California Court Rejects Trial Court's Gag Order on Newspaper's Reporting of Trial Testimony

In a strongly-worded opinion, a California appellate court directed the trial court to vacate an order--issued sua sponte--enjoining a newspaper, The Orange County Register, from reporting on the trial testimony of any witness in a wage-and-hour class action in which the newspaper was a defendant.  Characterizing the order as "censorship", the appellate court readily concluded that the danger sought to be averted by the gag order--the risk that witnesses might be influenced by reading news reports of the testimony of other witnesses--could not possibly justify such a prior restraint.

You can find a copy of the court's opinion in Freedom Communications, Inc. v. Superior Court of Orange County here (PDF, 5 pages).



Summary Judgment Granted to Talk-Radio Host in Abu Ghraib Defamation Case

In 2005, CACI Premier Technology, Inc. and CACI International Inc. ("CACI")--a U.S. government contractor that provides intelligence services to the military and which, beginning in 2003, provided civilian interrogators for the U.S. Army's military intelligence brigade at the Abu Ghraib prison--sued talk-radio host Randi Rhodes and others for defamation for statements Rhodes made on The Randi Rhodes Show.  Specifically, CACI claimed that Rhodes accused it of, among other things, torture, rape and murder at the Abu Ghraib prison.

The district court granted summary judgment to the defendants, finding that each of Rhodes's statements were not demonstrably false, were non-actionable hyperbole or were not made with actual malice, the applicable standard in the case as it was undisputed that CACI was a public figure.  In a lengthy decision addressing each of the challenged statements in some detail, the Fourth Circuit agreed and affirmed the grant of summary judgment.  You can find the Fourth Circuit's opinion in CACI Premier Tech., Inc. v. Rhodes, here (WARNING:  the opinion contains descriptions of some of the detainee abuse at Abu Ghraib).

FCC's "Fleeting Expletives" Policy Arbitrary and Capricious

The Second Circuit issued a decision yesterday in which it found that the FCC's policy of sanctioning so-called "fleeting expletives" was arbitrary and capricious because the policy represented a significant departure from the FCC's previous positions and the FCC failed to articulate a "reasoned basis" for the change in policy.

The case arose after Fox Television Stations challenged the FCC's notices of liability against it for two broadcasts which the FCC claimed violated its indecency regime.  The two Fox programs at issue were the 2002 and 2003 Billboard Music Awards in which Cher, in an acceptance speech, used the "F-word" and presenter Nicole Richie used both a variation of the "F-word" and a curse word in reference to cow excrement.

In finding that these programs were indecent and profane, the FCC concluded, in relevant part, that it did not matter that the use of the expletives was "fleeting" and "isolated" and held that repeated use of expletives is not necessary for an indecency finding.  It was the FCC's rejection of the "fleeting" and "isolated" nature of the use of the expletives that the Second Circuit took issue with, noting that previously, "the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime."

Although Fox, CBS, NBC and various amici raised a number of challenges to the FCC's decision, because the Second Circuit found the FCC's decision to be arbitrary and capricious, it declined to "reach any other potential problems with the FCC's decision."  Nevertheless, the Second Circuit noted that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster," and went on to provide some "observations" on that topic.

It is a very detailed opinion (53 pages including the dissent) on a topic I have always found particularly interesting and troubling from a First Amendment perspective, especially given the fact that, as the Second Circuit noted, "it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children."

Exemptions to Public Records Act to Get Check-Up

The name doesn't exactly roll off the tongue but then again, how often does creativity and government intersect?  Washington Governor Christine Gregoire recently signed into law an amendment to Washington's Public Records Act, RCW  42.56, that creates a "Public Records Exemptions Accountability Committee" to review the exemptions to public disclosure "to determine if each exemption serves the public interest."  Given the number of exemptions, the committee has a lot of work ahead of it.  And good news for the concept of open government, all committee meetings are to be open to the public and the committee "must consider input from interested parties."

Hat tip to The FOIA Blog.


Seattle Newspaper JOA Lives On...For Now

A long-standing dispute between the two daily Seattle newspapers--the Seattle Post-Intelligencer and The Seattle Times--that are run under a Joint Operating Agreement has been settled, at least for now, with the result that Seattle will continue to enjoy two daily newspapers.

For coverage of the settlement and background on the dispute:
From the Seattle P-I
From The Seattle Times
From the Committee for a Two-Newspaper Town