Morro Bay law update, 2003
New Developments in Media Law, 2002
This was prepared for the 2003 Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck, who recently retired as a professor of communications at California State University, Fullerton, and is a former communications attorney. His media law textbook, Major Principles of Media Law (Wadsworth), is now in its 14th edition. The 15th edition is scheduled to be published in August, 2003. This is the 23rd year he has presented a law update at the Morro Bay conference.
Communications law continues to expand and change rapidly. As has been customary in these Morro Bay law updates, this report summarizes some of the year's new legal developments that may affect journalists, particularly campus journalists in California. Other legal questions of interest to those attending the Morro Bay conference will also be covered during the Sunday morning law session. Richard Weinstock, a longtime practicing attorney, will join in this year's presentation, as he has twice before.
Among the highlights this year are several U.S. Supreme Court decisions
on First Amendment and media-related issues, three notable California Supreme
Court decisions expanding the state's anti-SLAPP law and several other
state and federal court decisions on media and First Amendment questions.
In addition, the state legislature passed three bills that curtail public
access to government meetings in the aftermath of the 9/11 terrorist attacks.
NEW U.S. SUPREME COURT DECISIONS AND RELATED CASES
Buckley Amendment cases
During the past year the Supreme Court decided two cases involving the Buckley Amendment, which has always created obstacles for campus journalists. Also, the high court issued a key ruling on the scope of American copyright law and handed down several other decisions on First Amendment issues.
The Buckley Amendment (officially the Family Educational Rights and Privacy Act) gives parents the right to see their children's school records and forbids the release of these school records to outside parties without the parents' consent. Similarly, it allows students over age 18 to see their own school records and requires their consent before these records may be released to outside parties. School systems that fail to obey the Buckley Amendment may be denied federal funds.
In 2002 the U.S. Supreme Court made it clear that the denial of federal funds is usually the sole remedy for non-compliance: students cannot use the Buckley Amendment to sue schools that divulge their personal information (Gonzaga University v. Doe, 536 U.S. 273). The Supreme Court also clarified another aspect of the Buckley Amendment in 2002, ruling that it does not preclude such everyday classroom practices as having students grade each others' quizzes (Owasso Independent School District v. Falvo, 534 U.S. 426). The court said the law was intended by Congress only to cover permanent records maintained by teachers and other school employees. Last year a federal appeals court addressed a related issue, holding that records of campus disciplinary proceedings must be kept secret.
Previously, several courts had ruled that the Buckley Amendment cannot be used to justify keeping campus crime records secret if they are supposed to be open under state law. For example, a federal judge so ruled in a pioneering lawsuit filed by Traci Bauer, editor of the Southwest Missouri University Standard, to compel the administration to open these records (Bauer v. Kincaid, 759 F. Supp. 575, 1991).
Soon other student editors filed similar lawsuits to force administrators to disclose campus crime or court information under state freedom of information laws. By 1997, both the Ohio Supreme Court and the Georgia Supreme Court had ruled that campus officials had to release information about campus crimes or court proceedings in spite of the Buckley Amendment (see The Miami Student v. Miami University, 680 N.E.2d 956, 1997; and Red & Black Publishing Co. v. Board of Regents of the University of Georgia, 427 S.E.2d 257, 1993). Both courts concluded that the Buckley Amendment does not apply to campus crime and court records. Note that these cases did not create any new legal right of access to university crime and court records; that is governed by state FoI laws. But if such records would otherwise be public under the applicable state law, these courts held that the Buckley Amendment does not override state laws and transform crime records into "educational records."
Congress entered this controversy by adding language to the 1998 reauthorization of the Higher Education Act declaring more emphatically that the Buckley Amendment cannot be used to justify secrecy about violent crimes and certain other crimes committed on campus. If this information would otherwise be made public (under a state open record law, for example), Congress declared that the Buckley Amendment does not change that.
Perhaps even more important, the 1998 version of the Higher Education Act also included language requiring all colleges and universities receiving federal funds (including private schools with federally insured student loans) to create and maintain a log of criminal incidents reported to their campus police or security department--and make this log public. This log must include the nature, date, time, general location and disposition of each complaint. The log must be made public within two business days, and new information that is later discovered about an incident must be added to the log and made public within two business days. There is an exception for certain information that would identify a victim or jeopardize an ongoing investigation. The 1998 law also strengthened the requirements in the 1990 legislation that colleges and universities must publish an annual report of campus crime statistics.
The 1998 legislation is officially known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. It is named in memory of a Lehigh University student who was unaware of recent crimes on her campus and who left her security door propped open, enabling an intruder to enter her room and murder her. Reports of campus crime that are filed as required by this law are sometimes called Clery Act reports.
Unfortunately for the student press, that is not the end of the story. In 1998 the U.S. Department of Education filed its own lawsuit in federal court to override the Ohio Supreme Court decision and force university officials in Ohio to keep campus crime information secret when an offense is handed through campus disciplinary proceedings. The Department of Education pointed out that the Ohio Public Records Act exempts from disclosure any record that state or federal law requires to be kept secret. Contending that the Buckley Amendment does cover campus disciplinary proceedings, federal officials obtained an injunction ordering university administrators not to release records pertaining to these proceedings. In 2002, the sixth circuit U.S. Court of Appeals upheld that injunction, ruling that the Buckley Amendment does in fact require campus disciplinary records and proceedings to be confidential (U.S. v. Miami University (294 F.3d 797).
The Miami decision did not affect the requirement that all colleges and universities disclose general information about campus crimes as well as the police log, but it did uphold the rule that campus disciplinary proceedings are confidential under the Buckley Amendment. Inasmuch as they are confidential under the Buckley Amendment, that also makes them confidential under the Ohio Public Records Act because that law exempts from disclosure anything that is secret under another state or federal law, the court concluded.
Copyright term extensions
In 2003, the U.S. Supreme Court upheld a federal law that added 20 more years to most copyright terms, rendering many copyrights valid for 95 years. Ruling in Eldred v. Ashcroft, the U.S. Supreme Court upheld the Sonny Bono Copyright Term Extension Act. The court's 7-2 majority declared that extending many copyrights so that they last 95 years did not violate either the First Amendment or the Constitution's copyright clause, which authorized Congress to provide copyright protection for limited times.
The Eldred decision was a major victory for the corporations that own most of the valuable copyrights, including movie studios, publishers and record labels. It was a defeat for historians, librarians and others who need access to older copyrighted works, and who opposed this latest extension of copyright terms because it keeps more and more older works out of the public domain where anyone could use them freely. The law was challenged by Internet publishers, historians and others, backed by a group of 53 intellectual property law professors. They pointed out that copyrights were valid for only 14 years under the original U.S. Copyright Act, enacted in 1790. Copyright owners have lobbied Congress to extend copyright terms again and again, keeping ever more older works from falling into the public domain.
Writing for the majority, Justice Ruth Bader Ginsburg rejected the argument that the repeated extension of copyright terms by Congress violated the "limited times" provision of the Constitution by creating perpetual copyrights. "Those earlier acts did not create perpetual copyrights, and neither does the (Bono Act)," Ginsburg wrote. She also rejected the idea that the extension of copyright terms does not "promote the progress of science," as envisioned by the Constitution, even though it adds value to existing copyrights and may not encourage the creation of new works.
Perhaps even more important, Ginsburg rejected the idea that the monopoly created by copyrights violates the First Amendment. She noted that the copyright clause and the First Amendment were written within a few years of each other and concluded that the framers of the Constitution did not intend for the free-expression provisions of the First Amendment to limit copyrights. In essence, she said that copyright laws are generally exempt from First Amendment scrutiny.
Justices John Paul Stevens and Stephen G. Breyer dissented. Stevens criticized the majority for "failing to protect the public interest" and "ignoring the central purpose of the copyright/patent clause." Breyer said the term extension "will likely inhibit new forms of dissemination through the use of technology."
Breyer added: "It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights, but I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public."
Core First Amendment issues
In 2002 the Supreme Court also ruled on basic First Amendment issues in several cases. In Watchtower Bible and Tract Society v. Village of Stratton (536 U.S. 150), the Supreme Court upheld the right to do anonymous soliciting without a city permit. Stratton, a small town in Ohio, adopted an ordinance that made it a misdemeanor for door-to-door "canvassers" to promote "any cause" without first obtaining a permit from the mayor's office. The ordinance also made it a misdemeanor for anyone to go to a private home where a "no solicitors" sign was posted--a provision the Jehovah's Witnesses did not challenge.
After lower courts largely upheld the Stratton ordinance, the Supreme Court overturned its permit requirement on an 8-1 vote. Writing for the court, Justice John Paul Stevens said extending such a permit requirement to religious and political advocates and other non-commercial canvassers violates the First Amendment. The court did not rule out permit systems that apply only to commercial solicitors.
Stevens said the Stratton ordinance is overbroad and "offensive--not only to the values protected by the First Amendment, but to the very notion of a free society." He condemned laws that require citizens, "in the context of everyday public discourse," to first inform the government of their desire to speak "and then obtain a permit to do so."
Stevens emphasized the right, first recognized by the Supreme Court long after the earlier Jehovah's Witness cases, of religious and political advocates to engage in anonymous speech. Any permit system for these canvassers necessarily violates that constitutional right and also precludes spontaneous acts such as going across the street to talk to a neighbor about a cause. Stevens said some citizens might "prefer silence to speech licensed by a petty official."
Responding to the town's argument that the ordinance was needed to preserve residents' privacy and protect them from crime, Stevens noted that criminals would not be likely to obtain permits before going to someone's door and said that a "no soliciting" sign is a suitable protection for those who do not want to be disturbed.
Only Chief Justice William H. Rehnquist dissented in the Stratton case. He said "(the majority) renders local governments largely impotent to address the very real threat that canvassers pose." And he predicted that the decision might actually lead to less door-to-door communication by forcing more residents to put up "no soliciting" signs.
As a result of this decision and earlier Jehovah's Witness cases, it is now a settled principle of constitutional law that government authorities may not arbitrarily grant solicitation permits to those advocating popular ideas while denying permits to advocates of unpopular ideas. Even a content-neutral permit system that merely controls the time, place and manner of free expression raises constitutional questions because it precludes anonymous religious or political speech and forces those who want to engage in this kind of activity to ask a government for prior permission.
Last year the Supreme Court also addressed the question of when government regulations concerning the use of a public place such as a park become a form of censorship. In Thomas v. Chicago Park District (534 U.S. 316), the high court in 2002 upheld the reasonableness of Chicago's rules for deciding whether to grant permits to demonstrators seeking to stage an event in a public park.
The court ruled unanimously that the city's 13-point guidelines, which require groups of more than 50 people to prove they have insurance, among other requirements, does not violate the First Amendment because it applies equally to all groups regardless of their viewpoint. Chicago officials defended the policy as necessary to assure fair access to local parks by individuals as well as large groups.
Writing for the court, Justice Antonin Scalia said, "the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place and manner regulation of the use of a public forum." He added, "the picknicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded."
The case was initiated by advocates of legalizing marijuana who frequently applied for permits to demonstrate in Chicago parks, sometimes gaining permission but sometimes being denied a permit.
Finally, in 2002 the Supreme Court addressed the conflict between the First Amendment and government attempts to regulate morality in three cases. In Ashcroft v. Free Speech Coalition, the high court overturned the Child Pornography Prevention Act's ban on images that only "appear to" depict minors in sexual activities (for example, computer-generated images or movies employing an adult "body double" when a script calls for a minor to engage in a sex act). The court did not overturn provisions of the law forbidding images that use real children in erotic poses. In Ashcroft v. ACLU, the high court held that community standards may be used to evaluate the content of the Internet, ordering a lower court to reconsider First Amendment questions raised by the Child Online Protection Act, which banned material "harmful to minors" on commercial websites. And in City of Los Angeles v. Alameda Books, the Supreme Court held that it does not violate the First Amendment for a city ordinance to forbid adult bookstores to offer video viewing booths at the same location, requiring the city only to prove that an "adult superstore" actually creates a greater burden on the community because of its combined offerings.
A three-judge federal court addressed a related issue in American Library Association v. U.S., a decision overturning the Children's Internet Protection Act's requirement that public libraries must install Internet filtering software to be eligible for federal funds, setting up another case for consideration this year by the U.S. Supreme Court.
Censoring corporate advertising on issues
In 2003, the U.S. Supreme Court is reviewing a California Supreme Court decision that said a corporation could be sued by activists to challenge the accuracy of its advertising on controversial issues, even when the corporation was responding to charges made by the activists who cannot be sued under the state's advertising fraud laws.
Few California court decisions on advertising and commercial speech have generated more controversy than the state Supreme Court's 2002 ruling in Kasky v. Nike Inc. (27 C.4th 939). In this case, the court held that Nike's public statements defending its treatment of workers in Asian factories are not protected by the First Amendment or by the California Constitution's free expression provision. Instead, a 4-3 majority of the high court held that those statements are merely advertising--and not protected from lawsuits alleging false or fraudulent advertising.
Nike responded to activists who charged that the company profited from sweatshop conditions in Asia by launching a campaign of "advertorials" (advertising that takes a position on an issue as opposed to advertising designed to sell a product) and letters to newspaper editors, among other things. Activist Marc Kasky sued Nike, alleging that the company was engaging in false advertising. Nike responded by arguing that its communications on this issue were protected free speech on a controversial issue, not advertising.
The state Supreme Court held that Kasky has a right to go to trial on his claims of false advertising--even though part of his case is based on the alleged falsity of letters to the editor. Using a new three-pronged test to determine when a corporate message is commercial speech that may be regulated for truthfulness and when it is noncommercial speech that enjoys full First Amendment protection, the court's 4-3 majority classified Nike's messages about its treatment of workers in Asian plants as commercial speech.
Writing for the court, Justice Joyce Kennard said courts must consider three elements in judging a corporate message: "the speaker, the intended audience and the content of the message." Even under this test, Kennard said some of Nike's statements would be protected by the First Amendment if they are related to a broader public debate about corporate responsibility for overseas working conditions. But, she wrote, more specific statements about working conditions in Nike factories may be regulated as commercial speech and judged for their truthfulness by a court.
In dissent, Justice Ming W. Chin said restricting only one side in a public debate (Nike), while leaving Nike's critics free to say whatever they please, is manifestly unfair. "Handicapping one side in this important worldwide debate is both ill-considered and unconstitutional," Chin said in his dissenting opinion.
In a separate dissenting opinion, Justice Janice Rogers Brown urged
the U.S. Supreme Court to take up this case and to use it as an opportunity
to reconsider the entire commercial speech doctrine, which she attacked
as irrational. Given judicial encouragement like that, Nike did appeal
to the U.S. Supreme Court, and the high court has agreed to rule on the
CALIFORNIA SUPREME COURT ANTI-SLAPP DECISIONS
Few laws ever enacted have had as profound an effect on the real world of litigation as California's pioneering anti-SLAPP law--a law written to provide a quick, inexpensive escape mechanism for those who face frivolous lawsuits for engaging in protected activities such as speaking out on the issues of the day. Citizen activists have often faced lawsuits intended to silence them--lawsuits that have come to be called strategic lawsuits against public participation. By 2002, it was clear that the anti-SLAPP law protects not only activists but anyone or any corporation that faces a meritless lawsuit that results from engaging in protected activities in the public arena.
In 2002, the California Supreme Court handed down three more decisions expanding the scope of the state's anti-SLAPP law: Equilon v. Consumer Cause (29 C.4th 53), City of Cotati v. Cashman (29 C.4th 69) and Navellier v. Sletten (29 C.4th 82).
Once again interpreting the anti-SLAPP law broadly to protect those who face meritless lawsuits as a result of their exercise of constitutionally protected rights, the court said that the anti-SLAPP law applies even without proof that the plaintiff's "subjective intent" is to deter a defendant from exercising protected rights. The court said defendants need not prove the plaintiff's motivation as long as a lawsuit arises from the exercise of protected rights.
Justice Kathryn Mickle Werdegar wrote the court's unanimous opinion in City of Cotati and in Equilon as well as the majority opinion in Navellier. She also wrote the court's opinions in several earlier decisions on the anti-SLAPP law.
The Cotati case resulted from a challenge to that city's rent control ordinance by mobile home park owners. The owners sued the city in federal court in an attempt to overturn the ordinance, and the city countersued in state court. The owners convinced a trial judge to dismiss the city's countersuit as a SLAPP case, but the Supreme Court held that the countersuit did not qualify as a SLAPP case just because it was filed after the owners engaged in a protected activity (suing the city in federal court). The city's countersuit was not the result of the protected activity but was instead an attempt to resolve the underlying dispute over the validity of the rent control ordinance, Justice Werdegar ruled.
In Equilon, the Supreme Court upheld the dismissal of a lawsuit filed by oil companies against environmentalists who accused gas stations of underground pollution.
The Navellier case resulted from a series of lawsuits former
business partners filed against each other. The court's majority said the
anti-SLAPP law applies if a lawsuit arises from a defendant's protected
free speech or petitioning activity.
RECENT LIBEL AND PRIVACY DECISIONS IN CALIFORNIA
In recent years at least four different federal appeals courts have held that they must conduct an independent review of the record when they decide whether to allow summary judgment in a libel case, and to dismiss the case if the plaintiff is someone who must prove actual malice--but cannot do so by clear and convincing evidence.
However, in 2002 the ninth circuit U.S. Court of Appeals disagreed in a case involving alleged fabrication of product testing results by Consumer Reports magazine. In Suzuki Motor Corp. v. Consumers Union (292 F.3d 1192), the court declined to uphold a trial judge's grant of summary judgment. The appeals court said it would not conduct an independent review of the record and grant summary judgment but would instead allow a jury trial on the merits of the case.
Suzuki submitted evidence that the Suzuki Samarai, which Consumer Reports said rolls over too easily, in fact never tipped during 37 tests on the magazine's test course in 1988 and was rated highest of the SUVs tested, until a senior editor demanded changes to increase the likelihood of a roll. The National Highway Traffic Safety Administration later criticized Consumers Union's testing as unscientific.
Suzuki pointed out that the magazine repeatedly cited its testing of the Samarai in publications and promotions during the decade following the original tests. The magazine rated the car's performance not acceptable because it is "likely to roll over during a maneuver that could be demanded of any car at any time."
Suzuki also alleged that Consumers Union was doing fund-raising at the time of the tests and needed a "blockbuster" story to bring it national attention. The appellate court held that the claim of financial motivation combined with evidence of rigged testing could allow a jury to find actual malice, something Suzuki would have to prove to win this case.
"We conclude that the evidence of motive and test-rigging, in combination, is sufficient to preclude summary judgment and therefore requires reversal (of a trial judge's grant of summary judgment)," Judge Wallace Tashima wrote for the 2-1 majority. In dissent, Judge Warren Ferguson said the majority "failed to apply the full procedural protections afforded by the First Amendment," thereby curtailing free expression on two important topics, consumer protection and public safety.
Several media attorneys said the Suzuki decision would make editors more reluctant to do hard-hitting stories that might lead to a costly and protracted lawsuit.
Meanwhile, the ninth circuit also ruled on a notable California invasion of privacy case in 2002. Under earlier court decisions, journalists may photograph and tape newsworthy activities that can be seen and heard in a public place, but not necessarily when the activity is only visible or audible in a private place where there is a reasonable expectation of privacy. Recent cases based on California law make it clear that surreptitious taping by journalists in a private place can be legally hazardous.
What about a journalist going onto private property with law enforcement officers? In Brunette v. Humane Society of Ventura County (294 F.3d 1205), the ninth circuit U.S. Court of Appeals ruled in favor of a reporter/photographer and the small newspaper that employed him.
The case arose when Humane Society officers investigated conditions
at an 11-acre ranch owned by Glenda Brunette, a cat breeder. The officers
got a warrant and invited the Ojai Valley News to send a reporter
to cover their raid on the Brunette ranch, which led to the seizure of
40 cats, among other animals. The federal appeals court said this differed
from several previous cases in that this reporter arrived on the scene
with no pre-planning or other collaboration with government officials and
merely covered the event by himself. The court said this case, unlike some
others, did not include enough media involvement with government to justify
a finding of state action by the reporter or his employer. Therefore, the
ranch owner in this case could not sue for a federal civil rights violation
based on the reporter's presence. However, in an unpublished section of
the Brunette decision, the federal court did say Brunette could
sue the reporter and the newspaper for invasion of privacy and trespass--once
again underscoring the legal risks when a journalist goes onto private
property to cover a story.
THE INTERNET AND LONG-ARM JURISDICTION
In 2002, the California Supreme Court addressed the question of whether website owners may be sued in this state merely because their websites may have an adverse affect on California businesses and can be viewed here. The court ruled that they cannot, a decision directly contrary to some decisions elsewhere.
The California Supreme Court held that civil lawsuits cannot be brought in this state against out-of-state residents merely because their websites are allegedly harmful to Hollywood or Silicon Valley businesses. Ruling in Pavlovich v. Superior Court (DVD Copy Control Assn.) (24 C.4th 262), the high court said a Texan could not be sued under California's long-arm jurisdiction law for merely posting on his website the DeCSS computer code that allows DVDs to be copied. The court noted that Matthew Pavlovich, the Texas website operator, had never lived in California, owned property in California, sought business in California, or even had a bank account in California. Therefore, California courts cannot assert personal jurisdiction over him, the state Supreme Court said.
The decision was a victory for civil libertarians and others who said website operators should not have to remove what could be perfectly legal material from their websites to avoid lawsuits in faraway places. Ann Brick, an attorney for the American Civil Liberties Foundation of Northern California, said, "people who use the Internet as a source of information win in this case... It means that courts are not going to be issuing default judgments that make information not available on the Internet simply because the defendants did not have the resources to come to court and raise a valid defense."
Three justices vehemently dissented in the Pavlovich case, arguing that it is unfair to force businesses to sue website operators individually in their home states and countries even if their websites have a substantial impact on businesses in California.
The DVD Copy Control Association, an entity backed by the motion picture industry, had sued numerous website operators under the state's Uniform Trade Secrets Act in an attempt to prevent further dissemination of the DeCSS software. All had posted the DeCSS software at one time or another.
After a trial court granted the association's request for a preliminary injunction ordering the website owners to remove DeCSS, the Sixth District Court of Appeal overturned the injunction, holding that it violated their First Amendment rights. The Supreme Court then held that California courts don't even have the right to entertain lawsuits against out-of-state website operators such as Pavlovich.
However, soon after the California Supreme Court's Pavlovich decision, the highest court in Australia ruled that an Australian mining magnate can sue Dow Jones, publisher of Barron's and the Wall Street Journal, in the Australian state of Victoria, where he lives. The lawsuit is based on an alleged libel that appeared on the Barron's website, based in New Jersey. Dow Jones argued that it could be sued only in the U.S., but several Australian courts disagreed. In December, 2002, the High Court of Australia held that a person who is well known in Australia can sue for libel there even if the libel appears on a website based in another country and the site owner has little contact with Australia beyond the fact that the site can be viewed there.
On the other hand, three days after the Australian decision, the fourth circuit U.S. Court of Appeals ruled in Young v. New Haven Advocate (315 F.3d 256) that the warden of a Virginia prison could not sue Connecticut newspapers in Virginia for posting material that allegedly libeled him on their Connecticut-based websites. The fourth circuit held that the articles were aimed at a Connecticut audience, denying Virginia jurisdiction over the Connecticut newspapers' websites.
Clearly, the question of which courts have jurisdiction over faraway
websites is not resolved on a worldwide basis, although it may be settled
for the moment in California--at least in cases involving someone who has
absolutely no contact with California beyond the fact that his/her website
can be viewed in this state.
POST-9/11 OPEN MEETING LAW AMENDMENTS
The California legislature has amended the state's open meeting laws in several ways to reduce public access on anti-terrorism grounds. Three such amendments took effect Jan. 1, 2003.
In SB1643, the Brown Act's provision for "emergency" meetings of local governments was expanded in two ways. First, a provision requiring one hour's telephone notice to the media of most emergency meetings was replaced by language eliminating the hour's notice and allowing the person calling the meeting to notify the media "at or near the time" that members of the agency are notified. In addition, SB1643 authorizes closed sessions at "dire emergency" meetings called in response to terrorist threats.
In AB2645, the Brown Act's provision allowing closed meetings to discuss matters affecting public safety and the security of public buildings was expanded to allow closed sessions with private security consultants, among others, to discuss threats to public services such as electricity, water and sewage treatment.
In AB2072, the Bagley-Keene Act was amended to allow closed sessions
of state agencies after a two-thirds majority vote to facilitate private
discussions of threats of "criminal activity against the personnel, property,
buildings, facilities, or equipment, including electronic data, owned or
controlled by the state body" if making this discussion public could compromise
safety or security. This bill, which is to expire in three years, requires
that closed sessions under its provisions be reported to the Legislative
A "SON OF SAM" POSTSCRIPT
Last year's Morro Bay law update reported that the California Supreme Court had just overturned the state's "Son of Sam" law in the case of Keenan v. Superior Court (27 C.4th 413).
A few months later, Gov. Gray Davis signed legislation to replace the California "Son of Sam" law. Under the new law, victims of violent crimes may sue for damages for up to 10 years after a felon is discharged from parole. Previously, victims could only sue for one year from the time a crime was committed. This allows victims to sue criminals without violating the First Amendment right of criminals to sell their stories. Davis said the new law is "an ingenious way of getting the same result." He added, "(a criminal) can still write a book or produce a movie..., but the financial rewards will end up in the pockets of victims, not in the pockets of criminals."
Despite Davis' enthusiasm for California's new "Son of Sam" law, several
prominent attorneys said it has a major flaw: it does nothing to prevent
an ex-felon who signs a lucrative book or movie contract from spending
all of the money before any victim can win a judgment and collect.
A CALIFORNIA SUPREME COURT RULING ON WIRETAPS
In 2002, the California Supreme Court ruled on the scope of the California law governing electronic eavesdropping, Penal Code Section 637.2(a). The court held that many more conversations are confidential--and therefore off limits to recording without the consent of both parties--than many journalists had hoped. In Flanagan v. Flanagan (27 C.4th 766), the high court interpreted Section 637.2(a) to mean that a communication is confidential whenever any party to it reasonably believes that it is confidential in the sense that no one is listening in or recording it. Some earlier decisions were based on a different interpretation of Section 637.2(a). Under that interpretation (which has now been disavowed by the state Supreme Court), a communication is only confidential when the participant who later objects to recording or monitoring reasonably believed at the time that the content of the conversation was confidential. When someone is talking to a journalist, a conversation is rarely confidential in that sense. Under the Flanagan rule, however, few journalists will be able to record or monitor a conversation without getting the consent of the other party because most people assume a phone call or seemingly private face-to-face conversation is confidential (i.e., it is not being recorded or monitored) until they are told otherwise.
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For more information about recent developments in media law and to see previous Morro Bay law updates going back to 1986, check the author's communications law website: