leveson calls to take control of British Sky Broadcasting. The bid failed as the for statutory press regulation that insists isn’t statutory regulation. phone hacking scandal developed and Cameron and Murdoch It goes downhill from there.” The commentary went on to criticize denied any such trade-off existed between the two. what it characterized as a “non-voluntary voluntary self-regulation” But commentators have said that Murdoch’s “power nurtured body, noting that non-member print publications would be expose a deep-rooted refl ex, in successive governments and in the police, to “exemplary” damages in civil cases against them and that to curry his favor and to turn a blind eye to his editors’ excesses,” Leveson said he would make it more diffi cult for these entities to The New York Times reported on November 29. In response to recover costs even if they prevailed in court. The WSJ concluded these assertions the report said, “Sometimes the greatest power by stating that “Not everything [the British press] published is is exercised without having to ask. Just as Mr. Murdoch’s editors admirable; some of it may be inexcusable. But that is for readers, knew the basic ground rules, so did the politicians. The language advertisers and, when laws are broken, for the courts to judge.” of trades and deals is far too crude in this context. In their Press freedom, the commentary argued, “is crucial to keeping discussions with him, politicians knew that the prize was personal Britain free.” and political support in his mass-circulation newspapers.” The New York Times also opposed statutory press regulation According to The New York Times, Cameron emphasized what in its November 29 editorial “Press Freedom at Risk.” “Press he called his “exoneration” speaking to the House of Commons independence is an essential bulwark of political liberty in Britain after the release of the report. “We have had to listen to allegation as it is everywhere. That independence should not, and need not after allegation, conspiracy after conspiracy, smear after smear,” be infringed upon now.” The Times argued many of the issues Cameron said, referring to actions by the Labour party. “And each presented in the report — illegal hacking into voice mails or one has been put to bed comprehensively.” illegally obtaining medical records — are not a protected part of the newsgathering process and can be dealt with through Leveson Calls Press Behavior “Outrageous” at Times criminal prosecutions. Issues of bribery and corrupt relations Leveson said in the conclusion of his report that “the clearest with politicians and police could also be dealt with through the message” that comes out of this inquiry addressing the culture, criminal laws already in place, the Times editorial said. Civil and practices, and ethics of the press, is that “time and time again, criminal remedies, the Times posited, are the best way of holding there have been serious and uncorrected failures within parts of newspapers accountable, not government regulation. the national press that may have stretched from the criminal to The New York-based press freedom watchdog, the Committee the indefensibly unethical, from pass off fi ction as fact to paying to Protect Journalists (CPJ), also issued a statement on November lip service to accuracy.” Because of the press’ ability to exercise 29 expressing concern over Leveson’s recommendation to “unaccountable power,” Leveson said the “status quo is simply adopt statutory regulation of the press. “A media regulatory not an option” and “the need for change in internal but most body anchored by statute cannot be described as voluntary,” importantly in external regulation has been powerfully identifi ed.” CPJ Executive Director Joel Simon said. “Moreover, adopting a Beyond the phone hacking scandal, Leveson pointed to the press’ statutory regulation would undermine press freedom in the UK and prioritizing of sensational stories despite the harm they may cause give legitimacy to governments around the world that routinely and the pursuit of stories that rose to the level of harassment. silence journalists through such controls.” Although Leveson noted in his report that the “British press – HOLLY MILLER serves the public very well for most of the time,” he argued the SILHA BULLETIN EDITOR 5 U.S. Supreme Court to Hear Challenge to Citizens- Only Limitations on Virginia Open Records Requests n October 2012, the Supreme state. McBurney v. Young, No. 12-12, defendant, Virginia’s Director of the Court of the United States agreed 2012 WL 2804998, 2012 U.S. Lexis 7806, Division of Child Support Enforcement, to hear a challenge to a Virginia (Oct. 5, 2012). Nathaniel Young. The Fourth Circuit law limiting open records requests The Rhode Island plaintiff, Mark dismissed the previously named to state citizens in McBurney v. McBurney, requested documents defendant, Virginia’s Attorney General Young.I Open records advocates and pertaining to his petition for child Kenneth Cuccinelli, as an improper news organizations have called for support from the Virginia Division of defendant in a 2010 proceeding. In the the Supreme Court to invalidate the Child Support Enforcement. McBurney’s 2011 district court decision, the court provision that former wife lived in Virginia and after upheld the Virginia law, holding that limits access to a nine-month delay in collecting child the plaintiffs failed to show that VFOIA FOIA state documents to support from her, he sought to obtain burdened a fundamental right under Virginia citizens, documents to determine the source of the Privileges and Immunities Clause. following a the delay. However, Virginia denied the Defi ning a fundamental right as one that decision from the U.S. Court of Appeals request because he was not a citizen is “suffi ciently basic to the livelihood of (4th Cir.), which upheld the law as of the state. McBurney eventually the Nation,” the court determined that constitutional in February. Meanwhile, obtained most of the documents through both access to government information the Obama administration has largely Virginia’s Government Data Collection and the right to advocate for one’s own failed to deliver on its promise of a and Dissemination Practices Act, but economic interests were insuffi cient more transparent government, keeping was never able to view the full records rights to be considered fundamental more records secret than the previous from his original request. VA Code Ann. and were therefore not protected under administration under the federal § 2.2-3700. the clause. Thus, the court rejected the Freedom of Information Act. Both the The other plaintiff, Roger Hurlbert, is plaintiffs’ privileges and immunities citizens-only provision of the Virginia law a California citizen and owns a business claim. The full text of the district court and the lack of compliance with federal that requests real estate tax assessment opinion is available online at http:// records requests have raised disclosure records for clients. Hurlbert fi led such scholar.google.com/scholar_case?cas concerns among open government a request under VFOIA, seeking records e=8296228783536529996&hl=en&as_ advocates. from Henrico County, but Virginia denied sdt=2&as_vis=1&oi=scholarr. McBurney The federal Freedom of Information the request because Hurlbert was not a v. Cuccinelli, 780 F. Supp. 2d 439 (E.D. Act (FOIA) requires the release of citizen of the state. Va. 2011). federal documents following a request McBurney and Hurlbert fi led a The district court also rejected unless the information falls under one complaint in the U.S. District Court for Hurlbert’s dormant Commerce Clause of nine exemptions, which include the Eastern District of Virginia claiming claim, categorizing the clause as information classifi ed to protect national the citizens-only limitation of VFOIA prohibiting laws directed at protecting in- security, information that would unconstitutionally denies them the “right state business, but allowing regulations invade an individual’s personal privacy, to participate in Virginia’s governmental with “incidental” effects on interstate and information that is barred from and political processes” by preventing commerce. The court found that VFOIA’s disclosure by another federal law. Each them “from obtaining information from purpose was to foster access to public state also has its own open records laws Virginia’s government,” in violation of the records and even though “the law may to govern the release of state documents. Privilege and Immunities Clause of the have some incidental impact on out-of- Virginia’s law, the Virginia Freedom of U.S. Constitution. The clause prohibits state business, the goal is not to favor Information Act (VFOIA), limits records a state from discriminating against Virginia business over non-Virginia requests to citizens of Virginia and news citizens of other states in favor of its own business.” outlets that circulate or broadcast in residents. U.S. Const. art. IV § 2 cl. 1. On Feb. 1, 2012, the Fourth Circuit Virginia. VA Code Ann. § 2.2-3700. The Hurlbert independently claimed unanimously affi rmed the district court’s full text of the law is available online at that the act also violates the dormant judgment, fi nding no violation to the http://leg1.state.va.us/cgi-bin/legp504. Commerce Clause “because it grants Privileges and Immunities Clause or the exe?000+cod+2.2-3700. Virginia citizens an exclusive right of dormant Commerce Clause. McBurney v. The challenge to the Virginia law access to Virginia’s public records” Young, 667 F.3d 454 (4th Cir. 2012). arose after the plaintiffs, a Rhode Island and prevents him “from pursuing any The U.S. Supreme Court’s review of and a California citizen who were denied business stemming from Virginia public the decision will settle a split between Virginia records under the Act, fi led a records on substantially equal terms the Third and Fourth Circuits. On Aug. lawsuit alleging that the law violates with Virginia citizens.” The dormant 16, 2006, the Third Circuit held in Lee v. the Privileges and Immunities Clause of Commerce Clause restricts state Minner that a citizens-only restriction on the U.S. Constitution, U.S. Const. art. action on interstate commerce and is access to public records in the Delaware IV, § 2, cl. 1, by denying them the right not explicit in the Constitution, but is Freedom of Information Act violated to participate in the political process inferred from the Commerce Clause’s the Privileges and Immunities Clause in Virginia. The California plaintiff also grant of power to Congress. U.S. Const. and enjoined the state from enforcing it. alleges that the law violates the dormant art. I § 8 cl. 3. The case involved a New York citizen, Commerce Clause because the law On Jan. 21, 2011, the U.S. District Matthew Lee, who requested records prevents nonresidents from taking part Court for the Eastern District of Virginia regarding Delaware’s decision to resolve in the business of public records in the granted summary judgment for the an investigation into a consumer fi nance 6 company’s deceptive lending practices, they may live in Georgia, Mississippi, government, also encouraged the by joining a settlement with the group. Arkansas, Kentucky, and Virginia and Supreme Court to strike down the Lee was an author who published articles carry drivers licenses from [those states citizens-only provision and submitted a about predatory practices of fi nancial rather than Tennessee].” The full text historical brief to the court calling the service companies and governmental of the brief is available online at http:// right to public records a “basic right of regulation of those companies. The court sblog.s3.amazonaws.com/wp-content/ all persons in democratic societies.” held that Delaware’s denial of the request uploads/2012/10/12-17-Amicus-Crew-et- Megan Rhyne, executive director based on Lee’s citizenship violated al..pdf. of the Virginia Coalition for Open the U.S. Constitution by impacting his In another amicus brief, the Coalition Government, said she believes the fundamental right to engage in political for Sensible Public Records Access, law not only harms noncitizens, but advocacy. 458 F.3d 194 (3d Cir. 2006). along with information-gathering can also disadvantage the Virginia (For more on Lee v. Minner, see “Federal businesses, endorsed Hurlbert’s government itself, in an Oct. 9, 2012 Court Rules Delaware FOIA State National Freedom Resident Restriction Unconstitutional” of Information in the Spring 2005 issue of the Silha “The ‘citizen’ language [of VFOIA] Coalition story. Bulletin.) As an example, In McBurney, the Fourth Circuit provides a convenient excuse for Rhyne cited “the acknowledged the Third Circuit’s agencies to withhold information they Ohio business contrary decision, but noted that the do not want out. Reporters at Tennessee owner who has a holding was from an out-of-circuit court fantastic idea for and therefore was not binding. The court news organizations can’t get certain providing a service also distinguished the case, stating that records from border cities because to a local [Virginia] McBurney and Hurlbert sought “access government but to information of personal import rather they may live in Georgia, Mississippi, can’t get hold of than information to advance the interests Arkansas, Kentucky, and Virginia and previous project of other citizens or the nation as a carry drivers licenses from [those states bids to craft his whole, or that is of political or economic proposal.” Further, importance.” Therefore, the court rather than Tennessee].” Rhyne argued concluded that the fundamental right that the law does identifi ed in Lee was not relevant to the — Frank Gibson, not benefi t the McBurney case. Founding Director, government, as In the petition for a writ of certiorari, Tennessee Coalition for Open Government noncitizens will the plaintiffs called the case an just fi nd a Virginia “important question of constitutional law resident to make at the intersection of federalism, freedom argument that VFOIA violates the the request for them. “The government of information, and the burgeoning dormant Commerce Clause by doesn’t save any time or money in those marketplace for public records.” If the discriminating against noncitizens in cases because they still, eventually, Supreme Court fi nds the Virginia statute interstate commerce. “The business have to do the work,” Rhyne said for the violates the Constitution, it will affect of collecting, aggregating, indexing, October 9 report. similar laws in Tennessee, Arkansas, and creating new services from public The Supreme Court will likely hear Georgia, and New Hampshire. records is interstate commerce,” the arguments in the case in early 2013 and Several open-government advocates, brief said. For example, in a 2000 U.S. is expected to issue a decision before including Citizens for Responsibility and Supreme Court case, Reno v. Condon, July, according to the October 8 First Ethics in Washington and the National the Court held that driver’s license Amendment Center column. Freedom of Information Coalition, records can be viewed as “article[s] fi led an amicus brief with the Supreme of commerce.” Thus, limiting access Obama Administration Fails to Court arguing that the law has “a real, to driver’s license records and other Deliver on Promise of Transparency detrimental impact on noncitizens’ public documents can be considered an Despite President Barack Obama’s fundamental rights.” A group of news impermissible regulation of interstate promise to increase transparency in organizations, including the American commerce under the dormant Commerce government through FOIA, a Washington Society of News Editors, also fi led an Clause. Reno v. Condon, 528 U.S. 141 Post investigation found that “by amicus brief asking the Supreme Court (2000). In an October 8 First Amendment some measures the government is to invalidate the law. The brief states Center post, Legal Correspondent Tony keeping more secrets than before” his that the citizen requirement obstructs Mauro called the dormant Commerce administration began, according to the newsgathering. “The ‘citizen’ language Clause violation “potentially a winning Aug. 3, 2012 story. provides a convenient excuse for argument,” as the current Supreme Court In 2011, the number of requests agencies to withhold information they do tends to be “pro-business.” The full text denied under an exemption to FOIA not want out,” Frank Gibson, founding of the brief is available online at http:// rose 10 percent, from 22,834 to 25,636, director of the Tennessee Coalition for sblog.s3.amazonaws.com/wp-content/ according to The Washington Post’s Open Government said, discussing the uploads/2012/10/12-17-Coalition-for- August 3 report. In addition, Obama’s citizens-only limit in the Tennessee law, Sensible-Public-Records-Access-et-al.. promise to declassify more than 370 in a Sept. 19, 2012, First Amendment pdf. million pages of archived material Center report. “Reporters at Tennessee Judicial Watch, a non-partisan will likely fail to meet the December news organizations can’t get certain education foundation that promotes 2013 deadline, according to Sheryl records from border cities because transparency and accountability in Shenberger, director of the National Open records, continued on page 8 7 Copyright Cases Around the Country Address Illegal Downloading, the Sale of Foreign-Made Works in the U.S., and the Aggregation of Online Listings

ew technology continues Jammie Thomas-Rasset. In addition, the other copyrighted works overseas, where to test copyright law in Canadian Supreme Court has changed they may be less expensive, and resell courts across the United its approach to royalties for music them for a profi t in the United States. States. On Oct. 29, 2012 downloads. The market for goods made abroad the Supreme Court of the Finally, the status of copyright and resold at low prices domestically is NUnited States heard oral arguments for a protection for factual information known as the “gray market.” Some argue case involving a student who was found online was brought into question when it benefi ts consumers by providing low liable for copyright infringement for Craigslist, a free online classifi ed listing prices, but many businesses argue this his online book website, sued two organizations that “gray market” undercuts their prices and selling activity. Craigslist alleges illegally used its harms their domestic markets. Those in COPYRIGHT Supap Kirtsaeng listings, infringing on its ownership favor of the “gray market” assert the fi rst legally purchased rights. One of these organizations has sale doctrine as a defense. The fi rst sale foreign-made textbooks abroad and used responded with antitrust claims against doctrine “permits the owner of a lawfully websites to sell the books to domestic Craigslist, raising issues about how purchased copyrighted work to resell consumers without the copyright information posted on the Internet can it without limitations imposed by the holder’s permission, raising questions be used by third parties. copyright holder,” according to the U.S. about the status of copyright protection Court of Appeals for the Second Circuit’s for goods made elsewhere and sold in U.S. Supreme Court Addresses decision in the case. the United States. Whether Legally Purchased The petitioner, Supap Kirtsaeng, is a Infringing activity online was also Copyrighted Works Can Be Resold in Thai student who was studying at Cornell examined in a pair of illegal music the U.S. Under the First Sale Doctrine University in 1997 and later moved to downloading cases. After several years The U.S. Supreme Court heard California to pursue a doctoral degree. of litigation in various courts, damage arguments in Kirtsaeng v. John Wiley & His parents and friends legally purchased awards appear decided against two Sons, No. 11-697, on Oct. 29, 2012. The and sent him textbooks published by the illegal online music downloading and case presents the issue of whether it is respondent, Wiley, that had been both sharing defendants, Joel Tenenbaum and legal for individuals to buy textbooks and printed and purchased abroad between Copyright, continued on page 9

Open records, continued from page 7 Declassifi cation Center, the agency in can “support” the process of preparing declassifying government documents, charge of the effort. The group released the responses. However, some open found that almost 70 percent of federal a progress report in July 2012, stating government advocates argue that the use agencies have not updated their FOIA that the center had reviewed less than 14 of contractors creates a problem, as the regulations, despite encouragement from percent of the documents. companies are not directly subject to the U.S. Attorney General Eric Holder in a “I don’t like to admit defeat, so I really rules of FOIA. memorandum issued March 19, 2009. absolutely must not say that we will “If I was in charge of an agency and Some of the agencies that did update not meet the deadline,” Shenberger told wanted to create an unaccountable FOIA their regulations did so in manner The Post for its August story. “I would process, the fi rst thing I would do is put contrary to the current law or Obama’s prefer to say that we’re going to show an outside contractor in charge of it promise of transparency, according to great progress, and we will absolutely because fewer of our accountability laws the group. The full text of the report accomplish certain steps in our apply to them,” John Wonderlich, policy is available online at http://www.gwu. progress. But if a person only associates director at the Sunlight Foundation, edu/~nsarchiv/NSAEBB/NSAEBB405/. accomplishment of the goal with all an open records advocacy group, told “There’s no hammer,” 372 million pages made available to the Bloomberg News for an Oct. 8, 2012 Patrice McDermott, director of public, no.” story. “It would just be another layer OpenTheGovernment.org, a group of Shenberger pointed, in part, to a lack between me and the public.” open government advocates, told The of resources as the cause of the delay. A lack of enforcement mechanisms Washington Post for a Dec. 4, 2012 Other agencies with limited resources also contributes to unanswered and late story. “There doesn’t seem to be any for FOIA responses outsource parts responses to FOIA requests. Under the repercussions, and no one is holding of the process to private contractors. Act, agencies are required to answer these agencies accountable. Nobody in The contractors are given authority within 20 days, but noncompliance the government is holding their feet to to request the documents and provide situations are generally undocumented the fi re.” recommendations to the agency about and only addressed if the media or how much information can be released. watchdog groups point them out. In – EMILY MAWER FOIA does not allow the contractors addition, an audit released in December SILHA RESEARCH ASSISTANT to approve the agency responses to 2012 by the National Security Archive, requests, but the private companies a nonprofi t organization dedicated to 8 Copyright, continued from page 8 a foreign distributor selling works Google, Costco and other companies originally sold abroad but manufactured 2007 and 2008. The books were foreign involved in online and discount selling in the United States could assert the fi rst editions that differed from the versions that offer low prices on goods made sale doctrine as a defense. The Second sold in the United States in their “design, abroad have expressed concern about Circuit distinguished Kirtsaeng from supplemental content… and the type and the impact of a restriction on where Quality King because, unlike the goods quality of materials used for printing.” foreign-made goods can be sold, in Quality King, the works at issue in The foreign editions included legends according to an Oct. 29, 2012 story in Kirtsaeng were not manufactured in the designating that the books were for sale Huffi ngton Post. In addition, librarians United States. 654 F. 3d 210 (2011). only in particular locations. One legend are concerned that a ruling that the fi rst The U.S. Supreme Court heard a read, for example, “Authorized for sale in sale doctrine does not apply to works similar case in 2010 but did not fully Europe, Asia, Africa and the Middle East made abroad would limit or eliminate resolve the issues, as the court was Only. This book is authorized for sale their ability to lend such materials. The in Europe, Asia, Africa and the Middle Library Copyright East only [and] may not be exported. Affi rming the Second Circuit’s decision Alliance, which represents Exportation from or importation of “would mean that libraries conceivably this book to another region without the information Publisher’s authorization is illegal and could not lend books that were printed professionals and is a violation of the Publisher’s rights. libraries across abroad — not only books from foreign the United States The Publisher may take legal action to publishers, but American-published enforce its rights. The Publisher may and in Canada, recover damages and costs, including books that are merely printed overseas.” submitted an but not limited to lost profi ts and amicus brief to the attorney’s fees, in the event legal action — Jonathan Band Supreme Court on July 3, 2012. The is required.” Attorney for The Library Copyright Alliance Kirtsaeng sold the books in the United author of the brief, States on commercial Internet websites, attorney Jonathan including eBay, an online auction Band, spoke with split in its decision. The case, Costco website. The trial court determined that Publishers Weekly for a May 25, 2012 Wholesale Corp. v. Omega, S.A., involved Kirtsaeng earned revenues of $1.2 million story. Affi rming the Second Circuit’s Swiss-made Omega watches, which a in his PayPal account from the sales of decision “would mean that libraries New York company imported and sold the books. PayPal is a service that allows conceivably could not lend books that to Costco. 131 S.Ct. 565 (2010). Costco users to make and receive monetary were printed abroad — not only books then sold the watches to its customers payments online. from foreign publishers, but American- at much lower prices than the going Wiley fi led suit against Kirtsaeng in published books that are merely printed rate for Omega watches manufactured the U.S. District Court for the Southern overseas,” Band said. The full amicus domestically. The U.S. Court of Appeals District of New York in 2008. A jury brief is available online at http://www. for the Ninth Circuit held that, for awarded Wiley damages of $600,000 librarycopyrightalliance.org/bm~doc/lca- purchases of goods outside the United after fi nding that Kirtsaeng sold foreign- kirtsaeng-brief-3july2012.pdf. States, the fi rst sale doctrine is not made textbooks in the domestic market However, other organizations fi led a defense to copyright infringement, without permission. amicus briefs in support of Wiley’s which the U.S. Supreme Court affi rmed. The Second Circuit held that “the fi rst position. The Association of American However, Justice Kagan recused herself sale doctrine does not apply to works Publishers (AAP), the principal trade because she signed a brief advocating manufactured outside” the United States organization of the publishing industry, Omega S.A.’s position in her prior based on an analysis of the relevant text was among those groups who submitted role as Solicitor General of the United of the Copyright Act, § 109(a), which is a friend-of-the-court brief encouraging States, and the court handed down a 4-4 the basis for the fi rst sale doctrine. The the Supreme Court to affi rm the Second decision, making it only binding on the doctrine allows a purchaser of a work Circuit’s decision. AAP argued that Ninth Circuit. By granting certiorari in to resell it without any limits imposed overturning the decision and applying Kirtsaeng, the Supreme Court should by the copyright holder. Because the the fi rst sale doctrine to works made resolve the question “of how the fi rst text of the statute includes the phrase abroad would cause domestic markets to sale doctrine and §602 [of the Copyright “lawfully made under this Title,” the be “superseded by lower-priced copies Act] apply to copies of copyrighted court determined that the phrase “refers created for and previously sold in foreign works made and legally acquired abroad, specifi cally and exclusively to works markets,” to be “collected and resold en then imported into the United States,” that are made in territories in which masse in the U.S.” The full text of AAP’s according to an Apr. 27, 2012 post by the Copyright Act is law, and not to amicus brief is available online at http:// McDermott, Will, & Emery intellectual foreign-manufactured works.” The court www.publishers.org/_attachments/docs/ property attorneys Paul Devinsky and also relied on the U.S. Supreme Court’s press/kirtsaeng-v-wiley_aap-amicus.pdf. Rita Weeks on the Chicago law fi rm’s decision in Quality King v. L’anza During oral arguments before the website. The Supreme Court’s full Research International, Inc, 523 U.S. court on October 29, the justices opinion in Costco Wholesale Corp. v. 135 (1998). In Quality King, copyrighted asked diffi cult questions of both sides, Omega, S.A. is available online at http:// works manufactured in the United States particularly Justice Elena Kagan, who supreme.justia.com/cases/federal/ were exported abroad, then imported is considered as the swing vote by us/562/08-1423/percuriam.html. back into the domestic market, and sold commentators because she recused A number of industries have taken without the permission of the copyright an interest in the case. Goodwill, eBay, owner. The Supreme Court held that Copyright, continued on page 10 9 Copyright, continued from page 9 the court denied certiorari, the $675,000 sued young and low-income consumers herself from the Omega case. Ronald judgment in favor of the industry group, for large sums of money.” Paulson wrote Mann, professor of law at Columbia the Recording Industry Association of that the RIAA’s new strategy involves University, shared his observations of America (RIAA), stands. “working with Internet service providers the arguments in an October 31 post for Tenenbaum’s attorney, Harvard to identify illegal fi le-sharing and to cut SCOTUSblog. Mann said that the justices, Law Professor Charles Nesson, told off service to offenders.” (For more although tough on both sides, focused the First Amendment Center “he was on the history of Tenenbaum’s case, mostly on the consequences of Wiley’s disappointed the high court wouldn’t see “Updates: Punishments for Music proposition that goods manufactured hear the case,” but that the First Circuit Copyright Infringers” in the Fall 2010 abroad cannot be legally sold in the “instructed a new federal judge to issue of the Silha Bulletin and “Juries United States without the copyright consider reducing the award without Assess Large Damages against Music File holder’s permission. Justice Stephen deciding any constitutional challenge” Sharers in Minnesota and Massachusetts” Breyer called the potential consequences to the Copyright Act for a May 21, in the Summer 2009 issue of the Silha of a decision in Wiley’s favor a “parade 2012 story. Tenenbaum argued that the Bulletin.) of horribles,” and specifi cally cited the Copyright Act was unconstitutional as example of an imported Toyota car with applied to him because it should not Eighth Circuit Maintains Damages a copyrighted stereo system, suggesting apply to cases of “consumer copying,” in Capitol Records et al. v. Thomas- the car could not be legally resold in the situations in which consumers illegally Rasset United States under Wiley’s view. download songs that would cost them 99 In a Sept. 11, 2012 decision, the U.S. The U.S. Government also argued cents to purchase legally and share them Court of Appeals for the Eighth Circuit before the court as amicus curiae on with other consumers. Tenenbaum also reinstated a damages award of $222,000 behalf of Wiley. But Deputy Solicitor argued that the damages award violated against Jammie Thomas-Rasset, one General Malcolm Stewart conceded his due process rights. of two people to take a lawsuit for during oral argument that the negative Later in the summer, on remand illegal downloading and fi le-sharing of consequences that would result from from the First Circuit, Judge Rya music to a jury trial. Thomas-Rasset’s Wiley’s position, like Justice Breyer’s W. Zobel considered the issue of case has a complex procedural history Toyota car example, would be a worse whether to reduce the damages against marked by three separate jury trials with outcome than the “frustration” of Tenenbaum under the doctrine of damages awards ranging from $54,000 to publishers’ attempts to geographically remittitur, Bloomberg reported on Aug. $1.92 million. Capitol Records et al., v. segment their markets. Mann wrote, 28, 2012. The doctrine of remittitur Thomas-Rasset, 692 F.3d 899, 2012 U.S. “…[O]ne thing is certainly clear: the allows the court to reduce an award App. LEXIS 19040 (8th Cir. 2012). (For publishers did not win over any new by a jury that seems excessive under more on the history of Thomas-Rasset’s votes with the argument today, and the the circumstances. Zobel determined case, see “Updates: Punishments for government’s concession that it could in an Aug. 23, 2012 decision that under Music Copyright Infringers” in the Fall not accept the publisher’s position well the “stringent standard” established for 2010 issue of the Silha Bulletin and might have sealed their defeat.” The common law remittitur, Tenenbaum did “Juries Assess Large Damages against full transcript and audio of the oral not have a basis for such a claim because Music File Sharers in Minnesota and argument is available at http://oyez.com/ “a rational appraisal of the evidence Massachusetts” in the Summer 2009 cases/2010-2019/2012/2012_11_697. before the jury, viewed in the light most issue of the Silha Bulletin.) favorable to the verdict, supports the Chief U.S. District Court Judge for Two U.S. Cases of Illegal damages award.” Sony BMG Entm’t the District of Minnesota Michael Davis Downloading and Filesharing of v. Tenenbaum, 2012 U.S. Dist. LEXIS reduced a jury award of $222,000 to Music Result in Large Damages 119243 (D. Mass., Aug. 23, 2012). The full $54,000, according to a Sept. 12, 2012 Awards, While the Canadian High text of Zobel’s order is available online at story in the Minneapolis Star Tribune. Court Changes its System of http://www.scribd.com/doc/103737792/ However, writing for a unanimous panel Royalties Entirely Sony-BMG-v-Tenenbaum-Order- of three judges, U.S. Court of Appeals for August-23-2012. the Eighth Circuit Judge Steven Colloton U.S. Supreme Court Refuses to Hear Considering the implications of wrote that the district court erred in Tenenbaum v. Sony BMG Music, et Tenenbaum’s case, First Amendment reducing damages to $54,000 and that the al. Center President Ken Paulson wrote in “award of $9,250 per each of twenty-four In its orders for May 21, 2012, the a May 21, 2012 commentary that future works is not so severe and oppressive U.S. Supreme Court denied recent cases like Tenenbaum’s are unlikely. as to be wholly disproportioned to the Boston University doctoral graduate Paulson reported that RIAA sent letters offense and obviously unreasonable.” Joel Tenenbaum’s petition for certiorari about illegal downloading to more Capitol Records, Inc. v. Thomas-Rasset, in Tenenbaum v. Sony BMG Music, than 30,000 people demanding $3,500 799 F.Supp. 2d 999, 2011 U.S. Dist. LEXIS et al., No. 12-2146. The full text of payment, and fi led lawsuits against 85662 (D. Minn. 2011).The full text of the the order is available online at http:// 12,000 people. Two of those cases went opinion is available online at http://www. www.supremecourt.gov/orders/ all the way to a jury trial — Tenenbaum ca8.uscourts.gov/opndir/12/09/112820P. courtorders/052112zor.pdf . and Jammie Thomas-Rasset. However, pdf. Tenenbaum fi led his petition now “[t]he recording industry has Rasset-Thomas told the Associated appealing a $675,000 jury verdict against essentially abandoned the strategy of Press (AP) on Sept. 11, 2012 that she will him for illegally downloading 30 songs suing consumers because of the public- continue to appeal the damages award. and sharing them on a peer-to-peer fi le relations beating it took,” said Paulson. Rasset-Thomas’s lawyer, K.D. Camara, sharing network, Kazaa, according to a “Even with the law on their side, record fi led a petition for a writ of certiorari May 21, 2012 NPR blog post. Because companies looked like bullies when they with the U.S. Supreme Court on Dec.

10 10, 2012, presenting the question, “Is Craigslist Sues for Copyright highly valued service to its users, and there any constitutional limit to the Infringement of its Online Listings; has every right to limit the copying and statutory damages that can be imposed Defendant Responds with an distribution” of its content. “The adage, for downloading music online?” The Antitrust Claim ‘no good deed goes unpunished,’ is U.S. Supreme Court could take several Craigslist.org, a site that has offered fi tting,” the complaint said. Craigslist months to decide whether to hear free online classifi ed advertisements alleges its work to maintain a free the case. The full petition is available since 1995, fi led a lawsuit alleging service for the public without advertising online at http://pub.bna.com/ptcj/ copyright and trademark infringement, is being taken advantage of by ThomasRasset2012Dec10.pdf. among many other claims, against 3Taps “opportunists like 3Taps and PadMapper and Padmapper, according to a July 29, [who] now claim Craigslist’s content is Canadian Rulings Eliminate Some 2012 post in The New York Times’s Bits ‘free’ for them to misappropriate whole Royalties for Downloads of Works blog. Craigslist fi led suit in United States and commercially exploit, even for the Purchased Online District Court for the Northern District purpose of developing rival businesses.” As copyright battles involving of California. The case is Craigslist, Inc. The full text of Craiglist’s complaint music downloading work their way v. 3Taps, Inc. and Padmapper, Inc., case is available online at http://www. through the courts in the United States, number CV-12-3816. scribd.com/doc/100933709/Craigslist-v- Canadian courts recently took a different 3Taps is a company that collects PadMapper. approach. The Supreme Court of Canada data and organizes it for developers of Eric Goldman, director of Santa Clara handed down a series of rulings holding Internet applications to use. Padmapper University’s High Tech Law Institute, that songwriters and music publishers collects apartment rental and sublet spoke with the San Francisco Chronicle may not receive royalties for consumers’ listings from Craigslist and make them about the lawsuit for a Aug. 4, 2012 story. downloads of songs or video games or available online in a digestible map “If the ads are on Google, [Craigslist is] for samples of songs offered by online application. Users of Padmapper view a already releasing the advertisements to music retailers like iTunes. map online and can click pins on the map the wild in a way that releases them to all The court ruled against royalties to learn more about the listed apartment these downfalls,” Goldman said. on the “downloading of music and at that location. In response to Craigslist’s suit, 3Taps video games containing music and on “The listings are already out there. fi led an antitrust claim against Craigslist online previews of songs, but upheld a We’re fi nding them already on the Web in U.S. District Court for the Northern royalty on streaming of music over the and organizing them so other people District of California, according to a Internet.” “The internet should be seen don’t have to do the same thing twice,” Sept. 24, 2012 story in the Times. In a as a technological taxi that delivers Greg Kidd, the chief executive of 3Taps, Sept. 24, 2012 news release, Greg Kidd a durable copy of the same work to told the Times. “And we’re not breaking commented on Craigslist’s action in fi ling the end user,” the court wrote. “The any laws because we are pulling in the its suit against 3Taps and other similarly traditional balance in copyright between facts from the listing; everyone knows situated companies. “As Craigslist promoting the public interest in the you can’t copyright facts.” Section spends heavily to bully and intimidate encouragement and dissemination of 102 of the Copyright Act has been companies that challenge them, works and obtaining a just reward for interpreted to mean that facts cannot be consumers are deprived of better ways the creators of those works should be copyrighted. However, Andrew Mirsky, to fi nd and execute real-time exchange preserved in the digital environment.” a technology and intellectual property transactions,” he said. “Craigslist The court concluded that regardless of attorney, wrote that Kidd’s argument that uses its monopoly position to achieve how a copy of a work is distributed to the facts cannot be copyrighted and are huge annual profi ts without sinking its purchaser, the same restrictions from in the public domain may fail in a Nov. any meaningful costs into research copyrights should apply, whether the 29, 2012 post for the Citizen Media Law and development or innovation.” work is purchased in a store or online. Project. Apartment listings that Craigslist Kidd reiterated that Craigslist’s data The Canadian opinions are available posts, Mirsky wrote, may be protected are public facts, which cannot be online at http://www.documentcloud. by copyright as a “compilation of copyrighted. “Sham copyright claims and org/documents/396573-2012scc34. otherwise public facts” as they combine unenforceable terms of use cannot stand html, http://www.documentcloud. information including the address, when they deceive users, intimidate org/documents/396651-2012scc38. pricing, and more. Craigslist’s terms of innovators or thwart a competitive html, http://www.documentcloud.org/ use may also provide Craigslist with a marketplace,” Kidd said. Craigslist has documents/396652-2012scc35.html, breach of contract claim. The website’s not responded to requests for comment and http://www.documentcloud.org/ terms of use prohibit copying, but Mirsky related to either lawsuit. However, in documents/396653-2012scc36.html. wrote that 3Taps claims it is not bound commenting on a similar case in July Jeremy de Beer, associate professor by the terms of use because it “never 2010, Craigslist founder Craig Newmark at the University of Ottawa, intervened touches Craigslist’s servers to obtain the told the question-and-answer site in the case on behalf of the Canadian data.” Quora, “Actually, we take issue with Internet Policy and Public Interest Clinic. Craigslist has taken similar actions only services which consume a lot of “I think in the medium term we’re going against other websites that make use of bandwidth, it’s that simple.” to see an expansion of online music Craigslist’s data, including shutting down services — legitimate opportunities to access to data or sending cease-and- – CASSIE BATCHELDER buy and sell digital music on the Internet desist letters, according to the July 29, SILHA RESEARCH ASSISTANT — because the process for clearing 2012 report in the Times. the rights got a lot simpler and less The complaint fi led by Craigslist expensive with these judgments,” he told contends that it “provides a unique and CBC News for a July 12, 2012 report.

11 State Limits on Campaign Contributions Remain in Effect for 2012 Election Season; Voters Call for Amendment to Overturn Citizens United espite the Supreme Court according to Montana Attorney General Tradition Partnership, Inc. v. Bullock, of the United States’ 2010 Steve Bullock. Bullock advocated that 132 S. Ct. 2490 (2012) in June, on Oct. 23, ruling in Citizens United v. the law should be upheld, writing that 2012, Justice Anthony Kennedy, on behalf FEC, 558 U.S. 310 (2010), the system of regulations has allowed of the Court, refused to lift the Ninth’s holding that it is a violation Montana elections to be “reasonable Circuit’s order, leaving the limits on Dof the First Amendment to suppress in cost and among the fairest in the corporate spending in place through the corporate campaign spending, several country,” in a June 15, 2012, op-ed November 2012 election. Lair v. Bullock, state limits on campaign fi nances have column for the Los Angeles Times. The No. 12A395, 2012 WL 5201298, 2012 U.S. been upheld by Montana Legislature has also strongly LEXIS 8266 (U.S. Oct. 23, 2012). CAMPAIGN federal appellate supported the regulations in the past. An In the June challenge to the 1912 FINANCE courts, and the amendment decreasing the maximum Montana law, the Supreme Court Supreme Court contributions allowed under the law affi rmed its holding in Citizens United. has declined to weigh in. Meanwhile, at issue passed the Montana House of “The question presented in this case is voter resolutions calling for a federal Representatives 41 to 9 in 2003. S.B. 423. whether the holding of Citizens United amendment to overturn the Citizens The case began in the U.S. District applies to the Montana state law,” the United decision passed in two states with Court for the District of Montana, per curiam (unsigned) majority opinion strong support in November. when a group of Montana corporations wrote. “There can be no serious doubt In September and October 2012, the challenged the law, claiming it violated that it does.” U.S. Court of Appeals for the Seventh, their free speech rights. On Oct. 10, However, the dissent in the 5 to 4 Eighth, and Ninth Circuits upheld state 2012, a senior district judge agreed and decision, written by Justice Stephen campaign contribution limits in Illinois, enjoined the state of Montana from Breyer, said that the decision in Citizens Minnesota, and Montana. Although the enforcing the limits. Lair v. Murry, No. United was a mistake. The decision U.S. Supreme Court ruled in Citizens CV 12-12-H-CCL, 2012 WL 4815411, 2012 did not come as a surprise, even to United that a law banning corporate U.S. Dist. LEXIS 146645 (D. Mont. Oct. those who hoped the case would be an campaign spending violated the 10, 2012). opportunity for the Court to reexamine corporations’ First Amendment right to On Oct. 16, 2012, the Ninth Circuit Citizens United, according to a June 25 support political candidates, the federal overturned the district court’s decision Politico.com story. The story said the appellate courts upheld the contribution and ordered a stay of the injunction until Court’s philosophical make-up has not limits as only marginal restrictions the court could make a decision on the changed since 2010 and thus a chance of on speech supported by a compelling appeal, citing the state of Montana’s overturning the decision “appeared slim.” government interest in fair elections. likelihood of success in the proceeding. The denial of certiorari in the Ninth But, as public support for reversal of the The court noted the effect the injunction Circuit case was also not surprising to Citizens United decision grows, free would have on the fairness of the commentators, as the law involved limits speech advocates have voiced concerns upcoming election and the damage on direct contributions to candidates, at the effect a constitutional amendment that the injunction would cause to the which the Supreme Court has upheld, would have on First Amendment rights. state and the public. “[T]hat harm vastly even after Citizens United. (For more on the Citizens United outweighs any minimal harm that might decision, see “Supreme Court Strikes come to the interested parties who have Eighth Circuit Found a Minnesota Down Campaign Finance Regulation for operated under the established Montana Disclosure Requirement “Most Corporations,” in the Winter/Spring 2010 contribution limits for almost two Likely Unconstitutional,” But issue of the Silha Bulletin.) decades,” Judge Jay S. Bybee wrote for Upholds Ban on Direct Corporate the unanimous three judge panel. Lair v. Donations to Candidates Ninth Circuit Upholds Montana’s Bullock, No. 12-35809, 2012 WL 4883247, On Sept. 5, 2012, the U.S. Court Campaign Contribution Limits; U.S. 2012 U.S. App. LEXIS 21643 (9th Cir. Oct. of Appeals for the Eighth Circuit Supreme Court Refuses to Overturn 16, 2012). supported the challenge to a Minnesota On Oct. 16, 2012, the U.S. Court of Bullock called the Ninth Circuit’s law requiring disclosure of corporate Appeals for the Ninth Circuit upheld decision “an important victory for political spending, writing that the law is a Montana law regulating the amount all Montanans, regardless of party “most likely unconstitutional.” The law that individuals, political committees, affi liation.” In an October 17 interview requires companies and organizations and political parties can contribute with the Associated Press (AP), Bullock that raise or spend more than $100 per to candidates for state offi ce, citing said, “Montanans put a high value on year to keep detailed records of political a compelling government interest in the integrity and fairness of our election contributions and expenditures. The preserving the integrity of the electoral system, and the court has allowed us to group is also required to fi le regular process. Montana Code § 13-37-216. maintain our citizen democracy, rather reports with the state. Violating groups Passed in 1972, the Montana than putting our elections up for auction face fi nes and individuals could face regulation is part of a long series of to the highest bidder.” prison time of up to fi ve years. Minn. campaign fi nance and disclosure rules Although the U.S. Supreme Court Stat. § 10A.12, subdiv. 1a. in the state, dating back to the Corrupt struck down the 1912 ban on Montana Like Montana, Minnesota has a long Practices Act of 1912, § 13-35-227(1), corporate political spending in American history of campaign fi nance restrictions. 12 According to a Minnesota Senate District of Illinois denied the motion effective public relations campaign by treatise, in a 1974 response to Watergate, for a preliminary injunction, citing the focusing on free speech for corporations Minnesota strengthened its campaign potential for corruption if the limits were and ignoring other benefi ciaries of fi nance limits, enacting several laws removed just a few weeks prior to the the decision, such as news media — including the challenged disclosure November election. A three-judge panel organizations. “The question is whether requirement. Former Senate Counsel and of the Seventh Circuit affi rmed later that speech that goes to the very heart General Counsel to Gov. Mark Dayton, month, writing that the plaintiffs “have of government should be limited to Peter Wattson, who wrote the treatise, not shown that they are likely to succeed certain preferred corporations; namely, said that “Minnesota has long been a on the merits of their challenge to media corporations,” Alito said at the leader in campaign fi nance reform.” contribution limits.” Ill. Liberty PAC v. November 15 event. “Surely the idea In a 6 to 5 decision, the Eighth Circuit Madigan, No. 12-3305, 2012 WL 5259036, that the First Amendment protects only remanded the case to the U.S. District 2012 U.S. App. LEXIS 22743 (7th Cir. Oct. certain privileged voices should be Court for the District of Minnesota, 24, 2012). disturbing to anybody who believes in stating that the law violates the right Diane Cohen, general counsel for free speech.” to free speech and the challengers are the Liberty Justice Center, the group In 2011 and 2012, federal legislators “likely to win on their First Amendment that fi led the challenge on behalf of the introduced 14 constitutional claim.” Writing for the majority, Chief Liberty Political Action Committee, said amendments to overturn the Judge William Jay Riley wrote that the she was not surprised by the decision. controversial case, 11 in the U.S. House law hinders and discourages associations “We knew it was going to be an uphill of Representatives and three in the U.S. from participating in “protected political battle,” Cohen said in an October 25 Senate. However, despite the proposal speech.” “Under Minnesota’s regulatory Reuters report. of six campaign fi nance amendments in regime, an association is compelled 2010, an amendment has yet to pass and to decide whether exercising its Voters Call for Amendment to congressional support for the current constitutional right is worth the time and Overturn Citizens United in proposals is unclear. expense of entering a long-term morass Montana, Colorado The resolutions at the state level of regulatory red tape,” Riley wrote. Following the November 2012 are not binding, but supporters hope Minn. Citizens Concerned for Life, Inc. election, resolutions calling for a federal to encourage Congress to act by v. Swanson, 692 F.3d 864 (8th Cir. 2012). constitutional amendment to overturn demonstrating the widespread support In the decision, the Eighth Circuit Citizens United passed in both Montana for an amendment. Derek Cressman also upheld the district court’s decision and Colorado with more than 70 percent said he had already received calls to deny a preliminary injunction of a approval. The resolutions are the fi rst from people looking to pass similar Minnesota law prohibiting corporations of their kind to win approval from resolutions in other states. from directly donating to candidates. voters. Twelve states have acted to show However, it is a long road to pass a Minn. Stat. § 211B.15, subdiv. 2. The support for the reversal of Citizens constitutional amendment. The proposal court quoted the Supreme Court’s 2003 United, either through a resolution would need to pass both bodies of decision in FEC v. Beaumont, 539 U.S. passed by the state legislature, a letter Congress with two-thirds support and 146 (2003), writing that from the state legislature to Congress, then would require ratifi cation from 38 “[R]estrictions on contributions require or a voter referendum. The states who state legislatures. less compelling justifi cation than have taken such actions are: California, Despite the recent wave of public restrictions on independent spending.” Colorado, Connecticut, Hawaii, support, some First Amendment The court wrote that the Minnesota Maryland, Massachusetts, Montana, advocates worry about the effect a law allowed corporations to establish a New Jersey, New Mexico, Rhode Island, possible amendment would have on free political action committee to participate Vermont, and Washington. speech. In response to an amendment in the political arena, therefore balancing Many of the state resolutions passed proposed by U.S. Reps. John Conyers the corporation’s right to free speech with bi-partisan support and the votes (D-Mich.) and Donna Edwards (D-Md.), with the government’s interest in in Montana and Colorado also showed Gene Policinski, executive director of regulating campaign activity in the widespread approval of an amendment, the First Amendment Center, wrote a pursuit of fair elections. as Colorado is a swing state and Montana Sept. 21, 2011 column warning of the is typically a red, or conservative, state. threat the amendment posed to free Seventh Circuit Upholds Illinois “The results are pretty unequivocal speech. “Few likely would debate the Limits on Campaign Contributions that no matter if you’re a Democrat or motive that Conyers and Edwards say On Oct. 24, 2012, the U.S. Court a Republican or an Independent you’re is behind the proposed amendment: of Appeals for the Seventh Circuit pretty mad about Citizens United,” fair elections, honest government,” upheld a 2009 Illinois law that limits Derek Cressman, who helped author the Policinski wrote. “But good intentions political contributions from individuals Montana and Colorado resolutions, said don’t justify ignoring a basic concept to $5,000, contributions from unions in a Nov. 7, 2012, Huffi ngton Post story. that the Supreme Court majority pointed and corporations to $10,000, and However, U.S. Supreme Court out in its ruling: Nothing in the First contributions from political action Justice Samuel Alito, a supporter of the Amendment provides for ‘more or less’ committees to $50,000. 10 Ill. Comp. Citizens United decision, criticized free-speech protection depending on Stat. 5/9-8.5 (2009). The Illinois Liberty the push for an amendment in a speech who is speaking.” Political Action Committee brought at the Federalist Society’s National suit alleging that the limits violated Lawyers Convention on Nov. 15, 2012 – EMILY MAWER the First Amendment. On October 5, in Washington D.C. Alito said that SILHA RESEARCH ASSISTANT the District Court for the Northern opponents of the opinion created an

13 Courts Struggle to Balance Privacy and Transparency Interests in Recent FERPA Cases Writing for the majority in a 4 to 3 An Illinois newspaper, the State ecent court decisions high- decision, Justice Edward Mansfi eld Journal-Register, appealed another light the tension between stated that if the records were released, recent ruling upholding a university’s open records laws and the the university could face losing millions application of FERPA on Sept. 21, 2012. Family Educational Rights in federal funding for violating FERPA. The newspaper had requested records re- and Privacy Act (FERPA). Mansfi eld added that redacting identify- garding the resignation of two University RAlthough a North Carolina judge and a ing information, as suggested by the of Illinois softball coaches. The coaches Utah public records committee recently district court, was not an option in this resigned, citing other opportunities; ordered the release of university records, case, because the public already knew however, two days later the university re- three cases this the names of the students involved. leased a letter suggesting that one of the year have held that Several news media groups, including coaches engaged in inappropriate sexual FERPA schools can with- the AP, submitted an amicus brief urging behavior with several female students, hold athletic pro- the court to release the records. Lawyers according to a September 21 Student gram documents for the group argued that withholding Press Law Center (SPLC) story. based on FERPA. The decisions have documents based on public knowledge In August 2012, Jersey County Circuit led open records advocates to call for of the students’ identities could “discrim- Judge Eric Pistorius ruled that FERPA FERPA reform to better balance privacy inate against those granted public infor- prohibited the release of most of the and transparency concerns. mation and outright chill some persons requested documents, as they were con- from exercising their rights to inspect sidered education records. Judges in Iowa, Ohio, and Illinois public records,” according to the AP. The attorney representing the State Cite FERPA in Rulings to Keep Senior editor of the Press-Citizen, Journal-Register, Don Craven, told the Records Private Tricia Brown, said she was disappointed SPLC that he does not believe FERPA Three recent court decisions held by the ruling, but appreciated that the should have prevented the release of the that FERPA requires universities to keep litigation did cause the release of some documents. athletic records sealed, raising concerns additional documents. “The university “[The university is] not telling us what among open government advocates that made a lot of changes in light of this case they knew,” Craven said. “Are they pro- the law is being used as an excuse for with their administration and their poli- tecting themselves or do they not want universities to withhold unfl attering cies,” Brown said in the July 16 AP story. us to know what happened? Do they information. “Had no one pushed to see these docu- want the story to go away? I don’t know.” FERPA, also known as the Buck- ments, those changes may never have ley Amendment, 20 U.S.C. § 1232, was happened,” she said. North Carolina Judge, Utah passed in 1974 and generally requires In a similar ruling, the Ohio Supreme Committee on Public Records that a school obtain written consent Court held that documents related to the Order Release of University Records from a student or parent before releas- 2011 Ohio State football team scandal Not Related to Education ing any information from the student’s were protected by FERPA on June 19, On Aug. 9, 2012, a North Carolina “education record.” Federal funds may 2012. The scandal involved an investi- state judge held that FERPA does not be denied to schools that fail to follow gation of players who allegedly traded apply to records regarding prohibited the FERPA regulations, which appear at sports memorabilia for tattoos, accord- benefi ts received by University of North 34 C.F.R. § 99.1. ing to a June 19 AP report. ESPN brought Carolina student athletes, as the docu- On July 16, 2012, the Iowa Supreme the suit seeking the release of the ments do not pertain to education. Court held that the University of Iowa documents. The court unanimously held Superior Court Judge Howard Man- can withhold records related to a 2007 that the university had correctly applied ning ordered the university to release the sexual assault incident involving two FERPA in withholding the information. “statements of facts” and reinstatement university football players. The decision ESPN v. Ohio State Univ., 970 N.E.2d requests regarding the athletes the NCAA was the fi rst of its kind in Iowa, accord- 939 (Ohio 2012) (For more on ESPN v. declared ineligible to play based on the ing to a July 16 Associated Press (AP) Ohio State Univ. see “School Privacy accusations. report. Press-Citizen Co., v. Univ. of Law Changes Could Challenge Media,” “Just as in the case of parking tickets, Iowa, 817 N.W.2d 480 (Iowa 2012). in the Summer 2011 issue of the Silha this kind of misbehavior has nothing The Iowa City Press-Citizen request- Bulletin.) to do with education,” Manning wrote. ed the records at issue, which included The court noted that Ohio State Uni- “This kind of behavior (impermissible internal university correspondence, after versity receives about 23 percent of its benefi ts – non-academic) does not relate the victim’s mother accused school offi - revenue from federal funds. “Ohio State, to the classroom, test scores, grades, cials of being insensitive and attempting having agreed to the conditions and ac- SAT or ACT scores, academic standing to cover up the incident. In response, the cepted the federal funds, was prohibited or anything else relating to a student’s school released 18 pages of documents, by FERPA from systematically releasing educational progress or discipline.” but the newspaper fi led suit seeking education records without parental con- Andy Thomason, the editor-in-chief of further disclosure. During the litigation sent,” the court wrote in a per curiam the student newspaper that fi led the suit, the university released 950 more pages, (unsigned) decision. The court did the Daily Tarheel, said he was pleased according to the AP, and the Iowa state require the university to grant access to with the decision. “It just affi rms our District Court ordered the disclosure of a few records that could be redacted to conviction all along that UNC is using hundreds more documents. The univer- eliminate personally-identifi able informa- sity appealed the decision. tion. FERPA, continued on page 15 14 Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Reviews ovel questions about the Minnesota Court of Appeals Over- was fi red from that position. The Uni- First Amendment and the turns $60,000 Jury Verdict for versity of Minnesota’s Urban Research law of defamation related Tortious Interference with Contract and Outreach-Engagement Center then to speech individuals post Against a Local Blogger hired Moore in 2009 to study mortgage online have come before An Aug. 20, 2012 decision from foreclosures. After Hoff learned the uni- MinnesotaN courts in recent months. The the Minnesota Court of Appeals in versity hired Moore, he penned a blog Minnesota Court of Appeals reversed a Moore v. Hoff, No., A11-1923, 2012 WL post alleging that Moore was involved $60,000 jury verdict for tortious inter- 3553180 (Minn. Ct. App. Aug. 20, 2012), in a fraudulent mortgage resulting in ference against John “Johnny North- overturned a jury verdict against John a 16-year prison sentence for Larry side” Hoff after a statement he posted Hoff, a north Minneapolis resident who Maxwell, a real estate agent. Moore on his blog resulted in the subject’s writes a blog about local issues entitled was not criminally charged in that case. fi ring. In addition, “The Adventures of Johnny Northside.” The post in question read, “[Moore]— DEFAMATION the Minnesota A jury previously found Hoff liable for who has been a plaintiff in a lawsuit Supreme Court tortious interference with a contract against JACC [Jordan Area Community heard arguments after truthful statements on Hoff’s blog Council], and was fi red from his execu- in a case in which a doctor’s alleges pa- resulted in the plaintiff, Jerry Moore, tive director position for misconduct, tient’s son posted a defamatory review being fi red from his job. (fi stfi ght, cough cough) is nothing if of the doctor online. Moore formerly directed a commu- not a controversial fi gure in the Jordan nity council in north Minneapolis and Defamation, continued on page 16

FERPA, continued from page 14

FERPA inappropriately,” Thomason said of open records laws. SPLC Executive disclosure of any covered record to the in an August 9 SPLC report. “We’re very Director Frank LoMonte says FERPA student mentioned in the document. pleased and we think it’s a good sign. We may even be declared unconstitutional if According to LoMonte, if schools be- hope to get those records.” challenged, following the U.S. Supreme gin to receive an abundance of requests In another recent ruling, the Utah Court’s healthcare ruling in National for FERPA records, the institutions will State Records Committee, an appeals Federation of Independent Business v. be forced to narrow their defi nitions of board for the denial of Utah public Sebelius in June 2012. Nat’l Fed'n Indep. personal educational records that are records requests, determined that testi- Bus. v. Sebelius, 132 S. Ct. 2566 (2012) protected by the law. mony and text messages documenting In the healthcare case, the Supreme “Those videotapes and emails and the inappropriate relationship between a Court struck down what it called a “gun parking tickets — documents commonly student and a former high school football to the head” threat of the loss of federal misclassifi ed as FERPA records even coach were not protected by FERPA. The Medicaid dollars to compel states to when they contain no legitimately private Granite School District originally denied comply with a federal policy decision. information — suddenly won’t be FERPA the records request from The Salt Lake LoMonte wrote, in a September 13 SPLC records when hundreds of students show Tribune, and at an Oct. 11, 2012 hearing, column, that the threat of losing federal up demanding to inspect and correct argued that the records were protected funding due to a FERPA violation is them,” LoMonte wrote in his October 9 by FERPA, according to an October 12 a similar proposition for universities. SPLC column. SPLC report. LoMonte offered the example of the Regardless of the success of the In a 3 to 2 decision, the committee University of Illinois, which receives 19.1 SPLC’s campaign or FERPA’s treatment ordered the release of the records after percent of its operating revenues from in courts, the Act’s sponsor said it is used fi nding they could not be considered federal sources. The loss of this income today in ways that he did not anticipate. educational records under the Act. following a FERPA violation would be Former U.S. Sen. James Buckley (Con- Despite these victories for open potentially fatal for the university, ac- servative-N.Y.), the principal sponsor of government, the wave of cases that pro- cording to LoMonte. Thus, he argued that FERPA, told the Register-Guard of Eu- tected university records has led open FERPA does not give universities an ac- gene, Ore. that the original intent of the records advocates to call for FERPA tual choice of whether to follow FERPA’s law was simply to allow parents access reform. (For more on FERPA and public guidelines, as violations would drasti- to their children’s academic records and universities see “School Privacy Law cally reduce funding, making it unconsti- to keep those documents private from Changes Could Challenge Media,” in the tutional under the healthcare ruling. others. Summer 2011 issue of the Silha Bulletin.) However, the SPLC is not waiting “One thing I have noticed is a pattern for the courts to take action on FERPA. where the universities and colleges have Open Records Advocates Call for On Oct. 9, 2012 the SPLC launched a used it as an excuse for not giving out FERPA Reform to Promote campaign called “Let’s Break FERPA.” any information they didn’t want to give,” Transparency The initiative encourages students to Buckley said. Open Government advocates have use FERPA to request their own records. – EMILY MAWER accused universities of using FERPA to In addition to protecting the privacy of SILHA RESEARCH ASSISTANT shield themselves from the obligations education records, the Act also requires 15 Defamation, continued from page 15 interference, explaining that, to prove and socially valuable, may not come neighborhood . . . Repeated and specifi c tortious interference with a contractual without a price,” Maytal wrote. evidence in Hennepin County District relationship, the plaintiff must estab- The time period for Moore to appeal Court shows [Moore] was involved with lish: (1) that a contracts existed; (2) the the appellate court’s decision to the a high-profi le fraudulent mortgage at defendant’s knowledge of the contract; Minnesota Supreme Court has passed 1564 Hillside Ave. N.” The University (3) intentional accomplishment of the without a fi ling from Moore, so the rul- of Minnesota fi red Moore after receiv- contract’s breach; (4) without justifi ca- ing will stand. ing an email from another blogger, Don tion; and (5) damages to the plaintiff. Allen, and after Hoff’s blog post was “Hoff's blog post is the kind of speech Duluth Doctor’s Claim for published. Allen’s email was also posted that the First Amendment is designed Defamation Based on an Online in the comments section of Hoff’s blog. to protect,” Flaskamp Halbrooks wrote. Review Reaches the Minnesota Moore sued Allen, in addition to Hoff, “He was publishing information about a Supreme Court as a result of his fi ring, but Allen settled public fi gure that he believed was true Displeased by the treatment his before the case went trial and testifi ed (and that the jury determined was not father received in the hospital, Dennis against Hoff. false) and that involved an issue of pub- Laurion took his complaint online. Lau- In Hennepin County District Court, rion wrote a re- Moore’s claim for defamation was “It’s important to have a strong view of Dr. David dismissed. However, in March 2010 McKee, a neurolo- a jury found Hoff liable for tortious re-affi rmation of the principle that gist who treated interference with a contract, which truthful speech does not support a his father at St. Luke’s Hospital occurs when one party intentionally lawsuit for tortious interference.” damages another party’s contractual in Duluth, Minn. relationships. But the jury found that following a stroke, Hoff’s statements about Moore were not — John Borger on a rate-your- false. The jury awarded Hoff $35,000 for Attorney, Faegre Baker Daniels doctor website. lost wages and $25,000 for emotional Laurion wrote distress. After the trial, Hoff and his in the online attorney, Paul Godfread, moved for a review that his new trial. District Court Judge Denise lic concern . . . Attaching liability to this family was displeased with McKee’s Reilly denied the motion and Hoff fi led speech would infringe on Hoff's First “bedside manner.” The review read, an appeal with the Minnesota Court of Amendment rights.” The decision from “When I mentioned Dr. McKee's name Appeals. (For more on the background the court of appeals is available online to a friend who is a nurse, she said, ‘Dr. of the case, see “Defamation Lawsuits at http://www.medialaw.org/images/me- McKee is a real tool!’” according to a Pose Threat to Journalists as Online dialawdaily/hoff.pdf. March 24, 2012 story in the Minneapo- Communication Complicates First “It’s important to have a strong re- lis Star Tribune. Laurion’s complaint Amendment Analysis” in the Spring affi rmation of the principle that truthful focused on Dr. McKee’s “body language 2012 edition of the Silha Bulletin and speech does not support a lawsuit for and comments” when he treated Lau- “Outrageous Speech, ‘Trash Torts’ and tortious interference,” Borger said in rion's father on April 20, 2010. the First Amendment” in the Winter/ an interview with online news source McKee reportedly read the com- Spring 2011 edition of the Silha Bul- Twin Cities Daily Planet for a June 5, ments online after another patient letin.) 2012 story. “We think it is important to alerted him to their existence. McKee Godfread and media attorney Mark recognize and reaffi rm when speech is responded by fi ling a lawsuit for defa- Anfi nson argued on Hoff’s behalf before involved and the First Amendment is mation and sought more than $50,000 the Minnesota Court of Appeals. John involved, that the reviewing court needs in damages in district court in Duluth. Borger and Leita Walker, partner and to apply an independent standard of He claimed he has spent $7,000 attempt- associate, respectively, at Faegre Baker review looking at all the evidence.” ing to eliminate the comments from Daniels, submitted an amicus brief on Itai Maytal, an associate attorney the Internet. “It's like removing graffi ti behalf of the Silha Center, the Minne- with Miller Korzenik Sommers and a from a wall,” McKee’s lawyer, Marshall sota chapter of the Society of Profes- former First Amendment Fellow with Tanick, a partner with Mansfi eld, Tanick sional Journalists, and the Reporters The New York Times Company, said the & Cohen, P.A. told the Star Tribune. He Committee for Freedom of the Press. case offered a “welcome vindication of argues Laurion has continued to distort The amicus brief is available online at the general principle that truth is an ab- the facts of the situation, both online http://www.silha.umn.edu/assets/pdf/ solute defense to a claim for defamation and in complaints he has fi led with vari- Moore_vs_Hoff.pdf. and to claims for tortious interference ous medical groups since the original Writing for the appellate panel, Judge with a contract or prospective business online complaint. “He put words in Jill Flaskamp Halbrooks said, “Because advantages arising out of an allegedly the doctor's mouth,” and made McKee the jury’s verdict is contrary to estab- defamatory statement,” in an Aug. 30, “sound uncaring, unsympathetic or just lished law and appellant’s alleged tor- 2012 commentary for Citizen Media stupid.” tious acts are too intertwined with con- Law Project. “But, it is troubling in as In St. Louis County District Court stitutionally protected conduct to avoid much as the defendant had to incur the in Duluth, District Judge Eric Hylden infringing on appellant’s First Amend- time and expense of a jury trial and an agreed with Laurion, writing, “The state- ment rights, we reverse and remand.” uncertain appeal in order to receive the ments in this case appear to be nothing The court reasoned that the non-defam- relief he was entitled. In that respect, more or less than one man's description atory statement made by Hoff could not it offers the cautionary tale to bloggers of shock at the way he and in particular serve as the basis for a claim of tortious that reporting the truth, while important his father were treated by a physician.” 16 Hylden dismissed McKee’s lawsuit in “We asked the court to affi rm the deci- Online reviews of other businesses April 2011. The Minnesota Court of sion of the Court of Appeals so that Dr. and services have resulted in lawsuits Appeals, however, disagreed. The court McKee has the opportunity to present alleging defamation around the country, reversed and remanded the dismissal this to a jury and get his day in court.” as well. For example, an owner of a in January 2012, fi nding that some of Lawsuits like McKee’s are rare, Eric Sarasota, Fla. computer graphics com- Laurion’s comments could subject him Goldman, professor at Santa Clara pany sued a reviewer after the reviewer to liability for defamation. The Minne- University School of Law told the wrote a negative, one-star review on sota Court of Appeals’ full decision is Star Tribune. However, Goldman said Yelp.com, a website that allows anyone available online at http://www.lawli- “they’ve been popping up around the to post reviews of a wide range of busi- brary.state.mn.us/archive/ctapun/1201/ country as patient review sites such as nesses. The review called the owner opa111154-012312.pdf. vitals.com and rateyourdoctor.com have “a scam liar and complete weirdo,” ac- Laurion appealed the decision to fl ourished.” Lawsuits claiming defama- cording to a Dec. 18, 2011 report in the reverse and remand the case to the tion are “kind of the nuclear option,” Sarasota Herald Tribune. A dentist in Minnesota Supreme Court, which heard Foster City, Calif. arguments on Sept. 4, 2012. The issue in “The lesson here is straightforward: if fi led a similar suit McKee’s appeal is whether statements in Santa Clara Laurion published describing McKee’s you are making statements online about County Superior treatment of his father are not pure another person, a business or service, do Court in 2008 after opinion but, rather, factual assertions not embellish beyond what you can show a patient’s parents capable of being proven true or false. posted a negative This is the standard the United States factually.” review on Yelp. Supreme Court set forth in Milkovich v. com, according Lorain Journal Co., 497 U.S. 1 (1990), — Rob Heverly to a Jan. 13, 2009 for what establishes opinion protected Assistant Law Professor, story in the San by the First Amendment. The Minnesota Albany Law School of Union University Francisco Chron- Supreme Court’s summary of the issues icle. in the case is available online at http:// Because online www.mncourts.gov/Documents/0/Pub- Goldman said. “It’s the thing that you reviewers are subject to defamation lic/Calendars/September_2012_Sum- go to when everything else has failed.” lawsuits, Rob Heverly, assistant pro- mary.htm#a111154. Goldman tracks lawsuits healthcare fessor of law at Albany Law School of “I argued that the posting to a web- providers fi le against online reviewers, Union University, wrote a guide for on- site is part of the context that colors or and told the Reporters Committee for line reviewers on Madisonian.net, a blog shapes what Mr. Laurion was trying to Freedom of the Press (RCFP) for the focused on law, technology, and culture, do, and the essential nature of one of Fall 2012 issue of The News Media and which features written contributions these websites is to provide subjective The Law that, of the 28 lawsuits he has from many law professors, on April feedback and people get lots of subjec- tracked, courts dismissed 16 of them, 13, 2010. “The lesson here is straight tive feedback from different perspec- six settled, and the other six are still forward: if you are making statements tives and from different experiences,” pending. online about another person, a business John Kelly, an attorney with Hanft In one such suit, an Arizona cosmet- or a service, do not embellish beyond Fride, P.A., who represented Laurion be- ic surgeon, Dr. Albert Carlotti III, won what you can show factually,” Heverly fore the Minnesota Supreme Court, told a $12 million verdict against a former wrote. “Statements of opinion were, in the Duluth News Tribune for a Sept. 5, patient in February 2012, according to the past, considered absolutely pro- 2012 story. a Feb. 20, 2012 post by the American tected, but the U.S. Supreme Court has “We argued to the court that Mr. Lau- Medical Association on its website. The clarifi ed that opinion-statements backed rion published both on the Internet and patient wrote reviews on numerous by implied facts will be actionable to approximately 20 others, including websites and created her own website where the facts implied are false.” The medical organizations, false statements stating Carlotti disfi gured her face, Minnesota Supreme Court is expected about Dr. McKee that disparaged his was not board-certifi ed, and was being to release its decision in early summer. professional abilities and hurt his repu- investigated by the state medical board, tation,” Tanick, who also represented although no records of such investiga- – CASSIE BATCHELDER McKee before the Minnesota Supreme tions exist; the patient is appealing the SILHA RESEARCH ASSISTANT Court, told the Duluth News Tribune. judgment.

17 New FCC Rule on Disclosure of Political Advertising Follows 2012 Election Spending new rule from the Federal Media organizations have varied in the new regulatory requirements at issue Communications Commission their response to the new FCC rule. “By and explore possible alternative means changed the requirements for requiring [broadcasters] to make those of resolving the issues.” This means NAB how broadcasters must dis- earnings accessible, the F.C.C. would help and the FCC will have to follow the cur- close political ads purchased the public make better sense of the fl ood rent reporting requirements until the par- Aat their stations during the 2012 election tide of money pouring into politics,” The ties appear before the court next year to cycle. Although the information was al- New York Times advocated in an editorial argue the issues, at which point the court ready available to the public, the FCC rule on April 27, 2012. The editorial suggested could decide the rule violates the First now creates an accessible online data- that because broadcasters must charge Amendment. The broadcasters maintain base of the information. Because a record political advertisers their lowest rates by their opposition to the rule, alleging that amount of money law, they actually oppose the rule because the rules are arbitrary and capricious and they do not want businesses that adver- FCC was spent on ad- violate the First Amendment’s free speech vertising during the tise with them to see their lowest rates. protections as well as exceed the FCC’s 2012 election cycle, ProPublica, a nonprofi t investigative authority. NAB’s motion is available at journalism experts have advocated for newsroom, published a list of media http://www.nab.org/documents/fi lings/On- tracking of political spending and diligent organizations that lobbied against the linePublicFileMotionDefer091712.pdf. fact-checking of the advertising by candi- FCC rule on April 20, 2012. The list of “By forcing broadcasters to be the dates and outside organizations. those opposed to the rule includes many only medium to disclose on the Internet large national media organizations and is our political advertising rates, the FCC New FCC Rule Requires Local available online at http://www.propublica. jeopardizes the competitive standing of Television Stations to Post Data org/article/meet-the-media-companies- stations that provide local news, enter- about Political Ads to Online lobbying-against-transparency. FCC tainment, sports and life-saving weather Database chairman Julius Genachowski spoke at information free of charge to tens of mil- The FCC passed a rule in by a 2 to 1 the National Association of Broadcast- lions of Americans daily,” the NAB said in vote on April 27, 2012 requiring the affi li- ers (NAB) convention in April 2012 and a statement to The Washington Post for ates of the four major networks – ABC, said broadcasters opposing the rule an April 27, 2012 story. CBS, FOX, and NBC – in the 50 largest were working “against transparency and The idea of forcing disclosure aligns markets to post political advertising data against journalism,” according to an April with the reasoning of the conservative for the station to an online database. 27, 2012 story in The Times. justices who comprised the majority Those stations needed to begin to post The efforts of both broadcasters and in the United States Supreme Court’s their fi les to the database on Aug. 2, 2012, GOP leaders on the House Appropriations decision in Citizens United v. Federal according to the July 3, 2012 Federal Committee created some roadblocks for Election Commission, 558 U.S. 310 Register notifi cation of the rule. The rest the FCC rule. The House Appropriations (2010), according to a Dec. 29, 2011 of the stations in the United States have Committee originally included language story in Columbia Journalism Review. until July 2014 to comply with the rule. in the 2013 appropriations bills that The U.S. Supreme Court, in that case, Stations already had to disclose would eliminate any funding to imple- held that the First Amendment protects information about political ads, but only ment the FCC rule, but dropped that part political speech regardless of its source to those who asked to see the records at of the bill on June 20, 2012, according to a — individual or corporation. Although the station’s offi ce in person. The FCC Forbes report the same day. the justices in that case opened the door will host the new database on its website Broadcasters fought the rule in court, for more unlimited spending on cam- where anyone will be able to access it. with NAB fi ling an appeal on May 21, 2012 paigns, they emphasized that disclosing The stations will have to report a variety asking the U.S. Court of Appeals for the the sources of political advertising would of information, including which groups District of Columbia to stay the FCC’s make the system work. “With the advent or candidates are paying for ads and how enforcement of the rule pending judicial of the Internet, prompt disclosure of much they are spending, according to review, according to a May 22, 2012 report expenditures can provide shareholders an April 27, 2012 story in The New York in AdWeek. This action would have pre- and citizens with the information needed Times. vented the FCC from forcing stations to to hold corporations and elected offi cials This rule differs from Federal Election comply with the rule until the court could accountable for their positions and sup- Commission data in many ways, accord- review it. NAB fi led this appeal several porters,” Justice Anthony Kennedy wrote ing to a May 4, 2012 story in Columbia days after the rule was published in the in the Citizens United decision. “This Journalism Review (CJR). The FCC rule Federal Register. transparency enables the electorate to encompasses spending for state races, lo- The court denied NAB’s request for an make informed decisions and give proper cal races, and national issue ads. Accord- emergency stay, which allowed the rule to weight to different speakers and mes- ing to the rule, the station must upload go into effect on Aug. 2, 2012. The NAB’s sages.” (For more on the Citizens United the data within 48 hours of the ad buy, challenge to the rule stands, however, decision, see “Supreme Court Strikes which requires a much faster turnaround and will be litigated in the future. NAB Down Campaign Finance Regulation for time than the FEC’s requirements. Out- fi led an unopposed motion to defer the Corporations” in the Winter/Spring 2010 side groups will have to disclose “chief date that NAB and the FCC will submit issue of the Silha Bulletin.) executive offi cers or members of the their briefs to the court to Feb. 13, 2013 executive committee or of the board of “to allow NAB to gain experience with directors,” the story said. 18 Disclosure of Funding Sources “The biggest impact of this money that is important than correcting the factual Crucial for Journalists as More dangerous for our democracy was never record for readers.” Money Spent on Presidential going to be on the individual elections Rather than clarifying the misleading Election than Ever Before that occurred, but on the corruption of aspects of ads, Nyhan argued many jour- The two presidential campaigns for government decisions that followed,” nalists are instead interested in discuss- President Barack Obama and Gov. Mitt Fred Wertheimer, president of the cam- ing the strategy behind the ad, which Romney, political parties, and indepen- paign fi nance reform group Democracy misses an important benefi t for listeners dent groups spent more than $1.08 billion 21, told Huffi ngton Post. “It would be a and readers. “A better approach would be on 1,015,615 television commercials big mistake to judge whether we have a for reporters to characterize the accuracy between June 1 and Oct. 29, 2012, accord- corrupt campaign fi nance system today of ads in their own voice and to invoke ing to the Associated Press (AP) and the by the outcome of any of these elections. non-partisan experts like PolitiFact,” Wesleyan University Media Project. This is just the beginning.” Nyhan wrote. “In some cases, it may The Washington Post reported Ameri- even be possible to fi nd credible sources can Crossroads and Americans for Pros- With Big Money Spent on Political on the side of the candidate airing the perity, pro-Romney groups, and Priorities Advertising, Media Experts Say misleading ad who are willing to state the USA Action, a pro-Obama group, took Confi rming the Truth of the Ads’ truth.” Nyhan argued that fact-checking advantage of new campaign fi nance rules Claims Can Be an Important Role may convince those who create messages following Citizens United. (For a look at for Journalists to be more truthful in what they present current litigation and voter referendums The infl ux of election advertising to the public. He used the example of involving Citizens United, see “State coming from both sides of the political Michael Moore, whose documentaries Limits on Campaign Contributrions Re- aisle, as well as from special interest “Bowling for Columbine” and “Fahrenheit main in Effect for 2012 Election Sessions: groups, coupled with no requirement that 9/11” included misrepresentations that Voters Call for Amendment to Overturn ads be truthful, suggests that journalists reporters criticized. Nyhan argued that, as Citizens United” on page 12 of this issue can play an the important role in fact- a result of the criticism, Moore was more of the Bulletin.) checking political advertisements during conscious of the facts in his next docu- Many who oppose the Citizens United the campaign season. “Given the barrage mentary, “Sicko.” decision argue it opened the fl oodgates of messages and no ‘truth in advertising’ Sasha Chavkin, an investigative for questionable campaign spending. The requirement, how is a voter to separate journalist whose coverage of the 2012 FEC does, however, have rules about fact from fi ction?” asked a Sept. 10, 2012 campaign was supported by the Toni Sta- the relationships between candidates’ PBS MediaShift post. “The problem is bile Center for Investigative Journalism at campaigns and super PACS (political ac- especially acute if she lives in a swing Columbia University's Graduate School of tion committees). The two groups are not state, which is where the bulk of advertis- Journalism, wrote a guide for journalists supposed to “coordinate” their activities. ing dollars lands.” covering political advertising, published Coordination, according to the FEC, is Applications for smartphones like in CJR on Sept. 19, 2012. First, he said “in consultation, cooperation or concert SuperPACApp and Ad Hawk emerged tracking political ad spending through with, or at the request or suggestion of, a during the election season to allow any the FCC’s new online database can prove candidate, a candidate’s authorized com- cell phone user to fact-check advertise- helpful. Next, he pointed out that tracking mittee, or a political party.” However, two ments. The applications allow the user spending by both candidates’ campaign of the PACS that spent the most money to press a button while listening to an ad and outside groups, including PACs, using have close ties to the candidates: Priori- and the application will identify the ad by FEC data provides insight into who is ties USA Action is led by former Obama its sound. Both identify sponsors of ads. spending money on the campaign. Sev- White House aides and Restore Our SuperPACApp summarizes the claims the eral sources provide the data in a useful Future is run by former Romney advisers, ads make and provides links within the format, including The New York Times, according to a May 15, 2012 report from application that users can follow to read ProPublica’s PAC Track, The Center for the AP. Attacks on Gov. Romney’s work more about whether the claims made in Public Integrity, OpenSecrets.org, and the at Bain Capital raised questions about the ad are misleading or truthful, accord- Sunlight Foundation’s Follow the Un- whether President Obama’s campaign ing to the September 10 PBS MediaShift limited Money project. Finally, Chavkin was working too closely with an outside story. explained that checking the facts that the group, although the FEC never took ac- Nonetheless, journalists still have a ads offer is crucial for good reporting. He tion, according to the AP. Within 24 hours role in fact-checking advertising, ac- suggested using an interactive website of one another in May 2012, President cording to a post by Brendan Nyhan, from The Daily Beast, a news reporting Obama’s campaign and the outside group, an assistant professor of government and opinion website owned by the same Priorities USA Action, each released ads at Dartmouth College, for Columbia company that owns Newsweek, which related to Gov. Romney’s business prac- Journalism Review (CJR) on Nov. 29, examined all the ads across the country tices at Bain Capital, raising questions as 2011. Nyhan contended that mislead- and weighed claims against the assertions to whether the independent group was ing advertisements were not diffi cult to of third party fact checkers. “An ad can truly “independent.” fi nd during the 2012 election cycle. “The be unfair, of course, even though factual,” Some argue that because the govern- problem, however, is that many national he wrote, “and there is no substitute for ment has changed so little in this fi rst reporters — and the state reporters who informed and unbiased journalistic judg- post-Citizens United election, with the increasingly emulate them — have been ment.” same President and the same parties sucked in by the cult of the savvy,” he – CASSIE BATCHELDER controlling both chambers of Congress, wrote. “For these journalists, producing SILHA RESEARCH ASSISTANT the new spending rules have had little meta-level analysis of the effectiveness of impact, according to a Nov. 7, 2012 story deception as a campaign tactic is more from Huffi ngton Post. Others disagree.

19 Social Media Policies Threaten Employee Privacy

lthough Federal legislation to their online profi les. A.B. 1844. The seeking to regulate the practice only in aimed at regulating the re- full text of the law is available online at the context of employment, not educa- lationship between employ- http://legiscan.com/gaits/text/665164. tion, according to the National Confer- ers, employees, and social In August 2012, Illinois also banned ence of State Legislatures. media failed in March 2012, the practice. Gov. Pat Quinn signed the The Maryland and Illinois laws make Athe push for rules protecting employee law on August 1, citing privacy concerns it illegal for employers to ask for, or privacy continues. In December 2012, and the need for the regulations to keep require, social media passwords from job Michigan became the fourth state, after up with advancing technologies. “We’re applicants. In contrast, one bill consid- California, Mary- dealing with 21st-century issues,” Quinn ered in Minnesota would only prevent an PRIVACY land, and Illinois, said, according to an August 1 Huffi ng- employer from requiring an applicant’s to prohibit employ- password as a con- ers from asking “Employers have no right to ask job dition of employ- job applicants for their online profi le ment, leaving open passwords, and several other states are applicants for their house keys or to the possibility that considering similar legislation. Even read their diaries — why should they an employer could Facebook has joined the conversation, be able to ask them for their Facebook avoid liability by working with policymakers and consid- “requesting” the ering legal action to end the password passwords and gain unwarranted access password rather sharing practice. to a trove of private information about than “requiring” it. what we like, what messages we send to H.B. 2963. Howev- Michigan Is Fourth State to Prohibit er, this may not be Employers from Asking for Social people, or who we are friends with?” suffi cient protec- Media Passwords tion to prevent New laws seek to protect employee — Charles E. Schumer (D.-N.Y.) applicants from privacy as employers have begun to United States Senator feeling as though adopt a practice of requiring social media they have to turn passwords as part of a job application. over their pass- According to a March 27, 2012 Business ton Post story. “... Privacy is a fundamen- words, as they may fi nd it diffi cult to say Week story, these policies have been tal right. I believe that and I think we no, even though compliance is techni- mostly limited to police departments and need to fi ght for that.” cally voluntary. “Especially in times like other government entities. For example, The law, effective on Jan. 1, 2013, this when there are not a lot of jobs, that Business Week reported that state troop- protects both current employees and puts a lot of pressure on you,” architec- er applicants in Virginia are required to prospective hires and provides no ture student Pegah Shabehpour told the sign on to their social media accounts exceptions. Even during a required a Huffi ngton Post in an August 1 story. “It’s during the interview. However, several background check, an employer is pro- hard to resist.” states are seeking to stop the practice hibited from asking for the applicant’s Minnesota is also considering a bill before it becomes more widespread. passwords. The law does not prevent that would prohibit employers from both On Dec. 28, 2012, Michigan Gov. Rick employers from looking at the public requesting and requiring the social media Snyder signed a law making it illegal for information on an applicant’s profi le or passwords. H.B. 2982. “I think people employers or education institutions to from setting workplace policies regard- have a reasonable expectation of privacy require applicants to disclose their social ing social media. Pub. Act No. 097-0875. in their Facebook page and some of their media passwords. Violators could face The full text of the bill is available online online communications, and it strikes me up to 93 days in jail and a $1,000 fi ne. at http://www.ilga.gov/legislation/publi- as unfair for employers to ask to invade H.B. 5523. “Cyber security is important to cacts/fulltext.asp?Name=097-0875. that privacy,” said Rep. Tina Liebling the reinvention of Michigan, and pro- Maryland also bans the password (DFL-Rochester). tecting the private Internet accounts of sharing practice and 10 more states are residents is a part of that,” Snyder said considering similar legislation, accord- U.S. Senators, Facebook Question in a press release the same day. “Poten- ing to the National Conference of State Legality of Password Sharing tial employees and students should be Legislatures. Although fairly consistent On March 26, 2012, two U.S. Sena- judged on their skills and abilities, not from state to state, the entities covered tors asked the U.S. Equal Employment private online activity.” The full text of by the legislation depend on the specifi c Opportunity Commission and the U.S. the law is available online at http://www. bill. For example, some states are pursu- Department of Justice to launch a federal legislature.mi.gov/documents/2011-2012/ ing separate bills banning the practice investigation into the legality of employ- billenrolled/House/pdf/2012-HNB-5523. in the educational setting. Delaware ers asking for social media passwords. pdf. has already passed a bill and on July 20, U.S. Senators Richard Blumenthal (D- Michigan is the fourth state to ban the 2012, Gov. Jack Markell signed it, making Conn.) and Charles E. Schumer (D-N.Y.) practice. On Sept. 27, 2012, California it illegal for public or private academic called the trend “disturbing” in a March Gov. Edmund G. Brown signed a similar institutions to require or ask for social 26 press release, asserting that the prac- law making it illegal for employers to ask media passwords from a student or appli- tice can be used to gain access to private for social media passwords, in addition cant. H.B. 309. New Jersey also banned information including photos, email mes- to prohibiting employers from fi ring the practice in institutions of higher edu- sages, and biographical data. or disciplining current employees who cation on Dec. 3, 2012. But, states such “Employers have no right to ask job refuse to disclose information related as Minnesota and Missouri are currently applicants for their house keys or to 20 read their diaries — why should they employer may open themselves up to NLRB report, dated May 30, 2012, stated be able to ask them for their Facebook claims of discrimination if they don’t hire that rules that are “ambiguous” and “con- passwords and gain unwarranted access that person,” Egan wrote in the March 23 tain no limiting language” to clarify the to a trove of private information about statement. rule violate an employee’s rights. Legal what we like, what messages we send restrictions must “clarify and restrict to people, or who we are friends with?” Employer Social Media Policies their scope by including examples of Schumer said in a statement for the press Become a Hot Topic for National clearly illegal or unprotected conduct, release. Labor Relations Board such that they would not reasonably be The senators contend that requir- On Sept. 7, 2012 the National Labor construed to cover protected activity.” ing applicants to disclose social media Relations Board (NLRB) issued its fi rst Another social media policy the NLRB passwords may violate the Stored Com- decision involving an employer’s social considered overbroad prescribed the munication Act and the Computer Fraud media policy. In Costco Wholesale Corp. “tone” employees may use and the sub- and Abuse Act. The Stored Communica- ject matters they tion Act “prohibits intentional access to may discuss online. electronic information without authori- “If an employer sees on Facebook that According to the zation,” according to a March 26 letter someone is a member of a protected report, one policy from the senators to Attorney General group (e.g. over a certain age, etc.) that said, “Adopt a Eric H. Holder. The Computer Fraud and friendly tone when Abuse Act outlaws “intentional access employer may open themselves up to engaging online. to a computer without authorization claims of discrimination if they don’t hire Don’t pick fi ghts.” to obtain information,” the letter said. that person.” The NLRB found The senators contend that asking for this provision could passwords may violate these laws as it be interpreted to in- — Erin Egan could constitute coercion and therefore clude conversations unauthorized access. 18 U.S.C. § 2701; 18 Chief Privacy Offi cer on Policy, about working con- U.S.C. §1030(a)(2)(C). The full text of the Facebook ditions or unionism, Stored Communication Act is available which are protected online at http://www.law.cornell.edu/us- & UFCW Local 371, 358 N.L.R.B. 106 topics under the NLRA. code/text/18/part-I/chapter-121. The full (2012), the board found that several pro- The policies not only prohibit employ- text of the Computer Fraud and Abuse visions of Costco’s social media policy ees from including certain content on Act is available online at http://www.law. violated the National Labor Relations their social media profi les, but some may cornell.edu/uscode/text/18/1030. Act (NLRA). Employee social media require employees to post promotional In addition, Blumenthal, Schumer, activity is often considered protected content on their personal accounts. and Sen. Amy Klobuchar (D-Minn.) are “concerted activity” under the Act, as For example, Voice of America, a news drafting legislation prohibiting employ- other employees have access to view the broadcaster, asked its journalists to ers from requiring login information information. The violating provisions post public relations information and as part of a job application. However, included prohibiting employees from new releases to their personal Twitter similar bills have lacked congressional posting on social media about employee accounts, according to The Washington support. A bill prohibiting the password issues, such as sick leave and workers’ Post blog In the Loop. The Sept. 6, 2012 sharing practice, introduced on March compensation, during the time they are blog post said the employees were reluc- 27, 2012, failed to gain support in the on the employer’s property. The policy tant to “parrot” their employer’s views House of Representatives and was voted also unlawfully prohibited employees and expressed concern over spamming down 184 to 236 on the same day. H.R. from posting content that could damage their followers and compromising their 3309. The full text of the bill is available anyone’s reputation. impartiality. A Voice of America spokes- at http://thomas.loc.gov/cgi-bin/query/ The decision follows the NLRB’s third man told In The Loop that the policy was z?c112:H.R.3309:. memorandum on social media issues for adopted to enable journalists to share In response to the lack of regulation, current employees in less than a year, re- stories with a wide audience and added Facebook’s Chief Privacy Offi cer on leased in June 2012. The report discussed that “nobody’s being coerced.” Policy, Erin Egan, released a statement seven employer social media policies The NLRB’s September decision sets on March 23, 2012, noting that sharing or reviewed by the NLRB after employees precedent for future social media cases. soliciting a Facebook password violates alleged that the policies were overbroad However, in a 2011 survey, the board Facebook’s Statement of Rights and or that an employee had been disciplined conceded that it has only begun to ad- Responsibilities and promising to take for the contents of social media posts. dress the intersection of employment law action either by drafting new laws or The NLRB found only one policy to be and social media. As confl icts continue initiating legal proceedings. lawful in its entirety. The other six poli- to occur in the workplace and online, the Further, Egan pointed to ways in cies contained provisions that the NLRB board said it is hard to predict how it will which the password sharing practice believes violate the NLRA, according to rule on future issue and how those rul- could lead to liability for employers, even Lafe Solomon, Acting General Counsel at ings will be viewed by the courts. without new legislation. For example, the NLRB. viewing an applicant’s personal informa- The most common problem the NLRB – EMILY MAWER tion could expose employers to claims of found was that policies tend to be over- SILHA RESEARCH ASSISTANT discrimination. broad, encompassing concerted activity “If an employer sees on Facebook that is protected by the NLRA. One such that someone is a member of a protected provision placed limits on communica- group (e.g. over a certain age, etc.) that tion of confi dential information. The

21 Published Photos of Arguably Private Moments Raise Questions About Whether Media Acted Ethically

recent string of moments to recover the photographs and prevent Ireland, Denmark, and Sweden, printed captured by photographers any further publication by Closer, The the photos, according to the ABC News has renewed familiar ques- Washington Post reported on Sept. 17, report. Kim Henningsen, chief editor of tions about the ethical deci- 2012. The couple’s lawyers argued the Se & Hoer, the Denmark celebrity maga- sion-making process behind photos were taken illegally, using a long zine that chose to publish the photos, Athe press’s decision to publish intimate, lens, and that publication of the photos told the Associated Press (AP) that the sometimes graphic photographs. Media constituted an invasion of their pri- magazine was offered 240 pictures and organizations are vacy. The couples’ concerns expanded, selected between 60 and 70 to purchase. also dealing with however, when the Italian magazine Chi Both Chi and Closer are published by MEDIA ETHICS accuracy and published more photos of Middleton on the former Italian Prime Minister Silvio verifi cation issues Sept. 17, 2012. Berlusconi’s publishing house. arising from the The Tribunal de Grand Instance, a Mike O’Kane, former editor of the use of photos that have been digitally three-judge panel in Nanterre, ruled in Irish Daily Star, which published repro- manipulated or fabricated. the royals’ favor on Sept. 14, 2012 by ductions of the photos, told the BBC for Nude photos of British royalty have ordering Closer’s publisher, Mondadori, a Sept. 15, 2012 report that the paper did implicated privacy concerns abroad. to give the couple the digital copies of not include the photos in its edition sold While topless photos of Kate Middleton, the photos that were published within in Northern Ireland, which is part of the Duchess of Cambridge, drew legal action 24 hours of the order, according to a United Kingdom. The Guardian reported from the royal family, Buckingham Pal- Sept. 18, 2012 Huffi ngton Post report. on Sept. 18, 2012 that O’Kane was sus- ace took little action beyond discourag- The order imposed a daily $13,100 fi ne pended by co-owner Richard Desmond ing publication when TMZ obtained cell if the publisher did not comply. Fur- pending an investigation into why the phone pictures revealing Prince Harry’s thermore, an injunction prevents Closer Irish Daily Star printed the photos, and nudity in a Las Vegas hotel room. from reselling the photos or republishing on Nov. 25, 2012, reported that O’Kane Accuracy and verifi cation of photo- the original photos in print or online. resigned. Desmond, whose group, North- graphs came to the forefront of coverage However, the order only covers the 14 ern & Shell, owns the Daily Express and of Hurricane Sandy. The proliferation of photos included in Closer’s Sept. 14, Daily Star in the UK, in addition to half Twitter and the need to make decisions 2012 print edition and does not affect of the Irish Daily Star, threatened to quickly led some journalists and news or- any of the other publications involved. take “immediate steps” to shut the Irish ganizations to share photographs that, in In its ruling, the French court stated the Daily Star down, the story said. Inde- the end, were fabricated or did not depict photos “showed the intimacy of a couple, pendent News and Media, who owns the what they were purported to show. partially naked on the terrace of a private other half of the paper, worked with Des- In another set of events, the decision home, surrounded by a park several hun- mond, and the two decided to complete a by some domestic publications to print dred meters from a public road…” and more thorough inquiry to “fi nd out what photos of deceased people involved in that the couple should have been able led to the decision to publish without acts of violence — the victims and the al- to “legitimately assume that they [were] either owner being informed” rather than leged gunman in the Empire State Build- protected from passers-by.” immediately closing the paper down. ing shooting, and deceased U.S. Ambas- Following the order in the civil suit, According to the Guardian report, Irish sador J. Christopher Stevens — raised the focus shifted to identifying the pho- Minister for Justice, Equality and De- questions about when it is appropriate tographer as the royals pursued criminal fense Alan Shatter decided to revisit new for the press to depict graphic scenes of charges, according to a Sept. 21, 2012 privacy laws fi rst introduced in 2006 in death. ABC News report. Under French privacy the wake of the incident. Shatter said the law, the photographer could face a year Irish Daily Star’s decision to publish the Buckingham Palace Seeks Legal in prison and up to $60,000 in fi nes if photos was based on “perceived fi nancial Sanctions for Photographer and the photos are deemed an invasion of gain” rather than “principled freedom of Tabloids Responsible for Topless privacy. The couple fi led the criminal express.” Kate Middleton Photos complaint with French prosecutors, Notably, no British publications have During a September 2012 vacation to who began an investigation to fi nd the published the photos to date. The staff Provence, France, the Duke and Duchess photographer. of the Daily Mail, a British tabloid, of Cambridge were photographed while French photographer Pascal Rostain published a statement on Sept. 14, 2012 spending time on a terrace in a private said he knows the identity of the photog- arguing that Closer and the photographer estate. Among the images captured by an rapher. “The only thing I can tell you is “are guilty of an indefensible intrusion of unidentifi ed photographer were some of that he’s from south of Dublin and he had privacy.” Former News of the World Edi- Kate Middleton topless. The royal couple red hair, but of course I will never, never, tor Neil Wallis, arrested as a part of the reportedly did not know the photos were never say his name,” he told BBC Radio paper’s phone hacking scandal last year, taken until the French magazine, Closer, on Sept. 21, 2012. However, Rostain also told the BBC, “They won’t get published posted pixelated photos of Middleton to told France Metro newspaper that the in [the UK], and if I was still an editor I its website, and later in print on Sept. 14, photographer was English and working would not be publishing them.” TIME 2012. for Closer in the south of France, accord- magazine reported on Sept. 14, 2012 that The Duke and Duchess of Cambridge ing to a Sept. 20, 2012 ABC News report. the British press has been particularly quickly took action in a French court, After the original publication by Clos- cautious with its handling of private fi ling both a criminal and a civil action er and Chi, three more publications, in matters in the wake of the phone hacking 22 scandal, which uncovered widespread in- its tough privacy laws, of having the tos was, “Heir it is! Pic of naked Harry trusion into the private lives of numerous worst paparazzi “on the planet and the you’ve already seen on the internet.” The celebrities, politicians, and even crime French media routinely publish intimate Sun wrote that the photos were readily victims. (For more on the British phone photographs of celebrities in private situ- available online and the British media hacking scandal, see “Not Just a ‘Rogue ations,” in a September 14 commentary. was reporting about the photos, even if Reporter’: ‘Phone Hacking’ Scandal In addition, a September 14 BBC column they chose not to publish them. The tab- Spreads Far and Wide” in the Summer pointed out that although French law loid contended there was a strong public 2011 issue of the Silha Bulletin.) After imposes a fi ne for invasions of privacy, interest in discussing the actions of “the the phone hacking scandal, Lord Justice if the monetary sales of the magazine or man who is third in line to the throne and Brian Leveson launched an investigation paper would be greater than the po- increasingly taking on offi cial duties,” into the ethical practices of the British tential fi ne, there is no incentive not to and that the prince represents “Britain press, which some argue has caused the publish. Media lawyer Mark Stephens, around the world.” Additionally, the Sun press to be more hesitant to publish ma- the 2011 Silha Lecturer, told Bloomberg noted the pictures raise questions about terial it might have prior to the Leveson for a Sept. 17, 2012 story that the privacy the quality of his security and whether Inquiry for fear of unfavorable recom- laws in France and the UK are not strong the pictures would impact his positions mendations and fi ndings. (For more on enough to discourage invasions of pri- with the British army. the report resulting from the Leveson vacy. “Post-publication punishments are The Sun argued further that by his Inquiry see “Leveson Inquiry Report Calls clearly an insuffi cient deterrent — it’s a own actions, Prince Harry was not for New System of Press Regulation in major problem at the moment in France “jealously guarding his privacy” because United Kingdom” on page 1 of this issue and the U.K.,” Stephens said. (For more he was “in Vegas, the party capital of a of the Silha Bulletin, and for past cover- on European privacy law development country with strong freedom-of-speech age, see “Scandals, Inquiries, and Reform regarding public fi gures, see “British laws, frolicking in the pool before invit- Might Leave U.K. Press Freedom Worse Media Law Developments Positive for ing strangers to his hotel room for a for the Wear” in the Summer 2012 issue Press” in the Spring 2012 issue of the game of strip billiards.” Finally, the Sun of the Silha Bulletin.) Silha Bulletin.) stated that publishing the pictures was Will Gore, deputy managing editor of in keeping with prior PCC precedent and the Independent and former director of Cell Phone Photographer Shares cited a case in which the PCC ruled in external and public affairs at Britain’s Photos of Nude Prince Harry from favor of a “magazine which published Press Complaints Commission (PCC), Las Vegas Party Suite, Murdoch’s pictures already widely seen online.” In wrote in a Sept. 21, 2012 column in the Sun is the Only British Paper to that case the PCC said that it needed to Independent that the “saga of the Kate Publish consider “the extent to which material Middleton pictures” suggested that the The U.S. tabloid blog TMZ posted is already in the public domain.” Here, PCC does a better job regulating the Brit- online pictures of Prince Harry nude and the pictures were initially posted on ish press than the Leveson Inquiry gives reportedly playing strip billiards in a Las TMZ.com and quickly spread across the it credit for. The PCC, the self-regulating Vegas hotel on Aug. 21, 2012. The pic- Internet. The Sun also acknowledged body for the UK press, has the ability tures were reportedly taken by a woman that it “likes Harry” and emphasized that to hear complaints about the press and with her cell phone who was in the room the decision to publish was not meant to issue sanctions to media entities that for the party. question his partying activity but rather violate its code. Gore argued that the On Aug. 22, 2012, Prince Harry’s to bring to light the potential lack of PCC has been effective in preventing representatives issued an advisory notice judgment demonstrated by Harry and his publication of the pictures of Middleton through the Press Complaints Commis- security’s decision to allow the pictures because the PCC Code and its case law sion (PCC) asking British publications to be taken. This position was echoed by have encouraged the British media to to abstain from printing the pictures, many, as London’s mayor, Boris Johnson, adhere to more ethical practices over according to a PCC Sept. 6, 2012 press told the BBC that the “real scandal would the last several years. Gore noted that, release. The PCC stated that it was in be if you went all the way to Las Vegas although France, Italy, and Denmark, un- talks with Prince Harry’s representatives and you didn’t misbehave in some trivial like the UK, have stringent privacy laws about whether Prince Harry would fi le a way” on Aug. 24, 2012. in place, these laws and the threat of formal complaint should the photos be Distinguishing the Sun’s decision to damages awards have not prevented the published by any British newspapers. publish the pictures of Prince Harry but publication of private information that The Sun, a British tabloid owned by not the Duchess of Cambridge, managing can increase circulation and sell many Rupert Murdoch, published the pictures editor David Dinsmore said the pictures newspapers. on Aug. 24, 2012 despite the offi cial of Middleton were a serious invasion of France’s privacy law makes it a crimi- request. The Washington Post reported privacy, whereas the pictures of Prince nal offense to print private information that, prior to these pictures of Prince Harry were not taken in a private place about a person without that person’s con- Harry, the British media seemed to be and were a matter of public interest, sent. Some have raised questions about “entering an era of caution” because according to a Sept. 17, 2012 Bloomberg what level of privacy a fi gure as public of the phone hacking scandal and the report. as the Duchess of Cambridge should resulting Leveson Inquiry in an Aug. Prince Harry and his representatives expect. French lawyer Anne Pigeon- 24, 2012 story. The PCC’s September 6 decided not to pursue a complaint with Bormans told TIME that French courts press release said that the commission the PCC, according to a Sept. 28, 2012 consider “the victim’s behavior, when received approximately 3,800 complaints story from the BBC. His spokeswoman the person is fl aunting themselves on about the photos. maintained that “a hotel room is a private camera. Kate Middleton will get damages The Sun justifi ed its decision to pub- space where its occupants would have a because she’s not behaving in this way.” lish the photos in an Aug. 24, 2012 story. reasonable expectation of privacy.” She The Daily Mail accused France, despite The headline accompanying the pho- Photos, continued on page 24 23 Photos, continued from page 23 of the Duchess, said he was concerned people with quicker breaking news said Prince Harry and his advisors de- about the Leveson Inquiry’s impact on updates during the storm and its cided that pursuing a complaint with the the media’s identifi cation of stories that aftermath than many traditional sources PCC against the Sun would distract from serve the public interest with regard to of media because of the speed at which Prince Harry’s impending deployment to the Prince Harry photos in an Aug. 22, Twitter posts could be made and the Afghanistan. 2012 Huffi ngton Post commentary. Wallis power outages that affected many The Las Vegas Convention and called inquiry “a disgraceful affront to outlets, Mediabistro, a website with Visitors Authority took advantage of the free speech” and said “it’s His Lordship’s blogs about social media and journalism, media buzz surrounding the photos with Voice that speaks loudest in Britain’s reported in an Oct. 30, 2012 post. More a full-page advertisement in USA Today, newsrooms today.” than 7.1 million tweets about the storm according to an Aug. 24, 2012 ABC News Chris Brauer, co-director of the Centre were sent in the 24 hours before it hit, report. The advertisement plays off the according to an Oct. 29, 2012 ABC familiar Las Vegas slogan, “What Hap- “There is no public interest in publishing pens in Vegas Stays in Vegas” by shaming News report. Kevin those who “traded in their pledge to their these pictures, even the Sun can’t come Systrom, chief Las Vegas brethren” by sharing the pho- up with a public interest in publishing executive offi cer tos of Prince Harry. The advertisement of Instagram, a calls on “the defenders of what happens these pictures, and the fact that they service that allows in Vegas staying in its rightful place — are available in foreign media doesn’t users to post in Vegas” to shun “these exploiters of make English law any less applicable. photos to social Prince Harry.” media, told The Reactions to the Sun’s decision to They have broken the law cynically, New York Times publish the photos have varied. Several and obviously with a view to obtaining that users were posting 10 pictures sources expressed disapproval of their publicity.” publication. John Prescott, former dep- per second related uty minister and a victim of the phone to Hurricane Sandy — Mark Stephens hacking scandal, tweeted about the pub- for an Oct. 29, 2012 lication, saying, “This isn’t in the public Media Attorney, Finers Stephens Innocent blog post. Mixed interest. It’s in Murdoch’s self-interest.” in with all these In an Aug. 24, 2012 story, media law- online postings yer Mark Stephens told the Guardian, for Creative and Social Technologies were a number of photographs that were “There is no public interest in publishing at Goldsmiths, University of London, proven to be fabricated, misleading, or these pictures, even the Sun can’t come discussed the public interest in publish- inaccurate. up with a public interest in publishing ing the Prince Harry pictures in a Sept. The Atlantic tackled the issue of these pictures, and the fact that they are 11, 2012 Huffi ngton Post blog post. He “fake” photographs with an ongoing post available in foreign media doesn’t make noted that Twitter’s trending topics in the it called a “photograph verifi cation ser- English law any less applicable. They UK demonstrated British citizens were vice…or a pictorial investigation bureau” have broken the law cynically, and obvi- “deeply engaged” in the story and three that it started on Oct. 29, 2012. Senior ously with a view to obtaining publicity.” of the top fi ve Google searches about Editor Alexis C. Madrigal identifi ed three On the other hand, Murdoch’s Prince Harry “included TMZ.” Brauer types of falsifi ed photographs: “1) Real daughter, Elisabeth Murdoch, contended suggested this meant anyone who hoped photos that were taken long ago, but it would be “sad if newspaper could to see the pictures could simply go online that pranksters reintroduce as images of not print something that was so freely and fi nd them. The only way to prevent Sandy, 2) Photoshopped images that are available on the internet,” according to this, Brauer said, would be to censor straight up fake, and 3) The combina- the August 24 story in the Guardian. the Internet — and that even preventing tion of the fi rst two: old, Photoshopped However, a Conservative member of the the UK’s media from publishing photos pictures being trotted out again.” Average House of Commons, Louise Mensch, might qualify as the PCC “exercising anti- Twitter users and veteran journalists told the BBC that “the Press Complaints competitive practices and forcing UK alike were fooled by and shared falsifi ed Commission totally overstepped their news consumers to access their media photos. bounds by going to the U.K. press . . . from competitors abroad.” Brauer said in One image, both compelling and ; ; and telling them not to publish these the future “publishers will need to make false, was circulated broadly: an image photographs” on Aug. 24, 2012. She said these ethical decisions on public interest depicting sentinels at the Tomb of the the press should not be forced to be so informed at least partially by the interest Unknowns at Arlington National Cem- afraid of negative consequences from of the public when the content is readily etery standing guard through a torrential the Leveson Inquiry “that they refuse to available abroad.” downpour, reportedly during Hurricane print things that are in the public inter- Sandy. The photographer, Karin Mark- est.” The Guardian commented on the Breaking News Coverage During ert, told journalism think tank Poynter Sun’s decision on Aug. 24, 2012, saying Hurricane Sandy Results in Some that she took the photo in September the public interest defense “is pretty thin, News Organizations Sharing 2012, not during the hurricane, accord- but it isn’t entirely without merit either.” Fabricated, Misleading Photos ing to an Oct. 29, 2012 post. The picture The Guardian acknowledged that “the As Hurricane Sandy approached the was “liked” more than 70,000 times and central point in the Sun’s favour” is that East Coast of the United States in late shared 90,000 on Facebook, according “print is merely trying to refl ect the real- October 2012, Americans increasingly to The Huffi ngton Post in an October 29 ity of the Internet.” Neil Wallis, who said turned to social media for information. report. National Public Radio (NPR), The he would not have published the picture Twitter feeds were able to provide Washington Post, The Daily Beast, and 24 other news organizations also shared the Managing Editor for Standards Philip B. victims as well as the deceased shooter. photo, according to Poynter. The Tomb Corbett wrote in The Times on Sept. 12, Reuters and the New York Daily News of the Unknowns photo was not the only 2012, “Such decisions are never easy, and featured these pictures of dead bodies on false photo to make the rounds amongst this one was harder than most. But this their homepages, according to an Aug. media organizations. Others depicted chaotic and violent event was extremely 24, 2012 Poynter report. The New York incredible storm clouds actually taken signifi cant as a news story, and we Times placed a birds-eye image depicting from movies, sharks edited into photos believe this photo helps to convey that a victim, surrounded by vibrant, fl owing of fl ooded streets, and images that origi- situation to Times readers in a powerful blood, on its homepage. nated with other natural disasters. way. On that basis, we think the photo Commentators expressed a variety Craig Silverman, adjunct faculty at the was newsworthy and important to our of views about the decision to show the Poynter Institute and founder of Regret coverage. We did, however, try to avoid graphic photos. Kenny Irby, Poynter’s the Error, a blog that covers media errors presenting the picture in a sensational or senior faculty for visual journalism and and corrections for Poynter, wrote a insensitive way.” diversity programs, thought the orga- guide to assist journalists in determin- The Los Angeles Times also published nizations handled the graphic photos ing whether photos are real in an Oct. well. “The New 29, 2012 post for Poynter. “Big weather York Times photo, brings an onslaught of fake images,” “The New York Times photo, while it is while it is incred- Silverman wrote. The fi rst step, he wrote, incredibly compelling and disturbing, ibly compelling and is for journalists to refrain from merely what makes it graphic is the blood, the disturbing, what reposting or retweeting any images they makes it graphic is see and to verify them before spread- color, but blood is an inextricable part of the blood, the color, ing them further. “Events like Sandy are a mortal wound.” but blood is an ideal for hoaxes, and they love nothing inextricable part of more than getting the press to share their — Kenny Irby a mortal wound,” he handiwork,” Silverman wrote. Senior Faculty for Visual and Diversity Programs, said in an Aug. 24,

Poynter Institute 2012 story. Irby also Graphic Photos of Deceased noted the photos’ Ambassador to Libya and Empire angles and pixila- State Building Shooting Raise tion made identi- Questions About When Showing fying those portrayed in them diffi cult Scenes of Death Is Appropriate the graphic photo depicting Libyans’ to identify, showing sensitivity to the U.S. Ambassador to Libya J. Christo- attempts to bring Ambassador Stevens victims’ families. pher Stevens, working at the American to the hospital on its Sept. 13, 2012 front According to an email to Poynter’s mission in Benghazi, Libya, was at- page. In a “Reader’s Rep” piece on the Andrew Beaujon from New York Times tacted by militants on Sept. 11, 2012 and same day, the newspaper responded to spokesperson Eileen Murphy on Aug. 24, declared deceased at a local hospital the questions and comments from readers 2012, not all news consumers approved following day, according to a New York about the decision to feature the graphic of the photo’s inclusion on the homep- Times report. Ambassador Stevens died photo so prominently. “Some readers age. “It is an extremely graphic image as a result of smoke inhalation during called the photo graphic, unwarranted, and we understand why many people the attack and ensuing fi re. Initial reports inappropriate, disgraceful, gratuitous and found it jarring,” said Murphy. “Our edito- linked the attack to the wave of angry insensitive,” the commentary said. Man- rial judgment is that it is a newsworthy reactions across the Middle East in aging Editor Marc Duvoisin explained photograph that shows the result and response to a video posted online in the the newspaper’s decision to publish the impact of a public act of violence.” United States about the Prophet Mu- photo: “What makes the photograph In an Aug. 27, 2012 piece, Poynter’s hammed. However, the Obama adminis- disturbing to some readers is also what Al Tompkins wrote about the decision tration is now investigating the attack as makes it newsworthy. An assault on a to use graphic photos to portray impor- a terrorist act committed by extremists U.S. diplomatic mission, resulting in the tant events. He recommends that news with ties to al-Qaeda, according to a Oct. death of an ambassador, is a very rare organizations ask several questions when 3, 2012 Bloomberg report. and signifi cant event. … Times editors, deciding whether to run graphic photos: Following the attack, “a freelance after careful consideration and discus- What is the real journalistic value of the photographer took pictures of Libyans sion, selected the least grisly of the avail- photographs? What do they prove and apparently carrying Mr. Stevens’s ash- able images. Our job is to present an why are they news? Do they dispel or covered body out of the scene that were unvarnished picture of the news, without affi rm information the public had prior to distributed worldwide by Agence France- carelessly offending our readers.” seeing the images? What is the tone and Presse,” The New York Times reported The media’s use of graphic images was degree of the usage? How will you warn on Sept. 12, 2012. The Times posted the also debated following an August 2012 the audience? How will you explain your graphic photo to its website, “drawing shooting outside of the Empire State decisions to the public? Tompkins said an offi cial complaint from the State Building in New York City. Jeffrey John- answering these questions will provide a Department, which requested that it be son, who had been laid off from a nearby guide for media organizations handling removed,” according to a Sept. 13, 2012 shop in 2011, came back and shot former images that are graphic and potentially Huffi ngton Post story. The Times refused colleague, Steven Ercolino, on Aug. 24, offensive in nature. to pull the photo from its website, 2012, according to the AP. Johnson was although it did not run the photo on its then shot and killed by police offi cers, print edition’s front page. Responding to whose rounds injured nine bystanders. – CASSIE BATCHELDER the State Department’s request, Associate Other bystanders captured images of the SILHA RESEARCH ASSISTANT

25 Silha Lecture Features Experts on the Ethics and Craft of Writing Restaurant Reviews

n outing to an upscale New a local community, Nelson’s “review Lecture, he sat hidden behind an York seafood restaurant [of a restaurant] affects that business umbrella with his back to the 350-per- awakened Lynne Ros- and our choices.” Stern, on the other son overfl ow crowd in the University setto Kasper, moderator hand, is expected to fi nd unusual of Minnesota’s Cowles Auditorium. of the 27th annual Silha off-the-beaten-path spots and travels With the possibility of restaurateurs ALecture, author and host of American constantly. His reviews are not based and chefs attending the event, Nelson Public Media’s “The Splendid Table,” in one community, so the expectations wanted to keep his identity a secret. to changes in the world of restaurant are different. Nelson said he relies “There is nothing worse [for a crit- reviews. A couple on the Food Critics’ Guidelines, an ic] than being recognized in a restau- SILHA CENTER sitting at a nearby aspirational code developed by the rant,” Nelson said. Because he is based EVENTS table realized Association of Food Journalists. The in Minneapolis and regularly reviews their “fresh” fi sh restaurants in the had been frozen “It is the hospitality business. If that isn’t community, Nel- and complained to the waiter. “Then son said it is im- the waiter made a huge mistake,” she present, no matter how good the food is, I portant that he has said. “He debated with them.” Rossetto probably wouldn’t recommend it.” dining experiences Kasper watched the diner’s response: similar to those in the midst of the incident, one of the — Michael Stern, of his readers. He customers began texting on his cell Food Critic/Author, makes multiple phone. Assuming the customer was visits at various Roadfood.com posting a negative online review of times of the day, the newly-opened restaurant, Rossetto sometimes alone; Kasper thought, “This is the new world he also makes of restaurant reviewing. I wonder how reservations and long this place is going to be open.” Guidelines note that food journalists uses a credit card in other names. The ethics of how restaurant critics are still journalists and should follow Stern, by contrast, is often only able to approach their work, especially given the general ethics of the profession, make one visit while on the road. Stern the explosion of popular online sites and also provide a number of sugges- commented that, when chefs recognize such as Yelp and Urbanspoon, were tions specifi c to restaurant reviewers. him, he can tell that “they fussed and the focus of the Oct. 25, 2012 event, For example, they state that reviewers they fretted” and “the meal just wasn’t titled “A Question of Taste: The Ethics should maintain anonymity and make as good” as if it had been simply made. and Craft of Restaurant Reviewing.” multiple visits to a restaurant to better Stern and Nelson each attempt to The panel included Rick Nelson, res- gauge the restaurant‘s overall perfor- taste as broad a range of menu items taurant critic and food writer for the mance. Also, they recommend that the as possible. Stern said this would be Minneapolis Star Tribune, and Michael reviewer should sample a wide vari- easier to do if he and Jane Stern could Stern, who, along with his writing part- ety of menu items and the reviewer’s make multiple visits to restaurants. Be- ner Jane Stern, created the “Roadfood” employer should pay for the meal to cause they cannot, “Jane carries a re- empire, which celebrates regional din- ensure the reviewer never accepts ally big purse and a lot of plastic bags,” ing around the country. a free meal. Critics should also wait he said, drawing a laugh from the audi- Rossetto Kasper, Stern, and Nel- at least a month after the restaurant ence. He explained that they often visit son contemplated the “new world” of opens to the public to visit to give the “lovely mom-and-pop places” where online reviews posted by “ordinary” restaurant an opportunity to establish they would likely “trouble somebody” patrons. “Part of me thinks that the itself. The guidelines also address if they did not fi nish their meal, so they more people talking, tweeting, blog- negative reviews, noting that a nega- often take the uneaten food with them. ging with a burning interest in my tive review should be “accurate and A particular concern Stern faces is subject, the better,” Nelson said. fair.” If a reviewer decides he will write paying for meals. Although Nelson has Nelson and Stern agreed, however, negatively about a restaurant, he must a budget provided by the newspaper, that the lack of information about the be sure to adhere to the rest of the Stern is more readily recognized and reviewers’ background and potential Guidelines and keep in mind that he is often receives offers for free meals. motives may mislead readers. Nelson “dealing with people’s livelihoods.” The Stern said this can be diffi cult because said that the reviewer may have an Food Critics’ Guidelines are available he does not want to appear rude by underlying desire to destroy or support online at http://www.afjonline.com/ not accepting the meal, but he refuses a given restaurant. “You have to do a FoodCriticsGuidelines.cfm. to accept free meals to avoid feeling lot of reading between the lines and Nelson and Stern highlighted differ- obligated to review the restaurant take things with lots of grains of salt,” ent approaches to the craft. Although favorably. Stern said. Stern’s photograph is featured on his The panel also discussed the prac- The panel discussed a wide range website and he and Jane Stern some- tice of waiting 30 days before visiting of ethical considerations restaurant times discuss their work with chefs, a new restaurant. But Rossetto Kasper reviewers face. Rossetto Kasper Nelson does all he can to maintain questioned the practice, suggesting distinguished between the work of anonymity to avoid receiving special that if reviewers do not visit in the fi rst Nelson and Stern. As a critic based in treatment at restaurants. At the Silha month, customers face a dilemma. 26 Nelson said food critics do not review The topic of the Silha Lecture serving their audiences. Nelson said his new restaurants just after they have proved timely as, less than a month goal is to provide accurate information opened “because it is a big deal to be later, The New York Times published for his audience and tell an entertain- in the newspaper, and a restaurant a highly negative review of a new ing story. He said food is not always usually gets only once chance to be restaurant in Times Square. Guy Fieri, the most important part of the review, reviewed.” He noted that restaurants host of Food Network’s “Diners, Drive- adding, “People go to restaurants for often go through drastic changes in in, and Dives,” opened “Guy’s Ameri- all kinds of reasons. Sometimes the their fi rst month. “I want to be as accu- can Kitchen & Bar,” and the review food is the very last reason. I try to rate as possible,” Nelson said. “I want appeared in The Times on Nov. 13, have as many kinds of experiences as to capture what I think is going to hap- 2012. The restaurant critic, Pete Wells, I can in the restaurant.” Both critics pen” when diners visit the restaurant framed the review in a series of sar- agreed that hospitality is a crucial in the future. But “if I’m a customer, do castic rhetorical questions suggesting component of any restaurant. Nelson I stay away?” Rossetto Kasper asked. the restaurant’s food, ambience, and said he views restaurants as an exten- “I do not go [to a new restaurant] as a service are very poor. Wells told the sion of the owner’s home. “Hopefully benevolent customer.” Poynter Institute’s Mallory Jean Tenore [the owner is] treating everyone who Negative reviews were another for a Nov. 14, 2012 post that he wrote comes into their commercial home like topic of conversation. Rossetto Kasper the piece as he did because it gave a long-lost friend,” Nelson said. “Lack advocated for more negative reviews, him the chance to explore a number of hospitality, or hostility,” is the worst saying, “I want to know where not to of issues he observed in four visits to thing Stern said he can experience go…We are owed as a dining public” to the restaurant. The review has been in a restaurant. “It is the hospitality know which restaurants critics con- both criticized for being too harsh and business. If that isn’t present, no mat- sider poor. When asked about negative lauded for its honesty. Natalie Morales, ter how good the food is, I probably reviews the panelists have written, Nel- news anchor on the NBC’s “Today” wouldn’t recommend it,” he added. son cited a review of a now-closed Ital- show said, “Sometimes critics go too Stern’s goal with his reviews is to high- ian restaurant in a suburb of the Twin far.” TIME’s television critic, James Po- light why a reader would want to seek Cities he wrote years ago. He said the niewozik, wrote that while some may out a restaurant, adding, “Food is all restaurant was “comically bad” and he call the review “cruel,” Wells was justi- about what it means to people.” wrote a “really, really negative review.” fi ed in advocating for higher quality, Video and audio of the full lecture Although he tossed and turned with American-style food in a Nov. 14, 2012 are available on the Silha Center worry the night before the newspaper commentary. Many online commenters, website at silha.umn.edu. Silha Center published the review, Nelson received bloggers, and professional journalists activities, including the annual lecture, almost entirely supportive emails in have expressed appreciation for the are made possible by a generous en- response, agreeing that the restaurant review’s humor and candor. Fieri has dowment from the late Otto Silha and deserved the negative review. He said stood up for his restaurant, claiming his wife, Helen. he felt relieved to know he “got it Wells had an “agenda” in writing the – CASSIE BATCHELDER right.” Stern said negative reviews are review in an appearance on “Today.” SILHA RESEARCH ASSISTANT almost non-existent in the Roadfood “Great way to make a name for your- empire as the team’s mission is to fi nd self, go after a celebrity chef that's noteworthy spots to eat rather than to not a New Yorker," Fieri told “Today’s” caution customers about where not to Savannah Guthrie. eat — his mission is simply not based Negative or not, for both Nelson on writing negative reviews. and Stern, their reviews are rooted in The Silha Bulletin Is available online at http://www.silha.umn.edu/news/

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