Media Law Prof Blog

North Carolina Appeals Court Holds That Public Records Act Does Not Apply to Clemency Applications

The North Carolina Court of Appeal has held that the state's public records act does not apply to applications for clemency in News and Observer Publishing Co. v. Easley.

The newspaper had asked the Governor of the state to produce records pertaining to requests for clemency. The court said in its opinion, "With respect to the N&O's request for clemency records, we hold that N.C. Const. art. III, §5(6) carves out a limited area in which the General Assembly may exercise its authority as to clemency. The constitution expressly allows the General Assembly to enact legislation “relative to the manner of applying for pardons.” Id. All other clemency authority rests with the Governor. We have further concluded that this constitutional provision requires that the legislation specifically relate “to the manner of applying for pardons” and, therefore, legislation such as the Public Records Law, which does not specifically reference clemency, cannot be allowed to intrude upon the Governor's clemency authority. We, therefore, uphold the trial court's dismissal of the N&O's lawsuit pursuant to N.C.R. Civ. P. 12(b)(6)....This case does not involve judicial review of the Governor's exercise of clemency power. Instead, the question before the Court is whether the N&O is entitled, under the Public Records Law, to certain clemency records within the possession of the Governor. The answer to that question turns not on a political question, but on the meaning of our constitution's proviso that the Governor's power is subject to legislation “relative to the manner of applying for pardons.” The principle that questions of constitutional and statutory interpretation are within the subject matter jurisdiction of the judiciary is just as well established and fundamental to the operation of our government as the doctrine of separation of powers....Because the outcome of this litigation is governed by the meaning of N.C. Const. art. III, §5(6), we conclude that the judicial branch has authority to resolve this dispute, and we reject Governor Easley's challenge to our subject matter jurisdiction. The trial court, therefore, did not err in denying the Governor's motion to dismiss for lack of subject matter jurisdiction.

"We turn now to the question whether the North Carolina Public Records Law can be invoked to require the Governor to produce the disputed clemency records. That legislation provides a right of access to “[t]he public records and public information compiled by the agencies of North Carolina government.” N.C. Gen. Stat. §132- 1(b) (2005). This right of access is broadly enforceable by “[a]ny person who is … denied copies of public records.” N.C. Gen. Stat. §132-9(a) (2005). The Governor argues that applying the Public Records Law to clemency documents would violate separation of powers principles. “[F]or more than 200 years, [North Carolina] has strictly adhered to the principle of separation of powers.” .... This principle, of course, distributes the power to make law to the legislature, the power to execute law to the executive, and the power to interpret law to the judiciary....In response to the Governor's argument, the N&O relies upon Poole, arguing that the Supreme Court held that application of the Public Records Law to require the executive branch to make documents public does not implicate the separation of powers doctrine. The N&O points out that the Court reasoned: “The only decision cited by defendants bearing on the separation of powers doctrine, [Wallace v. Bone], involved two branches of government interfacing with each other. That decision is inapposite here. The Public Records Law allows intrusion not by the legislature, or any other branch of government, but by the public. A policy of open government does not infringe on the independence of governmental branches. Statutes affecting other branches of government do not automatically raise separation of powers problems.”.... We disagree with the N&O's view that Poole necessarily held that the Public Records Law could never raise separation of powers issues. The defendants in Poole were asking the Court to adopt a “preliminary draft” exception to the Public Records Law to protect from disclosure draft reports resulting from an investigation of the N.C. State University basketball program. The Court's holding regarding the separation of powers rejected the defendants’ argument that a “preliminary draft” exception was necessary “to prevent the legislature from intruding into the decision-making processes of other government branches … .” Id. In rendering its holding, the Court emphasized that defendant had “cited no controlling authority … and failed to cite or rely on the state Constitution … .” Id. (emphasis added). This case, however, involves a specific, broad constitutional commitment of power to the executive branch and an accompanying narrow grant of authority to the legislature. N.C. Const. art. III, §5(6). Consequently, what was missing in Poole — an express constitutional grant and limitation of authority — is present here. When considering other specific grants of power to the Governor in N.C. Const. art. III, §5, our Supreme Court has held that a statute “constitut[ing] an encroachment upon the duty and responsibility imposed upon the Governor” in that Article “violates the principle of separation of governmental powers.” ...We do not, therefore, read Poole as mandating production of the clemency records. By the same token, we cannot accept the Governor's argument that the separation of powers doctrine precludes the General Assembly from enacting any legislation relating to clemency. Just as the General Assembly may not intrude on the clemency power granted to the Governor by N.C. Const. art. III, §5(6), neither may the Governor — or the judicial branch — intrude upon “the power [that] was specifically outlined by the state constitution as belonging to” the General Assembly with respect to clemency...."

Further, the Court said, "The N&O argues that language specifically making such records subject to the Public Records Law “would be redundant and unnecessary, because the Public Records Law is a ‘regulation’ of general applicability” and “that ‘regulation’ contains no exemption for clemency records… .” This contention, however, disregards the constitution's requirement that, with respect to clemency, there must be specific and not general legislation. It is not enough that the General Assembly did not exempt clemency records from a generally-applicable statute; it must have expressly chosen to exercise its authority to include them. Because of the specific language of the constitution and the separation of powers implications, we deem it inappropriate to infer an otherwise unspecified intent.

We hold, therefore, that the N&O may not use the Public Records Law to compel Governor Easley to disclose the requested documents. The trial court, therefore, properly dismissed the N&O's complaint for failure to state a claim upon which relief could be granted."

The case is News & Observer Publishing Co. v. Easley, 641 SE2d 698 (2007).

More On the Lott Defamation Lawsuit Against Steven Levitt

The Chronicle of Higher Education reports that John Lott has filed a motion for a gag order to prevent leaks of information from documents obtained during discovery as his defamation lawsuit against Steven Levitt, the author of Freakonomics, moves toward an October trial date. According to Mr. Lott and his lawyers, such leaks could damage sales of his new book, Freedomnomics. Read the Chronicle's post here.

Advertising Standards Authority Tells Toyota To Pull Prius Ad

The Advertising Standards Authority, the British agency charged with investigating advertising claims complaints, has told Toyota that its ad concerning environmental benefits available to consumers who purchased the hybrid Prius goes too far. Therefore the company must no longer broadcast the ad in its current form. According to the ASA's ruling, "Toyota sent a chart that took an average of the emissions of new cars registered in 2005 and compared that with the emissions of the Prius.  The chart showed that, on average, new cars registered in 2005 emitted 172g of CO2 / km, while the Prius emitted 104g / km.  They said they had taken the difference of 68g/km and multiplied it by 20,000km, which they considered a reasonable average annual distance travelled by a car.  That gave an emissions saving of 1.36 tonnes.  The chart also gave emissions figures for individual cars with engines of between 1.2 and 2.2 litres.  They said they had chosen 1.8 litres as a threshold of comparison because although the Prius had a 1.5 litre engine, they believed its output was comparable to a 2.0 litre engine.  They sent a document that compared the output of the current Prius with the first generation Prius hybrid and the Toyota Allion, which had a 2.0 litre engine.  They argued the chart showed that the Toyota Prius emitted one tonne less of CO2 than a range of cars with engines either side of their threshold of comparison and pointed out they had qualified the claim by stating "up to" 1 tonne less to make clear that the emissions saved would not always be as much as 1 tonne. The Broadcast Advertising Clearance Centre (BACC) said they had checked Toyota's evidence with an independent consultant, who had advised it was suitable to show that the Toyota Prius emitted significantly less CO2 than other cars....The ASA noted on-screen text stated that the claim compared the Prius with "an equivalent family vehicle with a diesel engine" and that it made clear calculations were based on an annual driving distance of 20,000km a year.  However, we noted that the chart sent by Toyota held data on petrol and diesel cars and that, while the average annual distance driven by private cars in the US was 20,000km, the average for the UK was 13,440km.  We noted that the chart drew on UK government data and compared the Prius against a range of cars from different manufacturers, but the document that measured the output of the car was produced inhouse and only compared the Prius against the previous model and another Toyota car.  We did not consider that document suitable to establish that the output of the Prius was comparable to all 2.0 litre cars registered in 2005.  We noted that none of the cars with 1.5 litre engines featured in the chart emitted 1 tonne more CO2 than the Prius and that less than half of those new cars that had engines of less than 1.8 litres emitted 1 tonne more CO2 than the Prius.  We noted that Toyota had qualified the claim by stating "up to one ton less CO2 per year" and that the Prius emitted significantly less CO2 than some other cars with greater engine capacity, but we did not consider their evidence demonstrated that it emitted 1 tonne less than equivalent vehicles with diesel engines or that it took into account the average annual distance driven by private cars in the UK. The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications), 5.2.6 (Environmental claims) and 5.4.6 (Comparative advertising)....The ad should not be broadcast again in the same form." Read the ruling here. Read more about the ad in an article in the Media Guardian here.

The Future of Newspapers

Randall Bezanson, University of Iowa College of Law, and Gilbert Cranberg, University of Iowa School of Journalism, have published "Taking Stock of Newspapers and Their Future," in volume 2 of the Florida International Law Review (2007). Here is the abstract.

In this essay, we will touch upon many subjects that are contributing to the changing face of daily newspapers in the United States. We begin with a brief and conclusory definition of editorial freedom in news, the foundation of journalism, and the key to its educational function in the news setting. We will then turn to markets, technology, economics, organization of the news firm, operation of the newsroom, and the changing definition of news. Our purpose is to identify deep changes that are occurring in the nature and institutions of news, changes that will continue to evolve in un-foreseeable but perhaps controllable ways as the Twenty-first Century un-folds.

Download the Essay from SSRN here.

Second Circuit Finds New FCC Standard Arbitrary and Capricious

The Second Circuit has ruled that the FCC's new standard regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act because the agency has failed "to articulate a reasoned basis for its change in policy." Fox Television, along with intervenors had challenged a November 2006 FCC order issuing notices of apparent liability.

The court examined the agency's prior applications of the Pacifica decision. "First, there is no question that the FCC has changed its policy. As outlined in detail above, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime.....Agencies are of course free to revise their rules and policies.... Such a change, however, must provide a reasoned analysis for departing from prior precedent.....Accordingly, agency action will be set aside as arbitrary and capricious if the agency fails to provide a reasoned explanation for its decision....Our evaluation of the agency’s reasons for its change in policy is confined to the reasons articulated by the agency itself. occurrence of an expletive is indecent or profane under its rules. For example, although “there is no outright news exemption from our indecency rules,”... the Commission will apparently excuse an expletive when it occurs during a “bona fide news interview,” ...(deferring to CBS’s “plausible characterization” of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane). Certainly viewers (including children) watching the live broadcast of The Early Show were “force[d]...to take the ‘first blow’” of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and “the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose.” ...[T]he record simply does not support the position that the Commission’s new policy was based on its concern with the public’s mere exposure to this language on the airwaves. The “first blow” theory, therefore, fails to provide the reasoned rationale is disconnected from the actual policy implemented by the Commission....The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme Court’s Pacifica decision. In Pacifica, the Supreme Court justified the FCC’s regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning....The Court rejected the argument that the audience could simply tune-out: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.”.... We cannot accept this argument as a reasoned basis justifying the Commission’s new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful “first blow” for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives."

With regard to the constitutionality of the speech at issue, the court noted that "that in reviewing these numerous constitutional challenges, which were fully briefed to this court and discussed at length during oral argument, we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster....speech covered by the FCC’s indecency policy is fully protected by the First Amendment....With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane."

Finally, the court concluded, "[w]e are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion. Accordingly, we grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion. The stay previously granted by this court is vacated as moot."

Read the entire ruling here. The case is Fox v. Federal Communications Commission, Docket Nos. 06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).

Journalist Arrested After Dispute in Debate Spin Room

CNN reports that Eric Alterman, a columnist for the Nation, was arrested after he apparently refused requests to leave the debate spin room during the evening's proceedings. He had entered an area set off for a private party. Mr. Alterman says the arrest was the result of a misunderstanding. He says he will attempt to have the charge of criminal trespass dropped.  Read more here in a CNN story.