Friday, August 5, 2005
The FCC has finally reclassified broadband service, giving the baby bells and the cable companies what they've wanted for so long, equal footing with the ISPs. DSL is now officially an "information service" and not "telecommunications", and phone and cable operators will no longer be subject to common carrier rules. However, for the next year, phone companies must still make their lines available to ISPs, and DSL providers must still make their lines accessible to law enforcement in conformity with CALEA. See the FCC's press release here. See the FCC's policy statement on Internet access here.
Thursday, August 4, 2005
Theater goers who saw "A Knight's Tale," "The Patriot", "The Animal", "Hollow Man", or "Vertical Limit" can file a claim and receive $5, according to the terms of a settlement Sony Pictures has now agreed to, in order to end a lawsuit filed by angry movie patrons. In 2001, Sony used reviews from a non-existent critic, "David Manning", to type the films in order to entice people into attending them. Newsweek ferreted out the fake, and attorney Norman Blumenthal filed suit. Read more here and here.
Wednesday, August 3, 2005
May Publisher of Newsletter Be Held Liable For Negligence and Negligent Misrepresentation? Texas Court of Appeals Decides Case of First Impression
In Reynolds v. Murphy, the Texas Court of Appeals affirmed in part and reversed and remanded in part a grant of summary judgment to "an investment-related newsletter" sued by "one of its subscribers who alleges that he incurred losses as a result of making investments in accordance with recommendations in the newsletter." Ernest Reynolds claimed that the trial court erred by granting summary judgment "in nine issues, complaining specifically that (1) the United States Supreme Court holding Lowe v. Securities and Exchange Commission, protecting publishers from prior restraing of free speech by federal agencies, does not extend to abolish all private causes of action for the consequences of a misuse of speech, (2) the limited First Amendment protection of Lowe should not be extended to shield publishers and nonpublisher author of harmful speech from liability for their actions.... [and others]". Reynolds sued on various grounds, "including breach of contract, negligence, negligent misrepresentation, fraud and misrepresentation, and violations of the Texas Deceptive Trade Practices Act (DTPA)....The trial court granted summary judgment...without stating the grounds upon which the judgment was based."
The case is one of first impression in Texas. "In his first and second issues, Reynolds contends that a First Amendment case relied on by appellees, Lowe, does not provide authority for summary judgment....He contends that Lowe does not address the specific issues in this case and that it cannot be used to shield a publisher and author for wrongful speech. Thus, we begin with an analysis of the Lowe case. The issue in Lowe was whether the Securities and Exchange Commission (SEC) could obtain a permanent injunction prohibiting the publication of securities newsletter containing "nonpersonalized investment advice and commentary....The Supreme Court held that the newsletter was a bona fide publication of general circulation. Thus, it was not an "investment advisor"...and the government could not impose a prior restraint....We agree that Lowe is not directly on point. This case does not involve an attempt by a governmental entity to restrain speech. It concerns a private litigant's attempt to impose liability on a publisher and author. In addition, the First Amendment does not protect fraudulent or deceptive speech...., nor does it give one the right to breach a contract or make false warranties. Thus, summary judgment would not have been proper on First Amendment grounds as to Reynolds' breach of contract, fraud and misrepresentation, and DTPA claims. We have found no Texas authority construing Lowe...[B]ut since Lowe was decided, two cases in other jurisdictions have explored whether publishers of similar newsletters could be liable to private litigants for negligent investment "advice" given in a similar format. Those cases held that subscription newsletter similar to the one at issue here could not be held liable for negligence and negligent misrepresentation." The appellate court upheld the trial court's determination of summary judgment except as to the grant of summary judgment with regard to the issue of fraud and misrepresentation of Murphy's skills.
Read the entire opinion here.
David Beckham has won substantial damages from The People, a tabloid that published a story alleging that he "made hate calls to a former nanny." Beckham and wife Victoria, formerly Posh Spice of the Spice Girls, are suing nanny Abbie Gibson for other revelations published in News of the World. Read more here and here.
As New York Times reporter Judith Miller begins her fifth week in jail for refusing to reveal her source in the Valerie Plame leak investigation, Washington Post reporter Walter Pincus and his attorneys are scouring the literal reporters for support in their attempt to block scientist Wen Ho Lee's request for some of Pincus' materials. The government brought criminal charges against Lee that were later dropped; Lee has now brought a civil action and wants to know with whom Pincus spoke when he reported on that investigation. Read Carol Leonnig's Post article here.
Steve Sembrat, a sports journalist with the Wilkes-Barre Times Leader, was arrested Sunday for soliciting sex with someone he thought was a 13 year old girl. She was in actuality an undercover police detective. The Times Leader "plans to end [his] employment." Read more in the Times-Leader here.
Tuesday, August 2, 2005
CNN reports that Russia has decided to ban ABC's journalists from the country after the network broadcast an interview with Shamil Basayev, the Chechin terrorist leader whom the Russian government has been chasing for years. Basayev has taken responsibility for the Beslan attack in September 2004 in which 330 people, including many children, died, a Moscow bombing that killed 10, and two passenger jet explosions that killed 90. Read more about the ban here. Read more about Basayev here.
Stating that fair trials might be impossible if massive coverage of their pursuit and arrest continues, attorneys and groups concerned about the rights of the suspects detained or sought in the July 21st London attacks are asking British officials to caution the UK media to cut back on their enthuasiatic headlines. Read more in a Media Guardian story here. See a sample of the coverage here.
Monday, August 1, 2005
Robert Novak has addressed some of the questions in the Valerie Plame Wilson case in a column he published yesterday. In the column he asserts comments made by former CIA spokesman Bill Harlow about using Valerie Plame's name were not correct. He also indicates he looks forward to the day that the investigation will be completed and that he will be able to speak freely about the case. Read Novak's column here. Read an account of Harlow's comments here.
The Media Guardian reports today that Elena Cosentino, a former producer for CNN, has won an unjust dismissal claim against the network from a UK industrial tribunal. Cosentino claimed that in the months following her fiance's accidental death she found it difficult to return to work, but that her employers were insensitive to her condition and insisted that she either return to a nighttime position or give up her post. CNN took the position that news producers needed to work when required, and this requirement sometimes necessitated evening or night hours. The network finally fired her in April of 2004. The tribunal's forty page report found that CNN made no allowances for Ms. Cosentino's medical and emotional disabilities after her fiance's death, which it found were well-documented. She is seeking 190,000 pounds in damages. Read more here.
Penn Jillette, the "taller, louder half" of the Penn & Teller magic act, is, with Paul Provenza, the creator of the new film of "The Aristocrats", a documentary about a very old, very raunchy joke. The film features, among others, Jason Alexander, Shelley Berman, Drew Carey, George Carlin, Phyllis Diller, Carrie Fisher, Whoopi Goldberg, Eric Idle, Richard Lewis, Emo Phillips, Don Rickles, Chris Rock, Rita Rudner, Bob Saget, Tom and Dick Smothers, Larry Storch, The Amazing Johnathan, Carrot Top, Bruce Vilanch, Robin Williams, and a shorter, quieter magician who doesn't usually talk.
AMC, a 3500 screen movie theater chain, has already announced it will not book the film because of its objectionable language. That is all right with libertarian Jillette. `"It kind of makes me feel great, because words still have power." Jillette said. "I just like how uplifting the idea is: Words are powerful."' The film opens nationwide August 12. Read more here. Read reviews here and here.
Ian Blair, London's Metropolitan Police Commissioner, has blasted ABC's broadcast of leaked photographs of unexploded devices and other evidence found in the wake of the July 7th London bombings. Although Blair and other officials asked ABC and other media not to use the photos, both ABC and some UK outlets did use the photos to illustrate coverage of the bombings. ABC defended its use of the photos as newsworthy. Read more here. See some of the photos in question here (under Exclusive Photos: London Terror Investigation).
Sunday, July 31, 2005
The New York Times has an essay on the Sony payola scandal, and the history of payola since the 1930s. Read Lorne Manly's piece here. The term payola has now also been attached to "pay for play in other situations, such as in tv and radio broadcasting, and even in judicial bribery scandals. For more about the history of payola and Congressional attempts to regulate it, here's a short bibliography.
Dannen, Fredric, Hit Men: Power Brokers and Fast Money Inside the Music Business (Knopf, 1991).
Congressional Acts Amendments: Hearings before before a subcommittee of the Committee on Interstate and Foreign Commerce, House of Representatives, Eighty-sixth Congress, second session, on conditional grants, pregrant procedure, local notice, local hearings, payoffs, suspension of licenses, and deceptive practices in broadcasting, April 12 and 13, 1960. SuDocs no. Y 4.In 8/4:C 73/17/960.
Hultin, James C., The Quiz-Payola Investigations 1958-1960 (Kent State, 1971). On the tv quiz show scandals.
Selby, Shawn, They Knocked the Rock: Congress and the Payola Hearings (Ohio University, 2002).
Law Review Articles
Kielbowicz, Richard, and Linda Lawson, Unmasking Hidden Commercials in Broadcasting: Origins of the Sponsorship Identification Regulations, 1927-1963, 56 Federal Communications Law Journal 329 (2004).
American Hot Wax (1978). Tim McIntire plays Cleveland DJ Alan Freed, the champion of rock and roll, who was eventually brought down by the payola scandals. Fran Drescher, Laraine Newman, Jay Leno, and rock and roll greats Frankie Ford, Chuck Berry, Jerry Lee Lewis and others are also in this cult classic.
Quiz Show (1994). Rob Morrow as lawyer investigator Dick Goodwin, Ralph Fiennes as Charles van Doren and John Turturro as Herbie Stempel are terrific in this dramatization of the "Twenty-One" game show scandal. Paul Scofield was nominated for an Oscar for his performance as Mark van Doren.