Tag: communication law

Grady professor studies SCOTUS decisions regarding corporate conscience

Posted on by Sarah Freeman

The subject of how the Supreme Court of the United States rules on First Amendment claims of corporate conscience is the focus of the latest article by William E. Lee, a professor of journalism specializing in communication law at Grady College.

Lee’s article, “The Conscience of Corporations and the Right Not to Speak,” was published in the 43rd volume of the Harvard Journal of Law and Public Policy.

Corporations do not have human traits, such as a conscience, Lee notes, but in recent years corporations have challenged government mandates as a violation of owners’ beliefs. As an example, Lee examines Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where a bakery refused to make a wedding cake for a same-sex couple because of the religious beliefs of the bakery’s owner.  Another case, National Institute of Family and Life Advocates v. Becerra (NIFLA), focused on a California law that required pregnancy clinics to post notices of the availability of state-funded abortions. Pro-life clinics, operated by nonprofit corporations, challenged the law because the notices violated their beliefs.

In both cases, the Supreme Court avoided confronting the complexities of allowing corporations to assert the beliefs of their owners or members. “The issue of conscience is really fascinating yet the Court doesn’t want to address it,” Lee explains.

Using the papers of former Supreme Court Justices, housed at the Library of Congress and Washington & Lee University, Lee reveals that the Court in the 1980s developed the concept of speaker autonomy in coerced expression cases. This doctrine treats all speakers—whether corporate or individual—alike and rests upon the idea that speakers should not be compelled to convey government-mandated messages. Under the speaker autonomy doctrine, questions about conscience are avoided.

“I argue that conscience really shouldn’t be part of these cases, and instead we should look at whether the state is promoting orthodoxy,” Lee continues. “In a case like NIFLA, you don’t need think about conscience, but instead ask if the state is promoting orthodoxy. The government harms speaker autonomy when it dictates the messages speakers convey.”

“Cases like Masterpiece Cakeshop and NIFLA are not going to go away,” Lee concludes. “As long a government seeks to control private expression, speakers will be able to challenge coerced expression as harmful to their autonomy.”

Lee’s paper can be read here.

UGA law school’s West promoted to named professorship in First Amendment law

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The University of Georgia School of Law’s Sonja R. West has been named the inaugural holder of the Otis Brumby Distinguished Professorship in First Amendment Law, a post shared by the law school and UGA’s Grady College of Journalism and Mass Communication.

“Sonja is a distinguished scholar in media law, and it is fitting that she be named to this professorship, which is devoted specifically to teaching and research about the First Amendment,” Georgia Law Dean Peter B. “Bo” Rutledge said. “Both law and journalism students will benefit from her experience and insight on this important American right, and this appointment continues the university’s commitment to equipping our students with the tools to be successful once they graduate. We are grateful to the Brumby family, including Georgia Law graduates Lee Dobbs Garrett and Otis A. Brumby III, two of the late Otis Brumby’s children, for their support of this professorship.”

“We’re indebted to the Brumby family, one of the great names in Georgia journalism history, for their support, and delighted that Professor West has joined the faculty of Grady College,” said Charles N. Davis, dean of Grady College. “We’re assembling a world-class team of First Amendment scholars at Grady and at the law school, and the benefits to students are immense.”

In addition to the courses she teaches through the School of Law, West is also an instructor of Communication Law through Grady College.

West joined the Georgia Law faculty in 2006 and specializes in media law, constitutional law and the U.S. Supreme Court. Her scholarship has appeared in various publications including the “Harvard Law Review,” the “UCLA Law Review,” the “Michigan Law Review” and the “Washington University Law Review.” Earlier this year she earned the National Communication Association’s 2016 Franklyn S. Haiman Award for Distinguished Scholarship in Freedom of Expression. She also was invited to address more than 100 judges from 19 European countries on the issue of press and court communication at the Annual European Conference on Courts and Communication in Budapest, Hungary. She has authored articles about legal issues and the United States Supreme Court for a variety of popular news outlets such as Slate and Huffington Post, and frequently commentates for various news media outlets such as The New York Times, The Washington Post, The Wall Street Journal,“The Economist,” The Guardian and National Public Radio, among others.

West earned her bachelor’s degree in journalism and communication studies with honors and distinctions from the University of Iowa and worked as a reporter before entering law school.  She graduated with high honors from the University of Chicago Law School, where she served as executive editor of “The University of Chicago Law Review” and was inducted into the Order of the Coif. After law school, she served as a judicial clerk for U.S. Supreme Court Justice John Paul Stevens and Judge Dorothy W. Nelson of the U.S. Court of Appeals for the Ninth Circuit before practicing media law for several years in Los Angeles.

This professorship was created by the late Otis A. Brumby Jr., a Georgia Law graduate who desired to help law and journalism students better understand the importance of First Amendment guarantees and to be able to convey that understanding to the public. Brumby was a veteran journalist who served as the publisher of the Marietta Daily Journal for 45 years. 

Papers in 1972 Supreme Court case have implications for journalist’s privilege today

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Analysis of the papers of U.S. Supreme Court Justice Lewis F. Powell Jr. sheds new light on a nearly 45-year-old ruling involving journalist’s privilege, according to William E. Lee at the University of Georgia Grady College of Journalism and Mass Communication.

Lee’s research examined Powell’s notes, memoranda and correspondence with other justices for the case of Branzburg v. Hayes, the only journalist’s privilege case ever heard by the Supreme Court. In Branzburg, a journalist claimed a First Amendment right to refuse to reveal his sources to a grand jury investigating illegal drug use. The court ruled 5-4 that there was no First Amendment-based privilege; journalists, like other citizens were obligated to testify before grand juries.

Powell cast the deciding vote and wrote a concurring opinion. Lower courts addressing subsequent journalist privilege cases have struggled to decipher Powell’s separate opinion. Some courts believe Powell supported a journalist’s privilege, other courts conclude that Powell rejected the privilege. Because of these conflicting interpretations, a judge on the 4th Circuit Court of Appeals wrote in 2013 that the lessons of Branzburg are “as clear as mud.”

The goal of Lee’s research was to clarify what has long been regarded as one of the most confusing concurring opinions in the court’s First Amendment cases. The research included review of Powell’s papers, which are archived at Washington & Lee University; studies of available papers from other justices, housed at the Library of Congress; and interviews with law clerks, including Larry Hammond who as a law clerk to Powell in 1972 assisted in the preparation of the concurring opinion.

Lee believes, based on extensive research, that Powell was opposed to a First Amendment-based privilege. Powell believed any journalist’s privilege should be created by legislatures, not the judiciary. While courts should be sensitive to the burden of unreasonable subpoenas, Powell did not believe that journalists were entitled to special constitutional protection.

“Those courts that have read his opinion in a very expansive way, who have treated it as promoting a journalist’s privilege, I think are wrong,” said Lee, a professor of journalism and communication law. “I believe Powell was more narrowly focused and only in extreme cases of what he called harassment would courts protect journalists. In most circumstances he thought that journalists had to testify and reveal information they had received in confidence.”

Other key justices for Branzburg v. Hayes included Justice Bryon White, who wrote for the majority saying that the Supreme Court was not going to grant journalists a special testimonial privilege that other citizens do not enjoy, and Justice Potter Stewart, who wrote the dissenting opinion in favor of protecting journalists.

Powell sided with the majority but wrote the following, which some courts have interpreted broadly over the years: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

Lee traces the development of Powell’s concurring opinion and shows that Powell’s attention to the case was limited due to the intense discussion within the court as to whether to rehear the abortion case Roe v. Wade. At the same time as Branzburg, Powell was also preoccupied with Furman v. Georgia, in which the court struck down the death penalty in several states.

This research is important, according to Lee, because the law of journalist’s privilege is a mess. Since there is no federal shield law, a patchwork of legal protections may be applicable depending on the jurisdiction. In some areas of the country, journalists may rely on a First Amendment-based privilege in federal proceedings. Other jurisdictions do not recognize this privilege. Some states have strong statutory shield laws, but most states offer only qualified protection to journalists. “Right now, the protections for journalists vary wildly from state to state,” Lee said. “It’s messy and you can’t predict all the variables that would be at play when you make a promise to a source that you will protect their identity.”

Lee continues: “These are ongoing issues that affect communicators on a regular basis. As long as courts treat Powell as protecting journalists and being more like Stewart, then there is no incentive for Congress to craft a federal shield law. Congress has backed away because it thinks the lower courts are doing a good job of protecting journalists.”

Lee’s research, “A revisionist view of journalist’s privilege: Justice Powell, Branzburg and the ‘Proper Balance,’” was published in the 2016 issue of the “Cardozo Arts & Entertainment Law Journal.”