This update summarizes the free speech decisions of the U.S. Supreme Court for the 2004-2005 term. Although none of these cases qualifies for landmark status, several have significant implications. The update also summarizes a federal appellate court decision upholding the censorship of a college newspaper and recent developments related to reporter's privilege.

Chapter 7: Commercial Speech

• Johanns v. Livestock Marketing Association (government-sponsored campaign to promote beef consumption)

• Tory v. Cochran (use of an injunction as a remedy in a defamation action)

• Developments Related to Reporter's Privilege (revealing the identity of a CIA agent and unmasking Watergate's "Deep Throat")

• Clingman v. Beaver (semi-closed political primary and the right to associate)

• Hosty v. Carter (censorship of a college newspaper)
• City of San Diego v. Roe (free speech rights of public employees)

• Metro-Goldwyn-Mayer Studios v. Grokster (file sharing and copyright infringement)

Chapter 7: Commercial Speech
U.S. Supreme Court
Case: Johanns v. Livestock Marketing Association, (Legal Information Institute (html) or Slip Opinion (pdf)) 2005 U.S. LEXIS 4343 (May 23, 2005) (Originally filed as Veneman v. Livestock Marketing Association; decided by the Supreme Court along with Nebraska Cattlemen v. Livestock Marketing Association. Ann M. Veneman was Secretary of Agriculture from 2001 through 2005, when she resigned and was replaced by Mike Johanns. The Livestock Marketing Association, which opposed the advertising campaign, and Nebraska Cattlemen, which supported the advertising campaign, are organizations representing the interests of beef producers.)
Subject: whether an advertising campaign promoting beef consumption, funded by a tax on cattle sales, is protected government speech
Summary of decision: Under the Beef Promotion and Research Act of 1985, the United States Secretary of Agriculture was directed to appoint a Cattlemen's Beef Promotion and Research Board to encourage beef consumption with advertising campaigns featuring slogans such as "Beef: It's What's for Dinner." To fund these marketing efforts and other research and education programs, the government assessed a $1 per head tax on all cattle sales. Because the message was generic (eat more beef) and did not attempt to differentiate between grain-fed American and non-grain-fed imported beef, some American cattle producers in South Dakota and Montana complained that they were being forced to subsidize ads benefiting their foreign competition. When the Department of Agriculture denied the producers' petition for a referendum on the advertising campaign in November 1999, the Livestock Marketing Association challenged the beef tax as a form of compelled speech that violated the First Amendment. The U.S. Court of Appeals for the Eighth Circuit unanimously agreed with the Association in 2003, reasoning that "the government's interest in protecting the welfare of the beef industry by compelling all beef producers and importers to pay for generic beef advertising is not sufficiently substantial to justify the infringement on appellees' First Amendment free speech right."

By a vote of 6 to 3, and in an opinion by Justice Scalia, the Supreme Court vacated the Eighth Circuit decision in May 2005 and sent the matter back to the lower court to consider other questions raised by the tax. What makes this case worthy of study, however, is not the result, but the reasoning the majority used to justify its decision. In previous cases such as Glickman v. Wileman Brothers & Eliot (a 1997 case involving tree fruits, discussed in the text, p. 212) and United States v. United Foods (a 2001 case involving mushrooms, discussed in the text, p. 212), the government had defended promotional campaigns as part of broader regulatory schemes, with mixed results. To justify the tax on cattle sales, the government tried a new line of argument in legal briefs and oral arguments before the Court. Instead of defending the program as a form of marketing regulation, government attorneys argued that the beef campaign qualified as a form of government speech. This is a subtle but important distinction because the Court has generally upheld the right of government agencies to control their own messages, and that was exactly what happened in this case. "The message set out in the beef promotions is from beginning to end the message established by the federal government," Justice Scalia wrote for the majority. "Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech."

The dissenters, in an opinion by Justice Souter (joined by Justices Stevens and Kennedy), were not convinced that the beef campaign qualified as government speech because there was no reason to believe the federal government was the source of the message. In response to the majority, Justice Souter complained, "No one hearing a commercial for Pepsi or Levi's thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam is trying to make him eat more steak?" Rather than framing this as a government speech case, the dissenters agreed with the Eighth Circuit's reasoning. They cited as a precedent United States v. United Foods, in which a generic campaign promoting mushrooms was struck down, and argued that the beef tax was unconstitutional as it qualified as compelled speech.

The decision in Johanns is important because it has broader implications. Not only does the majority's reasoning on government speech justify the beef tax, this line of argument would also justify other fee-collection programs such as the milk mustache advertisements and well-known campaigns promoting eggs ("The Incredible Edible Egg"), pork (Pork: The other white meat"), and cotton ("Cotton: The fabric of our lives"). If the Johanns precedent is strictly applied, First Amendment challenges to some campaigns promoting agricultural products currently pending in the federal courts will likely fail.

Chapter 8: Prior Restraint
U.S. Supreme Court
Case: Tory v. Cochran, (Legal Information Institute (html) or Slip Opinion (pdf)) 2005 U.S. LEXIS 4347 (May 31, 2005)
Subject: an injunction that restricts picketing constitutes a prior restraint (Note: This case is placed in Chapter 8 because the Court held the injunction constituted a prior restraint. The defamation and invasion of privacy issues related to the lawsuit are addressed in Chapter 4.)
Summary of decision: Attorney Johnnie Cochran represented Ulysses Tory and Javier Gutierez in a personal injury lawsuit brought against the City of Los Angeles in 1983. Cochran was able to settle Gutierez's claim, but Tory found fault with Cochran's mode of representation and Cochran eventually withdrew as his attorney. After Cochran came to national prominence by defending O. J. Simpson, Tory organized protests outside Cochran's office and publicly denounced the attorney as a liar and a cheat. Cochran sued for defamation and invasion of privacy in California state court, which ruled in his favor in 2002. Since Tory's statements were "false and were made with the knowledge of their falsity," and because monetary damages were unlikely to moderate Tory's behavior, the judge entered an injunction barring Tory and "all persons acting in concert, cooperation or participation with him" from "displaying signs, placards or other written or printed material" or "orally uttering statements" about either Cochran or his law firm. A California Appellate Court subsequently upheld the injunction.

Tory appealed to the U.S. Supreme Court. Because of the broad scope of the injunction, he was supported by several media organizations and law professors. The U.S. Supreme Court heard oral arguments in March 2005, but before the Court could issue an opinion, Johnnie Cochran died from a brain tumor. Justice Breyer's majority opinion noted that Cochran's death made it "unnecessary, indeed unwarranted, for us to explore petitioner's basic claims, namely (1) that the First Amendment forbids the issuance of a permanent injunction in a defamation case, as least when the plaintiff is a public figure, and (2) that the injunction (considered prior to Cochran's death) was not properly tailored and consequently violated the First Amendment."

By a vote of 7 to 2, the Supreme Court held that the injunction "has lost its underlying rationale." With Cochran's death, it was no longer possible for the picketing to achieve its objective. "Consequently," Justice Breyer concluded, "the injunction now amounts to an overly broad prior restraint upon speech, lacking plausible justification." This result is only a narrow victory for freedom of speech, however, as the Court left open the possibility that a less restrictive court order might be used to enforce the judgment against Tory. It might still be possible, for example, for the trial court to draft a narrow injunction that only prohibited Tory from making the sort of defamatory statements that led to the original lawsuit.

Chapter 9: Special Problems of a Free Press
Developments Related to Reporter's Privilege
In Branzburg v. Hayes (1972; text, pp. 250-251), the Supreme Court considered "whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment." While the majority refused to recognize an absolute privilege for reporters, many commentators believe the Branzburg decision had the effect of creating a qualified privilege.

Since the fifth edition of Freedom of Speech in the United States went to press in late 2004, there have been several cases in which government officials or aggrieved parties have asked courts to compel journalists to reveal confidential sources or information. In one prominent 2004 case, Jim Taricani, a television reporter for WJAR in Providence, Rhode Island, was held in contempt and sentenced to four months of home detention by a federal judge for failing to identify the source that had provided him with an FBI videotape of a politician taking a bribe.

The case that has drawn the most attention, however, involves Valerie Plame, whom Robert Novak publicly identified as an undercover CIA operative in his syndicated column on July 14, 2003. Because Novak and others claimed that "senior administration officials" had divulged Plame's identity, it was widely speculated that the leak was a politically motivated attack on Plame's husband, Joseph C. Wilson IV, a former ambassador to Africa. A week before the Novak article, Wilson had published a New York Times op-ed piece that criticized the Bush administration's claim that Iraq had attempted to make nuclear weapons with uranium bought from Niger.

The Intelligence Identities Protection Act of 1982 (text, p. 69) makes it a crime to intentionally disclose the identity of covert intelligence agent. In an effort to lay the foundation for a criminal prosecution, special prosecutor Patrick Fitzpatrick convened a grand jury and subpoenaed testimony from Matthew Cooper of Time, Judith Miller of the New York Times (who investigated the Plame affair but never wrote a story), Walter Pincus of the Washington Post, and Tim Russert of "Meet the Press" about the source of the Plame leak. Pincus and Russert were able to negotiate agreements to provide limited testimony before the grand jury. Many press accounts have speculated that Novak, the author of the original story, appeared before the grand jury under some sort of waiver or immunity agreement.

Cooper and Miller refused to comply with the subpoenas. The reporters and the media organizations they worked for challenged the subpoenas in the United States Court of Appeals, but a three-judge panel upheld the subpoenas on February 15, 2005. To support the claim that no privilege protects reporters from being compelled to testify, the judges cited Branzburg v. Hayes. After an unsuccessful appeal to the full D.C. Circuit in April 2005, the reporters appealed to the Supreme Court. The high court declined to review the case on June 27, 2005.

Having exhausted all appeals, Time's editor-in-chief, Norman Pearlstein, announced the magazine would comply with the subpoena. Cooper testified before the grand jury after his sources released him from his pledges of confidentiality. As part of his testimony, Cooper purportedly identified Karl Rove, White House Deputy Chief of Staff, and Lewis "Scooter" Libby, Vice President Dick Cheney's Chief of Staff, as the sources who confirmed that Plame worked for the CIA. Rove and Libby have denied the allegation and insisted they first learned of Plame's identity from the reporters investigating the story.

Miller stood firm on her principles and resolutely refused to testify about her conversations with government officials. "If journalists cannot be trusted to guarantee confidentiality," she told the court, "then journalists cannot function and there cannot be a free press." Because she failed to comply with a valid subpoena, Miller was taken into custody and held in contempt of court on July 6, 2005. Unless she agrees to reveal her sources, Miller will likely remain in a federal detention center until the grand jury term expires in October 2005.

In a new event in an older case of reporter confidentiality, "Deep Throat," the confidential source who provided information that was crucial to the Washington Post coverage of the June 1972 burglary of the Democratic National Committee headquarters at the Watergate office complex, disclosed his identity in an article published in Vanity Fair magazine in 2005. After denying his involvement for more than thirty years, W. Mark Felt, an assistant director of the FBI during the Nixon administration, revealed that he was the mysterious informant behind the explosive series of stories that Bob Woodward and Carl Bernstein wrote. The Washington Post subsequently confirmed Felt's revelation, definitively answering the question of Deep Throat's identity.

The Washington Post investigation played a key role in exposing a scandal that culminated in President Richard Nixon's resignation in 1974. Nineteen high-ranking members of his administration were subsequently sentenced to prison terms for a range of illegal activities. Nixon himself was pardoned by his successor, President Gerald Ford, and never stood trial. Deep Throat is often used as the ultimate example of the importance of protecting confidential sources. Absent a guarantee that their identities will be protected, sources such as Felt, with their jobs possibly at stake, might be unwilling to share information with reporters. Without the clues Deep Throat provided, the crimes of the Nixon administration might never have been revealed to the American people.

Chapter 10: Constraints of Time, Place, and Manner
U.S. Supreme Court
Case: Clingman v. Beaver, (Legal Information Institute (html) or Slip Opinion (pdf)) 2005 U.S. LEXIS 4181 (May 23, 2005)
Subject: a semi-closed political primary does not infringe on the right to associate
Summary of decision: Oklahoma law allows political parties to invite members of its own party and registered Independents to vote in primary elections. The Libertarian Party of Oklahoma exercised this option, and both Libertarians and Independents were allowed to vote in the party's primaries. In an effort to increase awareness of Libertarian candidates and causes, party officials asked the Secretary of the Oklahoma State Election Board for permission to invite all registered voters to participate in the Libertarian primary during the 2000 election cycle. The Board of Elections denied the request. The Libertarian Party challenged this decision in federal court on the grounds that the First Amendment's guarantee of free association gives the party the right to invite all registered voters to participate in its primaries.

The case reached the Supreme Court in 2005. By a vote of 6 to 3, the Supreme Court held that Oklahoma's semi-closed primary system does not violate the right of association guaranteed by the First Amendment. In his majority opinion, Justice Thomas reasoned that "a State's important regulatory interests will usually be enough to justify reasonable nondiscriminatory restrictions" on associational rights. In this instance, the Oklahoma law (1) "preserves political parties as viable and identifiable interest groups," (2) "enhances parties' electioneering and party-building efforts," and (3) "guards against party raiding and sore loser candidacies by spurned primary contenders."

Chapter 11: Institutional Constraints: Freedom of Speech in the Schools, the Military, and Prisons
United States Court of Appeals for the Seventh Circuit
Case: Hosty v. Carter, (html or pdf) 412 F.3d 731 (June 20, 2005)
Subject: a federal appellate court extends Hazelwood v. Kuhlmeier to a subsidized college newspaper at a state university
Summary of decision: A dispute at Governors State University in Illinois regarding the student newspaper, The Innovator, led Patricia Carter, Dean of Student Affairs and Services, to instruct the newspaper's printer not to publish future issues until she had approved the contents. The newspaper's editorial staff was unwilling to submit to prior review and the printer was unwilling to ignore Dean Carter's instructions for fear of not being paid. As a result, The Innovator temporarily ceased publication in November 2000.

Three student journalists at Governors State-Margaret Hosty, Jeni Porche, and Steven Barba-sued school officials in 2001. The court granted summary judgment and dismissed the lawsuits brought against Roger K. Oden, the Dean of the College of Arts and Sciences, and Stuart Fagan, the University's President. Because there was sufficient evidence to support a judgment against Carter, however, the judge denied the motion for summary judgment and allowed that case to go forward. Representing the university, Illinois Attorney General James Ryan appealed the judge's decision on the grounds that the Supreme Court's decision in Hazelwood v. Kuhlmeier (text, pp. 305-310), which limited First Amendment protections for high school students, could be extended to student expression in public colleges.

On April 10, 2003, a three-judge panel of the Seventh Circuit Court of Appeals ruled that college newspapers such as The Innovator are protected by the First Amendment and that public colleges and universities cannot censor student publications. Attorney General Ryan filed a petition for an en banc hearing by the Seventh Circuit. A majority of the judges voted to grant the petition and the decision of the three-judge panel was vacated on June 25, 2003. An eleven-judge panel heard oral arguments in January 2004 and handed down its decision on June 20, 2005.

By a 7 to 4 vote, the Seventh Circuit granted the university's motion for summary judgment and dismissed the lawsuit against Carter. This result is significant because the majority held "there is no sharp difference between high school and college newspapers." Reasoning that the same considerations that justify editorial control over high school publications would extend to colleges, the court concluded that "Hazelwood's framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools."

Having extended the reach of the Hazelwood decision, the decisive question for the seven judges in the majority should have been whether The Innovator qualified for First Amendment protection as a "designated public forum," where students had the final authority to make content decisions. The majority did not, however, attempt to answer this question. Reasoning that Carter could not have known whether the Hazelwood decision extended to a college setting, the seven judges concluded that she was entitled to qualified immunity and dismissed the lawsuit.

Four of the eleven judges dissented from the majority's ruling. According to the dissenters, "There are two reasons why the law treats high school students differently than it treats college students, who 'are, of course, young adults': high school students are less mature and the mission of the respective institutions are different. These differences make it clear that Hazelwood does not apply beyond high school contact." Because Carter had clearly violated established First Amendment law with respect to The Innovator, the dissenters would have allowed the student's lawsuit to go to trial.

The student journalists have announced plans to appeal the decision to the Supreme Court. Anyone interested in freedom of speech should pay particular attention to this case. If the Seventh Circuit's extension of Hazelwood v. Kuhlmeier is upheld, it may legitimate censorship of college-subsidized newspapers, even newspapers that are not part of the college's journalism curriculum. Furthermore, the same logic that justifies the prior review of newspapers might be used to reach other student activities on a college campus, such as student-selected speakers or films.

U.S. Supreme Court
Case: City of San Diego v. Roe, (Legal Information Institute (html) or Slip Opinion (pdf)) 2004 U.S. LEXIS 8165 (December 6, 2004)
Subject: free speech rights of public employees are limited to matters of "public concern"
Summary of decision: Under the pseudonym John Roe, a San Diego police officer posted several videos and other items for sale to an adults-only section of eBay, an online auction site. In one of the more graphic videos, the officer stripped off a generic police uniform and masturbated. Roe was partially masked in an effort to hide his identity, but he was identified when one of his supervisors discovered the video and recognized his face. Although no assertion was made that the video was legally obscene, an internal affairs investigation concluded that Roe's activities violated department policies and he was ordered to stop selling sexually explicit materials on the Internet or any other medium available to the public.

Roe removed some of his items from sale, but he did not change his seller's profile, which described various videos he had produced. Learning that he had failed to follow orders, the police department cited him for disobedience and dismissed him from service. Roe brought suit in federal court, alleging that the city violated his right to free speech. A federal district court rejected his claim on the grounds that Roe had not demonstrated his speech was worthy of constitutional protection. On appeal, however, the United States Court of Appeals for the Ninth Circuit held that the speech was protected, as Roe's expression (1) was not an internal workplace grievance, (2) took place while he was off-duty and away from his employer's premises, and (3) was unrelated to his employment.

The Supreme Court unanimously reversed the Ninth Circuit decision. In Pickering v. Board of Education and Connick v. Myers (text, pp. 317-319), the Supreme Court had previously set out a test that balances "the interests of the employee as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." The City of San Diego's interest prevails in this instance, the per curiam opinion reasoned, because "Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employers. The use of the uniform, the law enforcement reference in his Web site, the listing of the speaker as 'in the field of law enforcement,' and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute."

The decision in San Diego v. Roe is notable because the final section breaks new ground and limits the situations that require the balancing test. According to the opinion, "To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government office." To prevent this from happening, the Court limits balancing to instances where the public employee speaks "as a citizen upon matters of public concern," rather than "as an employee upon matters only of personal interest." In other words, if the public employee's speech does not address a matter of "legitimate news interest," it is not protected against public-employer sanction. This distinction significantly narrows the free speech protection available to public employees such as Officer Roe.

Chapter 12: Copyright
U.S. Supreme Court
Case: Metro-Goldwyn-Mayer Studios v. Grokster, (Legal Information Institute (html) or Slip Opinion (pdf)) 2005 U.S. LEXIS 5212 (June 27, 2005)
Subject: peer-to-peer network providers are liable for acts of copyright infringement committed by third parties
Summary of decision: In response to the court-ordered demise of centralized filing sharing networks such as Napster (see A & M Records, Inc. v. Napster, Inc., text pp. 419-421), several peer-to-peer (often referred to as P2P) file-sharing alternatives gained in popularity. Unlike Napster, the newer P2P software, such as Grokster and Morpheus, allowed users to search a network of computers for MP3 files without using a centralized server. When leading record companies and movie studios attempted to extend the Napster precedent to reach decentralized P2P networks, they suffered an unexpected setback. In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Inc. (text pp. 421-422), a federal court concluded that decentralized P2P networks are not analogous to Napster and require an entirely different copyright analysis. Not only did the court refuse to issue a preliminary injunction against the popular P2P networks, it declared that there were no facts in dispute, that there was no need for a trial, and most significantly, that there was no copyright infringement. The record companies and music studios unsuccessfully appealed to the Ninth Circuit Court of Appeals and, at the same time, began filing copyright infringement suits against individual P2P users who were using the software to share and download MP3 files.

The Supreme Court issued its much-anticipated decision on P2P software on June 27, 2005, the final day of the 2004-2005 term, and the record companies and movie studios scored a decisive victory. The Justices unanimously reversed the lower court and narrowed the safe harbor exemption created in Sony Corporation v. Universal City Studio, Inc. (text pp. 344-345), the so-called Betamax case. In that case, the Court held the leading manufacturer of videocassette recorders was not liable for contributory copyright infringement because the recorder was clearly capable of substantial noninfringing uses. The Metro-Goldwyn-Mayer Court was careful to note, however, that nothing in the Sony decision protects a manufacturer who induces copyright infringement. Writing for the majority, Justice Souter explained, "One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

It was clear to the Court that the P2P companies "acted with a purpose to cause copyright violations by use of software suitable for illegal use." To demonstrate this illegal intent, Justice Souter highlighted "three features" of P2P networks. First, the P2P companies were "aiming to satisfy a known source of copyright infringement, the market comprising former Napster users." Second, the P2P companies never "attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software." Finally, the P2P companies made their money selling advertising and "the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing."

As a result of the Supreme Court's decision, the judgment of the Court of Appeals was vacated and the case was remanded for trial. Given the way in which Justice Souter ascribed unlawful intent to the P2P networks, it seems clear that the record companies and movie studios will ultimately prevail. It is far less certain, however, what impact the Metro-Goldwyn-Mayer decision will have on file sharing. P2P users might ignore the decision, switch to legal file sharing such as iTunes, or migrate to some new technology. Given the uncertainty, anyone with an interest in copyright law should follow this area carefully.

Home	Thomas L. Tedford and Dale A. Herbeck Freedom of Speech in the United States, 5th ed. State College, PA: Strata Publishing, Inc., 2005 www.bc.edu/free_speech