Who owns video feed of Congress- You Do!

So, I am studying for finals, which means my mind often goes on short stream-of-consciousness vacations and sometimes leads to eureka moments. But usually, it just leads to semi-eureka moments. Like this one.

I have been researching the efforts to restrict coverage of high school sports by the state associations (state actors). If you take their argument to the extreme you would be accepting the notion that a city council could have an “official” photographer or videographer, and restrict other media in the manner and amount that the media broadcasts what it covers. That would be absurd, right?

Which made me think- what about C-SPAN? I have been to Congress, and there are not gaggles of live television crews there. Is the high school sports association just following the C-SPAN model? The short answer is no.

C-SPAN broadcasts the video feed of Congress, but they do not own it or assert any rights over it. The U.S. government produces the feed of Congress (which is somewhat problematic- but a different argument), and since there is no copyright in material produced by the federal government, the video feed is public domain. Neither CNN or anyone else has to pay a licensing fee to Congress, or to C-SPAN to use or broadcast the video.

To read about the video from Congress, C-SPAN and copyright, check this link.

It’s photo week at the Supreme Court of the United States

Photographers should be paying attention to the Supreme Court this week…

Tasini continued…

Oral arguments were heard today in Reed Elsevier v. Muchnick. This case is connected to our old friend Tasini v. New York Times, which some say started the whole rights grabbing trends of the modern day newspaper contract. While this case won’t really have as much of an impact on photographers, it is interesting because of the connection. It involves the authority of the court over copyright cases and settlements when the rights holders haven’t registered their copyright. It also involves an enormous class of journalists. Here is a summary of the oral arguments (note to self: research why people keep hyphenating “freelancer”) and here is a transcript of the oral arguments.

If the court rules that a federal court cannot approve a settlement involving rights-holders who have not registered, it seems inevitable that this will affect the Google Books settlement.

The Dog-fight Video Case

In another case that is important to photographers, the U.S. Supreme Court heard oral arguments Tuesday about whether or not a law that bans visual depictions of cruelty to animals is a violation of the First Amendment.

U.S. v. Stevens is the first case ever to be prosecuted under a federal law that bans any “depiction of animal cruelty” if such cruelty is illegal in the place where the depiction is created, sold or possessed.

It has been many years since the Court found that the government interest in preventing child pornography was so great that it overrode any First Amendment rights of the child pornographer, a rather appropriate finding. By making the expressive act illegal, the motive for the abuse is diminished. Child pornography involves abuse of a child and the photography itself is abusive. The law is clearly narrowly tailored and serves a compelling government interest.

This law is not so well orchestrated. For example, the defedant, Stevens, was not involved in any animal abuse, he merely edited together footage that he obtained from others.

While well intentioned (many attacks on the First Amendment are), I think this law is certain to be struck down. First of all, I don’t believe that our government truly has a compelling interest in preventing cruelty to animals. If it did, much of the way our nation produces meat would be illegal (yes, I am a vegetarian). Second, the law is in no way narrowly tailored. There are many possibilities of perfectly legal activity that could get a person caught up in this law. And there are loopholes that would make illegal a video or photograph of something that was legal where it occurred (say bullfighting in Spain). I once photographed a ritual sacrifice of a sea turtle in a Fijian village. It was gross. It was brutal and cruel. But it was important to document. Those pictures could get me in trouble with the feds under this law.

If you don’t believe me, just take a look at the list of hypotheticals the justices posed to the attorneys in this case. The article in the New York Times says it all.

The transcript, full of hypotheticals, is here.

An article about the NPPA signing an amicus brief urging the court to hold the law unconstitutional is here.

One of my favorite things to listen to is a Nina Totenberg report on Supreme Court arguments. Her review of this weeks oral arguments is available here.

“Don’t shoot me! (while I’m in handcuffs)”

A couple of weeks ago, a defendent in Long Island, NY, actually had the nerve to ask a federal judge to bar the media from publishing photographs of him in handcuffs. The defendant, former legislatorRoger Corbin, was arrested on federal charges of tax evasion.

Among the things that Corbin asked for was an end to the “perp walk,” specifically:

(A) permanently enjoining, restraining, and stopping Newsday, News 12 and the United States Government from issuing press releases, mug shots or “perp walk” photos, videos or images of the defendant in handcuffs; and

(B) permanently enjoining the United States Government from conducting “perp walks” or issuing other information of the defendant aside from pedigree information and except as directed by the Court;

Needless to say, the motion to prevent perp walks, for either Corbin, or other defendants, was denied, as was the motion to stop publication of the images of Corbin in handcuffs. But as is the case with most rulings, the judge cannot just say “no.” He has to explain it.  The case goes through all of the motions of why, and for that reason it is interesting reading to anyone who wants to know the law behind perp walks or behind judicial restraint and the push-pull of fair trial vs. free press.

I thought it was interesting that the judge found the perp walk issue moot because it had already happened. Federal courts can only rule on “cases in controversy,” in other words, if there was about to be a perp walk, there would be a controversy, but since the time had passed, there was no “justiciable” issue. I was surprised by this ruling, even though the judge had good precedent. There are exceptions to this rule when the issue is something that will be repeated, and it ordinarily begins and ends before a case can reasonably be brought. This was the reasoning behind some desegregation cases, when the child had already graduated.

Also interesting to me, was that in Corbin’s efforts to stop the police from releasing information and photos to the media, the judge ruled that the media had rights because as the recipients to the information, their First Amendment rights were invoked. In other words, when it comes to restricting information, both the person communicating the information AND the recipient have first amendment rights. To quote a Supreme Court case, “W]here  [*29] a willing speaker exists, … the protection afforded is to the communication, to its source and its recipients both.” (case can be found at 425 U.S. 748). The fact that the recipient has as much right to recieve the communication as the speaker has to give it is not something that I was aware of. It is definitely useful.

The judge’s ruling on the motions can be found at United States v. Corbin, 2009 U.S. Dist. LEXIS 46241 (E.D.N.Y. June 1, 2009).

Roxana Saberi reportedly released

Roxana Saberi has reportedly been released from prison! The Iranian-American journalist, who had been convicted of spying and jailed in Iran with a sentence of 8 years, was released when an appeals court, after pressure from the president of Iran, agreed with her defense that she could not be “cooperating with a hostile state” if there was “no hostiliy” between the U.S. and Iran. Her sentence was reduced and suspended.

Contributing to this victory: a change in tone between the new administration and Iran, upcoming Iranian elections, pressure from the U.S. president and secretary of state, and pressure from journalism groups.

Three cheers for some wonderful news on a Monday morning.

Videographer Detained by Police

I thought this was worth watching. It is a terrible example of the abuse the media often faces simply while doing their jobs. In this instance, it was a school district chief. Thank goodness no charges were filed, but that doesn’t change the fact that another photographer has been hassled for doing something expressly protected by the Constitution.

(caution: expletives)

And now, the really good stuff

In my Constitutional Law class, we have begun studying The First Amendment.

Ahhh. This is why I am here.

The beginnings of U.S. First Amendment Law were not so pretty. Early U.S. law forbid several kinds of speech. Not so long ago, in the early 20th century, when the U.S. is at war, the following was illegal:

• attempting to cause insubordination, disloyalty, refusal of duty
• displaying the flag of a foreign enemy
• publishing disloyal language about the form of government, the flag, or the Constitution

The laws evolved a bit over the years, even into the 1920’s there were many kinds of speech that were illegal, most of them relating to trying to squash the communist party movements in the U.S. There were convictions for holding meetings, advocating the illegality of the draft, and several other things. Justices in those decades often cited the fact that you can’t yell fire in a crowded theater (unless there is one), a proof that the First Amendment should have limitations.

Probably the most bothersome thing about what I read this week was the fact that the current standard for free speech is found in the 1969 case of Brandenburg v. Ohio, where the Supreme Court ruled that the Constitution protected inflammatory speech, in particular, a very nasty KKK rally. I wonder, if it had been a Black Panthers rally, if they would have reached the same result. But that is for the historians. Whatever the means that we got there is, the current judicial standard for free speech is this:

The constitutional guarantees of free speech and free press do not permit a state to forbid advocacy of

• the use of force, or the violation of law
• except where such advocacy is
• directed to inciting or producing imminent lawless action AND
• is likely to incite or produce such action

Seems to me that a KKK rally in the late 60’s would in fact qualify under this standard.

But basically there is a fine line here, which is this: belief, and promoting a belief is protected. Promoting violent criminal action is not.

A couple of important notes from earlier cases:

• Advocacy, means people are urged to do something, rather than believe something. (Yates v. United States)
• To be prohibited, words must be used in a way that they create a “clear and present danger” that they will bring about substantive evils. (Schenck v. United States)
• To put it another way, 1) there must be reasonable ground that the danger is imminent, and
  2) the evil advocated must be a serious one. (Whitney v. California, concurrence)

Ooooh. Fun!

F- – CC vs. Fox

This should be interesting:

On Nov. 4, the Supreme Court will hear oral arguments in a suit against the FCC by Fox, about a fine for broadcasting cuss words.

Cuss words were uttered during an awards show. Because the FCC guidelines regulate profanity over the airwaves (and a very vocal group complained), the FCC fined the network.

I’m sure lawyers everywhere are waiting to see- will the offending words be repeated before the Court? Will they be repeated during questioning by the justices (not likely)? If the words are profane, then will C-Span run into trouble when it broadcasts the audio recording of the oral arguments? If it is unfit for broadcast, will it be unfit for “the nine.”

And how do you argue about the use of a vulgar word in front of the Supreme Court of the United States, without mentioning the words, which may be interpreted as a lack of respect by the justice? That’s what makes it fun!

http://www.broadcastingcable.com/article/CA6608206.html

This issue was famously before the court 30 years ago, in FCC v. Pacifica. The case, tried in the 1978, was about a broadcast of a George Carlin skit about “seven dirty words” that you cannot broadcast. The skit was broadcast, the radio station was spanked, and a court case ensued. The result was a Supreme Court decision stating that the First Amendment does not protect vulgar and offensive speech from regulation by the FCC

Interestingly, the entire judicial opinion did not include any of the allegedly offensive words (but the transcript, in the appendix, was full of them).

Covering the Conventions? — Write this down

If you are covering the conventions, you should know about a wonderful resource that the Reporters Committee for the Freedom of the Press has every convention cycle: 24-hour convention legal hotline for journalists. According to their website, the RCFP has provided this service for every convention cycle for the last 36 years.

Credentialed journalists who face detention and arrest can call the hotline for legal help. There are different numbers for Republican and Democratic Conventions, but both numbers, and an informative flier that definitely should be printed out and brought to the convention is at this link:

http://www.rcfp.org/conventions/index.htm

The flier is jam-packed with useful notes. Please print it out and bring it with you. Read it on the plane. It has great insight into the arrest procedures, bonding, etc.

Why all the fuss about journalists and arrests at conventions? You can read this story about journalists arrested in the 2004 Republican National Convention in New York City.

Hopefully we won’t see a repeat of that mess. But whether you are credentialed media, traditional, student, freelance, blogger, be aware of the potential for problems and be prepared with a way to deal with it. Above all, remain calm and professional- annoyed cops often go overboard and being legally right doesn’t matter much if you miss the story because you are stewing in a jail cell.

Here are the hotline numbers:

Democratic Convention Hotline: (303) 376-2404

Republican Convention Hotline: (651) 238-1884

More info from the flier:

• The MEDIA HOTLINE should not be used for disputes over credentials or problems unrelated to your news coverage of the convention. You may call the Reporters Committee’s regular hotline, (800) 336-4243, if you have other credentialing or access issues.
• Non-credentialed reporters and protestors who are arrested may not use this MEDIA HOTLINE, but may instead contact the People’s Law Project of the National Lawyers Guild at (303) 830-0277.
• Questions about civil rights and liberties issues will be fielded by the American Civil Liberties Union of Colorado at (303) 777-5482, ext. 118.

Free speech and high school newspapers

A high school student in California studied flag burning in his American government class. So he wrote an editorial about it for the student newspaper, and the newspaper ran a photo of a flag burning. He thought it would make a good article on free speech.

The principal shut down the newspaper.

Student Press Law Center Report reports out that it is a violation of California state law for a student newspaper to be censored unless it is libelous, obscene, or incites students to break the law. In addition, it is illegal for administrators to retaliate based on student speech.

The Contra Costa Times reports that the bill applies to colleges only, and needs to be expanded to high schools.

If the bill doesn’t apply to high schools, it should. Public high schools are public entities and should be held to the highest standard of open and free press- especially when it comes to budding citizens who are barely learning to vote.

First of all, you don’t teach kids about the First Amendment and then stomp all over it when they try to exercise it. Second of all…. I don’t think this needs a second of all. It’s the kind of thing that makes me want to scratch my red-white-and-blue eyeballs out.