Reynolds Courts & Media Law Journal, Fall/Winter 2012

Fall / Winter 2012

Reynolds Courts & Media Law Journal

New Media, The C ourts & ‘Old Media’ Tocqueville’s LIKELY Take on the “Tweeting Juror” P roblem ����������������������������������������� Caroline A. Teichner That ’s What “F riend” Is For?

Judges, Social Networks and Standards for Recusal ���������������������������������������������������� Genelle I. Belmas

A R ight

to

Speak

and

Spend:

Objective Journalism and Judicial Races Post-Citizens United ���������������������������������������������������������������Michael Ellement

The New News

Challenges of Monetization, Engagement, and Protection of News Organizations’ Online Content ���������������������������������������������������� Christine Katherine Lesicko

U.S. $13.00

www.courtsandmedia.org

Fall / Winter 2012 Volume 2, Issue 3

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA

Reynolds Courts & Media Law Journal Volume 2, Issue 3 Fall / Winter 2012

William F. Dressel, Publisher Ben Holden, Editor Elizabeth Conner, Copy Desk Chief Nicole Scott, Research Editor Aspen Kuhlman, Jim Cooper, Layout Editors Christina Nellemann, Manager of Graphic & Web Services

Universit y of Nevada Prof. Nancy Rapoport A rizona S tate Universit y Prof. Rick Rodriguez Universit y of M issouri Prof. Charles N. Davis Washington and L ee Universit y Prof. Toni Locy

COVER: Judges ponder media problems old and new. - istockphoto.com

Š 2012, Donald W. Reynolds National Center for Courts and Media and the University of Nevada, Reno. All rights reserved.

Material in publications of the Donald W. Reynolds National Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of the Donald W. Reynolds National Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content.

The opinions expressed in this publication are those of the author(s), and are not necessarily those of the University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; or the Donald W. Reynolds Foundation.

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Affiliated Institutions Universit y of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial C ollege A rizona S tate Universit y Walter Cronkite School of Journalism and Mass Communication C onference

of

C ourt P ublic I nformation O fficers

Universit y of M issouri University of Missouri School of Law Missouri School of Journalism

Board of Editors Hon. William Dressel, President, National Judicial College Stewart Cheifet, University of Nevada Charles Davis, University of Missouri Toni Locy, Washington and Lee University Nancy B. Rapoport, University of Nevada Rick Rodriguez, Arizona State University Christina Wells, University of Missouri

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Call for Papers The Reynolds Courts and Media Law Journal is seeking legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction. Examples of possible article topics include, but are not limited to: • • • • •

Media access to court proceedings (including cameras, new media in the courtroom) Conflicts between First Amendment and Sixth Amendment principles and values Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings Analysis of specific examples and cases of court-media conflict situations

Judges, attorneys, journalists and professors are invited to submit (via e-mail) ideas, proposals or drafts for articles of up to 30,000 words (including text and footnotes). The journal is published both in print and online.

Electronic submissions in Microsoft Word format strongly preferred. Blue Book or Association of Legal Writing Directors (ALWD) legal citation format is strongly preferred; other social science citation formats are also accepted, but citations must be in footnotes, not endnotes or parentheticals.

Submissions, ideas and questions should be sent to courtsandmedia@unr.edu.

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Reynolds Courts & Media Law Journal Contents

New Media, The Courts & ‘Old Media’ Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem Caroline A. Teichner �������������������������������������������������������������������������������271 271

That’s What “Friend” Is For? Judges, Social Networks and Standards for Recusal Genelle I. Belmas ������������������������������������������������������������������������������������ 297

A Right to Speak and Spend: Objective Journalism and Judicial Races Post-Citizens United Michael Ellement ������������������������������������������������������������������������������������ 321

The New News Challenges of Monetization, Engagement, and Protection of News Organizations’ Online Content Christine Katherine Lesicko ������������������������������������������������������������������ 339 Letter from the Director ����������������������������������������������������������������������������������� xi Authors ������������������������������������������������������������������������������������������������������������269 269 For Further Reading ���������������������������������������������������������������������������������������371 Board of Editors �������������������������������������������������������������������������������������������� 373

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(1906-1993)

D onald W. R eynolds

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edia entrepreneur D onald W orthington R eynolds was born in 1906 and spent his childhood in Oklahoma City often “hawking” copies of the Oklahoma News at the railroad depot. He soon realized the newspaper business was in his blood, and set his sights on the University of Missouri’s School of Journalism, working at a meat packing plant to pay for his studies. Upon graduation in 1927, Mr. Reynolds worked in a variety of newspaper-oriented positions.

He purchased and then sold his first newspaper, using the proceeds to launch the Donrey Media Group.

During World War II, Mr. Reynolds served as the officer in charge of the Pacific and London editions of YANK. He received the Legion of Merit, Purple Heart and Bronze Star before being honorably discharged in 1945 as a major. After the war, Mr. Reynolds expanded his business, ultimately owning one of the nation’s largest privately held media companies.

Upon Mr. Reynolds’ death in 1993, the Donrey Media Group was sold, resulting in a substantial bequest from the Reynolds estate to provide for the Donald W. Reynolds Foundation to continue his philanthropy, focusing on journalism; aging and quality of life; cardiovascular research; and general nonprofit programs in the states of Arkansas, Nevada and Oklahoma. These grants often include a capital component, reflecting Mr. Reynolds’ life-long passion for building.

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Donald W. Reynolds National Center for Courts and Media

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he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Center’s goals are to propose solutions to these conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom.

In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues.

By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the judiciary’s ethical and legal obligations to ensure the fundamental fairness of court proceedings.

More journalists also need to realize their First Amendment freedoms exist solely because judges interpret the Constitution to protect freedom of the press.

And more judges need to realize that their independence rests on the public’s confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

A

s part of this effort, the Center is pleased to publish the Reynolds Courts & Media Law Journal, which highlights legal and scholarly articles on the interaction between the courts and the media, and the impact and implications of this interaction.

By helping to reduce the conflict between the independent judiciary and the free press, the Reynolds Center seeks to promote and reinforce both of these crucial pillars of our democratic society.

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National Advisory Council The National Advisory Council is the administrative oversight unit for the Center. It is composed of both the judiciary and the media, print and electronic.

The Council sets the focus of the Center and establishes its policies.

Floyd Abrams—Partner, Cahill Gordon & Reindel LLP, New York, N.Y. Hon. Janet Berry—Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bush—Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiek—News Director, KCCI-TV, Des Moines, Iowa Linda C. Deutsch—Legal Affairs Reporter, The Associated Press, Los Angeles, Cal. Hon. William F. Dressel—President, The National Judicial College, Reno, Nev. Mark Hinueber—General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jones—Judge, U.S. District Court, Seattle, Wash.

Warren L. Lerude—Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionel—Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Prager—Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Cal. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Cal. Alexander M. Sanders, Jr.—former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. David A. Sellers­—Assistant Director of Public Affairs, Administrative Office of the U.S. Courts, Washington, D.C. Alan G. Stavitsky—Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Barbara Wall—VP & Associate General Counsel, Gannett Co. Inc., McLean, Va.

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From The National Judicial College

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n 2013, The National Judicial College will commemorate its 50th anniversary by holding three symposia addressing issues identified as important to 21st century justice systems: • In April at the National Constitution Center in Philadelphia: “CIVILITY IN THE AMERICAN JUSTICE SYSTEM: Promoting Public Trust and Confidence;” • In June at the American Bar Association in Chicago: “HOW COURTS RESOLVE DISPUTES: The Role of the Jury Trial in the 21st Century;” and • In September/October, at The National Judicial College: “JUDICIAL COMPETENCY AND LEADERSHIP: Critical Challenges Facing the Judiciary.”

Each symposium will (i) produce educational proposals that can be used to conduct programs/presentations throughout the justice system and/or in the civic arena, (ii) determine issues that should be addressed in future justice improvement initiatives, (iii) identify educational material for justice systems entities and (iv) promote collaboration among all who seek to improve justice.

We believe the Courts & Media Law Journal can similarly support NJC’s 50th initiative by identifying and addressing critical court and media issues. With the move back under The National Judicial College umbrella, the Journal will continue to target important and topical First and Sixth amendment challenges facing the judiciary and media. We would like to invite members of the bench and media who are so inclined, to write a 1,000-wordor-less letter to this Journal, outlining a First or Sixth amendment challenge facing the judiciary. We will publish as many of the letters as possible.

Also, we encourage your participation in the work of the Journal through the submission of scholarly articles, or suggestion of subjects which we might assign to friends and colleagues of the Journal to address. This is your Journal — your input and submissions will frame the content of future issues.

On behalf of Ben Holden and myself, I would like to express appreciation to Nancy B. Rapoport (interim dean and Gordon Silver professor of law at William S. Boyd School of Law) and Boyd law student Nicole Scott for their invaluable contributions to the editing and publication of this issue.

We are grateful for your ongoing support.

William Dressel President, National Judicial College

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L etter F rom

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the

E ditor

his is our first publication since last summer’s transition from the Reynolds School of Journalism back to the National Judicial College.

In our last edition, Judge William Dressel characterized the move as going “back to the future,” referencing the roots of the Donald W. Reynolds National Center for Courts & Media at the NJC more than a decade ago.

Now, just in time for the 50th Anniversary Celebration of the NJC, we return our research and scholarly focus to subjects that will educate, enlighten, and periodically, even amuse, judges. To that end, the Fall/Winter Edition of Volume II, contains three great new articles and one important update.

Think you, or a judge you know, is a little out of step with the technology that now invades (and threatens) American courtrooms? Just imagine what famed American observer Alexis de Tocqueville (born 200 years ago) would say. Caroline Teichner in this edition asks the not-sowhimsical question: What would de Tocqueville have to say about the tweeting juror?

Also, Michael Ellement takes on the landmark case Citizens United v.

Federal Election Commission, with particular emphasis on its impact on judicial elections.

Finishing out our wholly original content, Christine Lesicko, a lawyer and former legal publication editor, writes about the challenges faced by news organizations in the social media era – and the content protection tools (e.g., copyright law, firewalls) available to them.

And finally, in a reprise of perhaps our most requested article, Dr. Genelle Belmas revisits the thorny question of Facebook pages for sitting judges with a November 2012 update.

We hope you enjoy the work and welcome your feedback.

Ben Holden Associate Professor, Reynolds School of Journalism and Director, National Center for Courts and Media

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Authors Genelle I. Belmas, Ph.D (“That’s What “Friend” Is For?: Judges, Social Networks and Standards for Recusal”) is an associate professor of communications at California State University, Fullerton, and head of the journalism concentration. She received her Ph.D. in 2002 from the University of Minnesota. Her research interests include indecency law, flag display and desecration, and judicial speech issues. Her work has appeared in the Federal Communications Law Journal, Communication Law and Policy, the Drake Law Review, and the South Carolina Law Review. She is also the author of an undergraduate media law textbook, Major Principles of Media Law (Cengage).

Michael Ellement (A Right to Speak and Spend: Objective Journalism and Judicial Races Post-Citizens United) is a third-year law student at the Catholic University of America, Columbus School of Law. His scholarly research thus far has focus on election law, specifically campaign finance regulations and The Voting Rights Act of 1965. Upon completion of law school, he will serve as a judicial law clerk to Judge Ivan L.R. Lemelle of the United States District Court for the Eastern District of Louisiana.

Christine Katherine Lesicko (The New News: Challenges of Monetization, Engagement, and Protection of News Organizations’ Online Content) is an attorney in Missouri. She has previously worked as both an editor and reporter. Ms. Lesicko received her J.D. from the University of Missouri School of Law in Columbia, Mo., her M.A. in journalism from the University of Missouri School of Journalism, and her B.A. in rhetoric from the University of Illinois at Urbana-Champaign.

Caroline A. Teichner (Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem) earned her J.D., summa cum laude, from the Chicago-Kent College of Law, and her B.S.E. in Mechanical & Aerospace Engineering, magna cum laude, from Princeton University. Ms. Teichner presently works as an associate at the intellectual property law firm of McAndrews, Held & Malloy, Ltd. in Chicago.

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Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem

By Caroline A. Teichner I ntroduction

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hen Alexis de Tocqueville wrote in the early 19th century about the virtuous American jury system, he surely did not foresee the rise of a phenomenon that would wreak havoc in jury trials some 200 years later: social networking.1 Tocqueville’s idealized vision depicted the American jury both as a political institution that allowed citizens to participate in self-government, and as a “free school,” where jurors learned about the law and equity in practice from the best and brightest legal minds.2 Today, however, some jurors fail to check their social networking habits at the courtroom door, thereby jeopardizing not only Tocqueville’s vision, but also the core values of the jury system. Ubiquitous reports in the media describe jurors tweeting, posting to Facebook and blogging during trial proceedings — practices that “upend[] deliberations and infuriat[e] judges” when discovered.3 Even worse, these practices threaten the integrity of trials and violate “the traditional notion of our adversary system: To keep jurors insulated from outside information.”4 Indeed, this problem is so “pervasive that commentators have coined new phrases to describe it,” such as “the ‘Twitter Effect,’ and ‘Internet-Tainted Jurors.’”5 While this phenomenon might be shocking, it is certainly not surprising. In an era where psychologists recognize the clinical phobia of being without one’s cellphone (“nomophobia”),6 and where rehabilitation centers exist to treat people for technological 1. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times , Mar. 17, 2009, at A1 (“The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc around the country.”).

2. A lexis de Tocqueville , D emocr acy in A merica 311–18 (Arthur Goldhammer trans., 2004).

3. Schwartz, supra note 1.

4. See Laura Whitney Lee, Comment, Silencing the “Twittering Juror”: The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age, 60 D e Paul L. R ev. 181, 183–84 (2010).

5. Thaddeus Hoffmeister, Jurors in the Digital Age 4 (Aug. 30, 2010) (unpublished manuscript), available at http://works.bepress.com/thaddeus_hoffmeister/7.

6. See Vicky Kung, Rise of ‘nomophobia’: More people fear loss of mobile conduct, Cnn.com (Mar. 6, 2012), http://articles.cnn.com/2012-03-06/tech/tech_mobile_nomophobia-mobile-addiction_1_mobile-

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dependence,7 some jurors will predictably struggle to cease their online activities once inside the jury box. Roughly three-quarters of American adults use the Internet8; in 2009, 35% of those adult users had social networking profiles of some kind, a figure that has surely grown over the years.9 Americans now spend roughly a quarter of their time on the Internet visiting social networking sites and blogs.10 Many of Although he doubted whether the people who will be called for jury duty the jury actually promoted “the are possessed by an “instinctual drive to stay fair administration of justice,” ‘connected’” via social networks11 and rarely, if ever, leave home without their handheld Tocqueville extolled the jury as Internet devices12 Indeed, “[In]early 40% of “a form of popular sovereignty” social media users access social media content from their mobile phone.”13 For some, social that allows citizens to take networking sites such as Facebook and Twitresponsibility for their own selfter have “turned the Internet into a kind of government. universal companion, to whom [they can] confide, exhibit themselves, and vent their frustrations.”14 In short, engaging in social networking is “almost reflexive” for many jurors, such that they give little thought to going online during trial proceedings.15 In many cases, courts might actually facilitate this behavior by providing free wireless internet access.16 Legislatures, courts and academics around the country have devised various solutions to address the problem of jurors’ use of social media. Some of these solutions are designed to nip jurors’ social media activities in the bud before trial even begins. Other solutions propose punitive measures, designed to deter and punish such behavior through fines and even jail time. This note sets out to examine the strengths and weaknesses of these various solutions.

More specifically, this note will address how Tocqueville, himself, would likely view each of the key proposals, and whether he would endorse any particular solution over others.

Despite the fact that Tocqueville wrote 177 years ago, contemporary scholars uphold his vision of the American jury as relevant today, and look to it as an idealized framework

phone-cell-students?_s=PM:TECH (“nomophobia” stands for “no mobile-phone phobia”).

7. See Amanda McGee, Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and its Effect on American Courtrooms, 30 L oy. L.A. E nt. L. R ev. 301, 309 (2010).

8. See Timothy J. Fallon, Note, Mistrial in 140 Characters or Less? How the Internet and Social Networking are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstr a L. R ev. 935, 939 (2010).

9. See Amanda Lenhart, Adults and Social Network Websites, P ew I nter net & A m . L ife P roject (Jan. 14, 2009), http://www.pewinternet.org/Reports/2009/Adults-and-Social-Network-Websites.aspx.

10. See Social Media Report: Spending Time, Money and Going Mobile, NielsenWire (Sept. 11, 2011), http://blog.nielsen.com/nielsenwire/online_mobile/social-media-report-spending-time-moneyand-going-mobile/ [hereinafter Social Media Report].

11. Lee, supra note 4, at 183.

12. See McGee, supra note 7.

13. Social Media Report, supra note 10.

14. Caren Myers Morrison, Jury 2.0, 62 H astings L.J. 1579, 1613 (2011).

15. Hoffmeister, supra note 5, at 9.

16. See Molly McDonough, Blogger’s Posts Don’t Equal Juror Misconduct, 5 No. 40 A.B.A. J. ER eport 2 (2006).

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against which modern jury reforms can be measured.17 To the extent society wishes to promote the jury’s role as a “political institution” and “free school” in America, Tocqueville’s likely take on how to solve the “tweeting juror” problem should carry a great deal of weight.

The best solution to this problem would ideally perform two functions: First, it would stop jurors from heading online during trial; and second, it would bolster the public’s perception of the jury system, thereby motivating more citizens to embrace jury service and in turn enhancing the jury’s educational and political role in society.

This paper proceeds as follows: Part I sets forth Tocqueville’s framework in detail. Part II discusses the various forms of social networking activity jurors engage in during trial proceedings. Part III discusses the specific harms caused by these activities. Part IV identifies possible underlying causes driving jurors online. Finally, Part V evaluates the various solutions that have been proposed to remedy this problem from a Tocqueville-oriented point of view.

Tocqueville’s Fr amework

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ocqueville’s idealized vision of the jury system provides a backdrop against which to evaluate both the social networking problem and the various solutions proposed to remedy it. Tocqueville saw the jury “first and foremost [as] a political institution” in the sense that “it places actual control of society in the hands of the governed — or some of the governed — rather than of the government.”18 Although he doubted whether the jury actually promoted “the fair administration of justice,”19 Tocqueville extolled the jury as “a form of popular sovereignty” that allows citizens to take responsibility for their own self-government.20 Tocqueville also characterized the jury as a “free school” because of its utility in “shaping the people’s judgment and augmenting their natural enlightenment.”21 More specifically, the jury teaches citizens many important lessons relevant to both their civic and personal lives in the following respects. First, the jury “teaches everyone that they have duties toward society and a role in its government.”22 Second, the jury teaches citizens about their rights and brings them “into daily contact with the best educated, most enlightened” legal minds, allowing them to “receive[] practical instruction in the law.”23 Third, “[t]he jury instills in all classes a respect for judicial decisions and the idea of law.”24 Fourth, the jury teaches citizens equity in practice because “[e]ach man, in judging his neighbor, thinks that he may be in turn judged.”25 Finally, the jury “combats individual egoism, which is to societies what rust is to metal,” in that it “forc[es] [people] to be concerned with affairs other than their own.”26 The question of whether Tocqueville’s framework reflects the reality of the jury system in modern society garners mixed responses.27 On the one hand, some believe that 17. See Na ncy S. M arder , The Jury P rocess 266 (2005); Nancy S. Marder, Note, Gender Dynamics and Jury Deliberations, 96 Yale L.J. 593, 606 (1987) (discussing how gender dynamics of deliberations affect the lessons women learn from jury service under Tocqueville’s framework).

18. Tocqueville , supra note 2, at 313.

19. Id. at 311.

20. Id. at 315.

21. Id. at 316.

22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. Of course, one may question the extent to which Tocqueville’s framework reflected the reality of the American jury system at the time he wrote, but that issue is beyond the scope of this paper.

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Tocqueville’s “praise … for the jury still rings true,” and further that his writings “have even greater resonance today when more of the citizenry can serve as jurors than was true in [Tocqueville’s] time.”28 In contrast, others note the irony that while “we sing [the] praises [of jury service] as an opportunity for democratic participation, as a bulwark of individual liberty, [and] as the crown jewel in our criminal justice system … our enthusiasm evaporates” as soon as we receive our jury summons in the mail.29 Indeed, the average national summons reply rate of 48 percent30 suggests that many citizens, themselves, do not see jury service as the elevating experience Tocqueville described, and some might even try to evade it.

Regardless of whether Tocqueville’s framework reflects the reality of the jury’s role in American society, it nevertheless represents a benchmark to which society should aspire.

Moreover, the tendency of some jurors to engage in social networking during trial proceedings is not inherently incompatible with Tocqueville’s model. In many ways, the Internet “may lead to the revitalization of American democracy, as more people are participating and contributing to current public discourse” on blogs and other online forums.31 Social media itself has largely “reengineer[ed] how individuals share, discuss, and exchange ideas.”32 Accordingly, if properly channeled, jurors’ use of the Internet might be the perfect route by which to realize Tocqueville’s ideals.

Jurors’ S ocial Networking Behaviors

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urors engage in a variety of social networking activities during trial proceedings that can be classified inter alia according to their intended recipients.33 In particular, some activity is targeted to specific recipients (i.e., “direct” communications), whereas other activity is directed toward a more generalized audience (i.e., “indirect” communications).

These two categories of communications are discussed in turn below. Within both categories, communications can either be deemed “outgoing” — that is, originating from the juror — or “incoming” from a third party.34 Notably, even if the following juror activities do not result in judges overturning verdicts or granting new trials (as they often do not), these behaviors nevertheless harm litigants, society, and the judicial system as a whole for the reasons discussed infra in Part III.

Direct Communications This category encompasses jurors reaching out to parties and litigants via social networking sites. For example, in a New York criminal case, a female juror sent a Facebook friend request to a testifying witness while the trial was in progress.35 Although the witness initially ignored the juror’s friend request, he later accepted the request after the jury returned its verdict and the juror sent him a message explaining her role in the trial.36 The witness contacted 28. M arder , supra note 17 (emphasis added).

29. Morrison, supra note 14, at 1611.

30. See Hoffmeister, supra note 5, at 22.

31. Nicol Turner-Lee, The Challenge of Increasing Civic Engagement in the Digital Age, 63 F ed. C omm .

L.J. 19, 22 (2010).

32. Id. at 23.

33. There have been numerous reports of jurors performing online research during trial from their cellphones using websites such as Google and Wikipedia, but such conduct is beyond the scope of this paper.

34. See Lee, supra note 4, at 193. (“Like other technologies, Twitter allows information to go both in and out of the courtroom.”).

35. See Fallon, supra note 8, at 941.

36. See id.

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prosecutors to notify them of the juror’s conduct.37 Ultimately, the state’s Supreme Court denied the defendant’s motion to set aside the verdict in light of this incident, finding that the female juror’s “feelings” for the witness did not affect her decision-making.38 In 2010, a sitting juror in a West Virginia corruption trial contacted the defendant through MySpace, prompting the state’s Supreme Court of Appeals to grant the defendant a new trial.39 Jurors might also visit social media sites to gain information about parties or witnesses.

For example, a juror in one wrongful-death action became Facebook friends with the plaintiff and was thereby able to read the latter’s online remarks that he “‘advocated … use of mushrooms[,] weed smoking, and binge drinking.’”40 In a 2007 sex abuse case, two jurors independently visited the MySpace profiles of the alleged teenage victims.41 Additionally, jurors sometimes communicate with each other on social networking sites before formal deliberations begin. For instance, during the theft trial of former Baltimore mayor Sheila Dixon, several jurors kept in touch through Facebook even after the judge explicitly instructed them not to do so, prompting the defendant to move for a new trial.42 Allowing jurors to discuss a case before deliberations carries the risk that jurors “will form a point of view” early on in the trial and “be unwilling to shift even as new exhibits or testimony should move them in another direction.”43 Notably, however, some states — including Arizona — actually allow juries to discuss cases before deliberation, reasoning in part that this allows “jurors to begin to process, organize, and retain the wealth of information that is presented to them during the trial.”44 Of course, courts require all jurors to be present during authorized pre-deliberation discussions, whereas unauthorized online conversations initiated by jurors likely do not include the entire jury.45

Indirect Communications This category includes the more challenging situation where jurors communicate generally with outsiders through social networking sites, “reveal[ing] [their] feelings and opinions about the case”46 or “publishing comments [about] their jury service experience.”47 Courts tend to treat such communications as innocuous disclosures when they are unilateral and no one responds to them.48 However, such communications become more dangerous when they “go beyond mere empty rhetoric and enter the realm of impermis 37. See id.

38. See id. at 941–42 n.63.

39. See Brian Grow, As jurors go online, U.S. trials go off track, R euters (Dec. 8, 2010), http://www. reuters.com/article/2010/12/08/us-internet-jurors-idUSTRE6B74Z820101208.

40. Daniel William Bell, Note, Juror Misconduct and the Internet, 38 A m. J. Crim. L. 81, 85 (2010) (alteration in original).

41. See id.

42. Kiernan & Cooley, Juror Misconduct in the Age of Social Networking, p. 187, available at http://www. thefederation.org/documents/V62N2_Kiernan.pdf.

43. M arder , supra note 17, at 116.

44. Id. at 115.

45. See id. (“[J]udges [in Arizona] instruct jurors that they can only engage in pre-deliberation discussions when they are in the jury room and when all jurors are present.”).

46. Fallon, supra note 8, at 940.

47. Lee, supra note 4, at 189.

48. See David P. Goldstein, The Appearance of Impropriety and Jurors on Social Networking Sites: Rebooting the Way Courts Deal with Juror Misconduct, 24 G eo. J. L egal Ethics 589, 595 (2011); see also McGee, supra note 7, at 313 (“Simple posts which broadly describe the jury duty experience and refrain from delving into particularities of the case are generally harmless from the court’s perspective because they are unlikely to have any prejudicial effect upon the defendant.”).

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sible disclosures or an invitation to response from outsiders.”49 Examples of these kinds of indirect communications from the jury box abound in the media. After monitoring Twitter for a three-week period at the end of 2010, Reuters Legal concluded that tweets from self-identified prospective or sitting jurors “popped up at the astounding rate of one nearly every three minutes.”50 In one particularly shocking case, a British juror in a child abduction and sexual assault case held an online poll, inviting her friends to vote on whether the defendants were guilty or not.51 Celebrities are not above this type of behavior, either: When Al Roker was called for jury duty in 2009, he sent a series of tweets from the jury assembly room describing the selection process and revealing images of his fellow potential jurors.52 Sometimes jurors broadcast details of the deliberations process. For instance, an Illinois juror posted several entries to her blog during a wrongful death trial, including the following detailed description of her fellow jurors: So our jury consists of a fireman, a dressmaker, a bar manager, a guy who just finished college, two office managers, a special education teacher, a trader, a freelance writer (me!), and five others, including two alternates … We have ten women and four men; ten white and four black.53

The same juror later blogged about specific conversations that took place in the jury deliberation room and disclosed that she had discussed the case with her husband, “almost — ALMOST — let[ting] the name of [the defendant company] slip out. In fact, [she] did let the first syllable slip out. Twice. Oops.”54 The appellate court affirmed the trial court’s decision not to hold a juror-misconduct hearing, reasoning that the jurors had not been exposed to outside information and that the blog posts revealed only that the jury was open-minded rather than biased.55 In the now infamous United States v. Fumo case, a juror posted (among other things) a Facebook status update that read, “Stay tuned for the big announcement on Monday everyone!” in reference to the jury’s impending verdict.56 After questioning the juror about his online activities, the district court judge determined that there was “no evidence that [the juror] received outside influence due to his … postings,” which were “nothing more than harmless ramblings having no prejudicial effect” because “[t]hey were so vague as to be virtually meaningless.”57 Accordingly, the judge denied the defendant’s request for a new trial on the ground of juror misconduct.58 In another well publicized case from Arkansas, a jury awarded $12.6 million against Stoam Holdings, a building materials company, and its owner, Russell Wright, following a trial for fraud.59 One juror, Johnathan Powell, repeatedly tweeted about the ongoing trial, 49. Goldstein, supra note 48; see also Brian Sharpe, Twelve Angry iPhone Users, 23 D.C.B.A. Brief 46, 48 (2010) (“When juror communication becomes bilateral, and the juror is actually getting input from an external source, those cases should be decided differently.”).

50. Grow, supra note 39.

51. See McGee, supra note 7.

52. See Lee, supra note 4, at 196; Fallon, supra note 8, at 940.

53. Keith Ecker, Juror Use of Social Media, Blogs Compromise Cases, Lawyers.com (Dec. 2, 2011), http:// blogs.lawyers.com/2011/12/juror-use-of-social-media-blogs-compromises-cases/.

54. Id. 55. See id.

56. United States v. Fumo, Criminal Action No. 06–319, 2009 WL 1688482, at *61 (E.D. Pa. June 17, 2009).

57. Id. at *64.

58. See id. at *67; United States v. Fumo, 639 F. Supp. 2d 544 (E.D. Pa. 2009).

59. See Ebony Nicolas, A Practical Framework for Preventing “Mistrial by Twitter,” 28 C ardozo A rts & E nt. L.J. 385, 391 (2010).

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stating on one occasion, “‘So, Johnathan, what did you do today?’ Oh, nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money!’” and later tweeting “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter. http://www.stoam.com/.”60 On appeal, Wright’s counsel argued these communications showed Powell’s “predispos[ition] toward giving a verdict that would impress his audience.”61 The court disagreed, reasoning that Powell’s communications did not demonstrate bias and that the defendant failed to prove that “outside information entered the jury room and influenced the As discussed below, when jurors verdict,” as required by Arkansas law.62 engage in social networking Jurors also go online to vent general during trial proceedings, there are frustrations. In one California murder trial, a juror posted on Facebook that she “want[ed] at least three sources of potential to punch” a fellow juror for cracking her harm: harm to the parties involved knuckles.63 The judge dismissed the juror for this and other posts, and the prosecuin a given trial; harm to society; tor requested that the judge also “yell[] at” and harm to the integrity of the and “possibly prosecute[]” the juror for her actions.64 Another juror in a Connecticut case judicial system, itself. posted on Facebook that “‘[j]ury duty sucks’” and “[t]his is way too boring. … Somebody get me outta here.”65 Jurors might also communicate inane observations about the jury experience. For instance, during jury selection in a Washington case, one prospective juror blogged descriptions of the prosecutor and defense attorney, referring to the former as “‘Mr. Cheap Suit’” and “‘annoying,’” while noting that the latter “‘just exudes friendly … And he’s cute.’”66 In more troubling instances, jurors communicate messages that signal their leanings about a criminal defendant’s guilt or innocence. For example, a potential juror in the Chandra Levy murder trial was dismissed after the defense counsel learned that he tweeted, “‘Guilty guilty … I will not be swayed. Practicing for jury duty.’” 67 In another criminal trial, a juror posted to his blog the following message, which raised serious doubts about his understanding of the prosecution’s burden of proof: “‘Like my life doesn’t already have enough civic participation in it, now I get to listen to the local riffraff try and convince me of their innocence.’”68 The juror later explained to the trial judge that he actually did understand the requisite burden of proof and “‘[didn’t] even recall making [this] remark,’” which he deemed “‘off-hand … [with] no real thought behind it.’”69 In later denying the defendant’s federal habeas petition, the New Hampshire District Court reasoned that a “blog is akin to a personal journal or diary, albeit 60. Id. at 391–92 (internal quotation marks omitted).

61. Id. at 391 (internal quotation marks omitted).

62. Id. (emphasis added).

63. Facebooking juror kicked off murder trial, The O r a nge C ount y R eg . (Dec. 2, 2011), http://www. ocregister.com/articles/juror-329708-trial-judge.html.

64. Id. 65. United States v. Ganias, Crim. No. 3:08CR224(EBB), 2011 WL 4738684, at *2 (D. Conn. Oct. 5, 2011).

66. Grow, supra note 39.

67. Prospective Juror Tweets Self Out of Levy Murder Trial, NBC Wash. (Oct. 22, 2010), http://www.nbcwashington.com/news/local/Prospective-Juror-Tweets-Self-Out-of-Levy-Murder-Trial-105553253.html.

68. Goupil v. Cattell, Civil No. 07-cv-58-SM, 2008 WL 544863, at *2–3 (D.N.H. Feb. 26, 2008).

69. Id. at *3.

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one that the author publishes to the Web and permits others to read.”70 Accordingly, “[t]he mere fact that [the juror] chose to make his journal available to members of the public does not change the situation because … not only did none of his fellow jurors read his online blog, but none was even aware of its existence.”71

Communications by Other Players Before moving forward, it is worth noting that jurors are not the only players getting into hot water for their social networking activities in the courtroom. Judges and lawyers have also engaged in questionable online practices during trial proceedings. For instance, in a North Carolina child-custody trial, the judge and defense counselor not only became Facebook friends during the proceeding, but also posted several comments about the trial to each other’s walls.72 In a Minnesota murder case, the prosecutor posted comments on her public Facebook page discussing one of the sitting jurors.73 The state Court of Appeals held that the trial court properly denied the defendant’s motion for a juror misconduct hearing because the defendant failed to present any evidence that jurors had been exposed to the prosecutor’s comments.74 These activities implicate the rules of judicial and professional conduct and might subject attorneys and judges to disciplinary action. For instance, in the North Carolina custody case, the state’s Judicial Standards Committee responded to the judge’s conduct by publicly reprimanding him.75 Ethics committees in some states advise judges not to “friend” lawyers who might someday appear before them because doing so could convey the impression that such lawyers are in a position to influence the judge.76 Furthermore, judges take varying stances on whether media reporters should be allowed to engage in live social media activities during trials. Some judges permit reporters to transmit live tweets and blog posts from inside the courtroom, reasoning that this practice “open[s] the legal process to the public,”77 thereby promoting public acceptance of the system.78 Problems arise when reporters who are allowed to use social media in the courtroom dispatch unauthorized tweets, such as photos of jurors.79 Other judges forbid reporters from engaging in real-time social networking within the courtroom out of concern that “access by witnesses to real-time posting[s] about a trial may taint testimony and undermine the fairness of the trial,” or that “[c]licking noises from keyboards and beeping from electronic devices may be unwarranted physical distractions.”80 The judge presiding over the trial for the murders of Jennifer Hudson’s 70. Id. at *7, *10.

71. Id. 72. See Sandra Hornberger, Social Networking Websites: Impact on Litigation and the Legal Profession in Ethics, Discovery and Evidence, 27 Touro L. R ev. 279, 290 (2011).

73. See State v. Usee, 800 N.W.2d 192, 200 (Minn. Ct. App. 2011).

74. See id. at 201.

75. See Hornberger, supra note 72.

76. See Fla. Supreme Court Judicial Ethics A dvisory Comm., Opinion Number 2009-20 (2009), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html.

77. Sharon Nelson, John Simek & Jason Foltin, The Legal Implications of Social Networking, 22 R egent U. L. R ev. 1, 7 (2009–2010).

78. See Live-Blogging and Tweeting from Court, Citizen Media L. Project, http://www.citmedialaw.org/legal-guide/live-blogging-and-tweeting-from-court (last updated Feb. 8, 2010) [hereinafter Live-Blogging].

79. See Reporter’s Photo Causes Mistrial In Austin Tabor Drug Murder Case, Huffington Post (Apr. 11, 2012), http://www.huffingtonpost.com/2012/04/11/reporter-photo-austin-tabor-case-mistrialdeclared-ann-marie-bush_n_1418723.html.

80. Live-Blogging, supra note 78; see also Nelson, Simek & Foltin, supra note 77, at 7–8 (discussing that one Florida judge provided reporters with temporary press room and required them to agree in writing

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relatives recently barred reporters from tweeting or posting to Facebook from inside the courtroom for this very reason.81 With respect to federal criminal cases, Rule 53 of the Federal Rules of Criminal Procedure states that “[e]xcept as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”82 Some courts have interpreted this rule to include a ban on “sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing.”83 Nevertheless, judges in federal courts that have not adopted this interpretation of Rule 53 retain discretion to set a policy for their courtroom.84

H arms Caused

by Jurors’ S ocial Networking A ctivities uror misconduct is not a new problem.85 However, social networking sites facilitate new means of misconduct that are potentially more dangerous than past juror practices, given the widespread audiences of social networking communications, the speed at which such communications travel and the ease of accessing social media sites. As discussed below, when jurors engage in social networking during trial proceedings, there are at least three sources of potential harm: harm to the parties involved in a given trial; harm to society; and harm to the integrity of the judicial system, itself.

J

Harm to Litigants When jurors actively engage with Twitter or Facebook during trials, their behavior “conflicts with the traditional notion of the adversary system” that jurors are meant to be “insulated from outside information.”86 Even if a juror’s tweet begins as a “one-way communiqué[],” this outgoing message nevertheless reaches a potentially enormous audience, including many people who “have the ability to tweet back.”87 As a result, the juror might be exposed to extrajudicial materials, particularly those that litigants have intentionally sought to exclude from trial.88 Furthermore, the Sixth Amendment guarantees criminal defendants “the right to … an impartial jury” and “to be confronted with the witnesses against [them].”89 Courts traditionally prohibit jurors from discussing cases with outside parties because “only the jurors have been found to be fair and impartial through the voir dire process,” and because defendants cannot confront the sources of extraneous information.90 When jurors post information to social networking sites, this creates the possibility that they will receive responses from third parties. Such two-way communications could give rise to prejudice, bias and outside influence, thereby violating the defendant’s Sixth Amendment rights.91 not to engage in any electronic communications inside courtroom).

81. See Michael Tarm, Jennifer Hudson Family Murders: Jury Selection to Begin, Huffington Post (Apr. 5, 2012), http://www.huffingtonpost.com/2012/04/06/jennifer-hudson-family-mu_n_1405442.html.

82. F ed. R. C rim . P. 53 (emphasis added).

83. United States v. Shelnutt, No. 4:09-CR-14 (CDL), 2009 WL 3681827, at *1 (M.D. Ga. Nov. 2, 2009) (denying newspaper reporter’s request to send live tweets from courtroom during criminal trial).

84. Live-Blogging, supra note 78.

85. See Fallon, supra note 8, at 954.

86. Lee, supra note 4, at 189.

87. Nicolas, supra note 59, at 395.

88. See id. at 396–97.

89. U.S. C onst. amend. VI. 90. Goldstein, supra note 48, at 589; Nicolas, supra note 59, at 396.

91. See Sharpe, supra note 49.

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Even if jurors do not initiate outgoing communications, they could be exposed to prejudicial information by merely searching for discussions of high-profile cases on social networking sites, such as through the Twitter “hashtag” function.92 Additionally, seemingly innocuous posts or tweets about jury duty (such as “I’m on jury duty!”) might alert jurors’ friends or online followers to their jury service, and thereby inspire other users to pass along unsolicited yet potentially prejudicial information.93 Finally, a juror’s one-way communication could itself reveal that juror’s bias and prejudgment in the matter,94 as in the case mentioned above where a juror disparagingly referred to the criminal defendant as In one study, judges, prosecutors, “local riff-raff.”95 If a juror’s online misconduct is seand public defenders identified vere enough to warrant a mistrial, parties “improved and updated jury might have to bear the expenses and delays inherent in retrying the case. Reuters Legal instructions [as] the best studied the number of “reported decisions approach” for dealing with social in which judges granted a new trial, denied a request for a new trial, or overturned a networking by jurors. verdict, in whole or in part, because of juror actions related to the Internet.”96 Between 1999 and December 2010, at least 90 verdicts were challenged because of jurors’ alleged online misconduct, with more than half of those cases taking place between 2008 and 2010 alone.97 Furthermore, the study showed that judges granted new trials or overturned verdicts in 28 criminal and civil cases, including 21 cases between January 2009 and December 2010 alone.98

Harm to Society Each time the public learns that jurors have engaged in social networking during a trial, its “confidence in the soundness of the judicial process” is shaken.99 Moreover, the media frequently spotlights such juror activities in far-reaching news stories, thereby compounding the negative impact on the public’s perception of the courts.100 Furthermore, such activities among jurors generate costs and delays in the judicial system that society as a whole must bear.101 These costs and delays are especially pronounced when a juror’s activities are serious enough to warrant a mistrial,102 an increasingly frequent occurrence in recent years.103 Nevertheless, costs and delays arise even when judges conclude that mistrials are not warranted but must take time out of trials to investigate allegations of

92. See Nicolas, supra note 59, at 396.

93. See id. at 398.

94. See id. at 397.

95. See Goupil v. Cattell, Civil No. 07-cv-58-SM, 2008 WL 544863, at *2 (D.N.H. Feb. 26, 2008).

96. Grow, supra note 39.

97. See id.

98. See id.

99. Goldstein, supra note 48, at 593.

100. See id.

101. See id.

102. See McGee, supra note 7, at 306 (“[T]he cost of a mistrial to society as a result of juror misconduct is enormous.”).

103. See Grow, supra note 39.

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juror misconduct.104 According to Reuters Legal, in 75 percent of cases arising since 1999 where judges declined to declare mistrials stemming from jurors’ online activities, judges still found that jurors had engaged in some form of misconduct.105

Harm to the Integrity of the Judicial System The secret nature of jury deliberations in the American system serves several purposes.

First, such secrecy “encourage[s] full and free discussion in the jury room.”106 If jurors knew their deliberations would be shared publicly, their willingness to speak openly with each other might be chilled.107 Second, confidentiality prevents outsiders from exerting undue influence over jurors and “pressuring [them] into changing their opinions.”108 Third, “[b]y hiding the jury’s reasons for its verdict and the methods by which it arrived at its decision … the system promotes the public acceptability of its fact finding.”109 For all these reasons, the Federal Rules of Evidence make jury verdicts virtually immune from challenges once rendered.110 Specifically, Rule 606(b) prescribes in part that “[d]uring an inquiry into the validity of a verdict … a juror may not testify about any statement made or incident that occurred during the jury’s deliberations … or any juror’s mental processes concerning the verdict.”111 Consequently, when jurors blog, tweet or post status updates about their deliberations, they utterly destroy the secretive nature of the process. As one commentator noted, in the modern era, “the jury deliberation room is merely closed symbolically to the outside world,” because “[i]n reality, every juror with a handheld Internet device is open to the influence of the world.”112 These online activities inject “‘a wider audience into what [would] have been a private exchange’” among jurors.113 In turn, the judicial system loses all of the benefits that would otherwise flow from a secretive deliberation process. Jurors might be reluctant to freely speak their minds, given the possibility that a fellow juror will post their remarks online. Jurors might be subjected to undue influence from outsiders as communicated via social networking sites. The public might lose faith in the jury’s fact-finding results, especially if jurors’ online communications bring to light “petty rivalries, potential misapprehension of evidence, and irrelevant matter the jurors actually considered.”114 In sum, “dispatches from the ‘black box’ of the jury room subvert the gravity of the process,” thereby undermining the integrity of the judicial system as a whole.115

104. See Goldstein, supra note 48, at 594.

105. See Grow, supra note 39.

106. Morrison, supra note 14, at 1599.

107. See id. (quoting Justice Cardozo, who wrote “[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world”).

108. Goldstein, supra note 48, at 589.

109. Morrison, supra note 14, at 1599.

110. See id.

111. F ed. R. E vid. 606(b).

112. Sharpe, supra note 49 (emphasis in original).

113. Lee, supra note 4, at 194 (alteration in original) (quoting Steven Johnson, How Twitter Will Change the Way We Live, Time (June 5, 2009), http://www.time.com/time/magazine/article/0,9171,1902818,00.html).

114. Morrison, supra note 14, at 1603.

115. Id. at 1602.

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Possible Underlying Causes

I

n order to thoroughly evaluate proposed solutions to the problem of jurors’ use of social media during trials, it is important to consider what is driving jurors to this behavior in the first place. There are many possible forces at play. For instance, jurors who are most likely to engage in this behavior might be motivated by extreme egoism. A recent study observed that social networking sites are an “especially fertile ground for narcissists” for two reasons: First, narcissists function well in the context of shallow … relationships. Social networking Web sites are built on the base of superficial “friendships” with many individuals and “sound-byte” driven communication between friends … Second, social networking Web pages are highly controlled environments. … [and] one can use personal Web pages to select attractive photographs of oneself or write self-descriptions that are self-promoting. Past research shows that narcissists … are boastful and eager to talk about themselves.116

Thus, narcissistic jurors might go online during trial to boast about their service, especially because jury duty is a relatively unique opportunity that not everyone has experienced.

Alternatively, some narcissistic jurors might feel excluded from the “elite club” of lawyers and judges dominating the trial117 and thereby go online to reassure themselves of their own self-importance. Notably, this theory is directly in tension with Tocqueville’s belief that jury service overcomes egoism “[b]y forcing men to be concerned with affairs other than their own.”118 Another possibility is that some jurors engage in social networking activities so regularly in their daily lives that they cannot endure “extended period[s] of time without communicating via a social media web site.”119 As one commentator explained, “[o]nce one has a taste of externalizing one’s thoughts and imagining that others care to ponder them … thinking that is not externalized seems kind of pointless.”120 In this regard, some jurors might be predisposed to post all of their thoughts and activities online, such that engaging in social networking during a trial simply fits within their daily routine. Or, perhaps serving on a jury represents such a “change in daily routine” for some jurors that it “actually increases … the appeal to reveal” this information online.121 Some jurors might simply be unaware of the inappropriateness of using social media during trials.122 Often, when judges question jurors after the fact about their online activities, jurors reveal unawareness about the potential harm they caused.123 For instance, in Fumo, the juror who was caught tweeting and posting messages on Facebook explained to the judge that ironically, he had “‘restricted [himself] completely from reading any newspapers” and “from even watching TV at night” to avoid exposure to prejudicial information.124 In many cases, jurors who exercise poor judgment might be pushed along by the 116. Laura E. Buffardi & W. Keith Campbell, Narcissism and Social Networking Web Sites, 34 P ersonal it y & S oc . P sychol . B ull . 1303, 1304 (2008).

117. Morrison, supra note 14, at 1586.

118. Tocqueville , supra note 2, at 316.

119. Hoffmeister, supra note 5, at 17.

120. Morrison, supra note 14, at 1614 (internal quotation marks omitted).

121. Hoffmeister, supra note 5, at 17.

122. See Lee, supra note 4, at 195.

123. See Hoffmeister, supra note 5, at 17–18 (“[A] number of jurors . . . disobey the court’s instructions against juror communications out of a shear lack of awareness. Many don’t consider or realize that texting, shooting off an email, sending a tweet, or posting on a blog or web site is a form of communication.”).

124. United States v. Fumo, Criminal Action No. 06–319, 2009 WL 1688482, at *60 (E.D. Pa. June 17, 2009) (concluding that, despite his online activities, juror was nonetheless “a trustworthy juror who

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well-documented disinhibition effect that occurs when one engages in online activities.125 Finally, jurors might rely on social networking as an outlet for venting the frustrations or anxiety they experience during their service. Indeed, “the urge to talk about the experience of jury duty is a strong one, in part to release the pent-up emotional pressure inherent in the role of juror.”126 Jurors caught engaging in social networking often cite this as a reason for their conduct. For instance, when questioned about his online activities, the aforementioned juror in Fumo stated that his tweets and posts were “for [his] own benefit to just get it out of [his] head, similar to a blog posting or somebody journaling something.”127

Evaluating Proposed S olutions from Tocqueville-Oriented P erspective

a

C

ourts, legislatures and scholars have proposed “a veritable smorgasbord” of solutions to deal with jurors’ proclivity for social networking.128 In practice, many courts employ more than one these techniques, perhaps at different points in the course of a trial.129 Some solutions are proactive in nature and aim to quell jurors’ tendency to go online before problems ever arise. Other solutions are punitive in nature, requiring jurors to (sometimes literally) pay for their conduct and deterring other jurors from engaging in the same activity. The key proposals will be assessed below, both from an objective standpoint and from a Tocqueville-oriented perspective centered on his vision of the jury as a “free school” and a “political institution.”

Preventive Solutions Pattern I nstructions Many courts around the country have updated their pattern jury instructions to specifically address jurors’ online activities. In one study, judges, prosecutors, and public defenders identified “improved and updated jury instructions [as] the best approach” for dealing with social networking by jurors.130 Commentators across the board tend to agree that, in order to be effective, these instructions must expressly list prohibited technologies and explain to jurors the policy rationale underlying the prohibition.131 Furthermore, courts should repeat these instructions many times throughout the trial and provide the instructions to jurors both orally and in writing.132 The following example demonstrates one scholar’s formulation of improved model instructions: The American court system requires that jurors decide the outcome of a case using only the information presented to them in court by the parties and their attorneys. This is because the parties do not have the opportunity to test evidence from outside the courtroom. Therefore, our rules of evidence require jurors to remain unexposed to external information or influence. Until the judge has entered the verdict, external research and communication with outsiders is prohibited. was very conscientious of his duties”).

125. See Morrison, supra note 14, at 1605 (“Studies suggest that computer-mediated communications increase the phenomenon of disinhibition and encourage poor judgment.”).

126. Hoffmeister, supra note 5, at 11–12 (internal quotation marks omitted).

127. Fumo, 2009 WL 1688482, at *62.

128. Nelson, Simek & Foltin, supra note 77, at 6.

129. See M egha n D unn, F ed. Judicial C tr ., Jurors ’ Use of S ocial M edia D uring Trials a nd D elib er ations: A R eport to the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nagement 8 (2011) [hereinafter F ed. Judicial C tr . R eport].

130. Hoffmeister, supra note 5, at 5.

131. See Bell, supra note 40, at 89–91; Fallon, supra note 8, at 954–58; Lee, supra note 4, at 207–13; McGee, supra note 7, at 316–17.

132. See Lee, supra note 4, at 214.

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Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem This means you may not discuss the issues posed by the case, the parties, the parties’ attorneys, the judge, or your personal experience on jury service with anyone outside of the deliberation process. You may not share any information with, or receive any information from, any source outside the courtroom.

It is imperative that you understand that the prohibition against research and communication applies to the Internet and other electronic mediums. For example, you cannot Google anything about the trial. You cannot Wikipedia definitions or concepts that are applicable to the case. You cannot blog or tweet about anything relating to the case or your jury service. You may not use any social networking service, including, but not limited to, Twitter, Facebook, MySpace, and YouTube, to send or receive messages about the trial. This court prohibits you from conducting any online research or engaging in any communication with outsiders during trial about the case. …

Failure to abide by this instruction will disrupt the integrity of trial for the parties. It will result in an unfair trial, because the information that you view or share online has not been tested in this court of law. Juror use of technology threatens the nature of our adversary system. Juror use of technology could force this court to retry the case, wasting valuable time and resources.133

A handful of states have updated their pattern jury instructions in this manner.134 For instance, Illinois’ updated civil pattern jury instruction reads in relevant part: You must not provide any information about the case to anyone by any means at all, and this includes posting information about the case, or your thoughts about it, on any device or Internet site, including [blogs,] [chat-rooms,] or [(insert current examples)], or any social-networking websites, such as [Twitter], [Facebook] or [(insert current examples)], or any other means.

You cannot use any electronic devices or services to communicate about this case, and this includes [cell-phones,] [smart-phones,] [lap-tops,] [the Internet,] [(insert current examples)] and any other tools of technology. The use of any such devices or services in connection with your duties is prohibited.

The reason for these instructions is that your verdict must be based only on the evidence presented in this courtroom and the law I [will provide] [have provided] to you in my instructions. It would be unfair to the parties and a violation of your oath to base your decision on information from outside the courtroom.135

The Ohio State Bar Association set forth model instructions that similarly admonish jurors not to contact anyone about their cases, which “includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind.”136 Some argue that courts rather than state legislatures should craft these instructions because courts are “more likely to understand the legal and practical issues specific to the administration of justice, and may be able to more quickly implement an effective response.”137 With respect to federal courts, in 2009, the federal Judicial Conference Committee on Court Administration and Case Management prepared new model jury instructions that specifically address jurors’ use of social media.138 The Committee provided separate 133. Id. at 215–16.

134. See, e.g., Fallon, supra note 8, at 962 (Michigan); Hoffmeister, supra note 5, at 24–25 (Oregon).

135. I ll . Patter n Jury I nstructions – C ivil 1.01 (2011).

136. O hio S tate B ar A ss ’n, OSBA Jury I nstructions: G ener al I nstructions , O ther Jury A dmonition (2010), available at http://federalevidence.com/downloads/blog/2010/OSBA.Jury.Instructions.pdf.

137. Nicolas, supra note 59, at 399.

138. See Judicial Conference Comm. on Court A dmin. & Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct R esearch on or Communicate A bout a Case (2009), available at http://www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf.

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instructions to be read by judges before trial and at the close of the case.139 In a recent survey conducted by the Federal Judicial Center to identify strategies employed in practice by judges to curb jurors’ online activities, 304 of 508 responding U.S. federal district court judges (or 60 percent) indicated that they have used these model instructions during trials, where roughly 80 percent of those 304 judges used the instructions in both civil and criminal trials.140 Of those 304 judges, 195 (or roughly 65 percent) instructed the jury both before the trial and before deliberations.141 The use of targeted instructions to address jurors’ social networking activities presents many benefits. For one thing, judges are already familiar with jury instructions and have been using them in practice for many years.142 Furthermore, studies demonstrate that pattern jury instructions actually increase juror comprehension.143 Moreover, when courts explain to jurors the underlying policy rationale for the ban on Internet communications — i.e., the need for evidence to be tested in open court, the importance of excluding prejudicial information, etc. — jurors are more likely to comply with the instructions.144 Finally, by issuing such instructions, courts proactively reach jurors before they engage in the prohibited conduct.

139. See id. Here are the instructions: Before Trial:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors.

After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Some argue that these instructions could go further in explaining to jurors the underlying policy rationale for the ban on online communications. See Hoffmeister, supra note 5, at 30.

140. F ed. Judicial C tr . R eport, supra note 129, at 6.

141. Id. 142. See Hon. Amy J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11 D uke L. & Tech. R ev. 1, 25 (2012).

143. See Lee, supra note 4, at 207.

144. See Hoffmeister, supra note 5, at 26 (“[T]o get them to give up their methods of learning and acquiring information and adhere to the Court’s instructions, jurors need to be told why such practices as researching a case online or communicating with third parties is incompatible with jury service.”).

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There are, however, several potential downsides to targeted instructions. First, very specific instructions might actually inspire certain jurors to engage in online behaviors that they would not otherwise have contemplated.145 Some discredit this notion, citing the fact that “[l]ong before judicial admonitions were expanded to include [reference to the Internet], there were regular media reports about jurors going online.”146 Nevertheless, when courts expressly prohibit jurors from engaging in certain behaviors, the socalled “reactance effect” might drive some jurors to do just the opposite.147 Second, the list of specific prohibited technologies might become obsolete or under-inclusive with time, thereby requiring courts or legislatures Furthermore, this method urges to constantly update the instructions.148 jurors to contemplate in advance Of course, one easy way to overcome this whether they will be able to tolerate problem is to leave “fill-in-the-blank” spaces where judges can insert new technologies the “degree of social isolation and into their instructions, as reflected in the Illielectronic silence” required of them nois pattern instructions presented above.149 Third, some studies suggest that jurors often during jury service. misunderstand judges’ instructions.150 Social media can exacerbate misunderstandings in this context by blurring the line between online life and “real” life. For example, in one case, a juror became friends with the criminal defendant on MySpace one week before trial, but failed to share this information with the judge because, as she explained, “[She] just didn’t feel like [she] really knew him. [She] didn’t know him personally. [She] never, never talked to him.”151 Finally, some jurors may understand the instructions but simply ignore them, or capitalize on loopholes in the very specific list of prohibited technologies.152 As one (seemingly) snide juror explained in a blog post written during jury selection, the judge instructed jurors not to tweet about the case, but “‘made no mention’” of blogging.153 From Tocqueville’s perspective, judges can employ targeted jury instructions to educate jurors on the important role they play in the trial and judicial system broadly.154 Moreover, judges can use these instructions as a means for educating jurors about the principal values of our justice system, the role of certain constitutional guarantees, the rules of evidence and so on. In turn, jurors not only receive “practical instruction in the law,” but they also learn about their own legal rights in the process.155 Furthermore, judges can use jury instructions to teach jurors equity in practice. For instance, judges could explain to jurors that if they were parties to litigation or criminal defendants, they would surely expect 145. See Fallon, supra note 8, at 962.

146. Susan MacPherson & Beth Bonora, The Wired Juror, Unplugged, Trial , Nov. 2010, at 43.

147. See Fallon, supra note 8, at 962.

148. See id.

149. I ll . Patter n Jury I nstructions – C ivil 1.01 (2011).

150. See Morrison, supra note 14, at 1609.

151. State v. Dellinger, 696 S.E.2d 38, 41 (W. Va. 2010).

152. Leslie Ellis, Friend or Foe? Social Media, the Jury and You, The Jury E xpert (Am. Soc’y of Trial Consultants), Sept. 2011, at 4, available at http://www.thejuryexpert.com/2011/09/friend-or-foe-socialmedia-the-jury-and-you/.

153. Grow, supra note 39.

154. See Lee, supra note 4, at 208 (“Jurors who recognize that their service is significant will be more likely to put in the time and effort necessary to reach a correct verdict.”).

155. See Tocqueville , supra note 2, at 316.

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their own jury to refrain from using social media during the trial. In learning through the instructions about the measures judges take to ensure a fair trial, jurors might even gain deeper respect for the judicial system, thereby bringing to fruition Tocqueville’s vision that “the jury instills in all classes a respect for judicial decisions and the idea of law.”156 Finally, through instructions, judges can teach jurors that the system trusts them to act appropriately and to live up to their important civic responsibilities. In sum, Tocqueville would likely endorse instructions that advance the role of the jury as a “free school.”

Recent empirical research highlights the success of jury instructions and supports the notion that Tocqueville would sanction them. A federal district court judge in Illinois “set out to learn more about jurors’ use of social networking during trial” by asking jurors who served in her courtroom and one other judge’s courtroom over a 16-month period to complete a survey at the end of their service.157 The 140 jurors who completed the survey had participated in 16 criminal and civil trials.158 In each case, the judge “employed a model social media instruction during opening and closing instructions” and, in longer trials, “admonished the jury daily not to communicate about the case through social media.”159 The survey posed two questions to jurors: (1) “‘Were you tempted to communicate about the case through any social networks, such as Facebook, My Space, LinkedIn, YouTube, or Twitter?’” and (2) “‘If so, what prevented you from doing so?’”160 Of the 140 participating jurors, only six “reported any temptation to communicate about the case through social media.”161 Of those six, four jurors answered the second survey question by referring to the judge’s instructions or their obligations as jurors, specifically answering the question as follows: “‘the judge,’” “‘direct orders,’” “‘I morally thought I should obey the judge,’” and “‘swore not to.’”162 Among jurors who responded they were not tempted to use social media during the trial, many attributed this outcome to the judge’s instructions.163 Based on these results, the judge concluded that “social media instructions effectively mitigate the risks of juror misconduct associated with social media.”164 Several jurors participating in the survey also expressed pride toward their service, a result that would surely gratify Tocqueville. Specifically, one juror wrote that his participation “‘made [him] feel like [he was] doing something good,’” while another juror deemed her service a “‘great American experience & privilege.’”165 Another juror appreciated that she had been “‘treated … respectfully by the Judge.’”166 Despite the admittedly limited scope and non-scientific methodology employed in this study,167 these results support the notion that judges, through properly tailored instructions, can inform jurors of the important role they play in the judicial system and motivate them to comply with prohibitions on social media use without imposing draconian bans, as discussed further below.

156. Id. 157. St. Eve & Zuckerman, supra note 142, at 20.

158. See id. at 21.

159. Id. 160. Id. at 20.

161. Id. at 21.

162. Id. at 22.

163. Id. at 22–23.

164. Id. at 24.

165. Id. at 23.

166. Id. at 25 n.121.

167. See id. at 21 (“We acknowledge that the informal survey is not scientific … We additionally acknowledge that although juror participation was voluntary and anonymous, some jurors may not have been completely candid, for any number of reasons. Limitations of this type are not unusual.”).

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R equiring Jurors

to

Self -Police

In conjunction with issuing specific jury instructions, courts might require jurors to police each other and to report any suspected misconduct to the judge.168 The benefits of jury self-policing are two-fold: First, jurors will be discouraged from seeking outside information in the first place out of fear of being caught by their peers; and second, jurors who actually acquire extrinsic information through prohibited means will be deterred from sharing it with their peers, thereby “limit[ing] the damage of [their] transgressions.”169 But, jurors might lack motivation to report other jurors’ misconduct if doing so could prolong the trial.170 For instance, in one case, when the judge questioned a juror as to why he failed to report another juror’s misconduct, the first juror replied: “‘If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.’”171 Tocqueville would surely reject the cynical view that jurors put their own selfinterest in completing a trial quickly ahead of doing the right thing. Indeed, when most people enter the courtroom to report for jury duty, “they are transformed from citizens who do not want to serve into citizens who are ready to serve” and fulfill their duties.172 If courts educated jurors through proper instructions about their important role in both the trial and the justice system generally, jurors would likely take seriously their self-policing responsibility.173 The self-policing requirement empowers jurors to check each other’s abuses and to actively participate in the governance of the jury as a microcosmic political body.174 In this regard, self-policing among jurors parallels the form of self-government Tocqueville envisioned on a broader scale under his view of the jury as a “political institution.” Accordingly, Tocqueville would likely support this solution because of its function in actively encouraging jurors to perform their “duties toward society.”175 In addition to requiring self-policing among jurors, judges could encourage outsiders to police jurors’ online activities, as well. Specifically, judges could provide prewritten messages for jurors to set as their outgoing emails, texts, tweets and Facebook posts to notify their contacts that they are serving on a jury and cannot communicate about the case.176 For instance, the message could read as follows: I am sending this note to you as instructed by Judge _____. I am now a sworn juror in a trial. I am sequestered. This means I am not allowed to read or comment upon anything having to do with the subject of the trial, the parties involved, the attorneys, or anything else related to my service as a juror. Please do not send me any materials; don’t email, text, or tweet me any comments about this case or my service as a juror. Please do not text or email me during the course of this trial except in an emergency. I will send you a note when I am released from my duty as juror.177

168. See Fallon, supra note 8, at 959.

169. See id. at 964.

170. See McGee, supra note 7, at 323.

171. Schwartz, supra note 1.

172. M arder , supra note 17, at 260.

173. See Fallon, supra note 8, at 965 (“[W]ith proper education and instruction before deliberations, selfsupervision is a viable option that would maintain the sanctity of the jury room from outside scrutiny.”).

174. Thanks to Professor Marder for suggesting this point.

175. Tocqueville , supra note 2, at 316.

176. Ralph Artigliere, Jim Barton & Bill Hahn, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84 F l a . B. J. 8, 14 (2010).

177. Id.

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If, after posting this disclaimer, a juror publicly commented about his trial, the juror’s social media contacts might reprimand the juror and remind him of his obligations, or perhaps even report the juror’s misconduct to the judge. Judges could facilitate such reporting by including their contact information in the prewritten message. For this system to operate effectively, judges would somehow have to prevent jurors from deleting the message shortly after posting it.

This proposal advances Tocqueville’s notion of the jury as a “free school” and a “political institution” for the following reasons. First, such outgoing messages would educate a wide online audience about the importance of and weighty responsibilities that come along with jury service. Second, by alerting a juror’s contacts to the fact that he or she has served on a jury, these messages may foster discussions about civic engagement between former jurors and other citizens. Third, if jurors’ online contacts perceive that jurors are taking their civic duty seriously and abstaining from publicly discussing their cases, these contacts might gain respect for the judicial system and the integrity of jury verdicts. Finally, this proposal encourages citizens outside the jury box to take an active role in the “government” of jurors by checking the latter’s online abuses.

Voir D ire Q uestioning Another possible solution is to use targeted questioning during voir dire to identify those jurors most likely to “abuse the Internet” during trial proceedings.178 The parties’ attorneys or the judge could question jurors about the extent of their online activities and whether the jurors think they would be able to abstain from such activities while serving.179 Like jury instructions, such questioning serves the beneficial purpose of “provid[ing] early education to jurors that habits viewed by some as normal and inconsequential … [are] inappropriate during jury duty and can have very profound and harmful consequences.”180 Furthermore, this method urges jurors to contemplate in advance whether they will be able to tolerate the “degree of social isolation and electronic silence” required of them during jury service.181 If jurors “actively agree[] to accept this temporary change” in their habits, they may be more likely to adjust their practices accordingly.182 However, this practice could also “substantially shrink the pool of eligible jurors” depending on the level of online activity deemed problematic.183 Such questioning might also “systematically exclude younger jurors,” who tend to be more active online.184 Finally, there is always the risk that jurors will lie about their online habits during questioning or simply be in denial about their ability to refrain from social media use during trial.

To the extent this practice promotes jurors’ understanding of the judicial system and their critical role in it, Tocqueville would likely endorse it. As a means of further advancing the educational benefits of this solution, attorneys conducting voir dire could ask those jurors most likely to violate the social networking ban to articulate to their peers why the prohibition is so important.185 As a result of this “teachable moment,” the jurors most likely to go online might experience a heightened self-awareness during trial and be more likely to abstain from prohibited online activities.

178. McGee, supra note 7, at 317–18.

179. See MacPherson & Bonora, supra note 146, at 42–43.

180. Hoffmeister, supra note 5, at 29.

181. See MacPherson & Bonora, supra note 146.

182. Id. 183. Bell, supra note 40, at 87.

184. Id. 185. See MacPherson & Bonora, supra note 146.

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C onfiscation

and

O ther “Virtual Sequestr ation ”

Many courts simply confiscate or limit jurors’ access to their Internet-accessible devices during trials.186 For example, one Alaskan court requires jurors to relinquish their cellphones to the bailiff before starting deliberations.187 Similarly, a court in Minnesota prohibits jurors from bringing any wireless communication device to the courthouse.188 Of the 508 district court judges who responded to the Federal Judicial Center study discussed above, 147 judges (or roughly 29 percent) reported that they confiscated jurors’ phones and other electronic devices during deliberations, and 113 judges (approximately 22 percent) indicated that they confiscated these devices at the start of each day of trial.189 Even if courts do not actually confiscate jurors’ phones, judges may warn jurors that confiscation will occur if jurors fail to comply with the court’s prohibitions.190 On the plus side, confiscation is the most direct and effective way of preventing jurors from using social media during trial, at least while they are present in court. While this practice does nothing to prevent jurors from using the Internet or visiting social media sites when they leave the courthouse,191 it nevertheless “may serve to reinforce the seriousness of the requirement that [jurors] not seek outside information” at any time.192 Yet, confiscation also represents an extreme measure that creates logistical burdens for courts, which must provide alternative means for families and employers to contact jurors if emergencies arise.193 Furthermore, some jurors might experience extreme frustration and anxiety if the court limits their access to the Internet,194 and may feel that “[t]he desire to remain connected to friends and current with the latest events should not [have to] be completely eliminated just because [they are] called to perform a civic duty.”195 Commentators have suggested additional variations on this theme, but these proposals have not gained much traction in courts. For instance, courts could require that jurors install filters or other blocking software on their Internet-accessible devices that would prevent jurors from visiting certain websites or using certain applications during trial.196 One commentator described this as “virtual sequestration” because “[j]urors remain in their own home but consent to having their access to the Internet and certain electronic devices either monitored or blocked.”197 Of course, this proposal would give rise to the same problems as actual confiscation, including juror frustration and the inability to control jurors’ use of other people’s computers to access the Internet.

186. See Goldstein, supra note 48, at 599 (“Rather than simply instructing jurors that they cannot communicate details about trial matters on social networking sites, several courts attempt to stop this communication at the source by limiting the use of electronic devices in the courtroom.”).

187. See id.

188. See Nelson, supra note 77, at 6.

189. See F ed. Judicial C tr . R eport, supra note 129.

190. See Fallon, supra note 8, at 966 (discussing that even if sequestration is “no longer . . . a popular or practical idea, it is still worth mentioning to newly empanelled jurors in preliminary instructions for its deterrent effect alone”).

191. See Lee, supra note 4, at 206.

192. Bell, supra note 40, at 97.

193. See Hoffmeister, supra note 5, at 37; see also Artigliere, Barton & Hahn, supra note 176, at 13 (“To alleviate jury anxiety, [some judges who confiscate jurors’ cell phones] give jurors an emergency court telephone number so loved ones can reach them in a true emergency.”).

194. See Lee, supra note 4, at 206.

195. McGee, supra note 7, at 324.

196. See Nicolas, supra note 59, at 415.

197. Hoffmeister, supra note 5, at 38.

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Alternatively, courts or judges could create official profiles on various social networking sites and “connect to juror accounts” to monitor jurors’ online activities during trial.198 While seemingly easy to implement, this proposal is not without drawbacks. First, jurors could conduct their online activities through secondary, pseudonymous profiles during trial and thereby escape being caught. Second, from a practical standpoint, it would be very burdensome and costly for courts to monitor jurors’ activities on every social networking site at all times. On the flipside, perhaps the fear of being caught (even if a remote possibility) would deter some jurors from engagViewed from Tocqueville’s ing in prohibited communications. perspective, severe punitive Although confiscation and other “virtual sequestration” techniques effectively squelch measures educate jurors and jurors’ ability to engage in prohibited online citizens in one respect: By teaching behavior, Tocqueville would likely view these them the hard way about the vital proposals as overly restrictive and demoralizing to jurors. Rather than educating jurors importance of complying with about their important role in the trial and judges’ admonishments. thereby inspiring jurors to live up to their potential, these solutions teach jurors that the system does not trust them to behave.

As one scholar aptly noted, society displays a “deep-seated ambivalence” toward jurors, “‘sometimes romanticizing [them] as zealous yeoman alert to abuses of governmental power and sometimes treating them as helpless, weak-minded, irrational, vindictive, and easily swayed children.’”199 Given this country’s already low summons reply rate,200 and the fact that many citizens dread jury service as it is,201 any proposed solutions that render jury service more onerous should be implemented with caution. Practically speaking, the potential reach of the jury as a “free school” and “political institution” will be severely limited if an increasing number of citizens evade jury service to avoid “virtual sequestration.”

When Tocqueville wrote about the jury as a “free school,” he certainly did not envision jurors spending their days locked in virtual detention, counting the minutes until they are liberated from their service.

Punitive Solutions Many courts employ punitive measures, either instead of or in conjunction with the solutions discussed above, to punish noncompliant jurors and to dissuade other jurors from engaging in similar conduct. At the least severe end of the spectrum, some courts require jurors who engage in forbidden online activities to pay small fines or to write short essays.202 At the other extreme, courts may order jurors to cover “the costs of rehearing the

198. Goldstein, supra note 48, at 603 (noting that “[a] Tennessee court recently tried this technique as an optional method, but the jurors declined the invitation”).

199. Morrison, supra note 14, at 1623–24 (quoting Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 232 (1989)).

200. See Hoffmeister, supra note 5, at 22 (48% national summons reply rate).

201. M arder , supra note 17, at 259 (“[W]hen most citizens receive their jury summons in the mail, they do not greet it with alacrity.”).

202. See Morrison, supra note 14, at 1601 (citing example of judge who required juror to pay $250 and write “five-page essay on the Sixth Amendment” after juror posted to Facebook her belief that defendant was guilty before defense presented its case).

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case if their misconduct warrants a retrial.”203 In one recent case, a juror “accidentally” sent a friend request to the defendant in an auto negligence case and failed to mention the incident to the trial judge.204 After the defendant reported the juror’s misconduct, the judge kicked the juror off the panel.205 In response, the dismissed juror posted a message on his own Facebook wall stating, “‘Score … I got dismissed.’”206 The judge reacted by sentencing the juror to three days in jail and ordering him to pay court expenses.207 Statutory laws in some states proscribe juror misconduct. For instance, New York Judiciary Law § 753, a general contempt statute, provides as follows: A court of record has power to punish, by fine and imprisonment, or either … [a] person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court.208

Although this statute does not explicitly mention Internet-based misconduct, a court could certainly construe this language — particularly the broad term “conversing” — to cover a juror’s social networking activities.209 In 2011, the California legislature enacted a statute that specifically prohibits jurors from using social media and punishes violators with criminal or civil contempt charges.210 Under this statute, “[w]illful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research,”211 is punishable by up to six months’ imprisonment in the county jail, or a fine up to $1,000, or both.212 According to the bill’s original sponsor, “‘the fact that this kind of communication [was] not expressly included in [preexisting] law has resulted in increased problems in courts across the country,’”213 which suggests that other states’ legislatures might soon follow California’s lead in enacting targeted statutes.

Punitive measures certainly make jurors aware of the seriousness of their online misconduct and send a “public message that such behavior will not be tolerated.”214 Moreover, it makes intuitive sense that courts should have the power to punish disobedient jurors in this way.215 However, such measures also give rise to many negative side effects. First, punishing jurors might have a “chilling effect” on juror participation,216 203. McGee, supra note 7, at 322 (“Because a juror’s extrajudicial communication has the potential to result in a prejudicial effect toward a defendant, it may also be fair to impose on a juror the costs of rehearing the case if the misconduct warrants a mistrial.”).

204. See Gloria Gomez, Friend request answered with jail time, My Fox Tampa Bay (Feb. 16, 2012), http://www. myfoxtampabay.com/dpp/news/local/sun_coast/friend-request-answered-with-jail-time-02162012.

205. See id.

206. Id. 207. See id.

208. N.Y. Jud. L aw § 753(A)(6) (McKinney 2003).

209. See Fallon, supra note 8, at 960.

210. See C al . P enal C ode § 166(a)(6) (2012); Eric P. Robinson, New California Law Prohibits Jurors’ Social Media Use, C itizen M edia L. P roject (Sept. 1, 2011), http://www.citmedialaw.org/blog/2011/ new-california-law-prohibits-jurors-social-media-use.

211. C al . P enal C ode § 166(a)(6).

212. See McLaughlin, New California Statute Prohibits Jurors’ Use of Social Media, L egal R isks of S oc .

M edia (Sept. 8, 2011), http://blog.smartpropertylaw.com/?p=142.

213. Robinson, supra note 210 (quoting California Assembly Member Felipe Fuentes).

214. McGee, supra note 7, at 322.

215. Thanks to Professor Marder for suggesting this point.

216. Fallon, supra note 8, at 967.

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which is especially worrisome given the existing negative view of jury duty held by a large segment of the American population.217 Second, jurors might be reluctant to report fellow jurors’ misconduct if they know the latter will suffer serious consequences as a result, thereby stifling the possible benefits of self-policing.218 Third, jurors who fail to realize the inappropriateness of their online conduct cannot be effectively deterred by punitive measures.219 Fourth, punishing jurors — or even just threatening to do so — may negatively affect the “jury’s relationship with the court,” in the sense that jurors “might refrain from making legitimate inquiries” or expressing concerns out of fear or intimidation.220 Finally, penalizing jurors “address[es] the symptoms of juror misconduct but ignore[s] the actual disease itself.”221 Viewed from Tocqueville’s perspective, severe punitive measures educate jurors and citizens in one respect: By teaching them the hard way about the vital importance of complying with judges’ admonishments. Nonetheless, the harm these measures inflict on Tocqueville’s vision of the jury outweighs any “educational” value they could provide. Specifically, jurors subjected to these punitive measures might walk away from jury service having learned that judges are harsh or that the jury system is a “draconian” institution.222 This “lesson” does not comport with Tocqueville’s vision of jury service promoting citizens’ “respect for judicial decisions and the idea of law.”223 Moreover, by even just threatening upfront to impose punishment on disobedient jurors, judges might come across more like adversaries and less like teachers, which fails to set the stage for jury service as a “learning” environment. Such threats of punishment might also intimidate and strike fear in jurors, rather than inspiring them to fulfill their important civic duties with pride. As discussed above in the context of confiscation and “virtual sequestration,” the existence of punitive measures might deter people from participating in jury service altogether, rather than just deterring them from engaging in the prohibited conduct. Citizens who actively avoid jury service simply cannot benefit from the jury’s role as a “free school” or a “political institution.” In sum, given the variety of other possible solutions to this problem that promote rather than undermine Tocqueville’s ideals, courts should consider imposing severe punitive measures only as a last resort.224

Other Approaches?

None of the principal solutions discussed above suggests how courts might harness jurors’ tendency to engage in social networking for the benefit of the jury system. One professor, however, proposed a unique, creative solution that does that just. Specifically, Professor Caren Morrison devised the following idea: If we do not want jurors to discuss the case among themselves, for fear of solidifying opinions before all the evidence is in, perhaps we should consider allowing jurors to externalize their thoughts, maybe even to post comments in some centralized, anonymous forum. So long as the jurors did not specifically identify the case they were involved with, they could describe their impressions and express their feelings in a controlled environment.225 217. See Goldstein, supra note 48, at 602.

218. See id. at 600.

219. See Bell, supra note 40, at 88.

220. Id. at 94.

221. Hoffmeister, supra note 5, at 37.

222. St. Eve & Zuckerman, supra note 142 (referring to punitive measures as “draconian solutions”).

223. See Tocqueville , supra note 2, at 316.

224. Hoffmeister, supra note 5, at 36 (“[P]enalties should be a last, not a first resort in preventing juror misconduct.”).

225. Morrison, supra note 14, at 1631.

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Morrison’s proposal accounts for the fact that many jurors take to social networking sites to vent the frustration, anxiety, confusion or host of other emotions they feel while serving.226 The centralized, anonymous forum she proposes would serve as a substitute, controlled environment where jurors could express themselves, thereby obviating the need for jurors to turn to Facebook or Twitter for the same effect. Not only is it “human nature for jurors to want to discuss the trial,”227 but for many jurors, sharing their feelings and experiences online is ingrained behavior.228 In a recent post about his jury service, one blogger shared this sentiment: “As someone used to keeping friends and family updated using Twitter and Facebook, I seemed strangely disconnected [during the trial] about something that I wanted to discuss/debate/decide.” 229 Therefore, unlike the punitive measures discussed above, Morrison’s proposed forum addresses the “disease” underlying jurors’ online activities, rather than merely the symptoms.230 Despite its intuitive appeal, however, there are shortcomings to Morrison’s proposal.

First, someone would have to monitor the site to ensure that posters remained anonymous and did not reveal specific details of their cases. Otherwise, such a forum could quickly foster prejudicial, bilateral communications, especially if users could respond directly to each others’ posts. Second, this forum could devolve into a hotbed of defamatory remarks about other jurors, judges, and attorneys if postings went unchecked.231 Finally, jurors may not fully comprehend the difference between this approved, controlled forum and other social networking sites. In turn, some jurors might infer that the court’s approval of this forum renders Facebook and Twitter fair game.

Tocqueville would likely find several benefits inherent in such a forum. Most importantly, rather than scolding jurors for engaging in social networking behavior that is, for many, an integral part of their daily lives, this proposal empowers jurors to use their penchant for online communications to enhance their jury experience. In turn, jurors may emerge from jury service with more positive impressions of the judicial system and the “idea of law.”232 Moreover, if this forum were open generally to the public, such that anyone — not only those who served on juries — could view it, all citizens could engage in discussions of civic participation and learn from each other’s experiences. Such a forum would thereby expand the reach of the jury as a “free school” beyond the courtroom walls.

226. See id. at 1630–31; see also infra Part IV. 227. M arder , supra note 17, at 114.

228. See Morrison, supra note 14 (“For some jurors, it might simply be impossible to refrain from checking their phones or updating their Facebook status, and prohibitions on doing so may seem tantamount to isolating them from the world as they know it.”).

229. John Porcaro, Jury Duty can be so UN-social, John Porcaro Blog (May 3, 2011, 10:19 PM), http:// metia.com/seattle/john-porcaro/2011/05/jury-duty-can-be-so-un-social/.

230. Hoffmeister, supra note 5, at 37.

231. See, e.g., Ryan Singel, Yale Students’ Lawsuit Unmasks Anonymous Trolls, Opens Pandora’s Box, Wired (July 30, 2008), http://www.wired.com/print/politics/law/news/2008/07/autoadmit (discussing proliferation of defamatory remarks on unmoderated message boards of AutoAdmit.com).

232. Tocqueville , supra note 2, at 316.

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C onclusion

T

he most effective means for controlling social media use by jurors likely encompasses a combination of the solutions discussed above.233 Most jurors will simply obey the judge’s admonishment against online communications.234 For a small minority of jurors, however, perhaps no solution will be entirely effective. In other words, “if jurors really want to cheat, they are going to cheat, no matter what safeguards are in place.”235 The solutions that fit best within Tocqueville’s vision of the jury as a “free school” and “political institution,” while also being practical for courts to implement, are tailored jury instructions, juror self-policing rules and voir dire questioning. Each of these methods enables judges to educate jurors about their important role in the trial and about the core values of our judicial system. At the same time, these solutions teach jurors that judges implicitly trust them to fulfill their weighty civic responsibilities — an empowering lesson that might in turn promote jurors’ respect for the judicial system as a whole. Finally, these solutions engage jurors in a microcosmic form of self-government by motivating them to “check” their peers’ (and their own) abuses of the judge’s admonishment against social media use.

In contrast, the solutions that most undermine Tocqueville’s idealized vision of the jury system are confiscation, “virtual sequestration,” and the various punitive measures discussed above. These solutions tend to demoralize and frustrate jurors, making them feel as though the judicial system distrusts them to act responsibly and views them as “helpless, weak-minded, irrational, vindictive, and easily swayed children.”236 Jurors serving under these conditions might be reluctant to learn anything from their experience. Even worse, many citizens facing confiscation of their cell phone or the risk of extreme punitive measures might simply ignore their jury summons in the first place, thereby negating entirely the opportunity to learn any civic lessons from jury service. While Tocqueville almost surely did not foresee the rise of social networking and its impact on jury trials, his teachings nevertheless point the way toward the most effective solutions.

233. See McGee, supra note 7, at 324 (“Though each of the aforementioned proposals may be independently adequate to at least curtail contemporary occurrences of jury misconduct, the most effective resolution will be to employ a combination of them.”).

234. St. Eve & Zuckerman, supra note 142, at 24.

235. See McGee, supra note 7, at 323.

236. Morrison, supra note 14, at 1623–24 (quoting Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. R ev. 153, 232 (1989)).

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That’s What “Friend” Is For? Judges, Social Networks and Standards for Recusal

By Genelle I. Belmas I ntroduction: Judge Saffold

and “lawmiss” n spring 2010, an anonymous party writing under the name “lawmiss” posted comments on cleveland.com, a website associated with The (Cleveland) Plain Dealer, on, among other issues, the case of Anthony Sowell, an accused serial murderer.1 Another comment by “lawmiss” attacking the mental state of a relative of one of the Plain Dealer’s journalists had been removed from cleveland.com because the comment had violated the website’s policy of no personal attacks.2 In their investigation of the personal attack, newspaper staff determined that the email address associated with “lawmiss” was the personal email address of Cuyahoga County Common Pleas Judge Shirley Strickland Saffold: the judge then assigned to the Sowell serial murder case, which was among the issues on which “lawmiss” had commented.3 Upon further investigation, Plain Dealer reporters found that “lawmiss” had commented 80 times on the cleveland.com site. Some of these posts were on noncontroversial areas such as sports and celebrities, but there were also posts on the Sowell serial murder case before Judge Saffold, and several other legal cases.4 The judge’s 23-year-old daughter, Sydney, claimed to have used her mother’s email address to make the “lawmiss” posts on cleveland.com,5 but the Ohio Supreme Court still ordered Judge Saffold removed from the

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1. The comments were posted in response to several articles on the website about the Sowell case and other issues. The entire list of comments by lawmiss is available at http://connect.cleveland.com/user/lawmiss/index.html. Sowell’s trial, before a different judge, is currently scheduled for June. See Leila Atassi, Cost of defense for serial killing suspect Anthony Sowell tops $530,000, Cleveland Plain Dealer, April 4, 2011, http://blog.cleveland.com/metro/2011/04/cost_of_defense_for_serial_kil.html.

2. Henry J. Gomez, Plain Dealer sparks ethical debate by unmasking anonymous Cleveland.com poster, Cleveland Plain Dealer, March 26, 2010, http://blog.cleveland.com/metro/2010/03/plain_dealer_ sparks_ethical_de.html.

3. Id. 4. Gabriel Baird, Web name linked to Judge Shirley Strickland Saffold has comments on other sites; some target Arabs, Asians, others, C level a nd P l ain D ealer , May 9, 2010, http://blog.cleveland. com/metro/2010/05/lawmiss_comments_found_on_othe.html.

5. Id.

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case to avoid any appearance of impropriety.6 Although acting Chief Justice Paul Pfeiffer’s order did not rule that the defendant’s attorneys had established any actual wrongdoing by Judge Saffold, he noted that “even in cases where no evidence of actual bias or prejudice is apparent, disqualification is appropriate where the public’s confidence in the integrity of the judicial system is at stake.”7 When the Plain Dealer later evaluated records from Judge Saffold’s office computer, obtained by a public records request, the newspaper found that the computer was used to regularly visit other websites, and the “lawmiss” moniker was sometimes used to post comments on those sites.8 Some of these comments attributed to “lawmiss” were anti-Asian, anti-gay and anti-Arab.9 While the U.S. Supreme Court has upheld the right of regular citizens to engage in anonymous commentary such as this,10 for a judge to do so calls into question the dispassion and impartiality of the entire judiciary. As acting Chief Justice Pfeiffer noted, the reassignment of the Sowell case was necessary “to avoid even an appearance of bias, prejudice, or impropriety, and to ensure the parties, their counsel, and the public the unquestioned neutrality of an impartial judge.”11 Since this article was first published in 2011, the use of social media by judges has undergone much more critical review and examination. Several more state judicial ethics boards have published guidelines and opinions regarding the appropriate uses by judges of social media; these will be discussed below. The New Media Committee of the Conference of Court Public Information Officers (CCPIO) released its third New Media Survey in July 2012 in which it polled judges on their uses of social media and their perspectives on that usage.12 Among the report’s findings: • Judges are getting more used to social media, and more of them believe that they can use it in their professional lives without compromising their ethics;13 • Judges report increased usage of many social media sites and technologies such as smartphones;14 6. State of Ohio v. Sowell, Case No. 10-AP-036 (Ohio Apr. 22, 2010) (judgment entry by Acting Chief Just. Paul E. Pfeifer), available at http://media.cleveland.com/pdextra/other/DOC042210.pdf.

7. Id., slip op. at 3.

8. Baird, supra note 4.

9. Id. For example one comment by “lawmiss” in response to a story about the Chinese volleyball team referred to Asians as “flat face morons.” Id. 10. See McIntyre v. Ohio, 514 U.S. 334, 342 (1995).

11. State of Ohio v. Sowell, supra note 6, at 4, citing In re Disqualification of Floyd, 101 Ohio St. 3d 1215, 1217-18, 2003-Ohio-7354. para. 10, 803 N.E.2d 816, 818-19 (2003). Judge Saffold and her daughter filed a $50 million lawsuit against the Plain Dealer and its Internet hosting company for breach of contract, promissory estoppel, and defamation, among other charges, for revealing information about the “lawmiss” screen name. Strickland-Saffold v. Plain Dealer Pub’g Co., CV-10-723512 (Ohio C.P., Cuyahoga County filed April 8, 2010) (complaint available at http://www.courthousenews. com/2010/04/08/PlainDealer.pdf). The suit was eventually dismissed against the newspaper, and the judge and her daughter reached a settlement with the Internet company. Saffolds dismiss lawsuit against Plain Dealer, settle with Advance Internet, C level a nd P l ain D ealer , Dec. 31, 2010, http:// blog.cleveland.com/metro/2010/12/saffolds_dismiss_lawsuit_again.html.

12. C onf. of C t. P ublic I nfo. O fficers , 2012 CCPIO New M edia S urvey (2012), available at http:// ccpio.org/wp-content/uploads/2012/08/CCOIO-2012-New-Media-ReportFINAL.pdf. An earlier report is discussed below.

13. Id. at 7 (“Asked to react to the statement, ‘Judges can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics,’ 45.4 percent of the responding judges in 2012 disagreed or strongly disagreed, down from 47.9 in 2011 and 47.6 in 2010.”).

14. Id. at 16.

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• Judges increasingly believe that courts as institutions can use many social media outlets without compromising the judiciary’s ethics or impartiality (though many still express neutrality about these issues).15 Judges’ increasing use of and comfort with the tools and technologies of social media indicates a trend that is mirrored in the public at large. Pew Internet research in 2012 revealed that 69 percent of all online adults use social media sites, and 66 percent report using Facebook.16

S ocial Media

and the L aw hile the “lawmiss” situation was perhaps an easy case in which to support Judge Saffold’s removal from the case, it highlights the many issues that judges who use social networking sites such as Facebook, or social media sites such as YouTube, encounter.

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The Growth of Social Media Social media sites are growing at a rapid rate. According to one source, by March 2010, there were 200 million blogs worldwide, 450 million Facebook subscribers, 27 million tweets in every 24-hour period, and 1.2 billion YouTube views per day.17 Social media, according to one definition, are online communication sites that share most or all of the following characteristics: Participation: social media encourages contributions and feedback from everyone who is interested. It blurs the line between media and audience.

Openness: most social media services are open to feedback and participation. They encourage voting, comments and the sharing of information. There are rarely any barriers to accessing and making use of content – password-protected content is frowned on.

Conversation: whereas traditional media is about “broadcast” (content transmitted or distributed to an audience), social media is better seen as a two-way conversation.

Community: social media allows communities to form quickly and communicate effectively. Communities share common interests, such as a love of photography, a political issue, or a favorite television show.

Connectedness: most kinds of social media thrive on their connectedness, making use of links to other sites, resources and people.18

A similar characterization from the Judicial Conference of the United States defines social media as “online communities of people who share interests or activities, or who are interested in exploring the interests and activities of others.”19 15. Id. at 29-30 (e.g., in response to the question “Courts as institutions can maintain social media profile sites, such as Facebook, MySpace, LinkedIn and Ning, without compromising ethics,” 37 percent of judges agreed or strongly agreed, while 36.6 percent were neutral).

16. Joanna Brenner, Pew Internet: Social Networking, available at http://pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx.

17. Randy L. Dryer, Advising Your Clients (And You!) In the New World of Social Media: What Every Lawyer Should Know About Twitter, Facebook, YouTube, & Wikis, 23 Utah Bar J. 16, 16 (May/June 2010).

18. Antony Mayfield, What Is Social Media? (iCrossing e-book, 2008), at 5, http://www.icrossing.co.uk/fileadmin/uploads/eBooks/What_is_Social_Media_iCrossing_ebook.pdf. See also Angela O’Brien, Are Attorneys and Judges One Tweet, Blog or Friend Request Away From Facing a Disciplinary Committee? 11 Loy. J. Pub. Int. L. 511, 512-14 (2010) (providing a brief discussion of social media types and uses).

19. Comm. on Codes of Conduct, Jud. Conf. of the U. S., R esource Packet for D eveloping G uidelines on Use of S ocial M edia by Judicial E mployees (2010), at 9. The committee defines these sites in the categories of social and professional networking, blogs, micro-blogging, wikis, social bookmarking, video sharing, threaded discussions, discussion boards and chat rooms.

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In addition to websites and services such as Facebook,20 MySpace,21 LinkedIn,22 Flickr23 and YouTube24, social media also includes blogs (weblogs) that permit users to comment on their content, micro-blogging services such as Twitter,25 and content sharing sites like the social bookmarking site Delicious.26 Sites such as cleveland.com (the site operated by the Plain Dealer) and other websites associated with traditional news operations such as newspapers or television stations can be considered social media, because they provide users with the opportunity to comment (usually anonymously) on news stories and other items, and to react to comments made by others.

Judges Online Members of the legal community are experimenting in increasing numbers with social media as tools for campaigning, marketing and exchanging information. Several judges have been identified as active participants in social networking sites.27 In 2010, 40 percent of judges and court officials responding to a national survey stated that they were members of social networking sites, mostly Facebook.28 In 2012, that number rose to 46.1 percent.29 However, the survey respondents were wary of the use of social media in their professional lives, with nearly half disagreeing with the statement, “Judges can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics.”30 The report predicted that judicial ethics codes will soon be revisited and revised to account for the use of social media products.31 It is not difficult to imagine situations in which judges could use social media sites in perfect harmony with their judicial positions. In fact, at least one judge is on record suggesting that the appropriate use of social media can be helpful for the judiciary: Texas district court judge Susan Criss told an American Bar Association audience in 2009 that the “use of social media both professionally and personally can be tools that enrich the jobs of judges and lawyers and help them ‘do [their] job better,’ if used thoughtfully.”32 Another 20. www.facebook.com.

21. www.myspace.com.

22. www.linkedin.com. According to their “About Us” page, “LinkedIn operates the world’s largest professional network on the Internet with more than 100 million members in over 200 countries and territories.” About Us, LinkedIn Press Center, http://press.linkedin.com/about/.

23. www.flickr.com.

24. www.youtube.com.

25. www.twitter.com.

26. www.delicious.com. This site allows users to post bookmarks to interesting websites, sometimes with commentary.

27. Nicole D. Galli, Christopher D. Olszyk, Jr., & Jeffrey G. Wilhelm, Litigation Considerations Involving Social Media, 81 Pa. Bar Assn. Q. 59, 60-61 (2010). This article lists Judge Richard Clifton of the Ninth Circuit Court of Appeals, Judge John M. Ferren of the D.C. Circuit, Judge Deborah Cook of the Sixth Circuit and Judge Jennifer Elrod and Judge Edith Jones, both of the Fifth Circuit, as active users of social media.

28. Conf. of Ct. Public Info. Officers, New M edia a nd the C ourts: The C urrent S tatus a nd a L ook at the F uture (2010), at 9, available at http://www.ccpio.org/documents/newmediaproject/NewMedia-and-the-Courts-Report.pdf. Of the 810 responses to this online survey, 254, or 31.4 percent, were considered to be from judicial officers. Id. at 65.

29. Id. CCPIO 2012 report at 16.

30. Id. at 9.

31. Id. at 7.

32. Judges All Atwitter Over New Media, ABANow, Aug. 2, 2009, http://www.abanow.org/2009/08/ judges-all-atwitter-over-new-media/. See also Miriam Rozen, Social Networks Help Judges Do Their Duty, L aw Tech. News , Aug. 25, 2009, http://www.law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202433293771; Dahlia Lithwick & Graham Vyse, Tweet Justice, S l ate , April 30, 2010, http://

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Texas district court judge, Gena Slaughter, recommended several positive uses for social networks, including professional development and political promotion, as well as a means of monitoring the behavior of attorneys and other parties before the court.33 Judges have also started to write about social media, their experiences and their suggestions for its appropriate use. Judge Criss reminded her colleagues that the same rules apply to online communications as to offline; she pointed out that “candidates and judges It is easy to imagine situations should remember to distinguish the communication methods from the messages.”34 in which judges could use social She further suggests that judges make and media sites in ways that suggest publicize their rules for “friending” people impropriety, and just as easy online.35 Judge Craig Estlinbaum of the 130th Judicial District of Texas provided a to imagine situations that seem thorough and thoughtful review of the existinnocuous on the surface. ing ethics decisions in his recent article; his suggestions include using social media in limited ways, such as “fan” pages on Facebook that eliminate the “friending” issues of regular pages, and blogs or Twitter feeds that provide information to the public at large.36 He added a reminder that judges should “be vigilant in monitoring and updating any [social media] profiles they create”37 and should keep up-to-date on privacy and other developments in the technology.38 If Judge Saffold’s email address had been used simply to comment on Cuyahoga County weather, for example, it would be hard to suggest that her judicial impartiality would be questioned. But it is easy to imagine situations in which judges could use social media sites in ways that suggest impropriety, and just as easy to imagine situations that seem innocuous on the surface but that could develop into problems. For example, if a judge comments online and publicly on the successes of the local college football team, what happens when that team falls on hard times, and the coach is let go and files a lawsuit for breach of contract that ends up on the judge’s docket? Does the judge’s past online commentary mandate that the judge recuse himself? www.slate.com/id/2252544/ (noting that Judge Criss asks attorneys to “de-friend” her if they will be appearing before her).

33. Judge Gena Slaughter & John G. Browning, The Attorney and Social Media: Social Networking Dos and Don’ts for Lawyers and Judges, 73 Tex . B. J. 192, 193-94 (2010). Judge Slaughter gave several examples of monitoring individuals who are parties to cases before the court, including one Michigan judge who uses Facebook and MySpace pages to monitor offenders on probation; he sometimes finds images of unauthorized drug use on those pages. Id. at 194. See also Kathleen Elliott Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. M em . L. R ev. 355, 400 (2010) (reporting a judge’s use of Facebook to determine that an attorney had lied about a death in her family when requesting a continuance; the attorney’s Facebook pictures showed her partying rather than mourning).

34. Susan Criss, The Use of Social Media by Judges, 60 The A dvocate 18 (2012).

35. Id. at 19. Judge Criss “friends” any lawyer who asks, under the assumption that this practice will make it clear that no special privileges are incurred by her “friends.” Moreover, she posts a disclaimer on her Facebook page that is explicit about the fact that her Facebook page is like “a public rolodex” and confers no privileges. Id. 36. Craig Estlinbaum, Social Networking and Judicial Ethics, 2 S t. M ary ’s J. on L egal M alpr actice & Ethics 2, 25-26 (2012).

37. Id. at 26.

38. Id.

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Caperton To the Rescue?

The United States Supreme Court in 2009 decided a case in which a judge’s refusal to recuse himself was deemed a denial of the defendant’s due process rights. In Caperton v.

A.T. Massey Coal Co.,39 the Court, by a 5-4 vote, said that the Fourteenth Amendment was violated when the judge declined to recuse himself in a case in which one of the parties was the judge’s largest campaign contributor, who had contributed $3 million (300 percent more than the judge’s own campaign committee) to his re-election.40 The majority, led by Justice Anthony Kennedy, suggested that in this particular (extreme) case, the likelihood of bias was simply too high to be constitutionally acceptable.41 But in dissent, Chief Justice John Roberts claimed that the “probability of bias” standard articulated by the majority was simply too vague to be applied in future cases.42 Justice Antonin Scalia also wrote a brief dissent that lamented the Court’s “quixotic quest to right all wrongs and repair all imperfections through the Constitution”43 – which he believed cannot be done in cases of judicial recusal.

Caperton – often referred to as “Massey Coal,” after the company that contributed to the judge’s campaign – did not involve social media; it was about campaign contributions. However, the purpose of this article is to look at the commentary and guidelines proposed in Caperton – both the Kennedy majority opinion and the Roberts dissent – to determine how their standards would apply to instances of judicial use of social media, and whether judicial ethics codes need to be adjusted to address judges’ use of social media sites and services.

To what extent does Caperton suggest that judges’ use of social media results in a denial of a party’s due process rights under the Court’s new rule of the likelihood of actual bias?

Should judicial codes of ethics be amended to reflect the appropriate use of social media by judges, and if so, how? The article will begin with a review of Caperton. This review will be followed by a discussion of several ethics board decisions and state bar recommendations that directly address the use of social media by judges. Next, the legal community’s response to the Caperton decision and developments in social networking use will be addressed. The article will then conclude with a model proposal and a few thoughts on the best way to proceed in the post-Caperton recusal environment.

The Caperton

case n Caperton, the issue was the recusal of a justice of the West Virginia Supreme Court of Appeals from a case in which one of the parties had donated a significant amount to the justice’s election campaign.44 Don Blankenship, chairman, president and chief executive officer of Massey Coal, donated $3 million to the campaign of Brent Benjamin for the

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39. 129 S. Ct. 2252, 173 L.Ed.2d 1208 (U.S. 2009).

40. Id. 129 S. Ct. at 2264.

41. Id. at 2265 (“On these extreme facts the probability of actual bias rises to an unconstitutional level.”).

See also Jeffrey Stempel, Impeach Brent Benjamin Now!? Giving Adequate Attention to Failings of Judicial Impartiality, 47 S a n D iego L. R ev. 1, 8-9 (2010) (asserting that West Virginia Court of Appeals Chief Justice Brent Benjamin’s handling of the recusal issue in his ruling in the case, Caperton v.

A.T. Massey Coal Co., Inc., 223 W.Va. 624, 679 S.E.2d 223, rev’d and remanded, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (U.S. 2009), was deeply flawed and in fact “calls into question his judicial competence, his judicial temperament (being too emotionally invested in the issue to view his situation with suitable dispassion), and even his integrity.”).

42. Caperton, 129 S. Ct. at 2269 (Roberts. J., dissenting).

43. Id. at 2275 (Scalia, J., dissenting).

44. Id. at 2257.

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Supreme Court of Appeals of West Virginia: more than the total from all other supporters, and three times more than the candidate’s campaign committee had spent.45 After Benjamin was elected in 2004, Massey Coal appealed a case in which the company had been found liable for $50 million in damages for, among other things, fraudulent misrepresentation, to the West Virginia Supreme Court of Appeals.46 Caperton moved to disqualify Justice Benjamin based on due process grounds and the West Virginia Code of Judicial Conduct, which provides in part that judges “shall avoid impropriety and the appearance of impropriety in all of the judge’s activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”47 Justice Benjamin denied the motion, stating that he could find no reason to believe that he would be biased or unfair.48 In 2007, then, the court – with Justice Benjamin in the majority – reversed the finding against Massey on a 3-2 vote.49 Caperton then asked for a rehearing and the recusal of three justices, including Benjamin. Although the other two justices recused themselves, Benjamin did not.50 In 2008 the reconstituted court again reversed in favor of Massey.51 Justice Benjamin filed an opinion defending both the majority opinion’s merits and his decision to remain on the case, saying that a standard that relies on the “appearance” of bias “seems little more than an invitation to subject West Virginia’s justice system to the vagaries of the day.”52 In the U.S. Supreme Court, Justice Kennedy’s majority opinion noted that most cases of judicial recusal do not rise to the level of constitutional concern.53 He cited two leading cases in his analysis: Tumey v. Ohio,54 in which the Court established that a financial interest in a case would require recusal;55 and In re Murchison,56 in which recusal was held to be appropriate when a judge had a conflict arising from participation in an earlier proceeding.57 Kennedy was careful to point out that the Caperton case met all the “objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”58 Noting that the Court did not find actual bias on the part of Justice Benjamin, nevertheless, Kennedy said, in implementing objective due process standards for recusal, “the Court has 45. Id. 46. Id. 47. W. Va . C ode of Jud. C onduct C a non 2A (1993); Justice Benjamin suggested that the canon could be misinterpreted by removing the reference to “activities:” “That some form of action by a judge is necessary in context with the term ‘appearance of impropriety,’ is evident from the Commentary to Canon 2A which focuses on ‘irresponsible or improper conduct by judges.’ (emphasis added.).” Caperton v.

A.T. Massey Coal Co., 223 W. Va. 624, 694 n. 13 (W. Va. 2008).

48. Caperton, 129 S. Ct. at 2258.

49. Caperton v. A.T. Massey Coal Co., Inc., 2007 WL 4150960 (W.Va. Nov 21, 2007) (depublished from Westlaw, available at http://www.state.wv.us/wvsca/docs/fall07/33350.pdf), vacated, 223 W.Va. 624, 679 S.E.2d 223. (W. Va. 2008) .

50. Caperton, 129 S. Ct. at 2258.

51. Caperton v. A.T. Massey Coal Co., Inc., 223 W.Va. 624, 679 S.E.2d 223 (W.Va. 2008).

52. Caperton, 129 S. Ct. at 2259 (quoting Caperton v. A.T. Massey Coal Co., Inc., 223 W.Va. at 306, 679 S.E.2d at 707 (Benjamin, J., concurring).

53. Caperton, 129 S. Ct. at 2259.

54. 273 U.S. 510 (1927).

55. Id. at 523 (“a direct, personal, substantial, pecuniary interest” in a case would require recusal.).

56. 349 U.S. 133 (1955).

57. Id. at 133.

58. Caperton, 129 S. Ct. at 2257 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

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asked whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’”59 In this case, Kennedy said, there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”60 The risk of actual bias was high enough, based on the proportions and amounts of support Blankenship gave to Justice Benjamin’s campaign, that recusal was required to guarantee due process.61 Kennedy concluded by asserting again that this was an extreme case62 and that most issues of judicial recusal can be handled without resorting to due process claims, as Congress and the states may require more rigorous standards.63 As noted earlier, Justice Scalia’s short dissent mourned the Court’s attempt to apply constitutional doctrine in this area.64 But Chief Justice Roberts’ more lengthy dissent outlined a litany of problems with the majority opinion. He raised 40 questions that he believed were now left to the courts to decide on a Caperton motion, ranging from “How much money is too much money?,”65 to “What if the case involves a social or ideological issue rather than a financial one?”66 and “What if the judge voted against the supporter in many other cases?”67

Responses to Caperton It has been suggested that Caperton’s shift from the “appearance of impropriety” standard to the “likelihood of actual bias” standard is not merely semantic. One writer seems to suggest that the Caperton “actual bias” standard is actually a higher standard to meet: as he describes it, “An appearance-based standard focuses on the public’s perception of the fairness of the court, while a probability-based standard centers on a reasonable judge’s likelihood of actual bias.”68 This argument suggests that the Caperton evaluation is less a public evaluation than one to be undertaken by the judiciary itself – “the spotlight is directly on the judge, not on the observations of the public.”69 However, as the decision in Caperton made clear, Congress and the states are free to impose more stringent rules on their own judiciaries than those based on the Court’s application of the Constitution’s due process clause.70 A good argument can also be made, then, that the “appearance of impropriety” standard already in place in most states is a higher

59. Id. at 2263 (quoting Withrow, 421 U.S. at 47).

60. Id. at 2263-64.

61. Id. at 2264.

62. Id. at 2265 (“On these extreme facts the probability of actual bias rises to an unconstitutional level.”).

63. Id. at 2266.

64. Id. at 2275.

65. Id. at 2269.

66. Id. 67. Id. at 2270.

68. Dmitry Bam, Understanding Caperton: Judicial Disqualification Under the Due Process Clause, 42 Mc G eorge L. R ev. 65, 75 (2010).

69. Id. 70. Caperton, 129 S. Ct. at 2266 (“The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today.” (quoting Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 828 (1986) )).

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standard for judges to meet, as it does not require proof of actual impropriety or even a reasonable likelihood of impropriety – merely its appearance to a reasonable observer.

Did the Court reach the “right” decision in Caperton? The reviews are mixed. On the one hand, some believe that Caperton “raised the due process floor to a level that better corresponds with our traditional, and The Caperton case gives lower perhaps aspirational, conception of due procourts a new recusal mandate but cess, as expressed in judicial codes and statutes already in force.”71 One commentator no tools with which to make the notes that one result of the case is to make determination of whether there is a states more cognizant of the public’s eroding likelihood of actual bias. confidence in the judiciary and to encourage them to consider changing the ways in which judges are chosen to serve.72 Yet others disagree that Caperton provides meaningful guidance, claiming that the decision is paradoxical, applying a “likelihood of actual bias” standard but basing it on only one element of an election – campaign contributions – and not on any of a number of other elements that may have affected the election’s outcome.73 The Caperton case thus gives lower courts a new recusal mandate but no tools with which to make the determination of whether there is a likelihood of actual bias.74 One commentator writes that Caperton did not go far enough: It did not “make due process congruent with prevailing state and federal disqualification standards.”75 Moreover, the “appearance of impropriety” standard rejected by the Caperton Court is rooted in precedent and more practical in application.76 As another author suggests, “in explaining the new recusal rule, the Supreme Court should have been even more clear that appearances matter.”77 But, he adds, the Court has an opportunity to make Caperton matter:

71. Marie McManus Degnan, No Actual Bias Needed: The Intersection of Due Process and Statutory Recusal, 83 Temp. L. R ev. 225, 250 (2010). Degnan adds that the new standard “raises the due process floor to a level roughly equivalent to the recusal standard in all fifty states and the federal courts, thus aligning the definition of due process with widely held notions of fairness and impartiality.” Id. at 252.

72. James Sample, Court Reform Enters the Post-Caperton Era, 58 D r ake L. R ev. 787, 818 (2010). Sample bases his assessment on the reform activities in several states (Wisconsin, Michigan, and West Virginia) after the Caperton decision.

73. Andrew L. Frey and Jeffrey A. Berger, A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election, 60 S yr acuse L. R ev.

279, 280 (2010). “By focusing solely on the amount of money spent and mislabeling the way it was spent, the majority turned a blind eye to forces that reduced, or eliminated, that probability.” Id. at 288.

74. Id. at 289.

75. Jeffrey W. Stempel, Completing Caperton and Clarifying Common Sense Through Using the Right Standard for Constitutional Judicial Recusal, 29 R ev. L itig. 249, 251 (2010). Stempel provides a suggestion for the use of the case: “Of all the criticisms of Caperton, the practical problems attack is most easily accommodated by this article’s suggestion that it be considered a due process problem whenever a state jurist erroneously fails to recuse.” Id. at 292.

76. Jed Handelsman Shugerman, In Defense of Appearances: What Caperton v. Massey Should Have Said, 59 D e Paul L. R ev. 529, 530 (2010).

77. Id. “Mere ‘appearances’ may seem superficial, but appearances are actually more substantial than they appear, so to speak. The ‘appearance of bias’ standard is just as firmly rooted in Anglo-American precedents, it is more practical for courts, and moreover, appearances of bias are real harms in themselves.” Id. at 541.

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Update: That’s What “Friend” Is For? The Court has an opportunity to define the rule of law and the basic notions of due process, and it has an opportunity to shape a reform effort. Its actual ruling in Caperton could be wisely minimalist and even ambiguous, but its discussion of due process and fairness should be bold, direct, accessible, and inspiring.78

If the Court grants certorari to subsequent recusal cases, it has the power to effect reform throughout the judiciary.

State Judicial C odes Decisions

of

Ethics

and

Judicial Ethics Board

W

hile the likelihood of actual bias revealed through use of social media by judges was not directly addressed by Caperton, judge’s social media activities could be a factor in whether a judge’s bias raises a constitutional concern. State judicial ethics boards have issued several advisory opinions that deal explicitly with judges’ use of social networking sites.

The federal government and all the states have essentially adopted the American Bar Association Model Code of Judicial Conduct as their standard for judicial behavior,79 including Rule 2.11 of the Model Code, governing recusal.80 The current version of Rule 2.11 provides that: (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. …

78. Id. at 553.

79. See Degnan, supra note 60, at 227.

80. All fifty states and Congress have adopted very close forms of Rule 2.11 (formerly Canon 3E in the 1990 version of the Model Code). See 28 U.S.C. § 455(a) (2006); A l a . C a non of Jud. Ethics 3C (2001); A l ask a C ode of Jud. C onduct C a non 3E (2010); A riz . C ode of Jud. C onduct R. 2.11 (2009); A rk .

C ode of Jud. C onduct R. 2.11 (2009); C al . C ode of Jud. Ethics C a non 3E (2009); C olo. C ode of Jud. C onduct R. 2.11 (2010); C onn. C ode of Jud. C onduct C a non 3(c) (1974); D el . Judges ’ C ode of Jud. C onduct C a non 3C (1994); F l a . C ode of Jud. C onduct C a non 3E (2010); G a . C ode of Jud. C onduct C a non 3E (2004); H aw. R ev. C ode of Jud. C onduct R. 2.11 (2008); I daho C ode of Jud. C onduct C a non 3E (2008); I ll . C ode of Jud. C onduct C a non 3C (1993); I nd. C ode of Jud. C on duct R. 2.11 (2010); Iowa C ode of Jud. C onduct C a non 3C (2009); K a n . C ode of Jud. C onduct R. 2.11 (2009); K y. C ode of Jud. C onduct C a non 3E (2003); L a . C ode of Jud. C onduct C a non 3C (2003); M e . C ode of Jud. C onduct C a non 3E (2005); M d. C ode of Jud. C onduct C a non 3D (2005); M ass . C ode of Jud. C onduct C a non 3C (1998); M ich. C t. R. § 2.003(C) (2010); M inn.

C ode of Jud. C onduct R. 2.11 (2009); M iss . C ode of Jud. C onduct C a non 3E (2002); Mo. C ode of Jud. C onduct C a non 3E (2004); Mont. C ode of Jud. C onduct R. 2.12 (2008); Neb . C t. R. § 5-203(E) (2008); Nev. C ode of Jud. C onduct R. 2.11 (2010); N.H. C ode of Jud. C onduct C a non 3E (2010); N.J. C ode of Jud. C onduct C a non 3C (1994); N.M. C ode of Jud. C onduct R. 21400 (2004); N.Y. R. of the C hief A dmin. Judge § 100.3(E) (2010); N.C. C ode of Jud. C onduct C a non 3C (1998); N.D. C ode of Jud. C onduct C a non 3E (2006); O hio C ode of Jud. C onduct C a non 3E (2009); O kl a . C ode of Jud. C onduct C a non 3E (2010); O r . C ode of Jud. C onduct R. 2-106(A) (1996); Pa . C ode of Jud. C onduct C a non 3C (2005); R.I. C ode of Jud. C onduct C a non 3E (2009); S.C. C ode of Jud. C onduct C a non 3E (2010); S.D. C ode of Jud. C onduct C a non 3E (2006); Tenn. C ode of Jud. C onduct C a non 3E (2002); Tex . C ode of Jud. C onduct C a non 3D (2002); Utah C ode of Jud. C onduct R. 2.11 (2010); Vt. C ode of Jud. C onduct C a non 3E (1994); C a nons of Jud. C onduct for Va . C a non 3E (2004); Wash. C ode of Jud. C onduct C a non 3D (1995); W. Va . C ode of Jud. C onduct C a non 3E (1993); Wis . S up. C t. R. 60.04(4) (2010); W yo.

C ode of Jud. C onduct R. 2.11 (2009).

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The Comments to this rule include a statement that the judge should recuse whenever his/ her impartiality could reasonably be questioned, regardless of whether the specifics of the actual rule are met.82 The federal statute, 28 U.S.C. § 455(a), also incorporates the Model Code and echoes this language, mandating that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”83 None of these codes make any mention of social networks or social media.

There are, however, suggested guidelines for the use of social media by judicial employees. The Committee on Codes of Conduct of the Judicial Conference of the United States published a 2010 resource packet for use by courts in drafting policies for their judicial employees, including, for example, judges’ staff and law clerks, staff attorneys, court executive employees (e.g., clerks of court), as well as employees who do not work directly for judges, such as those who work in a clerk’s office and probation officers.84 In formulating its own policy, the Judicial Conference recommends that each court should take into account the five canons of the Code of Conduct for Judicial Employees: Upholding the integrity and independence of the judiciary and the employee’s office; avoiding impropriety and the appearance of impropriety; adhering to appropriate standards in performing office duties; avoiding the risk of outside activities conflicting with official duties; and refraining from political activity deemed inappropriate.85 The 2010 publication does not include an actual code but rather provides recommended standards and strategies for use by courts in developing their own policies. For example, the committee suggests that a court make policy restricting the use of social media, including whether such use is to be work-related only or may include personal activity; whether the policy should apply to anonymous activity; and which types of online activity should be included (not only using social media sites but also perhaps online surveys, podcasting and webcasting, or blogging or maintaining a website). The publication also states that education should be part of the court’s plan.86 At least one court has grappled with the implications of a social media relationship between a judge and a party before that judge’s court. In Domville v. State of Florida,87 a Florida appellate court found that Pierre Domville’s judge in his criminal case was Facebook “friends” with the prosecutor. A lower court denied Domville’s petition to have the judge disqualified from his case, but relying on the Florida Judicial Ethics Advisory Committee opinion discussed below,88 the appeals court found that the “friendship” created the impression that the prosecution was in “a special position to influence the judge.”89 The court quashed the order denying disqualification and remanded the case.

81. ABA Model Code of Jud. Conduct R. 2.11 (2007). The code is available at http://www.americanbar. org/content/dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf.

82. Id. at comment [1].

83. 28 U.S.C. § 455(a) (2006).

84. C omm . on C odes of C onduct, Jud. C onf. of the U.S , supra note 14, at 17.

85. Id. at 15. The Code of Conduct for Judicial Employees, which was put into effect in 1996 by the Judicial Conference of the United States, is available at http://www.uscourts.gov/rulesandpolicies/codesofconduct/codeconductjudicialemployees.aspx.

86. Id. at 13-14.

87. 2012 Fla. App. LEXIS 14851 (F l a . 4th DCA 2012).

88. Id. 89. Domville, 2012 Fla. App. LEXIS at *3. Caperton was not mentioned at all in this case. The disposition relied entirely on the advisory opinion.

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In addition, one state judicial ethics board has censured a judge for inappropriate Facebook use, and several others have issued advisory opinions intended to guide judges in their use of social networks. At least one social network case was resolved by the judge resigning without the intervention of an outside board. In 2010, a Georgia judge chose to resign as a result of his inappropriate use of Facebook. Although his situation did not One state judicial ethics board has result in an ethics committee advisory opincensured a judge for inappropriate ion or a court proceeding, it is an example of what would almost certainly qualify as Facebook use, and several others an inappropriate use of social networks by judges. Judge Ernest “Bucky” Woods aphave issued advisory opinions parently initiated contact through Facebook intended to guide judges in their with a criminal defendant who worked at a hair salon, saying that he was looking for a use of social networks. new barber.90 The two subsequently met in person, where she asked to borrow money from the judge for her rent; the judge also advised her on defense strategies for her case and for a friend facing drug charges.91 The case became public after the parents of the friend turned over the email communications with a complaint that Judge Woods had unfairly jailed their son.92 Woods resigned after two newspapers made freedom of information requests for the e-mails.93 In 2009, a North Carolina trial judge was reprimanded for an inappropriate Facebook relationship with an attorney and that attorney’s client before his court.94 State district court judge B. Carlton Terry presided over a child custody and support case in his jurisdiction.95 During the case, the judge and the attorneys for both parties discussed the Facebook website in the judge’s chambers: The mother’s attorney said that she did not have time for it, but the father’s attorney and the judge became Facebook friends.96 During the course of the custody case, the judge and the attorneys met in chambers to discuss prior testimony that suggested that one party was having an affair, and the father’s attorney said, “I will have to see if I can prove a negative.”97 He posted the same sentiment on his Facebook page, and the judge posted in response to that comment that he had “two good parents to choose from.”98 Judge Terry also posted that he believed that the attorney “will be back in court” in reference to the case not yet being settled, and the father’s attor-

90. Katheryn Hayes Tucker, Ga. Judge Steps Down Following Questions About Facebook Relationship With Defendant, F ulton C ount y Daily R ep., Jan. 7, 2010, http://www.law.com/jsp/article. jsp?id=1202437652986&Ga_Judge_Steps_Down_Following_Questions_About_Facebook_Relationship_With_Defendant&slreturn=1&hbxlogin=1; see also Debra Cassens Weiss, Ga. Judge Resigns After Questions Raised About Facebook Contacts, ABA J., Jan. 7, 2010, http://www.abajournal. com/news/article/ga._judge_resigns_after_questions_raised_about_facebook_contacts/.

91. Hayes Tucker, supra.

92. Id. See also Judge Herbert B. Dixon Jr., The Black Hole Effect: When Internet Use and Judicial Ethics Collide, 49 Judges ’ J. 38 (Fall 2010) for additional details on the Georgia case.

93. Hayes Tucker, supra note 87.

94. Public Reprimand of Terry, N.C. Jud. Stds. Comm., Inquiry No. 08-234 (April 1, 2009), available at http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf.

95. Id. at 1-2.

96. Id. at 2.

97. Id. at 2.

98. Id.

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ney posted in response, “I have a wise Judge.”99 Moreover, Judge Terry used Google, an Internet search engine, to find information about the mother’s photography business, and in so doing found numerous poems on her website. Before he announced his ruling in the custody case, he quoted one of the poems with minor changes, indicating that the poem gave him “hope for the kids” and made him believe that the mother “was not as bitter as he first thought.”100 The judge did not disclose that he had done this independent research.101 The North Carolina Judicial Standards Commission found that Judge Terry had ex parte communications with one party’s counsel in a matter pending before him, and that he was influenced by information that he had gathered independently by viewing a website, even though neither the website nor its contents were entered into evidence.102 Judge Terry’s actions, the Commission held, “constitute[d] conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”103 Several states ethics boards have issued advisory opinions that deal with judges and social networks. One of these opinions – in Ohio – provides a useful model to consider for other states and the federal ethics code. Other states’ opinions vary somewhat in their language and recommendations; these will be grouped below. Four states’ judicial ethics boards – those in California, Florida, Massachusetts, and Oklahoma – explicitly forbid judges from becoming “friends” with attorneys who either could or actually appear before them.

In probably the most controversial of the state ethics board advisory opinions, the Florida Judicial Ethics Advisory Committee in 2009 said that a judge “friending” an attorney on Facebook is inappropriate under the state’s judicial ethics code.104 The committee said that the combination of the judge’s ability to exercise selection of attorneys as “friends” and the communication of those relationships to the public ran afoul of the code “because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.”105 The committee elaborated: The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.106 99. Id. 100. Id. at 3.

101. Id. 102. Id. at 3-4. See also Sharon Nelson, John Simek & Jason Foltin, The Legal Implications of Social Networking, 22 R egent U.L. R ev. 1, 10 (2009-2010) (discussing the case); Ryan Jones, Judge reprimanded for discussing case on Facebook, The (Davidson C ount y, N.C.) D ispatch , June 1, 2009, http://www.the-dispatch.com/article/20090601/ARTICLES/905319995/1005?Title=Judge-reprimanded-for-diseussing-case-on-Facebook.

103. Id. at 4.

104. Florida Sup.Ct., Jud. Ethics Advisory Comm., Op. 2009-20 (2009).

105. Id. 106. Id.

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The committee’s decision was not unanimous: The opinion noted that several members believed that the term “friend” is now viewed differently than it was prior to the rise of social networks, and the term now can be reasonably understood to mean an individual who is more like an acquaintance or a contact rather than someone in a position to garner special treatment from the judge.107 The committee added that situations in which a judge does not have to take any action to approve such relationships, such as “fan” sites supporting judicial candidacy on which the judge or his or her election committee cannot control who is able to join the fan site, would be permissible under the ethics code.108 As might be expected, this opinion generated significant debate. A New York Times editorial quoted a legal ethics expert saying that the opinion went too far and that the committee was being “hypersensitive.”109 More colorfully, Bill Haltom, a past president of the Tennessee Bar Association, called the opinion “nonsense on stilts,”110 adding that he was friends – in the traditional, social sense, not on Facebook – with many judges, including state supreme court judges, and that when he appears before them, their decisions either for him or against him have nothing to do with his friendship with them.111 Still, some think this opinion hits the mark; a Florida county judge told the New York Times that the rule was “probably a good idea, just to avoid any perceptions of impropriety.”112 An additional 2012 opinion from the Florida committee included the professional networking site LinkedIn in the prohibitions, noting that “it is the process of selection of ‘friends’ or ‘connections’ by the judge, and the fact that the names of those ‘friends’ or ‘connections’ are then communicated – often, but not always, selectively to others – that violates Canon 2B.”113 Both, said the opinion, convey the impression that a connection in either Facebook or LinkedIn has the opportunity to influence the judge.

Oklahoma’s Judicial Ethics Advisory Panel issued a 2011 opinion that followed Florida’s lead, answering the question “May a Judge who owns an internet based social media account add court staff, law enforcement officers, social workers, attorneys and others who may appear in his or her court as ‘friends’ on the account?” with a “No.”114 The reasoning: “We believe that public trust in the impartiality and fairness of the judicial system is so important that it is imperative to err on the side of caution where the situation is ‘fraught with peril.’”115 It is interesting and important to note that the Oklahoma decision includes not only attorneys but others who may appear before the court, such as law enforcement and social workers – arguably a broader prohibition than Florida’s. The Massachusetts Committee on Judicial Ethics warned, “A judge’s ‘friending’ attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge. Therefore, the Code does not permit you to ‘friend’ any attorney who may appear before you.”116

107. Id. 108. Id. 109. John Schwartz, For Judges on Facebook, Friendship Has Limits, N.Y. Times , Dec. 11, 2009, at A25.

110. Bill Haltom, But Seriously Folks: If You Are a Judge, You Better Get a Dog, 46 Tenn. B.J. 36, 37 (Feb. 2010).

111. Id. 112. Schwartz, supra note 96, at A25.

113. Florida Sup.Ct., Jud. Ethics Advisory Comm., Op. 2012-12 (2012).

114. Oklahoma Jud. Ethics Advisory Panel, Jud. Ethics Op. 2011-3, 2011 OK Jud. Eth . 3, ¶¶2-3 (July 6, 2011).

115. Id. at ¶9.

116. Massachusetts Sup. Jud. Ct., Comm. on Jud. Ethics Op. No. 2011-6 (2011).

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Both Oklahoma’s and Massachusetts’ opinions relied on the Florida opinion as well as a lengthy 2010 opinion from the California Judges Association Judicial Ethics Committee in which the committee determined that the code was not a per se prohibition against judges being online “friends” with attorneys, many factors should be taken into account when judges decide who and whether to “friend.”117 The opinion encouraged the judge to take into account, for example, the nature of the site, the number of “friends” on the page, the judge’s practice in determining who to “friend,” and how regularly an attorney appears before the judge.118 Of particular concern to the committee was the nature of the site – an attorney’s inclusion on a judge’s personal site rather than one intended to share professional information would give an impression that the attorney was in a position to unduly influence the judge.119 However, the committee was clear on one thing: an attorney who is appearing before a judge should not be a “friend.”120 The committee included a thoughtful conclusion that encapsulates the issues facing judges in today’s online and interlinked environment: To set out a per se rule barring all interactions with attorneys who may appear before the judge would ignore the realities of an increasingly popular and ubiquitous form of social interaction which is used in a wide variety of contexts. It is the nature of the interaction that should govern the analysis, not the medium in which it takes place. Although the committee has concluded it is permissible for a judge to be a member of an online social networking site and that under some limited circumstances it is permissible to interact with attorneys who may appear before the judge on an online social networking site, it is impermissible for judges to interact with attorneys who have cases pending before the judge, and judges who choose to participate in online social networks should be very cautious.121

Five states – Kentucky, Maryland, New York, Ohio and South Carolina – allow “friending” with warnings and limitations.

In 2010, the Ethics Committee of the Kentucky Judiciary answered with a “Qualified Yes” the question, “May a Kentucky judge or justice, consistent with the Code of Judicial Conduct, participate in an Internet-based social networking site, such as Facebook, LinkedIn, MySpace or Twitter, and be ‘friends’ with various persons who appear before the judge in court, such as attorneys, social workers, and/or law enforcement officials?”122 Agreeing with the minority in the Florida opinion, the Kentucky committee said, “The consensus of this Committee is that participation and listing alone do not violate the Kentucky Code of Judicial Conduct, and specifically do not ‘convey or permit others to convey the impression that they are in a special position to influence the judge.’”123 A 2012 Maryland Judicial Ethics Committee decision echoed the Kentucky opinion’s sentiments, noting that it was “the Committee’s position that ‘the mere fact of a social connection’ does not create a conflict” and that there are many reasons why a judge would want to participate in a social network.124 The summary of the 2009 New York advisory opinion on the question of judicial use of social networks reads: “Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social 117. California Judges Ass’n, Jud. Ethics Comm. Op. 66 (2010).

118. Id. at 8.

119. Id. at 9.

120. Id. at 11.

121. Id. 122. Ethics Committee of the Kentucky Judiciary, Formal Jud. Ethics Op. JE-119 (2010).

123. Id. (quoting K y. C ode of Jud. C onduct C a non 3E (2003)).

124. Maryland Jud. Eth. Comm., Op. Req. No. 2012-07 (2012).

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network.”125 After outlining some of the reasons judges may want to make use of these networks (e.g., reconnecting with former college or even high school classmates, keeping in touch with distant family, monitoring the activities of minor children) and pointing out that judges often socialize with attorneys in person, the committee said that it could see nothing inherently problematic with judges joining social networks.126 South Carolina’s brief 2009 advisory opinion states that “A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.”127 The committee added that “[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”128 After first establishing that nothing in the Ohio judicial ethics code prohibits social friendships between judges and attorneys, even attorneys appearing before a judge, the Ohio Board of Commissioners on Grievances and Discipline in a 2010 advisory opinion produced a detailed and thoughtful list of guidelines addressing some appropriate (and inappropriate) uses of social networks for judges.129 The list includes several general rules, coupled with a rationale or explanation from the ethics code (only the rules are reproduced here): A judge must maintain dignity in every comment, photograph, and other information shared on the social network. …

A judge must not foster social networking interactions with individuals or organizations if such communications will erode confidence in the independence of judicial decision making. …

A judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone. …

A judge should not view a party’s or witness’ page on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge. …

A judge should avoid making any comments on a social networking site about pending or impending matters in any court. …

A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party. Not all social relationships, online or otherwise, require a judge’s disqualification. …

A judge may not give legal advice to others on a social networking site. …

A judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.130

Other states might find this to be an excellent model. Not only does the opinion give concrete advice on the appropriate uses of social networking sites, it couples that advice 125. N.Y. Advisory Comm. on Jud. Ethics, Op. 08-176 (2009).

126. Id. (“In some ways, this is no different from adding the person’s contact information into the judge’s Rolodex or address book or speaking to them in a public setting.”).

127. S.C. Advisory Comm. on Stds. of Jud. Conduct, Op. 17-2009 (2009).

128. Id. 129. Ohio Bd. of Comm’rs on Grievances & Discipline, Op. 2010-7 (2010).

130. Id.

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with backup from the language in the state’s ethics code. For example, the admonition that judges should not interact with individuals or organizations if doing so would erode public confidence in judicial independence is followed by language tying the recommendation to particular elements of the ethics code and giving an example: As required by Jud. Cond. Rule 2.4(C), a judge must not convey the impression that any person or organization is in a position to influence the judge; and must not permit others to convey that impression. For example, frequent and specific social networking communications with advocacy groups interested in matters before the court may convey such impression of external influence.131

Discussion: Caperton and I mplications for S ocial Network Use

A

s previously noted, Chief Justice Roberts’ dissent in Caperton included several questions that he said courts would have to consider in applying the majority’s “likelihood of actual bias” standard.132 While most of the questions in Caperton were framed in electioneering or finance terms, inquiries like those Roberts raised in questions 9 and 21 – “What if the case involves a social or ideological issue rather than a financial one?”133 and, “Does close personThe issues Roberts raises in al friendship between a judge and a party these questions arguably reflect or lawyer now give rise to a probability of bias?”134 – suggest that there are situations precisely the sorts of positions and wherein money might not be the sole deterrelationships that social media not minant of whether a judge ought to recuse. only encourage, but make public.

The issues Roberts raises in these questions arguably reflect precisely the sorts of positions and relationships that social media not only encourage, but make public, and could potentially include activities as seemingly innocuous as “friending” a colleague or “liking” a politically-motivated post.

There has not been much discussion about judges’ uses of social networking in the legal literature; a few such articles have been referenced here.135 But no author to date has provided an analysis of Caperton motions in light of judges’ use of social networking sites (probably because the case is relatively new and as yet largely untested), and there are few recommendations in that literature for resolving issues that will inevitably arise if the number of social networking sites and their participants continues to rise. What follows is a possible model for states and Congress to use in evaluating whether to revisit and revise their ethics codes to address judges’ use of social networking sites and how to position those uses in a way that comports with the Caperton and state recusal standards.

As Chief Justice Roberts suggests, some of the questions raised by the majority opinion in Caperton have to do with ideological issues and personal friendships – under what circumstances do these give rise to the need for a judge to recuse? Most of the state ethics boards’ advisory opinions (with the notable exception of Florida, which itself was not 131. Id. 132. See supra text accompanying notes 54-56.

133. Id. at 2269.

134. Id. at 2270.

135. See, e.g., Galli, Olszyk & Wilhelm, supra note 22; Slaughter & Browning, supra note 27; Vinson, supra note 27; Nelson, Simek & Foltin, supra note 85.

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a unanimous opinion) stress that the issue is not whether a judge participates, but the circumstances of that participation – that is, how the judge interacts with others on social networking sites.

It seems reasonable to construct a continuum of potential uses of social media and position individual situations along this continuum for purposes of evaluating recommendations to recuse. The list below is an attempt to categorize common uses of social networks and their implications for recusal. A list like this, perhaps modeled on the Ohio advisory opinion, could be included in the Comments for the Model Code Rule 2.11 governing judicial recusal, coupled with a call for education on types and appropriate judicial uses of social networks and other social media sites. Regardless of whether a state uses the “likelihood of actual bias” standard articulated in Caperton or the traditional “appearance of impropriety” standard, this list can help the judiciary and ethics boards determine what uses of social networking may raise the potential for a recusal motion.136

Facebook “Friending” At the “acceptable” end, simple “friending” – the process by which two individuals’ accounts become linked on Facebook – probably does not raise the likelihood of bias or a significant appearance of impropriety. A mere link between two accounts, not unlike a face-to-face casual acquaintance, would not raise significant due process concerns. In this same category might be the posting of family pictures on Facebook or Flickr (assuming that attorneys or parties in cases before the judge do not appear in the images) and commenting on nonpolitical or noncontroversial issues (e.g., the weather). This recommendation comports with the language in the Model Code governing acceptance of gifts; Rule 3.13 says that the judge may accept gifts of “ordinary social hospitality” without reporting them.137 It is not a stretch to suggest that merely “friending” an attorney or other individual is an excercise of ordinary social hospitality without a material exchange.

Commenting on Potentially Controversial Issues (Sports Teams) Generally, comments on sports teams, celebrities, local developments and the like will not result in a likelihood of bias or the appearance of impropriety. However, there is the potential for an interaction that seems mundane or noncontroversial at the time to develop over time into a more problematic situation. For example, a judge “tweets” on his Twitter account on how nice it will be to have a new shopping mall nearer to his home than the one he usually frequents. Two months later, the mall developer is before the judge on a dispute with a building contractor. The savvy attorney for the contractor finds the judge’s innocuous online communication and uses it to demand a recusal based on the appearance of impropriety. Would the reasonable person believe that the single tweet is inappropriate?

Probably not, and the judge would likely not decide to recuse. However, if the judge made several tweets or posts on a social networking site expressing his pleasure in the mall’s development and stating how much he was looking forward to not having to drive so far to do his shopping, the answer becomes less clear.

136. Bam, supra note 57, suggests that Caperton is largely irrelevant unless states voluntarily make procedural changes to their recusal processes: “If states combine Caperton’s substantive probability-of-bias standard with a more aggressive procedural approach, the combination could increase in [sic] the public’s confidence in the courts.” Bam at 81.

137. ABA Model Code of Jud. Conduct R. 3.13(B)(3) (2007).

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Campaign Communication According to the Conference of Court Public Information Officers study discussed earlier,138 most judges who engage in social media use do so because they are in one of the 39 states139 that use elections to select or retain judges.140 There are several issues here. First, how appropriate is it for the judge to personally interact on his or her own social media site dedicated to his or her election or re-election, or should that be left to campaign staff? Second, if the judge engages in commentary on state or local issues on the site as part of the election bid, and those issues come before his or her court after he or she is elected, what standards should be used to determine whether the activity would now appear improper? Much has already been written on the nexus between judicial campaigns and communications, and campaign contributions and the appropriateness of recusal.141 Suffice it to say, campaign communications are somewhere in the middle of the continuum of appropriate uses of social networks by judges because of the potential for topics and situations about which the judge has written to appear before that judge in court.

The U.S. Supreme Court has provided some guidance in the area of judicial election speech. In Republican Party of Minnesota v. White,142 the Court ruled that a Minnesota judicial ethics rule prohibiting judicial candidates from discussing issues which might come before the judicial office they were seeking (the “announce clause”)143 violated the Constitution’s free speech previsions. The Court said in a 5-4 decision that the announce clause must survive a strict scrutiny test, and that it could not do.144 Writing for the majority, Justice Scalia came down hard on the announce clause, claiming that far from meeting the strict scrutiny standard, it “is barely tailored to serve that interest [in judicial impartiality] at all.”145 He added, “There is an obvious tension between the article of Minnesota’s popularly approved Constitution[,] which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause[,] which places most subjects of interest to the voters off

138. See supra text accompanying notes 23-25.

139. See Amer. Judicature Soc., Judicial S election in the S tates: A ppell ate a nd G ener al Jurisdiction C ourts (2009), available at http://www.judicialselection.us/uploads/documents/Judicial_Selection_Charts_1196376173077.pdf. The figure cited here was calculated by counting all states with an “x” in the “non-partisan election” or “partisan election” columns, and any state with a retention election designation in the “method of retention” column.

140. C onf. of C t. P ublic I nfo. O fficers , supra note 23, at 9.

141. See, e.g., Genelle I. Belmas and Jason M. Shepard, Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment, 58 D r ake L. R ev. 709 (2010); David Goldberger, The Power of Special Interest Groups to Overwhelm Judicial Election Campaigns: The Troublesome Interaction Between the Code of Judicial Conduct, Campaign Finance Laws, and the First Amendment, 72 U. C in. L. R ev. 1 (2003); David K. Stott, Zero-Sum Judicial Elections: Balancing Free Speech and Impartiality Through Recusal Reform, 2009 B.Y.U.L. Rev. 481 (2009); Molly McLucas, The Need for Effective Recusal Standards for an Elected Judiciary, 42 L oy. L.A. L. R ev. 671 (2009); Matthew D. Besser, May I Be Recused? The Tension Between Judicial Campaign Speech and Recusal After Republican Party of Minnesota v. White, 64 O hio S t. L.J. 1197 (2003); Andrew L. Kaufman, Judicial Correctness Meets Constitutional Correctness: Section 2c of the Code of Judicial Conduct, 32 Hofs tr a L. R ev. 1293 (2004).

142. 536 U.S. 765 (2002).

143. Id. at 768.

144. Id. at 774-75 (“Under the strict-scrutiny test, respondents have the burden to prove that the announce clause is (1) narrowly tailored, to serve (2) a compelling state interest.”)

145. Id at 776 (emphasis in original).

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limits.”146 Judicial elections require the candidate to mount a campaign for the position, and as such, the candidate will necessarily have to participate in some form of campaign speech.

Social networking is an ideal way to reach voters effectively and inexpensively; one judge called Facebook “an amazing tool to get my message out.”147 A judge’s personal use of social media during a campaign might reasonably be considered to be covered by the White case; as Scalia noted there, the First Amendment does not permit “leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”148 It is almost unthinkable that a candidate for any political office would pass up the opportunity to use social media to reach potential voters, and it is not a far stretch to assume that White’s protection of judges’ speech during campaigns would apply to newer forms of online communication, as well as traditional campaign literature (which is what White focused on149) and television commercials.

But it is important to distinguish between restrictions on speech during judicial campaigns and a requirement that judges, once elected, recuse themselves from cases in which their prior campaign statements might cast doubt on their ability to fairly judge a particular case before them. Justice Kennedy pointed out this difference in his concurrence in White: Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer.150

It is in the context of campaign contributions and communications that the differences between the “likelihood of bias” and the “appearance of impropriety” standards become most critical. While mere participation in partisan politics might not generally give rise to an actual likelihood of bias, under a more stringent standard of the appearance of impropriety, judges might find themselves asked to recuse in cases that involve the political stances of their parties or their own campaigns. However, it should also be noted that not all communication about cases before the judge is necessarily cause for recusal. As one commentator points out, the Model Code allows judges to comment in some situations without censure: “a judge is given necessary flexibility to handle public exposure of cases in a manner that can be individualized to suit the exact circumstances arising from each case.”151

Case Commentary and Ex Parte Communications At the other end of the continuum are the cases for which a bias analysis will typically favor recusal. They tend to be more clear-cut because they involve communications that would be prohibited in a non-social media context, such as ex parte communications or commentary on pending or impending litigation. The North Carolina judge censured for his ex parte com-

146. Id. at 787. See also Bauer v. Shepard, 620 F. 3d 704 (7th Cir. 2010), cert. denied, No. 10-425, 2011 WL 1631059, 79 USLW 3228 (U.S. May 2, 2011) (finding provisions of Indiana’s judicial conduct code barring judges from making “commitments that could compromise impartiality” not overbroad under First Amendment).

147. Schwartz, supra note 96.

148. White, 536 U.S. at 788.

149. Id. at 768.

150. Id. at 794 (Kennedy, J., concurring).

151. Summary Guide to the Courts and Media, 1 R ey nolds C ts . & M edia L. J. 49, 100 (2011).

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munication over Facebook with a defendant is an excellent example. Judge Saffold’s alleged anonymous communication about cases before her court would be another example.

It might also be appropriate to include social media communications that reveal judges’ biases in this category. However, such communications have First Amendment implications that should not be ignored. Whether a communication is indicative of a likelihood of bias must be evaluated against a judge’s First Amendment rights. If a judge is never asked to rule in a case in which his/her biases are germane, the speech should be protected.152 If, however, the judge is asked to rule in such a case, it would be appropriate to examine that communication for a likelihood of bias.

There are examples of expressions of bias by judges that have not resulted in censure.

For example, in 2002 the Mississippi Supreme Court refused to discipline a justice of the peace who had written a letter to a newspaper and given an interview on a radio show in which he expressed disbelief at state legislatures that had passed same-sex marriage laws and added that “gays and lesbians should be put in some type of mental institute” [sic].153 The judge argued that his point of view was based in his Christian beliefs and cited the U.S. Supreme Court’s ruling protecting speech by judicial candidates154 in defense of his First Amendment rights. The Mississippi Supreme Court agreed, characterizing the speech as religious commentary and adding: Allowing – that is to say, forcing – judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge.

Unaware of the prejudice and not knowing they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.155

The Mississippi Supreme Court also acknowledged that gay men and lesbians will likely seek recusals if they were to come before this judge’s court.156 While not a recusal case, the Mississippi decision illustrates the problems inherent in balancing First Amendment concerns with the need for an impartial, dispassionate judiciary.

As the numbers and types of social networking and media outlets continue to rise, it will be vital for the judiciary to address the appropriate uses of social media, whether by amending the Model Code and other ethics codes, by engaging in an education campaign for legal professionals, and/or by continuing to issue advisory opinions.157 All three options are recommended here. While it would be easy to recommend a total ban on the use of any social media by judges, as Florida has done, that is an extreme solution to a currently small problem. It remains to be seen whether Chief Justice Roberts’ fears about a potential deluge of Caperton recusal motions comes to pass. While advisory opinions and codes provide 152. This was the position taken by the Mississippi Supreme Court in Miss. Comm’n on Jud. Performance v. Wilkerson, 876 So. 2d 1006 (Miss. 2004), discussed infra.

153. Tobin A. Sparling, Keeping up Appearances: The Constitutionality of the Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19 G eo. J. L egal Ethics 441, 461-62 (2006). The full letter sent by the judge is reproduced there.

154. Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

155. Miss. Comm’n on Jud. Performance v. Wilkerson, 876 So. 2d 1006, 1015 (Miss. 2004). See also Richard M. Esenberg, If You Speak Up, Must You Stand Down: Caperton and Its Limits, 45 Wake Forest L. R ev. 1287, 1329-30 (2010); and Sparling, supra note 134 at 462-64, for additional commentary on the Wilkerson case.

156. Wilkerson, 876 So. 2d at 1015 (“We feel obliged to point out that, having publicly expressed his view that ‘gays and lesbians should be put in some type of mental institute,’ Judge Wilkerson will doubtless face a recusal motion from every gay and lesbian citizen who visits his court.”).

157. But see O’Brien, supra note 13, at 529 (stating that the current applications of ethics codes to inappropriate uses of social networks by judges are sufficient, and no new ethics rules are necessary).

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useful guidelines, it is not unreasonable to suggest that these guidelines be amended and updated as technological and social developments occur. The recommendations in this section are recommendations to do just that – not to throw the codes out, nor amend their primary tenets, but to add illustrations to help well-meaning judges do the right thing. The Ohio ethics board advisory opinion, coupled with the continuum outlined above, offers a good starting point.

C onclusion

T

he judiciary is under mounting public scrutiny and escalating attacks on its decisions, impartiality, and ethics. While attacks on the judiciary are not new, first arising in the Jeffersonian era,158 they are on the rise. Nasty and partisan judicial elections, including a November 2010 Iowa retention election that for the first time resulted in the ouster of three state supreme court justices,159 are indicative of the rise of vocal and strident political voices dominating judicial elections. Former Supreme Court Justice Sandra Day O’Connor in 2006 lamented the increase in assaults on the judiciary, noting that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history.”160 Not even the highest court in the nation is immune from calls for transparency and reform: In February 2011, 107 law professors from law schools all over the country signed a letter to members of the Senate and House Judiciary Committees calling for reforms in Supreme Court ethics rules, particularly those governing recusal.161 The professors claimed that “the opacity and non-reviewability of this [recusal] process erodes public confidence in the integrity of the Court.”162 The letter recommended four legislative responses to the lack of transparency: Require the application of the federal judicial ethics code to the Supreme Court; establish procedures to enforce that code’s standards to the justices; require a written opinion when a justice denies a motion to recuse; and provide a procedure for review of a justice’s refusal to recuse (or require the Court to develop one).163 The New York Times opined that the proposal was “a good start,” adding that “questions about the court’s impartiality are too serious to ignore.”164 Shortly after the letter 158. Justice Ming W. Chin, Judicial Independence: Under Attack Again? 61 H astings L.J. 1345, 1346 (2010) (“[A]ttacks on judicial independence are almost as old as the American Republic itself; they date back at least to 1805, when President Jefferson tried, but failed, to use the impeachment procedure to remove United States Supreme Court Justice Samuel Chase, in part because of the content of his decisions.”).

159. The justices had voted to strike down a law prohibiting same-sex marriages. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). For discussion of the judges’ removal, see Ashby Jones, Judgeless in Iowa: Making Sense of Tuesday’s Judicial Ouster, Wall S t. J. L aw Blog , Nov. 3, 2010, http://blogs. wsj.com/law/2010/11/03/judgeless-in-iowa-making-sense-of-tuesdays-judicial-ouster/. University of Iowa law professor Todd Pettys explained the vote, the first such result in state history: “But there’s long been an understanding that you retained the judges unless they appeared unethical or immoral or incompetent, not because you disagreed with a particular ruling. This notion of singling them out because they disagreed with a particular ruling, well, that was new with us.”

160. Sandra Day O’Connor, Op-Ed., The Threat to Judicial Independence, Wall St. J., Sept. 27, 2006, at A18.

161. Alliance for Justice, Alliance for Justice Joins Law Professors in Calling for Congress to Mandate Ethics Reforms in the Supreme Court, Feb. 24, 2011, http://www.afj.org/press/02242011.html. The letter is available at http://www.afj.org/judicial_ethics_sign_on_letter.pdf.

162. Alliance for Justice letter, id., at 2.

163. Id. at 2-3.

164. Editorial, The Court’s Recusal Problem, N.Y. Times , Mar. 16, 2011, at A30.

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was made public, two House members introduced a bill based on its suggested reforms.165 Yet, as one commentator points out, the Internet has the potential to increase judicial transparency, with a flood of information available just a Google search away.166 Does this plethora of facts make it more likely that any small piece of information posted, tweeted or uploaded by a judge will necessarily give rise to a motion for recusal, and will judges feel compelled to recuse based on these snippets?

Second Circuit Judge Roger Miner, writing before the Supreme Court’s decision in Caperton, mused that the trend seems to be toward erring on the side of caution when dealing with recusal, rather than exercising the traditional “duty to sit” on cases.167 He bemoaned this development, saying, “I do not think that this trend is a desirable one, for it will lead inevitably to a presumption in favor of recusal, with a concomitant burden upon the judge to rebut the presumption.”168 The judiciary needs to guard against this presumption of recusal in most social media use situations. Not every Facebook “friend” relationship or judicial tweet should result in a successful recusal motion. Such actions do not meet even the most stringent appearance of impropriety standards currently in most state ethics codes, to say nothing of the due process minimums established in Caperton.

Even some legal commentators have started to chime in about the need to re-evaluate the judicial mindset toward social media. Arguing against the California opinion that forbid judges from “friending” attorneys appearing before them, one critic suggests that the committee’s interpretation of the state code was flawed because “a person aware of the facts” would understand that a mere “friending” does not mean that the connection will result in a lack of judicial impartiality.169 While there is always the potential for abuse and the likelihood of actual bias, as defined by Caperton, most uses of social media by judges are unlikely to rise to this level.

An addition to the Model Code, perhaps in the form of comments to Rule 2.11 modeled on the Ohio advisory opinion’s thoughtful and detailed list, coupled with additional and ongoing education for everyone in the legal profession, from judges and their staffs, to attorneys and their clients, should result in fewer recusal requests resulting from judges’ social network participation.

165. See Supreme Court Transparency and Disclosure Act, H.R. 862, 112th Cong. § 1 (2011).

166. Sparling, supra note 134, at 485. Sparling adds, “Not only have the Internet, television, radio, and the popular press given the public more access to information about judges, they have also whet the people’s appetite to receive it by bringing the courts closer to them.” Id. 167. Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstr a L. R ev. 1107, 1120 (2004). Judge Miner was not as pessimistic as some about the state of the ethics of the judiciary when writing in 2004, but he added a call for more transparency in judicial disciplinary proceedings: “Secrecy is usually not desirable in matters of this kind, and I believe that open proceedings would go far toward restoring public confidence in the judiciary.” Id. at 1136.

168. Id. at 1120.

169. Brian Hull, Why Can’t We Be ‘Friends’? A Call for A Less Stringent Policy for Judges Using Online Social Networking, 63 H astings L.J. 595, 619 (2012) (adding that the opinion is flawed from a policy perspective as well). But see Aurora J. Wilson, Let’s Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary, 7 Wash. J.L. Tech. & A rts 225 (2012) (arguing that “judges in all states should approach social networking cautiously in order to avoid violating the ethical duties governing the judiciary.” Id. at 235-36.).

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A Right to Speak and Spend: Objective Journalism and Judicial Races Post-Citizens United

By Michael Ellement

T

he Supreme Court’s decision in Citizens United1 changed much of modern campaign finance regulation. The Court relied on the First Amendment’s Speech Clause to find that corporate speakers, like natural persons, enjoy an unlimited right to disseminate information in support of a political candidate running for office.2 The decision likely has far reaching implications for the future of campaign finance regulation, and the administration of elections across the country.3 More specifically, the decision has repercussions for the funding of judicial elections—which have been a source of controversy both prior to and post-Citizens United.4 A further concern presented by Citizens United is the consequences the decision may have on political information dissemination in general, beyond the effect it may have on any one given election. More specifically, what implications will the Court’s holding have on independent news gathering? This Article puts forth two concerns for the future of journalism post-Citizens United.

First, Citizens United blurred the line as to what the “press” is.5 Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources.6 This gave the press a unique 1. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

2. Id. at 913.

3. See Molly J. Walker Wilson, Too Much of A Good Thing: Campaign Speech After Citizens United, 31 Cardozo L. Rev. 2365, 2387 (2010) (stating “[t]he Justices who make up the Citizens United majority have the power and the purpose to shape campaign funding in monumental ways over the next several decades. Their belief that unfettered corporate campaign speech benefits the electorate will drive future campaign finance Court decisions.”). But see also Francis Bingham, Show Me the Money: Public Access and Accountability After Citizens United, 52 B.C. L. R ev. 1027, 1047-48 (2011) (Note) (stating “arguments predicting a hitherto unseen flood of corporate wealth in elections fall flat against the history of campaign finance regulations, the limited nature of section 203, the continuing operation of disclosure and disclaimer requirements, and the nature of money in politics.”).

4. See infra. Part V. 5. Seth Korman, Citizens United and the Press: Two Distinct Implications, 37 Rutgers L. Rec. 1, 5 (2010).

6. Id.; See infra Part II.

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status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United.7 Any corporation—whether it be an established press agency, or a for-profit company having nothing to do with newsgathering—now has the equal right to disseminate unlimited amounts of advocacy for a candidate or political position in the time preceding an election.8 Second, the decision in Citizens United allows for news organizations to contribute and advocate for a candidate separate and apart from their normal news coverage. A news corporation may now support, directly, a political candidate as a function of their corporate spending, while at the same time presenting itself to the public as an objective news source.9 While this concern might not be readily apparent—since news outlets might be wary of using their profits in support of a political candidate—currently most news outlets are owned by larger corporate parent companies, which do not have as their principle function news dissemination.10 These parent companies are less likely to respect values of journalistic objectivity sought by their subsidiaries engaged in newsgathering. The question becomes what is to occur if a parent corporation seeks to endorse a political candidate, while at the same time owning a news organization that presents itself as an objective source of information? Such a structure necessarily calls into question journalistic values, and erodes public confidence in media.

Part I of this Article describes the historic development of media in the United States.

Part II discusses campaign finance laws and their history, with special reference to how the press has been treated under campaign finance laws. Part III reviews the Supreme Court’s decision in Citizens United, with an emphasis on the Court’s discussion of established media outlets and the decision’s application to judicial elections. Part IV discusses the implications the Court’s decision in Citizens United might have for journalistic objectivity and the public’s perception of the media. Part V will analyze what effects the new media paradigm post-Citizens United might have on judicial elections.

I. Journalistic Values: Development of Big M edia

of the

Press

and the

Age

T

he state of American media has undergone transformations since its inception. The reformulation of how news is covered and disseminated is modified both by society’s needs as well as the motives of those controlling news outlets.

A. News In Early America: Mixing Journalism and Politics From the colonial era through the 19th century, American newspapers were often highly politicized publications.11 In fact, many newspapers were run by political parties

7. Seth Korman, Citizens United and the Press: Two Distinct Implications, 37 Rutgers L. Rec. 1, 5 (2010).

8. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 896-99 (2010).

9. See infra Part IV. 10. R on F. S mith, G roping for Ethics in Journalism 4ed. 261 (1999).

11. David P. Nord, Newspapers and American Nationhood, 1776-1826, in Three Hundred Years of the A merican Newspaper 391 (Ed. John B. Hench, 1991). The origins of political newspapers in American can be fairly traced to the New-York Weekly Journal, which Chief Justice Lewis Morris began printing in 1733 to promote opposition to then Governor William Cosby. Charles E. Clark, The Newspapers of Provincial America, in Three Hundred Years of the A merican Newspaper 380 (Ed. John B. Hench, 1991).

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and utilized as propaganda tools to push information.12 A prominent example of such news manipulation were the battles between the Jeffersonian Republicans and the Federalists—culminating with Thomas Jefferson’s defeat of John Adams in the election of 1800.13 Beginning in the 1790s, Jefferson instructed followers to create a national newspaper that could be distributed throughout the states.14 The General Advertiser and other Jefferson friendly publications were The newspaper business became in distribution by the campaign of 1799, increasingly profit based, leading and used by Republican supporters to to coverage of general matters promote their political views.15 Following Jefferson’s victory, disgruntled Federalists of public interest and less led by Alexander Hamilton launched the politically motivated writings.

New York Evening Post in 1801 with the sole purpose of criticizing the new Jefferson administration.16 The trend of political factions owning media outlets dissipated in the 1830s, when independent newspapers severed ties with political parties.17 Indeed, newspapers became less political altogether—limiting political coverage and, instead, choosing to focus on major events of the day (such as crime) as opposed to political thought.18 Much of this can be explained by the increased level of advertising that began to appear in newspapers in the latter half of the 1800s.19 The newspaper business became increasingly profit based, leading to coverage of general matters of public interest and less politically motivated writings.20

12. David T. Z. M indich, Just the Facts How “O bjectivit y ” C a me to D efine A merica n Journalism 17 (1998). Mindich describes how newspapers dominated by party affiliation gained prominence during the American Revolution and were utilized by all major political parties through the first several decades of the nation’s history. Id. The power of the mail was also of great importance to early distribution of information. A consequence of this reality was that many postmasters general became editors of newspapers, making their position highly political and influential. Id. See also Matthew A. Melone, Citizens United and Corporate Political Speech: Did the Supreme Court Enhance Political Discourse or Invite Corruption?, 60 DePaul L. Rev. 29, 98 n.13 (2010) (noting “Newspaper costs were the most significant campaign costs throughout the early 1800s.”).

13. Nord, supra note 10, at 398.

14. Nord, supra note 10, at 398.

15. Nord, supra note 10, at 398.

16. Nord, supra note 10, at 392.

17. Mindich, supra note 11, at 17-19; Jason P. Isralowitz, The Reporter As Citizen: Newspaper Ethics and Constitutional Values, 141 U. Pa . L. R ev. 221, 226 (1992).

18. Mindich, supra note 11, at 17. See also H a zel D icken -G arcia , Journalistic S ta ndards in Nine teenth -C entury A merica 41-42 (1989) (noting that “newspaper content [from 1830-1870] began to focus on events, as opposed to political views. Furthermore, news categories increased, from foreign, political parties, and national government reporting, to include crime, sports, and local ‘beats’ such as the courts and police.”).

19. See Gerald J. Baldasty, The Nineteenth-Century Origins of Modern American Journalism, in Three Hundred Years of the A merican Newspaper 409 (Ed. John B. Hench, 1991) (noting that “[b]y 1900, advertising revenues accounted for as much as two-thirds of all newspaper revenues.”).

20. Id. However, each political party continued to maintain at least one national newspaper, which were loyal supporters of the party platform, for several decades following. See Mindich, supra note 11, at 140 (stating that the Democratic Party was supported by the U.S. Telegraph and Globe, while the Whig’s were supported by the National Intelligencer).

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B. Independent Newsgathering: The Rise of Objective Models of Journalism Leaving behind the era of party control, journalists in the mid-1900s began to develop their own standards for ensuring objectivity in their reporting.21 The new era of news reporting was fiercely non-partisan.22 News agencies were not threatened by politicians, and journalists made it their duty to challenge political perceptions.23 This independent model of journalism encouraged reporters and press agencies to serve the public by objectively reporting on issues of concern, while at the same time providing a forum for challenging cultural norms.24 Perhaps the epitome of the era of independent journalism was the publication of “The Pentagon Papers.” The papers were part of a 7,000 page report, originally commissioned

by Secretary of Defense Robert McNamara to study the United State’s role in Indochina from World War II on.25 Daniel Ellsberg, a researcher who covertly copied the report while working for the Defense Department, released the papers to the New York Times.26 The Times began publishing the Papers in 1971.27 The documents were both embarrassing to the sitting President Richard Nixon, and a condemnation of defense polices going back to the Truman administration.28 The revelations contained in the reports detailed high 21. Michael Schudson, The Public Journalism Movement and Its Problems, in The Politics of News The News of Politics 136-37 (Ed. Doris Graber, Denis McQuail, and Pippa Norris, 1998). The movement toward objectivity, as measured by professional codes of ethics, began in the 1920s. Id. at 136. Reporters remained distant from issues they were reporting on, and refrained from advocacy. Id. This model underwent a slight alteration in the 1960s, when reporters covering the Vietnam war saw it as their duty to take on an active role in reporting the war. Id. However, the model of independent newsgathering, apart from political control, continued through the 20th century. Id. 22. See Thomas E. Patterson, Political Roles of the Journalist, in The Politics of News The News of Pol itics 18-19 (Ed. Doris Graber, Denis McQuail, and Pippa Norris, 1998) (stating [t]oday partisan news organizations are nearly nonexistent in the United States” and noting “[American] news organizations are all located within a narrow spectrum [of non-partisanship], a reflection of a century-old tradition of impartial news reporting.”).

23. Walter Cronkite shared one example this model of independent journalism from his coverage of the presidential campaign of 1960. Walter Cronkite, Reporting Presidential Campaigns: A Journalist’s View, in The Politics of News The News of Politics 63 (Ed. Doris Graber, Denis McQuail, and Pippa Norris, 1998). Cronkite, in an interview with then candidate John F. Kennedy, inquired about the challenges Kennedy would face over his religion on the campaign trail. Id. Following the interview, Kennedy phoned the then CBS president—reminding him that Kennedy may soon have the authority to appoint the head of the Federal Communications Commission, who CBS depended on heavily. Id. CBS and Cronkite did not waiver, continuing their coverage of the campaign and Kennedy’s religion.

Id. 24. See generally A Free and Responsible Press, The Twentieth Century Fund Task Force Report for a National News Council, 56-62 (1973) (report analyzing standards the press should follow in pursuing objectivity and noting that the press must “recognize the forces at work to humanize institutions, expand consumer participation in the marketplace, and allow individuals in our mass society to preserve a personal franchise” in order to remain relevant). Some have urged that the press should solely concern itself with an objective resuscitation of events, rather than taking on even a minimal advocacy role. See Jim A. K uypers , P ress Bias and Politics How the M edia F r a me C ontroversial I ssues 200 (2002) (stating “Although dangerous enough concerning everyday issues, when concerning controversial issues, this practice of advancing its own partisan interpretation of events over a neutral presentation of facts is especially dangerous, for the public needs an account of facts that is as objective as possible.”).

25. See Daniel E llsberg , S ecrets 299-309, 365-75 (2002).

26. Id. 27. Id. at 384-86.

28. Id.

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levels of dissent by defense officials as to the wisdom of the war in Vietnam, and suggested untruthfulness by top government officials as to the success of the war effort.29 After the Times began to publish the papers, the Nixon administration sued. A temporary restraining order was issued, and publication halted.30 The Washington Post picked up where The New York Times left off and began publishing the papers.31 The conflict was eventually resolved by the Supreme Court, which held the restraint on publication the administration sought violated the First Amendment.32 The Pentagon Papers example demonstrates the method of news dissemination prevalent in the latter half of the 20th century.33 Reporters were not beholden to a political party or political ideology. Rather, they saw within their profession an affirmative duty to disseminate information of public concern, and a responsibility to criticize powerful sources of authority.34

C. Making the News A Business: For-Profit Media in the 20th Century At the beginning of the 20th century, nearly all American newspapers were owned and produced independently by family run businesses.35 Modern day newspapers do not share this independence. Beginning in the 1980s, family owned newspapers were bought out by corporate investors who were less interested in publishing a quality newspaper and more interested in turning a profit.36 As advertising became a more profitable source of revenue, media conglomerates saw an opportunity to invest in media and achieve wealth in advertising profits.37 Today, approximately 80 percent of daily newspapers in the United States are owned by corporate media chains.38 The increased availability of television also played a large role in corporate control of media. As television sets became more popular, so did television news. Corporations saw an investment opportunity, particularly with the advent of 24-hour cable news coverage.39 Rupert Murdoch—an Australian born media mogul—went so far as to become a United States citizen, so that he could purchase television stations in the United States and comply with Federal Communication Commission rules requiring station owners to be American citizens.40 The purchase and control of these news companies led to concerns over whom the news outlets were responsible to: the public, or advertisers and investors.41 29. Id. 30. United States v. New York Times Co., 328 F. Supp. 324, 325 (S.D.N.Y. 1971).

31. Ellsberg, supra note 24, at 388-93.

32. New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).

33. Michael Schudson, The Public Journalism Movement and Its Problems, in The Politics of News The News of Politics 136-37 (Ed. Doris Graber, Denis McQuail, and Pippa Norris, 1998).

34. Id. 35. R on F. S mith, G roping for Ethics in Journalism 4ed. 261 (1999).

36. Id. 263-64. As Smith puts it, “A Pulitzer Prize might be nice, but high annual yields were even nicer.”

Id. at 264. See also Ben H. Bagdikian, The M edia Monopoly 4 (1983) (noting that by the early 1980s “[t]wenty corporations control[ed] more than half the 61 million daily newspapers sold every day [and] more than half the revenues of the country’s 11,000 magazines; [and] three corporations control[ed] most of the revenues and audience in television … .”).

37. A. David G ordon, John M. K ittross , C arol R euss , C ontroversies in M edia Ethics 219-32 (1996).

38. Smith, supra note 11, at 262.

39. Ted Turner, Monopoly or Democracy? The Washington Post, May 30, 2003.

40. Smith, supra note 11, at 268.

41. See Ted Turner, Monopoly or Democracy? The Washington Post, May 30, 2003 (observing that “Large media corporations are far more profit-focused and risk-averse. They sometimes confuse shortterm profits and long-term value.” and that further concentration of media in the hands of a few corpo-

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More recently, the trend in media ownership has been increasingly centralized. Large media corporations own the majority of the newspapers, radio, and television stations across the country.42 These corporations are primarily non-media based. Rather, they maintain their primary interest in other business endeavors.43 General Electric, whose primary business is manufacturing small appliances, purchased NBC in 198644—only to sell a majority share in the company to cable giant Comcast in 2009.45 The Disney Corporation, whose theme parks and children’s movies have been popular for decades, purchased ABC in 1995.46 The Westinghouse Corporation purchased CBS in 199547—only to be bought out

by Viacom, a subsidiary of National Amusements, in 1999.48 This centralization of media outlets amplified existing concerns regarding journalistic objectivity, and the role investors play in the editorial process.49

II. Campaign Finance A nd The Media

A

complete history of campaign finance law is beyond the scope of this Article. However, a brief discussion of how press has been dealt with under campaign finance laws is warranted.

A. Campaign Finance And American Politics: Watergate Breeds Calls For Change While efforts to control the amount of money in politics have existed throughout American history,50 the first successful attempt at passing sweeping campaign finance regularations may lead to corporations “abus[ing] [their] power by slanting news coverage in ways that serve their political or financial interests. There is always the danger that news organizations can push positive stories to gain friends in government, or unleash negative stories on artists, activists or politicians who cross them, or tell their audiences only the news that confirms entrenched views. But the danger is greater when there are no competitors to air the side of the story the corporation wants to ignore.”).

42. Id. 43. Id. 44. U.S. OKs Sale of RCA to GE, L os A ngeles Times , May 21, 1986.

45. Tim Arango, G.E. Makes It Official: NBC Will Go To Comcast, The New York Times , December 3, 2009 available at http://www.nytimes.com/2009/12/04/business/media/04nbc.html.

46. Geraldine Fabrikant, The Media Business: The Merger; Walt Disney to Acquire ABC in $19 Billion Deal to Build A Giant for Entertainment, The New York Times , August 1, 1995 available at http:// www.nytimes.com/1995/08/01/business/media-business-merger-walt-disney-acquire-abc-19-billion-deal-build-giant-for.html?pagewanted=all&src=pm.

47. Company News; Westinghouse Gets Financing For CBS Purchase, The New York Times , September 14, 1995 available at http://www.nytimes.com/1995/09/14/business/company-news-westinghousegets-financing-for-cbs-purchase.html.

48. Lawrie Mifflin, Making A Media Giant: The Overview; Viacom to Buy CBS, Forming 2D Largest Media Company, The New York Times , September 8, 1999 available at http://www.nytimes. com/1999/09/08/business/making-media-giant-overview-viacom-buy-cbs-forming-2d-largest-media-company.html?pagewanted=all&src=pm.

49. See Mark Crispin Miller, What’s Wrong With This Picture?, The Nation, January 7, 2002 (observing that parent corporations have encouraged their news outlets to push products of the parent company while on-air and, additionally, promote the programming of other non-news outlets that the parent corporation owns. As a example, Miller states that shortly after Viacom purchased CBS and CBS News, the Early Show was instructed to devote large segments of its show to recapping the events of the most recent episode of Survivor—a CBS/Viacom product.).

50. See Matthew A. Melone, Citizens United and Corporate Political Speech: Did the Supreme Court Enhance Political Discourse or Invite Corruption?, 60 DePaul L. Rev. 29, 32 (2010) (noting that many states initially attempted to achieve fairness in elections by prohibiting corporate funding in the early nineteenth century).

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tion came following the Watergate scandal.51 The scandal energized reform efforts, and renewed calls to regulate money in politics.52 The result was the creation of an “intricate statutory scheme adopted … to regulate federal election campaigns includ[ing] restricWhereas political candidates were tions on political contributions and expendiprohibited from using certain tures that apply broadly to all phases of and 53 all participants in the election process.” funds to promote their candidacy The Watergate reforms took particular on-air, press outlets were account of the institutional press and their function in disseminating political informapermitted to make endorsements tion. As the Supreme Court recognized in its or commentate on a candidate. review of the law, “The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”54 Institutional press outlets were exempt from portions of the law relating to expenditures, thus permitting news outlets to editorialize on political candidates without running afoul of the new regulations.55 Whereas political candidates were prohibited from using certain funds to promote their candidacy on-air, press outlets were permitted to make endorsements or commentate on a political candidate.56

B. McCain-Feingold: A Renewed Push For Fair Elections

In 2002, after a five year legislative battle,57 Congress passed the “Bipartisan Campaign Reform Act of 2002”—better know as McCain-Feingold.58 The Act was the first made campaign finance change since the post-Watergate reforms, and sought to fill in gaps that the previous legislation had left open.59 The Act’s principle target was “soft money”60 —contributions made to influence state and local elections, which were left unregulated by previous campaign finance legislation.61 A separate provision of the 51. Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The Supreme Court decided a challenge to provisions of the law in Buckley v. Valeo, 424 U.S. 1 (1976). The Court upheld the Act’s contribution provisions, but held that the expenditure provisions of the Act violated the first amendment. Id. at 11-59.

52. Anthony Corrado, Money and Politics: A History of Federal Campaign Finance Law, in The New C a mpaign F inance S ourcebook 22-27 (Anthony Corrado et al. eds., 2005).

53. Buckley v. Valeo, 424 U.S. 1, 12-13 (1976).

54. Buckley v. Valeo, 424 U.S. 1, 19 (1976).

55. See Buckley v. Valeo, 424 U.S. 1, 19 n.19 (1976) (stating “Institutional press facilities owned or controlled by candidates or political parties are also subject to expenditure limits under the Act.”); see also Buckley v. Valeo, 424 U.S. 1, 51 n.56 (1976) (noting “The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties.”).

56. Id. 57. See M elissa M. S mith, G lenda C. Willia ms , and L arry Powell , C a mpaign F ina nce R eform: The Political Shell G ame 6-7 (2010) (describing multiple versions of the bill and several votes in both houses of Congress before the final version was passed).

58. McCain-Feingold Act, Pub. L. No. 107-155, 116 Stat. 81 (2002).

59. Smith, supra note 9, at 6-7.

60. McCain-Feingold Act, Sec. 101.

61. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 122-23 (2003) overruled by Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010); See also John M. de Figueiredo & Elizabeth Garrett, Paying for Politics, 78 S. Cal. L. Rev. 591, 598-99 (2005) (stating “The soft money loophole allowed

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Act prohibited corporations and labor unions from using general treasury funds for advertisements in support of or in opposition to federal candidates.62 Other provisions regulated the sale of political advertising; modified contribution level limits; and enacted new disclosure requirements.63 McCain-Feingold, like the Watergate reforms, made special exceptions for media outlets. While the Act prohibited “electioneering communication”64 by a corporation or union in the lead up to a federal election, the Act specifically exempted media corporations from the restriction.65 The exemption permitted any “communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate” and, additionally, allowed “a communication which constitutes a candidate debate or forum conducted pursuant to regulations adopted by the Commission, or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum.”66 As with the Watergate reforms, press outlets post McCainFeingold were granted a distinct position to editorialize on political candidates. Additionally, with McCain-Feingold’s ban on electioneering communication, press outlets were now granted a unique ability compared other corporations or labor unions.67 While a typical corporation was prohibited from engaging in electioneering communication in the lead up to an election, press outlets could do so—and do so in an unlimited fashion.

III. The Supreme C ourt and Mc Cain-Feingold: From Mc C onnell to Citizens United

T

he Supreme Court’s history in reviewing campaign finance regulation is contentious, the entirety of which is too lengthy for substantial discussion here. This Article proceeds by giving primary attention to the cases interpreting McCain-Feingold, and then provides a discussion on the Court’s several opinions in Citizens United.

A. McConnell v. FEC: The Whip Makes His Case In 2003—only a little more than a year after the McCain-Feingold campaign finance reform changes were enacted—Senate Majority Whip Mitch McConnell, a long-time opponent of campaign finance regulations, reached the Supreme Court with a First Amendment challenge to the changes.68 He was joined by, among others, Congressman Ron Paul, the Republican political parties to raise unlimited amounts of money from individuals and organizations to be used to support nonfederal election activities, build infrastructure, and fund voter mobilization programs. Soft money was also available to fund political advertisements that did not expressly advocate the election or defeat of a particular candidate when parties produced such ads independently of any candidate’s campaign. In addition, corporations, labor unions, and other groups could use their general treasuries directly to fund issue advertisements developed independently of any candidate or federal party. Use of soft money by political parties exploded in 1996, and in the 2000 election it was a primary focus of party fundraising.”).

62. McCain-Feingold Act, Sec. 203-04. This was the provision eventually found unconstitutional in Citizens United. See infra Part III. 63. McCain-Feingold Act, Sec. 301-19.

64. Defined as “any broadcast, cable, or satellite communication which … refers to a clearly identified candidate for Federal office; is made within [sixty days of a primary election, or thirty days of a primary election] … . McCain-Feingold Act, Sec. 201 (a) codified as 2 U.S.C. § 434 (f)(3)(A) (2006).

65. McCain-Feingold Act, Sec. 201 (a) codified as 2 U.S.C. § 434 (f)(3)(B) (2006).

66. Id. at § 434 (f)(3)(B)(i, iii).

67. Korman, supra note 4, at 5.

68. McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) overruled by Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

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National Committee, the National Rifle Association, the Chamber of Commerce, the American Civil Liberties Union, and the AFL-CIO—all challenging various portions of the bill.69 A fractured Court—resulting in eight separate opinions, including multiple opinions by two justices—analyzed the challenged sections of the bill, upholding several and finding others unconstitutional.70 Notably, the Court held the soft money restrictions on political parties and candidates were constitutional,71 and the prohibitions on electioneering communication by corporations and unions from general treasury funds in the prescribed time period were also constitutional.72

B. FEC v. Wisconsin Right to Life, Inc.: The Issue Advocacy Exception Four years following the decision in McConnell, the Court again considered McCain-Feingold’s ban on electioneering communication.73 The case presented an as-applied challenge to the law brought by a nonprofit advocacy organization, Wisconsin Right to Life.74 The addition of Chief Justice Roberts and Justice Alito to the Court led many to speculate on the future of campaign finance regulation.75 Sure enough, the two were the deciding votes for upholding the law.76 Writing only for himself and Justice Alito, Chief Justice Roberts wrote what became the controlling opinion in the case.77 Roberts treated McConnell’s precedent as binding, and therefore upheld the restrictions on electioneering communication generally.78 However, Roberts further considered the as-applied challenge brought by Wisconsin Right to Life.79 In Roberts’s view, the ban on issue advocacy by a non-profit corporation enacted

by McCain-Feingold violated the First Amendment.80 Specifically, Roberts referenced the Court’s decision in Buckley as standing for the proposition that the government may regulate election communication that “prevent[s] corruption [or] the appearance of corruption.”81 According to Roberts, the non-profit issue advocacy by Wisconsin Right to Life did not raise this concern.82 As Roberts’ opinion stated, “[i]ssue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL’s ads with contributions is to ignore their value as political speech.”83 69. Id. 70. Id. 71. Id. at 188-89.

72. Id. at 194.

73. Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007).

74. Id. at 456-57.

75. Adam Liptak, Alito Vote May Be Decisive In Marquee Cases This Term, The New York Times , February 1, 2006 available at http://query.nytimes.com/gst/fullpage.html?res=9A06EEDC1F3FF932A35 751C0A9609C8B63&pagewanted=all; see also Robert Barnes, Roberts Court Moves Right, But With a Measured Step, The Washington Post, April 20, 2007 available at http://www.washingtonpost. com/wp-dyn/content/article/2007/04/19/AR2007041902675.html (summarizing Court’s decision on an abortion case during Justice Alito’s first term and speculating what the addition of the two justices may mean for the future of important precedent, including campaign finance laws).

76. Wisconsin Right To Life, 551 U.S. 476-82 (opinion of Roberts, C.J., and Alito, J.).

77. Id. 78. Id. 79. Id. at 477-78.

80. Id. 81. Id. at 478 (quoting Buckley v. Valeo, 424 U.S. 1, 45 (1976)).

82. Id. 83. Id. at 478-79. Three Justices would have went further, and found the restrictions on electioneering

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C. Citizens United: Overruling Precedent In 2009, the Court considered a challenge by a non-profit membership corporation, Citizens United, which sought to release a 90-minute documentary critical of then Senator and presidential candidate Hillary Clinton.84 Originally, the Court was set only to consider an as-applied challenge by Citizens United to the documentary.85 However, after hearing oral arguments on the as-applied challenge, the Court ordered re-argument and supplemental briefing to answer whether the Court should overrule McConnell and find facially unconstitutional McCain-Feingold’s ban on electioneering communication.86

1. M ajority O pinion: Justice K ennedy Rejecting the government’s position that the case could still be decided on narrow grounds, the majority in Citizens United found that a facial consideration of the law was appropriate.87 The three members of the Court who voted to find the law facially unconstitutional in Wisconsin Right To Life maintained that position, and were joined by Chief Justice Roberts and Justice Alito, who now took the position that the First Amendment required the striking down of the ban on electioneering communication in its entirety.88 The majority based its holding on the nature of the restriction. As Justice Kennedy’s opinion stated “The law before us is an outright ban, backed by criminal sanctions … [t]hese prohibitions are classic examples of censorship.”89 Justice Kennedy made clear that the fact that the speech originated from a corporation did not make it any less worthy of First Amendment protection.90 Citing to the Court’s opinion in First Nat. Bank of Boston v. Bellotti,91 Justice Kennedy stated “political speech does not lose First Amend-

communication facially unconstitutional, but joined in the judgment striking down the law as-applied to non-profit issue advocacy groups. Id. at 483-504 (Opinion of Scalia, J., joined by Kennedy, J., and Thomas, J.).

84. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 886-87 (2010). The documentary would be available as video-on-demand, meaning the subscribers of particular cable packages would be able to watch the documentary at any time at no additional charge. Id. at 887. Citizens United additionally planned to advertise the documentary by running commercials containing clips of the film on broadcast and cable television. Id. 85. See Brief for Appellant, Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, at i, available at 2009 WL 61467 (describing question presented as “[w]hether the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) can constitutionally be applied to a feature-length documentary film about a political candidate funded almost exclusively through noncorporate donations and made available to digital cable subscribers through Video On Demand.”).

86. Citizens United v. Fed. Election Comm’n, 129 S. Ct. 2893 (2009) (ordering re-argument and supplemental briefing).

87. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 896 (2010).

88. Id. at 913.

89. Id. at 897. Justice Kennedy included several examples of advocacy that would fall within the restrictions of the law, “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech.” Id. 90. Id. at 899. Nor did Justice Kennedy find persuasive the government’s argument that a corporation could form a political action committee and speak through the committee. Id. at 897 (noting burdensome nature of forming a political action committee).

91. 435 U.S. 765 (1978).

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ment protection ‘simply because its source is a corporation.’”92 Justice Kennedy additionally invoked the example of media corporations in dismissing two of the government’s principle arguments for upholding the ban on electioneering communications. First, Justice Kennedy dismissed the government’s reliance on the antidistortion rationale, a principle recognized by the Court in Austin v. Michigan Chamber of Commerce.93 The antidistortion rationale holds that a government maintains a compelling interest “in preventing ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have According to Justice Kennedy, if little or no correlation to the public’s supthe government’s reasoning under port for the corporation’s political ideas.’”94 Justice Kennedy dismissed this as a justifithe antidistortion rational were to cation for the ban on electioneering commuhold, the government could limit nication, stating the effect of the principle would have “dangerous, and unacceptable, the speech of press outlets simply consequence[s]” for media corporations.95 because of their corporate form.

Namely, Justice Kennedy recognized that most, if not all, media outlets today are corporations.96 According to Justice Kennedy, if the government’s reasoning under the antidistortion rational were to hold, the government could limit the speech of these press outlets simply because of their corporate form.97 While Justice Kennedy recognized that press entities were currently exempt from such restrictions under existing law, he maintained there was no existing “precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.”98 Secondly, Justice Kennedy dismissed the government’s argument that the ban on electioneering communication protected the shareholders of the corporation from their profits being used to fund political speech.99 On this point, Justice Kennedy again invoked the example of media corporations, noting that this reasoning would “allow the Government to ban the political speech even of media corporations … Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses … Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.”100 92. Citizens United, 130 S. Ct. at 900 (quoting Bellotti, 435 U.S. at 783).

93. 494 U.S. 652 (1990) overruled by Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

94. Citizens United, 130 S. Ct. at 903 (quoting Austin, 494 U.S. at 660).

95. Id. at 905.

96. Id. 97. Id. 98. Id. Justice Kennedy additionally noted the change in media ownership, and the methods by which media is distributed in the modern era. He indicated his belief that the press exemption contained in McCain-Feingold resulted in unfairness to corporations who did not own media outlets. Id. at 906.

Justice Kennedy was trouble that the exemption allowed large corporations with varying interest, who also happened to own a media outlet, to take advantage of the exemption by using their media outlets to speak on matters that advance their overall corporate interests, while at the same time denying the same ability to speak to corporations that do not control an established media outlet. Id. 99. Id. at 911.

100. Id.

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Lastly, Justice Kennedy confronted the decision’s potential effect on judicial elections.101 Specifically, the Court discussed its prior decision in Caperton v. A.T. Massey Coal Co.102— which required judicial recusal “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”103 Litigants in Citizens United argued that Caperton required the Court to uphold the electioneering communication restrictions in McCain-Feingold.104 The Court dismissed this argument.

The Citizens United Court reasoned that Caperton ‘s holding was limited to judicial recusal.

It did not follow, the Court held, that the government could ban political speech ex ante in order to prevent the risk of judicial recusal ex post.105 However, the Court did not further indicate the application—or lack thereof—the decision would have on future judicial elections.

2. C oncurring O pinion: C hief Justice Roberts Chief Justice Roberts, along with Justice Alito, joined the majority opinion in full, but wrote separately to address the issue of stare decisis.106 Although noting that the principles of deference to prior decisions and constitutional avoidance were appropriate goals for the Court to pursue, Chief Justice Roberts viewed the case as presenting an unavoidable constitutional question that required the Court to overrule its prior decision in Austin.107 Chief Justice Roberts additionally made reference to media corporations, and the consequence of Austin’s holding that corporate political speech is deemed less protected than speech originating from natural persons.108 His opinion, like Justice Kennedy’s, took little solace in the fact that media corporations were currently exempt from these restrictions.109 Rather, Chief Justice Roberts wrote off the media exemption as “simply a matter of legislative grace” and maintained it made no constitutional difference “that the law currently grants a favored position to media corporations” given the “danger[s] inherent in accepting a theory that would allow government restrictions on their political speech.”110

3. C oncurring O pinion: Justice S calia Justice Scalia, joined by Justices Thomas and Alito, joined the Courts opinion but wrote to address Justice Stevens’ dissent—specifically on the issue of the original understanding of the First Amendment.111 Justice Scalia maintained that, as a historic matter, there was no evidence to suggest that corporations were not entitled to free speech protections.112 Justice Scalia additionally engaged in an analysis of the First Amendment’s Press Clause in support of his argument that corporations, like natural persons, deserved speech rights.113 Specifically, he stated that the Press Clause has always been understood to provide protections to publishers—many of whom are for-profit businesses.114 Justice Scalia stated “the no 101. Id. at 910.

102. 556 U.S. 868 (2009).

103. Id. at 884.

104. Amicus brief for Justice at Stake at 2 Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

105. Citizens United, 130 S.Ct. at 910.

106. Citizens United, 130 S.Ct. at 917 (Roberts, C.J., concurring).

107. Id. at 918 (Roberts, C.J., concurring).

108. Id. at 923 (Roberts, C.J., concurring).

109. Id. 110. Id. 111. Id. at 924 (Scalia, J., concurring).

112. Id. 113. Id. at 927 (Scalia, J., concurring).

114. Id.

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tion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.”115

4. D issenting O pinion: Justice S tevens Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor, concurred in part and dissented in part.116 Justice Stevens rebutted the majority’s premise that the government was prohibited by the Constitution from making distinctions on speakers based on their corporate identity.117 In his view, Congress had historically been permitted, for more than 100 years, to regulate the use of corporate funds in the electoral process.118 Given the corrosive nature of corporate money in politics, and the dangers unlimited electioneering communication might produce for democracy, Justice Stevens would have held that the government maintains a compelling interest in regulating such speech.119 Justice Stevens further addressed the majority’s concern for press outlets. His opinion stated that McCain-Feingold “exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions, in recognition of the unique role played by the institutional press in sustaining public debate.”120 In Justice Stevens’ view, the press exemption provided ample safeguards to ensure that the voices of neutral press agencies were not compromised.121 This made the majority’s striking down of the entire statute, rather than considering an as-applied challenge, inappropriate.122 Lastly, Justice Stevens, heavily relied upon Caperton in support of his argument that the government may enact reasonable restrictions on political expenditures to prevent corruption or the appearance of corruption. In particular, Justice Stevens stated “In Caperton … we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption.”123 Justice Stevens reasoned that Caperton made clear that political contributions, as well as electioneering communications, had the potential of corrupting the political process and, in the case of judicial races, ultimately the justice system.124 He concluded: The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps ‘Caperton motions’ will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems (internal citations omitted).125

115. Id. at 928 (Scalia, J., concurring).

116. Id. at 929 (Stevens, J., concurring in part, dissenting in part). The concurrence portion of Justice Stevens’ opinion was limited to his joining Part IV of the majority opinion, which upheld the disclosure requirements of McCain-Feingold. Id. at 931. Justice Thomas also wrote separately to address the disclosure requirements of McCain-Feingold, and stated that it was his view that the disclosure requirements violated the First Amendment. Id. at 979-80.

117. Id. at 930 (Stevens, J., concurring in part, dissenting in part).

118. Id. (citing Tillman Act of 1907, ch. 420, 34 Stat. 864).

119. Id. at 929-30, 946-47 (Stevens, J., concurring in part, dissenting in part).

120. Id. at 943 (Stevens, J., concurring in part, dissenting in part).

121. Id. 122. Id. Justice Stevens additionally maintained that corporations could still speak by establishing a political action committee and raising funds through the committee in support of its speech. Id. This rebutted the majority’s claim that the restrictions in the law amounted to a total ban on speech. Id. 123. Id. at 967.

124. Id. 125. Id. at 968.

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IV. The C onsequences Of Citizens United For Journalistic Objectivity

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he Supreme Court’s decision in Citizens United presents two primary concerns for journalistic objectivity. On one end of the spectrum, the press now has a less powerful voice because of the abrogation of the press exemption. On the other end of the spectrum, the new right granted to corporate speakers post-Citizens United raises questions of who controls the message of news distributors.

A. The End of the Media Exception: The Press is No Longer Special Prior to Citizens United, campaign finance laws recognized the inherent differences between media outlets and other for-profit corporations.126 Namely, media outlets could editorialize on political candidates in the lead up to an election without restriction.127 Other corporations were restricted in the manner in which they could use funds to make similar statements and broadcasts.128 The exemption can be seen as being rooted in the First Amendment Press Clause which, by its very nature, recognizes the unique interest the institutional press has in society.129 The result of this distinction granted media outlets a unique position.130 They were able to speak when others were not—creating a special place for media in electoral politics.131 It served Congress’s goal in limiting the amount of money influencing politics, while at the same time recognizing the important role that press outlets play in the electoral process.

Such a distinctions is eviscerated following Citizens United. All corporations now have the same ability to speak on election matters—including in support of a particular candidate—and spend an unlimited amount of funds to do so.132 A corporation whose primary goal is profit through manufacturing now has the same ability as a traditional news outlet to editorialize on matters of political concern.133 126. McCain-Feingold Act, Sec. 434 (f)(3)(B)(i, iii); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 943 (2010) (Stevens, J., concurring in part, dissenting in part) (stating that McCain-Feingold enacted the press exemption while taking into account “the unique role played by the institutional press in sustaining public debate”).

127. Id. 128. McCain-Feingold Act, Sec. 201 (a).

129. It is true that the Court has refused to take an expansive view of the Press Clause, instead concluding that the Free Speech Clause provides ample protections for press and non-press alike. David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455, 458 (1983). Indeed, the Citizens United majority stated “’We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 905 (2010) (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (Scalia, J., dissenting). Still, it should seem obvious that the inclusion of the Press Clause in the First Amendment is an indication of the Founders respect for press agencies. See Justice Potter Stewart, “Or of the Press”, 26 Hastings L.J. 631, 635 (1975) (stating “The publishing business is, in short, the only organized private business that is given explicit constitutional protection.”). Although this does not answer the question of whether the campaign finance structure in McCain-Feingold was valid, it at least lends support for a statutory distinction between press and non-press outlets.

130. Seth Korman, Citizens United and the Press: Two Distinct Implications, 37 Rutgers L. Rec. 1, 5 (2010).

131. Id. 132. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 899 (2010).

133. Justice Kennedy’s concern over who benefits from the press exemption is certainly warranted. As he pointed out in his majority opinion in Citizens United, most media outlets today are owned by corporations who maintain interests in other commercial endeavors. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 906 (2010). This had the potential of allowing a corporation to establish as one of its subsidiaries a media outlet, solely for the purpose of advancing a political position that aligned with their other business

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The consequences of this change are not yet known. However, the end of the press exemption is problematic. The exemption played a vital role in furthering Congress’s interest in maintaining fair elections, while ensuring the press received a special ability to editorialize on election matters. By removing While it is doubtless that these this distinction, the Court in Citizens United corporations play an important changed the face of modern political inforrole in the lives of Americans, mation. Shell Oil now has the same right to speak as the Washington Post; Sony the it should be uncontroversial to say same ability as National Public Radio; and the Teamsters Union the same voice as CNN. that they contribute to the political While it is doubtless that these corporations process in a much different, and play an important role in the lives of Amerimore self-interested way, than cans, it should also be uncontroversial to say established media outlets. that they contribute to the political process in a much different, and more self-interested way, than established media outlets.

B. Corporate Control of Media: Can the Press Remain Objective?

The consequence of the Court’s decision in Citizens United has implications for any corporation seeking to enter the political debate in support of a candidate for office. Of critical importance is the effect the decision could have on media corporations.

Media ownership is currently dominated by corporate control.134 Gone are the days of family owned newspapers. Today, large corporations own the majority of news outlets.135 Moreover, many of the corporations that maintain interest in press outlets have varying interests in other for-profit businesses.136 While many have noted the potential conflict in for-profit corporations maintaining media outlets,137 few have analyzed the effect of that reality post-Citizens United. This article raises a particular concern in the area of corporate media ownership in the post-Citizens United era—journalistic objectivity.

Citizens United granted corporations the ability to directly support candidates for office in the lead up to an election through the use of electioneering communication.138 Although it was always true that campaign finance restrictions permitted press entities to support candidate’s political positions,139 it was equally true that the parent corporations of media interests. Id. A more substantive discussion on media ownership, and the potential for corruptive practices by media outlets owned by corporations, is found below. Infra Part IV B. However, on the issue of the press exemption, it is important to address Justice Kennedy’s concern. Justice Kennedy is right to point out the potential for scrupulous corporations to take advantage of the press exemption. But, the majority’s remedy of removing any distinction between institutional press outlets and corporations does not follow the logic of that concern, nor remedy it. In fact, removing any distinction between press and non-press only amplifies the concern, as it permits corporate interests to directly influence the political process without restriction.

134. See supra Part I C. 135. Smith, supra note 9, at 262 (noting increased ownership of press outlets by a few wealthy corporations; see also supra Part I C. 136. See supra Part I C. 137. See Smith, supra note 9, at 262; Bagdikian, supra note 35, at 4 (analyzing increased control of media by corporations); Ted Turner, Monopoly or Democracy? The Washington Post, May 30, 2003 (noting that the further control of media outlets by a few corporations has consequences for idea exchange).

138. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 899 (2010).

139. See supra Part II (discussing the press exemption in modern campaign finance laws).

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companies were subject to the restrictions of campaign finance regulations. These restrictions, namely those contained in McCain-Feingold, prohibited non-media corporations from directly supporting candidates in the restricted time period before an election.140 Following Citizens United, the parent companies of media corporations may now enter the political realm in a way they were previously prohibited. Should they choose to exercise this new power at increased levels, it will present difficulties in trusting media outlets owned by these parent corporations, and call into question their objectivity.

Suppose, for example, a manufacturing corporation that owns a national television network chooses to support a particular candidate in the hopes that the candidate’s election will serve their business interests. They decide to purchase advertisements on their own and on other networks in support of that candidate. It is not hard to imagine that the corporation’s interest might influence the press outlet’s coverage of that candidate. Nor is it inconceivable to presume that the public will recognize this conflict, leading to a diminished confidence in press outlets.

Similar conflicts regarding news programming decisions have been recognized with regard to other business interests.141 Post-Citizens United, political support for a candidate is yet another business decision. If it is in a corporation’s best interest, they are likely to support a candidate.142 One can expect that if they do, they will utilize the tools at their disposal—including press outlets they own—to achieve an economic end. The consequence is the erosion of public confidence in a press they have traditionally understood to be objective and truth-seeking, and not profit motivated.

C. The Dual Effect of Citizens United: Would the Pentagon Papers Happen Today?

The release and publication of the Pentagon Papers was a high-water mark in modern journalism.143 The Pentagon Papers case demonstrates the need for an objective and established press, not beholden to any political party or office. Further, the case describes a model of independent, advocacy driven journalism that allowed important challenges to government authority come to light.144 The success in communicating this information to the American people resulted from two conditions. First, both The New York Time and the The Washington Post were trusted as established and objective news sources. While both papers were certainly not immune from criticism and charges of bias, it is fair to say that they were by and large trusted to report honestly on issues of importance.145 This established credibility built by the papers created the environment necessary to permit the release of information that was all at once incredible and devastating—your government has lied to you, and fellow citizens have died as a result.

140. McCain-Feingold Act, Sec. 201 (a) codified as 2 U.S.C. § 434 (f)(3)(A) (2006) (defining electioneering communication as “any broadcast, cable, or satellite communication which … refers to a clearly identified candidate for Federal office; is made within [sixty days of a primary election, or thirty days of a primary election] …”).

141. See Mark Crispin Miller, What’s Wrong With This Picture?, The Nation, January 7, 2002 (stating that parent corporations often make programming decisions based on their broader business interests).

142. See Larry Howell, Once Upon A Time in the West: Citizens United, Caperton, and the War of the Copper Kings, 73 Mont. L. Rev. 25, 29 (2012) (“The sole purpose of corporate campaign expenditures, given the self-interested nature of corporations, is to support candidates perceived as sympathetic to the financial or political interests of the corporation.”).

143. See supra Part I B. 144. See supra Part I B. 145. See supra Part I B.

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Second, both papers were independent, and not beholden to a larger organization.

While the Times and the Post were themselves corporations, and therefore had corporate interests to be concerned with, theira primary business was news.146 These two conditions have been altered in recent years, both for the Times and the Post as well as the majority of news outlets across the country. Although it would be a mistake to suggest that the Court’s holding in Citizens United created this change, it is correct to say that the decision exacerbated it. The press is now a less trusted as an objective source of information.147 With the advent of new media technology, the established press is further diminished as a critical outlet for news. The elimination of the press’s unique voice in electoral politics that follows after the Court’s decision in Citizens United, lessens the authority of established media further. Similarly, the ownership of media corporations by non-media parent companies has changed the nature by which reporters make publication decisions.148 The decision in Citizens United continues this trend by making it possible for the non-media parent companies of media corporations to enter the political debate in new ways, while at the same time dictating the publication decisions of their media subsidiaries.149 With the combination of these changes, it is important to consider whether important journalistic decisions, like the publication of the Pentagon Papers, would have occurred in the modern era of journalism. While this article does not suggest a definitive answer to that question, it is clear that the decision in Citizens United is, at the very least, likely to negatively impact the two conditions that made the release of the Papers successful: Press outlets that are trusted by the public, and objective journalists free from constraint.

V. The C onsequences Of Citizens United For The C over age Of Judicial E lections

M

edia coverage of judicial races has increased substantially in recent years.150 Judicial elections have become bitter partisan contests, complete with all the salacious details of a political fight.151 Therefore, it is necessary to determine what effect Citizens United might have on judicial elections going forward.

The Court in Citizens United briefly addressed the topic of judicial elections.152 The Court cast aside claims that a ban on electioneering communication should stand because of the effect political contributions have on judicial races.153 The dissent, on the contrary, placed great emphasis on the state of modern judicial elections.154 In Justice Stevens view, allowing electioneering communication by a corporation in judicial races presents an unacceptable

146. See supra Part I B. 147. Jim A. K uypers , P ress Bias and Politics How the M edia F r a me C ontroversial I ssues 200 (2002).

148. See supra Part I C. 149. See supra Part IV B. 150. See Stephen J. Markman, An Interpretivist Judge and the Media, 32 Harv. J.L. & Pub. Pol’y 149, 151 (2009) (recognizing that a “reality of the state judicial process is that the media plays a critical role in transmitting … communications from judges to the people”).

151. Elizabeth K. Lamphier, Justice Run Amok: Big Money, Partisanship, and State Judiciaries, 2011 Mich.

St. L. Rev. 1327, 1328-31 (2011). Lamphier recounts two particular instances of political partisanship on state judiciaries. In Michigan, a Supreme Court justice resigned her post in an attempt to shift the political composition of the court. In Wisconsin, a newly elected Supreme Court justice came under fire for a campaign advertisements that falsely stated that his opponent had freed a child rapist. Id. 152. Citizens United, 130 S.Ct. at 910.

153. Id. 154. Id. at 967 (Stevens, J., concurring in part, dissenting in part).

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risk of corruption or—at the very least—the appearance of corruption.155 What this means for the press’ coverage of judicial elections is less clear. However, it is apparent that the very same press concerns post-Citizens United that apply to other political contests, apply equally to judicial races.156 The press no longer has a unique platform to speak on judicial races, and instead must compete with partisan interest groups who seek to elect judges that fit their particular policy preferences. Additionally, a press that lacks objectivity, or appears to lack objectivity, has a negative impact on the public’s interest in obtaining information needed to make an informed electoral choice in judicial races.

Moreover, the appearance of corruption in judicial races can be said to have further reaching effects than other political contests. The corrupting influence imposed by corporate spending in judicial races are likely to affect future litigants that appear before the elected judge.157 This concern is obvious after the Supreme Court’s decision in Caperton—which held that, at least in some circumstances, a judge must recuse himself because he has previously garnered political support from one of the litigants appearing before him.158 Despite this, the majority in Citizens United was willing to cast aside the potential encroachments the decision may have on judicial objectivity.

VI. C onclusion

T

he Supreme Court’s decision in Citizens United has consequences that go beyond the campaign finance area. Namely, the decision has the potential to adversely affect the manner in which politics are covered by the media. The end of the press exemption and the increased ability for corporations owning media outlets to enter into electoral politics raises serious concerns over who controls the public debate, and how the public should view the established press.

155. Id. 156. Ofer Raban, Constitutionalizing Corruption: Citizens United, Its Conceptions of Political Corruption, and the Implications for Judicial Elections Campaigns, 46 U.S.F. L. Rev. 359, 376 (2011) (recognizing that post-Citizens United “corporations and unions may have a First Amendment right to spend money from their general treasuries on electioneering communications in support of, or in opposition to, candidates running for judicial office.”).

157. Genelle I. Belmas & Jason M. Shepard, Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment, 58 Drake L. Rev. 709, 710 (2010) (“Judicial elections in which corporate or personal influence is a determining factor in the outcome raise serious concerns about the independence and integrity of the judiciary.”)

158. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

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Challenges of Monetization, Engagement, and Protection of News Organizations’ Online Content

By Christine Katherine Lesicko I ntroduction

I

n the First Amendment of the Constitution of the United States of America, the Congress gave to the people, including news agencies, the right to a free press.1 The framers of the constitution also outlined protections for writings by allowing Congress to “promote the Progress of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”2 Since the early 1800s, and probably before, competing news agencies have been copying each other’s breaking news and delivering it as original reports.3 Ever since that time, the courts have struggled over what protections the press can get for its writings of facts.

News organizations and their content were historically protected by a federal common law doctrine called the “hot news” doctrine, which was developed by the U.S. Supreme Court in 1918 in International News, Inc. v. Associated Press.4 Back in that time, there were many newspapers competing for the “scoop,” so the Court allowed a new tort called the “hot news” tort, which arose out of the misappropriation of facts gathered by a competitor.5 In that case, the Court held that taking news items published by another news source as tips to be investigated and verified independently did not justify relief.6 However, the Court affirmed the district court’s injunction restraining the taking and using of another organization’s news “until its commercial value as news… has passed away.”7 1. U.S. C onst. amend. I. 2. U.S. C onst. art. I, § 8, cl. 8.

3. See Int’l News Serv. v. Associated Press, 248 U.S. 215 (1918).

4. Id. 5. Stephen M. Kramarsky, ‘Hot News’ Tort Against Online Headline Service is Upheld, N.Y. L.J., 2, 5 (col. 1) (2009).

6. INS, 248 U.S. at 245.

7. Id. (quoting Associated Press v. Int’l News Serv., 240 F. 983, 985 (S.D.N.Y. 1917)).

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Besides a misappropriation claim under the “hot news” doctrine, news organizations have been left with few causes of action to protect their work. One avenue that has been explored by some organizations is protection through copyright law. Copyright law is based on a federal statute that preempts state claims.8 Therefore, it has been difficult for news organizations to circumvent the previous precedents that applied before the age of the Internet.

Finally, Congress has held several hearings in the recent past to attempt to come up with solutions to aid the journalism industry in finding a new business model.9 “Hot news” and copyright reform have been at the top of lawmakers’ list of ways to “save” journalism.10 The Associated Press, one of the largest news organizations in the world, has been spearheading efforts to protect its own and its members’ content.11 In addition, a controversial company with a novel business model, Righthaven, attempted to protect its owners’ news organization by acquiring copyright licenses from newspapers and suing copyright infringers.12 Although legal reform might be needed to keep up with rapidly changing technology, those reforms likely will not have enough of an impact on the economics of journalism to allow news organizations to improve revenues without changing their current business models. News organizations must reform their business models in order to offer the news content consumers need and want at prices that work for both the consumers and the producers. News organizations must also reform their business models to improve the outlook of the news industry.

Newspapers have been laying off journalists and staffers in droves for over a decade.

More than 25 percent of full-time journalists have lost their jobs since 2001.13 In addition, the combined losses for both circulation and advertising revenue have shrunk 43% since 2001.14 As technologies continue to change, engagement and concentration on niche and hyper-local content are the best options for news organizations to get consumers interested in paying for content.

This topic is important to journalists and policy makers because with the advent of online news and the lack of a strong business model for that platform, new ideas for a way to monetize a news organization’s online content have the potential to spur the industry and increase the likelihood that news organizations can afford to continue to employ qualified journalists and editors to produce both relevant and accurate news stories.

In the following sections, this article will address several issues related to the news industry, its history and the changes that the Internet has brought about. First, this article will address the history of legal protections available and unavailable for the news industry and the relatively recent change in content from entirely print to a varying mix of 8. 17 U.S.C. § 501 (1976).

9. Bruce W. Sanford, et al., Saving Journalism with Copyright Reform and the Doctrine of Hot News, C omm . L aw. (Dec. 26, 2009), at 9. The Supreme Court eliminated federal common law in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

10. Sanford, supra note 9, at 9.

11. The Associated Press has an entire section of its website devoted to the protection of its intellectual property rights, The Associated Press, Intellectual Property, http://www.ap.org/company/Intellectual-Property (last visited Apr. 16, 2012).

12. See Righthaven Lawsuits, http://www.righthavenlawsuits.com/ (last visited Apr. 16, 2012).

13. Decline in newsroom jobs slows, ASNE News Now Ideas Summit, Apr. 11, 2010, http://asne.org/annual_conference/conference_news/articleid/763/decline-in-newsroom-jobs-slows.aspx.

14. The State of the News Media 2012, The Pew Research Center’s Project for Excellence in Journalism, http://stateofthemedia.org/.

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print and online. Then, it will discuss the current state of the news industry and the laws that apply and those that don’t apply to online content. Finally, this article will address both legal and nonlegal options the news industry, scholars, and the legal community have suggested to help with news organizations’ struggles in a changing media landscape and troubled economy.

Historical P erspectives: 1800 s - 1995 The “Hot News” Doctrine In the middle of the 19th century, before the telegraph and news cooperatives such as The Associated Press (“AP”), newspapers were sent through the mail.15 During that time, news was thought by most to be in the public domain, and news editors routinely used stories from other papers in their own publications.16 Then, the telegraph was invented, and Victoria Smith Ekstrand writes, “[f]ollowing the Civil War, the growth and consolidation of the telegraph industry encouraged more newspapers to use telegraphed news and to deliver their news in smaller, continuously updated stories.”17 At this point, news became a commodity.18 Several things, other than the invention of the telegraph, changed during this time known as the Progressive Era.19 During the Progressive Era, the government became more supportive of big-business interests.20 According to Ekstrand, because of this support, contributions of the progressive era included: (1) The Supreme Court’s recognition of businesses as “individuals” with due process rights to protect tangible property;21 (2) the Court’s role in the interpretation of antitrust legislation designed to regulate business competition;22 and

15. Victoria S mith E kstr a nd, News P ir acy a nd the Hot News D octrine: O rigins in L aw a nd I mplications for the D igital A ge 16 (2005).

16. Id. See also Barbara Cloud, News: Public Service or Profitable Property, A m . Jour nalism (Spring 1996), at 141.

17. E kstr a nd, supra note 15, at 16. See also M enahem Blondheim , News O ver the Wires: The Tele gr aph a nd the F low of P ublic I nfor mation in A merica , 1844-1897, 75 (1994).

18. E kstr a nd, supra note 15, at 17.

19. Id. at 32. The Progressive Era, which happened between 1890 and 1920, was a time of industrialization, immigration and urbanization throughout the United States. Id. 20. E kstr a nd, supra note 15, at 33.

21. The Fourteenth Amendment, adopted in 1868, “prohibited states from depriving ‘any person of life, liberty, or property’ without due process of law.” Id. (quoting U.S. C onst. amend. XIV, § 1). During the Progressive Era, courts extended the protections of the due process clause to corporations in addition to individuals. Id. Also during this time, the Supreme Court “created and retained a strong emphasis on protecting corporate property rights, both tangible and intangible.” Id. at 34.

22. The Sherman Antitrust Act of 1890 was passed to prevent trusts from causing restraints on trade and reducing competition between businesses. Id. at 34-35. However, after the passage of the Sherman Act, many businesses, including the AP, decided to consolidate in order to form larger corporations, thus reducing competition. Id. at 35. Between 1890 and 1897, the Court followed the common law, which “allowed agreements between corporations to restrict competition but intervened when the effect of the agreement was ‘unreasonable’.” Id. In 1897, the Court ruled that the Sherman Act outlawed both reasonable and unreasonable restrictions on trade. Id. See also United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897) (holding that the railroads’ trust agreement was an illegal trade restriction). Then, in 1911, the Court changed its mind again and held that only unreasonable restrictions on trade were illegal. Id. See also Standard Oil Co. v. U.S., 221 U.S. 1 (1911) and U.S. v. American Tobacco Co., 221 U.S. 106 (1911) (holding both companies’ trusts to be illegal monopolies). These

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These three changes affected the way the Supreme Court decided cases during the early part of the twentieth century.24 In 1918, the U.S. Supreme Court decided the case that introduced the “hot news” doctrine to the country: International News Service, Inc. v. Associated Press.25 The AP, at the time, was a cooperative organization with members representative of around 950 newspapers that were published in all parts of the United States.26 International News Service (“INS”) was a similar company that gathered and sold its news to 400 newspapers throughout the United States.27 The two news agencies were in direct competition with each other to provide their readers with breaking news,28 especially the important news of World War I.29 During that time, the AP had reporters stationed all over Europe who transmitted breaking news stories back to the U.S. via telegraph.30 INS could not transmit stories because it had been banned from using French and English mail and cable lines.31 In order to continue to satisfy its customers’ need for breaking news, INS took bulletins and early editions of AP stories and sold the stories to its member newspapers.32 INS also bribed AP employees to take AP’s news and give it to INS before the news was published.33 The AP brought the suit alleging that INS received early editions and bulletins of AP news and copied news stories directly from those sources to INS members.34 The United States Supreme Court stated that, although the hard news wasn’t protectable by the copyright law of the time, it could be protectable from misappropriation by a rival business.35 The Court then held that there was a quasi property right in news between the two competing news organizations, and it affirmed the injunction that the district court had entered, which gave the AP an exclusive right to its news for the time that it had commercial value as news.36 decisions “reassured early twentieth century businesses that antitrust laws could be enforced without destroying successful businesses.” E kstr a nd, supra note 15, at 35.

23. E kstr a nd, supra note 15, at 35. Unfair competition law was born out of trademark law and most early cases “involved ‘passing off’ or ‘palming off,’ in which one competitor tried to ‘pass off’ the product of another seller by means of similar labeling, packaging, or advertising. Id. at 37.

24. Id. 25. Int’l News Serv. v. Associated Press, 248 U.S. 215, 215 (1918).

26. Id. at 229.

27. Id. at 230.

28. Id. 29. Lewis R. Clayton, District Court Finds AP has ‘Quasi-Property’ Right to News, N.Y.L.J 3, (col. 1) (2009).

30. INS, 248 U.S. at 230.

31. Id. INS was banned from using those lines because it was accused of violating wartime censorship rules. Id. 32. Id. 33. Id. 34. Id. at 231.

35. Id. at 237-238. The Court then delivered its oft-quoted view that “defendant, by its very act, admits that it is taking material that has been acquired by complainant as a result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself to harvest of those who have not sown.” Id. at 239-240.

36. Id. at 245. In their dissents, Justice Holmes and Justice Brandeis argued that there was no property in the news and that the only way for a newspaper to get protection against the theft of news was for the

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Because of the lack of clarity expressed by the Court in allowing for the “hot news” misappropriation tort in INS, the 1900s brought varied interpretations of how far the doctrine applied.37 Throughout the 1920s, there were only two decisions that came out in favor of misappropriation: 38 National Telephone Directory Co. v. Dawson Mfg. Co.39 and Gilmore v. Sammons.40 Despite these two rulings, in most cases courts refused to find misappropriation “because the product at issue had little value, minimal competition, or its use by the defendant failed to harm the plaintiff,”41 Ekstrand explained. However, the doctrine was continued in several cases that alleged misappropriation from the reading of news, rebroadcasts of performances, or descriptions of sports over the radio.42 legislature to create a statute that made that theft a crime. See Int’l News Serv. v. Associated Press, 248 U.S. 215, 248 (1918) (Holmes, J. dissenting) and Int’l News Serv. v. Associated Press, 248 U.S. 215, 264 (1918) (Brandeis, J. dissenting). Justice Brandeis also hinted at a conflict between the majority’s decision and freedom of speech, however, Brandeis did not expand on the issue in his dissent. Int’l News Serv. v. Associated Press, 248 U.S. 215, 264 (1918) (Brandeis, J. dissenting).

37. Id. at 83-84.

38. Id. at 84.

39. 263 S.W. 483 (Mo. Ct. App. 1924). In National Telephone Directory Co., Dawson Manufacturing produced telephone book covers with different advertising than the advertising National Telephone sold and printed on their telephone books. The court, relying on elements of free riding and unfair competition as discussed in INS, found that “the scheme is more than unfair competition; it amounts to an actual appropriation of the plaintiff’s property by the defendants to their own business purposes.” Id. at 484.

40. 269 S.W. 861 (Tex. Civ. App. 1925). In Gilmore, the two parties put out similar trade publications with news of “building and engineering construction work.” Gilmore alleged that Sammons began taking columns written by Gilmore and printing them in his own bulletin under his own name. The court, citing INS, found that the plaintiff should prevail on its misappropriation claim because he possessed a property value in his content as evidenced by the defendant’s conduct in “republishing them for sale in competition with [the plaintiff], and, further, by his vigorous defense of the right to continue such practice.” Id. at 861-63 41. E kstr a nd, supra note 15, at 84-85. See also Crump Co. v. Lindsay, 130 Va. 144 (1921), Hughes v. West Publ’g Co., 225 Ill. App. 58 (1922), and Public Ledger v. N.Y. Times, 275 F. 562 (S.D.N.Y. 1921).

42. Ekstrand, supra note 15, at 85. One of the major cases in which a news organization sued a radio station for misappropriation for reading the news on the air was Associated Press v. KVOS. 9 F.Supp. 279 (W.D. Wash. 1934). In KVOS, the AP alleged that KVOS “has in its radio news broadcasts taken and ‘pirated’ local and general news dispatches… but not until after such news items were published and distributed to the public in regular public editions of the newspapers of [the AP’s] members.” Id. at 284. The AP cited the INS decision in its arguments, however the court held that the INS decision did not grant the AP an “absolute” property right in its news and therefore that the AP “has no property right for any time whatever in the questioned news reports after they are published.” Id. at 286. The court also found that the AP and KVOS were not in direct competition and therefore denied the AP’s claim of misappropriation and unfair competition. Id.

On appeal, the Ninth Circuit reversed the district court’s decision and entered an injunction preventing KVOS from using the AP’s news reports. Associated Press v. KVOS, 80 F.2d 575, 584 (9th Cir. 1935). The Ninth Circuit based its decision on advertising revenues for which the two news organizations competed and on “the speed of the radio’s distribution of news [that] makes the injury… more effective and certain.” Id. at 577, 581.

The United States Supreme Court then reversed the Ninth Circuit’s decision, holding that the district court did not have jurisdiction to hear the case in the first place because the amount in controversy was not sufficiently pled by the plaintiff. KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 (1936). The AP tried to argue that this case was similar to INS, in which no jurisdictional issues were found, however, the Court held that because the issue was never raised, it was never decided. Id. at 279.

Cases, such as KVOS, illustrate the difficulty courts had in interpreting the reach of INS. Ekstrand, supra note 15, at 87.

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Then, in 1938, the Supreme Court eliminated the federal common law, which made the INS decision no longer binding federal law.43 At that point, it was up to the individual states to determine whether they wanted to allow for an INS-like misappropriation tort.44 Once states took over the application of the “hot news” tort, news piracy cases, although still prevalent, were not as common as cases involving sound recordings and cable signals.45 Between the 1940s and 1970s, states struggled with whether misappropriation was still a viable cause of action.46 Then, in 1976, Congress passed a new federal copyright statute that purported to address the issues arising between the old copyright statute and the common-law misappropriation doctrine that had tried to fill in its gaps.47

Copyright Law, Preemption, and Fair Use By 1976, the “hot news” aspect of newspapers and other print media was declining as broadcast’s popularity increased.48 There were far fewer newspapers than there were in the 1800s and early 1900s, and as Andrew Deutsch noted, they “were content to leave breaking ‘hot-news’ to the broadcasters and to provide ‘morning-after’ depth reporting.”49 During that year, Congress adopted the Copyright Act of 1976,50 which made all copyright claims a federal action.

With the Copyright Act, Congress also “adopted a broad ‘preemption’ provision which allowed things not directly covered by the copyright act to continue to fall under state law.”51

43. Sanford et al., supra note 9, at 9.

44. Ekstrand, supra note 15, at 96. Currently, fourteen states recognize a “hot news” misappropriation tort.

Id. 45. Id. at 104.

46. Id. at 95-106. Two cases that had a major effect on the way states interpreted misappropriation were Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964) and Compco Corp. v. Daybright Lighting, Inc., 376 U.S. 234 (1964). These cases are known as Sears/Compco, and they put the issue of constitutionality into state unfair competition law. E kstr a nd, supra note 15, at 96-97. In the Sears/Compco cases, the Supreme Court held that state unfair competition law conflicted with federal patent law.

E kstr a nd, supra note 15, at 97. Later, in Goldstein v. California, 412 U.S. 545 (1973), the Supreme Court narrowed the reach of Sears/Compco and held that states were allowed to enact laws in areas where Congress had not. E kstr a nd, supra note 15, at 102. Goldstein reassured states that they could uphold the misappropriation doctrine. E kstr a nd, supra note 15, at 103.

47. E kstr a nd, supra note 15, at 106.

48. Andrew L. Deutsch, Protecting News in the Digital Era: The Case for a Federalized Hot News Misappropriation Tort, 1003 PLI/Pat 229, Proposal for a Federal Hot News Tort, § I. The Need for a Federal Approach (Apr. 2010).

49. Id. at 230. The Copyright Act of 1976 gave statutory protection against infringement to “original works of authorship fixed in any tangible medium of expression…” 17 U.S.C. § 102 (2006). The emphasis in this act is on originality and to emphasize that, the act goes on to state, “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery…” Id. In order to be considered an original work, the work must be independently created by the author, and it must possess at least some minimal creativity. Melville B. Nimmer & David Nimmer, Nimmer on Copyright §2.01 (2009). Facts, which make up most of the content of news stories, are not copyrightable because they are discovered, not created by the author. Id. 50. 17 U.S.C. § 102 (1976).

51. Id. In the act, Congress said that all state causes of action protecting copyrights fell under the new copyright act and were thus actionable as federal law. Id.

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Multiple cases following the Copyright Act of 1976 held that misappropriation,52 unfair competition,53 and unfair business practices,54 along with other similar claims were preempted.55 However, Congress went on to say in the House Report on Copyright Act, that a misappropriation “hot news” claim was exempted from the act and still fell under state law.56 In response to the Copyright Act, organizations and businesses attempting to protect their works from free riders tried to assert a copyright violation alleging what is known as the “sweat of the brow” theory, 57 which was challenged in Feist Publications v. Rural Telephone Service.58 Ultimately, because listings in a telephone directory require no editorial discretion and lack originality, the U.S. Supreme Court found that Feist’s use of the listings did not constitute infringement.59 Although news organizations are unable to protect facts through copyright law, the specific wording and “expression” used by a journalist can be protected by the act.60 In 1998, the Digital Millennium Copyright Act (“DMCA”)61 was passed in order to address some of the concerns that had risen as the Internet gained in popularity among not only news organizations, but also the public. The provision of the DMCA most relevant in the news context prevents the removal of copyright management information, including “[t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.”62 This definition has been widely interpreted by the courts that have been faced with the issue.

52. See, e.g., Standard and Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704 (2d Cir. 1982); Kregos v. Associated Press, 3 F.3d 656 (2d Circ. 1993), cert. denied, 510 U.S. 1112 (1994); Computer Associates Int’l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Daboub v. Gibbons, 42 F.3d 1434 (9th Cir. 1993).

53. See, e.g., Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998); Ehat v. Tanner, 780 F.2d 876 (10th Cir. 1986).

54. See, e.g., Frontier Grp., Inc. v. Nw. Drafting & Design, Inc., 493 F. Supp. 2d 291 (D. Conn. 2007).

55. Deutch, supra note 96, at 231. Other preempted claims included unjust enrichment and conversion.

Jensen, supra note 100, at 554.

56. Deutch, supra note 96, at 231. The misappropriation cause of action was removed from the statute but left in the House Report. Id. “Because misappropriation is generally viewed as an infringement of the owner’s right to copy and distribute, a misappropriation claim addresses rights ‘equivalent to the rights granted by copyright,” therefore, according to the statute, misappropriation claims such as “hot news” claims are preempted by the Copyright Act of 1976. Id. 57. Sanford, supra note 9, at 8.

58. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). In that case, Feist Publications (“Feist”) contacted several telephone companies in its area requesting to pay for the use of customer information to include in Feist’s telephone directory. Id. at 343. Rural Telephone Service (“Rural”) was the only company to deny Feist the opportunity to license its customers’ information for use in the directory, so Feist opted to use the information without permission. Id. Rural then sued Feist for copyright infringement and the district court held that telephone directories are copyrightable. Id. at 344. The U.S. Supreme Court then took the case and, in dicta, discussed that the essential condition for something to be copyrightable is originality. Id. at 345. The Court went on to state that “[o]riginality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” Id. The Court then said that factual compilations can sometimes be original, but generally only when the author chooses which facts to include and how to arrange those facts. Id. at 348. In addition, the Court mentioned the “sweat of the brow” doctrine, which some courts used in order to allow for copyright protection to those who used their own hard work to find and compile the facts. Id.at 352.

59. Id. at 364.

60. Id. at 348.

61. 17 U.S.C. § 1202(b) (2006).

62. Id. at 1202(b) (2006).

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In IQ Group, LTD. v. Wiesner Publishing, LLC,63 an advertising firm, IQ, initiated an action under the DMCA against another advertising firm, Wiesner, for removing its firm logo and hyperlink from an email advertisement that Wiesner was distributing.64 IQ argued that the logo and hyperlink were The Associated Press discovered copyright management information and by in McClatchey v. Associated Press removing those items, Wiesner violated § 1202(c) of the DMCA.65 The court for the that the DMCA does not allow the fair us that the Copyright Act does District of New Jersey determined that logos and hyperlinks were not copyrightable, fallin regards to news reporting. ing more under trademark law.66 Therefore, the court determined that the information could not be copyright management information under the DMCA.67 This narrow interpretation of the definition of copyright management information is based more on the World Intellectual Property Organization (“WIPO”) Copyright Treaty and the WIPO Performances and Phonograms Treaty than the actual statutory text of the DMCA.68 Other courts have interpreted copyright management information more broadly, finding that copyright symbols, author names and titles fall into that category.69 One such case, Cable v. Agence France Press,70 began when a photographer alleged that Agence France Press violated the DMCA by removing the photographer’s name and website address from a photo he took of the house next to President Barack Obama’s house in the Chicago neighborhood of Hyde Park.71 The court ruled against Agence France Press’ motion for summary judgment, effectively allowing Cable to proceed on a claim for the omission of attribution material.72 While this broad interpretation might seem beneficial to news organizations, the Associated Press discovered in McClatchey v. Associated Press73 that the DMCA does not allow the fair use that the Copyright Act does in regards to news reporting. In that case, McClatchey took a photograph, titled “End of Serenity,” that showed the cloud of smoke that formed after the crash of United Airlines Flight 93 on Sept. 11, 2001, near Shanksville, Pa.74 McClatchey also sold those photographs locally and donated most of the proceeds to a charity and licensed the photo for one-time use to select news organizations.75 In 2002, the Associated Press approached McClatchey to write a piece about her experiences surrounding the photograph.76 The Associated Press photographer took a photo of McClatchey hold 63. 409 F.Supp.2d 587 (D.N.J. 2006).

64. Id. at 587-89.

65. Id. See also 17 U.S.C. 1202(c) (2006).

66. IQ Group, 409 F.Supp.2d at 592.

67. Id. 68. Id. at 594-97.

69. Edward L. Carter, Copyright Ownership of Online News: Cultivating A Transformation Ethos In America’s Emerging Statutory Attribution Right, 16 C omm . L. & Pol’y 161, 184 (Spring 2011).

70. 728 F.Supp.2d 977 (N.D. Ill. 2010).

71. Id. at 978.

72. Carter, supra note 153, at 187-88.

73. 2007 WL 776103 (W.D. Pa. Mar. 9, 2007).

74. Id. 75. Id. 76. Id.

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ing her “End of Serenity” photograph, but also, unbeknownst to McClatchey, cropped the photo to create a reproduction of the “End of Serenity” photo alone.77 The Associated Press photographer then distributed the cropped shot, without McClatchey or her copyright notice.78 The federal district court judge for the Western District of Pennsylvania granted McClatchey’s motion for summary judgment, finding that the Associated Press violated the DMCA by removing the copyright management information from the original photo.79 It is important for news organizations to have their information and web link on their stories and photos so readers and viewers can click back to the original source of the work, which can result in increased readership, advertising revenues and possibly even paid subscriptions. Therefore, best practices would require courts to view the DMCA’s protections broadly, like in Cable, even if news organizations will need to be mindful of leaving others’ identifying information on works they are using.

The Rise of the Internet Age and New Technology

Between 1976 and 1995, misappropriation cases varied considerably in subject matter.80 Most of the cases applying misappropriation were focused on databases and stock listings.81 During that time period, cases involving news were rare.82 Around the time the DMCA was enacted, news organizations’ online products were breaking broadcast’s hold on “hot news.”83 In 1995, National Basketball Association v.

Motorola, Inc. 84 brought the “hot news” doctrine back to life. In that case, the National Basketball Association (“NBA”) sued Motorola Inc. (“Motorola”) for misappropriation regarding the use of Motorola’s SportsTrax85 device.86 The SportsTrax device violated the NBA’s Electronic Media Guidelines.87 The NBA imposed a limit of three updates per quarter on electronic media updates.88 The SportsTrax device displayed the teams, score changes, possession, free-throw bonus, quarte, and time remaining in the quarter.89 The information was updated every two to three minutes during the majority of the game, and more often near the end of the first half and the end of the game.90 The NBA, in addition to the violation of its guidelines, argued that it “own[s] and control[s] the creation and dissemination of information and statistics relating to NBA games,” and therefore Motorola was misappropriating the information under state law.91 77. Id. 78. Id. 79. McClatchey, 2007 WL 776103 at *5-6.

80. E kstr a nd, supra note 15, at 108.

81. Id. 82. Id. at 114.

83. Deutsch, supra note 96, at 231.

84. 105 F.3d 841 (2d Cir. 1997).

85. SportsTrax was a pager that brought scores and statistics from in-progress baseball and basketball games from information gathered by reporters that were watching or listening to the games on television or the radio. Deutsch, supra note 96, at 231.

86. Id. 87. Id. at 232.

88. Id. 89. Motorola, 105 F.3d at 844.

90. Id. 91. Deutsch, supra note 96, at 232. The NBA asserted a total of six claims for relief: (1) misappropriation under state law; (2) false advertising under the Lanham Act (15 U.S.C. 1125(a)); (3) false representation of origin, also under the Lanham Act; (4) unfair competition under state and common law; (5) copyright infringement under federal law; and (6) unlawful interception of communication under the Communications Act of 1934 (47 U.S.C. 605). Motorola, 105 F.3d at 844.

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The court held that the “hot news” doctrine survives, but only in limited circumstances.92 According to the court, a “hot news” claim is limited to cases where: (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.93

Applying those standards to the NBA case, the court found that SportsTrax did not meet the test to be misappropriation because the NBA was unable to show any competitive effect of free riding.94 With the evolution of news from the time of the INS case to the rise of the Internet, content providers have struggled to protect their content through various means. While the “hot news” misappropriation tort seemed like a viable option at the turn of the 20th century, as time and technology progressed, courts struggled with the application of “hot news” and whether news fell under copyright protection. As the Internet brought about new issues for news organizations, including monetization, the industry, Congress, and the courts continue to struggle to figure out where and how news content fits into the law.

The C urrent Crisis: 1995 – P resent Online Challenges for News At around the same time that the courts were deciding the Feist and Motorola cases, journalism was gravitating toward the growing popularity of the Internet. With the introduction of commercial web browsers such as Netscape and Internet Explorer in the mid-1990s, most major print and broadcast news outlets began having a web presence.95 Content on these early web platforms was mainly repurposed content pulled from the organization’s print product.96 However, most websites archived their news, which produced a database of information that was easily accessible to online users.97 This database of archived content was available to users via hyperlinks and search engines, and linking between similar stories over a period of time became simple.98 With the simplicity and space allowances of the web, editors began scooping more traditional print and broadcast news sources by actualizing a 24-hour news cycle where breaking news was published instantly.99 Additionally, producing online news content costs about half as much as delivering a print product, therefore organizations were optimistic about the potential for lower production costs coupled with increased advertising revenue.100 As online news increased in popularity, organizations invested “full throttle” in webbased platforms and never really considered the financial implications and risks.101 Many of those investors believed the most important thing was gaining the biggest market share 92. Motorola, 105 F.3d, at 845.

93. Id. 94. Id. at 853.

95. Ben Scott, A Contemporary History of Digital Journalism, 6 Television & New M edia 89, 93 (2005).

96. Jeff K aye & S tephen Q uinn, F unding Jour nalism in the D igital A ge 24 (2010). Many news organizations still fill their web pages with repurposed content. Scott, supra note 179.

97. Scott, supra note 179, at 93.

98. Id. 99. Id. at 94.

100. Id. 101. Id.

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of readership.102 Without a sustainable product, news organizations traditionally relied mostly on advertising dollars, which led it to function in a natural monopoly.103 Ben Scott wrote, “High barriers to entry, operation in an economy of scale, centralized information production and distribution, and heavy reliance on the advertising revenues drawn to the biggest players have always served as the balancing forces in an otherwise unstable market.”104 With almost no barriers to entry into the online market, organizations found themselves in deep water, unable to charge subscription fees for content and facing slipping revenues from advertising.105 In addition to an open market for competition, news aggregation sites were popping up and pulling organizations’ headline stories onto a separate high-traffic site.106 News wires such as the Associated Press and Reuters became even more widely used than they were before and began charging smaller news organizations premium prices for a package of news topics the organizations could easily plug into their own publications.107 During the “dot-com boom” between 1995 and 2000, most news organizations and others in the business of creating news went online.108 Few, if any, made any money and large news organizations’ online departments were mostly in the red.109 Scott noted that, “It turned out that it was almost as expensive to produce high quality journalism online as it was in the brick and mortar world — except no one was willing to pay for content on the web.”110 Because all headline news was available for free from a plethora of websites, only the most high-quality and exclusive content could be sold through subscriptions and few news organizations were able to capitalize on that type of content.111 While traditional news organizations continued to provide most of the essential local, regional, national and global “news,” with the increase in technology development that followed the dot-com boom, more individuals and “citizen journalists” began creating online content such as writing blog posts and uploading YouTube videos.112 Much of this user-created content “copies, appropriates and mashes up copyrighted materials.”113 This consumer engagement with the media-saturated Internet sometimes leads to what some call piracy, where someone profits from reproducing a copyrighted work.114 Overall, content creators seem to be torn by this culture of sharing copyrighted work.

On the one hand, Steve Collins writes, “copy-right owners seek to maintain control over information flows, whilst prosumers make (what they consider to be) fair uses of elements harvested from the media-saturated environment.”115 However, many original creators find that the repurposing of their content can be beneficial to them and they, therefore, support it.116 102. K aye & Q uinn, supra note 180, at 23.

103. Scott, supra note 179, at 94.

104. Id. 105. Id. 106. Id. at 94-95.

107. Id. at 95.

108. Id. at 96.

109. Scott, supra note 179, at 96.

110. Id. 111. Id. 112. K aye & Q uinn, supra note 180, at 18.

113. Steve Collins, Digital Fair, Prosumption and the fair use defense, J. C onsumer C ulture at 38.

114. Id. at 38, 49.

115. Collins, supra note 197, at 38.

116. See id. at 42 (stating that George Lucas, creator of “Star Wars” was impressed by a school board campaign video featuring user-created replicas of objects from the movie).

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Despite some original creators being in favor of this new culture of sharing, the rampant reuse of content by varied users pushes the boundaries of what use violates copyright and what use is protected by the fair-use defense. In addition, many content creators and scholars are concerned with the fairness of traditional copyright law and how that balances with the current ease of violating traditional copyrights. “Striking a fair balance in the digital age is a complex issue because digital reproduction has many applications.”117 In addition, traditional copyright laws were enacted to incentivize creation. However, with the everchanging ways people consume news and other culture online, traditional copyright law seems to stifle creativity more than protect it.118

Attempts at Content Protection News organizations now must compete with user-created websites for readership and advertising revenue. While news organizations’ readership seems to be higher than ever, finding a way to monetize content and increase advertising has been problematic, resulting in changes in the news industry.119 Some news organizations have folded, some have switched to hybrid or online only, and some continue to seek new ways to make money, including charging for online access.

One of the increasingly popular ways for news websites to increase revenues is to institute a paywall. The Wall Street Journal was the first newspaper to institute a paywall for its online content when it did so in 1997.120 Now, in 2012, there are dozens of publications using paywalls, ranging from national publications such as the New York Times to regional dailies such as the Spectrum in St. George, Utah.121 Those paywalls vary from a monthly fee for unlimited access to a metered approach where readers can choose how much and what content they want to pay to read.122 Critics of the paywalls argue that metropolitan and regional papers will struggle finding readers willing to pay for content because they lack enough valuable content worth paying for.123 Cary Spivak writes in the American Journalism Review that, “With aggregators, blogs and local Web sites in the mix, readers have plenty of other options to get their local news for free.”124 Others argue that paywalls put a financial burden on news organizations’ most loyal readers.125 However, supporters of paywalls are optimistic about opportunities that are becoming available because of increased technology such as smart phones and tablets.126 With those products, “consumers are already used to paying for services provided through apps—as well as online offerings.”127 Most recently, in addition to charging to read content behind a paywall, news organizations are including other incentives with a “membership” to its content, including free and 117. Id. at 44. One of the most common examples is whether a user who bought a physical copy of a music album then downloads the same album online, is that copyright infringement? See id.

118. See id. at 45-50.

119. Tom Price, Future of Journalism, The Issues, CQ R esearcher , at 275.

120. Cary Spivak, Pay to Play, A mer . Jour nalism R ev. 34, 35 (Spring 2011).

121. Id. 122. Id. 123. Id. at 38.

124. Id. 125. Id. at 37 (quoting Steve Buttry, director of community engagement at TBD, a free local news website in Washington, D.C.).

126. Spivak, supra note 204, at 38.

127. Id.

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reduced cost offers for local events, businesses and entertainment venues.128 Despite these ideas for revenue, the Newspaper Association of America reported on Nov. 21, 2012, that while digital ad revenue was up 3.6 percent in the third quarter of 2012, the gain was unable to cover print losses resulting in a 5.1 decrease in ad revenues for newspapers for the quarter.129 Another way some news organizations have attempted to protect their content is by licensing it to users. In February 2010, the Associated Press announced that it would soon be launching an independent board to license digital news content along with a News Registry.130 According to the AP’s press release, “The News Licensing Group will be owned by news publishers, and fulfill a need for an efficient means to protect and license digital news content from thousands of news organizations to the wide and growing range of digital communications products and services.”131 In April 2011, the AP announced that former ABC News President David Westin would be CEO of the News Licensing Group.132 In addition, some content providers and news organizations have suggested that an exception to antitrust laws might be a viable option to increasing revenues for the news media, especially if such an exception would allow for a unified paywall. Currently, antitrust law in the United States is predominately governed by the Sherman Act,133 which protects the free-enterprise system and prohibits anti-competitive conduct.134 Antitrust laws apply to everyone doing business in the United States unless Congress has explicitly exempted the business or industry from the law.135 Some of the exceptions Congress has made to antitrust law have been very narrow and intended to promote the “physical and psychological health of the public.”136 While Congress has made those exceptions to the antitrust laws, the consensus between 128. Laura Hazard Owen, Three More Papers Put Up Paywalls, With Some New Twists, paid C ontent. org , Sept. 6, 2011, http://paidcontent.org/article/419-whats-new-in-newspaper-paywalls-googleone-pass-membership-programs/.

129. See Advertising Expenditures, Quarterly (All Categories), Newspaper A ssoc . of A merica , http:// www.naa.org/Trends-and-Numbers/Advertising-Expenditures/Quarterly-All-Categories.aspx.

130. Nate Hoffielder, AP to launch digital licensing agency, D igital R eader , Feb. 7, 2011, http://www. the-digital-reader.com/2011/02/07/ap-to-launch-digital-licensing-agency/.

131. Id. 132. David Westin Appointed By AP To Oversee Licensing Agency, Huffington Post, Apr. 14, 2011, http://www.huffingtonpost.com/2011/04/14/david-westin-gets-new-job_n_849201.html.

133. 15 U.S.C. § 1 et seq. (2006). The most relevant sections of the Sherman Act for this thesis’s purposes are sections 1 and 2. Section 1 of the Sherman Act makes it illegal to participate in anticompetitive behavior by engaging in any “contract, combination… or conspiracy, in restraint of trade.” 15 U.S.C. § 1.

Section 2 of the Sherman Act makes it illegal for anyone to “monopolize, or attempt to monopolize, or conspire with other person or persons, to monopolize…” 15 U.S.C. § 2. Section 1 only applies when two or more parties are acting in concert, while Section 2 can apply to a single party. Brad A. Greenberg, Comment, The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry—And Why Congress Should Promote It, 59 UCLA L. R ev. 414, 446 (Dec. 2011).

134. Greenberg, supra note 221 at 446 .

135. Id. One of the most notable exceptions is for Major League Baseball. See generally Fed. Baseball Club of Balt. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200 (1922) (holding that baseball was not under Congress’s commerce power and therefore was not subject to federal antitrust laws). See also Greenberg, supra note 222, at 448-50. Congress has also made antitrust exceptions for public utilities, security and commodity traders, the insurance industry, farmers, and others. See Greenberg, supra note 222, at 450.

136. Greenberg, supra note 222, at 452. See also the Anti-Hog Cholera Serum Act, 7 U.S.C. § 851 (2006); the Motor Carrier Safety Improvement Act of 1999, 49 U.S.C. § 113 (2006); and the Television Program Improvement Act of 1990, 47 U.S.C. § 303a (2006).

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both the legal and academic communities is that antitrust exemptions are generally not good. In a letter from the Department of Justice to Congress, the principal deputy assistant attorney general wrote, “Companies free from competitive pressures have incentives to raise prices, reduce output, and limit investments in expansion and innovation to the detriment of the American consumer.”137 Those interested in a unified paywall approach to monetizing news content argue that by granting the news media an antitrust exception, Congress would be guaranteeing the sustainability of the news media, which is directly related to the United States’ overall “physical and psychological health.”138 In addition, some content However, critics, including representaproviders and news organizations tives from the Federal Trade Commission, have suggested that an exception argue that the potential unification of the to antitrust laws might be a viable news media through an antitrust exception would do little more than limit the number of option to increasing revenues for news sources available from which the public can get information.139 the news media.

In addition, some scholars argue that Congress has already attempted to grant the media leniency in the antitrust laws with the passage of the Newspaper Preservation Act (“NPA”) in 1969.140 After lobbying pressure from large media companies, Congress enacted the NPA, which allowed competing news organizations to fix subscription prices and advertising rates, allocate markets, and participate in other anticompetitive behavior legally.141 The NPA also allowed preexisting joint-operating agreements to continue.142 Newspapers believed that the joint-operating agreements would allow newspapers to succeed financially, however, today only six of these joint-operating agreements still exist.143 Finally, some argue that the media does not even need an antitrust exemption because the DOJ has issued letters stating that it was not against collaborations between newspapers.144 While news organizations and other content providers attempt to figure out ways to monetize their content, some organizations are going forward in the courts to protect their content from what they consider unauthorized use.

137. Letter from Keith B. Nelson, Principal Deputy Assistant Attorney Gen., U.S. Dep’t of Justice, to Lamar Smith, Ranking Member, H. Comm. On the Judiciary (June 23, 2008). See also Maurice E. Stucke & Allen P. Grimes, Why More Antitrust Immunity for the Media is a Bad Idea, 105 N.W. L. R ev. 1399, 1403 (2011).

138. See Greenberg, supra note 222, at 457-67.

139. See Mike Masnick, FTC Not Interested in Giving Newspapers Antitrust Exemption, Tech D irt, Sept.

30, 2010, http://www.techdirt.com/articles/20100929/19382811228/ftc-not-interested-in-givingnewspapers-antitrust-exemption.shtml.

140. Stucke & Grunes, supra note 228, at 1404. See also Newspaper Preservation Act, 15 U.S.C. §§ 18011804 (2006).

141. Stucke & Grunes, supra note 228, at 1404.

142. Id. at 1405.

143. Id. at 1410-11.

144. Id. at 1415.

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Recent Cases A ssociated P ress v. A ll H eadline News C orp.

One of the first modern cases attempting to use legal means to protect against free riding was The Associated Press v. All Headline News Corp.145 In that case, the Associated Press alleged that All Headline News Corp. (“AHN”) “unlawfully copied and altered AP news stories in violation of the federal Copyright Act,… the Digital Millennium Copyright Act,… the Lanham Act,… and New York common law.”146 The relief the AP sought in the suit was “unspecified damages and a permanent injunction against misappropriation of AP’s proprietary news reports and against infringement of AP’s copyrights and trademarks.”147 The AP alleged in its complaint that it expends much effort and incurs great expense in order to “get access to news and to gather, report, package and transmit news stories from every country in the world.”148 In addition, the AP has a large number of employees throughout the world that “conform stories to the organization’s reporting and writing standards.”149 Finally, the AP licenses its content to clients who pay a subscription fee in order to use the AP’s copyrighted stories and photographs and trademarked logos.150 According to the AP’s amended complaint, AHN hired people to rewrite or copy the AP’s stories instead of hiring reporters to find and write original stories.151 The amended complaint also alleges that AHN “instructed reporters to remove or alter the identification of the AP as author or copyright holder of the articles.”152 In response to the AP’s allegations, AHN filed a motion to dismiss all of the AP’s claims except a claim for copyright infringement.153 The United States District Court for the Southern District of New York granted the motion in part and denied it in part.154 The court dismissed counts four and five, which alleged trademark and unfair competition under the Lanham Act,155 and allowed counts one, three and six to proceed.156 Count one alleged misappropriation of “hot news” under New York law, which AHN argued against on two grounds.157 First, AHN argued that Florida law should control because of choice of law.158 Second, AHN argued that the Copyright Act preempted a hot news claim.159 The court, however, found that AHN cited no authority and did not persuasively show that Florida would not recognize a “hot news” claim.160 Therefore, the court found that there was no conflict in the laws of the two jurisdictions and agreed with the AP that

145. 608 F.Supp.2d 454 (S.D.N.Y. 2009).

146. Id. at 457.

147. The Associated Press, AP and AHN Media settle AP’s lawsuit against AHN Media and individual defendants, July 13, 2009, http://associatedpress.com/pages/about/pressreleases/pr_071309a.html.

148. All Headline News Corp., 608 F.Supp.2d at 457 (quoting Amended Complaint ¶¶ 2, 22-26, 34).

149. Id. (quoting Amended Complaint ¶¶ 38-40).

150. Id. 151. Id. 152. Id. at 458 (quoting Amended Complaint ¶¶ 57, 61).

153. Id. at 457.

154. All Headline News Corp., 608 F.Supp.2d at 457.

155. Trademark infringement under the Lanham Act is codified in 15 U.S.C. § 1114(1). Unfair competition under the Lanham Act is codified in 15 U.S.C. § 1125(a).

156. All Headline News Corp., 608 F.Supp.2d at 464.

157. Id. at 458.

158. Id. Florida previously rejected a claim for hot news misappropriation. Id. 159. Id. 160. Id.

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New York law would be controlling.161 As to the preemption argument, the court, referencing Motorola,162 found that “[a]lthough Erie would render the federal common law origins of International News Service nonbinding in the federal courts, the cause of action is still recognized under the laws of various states, including the state of New York.”163 In addition, the court concluded that AHN did not offer any persuasive reasons why Motorola should be overturned.164 In count three, the AP alleged that AHN violated the Digital Millennium Copyright Act by “removing and/or altering copyright-management information from [AP] news reports.”165 AHN argued that the DMCA applies only when automated systems are used to technologically remove copyright-management information.166 AHN, in count six, grouped together the AP’s allegations of unfair competition and violations of § 43(a) of the Lanham Act.167 Similar to their argument for dismissing count one, AHN argued “that the unfair competition claim is preempted by section 301(a) of the Copyright Act.”168 The court, however, denied the motion to dismiss count six finding that “federal law does not preempt misappropriation claims that a defendant ‘passed off’ copies made by the one creator as those of another.”169 The lawsuit between the AP and AHN eventually settled, resulting in an unspecified amount of money paid to the AP by AHN for “unauthorized use” of the AP’s content.170 In addition, AHN “agreed that they would not make competitive use of content or expression from AP stories.”171

Barclays Capital I nc . v. Theflyonthewall .com Not long after the AHN case settled, another lawsuit asking the court to rule on “hot news” misappropriation and copyright violations was filed in the Southern District of New York.

In that case, Barclays Capital, Inc. v. Theflyonthewall.com,172 a group of financial firms173 filed suit against “an internet subscription news service that aggregates and publishes research analysts’ stock recommendations.”174 The financial firms, who share research recommendations175 with their clients,176 161. Id. at 460. The AP is headquartered in New York and AHN allegedly had an office or a bureau there as well. Id. 162. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997).

163. All Headline News Corp., 608 F.Supp.2d at 459.

164. Id. at 461.

165. Id. See also Amended Complaint ¶¶ 90-97.

166. All Headline News Corp., 608 F.Supp.2d at 461.

167. Id. at 464.

168. Id. 169. Id. (quoting Princess Fabrics, Inc. v. CHF, Inc., 922 F.2d 99, 104 (2d Cir. 1990)).

170. The Associated Press, supra note 343.

171. Id. 172. 700 F.Supp.2d 310 (S.D.N.Y. 2010).

173. The list of plaintiffs included Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., and Morgan Stanley & Co. Inc. Id. at 313.

174. Id. 175. The recommendations are created by the firms in order to “attract and retain clients, to entice clients to execute trades through them, and to differentiate themselves from other financial services firms.”

Id. at 315. Recommendations include “projections of future stock prices, judgments about how a company will perform relative to its peers, and conclusions about whether investors should buy, sell, or hold stock in a given company.” Id. 176. The financial firms’ clients include “large institutional clients, foundations, corporations, businesses of every size, families, and individuals.” Id.

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alleged that theflyonthewall.com (“Fly”) committed “hot news” misappropriation and copyright violations by taking and disseminating the recommendations, sometimes doing so before the financial firms disseminated the information to their own customers.177 The recommendations are considered “hot news” by the financial firms because the vast majority of them are released within a few hours of the opening of the stock market, and a strong recommendation has the potential to “move the market price of a stock significantly, especially when a well-respected analyst makes a strong [r]ecommendation.”178 Therefore, the firms’ clients can benefit from the recommendation because they give the clients a potential “early informational advantage.”179 In addition to releasing the recommendations to their own clients through several subscription-based and password-protected media, the firms also license the content to other providers, including Bloomberg and Thomson Reuters.180 Not only are the recommendations limited to certain “entitled” clients, the recommendations are also personalized for those clients.181 The firms also employ strict policies and technological innovations in order to maintain the security and control the dissemination of the recommendations.182 Fly also shares financial news and recommendations via subscription service.183 It boasts that it provides analysis that beats the news wires and offers the same recommendations as the traders on Wall Street use.184 Despite offering the same recommendations, Fly’s website admitted, “Fly staff are not brokers, dealers, or registered investment advisers.”185 In addition, although Fly streams an online newsfeed that is updated constantly between 5 a.m. and 7 p.m., “Fly does not conduct its own equity research or include any original research in its news feed.”186 Customers who subscribe to Fly’s news feed can customize their subscription to three different packages.187 The recommendations that Fly posted on its news feed came directly from the financial firms via employees who were not authorized to send the recommendations to Fly.188 After Fly’s staff received the recommendations from the financial firms’ employees, they would “select those it wished to publish, and then type each [r]ecommendation as a headline into its own newsfeed, sometimes accompanied by an extended passage lifted essentially verbatim from the report explaining the basis for the [r]ecommendation.”189 According to the owner of Fly, he discontinued the practice of reporting verbatim the recommendations that Fly received from the financial firms after the lawsuit was initiated and instead confirmed the recommendations “from at least two and sometimes three independent sources before publishing them.”190 177. Id. at 313. Fly filed counterclaims alleging “defamation, tortuous interference with prospective business relations, and unfair competition under § 43(a) of the Lanham Act.” Id. at 314. Those counterclaims were eventually dismissed. Id. 178. Barclays Capital, 700 F.Supp.2d at 316.

179. Id. 180. Id. at 317.

181. Id. at 318.

182. Id. at 319-20.

183. Id. at 322.

184. Barclays Capital, 700 F.Supp.2d. at 322-23.

185. Id. at 323.

186. Id. 187. Id. at 325. Fly’s customers include “individual investors, institutional investors, retail investors, brokers, and day traders. Id. 188. Id. 189. Id. 190. Barclays Capital, 700 F.Supp.2d at 326.

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Fly admitted to copyright infringement but denied the claim that it participated in “hot news” misappropriation.191 In order to determine whether Fly misappropriated the financial firms’ recommendations, the court considered each element of misappropriation as set forth in NBA v. Motorola.192 After going through each of the factors individually, the court determined that Fly was liable for “hot news” misappropriation under New York law.193 The court then entered an injunction against Fly to prevent Fly from disseminating the financial firms’ recommendations within one half-hour of the market opening or two hours after the recommendation was released, whichever was later.194 With this decision, the Southern District of New York reaffirmed the “hot news” doctrine as a viable cause of action for organizations that provide time-sensitive information to the public. However, this reaffirmation was short lived. Fly appealed the district court’s ruling to the Court of Appeals for the Second Circuit in April 2009.195 Shortly thereafter, financial firms, various media companies, and others with an interest in the question of whether a “hot news” claim survives filed a myriad of amicus briefs.

Large media companies, such as Google and Twitter, along with “friends of the court” such as Harvard Law School’s Citizen Media Law Project and the Electronic Frontier Foundation, argued against the extension of the “hot news” doctrine that the district court allowed.196 The attorneys for Google and Twitter argued that now, because of the widespread use of technology “anyone with a cell phone may disseminate news throughout the world even as it is occurring, [therefore] the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.”197 They also argued that forcing news outlets to hold off on publishing pertinent factual information would cause confusion among news organizations and would be a detriment to the public’s need to know.198

191. Id. at 328. The financial firms were able to provide seventeen examples of verbatim copying between February and March, 2005. Id. Fly initially attempted to assert a fair use defense for this copying, but then admitted that the copying was a copyright violation. Id. The court awarded the financial firms an injunction and statutory damages on this count. Id. at 328-31.

192. Id. at 335. See also Nat’l Basketball Ass’n. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). The elements, as articulated in Motorola, are: “(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.” Motorola, 105 F.3d at 845.

193. Barclays Capital, 700 F.Supp.2d at 343.

194. Id. at 348. The court also awarded the financial firms more than $13,000.00 in statutory damages and allowed them to receive attorneys’ fees. Id. 195. Id. Fly also requested a stay on the injunction or a modification to allow it to repost the financial firms’ recommendations “as soon as they have been published by a mainstream news service.” Id. at 356. The stay and alternative request for modification were denied by the court. Id. On May 7, 2010, the United States Court of Appeals for the Second Circuit granted Fly’s motions for both a stay on the injunction and an expedited appeal. Brief for Defendant-Appellant, Barclays Capital Inc. v. Theflyonthewall.com, 2010 WL 2589040 (June 17, 2010) (No. 10-1372-cv).

196. See generally Brief for Amici Curiae Google Inc. and Twitter, Inc. in Support of Reversal, Barclays Capital Inc. v. Theflyonthewall.com, Inc., 2010 WL 2589770 (June 22, 2010) (No. 10-1372-cv); Brief Amici Curiae of Citizen Media Law Project, Electronic Frontier Foundation, and Public Citizen, Inc., Barclays Capital Inc. v. Theflyonthewall.com, 2010 WL 2589766 (June 22, 2010) (No. 10-1372).

197. Brief for Amici Curiae Google Inc. and Twitter, Inc., supra note 287, at 2.

198. Id.

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Supporting the financial firms’ side of the case, amicus briefs were filed from research firms such as Investorside Research Association and LexisNexis.199 Those firms argued that the ruling of the district court should stand because firms that do independent research have difficulty recouping their costs and must charge extremely high fees to their customers to make money, thus they are Financial firms, various media unable to compete with small organizations companies, and others with an that repost the research without the behindinterest in the question of whether the-scenes costs.200 The case was argued in front of the United a “hot news” claim survives, filed a States Court of Appeals for the Second myriad of amicus briefs Circuit on August 6, 2010; however, the court did not make a ruling on the case until almost a year later in June 2011.201 In its opinion, the court concluded that the firms’ misappropriation claim was preempted by the Copyright Act and did not fall under the “hot news” tort laid out in Motorola.202 As justification for its ruling, the court gave three reasons why it found that the “hot news” claim was preempted. First, the court found that the firms’ recommendations satisfy the “subject matter” requirement of copyright preemption.203 Second, the court found that the firms’ reports and recommendations fulfill the “general scope” requirement of copyright preemption.204 Finally, the court found that an INS-type misappropriation claim, which would not be preempted, failed because Fly did not “free ride” on the firms’ reports and recommendations because it was merely “collating and disseminating factual information.”205 In order to define “free riding,” the court cited the Supreme Court’s definition in INS, which was “the [u]nfair use of another’s ‘labor, skill, and money, and which is saleable by complainant for money.’”206 The court then reasoned that despite the seemingly general definition, free riding “refers explicitly to a requirement for a cause of action as described

by INS.”207 In this case, the court noted, Fly is not “taking material that has been acquired by [the firms] as the result of organization and the expenditure of labor, skill, and money, and which is saleable by [the firms] for money, and… appropriating it and selling it as

199. See generally Brief for Amicus Curiae the Investorside Research Association, Barclays Capital Inc. v.

Theflyonthewall.com, 2010 WL 3032822 (July 21, 2010) (No. 10-1372-cv); Brief Amicus Curiae of Reed Elsevier Inc., Barclays Capital Inc. v. Theflyonthewall.com, 2010 WL 3032825 (July 22, 2010) (No. 10-1372-cv). Reed Elsevier, Inc. is the parent company of LexisNexis and several other research firms.

200. Brief for Amicus Curiae the Investorside Research Association, supra note 290, at 8.

201. Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876 (2d Cir. 2011).

202. Id. at 876. Despite the court’s decision that the firms’ “hot news” claim failed, the “hot news” tort still exists under New York law. Id. at 887. See e.g. United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009) (explaining that a ruling by one panel is binding on a subsequent panel in the same circuit).

203. Barclays Capital, 650 F.3d at 897 (stating that the recommendations are “all works ‘of a type covered by section [ ] 102,’ i.e., ‘original works of authorship fixed in a[ ] tangible medium of expression.’”).

The court also stated that the facts of the recommendations do not have to be copyrightable in order for copyright preemption to apply to the recommendations overall. Id. 204. Id. 205. Id. 206. Id. at 898 (citing Int’l News Serv., Inc. v. Associated Press, 248 U.S. 215, 239 (1918).

207. Id.

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[fly’s] own…”208 In fact, the court also stated, Fly is “hardly selling the [r]ecommendation ‘as its own.’”209 Therefore, the court found that it did not need to address whether Fly was in direct competition with the firms because it found that Fly did not even free ride on the firms’ information.210 This decision seriously limited the “hot news” doctrine’s applicability in the Second Circuit. One of the main reasons for this was the court’s determination that the five-factor test in NBA was dicta and was therefore not binding.211 Also, the court narrowly defined “free riding” to exclude reposting information with attribution.212 Because of this narrow definition of “free riding,” the court found that Fly did not free ride, and therefore this case did not meet the “additional element” test to avoid preemption.213 Once again, the court narrowed the application of the “hot news” doctrine without completely removing the doctrine from the law. While the Second Circuit’s ruling is not mandatory in all jurisdictions that still allow for the “hot news” misappropriation tort, because of the relatively few cases that still attempt to apply the tort, this case is likely to be incredibly persuasive. This case is also likely to limit the applicability of the “hot news” doctrine because most websites and aggregators that repost news content from other places at least attribute that information to the original source. The Second Circuit seems to have reverted the “hot news” doctrine back to its origins in INS by limiting its applicability to the misappropriation of content and the passing off of that content as the misappropriator’s own.

Righthaven While news organizations struggle to enforce their rights using a misappropriation theory, enforcement under copyright theories was met with struggle as well. In an attempt by a media organization to protect its rights in its news content, Righthaven was formed with a unique business model set on preventing individuals and organizations from reposting copyrighted material online. Righthaven came onto the court scene in 2010 when it filed its first lawsuit against someone who reposted part of a Las Vegas Review-Journal article.214 At the outset, Righthaven contracted with Stephens Media to license its newspapers’ copyrights in order to enforce those copyrights against infringers.215 Righthaven’s purpose, according to a blog post by the Stephens Media President and CEO, Sherman Frederick, is to “protect copyrighted content” and to “stop people from stealing our stuff.”216 In order to meet this mission, Righthaven receives the copyright assignments and “subsequently registers the copyright [ ] with the U.S. Copyright Office in order to then file suit in federal

208. INS, 248 U.S. at 239.

209. Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876 (2d Cir. 2011) (quoting INS, 248 U.S. at 239).

210. Id. at 901. Judge Reena Raggi wrote a concurrence to the majority opinion analyzing whether Fly and the firms were in direct competition with each other. Id. at 901-908 (Raggi, J., concurring).

211. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 899-901 (2d Cir. 1997). See also John C. McDonnell, Comment, The Continuing Viability of the Hot News Misappropriation Doctrine in the Age of Internet News Aggregation, 10 Nw. J. Tech. & I ntell . P rop. 255, *25 (Jan. 2012).

212. Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876, 904 (2d Cir. 2011).

213. Id. at 902.

214. Comprehensive List of Copyright Infringement Lawsuits Filed by Righthaven, LLC, http://righthavenlawsuits.com/lawsuits.html (last visited Apr. 16, 2012).

215. Id. 216. Sherman Frederick, Copyright theft: We’re not taking it anymore, L as Vegas R eview-Jour nal The C omplete L as Vega n Blog , May 28, 2010, http://www.lvrj.com/blogs/sherm/Copyright_theft_ Were_not_taking_it_anymore.html?ref=164.

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court” when someone reposts content.217 As of July 13, 2011, Righthaven had filed 276 copyright infringement lawsuits.218 The company has a reputation of going straight to the courts instead of warning or sending a takedown notice to the sites it alleges are infringing.219 Then, almost immediately after filing the suit, Righthaven usually demands a settlement fee from the alleged infringer.220 “[M] any of the sites [Righthaven] is suing aren’t competitors to the [Las Vegas Journal-Review] at all. In fact, they’re usually organizations or people written about by the newspaper, who want to post the publicity – with links back to the original – on their own sites.”221 Despite many technology and law blogs’ claims that the alleged infringers’ use is a fair use, many of the defendants in the Righthaven cases agreed to settle with the company rather than go through a case in federal court that would inevitably get prohibitively expensive for the individuals and organizations being sued.222 However, when Righthaven sued Democratic Underground, “the largest independent discussion forum for liberals on the Internet,” the forum joined with the Electronic Frontier Foundation (“EFF”) and other attorneys to fight back.223 Righthaven’s success in getting settlements and court victories came to a halt in April 2011 when a federal district judge issued an order ruling that Righthaven’s licensing agreement with Stephens Media could be public.224 After the agreement was made public, U.S. District Judge James Mahan wrote that the agreement “appears to support [the defendant’s] claim that Righthaven does not have standing to sue for copyright infringement.”225 Specifically, the judge wrote that in order for Righthaven to be able to sue for copyright infringement, Stephens Media would have had to assign Righthaven exclusive rights in the copyright, which it did not do.226 Then, on June 14, 2011, the chief U.S. district judge for Nevada dismissed Righthaven’s suit against Democratic Underground for lack of standing.227 To add to the devastating blow against Righthaven, the judge allowed Democratic Underground to continue with its counterclaim against the company and Stephens Media in which Democratic Underground and the EFF requested an award of attorneys’ fees.228 217. Righthaven Lawsuits, supra note 306.

218. Id. 219. Mike Masnick, RightHaven Ramping Up Its Copyright Trolling Business, Tech D irt, July 23, 2010, http://www.techdirt.com/articles/20100722/03152710320.shtml.

220. Id. 221. Id. 222. Righthaven Lawsuits, supra note 306.

223. Political Forum Fights Back Against Righthaven Copyright Troll Suit, E lec . F rontier Found. , Sept.

28, 2010, http://www.eff.org/press/archives/2010/09/27.

224. Steve Green, Judge unseals Review-Journal/Righthaven contract, Vegas I nc , Apr. 15, 2011, http:// www.vegasinc.com/news/2011/apr/15/judge-unseals-review-journalrighthaven-contract/. See also Strategic Alliance Agreement between Righthaven LLC and Stephens Media LLC, Jan. 18, 2010, available at http://www.scribd.com/doc/53175589/Strategic-Alliance-Agreement-Between-Righthavenand-Stephens-Media.

225. Steve Green, Judge doubtful of Righthaven’s right to sue over R-J material, Vegas I nc , Apr. 28, 2011, http://www.vegasinc.com/news/2011/apr/28/judge-doubtful-righthavens-right-sue-over-r-j-mate/.

226. Id. The Strategic Alliance Agreement assigned the right to sue for copyright infringement to Righthaven, but allowed Stephens Media to keep the other benefits reserved for copyright holders. See Strategic Alliance Agreement between Righthaven LLC and Stephens Media, supra note 319.

227. Steve Green, Judge Rules Righthaven lacks standing to sue, threatens sanctions over misrepresentations, Vegas I nc , June 14, 2011, http://www.vegasinc.com/news/2011/jun/14/judge-rules-righthaven-lacks-standing-sue-threaten/.

228. Id.

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Since then, Righthaven has faced other setbacks. First, the company was sanctioned and fined $5,000 for misleading a federal judge by misrepresenting its agreement with Stephens Media and therefore its right to sue under the standing requirements.229 Then, in August, another district judge granted a defendant’s request for attorneys’ fees.230 Righthaven has also stopped filing new lawsuits and has failed to serve several defendants with necessary paperwork to continue some of its other lawsuits.231 In addition, Righthaven has laid off employees, including Las Vegas lawyer Steven Ganim, who had previously represented Righthaven in its lawsuits.232 Instead of folding, however, Righthaven filed a court document asking the court to overturn its ruling that prevents the company from filing more lawsuits.233 Righthaven also told the court that it did not have the funds to pay the award of attorneys’ fees that court previously awarded to one of its defendants.234 In order to continue filing lawsuits if the court does lift its order, Righthaven and Stephens Media revised their licensing agreement to give Righthaven the clear control of the copyrights, instead of licensing only the right to sue.235 Recently, however, it seems that Righthaven’s business has failed. On Aug. 15, 2011, a federal judge in Nevada awarded $34,045.50 to the defendants in one of Righthaven’s lawsuits.236 After Righthaven attempted to appeal and then failed to attend court proceedings, the appellate court entered a writ allowing the defendants to use U.S. Marshals to collect the now $63,720.80 owed by Righthaven.237 Not long after the writ was issued, Righthaven’s domain name was auctioned off in order to raise funds to satisfy the judgment it owes.238 Because of this lack of funds and the large number of cases Righthaven has lost, it is likely that the company’s unique business model is not one that other organizations should attempt to imitate.

As news piracy increases and revenues for news organizations decrease, news organizations are constantly seeking alternative options for monetization and protection of their work product. Despite the struggles that some organizations have faced both financially and legally in attempting to come up with new ideas and business models for the news media, both the setbacks and successes of those organizations have helped explore and

229. David Kravets, Judge Fines Righthaven $5000, Wired, July 15, 2011, http://www.wired.com/threatlevel/2011/07/judge-fines-righthaven-5000/.

230. Righthaven LLC v. Hoehn, Order, No. 2:11-CV-00050-PMP-RJJ (D. Nev. 2011), available at http://t. co/IwF3yb2.

231. David Kravets, Copyright Troll Righthaven Goes on Life Support, Wired, Sept. 7, 2011, http://www. wired.com/threatlevel/2011/09/righthaven-on-life-support/.

232. Righthaven LLC v. Wolf, Unopposed Motion to Withdraw as Counsel, No. 1:11-CV-00830-JLK (D. Colo.

2011), available at http://www.wired.com/images_blogs/threatlevel/2011/09/righthavenlayoff.pdf.

233. Jeff Roberts, Righthaven: We Might Have To Declare Bankruptcy, paid C ontent.org , Sept. 9, 2011, http://paidcontent.org/article/419-righthaven-we-might-have-to-declare-bankruptcy/.

234. Id. Righthaven is also waiting for rulings on whether it has standing to sue in both Colorado and South Carolina. Steve Green, Lack of court rulings leaves Righthaven cash intact, Vegas I nc , Sept. 15, 2011, http://www.vegasinc.com/news/2011/sep/15/lack-court-rulings-leaves-righthaven-cash-intact/.

235. Roberts, supra note 328.

236. Nate Anderson, US Marshals turned loose to collect $63,720.80 from Righthaven, A rs Technica , Nov. 1, 2011, http://arstechnica.com/tech-policy/2011/11/us-marshals-turned-loose-to-collect6372080-from-righthaven/.

237. Id. 238. Righthaven.com sells for $3,300, D omain Na me Wire , Jan. 6, 2012, http://domainnamewire. com/2012/01/06/righthaven-com-sells-for-3300/.

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clarify the law, the market, and the strategies that might work in the future to help journalism become a thriving industry like it was at the time INS was decided. The next chapter explores some of those strategies.

Ways

to

Monetize

Using the Law P rotection Under

the

and

Protect C ontent

C opyright A ct, Fair Use ,

and

I mplied L icenses

News organizations have not only been looking for legal recourse to protect their rights in the timeliness of the news, they have also been looking for legal protection in their copyrights. As was found in Feist, facts alone are not copyrightable.239 For news organizations, this means that only the expression of the facts is copyrighted. Therefore, copyright law does not prevent other news organizations or individuals from writing their own stories from facts initially discovered by the original Not only have the lawsuits caused content producer. Journalistic ethics might uproar in the blogging community, prevent a news organization from using facts unconfirmed by its own sources, but copysome of them have potentially right protection only extends to the exprescaused even greater damage to the sion of those facts, including the specific newspaper’s reputation wording and structure of the article.

Before Righthaven began suing alleged copyright infringers, most news organizations handled copyright infringement by sending the alleged infringer a letter asking that person to take down the copyrighted content.240 Seattle Times Executive Editor David Boardman, who is an officer of the American Society of News Editors, told Poynter, “[n] ormally all it takes is a call or note or email or letter to somebody just saying, ‘Hey, you’re in violation of our copyright. Please take it down.’ More often than not, they do.”241 In addition, although online news piracy is rampant,242 there is little information available about how much it affects newspapers’ revenues.243 And now some people believe that Righthaven’s tactics of suing without first asking the infringing website to take the content down is actually hurting the newspapers by creating negative publicity.244 Not only have the lawsuits caused uproar in the blogging community, some of them have potentially caused even greater damage to the newspaper’s reputation.

239. Feist Publications, Inc. v. Rural Tel. Co., 499 U.S. 340 (1991) 240. Adam Hochberg, Are Newspaper Copyright Lawsuits Fair Enforcement or ‘Legal Extortion’?, Poy n ter , Aug. 30, 2010, http://www.poynter.org/latest-news/making-sense-of-news/105309/are-newspaper-copyright-lawsuits-fair-enforcement-or-legal-extortion/.

241. Id. 242. Attributor and the Fair Syndication Consortium put together a report in December 2009 stating that of “some 100,000 articles published by 157 U.S. newspapers, more than 75,000 unlicensed, or unauthorized websites reused those newspapers’ content in November [2009] alone — with many of the infringing websites supported by advertising.” Steve Green, Are website copyright violations hurting newspapers’ bottom line?, L as Vegas S un, Aug. 4, 2010, http://www.lasvegassun.com/news/2010/ aug/04/are-website-copyright-violations-hurting-newspaper/.

243. Id. Mike Simonton, a Fitch Ratings analyst in Chicago, told the Las Vegas Sun that there is not much information about whether small websites and bloggers “collectively are significantly reducing viewership for newspaper websites.” Id. Copyright infringement is also not mentioned as a threat in earnings reports by Gannett Co., which is the largest newspaper chain in the U.S. Id. 244. Hochberg, supra note 349.

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In addition to potential bad press, the copyright infringement lawsuits filed by Righthaven that have been dismissed by judges might have negative consequences for future lawsuits against alleged infringers.245 First, despite not being binding precedent in jurisdictions other than where the cases were filed, fair-use rulings make it easier for future defendants to claim that what they have posted is also a fair use.246 Fair use is also extremely fact-based, meaning that each ruling is based on the specific facts of the use, not completely on other cases decided on different facts. Second, at least one judge has found that by allowing and encouraging content “sharing” on its website, the newspaper has essentially granted an implied license for users to copy the entire article onto a blog or other media.247 The ruling, which is not final, found that “[t]he Las Vegas Review-Journal offered the allegedly infringed work (story) to the world for free when it was originally published. It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction.”248 The ruling went on to say that the newspaper “also enables third parties to ‘right click’ and copy the text of articles on the site. Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized.”249 If this implied license defense becomes common, it could mean that most newspapers will have little leverage in bringing a lawsuit against an alleged copyright infringer. Most newspapers now offer options to share their articles over a wide variety of social networking and news aggregation platforms. The best, and perhaps only, option for newspapers at that point would be to review licensing terms in their websites’ “terms of use” section and to make clear that the newspaper is not giving an implied license to freely recopy and distribute the content.250

Organizations Specializing

in

L icensing O ptions

While implied licenses as suggested by the court in Righthaven v. Klerks could potentially have negative effects on newspapers, other types of licensing have been suggested by many as a way to monetize content online.

One option for news organizations is the Copyright Clearance Center (“CCC”).251 CCC is a global rights broker that provides licenses for both users and suppliers of print and online content.252 Formed in 1978 as a not-for-profit, CCC’s website says it has paid more than $1 billion in royalties over the past ten years.253 CCC provides several different types of content licenses including pay-per-use and annual licenses for businesses and academic

245. Steve Green, Righthaven lawsuits backfire, reduce protections for newspapers, L as Vegas S un, Mar. 19, 2011, http://www.lasvegassun.com/blogs/business-notebook/2011/mar/19/righthaven-lawsuitsbackfire-reduce-protections-ne/.

246. Id. 247. Righthaven LLC v. Klerks, 2010 WL 3724897 (D. Nev. 2010). Steve Green, Righthaven judge: ReviewJournal ‘implied license’ defense may have merit, L as Vegas S un, Sept. 20, 2010, http://www.lasvegassun.com/news/2010/sep/20/righthaven-judge-review-journal-implied-license-de/.

248. Green, supra note 358. (quoting attorneys Michael McCue and Nikkya Williams of Lewis and Roca).

249. Id. 250. See Jeffrey D. Neuburger, Will Righthaven Copyright Lawsuits Change Excerpting Online?, M ediaS hift, Mar. 3, 2011, http://www.pbs.org/mediashift/2011/03/will-righthaven-copyright-lawsuitschange-excerpting-online062.html.

251. Copyright Clearance Center, http://www.copyright.com (last visited Apr. 16, 2012).

252. Copyright Clearance Center, About Us, http://www.copyright.com/content/cc3/en/toolbar/aboutUs. html (last visited Apr. 16, 2012).

253. Id.

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institutions.254 Many large newspapers license their copyrights through CCC.255 Despite being profitable, most of CCC’s business comes from academic institutions, law firms, and large companies who pay because of either fear or a good-faith respect of copyright laws.256 And most of the content that CCC protects is academic journals and books, which are fundamentally different than newspaper content.257 In addition to CCC, the Associated Press has announced its own idea for a news registry and licensing company that they planned to launch in summer 2011. Fred Haber, who is CCC’s general counsel, told Poynter there was room in the copyright licensing business for a competitor, but stressed that “it costs more money than you think when you start.”258 In a March 2006 letter to the Department of Justice asking about the DOJ’s antitrust enforcement intentions, the AP laid out its proposal for its forthcoming content registry.259 The AP announced that the voluntary registry will provide content owner with the ability to: “(i) identify original content…; (ii) specify the types of uses others may make of… the registered content…; (iii) specify the terms on which such use may be made (e.g., content may be used only on a revenue sharing basis, subject to a minimum license fee); and (iv) affix unique tags…”260 In addition to providing services for content owners, “[t]he News Registry will also be designed to provide participating content users with a system to identify content that they seek to license and specify the terms on which they offer to license that content from content owners participating in the News Registry.”261 The AP wrote that participation in the registry would be open to anyone who creates or uses “news and information of public interest on an ongoing basis or ha[s] an archive of such content.”262 Participants in the registry will be assessed fees in order to support the registry financially.263 The AP did not specify what the fees would be, but wrote that the fees “may vary based on the nature and scope of the services delivered to a participant.”264 Nearly six years after announcing their intention to create a registry, the AP, along with 28 other news organizations,265 announced the creation of NewsRight.266 NewsRight CEO David Westin told Poyner that “[t]ext stories from newspaper organizations (which own the AP co-operative) are the logical place to start,… [b]ut if successful, NewsRight will expand to licensing photos and video as well, and the content of broadcast, website and

254. Copyright Clearance Center, Products & Solutions, http://www.copyright.com/content/cc3/en/toolbar/productsAndSolutions.html (last visited Apr. 16, 2012).

255. Rick Edmonds, Copyright Clearance Center ready to compete with AP’s News Licensing Group, Poy nter , Feb. 4, 2011, http://www.poynter.org/latest-news/business-news/the-biz-blog/116427/ copyright-clearance-center-ready-to-compete-with-aps-news-licensing-group/.

256. Id. 257. Id. 258. Id. 259. Letter from William J. Baer & Jonathan I. Gleklen, Counsel, Associated Press, to Christine Varney, Assistant Attorney General, Department of Justice (Mar. 26, 2010) B.R.L. 10-358, 2010 WL 1388177.

260. Id. 261. Id. 262. Id. 263. Id. 264. Id. 265. Some of the other organizations involved in NewsRight are the New York Times Co., the Washington Post Co., McClatchy, and many mid-sized newspaper chains. Rick Edmonds, AP, 28 news orgs launch NewsRight to collect licensing fees from aggregators, Poy nter , Jan. 5, 2012, http://www.poynter. org/latest-news/business-news/the-biz-blog/157817/ap-28-news-orgs-launch-newsright-to-collectlicensing-fees-from-aggregators/.

266. Id.

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international clients.”267 In addition to licensing content, NewsRight also plans to offer analytics that “can break down readership by headline-only, short summary or deep exploration of an article.”268 As of now, the AP and its business partners are keeping the fee structures, ownership shares, and costs confidential.269 Poynter reported that the “AP is the single largest investor but has a minority stake.”270 While not counting on much praise from industry leaders, the AP is hoping that the new venture will give participating organizations the ability to negotiate better terms with aggregators than they can individually.271 Finally, Creative Commons is another licensing organization that offers free licenses to content creators online.272 Creative Commons allows users to choose from six different copyright licenses in order to create a custom license to protect the creator’s work while still sharing it online.273 The nonprofit organization allows users “a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon [], all within the boundaries of copyright law.”274 While used mostly by individuals and small organizations, Creative Commons allows users to maintain attribution and some control of their content while at the same time allowing others to use and sometimes distribute that content.

L icensing A greements

with

A ggregators

News organizations have individually licensed their content to news aggregators in the past. The Associated Press, USA Today and the Wall Street Journal have all licensed their content to news aggregators such as Google News and Yahoo News.275 While the terms of these licenses have remained mostly confidential, it has been reported that Google and the AP came to their first licensing agreement in 2006.276 This license continued until 2010, when negotiations to renew the license stalled and Google stopped including AP news on its Google News feeds.277 Google and the AP have since renewed the license, which “allows [Google] to publish full-text news articles from the Associated Press on Google sites such as Google News.”278 Through its license with the AP, Google hosts entire articles on its websites. This is different from the indexing of smaller news organizations’ content that Google does on its Google News platform. These smaller content producers tend to be split on how they feel about Google News. Reuters reported that “Some value the traffic they get from Google News. Others feel that Google profits disproportionately from indexing their news sites’ content for free, republishing their headlines, thumbnail images and blurbs, and link 267. Id. 268. Id. 269. Id. 270. Id. 271. Edmonds, supra note 366.

272. See Creative Commons, http://creativecommons.org (last visited Apr. 16, 2012).

273. See id. The six options for content protection are: Attribution, Attribution-ShareAlike, AttributionNoDerivs, Attribution-NonCommercial, Attribution-NonCommercial-ShareAlike, and AttributionNonCommercial-NoDerivs. Creative Commons, The Licenses, http://creativecommons.org/licenses.

274. Creative Commons, About, http://creativecommons.org/about (last visited Apr. 16, 2012).

275. Fordham, supra note 124, at 988-89.

276. Juan Carlos Perez, Google renews licensing deal with AP for news content, Thomson R euters, Aug. 30, 2010, http://www.reuters.com/article/2010/08/31/urnidgns852573c4006938808525778f006c9fdidUS73162414820100831 277. Id. 278. Id.

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ing back to the sites.”279 Despite some organizations’ feelings that this indexing violates copyright law, “Google has historically claimed that crawling and indexing news websites’ content and publishing linked headlines and blurbs” is fair use.280 No court has thus far ruled that Google News’s aggregation is not a fair use, so it might be difficult for many news content creators to successfully license their content for a reasonable fee.281 If most news organizations go to a paywall model where news content is no longer free and openly accessible on the Internet, licensing agreements with news aggregators and individual websites and blogs might be more prevalent. Paywalls, while once controversial, are becoming the norm. In addition to major newspapers instituting paywalls, many regional and local newspapers have also started charging for their content. Because of the possibility that many, if not most, news organizations will charge for their online content, licensing agreements between smaller content providers and aggregators like Google News will probably become more prevalent and perhaps even necessary.

In addition, licenses between content creators and users such as blogs and other websites providing commentary might take the form of external agreements via an organization such as the CCC or the AP’s NewsRight, or they might be internal licensing agreements that users must agree to when they use a news organization’s website.

Nonlegal Methods

Paywalls: C harging

for

C ontent

on the

Web

Paywalls have recently become a very popular way of attempting to increase monetization of online content. Many news organizations have begun implementing paywalls or metered pay structures that require subscriptions for users to view some or all of the organization’s content.

In addition to revenue brought in directly from the subscriptions, paywalls might have an indirect result on potential litigation. If a news story is locked behind a paywall, a user who directly copies all or even just a portion of that story is less likely to be considered to be using the content as a fair use under the copyright statute. In addition, if another news organization or blogger makes it a habit of reposting stories that come from behind a paywall, courts should consider that misappropriation because at that point consumers are more likely to visit the free site with the reposted story instead of paying the subscription price of the original content creator’s website.

Despite the increase in popularity and use of paywalls and the potential benefits, there is little information about whether or not they are working to increase revenues. As time goes on, reports show that “[m]ost (paywalls) aren’t failures, but few can point to the significant revenue difference that The New York Times, WSJ, or Financial Times plans have made to their transitioning business.”282 This might be, in part, because there are still a great number of news sources that remain free. However, a reporter for the Nieman Journalism Lab wrote, “[w]e’ve moved – in a couple of years – from the question of whether to when.”283 Paywalls vary in the amount of content a user can access for free. The New York Times paywall currently allows a user to access 20 articles per month for free before being required to subscribe for a fee. However, in a March 20, 2012, announcement, one year after the newspaper first instituted its metered paywall, the Times decided to drop the number 279. Id. 280. Id. 281. See Fordham, supra note 124, at 988-89.

282. Doctor, supra note 393.

283. Id.

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of free articles per month to 10 beginning in April.284 Many news organizations use a similar metered approach where they allow users a certain number of free articles and then require payment.

In theory, this model makes sense. Casual readers can still read a few articles a month and those who enjoy the content or want to support the news organization can pay the fee. Unfortunately for news organizations, however, this approach might be too late. News has been free on the Internet for a long time now. Even some of those consumers who want to invest in journalism might have a Despite the increase in popularity difficult time justifying the expense for conand use of paywalls, there is tent they have been getting for free for years.

Some researchers even argue that when little information about whether advertising revenues grow in the future, or not they are working to advertisers will skip by newspapers with increase revenues. paywalls because they will likely not have a large market share of the population to offer to those advertisers.285 In addition, it is easy to “game” most paywalls. The paywalls generally identify a user by using cookies, which can be easily deleted from a computer in order to gain additional access. Also, many users have access to multiple computers or devices. Those users with a smartphone, tablet and computer automatically have access to three times the number of articles they are meant to have.

Therefore, prohibiting users from having free reign of a website by requiring a subscription might entice dedicated users to pay for the news they consume, but for the most part users can find other places or other means to get the content they desire.

In order for paywalls to work and to get people to subscribe to them, Ken Doctor, with the Nieman Journalism Lab, wrote that success depends on the “5 P’s,” people, product, presentation, pricing, and promotion.286 Doctor wrote that it is important to fine-tune a subscription to the “whole view of a customer, matching the subscriber database with the digital registration to get a holistic view.”287 Without this view, Doctor argues that news organizations will struggle to operate in a “modern, somewhat digital/somewhat print business…”288 There are also potential issues with paywalls that go beyond pricing and courting subscribers. One of those issues is whether paywalls will inhibit users from posting and linking to stories via social networking sites. As more news organizations are implementing paywalls, more varied approaches to social media policy are being implemented as well.

The two extremes when it comes to these policies are allowing non-subscribers to access articles via social networking sites and not allowing it.289 The L.A. Times is one of those 284. Amy Chozick, Times Changes Policy on Visits to Web Site, N.Y. Times M edia D ecoder , Mar. 20, 2012, 10:12 a.m., http://mediadecoder.blogs.nytimes.com/2012/03/20/times-changes-policy-on-visits-toweb-site/#.

285. Jim Romenesko, Why news sites might regret setting up paywalls, Poynter, July 6, 2009, http:// www.poynter.org/latest-news/mediawire/96695/why-news-sites-might-regret-setting-up-pay-walls/.

286. Doctor, supra note 393.

287. Id. 288. Id. 289. Mallary Jean Tenore, How paywalls affect social media efforts at 5 news sites, Poy nter , Mar. 7, 2012, http://www.poynter.org/latest-news/top-stories/165625/how-6-news-sites-combine-paywalls-andsocial-media-efforts/.

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newspapers that will not make exceptions for users beyond the 15 articles each user is allowed every 30 days, even if the users follow a link posted on a social networking website.290 The New York Times, in contrast, “gives full access to anyone who comes to a story via social media, even if the person is over their article limit for the month.”291 In between the extremes, the Wall Street Journal’s approach is to only tweet about and link to stories that are free on the newspaper’s website.292 Similarly, the Tallahassee Democrat, one of Gannett’s paywall-test papers, tweets links to stories that are behind paywalls, but also tweets to Facebook posts with information and summaries of stories.293 This enables subscribers and non-subscribers alike to view important and breaking news and information and to contribute to the conversation by commenting on those posts.294 Without the ability for the entire community to read both breaking news and important analysis of relevant topics, newspapers risk losing audience members who are unable to pay the cost of subscriptions.295 If newspapers eventually all seek shelter behind paywalls, they will no longer fit “the traditional public purpose of the press in helping to provide for ‘the information needs of communities in democracy.’”296 While it might be proper to charge premiums for specialized business information like that provided by the Wall Street Journal or Financial Times, access to critical breaking news or varied points of view on important societal issues for those who cannot afford to pay premiums makes paywalls seem counter to the traditional purpose of journalism.

A dapting

to

New Technology

and

C ultur al D evelopments

In contrast to locking content behind a paywall, there has been a recent movement calling for a new business model that offers everything for free and invites the public to be a part of the news-creating process.297 The Journal Register Company, which owns news organizations in 10 states, recently created Digital First Media Inc. as a management company to oversee both the Journal Register Company and MediaNews Group Inc.298 Journal Register Company Chief Executive Officer John Paton said in the press release that the new company would allow the news organizations “to accelerate our Digital First strategy of transitioning from what have largely been print-centric businesses to modern, multi-platform media companies focused on local news and advertising.”299 Some of the ideas Paton has implemented at the company include an employee group that is paid to experiment with new technology such as smartphones and tablets; using free 290. Id. 291. Id. 292. Id. 293. Id. 294. Id. 295. Rick Edmonds, Tall Pay Walls May Limit Community Access to Information, Poy nter , Aug. 21, 2009 updated Mar. 4, 2011, http://www.poynter.org/latest-news/business-news/the-biz-blog/97906/tallpay-walls-may-limit-community-access-to-information/.

296. Id. 297. See John Paton, WAN IFRA International Newsroom Summit: How The Crowd Saved Our Company, D igital F irst Blog (June 8, 2011, 3:32 PM), https://jxpaton.wordpress.com/2011/06/08/ wan_ifra/.

298. Press Release, Journal Register Co., Journal Register Company Announces The Creation of Digital First Media Inc., Sept. 7, 2011, http://www.journalregister.com/press-releases/digitalfirst/. MediaNews Group Inc. was one of the news organizations that hired Righthaven to file suits for copyright violations.

299. Press Release, supra note 414.

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web-based tools to produce newspapers; and creating Community Media Labs and OpenTo-The-Public newsrooms.300 While this business model is relatively new, Paton wrote in his blog that after making the changes, the company went from bankrupt to making a $41 million profit.301 In addition, Paton wrote, “[w]e have doubled our Digital audience and are growing our Digital revenue at 7x the industry standard in the US.”302 That, coupled with outsourcing and lowering expenses, seems to be working for the Journal Register Company, even as the overall economy continues to be down.

This business model goes in the opposite direction of those that are relying on paywalls and litigation to attempt to monetize content. Paton suggests that in order to be successful, “any walls between you and the communities you serve through your journalism need to come down.”303 The reason Paton gives for giving up on paywalls is that “Shared Content Equals Influence. And Influence… equals Engagement. And Engagement equals Value to those advertisers and others trying to reach that Engaged Audience.”304 While many news websites offer their content for free now, the difference is that Paton’s business model focuses on “the mass creation of compelling, original content.”305 That includes spending money and resources on creating quality local content that cannot be reproduced elsewhere, and linking to other content from other providers that helps to bring the stories to life with background and related information.306 Other organizations, including the Electronic Frontier Foundation, agree that adapting to the digital world is a better idea than relying on lawsuits and paywalls to make money.307 In a recent article, the EFF said that its hope was for other organizations to make a “commitment to finding creative new ways to harness the Internet [and to] show[] there can be a viable future for journalism, without threatening bloggers with lawsuits or dragging small businesses into aggressive lawsuits.”308 Other scholars and journalists also believe that engagement is the future of journalism, with or without a paywall. James O’Shea, editor at Chicago News Cooperative, wrote that the goal there “is to create journalism that will inject enough value into the information to entice readers to join our digital community and get access to our reporting for a nominal membership fee.”309 The intent of the cooperative is not to limit access to quality journalism by hiding it behind a paywall. Instead, O’Shea varies its business models to include free products available to everyone and “numerous communities of interest organized around subjects such as politics, health, technology, science and other areas… to build a broader community and create a diverse stream of revenue from membership fees, ads and sponsorships…”310 300. Paton, supra note 413.

301. Id. 302. Id. 303. Id. 304. Id. 305. Id. 306. Paton, supra note 413.

307. Rainey Reitman & Kurt Opsahl, From the Ashes of Righthaven, the Promising Future of Digital Media, E lectronic F rontier Foundation, Sept. 12, 2011, http://www.eff.org/deeplinks/2011/09/ashes-righthaven-promising-future-digital-media.

308. Id. 309. James O’Shea, Journalism of Value = Context for Communities, Niema n R eports 22, 23 (Summer 2011).

310. Id.

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A study by Sam Chege Mwangi at Kansas State University found that “innovation and engagement can come before profit… [and] can indeed bring in engaged audiences who can then be targeted reliably through advertising.”311 Therefore, even without paywalls, scholars believe that newspapers can increase their revenues by adopting engagement strategies and connecting with their readers instead of disconnecting in an effort to not appear biased or involved.

Joy Mayer, a former RJI Fellow and current professor at the Missouri School of Journalism, wrote that “[j]ournalists have an obligation to identify and attempt to connect with the people who most want and need their content.”312 Mayer argues that connecting in order to improve the communities in which journalists work is an obligation in today’s landscape of media in addition to the traditionally known obligations of truth, loyalty to citizens, monitoring people in power, and providing a forum for public discussion.313 This obligation of engagement is extremely important in today’s state of the news industry because “[a]dhering to this obligation is good for journalism’s challenging bottom line. It mimics marketing, in a way—find the customer, meet the need, bring eyeballs to the product and build brand loyalty.”314

C onclusion

U

ltimately, it will take a mix of both legal and nonlegal methods in order to increase revenues and bring the print and digital journalism industry back to a place where it is making money and producing quality content. While paywalls are becoming standard in the industry, completely subscription-based models and models that only allow for a small number of free articles are not the best option because they limit important information to those who can or are willing to pay for it, generally educated people with means.

If a paywall is deemed necessary, it is important for each organization to either allow a certain number of stories or a certain type of stories — for example, breaking news or political information — to be free. That way, the organization continues to serve its primary purpose of getting important information out to its community.

Engaging readers with hyper-local or specific genres of content is the best way to keep both advertisers and readers coming back. Catering to a specific market with quality information, analysis, and other content that is not widely available in other places will allow potential advertisers to focus on the community of people that are drawn to the information a certain organization provides. This way, news can continue to remain free to the public while news organizations can make money by drawing a community of people to advertising that the community is more likely to be interested in.

Licensing options are the next logical place to create revenue. Working with bloggers and other users who regularly repost content to come to an agreement of what is acceptable to post for free and what requires payment will ease the burden for both and will help to open up the conversation and increase engagement.

Also, relying on lawsuits and threats, such as through the copyright statute and the “hot news” doctrine, should be a last resort. Lawsuits against small-time bloggers make media organizations seem disconnected from the community and tend to create negative feelings.

311. Sam Chege Mwangi, A Lesson before Dying: Embracing Innovations for Community Engagement as a Survival Strategy for Media in Crisis, 1:3 O nline J. C omm . & M edia Tech. 14, 31 (July 2011).

312. Joy Mayer, Engaging Communities: Content and Conversation, Niema n R eports 13 (Summer 2011).

313. Id. (citing Bill K ovach & Tim R osenstiel , The E lements of Jour nalism: What P eople S hould K now a nd the P ublic S hould E xpect (2001)).

314. Id.

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In addition, despite the allowance of statutory damages under the copyright statute, it is very unlikely that a small blogger will have enough money to pay any damages. News organizations should always start with a takedown request before jumping right into a lawsuit as Righthaven did.

Additionally, lawsuits against large aggregators, such as Google and Yahoo!, are most likely prohibitively expensive for news organizations, and, at this time, there is no precedent showing that a news organization would win on a claim of copyright violation. Both of these organizations, and others that are similar, are extremely careful to keep their use of news organizations’ content within the confines of fair use, and courts will have no choice but to find in favor of news aggregators in these lawsuits.

Even in cases of “hot news” violations, it is likely that the only way to prevail is if a direct competitor is somehow misappropriating information before it is posted. It is likely that this would only happen if information is being leaked from inside the content originator’s organization. In that case, it is best to require employees to have a contract that prohibits this type of conduct and allows for immediate dismissal of the employee. Gone are the days of the telegraph machine receiving wire reports in the same room as other news organizations’ machines. Therefore, the protections the “hot news” doctrine originally intended to grant are not as necessary today.

As technology increases and changes, laws and business models will also change. However, creativity in creating community and producing a product people in that community both want and need is a better revenue generator than relying on the outdated protections of the law that will never keep current with the rapidly changing media industry.

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For Further Reading Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem Meghan Dunn, Fed. Judicial Ctr., Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management (2011).

Caren Myers Morrison, Jury 2.0, 62 Hastings L.J. 1579 (2011) Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. Chi. Legal F. 87 (1990)

That’s What “Friend” Is For?: Judges, Social Networks and Standards for Recusal Dmitry Bam, Understanding Caperton: Judicial Disqualification Under the Due Process Clause, 42 McGeorge L. Rev. 65, 75 (2010).

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 173 L.Ed.2d 1208 (U.S. 2009).

John Schwartz, For Judges on Facebook, Friendship Has Limits, N.Y. Times, Dec. 11, 2009, at A25.

Judge Gena Slaughter & John G. Browning, The Attorney and Social Media: Social Networking Dos and Don’ts for Lawyers and Judges, 73 Tex. B. J. 192 (2010).

A Right to Speak and Spend Ofer Raban, Constitutionalizing Corruption: Citizens United, Its Conceptions of Political Corruption, and the Implications for Judicial Elections Campaigns, 46 U.S.F. L. Rev. 359 (2011) Elizabeth K. Lamphier, Justice Run Amok: Big Money, Partisanship, and State Judiciaries, 2011 Mich. St. L. Rev. 1327 (2011) Genelle I. Belmas & Jason M. Shepard, Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment, 58 Drake L. Rev. 709 (2010)

The New News: Challenges of Monetization, Engagement, and Protection of News Organizations’ Online Content Bruce W. Sanford, et al., Saving Journalism with Copyright Reform and the Doctrine of Hot News, Comm. L. (Dec. 26, 2009).

Edward L. Carter, Copyright Ownership of Online News: Cultivating A Transformation Ethos In America’s Emerging Statutory Attribution Right, 16 Comm. L. & Pol’y 161 (Spring 2011).

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Board of Editors Hon. William F. Dressel has been the president of The National Judicial College since 2000. He was a lawyer in private practice in both Denver, and Fort Collins, Colorado until he was appointed a judge in Colorado’s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Institute’s Ernest C. Friesen Award of Excellence in recognition of his vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

Stewart Cheifet, an assistant professor at the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, pioneered the field of technology journalism with the award-winning public television series “Computer Chronicles.” He also anchored “Net Café,” and has been a commentator on technology for a variety of programs and events. He previously worked for ABC News and CBS News, and as president of PCTV, a company focused on media and technology, and CEO of WITF, a diversified broadcasting and media company. Cheifet has won numerous awards for his work, including twelve awards from the Computer Press Association.

Charles Davis is an associate professor at the Missouri School of Journalism, where his scholarly research focuses on access to governmental information and media law. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and in 2008 was named the Scripps Howard Foundation National Journalism Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications.

Toni Locy is the Reynolds Professor of Legal Reporting at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nation’s biggest and best news organizations, specializing in the coverage of federal, state, and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is currently writing a textbook on covering courts based on her experience as a reporter in Pittsburgh, Philadelphia, Boston, and Washington.

Nancy B. Rapoport is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

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Board of Editors (continued) Rick Rodriguez,  the former executive editor and senior vice president of

The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief, and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors.

Christina Wells  is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law, and has been a visiting professor at the University of Illinois College of Law and at Masaryk University and Palacky University in the Czech Republic. She joined the faculty in 1993 after having been an associate with Skadden, Arps, Slate, Meagher and Flom in Chicago and Heller, Ehrman, White and McAuliffe in Los Angeles, primarily in the area of business litigation. She received the Shook, Hardy & Bacon Research Award in 2009 for her article on the constitutionality of statutes regulating funeral protests, and also received that award in 2005.

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Volume 2, Issue 3

donald w. reynolds national center for

COURTS&MEDIA

A research and policy center of the Donald W. Reynolds School of Journalism, University of Nevada, Reno, affiliated with The National Judicial College