Privacy, wiretapping, and the media:
Bartnicki v. Vopper, No. 99-1687 and 99-1728, 532 U.S. _______ (May 21, 2001) Can a radio talk-show host use an illegal recording of private parties on-air when the radio host did not participate in the illegality in any way? The Supreme Court said YES. The talk show host received a recording containing the voices of a union negotiator talking to the union president about contentious negotiations on the school contract. A recording made illegally and in contravention of the Title 18, including the federal Electronic Communications Privacy Act and a similar Pennsylvania state act, found its way to a radio host. The radio host was not involved in the act of recording and received it from someone who "found the tape in his mailbox." The contract negotiations were of public concern and interest, and, in fact, after the talk show host broadcast the tape, another station carried it and its contents were published in the local newspaper.

The Supreme Court held that the airing of the tape was protected by the First Amendment. Citing the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), the court said that it had previously upheld the publication of facts of great public concern, even though they were stolen. Justice Stevens, writing for a 6-3 majority, said that "a stranger's illegal conduct does not remove the first amendment shield from speech about a matter of public concern .

Online Copyright

New York Times v. Tasini, No. 00-201, 533 U.S. ______ (2001), Can the New York Times re-publish articles written by freelances in online databases such as Lexis-Nexis? The New York Times had paid the freelance writers for their articles and claimed that the re-publication of the articles in on-line form was merely the exercise and use of their separate copyright in a "collective work," as permitted under § 201 (c) of the Copyright Act. The freelance writers argued that the contracts they signed did not include provisions for online publication. Note that if the writers had been regular employees of the publisher, the copyright would have belonged to the Times under the "work made for hire" doctrine.

The Court agreed with the writers. The writers had registered each story's copyright and in practice, the page displaying the article displayed only the article, and no linkage of the article to the entire collective work. The Court looked to the legislative history and found that Congress had intended to protect freelancers' rights. The legislative report stated that §404(a) and §201(c) operate together to "preserve the author' s copy-right in a contribution even if the contribution does not bear a separate notice in the author' s name, and without requiring any unqualified transfer of rights to the owner of the collective work." The Court held 7-2 that the authors' rights in their underlying copyrighted works were preserved notwithstanding their incorporation into the "collective work" of the newspaper.

 RTNDA v. Federal Communications Commission, 98-1305 (Oct. 11, 2000, D.C. Cir.)

The Radio-Television News Directors Association and others sued the Federal Communication Commission to order the elimination for the personal attack rules and the political editorial rules.

These rules were a part of the Fairness Doctrine, which required a number of actions by each broadcaster to assure coverage of issues of local issues of controversy and a balance presentation of perspectives on those issues.

The bulk of the Fairness Doctrine was eliminated in 1987. While on its face, the Fairness Doctrine sounds like an excellent mechanism for initiating and moderating public debate on issues of concern to the public, in practice, it proved unworkable and burdensome. The major problems with the Doctrine went to the main elements themselves – for example, what is an issue of controversy? If a station covers some issues of controversy, but does not cover (or ignores, or refuses to cover), is that "fair." What constitutes a "balanced presentation?" Does this mean each and every perspective must be represented? Or only the main perspectives? The battles over each of these question meant that the FCC was handling a large number of complaints, many of which were baseless or of marginal value, and the overall doctrine was repealed. However, two sub-rules of the doctrine remained – the personal attack rules and the political editorial rules. This case challenged those rules.

The plaintiffs contended in 1999 that the rules interfere with the "editorial judgment of professional journalists and entangle the government in day-to-day operations of the media." The court remanded that earlier case to the FCC for action – to explain why the rules should continue to exist after twenty years of challenge and little to no action by the FCC to justify these rules – the remnants of an overturned doctrine. The court made the remand in December 1999, but the FCC’s response did not come until the Summer of 2000 and was to request additional time to consider the issue, and by October 4th the FCC also issued a temporarily lifting of the rules for the next 60 days – covering the period of this election cycle.

The court found that the October 4th order temporarily lifting the rules was not responsive to its remand. It found that although the FCC was given repeated chances to cure the "deficiencies of which it has long been aware" and has done nothing. Therefore, the court issued a writ of mandamus ordering the FCC to repeal the personal attack and the political editorial rules.

Commentary: The court looks to the delay by the FCC and states that it appears as if the FCC even ignored the court’s remand. Further, it looks to the fact that the FCC has not gathered any additional data to justify the rules and that even the temporary lifting of the rules is incongruent with the FCC proceeding rationally to resolve the issue. The court states: "Incredibly, the (FCC’s) Order reinstates the rules before the commission will have received any of the updated information that the Commission states that it requires to evaluate these rules….Thus, notwithstanding the Commission’s continuing failure to provide adequate justification, as of December 3, 2000, petitioners would again be subject to the rules that they have contended since 1980 have serious consequences and that the court has acknowledged have some effect and cause some interference to broadcasters’ editorial judgments." The use of a writ of mandamus to order a federal agency to repeal rules is relatively rare. It is extremely rare in the case of the FCC. And it is most exceptional that the writ was issued without a further finding of fact on the record. What strikes this observer is that the court was truly fed up with the FCC and took such action to put an end to an agency who could not justify two rules that admittedly affected First Amendment Speech when it was given twenty years to do it. There is a corollary that I teach in class, that when the FCC "does not do its homework," it is often overturned.