Action For Freedom In The Courts p.20

By: KELVIN CHILDS IN 1997, THE U.S. Supreme Court made a strong ruling giving the Internet the highest level of First Amendment protection. And it gave publishers a victory when it struck down a 1968 anti-trust decision on price fixing. But it also declined to take up a dispute between a reporter and her newspaper over her assignment to the copy desk.
The court ruled 7-2 that the Communications Decency Act, which imposed criminal penalties for the distribution to minors of "indecent" material over the Internet, was unconstitutional. The act was part of the Telecommunications Act of 1996, a sweeping federal law that lifted most restrictions on phone companies, long-distance providers and other communications firms.
In his opinion, Justice John Paul Stevens wrote, "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
In the anti-trust matter of State Oil vs. Khan, the court struck down the precedent established in Albrecht vs. the Herald Co., a case involving the St. Louis Globe-Democrat. The paper had taken several steps to keep one of its independent distributors from raising the retail price of the papers he sold above the maximum the paper set ? a limit other dealers honored.
The court found then that such vertical price fixing constituted a per se, or automatic, violation of the Sherman Antitrust Act, and is always illegal because it hinders competition. But in State Oil, the court ruled that vertical price fixing is not automatically illegal but must be considered under the "rule of reason" ? that is, it must be evaluated on a case-by-case basis for its anticompetitive effects.
With the ruling, papers can establish discounts with more assurance that they will be passed on to customers, and with less fear of being accused of breaking the law.
Among the cases the high court declined to hear was the appeal of Sandy Nelson, an education reporter for the Tacoma, Wash., News Tribune who sued the paper because managers assigned her to the copy desk in 1990 against her wishes. The paper, citing its ethics policy, reassigned Nelson on the ground that her public activism for local feminist, gay and lesbian causes could compromise the paper's objectivity.
Nelson sued under a provision of a state elections law that protects workers from being punished by their employers for engaging in political activity.
However, the trial court and Washington state Supreme Court ruled that, because of First Amendment concerns, the law cannot be made to apply to newspapers.

Federal Cases
On the federal level, judges in South Carolina and Oklahoma struck down the Drivers Privacy Protection Act.
A three-judge appeals court panel in Virginia found that a publisher does not enjoy First Amendment protection from civil suits for a book that describes methods of murder. And a judge in New York ruled that publishers can redistribute freelance material in other media without paying additional fees.
The Drivers Privacy Protection Act imposed fines and criminal penalties for the release of private information from state motor vehicle records. Such data include a person's name, address, telephone number, Social Security number, and driver's license number.
Congress passed the law, which took effect in September, after the murder of actress Rebecca Schaeffer, who was stalked by a man who hired someone to get her address through California's motor vehicle agency.
The judges' rulings did not address the First Amendment implications of the law, which, contrary to many state open records laws, curtails access to public records.
Both judges found the law an unconstitutional violation of states' rights under the 10th Amendment. And their rulings hold sway only in affected states, although they may offer guidance to those pursuing challenges to the law elsewhere.
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, still found much to like in the South Carolina ruling, because U.S. District Judge Dennis Shedd chose to deal at length with the limits of privacy.
"As we're seeing more and more attempts to close off access to information simply because it contains a person's name and address and things like that, it's really important to have a clear statement from the judiciary on what kind of information is highly intimate information and what kind is not," Kirtley said.
Categories need to be developed so information can get the appropriate level of protection, Kirtley said. Some data, such as medical records and tax files, deserve more protection than others. "Just because it identifies you doesn't necessarily mean it's an invasion of your privacy," she said.
In Virginia, a three-judge panel of the U.S. 4th Circuit Court of Appeals ruled that a publisher can be civilly liable for the actions of a killer who follows the advice in books. Hit Man: A Technical Manual for Independent Contractors was published by Paladin Press of Colorado and sold by mail order to a man who killed three people in 1993 in a murder-for-hire plot. The victims' relatives sued Paladin for civil damages, claiming the publisher "aided and abetted" murder.
The trial court rejected the relatives' claim on First Amendment grounds, but the appeals panel found the book had no value worthy of such protection. "The Supreme Court has never protected as abstract advocacy speech so explicit in its palpable entreaties to violent crime," the panel ruled.
Kirtley found the ruling troublesome, in part because it opens the door for frivolous lawsuits from people who dislike the result when someone copies what they read or saw.
"Much of the stuff that's in the Hit Man book, where there's sort of this step-by-step guide on how to do things, really doesn't look that different than a detailed news report on how someone went about committing suicide, or how criminals went about perpetrating a crime," she said.
Paladin reportedly plans to ask the full 4th Circuit Appeals Court to hear the case, and will take it to the Supreme Court if the request is denied.
In California, a federal appeals court considered the state Department of Corrections' challenge to a decision allowing reporters full access to observe executions.
The dispute stems from the Feb. 23, 1996 execution of William Bonin, the first convicted murderer the state executed by lethal injection.
Witnesses were allowed to see Bonin only after officials had lashed him to a gurney and inserted intravenous needles. News organizations ? including the Associated Press, Society of Professional Journalists and California First Amendment Coalition ? sued in April 1996.
U.S. District Judge Vaughn Walker issued a preliminary injunction in May 1996 barring the state from limiting access but expanded his ruling last February, when he specified that witnesses be allowed to watch the process beginning before the inmate is placed in the gurney.

Freelance More Free
Freelancers lost a copyright infringement suit against the New York Times, Newsday, Sports Illustrated, Time, Lexis/Nexis and UMI Co. U.S. District Judge Sonia Sotomayor of the Southern District of New York ruled that the companies' reuse of freelance stories without negotiation with the writers or additional payment did not violate the federal Copyright Act. The court rejected the freelancers' argument that versions of stories that appear in electronic databases or on CD-ROMs are new works.
The Atlanta Journal and Constitution, New York Post, and radio station WABC-AM have refused to settle lawsuits by Richard Jewell over their coverage of the FBI's investigation of the Centennial Olympic Park bombing.
Jewell, a temporary security guard during the 1996 Olympic Games in Atlanta, warned police about a suspicious backpack he found in the park. It contained a bomb that detonated, killing one person and injuring more than 100 others. Law enforcement officials leaked information to the news media that Jewell fit the profile of a person who seeks attention as a hero by causing a calamity and rescuing victims. The FBI investigated Jewell for three months, and seized property from his home, before clearing him as a suspect.
Jewell has reached a monetary settlement with NBC of more than $500,000, according to the Wall Street Journal. He also reached an undisclosed cash settlement with CNN and got a printed clarification from Time magazine for a promise not to sue.
?(As we're seeing more and more attemps to close off access to information simply because it contains a person's name and address and things like that, it's really important to have a clear statement from the judiciary on what kind of information is highly intimate information and what kind is not.") [Caption]
?(-Jane Kirtley, executive director, Reporters Committee for Freedom of the Press) [Caption & Photo]
?( E&P Web Site: http://www.mediainfo. com)
?(copyright: Editor & Publisher January 3, 1998)