Ads on Wheels: More First Amendment Problems in the Triangle

By on September 4, 2013 in First Amendment

Nearly a year after an advertisement on Chapel Hill city buses sparked controversy, the City of Raleigh is experiencing its own public outcry over transit advertising. The Humane Society of the United States has filed suit against the Raleigh Transit Authority over the agency’s rejection of an advertisement featuring pigs in confined gestation crates used on factory farms.

The proposed ad would have wrapped around the exterior of buses and said, “How would you like to spend the rest of your life in a space as small as a bus seat? It’s what Big Pork wants for pigs. But together we can change that.” The Raleigh Transit Authority rejected the ad because it was “too negative.” 

The complaint, filed in the U.S. District Court for the Eastern District of North Carolina, alleges that the Raleigh Transit Authority’s rejection of the ad is a violation of the Humane Society’s First and 14th Amendment rights. Under the RTA advertising policy, some ads are prohibited, including those for illegal products or services, alcohol or tobacco, or advertisements that are false or misleading. Additionally, advertisements that deal with political issues, causes, or candidates, or that advocate or oppose a particular religion, belief, or creed, are not permitted.

But what about advertisements that are simply “too negative”?  There is nothing in the RTA policy about the agency’s authority to reject advertisements based on their negative messages. Emails between the RTA and the Humane Society show that the rejection took place because the ad was “too negative,” not because it was a political issue or cause. That puts the RTA in a pinch, because its decision to reject the ad was not in line with its own policy. However, one question that will need to be addressed is whether the Humane Society’s advertisement could fit into the political issues/causes category of prohibited advertisements. If the better treatment of pigs is an example of a political cause, then the RTA could refuse to accept the advertisement, and doing so would be in line with RTA policy. But that’s not what happened. The RTA refused the ad because the agency was uncomfortable with the negative tone of the Humane Society’s message.

The Supreme Court has dealt with the issue of transit advertising and the First Amendment only once, in Lehman v. City of Shaker Heights (1974). In that case the Court held that a public forum had not been created in Shaker Heights, Ohio, buses, and that the city’s refusal to permit a political candidate advertisement was constitutional. However, the Supreme Court also has been clear that governments may not discriminate against speech based on viewpoint.

Controversial transit advertisements have been popping up across the nation over the past few years, with several cases going before federal courts in Washington, D.C., California, and Pennsylvania. The subjects of these ads have ranged from Israel to Islam to inmate voting rights. Two recent federal district court opinions explored viewpoint discrimination as it applies to transit advertising, concluding that the refusal to permit ads calling for support of Israel was unconstitutional viewpoint discrimination.

The ad in question in Raleigh already has been featured on buses in Des Moines, Iowa, and Washington, D.C. “without controversy,” according to the Humane Society. The ads’ impact in North Carolina could be significant, however, since N.C. is second in the nation in pork production.

To read more about the contentious transit ads in Chapel Hill last year, see this blog post on the issue.

Liz Woolery is a third-year Ph.D. student studying legal and regulatory issues in mass communication at the UNC School of Journalism and Mass Communication.

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New York Court Orders Fox News Reporter to Comply With Colorado Subpoena to Appear in Holmes’ Criminal Trial

By on August 24, 2013 in Journalism

Gavel-300x225This week, the Appellate Division of the New York Supreme Court affirmed a decision by a lower court that a Fox News reporter must comply with a Colorado subpoena to testify as a witness — and possibly divulge her confidential sources — in the criminal trial against James Holmes, the alleged gunman of the Colorado movie theater shooting.

In July 2012, Jana Winter released an article that claimed Holmes sent a notebook to his psychiatrist that contained details of his planned attack. Holmes’ defense attorneys, concerned that the notebook leak came from a Colorado law enforcement official and that such information may affect their client’s constitutional right to a fair trial, sought sanctions against fourteen law enforcement officials who knew of the notebook. When none of the officials admitted to leaking information to the media, on January 17, 2013, Holmes’ defense attorneys moved to compel Winter to testify and produce notes from the unnamed sources cited in her article. The Supreme Court of New York County enforced the Colorado District Court subpoena and Winter appealed.

Majority Opinion

On Wednesday, the New York Supreme Court Appellate Division held 3-2 that Winter is required to testify in Holmes’ criminal case. The opinion, written by Justice Clark, cited the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), which requires a witness to testify in another state. The court held that the petitioner complied with its burden of proof under CPL 640.10 when it secured a certificate from an out-of-state Colorado judge showing that Winter’s testimony was “material and necessary” and that the compulsion to testify would not cause Winter undue hardship as the petitioner would pay for her expenses.

The court held that New York’s shield law does not grant Winter protection from the Colorado subpoena to testify in Holmes’ case. The majority opinion held that Winter will be required to testify in Colorado and that she be subject to any testimonial privileges available under Colorado’s shield law rather than those privileges granted under New York’s shield law. The majority held that “the inquiry into admissibility and privilege remains the province of the demanding State [of Colorado] rather than the sending State [of New York].”

As for the substance of Winter’s testimony, the majority decision emphasized the distinction between compelling Winter to testify and compelling her to divulge her confidential sources, saying that the record does not establish with “absolute certainty” that the Colorado District Court will require Winter to disclose her confidential sources.

The majority opinion also ordered that the court record in New York be unsealed, citing a strong public interest in open access to court proceedings.

Dissenting Opinion
Two Justices dissented. The dissenting opinion written by Justice Saxe argued that Winter is protected from appearing in another state where there is a “substantial possibility” that the court will require her to identify her confidential sources. The dissent cited the protection granted to Winter under New York’s state shield law, Civil Rights Law Section 79-h[b].

In response to the majority’s CPL 640.10 discussion, Justice Saxe challenged the majority’s analysis of the “undue hardship” requirement of CPL 640.10. The opinion referenced the initial subpoena for Winter, saying that the January 2013 certificate to compel Winter to testify was ordered to identify who disclosed the notebook contents to the journalist.

Citing New York’s public policy of providing absolute protection for reporters, the dissent argued that the majority is incorrect in its analysis of what constitutes “undue hardship.” The dissent argued that the analysis is not limited to the costs and time of travel and missing work but should also acknowledge that the ordered disclosure of Winter’s confidential sources may affect her career as a journalist. The dissent stated that the majority ignored the “practical reality” of Winter’s situation, and therefore erred in holding that Winter’s testimony would not necessarily require her to divulge confidential sources.

Looking Ahead

The court battle is far from over. On Wednesday, Fox News filed an appeal notice with the New York Court of Appeals. The appeal will ask New York’s highest state court to reject the lower court’s decision that Winter must comply with the Colorado subpoena.

Samantha Scheller is a 2L at the University of North Carolina School of Law.

(Photo courtesy of Flickr user steakpinball pursuant to a Creative Commons CC BY-SA 2.0 license.)

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Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

By on August 23, 2013 in Internet, Privacy, Transparency

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.

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Call for Papers: New York Times v. Sullivan, A Fifty Year Retrospective

By on August 20, 2013 in Defamation, First Amendment

FALROn October 12, 2013, we will be partnering with the First Amendment Law Review to help host their annual symposium, which will be focused on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan.  We’ll post more information about the symposium in the next few weeks, but if you are a scholar who writes in this area, you may be interested in submitting a paper to the First Amendment Law Review (note: the deadline is October 1).  Here is their call for papers:

The First Amendment Law Review is hosting its annual symposium in Chapel Hill, NC, on October 12, where scholars from across the country will participate in a discussion focusing on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan. In conjunction with our event, the First Amendment Law Review will also publish a symposium edition featuring articles related to Sullivan’s direct impact on the media, and articles that analyze Sullivan’s effect on a broader scale.

We are seeking articles that will be published in Volume Twelve of the First Amendment Law Review alongside work by some of our symposium panelists, which include Bruce Brown, Vincent Blasi, Ronald Cass, Stuart Benjamin, George Wright, and Ashley Messenger. As the only legal journal in the country dedicated solely to the First Amendment, the First Amendment Law Review is an ideal platform for those looking to contribute to First Amendment scholarship, and we have a tradition of hosting excellent symposia with impressive keynote speakers such as Erwin Chemerinsky and Floyd Abrams. This year, we are pleased to announce that Geoffrey Stone, Distinguished Service Professor of Law at the University of Chicago, will give our keynote address.

If you would like to be considered for publication in our symposium edition, please submit an article of at least twenty pages, including footnotes, by October 1 to falr@unc.edu. Those selected for publication will be invited, but not required, to attend our symposium on October 12, and will be recognized at the event.

 

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UNC Grad to Head Open Government Coalition

By on August 12, 2013 in Transparency

A recent graduate of UNC’s dual-degree program in media law, Jonathan Jones (M.A., J.D. 2011), has been named director of the North Carolina Open Government Coalition and Sunshine Center at Elon University.  He also will teach courses in Elon’s School of Communications.

Currently an assistant district attorney for Durham County in North Carolina, Jones will begin his new job in mid-August.  In his new job, Jones will work with the coalition’s board to organize the state’s annual Sunshine Day, advise citizens about open government issues, produce webinars or workshops around the state, handle communication for the coalition, and find new ways to inform North Carolina citizens of the value and processes of open government in the state.

Jones previously worked for the NCOGC as a legal intern in summer 2010.  He researched business models for a regional nonprofit investigative reporting center.

In a press release, Jones said: “I’m ecstatic to pick up on the tremendous work coalition members have already been doing to educate record holders and record seekers about our state’s open government laws.  Transparency in government is the cornerstone of democracy. It instills public trust and gives citizens faith in their government. I look forward to helping sunshine find its way into communities across our state.”

At UNC Jones served as editor-in-chief of the First Amendment Law Review and worked on UNC’s Innocence Project.  He has published in the First Amendment Law Review, News Media & The Law, and “Sunshine, Inc.: The Basics of Covering Business Organizations” produced by the Reporters Committee for Freedom of the Press.

He earned an undergraduate degree in journalism from UNC and worked for six years as a reporter at newspapers in Maryland and Virginia and at the News & Record in Greensboro.

The North Carolina Open Government Coalition unites organizations interested in ensuring and enhancing the public’s access to government activity, records, and meetings. The nonpartisan coalition educates people about their rights, supports their efforts to gain access, and advocates the principles and benefits of open government. The Sunshine Center is the educational arm of the NCOGC and focuses on outreach efforts to inform citizens about the importance of government openness.

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