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The First Amendment and Newsgathering:

Here's a question I just posed to a con law profs' discussion list; it strikes me as genuinely quite difficult, partly because the Supreme Court hasn't squarely confronted what rules should apply to facially content-neutral restrictions on newsgathering (as opposed to communicating the gathered news):

California Education Code 66450 provides that, generally speaking no person "shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of [a normal public university class] . . . . This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes." "Commercial purpose" is defined to mean "any purpose that has financial or economic gain as an objective."

Say that The Davis Enterprise, a newspaper in the town that hosts UC Davis, has heard from students that some instructors are saying sexist and anti-gay things in their classes. They therefore try to get tape recordings of the classes so they can hear for themselves, and quote the material accurately and in context. But they can't just send in a staff reporter (since nonstudents generally aren't allowed to sit in on lectures), and students are reluctant to tape the class for free: "You folks are a for-profit venture," students they approach tell them, "and you get paid a salary for your work. If you want us to be your researchers, hire us as your researchers." They therefore hire some students as part-time researchers, whose job is to record the classes, and -- if the professors indeed say sexist or anti-gay things -- to pass along the tapes.

UC Davis tries to stop this, arguing that the practice violates the statute. Though the statute was seemingly enacted to bar people from taping and then reselling the tapes to classmates or to would-be students who don't want to pay the money to go to school, it on its face also seems to cover compensated taping for news-gathering purposes.

Is the statute constitutional, as applied to this form of news gathering?

I'd love to see in the comments some detailed legal analyses of the questions, but please comment on this post only if you are well-acquainted with First Amendment precedents. I'm interested both in analysis under current doctrine and the possible creation of new doctrine, but I'd like to see rules that are practically plausible, which generally requires that they fit well with the general fabric of First Amendment law -- hence my preference that the discussion be limited to people who know that fabric well.

arbitraryaardvark (mail) (www):
The government can enforce copyright when it comes to taping classes, without violating the first amendment, although what you discuss should be within fair use. But the statute goes way beyond that and should fail a Broadrick v Oklahoma overbreadth analysis, not that that's the question you asked. The ideas cannot be copyrighted or, I would think, made trade secrets.
It's just farcically overbroad - a student who believes their degree will have market value cannot take notes for themselves, or take notes for their sick roommate. In law school, my roommate worked in the computer lab and wound up collecting copies of everybody's outlines, a very useful resource for those of us too lazy to make our own, or to skim classes we hadn't taken. Blackstone's commentaries are class notes from Blackstone's students. A brief could cite cases citing Blackstone, to make that point.
I'm a bit unclear - california no longer has its own state constitutional free speech case law, but is in lockstep with the first A? I think a judge would have trouble construing this statute narrowly enough to resolve the constitutional issues - there wouldn't be much left. While courts rarely agree with me on QI issues, I would think any attempt to enforce this would be illegal and tortious.
1.19.2006 4:56am
Wintermute (www):
Wintermute looked in his Favorites and thinks this link to the statute may be helpful.

There may be federal preemption involved as well, notably in the fair use department, see 17 U.S.C. § 107. An interest group paying for a report would not even necessarily mean that the copying was done for a truly commercial purpose as contemplated by the laws.
1.19.2006 5:12am
Splunge (mail):
Hmm, how do you explain this?
1.19.2006 5:30am
arbitraryaardvark (mail) (www):
splunge:
"BLACK LIGHTNING ONLINE is a commercial unit of the University of California, Berkeley."
a) offer void where prohibited by law, no refunds.
b) Berkeley isn't a person, in an ideal sense.
c) Berkeley isn't [a normal public university]
d) It's a black market operation.
e) It's a black thing, you wouldn't understand.
f) No harm, no afowl. .... etc.
1.19.2006 5:59am
Apodaca:
I think there's a similar issue raised by 47 USC 605(a), which reads in relevant part:
No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public, which relates to ships, aircraft, vehicles, or persons in distress, or which is transmitted by an amateur radio station operator or by a citizens band radio operator.
In other words, the statute only prohibits receiving and using the communications; merely intercepting them isn't illegal.

Moreover, the first sentence of this subsection (which has been construed to apply to all of 605(a)) begins "Except as authorized by chapter 119, Title 18...." That's the primary federal wiretap statute, which specifically excludes various radio communications from its eavesdropping restrictions. See 18 USC 2511(2)(g)(ii).

So let's suppose you own a taxi company, and you have the bright idea to listen to radio dispatches from your rivals. Listening is legal under both of the statutes above, so it's entirely legal for you to acquire the communication. But is it legal for you to use or disclose this information -- say, to send your cabs out to pick up the fares?

The Sixth Circuit says you can't do that as a statutory matter. See Cafarelli v. Yancy. But is that right as a constitutional matter? Isn't this at odds with Florida Star?
1.19.2006 8:55am
Mitchell Freedman (mail) (www):
I'll take a stab at it, as I do know my First Amendment law fairly well--unless this is a trick question and there is precedent of which I am unaware:

To save the statute's overbreadth (it applies to anyone and everyone, not just students), if the student newspaper is only going to quote portions of the lecture in order to give context to the controversial (or what they deem to be controversial, which a court would give wide range) aspects, then I would argue the statute is not applicable. Having read the entire statute through the web, it is written in a manner that suggests to me (I'd still want to review legislative history and precedent) that it was designed merely to avoid giving away a substantial portion of a professor's lecture for free. It works like a copyright, which, despite federal copyright laws, state laws that protect against "palming off" may save the statute from pre-emption.

In this way, I would do what judges are often instructed to do, whenever reasonable, which is to harmonize or limit the scope of a statute and avoid the constitutionality question.

While one may say the newspaper has the commercial motive of selling newspapers, my understanding of precedent is that such an argument has not been accepted in most instances. This is because a newspaper's business is directly tied up in First Amendment issues, unlike a business selling soap. Also, despite CA's general law prohibiting the taping of conversations or comments of others without prior consent, CA's Constitution contains a broadly construed (at least in the last 40 years) version of the First Amendment, plus at least a common law, somewhat limited reporter's privilege (I believe). CA is also on record, through its anti-SLAPP law, in highly protecting the right to speak publicly about a public issue or public controversy.

Notwithstanding the above, I remain open to being persuaded otherwise as my sometimes libertarian tendencies are admittedly uncomfortable with the breadth of this statute.
1.19.2006 10:33am
Cheburashka (mail):
I recall a freedom-of-the-press case stating that the state could not discriminatorialy tax newspapers.

I would argue that this statute's focus on commercial purpose seems to discriminate against private news-gathering organizations.
1.19.2006 11:14am
AF:
This seems like an easy case to me. University classes are not public fora. And the content of such classes are the intellectual property of the university. Universities can control speech that occurs within its classes, even if that speech is protected by the First Amendment. And they can control the content of their intellectual property without running afoul of the First Amendment.

Does it make any difference that it is a reporter who wishes to break an otherwise valid law by stealing the university's intellectual property? "It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws." Branzburg v. Hayes 408 U.S. 665, 691 (1972).
1.19.2006 11:51am
JLR (mail) (www):
This is a very interesting question as there are no U.S. Supreme Court precedents that are precisely on point. But an interesting Supreme Court precedent that seems to be somewhat on point is Cohen v. Cowles Media Co., 501 US 663 (1991). Cohen is crucial because, to quote from The First Amendment Center's web site, "the Court, which at times has stretched to find ways for the media to avoid liability for publishing truthful information, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), was unwilling to extend that protection to the facts in this case." In the Cohen v. Cowles decision, Justice White writes "This case however, is not controlled by [the Smith v. Daily Mail Publishing and Florida Star ] line of cases but rather by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." (The following post will contain the two paragraphs that are most pertinent, and from which the above sentence takes place.)

Justice White thus is distinguishing this case (which dealt with St. Paul and Minneapolis newspapers disclosing a confidential source, leading the confidential source to lose his job and then suing the newspapers) from Florida Star and other similar cases. However, does California Education Code 66450 do more than just create an "incidental effect" on the press's ability to "gather and report the news"? Once again we would have something of an effects test, and it would be up to the minds of the judges sitting before the case.

However, Justice White, in response to Justice Blackmun's dissent, writes: "Justice Blackmun's reliance on cases like The Florida Star and Smith v. Daily Mail is misplaced. In those cases, the State itself defined the content of publications that would trigger liability. Here, by contrast, Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations and any restrictions which may be placed on the publication of truthful information are self-imposed." So perhaps Cohen could either be distinguished from the hypothetical case and a court would rule in favor of the Davis Enterprise, or Cohen could be used as a precedent to build a ruling in favor of UC-Davis.

Also, Cohen deals with confidentiality of sources and promissory estoppel. However, MN's promissory estoppel law is of general applicability and provides for only civil damanges (similar to the California Education Code in that, as Mr. Freedman notes above, the law is of general applicability. Another side comment on Mr. Freedman's otherwise excellent post: Just to clarify a minor point, The Davis Enterprise is not a student newspaper but the general commercial newspaper for the area.)

So there you have it. It would seem that Cohen v. Cowles provides an effects test for a similar situation as found in the hypothetical case Professor Volokh presents. But there are key differences in the fact patterns that could easily make the two cases distinguishable.
1.19.2006 12:05pm
Ken Arromdee (mail):
Does it make any difference that it is a reporter who wishes to break an otherwise valid law by stealing the university's intellectual property?

The reporter's use of the lecture is likely to be fair use; thus, no law breaking.
1.19.2006 12:08pm
JLR (mail) (www):
Here are the two key paragraphs from Justice White's majority opinion in Cohen v. Cowles Media Co ., 501 US 663 (1991) (N.B. My above post, for whatever reason, was having difficulty with the html italics command — I apologize for the lack of italics in my above post.)

Respondents rely on the proposition that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally pun- ish publication of the information, absent a need to further a state interest of the highest order." Smith v. Daily Mail Publishing Co., 443 U. S 97, 103 (1979). That proposition is unexceptionable, and it has been applied in various cases that have found insufficient the asserted state interests in pre- venting publication of truthful, lawfully obtained informa- tion. See, e. g., The Florida Star v. B. J. F., 491 U.S. 524 (1989); Smith v. Daily Mail, supra; Landmark Commu- nications, Inc. v. Virginia, 435 U.S. 829 (1978).

This case however, is not controlled by this line of cases but rather by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. [bold added] As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. Branzburg v. Hayes, 408 U.S. 665 (1972). The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. See Zacchini v. Scripps-Howard Broad- casting Co., 433 U.S. 562, 576-579 (1977). Similarly, the media must obey the National Labor Relations Act, Associ- ated Press v. NLRB, 301 U.S. 103 (1937), and the Fair Labor Standards Act, Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193 (1946); may not restrain trade in violation of the antitrust laws, Associated Press v. United States, 326 U.S. 1 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969); and must pay non- discriminatory taxes. Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943); Minneapolis Star and Tribune Co. v. Min nesota Commissioner of Revenue, 460 U.S. 575, 581-583 (1983). Cf. University of Pennsylvania v. EEOC, 493 U.S. 182 , 201-202 (1990). It is therefore beyond dispute that "[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. NLRB, supra, at 132-133. Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.
1.19.2006 12:09pm
John (mail):
AF may be a little off the mark. True we are talking about property, and true it is that a reporter has no more right to steal the desks in the classroom than to steal the school's or the teacher's intellectual property.

But while with tangible property there is a distinction between, say, use and taking, with words there is not: if I use your words I have taken them. There is thus no real way to "report" on disagreeable, or, for that matter, any speech without appropriating it to some extent. That is why the fair use exception exists after all.

So the fact must be that in order to exercise a First Amendment right to report on speech one must appropriate the words. From this it follows that any statute that prohibits appropriation of the words in toto must conflict with whatever First Amendment rights exist to report on those words,

I think the "commercial use" stuff is really a red herring here.
1.19.2006 12:13pm
JLR (mail) (www):
I should also note that California Education Code 66451 also, like the MN promissory estoppel law in Cohen, only provides for civil damages.

This is a very interesting hypothetical Prof. Volokh; thank you for presenting it.
1.19.2006 12:23pm
Scott W. Somerville (mail) (www):
Whose ox is being gored? If the professor was pushing Intelligent Design in the classroom, would people take the same position on the legal issue?

From my vantage point as a homeschool attorney, I'd feel comfortable with an aggressive readinf of the Fair Use doctrine for this one, tempered with the certainty that the trial court and appellate judges would hammer my client completely out of recognition. This is the kind of case where an activist judge will rewrite the facts until he or she has something one can demonize, and then rule on that fictitious case.

In other words... the Supreme Court would probably uphold the right to do this, but you'd better advise your client to prepare for a really rough ride to the top.
1.19.2006 12:32pm
AF:
John, the problem is that the newspaper is hiring students to record lectures, not to report on the lectures. It is, essentially, buying recordings. Nothing prevents a government entity from banning recording devices from certain government functions nor from banning the sale of such recordings ( (see, eg, courtrooms). The First Amendment problem arises when the government seeks to prevent the publication of illicitly obtained recordings.
1.19.2006 12:40pm
AF:
John, there is no "First Amendment right to report" on a university class. The university can certainly ban reporters from its classes.
1.19.2006 12:42pm
AF:
I'd better clarify my last statement. Having sat in a class, a student has a First Amendment right to speak about it, including as a reporter. But the student does not have any special rights by virtue of being a reporter that he would not have were he not a reporter.
1.19.2006 12:47pm
Fishbane (mail):
AF: This seems like an easy case to me. University classes are not public fora. And the content of such classes are the intellectual property of the university. Universities can control speech that occurs within its classes, even if that speech is protected by the First Amendment. And they can control the content of their intellectual property without running afoul of the First Amendment.

Does it matter if the school is run by the State?
1.19.2006 12:56pm
Nunzio (mail):
I agree with JLR and AF; this is a generally applicable law under Cohen v. Cowles and the students are basically selling the tapes to the newspaper (so it's "for a commercial purpose.")

Under Cohen, this statute has only an incidental effect on any First Amendment right to newsgather b/c the newspaper could basically just interview students as to what the teachers said, so an as-applied challenge wouldn't stand.

I'm not too familiar with copyright pre-emption, so I'm not sure if this statute is pre-empted.
1.19.2006 1:08pm
Art Hackett (mail):
Many professors are podcasting their lectures anyhow because they realize that many students don't bother to attend the classes anyhow and would rather listen on their own time.
They could just flunk the students for lack of participation but then that would tick of parents who are shelling out big bucks for tuition and you gotta keep the customer satisfied.

And if the professor doesn't want to show up either....they can just "phone it in"

Me? Cynical about the state of higher education today? Nah.
1.19.2006 1:35pm
David M. Nieporent (www):
This seems like an easy case to me. University classes are not public fora. And the content of such classes are the intellectual property of the university. Universities can control speech that occurs within its classes, even if that speech is protected by the First Amendment. And they can control the content of their intellectual property without running afoul of the First Amendment.

Does it make any difference that it is a reporter who wishes to break an otherwise valid law by stealing the university's intellectual property?
Recording someone's lecture, particularly by taking notes, is not "stealing intellectual property." (Moreover, it's not clear that this is the university's intellectual property. Unless the lecture is pre-scripted or simultaneously taped, where's the copyright?)

I don't think this law can particularly be read as an intellectual property one, but to the extent it is, the problem with your argument is that they may be able to control their intellectual property "without running afoul of the first amendment," but they can't do so without running afoul of the Copyright Act.

To the extent that the purpose of this law is to protect intellectual property, then it is preempted to the extent that it conflicts with the Copyright Act. The Copyright Act explicitly allows for "fair use," and states are powerless to criminalize it. So, at a minimum, the statute is overbroad.
1.19.2006 1:50pm
Cheburashka (mail):
Does it matter if the school is run by the State?

I think that's a very good point. In the first place, state and federal freedom-of-information laws may apply.

In the second, there is a background presumption in our system that news gathering of state activities is permitted. The hypothetical could make new law.
1.19.2006 2:05pm
David M. Nieporent (www):
John, the problem is that the newspaper is hiring students to record lectures, not to report on the lectures. It is, essentially, buying recordings. Nothing prevents a government entity from banning recording devices from certain government functions nor from banning the sale of such recordings ( (see, eg, courtrooms). The First Amendment problem arises when the government seeks to prevent the publication of illicitly obtained recordings.
Note that the "recording devices" in the statute are not limited to tape/video recorders; the statute is broadly worded so as to include pen and paper as well. Or, for that matter, pen and your arm, if you scribble down what the professor said on that appendage.

As for journalists not being exempt from "generally applicable laws," that isn't exactly the case presented here. People are free to write down what the professor says, as long as they don't do so "for commercial purposes," of which journalism is an important part.
1.19.2006 2:19pm
The Original TS (mail):
I'd have to more-or-less agree with AF. This is not a First Amendment issue at all.

They therefore try to get tape recordings of the classes so they can hear for themselves, and quote the material accurately and in context.

This does not implicate the First Amendment. It goes only to the convenience of the newspaper. Nothing prevents the newspaper from interviewing students to find out what was said in class. While it might be more convenient for the press to listen to a tape recording rather than interview multiple students, there's no actual prohibition on either gathering or reporting information. As JLR points out, the press is still subject to generally applicable laws even though such laws may make the presses job more "difficult."

There are all kinds of these restrictions. The press has no First Amendment right to record legal proceedings, city council meetings, etc. Irrespective of how newsworthy such meetings may be, they have no right to even attend the vast majority of government meetings, e.g. staff meetings, even though they are free to interview the participants afterwards and try to get them to talk. Like these meetings, university class rooms, not being open to the public, are not public fora. Having said that, per Tinker and Cornelius, they're probably designated public fora but this goes to the First Amendment rights of the participants, not the press. Anyway, per Hazelwood, the state has pretty broad authority to limit the speech of even the students.

In summary, University class rooms are not public fora and the statutory restrictions do not prevent the press from either gathering or reporting the news.

I see a couple of other comments on preview.

Cheburashka, there is no such presumption, at least in the sense that news organizations have unfettered access to state activities. See above.

David, I agree that copyright and IP are a red herring here but copyright probably does exist in some form. It's true that copyright does not exist until a "performance" is recorded. Nonetheless, the professor is probably "performing" his prepared class notes. Thus the professor's "performance" is a derivative work based on the notes. Recording and distributing the "performance" could, theoretically, violate the professor's copyright in his notes.
1.19.2006 2:20pm
AF:
David,

Note that in Prof. Volokh's hypo, the newspapers "hire some students as part-time researchers, whose job is to record the classes, and -- if the professors indeed say sexist or anti-gay things -- to pass along the tapes." I would agree with you that if the students were hired on an hourly basis as researchers who then turned over their written notes, it would present a harder problem.

But it would be harder, it seems to me, as a statutory matter than as a constitutional matter. The question would be whether the students were selling notes, or services.

Having said that the statute does not prevent students from selling reportorial services during class time, I would argue that a generally applicable statute that prevented students from doing that would pass First Amendment muster as well. So a statute that prohibited students from working for pay while in class would seem fine to me. In fact, many schools do just that with regard to independent studies: you can only get credit if you don't get paid. A statute that banned reporting in particular, of course, would be a First Amendment problem.
1.19.2006 2:48pm
JLR (mail) (www):
Let me provide a somewhat brief encapsulation of my above comments. The next comment will include viewpoints as to potential new doctrine.

The hypothetical case Professor Volokh has presented is a difficult one, and poses a novel set of facts that would potentially call for new doctrine. The Supreme Court precedent that is most on point is Cohen v. Cowles Media Co , 501 US 663 (1991), a case dealing with the legal question of whether the First Amendment prevents the recovery of damages from a newspaper that result from that newspaper’s breach of a promise of confidentiality to a source (under the state’s generally applicable promissory estoppel law).

There were two lines of precedents that the Court could choose from. The first line of precedents was the Smith v. Daily Mail and Florida Star line, which holds that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order" (Smith v. Daily Mail Publishing Co, 443 US 97, 103 [1979]) .

The second line of precedents includes Branzburg v. Hayes, 408 US 665 (1972) and Associated Press v. NLRB, 301 US 103 (1937); this line of decisions holds that, in the words of Justice White in the Cohen decision, “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen at 669.

Justice White believed that the facts of the case before the Court led them to the second line of precedents – a generally applicable law that calls for civil damages. Notice that Justice White’s language includes the infinitive “to gather.” This decision clearly has at least some implications for the act of newsgathering.

Next -- possibilities for new doctrine.
1.19.2006 3:06pm
JLR (mail) (www):
Now: in terms of potential new doctrine:

It seems to that Justice White’s formulation in Cohen v. Cowles (i.e., incidental effects produced by generally applicable laws) could stand on its own, or be even more formalized into something akin to the O’Brien four-prong test that applies to symbolic speech. Such “intermediate scrutiny” as found in O’Brien however has notable opponents, including Justice Scalia in his Barnes v. Glen Theatre concurrence. Such fuzzy balancing tests raise fundamental questions about the nature of judicial review that are worthy to explore
----
If the Cohen v. Cowles decision does in fact apply (which I believe it does), the question is, was California Education Statute 66450 enforced in such a way as to produce “incidental effects on [the press’s] ability to gather and report the news”? Nunzio in his insightful post raises the point that the news reporters could simply interview students about what was said; therefore the statute holds up in this particular case.. But perhaps the editors believe they need concrete proof along the lines of an audiotape before they feel comfortable publishing the story. Would this in essence be putting the Supreme Court as final arbiter of what is sourced well enough to be published? Moreover, what if the editors published the story with their “paid researchers” as anonymous sources, and UC-Davis in their civil suit demands that The Davis Enterprise disclose the names of these anonymous sources? To what extent would the sources as agents of the newspaper be protected under the 1st Amendment if Florida Star were to be controlling? The recent dust-up over Judith Miller would seem to imply that UC-Davis might win out on a purely textual basis alone.

But then we get to what is the bane for some federal judges’ existence, and for other judges, the linchpin of their decision-making: legislative history and intent. What was the legislative history behind California Education Statute 66450? Some judges may dispose of the matter simply by looking at the legislative history and deciding that matters such as investigative reporting were not envisioned to be covered by the statute, even though it is written in a generally applicable way. The legislative history and intent is therefore an important variable to account for.

But the plain language of the statute combined with Justice White’s phraseology in Cohen v. Cowles would seem to lead to a ruling for UC-Davis, with California Education Statute 66450 being ruled constitutional in this hypothetical case.

--

I suppose that Justice White’s holding in Cowles could be, in this hypothetical case, formalized as an O’Brien “intermediate scrutiny” test (cf. United States v. O'Brien , 391 U.S. 367 (1968) [ see link here see link here and Barnes v. Glen Theatre, 501 US 560 (see link here ). The O’Brien four part test is as follows:

1) if it is within the constitutional power of the government;
2) if it furthers an important or substantial governmental interest;
3) if the governmental interest is unrelated to the suppression of free expression; AND
4) if the incidental restriction on 1st Amendment freedoms is no greater than is essential to the furtherance of the governmental interest.

“Intermediate scrutiny” is a notably fuzzy balancing test that has some, including Justice Scalia on record in Barnes, as being opposed to. For example, with prong #2, the ways in which “important or substantial” is different from “compelling” are difficult to discern. Furthermore, and more importantly the O’Brien test applies to symbolic speech, and this is most certainly NOT symbolic speech. It would be hard to posit a rational basis test for this case though – there is no morals rationale as there was in Barnes (the nude dancing case), given the public interest involved in this hypothetical news story. But I’d say that something along the lines of an O’Brien test would work here, and is more or less what is in place with Justice White’s statement that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Therefore, this generally applicable California Education Statute, in my view, only appears to have incidental effects on the press’s ability to gather and report the news. Of course, it isn’t clear how courts are able to determine what is or is not an “incidental effect on [the press’s] ability to gather and report the news.” These kinds of balancing tests raise problems through the realm of judicial review, and thus make for very difficult cases. These kinds of questions are vital and important to explore.
1.19.2006 3:07pm
AF:
On the intellectual property issue, I wasn't arguing that the lectures were protected by federal copyright law or any other law besides California Education Code 66450. My point was that for First Amendment purposes, the government has a proprietary interest in the content of the lectures, and when it controls this content, it acts in its proprietary capacity. "The Government . . . when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints, as does a private business, but its action is valid in these circumstances unless it is unreasonable . . . arbitrary, capricious, or invidious." U.S. v. Kokinda 497 U.S. 720, *725-726, (1990) (citations omitted).
1.19.2006 3:15pm
eddie (mail):
A crucial fact is from this discussion.

The offending tapes or transcripts are not being made to use or take the intellectual property (dare I say the content/meaning) of the lectures; but to serve as back-up for a factual statement that the newpapers would like to make, i.e. the professor made such and such sexist, homphobic, anti-Bush, anit-liberal, etc. statement.

Also missing from this discussion is the remedy for violation of this statute. This is the education code: one can assume that I do not call the police to report these "thefts" and that there are no "criminal" sanctions available. But in any event, the law must be viewed in its totality to accurately determine whether it is overbroad.
1.19.2006 3:16pm
eddie (mail):
Pardon me, but a crucial word was missing from the first sentence of my post, which should have read:

A crucial fact is missing from this discussion.
1.19.2006 3:18pm
JLR (mail) (www):
The Cohen, IO'Brien and Barnes links did not print correctly. Here they are. Thanks for your patience.

Cohen v. Cowles Media Co

U.S. v. O'Brien

Barnes v. Glen Theatre
1.19.2006 3:21pm
AF:
eddie, the point is that the statute does not stop the newspaper from publishing a factual story or even seeking to buy recordings of classes. It merely prevents students from selling them recordings of classes. When a generally applicable law prevents the sale of something, nobody has any right to sell it to a newspaper reporter or anybody else. So if a newspaper buys some illegal good in the course of reporting on a story, the person who sold it to them is not protected by the First Amendment.

Another parallel is government confidentiality agreements. It would violate the First Amendment to prevent newspapers from publishing information that was obtained from a governmental employee who breached a confidentiality agreement. Arguably, the First Amendment protects the reporter's right not to reveal the identity of the governmental employee. But nobody would suggest that the employee himself is somehow protected from the consequences of breaching his confidentiality agreement merely because he did so to a reporter -- or that the First Amendment puts serious constraints on the government's ability to hold its employees to confidentiality agreements.
1.19.2006 3:32pm
David M. Nieporent (www):
Nonetheless, the professor is probably "performing" his prepared class notes. Thus the professor's "performance" is a derivative work based on the notes. Recording and distributing the "performance" could, theoretically, violate the professor's copyright in his notes.
I don't disagree, but that would depend on how detailed said notes were. Certainly if he prepares a script which he then recites in class, he (or the school) has a copyright.


My point was that for First Amendment purposes, the government has a proprietary interest in the content of the lectures, and when it controls this content, it acts in its proprietary capacity.
I don't disagree with this either -- but my point is that the only "proprietary interest" that could be had in the lectures would be in the form of a copyright. Copyright preempts the field in that regard.
1.19.2006 3:38pm
Dick King:
Students very often make recordings for their own future reference. This obvious fact hasn't been mentioned yet in these comments. Does this matter?

-dk
1.19.2006 3:42pm
Davide:
AF's post, above, I think, misses the point. The statute prohibits individuals from selling or transferring recordings of classes for "any commercial purpose." That is defined as having financial or economic gain as an objective.
Clearly, the Davis Enterprise is not preparing/distributing/selling the recordings for financial or economic gain. They're using that materials as evidence for valid news purposes. So I don't see any valid claim against the paper. The students are the newspapers' agents. They are "hired" by the newspaper for the sole purpose of helping the newspaper put out its news. Their "work" is to record the classes and to distribute ONLY IF "the professors indeed say sexist or anti-gay things." That sounds like classic newsgathering to me (i.e. this does not differ materially from any reporter being "hired" to cover public events at a public institution and to pass along primary source material if/when that matter is interesting or newsworthy).
Thus, this is not a Cowles case- there is no crime separate from the newsgathering function. The tapes are not being sold as replacement classes; nor are they being taped by the principal actor here -- the paper-- for commercial profit. Finally, any review of legislative history will doubtless show the Code's aim to have been to protect the right of a public university to retain the rights to broadcast/disseminate its own teachings. That is in no way implicated here.
Finally, what is the governmental interest to be protected here? To stop reporting of anti-gay/sexist statements? To prevent valid newsgathering? I don't see a valid interest.
End result: no way to stop Davis Enterprise here; no practical way to sue students (judgment proof); no court will uphold such a challenge if brought against students.
1.19.2006 3:42pm
eeyn524 (mail):
It's pretty clear that students can't take over an engineering or computer lab at a state university and then run a for-profit calibration or programming service out of that lab. In fact, every state university I've been at explicitly prohibits use of any facilities (which would include a classroom) for commercial purposes without permission.

To put it another way - what if the newspape didn't care about the lecture, they were just running a large-scale for-profit CD to tape transcription service. Could they use a university classroom as their workroom?
1.19.2006 3:46pm
AF:
Davide,

You're arguing that the statute doesn't apply, not that the First Amendment prevents it from being enforced. The question posed is whether the statute is constitutional.

Your statutory argument is colorable, but based on Prof. Volokh's hypo, it appears that the newspaper is really only interested in acquiring the tapes from the students. I doubt that you can get around a prohibition on selling recordings simply by getting paid by the hour rather than by the tape.
1.19.2006 4:22pm
Mitchell Freedman (mail) (www):
Mitchell Freedman here again:

I want to add something that has caught my libertarian radar. Reading Michael Berube's blog during my lunch hour at work, I have learned this question arises from something a political advocacy group wants to do to monitor professors at UCLA whose general views they do not like. I admit I initially understood this question to deal with a limiting convtroversial moment, such as a professor who says something outrageous in a few classes and is now subject to the public eye, a la Ward Churchill's comments or the professor in NYC who was controversial some years back. At that point, the privacy interest of both the university and the professor is less important than First Amendment principles.

However, being somewhat talmudic in my sensibilities, the privacy issues become more relevant when the plan is a far-reaching one by a political advocacy group as opposed to a newspaper (and I know what can of worms I've just opened, haven't I—though, it could be like a homeowners' association, which the law sees as a landlord in some situations, a business in others, and something in between on other occasions).

Anyway, what this political advocacy group is possibly doing is a wide net monitoring of professors with the design to find nuggets of information with the goal to make public spectacles of professors who have not sought public attention or themselves become "newsworthy" in the sense we judge different persons' standing in libel cases.

Yes, what a professor says in his classes may become "newsworthy," but again my privacy substrate of my libertarian radar is beeping. At some point, there may be a weighing of a privacy interest to the government or privately held university to their lectures—and a separate privacy interest in the employee professor him/herself. Further, the political advocacy group appears to be planning on keeping these recordings, not just get something right for a particular article, which raises the question of the "no recording without consent" law more directly, as well raising intellectual property laws.

Is the NAACP case that was decided by the USSC in the late 1950s relevant here? That case deals with privacy rights of individual members of a private group and specifically, against disclosure of information of such persons.

I'm obviously not yet overturning the statute, yet still concerned about its overbreadth (which is at least consistent than my morning analysis) but now, I also see some equities in its application that may require privacy rights to be protected in addition to the state based consent and property issues. For there is something Orwellian (sorry, George Orwell!) in the plan to conduct extensive, wideranging monitoring of individual professors, even ones I may not like myself!
1.19.2006 4:24pm
KMAJ (mail):
I think you may be looking at the wrong avenue of jurisprudence when you focus on intellectual property, the courts have always had a fairly loose standard on gathering information under Freedom of the Press. The avenue most fraught with legal peril is under libel law. New York Times v. Sullivan created a national rule governing this aspect. Are professors considered public or private individuals ? I am not sure of case law in that regard. If the determination is they are public figures, much looser standards are applied. Would the use of material be maliciously defamatory or slanderous ? Does the reporter or publisher 'wrecklessly disregard' the potential for false or misleading presentation and, therefore, damage the reputation of the targeted professor ?

Other relevant cases would be BOSE CORP. V. CONSUMERS UNION OF UNITED STATES, INC., Pullman-Standard v. Swint and Herbert v. Lando. What is the correct balance between assuring vigorous debate on public issues and protecting individuals reputations ? Hutchinson v. Proxmire and Curtis Publishing Co. v. Butts provide some insight.

I give credit for the information above to a 1985 publication by law student, now attorney, Gary Paranzino and a recent article on Libel Law in the United States by legal writer Steven Pressman. Not being a lawyer, but having taken Journalism Law in college, I found reading the above cited court decisions interesting, though somewhat dry, I will leave it to legal scholars to assess their import and impact on the issue raised by Professor Volokh.
1.19.2006 4:37pm
The Original TS (mail):
I don't disagree, but that would depend on how detailed said notes were.

This is kind if a sidetrack but I don't think it does. The "performance" is protected by copyright to the extent the notes were protected. Even if they only outlined what topics to cover and what points to be made under each topic, that "portion" of the "performance" would still be covered by copyright. In theory, the "added" portions, e.g. exact word choices, would not be covered. In theory, you could tease out the uncovered portions and use them freely. In practice, what's covered and uncovered by copyright can be impossible to separate.

The point here, though, is that even very rough pre-existing notes would convey substantial copyright protection to the subsequent lecture.

Sorry, all, for the hijack.
1.19.2006 4:40pm
Davide:
I agree, AF: I don't think the statute applies here. Without a statutory violation, there is no need to reach any constitutional challenge (in fact, I find it bizarre to contemplate how any constitutional challenge can be raised when the statute does not proscribe the conduct at issue). Further, courts will not review constitutional arguments when they needn't be raised. Here, they needn't be.

In any case, were a court to reach the constitutional issue, I don't see the issue of general applicability that Cowles penalizes here that would permit a court to strike the law as unconstitutional. The newspaper and the students are not recording the classes for profit or commercial gain. They are doing so only for newsgathering purposes. Publication is, presumably, being done only for newsgathering purposes. There is no valid governmental interest in prohibiting that conduct. The covered information is of public employees, in a public university, on matters of what appear to be clear public interest. End of story.
1.19.2006 4:59pm
JLR (mail) (www):
To Mr. Freedman (and of course to anyone else who wants to read this) :-) --

I believe you have hit the nail on the head re UCLAProfs. Since Professor Volokh has blogged about this a great deal recently (e.g., see here), I had a sense that the hypothetical was related to this story (viz., Prof. Volokh refers to Jerry Kang’s insight).

Dealing with the context of this hypothetical thus raises a question: is UCLAProfs.com different from The Davis Enterprise for the purposes of analysis under Cohen v. Cowles, or for the purposes of creating a more formal “intermediate scrutiny” doctrine regardless of Cohen's applicability? The Internet is obviously a nascent technology in which the contours of First Amendment analysis lack precision and are still in flux. Do the UCLAProfs.com site's activities count as “news gathering” as Justice White’s opinion in Cohen v. Cowles would understand it? Or, even if Cohen v. Cowles is distinguished, what would a legal definition of "news gathering" be? That is a key question.

And I agree Mr. Freedman, warning bells are ringing, and the privacy radar is setting off danger signals. But this generally applicable California Education Statute does (with the caveat that we need to take account of legislative history and intent) seem to be textually constitutional. (And that caveat might not be so important depending on your mode of constitutional interpretation -- hence the return to first principles.) But there are many stones left to be turned. It will be interesting to see what unfolds.

Thank you very much.
1.19.2006 6:19pm
JLR (mail) (www):
Another point that must be made (that I have attempted to make in earlier comments of mine) in reference to comments made by Davide: I think Cohen v. Cowles is at least somewhat on point, and can be used either as precedent for a decision based on this hypothetical, or can be distinguished from this hypothetical, depending one's normative views. The reason why I think Cohen v. Cowles Media Co, 501 US 633 [1991]) has relevance is because of this quotation from Justice White's majority opinion:

"This case however, is not controlled by [the Smith v. Daily Publishing and Florida Star ] line of cases but rather by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."

The MN promissory estoppel statute in Cohen v. Cowles, like the California Education statute at issue in the hypothetical, is generally applicable and only provides for civil damages. There are of course ways to distinguish Cohen v. Cowles from this hypothetical. Cohen deals with the breaking of a promise to a confidential source when the newspapers in question published the name of that source — publication of his name led to his firing. It is theoretically possible that UC-Davis would want The Davis Enterprise to reveal the names of its "paid researchers" in order to name them as respondents in their civil action. That could lead to various challenges to the California Education Statute's constitutionality.

This leads to a key issue in the hypothetical, and I quote from the original post: "UC Davis tries to stop this, arguing that the practice violates the statute." According to California Education 66451, UC-Davis can avail itself of relief in civil court, but how many parties would the university sue? California Education 66451 also states that

Any person injured by a violation of this chapter, in addition to actual damages, may recover court costs, attorney's fees, and a civil penalty from any person who is not a student enrolled in the institution at which the instructor of record
makes his or her academic presentation and who seeks to obtain financial or economic gain through the unauthorized dissemination of the academic presentation. [Bold added]

The above lines in Cal. Education 66451 seem to rule out "paid researchers" who are students enrolled at the university as potential respondents. However, California Education 66452(a) states that

The Regents of the University of California and the governing boards of private postsecondary institutions are requested to, the Trustees of the California State University shall, and the governing board of each community college district may, in consultation with faculty, in accordance with applicable procedures, develop policies to prohibit the unauthorized recording, dissemination, and publication of academic presentations for commercial purposes. Nothing in this chapter is intended to change existing law as it pertains to the ownership of academic presentations.

So the "paid researchers" who are students at the university could face sanctions from their college. (Plus, notice the explicit sentence about how intellectual property rights are explicitly not intended to be affected in any way by the statute.) I think a case can be made that the activities outlined in the hypothetical ARE in fact "commercial purchases," since "commerce" is in fact taking place — students are being paid to make unauthorized recordings of academic presentations; however, how strong the case would be would depend on examining the legislative history and intent of the statute.
1.19.2006 7:38pm
JLR (mail) (www):
I apologize for the above post's lack of italics and blockquote -- the html functions weren't functioning perfectly again. The 5th and 7th paragraphs of the above post are the block quotations from the California Education statutes in question. Thank you.
1.19.2006 7:40pm
Lev:
Dunno. Call me dense, but it appears to me the statute in question is specifically intended to apply where copyright law would not normally apply. See specifically, the definition of "academic presentation":


(c) As used in this section:
(1) "Academic presentation" means any lecture, speech,
performance, exhibit, or other form of academic or aesthetic
presentation, made by an instructor of record as part of an
authorized course of instruction that is not fixed in a tangible
medium of expression.


That which is not fixed in a tangible medium of expression is not subject to copyright protection. If the instructor of record tapes his or her own presentation, then the statute does not apply, but copyright law does, because the recording by the author has fixed the presentation in a tangible medium of expression. That tangible medium can then be reproduced and sold in commerce by the copyright owner/licensee, whether instructor of record or University by virtue of the employment contract or applicable state law.

Similarly the statute preserves the copyright owner/licensee rights for commercial exploitation where the instructor of record does not normally record his or her...performance...but someone else might, and sell it for the purpose of making money from it.


(2) "Commercial purpose" means any purpose that has financial or
economic gain as an objective.


As such, the newspaper's use of the material would be subject to the same first amendment rights and restrictions that would apply to use of any copyrighted, or in the case of the lecture copyrightable, material. And, I think, so would the student's - that is, is the newspaper or student trying to appropriate for commercial purposes the expression of the instructor.

The sanctions on the students, the relief allowed, would be in the nature of the typical injunction/civil penalties for copyright violation. The

exceptions
or defenses to the relief sought would be the same defenses allowed where copyright infringement is claimed.

It seems to me the actual question asked is:

What is "fair use" of copyrighted material - the lecture recorded by the instructor himself and by a student.

What is "fair use" of copyrightable material - the lecture not recorded by the instructor himself but by the student, where 66450 is intended to protect the copyrightable material as if it were copyrighted.

If I am paid to and do make one copy of a copyrighted law review article, then give it to someone else who excepts a few parts of it in a news story, have I violated the copyright, or have I engaged in fair use.

I say fair use.
1.20.2006 12:48am