United States

UNITED STATES The rapid development in the U.S. of online services and the World Wide Web has led legislators, regulators and judges to begin trying to develop the law of "cyberspace." The first results are not encouraging. Serious legal issues have already arisen in two areas: 1) "indecent" speech, and 2) defamation. In the former, a legislative proposal and several high-profile criminal cases threaten to establish the principle that on-line communications will receive less protection from the First Amendment than print or broadcasting. Similarly, recent developments in the area of defamation suggest that online services face a choice of censoring their "readers" communications or defending libel suits based upon those messages. Virtually every state and municipality prohibits the sale and distribution of obscenity, and federal law prohibits the interstate transportation of obscenity. The United States Supreme Court has held that the First Amendment bars prosecution unless the speech at issue, when judged "applying contemporary community standards," is patently offensive and lacks serious literary, artistic, political or scientific value. The Court has also held that obscenity laws could not constitutionally be applied to an unknowing distributor. Despite this well-established precedent, the Senate voted overwhelmingly to enact the Communications Decency Act introduced earlier this year by Senator James Exon (Republican-Nebraska). The Exon bill provides for fines up to $100,000 and up to two years in prison for people who make "obscene, lewd, lascivious, filthy or indecent material" available to minors across electronic networks. (The law thus applies to all speech on the public areas of the Internet and on-line services.) This is a much more severe standard than the Supreme Court's. While the House of Representatives has not approved the Exon bill, several slightly milder but similar alternatives are currently being discussed as part of the extensive negotiations regarding the Telecommunications Act. One recent prosecution demonstrates the risks of publishing in cyberspace today. The Amateur Action bulletin board service was a subscription bulletin board where users could access materials which were maintalned in California. Federal authorities reportedly recruited a resident of Memphis, Tennessee, to download certain pornographic images and subsequently prosecuted the operators of the bulletin board, in Memphis, on charges of interstate transportation of obscenity. Applying their strict community standards of Memphis, a jury convicted the board operators and the case is currently on appeal. The critical issue in the appeal is likely to be: which community standards should apply in such a case, those of Tennessee or California or the more tolerant standards of the virtual community of on-line users? On-line publishers also face substantial risk of being sued for communications that they did not author or edit. Bulletin boards, forums and "chat rooms" permit users to communicate with each other. Messages posted in these areas are generated by users and are typically not reviewed by the system operator before someone posts them. Nevertheless, one court recently held that Prodigy, a large on-line service proVider, is liable for an allegedly defamatory message posted by one of its subscribers in a forum relating to financial matters. The posting in question accused an investment banking firm of defrauding the author of the message. Evidence that Prodigy did not -and could not- review all postings and that its editorial review of messages covered only a small percentage of all the postings did not persuade the court. Instead, the court held that an on-line service could insulate itself from liability for posted messages only by relinquishing all editorial prerogative with respect to these messages. None of the major on-line services currently allows blatantly offensive bigotry, personal attacks, offensive terms or sexually explicit material to remain on-line once it is discovered. The Prodigy ruling would force on-line publishers either to steer clear of controversial speech by closing down public forums or to risk substantial liability. A third option would be to relinquish all editorial discretion and let users post whatever they please, a step that Senator Exon and his supporters would certainly not like. A U.S. District Court judge on Sept. 13 barred Business Week from printing an article based on court-sealed documents related to a $196 million lawsuit by Procter & Gamble Co. against Bankers Trust Co. The suit involves Procter & Gamble's loss in derivatives transactions. Cincinnati Judge John Feikens affirmed on Oct. 3 that he had the authority to prevent the magazine from publishing the article, but also unsealed the documents, an action that effectively allowed their publication by Business Week and other organizations. The injunction had kept Business Week from publishing a story based on the documents for three weeks. Historically, U.S. courts quickIy have overturned lower courts when prior restraint of the press is at issue, the magazine said. But Supreme Court Justice Paul Stevens refused to stay Judge Feikens's order, even though Judge Stevens noted "it was not supported by the findings of fact reqUired." The ruling was a departure from present law, and if it is upheld, it could open the way for censorship of other kinds of information. At the request of Attorney General Janet Reno and the FBI, The New York Times and The Washington Post jointly published in September the unaltered 35,000-word manifesto of the serial kIller known as the Unabomber. It was hoped that meeting the bomber's demands would end his 17 -year campaign of murder through the mails. The Unabomber has kIlled three people and injured 23 others in 16 bombings since 1978. A pending Senate resolution would require journalists to disclose their sources of outside income in order to get Senate press credentials. Hearings on the issue, introduced by Sen. Robert C. Byrd (D-W. Va.), likely will occur this year. Under Sen. Byrd's resolution, journalists would have to file a report for the previous year no later than May 15 of each year. They would identify their primary employer and the amounts of any outside income. The reports, filed with the Secretary of the Senate, would be open for public inspection. The rule would apply to reporters and photographers for newspapers, other periodicals and the broadcast media. Reportable outside sources of income would not include interest or diVidends from stock, bonds, saving accounts or other forms of passive investment, or income from inheritances or rental properties. In California the state Assembly's Local Government Committee approved a bill that would authorize municipalities and counties to charge the media for broadcasting "high profile" cases. It would authorize local governments to require media units to bid for the right to broadcast a major trial. A backer of the bill noted that the O.J. Simpson trial cost Los Angeles County more than $2 million in the first 30 days of the trial, while the media was "making good money" on the trial through its broadcasts. An appeals court in California ruled that some records of citizen complaints against police officers are not accessible under the state Public Records Act. Also not available to the public is information on how the complaints are dealt with in internal investigations or reviews by appointed oversight commissions, the court said. The ruling followed a suit against the city of Richmond by the San Francisco Bay Guardian. The First District Court of Appeal overruled the lower court in March, asserting that documents could not be demanded if they might help persons suing police in abuse cases. The Court said: "There is little point in protecting information from disclosure in connection with criminal and civil proceedings if the same information can be obtained routinely under the Public Records Act." A local judge in Harlington, Texas, ordered the detention of radio commentator Howard Stern after the radio personality satirized the death of singer Selena. The order, issued for "disorderly conduct," which is a misdemeanor, can only be carried out in Harlington and carries a fine of $500. Shortly after the star's death on March 31, Stearn played a song by Selena with superimposed machine-gun fire. The show was broadcast nationwide. Arizona's Supreme Court in April let stand a lower court ruling giving the Arizona Daily Star access to e-mail and computer records from the Pima County assessor's justice. The decision ends a legal process that began in 1993 when the Star requested the records under a state public records' law. The county attorney's office refused to release the tapes on the ground that disclosure could violate the privacy rights of employees and unspecified exemptions to the public records law. The tapes were part of an investigation into alleged improprieties in the county assessor's office. Michigan's Court of Appeals ruled that The Detroit News is entitled to computer tapes of the city's property taxpayers. This reversed a lower court ruling that said the city could furnish the records on paper instead of tape. The News had asked for the tapes under the Michigan Freedom of Information Act in July 1990, arguing the tapes themselves were public records. The appeals court agreed the tapes were public. A South Carolina reporter was found in contempt of court on May 26 for refusing to disclose her source of information that state doctors had found a confessed child killer competent to stand trial. Judge William Howard had ordered Twila Decker of the Columbia State jailed in an effort to discover who had violated his gag order. The state's Supreme Court ruled unanimously that the need for Decker to reveal her source far outweighs any asserted First Amendment right to keep it a secret. Decker remains free during her appeal. Elkin Farley Salazar, 26, a drug dealer, was sentenced to 18 years in prison on May 27 for hiring a hit man to kill Manuel de Dios Unanue, a journalist whose writings criticized and disturbed a Colombian drug cartel. Unanue was gunned down in a restaurant in Queens, New York, in 1992. Farley received a lighter sentence for his cooperation with authorities in convicting Wilson Alejandro Mejia Velez, 17, who was hired to kill the journalist. A subcommittee on the Constitution of the House of Representative on May 25 agreed by a seventy to five vote on a proposed constitutional amendment empowering Congress and the states to prohibit the physical desecration of the flag of the United States. The proposal will be considered by the Judiciary Committee of the House. The Clinton Administration announced on July 8 that it would allow U.S. press agencies to establish offices in Cuba. While the measure has been approved by several members of Congress, Jesse Helms insisted that Radio Mart{ and TV Mart{, which broadcast to Cuba from the United States, also be allowed to establish offices in Havana. This could impede the implementation of such offices in Cuba. The State Department on Aug. 10 called on the Cuban government to stop harassing independent journalists and let them work without interference. State Department spokesman David Johnson said that over the past four weeks, reporters have been persecuted for sending reports to foreign publications. Two daily newspapers in Hawaii have asked a federal court to overturn a state law requiring them to submit their income tax returns to the state attorney general. The Honolulu Advertiser, the Honolulu Star-Bulletin and Hawaii Newspaper Agency filed suit Aug. 3 asserting that the law violates Constitutional guarantees of a free press. The suit contends that the law allows the state unbridled power in requiring the tax return and related information, and would allow the state to punish the newspapers for their editorial views and opinions. Two South Carolina rulings reaffirmed the public right to open meetings and courts. A Surry County judge held that public boards could not decide to buy land without first telling the public which property they want to buy and how they intend to use it. The judge found that the board of commissioners acted illegally by closing a meeting to discuss land purchases and by not releasing records later. In a case involving the North Carolina Press Association, a Forsyth County judge agreed to open court hearings involving attorneys for 0.]. Simpson, who were seeking tapes and testimony from a North Carolina professor about interviews with retired police detective Mark Fuhrman. In Elizabeth, New Jersey, Mayor J. Christian Bollwage destroyed copies of The Elizabeth Reporter, a weekly newspaper, and ordered the seizure of large numbers of the publication at least five times in the past year, the Reporter charged on Oct. 11 in U.S. District Court. The suit said the mayor also intimidated Reporter advertisers. In Bergen County, New Jersey, The Record quoted Bollwage as saying the Reporter was "nothing more than a camouflage for political candidates and officeholders, and serves as their political mouthpiece." Robert Jaspan, a city councilman, was quoted as saying, "The beef is he doesn't like the way the Reporter reports on the different issues. It is critical of him."