Jenner & Block

Media and First Amendment

Internet, New Technologies and the First Amendment

  • Sorenson Communications, Inc. v. FCC:  Represented provider of telecommunications relay services in successful First Amendment challenge to restrictions on TRS providers’ use of customer data and fund revenue.
  • United States v. American Library Association:   Represented the American Library Association in its challenge to the constitutionality of the Children’s Internet Protection Act, a federal law mandating the use of “blocking software” on all computers allowing access to the Internet in any library receiving certain federal funds.  On direct appeal from a three-judge court in Philadelphia, a divided U.S. Supreme Court narrowly upheld the law against a facial challenge, while holding that any application of the law that burdened patrons’ First Amendment rights would be subject to an as-applied challenge.
  • Reno v. ACLURepresented the American Library Association and a long list of additional plaintiffs in consolidated cases challenging the federal Communications Decency Act, which imposed restrictions on distribution of so-called “indecent” content over the Internet.  The U.S. Supreme Court struck down the CDA in a landmark decision confirming that the First Amendment provides the strongest level of protection to expression on the Internet.
  • Turner Broadcasting System Inc. v. FCCRepresented the National Association of Broadcasters in this long-running case over the constitutionality of the federal law requiring cable companies to carry local broadcast stations.  Ultimately, the U.S. Supreme Court accepted the NAB’s argument that the First Amendment was not violated by this requirement.
  • AT&T Corp., et al. v. City of PortlandRepresented the Oregon Internet Service Providers Association as intervenors, defending rules requiring cable operators to permit access to the Internet provider of their subscriber’s choice, just as telephone companies must, against challenges under the First Amendment, Contract Clause and Commerce Clause.
  • Brown v. Entertainment Merchants Association, et al., formerly Schwarzenegger v. EMA, et al.:  Represented the video game and software industries in successful First Amendment challenge. The United States Supreme Court struck down a California law that would have restricted the sale or rental of “violent” video and computer games to anyone under the age of 18 based on their content.

Regulation of Entertainment Content

  • Over the past several years, Jenner & Block has served as lead counsel to the video game industry in lawsuits challenging numerous state and municipal laws seeking to restrict video games based on “violent” content.  Nine such laws have been passed – in California, Michigan, Illinois, Oklahoma, Louisiana, Minnesota, Washington, St. Louis County, and Indianapolis – and every court has upheld our constitutional challenge, enjoining the laws on the ground that they violate the First Amendment.  We also counsel the video game industry on proposed video game legislation at the federal and state levels.
  • Electronics Arts v. Ryan Hart:  Represented  Electronic Arts in a First Amendment challenge to the application of state right-of-publicity laws to prohibit the use of a college football player’s likeness in a college football video game. The petition for certiorari is currently pending.
  • Electronic Arts v. Samuel Michael Keller:  Represented  Electronic Arts in a petition for a writ of certiorari prepared in response to the opinion of the Ninth Circuit affirming the denial by the United States District Court for the Northern District of California of the special motion to strike pursuant to California's anti-SLAPP statute.  The case involved the collision of the First Amendment and state-law “rights of publicity” tort.
  • Brown v. Entertainment Merchants Association, et al., formerly Schwarzenegger v. EMA, et al.: Represented the video game and software industries in successful First Amendment challenge. The United States Supreme Court struck down a California law that would have restricted the sale or rental of “violent” video and computer games to anyone under the age of 18 based on their content.
  • James v. Meow MediaRepresented most of the leading companies in the video game industry, including Nintendo, Sega and Sony, in this lawsuit involving claims that a troubled teenager’s exposure to video games led to a high school shooting in Paducah, Kentucky.  The district court dismissed the case on state law grounds without reaching the First Amendment defenses we raised.  The Sixth Circuit affirmed on state law grounds, but recognized that holding the defendants liable for the reaction of listeners and viewers to the content of their speech would present substantial First Amendment problems.  The U.S. Supreme Court denied certiorari
  • Sanders v. Meow MediaIn a case stemming from the Columbine shootings and raising allegations similar to those in James, we again represented a number of video game defendants.  The federal district court dismissed the suit on both state law and First Amendment grounds.  The plaintiffs voluntarily dismissed with prejudice their appeal to the Tenth Circuit.

Media Libel

  • Scottie Pippen v. NBC Universal Media LLC:  Represented NBC Universal (CNBC) in a libel action brought by famous professional athlete.  The case was argued in the Seventh Circuit Court of Appeals on behalf of all of the defendant media companies, including CBS Interactive and Evolve Media Group.  The Court refused to revive the defamation suit against our client.
  • Global Relief Foundation v. The New York Times Co. et al.Represented ABC and one of its reporters in a high-profile libel action brought by an Islamic charitable organization alleging that ABC News (and five other news organizations) falsely accused it in a news report of having financial ties to terrorists.  We persuaded the federal district court to grant summary judgment in favor of ABC on the grounds that its news report was substantially true.  Thereafter, we served as lead counsel for all six news organization defendants in the plaintiff’s appeal of the summary judgment.  We briefed and argued the appeal in the United States Court of Appeals for the Seventh Circuit, which affirmed the summary judgments in an opinion that broadly expanded the scope of the substantial truth defense available to news organizations reporting on government investigations.
  • Muzikowski v. Paramount Pictures Corp.: Represented Paramount Pictures in a precedent-setting case that protects the right of movie studios to produce films that are “inspired by a true story.”  The plaintiff filed suit claiming that a character in the movie Hardball portrayed his own life and, paradoxically, that the movie defamed him because it was an inaccurate portrayal.  Muzikowski also asserted Lanham Act and numerous other claims and demanded damages in excess of $30 million.  Jenner & Block successfully argued that the defamation claim had no merit because the movie was not about Muzikowski and it did not purport to be a documentary or even a dramatized account of actual events.  In granting summary judgment for our client, the court rejected the plaintiff’s Lanham Act claim, agreeing with Jenner & Block that Paramount’s First Amendment rights must include the flexibility to incorporate real life aspects into creative works.  The court also awarded Paramount more than $50,000 in sanctions stemming from Muzikowski’s counsel’s noncompliance with discovery.  The United States Court of Appeals affirmed the summary judgment for Paramount on all claims and the award of sanctions.
  • Wilkow v. ForbesRepresented Forbes in this libel and false light invasion of privacy action, which arose out of a Forbes news article concerning an important bankruptcy case involving the plaintiff.  The case raised numerous important media law issues, including choice of law, the fair report privilege, the libel per se/per quod doctrines, and the scope of the First Amendment protection for opinion.  Jenner & Block succeeded in having the case dismissed by the district court and obtaining an affirmance from the United States Court of Appeals for the Seventh Circuit based on an expansive interpretation of Illinois law on protected opinion
  • Russell v. ABCRepresented ABC in this action, which arose out of a hidden camera investigation into the sales techniques used by supermarkets.  The case raised numerous libel, false light and newsgathering law issues.  We succeeded in having the newsgathering tort claims dismissed on the pleadings, and thereafter, obtaining summary judgment on the broadcast claims based on First Amendment constitutional malice and opinion principles.
  • Chicago City Day School v. WadeRepresented a local radio station and a radio personality in this libel suit, which arose out of comments on a talk radio program relating to a private school.  We succeeded in having the lawsuit dismissed in the trial court, and having the dismissal affirmed by the Illinois Appellate Court.  Jenner & Block persuaded the courts to utilize a rigorous application of the Illinois innocent construction rule and an expansive view of the First Amendment protection for opinions
  • Marine v. Capital Cities Inc.Represented a television station in this libel and false light action based upon a news report concerning the firing of a public employee.  The Firm obtained a dismissal of the plaintiff’s libel claim and false light claims on several alternative substantive grounds.  The Firm successfully handled the appeal of the dismissal.
  • DeBoer v. WLS-TVRepresented a television station in this libel action challenging a news report brought by two Chicago police officers.  The Firm successfully persuaded the trial court to apply a strict standard for libel per se claims and dismiss the lawsuit on the grounds that the broadcast did not sufficiently refer to the plaintiff to sustain a per se claim.  Thereafter, the Firm obtained an affirmance of the dismissal in the Appellate Court

Commercial Speech

  • Greater New Orleans Broadcasting Association Inc., et al. v. United StatesRepresented the Greater New Orleans Broadcasting Association in a successful challenge to federal statutory and administrative restrictions on advertising that had been imposed in one form or another, and unchallenged, for more than sixty years
  • Rubin v. Coors Brewing Company Represented Coors in the U.S. Supreme Court in a challenge to a federal ban on providing the amount of alcohol content on beer labels.

Reporter’s Privilege

  • New York Times v. Gonzales:  In a high-profile subpoena case, we filed an amicus brief in the U.S. Supreme Court on behalf of 18 media organizations, including many of the nation’s leading newspapers, concerning the importance of the reporter’s privilege
  • Lee v. Department of JusticeWe filed amicus briefs for coalitions of media organizations in the D.C. Circuit and the U.S. Supreme Court in this important reporter’s privilege case.
  • We have successfully represented several print and broadcast news organizations in quashing subpoenas seeking disclosure of journalists’ sources, notes and outtakes.
  • We are the authors of a treatise chapter that traces the history and scope of the reporter’s privilege.

Prior Restraints

  • Neurotron, Inc. v. American Association of Elcetrodiagnostic MedicineWe defended the American Association of Electrodiagnostic Medicine against a claim for a prior restraint of publication of its journal Muscle and Nerve based on the Lanham Act and commercial disparagement claims.  We defeated plaintiff’s two requests for temporary restraining orders and its request for a preliminary injunction, and prevailed on summary judgment.  The Fourth Circuit affirmed.

New Problems for Traditional Media Clients

  • Food Lion v. Capital Cities/ABC Inc.Represented ABC on appeal in this highly publicized case involving tort liability for use of undercover reporters to investigate conditions and practices in a grocery store chain.  The U.S. Court of Appeals for the Fourth Circuit ruled that the plaintiff’s fraud claim was legally insupportable, thereby reducing the damages awarded by a jury to the nominal sum of $3
  • Newsweek Inc. v. Department of Revenue of the State of Florida, et al.Represented Newsweek before the United States Supreme Court, challenging an imposition of state tax on due process grounds and winning a rare summary decision at certiorari stage.  We continued to handle the matter on remand to ensure that the state courts rejected alternate grounds for allowing the state tax department to keep the funds.  The tax department refunded Newsweek’s unlawfully collected tax payments in full
  • Los Angeles Police Department v. United Reporting Publishing Corp.Represented United Reporting in a case raising a question potentially outside current First Amendment doctrine:  when, if ever, a rule governing access to government information acts as a speech regulation rather than an access restriction and should therefore be reviewed under the appropriate constitutional standard applicable to equivalent speech regulations.
  • Gloria Bartnicki and Anthony F. Kane, Jr. v. Frederick W. Vopper, et al.: Represented The Liberty Project as amicus in this carefully watched case involving the constitutionality of punishing the press for publishing material that it received innocently but that derived from someone else’s illegal taping of a cellular phone call

Other First Amendment Cases

  • Harris v. Quinn:  Represented Illinois public employee unions in arguing that the Court should reject a First Amendment challenge to the fair-share fee provision in a collective bargaining agreement between the state of Illinois and a union representing home care assistants.  That provision requires non-members of the union in the work force to share in paying the cost of negotiating and enforcing the agreement.
  • Boy Scouts of America, et al. v. James DaleRepresented the American Psychological Association as amicus in the U.S. Supreme Court in this highly charged right of association case that involved whether the Boy Scouts has a constitutional right to deny admission to gay scouts which overrides a state’s nondiscrimination law
  • American Society of Association Executives v. United StatesRepresented the ASAE in a First Amendment challenge to special provisions imposing an income tax on money associations spend to lobby.
  • Rossignol v. VoorhaarWe filed an amicus brief for the Reporters Committee for Freedom of the Press and other media groups in the Fourth Circuit in a case about whether the First Amendment protects a newspaper from suppression by local officials of an issue criticizing the sheriff.