This piece is co-authored by Jeff Hermes and Andy Sellars.

This year turned out to be one that could fit well in a Billy Joel song: peppered protesters, jailed journalists, Internet crusaders ... the list goes on. To recap a year that has been chock-full of shifts in media, we put together a list of the top 10 (plus one for good luck) legal developments of 2011.

In an attempt to pare down our list, we primarily considered three factors: 1) What kind of attention did an issue receive from the public, advocacy groups, lawmakers and the courts this year?; 2) How important will an issue be in the years to come?; and 3 To what extent did an issue shift the course of media?

Here's an Index of the list:

1. "Wiretapping" the Police
2. Covering Occupy
3. Bloggers as Journalists
4. Tax-Exempt Journalism Gets Delayed
5. Net Neutrality
6. Hot News: Still Dodging the Big Questions
7. Internet Copyright Enforcement Goes Technological
8. Righthaven Is in the Wrong
9. The Supreme Court Expands First Amendment Protection
10. Cameras in the Courtroom
11. Fleeting Expletives

1. "Wiretapping" the Police

"Wiretapping" sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader -- as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

But citizens have succeeded in challenging some of these arrests on First Amendment grounds. The U.S. Court of Appeals for the First Circuit excoriated three Boston police officers for a wiretapping arrest earlier this year, holding that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

Similarly, in Illinois a state circuit court judge ruled that the state's eavesdropping law was "intended to prevent unwarranted intrusions into a citizen's privacy [and] cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties[.]" The U.S. Court of Appeals for the Seventh Circuit is expected to rule on an ACLU challenge to the constitutionality of Illinois' eavesdropping law early in 2012.

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism -- and by extension the public at large -- will suffer greatly.

2. Covering Occupy

Reporters familiar with covering police and social unrest will tell you that it is not uncommon for journalists to be swept up in a mass arrest by police eager to clear the streets of misfits. What changed in 2011 was the frequency and brashness of police arresting working journalists in the Occupy camps.

Thus far, journalists all across the country have been swept up while covering demonstrators.

Reporters may be surprised to learn that having a press credential doesn't always serve as a get-out-of-jail-free card. But normally, there is a mutual understanding among the press and police that working journalists should not be carted off to jail with protestors. And, even when journalists do get caught in a mass arrest like the ones all-too-familiar to Occupy protestors, reporters traditionally have been cut loose once police are aware that they snagged the wrong fish.

That mutual understanding has broken down in the Occupy camps. The problem, according to police, is that anyone can claim to be a "journalist" today, making it impossible to offer anyone special treatment. Indeed, some of the most compelling reports of police action at the Occupy camps have come from members of the public.

The Occupy saga is not just about the press' attempt to cover the most significant outburst of mass social disobedience in recent memory and police attempts to restrict them. It is also about the most significant question in media today: Who, exactly, is a journalist?

3. Bloggers as Journalists

Indoors and away from the Occupy camps, that perennial question reared its head in 2011 with courts struggling to decide whether bloggers and other social media users are entitled to the same protection of journalists when hauled into court.

In December, an Oregon federal jury entered a $2.5 million defamation verdict against an individual blogger, Crystal Cox. The district court judge rejected many of Cox's defenses, ruling among other things that bloggers like Cox (and essentially everyone else who is not a professional journalist) are not entitled to the protection of the First Amendment in defamation cases.

The idea that private citizens lack basic constitutional protections -- such as requiring a defamation plaintiff to prove that a statement is false and that the defendant was negligent in checking her facts -- is startling. Although it is true that the U.S. Supreme Court's rulings in defamation cases have involved mainstream media defendants (because most non-media defendants generally lack the resources to fight a defamation case all the way to the top), the court has held that journalists normally have no greater First Amendment rights than other citizens.

It is worth noting that the Oregon judge ruled earlier in the same case that "blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact" -- a statement that would surprise many professional online writers. It remains to be seen whether Cox will appeal the judgment against her, and whether courts' skepticism of blogs and bloggers will have dramatic repercussions for the rights of all citizens.

4. Tax-Exempt Journalism Gets Delayed

In a recent presentation at Harvard's Berkman Center for Internet & Society, the Online Media Legal Network reported that, among their applicants seeking assistance forming new journalism businesses in the past two years, those looking to form non-profit organizations outnumber those looking to form for-profits by about two to one.

Many startup non-profit news outlets are counting on the Internal Revenue Service to bless them as tax-exempt "educational" organizations under Section 501©(3) of the Internal Revenue Code, so that they can receive tax-deductible donations from foundations and private individuals. Recent reports from non-profits in the IRS process, however, have revealed long delays in decisions on Section 501©(3) status, with some organizations stuck in the process for up to two years.

The agency has started rerouting applications from news-related groups for special consideration within its hierarchy, and has indicated that it will carefully scrutinize applicants' sources of revenue. The IRS has not yet spoken publicly about the reason for the special treatment, but the agency's normal standards consider whether a non-profit news business's methods of operation are distinguishable from for-profit business models -- a distinction that might be hard to make these days.

As a result, many fledgling ventures are left in limbo waiting for the IRS's decision. Without word from the government, would-be journalism outfits do not know whether they can rely on donations to supplement their income. These organizations, and the journalism industry as a whole, can only wait to see how the IRS will make sense of the news market from its own specialized perspective.

5. Net Neutrality

"Network Neutrality," a short-hand term for the proposition that Internet service providers (ISPs) should not be allowed to control or prefer content on the Internet sent over their systems, was at the heart of one of this year's most visceral debates. Advocates, both for and against the measure, claimed that the fight was for nothing less than the future of the Internet.

After an initial court battle, the Federal Communications Commission issued a formal Network Neutrality order in December 2010. Although the order was seen by some as not going far enough to protect Internet users, it was almost immediately challenged by Verizon, one of the country's largest ISPs.

After a false start, some congressional saber rattling crafty lawyering, and a little bit of luck, Verizon's challenge to the now formalized Net Neutrality rules is before the D.C. Circuit Court of Appeals for a second time and will be decided in 2012.

Although the case is likely to be decided on the sometimes dreadfully dry topic of statutory authority, its impact will be far-reaching. An FCC victory would limit ISPs' ability to control online content and could be just the start of the FCC's own regulation of the Internet. But if Verizon wins, the government may have to take a seat in the bleachers as the Internet continues to evolve -- for better or worse.

6. Hot News: Still Dodging the Big Questions

The "hot news" doctrine, which would allow a news outlet to bring a state-law unfair competition claim against competitors that free-ride on its newsgathering efforts, has been a subject of debate for several years now.

Some organizations believe that hot news can help save journalism by preventing competitors and news aggregators from reaping the benefit of another journalist's work. Others argue that the doctrine is a state-based copyright system for uncopyrightable facts that runs afoul of federal copyright law, and violates the First Amendment by prohibiting the timely republication of true, newsworthy and factual information to protect private business interests.

Despite hopes that it would bring clarity to these issues, the U.S. Court of Appeals for the Second Circuit did little to settle the debate when it ruled this year in Barclays Capital Inc. v. TheFlyOnTheWall.com. The high-profile hot-news case was between three investment firms and a news-aggregation website over the site's unauthorized republication of the firm's stock recommendations. In a 71-page opinion, the court was plainly uncomfortable with hot news, but declared that it was bound by earlier Second Circuit rulings to accept that the doctrine was not preempted as a whole by copyright law. Similarly, the court stated that it could not consider the First Amendment implications of the hot-news doctrine because the parties had waived that issue in the case.

The Second Circuit ultimately ruled in favor of the website, finding that copyright law preempted the claim, but only as applied to TheFlyOnTheWall.com. Therefore, although the website successfully fought off the claim, the narrow, fact-bound nature of the Second Circuit's decision leaves big questions open.

7. Internet Copyright Enforcement Goes Technological

The issue of information protection was big in 2011, a year that can go down as one where private rights-holders turned to the government for help in enforcement, and the government, in turn, looked to technology.

It started with Operation in Our Sites, an enforcement sweep developed by the Justice Department over the past two years, in which federal agents obtain warrants to seize websites as property used to commit copyright infringement. Seizure in this case doesn't mean kicking down doors and hauling away computers (though they did some of that, too). Instead, agents obtain court orders instructing those that operate the Domain Name System to redirect traffic away from these "rogue" websites. All of this happens before the owners of the websites have a chance to appear and protest the "seizures." Opponents have objected to this from all possible angles.

Congress has tried to expand this web-rerouting style of enforcement through two new bills: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT-IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House. Under these bills, the attorney general can pursue websites "dedicated to infringing activity" by obtaining court orders to reroute Internet traffic, removing sites from search results, and (under the more expansive SOPA bill) instructing ISPs, payment processing entities, and Internet advertising agencies to filter, defund, or otherwise obstruct these sites.

Critics of these bills call it nothing short of "the end of the Internet as we know it" (see Net Neutrality, above) and compare the filtering tactics here to those employed in authoritative regimes. Defenders respond by saying that without an effective stop of piracy online we can never hope to sustain our creative industries. The fight has become the leading front on the copyright debate, and will no doubt continue into 2012.

8. Righthaven Is in the Wrong

While Congress tinkered to protect intellectual property, one company was busy going to court. In 2010 the world got to know a company called Righthaven. The company had a plan to game the copyright system to make large sums of money: It would obtain a copyright interest in published works by various newspapers -- starting with the Stephens Media's Las Vegas Review-Journal (LVRJ) -- and then sue anyone posting articles from those papers for statutory copyright damages.

And sue they did, 270 times. They sued bloggers, advocacy organizations, news aggregators, political figures, a Vietnam veteran, LVRJ sources, their own ad agency, and even a journalist writing about these lawsuits. In January, Righthaven founder Steven Gibson declared that days of the takedown letter are over.

As it turns out, he spoke too soon. Things imploded fast for Righthaven in 2011. All of the cases that have gone to judgment have been decided against Righthaven. A few failed under the fair use doctrine. The rest failed when the Electronic Frontier Foundation uncovered the agreement between Righthaven and Stephens Media, revealing that Righthaven failed to retain enough of a copyright interest to have standing to sue for infringement. The consequences for Righthaven have been devastating: Partner journalism organizations bailed; bad litigation behavior led to sanctions; Righthaven has indicated that it is nearing bankruptcy; and a judge has just allowed a defendant to auction off Righthaven's assets to satisfy an unpaid fee -- including the very copyright interest (however dubious) that Righthaven claims to own.

Righthaven is appealing the decisions, but it is not clear that it has the resources to continue fighting .

9. The Supreme Court Expands First Amendment Protection

The Supreme Court took several free speech cases in the 2010-11 term, including those concerning protests at a soldier's funeral, the sale of medical prescription data, youth access to violent video games, the application of the Freedom of Information Act exceptions to corporations and the location of Navy explosive depots, and more election funding laws. Of these, two particular cases stand out.

In March, the Supreme Court issued a much-anticipated ruling in Snyder v. Phelps, a case that pitted the infamous Westboro Baptist Church against the family of a U.S. Marine killed in action in Iraq. The church protested at the soldier's funeral, with signs typical of their bigoted and hateful viewpoint, and the family of the soldier sued for intentional infliction of emotional distress and intrusion upon seclusion. The court held that so long as the church was speaking on matters of public concern, the First Amendment provides a defense to these state tort claims. That the language was offensive, caustic, inappropriate, or controversial was irrelevant and did not transform protected speech into unprotected speech.

In Brown v. Entertainment Merchants Association, the court struck California's new law restricting the sale of violent video games to children. The opinion was impressive for its breadth, categorically extending free speech protection to video games, dropping a 372-word footnote asserting the First Amendment rights of those under the age of 18, and going beyond a mere overbreadth argument, finding that California could never draft a law narrow enough to pass muster. What's more, twenty-somethings all over the world will rejoice in knowing that the iconic video game Mortal Kombat was mentioned in both the oral argument (by Justice Kagan) and in the majority opinion (by Justice Scalia).

10. Cameras in the Courtroom

As the Supreme Court hears more hot-button cases, the media's screams to let cameras roll in (over) the court become louder and louder. 2011 has been a year of experiments and controversy for media in the courtroom. After decades of resistance to video cameras, the federal court system this year launched a new pilot project allowing the recording of proceedings in 14 of the nation's trial-level district courts. In state courts, experiments such as the OpenCourt project in Massachusetts attempt to bring all-day streaming, live blogging and tweeting of court proceedings to the public. (You can read more about the OpenCourt project on our sister site, Idea Lab.)

But the presence of media in the courthouse is far from a settled issue. The Supreme Court continues to resist the televising of oral arguments before it, while on the other side of the country, the U.S. Court of Appeals for the Ninth Circuit weighs whether a video of the federal Prop 8 trial (the gay marriage case) should be made public after a district court judge declared that the video should be released. In Massachusetts, the Supreme Judicial Court is considering whether the OpenCourt project will be allowed to maintain a public archive of its recordings. Meanwhile, bucking the trend of more access to courts, the Superior Court for the District of Columbia implemented strict rules about the use of electronic media in the courthouse this year.

Only time will tell whether 2011 represents a milestone in the movement toward greater openness in the courts, or just a brief period of free access to a blocked channel.

11. One more for the road: Fleeting Expletives

Journalists' clamor for cameras in the courts is particularly relevant in a Supreme Court case that could determine what the media can and cannot air.

In 1976 the Supreme Court upheld the FCC's power to fine broadcasters for airing "indecent" programming. The days of government regulating dirty words on the radio and bare buttocks on television may be coming to an end.

The court's 1976 ruling came under fire this year when FOX and other broadcasters challenged a fine for airing the one-time use of "fleeting" expletives. This case stems from two broadcasts: Cher's use of the "f-bomb" during an acceptance speech in the 2002 Billboard Music Awards ceremony and Nicole Richie's enlightening discussion of how difficult it is to remove s*** from a Prada purse at the ceremony's 2003 gala.

Broadcasters claim that the FCC's indecency standard has become unconstitutionally vague, and is therefore void. Some broadcasters have even gone as far as to say that the entire indecency regime, which only regulates over-the-air broadcasting and not cable or satellite programming, violates the First Amendment.

There is just no way to tell how much of an impact this case will have moving forward. The Supreme Court could swing for the fences and invalidate the FCC's entire indecency regime, or it could lay a narrowly written bunt of an opinion. There is just no way to know how this one will turn out -- or for whom.

Oral arguments in the case are set for Jan. 10, 2012 and a decision could be published by mid-spring.

Jeff Hermes is the director of the Digital Media Law Project at Harvard University's Berkman Center for Internet & Society.

Andy Sellars is a staff attorney with the Digital Media Law Project and Online Media Legal Network, and a Fellow at the Berkman Center for Internet & Society at Harvard University.

Rob Arcamona is a legal fellow at the Student Press Law Center in Arlington, VA. He is a graduate of The George Washington University Law School and of the Pennsylvania State University College of Communications.

Disclosure: Arcamona, Hermes and Sellars, as part of their official duties, took official positions in several of the above-mentioned cases.

Occupy photo: A general assembly meeting at Occupy Wall Street on Oct. 8, 2011. Photo by Mat McDermott via Flickr.

Every season, alumni forced to move away from "dear ol' State" descend upon land-grant campuses in a tribal, nearly reflexive migration. But for those not able to attend their alma mater's match, sports journalism folds the map, bringing a reader into the college stadium, huddle, coach's office, and press conference -- in essence, bringing the reader back home.

Covering college sports, however, is turning into a First Amendment obstacle course. Most recently, the issue was raised in Lexington, Ky., and caught national media attention.

The Kernel Gets Banned

At the University of Kentucky, a reporter from The Kentucky Kernel, the school's student newspaper, asked two basketball players for an interview directly. Aaron Smith, the paper's managing editor, called Brian Long and Sam Malone, two recent additions to the Wildcats storied program, and wanted to know whether they were joining the team as "walk-ons," or players not recruited by the team. Walk-ons often become instant fan favorites, an emblem that success can befall all of us, the underdogs, if we can only stick out the hard times.

The university took offense to Smith's conduct and retaliated. DeWayne Peevy, associate athletics director for media relations at the university, rescinded the Kernel's invitation to a media event where reporters would get "eight minutes of time alone" with members of this high-profile squad. Peevy was quoted as saying that the ban was a form of "punishment" intended to teach Smith "a lesson without costing him anything."

Originally, school officials stated that Smith had violated an unwritten school policy that asked reporters to go through Peevy's office for interviews and not contact student athletes directly. Later, the school cited a written policy to the same effect. In interviews, Peevy stated that the control of media requests was necessary in order to protect student athletes from being "bombarded with interview requests constantly."

The Kernel flap caught national news attention for a brief period and then faded away. The Kernel was only banned from one pre-season media event. Moreover, the information journalists obtained at the event was embargoed -- they agreed not to publish what they learned until the embargo was lifted. (This practice is not that uncommon.) The university also held a cathartic community forum on the issue, although Peevy did not attend, saying that other obligations forced him to cancel his commitment to appear.

These details prompted an online commenter by the name of "UK number 1" to write, "Who cares this is a non issue. Must be a slow news day at ESPN." Other fans agreed. On Twitter, user @smyzo sarcastically stated "Uh, media can't go calling UK players directly, its their #1rule. How is a 1 day ban being a bully."

This issue seems to be just a blip on an otherwise positive relationship between the Kernel and school officials. However, it highlights a First Amendment problem that has detrimental affects on our ability to learn about our cherished college athletic programs.

Press Credentialing Policies Must Be Written

At its core, the First Amendment protects our ability to access information in the "marketplace of ideas." This right does not limit itself to discussion about politics or high-minded philosophy, but applies with equal force to sporting events, players, and athletic controversy.

The public interest in athletics is just as strong, if not stronger, in the context of college sports. Universities offer students the opportunity to participate in athletics under the principle of Mens sana in corpore sano, Latin for "a sound mind in a sound body." If college is the place where students' minds are shaped for later life, then it's also where students learn the things that are unique to sportsmanship: camaraderie, disappointment, accomplishment, loss, glory, and love, for instance. The public has a right to know how state universities are fulfilling their mission of rounding students' education with these values.

But despite the public's unique interest in knowing the details of a college sports program, access to information about big-name university teams is tightly controlled. Interviews must be prearranged by school authorities. Access to practices and press conferences are only offered to a select few. These policies are justified because school officials have an interest in ensuring student athletes can receive an education despite our seemingly never-ending desire for information about high-profile players.

However, officials at state universities may not restrict a reporter's access to information about college sports for any reason they see fit. (The same First Amendment concerns are not raised at private colleges.) The actions of media relations officials must not go against the First Amendment. Nor may these individuals rescind access at the drop of a dime.

When state officials -- like a media relations director at a state university -- offer some reporters access to press conferences or other generally open media events, they must do so pursuant to a written credentialing policy. At least one court has gone even further, requiring state officials to articulate "narrow and specific standards" to determine which reporters can get access to press events, and which cannot.

In the Kernel's case, if we take Peevy at his word, Smith was originally banned pursuant to an unwritten policy. Later, university officials cited a written policy. Peevy's statements show he originally believed that he had the king-like authority to punish the school newspaper by taking away access to a media event is a constitutional problem.

When school officials deny a reporter access to generally open media events pursuant to an unwritten credentialing policy, the risk that officials are unconstitutionally discriminating among journalists is untenably high. State actors may not deny a journalist access to events like a press conference because the reporter is particularly critical of the program or officials do not like what the journalist has printed. Such determinations are content-based discriminations, a form of censorship the First Amendment reviles.

A university may not need to invite every journalist to every media event, or do away with exclusive interviews to favorable reporters. But when a state official opens up a generally accessible forum, like a press conference or similar media event, content-based discrimination cannot be tolerated. Yet, when a state university bans a student newspaper citing an unwritten policy of conduct, there is no way to know whether content-based discrimination is taking place.

The First Amendment issues raised by the Kernel saga do not end at whether the University of Kentucky wrote down its credentialing policy. Rather, they only get worse the more you think about them.

The First Amendment Right of Equal Access to Information

State universities do not have to hold press conferences or open practices to reporters. In fact, if a school wanted to hold basketball games in a pitch-black arena, there is no constitutional requirement to stop them.

But once a university initiates media events available to the press generally, different rules apply. Namely, there is a First Amendment right to equal access to information wholly separate from a right to access information in the first instance. By this, I mean that although there may not be a right to force state officials to hold a press conference, once officials choose to do so, journalists have a right to be treated in a constitutional manner. According to several courts, state officials may not prohibit one reporter from obtaining access to an event because he or she is particularly critical of the event being covered. Such discrimination is "content based," and thereby presumptively against the very foundation of our First Amendment.

Peevy, again, seems to have overlooked this aspect of the First Amendment. In July, he tweeted, "I guess we now know one media seat that will be available at Rupp [Arena] this year" after CBSSports.com reporter Gary Parrish questioned the university's recruitment of basketball freshman Anthony Davis.

The message that such practices send is clear. If a reporter is critical of the people and team they are covering, access to players and games will be stripped. As a reporter forced out of generally open media events, you may as well begin polishing your resume. Content-based policies, especially in the context of sports journalism, coerce reporters to become cheerleaders for the team they cover -- or find a new job.

That does not mean that university officials must allow every reporter access to every press conference and media event. Indeed, it would be impossible to offer access to every reporter, blogger, and citizen journalist. Where such access is limited for content-neutral justifications -- those not related to what the reporter has published or intends to publish -- less constitutional problems are raised.

That may be what happened in the Kernel situation. Smith may have been banned from a generally open media event for breaking a school rule, not because of what he published. Although, Kernel attorney Jon Fleischaker would disagree, stating Smith was banned because the university "didn't like what was published."

Often, it is difficult to tell whether a state official is stripping access from a reporter for content-based reasons. This ambiguity requires the First Amendment to be hyper-vigilant and step in every time there is a real possibility that university officials are making content-based discriminations. As the Supreme Court has stated, multiple times, when there is the possibility of First Amendment violations the law errs on the side of more protection -- more speech -- not less.

When reporters are bullied into writing what school officials would like to see beneath a masthead through content-based access policies, we are all worse off. Not only does a state actor usurp the reporter's First Amendment rights, but the public is left with a less critical, analytic, and diverse marketplace of ideas. We, like the ousted reporter, are kept in the dark.

Why First-Hand Access to Information Matters

Every time I make this argument -- that reporters cannot be kept out of generally open media events for content-based reasons -- I run into the same retort. "If a reporter is banned from an event, why don't they just write a story based on what has been written by other reporters?"

To be plain, it is of no constitutional concern that a reporter banned from a media event may obtain information by other means. As court after court have stated, first-hand access to information gives those in attendance the ability to gather information "concerning demeanor, non-verbal responses, and the like" in ways that are wholly unique.

When a reporter is forced to glean information offered at a press conference from other news outlets so fortunate to attend, he or she must accept the editorial judgment of those other outlets. A news story -- any story -- filters, organizes, and omits information deemed unimportant or irrelevant. These editorial decisions attach to any later publication derived from the original and, like dandelion seeds blown astray in the wind, cannot be undone. In essence, discriminatory access to a press conference limits the universe of ideas and information that a reporter may derive from the event and raises a distinct constitutional problem.

This is the real constitutional offense promulgated by university media directors. When officials hold generally open media events and limit access to them for content-based reasons or pursuant to unwritten credentialing policies, they're manipulating the marketplace of ideas in ways that cannot be undone. As a nation that (rightly) cherishes college sports, this manipulation cannot be allowed to stand and should be challenged where it exists.

Rob Arcamona is a legal fellow at the Student Press Law Center (SPLC) and a graduate of The George Washington University Law School. He is the author of a law review article published in the American Bar Association's Communications Lawyer journal, titled "Bloggers, Other Alternative Media, and Access to Press Conferences." The SPLC advocated on behalf of Kernel reporters. The author had no direct role in the SPLC's involvement with the Kernel and University of Kentucky officials.

Section 162.069.4 of the Amy Hestir Student Protection Act -- which aims to protect children from sexual predators -- prohibits teachers from establishing, maintaining or using a "non-work-related Internet site which allows exclusive access with a current or former student."

On its face, the law appears to stop teachers from using popular websites and services such as Facebook, Twitter or Gmail -- any site where there is a function allowing a teacher to privately message a student. But, the injunction showcases that the law may go much further than that -- into shaky First Amendment territory.

'Chilling Effect'

In issuing the injunction order, Cole County Circuit Judge Jon Beetem stated that the breadth of this one provision was simply "staggering." The provision, Beetem wrote, creates a "chilling effect" on teachers' speech.

According to the judge's order, there is a "substantial likelihood" that Section 162 violates educators' First Amendment rights. As a result, Beetem temporarily suspended the law while the government and teachers' associations prepare for their next move.

The law came under fire from a variety of groups, including the Missouri Teachers Association and the American Civil Liberties Union, which filed separate lawsuits. However, educational groups largely supported the Student Protection Act while it was making its way through the General Assembly.

Kent Brown, the attorney who won the injunction on behalf of the Missouri Teachers Association, said social networking sites can have a distinct pedagogical purpose. These web pages have become a popular way for teachers to share notes, prepare presentations, answer questions, review papers, and communicate with students about coursework outside of the classroom. But, lawmakers fear that allowing teachers to communicate privately with students on the Internet may lead to improper relationships, and possibly sexual abuse.

State Sen. Jane Cunningham, a Republican representing the suburbs of St. Louis and sponsor of the law, said many inappropriate sexual relationships that develop between students and teachers originate from private communications.

After the injunction was issued, Missouri Gov. Jay Nixon called for the state General Assembly to repeal Section 162, "while preserving other vital protections included in the bill" in a special legislative session. According to Scott Holste, a spokesman for Nixon, Missouri legislators could then reconsider the provision later this year with input from teachers and school administrators.

Sen. Cunningham does not believe the Assembly needs to wait that long, saying she's confident amended language could be passed in the special session set to begin on Sept. 6. The lawmaker said she has been in contact with a variety of educational groups and other state Assembly members who are "very supportive of what we're trying to do."

The court order is only a temporary suspension of this one subsection of the Amy Hestir Student Protection Act. The order may become permanent, or be rescinded, once the court has had a chance to more fully consider the constitutional questions at stake.

Balancing Free Speech Against Student Protection

Public school officials, like state legislators, have a responsibility to protect students from sexual assault, particularly at the hands of teachers or other state employees. In fact, it is hard to imagine a higher interest than protecting students from sexual predators. Yet, the constitution mandates that any law, regardless of the interest it seeks to protect, meet certain criteria. Among these criteria is the requirement that laws not be "substantially overbroad" or unconstitutionally "vague."

The First Amendment overbreadth principle originates from the 1973 Supreme Court case, Broadrick v. Oklahoma. According to this doctrine, state and federal legislatures may not enact laws that are so broad in scope that they prohibit substantially more speech than necessary to achieve the law's purpose. In banning teachers from "establish[ing], maintain[ing] or us[ing]" a website that "allows access with a current or former student," the Student Protection Act may do just that.

According to Brown, the law prohibits a teacher from using any website that has a function allowing educators to privately contact students. "On its face, the law prohibits use, period," Brown said.

If Brown is correct, teachers would be prohibited from simply having a Facebook or Gmail account, regardless of whether they attempt to contact students, because these websites facilitate private messaging.

Sen. Cunningham disputes this reading, claiming that the law only stops teachers from privately messaging students.

Even if the law is read as the state senator suggests, however, Section 162 still restricts proper pedagogical uses of the Internet as currently written. For instance, the law would prohibit a teacher from sending a Gchat message to a student reminding him or her that a homework assignment is due. As Judge Beetem noted, the law would also prohibit a parent who is also a teacher from communicating on websites with their own children who are students.

In order to completely stop teachers from having any private contact with students on the Internet, the state would need to meet the most stringent form of judicial review. Namely, Missouri attorneys would have to put forth a "compelling" rationale for the wholesale ban and demonstrate how it is the least speech-restrictive means available to protect students.

To Sen. Cunningham, completely blocking private Internet messages between students and teachers, even those relating to schoolwork, is needed. "A lot of sexual relationships start with the most innocent text message: 'How do I do this math problem?' or 'I'm going to be late for practice,'" Cunningham said. To the state senator, this ban is nothing more than a way to avoid parents being "cut out" of student-teacher contact and protect both teachers and students.

The question a court will have to answer, if the law is not amended, is two-fold: First, a judge would have to determine whether the law only prohibits private messaging or whether it stops educators from using social networks at all; second, if the former reading is accepted, a judge will have to determine whether a blanket ban on private messaging is truly the "least restrictive means" to protect students.

But What Does It Mean?

There is yet another constitutional issue raised by restricting teachers' ability to "establish, maintain, or use" a website that "allows exclusive access with a current or former student."

Under First Amendment principles, a law will be held unconstitutional if it is "vague." The Supreme Court has stated that laws are void for vagueness when a "would be law-abiding" citizen cannot tell what conduct or speech is permitted, and what is prohibited. Such vague laws chill speech -- people will err on the side of caution and not engage in speech rather than risk being prosecuted for violating an unclear law.

The primary vagueness issue raised by Section 162 relates to the terms "establish," "maintain" and "use." By Sen. Cunningham's reading, the law is not overbroad because it only applies to private communications between teachers and students, and does not stop a teacher from simply using certain websites. But nowhere in the text of the law does it actually say that.

"This issue came up from teachers who identified the main problem as not being able to tell what is allowed and what is prohibited under the law," Brown said. This, Brown said, is the hallmark of vagueness.

If a court finds that a reasonable person would not know what conduct is prohibited under the Act, the provision will be stricken for its unconstitutional chilling effect on free speech.

Judge Beetem has ordered a scheduling conference for this case on Oct. 14. If the provision has not been repealed by the General Assembly by then, the court will be forced to conclude whether the law is substantially overbroad or unconstitutionally vague.

A New Law With The Same Problems

As it is currently drafted, Section 162 of the Amy Hestir Student Protection Act has some substantial constitutional problems. But lawmakers are currently working to amend the section in early September, raising a new constitutional question.

Sen. Cunningham is actively working to amend the enjoined provision and "clear up any ambiguities that people might see in it," she said. Likely, what will result is new language that clearly prohibits teachers from privately messaging students through electronic communications. This, however, still might not pass constitutional muster.

When a state employee, such as a public school teacher, makes "statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," the Supreme Court has said. Thus, if the General Assembly wished to ban a teacher from privately messaging a student regarding homework or a book report, they would have some constitutional precedent in their sails. Although, this is certainly not an open-and-shut case.

Yet, any amended language is likely to do more -- a lot more. The law we could see come from the General Assembly would completely prohibit non-work related speech. If it does, the state would need to show, with some particularity and rigor, just why a total ban is absolutely necessary to protect students. The legislature could do this though affidavits, hearings, in-depth studies, and statements from Assembly members on the State House floor. And, even then, a court could simply disagree.

The problem the General Assembly will face is that given Judge Beetem's injunction, the constitutional problems Section 162 is currently facing, and the national media spotlight focused on this law, every free-speech advocate in the country will have an eye on what the General Assembly passes, possibly making a lawsuit difficult to avoid.

Rob Arcamona is a legal fellow at the Student Press Law Center. He graduated from The George Washington University Law School.

Regardless of your outlook on the case, it is clear that the decision was a key step in addressing one of the hottest issues currently affecting the media -- protecting copyrights on the Internet. The case pitted two of the modern Internet user's best friends against one another: entertainment producers (Viacom) versus programming distributors (YouTube, which is owned by Google). Hanging in the balance is the future of video on the Internet.

Background

Viacom, the media conglomerate that owns a slew of television networks as well as Paramount Pictures, sued Google, the owners of YouTube, for direct and secondary copyright infringement. In essence, Viacom claimed that YouTube violated copyright laws by helping distribute illegally copied videos that were uploaded to the site by individual users.

The case centered on the Digital Millennium Copyright Act (DMCA). This federal law, enacted in 1998, was meant to update copyright laws for the 21st century. Within the law, legislators created a way for website producers to escape copyright lawsuits, called a "Safe Harbor" provision. In order to invoke the Safe Harbor, the court ruled, YouTube must remove any material violating copyright laws once it has "specific knowledge" of particular copyrighted videos that the site is helping to distribute. Judge Stanton concluded that it was against the DMCA's purpose to hold YouTube legally liable for every video uploaded on the website -- some 20 hours of video every minute -- even if they might have had a general idea that the site was being used to violate copyright laws.

Viacom has stated that it intends to appeal the ruling to the Second Circuit Court of Appeals, one of two federal appellate courts that frequently hear these types of cases. While Judge Stanton seemed relatively comfortable on the footing he created with the opinion, a higher court may simply disagree.

Judge Stanton focused heavily on the statements of legislators prior to the DMCA's enactment, often referred to as "legislative history." While that may have sufficed for Judge Stanton, many other judges (Justice Scalia on the Supreme Court most notably) find such inquiries to be generally unpersuasive.

The Burden for Viacom

The problem for Viacom on appeal, according to Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation (EFF), is that they are essentially asking a court to change commonly used interpretations of the DMCA.

"That's a heavy burden and they weren't able to come up with it at the district court," he said. Viacom's best bet may be to argue that the judicial interpretations of existing laws simply do not protect copyright holders in the way that Congress originally intended.

If, however, Viacom were to win on the appeal, almost everything we know about video on the Internet could change.

"YouTube certainly wouldn't look like it does now," said Sherwin Siy, deputy legal director at Public Knowledge. "Sharing video clips on the Internet would just go out of the window." Both Public Knowledge and the EFF have publically supported Google's position in this case, filing court documents on their behalf.

Siy went on to note that if websites that display user-generated content are held liable for all of the material posted on their site, these forums for social networking will evaporate under the constant fear of being sued by copyright holders.

Who to Protect: Producer or Distributor?

The court's opinion was grounded on the purpose underlying the DMCA, which, Judge Stanton stated, was mindful of the inherent tension between content producers and distributors on the Internet. On one hand, copyright laws need to protect the rights of video creators. Without such rights, media giants like Viacom would not have the economic incentive to create quality video programming.

According to a San Francisco Chronicle editorial published on Monday, strong copyright protections are needed to ensure that those talented enough to create programming can make a living doing it.

"We can't expect people to create things for free -- unless we believe that the only people in our society who can be creative are those who are already rich," the editorial stated.

On the other hand, if copyright laws are too restrictive, Internet buffs would be unable to experiment with different video distribution models. When the Viacom case was just starting, the EFF released a statement noting, "If Viacom convinces a court that YouTube is nevertheless liable for copyright infringement, it could have a chilling effect on any business that hosts content on behalf of users and thus frustrate the many perfectly lawful uses of such technologies."

In accordance with EFF's stance, Judge Stanton's decision essentially holds that while copyright holders need to be protected, Congress (via the DMCA) wanted to protect the Internet's open development even more.

The court's ruling is also consistent with the theory supporting another law directly aimed at lawsuits on the Internet: Section 230 of the Communications Decency Act. Section 230 protects website producers from being sued for the statements Internet users make on a site through the use of comment forums and the like. While Section 230 has been criticized, courts have agreed that in passing the law, Congress' intent was to make website producers immune from liability in order to foster innovation and growth on the Internet.

Additionally, Judge Stanton had a practical basis for his decision. Although it is surely difficult for Viacom to troll the Internet minute-by-minute attempting to find illegally copied or distributed video, it is not impossible. The court put the onus on content producers -- not distributors like YouTube -- to police the Internet and seek out when their copyright material is being illegally uploaded. YouTube's case was surely helped by the fact that when Viacom notified the website that it was hosting specific copyrighted videos, YouTube swiftly removed them from the site.

Opsahl said the case boils down to deciding who must protect copyright on the Internet -- the copyright holder or a website.

"Viacom has to be responsible for policing its own content," Opsahl said. "Viacom was putting forth the notion that they shouldn't have to lift a finger and that YouTube should make sure that Viacom's copyright problems are solved." In contrast, Viacom, a supporter of the User Generated Content Principles, sees protecting copyright on the Internet a shared responsibility between both content producers and Internet distributors.

A Possible Solution to Modern Copyright Problems

The DMCA was passed in 1998 at a time when the Internet we have today may have seemed unfathomable. While the law, according to Judge Stanton, intended to protect the Internet's development, Viacom and others have questioned its use in the modern-day information age.

For instance, the news industry has been complaining that current copyright laws do not adequately protect their rights for years. During a recent roundtable discussion hosted by the Federal Trade Commission concerning "the Reinvention of Journalism," many panelists discussed whether existing copyright laws offer publishers any solace in the 21st century.

The problem with updating laws to suit today's Internet is that it would have to be done again and again as the Internet continues to develop and transform. Just as it may have been impossible to predict the Internet of 2010 in 1998, it may be similarly unlikely that today's Congress could predict the laws needed to govern the Internet of 2022 and beyond. What's more, the chances of passing an entirely new copyright law every few years is simply doubtful given the political sweat, momentum, and, frankly, luck needed to enact legislation.

Currently, the Federal Communications Commission is attempting to find the authority to enforce network neutrality regulations within the Communications Act of 1934, a law that was most substantively updated back in 1996. The law that the FCC is searching through slaps a definition on the term "Internet," but does not refer to it much after that, appearing on just three pages in the 333-page document. And yet, despite a lack of express statutory power to regulate certain aspects of the Internet, the FCC may have a good chance of getting its way. While some are more skeptical than others about the FCC's reach here, the principle of this issue can be imported to Viacom's problem with existing copyright laws.

The 1934 Act gives the FCC broad power over a host of activities in the communications sector. While Congress undoubtedly chose to give the FCC the authority to speak with the force of law on these subjects for many reasons, one must have been the difficulty of passing new laws every time communications technology changed. The FCC, which is divided into specialized "bureaus" and must review some of its regulations as often as every two years, has the experience and mandate to frequently re-consider whether older communications regulations still serve the public's interest.

While some would scoff at the idea that the FCC should be permitted to enact copyright rules for the Internet, delegating this area of law to an existing or newly created administrative agency would, at the least, ensure that the changing Internet is not governed by aging laws.

However, there is a considerable counter-argument here. When the ability to create regulations is delegated from Congress to an agency, the seat of power moves further from the voting public. Voters do not directly elect the heads or officers of administrative agencies. An additional problem with delegating this power to an agency is that it might well be unconstitutional. Article I, Section 8, Clause 8 of the Constitution mandates that Congress protect copyrights, not agencies. However, in practice, Congress often delegates powers to administrative agencies that may violate a strict textual reading of the Constitution.

The Viacom v. Google case, it appears, has exposed a weakness in current copyright laws. What's more, the outcome of the case has the potential to affect every Internet user -- and most don't even know it. If nothing changes, content producers could lose billions and may but the brakes on quality video programming on the Internet. If copyright laws change, we risk having to do this whole thing over again next decade. But if we give the authority to make regulations to an administrative agency, voters lose their direct control over how laws are made.

UPDATE: The original version of this story has been edited to note Public Knowledge and EFF's direct involvement in this legal proceeding and to express Viacom's support for the UGC principles.

Rob Arcamona is a third-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

That was the message driven home by the recently created website PleaseRobMe.com. The site aggregates Twitter posts sent when a person uses Foursquare to check in at a location -- meaning they're basically telling the world that they're not at home at the moment.

According to the folks at PleaseRobMe, if a would-be burglar knows you're out with friends, that "leaves one place you're definitely not...home."

The site is a commentary on the downside of overusing location-based services like Foursquare and Loopt. These services allow users to "check-in" at different locations around the globe using smartphones or laptops. Once checked-in, a user can choose to publicly share where they happen to be by using services like Twitter.

"The site allows people to meet and is a way to find out what is going on in your area,"
said Dennis Crowley, CEO and co-founder of Foursquare. Recently, Crowley checked-in at an airport and was surprised to discover a friend he hadn't seen in months was just two terminals away. "That's the benefit," Crowley said.

While one of PleaseRobMe's founders insists the site is not really an attempt to aid cat burglars, it could be just one step away from walking outside the First Amendment's protection of free speech.

Is PleaseRobMe Aiding Burglars?

While the First Amendment's guarantee that "Congress shall make no law...abridging the freedom of speech" seems absolute, not every form of speech is guarded by the Constitution. Rather, the Supreme Court has held that some forms of speech are not entitled to full protection.

According to several lower courts, speech that aids and abets illegal acts are not shielded by the First Amendment. So, if a website were to aid in the commission of a crime and was sued for its part in the offense, the First Amendment would not offer the publisher any protection.

In an influential Fourth Circuit Court of Appeals case, Rice v. Paladin Enterprises, Paladin published a book titled, "Hit Man: A Technical Manual for Independent Contractors." The book provided "detailed instructions about how to...execute and cover up a murder." In 1993, a man named James Perry followed the author's instructions, killing three people. Subsequently, relatives of the deceased successfully sued Paladin for aiding Perry in the murders.

The Fourth Circuit stated that in order to charge a publisher with aiding and abetting a crime, the publisher must intend for people to use the article to commit an illegal act. In coming to its decision, the court noted that Paladin's book was "so comprehensive and detailed that it is as if the [author] were literally present with the would-be murderer" during the crime.

The founders of PleaseRobMe have consistently stated that they do not want people to use the site to rob a house. Instead, the site is a commentary on the amount of personal information people are making publicly available. In fact, a burglar would have a difficult time using PleaseRobMe to commit a crime, since the site does not provide anyone's home address unless it too has been posted to Twitter.

Section 230 Defense

Be that as it may, PleaseRobMe begs a particularly important question. What if someone designed a site that was intended, and could be used, to aid burglars using publicly available information? Could they be sued after someone's house was robbed?

While such a site may lack constitutional protection since its intended use would be to aid the commission of a crime, it could be protected by Congress. Section 230 of the Communications Decency Act gives immunity to any "interactive computer service," such as a website, against civil lawsuits (but not criminal sanctions) that arise from third party publications.

Section 230 was passed in 1996, just as the Internet was just beginning to make headway with the American public. As many courts have stated, the history behind Section 230 made it clear that Congress did not want websites to be liable for the statements of others. The legislature felt that imposing such a burden would hamper the Internet's development.

Normally, Section 230 is invoked when a website is sued for publishing a defamatory statement that was written by a guest poster or independent commenter. In these cases, "Section 230 is often considered to be a very strong protection against defamation suits," said Robert Richards, co-founder of the Pennsylvania Center for the First Amendment.

The question currently facing courts is how far to "define the bounds of Section 230 immunity," Richards said.

Although Section 230 is often applied to defamation lawsuits, it has also been employed in invasion of privacy, negligence and misappropriation claims. As a result of this expansion, it is not unthinkable that a court would extend Section 230 to protect a website against civil claims of aiding and abetting a burglary.

Of course, there is a question of whether such a website could be understood as merely facilitating third party publications. Nonetheless, in the wake of the PleaseRobMe controversy, the legal question posed here seems relevant, and is far from answered.

Do Location-Based Services Invade Privacy?

As location-based networks become more popular, the risk of sharing sensitive information increases as well. Though many lament the fact that so much personal information is available online, Foursquare's Crowley said his service isn't invasive.

"We've been working on the project since 2001 and have checked in almost every day for the last 10 years, and the only bad thing that's happened is an ex-girlfriend will sometimes show up where I am," Crowley said.

He emphatically noted that "Foursquare is not tracking you. You have to check in and voluntarily choose to make your location publicly available."

"At the end of the day, you have to be aware of what you're doing online and the consequences of your acts," said Kurt Opsahl, senior attorney at the Electronic Frontier Foundation. "It's a matter of expectations. People want to tell their friends where they are,but, as PleaseRobMe points out, other actors may see personal information as well."

Although Foursquare users must volunteer to divulge their whereabouts with the general public, the site's editors may share some information with local businesses when offering various promotions, according to Foursquare's privacy policy.

This has caught the attention of Congress, which is set to hold a hearing titled, "The Collection and Use of Location Information for Commercial Purposes." The hearing will discuss the privacy concerns that have arisen due to location-based services.

"The key issue with these types of sites is disclosure. If people are agreeing that information can be shared in this manner, then that's a service that a company can provide," said Opsahl.

While the notion of sharing personal information with businesses may make some people uneasy, there are potential benefits. For instance, Foursquare's "mayor" promotion offers free products to the user who checks in at a location the most often.

"In Texas, there is a restaurant that will give away a free steak dinner to the person who checks in the most," Crowley said.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

Soon, a commenter posted a reply that included a "vulgar, two-syllable word for a part of a woman's anatomy," according to an online account by Kurt Greenbaum, the paper's director of social media. Editors at the website promptly deleted the comment, only to see the commenter repost the same word just a few minutes later.

What happened next has been the subject of discussion and debate within the world of online journalism.

For his part, Greenbaum summed it up in the title of his blog entry about the incident, "Post a vulgar comment at work, lose your job."

Sick of the commenter's shenanigans, he located the person's IP address, and tracked them to a local school. Greenbaum then called school officials and told them about the comment. The school's IT coordinator was able to pinpoint the post to a specific employee who was confronted by school officials and "resigned on the spot."

Greenbaum, who declined to be interviewed for this story, soon published another blog post explaining his actions. He admitted that he may have overreacted by calling the school, but stated, "I am constantly frustrated by the difficulty of dealing with this kind of language" on the paper's website.

Greenbaum's blog entry was republished on the Post-Dispatch's website and has received over 450 comments. In an angry response, an anonymous person created a website mocking Greenbaum, repeatedly calling him the same "vulgar, two-syllable word for a part of a woman's anatomy" that started everything.

Aside from the ethical debate about this incident, there are two important legal questions to consider.

Can He Do That?

The first question: Is what Greenbaum did legal? Answer: yes, probably.

The paper's privacy policy states that the Post-Dispatch and its employees "will not share individual user information with third parties unless the user has specifically approved the release of that information."

However, the policy also states that a commenter's IP address "does not contain personally identifiable information, nor does it identify you personally." Thus, the Post-Dispatch would argue, Greenbaum's use of the anonymous commenter's IP address is not a violation of the website's privacy policy.

Tom Curley, an attorney with the media law firm Levine Sullivan Koch & Schulz, said that the legal rules surrounding comments and message boards "can vary widely from site to site." Curley said some websites may provide an absolute promise to not reveal any identifying information, while others may offer only conditional promises.

Additionally, websites are a form of private property, and can be managed as such.

"There are some websites that are open forums, which is perfectly fine," Curley said. "But there is nothing that stops a website, legally, from deciding that there are some things that shouldn't be published."

Ethical Implications

In his blog post, Greenbaum stated that the Post does not routinely "take the steps I took in this case. For particularly bad cases of abusing our guidelines with vulgarity and obscenity, we would not rule it out."

Malcolm Moran, a professor of media ethics at Pennsylvania State University, questioned Greenbaum's approach. "The main ethical question I would raise in this case is: When does an editor decide the rules change?"

The Post-Dispatch's terms of service state that the website "encourage[s] a free and open exchange of ideas in a climate of mutual respect." However, Greenbaum's actions could chill that climate of open exchange and mutual respect.

"What happens if a person comments about a controversial issue and has legitimate reason for staying anonymous?" Moran said. "Next time, will an editor identify that person if he or she disagrees with the commenter's views?"

Attacking the Editor with Anonymous Speech

The second legal question is whether Greenbaum can sue the anonymous individual who created a website ridiculing him. The likely answer: no.

The anonymous website created in Greenbaum's name is vulgar, to say the least. But that does not make it defamatory. In order to sustain a lawsuit for defamation, a plaintiff must show that the words in question state or imply false facts. Simply calling an individual a degrading name does not imply a fact at all. Rather, it is a non-actionable figure of speech.

Thomas Dienes, a professor at George Washington University Law School, said the mocking website may be in bad taste, but is not defamatory. "This case would be thrown out of court so fast that I can't imagine a lawyer would take it," Dienes said.

"Over the years, there have been a number of these types of websites devoted to a particular reporter. It's rare but not unheard of," Curley said. "Normally, the reporter just shrugs and it all blows over."

This incident is a case study in the struggle that news organizations face when it comes to allowing anonymous speech on their websites. On one hand, this speech can be vile, cowardly, vengeful and tasteless. On the other, anonymous speech can be valuable and is also constitutionally protected.

"The tradition of anonymous speech in this country is incredibly important," Curley said. In fact, media organizations themselves have noted the importance of confidential sources and anonymous speech.

Anonymous Speech Being Tested

Two Supreme Court cases, often referred to as Talley and McIntyre, have affirmed the idea that "an author's decision to remain anonymous...is an aspect of the freedom of speech protected by the First Amendment."

Although this constitutional right only exists in the context of government regulation, the importance of anonymous speech, even if it is in the form of an anonymous comment on a news outlet's website, still holds its importance.

That does not mean, however, that all anonymous speech on the Internet is free from liability.

Recently, plaintiffs in New Jersey, South Carolina, and California asked judges to subpoena the identifying information of anonymous bloggers and commenters in order to sue them. The frequency of these types of subpoenas has reached a dizzying pace.

Generally speaking, courts have taken two different approaches in determining when to reveal the identity of an anonymous blogger or commenter. First, some courts require that a plaintiff make a "good faith" showing that the he or she has a viable lawsuit before a judge will subpoena any identifying information. These courts offer anonymous speech a particularly low level of protection, believing that everyone should have their day in court.

A second group of courts require that higher standards be met before an anonymous poster is revealed. These courts employ either the Dendrite test or the Cahill tests, as they are commonly known. The Dendrite and Cahill procedures require plaintiffs to show a litany of factors before receiving any identifying information.

The law concerning what you can and cannot anonymously publish on the Internet is undergoing change on almost a daily basis. This back-and-forth has left the legal state of anonymous speech on the Internet as uncertain at best.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

It probably seemed like a fun idea at the time.

Last year, Eric Dane, known as "McSteamy" from the show "Grey's Anatomy," his wife Rebecca Gayheart, and former beauty queen Kari Ann Peniche decided to make a home movie. Yes, that type of home movie. The threesome recorded themselves nakedly fumbling around in bed, slurring words, and splashing in a hot tub.

Given Dane's popularity on the show, it was almost a forgone conclusion that the tape would somehow make its way onto the Internet, and Gawker was happy to make it happen. It published the video in August, and has since racked up over 3.25 million page views.

Before posting the video, Gawker whittled it down from 12 minutes to just under four and added some special effects to cover McSteamy's, well, steamy. (Its sister site, Fleshbot, used an uncensored version.) The tape, as edited by Gawker, does not actually show the threesome having sex -- it's not a porno. In fact, if the video didn't show Gayheart and Peniche without their shirts, and bleeped out the swear words, it might be suitable for daytime TV.

Hollywood sex tapes making their way to the Internet are nothing new. It has happened to Paris Hilton, Tonya Harding, and, of course, Pamela Anderson and Tommy Lee.

While lawsuits almost always follow leaked sex tapes, few cases ever go to trial. (Paris Hilton's suit, for example, ended in a settlement that reportedly made the heiress $400,000.) Dane and Gayheart's suit, which was filed three weeks ago in a California federal court, is surprisingly not about invasion of privacy or defamation of character, as is common when a sex tape goes public. Instead, the couple claim that Gawker's publication of the video violates their copyright. This makes it a unique situation.

I recently described for a friend what the video did and didn't show, and explained that as long as Gawker didn't help steal the tape, it does not matter how they got it. After my 15-minute soliloquy, she asked, "So, who will win?"

"I give Gawker a three-point spread," I said.

Here's how the case of McSteamy V. Gawker breaks down, along with a look at the larger legal issues at play.

Does a Sex Tape Fall Under Fair Use?

In 1976, Congress enacted the Copyright Act, which states that a copyright holder has the exclusive right to distribute or reproduce copyrighted material. However, the law includes one big exception, which is called "fair use." Section 107 of the Copyright Act states that a person or business can publish portions of copyrighted material so long as it is for the purposes of criticism, comment, or news reporting.

Gaby Darbyshire, a barrister and the vice president for Gawker Media, told me that the company published the video because it was "newsworthy." But simply labeling something as news doesn't automatically constitute "fair use." In order to determine whether Gawker deserves the law's exception, a court will look at four factors listed in Section 107.

First, a court will look at whether Gawker used the video for commercial purposes. Obviously, Gawker is a for-profit business, but that alone doesn't prevent it from publishing the video.

Instead, a court will consider the purpose and character of Gawker's use of the video. The question here is whether the website posted Dane and Gayheart's video for news or commercial purposes. If Gawker edited the tape to suit a newsworthy purpose, the website would have given the video a meaning different than that of the original, thus making "fair use" appropriate.

Here's the argument that Gawker will likely make: Dane, Gayheart, and Peniche made the tape because they wanted to record sexual acts. According to Darbyshire, however, Gawker posted the tape because they found some news value in the recording. Darbyshire said that seeing "Dane, his wife, and a former beauty queen who went on a reality show to be treated for sex addiction, and reportedly is a Hollywood madam," together is newsworthy. Thus, Gawker will claim that its use of the video added a news element to a home movie.

David Ludwig, an intellectual property attorney for the law firm Dunlap, Grubb & Weaver, agrees with Darbyshire. "Newsworthiness does not limit itself to hard news, it can involve celebrities as well," he said.

As a result you can probably score a point for Gawker on this issue.

Second, a court will examine whether Dane's tape was published or unpublished at the time of Gawker's use. In terms of "fair use," the law states that "the fact that a work is unpublished shall not itself bar a finding of fair use." However, "scooping" a copyright holder on their work does make the "fair use" exception less likely. In a 1985 decision, the Supreme Court stated that a copyright holder has the "right to control the first public appearance" of copyrighted material. Gawker's post was the first time the public had ever seen the video, meaning that Gawker does not have much of an argument here. Call it McSteamy 1, Gawker 1.

Third, a court will look at the "amount and substantiality" of Gawker's posting in relation to the video as a whole. Gawker posted just under four minutes of the 12-minute tape. As far as the law is concerned, the posting's length may critically compromise Gawker's claim to "fair use."

In 1987, the Second Circuit Court of Appeals held, for a variety of reasons, that appropriating one-third of 17 letters written by author J.D. Salinger did not constitute "fair use" because it was more than "necessary to disseminate the facts." Ludwig suggested that Gawker could have legally posted a screen-shot or a snippet of the video to prove that their story was true. Instead, they excerpted a third of the video. Dane 2, Gawker 1.

Fourth, a court will ask whether Gawker's publication of the video supplanted the need for an individual to purchase a legitimate copy of the couple's tape. This depends on what material Gawker left on the cutting room floor.

If the whole video consists only of the threesome hanging around a house naked, then perhaps, after viewing the Gawker excerpt, no one would be interested in purchasing the full version. Thus, "fair use" would be off the table. "No one is going to buy a work if it's freely available on the Internet," Ludwig said.

However, if Gawker edited out some really juicy material -- sex scenes, for example -- then people could still be interested in a bona fide copy of the recording. Though Darbyshire declined to offer any specifics, you can probably assume the McSteamy threesome gets more interesting than what is currently available on Gawker. Dane 2, Gawker 2.

Fair Use Versus Infringement

To recap, Dane and Gayheart appear to have a valid claim against Gawker for copyright infringement. However, Gawker has a formidable defense by way of the "fair use" exception. It's important to note that the four factors outlined above are not examined in isolation of one another. Instead, courts try to balance them against each other.

In the end, if this case goes to trial, the outcome will likely depend on what Gawker chose to cut from the video. It's a strange reality that, in the case of sex tapes, what a news organization doesn't publish is sometimes more important that what it does.

Update Dec. 15: California district court judge George H. Wu has ruled that Dane and Gayheart may not recover attorney's fees or statutory damages as part of their lawsuit. Section 504 of the Copyright Act states that, in some cases, a copyright violation could come with a penalty as high as $150,000. However, Wu held that since the couple registered for a copyright on the tape after Gawker had posted it online, these statutory damages are not recoverable. Gawker first posted the tape on August 17; Dane registered for a copyright two days later.

This recent development in the case is not the end of Dane's suit. While statutory damages may no longer be available, the couple could still be awarded actual damages if the court rules that Gawker's use of the tape did not constitute fair use.

Rob Arcamona is a second-year law student at The George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

It is yet to be determined whether the final version of the shield law will reject Sen. Schumer's amendment and protect citizen journalists alongside their paycheck-depositing brethren. Nonetheless, Congress and the rest of us should be crystal clear on one point: if citizen journalists are not covered by a federal shield law when it is first enacted, they will never be protected by such a law. It is an all-or-nothing game, and right now citizen journalists are losing.

There are, of course, already distinctions between traditional media outlets and citizen journalists. The traditional media have better access to newsmakers and potential sources. The traditional media have more time and money to spend on producing stories. All of these factors distinguish the Chicago Tribune from, say, my blog. However, if the Senate's version of the federal shield law is enacted, it will create a legal distinction between traditional reporters and citizen journalists. It is this legal distinction between members of the press that makes Sen. Schumer's amendment so worrisome.

Lobbying Effort Driven By Large Outlets

The current lobbying effort in support of the shield law has come from advocacy organizations such as The Reporters Committee for Freedom of the Press (RCFP), along with media outlets themselves. While the RCFP may have spent uncountable hours lobbying, media companies are the real engines behind the push for a federal shield law. Media companies donate to advocacy organizations, and have the name recognition needed to convince Congress of the shield law's merits.

Before Sen. Schumer's amendment, citizen journalists had been piggybacking off of the current lobbying effort. While newspaper editors were busy throwing their weight around the halls of Congress, Joe the Blogger watched from his sofa. When Lucy Dalglish, executive director of RCFP, spent her weekends convincing Congress of the shield law's benefits, many were filled with hope. But what happens if media outlets are forced to jettison citizen journalists in order to obtain their holy grail, a federal shield law? Will media companies scrap the whole effort to protect free-riders? I think not.

There is the argument that if unpaid reporters are not protected under this version of the federal shield law, Congress could enact a subsequent law that would extend the privilege. Such an argument is wishful thinking, to say the least.

Once traditional media outlets obtain a federal shield law, something they have been screaming for since the 1970s, the lobbying money will dry up. The heavy-hitters, such as the New York Times, Washington Post, ABC, CBS, NBC etc., will direct their attention, one imagines, back to producing quality journalism. Without the backing of these media Goliaths, citizen journalists do not stand a chance of convincing a hostile Congress and a reserved President that they deserve the law's protection as well.

Moreover, it is against the traditional media's corporate interest to lobby on behalf of unpaid journalists. Reporters have long claimed that a federal shield law is necessary in order to produce proper journalism. They state that in order to report on issues of public concern, journalists need the ability to keep confidential sources.

By this logic, a shield law that only protects traditional journalists means that professionals alone will be able to coax confidential sources into disclosing information. Traditional journalists, then, will be able to publish hard-hitting stories that drive sales and traffic through the roof, while unprotected citizen journalists are left to pick up the rest.

Bright Spot?

As not to be totally doom-and-gloom, there could be a bright spot developing. The avalanche of opposition to Sen. Schumer's amendment raises the possibility that if the shield law turns a cold shoulder to citizen journalists, someone could harness that discontent and turn it into a lobbying campaign.

However, two problems still persist. First, despite the tireless efforts of the RCFP and the like, no such harness has been fashioned. Second, I am afraid to say that we have seen the high-water mark for the general public's interest in the federal shield law.

I am not proposing that the federal shield law should be scuttled unless citizen journalists are protected. All I want is for members of Congress and President Obama to understand that if citizen journalists are not protected by a shield law when it is enacted, then they will have foreclosed the protection for this vital portion of the fourth estate for the foreseeable future.

UPDATE November 2, 2009: Since this article was first published, the Senate, White House, and media company representatives reached a tentative deal that would include unpaid journalists under the shield law's protections. While the compromise is certainly a positive development, we're not out of the woods yet. Even if the Senate Committee on the Judiciary accepts the compromise, the bill must still get through the full Senate. Throughout this process, lawmakers should keep in mind the consequences that would result from leaving unpaid, citizen journalists out in the cold.

Rob Arcamona is a second-year law student at The George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.