BusinessTN

Alan D. Johnson, a member of Willis & Knight in Nashville, also serves as general counsel to the Tennessee Coalition for Open Government, a not-for-profit organization devoted to enhancing public access to state government. Among his clients are The Tennessean and its parent organization, the Gannett Co.

Among Johnson's more memorable cases were serving as lead counsel in State of Tennessee v. James, in which the state Supreme Court held, for the first time, that there is a constitutional right of access to juvenile court transfer hearings, and Henderson v. City of Chattanooga, in which the Court of Appeals upheld the trial court decision that photographs of uniformed police officers are public records.

BTN: What new legal precedents are media clients dealing with in this age of digital media, blogging, anonymous posting, status updates and re-tweeting?

Johnson: The digital media age has raised several new problems for online publications. One issue involves anonymous posters who add comments to online stories. For example, if an anonymous poster submits comments that are defamatory, who is responsible? The online publication is protected by federal statute from liability in those situations; however, the anonymous poster is not.

Because the poster is anonymous, however, that raises issues for both the online publication and the person who claims he or she has been defamed. The online publication is not allowed to release identifying information about the anonymous poster without a court order. The party that claims defamation is required to get a court order, and to do so, he or she must convince the court that efforts were made to find out the anonymous poster’s identity and that the comments complained about give rise to a cause of action. When the online publication learns that steps are being taken to un-mask the anonymous poster, the publication has to notify the anonymous poster so her or she can resist the efforts.

The reason for these rules is rooted in the First Amendment. The Supreme Court has held that the anonymity of the speaker is protected by the First Amendment. The rationale is that requiring people to disclose their identities when, for example, they criticize the government, will have a chilling effect and limit public discourse. Defamatory speech, however, is not protected by the First Amendment. Therefore, if someone can demonstrate that the anonymous post is likely defamatory, that they have stated a cause of action in their complaint, the right to remain anonymous is less compelling.

When these issues arise, the online publication is caught in the middle. You can’t just cough up the identifying information without running the risk of being sued by the anonymous poster for violating his or her privacy rights. In fact, the federal statutes authorize such a cause of action and the award of liquidated and punitive damages and attorney fees. The online publication must notify the poster of the efforts to identify him or her, and failing to do so can also result in a lawsuit.

BTN: The public records law was passed in the 1950s when a record was a piece of paper in a file cabinet. Comment on areas where technology has run far ahead of the law, like e-mails as public records?

Johnson: The courts are coming to grips with this, but it has taken a while. One thing to bear in mind is that the Public Records Act really deals with public information. It does not matter whether the information is stored on paper in a file cabinet, or electronically in a computer. If it was made or received in connection with the transaction of official business, it is a public record.

There are, however, two issues that come up frequently. One has to do with e-mails that are sent from or received by government-owned computers. Suppose a government employee who routinely receives e-mails that are otherwise public records gets an email from a family member. The e-mail has nothing to do with the transaction of public business. One argument is that the e-mail simply does not fit the statutory definition of public records. Under that argument, it is not available for public inspection. Another argument is that the email was received by a public computer on public employee time. The trend at this time appears to be that in this situation, the e-mail is not a public record.

But if we change the hypothetical, the picture is not so clear. What if it is an elected official and the e-mail is from his girlfriend, not his wife? It has nothing to do with the transaction of official business, but that is what makes it important for the public to see. Is the elected official carrying on an illicit affair when he should be working for his constituents? Does this information reflect on his or her qualifications for the office? In those situations, the e-mails are generally found to be public records. A classic example of this occurred with the former mayor of Detroit. When the e-mails were published in the paper, his career was pretty much finished.

BTN: How well has the legal system adjusted to the challenges stemming from the effects of digital production -- and reproduction?

Johnson: This will continue to be a problem, and it will take a while to sort it out. Of course, we dealt with the NAPSTER problem where people were downloading songs and giving them away. The music industry took a big hit, but fought back with a series of lawsuits targeting the practice. I imagine people continue to violate copyright laws in this way, and it may never be eradicated completely.

Amazon recently started selling e-books. Will that create a new market for distributing books in a way that circumvents copyright laws? Time will tell.