May 13, 2005
Seventh Circuit Rules Model's Right of Publicity Claim Not Pre-Empted
The Seventh Circuit has ruled that model June Toney's state right of publicity claim under an Illinois statute (the Illinois Right of Publicity Act) is not pre-empted by federal law and has remanded the case to the district court. In Toney v. L'Oreal Corporation, the court found that Toney had made clear that she had not consented to the continued use of her image, thus that Baltimore Orioles v. Major League Baseball Players Association can be distinguished from this case. Read the entire opinion here.
May 11, 2005
French Regulatory Agency Reprimands Television Channel Over Satire
CNN is reporting that the French regulatory agency CSA (Conseil supérieur de l'audiovisuel) has told the French subscription channel Canal Plus that it may be fined if it violates a rule which forbids political and cultural sensibilities. The channel regularly broadcasts a show, Les Guignols de l'Info, which satirizes the issues of the day. The episode in question poked fun at Pope Benedict XVI and his membership in the Hitler Youth. The French Catholic Church has also filed a protest. Read the CNN story here. Read more about the CSA here. Read more about the Church's protest here. The webpage for Les Guignols de l'Info is available here.
"Les guignols" take their inspiration from the traditional French puppet Guignol, who is much like the English puppet Punch of Punch and Judy.
May 10, 2005
2nd Circuit Upholds "Clear and Convincing" Standard Proof of Falsity in Defamation Case
In DiBella v. Hopkins, the 2nd Circuit has upheld a lower court ruling that under state law, the public figure plaintiff's burden of proof of falsity in a defamation case is properly clear and convincing, rather than preponderance of the evidence. The plaintiff had argued, naturally enough, that "had the trial court charged preponderance of the evidence as the burden of proof, he would have succeeded on all of his claims..." rather than just on one.
The appellate court acknowledged that the state courts have not fully resolved this issue.
"When a state offers full protection to a federal right, state law necessarily disposes of the constitutional question...If, however, the state standard is not fully protective of a given right, a court must reach the federal constitutional question...In this case, then, we must examine state law to determine whether it provides for the highest standard available--clear and convincing proof of falsity--thus rendering a discussion of the federal constitutional standard unnecessary. Here, we are persuaded that state law requires clear and convincing proof of falsity, and decline therefore to address this open question in federal constitutional law. Having said that, we recognize at the outset that the New York Court of Appeals has not addressed New York's standard of proof for falsity in a defamation case. In the absence of authoritative law from the state's highest court, we must either (1) predict how the New York Court of Appeals would resolve the question, or, if state law is so uncertain that we can make no reasonable prediction, (2) certify the question....We have considered and rejected the necessity of certifying this question of state law to the New York Court of Appeals....We do not believe this case presents any of the exceptional circumstances that would justify using the certification procedure. Rather, in light of existing authority...we must undertake the imprecise but necessary task of predicting on a reasonable basis how the New York Court of Appeals would rule...."
Read the entire opinion here.
May 8, 2005
Bloggers File Amicus Brief in Apple Case
The ongoing Apple v. Does case adds to the continuing confusion about just who should be considered a journalist, as Julie Hilden discusses in a piece on CNN's website April 27th. The California-based Bear Flag League has submitted an amicus brief in the O'Grady case, available along with other relevant documents through the Electronic Frontier Foundation website. For a review of the Vanessa Leggett case, which Hilden also mentions, see Daniel Scardino, Vanessa Leggett Serves Maximum Jail Time, First Amendment-Based Reporter's Privilege Under Siege. Leggett was a part-time English instructor who refused to turn over her notes pursuant to a grand jury subpoena; she had gathered them during the course of her research for a true crime work. In part because because it was to be her first book, and because Texas has no shield law, her claim that she was entitled to a professional journalist's privilege came into question. The Supreme Court later denied cert (535 U.S. 1011 (2002)). Read the lower court O'Grady ruling here. See the Reporters' Committee for Freedom of the Press Shields and Subpoenas page here.