April 28, 2005
Alabama Lawmaker Introduces Bill to Ban Purchases of "Gay Lit" Using State Funds
Alabama state lawmaker Gerald Allen has introduced a bill to ban the use of state funds to purchase literature featuring homosexual activities or lifestyles. Specifically, HB 30 provides that "[n]o public funds or public facilities shall be used by any state agency, public school, public library, or public college or university for the purchase, production, or promotion of printed or electronic materials or activities that, directly or indirectly, sanction, recognize, foster, or promote a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of the state of Alabama. No public funds shall be used for the purchase of textbooks or library materials that recognize or promote homosexuality as an acceptable lifestyle or encourages or proposes to public school children that they have a legitimate right to decide or choose illegal conduct."
In addition, "[n]o state agency, public school, public library, or public college or university, directly or indirectly, shall require or encourage the entity's members or employees to provide information or materials or engage in any activities that, directly or indirectly, sanction, recognize, foster, or promote a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of the state of Alabama."
Further, "[a]ny public employee who violates the provisions of this section shall be guilty of a Class A misdemeanor."
The bill declares that "[t]his section shall not be construed to be a prior restraint of the First Amendment protected speech. It shall apply only to state agencies, public schools, public libraries, and public colleges and universities in the use of public funds and public facilities."
(Thanks to Sean Sirrine for alerting me to this item).
April 27, 2005
President Signs Family Entertainment and Copyright Act
President Bush has signed the Family Entertainment and Copyright Act into law. The text is available here.
April 26, 2005
Michigan Court Affirms False Light Appeal
In a per curiam opinion the Michigan Court of Appeals has affirmed a trial court's dismissal of a false light invasion of privacy action against hip hop artist Eminem. In Deangelo Bailey v. Marshall Bruce Mathers III, a/k/a Eminem Slim Shady, the court held that the private figure plaintiff had failed to show falsity in this "publication of public concern."
The plaintiff had objected that in a song called "Brain Damage" and in a Rolling Stone article in which he discussed the lyrics of the song, the defendant had "negligently placed him [the plaintiff] in a false light concerning his character." The lyrics recounted how the plaintiff had "shove[d] [the defendant] in the lockers", taken his chocolate milk, "stomped" on him and committed other batteries, some with the assistance of the school principal.
Reviewing de novo the trial court's decision and considering the evidence submitted in the light most favorable to the nonmoving party, the court stated first: "[t]he tort of false-light invasion of privacy cannot succeed if the challenged statements are true....[P]laintiff has not challenged the trial court's identification of the allegedly actionable statements in both the song lyrics and the Rolling Stone article..." Thus, the court concluded, "[P]laintiff has not demonstrated any error in the trial court's conclusion that plaintiff failed to demonstrate a genuine issue of material fact with regard to the falsity element under the substantial truth doctrine."
Further, the court found that the lyrics themselves contained "a number of signals that would convey to a reasonable person that it should not be taken literally....Examples include the highly improbable event of a school principal assisting plaintiff in "stomping" on defendant and leaving him for dead...It is apparent that a reasonable listener would not take the song lyrics about defendant literally The sting of the song lyrics rests in their characterization of plaintiff as a bully, rather than the specific factual statements about the bathroom assault. Thus, the material question is whether the literal truth yields the same effect...In light of plaintiff's admissions that he "picked on" defendant when defendant was in the fourth grade and that plaintiff was part of a group at school that did "bully type things"...we uphold the trial court's determination that no genuine issue of material fact was shown....Viewing the evidence most favorably to plaintiff, plaintiff's deposition indicates that plaintiff...picked on defendant."
Concluded the court, "A reasonable person could interpret the uncontested facts as indicating that plaintiff...bullied defendant...Because the literal truth yields the same effect as the sting of the song lyrics, plaintiff did not meet his burden....Hence, the trial court properly granted defendant's motion...".
Read the entire opinion here.
April 25, 2005
Justice Kennedy Denies Application for Stay in Prior Restraint Case; First Coast News v. Circuit Court of Florida, St. Johns County
Justice Kennedy has issued a single justice opinion in the case of Multimedia Holdings Corporation, d/b/a as First Coast News, v. Circuit Court of Florida, St. Johns County. First Coast News had challenged two orders of the court. "The first was entered July 30, 2004. It states the court had discovered that copies of the transcript of certain testimony before the grand jury had been released to members of the press as well as to investigators from the St. Johns County Sheriff's office, in apparent violation of Fla. Stat. [sec.] 905.27 (2003). Section 905.27 generally prohibits the disclosure of grand jury testimony, with certain exceptions. As relevant here, the order directs that "[n]o party shall further disclose the contents of the transcript of testimony before the Grand Jury to any person not authority by F. S. 905.27(2)." After First Coast News intervened to set aside the order, the court issued a second order, which stated that "[a]t no point in the Court's [July 30 Order] is [applicant] precluded or restrained from publishing matters which are public record, nor is [applicant] enjoined or restrained from broadcasting matters in this case. The [July 30 Order] clearly provides that the parties to this action are enjoined from further disclosing the contents of the transcript of testimony before the Grand Jury to any person not authorized by F. S. 905.27(2). The parties to this action are the State of Florida...and defense counsel." Justice Kennedy noted that the trial court "denied applicant's motion to intervene and its motion to set aside the July 30 Order."
The Fifth District Court of Florida denied the newspaper's request for review, and because "the...denial is not appealable to the Florida Supreme Court...applicant filed with me as Circuit Justice an application for a stay of the orders, urging that they operate as a prior restrain in violation of the First and Fourteenth Amendments...The application...is denied...It is not sufficiently established on this record that applicant is enjoined by or otherwise subject to the orders in question or that any threat to is real or substantial; hence it is unlikely that, despite indications that a prior restraint may have been imposed at the time of the first order, four Members of the Court would vote to grant certiorari."
In spite of Justice Kennedy's denial of the application for a stay, his opinion is not entirely what one might call a "loss" for media freedoms. He points out in his analysis of the applicant's arguments that "the court's first order was not accompanied by notice or hearing or any other of the usual safeguards of the judicial process. It bears many of the marks of a prior restraint....The first order is of further concern because it singles out this applicant and could be interpreted to place it on notice that publication of grant jury testimony in the underlying case could subject it to prosecution or place it in contempt of court. Assuming that order constituted a prior restraint, however, any chilling effect it had on speech was substantially diminished by the court's second order. That second order indicates that the court was directing its order only to the conduct of those who are parties to the underlying action....In addition, the second order forecloses interpreting the first order to put applicant on notice that future publication would place it in contempt...To the extent the court's orders might suggest a particular animus toward applicant...the judge who entered them has retired from judicial service."
First Coast News also indicated that it feared contempt proceedings from the judge, and prosecution from the district attorney's office. Justice Kennedy pointed out that "it does not appear that the court may itself institute a prosecution....The decision to charge and prosecute is an executive responsibility..." Further, "[a]lthough the State has not guaranteed applicant immunity from prosecution for future publication of the transcript, it has suggested that further publication will not be prosecuted....True, informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint. Warnings from a court have added weight...If it were to be shown that even the second order might give a reporter or television station singled out earlier any real cause for concern, the case for intervention would be stronger." Read Justice Kennedy's opinion here.