Texas Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in Support

28 03 2011

One of the things that I have been working on since finishing law school is supporting the effort to get Anti-SLAPP legislation passed in Texas.

On Monday the Texas House Committee on Judiciary & Civil Jurisprudence held a hearing on The Citizen Participation Act, a law designed to protect Texans from frivolous lawsuits that target their First Amendment rights. The Citizen Participation Act is a bi-partisan effort at aimed at supporting the rights of all Texans affected by frivolous SLAPP suits.

Every Texan, from a rural housewife, to an Austin taxicab driver, to the Better Business Bureau, is a potential target of a SLAPP suit. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits, called Strategic Lawsuits Against Public Participation or “SLAPP” suits. Twenty-seven states and D.C. have laws similar to the Texas Citizen Participation Act.

The Act is comprised of House Bill 2973, sponsored by Chairman Todd Hunter, R-Corpus Christi, and Senate Bill 1565, co-sponsored by Sen. Rodney Ellis, D-Houston and Sen. Kevin Eltife, R-Tyler.

Author Carla Main told the committee that after she wrote a book about eminent domain, a real estate developer filed half a dozen lawsuits, naming her, her publisher, the person who wrote a blurb on the back of the book and a Texas newspaper that wrote a review of the book as defendants. By including the newspaper, The Galveston County Daily News, in the suit, the developer prevented Main from removing the case to Federal Court “where we could have moved to dismiss the case immediately.”

The bill “creates a mechanism to get rid of meritless lawsuits at the outset of the proceeding and it provides for a means to help alleviate some of the burden on our court system,” said Laura Prather, a First Amendment attorney from Austin.

Shane Fitzgerald, Editor of the Corpus Christi Caller-Times told the committee how just last week the newspaper was threatened with a lawsuit for publishing a photo taken on a public beach during Spring Break. Refineries and other industries have threatened to sue newspapers over the publication of public records and safety reports from state agencies. Fitzgerald stated that the paper is threatened with such lawsuits several times a month. The effect of these suits is increased costs to the newspaper and fewer resources available for reporting.

Also testifying was Janet Ahmad, of San Antonio, and the president of Home Owners for Better Building. Ahmad shared details of how she was sued for racketeering by KB homes because she organized protests of the builder.





Iowa Law Would Criminalize Publishing Farm Exposes

18 03 2011

Author’s Note: This is a cross- post from my NPPA Advocacy blog.

Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowa’s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.

Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person. . . [p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is  a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.

To give some perspective to the blatant unconstitutionality of this bill consider this – the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).

The government can’t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.

Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.

The NPPA has contacted lawmakers in Iowa regarding the bill.

Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governor’s desk.

From HF589:

Sec. 9.1(a)(2) makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the animal facility” which was taken without permission of the owner.

Sec. 14.1.b makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the crop operation which was” taken without permission of the owner.





Ban on Photography of Animal Cruelty Struck Down

20 04 2010

Two important pieces of legal news for photographers today.

U.S. v. Stevens

The Supreme Court today overturned a law that made photographs of animal cruelty illegal. The defendant, Stevens, was the first to be convicted under a federal law that banned the creation, sale, or possession of a depiction of animal cruelty.

Much like child pornography laws, the law was designed to target the market for videos of animal cruelty, because it is often difficult to determine the person who committed the underlying cruel acts. Designed to allow law enforcement to go after “crush” videos, which appeal to a disgusting fetish for the crushing of small animals, the law in this case was applied to a video of dog fights.

The problem with the law, as evidenced by the fact that it was used against a dog fight video (not that I am any fan of that either), was that it was way too broad, and could potentially impact journalists, as well as others exercising their First Amendment rights. There was an exception for any depiction that has “serious journalistic value,” but the term “serious” excluded too much, and there was no exception for entertainment. The NPPA joined the Reporters Committee for Freedom of the Press in filing an amicus brief.

The Supreme Court ruled that the law explicitly punished expression based on the content. Although speech restrictions based on content are allowed in a few exceptions, namely, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, and some specific narrowly tailored areas, this was not one of them, and the court declined to create a new category.

In attempting to bring videos of animal cruelty to the level of child pornography, the government proposed the following test for adding new areas of exception to the First Amendment : “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

Justice Roberts responded, “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.” The court declined to carve out a new exception to the First Amendment for animal cruelty.

Finding that the law was far too much of a limitation on the First Amendment, Roberts said, “We read §48 to create a criminal prohibition of alarming breadth.”

There are some great lines in the opinion, including, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

Animal rights fans, take heart. The court did “not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

You can read the entire opinion, and the dissent, here. There is also a good analysis of the ruling on the SCOTUS blog.

Ken Light v. Current TV

Also important for photographers is the ongoing case of Ken Light, a San Francisco photographer who took Current TV to small claims court for “unfair competition,” after they violated his copyright. Light originally won the case, but Current TV appealed it and the court threw the case out. The reason- it was basically a copyright violation and small claims courts do not have jurisdiction over copyright, only federal court does.

I am aware of some cases where a copyright violation was successfully taken to small claims court as a breach of contract or failure to pay an invoice, but it is always a risk as the federal courts have exclusive jurisdiction over copyright claims.

There is a wonderful story about the case, and the legal history of “in-line linking” on the NPPA website. I recommend it.

UPDATE: The New York Times calls the ruling a “major and muscular First Amendment ruling





Media companies saying “No Thanks,” for the hand-outs

12 04 2010

One of the dangers of “official” photographers, is when they are used as a replacement for admitting the media.

The media doesn’t like this, but for years, there was not much in the way of response.

Things are changing. More and more, I have seen media companies refusing to run “handout” photos when they are offered as a replacement for media access.

Recently, the media was kept out of a meeting between President Obama and the Dalai Lama. Response was strong.

The Associated Press declined to distribute the handout photo, instead offering the following Photo Advisory:

AP Photo Advisory: The AP will not be distributing an official White House photograph of today’s meeting between President Obama and the Dalai Lama. The AP declines to accept or use handout photos when we feel access would have been possible by the media, either as a group or through a pool photo arrangement.

The New York Times and the Washington Post also stated that they would not publish the hand-out photos.

The impact of a media blackout used to be more significant. But since the Obama White House has it’s own photo distribution system (via a Flikr Photostream) it doesn’t have to rely on the AP, or even newspapers, to get its images across.

There are several good sources for this story:

Associate Press release about the Dalai Lama and Obama meeting.

Washington Times article about the Dalai Lama handout photo.

Columbia Journalism Review article on the handouts trend.

White House Flikr photo stream.

White House News Photographers Association position on handout photos.





Who owns video feed of Congress- You Do!

29 11 2009

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.





Newark Cameraman assaulted by police is suing.

5 11 2009

In general, I don’t do cartwheels when I hear about lawsuits. But this one makes me happy. A TV photographer in New Jersey has filed a lawsuit against a police officer who arrested him while the photographer was filming a peaceful demonstration. Apparently the only thing violent about this demonstration was the officer’s clash with the photographer.

This video shows the original event. Can you say “settle now.”

Dear Police of America: Stop violating the constitutional rights of journalists. We are journalists and we will get really good evidence.





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

7 10 2009

071107-scotus-awc-031Photographers 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.