Silha Bulletin - Summer 2003

For the first time in the history of the Silha Center, the Center drafted and filed an amicus curiae (friend of the court) brief in August in a case that will be argued before the United States Supreme Court this December. The brief was written by Silha Center Director Jane Kirtley with the assistance of Silha Fellow Doug Peters and Silha Research Assistant Thomas Corbett. The brief is available on the Silha Center's Web site under "Resources" at www.silha.umn.edu.

OIC v. Favish (Docket no. 02-954), is a Freedom of Information Act lawsuit stemming from the efforts of Allan Favish, a private citizen who practices law in Los Angeles, to gain access to the death scene photographs of Vincent Foster, the White House deputy counsel to former President Clinton who was allegedly a victim of a suicide. A full story about the case appears on page 24 of this issue of the Silha Bulletin.

In response to a request for public input from the Department of Homeland Security, the Silha Center filed comments in June on the proposed rules governing the handling of critical infrastructure information, citing several flaws in the rules, such as unclear definitions and for restricts on information sharing between federal, state, and local government agencies. The Comments were drafted by Kirtley and Corbett. A complete story about the proposed rules appears on page 39 of this issue of the Silha Bulletin.

On April 30, Kirtley, with the assistance of Silha Fellow Elaine Hargrove-Simon, filed comments on the Draft Recommendation on the Right to Reply in the On-Line Media for the Council of Europe. If adopted into law, individuals or corporations with Web sites could be compelled to post statements from those who disagree with the content of their site. In June, the Draft Recommendation was revised under the new caption, Draft Recommendation on the Right of Reply in the New Media Environment, which contained very few changes from the original. On September 14, the Silha Center responded with a summary reiterating its initial concerns.

In late August the Silha Center also joined more than two dozen media organizations in an amicus brief in McKevitt v. Pallasch, a case before the U.S. Court of Appeals (7th Cir.) concerning the scope of the federal qualified privilege protecting journalists' sources. This and other documents are posted on the Silha Center's Resource page at www.silha.umn.edu.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

U.S. Courts Rule in Access to Courts Cases

United States v. Moussaoui

The case of United States v. Moussaoui, in the federal District Court for the Eastern District of Virginia, began with a question: Can the civilian court system handle a highly sensitive, national security case and emerge with its tradition of transparency and public access intact?

After more than a year of wrangling for access by both media outlets and the defendant himself, the answer appears to be no. The government's recent refusal, on national security grounds, to obey an order by U.S. District Court Judge Leonie Brinkema, creates a possibility that the case against Moussaoui will be dismissed. That would likely result in the French national being labeled an enemy combatant and tried in a secret military tribunal. Moussaoui is the only person who faces charges in an American court in the Sept. 11, 2001, terrorist hijackings.

Brinkema had been concerned with the secrecy surrounding the case since early in the proceedings. In September 2002, she began removing some barriers to public access to the case, modifying an earlier order sealing Moussaoui's filings due to prosecutors' fears that the avowed member of al Qaeda might be trying to pass coded messages in his unorthodox, handwritten filings, according to a Sept. 28, 2002, article in The New York Times. Brinkema's modified order sealed Moussaoui's handwritten pleadings for 10 days, allowing the government to analyze the filings for potential secret messages before release. (See "Cameras Banned at Trial of Alleged Terrorist" in the Winter 2002 Silha Bulletin.)

Despite the shift, the record of the case remained largely secret. The secrecy intensified in October 2002, when Ramzi Binalshibh, an alleged Sept. 11 co-conspirator, was captured in Pakistan.

Between Brinkema's Sept. 27, 2002 order and the following April, however, only a handful of filings were unsealed, according to a Washington Post article by reporter Tom Jackman.

"Moussaoui and his standby lawyers . . . sought access to Binalshibh, who Moussaoui says will support his claims that he was not involved in the attacks," Jackman wrote in the April 4, 2003, edition of The Washington Post. "Briefs, oral arguments, even a ruling by Brinkema that the defense should have access to Binalshibh, all have been kept secret."

A group of media organizations, including the The New York Times and The Washington Post, challenged the continued secrecy on April 3. According to an April 4 article in The New York Times, the organizations filing the protest with Judge Brinkema were The New York Times, ABC News, The Associated Press, The Hearst Corporation, the Tribune Company and The Washington Post, as well as the Reporters Committee for Freedom of the Press. The media organizations argued that holding the judicial records under seal violated First Amendment and common-law rights of access to judicial proceedings.

Moussaoui has insisted on acting as his own attorney, but one of his standby defense attorneys said he supported the media's request.

"We recognize that there are national security concerns, and we certainly don't believe in compromising national security," federal public defender Frank Dunham Jr., told The New York Times, "but I can't imagine that we would take any position other than that the trial – and all pretrial proceedings – should be public to the maximum extent possible."

The day after the media organizations' challenge, Brinkema said she was unsure whether the case against Moussaoui could go ahead amid such secrecy, according to an April 5, 2003, article by Minneapolis Star Tribune reporter Greg Gordon.

The judge's concerns were borne out soon thereafter.

On May 13, 2003, the U.S. Court of Appeals (4th Cir.) refused the government's request to overturn Brinkema's January 2003 decision granting Moussaoui access to Binalshibh as part of his defense.

"The value of openness in judicial proceedings can hardly be overestimated," the court wrote, according to a May 14 report in The New York Times. "This value, of providing to the community at large a sense that justice has been done, is particularly relevant in the prosecution of Moussaoui."

Following the ruling, Brinkema pressured the government for a decision about whether it would comply with her ruling, setting a July 14 deadline for notification. Attorney General John Ashcroft notified Brinkema on the day of the deadline – immediately after the Fourth Circuit announced that it would not review the decision en banc – that the government would not comply with her ruling, according the Minneapolis Star Tribune. Ashcroft cited national security concerns.

According to the Star Tribune, Brinkema may be compelled to dismiss the charges against Moussaoui. That decision, if upheld on appeal, would force the government to declare Moussaoui an enemy combatant and try him in a secret military tribunal. Among Brinkema's other options, the Star Tribune reported, are eliminating the possibility of the death penalty for Moussaoui; eliminating any mention by the prosecution of Binalshibh, who was mentioned in the government's indictment of Moussaoui; or informing the jury that the government refused to produce a requested witness. As the Bulletin went to press, Brinkema had not announced which course she would take.

—Doug Peters
Silha Fellow

U.S. Courts Rule in Access to Courts Cases

Government Requests Closure of Deportation Hearing

The Department of Homeland Security (DHS) in early August 2003 asked immigration Judge Robert Newberry to close the Detroit deportation hearing of a Syrian man with alleged ties to al-Qaeda.

The DHS quickly scaled back its request after the Detroit News objected.

After the newspaper filed its challenge, the government asked to close only those portions of the hearing involving an FBI memo. Newberry granted the government's revised request Aug. 12, 2003, according to an Aug. 13, 2003, report in the Detroit News.

Nabil al-Marabh, a 37-year-old Syrian who was on the government's terrorist watch list in September 2001 and who was detained less than two weeks after the Sept. 11, 2001 terrorist attacks, opposed the government's effort to close the hearing.

The government's original closure request came less than a year after a three-judge panel of the federal Court of Appeals held in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) that the First Amendment forbids the wholesale closure of immigration hearings. The Sixth Circuit later refused a government request for the entire court to review the case.

A month after the Sixth Circuit panel's decision, the Third Circuit ruled that such proceedings are administrative, not judicial, and therefore are not subject to the First Amendment's presumption of openness. (See "Sixth, Third Circuit Courts Split on Deportation Hearing Question" in the Fall 2002 issue of the Silha Bulletin.)

—Doug Peters
Silha Fellow

U.S. Courts Rule in Access to Courts Cases

Courtroom Television Network, LLC. v. State of New York

In July 2003, the Supreme Court for New York County, a trial court, ruled against Court TV's challenge to the constitutionality of the New York state law barring television cameras from trial courts. (See Courtroom Television Network, LLC. v. State of New York, 2003 WL 21787909 (N.Y. Sup. 2003).)

Court TV filed suit in September 2001, seeking a declaratory judgment that the section of New York's Civil Rights Law banning audio and visual broadcasting equipment from trial courts violated the First Amendment. The network also asked the court to forbid further enforcement of the law.

Judge Shirley Werner Kornreich denied Court TV's request, ruling that nothing in the state law undermined citizens' right to attend trials and that "audio-visual coverage of trials is neither prohibited nor required under the First Amendment." Accordingly, Kornreich said, a court may impose reasonable restrictions on broadcast coverage of court proceedings.

Kornreich's opinion includes a detailed discussion of the history of New York's stance on broadcasting court proceedings, describing the state's 10-year experiment which allowed televised criminal trials in some situations. The law expired under its own terms and was not reenacted.

Court TV, represented by David Boies, said it would appeal the July 15 ruling.

In her opinion, Kornreich states that it is difficult to pin down state-court policies in "what is essentially a national patchwork quilt of policies."

"Still," the judge wrote, "it is undisputed that today, a substantial majority of states permit audio visual coverage of trial court proceedings."

—Doug Peters
Silha Fellow

U.S. Courts Rule in Access to Courts Cases

The Laci Peterson Murder Trial

Stanislaus County (Calif.) Superior Court Judge Al Girolami has banned cameras and recording devices from the preliminary hearing of murder suspect Scott Peterson. The Aug. 18, 2003, ruling does not bar reporters from the courtroom, but forbids any sort of broadcast, tape recording or still photography of the proceedings.

Defense attorneys appealed Girolami's earlier decision to open the preliminary hearing to the public. An appeals court upheld Girolami's decision on Aug. 27.

Peterson is accused of killing his wife, Laci, who was pregnant with the couple's first child, and dumping her body into the San Francisco Bay.

In denying media requests to televise or otherwise record the hearing, Girolami said he did not want to turn his courtroom into "Reality TV," according the San Francisco Chronicle.

"It involves the victims' families, who will be forced to relive their worst nightmare in a very public way, which unfortunately is necessary to the process. Televising these passionate proceedings is not, however, necessary to the process," Girolami wrote in a six-page ruling.

The ruling stemmed from media requests in July to open Peterson's preliminary hearing, in which evidence supporting the charge against Peterson likely will be discussed.

"At stake is public confidence in a judicial system that abhors taking evidence in secret and assumes that any member of the public may be present to observe its operation," attorneys representing a coalition of media outlets argued, according to Reuters.

The newspapers' requests were joined by requests from broadcasters. News outlets, including Court TV and CNN, had argued for cameras in the proceedings. Both the prosecution and defense, as well as Scott Peterson's family and Laci Peterson's family, opposed televising the proceedings. They cited concerns over the emotional impact on family members, as well as the fear that the presence of cameras would affect the conduct of the proceedings.

In arguing against allowing broadcast media in the courtroom, Peterson's attorneys stated that closing the preliminary hearing would help prevent prejudice against Peterson, CNN.com reported. They added that opening the hearing would defeat the purpose of a gag order the court imposed earlier to calm the widespread media attention paid to the case. CNN's report is available online at http://www.cnn.com/2003/LAW/08/11/Peterson.exam/index.html.

—Doug Peters
Silha Fellow

Courts Rule in Access to Documents Cases

United States v. Reynolds

Recently declassified government documents were at the heart of a request to reopen a 1953 U.S. Supreme Court case involving the crash of an Air Force plane that killed nine people, four of them civilians. The families of three of the deceased men petitioned the high court for a writ of coram nobis, that is, to correct a judgment it made that was later found to turn on an error of fact. That case is United States v. Reynolds, 345 U.S. 1 (1953). Because the case was decided during the Cold War, legal scholars cite it as setting the precedent that gives the executive branch the power to withhold information from the judiciary when national security could be compromised. The case was invoked in arguments in both the Pentagon Papers and Watergate trials.

In 1948, Albert Palya, William H. Brauner and Robert Reynolds were civilian engineers working with the Air Force to develop secret navigation equipment. On October 6, they joined an Air Force flight crew in a B-29 bomber, flying from Robbins Air Force Base in Georgia to Orlando, Fla., to test the new equipment. However, on the return leg of the flight, the plane crashed in Waycross, Ga., and the three civilians were killed along with six others onboard the plane.

The widows of the three men filed suit under the Federal Tort Claims Act (FTCA). Passed in 1946, the law allows citizens to sue the government for harm caused by its negligence or misconduct. Their attorney was Charles Biddle, who had himself been a fighter pilot during World War I. According to The Washington Post, Biddle was familiar with B-29s and knew they were prone to accidents. In 1950, as part of his preparations for the trial, Biddle requested the Air Force's report of the investigation of the 1948 accident. His request was denied.

Biddle then went to Federal District Judge William Kirkpatrick of the Eastern District of Pennsylvania and informed him that the government had refused his request. Kirkpatrick ordered the government to produce the report. Thomas Finletter, then secretary of the Air Force, responded with a letter stating that it would not be in the "public interest" to do so.

Kirkpatrick scheduled a hearing so that the government could justify its position. At the hearing, a sworn statement from Maj. Gen. Reginald Harmon, the judge advocate general of the Air Force, was presented to the court. Harmon argued that the information contained in the Air Force's report on the 1948 accident would harm national security. Kirkpatrick decided to review the report himself in camera, but the Air Force would not agree to the arrangement. Kirkpatrick responded by simply entering judgment for the widows on their negligence claim.

The government appealed Kirkpatrick's ruling to the U.S. Supreme Court, arguing that it could withhold documents on the basis of "public interest." On March 9, 1953, the Supreme Court agreed in a 6-3 decision, and precedent was set.

Meanwhile, the widows' suit was remanded and they received smaller financial settlements than they originally sought. The women went on with their lives.

Nearly 50 years passed.

During the 1990s, the Air Force declassified its airplane accident reports spanning the years from 1918 to 1952. Michael Stowe, a man with a fascination for old airplane crashes, obtained the reports and began offering copies of them for sale on the Internet at http://www.Accident-Report.com/. Judith Loether, Palya's now-grown daughter, discovered the Web site and ordered a copy of the report concerning the crash.

The report revealed that just prior to the crash that killed her father, the first of four engines caught fire. Rather than slowing the propellers to the first engine, Capt. Ralph R. Irwin, the plane's pilot, slowed the propellers to the fourth. Then, in another effort to avert disaster, he mistakenly shut off the fuel to the second engine when he should have done so with the first.

Additional findings disclosed that technical orders intended to correct problems with the plane's rivets had not implemented, making the plane unsafe for flying; that a collector ring on the first engine had failed; and that neither the flight crew nor the civilians onboard had been properly briefed in safety measures prior to takeoff. Nothing in the report mentioned the secret navigation equipment that had been the focus of the mission.

Family members of the deceased civilians returned to Drinker Biddle & Reath LLP, the law firm that handled their 1950 case, seeking to petition the Supreme Court for a writ of error coram nobis on the basis of these newly-discovered facts, and accusing the Air Force of fraud. In its brief to the high court, attorneys wrote, "United States v. Reynolds stands exposed as a classic Ôfraud on the court,' one that is most remarkable because it succeeded in tainting a decision of our nation's highest tribunal. The fraud is clearly established by the Air Force's recently declassified materials."

The brief claims that the Air Force wanted to keep the real causes behind the 1948 crash secret because it was a recently-established branch of the military services and also because the safety of the B-29 bomber was coming under question. To further complicate matters, the United States stood at the brink of the Cold War. But the Air Force's disclosure of the truth concerning the accident, the brief continues, "could not and would not have threatened any facet of secret military research, let alone our national security."

Attorneys for the family members asked the Supreme Court to vacate its 1953 decision and decide the case anew with the facts contained in the declassified documents. On the basis of the anticipated new decision, the attorneys also requested that their clients be compensated as provided by the Federal Tort Claims Act.

However, on June 23, 2003, the Supreme Court refused to hear the case without comment.

Secrecy News reported on the Supreme Court's decision not to rehear the case, characterizing the legal status of U.S. v. Reynolds as "unaffected," adding, "But for some attentive members of the public, the fifty-year-old decision nowcarries an asterisk, a taint of suspected fraud."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in Access to Documents Cases

Center for National Security Studies v. Department of Justice

A divided federal Court of Appeals (D.C. Cir.) panel ruled this summer that exemptions to the federal Freedom of Information Act (FOIA) allow the government to withhold the names of detainees taken into custody following the September 11, 2001 terrorist attacks.

The ruling in Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), raised concerns among some human-rights and civil-liberties groups that the government may avoid disclosing public information simply by invoking national security grounds, regardless of whether those grounds are legitimate.

The case began in late October 2001, when a coalition of public interest groups led by the Center for National Security Studies filed a FOIA request with the U.S. Department of Justice seeking records regarding more than 700 people taken into government custody following the attacks.

The vast majority of those in custody faced deportation for immigration violations. Some, like Zacarias Moussaoui, were criminally charged. At least a handful of others were held as material witnesses to the terrorist attacks. At the time the request was filed, nearly two months after the unprecedented roundup began, the federal government had not released the names of those it was holding. The government's subsequent denial of the FOIA request prompted the litigation in U.S. District Court for the District of Columbia. The district court ordered the government to disclose the names of individuals detained in the days and weeks following the Sept. 11, 2001, attacks. (See "Center for National Security Studies v. U.S. Department of Justice" in the Fall 2002 Silha Bulletin.)

The D.C. Circuit reversed the district court ruling, allowing the government to withhold detainees' names. The panel majority held that FOIA exemptions allow the government to withhold the names of detainees and their attorneys, as well as other information that could identify the detainees. Judge David Sentelle, joined by Judge Karen Henderson, wrote that where issues of national security are concerned, courts should defer to the executive branch when considering whether to allow the government to withhold information.

Judge Tatel dissented, writing that the court's willingness to defer to the government "eviscerates both FOIA itself and the principles of openness in government that FOIA embodies." He asserted that the approach taken by his colleagues risked eliminating judicial review of any executive decisions to withhold information on national security grounds. Such a stance, he argued, endangers the public's ability to keep tabs on its government. In this particular case, Tatel wrote, there was a strong public interest in knowing whether the government was violating the Constitutional rights of the hundreds of detainees whose identifying information was withheld.

Tatel's concerns have been echoed by human-rights and civil-liberties organizations, which have criticized the decision. In a release by Human Rights Watch on the day the court announced its decision, the organization's U.S. program director, Jamie Fellner, said the decision gave the government a potential end-run around the requirements of FOIA.

"The government," Fellner said, "shouldn't be able to justify secret arrests simply by invoking the words Ônational security.'"

Human Rights Watch's release on the decision is available online at: http://www.hrw.org/press/2003/06/us061703.htm.

At issue in the case were exemptions in FOIA that allow the government to withhold law enforcement records for selected purposes. In seeking to withhold the information, the government invoked four separate FOIA exemptions. The court, however, based its decision on only Exemption 7(A), which states that the government may withhold records if disclosure could "reasonably be expected to interfere" with law enforcement investigations.

The government contended, and the court agreed, that identifying those individuals swept up by government investigators in the weeks and months after the terrorist attacks could provide terrorists with a roadmap to the government's investigation. Providing further information sought by the plaintiffs, including date and location of arrest, could offer even more insight into how the government had organized and orchestrated its investigation, which in turn could allow terrorist organizations to adjust their methods and avoid detection, the government argued.

Attorney General John Ashcroft issued a statement calling the ruling "a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations . . .."

"We are pleased the court agreed we should not give terrorists a virtual roadmap to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts," Ashcroft said.

Ashcroft's statement can be found online at http://www.usdoj.gov/opa/pr/2003/June/03_ag_358.htm

The groups seeking the information contended that they had a common-law right of access to government records. The court panel agreed with earlier Supreme Court precedent that such a right exists, but held that in this case, any common law right was superseded by FOIA. The court also rejected the plaintiffs' argument that they had a First Amendment right to the information. The First Amendment, the panel stated, prevents the government from curtailing speech, but "does not expressly address the right of the public to receive information. Indeed, in contrast to FOIA's statutory presumption of disclosure, the First Amendment does not mandate a right of access to government information or sources of information within the government's control." (Internal quotation marks and citation omitted).

—Doug Peters
Silha Fellow

Courts Rule in Access to Documents Cases

Universal City Studios, Inc. v. Superior Court of Los Angeles County

A California appeals court ruled in late June that sealing documents in civil lawsuits "requires more than a mere agreement of the parties." The decision in Universal City Studios, Inc. v. Superior Court of Los Angeles County, 2 Cal.Rptr.3d 484 (Cal. App. 2d Dist. 2003)), involved disclosure of the terms of a settlement agreement between two movie companies, Universal City Studios and Unity Pictures Corp., in litigation brought by Unity Pictures to rescind an allegedly fraudulent clause in the settlement.

Under California law, substantive courtroom proceedings may not be closed and transcripts may not be sealed unless the court finds that an overriding interest exists supporting closure and/or sealing, and that failing to close the proceedings or seal documents would create a substantial likelihood of prejudice against the party claiming the interest. The court must also find that the closure or sealing directly serves the interest of the party seeking to seal the records, and that it could not protect the claimed interest while keeping the court proceedings open. (See "U.S. Court Rulings Affecting Access to Information: South Carolina District Court Bans Secret Settlements" in the Fall 2002 issue of the Silha Bulletin.)

In an opinion written by Presiding Judge Paul Turner, the court held that Universal's interest in keeping the settlement terms secret did not outweigh the public interest in having court proceedings open. In the absence of such an overriding interest, the court said, contractual language calling for secrecy was not enough to compel sealing of court documents.

—Doug Peters
Silha Fellow

Courts Rule in Access to Documents Cases

Transcripts Unsealed in Terrorist Case

In early June 2003, New Jersey Superior Court Judge Marilyn Clark agreed to unseal previously secret transcripts of bail hearings for Mohammed El-Atriss, who admittedly provided fake ID cards to two of the 19 hijackers involved in the Sept. 11, 2001 terrorist attacks.

At the first of the hearings, held Nov. 19, 2002, testimony against el-Atriss was compelling enough to convince Clark to double the 46-year-old's bail from $250,000 to $500,000, according to a June 25, 2003, report in The New York Times.

Clark's decision was in response to a motion by media companies to unseal the transcripts. The documents were released later in June, according to the New York Times report. The New York Times further reported that the transcripts contained testimony from Passaic County investigators indicating that a business partner of El-Atriss had been investigated by the FBI for links to terrorism and that El-Atriss might have had contact with two more September 11 hijackers, in addition to the two to whom he provided ID cards.

El-Atriss held a press conference to deny all of the charges and to threaten a lawsuit against the Passaic County for mistreatment he allegedly suffered during his six-month confinement, according to the New York Times report. Federal authorities also downplayed the importance of the testimony contained in the transcripts, saying that El-Atriss was not considered a threat to national security.

El-Atriss accepted a plea deal in February in which he pleaded guilty to one state count of selling simulated documents. He was sentenced to five years' probation and a $15,000 fine.

Initially, El-Atriss' attorney stated that releasing the transcripts could jeopardize national security but dropped their argument when no government agency opposed disclosure, according to a report by the Reporters Committee for Freedom of the Press (RCFP). Defense counsel then argued that releasing the transcripts could ruin El-Atriss' reputation by publicizing that what El-Atriss had stated was erroneous testimony, wrongly associating him with terrorism. The RCFP report is available online at http://www.rcfp.org/news/2003/0613inrere.html.

—Doug Peters
Silha Fellow

Court Rules in Access to Meeting Case

Star Tribune Co. v. University of Minnesota Board of Regents

The Minnesota Court of Appeals ruled that the Board of Regents of the University of Minnesota violated the Minnesota Open Meeting Law (OML) and the Minnesota Government Data Practices Act (GDPA) when it secretly interviewed candidates to fill the post of university president. (See Star Tribune Co. v. University of Minnesota Board of Regents, 667 N.W.2d 447 (Minn. App. 2003).) The court of appeals affirmed a district court ruling that the Regents violated these laws and must disclose data on the candidates.

The Regents conducted closed meetings with selected candidates for the university presidency, citing the candidates' confidentiality concerns. The Minneapolis Star Tribune, the St. Paul Pioneer Press, the Minnesota Daily (the student newspaper at the university), as well as other media groups sought data on the unsuccessful candidates directly from the Board of Regents under the GDPA. The Regents refused to divulge the information. The media then sued and sought an order compelling disclosure. The media argued that the information must be disclosed under the GDPA, and that the Regents had violated the OML.

After losing at the district court level, the Regents, on appeal, again argued that the GDPA and the OML did not apply to their search for a university president. Finally, the Regents argued that the Minnesota Constitution precludes the application of both the GDPA and the OML to the university's and the Regents' efforts to find a president. The Regents claimed that they could choose not to follow the GDPA and the OML because the university is independent and self-governing under the state constitution.

In an opinion by Judge James C. Harten, the court of appeals held that both the GDPA and OML apply to the procedures that the Regents employed to find a new university president and that the Minnesota Constitution does not exempt the university from complying with those laws.

The court found that the GDPA explicitly states that it applies to the university as a state agency. The court was not persuaded by the Regents' argument that although the GDPA applies to the university generally, it does not apply to Regents' efforts to hire a new president. The court found that the GDPA statute contains no language to that effect.

The court of appeals also held that the OML applies to the university as a public body and applies to the procedure used by the Regents to hire a news president. Although the OML includes exceptions, the statute provides no exceptions for Regents engaged in recruiting a new president.

Lastly, the court of appeals denied the Regents' argument that the university is exempted from following the GDPA and OML because the university is independent under the Minnesota Constitution. The court recognized that the Regents have a "constitutional mandate to control and manage the university." The GDPA and OML, however, impose only procedural restrictions on that control. The acts do not affect the substantive control and management the Regents exert on behalf of the university.

The court of appeals noted that many states have considered whether searches for public university presidents should be open, and that although decisions have been inconsistent, the trend is toward public presidential searches.

On August 27, the Minneapolis Star Tribune reported that the Regents will appeal the case to the Minnesota Supreme Court.

—Thomas Corbett
Silha Research Assistant

Courts Rule in Internet Cases

United States v. American Library Association

In June, a divided Supreme Court upheld the constitutionality of a federal law that, in exchange for federal funding for Internet access, requires public libraries to install Internet filtering software to protect minors from pornography.

In United States v. American Library Association, Inc., 123 S.Ct. 2297 (2003), the Supreme Court held that Internet access at public libraries cannot be considered a traditional or designated public forum. Thus, the Court did not review the law under strict scrutiny, the highest standard of review for any law.

Strict scrutiny requires that the government be pursuing a compelling government interest through its action, and that the means employed by the government to effectuate its goal are necessary; that is, there is no less restrictive means that would accomplish the government's goal with less burden on freedoms and liberties.

In 2000, Congress passed the Children's Internet Protection Act (CIPA; particularly 20 USC ¤ 9134 (f) and 47 USC ¤ 254 (h)) to encourage public libraries, in exchange for federal funding for Internet access, to block Internet child pornography and other obscene images, and to prevent minors from using the libraries' computers to gain access to visual depictions that would be harmful to them, such as pornography and violence (See "Developments in Internet Law: The Internet and Public Libraries" in the Summer 2002 issue of the Silha Bulletin.). The goal of the government – blocking child pornography and obscenity and protecting minors from harmful materials – is recognized as a compelling government interest.

The question the Supreme Court faced is whether the means chosen went too far. Strict application of CIPA results in some constitutionally-protected speech being filtered. An adult library patron attempting to access Internet sites that are filtered because they contain visual depictions harmful to minors would need to ask library staff to turn off the filters to view the blocked Web sites.

A group of libraries, library patrons, web site publishers, and related parties successfully challenged the constitutionality of the statute in 2002 in the federal court in the Eastern District of Pennsylvania. (American Library Ass'n, Inc. v. U.S., 201 F. Supp.2d 401 (E.D.Pa. 2002)) The group argued that the law violated the free speech guarantees of the First Amendment. Pursuant to CIPA, a special three-judge panel heard the case, and agreed that the law was unconstitutional.

The Supreme Court reversed that decision. The opinion of a four-Justice plurality – consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas – was joined by Justices Kennedy and Breyer, who wrote separate concurring opinions. Accordingly, a majority of the high court held that "public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights." These six justices held that CIPA "does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power" and does not "impose an unconstitutional condition on public libraries."

The four-justice plurality opined that Internet access in public libraries is neither a "traditional" nor a "designated" public forum requiring heightened constitutional protections.

Public forums are public property where people gather to express ideas and exchange views. A traditional public forum is one that has long been used by the public for assembly and expression. Examples of traditional public forums include streets, sidewalks, and parks. A designated public forum is one that has not been traditionally used for public assembly and debate, but the government has opened for use by the public as a place for expressive activity. Examples of designated public forums might include public university facilities used by student groups or a theater in a public museum. Any government restriction based on the content of the speech in either a traditional or designated public forum must satisfy strict scrutiny.

The Supreme Court found that Internet access at a public library is neither a traditional public forum, nor is it a designated public forum. Such access is not a traditional public forum because of its novelty. It is not a designated public forum because the government has not made an affirmative choice that Internet access at public libraries constitutes a public forum.

The plurality cited Arkansas Educational Television Comm'n v. Forbes, where the Supreme Court, in 1998, held that public forum principles do not generally apply to public television stations' editorial judgments regarding what private speech they present to viewers. (523 U.S. 666 (1998)) The Court in Forbes held that "broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations." Allowing broad rights of access for outside speakers "would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion."

The plurality found Internet access in public libraries to be analogous to the public television circumstances in Forbes. The plurality reasoned that libraries have broad discretion to make content-based judgments, such as excluding pornography, in deciding what free speech is available to the public to fulfill the traditional mission of public libraries.

Justice Kennedy wrote in his concurring opinion that because library patrons can simply ask library staff to unblock web sites when constitutionally-protected Internet material is being filtered, "there is little to this case." The government's compelling interest outweighs such a minor burden on free speech, Kennedy reasoned.

Justice Breyer agreed. In his concurring opinion, Justice Breyer reasoned that "the comparatively small burden" that CIPA imposes was constitutional. Breyer agreed with the plurality that the public forum doctrine is inapplicable to the case, that strict scrutiny does not apply, and that the statutory provisions of CIPA are constitutional, but arrived at these conclusions differently than the plurality, applying a form of higher scrutiny than the plurality did, but still not going so far as applying strict scrutiny.

Justice Stevens, in a dissenting opinion, argued that CIPA is unconstitutional as it is too broad and results in a large amount of valuable, constitutionally-protected material being filtered: "Rather than allowing local decisionmakers to tailor their responses to local problems, the Children's Internet Protection Act operates as a blunt nationwide restraint."

In a separate dissenting opinion, Justice Souter, joined by Justice Ginsburg, wrote, "There is no good reason . . . to treat blocking of adult enquiry as anything different from the censorship it presumptively is." These justices argued that conventional strict scrutiny applied to CIPA and that the law is unconstitutional.

—Thomas Corbett
Silha Research Assistant

Courts Rule in Internet Cases

Minneapolis Librarians Reach Settlement

In August 2003, the City of Minneapolis settled a lawsuit brought by a dozen of its public librarians who alleged that workplace exposure to Internet pornography made the city's downtown library a hostile workplace. Since 1997, when the library began offering computers with Internet access to its patrons, the computers allegedly became a "magnet" for users who sought images "displaying virtually every kind of human sexual conduct," according to the suit which was filed in federal district court in Minneapolis on March 24, 2003, in an effort to stop patrons from viewing explicit Web sites in an area where the librarians, as well as the public, would be exposed to the images. At times, librarians who asked the computer users to refrain from viewing obscene sites were met with threats, according to the Minneapolis Star Tribune.

Although one of the librarians complained to then-library director Mary Lawson, staffers believed she did not take their complaints seriously, the Star Tribune reported, prompting a group of librarians to file suit against state and federal agencies. Several librarians then filed an Equal Employment Opportunity Commission Complaint, and in 2000, guidelines designed to curtail viewing of obscene sites were adopted by library officials. However, in 2003, twelve librarians filed suit against state and federal agencies for three years of suffering in Adamson v. Minneapolis Public Library, No. 03-2521.

At the encouragement of Judge Jonathan Lebedoff working with new library director Kit Hadly, a settlement of $435,000 was awarded to the librarians. Even though a majority of the trustees of the Minneapolis public library oppose the installation of filtering software, as a condition of settlement, library officials will consider installing Internet filters, as well as making changes in policies regarding the printing of Internet materials and penalties for library patrons who access pornography on city library computers. Penalties may include banning individuals from city libraries for up to a year; viewers of child pornography could lose library privileges permanently. Under current policy, patrons who view obscene sites could have their privileges suspended for 90 days.

In a joint statement, the plaintiff librarians said, "We believe the financial settlement in this case sends a strong message to libraries around the country." The plaintiffs cited the stance of the American Library Association favoring open access to information at libraries as contributing to the delay in resolving the dispute. (See "Librarians File EEOC Complaint in Minneapolis" in the Winter 2001 issue of the Silha Bulletin.)

—Thomas Corbett
Silha Research Assistant

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in Internet Cases

A.A. v. New Jersey

U.S. Circuit Judge Dolores K. Sloviter ruled that there is a compelling state interest in posting the address of convicted sex offenders on the Internet, overriding their privacy interest. The case, A.A. v. New Jersey, U.S. App. LEXIS 16853 (2003), considered Megan's Law, a statute that requires the address and other information about sex offenders to be released to the community in which they live. Sloviter cited an earlier case, Paul P. v. Farmer, 227 F.3d 98 (3rd. Cir. 2000), quoting, " Megan's Law's fundamental purpose . . . is public disclosure." (Emphasis in the original.)

New Jersey was the first state in the country to adopt Megan's Law, named after Megan Kanka, a 7-year-old girl who was abducted in New Jersey in 1994. She was raped, then murdered by a neighbor who was a convicted sex offender. Following the passage of Megan's Law, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. That act gives states federal funds on the condition that each state adopt its own law designed after New Jersey's Megan's Law.

A.A. v. New Jersey began in the U.S. District Court in New Jersey, where Judge Joseph Irenas ruled in December 2001 that Megan's Law did not constitute further punishment for sex offender crimes, and therefore did not violate their rights under the Constitution's Ex Post Facto and Double Jeopardy clauses. However, Irenas found that the convicted offenders' argument that disclosure of their home addresses violated their right to privacy had merit. (See A.A. v. New Jersey, 176 F. Supp. 2d 274 (2001)). Both sides appealed to the Third Circuit, but the case was placed on hold while another case, Smith v. Doe, was before the U.S. Supreme Court. The high court eventually ruled that posting certain information on the Internet, including certain personal information such as name, age, and personal description, did not constitute a punitive measure. (See Smith v. Doe, 123 S. Ct. 1140 (2003); see also, "Sex Offender Registration Ruled Not Punitive," in the Winter 2003 issue of the Silha Bulletin.) Sloviter cited Smith v. Doe, writing, "The purpose and principal effect of notification are to inform the public for its own safety, not to humiliate the offender."

Sloviter wrote that Megan's Law was designed to provide information about convicted sex offenders to a community. But in addition, information such as an individual's address is important to everyone in a mobile society. "The Registrants' argument ignores both the need to access information in a mobile society and the difference between the system of notification at issue here . . .." Sloviter added that unless addresses of convicted sex offenders were available on the Internet, parents might find themselves the owners of a new house just down the street from an offender. "Indeed," she wrote, "discovering this information after the fact undermines the stated goal of New Jersey, which is to enable parents to prevent or avoid placing potential victims at risk."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in Internet Cases

United States v. Jarrett

The United States Court of Appeals (4th Cir.) ruled that an anonymous person who hacked into another individual's computer and turned that individual into authorities for possessing child pornography did not act as an agent of the government. The case, U.S. v. Jarrett, 338 F.3d 339 (4^tthCir. 2003), reversed a district court ruling that the anonymous person, identified by the Associated Press as a physician in Turkey who treated victims of child abuse, had acted as an agent of the government.

The Turkish physician, named "Unknownuser" in court documents, had posted an image on the Internet with a program attached known as Trojan Horse. When individuals downloaded the Unknownuser's image to their computers, Trojan Horse would allow him to hack their computers. In July 2001, Unknownuser gained access to the computer of Dr. Bradley Steiger, where he found evidence of child pornography. He copied the files and sent them to United States law enforcement officials who were able to identify and apprehend Steiger. Steiger was subsequently convicted of sexual exploitation of minors and sentenced to 210 months in prison.

On Dec. 3, 2001, Unknownuser e-mailed Kevin Murphy of the Montgomery, Ala. police department, saying that he had found "another child molester" identified as William Jarrett and asking how to contact the FBI. The following day, Unknownuser sent Murphy files he had downloaded from Jarrett's computer. The FBI initiated an investigation, and Jarrett was eventually charged with one count of manufacturing child pornography and seven counts of receiving child pornography. Jarrett moved to suppress the evidence against him claiming it had been gathered in violation of his Fourth Amendment rights. His motion was denied.

But after Jarrett entered a guilty plea, the government revealed that there had been e-mail correspondence between Unknownuser and FBI agent Margaret Faulkner. In a Dec. 19, 2001 e-mail, Faulkner thanked Unknownuser for his help in apprehending Jarrett. In what the appeals court characterized as a "wink and a nod," Faulkner continued, "[A]s long as you are not Ôhacking' at our request, we can take the pictures (found on alleged child pornographers' computers) and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a US citizen and are not bound by our laws." In a later e-mail Faulker wrote, "You have not hacked into any computer at the request of the FBI or other law enforcement agency. You have not acted as an agent for the FBI or other law enforcement agency. Therefore, the information you have collected can be used in our criminal trials."

On the basis of this new information, Jarrett asked the court to reconsider his earlier motion to suppress the evidence against him. The district court granted his motion, and allowed him to withdraw his guilty plea, finding that law enforcement agencies and Unknownuser has "expressed their consent to an agency relationship." At this point, the government appealed the case to the federal appeals court.

Circuit Judge Diana Gribbon Motz wrote the unanimous opinion for the three-judge panel. To decide the case, she applied a three-part test. First, she wrote that courts "should look to the facts and circumstances of each case in determining whether a private search is in fact a Government search." She placed the burden of proof on the defendant to show that "the Government knew of and acquiesced in the private search and the private individual intended to assist law enforcement authorities." And finally, Motz wrote that there must be "evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough."

Based on the three-part test she set forth, Motz found that Unknownuser had acted as an individual, rather than an agent for the government, because the correspondence between Unknownuser and Faulkner had occurred after Unknownuser had gained access to Jarrett's computer. Because Unknownuser had not contacted authorities for seven months between his information concerning the Steiger and Jarrett cases, Motz ruled that his communication with U.S. law enforcement did not constitute an "ongoing" relationship. She continued, "[N]othing indicates that the Government had any intention of reestablishing contact with him. . .. Although the Government's behavior in this case is discomforting, the Government was under no special obligation to affirmatively discourage Unknownuser from hacking."

At the time the Bulletin went to press, no word had been given as to whether Jarrett would appeal the ruling of the appeals court.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in Internet Cases

Putnam Pit v. City of Cookeville

On August 20, 2003, Sixth Circuit Court of Appeals Judge Guy Cole, Jr. ruled in Putnam Pit v. City of Cookeville, No. 01-6599 (2003) that Geoffrey Davidian's First Amendment rights have not been violated by the City of Cookeville, affirming the earlier judgment of a federal district court jury.

Davidian had become fascinated by the city of Cookeville when he learned that one of its citizens, Darlene Eldridge, had been murdered. The crime had never been solved. He traveled to Cookeville to explore the story of the murder in what he referred to as a "journalistic enterprise." A few days after arriving in town, he was stopped for speeding. While being prosecuted for the speeding ticket, Davidian asked that city officials allow him access to city records in an attempt to investigate the murder. Davidian's requests were denied. In May 1996, Davidian began to publish and edit a small tabloid he named The Putnam Pit that focused on alleged government corruption in Cookeville. In December 1996, Davidian quit publishing his newspaper in hard copy, and posted it to the Internet instead.

The city of Cookeville also had its own Web site. Between 1997 and 2001, the site had a "local links" page. On Oct. 15, 1997, Davidian sent Steve Corder, who was in charge of developing and maintaining the city's Web site, an e-mail requesting that the city post a link to The Putnam Pit. Corder never responded to Davidian's request, but forwarded his e-mail to other city officials. Those officials also did not respond to Davidian's request.

A few days later, Davidian wrote another e-mail to City Manager Jim Shipley requesting a link from the city's Web page to The Putnam Pit. Although the city had not previously implemented a policy regarding links from its Web site, Shipley promulgated a standard limiting links to not-for-profit corporations. At the time, The Putnam Pit was a for-profit Tennessee corporation.

Following this decision, Shipley wrote Davidian, saying, "I do not feel the City should be allowing any links to private businesses. . .. Therefore, I must decline your request to be linked."

Davidian, who does not reside in Tennessee, informed Shipley that he would then change The Putnam Pit into a not-for-profit corporation in order to meet the requirements. Shipley told Davidian that Cookeville would still not provide a link. Shortly thereafter, Shipley changed the standard for links to the city's Web page, saying that linked pages must "promote the economic welfare, industry, commerce, and tourism in the local area to be linked to the web site." This change in standard further meant that links were no longer limited to not-for-profit corporations.

Davidian responded by adding a page to The Putnam Pit entitled "Commerce and Tourism, Cookeville, Tennessee," and once more requested the city provide a link to his page. City officials again denied his request, saying that the only thing Davidian had on his page that promoted commerce and tourism was its headline. In 1997, Davidian filed suit against the Shipley in his role as Cookeville's City Manager in state court, alleging that the city violated his civil rights under both state and federal law.

Attorneys for Cookeville had asked that the suit be removed to the federal district court for the Middle District of Tennessee. By the time the case came to trial at that court, Cookeville had abandoned its "local links" page. A jury was asked to determine whether The Putnam Pit met the city's eligibility requirement by promoting Cookeville's economic welfare, commerce and tourism. The jury determined that The Putnam Pit did not, and the city's motion for summary judgment was granted on the federal claims, while the state claims were dismissed.

Davidian appealed the decision to the Court of Appeals (6th Cir.). In an opinion issued July 2000, Cole, writing for a unanimous three-judge panel, applied a two-part analysis to determine whether Cookeville's Web site fit a designated or a nonpublic forum, stating, "First, we look to whether the government has made the property generally available" and secondly, "whether the exclusion of certain expressive conduct is properly designed to limit the speech activity occurring in the forum" and that the restrictions to speech fit within the parameters of the forum's purpose.

The city may establish eligibility requirements for linking sites to its web page, Cole wrote, and Davidian has no entitlement to a link from the city's site. But despite that, the city cannot deny Davidian a link to The Putnam Pit based solely on the viewpoints he posted there. Cole ordered a new hearing at the trial level to review the city's refusal to allow Davidian to link to its Web page.

The jury had to determine whether Davidian's Putnam Pit was eligible for a link to Cookeville's Web page based on the city's requirement that only Web sites that promoted commerce, tourism, or industry of the Cookeville area could be linked, and if so, whether the denial of the link to The Putnam Pit constituted viewpoint discrimination. In 2001, the jury decided that Davidian's publication did not fulfill Cookeville's requirement, canceling out the need to consider the second question.

Davidian appealed the new ruling of the district court on two facial challenges, claiming that the standards for "local links" on a the Web site for the city of Cookeville, Tenn., should be void due to vagueness under the Due Process Clause of the Fourteenth Amendment and were also unconstitutionally overbroad under the First Amendment. The Silha Center joined an amicus brief supporting petitioner. In 2003, Cole, writing his second ruling on the case, for a different three-judge panel, stated that because these points had not been raised when the case was before the lower court, they cannot be raised now.

Cole's unpublished opinion, meaning that it cannot be cited as precedent, is binding only on the parties involved in this case.

The Putnam Pit is available online at http://www.putnampit.com.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in E-Mail Cases

Batzel v. Smith

The U.S. Court of Appeals (9th Cir.) in June ruled that a provision in the Communications Decency Act of 1996 (CDA) may shield moderators of Internet listservs and operators of websites from liability for disseminating defamatory postings created by others. (See Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)).

The high-tech case had decidedly low-tech beginnings. According to court documents, in the summer of 1999, a Los Angeles area handyman named Robert Smith claimed that Batzel, an attorney, allegedly boasted of being the granddaughter of "one of Adolph Hitler's right-hand men." Smith said he later overheard Batzel telling another person that she was related to Heinrich Himmler, and that Batzel had told him she had inherited her large collection of paintings from relatives.

Smith, wondering whether Batzel's collection could have included pieces acquired through Nazi plunder, sent an email to the Web site of the Netherlands-based Museum Security Network, which he had found through an Internet search engine. Smith's e-mail described Batzel's alleged characterizations of her Nazi ancestry and the provenance of her art collection. The message continued:

"I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. . . .I do not know who to contact about this, so I start with your organization."

Ton Cremers, the operator of the Web site and the then-Director of Security at Amsterdam's renowned Rijksmuseum, received the message and decided to include it in a periodic compilation of messages and news regarding stolen art that he then mailed out to the site's listserv subscribers.

When Batzel learned of the mailing, she sued both Smith and Cremers for defamation in the United States District Court for the Central District of California. Batzel claimed that the information was false and that she had lost clients as a result of its publication. She further claimed that she was subjected to a bar association investigation and that her social reputation had suffered.

The district court ruled that "provider or user of an interactive computer service" refers only to Internet service providers. Section 230(f)(2) of the CDA defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ."

The district court ruling meant that Cremers, as the operator of a Web site – and not an Internet service provider – was not protected by the CDA.

A three-judge panel of the appeals court, in an opinion by Judge Marsha Berzon, held that although publication of Smith's e-mail in a non-electronic form could have given rise to liability, Cremers' publication of the e-mail via the Internet was shielded by ¤ 230(c)(1) of the CDA. That section provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Judge Ronald Gould filed an opinion concurring in part and dissenting in part.

The appeals court held that ¤ 230(c)(1) extends to providers of services such as e-mail listservs. The court added that, even without recognizing listservs as interactive computer services, ¤ 230(c)(1) would still control, because it protects both providers and users of interactive computer systems.

Statutory immunity is available only if the allegedly defamatory material was created or developed by someone other than the provider or user of the interactive computer service, the opinion noted. The court said that Cremers enjoyed such immunity because he had neither written the allegedly defamatory e-mail nor made significant editorial changes, and thus could not be considered the creator or developer.

Although such a determination normally would end discussions under ¤ 230(c)(1) analysis, the court said, the facts of this case created additional wrinkles. Because Smith had said he did not intend for Cremers to publish his message and did not even know that the Museum Security Network operated a listserv, the court said it was unclear whether Smith could be considered an information "provider" under the statute. The trial court would have to determine whether, "under all the circumstances, a reasonable person in Cremers' position would conclude that the information was sent for Internet publication, or whether a triable issue of fact is presented on that issue."

Creating such a standard, the court said, would avoid creating a situation in which users and providers of Internet services could freely publish defamatory material that clearly was not intended for publication.

The issue of immunity under the CDA came to the appeals court before the case had been resolved by the district court. Cremers appealed the district court's decision to allow the case to go forward, despite Cremers' claim of immunity under a California statute barring lawsuits brought for the purpose of stifling free speech. (See Cal. Civ. Proc. Code ¤ 425.16). Berzon and Judge William Canby, Jr. nullified the district court's ruling and remanded the issue, saying that the district court must consider whether Cremers' belief that Smith intended his message for publication was reasonable.

A finding that the belief was reasonable would immunize Cremers from liability under the CDA. A finding that Cremers should have known that Smith did not intend his message for publication, however, would allow Batzel's case to move forward.

Judge Gould dissented, saying the court had improperly extended the immunity that Congress had sought to establish in ¤ 230(c)(1). Gould said that the reasonableness standard was unworkable, because it required Internet publishers to judge the subjective intent of those who sent information. An easier method – and one more consistent with the intent of Congress – would be to judge only the actions of the defendant, Gould wrote. In this case, the fact that Cremers actively selected Smith's message for publication was enough to eliminate the immunity provided by ¤ 230(c)(1). The section was created, Gould wrote, to prevent the chilling effect on speech that would occur if service providers whose systems served as conduits for millions of messages each day were responsible for policing the content of each one.

—Doug Peters
Silha Fellow

Courts Rule in E-Mail Cases

Intel v. Hamidi

On June 30, 2003, the Supreme Court of California reversed an appeals court decision that the tort of trespass to chattels – the concept of someone interfering with another's personal property – cannot be applied to a company's electronic communications when used by a former employee to send e-mail to individuals still working for that company.

Intel v. Hamidi, 30 Cal. 4th 1342 (2003), arose from actions taken by on Kourosh Kenneth Hamidi, who had worked for Intel as an engineer until 1995, when he was fired. Hamidi then created an organization called FACE-Intel (Former and Current Employees of Intel) and posted a Web site posting claims of Intel's alleged mistreatment of its employees. In addition, Hamidi sent six mass e-mails using Intel's electronic mail system, reaching as many as 35,000 employees with each mailing. The e-mails were critical of Intel, and of the company's business practices, and warned current employees that these practices could harm their careers, urging them to leave Intel and work elsewhere. Hamidi offered to remove from his mailing list any employee who asked him to, and complied with any requests he received.

Intel attempted to block Hamidi's mass mailings, but he used different sending computers to thwart the company's efforts. In 1998, Intel sued Hamidi and FACE-Intel, resulting in an injunction that prohibited Hamidi from e-mailing Intel employees. Hamidi appealed, and in 2001, Sacramento's Third District Court of Appeal affirmed, saying that trespass to chattels – interference with someone's personal property – had occurred when Hamidi "disrupt[ed Intel's] business by using its property . . .." Hamidi then petitioned the California Supreme Court for review.

Justice Kathryn Mickle Werdegar wrote the opinion for the majority, ruling that Hamidi did not cause any physical damage to any of Intel's property. He had used his own computer to send his letters from his home, and therefore did not trespass on Intel's property. Comparing e-mail to other electronic forms of communication, Werdegar wrote, "[T]he contents of a telephone communication may cause a variety of injuries and may be the basis for a variety of tort actions (e.g., defamation, intentional infliction of emotional distress, invasion of privacy), but the injuries are not to an interest in property, much less real property, and the appropriate tort is not trespass." Electric signals, she wrote, should not be considered as "[T]iny messengers rushing through the hallways of Intel's computers and bursting out of employees' computers to read them Hamidi's missives. . .. [S]uch fictions promise more confusion than clarity in the law." Werdegar further wrote that Intel "must, but does not, demonstrate some measurable loss from the use of its computer system."

As to Intel's claim that the company suffered losses over the time employees spent deleting Hamidi's emails, Werdegar stated that Intel could not assert a property interest against employees' time because employees are not chattels in the legal sense of the term. "Whatever interest Intel may have in preventing its employees from receiving disruptive communications, it is not an interest in personal property, and trespass to chattels is not an action that will lie to protect it," Werdegar wrote.

As for restricting the use of spam, Werdegar wrote that excluding undesired communications from one's e-mail might "create substantial new costs, to e-mail and e-commerce users and to society generally, in lost ease and openness in communication and in lost network benefits." In adopting a rule treating computer serves as real property for purposes of trespass law, "We would be acting rashly," Werdegar stated.

In a dissenting opinion, Justice Richard Mosk wrote, "Intel correctly expects protection from an intruder who misuses its proprietary system, its nonpublic directories, and its supposedly controlled connection to the Internet to achieve [Hamidi's] bulk mailing objectives – incidentally, without even having to pay postage."

Mosk further cited America Online, Inc. v. IMS, 24 F. Supp.2d 548 (E.D. Va. 1998), where unwanted e-mails had forced America Online to devote technical resources and staff time to defend its system against the unwanted messages. "The company was not required to show that its computer system was overwhelmed or suffered a diminution in performance; mere use of the system by the defendant was sufficient to allow the plaintiff to prevail on the trespass to chattels claim."

Asked by the Los Angeles Times if he plans to resume his mass e-mailings to Intel employees, Hamidi replied, "Absolutely. I am going to use the privilege to the max."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

California Governor Gray Davis Signs Anti-Spam Bill

On September 23, California Governor Gray Davis signed an anti-spam bill into law, making it illegal to send Californians unsolicited e-mail advertisements. The bill, entitled SB 186, was an amendment to Chapter 487, ¤ 1 7 5 3 8 . 4 5 . Authored by Sen. Kevin Murray (D-Los Angeles), the law allows recipients to sue for damages of $1,000 to $100,000 per unsolicited commercial e-mail advertisement. The law will take effect Jan. 1, 2004.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Courts Rule in Freedom of Speech Cases

Virginia v. Black

Eleven years after its landmark hate-speech decision in R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992), the U.S. Supreme Court last spring upheld a Virginia law criminalizing the burning of crosses with the intent to intimidate. The case, Virginia v. Black, 123 S.Ct. 1536 (2003), was decided April 7, 2003, in a plurality opinion by Justice Sandra Day O'Connor.

The law in question, Va. Code Ann. ¤ 18.2-423 (1996), states in part: "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. . . . Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

The plurality held that the First Amendment did not bar a law banning cross burning "with the intent of intimidating" others, because such intimidation constituted a threat. However, the court held that the statute's prima facie evidence provision, as interpreted by jury instructions in one of the cases before the court, was unconstitutional. Because of that, the court overturned one conviction where the jury was instructed that the act of burning a cross, in and of itself, was prima facie evidence of an intent to intimidate. In another instance, where no such instruction was given, the court vacated the conviction and remanded for further inquiry as to intent to intimidate.

After the U.S. Supreme Court granted certiorari, the Virginia legislature enacted a new cross-burning statute without the prima facie evidence provision, but the new law did not repeal the old one, the Court noted.

A decade before Black, in 1992, the Supreme Court in R.A.V. had set the standard for hate-speech laws. In that case, the Court struck down a St. Paul, Minn., city ordinance that criminalized certain specific messages, including burning crosses and swastikas, when those messages were intended to stir up anger on the basis of "race, color, creed, religion or gender." Because the ordinance only applied to messages focused on arousing anger based on one of those categories, the Court held that it constituted a content-based speech restriction in violation of the First Amendment.

The Virginia law reviewed in Black, however, was different in significant respects, the Court said. First, the ordinance banned only cross burning. Second, it made no distinctions about what person or group the message was intended to reach. Third, and most importantly, it required that the cross burning must have been done with intent to intimidate. Those distinctions allowed the justices to find that the law did not violate the Constitution because cross burning with the intent to intimidate constitutes a threat, speech that is not protected by the First Amendment. Also, because the law does not single out specific groups for protection, the justices did not see it as impermissibly content-based.

The first three sections of Justice O'Connor's opinion were joined by Chief Justice Rehnquist and Justices Scalia, Stevens and Breyer. Justices Souter and Scalia issued opinions that concurred in part and dissented in part. Justice Thomas dissented, saying that the burning of a cross was not speech at all, but conduct that should receive no First Amendment protection.

—Doug Peters
Silha Fellow

Courts Rule in Freedom of Speech Cases

Nike v. Kasky

Nike will pay $1.5 million to the Fair Labor Association, a workers' rights group, after settling a five-year-old case regarding the truth of the shoe company's advertisements and statements regarding its overseas manufacturing plants. The case raised issues about the extent of protection the Constitution provides to political statements made as a part of commercial speech.

Under the Constitution, political speech is the most protected type of speech. Commercial speech, although protected by the Constitution, is entitled to far less protection. For example, false or misleading advertising is not protected speech, but false or misleading political speech is. In short, the government may regulate commercial speech far more than political speech.

Nike had created advertisements, written letters, and issued press statements to its customers, potential customers, and the public generally, defending its overseas practices. In 1998, Marc Kasky, a San Francisco labor activist, sued the company for false advertising, claiming that the company had lied to the public. Kasky alleged that Nike ran Third World sweatshops to produce its products and did not, as the company claimed, protect workers' rights overseas. (See "Can Press Releases Be Considered Commercial Speech" in the Winter 2003 issue of the Silha Bulletin.)

Last year, the California Supreme Court ruled that Nike's speech was commercial speech after applying a three-part analysis which looked to the speaker, the intended audience, and the content of the message. (See Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002)) The court held that advancing an economic transaction was not a necessary condition for speech to be commercial. Justice Joyce Kennard, writing for the court, opined, "Our holding in no way prohibits any business enterprise from speaking out on issues of public importance or from vigorously defending its own labor practices. It means only that when a business . . . makes factual representations about its own products or its own operations, it must speak truthfully."

Nike sought review by the U.S. Supreme Court of the California high court's decision. Over forty large media companies, including the Associated Press, The New York Times, The Washington Post, ABC, CBS, NBC, Time, and Newsweek – filed friend of the court briefs in support of Nike, claiming that First Amendment protections of free speech would be lessened should Nike be found liable. The Silha Center also filed an amicus brief in the case, available online at www.silha.umn.edu.

The U.S. Supreme Court granted certiorari and heard oral arguments, but ultimately declined to rule on the issues. In June, the high court ruled that it erred in granting review of the lawsuit, dismissing the case and sending it back to the California courts.

Justice John Paul Stevens, joined by Justices Ruth Ginsburg and David Souter, wrote that the California Supreme Court's decision was not "final," and that the truth or falsity of Nike's statements had not been evaluated by the court. He reminded the parties, however, that the high court has long provided "broad protection for misstatements about public figures that are not animated by malice."

Justices Stephen Breyer and Sandra Day O'Connor would have decided the merits of the case, writing that it was "highly probable" that the California law "disproportionately burdens speech" and was unconstitutional. Justice Anthony Kennedy also dissented from the Court's decision to return the case to California without a substantive ruling.

The settlement of the case leaves undecided the limits of commercial speech that includes political statements.

In a statement released to the media regarding the settlement, Nike said, "The two parties mutually agreed that investments designed to strengthen workplace monitoring and factory worker programs are more desirable than prolonged litigation." Patrick Coughlin, Kasky's lawyer, said his client was "satisfied that the settlement reflects Nike's commitment to positive change where factory workers are concerned."

The Fair Labor Association, formed in 1999, includes 179 universities, human rights organizations, consumer groups and various companies.

—Thomas Corbett
Silha Research Assistant

Courts Rule in Trademark Cases

Moseley v. V Secret Catalogue Inc.

The U. S. Supreme Court unanimously ruled in March that a Kentucky sex shop once called "Victor's Little Secret" did not infringe upon the trademark of lingerie retailer Victoria's Secret, reversing an earlier ruling by the Sixth Circuit. See Moseley v. V Secret Catalogue Inc., 537 U.S. 418 (2003). Victor and Cathy Moseley named their Elizabethtown, Ky., retail store "Victor's Secret" in 1998. In an advertisement for its grand opening, the store promoted "Intimate Lingerie for every woman;" "Romantic Lighting;" "Lycra Dresses;" "Pagers;" and "Adult Novelties/Gifts." An individual who saw the ad believed that the store's name used a well-known company's trademark to sell "unwholesome, tawdry merchandise" and notified Victoria's Secret of the existence of the Elizabethtown store. In response to a request from Victoria's Secret that the owners refrain from using the similar-sounding name, the Moseleys then changed the store name to "Victor's Little Secret." Victoria's Secret was not satisfied with the change, however, and filed a complaint with the federal District Court in Kentucky.

Victoria's Secret made four claims, three of which alleged infringement and unfair competition. The district court ruled in favor of the petitioners on these counts, stating that there was no proof that "Victor's Little Secret" diminished the value of the better-known trademark. But the Court argued that the Moseleys had violated the Federal Trademark Dilution Act (FTDA), a 1995 amendment to the Trademark Act of 1946 that describes which characteristics make a mark "distinctive and famous." The FTDA defines "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services," and the court found that the two names were indeed similar enough to produce dilution. The court also found that the petitioners' mark had a "tarnishing effect on the Victoria's Secret mark."

The U. S. Court of Appeals (6th Cir.) affirmed the ruling in Victoria's Secret Catalogue, Inc. v. Moseley, 259 F. 3d 464 (6th Cir. 2001): "While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name ÔVictor's Little Secret' are likely automatically to think of the more famous store and link it to the Moseleys' adult-toy, gag gift, and lingerie shop. This, then, is a classic instance of dilution by tarnishing (associating the Victoria's Secret name with sex toys and lewd coffee mugs) and by blurring (linking the chain with a single, unauthorized establishment)."

The Sixth Circuit's ruling was at odds with a 1999 ruling by another federal appeals panel, Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development, 170 F. 3d 449 (4th Cir. 1999). In that decision, the Fourth Circuit stated that claims of dilution require proof of "actual harm." The Supreme Court granted certiorari to settle the disagreement.

The rationale behind Justice John Paul Stevens' majority opinion was based upon pertinent passages of the FTDA, which stated that "the owner of a famous mark" is within his rights to oppose another individual's mark if it "causes dilution of the distinctive quality" of the famous name (Stevens' emphasis). "This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution," he wrote. "The mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution," he continued. "Such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner, the statutory requirement for dilution under the FTDA."

Although Stevens maintained that a trademark owner does not have to go so far as to prove actual economic harm, a successful dilution claim must nevertheless prove that the damage is more concrete than a consumer simply making a mental link between the two names. "Blurring," Stevens noted, "is not a necessary consequence of mental association." The opinion suggested consumer surveys as one means by which actual dilution might be confirmed.

Relying on the definitions and explanations of dilution as outlined in the FTDA, the Supreme Court held that actual dilution—not just the likelihood of it—must be established. Stevens concluded, "There is a complete absence of evidence of any lessening of the capacity of the Victoria's Secret mark to identify and distinguish foods or services sold" in its stores or catalogs. Since the Court found no evidence of dilution, it remanded the case to the original court, and Victoria's Secret will have an opportunity to present additional data to support their claim.

USA TODAY's Supreme Court reporter Joan Biskupic suggested that this opinion "raises the bar for companies claiming trademark dilution," forcing companies to show "hard evidence" of dilution in the effectiveness of the trademark.

—Elizabeth Jones
Silha Research Assistant

Courts Rule in Trademark Cases

ETW Corporation v. Jireh Publishing, Inc.

Rick Rush's painting commemorating Tiger Woods' first Masters victory at Augusta did not violate the athlete's trademark rights under the Lanham Act, according to the U.S. Court of Appeals (6^thCir.). Two of the three judges on the panel issued their opinion in September 2003. The court further ruled that Woods' right of publicity was not compromised by the creation and distribution of the painting. Woods' ETW Corporation had filed suit against Jireh Publishing, Inc. for using the golfer's image without permission in a painting featuring other professional golfers and the two caddies from his first Masters win, which Jireh reproduced and sold to the public.

Section 43(a) of the Lanham Act allows an individual to claim trademark infringement in the event that a third party's use of the trademark, "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person," (15 U.S.C 1125(a)). Although Woods argued in his complaint that the unauthorized use of his image, of which he possesses a registered trademark, violated Section 43(a), the appeals court found that the fact the image was used in a painting constituted a form of free expression which is guaranteed under the First Amendment.

As to Woods' right to publicity, the panel stated that the creative nature of the work precludes any claim of harm to this interest. Judge James L. Graham wrote, "Rush's work has substantial informational and creative content which outweighs any adverse effect on ETW's market and . . . Rush's work does not violate Woods's [sic] right of publicity. We further find that Rush's work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech," (See ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915(2003)).

Although Jireh sold copies of Rush's painting – $700 for serigraphs and $100 for lithographs – the court found that Rush's work itself did not suggest a commercial transaction. In order for commercial speech to be assigned, the suggestion of a commercial transaction must not only be present in the work, it must be the work's purpose. The absence of such a suggestion in Rush's painting meant that the creative nature of it was afforded full protection by the First Amendment. As Judge Graham wrote in the court's opinion, "Rush's prints are not commercial speech. They do not propose a commercial transaction. Accordingly, they are entitled to the full protection of the First Amendment. Thus, we are called upon to decide whether Woods's [sic] intellectual property rights must yield to Rush's First Amendment rights."

—Ingrid Nuttall
Silha Research Assistant

Humorist Sued for Trademark Infringement

The Associated Press reported that Fox News decided to drop its trademark infringement lawsuit on August 25 against author and humorist Al Franken following Southern District of New York Federal Judge Denny Chin's decision not to grant an injunction against the book's cover. Fox has originally filed suit against Franken claiming that Franken's new book entitled, Lies and the Lying Liars who Tell Them: A Fair and Balanced Look at the Right, was an infringement on Fox News' slogan, "Fair and Balanced." Fox argued that some individuals might confuse Franken's book as being a Fox product because of the slogan, according to the San-Diego Union Tribune. The Associated Press reported that Franken was "disappointed" by the decision because he had been, "hoping they'd (Fox) keep it going for a few more news cycles."

—Ingrid Nuttall
Silha Research Assistant

Courts Rule in Copyright Cases

Dastar v. Fox

The Supreme Court ruled this summer that the Lanham Act does not prevent the uncredited copying of an uncopyrighted work (see Dastar v. Fox, 123 S. Ct. 2041(2003)). In a unanimous decision delivered by Justice Antonin Scalia, the Court ruled that Dastar's copying, editing and redistribution of tapes of a television documentary first aired in 1949 did not constitute an infringement under the Lanham Act. The Court's rationale was based on the fact that Dastar was the originator of the actual materials it sold, and used tapes in the public domain to create its product. Fox's copyright on the original materials had expired in 1977, placing the documentary in the public domain. Fox reacquired the television rights in 1988.

Fox owned the copyright to a 1949 broadcast documentary based on former President Dwight D. Eisenhower's book Crusade in Europe. Dastar released its own video set using the tapes of the 1949 broadcast and sold it without crediting Fox as creator of the original documentary from which Dastar's product had been created. The Court reversed and remanded the 9th Circuit's earlier ruling, which had held Dastar liable for $1.6 million under Section 43(a) of the Lanham Act, which prohibits the commercial use of "any word, term, name, symbol, or device, or any combination," without attributing any of the above to the original author (¤43 (15 U.S.C. 1125).) The fact that the materials in question had passed into the public domain once the copying occurred weighed heavily in the decision. As the Intellectual Property and Litigation Reporter (IPLR) notes, "Once the copyright in a work expires, not only is the right to prevent copying lost, the author may also lose the right to get any credit at all for the work which it is copied and sold to others,"

Although the Court's decision is significant regarding the extent to which the Lanham Act protects copyright holders, it is "entirely consistent with the intent espoused in (the Court's) unanimous decisions of the recent past refusing to extend Ôtrademark and related protections into areas traditionally occupied by patent or copyright,'" and is thus only concerned with Section 43(a) rather than with the Act in its entirety, IPLR added.

Delaware Law Weekly also concluded that the Court's decision in Dastar is similar to that of Eldred v. Ashcroft. In that case, the Court upheld legislative amendments extending the copyright term for authors by an additional 20 years, thus increasing the amount of time before an author's work enters the public domain (See Eldred v. Ashcroft, 123 S.Ct 1505 (2003); see also "Recent Developments in Copyright Law: Copyright Term Extension Upheld as Constitutional" in the Winter 2003 issue of the Silha Bulletin.) According to Delaware Law Weekly, "The court struck a balance in the cases: It deferred to legislation extending the time a work may be held out of the public domain, but granted substantial freedom to subsequent users of works already in the public domain because of the copyright's expiration. In the end, that balance is consistent with traditional copyright analysis and long-standing precedent."

Traditionally, the Supreme Court rarely takes cases involving copyright. When it does, it generally defers to Congress rather than to the Constitution. The Court's opinion in Dastar v. Fox is not unusual in that the Court again referred to congressional determinations to guide its decision. However, this case could prompt copyright holders to pressure Congress to further extend how long works are kept out of the public realm.

—Ingrid Nuttall
Silha Research Assistant

Courts Rule in Reporter Privilege Case

Weinberger v. Maplewood Review

A Maplewood, Minn. newspaper reporter must divulge the names of anonymous sources used in a story about a fired high-school football coach, the Minnesota Supreme Court has ruled in a 5-2 decision. The case is Weinberger v. Maplewood Review, No. C7-01-2021 (Minn. Sept. 11, 2003).

The decision means that Wally Wakefield, a sports reporter for the Maplewood Review, must comply with an earlier district court order to turn over the identities of sources for 13 anonymous and allegedly defamatory statements made in a January 1997 article about former Tartan High School football coach Richard Weinberger or face a fine of $200 per day. Wakefield's article contained several anonymous statements critical of the coach's treatment of his players and describing circumstances that allegedly led to the district's decision to remove Weinberger as football coach.

The opinion is available online at: http://www.courts.state.mn.us/opinions/sc/current/OPC012021-0911.html.

Justice Alan Page's majority opinion focused on an exception to Minnesota's Free Flow of Information Act, Minn. Stat. ¤ 595.021-.025. The statute sets out a broad protection for confidential sources but contains an exemption for defamation actions in some circumstances. Page found that the exemption applied to Weinberger's case, and four other justices agreed. Justices Helen Meyer and Paul Anderson dissented, saying that the First Amendment interest in preserving a vigorous press outweighed Weinberger's interest in obtaining the names of Wakefield's sources.

The struggle over the identification of the anonymous sources began in the summer of 2000, when Weinberger subpoenaed Wakefield in his defamation case against his former employer, Independent School District 622. When Wakefield refused to comply, the district court ordered him to name his sources. Wakefield appealed to the Minnesota Court of Appeals, which reversed the district court's order and remanded the issue for additional findings. On remand, the district court again ordered Wakefield to identify his sources, and the Court of Appeals once again reversed. The appeals court held that Wakefield could not be compelled to identify his sources if the primary motive for seeking disclosure was to turn the reporter into a witness against his sources. The appeals court also said that Weinberger had not produced evidence showing that the statements in question were false or made with "actual malice" – that is, with the knowledge that they were false or with a reckless disregard for the truth or falsity of the statements. (See "Minnesota Shield Law Facing Test" in the Winter 2002 issue of the Silha Bulletin and "Reporters Subpoenaed, Detained: Wally Wakefield Subpoena Update" in the Summer 2002 issue of the Silha Bulletin.)

The key to the case is Minn. Stat. ¤ 595.025, the defamation exception to the Free Flow of Information Act. Under the exception, a reporter can be required to identify sources in a defamation action if:

"[T]he person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice."
The person seeking disclosure can show "that there is probable cause to believe thatthe source has information clearly relevant to the issue of defamation."
And if "the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights."

For the majority, Justice Page wrote that Weinberger had met all three requirements. On the first requirement, the majority held that "it is self-evident that that the identity of the speaker will lead to relevant evidence on the issue of actual malice." The majority found this to be true even though all of the defendants in the case had already been deposed and each had denied being the source of the allegedly defamatory statements.

On the second requirement, the majority held that, if any of the defendants were sources of the allegedly defamatory statements, they would have information clearly relevant to Weinberger's claim.

Finally, the majority considered whether the information sought by Weinberger could be gained through any means "less destructive of first amendment rights." The majority agreed with the district court's analysis that because the sources and the reporter were the only people who knew who made the allegedly defamatory statements, and because the suspected sources already had denied making the statements, "the only other available means to secure that information is from the reporters."

In her dissent, Justice Meyer said the majority's ruling was inconsistent with a "straightforward application of First Amendment principles." Because the state's Free Flow of Information Act was intended to provide reporters with more protection than the First Amendment provides, it makes no sense that an exception to the act would provide less protection than provided by the Constitution, she wrote.

Meyer also noted that the U.S. Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972), dealt only with disclosure of sources in the context of legitimate criminal investigations. The Court in Branzburg did not reach the question of whether reporters could be compelled to disclose sources in other contexts, Meyer wrote.

Meyer criticized the majority for failing to properly balance the interests at stake in the case. On one side of the scale, she said, was Weinberger's interest in the identities of a newspaper reporter's sources. On the other side was the strong interest in avoiding a "chilling effect" on the press by removing reporters' ability to back up promises of confidentiality to sources. Meyer said the outcome of such a test was simplified by the fact that Weinberger's claim did not depend solely on the anonymous statements in the newspaper.

Weinberger could pursue his claim against the defendants even without the newspaper article, because the defendants had made allegedly defamatory statements about the former coach in other settings.

Mark Anfinson, a Minneapolis attorney who represents Wakefield and the Maplewood Review, told the Silha Bulletin that the decision was disappointing, but not unexpected. During the oral arguments in the

case, held in March 2003, most justices "expressed quite vividly an animus on the part of the majority of the court toward the idea of these types of privileges for journalists," Anfinson said.

He added that after the oral arguments, "my sensation basically was like a guy who jumped off a fairly tall building – things were fine until I hit, which of course did happen (when the decision was announced)."

Anfinson said the majority seemed to "willfully avoid the key legal issues" involved in analyzing libel lawsuits. Especially disturbing, he said, was the majority's apparent eagerness to find that the identity of the sources would provide relevant information about actual malice.

The court's reasoning made the first prong of the state law's defamation exception automatic, Anfinson said. The legislature obviously intended the standard to have an impact on a court's analysis, or it wouldn't have included it in