Berkman Center’s Citizen Media Law Project and Cyberlaw Clinic Advocate First Amendment Scrutiny in Hot News Cases

June 22, 2010

Cambridge, Mass. -- The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF) and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc. The coalition worked with Harvard Law School's Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com ("Fly") that reports on equity research from Wall Street investment firms. Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation. The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day. The injunction applies even when Fly obtains information about the recommendations from published news reports. Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern. The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment. The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment. “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard. “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief. Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School. CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf

About the Citizen Media Law Project
The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard University and the Center for Citizen Media, provides legal assistance, training, research, and other resources for individuals and organizations involved in online and citizen media. The CMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet. Through the project’s website, www.citmedialaw.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in facilitating citizen participation in online media and protecting the legal rights of those engaged in speech on the Internet. For more information, visit http://www.citmedialaw.org.

About the Harvard Law School Cyberlaw Clinic
The Cyberlaw Clinic, based at the Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues. The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice. More information can be found at http://cyber.harvard.edu/clinical.

About the Berkman Center for Internet & Society
The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at http://cyber.harvard.edu.

Contact
Seth Young
Berkman Center for Internet & Society
617-384-9135
syoung@cyber.harvard.edu

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Last updated

June 22, 2010