[UPDATED] Reading Assignment for Monday 2/3


Hello Everyone!  Here is the reading assignment for Wednesday’s class (Jan 29).  We’ll be discussing Access to the Media.  Please read Hopkins’ Chapter 4.  Additionally, we’ll be discussing the following cases:

Red Lion Broadcasting v. FCC (1969)

Banzhaf v. FCC (1968)

Miami Herald Publishing Company v. Tornillo (1974)

FCC v. Midwest Video (1979)

Please be prepared to discuss the 1) facts, 2) issue / legal question, 3) highest court’s ruling. Email me with any questions.  See you Wednesday!


Reading Assignment for Monday 1/27

Hello Everyone!  Here is the reading assignment for Monday’s class (Jan 1/27).  We’ll be finishing up our discussion on the Development of Press Freedoms (radio, TV, Internet).  Please make sure you have read Hopkins chapters 3-4 and Lisby chapter 1.  Additionally, we’ll be discussing the following cases:

US v. Zenith Radio (1926)

NBC v. US (1943)

FECUA v. WDAY (1959)

U.S. v. Southwestern Cable (1968)

Los Angeles v. Preferred Communications (1986)

AT&T v. Iowa Utilities Board (1999)

Turner Broadcasting v. FCC (1997)

U.S. v. Playboy Entertainment (1999)

Reno v. ACLU (1997)

Please be prepared to discuss the 1) facts of the case, 2) the issue / legal question, and 3) the highest court’s ruling.  Also, take a look at the FCC Net Neutrality story (already posted on blog).  Let me know if you have any questions about the material or cases. See you Monday!

Legal News: Federal Appeals Court Overturns FCC “Net Neutrality” Rules

Major news in communication law!  Article by Ira Teinowitz of “The Wrap”

The complicated ruling affirmed that the Federal Communications Commission has authority to regulate the Internet, but shot down its so-called Open Internet Order

An appellate court panel delivered a major blow Tuesday to the Federal Communications Commission’s ability to prevent Internet service providers from favoring certain content providers, ruling that the FCC didn’t have legal authority to impose the Net Neutrality conditions it enacted.

In a complicated ruling in which one of the three judges partially agreed and partially dissented, the panel of the U.S. Court of Appeals for the District of Columbia affirmed that the FCC has authority to regulate the Internet but overturned the FCC’s so-called Open Internet Order.

The Court cited an FCC decision against classifying companies providing broadband Internet services as part of common carrier service like telephones and instead as an information service.

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such,” said the opinion written by Judge David S. Tatel. “Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”

The decision came down in a case in which Verizon challenged the FCC order that would have limited Internet providers from giving one Internet content provider a fast lane to consumers’ desktop and a rival, a slower lane, at least for wired Internet connections. Consumer groups and some Hollywood unions had contended that the fast track would give established web sites a major advantage and make it difficult for alternative sites to compete.

While the decision was not surprising — judges on the case repeatedly were skeptical about the legality of FCC’s regulatory schemes — it immediately drew concerns from backers of Net Neutrality.

“We’re disappointed that the court came to this conclusion,” said Free Press president and CEO Craig Aaron in a statement. “Its ruling means that Internet users will be pitted against the biggest phone and cable companies — and in the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will.”

“The order struck down today left much to be desired, but it was a step toward maintaining Internet users’ freedom to go where they wanted, when they wanted, and communicate freely online. Now, just as Verizon promised it would in court, the biggest broadband providers will race to turn the open and vibrant Web into something that looks like cable TV. They’ll establish fast lanes for the few giant companies that can afford to pay exorbitant tolls and reserve the slow lanes for everyone else.”

Public Knowledge senior VP Harold Feld said his group was disappointed, but also noted the court affirmation that the FCC has authority over the Internet.

“Nobody got what they wanted,” he said in a statement. He suggested the Court had taken away FCC flexibility in ways that could complicated future efforts by the FCC to ensure the build-out of broadband to rural areas and in other ways as well.

FCC Chairman Tom Wheeler said in a statement that the FCC will consider “all available options” concerning the ruling, including the possibility of appealing it.

“I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment,” he said. “We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”

Legal News: Federal Court Rules Bloggers Have Same 1st Amendment Rights as Journalists

U.S. Court of Appeals for 9th Circuit rules that bloggers are entitled to the same protection as journalists.  Obsidian Finance Group v. Cox (2014).  Here’s the article by attorney Jonathan Turley.


There was an important decision last week in the United States Court of Appeals for the Ninth Circuit in which a panel ruled that bloggers are entitled to the same protections as journalists. The decision is in sharp contrast to the view of Senator Dianne Feinstein and Obama Administration officials who have fought against such protections for bloggers in a new federal shield law. The opinion was handed down on January 17, 2014 in Obsidian Finance Group v. Cox.

The decision came in a defamation lawsuit where the panel ordered a new trial in the case of Crystal L. Cox, a blogger from Eureka, Montana. Cox was sued for defamation by attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she wrote about what she viewed as fraud, corruption, money-laundering and other illegal activities. Patrick and Obsidian were hired by Summit Accommodators, which had defrauded investors. Padrick and Obsidian advised Summit before a filing for bankruptcy and the U.S. Bankruptcy Court later appointed Padrick trustee in the Chapter 11 case.

Some of Cox’s allegations were indeed quite raw and over-the-top, as noted by the court. She accused “Padrick and Obsidian of engaging in “illegal activity,” including “corruption,” “fraud,” “deceit on the government,” “money laundering,” “defamation,” “harassment,” “tax crimes,” and “fraud against the government.” Cox also claimed that Obsidian paid off “media” and “politicians” and may have hired a hit man to kill her.” There is one site entitled simply “Obsidiansucks.” The site shows Cox’s picture above with the pledge “I promise to expose Kevin Padrick.”

Notably, the district court held that “all but one of Cox’s blog posts were constitutionally protected opinions because they employed figurative and hyperbolic language and could not be proved true or false.” Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232-34 (D. Or. 2011). However, one posting on December 25, 2010 on bankruptcycorruption.com was found to have made “fairly specific allegations [that] a reasonable reader could understand . . . to imply a provable fact assertion”—i.e., that Padrick, in his capacity as bankruptcy trustee, failed to pay $174,000 in taxes owed by Summit.” The one posting was allowed to go to trial and the jury found in favor of Padrick and Obsidian, awarding the former $1.5 million and the latter $1 million in compensatory damages.

District Judge Marco A. Hernandez ruled that Padrick and Obsidian were not required to prove either negligence or actual damages because Cox had failed to submit “evidence suggestive of her status as a journalist.” Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2011 U.S. Dist. LEXIS 137548, 2011 WL 5999334, at *5 (D. Or. Nov. 30, 2011). Hernandez further ruled that neither Padrick nor Obsidian was an all-purpose public figure or a limited public figure based upon Padrick’s role as a bankruptcy trustee because “they had not injected themselves into a public controversy, but rather that Cox had “created the controversy . . . .” 2011 U.S. Dist. LEXIS 137548, [WL] at *4.

The case raises in New York Times Co. v. Sullivan which held that, when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280. Later, in Gertz v. Robert Welch, Inc., the Court held that the First Amendment required only a “negligence standard for private defamation actions.” 418 U.S. 323, 350, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The question is what a blog is: more like a journalist or a private communication. The court noted that

“[t]he Gertz court did not expressly limit its holding to the defamation of institutional media defendants. And,

although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers.”

The court relied on Citizens United for support this broader view of free speech. Consistent with a couple of other circuits, the panel ruled:

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.

We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants. But this does not completely resolve the Gertz dispute.

The court then goes on to rule that this was a matter of public concern.

Unlike the speech at issue in Dun & Bradstreet that the Court found to be a matter only of private concern, Cox’s December 25 blog post was not “solely in the individual interest of the speaker and its specific business audience.” 472 U.S. at 762 (plurality opinion). The post was published to the public at large, not simply made “available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further . . . .” Id. And, Cox’s speech was not “like advertising” and thus “hardy and unlikely to be deterred by incidental state regulation.” Id.

Because Cox’s blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently. See Gertz, 418 U.S. at 350. The court also should have instructed the jury that it could not award presumed damages unless it found that Cox acted with actual malice. Id. at 349.

The panel goes on to rule against Cox in saying that the lawyer and the group are not public figures. However, that still requires a new trial with the added protections afforded to the blog.

The panel also clarified the standards applied in the cross appeal on what constitutes opinion while (ironically) Cox’s heated language worked to her advantage:

In Milkovich v. Lorain Journal Co., the Supreme Court refused to create a blanket defamation exemption for “anything that might be labeled ‘opinion.’” 497 U.S. 1, 18, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). This court has held that “while ‘pure’ opinions are protected by the First Amendment, a statement that ‘may . . . imply a false assertion of fact’ is actionable.” Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (quoting Milkovich, 497 U.S. at 19). We have developed a three-part test to determine whether a statement contains an assertion of objective fact. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). The test considers “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.” Partington, 56 F.3d at 1153.

As to the first factor, the general tenor of Cox’s blog posts negates the impression that she was asserting objective facts. The statements were posted on obsidianfinancesucks.com, a website name that leads “the reader of the statements [to be] predisposed to view them with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts.” Obsidian Fin. Grp., 812 F. Supp. 2d at 1232. The district judge correctly concluded that the “occasional and somewhat run-on[,] almost ‘stream of consciousness’-like sentences read more like a journal or diary entry revealing [Cox’s] feelings rather than assertions of fact.” Id. at 1233.

As to the second factor, Cox’s consistent use of extreme language negates the impression that the blog posts assert objective facts. Cox regularly employed hyperbolic language in the posts, including terms such as “immoral,” “really bad,” “thugs,” and “evil doers.” Id. (quoting blog posts). Cox’s assertions that “Padrick hired a ‘hit man’ to kill her” or “that the entire bankruptcy court system is corrupt” similarly dispel any reasonable expectation that the statements assert facts. Id.

And, as to the third factor, the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are “not sufficiently factual to be proved true or false.” Id. at 1234. We find no error in the court’s application of the Unelko test and reject the cross-appeal.

It is a major decision and one that further challenges the effort of Feinstein and others to strip bloggers of protections under media shield laws. The “new media” obviously concerns many politicians like Feinstein, who show the same hostility to bloggers as her predecessors once showed to the media before New York Times v. Sullivan. While the issues are not identical between the torts doctrines and media shield laws, the ruling undermines the argument that there is a clear line between bloggers and conventional reporters in dealing with public disputes and allegations. We have still not resolved how to draw the line (if such a line is possible) between conventional and new media. What is significant is that this court is refusing to expose bloggers to the type of pre-Sullivan liability that would dramatically chill Internet speech.

For Wednesday’s Class (1/22)

Hello everyone!  Since I am not quite set up on D2L yet, I am posting the next reading assignment on the class blog.  On Wednesday, we will be discussing 1st Amendment Interpretation and the Development of Press Freedoms.  Please read Hopkins chapters 2-3 (focus on the 1st Amendment material) and Lisby chapter 2.


Additionally, please read and be prepared to discuss the following cases in class:

Gitlow v. New York (1925)

Chaplinski v. New Hampshire (1942)

Snyder v. Phelps (2011)

Mutual Film v. Industrial Commission of Ohio (1915)

Burstyn v. Wilson (1952)

These cases should all be in your Hopkins and Lisby texts.  Please be sure to check the footnotes and back directories if you are having trouble locating them.  You can also try a basic google.com search to find more information about the cases – but be careful about using legitimate legal reference websites.  During class, be prepared to answer questions about:

1.  The facts:  who are the parties?  What happened between them that they are going to court?  (Timeline, etc.)  What is each party claiming/arguing?

2.  The issue:  what is the legal question that the parties want the court to consider? (Ex: Does this Georgia state law violate the party’s First Amendment right to free speech?)

3.  The holding:  what did the highest court decide and why?  How does this case impact communication law, or shape a particular regulation?


Please email me with any questions.  See you Wednesday!


For those of you who have inquired about being added to the course, registration for my section of JOUR3060 has been capped.  There will not be any additional spots opened – partially due to the room capacity.  The Communication Department will be offering Communication Law & Regulation this summer, as well as several sections next Fall 2014.