Also known as: safe harbors · safe-harbor · safe-harbour · safe harbour
Written by attorneys · grounded in primary & secondary sources — see below
A statutory or regulatory provision that affords protection from liability or penalty when specified conditions are met. The protection applies only if the actor satisfies the enumerated requirements, such as good-faith conduct or objective criteria that eliminate the prohibited element.
Scott Summers, counsel in a high-profile trial, held a press conference describing evidence he planned to introduce. The state bar charged him under a publicity rule containing a safe harbor for statements made "without elaboration." The disciplinary board could not determine whether Summers's remarks fell inside or outside the harbor, leaving him without fair notice of what speech remained protected.
Stephen Shaw, representing a client accused of murder, told reporters that his client had been framed by police. The state bar invoked its trial publicity rule. Shaw pointed to the rule's enumerated safe-harbor statements that attorneys may make without fear of discipline. Because his remarks matched one of the listed categories, the board dismissed the charge.
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Spectrum Financial produced a documentary critical of a candidate and aired it within sixty days of an election. Regulators threatened enforcement under BCRA section 203. The company invoked the regulatory safe harbor for communications that do not constitute the functional equivalent of express advocacy. Because the film focused on issues rather than urging a vote, the safe harbor shielded the broadcast.
Sylvia Santos sat on a public sidewalk in a designated zone between 9:00 p.m. and 7:00 a.m. City police issued a citation under an ordinance that prohibits sitting during daytime hours. Santos raised the ordinance's safe-harbor provision that limits enforcement to the stated hours. The court dismissed the citation because her conduct occurred outside the prohibited window.
Seth Shapiro, a landlord, refused to rent to a same-sex couple citing a state constitutional amendment that eliminated special protections for sexual orientation. The couple argued the amendment created a special disability. Shapiro defended under the amendment's safe harbor for laws of general application that remain available to everyone. The court accepted the defense and upheld the refusal.
Sierra Santos burned a cross on private property during a rally. The city charged her under an ordinance banning bias-motivated symbols. Santos invoked the categorical safe harbors recognized for certain forms of expression. Because the ordinance singled out disfavored viewpoints within an unprotected category, the court held the prosecution violated the First Amendment.
A party served with a Rule 11 motion receives a twenty-one-day period to withdraw or correct the challenged paper. If the party acts within that window, sanctions are avoided. The safe harbor is unavailable when sanctions are imposed sua sponte.
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An issuer that satisfies the rule's conditions on manner, timing, price, and volume receives protection from liability for manipulation under sections 9(a)(2) and 10(b). Compliance is voluntary, yet most issuers follow the conditions to obtain the protection.
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A safe harbor that fails to give fair notice of protected speech and invites discriminatory enforcement is void for vagueness. The "without elaboration" language in certain publicity rules has been held unconstitutional on that ground.
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The statute provides that bad-faith intent shall not be found when the registrant believed and had reasonable grounds to believe the use was fair or otherwise lawful. Courts apply the defense sparingly and require objective evidence of the registrant's belief.
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The provision protects only the provision of lawful, bona-fide legal representation services. Conduct that is not genuine representation or that pursues an unlawful objective falls outside the harbor.
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…2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the…