Practice Areas & Industries: Jenner & Block LLP

Practice/Industry Group Overview

Our attorneys provide a full range of services to clients in both traditional media (such as broadcast and print) and new media businesses requiring assistance on First Amendment matters. Our extensive practice includes both litigation and counseling on a wide variety of media law and First Amendment issues, including defamation, privacy, newsgathering, Freedom of Information Act, challenges to governmental and private regulations of speech, commercial speech, advertising, copyright, and Internet and e-commerce.

We regularly advise the Firm's business clients on commercial disputes raising these types of issues. We also work closely with the Firm's Appellate & Supreme Court Practice to gain the benefit of their vast experience in appellate litigation in the United States Supreme Court, as well as federal and state reviewing courts around the country. Indeed, we have been directly involved in some of the most prominent First Amendment appellate matters in recent years, including United States v. American Library Association (library internet filtering requirements), ACLU v. Reno ("indecency" on the Internet), Food Lion v. Capital Cities ABC (newsgathering torts) and Greater New Orleans Broadcasting Association v. United States (commercial speech).

Services Available

Our work on behalf of media clients includes:

• Defense of libel and invasion of privacy cases.

• Representation in litigated matters involving First Amendment and newsgathering issues, including access to judicial proceedings and records, resistance to subpoenas served upon members of the media, intrusions into the newsgathering process, prior restraints and Freedom of Information Act.

• Representation of broadcasters in cases involving access to cable, spectrum allocation and other issues.

• Representation on matters relating to their business activities, including copyright, advertising, promotion and media insurance.

• Counseling on non-litigation media matters, including pre-publication advice on defamation and privacy issues, newsgathering and regulatory issues, and newsroom presentations on preventive libel and privacy law.

Our work on behalf of non-media clients includes:

• Litigating challenges to statutes and regulations restricting commercial speech.

• Litigating challenges to statutes restricting content that may be sent over the Internet.

• Defending the video game industry from tort claims based on behavior of consumers and challenging statutes restricting access to games.

• Litigating cases involving censorship of books and computers in libraries.

• Litigating cases about confidentiality of bookstore records.

Media and First Amendment Practice Transactions & Cases

Representative Engagements

Internet, New Technologies and the First Amendment
• United States v. American Library Association: We represent the American Library Association and a coalition of related plaintiffs in this lawsuit filed in 2001 challenging the constitutionality of the Children's Internet Protection Act, which mandates that "blocking software" be operative on all computers allowing access to the Internet in any library that accepts specified federal funds to help pay for Internet access. We prevailed before a three-judge court in Philadelphia, and the case currently is pending on direct appeal to the U.S. Supreme Court. Paul Smith, the Co-Chair of the Firm's Media and First Amendment Practice, and Theresa Chmara work on this matter.

• Reno v. ACLU: We represented the American Library Association and a long list of additional plaintiffs in consolidated cases challenging the Communications Decency Act, which imposed restrictions on distribution of so-called "indecent" content over the Internet. A three-judge district court enjoined enforcement of the statute under the First Amendment, see 929 F. Supp. 824 (E.D. Pa. 1996), and the U.S. Supreme Court affirmed, see 521 U.S. 844 (1997). Paul Smith, Donald Verrilli, and Deanne Maynard worked on this matter.

• Turner Broadcasting System Inc. v. FCC: We represented the National Association of Broadcasters in this long-running case over the constitutionality of the federal law requiring cable companies to carry local broadcast stations. Ultimately, the U.S. Supreme Court accepted the NAB's argument that the First Amendment was not violated by this requirement. The final Supreme Court ruling is reported at 520 U.S. 180 (1997). Donald Verrilli and Tom Perrelli worked on this matter.

• Satellite Broadcasting & Communications Association of America, et al. v. FCC: We represented the National Association of Broadcasters, the Association of Local Television Stations and Univision, which intervened to defend provisions of the 1999 Satellite Home Viewer Improvement Act against challenges under the First Amendment, the Copyright Clause, the Takings Clause and the Due Process Clause. The case was dismissed in the district court, our position prevailed in the Fourth Circuit, and the U.S. Supreme Court denied certiorari. Donald Verrilli and Susan Podolsky worked on this matter.

• Satellite Broadcasting & Communications Association of America v. FCC; National Association of Broadcasters v. FCC; EchoStar Satellite Corp. v. FCC: We represented the National Association of Broadcasters in this consolidated review of an FCC order implementing the 1999 Satellite Home Viewer Improvement Act. As petitioner, we challenged certain portions of the order as arbitrary and an impermissible interpretation of the statute. As an intervenor in the proceedings initiated by EchoStar and its trade association, we defended the constitutionality of the Act against challenges under the First Amendment, the Copyright Clause, the Takings Clause and the Due Process Clause. Our position prevailed in the Fourth Circuit, and the U.S. Supreme Court denied certiorari. Donald Verrilli worked on this matter.

• CBS Broadcasting Inc. et al. v. EchoStar Communications Corp.: We were First Amendment counsel for the plaintiffs, which included the major broadcast television networks and their affiliated stations, in this national copyright suit against a major satellite carrier. EchoStar challenged the then-applicable key statute governing statutory copyright licenses available to satellite carriers as a violation of the First Amendment. The district court issued a preliminary injunction in our clients' favor against EchoStar, adopting our position on the First Amendment and copyright questions, and the Eleventh Circuit affirmed.

• AT&T Corp., et al. v. City of Portland: We represented the Oregon Internet Service Providers Association as intervenors, defending rules requiring cable operators to permit access to the Internet provider of their subscriber's choice, just as telephone companies must, against challenges under the First Amendment, Contract Clause and Commerce Clause. The Ninth Circuit decision is reported at 216 F.3d 871 (9th Cir. 2000).

  Regulation of Entertainment Content

• James v. Meow Media: We represented most of the leading companies in the video game industry, including Nintendo, Sega and Sony, in this lawsuit involving claims that a troubled teenager's exposure to video games led to a high school shooting in Paducah, Kentucky. The district court dismissed the case on state law grounds without reaching the First Amendment defenses we raised. 90 F. Supp. 2d 798 (W.D. Ky. 2000). The Sixth Circuit affirmed on state law grounds, but recognized that holding the defendants liable for the reaction of listeners and viewers to the content of their speech would present substantial First Amendment problems. The U.S. Supreme Court denied certiorari. The Sixth Circuit's decision is reported at 300 F.3d 683 (6th Cir. 2002). Paul Smith and Deanne Maynard litigated this case.

• Sanders v. Meow Media: In a case stemming from the Columbine shootings and raising allegations similar to those in James, we again represented a number of video game defendants. The federal district court dismissed the suit on both state law and First Amendment grounds. The decision is reported at 188 F. Supp. 2d 1284 (D. Colo. 2002). The plaintiffs voluntarily dismissed with prejudice their appeal to the Tenth Circuit. Paul Smith and Deanne Maynard handled this matter.

• Interactive Digital Software Association v. St. Louis County: We represent an association of video game companies challenging the constitutionality of a county ordinance that blocks access to video games by minors based on their violent content. The case is currently pending on appeal in the Eighth Circuit. Paul Smith and Deanne Maynard work on this matter.

  Media Libel

• Wilkow v. Forbes: We represented Forbes in this libel and false light invasion of privacy action, which arose out of a Forbes news article concerning an important bankruptcy case involving the plaintiff. The case raised numerous important media law issues, including choice of law, the fair report privilege, the libel per se/per quod doctrines, and the scope of the First Amendment protection for opinion. Jenner & Block succeeded in having the case dismissed by the district court and obtaining an affirmance from the United States Court of Appeals for the Seventh Circuit based on an expansive interpretation of Illinois law. David P. Sanders, the Co-Chair of the Firm's Media and First Amendment Practice and Michael Brody handled this matter. The District Court's opinion is reported at 2000 WL 631344 (N.D. Ill.), and the Court of Appeals decision is reported at 241 F.3d 552 (7th Cir. 2001).

• Russell v. ABC: We represented ABC in this action, which arose out of a hidden camera investigation into the sales techniques used by supermarkets. The case raised numerous libel, false light and newsgathering law issues. We succeeded in having the newsgathering tort claims dismissed on the pleadings, and thereafter, obtaining summary judgment on the broadcast claims based on First Amendment constitutional malice and opinion principles. David Sanders and Edward Malone handled this matter. The decisions in this case are reported at 1997 WL 598115 (N.D. Ill.), and 1995 WL 330920 (N.D. Ill.).

• Chicago City Day School v. Wade: We represented a local radio station and a radio personality in this libel suit, which arose out of comments on a talk radio program relating to a private school. We succeeded in having the lawsuit dismissed in the trial court, and having the dismissal affirmed by the Illinois Appellate Court. Jenner & Block persuaded the courts to utilize a rigorous application of the Illinois innocent construction rule and an expansive view of the First Amendment protection for opinions. David Sanders handled this matter. The decision is reported at 697 N.E.2d 389 (1st Dist. 1998).

• Marine v. Capital Cities Inc.: We represented a television station in this libel and false light action based upon a news report concerning the firing of a public employee. The Firm obtained a dismissal of the plaintiff's libel claim and false light claims on several alternative substantive grounds. The Firm successfully handled the appeal of the dismissal. David Sanders handled this matter.

• DeBoer v. WLS-TV: We represented a television station in this libel action challenging a news report brought by two Chicago police officers. The Firm successfully persuaded the trial court to apply a strict standard for libel per se claims and dismiss the lawsuit on the grounds that the broadcast did not sufficiently refer to the plaintiff to sustain a per se claim. Thereafter, the Firm obtained an affirmance of the dismissal in the Appellate Court. David P. Sanders and David Jiménez-Ekman handled this case.

  New Problems for Traditional Media Clients

• Food Lion v. Capital Cities/ABC Inc.: We represented ABC on appeal in this highly publicized case involving tort liability for use of undercover reporters to investigate conditions and practices in a grocery store chain. The U.S. Court of Appeals for the Fourth Circuit ruled that the plaintiff's fraud claim was legally insupportable, thereby reducing the damages awarded by a jury to the nominal sum of $3. Paul Smith, Deanne Maynard and Mark Schneider worked on the matter. The Fourth Circuit decision is reported at 194 F.3d 505 (4th Cir. 1999).

• Newsweek Inc. v. Department of Revenue of the State of Florida, et al.: We represented Newsweek before the United States Supreme Court, challenging an imposition of state tax on due process grounds and winning a rare summary decision at certiorari stage. We continued to handle the matter on remand to ensure that the state courts rejected alternate grounds for allowing the state tax department to keep the funds. The tax department refunded Newsweek's unlawfully collected tax payments in full. The Supreme Court's ruling is reported at 522 U.S. 442 (1998).

• Los Angeles Police Department v. United Reporting Publishing Corp.: We represented United Reporting in a case raising a question potentially outside current First Amendment doctrine: when, if ever, a rule governing access to government information acts as a speech regulation rather than an access restriction and should therefore be reviewed under the appropriate constitutional standard applicable to equivalent speech regulations. The Supreme Court decision is reported at 528 U.S. 32 (1999).

• Gloria Bartnicki and Anthony F. Kane, Jr. v. Frederick W. Vopper, et al.: We represented The Liberty Project as amicus in this carefully watched case involving the constitutionality of punishing the press for publishing material that it received innocently but that derived from someone else's illegal taping of a cellular phone call. Julie Carpenter worked on this brief.

  Commercial Speech

• Greater New Orleans Broadcasting Association Inc., et al. v. United States: We represented the Greater New Orleans Broadcasting Association in a successful challenge to federal statutory and administrative restrictions on advertising that had been imposed in one form or another, and unchallenged, for more than sixty years. The case is reported at 527 U.S. 173 (1999). Ian Gershengorn worked on this matter.

• Rubin v. Coors Brewing Company: We successfully represented Coors in the U.S. Supreme Court in a challenge to a federal ban on providing the amount of alcohol content on beer labels. Don Verrilli and Paul Smith worked on this case.

  Prior Restraints

• Neurotron, Inc. v. American Association of Eletrodiagnostic Medicine: We defended the American Association of Electrodiagnostic Medicine against a claim for a prior restraint of publication of its journal Muscle and Nerve based on the Lanham Act and commercial disparagement claims. We defeated plaintiff's two requests for temporary restraining orders and its request for a preliminary injunction, and prevailed on summary judgment. The Fourth Circuit affirmed. Deanne Maynard was lead counsel on the case.

  Other First Amendment Cases

• Boy Scouts of America et al. v. James Dale: We represented the American Psychological Association as amicus in the U.S. Supreme Court in this highly charged right of association case that involved whether the Boy Scouts has a constitutional right to deny admission to gay scouts which overrides a state's nondiscrimination law. Paul Smith worked on this matter. The Supreme Court's ruling is reported at 530 U.S. 640 (2000).

• American Society of Association Executives v. United States: We represented the ASAE in a First Amendment challenge to special provisions imposing an income tax on money associations spend to lobby.

Clients:
ABC Inc., Crain Communications Inc., Chicago magazine, Golfweek, Forbes magazine, Univision Television, National Association of Broadcasters, The Interactive Digital Software Association, the American Library Association on First Amendment matters