Media and First Amendment
Jenner & Block is nationally renowned for its work defending the First Amendment rights of creative content providers. In addition to providing regulatory advice and pre-publication review of content, Jenner & Block is the Firm that the content, media and entertainment industries turn to when they need to challenge local, state and federal regulations, whether in state or federal courts across the country or in the U.S. Supreme Court. Jenner & Block attorneys have been involved in many of the most significant First Amendment cases in the last two decades. Our extensive practice includes both litigation and counseling on a wide variety of media law and First Amendment issues, including:
Defense of libel and invasion of privacy cases.
- Litigating challenges to statutes and regulations restricting “violent” video games and defending against tort claims based on the actions of third parties.
- Litigating challenges to statutes restricting content that may be sent over the internet.
- Litigating challenges to statutes and regulations restricting commercial speech.
- Litigating a range of newsgathering issues, including access to judicial proceedings and records, resistance to subpoenas served upon members of the media, intrusions into the newsgathering process, prior restraints, and Freedom of Information Act proceedings.
- Litigating cases involving censorship of books and computers in libraries.
- Counseling on non-litigation media matters, including pre-publication advice on defamation and privacy issues for television stations, newspapers, magazines, and book publishers.
Representative matters handled by our Media and First Amendment team include:
- Brown v. Entertainment Merchants Association, formerly Schwarzenegger v. EMA: We represented the video game and software industries in a successful First Amendment challenge to a California law that would have restricted the sale or rental of “violent” video and computer games to anyone under the age of 18. The case ultimately resulted in a 7-2 United States Supreme Court decision striking down the law as unconstitutional.
- Over the past several years, Jenner & Block has served as lead counsel to the video game industry in numerous lawsuits challenging 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 grounds that they violate the First Amendment.
- James v. Meow Media: We represented 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 Court of Appeals for 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. Acclaim Entertainment: We represented a number of video game defendants in a case stemming from the Columbine shooting. The federal district court dismissed the suit on both state law and First Amendment grounds.
- Entertainment Software Association v. Chicago Transit Authority: Jenner & Block represented the video game industry in a successful challenge to a Chicago Transit Authority (CTA) ordinance that prohibited the display of advertisements for “mature content” video games anywhere in the CTA system. The federal district court preliminarily enjoined the ordinance, which did not apply to advertisements for any other form of “mature content” media, on the grounds that it likely violated the First Amendment. The CTA subsequently settled the case with a substantial payment to the ESA for its attorneys’ fees and entry of a consent judgment permanently enjoining enforcement of the ordinance.
- Reno v. ACLU: We represented the American Library Association and a several other plaintiffs in consolidated cases challenging the federal Communications Decency Act (CDA), 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.
- United States v. American Library Association: We 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.
- Turner Broadcasting System v. FCC: We represented the National Association of Broadcasters (NAB) 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 our argument on behalf of the NAB that the First Amendment was not violated by this requirement.
- Global Relief Foundation v. The New York Times Co.: Jenner & Block 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 obtained summary judgment in favor of ABC on the grounds that its news report was substantially true. The Court of Appeals for the Seventh Circuit affirmed the summary judgment ruling 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: We 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.” Demanding damages in excess of $30 million, 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. 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 that Paramount’s First Amendment rights must include the flexibility to incorporate real life aspects into creative works. The United States Court of Appeals affirmed the summary judgment for Paramount on all claims.
- Food Lion v. Capital Cities/ABC: We successfully 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.