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News gathering, social media and the First Amendment


By John C. Henegan
MPA General Counsel & Libel Hotline Attorney


1. Is The Filming Of Law Enforcement Traffic Stops Protected By The First Amendment?

In Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), the United State First Circuit Court of Ap-peals held that an individual's actions of stopping to film a traffic stop by a police officer absent a prior order to cease and desist or to leave the area was fully protected by the First Amendment.  The officer's arrest of the individual for several state crimes, including violating New Hampshire's wiretapping statute, in retaliation for filming the traffic stop violated the individual's clearly estab-lished First Amendment rights making the officer and the City Police Department subject to a suit for damages and attorneys' fees under federal law.

As the Supreme Court has observed, "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of in-formation from which members of the public may draw." First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978). "There is an undoubted right to gather news 'from any source by means within the law.'" Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)).  In line with these principles, the First Circuit had previously held that a news re-porter's videotaping of public officials in the hallway outside a public meeting of a historic district commission "were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them." Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999).

2. Is A Subpoena Seeking The Release Of The Identity of Anonymous Internet Communica-tors Absent Proof of Prior Defamatory Or Other Unlawful Communications Enforceable?

In the first significant departure from other jurisdictions that have addressed the issue, the Virginia Court of Appeals has held that a subpoena issued to an internet website company seeking the identity of anonymous website posters is enforceable without any prior showing that the alleged messages issued by the anonymous posters were defamatory or otherwise actionable. Yelp, Inc. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554 (2014), appeal granted, 2014 Va. Lexis 84 (Va., May 29, 2014).  The trial court had held the website in civil contempt for refusing to obey its order compelling the website to produce the identity of the anonymous speakers after rejecting the web site's argument that the First Amendment protected the website from having to produce the names unless the party issuing the subpoena should show that the messages were unlawful. The Supreme Court heard argument in the web site's appeal from the decision of the Court of Appeals in October.

3. Drones As A Newsgathering Device

Earlier this year I saw a wedding reception where the professional photographer was using a drone to take overhead photographs and video of the attendants.  Drones are being increasingly used for a variety of different commercial activities, including newsgathering.  The National Transporta-tion Safety Board has ruled that the Federal Aviation Administration has the authority to regulate unmanned aircraft, viz., drones, used in commercial activities.  Huerta v. Pirker, NTSB Order No. EA-5730 (Nov. 18, 2014). The NTSB is expected to issue proposed regulations regulating the use of drones for commercial and other activities such as public law enforcement in December 2014. The White House is expected to issue an executive order empowering the National Telecommunications and Information Administration to propose privacy guidelines for commercial drone use.

4. Twitter Accounts

More and more journalists have twitter accounts.  Your reporters read viral messages posted on your paper's blog sites daily, and they have been told that the paper is immune from suits for defamation for messages posted by third parties on the paper's blog.  Is an allegedly defamatory message sent on Twitter by one of your reporters actionable as libel or invasion of privacy?  If a sports reporter sends a text saying that "there is a rumor that" a local football player has been arrested and is in the city jail, is her paper subject to a suit for defamation?  If the reporter tweets a text saying that the player follows the paper's sports section, attaching a photograph of the football player coming out of the paper's offices or reading a copy of the paper, is the paper subject to a suit for commercial misappropriation of the football player's image or right of publicity?  If a reporter leaves the paper, does the account stay with the media company or does it follow the reporter?  

5. Threatening Messages Sent On Social Media        
Anthony Elonis was convicted of a felony for sending threatening messages to his estranged wife - after she had obtained a restraining order against him - and to law enforcement officials over social media, including Face Book.  He served more than three years in prison for violating 18 U.S.C. § 875(c), which makes it a felony to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another . . . ." 

On December 1, 2014, Elonis' attorney argued before the U.S. Supreme Court that Elonis' conviction should be overturned because the trial court's jury instruction violated the First Amend-ment.  Elonis' attorney claimed that Elonis had prepared the messages in rap verse form for "thera-peutic" purposes after becoming separated from his wife and their children and subsequently fired from his job and that he did not realize that the recipients, including his wife, would take the mes-sages as serious threats. Elonis' attorney argued that the jury should have been required to find that Elonis subjectively knew that the recipients of the messages felt threatened when they received his messages.  One of the Justices said that some of Elonis' messages read as though Elonis was prepar-ing a blue print to show other men who had become divorced how they could menace their former wives.  Another Justice asked the government's attorney if it were not possible that authors of rap lyrics such as Eminem could be convicted under the statute if the reasonable person standard ap-plied. Other members of the court expressed concern that the federal statute would not only reach the author of the email but a third party who verbally told the recipient about the contents of the email before she read the email.

The Supreme Court took the case to address a split among the federal circuit courts of ap-peals about whether the federal statute requires the proof of subjective or objective intent on the part of the author of the message. The case has received nationwide media attention and is being closely followed by the media bar, and numerous organizations for the media and for victims of crimes and domestic violence filed amici briefs with the Supreme Court prior to the argument. A decision is expected by June of 2015.

John C. Henegan is a member of Butler Snow, PLLC, and counsel to the Mississippi Press Association. Members can send general questions about libel or requests for story review to


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