Steven Tyler Act Redux: Better But Probably Still Unnecessary

Posted by Elijah Yip on Mar 3, 2013 in First Amendment, Privacy

Creative Commons image courtesy of Daigo Oliva on Flickr

The Hawaii anti-paparazzi bill eponymously named after its chief supporter is back after getting an extreme makeover, and it just took another step toward becoming law in Hawaii.  The Senate Judiciary Committee has recommended passage of a revised version of the Steven Tyler Act (SB426, S.D. 1).  The revised bill is a big improvement from the original version.  It goes a long way toward remedying the problems discussed in my previous post on the Act, and now it looks much more like the California statute after which it was patterned.  But despite the revisions, the Act remains quirky in some ways, and it still doesn’t answer the question of why we need a brand-new privacy law.

Here are the highlights of the revised bill.  The revised bill:

• creates an actual tort for constructive invasion of privacy, not just one in the name.  The original bill tried to create a constructive invasion of privacy tort, but the parameters of the tort were not well-defined.
• defines certain concepts that are key to liability under the Act, like “personal and familial activity.”
• makes it very difficult to impose liability on those publicizing or selling images or sound recordings that were captured in violation of the Act.
• carves out exceptions to liability, including one for law enforcement activities.
• creates a fairly novel process for raising a defense against invasion of privacy claims in court based on the First Amendment or its counterpart in the Hawaii State Constitution.

Now, let’s look at some of the features of the revised bill in greater detail.

Constructive Right of Privacy

The revised bill creates two types of invasion of privacy, one physical in nature and the other constructive.  Both require an intrusion into land owned or leased by the plaintiff.  This is an important revision because it gets rid of the “taking pictures at the beach” scenario (i.e., why should a celebrity complain about invasion of privacy if her picture is taken on a public beach?)

An intrusion, however, does not necessarily require a physical trespass onto the plaintiff’s property.  Spying and eavesdropping could constitute intrusion, but does not necessarily involve a physical trespass.  The tort of constructive invasion of privacy accounts for this distinction, stating that non-physical intrusions will be treated as invasions of privacy.  The use of “visual or auditory enhancing devices” to probe into the plaintiff’s private affairs, regardless of whether it involves a physical trespass, counts as an invasion of privacy.  That’s how constructive invasion of privacy works.

The original bill bungled the concept of constructive invasion of privacy by not tying liability to the use of visual or auditory enhancing devices.  The revised bill fixes that problem.

“Personal and Familial Activity”

The original bill left out definitions of key concepts.  A notable one was “personal and familial activity,” which is what the plaintiff must have been engaged in when the defendant captured images or recordings of him or her.  The original bill did not define the term.  The revised bill adopts the definition used in the California anti-paparazzi law.

Having a definition rather than none is a step in the right definition, but the definition is still too vague.  The revised bill defines “personal and familial activity” as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.”  What range of activities does “the plaintiff’s private affairs or concerns” include?  The revised bill doesn’t say.

Liability of Sellers of Images and Recordings

One criticism of the Act was that it punishes sellers of images or recordings of celebrities.  The Act imposes liability on those who sold images or recordings that were captured in violation of the Act if they had “actual knowledge” of the violation and received compensation for the rights to the images or recordings.  One problem of the original bill is that “actual knowledge” was not defined, so the level of intent needed to trigger liability wasn’t clear.  The revised bill remedies that problem by defining “actual knowledge.”  The definition requires “actual awareness, understanding, and recognition” that the image or recording was taken or captured in violation of the Act.  That’s difficult to prove.

But the revised bill goes one step further in limiting publisher and seller liability.  The plaintiff has the burden of establishing actual knowledge by “clear and convincing evidence.”  This is the highest standard of proof in a civil matter (just below the “beyond a reasonable doubt” standard in criminal cases).

The plaintiff’s burden to prove the liability of publishers and sellers is reminiscent of the “actual malice” standard applicable in libel cases brought by a public official or public figure.  In other words, the revised bill makes it very, very difficult to prove publisher and seller liability.

The revised bill also makes clear that there is no derivative liability for publicizing or selling an image or recording if it had been previously publicized or sold before without violating the Act.

Exceptions to Liability

The revised bill creates exceptions to liability, most notably for activities relating to law enforcement and investigation into illegal conduct.  The revised bill also clarifies that the Act does not preclude suits for other legal or equitable relief under other theories, including the Hawai‘i anti-SLAPP law or a claim for publication of private facts.

First Amendment Defense

Perhaps the most interesting feature of the revised bill is an expedited process for handling defenses based on the First Amendment or its Hawaii counterpart, i.e., Hawaii Constitution, Article I, Section 4 (the revised bill does not cite specifically to Section 4, which is the section that parallels the First Amendment, so the expedited process apparently applies to a defense based on any portion of Article I is raised).  The basic idea is to give first priority to resolving questions of the constitutionality of enforcing the Act in a particular situation.

Here’s how the expedited process works.  If the defendant files a motion to dismiss a claim for violation of the Act based on First Amendment/Article I grounds, the case basically comes to a halt until the motion is decided.  The court cannot look outside the allegations in the pleadings to decide the motion, and all discovery is suspended until the motion is decided.  The court must hold a hearing and rule on the motion on an expedited basis.  If the court denies the motion, the defendant may immediately appeal the denial.

The revised bill also flips the burden of proof.  When the defendant files a motion to dismiss based on a First Amendment/Article I defense, the plaintiff has the burden to prove that, more likely than not, the plaintiff’s “claim is [not] barred by a defense based on the First Amendment of the United States Constitution or article I of the Hawaii State Constitution” (note that the quoted language in the revised bill omits the word “not”; that’s probably a typo).  If the defendant wins the motion, it can recover damages, attorneys’ fees, costs, punitive damages, and other sanctions against the plaintiff and even the attorneys and law firm representing the plaintiff.

Thoughts on the Revised Bill

The revised bill is much better than the original version.  I’m still not convinced, though, that the solution to the problem of overzealous paparazzi is a new law.  Hawaii already recognizes the privacy tort of inclusion into seclusion, and that seems to cover the type of intrusion addressed in the concept of “constructive invasion of privacy.”  The tort of intrusion into seclusion does not require a physical invasion into the plaintiff’s personal space.  The use of visual or auditory enhancing equipment to remotely gain access to the plaintiff’s private affairs would seem already covered under existing law.  Creating a new law to deal with the issue would add little new benefits while potentially creating more problems.

Take the expedited process for dealing with First Amendment issues, for example.  According to a Standing Committee Report, the expedited process was created in response to constitutional concerns about the Act.  As a lawyer who represents media defendants, I welcome extra procedural protections for airing out First Amendment issues.  But I do think the expedited process is somewhat sloppy.  The process gives too much incentive to a defendant to respond initially to a Tyler Act claim with First Amendment defenses, even unmeritorious ones.  The defendant has nothing to lose and everything to gain by using such a tactic.  By filing a motion to dismiss on First Amendment grounds, the defendant can freeze discovery in the case, shift the burden of proof to the plaintiff, and potentially reap the benefit of recovering fees, costs, and damages from the plaintiff, his or her attorney, and even the attorneys’ law firm!  There are few circumstances in which a defendant should not raise a First Amendment defense.  And on the flip side, true victims of constructive invasion of privacy might think twice before suing under Tyler Act due to the risks involved.  Which again begs the question: Do we really need the Tyler Act?

Nevada Court Applies CDA Immunity To a Slew of State Tort Claims

Posted by Elijah Yip on Feb 21, 2013 in First Amendment, Litigation

Court Finds That State Law Claims Against Online Forum Operator For Misappropriation, Theft, and Tortious Interference Hinge on “Publisher” or “Speaker” Status–Stevo Design, Inc. v. SBR Marketing Ltd., 2013 WL 308996 (D. Nev. Jan. 25, 2013)

A Nevada federal court held that Communications Decency Act (CDA) immunity barred state tort claims asserted in a lawsuit involving the dissemination of sports betting information.  The court’s holding was based on a liberal interpretation of what it means to be a “publisher” or “speaker” under section 230 of the CDA.

Stevo Design, Inc. (Stevo) sells licenses for access to its sports betting reports.  SBR operates a website with a discussion forum where users may post messages relating to sports betting and handicapping and to send messages to other users.  SBR encourages activity on its website by awarding loyalty points to users for doing different things on the website, including posting original content.  The loyalty points may be redeemed for credits at offshore gambling websites.  Stevo claimed that SBR and its users published Stevo’s protected works on the SBR website without obtaining a license.

In addition to bringing claims for copyright and trademark infringement, Stevo asserted a slew of state-law claims against SBR.  SBR asked the court to dismiss these state-law claims.  The court first determined if SBR qualified for CDA immunity.  The key question was whether SBR had a hand in developing the online content at issue.  If so, then SBR does not enjoy CDA immunity.

Relying on Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008), the court concluded that SBR did not “develop” the offending online content.  SBR encouraged its users to post original content.  It did not specifically encourage its users to publish information illegally on the website.  The fact that SBR users could freely contribute loyalty points to each other further evidenced the minimal role that SBR played in monitoring the content of forum posts.  That SBR “sporadically” tried to eliminate infringing content did not persuade the court that SBR was a developer of unlawful content—the CDA allows interactive computer services to perform some editing of user-generated content without becoming liable for all unlawful messages they do not edit or delete.

Having determined that SBR qualified for CDA immunity, the court next considered the impact of immunity on the state-law claims.  CDA immunity effectively precludes the operator of the interactive computer service from being considered the “publisher or speaker” of user-generated content.  As a result, only claims requiring the defendant to be the “publisher or speaker” are barred by CDA immunity.  Applying the meaning of “publisher or speaker” status liberally, the court concluded that CDA immunity barred each of the state-law claims:

Misappropriation of trade secrets: Misappropriation involves either “acquisition” or “disclosure” of a trade secret.  The court easily found that “disclosure” of trade secrets through user posts on the SBR website to require there to have been publishing or “speaking.  The court found “acquisition” to be a closer question, but the only kind of acquisition alleged in the complaint involved user posts on the SBR website, so the CDA barred that kind of misappropriation as well.

Misappropriation of licensable commercial property:  The court is not sure such a claim exists under Florida common law, but assuming it is a form of misappropriation, the plaintiff must have suffered competitive injury due to the defendant’s taking of information.  Stevo alleged that SBR injured it giving away its copyrighted information for free.  The only way SBR could have done that was by disclosing the information, i.e., it acted as a publisher or speaker.

Contributory misappropriation of licensable commercial property:  This claim merely required that SBR induced others to speak or publish.  The court refused to allow circumvention of CDA by alleging that the defendant induced publication or speech instead of itself doing the publishing or speaking.  Since SBR did not tell users what kind of information to include in their posts or encourage infringing content, it enjoyed immunity from this claim.

Civil theft:  Common law theft is defined as obtaining or using the property of another with intent to appropriate the property to his or her unauthorized use.  The only plausible way SBR procured or used Stevo’s property was through publication.  This claim is barred.

Tortious interference with contractual relations:  This claim requires interference with a business relationship.  The only interference that could be inferred from the complaint involved SBR’s publication of Stevo’s works.  As this claim depended on SBR’s status as the publisher, it is barred.

First Grade Teacher Loses Tenure For Airing Classroom Frustrations on Facebook

Posted by Elijah Yip on Jan 14, 2013 in Employment and Labor, First Amendment, Schools, Social Media

No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)

We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.)  Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district.  Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media?  Not in this case.

Jennifer O’Brien was a first-grade schoolteacher.  O’Brien posted two statements on Facebook:

I’m not a teacher—I’m a warden for future criminals!

And the second:

They had a scared straight program in school—why couldn’t [I] bring [first] graders?

The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz).  Ortiz was “appalled” by the statements.  O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.

The school district charged O’Brien with conduct unbecoming of a teacher.  An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed.  The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments.  A New Jersey court adopted with the reasoning of the ALJ on appeal.

Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements.  The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivating for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.”  Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools.  The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.

LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks.  Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees.  But even public employees don’t have absolute freedom to say whatever they want.  As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.

New North Carolina Law Criminalizes Cyberbullying of School Workers

Posted by Elijah Yip on Dec 4, 2012 in First Amendment, Schools

Cyberbullying is a problem not just for students, but school workers as well (see my post on the R.S. v. Minnewaska Area School District No. 2149 case).  To address that problem, North Carolina recently passed a law banning students from bullying school workers online.  An expansion of North Carolina’s existing anti-bullying law, the 2012 School Violence Prevention Act is the first in the nation to make cyberbullying of school workers a crime.  The 2012 law criminally penalizes public school students who use a computer or computer network with “intent to intimidate or torment a school employee” by:

• building a fake profile or web site
• posting or encouraging others to post on the Internet private, personal, or sexual information about a school employee
• posting a real or doctored image of a school employee on the Internet
• tampering with a school employee’s online network, data, or accounts
• using a computer system for repeated, continuing, or sustained electronic communications (including email) to a school employee

The new law also prohibits students from signing up school workers to pornographic websites or spam mailing lists, or making any statement, whether true or false, intending to provoke another person to stalk or harass a school worker.  The law went into effect on December 1.

The ACLU of North Carolina has criticized the law as overbroad, and announced plans to file a lawsuit challenging it.

The Need For a Disciplined Approach to Cyberbullying

Posted by Elijah Yip on Nov 26, 2012 in First Amendment, Privacy, Schools, Social Media

The legal boundaries for school discipline for cyberbullying continues to be unclear — R.S. v. Minnewaska Area School District No. 2149, 2012 WL 3870868 (D. Minn. Sept. 6, 2012); S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. Oct. 17, 2012)

As much as cyberbullying is gaining media attention, clear guidance on what schools can do about it is still lacking.  In January, the U.S. Supreme Court declined to review three free speech challenges involving social media content posted by students.  As a result, courts continue to grapple with defining the boundaries of school discipline for student online conduct, particularly when it happens off-campus.  A pair of recent cases illustrates this trend.

R.S. v. Minnewaska Area School District No. 2149: A 12-year old sixth grader (R.S.) posted on her Facebook page that she “hated” her school’s adult hall monitor.  R.S. posted the comment from her home outside of school hours.  The comment somehow found its way to the principal, who considered the comment a form of bullying.  The principal gave R.S. detention and required her to apologize to the hall monitor.  In a second incident, R.S. posted a comment on her Facebook wall stating: “I want to know who the F%$# [sic] told on me.”  For this, R.S was suspended for a day and prohibited from going on a class ski trip.  On a third occasion, school officials learned that R.S. was communicating with a male student on the Internet about sexual topics (when confronted, the male student admitted that he initiated the conversation).  The school officials called R.S. out of class to meet with them and the deputy sheriff assigned to the school.  They demanded to know her email and Facebook usernames and passwords.  Feeling pressured, R.S. complied.  The school officials then logged into her Facebook account and viewed the public and private messages she had posted on the site.  The school did not formally discipline R.S. any further.

The punishment of R.S. violated her First Amendment right to free speech

Judge Davis of the federal district court of Minnesota looked to the Tinker line of cases for guidance and concluded that the First Amendment prohibits school authorities from punishing students for out-of-school statements the statements are true threats or reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption there.  R.S.’s Facebook posts were not threatening, the court found, and while the posts might have been reasonably calculated to reach a school audience, that possibility alone did not justify her punishment.  An out-of-court statement must be more than inappropriate.  It must potentially cause a substantial disruption in the school before it can be punished.

The school violated R.S.’s Fourth Amendment right to be free of unlawful searches and seizures

Students enjoy a Fourth Amendment right to be free from unreasonable searches and seizures by school officials.  But did R.S. have a reasonable expectation of privacy as to the information posted on her Facebook account that only her Facebook friends could see?  The court said yes.  There is no meaningful difference between a password-protected private Facebook message and other forms of private electronic correspondence.  The court also found that the school officials had no legitimate governmental interest for reviewing her private communications.  Notably, there was no threat that R.S.’s private posts would cause a disruption in the classroom.

R.S. had a viable claim against the school for invasion of privacy

Again, the court focused on R.S.’s expectation of privacy.  The court analogized private Facebook messages to email messages, to which there is a reasonable expectation of privacy.  The court summarily rejected the schools’ argument that R.S. used Facebook in violation of the site’s terms of use because she was a minor.  The court failed to see how a violation of a website’s terms of use could destroy an expectation of privacy.  Also unpersuasive was the school’s argument that R.S. compromised her privacy interest by allowing her mother and one other person view her Facebook account.  It would be unreasonable, the court explained, to conclude that a person gives up all expectation of privacy as to the contents of his or her password-protected email account just by showing an email to another individual.

S.J.W. v. Lee’s Summit R-7 School District: Twin brothers (the “Wilsons”) who were high school juniors created a website called NorthPress.  Part of NorthPress was a blog intended to discuss, satirize, and “vent” about events at the Wilsons’ school.  Because the site was hosted on a Dutch domain, the site would not show up in the results of a Google search by a user in the U.S., but anyone knowing the site’s URL could access it.  The Wilsons added posts to the NorthPress blog containing a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates whom they identified by name.  The racist posts discussed fights at the school and mocked black students.  A third student added another racist post.

The Wilsons initially told only several of their friends about NorthPress and claimed they intended only their friends to know about it, but word about the site quickly spread to the study body at their school.  The school initially suspended the Wilsons for ten days, and after the matter went through further proceedings at the school district level, the Wilsons were suspended for 180 days but allowed to enroll in another school for the duration of their suspensions.  The Wilsons filed a lawsuit for a preliminary injunction to lift the suspensions.  The district court granted the preliminary injunction, but on appeal, the Eighth Circuit reversed.

Reviewing cases that analyze the applicability of Tinker to off-campus student speech, the Eighth Circuit ruled that the blog posts in question targeted the school, could reasonably be expected to reach the school or impact the environment, and caused considerable disturbance and disruption.  As a result, the Wilsons were unlikely to succeed on the merits, and so they were not entitled to an injunction.

LegalTXTS Lesson:  Cyberbullying is a serious issue, but schools should be careful not to overreact.  The reality is that much of the online material students post and share these days has a good chance of offending someone or being considered inappropriate by adults.  That doesn’t give schools the authority to police online content however they like.  Off-campus speech is punishable when it threatens to endanger danger to another student or cause substantial disruption in the school environment, but not merely because some would find it “inappropriate.”

How this rule is applied, however, depends on the sensitivity of the court.  The courts in R.S. and S.J.W. could have gone either way.  The court in R.S. could have concluded that the sexual conversations between two very young students presented a risk of substantial disruption in the classroom.  On the other hand, the court in S.J.W. could have held that the blog was never targeted at the school community, and therefore, its contents did not justify meting out school discipline.  Perhaps we’ll get more consistency in court rulings after Supreme Court decides to weigh in on the constitutional limits to combating cyberbullying.