October 8, 2005
Photographer Charged In Witherspoon Incident
The AP is reporting that photographer Todd Wallace is being charged with child endangerment and battery for an incident at Disney's California Adventure September 7th after he allegedly hit a little girl and her mother while trying to get a picture of actress Reese Witherspoon (Legally Blonde, Just Like Heaven). The pair were with Witherspoon at the time. Wallace previously served time for burglary. Read more here. Witherspoon had complained in August that paparazzi had pursued her, causing her and her family distress. Read more about that incident in a prior post here and in an MSNBC story here.
Turkish Journalist Given Suspended Sentence For "Insulting the State"
A Turkish court sentenced Hrank Dink to a six month sentence (suspended) for "insulting the state" for writing articles that criticize Turkey's official position that it never participated in genocide against Armenians in the early part of the 20th century. The defendant said he will appeal, through Turkey's courts, and if necessary through the European courts. Meanwhile, Turkey has opened negotiations with the European Union in an attempt to join that organization. Some observers consider its lack to sensitivity to freedom of speech, including the conviction of Mr. Dink, and an upcoming prosecution of novelist Orhan Pamuk on similar charges, among other issues, may make its admission to the EU difficult. Read more here about the Dink proceeding in the Financial Times. Read coverage in the Turkish Daily News here (signup required--free).
October 7, 2005
Ninth Circuit Affirms Dismissal of False Light Claims Against King Broadcasting, City of Seattle
The Ninth Circuit has affirmed a lower court's dismissal of a public official's allegation of false light claims brought against a television station (King Broadcasting) and additional claims against a law firm and the city of Seattle. Ruby Dell Harris attended a management seminar in Las Vegas. The television station's reporter and camera crew followed her there and claimed to document that instead of attending programs she spent the majority of her time in other pursuits at the taxpayers' expense. Because Harris is a public official, which she did not dispute, she had to show clear and convincing evidence of actual malice on the part of the media in order to prevail on her claim of false light. The appellate court reviewed the record de novo.
"First, Ms. Harris asserts that KING reporter Duane Pohlman testified in a deposition that he wanted to "shock the public" by reporting that a public official was misusing taxpayer money while on an official trip to Las Vegas. While evidence of a defendant's bias or editorial slant is generally not sufficient to demonstrate malice, RODNEY A. SMOLLA, 1 LAW OF DEFAMATION § 3:67 (2005), the Supreme Court has instructed that "a plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry." ... Ms. Harris's assertion that Mr. Pohlman set out to "shock the public" with his report, however, is not evidence of a preconceived editorial slant. Rather, it is Ms. Harris's paraphrase of Mr. Pohlman's deposition testimony. Mr. Pohlman testified that the reason KING followed Ms. Harris to Las Vegas and surreptitiously filmed her "was to see how taxpayer money was being spent and what she did at a management seminar." Accordingly, Ms. Harris's characterization of Mr. Pohlman's deposition testimony does not represent probative evidence of malice. Second, Ms. Harris observes that Mr. Pohlman acknowledged in his deposition watching Ms. Harris during her lunch hour even though he stated that what she did on her own time was her business. Ms. Harris's evident theory is that this contradiction demonstrates malice. KING argues that Mr. Pohlman and his cameraman watched Ms. Harris during her lunch hour because they needed to keep track of her movements. This argument is convincing. Workshops and seminars were conducted from 10:15 a.m. to 4:45, with an intervening break and lunch. Mr. Pohlman could not monitor Ms. Harris's attendance at the seminars and workshops if he lost track of Ms. Harris during her lunch hour. Third, Ms. Harris notes that KING did not include the time Ms. Harris spent at evening events when it asserted that Ms. Harris spent only 3 1/2 hours attending seminars and workshops, even though Mr. Pohlman knew there were evening events at the conference. Ms. Harris contends that what she "did at night was just as important as what she did during the day because [she] continued to attend seminar functions in the evening." n3 This is not probative evidence of malice. The conference schedule distinguishes between nighttime events -- such as the "Portland Chapter Event" - and seminars and workshops. KING's broadcast asserts that Ms. Harris spent only 3 1/2 hours attending "seminars and workshops." KING's failure to include Ms. Harris's attendance at nighttime events in its calculation of how much time she spent attending seminars does not support an inference of malice. Fourth, Ms. Harris maintains she "presented evidence refuting the allegations against her" at a press conference she held before KING aired its broadcasts against her. While acknowledging that a failure to investigate is not sufficient to prove recklessness, Ms. Harris cites Herron v. King Broadcasting Co., 112 Wn 2d 762...(1989) for the proposition that "when a reporter does in fact conduct an investigation and his investigation does not support his false statement or brings to his attention facts which rebut the false statement, that is evidence from which a jury can infer reckless disregard." Id. at 106. However, the only evidence in the record concerning what Ms. Harris stated at her press conference consists of that portion that was aired on KING's broadcast:
Harris: I brought back information on, um, productivity, uh, waste management. Information on, uh, there was a speaker, Glenda Hatchet, who did some speaking. Um, information on women, sisters on the move, that kind of information.
Pohlman: So what do you do? You just go to -- what, seminars or something?
Harris: They're workshops. And also, evening events. Different events.
Pohlman: And you -- and you went to those, and then brought back that formation?
Harris: Yes, I did.
The fact that Ms. Harris issued such a generalized denial falls well short of demonstrating that KING acted with malice. "[A] reporter need not believe self-serving denials, 'as such denials are so commonplace in the world of polemical charge and countercharge.'" ...[quoting Smolla...] Moreover, the fact that KING included Ms. Harris's denials in its broadcast rebuts an inference of actual malice."
The court's opinion, not for publication, is available here.
October 6, 2005
Karl Rove Returning to Grand Jury to Give More Testimony
CNN reports that Presidential advisor Karl Rove is returning for a fourth time to give more testimony before the grand jury in the Valerie Plame case. Sources close to the investigation said this additional appearance is extremely unusual. Read more here.
Carlton Sherwood Sues John Kerry, Anthony Podesta for Defamation
Carlton Sherwood, the producer of Stolen Honor: Wounds That Never Heal, has sued 2004 Presidential candidate John Kerry and his former aide Anthony Podesta, alleging that they defamed him while trying to prevent airing of the film. He filed suit last Monday in Read more here in the Washington Post (AP) story by MaryClaire Dale.
Eminem Sues To Prevent Use of Songs as Ringtones
Marshall Mathers III, better known as rapper Eminem, is off to court again, this time in an attempt to prevent various companies that sell ring tones from using his tunes. His attorneys filed suit in U. S. District Court in the Eastern District of Michigan October 4 charging unjust enrichment and copyright infringement, and seeking an injunction against Nextones.com and four other companies. Read more here on Findlaw and here in a Detroit Free Press story.
Larissa M. Katz: A Powers-Based Approach to the Protection of Ideas
Larissa M. Katz, Queens University, Faculty of Law, has published "A Powers-Based Approach to the Protection of Odeas (sic)" via SSRN (note the error in SSRN's transcription of the paper's title--it should be "Ideas."). Here is the abstract.
This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection of ideas. Second, it provides an account that accommodates the core criteria for the protection of ideas while illuminating the interests and values served by this area of the law. Finally, this paper articulates an important principle at work in Anglo-American law that limits the scope of an originator's power to control disclosure: the imposition of special duties is appropriate only where there is some minimum foundation of voluntariness. Anglo-American law is reluctant to recognize duties that inescapably flow from unavoidable positions, such as the duty to rescue, whereas it accepts a category of duties I call positional duties: duties that inescapably flow from avoidable positions. I place the duty not to use or disclose another's novel and original idea in this category of duties.
The draft is available here via SSRN.
James Nichols Asks 6th Circuit To Reinstate Defamation Case Against Filmmaker
James Nichols, the brother of convicted OKC bombing conspirator Terry Nichols, has filed an appeal of the dismissal of his defamation suit against filmmaker Michael Moore. Nichols had argued that Moore's movie Bowling for Columbine, had defamed him, and had also filed false light and IIED claims against the filmmaker. A lower court dismissed the suit, finding that Moore's statements were "literarily true." The court also found that Nichols was a limited purpose public figure and that he had sought the public's attention for purposes of the controversy. The case is Nichols v. Moore, No. 03-74313 (E.D. Mich., S. Div. Sept. 8, 2005). Read more about the dismissal of the case in an earlier post here.
October 5, 2005
US District Court Grants CFTC's Request to Enforce Subpoena Against McGraw-Hill
The US District Court for the District of Columbia has granted the Commodity Futures Trading Commission's request for enforcement of an administrative subpoena duces tecum served on McGraw-Hill in April of this year. McGraw-Hill had objected to surrendering the information requested, alleging that it was collected in the course of protected newsgathering by its subsidiary publication, Platt's. "Primarily, it argues that Platts, as a news publication, is protected from revealing confidential information received from its sources....Even though, as McGraw-Hill concedes, the privilege is qualified, it argues that the CFTC has not made the showing needed to overcome the privilege...Specifically, McGraw-Hill argues, the CFTC has failed to demonstrate that the information is crucial to its investigation or that it has exhausted alternative sources...In the alternative, McGaw-Hill asserts that the Subpoena is overly broad and unduly burdensome....In reponse, the CFTC asserts that there is no privilege because Platts is not engaged in traditional news gathering and/or is not disseminating its reports to the public....It further argues that, even if a privilege does exist, it is clearly abrogated by the public interest in law enforcement, the CFTC's need for the information and its exhaustion of other sources...."
After considering whether Platts might claim the reporter's privilege and concluding that it might, the court discussed the qualified nature of the privilege in this matter. "Since in this instant case, the party seeking disclosure is the government pursuing an enforcement matter, the interests are more aking to those in a criminal case than a purely civil matter. Among other things, the concerns attendant upon a private party seeking disclosure are not significant here....The scope and authority of the CFTC are more similar to that of a grand jury....Therefore, this Court finds that, while the strong preference for abrogation used in criminal cases does not apply here, the posture of this matter calls for a more qualified view of the privilege than would be appropriate in a purely civil case. It is under this view of the privilege that the balancing test will be undertaken."
The court then found that the CFTC had shown that the public's need for the information and the exhaustion of alternative source had overcome the qualified nature of the privilege. It next considered McGraw-Hill's claim that the subpoena was "unduly burdensome." While this Court is unpersuaded that McGraw-Hill's general complaints...meet the undue burden standard, this Court does agree that some of the Requests are excessively borad on their face and technically call for a larger volume of data than may have been intended by the CFTC. To the extent that these Requests are unduly burdensome, this Court will modify them as explained infra...."
Jeffrey Nestler Publishes Article Advocating Recognition of Journalist's Privilege
Jeffrey Nestler has published "The Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist's Privilege" in volume 154 of the University of Pennsylvania Law Review. Here is the abstract.
This article argues that the Supreme Court, under the power granted it by Federal Rule of Evidence 501, should recognize an evidentiary privilege allowing journalists to refuse to divulge confidential information. It explores the theoretical underpinnings (and potential differences) of the First Amendment's Press and Speech Clauses to conclude that the notion of a journalist's privilege has constitutional support. After tracing the rise of the press as an institution-and the rise of journalism as a profession-over the course of American history, it explains why no privilege existed for journalists at common law, especially when Blackstone wrote his Commentaries and when Wigmore penned his famous Treatise.
Next, the article makes the case that the role of the journalist in today's society - serving as an important check on the increasingly centralized power of government - creates a more compelling justification for a journalist's privilege than perhaps at earlier times in our nation's history. The number of subpoenas issued to news organizations (and the number of reporters being held in contempt) is rapidly increasing, and the relationship between the government and the press is becoming more adversarial. In addition, reporters are often unable to guarantee confidentiality to their sources due to the widely varying levels of protection in different states and circuits and uncertainties about the forum in which they might be subpoenaed.
The article then examines the protections journalists are afforded in various venues. Internationally, most of America's fellow common law countries have recognized privileges for journalists. Forty-nine states and the District of Columbia have created protections for journalists, either legislatively or judicially. Congress has also introduced legislation to this end on numerous occasions. The primary obstacle to federal recognition of the privilege is the 1972 case of Branzburg v. Hayes, in which the Supreme Court, by a 5-4 vote (and a very telling concurrence by Justice Powell), held that journalists were entitled to no such privilege and were required to give testimony to a grand jury. Though the circuit courts of appeal that have been presented with the issue vary widely in their interpretation of Branzburg, most have noted that the common law has evolved significantly since Branzburg's time, and that it is the province of the Supreme Court, if it so desires, to distinguish its prior precedent and recognize a journalist's privilege under Rule 501.
In the final section, the article looks to Congress' intent in enacting Federal Rule of Evidence 501 and analyzes the Supreme Court's use of the Rule to create a federal psychotherapist-patient privilege in Jaffee v. Redmond (1996). The article concludes that the reasons for recognition of a journalist's privilege are stronger than those supporting a psychotherapist-patient privilege: the former is rooted in the Constitution, serves a more important role in our system of government, and has received significantly more support from courts and legislatures at the state, federal, and international levels. Therefore, the Supreme Court should use its prerogative to recognize a privilege for journalists to refuse to give evidence.
Download the article from SSRN here.
October 4, 2005
Julie Hilden on the President's Right to Sue in a Libel Case
Findlaw's Julie Hilden considers the question of whether the President should sue the National Enquirer over its story that he has fallen off the wagon. She suggests he should not, partly because of the difficulty of demonstrating actual malice, and partly because of the dangers inherent in the discovery phase. As former President Clinton learned to his dismay, tort suits are bad news, and filing one can be just as bad as having one filed against you.
Bush Administration Violated Rules, GAO Letter Says
In a letter to Senator Frank Lautenberg and Senator Edward Kennedy, as well as other reports, the Government Accountability Office determined that the Bush Administration failed to follow the law when it paid columnist Armstrong Williams and prepared other materials intened to procure favorable coverage of its education policies, including the No Child Left Behind Act. Read more here in articles in Editor & Publisher and the New York Times.
October 3, 2005
CBC Lockout May Be Over
The Canadian Broadcasting Corporation and the Canadian Media Guild may have reached an agreement. After fifty days, the two organizations came to an understanding early this morning. The wording for the memorandum of agreement still needed to be worked out but spokespersons for both groups appeared hopeful that the lockout would be over soon. Read more here and here at the Canadian Media Guild website.
The message today to CMG members reads in part:
We are very pleased to report that the Canadian Media Guild and CBC management have reached an agreement in principle that will form the basis for a new, fair collective agreement.
We still have work to do. A committee will be formed to write the remaining contract language to form a tentative agreement for ratification.
The next phase of negotiations is to work out a return to work protocol. We’ll get back to you with more details as quickly as we can. Until further notice, picket lines will remain in effect.
Here are some initial highlights of the deal:
• we have a strong commitment to permanent staff as the standard for employment at the CBC.
• We have improved rights for contract and temporary employees.
• Wages will increase by 12.6 percent over the life of the contract to March 31, 2009. There will be full retroactivity for all employees on the payroll prior to the lockout, including contract and temporary employees. There will also be a $1000 signing bonus.
And for the first time for our members in the Northern Service, there will be an interpreters’ premium of $800.00 per year for those who are required to work in more than one language.
We will be meeting the minister of labour Monday morning and will continue the rest of the work for a tentative agreement.
We would like to thank everyone for their resolve and support. We’ll get more details to you as soon as possible.
European Entertainment Industry Not Protecting Itself from Illegal Copying, New Report Says
A newly released report says that more than fifty percent of the new games and other materials released by the European entertainment industry do not have adequate, or indeed in some cases any copyright protection, at all. The report, prepared by Digital Play, says that as a result, consumers simply infringe copyrights as a matter of course. Legal action is costly and ineffective because most individuals do not copy large amounts of protected material. Rather than sue, Digital Play suggests that the industry protect its products from piracy from the beginning. Read a Media Guardian article on the subject here.
Yahoo Launches Digital Library Project
In a massive ebook project that it claims does not compete with Google's library print program, Yahoo has launched the Open Content Alliance. Yahoo is working with the University of California, the University of Toronto and other partners to bring materials in the public domain to the keyboarding masses. Read more here in an article in the Chronicle of Higher Education. Meanwhile, Project Gutenberg, arguably the oldest volunteer etext project on the net devoted to public domain materials, continues to chug along.
October 2, 2005
New Movies For the Media Law Crowd
Capote, the film about the late writer produced by Sony Pictures and starring Philip Seymour Hoffman, opened September 30 in New York and L. A. George Clooney's Good Night and Good Luck, which focuses on Edward R. Murrow's battle with Joseph McCarthy in the early 1950s, opened at this year's Venice Film Festival, winning Clooney and co-writer Grant Heslov the best screenplay award.