(From the pages of California Publisher)
Summer offers time to reflect on things, so I offer my reflections on two Internet-related legal developments that have unfolded, somewhat, so far this year.
This year began with a fascinating federal court access battle in San Francisco. A large media coalition asked permission to televise the landmark federal trial in which the plaintiffs are challenging, on due process grounds, the constitutionality of Prop. 8, California’s ban on same sex marriage.
The media had hoped that the Perry/Prop. 8 case (in which the plaintiffs were represented by the odd pairing of Bush v. Gore attorneys Ted Olson and David Boies) would be the first federal trial to be televised under the Ninth Circuit's pilot program for recording certain civil proceedings in federal courts within the Ninth Circuit.
While the media was focused on camera access, Chief Judge Vaughan Walker had an even more audacious plan in mind. He proposed that the entire Perry trial be recorded by the court itself and then made available to the public on the Internet.
Technical problems quickly nixed Judge Walker's Internet plan and, in less than a week, the United States Supreme Court, on a 5 to 4 vote, shut down even the court’s scaled-back plan to "broadcast" the trial proceedings to five overflow courtrooms throughout the nation.
The Supreme Court's swift and unprecedented decision in Perry marked a temporary setback for the Ninth Circuit's pilot camera program. Yet, despite the camera ban, bloggers and reporters used new technology to cover the trial like never before. And, partially in response to Perry, the Senate Judiciary Committee recently passed legislation that would require United States Supreme Court arguments to be televised and give lower federal courts the discretion to televise certain trials.
But does Walker's original thought to bypass the traditional media and make court proceedings available to the world on the Internet have legs? The traditional media have forever played the role of the middleman by reporting on, photographing and occasionally televising court proceedings for the public.
Few people have the time (or the desire) to watch entire trials. They count on the media to give them the highlights and to explain what is happening. The Internet will not diminish the value of this invaluable public service. But wouldn't making court proceedings available online be the ultimate form of public access for those interested in watching them?
The biggest obstacle is not likely to be technology. After all, it was the defendants in Perry (who voluntarily intervened to defend California's same-sex ban when state officials wouldn't) who went to the Supreme Court because they were terrified with the prospect that their witnesses' public trial testimony against same-sex marriage would be immediately (and permanently) accessible online.
Whether trial witnesses like it or not, it seems only a matter of time before court proceedings find a regular home on the Internet.
In the category of events that haven't happened, consider the collective silence that has followed the Federal Trade Commission’s widely criticized guidelines to bloggers. Last December, the FTC issued guidelines for advertisers who have turned to bloggers to write positive things about their products.
The FTC guidelines encourage bloggers to disclose their "material connections" (if any) with advertisers, including payments for an endorsement or the receipt of free products. Bloggers receiving "swag" from an advertiser must disclose this to their readership if the blogger reasonably expects to continue to receive free products. (For a detailed advisory on these issues, search for my DWT colleagues' summary at broadcastlawblog.com.)
Since the guidelines came out, the FTC has launched only one investigation, perhaps only to remind people that the government is watching. In April, the FTC announced that it was looking into women's retailer Ann Taylor's invitation to bloggers to preview its Summer 2010 collection.
Ann Taylor offered a special gift and promised bloggers who posted coverage of the event that they would be entered into a "mystery gift-card drawing" where they could win between $50 and $500. The FTC later closed its investigation, taking no action against the retailer or any bloggers.
The federal government's blogger guidelines raise a host of issues meeting at the intersection of commercial speech and the First Amendment. I had fully expected that by now, some blogger group would have challenged the forced speech aspect of these guidelines.
The guidelines were principally aimed at advertisers who rarely seek out disputes with regulators, so this likely explains the silence. There is no dispute that the FTC can regulate advertising, but the FTC's guidelines impose on bloggers a speech requirement that touches on constitutionally protected editorial speech.
On both the long-term effect of Perry and the FTC's blogger guidelines, we'll all just have to stay tuned.
Thomas R. Burke is a partner with Davis Wright Tremaine LLP in San Francisco and was lead counsel for the Perry Media Coalition. He may be reached at (415) 276-6552.
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