Constitutional Law: July 2008 Archives
In a closely followed court proceeding, a California court today decided that a reporter could not be compelled to disclose his source in an article about a Chinese espionage ring because the reporter’s First Amendment right to protect that source outweighed the government’s need to identify that source.
A May 16, 2006, story by the reporter cited unnamed "senior Justice Department officials" as the sources of information about criminal charges against a Chinese-born employee of a California defense contractor, who was accused of leaking military information to the Chinese government. The employee was sentenced to 24 years in prison in March after being convicted last year of conspiracy to export sensitive defense information and being an unregistered foreign agent.
The reporter was quoted after the ruling as follows:
“Today´s hearing shows that First Amendment press freedoms are under assault. Confidential sources are the lifeblood of a free press, independent of government control. Without them, most government failures and abuses of past decades would have gone unreported and uncorrected. The identity of these confidential news sources must be protected if our press freedoms, fundamental to the effective functioning of our democratic system, are to endure. Efforts by government to compel reporters to disclose news sources must be resisted."
The Third Circuit has rightly thrown out the $550,000 fine against CBS for the Janet Jackson “costume malfunction” lasting 9/16th of a second during the 2004 Super Bowl Halftime show. The Court concluded that the FCC's actions in imposing a fine for a fleeting incident were arbitrary and capricious. In its Opinion, authored by Judge Sirica, the Court made it clear that the FCC under the Bush Administration was far more out of line and out of touch than Justin Timberlake and his costar.
The FCC had relied on a single sentence in a 2001 policy statement to justify the single, isolated event as an “indecent standard.” The FCC had written: "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Judge Sirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines, adding: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."
The Court also refused to hold CBS liable for the independent actions of the performers. The FCC had argued that CBS was vicariously liable under the doctrine of respondeat superior,. The Court would have none of it, holding: "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. . "
Alan Milstein
