The Volokh Conspiracy - 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.

	[Eugene Volokh, January 19, 2006 at 1:31am] Trackbacks 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.