The opinion is available online at: http://www.courts.state.mn.us/opinions/sc/current/OPC012021-0911.html.

Justice Alan Page's majority opinion focused on an exception to Minnesota's Free Flow of Information Act, Minn. Stat. ¤ 595.021-.025. The statute sets out a broad protection for confidential sources but contains an exemption for defamation actions in some circumstances. Page found that the exemption applied to Weinberger's case, and four other justices agreed. Justices Helen Meyer and Paul Anderson dissented, saying that the First Amendment interest in preserving a vigorous press outweighed Weinberger's interest in obtaining the names of Wakefield's sources.

The struggle over the identification of the anonymous sources began in the summer of 2000, when Weinberger subpoenaed Wakefield in his defamation case against his former employer, Independent School District 622. When Wakefield refused to comply, the district court ordered him to name his sources. Wakefield appealed to the Minnesota Court of Appeals, which reversed the district court's order and remanded the issue for additional findings. On remand, the district court again ordered Wakefield to identify his sources, and the Court of Appeals once again reversed. The appeals court held that Wakefield could not be compelled to identify his sources if the primary motive for seeking disclosure was to turn the reporter into a witness against his sources. The appeals court also said that Weinberger had not produced evidence showing that the statements in question were false or made with "actual malice" – that is, with the knowledge that they were false or with a reckless disregard for the truth or falsity of the statements. (See "Minnesota Shield Law Facing Test" in the Winter 2002 issue of the Silha Bulletin and "Reporters Subpoenaed, Detained: Wally Wakefield Subpoena Update" in the Summer 2002 issue of the Silha Bulletin.)

The key to the case is Minn. Stat. ¤ 595.025, the defamation exception to the Free Flow of Information Act.  Under the exception, a reporter can be required to identify sources in a defamation action if:

• "[T]he person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice."


• The person seeking disclosure can show "that there is probable cause to believe thatthe source has information clearly relevant to the issue of defamation."


• And if "the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights."

On the second requirement, the majority held that, if any of the defendants were sources of the allegedly defamatory statements, they would have information clearly relevant to Weinberger's claim.

Finally, the majority considered whether the information sought by Weinberger could be gained through any means "less destructive of first amendment rights." The majority agreed with the district court's analysis that because the sources and the reporter were the only people who knew who made the allegedly defamatory statements, and because the suspected sources already had denied making the statements, "the only other available means to secure that information is from the reporters."

In her dissent, Justice Meyer said the majority's ruling was inconsistent with a "straightforward application of First Amendment principles." Because the state's Free Flow of Information Act was intended to provide reporters with more protection than the First Amendment provides, it makes no sense that an exception to the act would provide less protection than provided by the Constitution, she wrote.

Meyer also noted that the U.S. Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972), dealt only with disclosure of sources in the context of legitimate criminal investigations. The Court in Branzburg did not reach the question of whether reporters could be compelled to disclose sources in other contexts, Meyer wrote.

Meyer criticized the majority for failing to properly balance the interests at stake in the case. On one side of the scale, she said, was Weinberger's interest in the identities of a newspaper reporter's sources. On the other side was the strong interest in avoiding a "chilling effect" on the press by removing reporters' ability to back up promises of confidentiality to sources. Meyer said the outcome of such a test was simplified by the fact that Weinberger's claim did not depend solely on the anonymous statements in the newspaper.

Weinberger could pursue his claim against the defendants even without the newspaper article, because the defendants had made allegedly defamatory statements about the former coach in other settings.

Mark Anfinson, a Minneapolis attorney who represents Wakefield and the Maplewood Review, told the Silha Bulletin that the decision was disappointing, but not unexpected. During the oral arguments in the

case, held in March 2003, most justices "expressed quite vividly an animus on the part of the majority of the court toward the idea of these types of privileges for journalists," Anfinson said.

He added that after the oral arguments, "my sensation basically was like a guy who jumped off a fairly tall building – things were fine until I hit, which of course did happen (when the decision was announced)."

Anfinson said the majority seemed to "willfully avoid the key legal issues" involved in analyzing libel lawsuits. Especially disturbing, he said, was the majority's apparent eagerness to find that the identity of the sources would provide relevant information about actual malice.

The court's reasoning made the first prong of the state law's defamation exception automatic, Anfinson said. The legislature obviously intended the standard to have an impact on a court's analysis, or it wouldn't have included it in the first place. "If you have this condition imposed (but) it applies in every single case, you don't need it," he added.

Anfinson said the conditions raised by the defamation exception might be met in a case where the plaintiff has no idea who the source might be and needs the information in order to pursue a claim. But that was not the situation in Weinberger's case, he said.

Anfinson said he will not appeal the ruling, but he added that what happens next is far from a foregone conclusion.

"I have some definite options back at the trial court before we are forced to make a decision about whether Wally is going to disclose," he said. "I intend to pursue those quite aggressively."

—Doug Peters
Silha Fellow

Although the Court's decision is significant regarding the extent to which the Lanham Act protects copyright holders, it is "entirely consistent with the intent espoused in (the Court's) unanimous decisions of the recent past refusing to extend Ôtrademark and related protections into areas traditionally occupied by patent or copyright,'" and is thus only concerned with Section 43(a) rather than with the Act in its entirety, IPLR added.

Delaware Law Weekly also concluded that the Court's decision in Dastar is similar to that of Eldred v. Ashcroft. In that case, the Court upheld legislative amendments extending the copyright term for authors by an additional 20 years, thus increasing the amount of time before an author's work enters the public domain (See Eldred v. Ashcroft, 123 S.Ct 1505 (2003); see also "Recent Developments in Copyright Law: Copyright Term Extension Upheld as Constitutional" in the Winter 2003 issue of the Silha Bulletin.) According to Delaware Law Weekly, "The court struck a balance in the cases: It deferred to legislation extending the time a work may be held out of the public domain, but granted substantial freedom to subsequent users of works already in the public domain because of the copyright's expiration. In the end, that balance is consistent with traditional copyright analysis and long-standing precedent."

Traditionally, the Supreme Court rarely takes cases involving copyright. When it does, it generally defers to Congress rather than to the Constitution. The Court's opinion in Dastar v. Fox is not unusual in that the Court again referred to congressional determinations to guide its decision. However, this case could prompt copyright holders to pressure Congress to further extend how long works are kept out of the public realm.

—Ingrid Nuttall
Silha Research Assistant

—Ingrid Nuttall
Silha Research Assistant

As to Woods' right to publicity, the panel stated that the creative nature of the work precludes any claim of harm to this interest. Judge James L. Graham wrote, "Rush's work has substantial informational and creative content which outweighs any adverse effect on ETW's market and . . . Rush's work does not violate Woods's [sic] right of publicity. We further find that Rush's work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech," (See ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915(2003)).

Although Jireh sold copies of Rush's painting – $700 for serigraphs and $100 for lithographs – the court found that Rush's work itself did not suggest a commercial transaction. In order for commercial speech to be assigned, the suggestion of a commercial transaction must not only be present in the work, it must be the work's purpose. The absence of such a suggestion in Rush's painting meant that the creative nature of it was afforded full protection by the First Amendment. As Judge Graham wrote in the court's opinion, "Rush's prints are not commercial speech. They do not propose a commercial transaction. Accordingly, they are entitled to the full protection of the First Amendment. Thus, we are called upon to decide whether Woods's [sic] intellectual property rights must yield to Rush's First Amendment rights."

—Ingrid Nuttall
Silha Research Assistant

The U. S. Court of Appeals (6th Cir.) affirmed the ruling in Victoria's Secret Catalogue, Inc. v. Moseley, 259 F. 3d 464 (6th Cir. 2001): "While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name ÔVictor's Little Secret' are likely automatically to think of the more famous store and link it to the Moseleys' adult-toy, gag gift, and lingerie shop. This, then, is a classic instance of dilution by tarnishing (associating the Victoria's Secret name with sex toys and lewd coffee mugs) and by blurring (linking the chain with a single, unauthorized establishment)."

The Sixth Circuit's ruling was at odds with a 1999 ruling by another federal appeals panel, Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development, 170 F. 3d 449 (4th Cir. 1999). In that decision, the Fourth Circuit stated that claims of dilution require proof of "actual harm." The Supreme Court granted certiorari to settle the disagreement.

The rationale behind Justice John Paul Stevens' majority opinion was based upon pertinent passages of the FTDA, which stated that "the owner of a famous mark" is within his rights to oppose another individual's mark if it "causes dilution of the distinctive quality" of the famous name (Stevens' emphasis). "This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution," he wrote. "The mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution," he continued. "Such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner, the statutory requirement for dilution under the FTDA."

Although Stevens maintained that a trademark owner does not have to go so far as to prove actual economic harm, a successful dilution claim must nevertheless prove that the damage is more concrete than a consumer simply making a mental link between the two names. "Blurring," Stevens noted, "is not a necessary consequence of mental association." The opinion suggested consumer surveys as one means by which actual dilution might be confirmed.

Relying on the definitions and explanations of dilution as outlined in the FTDA, the Supreme Court held that actual dilution—not just the likelihood of it—must be established. Stevens concluded, "There is a complete absence of evidence of any lessening of the capacity of the Victoria's Secret mark to identify and distinguish foods or services sold" in its stores or catalogs. Since the Court found no evidence of dilution, it remanded the case to the original court, and Victoria's Secret will have an opportunity to present additional data to support their claim.

USA TODAY's Supreme Court reporter Joan Biskupic suggested that this opinion "raises the bar for companies claiming trademark dilution," forcing companies to show "hard evidence" of dilution in the effectiveness of the trademark.

—Elizabeth Jones
Silha Research Assistant

Nike had created advertisements, written letters, and issued press statements to its customers, potential customers, and the public generally, defending its overseas practices. In 1998, Marc Kasky, a San Francisco labor activist, sued the company for false advertising, claiming that the company had lied to the public.  Kasky alleged that Nike ran Third World sweatshops to produce its products and did not, as the company claimed, protect workers' rights overseas. (See "Can Press Releases Be Considered Commercial Speech" in the Winter 2003 issue of the Silha Bulletin.)

Last year, the California Supreme Court ruled that Nike's speech was commercial speech after applying a three-part analysis which looked to the speaker, the intended audience, and the content of the message. (See Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002)) The court held that advancing an economic transaction was not a necessary condition for speech to be commercial. Justice Joyce Kennard, writing for the court, opined, "Our holding in no way prohibits any business enterprise from speaking out on issues of public importance or from vigorously defending its own labor practices. It means only that when a business . . . makes factual representations about its own products or its own operations, it must speak truthfully."

Nike sought review by the U.S. Supreme Court of the California high court's decision. Over forty large media companies, including the Associated Press, The New York Times, The Washington Post, ABC, CBS, NBC, Time, and Newsweek – filed friend of the court briefs in support of Nike, claiming that First Amendment protections of free speech would be lessened should Nike be found liable. The Silha Center also filed an amicus brief in the case, available online at www.silha.umn.edu.

The U.S. Supreme Court granted certiorari and heard oral arguments, but ultimately declined to rule on the issues. In June, the high court ruled that it erred in granting review of the lawsuit, dismissing the case and sending it back to the California courts.

Justice John Paul Stevens, joined by Justices Ruth Ginsburg and David Souter, wrote that the California Supreme Court's decision was not "final," and that the truth or falsity of Nike's statements had not been evaluated by the court. He reminded the parties, however, that the high court has long provided "broad protection for misstatements about public figures that are not animated by malice."

Justices Stephen Breyer and Sandra Day O'Connor would have decided the merits of the case, writing that it was "highly probable" that the California law "disproportionately burdens speech" and was unconstitutional. Justice Anthony Kennedy also dissented from the Court's decision to return the case to California without a substantive ruling.

The settlement of the case leaves undecided the limits of commercial speech that includes political statements.

In a statement released to the media regarding the settlement, Nike said, "The two parties mutually agreed that investments designed to strengthen workplace monitoring and factory worker programs are more desirable than prolonged litigation." Patrick Coughlin, Kasky's lawyer, said his client was "satisfied that the settlement reflects Nike's commitment to positive change where factory workers are concerned."

The Fair Labor Association, formed in 1999, includes 179 universities, human rights organizations, consumer groups and various companies.

—Thomas Corbett
Silha Research Assistant

The plurality held that the First Amendment did not bar a law banning cross burning "with the intent of intimidating" others, because such intimidation constituted a threat. However, the court held that the statute's prima facie evidence provision, as interpreted by jury instructions in one of the cases before the court, was unconstitutional. Because of that, the court overturned one conviction where the jury was instructed that the act of burning a cross, in and of itself, was prima facie evidence of an intent to intimidate. In another instance, where no such instruction was given, the court vacated the conviction and remanded for further inquiry as to intent to intimidate.

After the U.S. Supreme Court granted certiorari, the Virginia legislature enacted a new cross-burning statute without the prima facie evidence provision, but the new law did not repeal the old one, the Court noted.

A decade before Black, in 1992, the Supreme Court in R.A.V. had set the standard for hate-speech laws. In that case, the Court struck down a St. Paul, Minn., city ordinance that criminalized certain specific messages, including burning crosses and swastikas, when those messages were intended to stir up anger on the basis of "race, color, creed, religion or gender." Because the ordinance only applied to messages focused on arousing anger based on one of those categories, the Court held that it constituted a content-based speech restriction in violation of the First Amendment.

The Virginia law reviewed in Black, however, was different in significant respects, the Court said. First, the ordinance banned only cross burning. Second, it made no distinctions about what person or group the message was intended to reach. Third, and most importantly, it required that the cross burning must have been done with intent to intimidate. Those distinctions allowed the justices to find that the law did not violate the Constitution because cross burning with the intent to intimidate constitutes a threat, speech that is not protected by the First Amendment. Also, because the law does not single out specific groups for protection, the justices did not see it as impermissibly content-based.

The first three sections of Justice O'Connor's opinion were joined by Chief Justice Rehnquist and Justices Scalia, Stevens and Breyer. Justices Souter and Scalia issued opinions that concurred in part and dissented in part. Justice Thomas dissented, saying that the burning of a cross was not speech at all, but conduct that should receive no First Amendment protection.

—Doug Peters
Silha Fellow

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Justice Kathryn Mickle Werdegar wrote the opinion for the majority, ruling that Hamidi did not cause any physical damage to any of Intel's property. He had used his own computer to send his letters from his home, and therefore did not trespass on Intel's property. Comparing e-mail to other electronic forms of communication, Werdegar wrote, "[T]he contents of a telephone communication may cause a variety of injuries and may be the basis for a variety of tort actions (e.g., defamation, intentional infliction of emotional distress, invasion of privacy), but the injuries are not to an interest in property, much less real property, and the appropriate tort is not trespass." Electric signals, she wrote, should not be considered as "[T]iny messengers rushing through the hallways of Intel's computers and bursting out of employees' computers to read them Hamidi's missives. . .. [S]uch fictions promise more confusion than clarity in the law." Werdegar further wrote that Intel "must, but does not, demonstrate some measurable loss from the use of its computer system."

As to Intel's claim that the company suffered losses over the time employees spent deleting Hamidi's emails, Werdegar stated that Intel could not assert a property interest against employees' time because employees are not chattels in the legal sense of the term. "Whatever interest Intel may have in preventing its employees from receiving disruptive communications, it is not an interest in personal property, and trespass to chattels is not an action that will lie to protect it," Werdegar wrote.

As for restricting the use of spam, Werdegar wrote that excluding undesired communications from one's e-mail might "create substantial new costs, to e-mail and e-commerce users and to society generally, in lost ease and openness in communication and in lost network benefits." In adopting a rule treating computer serves as real property for purposes of trespass law, "We would be acting rashly," Werdegar stated.

In a dissenting opinion, Justice Richard Mosk wrote, "Intel correctly expects protection from an intruder who misuses its proprietary system, its nonpublic directories, and its supposedly controlled connection to the Internet to achieve [Hamidi's] bulk mailing objectives – incidentally, without even having to pay postage."

Mosk further cited America Online, Inc. v. IMS, 24 F. Supp.2d 548 (E.D. Va. 1998), where unwanted e-mails had forced America Online to devote technical resources and staff time to defend its system against the unwanted messages. "The company was not required to show that its computer system was overwhelmed or suffered a diminution in performance; mere use of the system by the defendant was sufficient to allow the plaintiff to prevail on the trespass to chattels claim."

Asked by the Los Angeles Times if he plans to resume his mass e-mailings to Intel employees, Hamidi replied, "Absolutely. I am going to use the privilege to the max."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Smith, wondering whether Batzel's collection could have included pieces acquired through Nazi plunder, sent an email to the Web site of the Netherlands-based Museum Security Network, which he had found through an Internet search engine. Smith's e-mail described Batzel's alleged characterizations of her Nazi ancestry and the provenance of her art collection. The message continued:

"I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. . . .I do not know who to contact about this, so I start with your organization."

Ton Cremers, the operator of the Web site and the then-Director of Security at Amsterdam's renowned Rijksmuseum, received the message and decided to include it in a periodic compilation of messages and news regarding stolen art that he then mailed out to the site's listserv subscribers.

When Batzel learned of the mailing, she sued both Smith and Cremers for defamation in the United States District Court for the Central District of California. Batzel claimed that the information was false and that she had lost clients as a result of its publication. She further claimed that she was subjected to a bar association investigation and that her social reputation had suffered.

The district court ruled that "provider or user of an interactive computer service" refers only to Internet service providers. Section 230(f)(2) of the CDA defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ."

The district court ruling meant that Cremers, as the operator of a Web site – and not an Internet service provider – was not protected by the CDA.

A three-judge panel of the appeals court, in an opinion by Judge Marsha Berzon, held that although publication of Smith's e-mail in a non-electronic form could have given rise to liability, Cremers' publication of the e-mail via the Internet was shielded by ¤ 230(c)(1) of the CDA. That section provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Judge Ronald Gould filed an opinion concurring in part and dissenting in part.

The appeals court held that ¤ 230(c)(1) extends to providers of services such as e-mail listservs. The court added that, even without recognizing listservs as interactive computer services, ¤ 230(c)(1) would still control, because it protects both providers and users of interactive computer systems.

Statutory immunity is available only if the allegedly defamatory material was created or developed by someone other than the provider or user of the interactive computer service, the opinion noted. The court said that Cremers enjoyed such immunity because he had neither written the allegedly defamatory e-mail nor made significant editorial changes, and thus could not be considered the creator or developer.

Although such a determination normally would end discussions under ¤ 230(c)(1) analysis, the court said, the facts of this case created additional wrinkles. Because Smith had said he did not intend for Cremers to publish his message and did not even know that the Museum Security Network operated a listserv, the court said it was unclear whether Smith could be considered an information "provider" under the statute. The trial court would have to determine whether, "under all the circumstances, a reasonable person in Cremers' position would conclude that the information was sent for Internet publication, or whether a triable issue of fact is presented on that issue."

Creating such a standard, the court said, would avoid creating a situation in which users and providers of Internet services could freely publish defamatory material that clearly was not intended for publication.

The issue of immunity under the CDA came to the appeals court before the case had been resolved by the district court. Cremers appealed the district court's decision to allow the case to go forward, despite Cremers' claim of immunity under a California statute barring lawsuits brought for the purpose of stifling free speech. (See Cal. Civ. Proc. Code ¤ 425.16). Berzon and Judge William Canby, Jr. nullified the district court's ruling and remanded the issue, saying that the district court must consider whether Cremers' belief that Smith intended his message for publication was reasonable.

A finding that the belief was reasonable would immunize Cremers from liability under the CDA. A finding that Cremers should have known that Smith did not intend his message for publication, however, would allow Batzel's case to move forward.

Judge Gould dissented, saying the court had improperly extended the immunity that Congress had sought to establish in ¤ 230(c)(1). Gould said that the reasonableness standard was unworkable, because it required Internet publishers to judge the subjective intent of those who sent information. An easier method – and one more consistent with the intent of Congress – would be to judge only the actions of the defendant, Gould wrote. In this case, the fact that Cremers actively selected Smith's message for publication was enough to eliminate the immunity provided by ¤ 230(c)(1). The section was created, Gould wrote, to prevent the chilling effect on speech that would occur if service providers whose systems served as conduits for millions of messages each day were responsible for policing the content of each one.

—Doug Peters
Silha Fellow

The city of Cookeville also had its own Web site. Between 1997 and 2001, the site had a "local links" page. On Oct. 15, 1997, Davidian sent Steve Corder, who was in charge of developing and maintaining the city's Web site, an e-mail requesting that the city post a link to The Putnam Pit. Corder never responded to Davidian's request, but forwarded his e-mail to other city officials. Those officials also did not respond to Davidian's request.

A few days later, Davidian wrote another e-mail to City Manager Jim Shipley requesting a link from the city's Web page to The Putnam Pit. Although the city had not previously implemented a policy regarding links from its Web site, Shipley promulgated a standard limiting links to not-for-profit corporations. At the time, The Putnam Pit was a for-profit Tennessee corporation.

Following this decision, Shipley wrote Davidian, saying, "I do not feel the City should be allowing any links to private businesses. . .. Therefore, I must decline your request to be linked."

Davidian, who does not reside in Tennessee, informed Shipley that he would then change The Putnam Pit into a not-for-profit corporation in order to meet the requirements. Shipley told Davidian that Cookeville would still not provide a link. Shortly thereafter, Shipley changed the standard for links to the city's Web page, saying that linked pages must "promote the economic welfare, industry, commerce, and tourism in the local area to be linked to the web site." This change in standard further meant that links were no longer limited to not-for-profit corporations.

Davidian responded by adding a page to The Putnam Pit entitled "Commerce and Tourism, Cookeville, Tennessee," and once more requested the city provide a link to his page. City officials again denied his request, saying that the only thing Davidian had on his page that promoted commerce and tourism was its headline. In 1997, Davidian filed suit against the Shipley in his role as Cookeville's City Manager in state court, alleging that the city violated his civil rights under both state and federal law.

Attorneys for Cookeville had asked that the suit be removed to the federal district court for the Middle District of Tennessee. By the time the case came to trial at that court, Cookeville had abandoned its "local links" page. A jury was asked to determine whether The Putnam Pit met the city's eligibility requirement by promoting Cookeville's economic welfare, commerce and tourism. The jury determined that The Putnam Pit did not, and the city's motion for summary judgment was granted on the federal claims, while the state claims were dismissed.

Davidian appealed the decision to the Court of Appeals (6th Cir.). In an opinion issued July 2000, Cole, writing for a unanimous three-judge panel, applied a two-part analysis to determine whether Cookeville's Web site fit a designated or a nonpublic forum, stating, "First, we look to whether the government has made the property generally available" and secondly, "whether the exclusion of certain expressive conduct is properly designed to limit the speech activity occurring in the forum" and that the restrictions to speech fit within the parameters of the forum's purpose.

The city may establish eligibility requirements for linking sites to its web page, Cole wrote, and Davidian has no entitlement to a link from the city's site. But despite that, the city cannot deny Davidian a link to The Putnam Pit based solely on the viewpoints he posted there. Cole ordered a new hearing at the trial level to review the city's refusal to allow Davidian to link to its Web page.

The jury had to determine whether Davidian's Putnam Pit was eligible for a link to Cookeville's Web page based on the city's requirement that only Web sites that promoted commerce, tourism, or industry of the Cookeville area could be linked, and if so, whether the denial of the link to The Putnam Pit constituted viewpoint discrimination. In 2001, the jury decided that Davidian's publication did not fulfill Cookeville's requirement, canceling out the need to consider the second question.

Davidian appealed the new ruling of the district court on two facial challenges, claiming that the standards for "local links" on a the Web site for the city of Cookeville, Tenn., should be void due to vagueness under the Due Process Clause of the Fourteenth Amendment and were also unconstitutionally overbroad under the First Amendment. The Silha Center joined an amicus brief supporting petitioner. In 2003, Cole, writing his second ruling on the case, for a different three-judge panel, stated that because these points had not been raised when the case was before the lower court, they cannot be raised now.

Cole's unpublished opinion, meaning that it cannot be cited as precedent, is binding only on the parties involved in this case.

The Putnam Pit is available online at http://www.putnampit.com.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

On Dec. 3, 2001, Unknownuser e-mailed Kevin Murphy of the Montgomery, Ala. police department, saying that he had found "another child molester" identified as William Jarrett and asking how to contact the FBI. The following day, Unknownuser sent Murphy files he had downloaded from Jarrett's computer. The FBI initiated an investigation, and Jarrett was eventually charged with one count of manufacturing child pornography and seven counts of receiving child pornography. Jarrett moved to suppress the evidence against him claiming it had been gathered in violation of his Fourth Amendment rights. His motion was denied.

But after Jarrett entered a guilty plea, the government revealed that there had been e-mail correspondence between Unknownuser and FBI agent Margaret Faulkner. In a Dec. 19, 2001 e-mail, Faulkner thanked Unknownuser for his help in apprehending Jarrett. In what the appeals court characterized as a "wink and a nod," Faulkner continued, "[A]s long as you are not Ôhacking' at our request, we can take the pictures (found on alleged child pornographers' computers) and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a US citizen and are not bound by our laws." In a later e-mail Faulker wrote, "You have not hacked into any computer at the request of the FBI or other law enforcement agency. You have not acted as an agent for the FBI or other law enforcement agency. Therefore, the information you have collected can be used in our criminal trials."

On the basis of this new information, Jarrett asked the court to reconsider his earlier motion to suppress the evidence against him. The district court granted his motion, and allowed him to withdraw his guilty plea, finding that law enforcement agencies and Unknownuser has "expressed their consent to an agency relationship." At this point, the government appealed the case to the federal appeals court.

Circuit Judge Diana Gribbon Motz wrote the unanimous opinion for the three-judge panel. To decide the case, she applied a three-part test. First, she wrote that courts "should look to the facts and circumstances of each case in determining whether a private search is in fact a Government search." She placed the burden of proof on the defendant to show that "the Government knew of and acquiesced in the private search and the private individual intended to assist law enforcement authorities." And finally, Motz wrote that there must be "evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough."

Based on the three-part test she set forth, Motz found that Unknownuser had acted as an individual, rather than an agent for the government, because the correspondence between Unknownuser and Faulkner had occurred after Unknownuser had gained access to Jarrett's computer. Because Unknownuser had not contacted authorities for seven months between his information concerning the Steiger and Jarrett cases, Motz ruled that his communication with U.S. law enforcement did not constitute an "ongoing" relationship.  She continued, "[N]othing indicates that the Government had any intention of reestablishing contact with him. . .. Although the Government's behavior in this case is discomforting, the Government was under no special obligation to affirmatively discourage Unknownuser from hacking."

At the time the Bulletin went to press, no word had been given as to whether Jarrett would appeal the ruling of the appeals court.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

A.A. v. New Jersey began in the U.S. District Court in New Jersey, where Judge Joseph Irenas ruled in December 2001 that Megan's Law did not constitute further punishment for sex offender crimes, and therefore did not violate their rights under the Constitution's Ex Post Facto and Double Jeopardy clauses. However, Irenas found that the convicted offenders' argument that disclosure of their home addresses violated their right to privacy had merit. (See A.A. v. New Jersey, 176 F. Supp. 2d 274 (2001)). Both sides appealed to the Third Circuit, but the case was placed on hold while another case, Smith v. Doe, was before the U.S. Supreme Court. The high court eventually ruled that posting certain information on the Internet, including certain personal information such as name, age, and personal description, did not constitute a punitive measure. (See Smith v. Doe, 123 S. Ct. 1140 (2003); see also, "Sex Offender Registration Ruled Not Punitive," in the Winter 2003 issue of the Silha Bulletin.) Sloviter cited Smith v. Doe, writing, "The purpose and principal effect of notification are to inform the public for its own safety, not to humiliate the offender."

Sloviter wrote that Megan's Law was designed to provide information about convicted sex offenders to a community. But in addition, information such as an individual's address is important to everyone in a mobile society. "The Registrants' argument ignores both the need to access information in a mobile society and the difference between the system of notification at issue here . . .." Sloviter added that unless addresses of convicted sex offenders were available on the Internet, parents might find themselves the owners of a new house just down the street from an offender.  "Indeed," she wrote, "discovering this information after the fact undermines the stated goal of New Jersey, which is to enable parents to prevent or avoid placing potential victims at risk."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

At the encouragement of Judge Jonathan Lebedoff working with new library director Kit Hadly, a settlement of $435,000 was awarded to the librarians. Even though a majority of the trustees of the Minneapolis public library oppose the installation of filtering software, as a condition of settlement, library officials will consider installing Internet filters, as well as making changes in policies regarding the printing of Internet materials and penalties for library patrons who access pornography on city library computers. Penalties may include banning individuals from city libraries for up to a year; viewers of child pornography could lose library privileges permanently. Under current policy, patrons who view obscene sites could have their privileges suspended for 90 days.

In a joint statement, the plaintiff librarians said, "We believe the financial settlement in this case sends a strong message to libraries around the country." The plaintiffs cited the stance of the American Library Association favoring open access to information at libraries as contributing to the delay in resolving the dispute. (See "Librarians File EEOC Complaint in Minneapolis" in the Winter 2001 issue of the Silha Bulletin.)

—Thomas Corbett
Silha Research Assistant

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor