July 22, 2005
Media Law Opinions From S. Ct. Nominee Roberts
The New York Times has posted a list of Supreme Court nominee John G. Roberts' opinions here. Among them are media law opinions such as Consumers Electronics Association v. FCC, Sioux Valley Rural TV v. FCC, DSMC Inc. v. Convera Corp., In re Tennant, A.T.& T. v. FCC, and Universal City Studios v. Peters.
Polanski Wins Case Against Vanity Fair
Director Roman Polanski has won a 50,000 pound judgment against Vanity Fair and Conde Nast for defamation after the jury handed down its verdict today in London. The defense acknowledged that it made factual errors in its story but maintained that the story was substantially true. Its case may have fallen apart when Beatte Telle, the woman whom Polanski was alleged to have approached, was apparently never called to give evidence. Observers estimate that Conde-Nast's legal fees could run as high as high as 1.5 million pounds. Read more in a Times of London story here and in Reuters' story on CNN's website here.
July 21, 2005
Polanski Jury Considers Its Verdict
After listening to four days of testimony and a summing up by the presiding judge, the jury in the Roman Polanski libel trial against Conde Nast and Vanity Fair has retired to consider its verdict. The jury listened to testimony by several celebrities including--by video link from Paris--Polanski himself, writer Lewis Lapham, and actress Mia Farrow.
"Grand Theft Auto: San Andreas" Likely to Vanish From Major Retailers' Shelves
Because of the Entertainment Software Ratings Board's re-rating of it from "Mature" to "Adults Only", the video game "Grand Theft Auto: San Andreas" is likely to be dropped from most big video retailers in the near future. Generally major retailers do not like to sell AO rated games, according to the industry spokesgroup Interactive Entertainment Merchants Association. The re-rating came after it became clear that a downloadable fix, called "Hot Coffee", allowed players to view a pornographic scene that maker Rockstar had inserted. Rockstar asserted that it had not wanted the scene to be available to users (but then why make the scene available at all?) The "Hot Coffee" download is available at several sites on the Web.
Rockstar now says it plans to release a new version of the game without the objectionable scene. Grand Theft Auto: San Andreas" was the best-selling video game of 2004.
Senator Hillary Clinton also suggested that federal intervention might be forthcoming to ban sales of sexually explicit video games to minors. Illinois' governor was sent similar legislation this year (HB 4023). The synopsis reads: "Provides that a person is guilty of distributing harmful materials to a minor by knowingly distributing such material knowing that the minor is under the age of 18. Changes various penalties for violations of the amendatory provisions. Provides that it is an affirmative defense to selling a sexually explicit or violent video game to a minor that the video game was pre-packaged and rated EC, E10+, E, or T by the Entertainment Software Ratings Board. Includes admission to explicit motion pictures." California's Speaker Pro Tem Leland Yee is sponsoring Assembly Bill 450, which "would prohibit the sale and rental of violent video games that depict serious injury to human beings in a manner that is especially heinous, atrocious, or cruel, to persons who are 16 years of age or younger." Read more here. It was introduced on February 15 and sent to the relevant committees (Judiciary, Arts, Entertainments, Sports, Tourism, and Internet Media). Referred out, on July 13 it had its third reading in the General Assembly.
Read Variety's article on "Grand Theft Auto: San Andreas" and its re-rating here.
July 20, 2005
Hearings on Federal Shield Bill Continue
Hearings on the federal shield bill proposed by Senators Dodd and Lugar are moving forward even as Deputy Attorney General James Comey decided not to appear before the Senate Judiciary Committee today, saying the bill was "bad public policy." In prepared remarks Comey stated the bill would "create serious impediments" to the government's ability to fight terrorism. Senator Lugar's statement in support of the bill emphasized the need for clarification of reporters' rights given the split in the circuits. "Since Branzburg, states and the federal courts have pursued different courses of action with regard to extending a reporters’ privilege against disclosing confidential sources. Today every state and the District of Columbia, except Wyoming, has, through either legislation or the judiciary, created a privilege for reporters not to reveal their confidential sources. My own state of Indiana has a shield law that provides an absolute protection from qualified reporters having to reveal any information in court, whether published or unpublished, across a variety of media formats. The federal courts of appeals, however, have an incongruent view of this matter. The 11th Circuit allows the privilege to extend to civil and criminal cases. The 9th Circuit applies the privilege to civil and criminal cases but not in grand juries. The 5th Circuit holds that reporters are only permitted protection from government subpoenas when they are intended to harass the media. The 7th Circuit has yet to decide whether there is a privilege, although, in one case, it expressed skepticism of the federal courts of appeals that had concluded that Branzburg established a privilege."
District Court Grants National Geographic's Motion to Dismiss in Defamation Case
Kevin Nanji, convicted along with his wife of holding a young woman in involuntary servitude in violation of 18 U.S.C. sec. 1584 among other crimes, brought a civil action against National Geographic alleging that in the course of its feature article "21st Century Slaves" published September 2003, it defamed him in a "sidebar" story when it stated among things that he was convicted of raping the young woman. National Geographic filed a motion to dismiss, "or in the alternative, Motion for Summary Judgment." Examining the facts in the light most favorable to the plaintiff, the court stated that "...Nanji appears to allege that National Geographic's September 2003 edition published defamatory false statements. In particular, Nanji objects to National Geographic's printed statement of "raping [the victim]" on the basis that "this allegation is false, pernicious and damaging inasmuch as [Nanji and Satia] had not been convicted for rape." Nanji's allegation fails to state a claim of defamation because the gist of National Geographic's published statement is substantially true. In determining whether allegedly false statements are substantially accurate, a court must consider the statements in their entirety...Had the Sidebar expressly stated that Nanji was convicted of raping his victim, then Nanji would have successfully stated a claim. However, the plain language of the Sidebar does not state that Nanji was convicted of rape. Instead, the Sidebar suggests that Nanji was sentenced to nine years incarceration for, among other things, "raping her." Indeed, the first sentence of the Sidebar uses the language of sentences imposed on persons convicted of as traffickers, which would imply to a reasonable observer of the Sidebar that Nanji was convicted of a trafficking offense and not of rape. Therefore, the plain text appears to shed light on the meaning of the term "raping," as used in this context...[T]he Sidebar article clearly conveys the message that "rape was merely a fact of the case rather than the underlying conviction. This Court's textual interpretation is supported by public records."
The court pointed out that National Geographic relied on Department of Justice press releases as well as public records in writing its story, and that "evidence at the criminal trial showed that Nanji `sexually abused' the victim.'" Further, even if the magazine had made an error as to the the exact nature of the type of crime involved, "[I]t is worth noting that a long line of cases holds that `technical errors in legal nomenclature in reports on matters involving violation of the law are of no legal consequence.'"
National Geographic also asserted a defense based on the fair report privilege. "Under Maryland law, earlier cases suggested that the fair report privilege `operated only when the report is fair, accurate, and made without malice.'...The modern view, however, discards the search for malice. Therefore, under the modern view of Maryland law, a publication falls within the fair report privilege if the defendant demonstrates that the publication is a substantially fair and accurate report. As applied here, this Court finds that National Geographic's published Sidebar statement was fair and accurate. As previously mentioned, National Geographic's reporting was consistent with judicial findings and statements concerning Nanji's conduct. Furthermore, National Geographic's reporting of the information contained in these government documents was fair and accurate....Accordingly, National Geographic is entitled to the fair report privilege, and Nanji's defamation claims are therefore dismissed. For the aforementioned reasons, this Court GRANTS National Geographic's motion to Dismiss Nanji's complaint, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief may be granted. An Order consistent with this Opinion will follow."
July 19, 2005
From Across the Pond....
For a view of the Karl Rove flap from a British journalist see Julian Borger's piece in the Guardian here.
BBC Director Says He Didn't Censor Language During Network Coverage of July 7th Attacks
The Director-General of the BBC denied accusations that he told journalists not to use the word "terrorist" during BBC coverage of the July 7 attacks on London buses and subways. Mark Thompson said however that reporters might have been aware that network guidelines do require them to "think carefully" about language. But he pointed out that the extremity of the situation made clear that terrorism was a likely conclusion for anyone watching the coverage. Thompson's comments were made in the context of the BBC's renewal before the House of Lords. See Jason Deans' story here.
Arizona Supreme Court Holds That 1st Amendment Protects Letter To Editor Calling For Killing Innocent Muslims
In Citizen Publishing Co. v. Miller, the Arizona Supreme Court has held that a newspaper may not be held liable for intentional infliction of emotional distress "for printing a letter to the editor about the war in Iraq."
In December of 2003, the Tucson Citizen printed the following letter from Dr. Emory Metz Wright Jr. "We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a 'Holy War' and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis." As a result, the newspaper received numerous responses criticizing Wright's views, including one from Aly W. Elleithee, one of the real parties in interest in the case. In January of 2004 Elleithee and Wali Yudeen S. Abdul Rahim filed this action in trial court in Pima County against both the Citizen and Wright. The Citizen filed a 12(b)(6) motion. The trial court dismissed the plaintiffs' assault claim, but allowed the IIED claim to proceed and also found that "a public threat of violence directed at producing imminent lawlessness and likely to produce such lawlessness" might exist, thus that the Citizen's claim that Brandenburg controlled here was not necessarily persuasive. The appellate court refused to accept jurisdiction and the Supreme Court agreed to hear the case.
According to the Court, "[t]he only issue is whether the publication of [Wright's] letter is protected by the First Amendment." Plaintiffs offered in the alternative that the words here were "incitement", "fighting words" or a "true threat." The Court rejected the incitement alternative, judging that the letter "however offensive, the letter did not advocate `imminent lawless action.' The suggestion that `we' execute Muslims was premised on the occurrence of some future `assassination or another atrocity.' Nor were the words likely to produce imminent lawless action. The statement was made in a letter to the editor, not before an angry mob. Indeed, the complaint was filed more than a month after the challenged statements were made and did not allege that a single act of violence had ensued from the publication nor that such violence was imminent. Rather, the only thing that appears to have resulted from the challenged speech was more speech..."
Next, the Court considered and rejected the suggestion that Wright's were "fighting words." "This case does not fall within the fighting words exception...The statements at issue were made in a letter to the editor, not in a face-to-face confrontation with the target of the remarks. While the letter expresses controversial ideas, it contains no personally abusive words or epithets. The letter is neither directed toward any particular individual nor likely to provoke a violent reaction by the reader against the speaker."
Finally, the Court examined the notion that "the letter constituted a "true threat....Given both the content and the context of the statement at issue here, we conclude that it is not a constitutionally proscribable true threat. First, the letter involved statements with a plainly political message. Indeed, the comments arose in the context of a discussion about a central political issue of the day...Such statements are far less likely to be true threats than statements directly purely at other individuals....Second, this expression occurred in the letters to the editors section of a general circulation newspaper, hardly a traditional medium for making threats, and a public arena dedicated to political speech. Speech that is part of this sort of public discourse is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations.... Third, the action "threatened" in the letter was that "we" should take deadly measures in response to future assassinations and other atrocities. The letter is unclear as to whom "we" refers--it could be read as referring to the United States armed forces or to the public at large....Given the letter's conditional nature and ambiguity, we do not believe that a reasonable person could view that letter as "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals....In short, we conclude that this letter does not fall within one of the well-recognized narrow exceptions to the general rule of First Amendment protection [sic] for political speech."
Read the entire opinion here.
July 18, 2005
Polanski Libel Suit Against Conde Nast, Vanity Fair, Begins Today
Roman Polanski's long awaited defamation suit against Conde Nast and its publication, Vanity Fair, finally began today, after Britain's high court ruled earlier this year that Polanski could give testimony via a video link from Paris. Polanski is suing over a 2002 article in which the magazine stated that he made advances toward a woman while he was on his way to Sharon Tate's funeral in 1969. Tate, Polanski's late wife, was among the people brutally murdered by followers of Charles Manson, for which he received the death sentence (later reduced to life in prison). Read Claire Cozens' article here. Read more about the Manson trial at Doug Linder's Famous Trials website here.
Matthew Cooper's Article Appears in Time
Check out Matthew Cooper's article about his appearance before the grand jury. It appears in this week's Time, and also on the Time website here. (Note: subscription or login required).