For tomorrow’s class, there are three pretty interesting developments on the First Amendment front that you should be aware of. I’m not sure that we’ll have time to discuss all of these, but they are important stories nonetheless.
First, Charlie Savage of the New York Times reports that the Obama administration, leading Democrats in the U.S. Senate and news organizations have reached a tentative deal that could finally lead to the passage of a federal shield law allowing journalists to protect their anonymous sources and certain types of other information.
I am somewhat dubious about shield laws. But, as described in the Times article, this one seems unusually well-thought-out. It would protect not just professional journalists but anyone who is doing journalism, such as bloggers and citizen journalists. And rather than attempt to create some sort of absolute shield, the law would require that federal judges apply a version of the Stewart test, with journalists receiving different levels of protection depending on whether they had been subpoenaed to testify in a civil case, a criminal case or a case involving terrorism.
At WRNI Radio in Rhode Island, Ian Donnis reports that Jim Taricani, the investigative reporter who obtained the video showing government corruption in Providence City Hall that we watched earlier in the semester, supports a federal shield law but wonders how it will be applied.
Second, gay activists in Washington State have come under fire for publishing online the names of people who had signed a petition opposing expanded rights for gay and lesbian couples. As the Times’ William Yardley writes, gay-rights organizations such as KnowThyNeighbor.org have been accused of intimidating opponents. Gay-rights activists counter that they are merely making use of public records. The following passage reads as though it came right out of one of our class discussions:
As Eugene Volokh, a professor specializing in First Amendment issues at the University of California, Los Angeles, law school, put it, “Now, public access really is public access.”
Mr. Volokh said that the “talk of retaliation” had added complexity to the Washington case and raised the question of whether, if the names are disclosed, “you’re really not going to get an accurate measure of public sentiment” because people will become reluctant to sign petitions. He said confrontation had been a theme in other gay rights campaigns, including in California last year with Proposition 8, whose passage outlawed same-sex marriage there.
Finally, our discussion of libel begins at the same time that a fascinating Massachusetts story is playing out. Fredda Hollander, an activist-journalist who formerly wrote for a local newspaper called the Regional Review, is being sued for libel by Steven Fustolo, a North End developer who objects to articles she has written that are critical of his plans for that neighborhood.
Hollander denies that she libeled Fustolo, and argues that the lawsuit against her should be dismissed under the terms of the state’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public participation.” According to Hollander, Fustolo’s suit has no merit, is aimed solely at harassing and silencing her, and thus should be considered a SLAPP suit.
The Hollander case isn’t really about libel, but it does provide some insight into how libel can be used to shape public debate — exactly the issue that we’ll take up in Times v. Sullivan, the 1964 U.S. Supreme Court case that created modern libel law.
Disclosure: I was paid to write an affidavit on Hollander’s behalf at an earlier stage of the case.