November 4, 2005
Illinois Appellate Court Reverses Trial Court Decision on Closed Hearing Issue
An Illinois appellate court has reversed a lower court's decision in the case of People v. LaGrone, specifically in the matter of allowing the press and the public to attend hearings in which the trial court considered motions to suppress evidence in the case. The defendant had filed "(1) a motion in limine to bar testimony from minors D.F. and M.F. and (2) a motion for leave to file proffers of evidence under seal. Later in February 2005, the intervenors, the Associated Press, The Pantagraph, and the Herald & Review, filed petitions to intervene and for access. In March 2005, defendant filed (1) a motion in limine to bar Hamm's statements to police, (2) a motion in limine to bar certain opinion testimony by lay witnesses, (3) a motion in limine to bar certain hearsay statements of Austin Brown and Christopher Hamm (two of the victims), (4) a motion in limine to bar testimony of Shane Senters, and (5) a motion to seal defendant's motion to bar certain evidence as to his "character attributes." Later in March 2005, defendant filed a motion to close the following proceedings to the public: (1) the hearing on his motion to bar the testimony of D.F. and M.F., (2) the hearing on his motion to bar Hamm's statements, (3) the hearing on his motion to bar evidence as to his character attributes, and (4) the hearing on his motion to bar Austin's and Christopher's statements about him. Later that month, the trial court granted the intervenors' petition to intervene. At the May 2005 hearing on defendant's motion to close proceedings, the only pretrial issues that defendant sought to adjudicate in closed proceedings were (1) the admissibility of four statements made by Christopher and Austin and (2) the admissibility of certain evidence of defendant's character attributes."
After considering these requests, the trial judge ruled, "`It is a matter as to these two issues that I believe would jeopardize the fair trial rights of the defendant in this cause. There has been by way of proffer sufficient evidence presented to me to show me the facts that are going to be argued here. I recognize that these facts--I don't know all of them, myself; I know generally, general information about them, but I don't know everything there is to know about them. I will probably learn some of that during the motion and probably not all of it until the trial takes place. I think that this would jeopardize the selection of a jury. At this point, I see no alternative other than at least for these two motions to have a closed hearing. It is not going to be a practice that will take place on a consistent basis, but in these two instances, it would be appropriate. I know that there is some information that the State[,] at least according to counsel here today[,] has indicated that the State will confess and so I think in relation to the remaining evidence or the remaining matters that will be discussed during the course of these motions, that closure is essential to preserve the higher value of a fair trial of the defendant. For these two motions relating to these very specific issues, I will allow the motion and the matter will be closed, a closed hearing. I will indicate[,] however, that upon selection of the jury, the transcript of this hearing will be released.'"
After considering the relevant case law and constitutional law, the appellate court held the following: "The record of the trial court's remarks shows that the court made the following findings: (1) if the evidence was made public but ruled inadmissible, it would "tend" to present "more than a potential problem" in selecting a jury; (2) the history of publicity related to the case showed that the media was likely to constantly repeat the inadmissible evidence; and (3) the court saw no alternative to closure. We agree with the intervenors that the trial court's specific findings do not constitute a sufficient basis for closure under Press-Enterprise II. As the Court wrote, "[t]he [f]irst [a]mendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant" of his fair-trial right....The trial court's finding that the inadmissible evidence in the hands of the media would "tend" to create "more than a potential problem" selecting a jury is not a fact-specific finding showing a substantial probability that an impartial jury could not be chosen. Nor is it a finding that provides this court with sufficient factual material to conduct a meaningful review of the trial court's decision."
The court continued, "We acknowledge that the trial court made the specific factual finding that in the past, the media had frequently repeated details about this case. Thus, the court was concerned over the possibility that inadmissible evidence would be frequently repeated by the media. However, a speculative concern for how the media will use information should not justify the closure of criminal proceedings. The potential always exists that the media will misuse, misstate, or misconstrue the facts in reporting. A concern that the press will misuse inadmissible information is not sufficient to support a finding that a substantial probability exists that the defendant's fair-trial rights will be impinged. We further agree with the intervenors that the trial court failed to make specific factual findings supporting its conclusion that no alternatives to closure existed. In Press Enterprise I, the Supreme Court concluded that the trial court could not constitutionally close voir dire proceedings because the trial court's order denying access failed to consider whether alternatives were available.... In this case, the trial court made no mention of alternatives to closure other than to state that it saw none. No finding was made as to why another change of venue could not occur or why the information at issue was so prejudicial that impartial jurors could not be chosen through voir dire. The trial court's findings, in addition to being vague and conclusory, fail to address the question that should lie at the heart of a trial court's decision to close a criminal proceeding. That question is not whether the information would taint potential jurors, but whether the circumstances of access would make it so that voir dire could not remedy any taint. Widespread publicity does not necessarily result in widespread knowledge among potential jurors of the facts reported ....Thus, the trial court's factual findings must show that the pretrial publicity would inflame and prejudice the entire community such that even through voir dire, an unbiased jury could not be seated. The trial court's findings in this case did not support that conclusion. Finally, we note that in this case, the trial court had already changed venue, no doubt to provide access to a jury pool from which an impartial jury could be chosen. In such cases, the likelihood that the court would need to conduct proceedings in secret is (or at least should be) dramatically diminished. Thus, under these circumstances, an even greater need exists for the trial court to make specific factual findings as to why closure was warranted."
Read the entire opinion here.
An Argument for Teaching Electronic Media Law
Marvin Ammori, Yale Law School, has published "Another Worthy Tradition: How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine", forthcoming in volume 70 of the Missouri Law Review. Here is the abstract.
This Article argues that there are two traditions in American free speech scholarship that result in two opposing speech doctrines, but that American law students are exposed to only one of them. Of the two traditions, one derives its doctrine from the most significant media in society - such as broadcast, cable, the internet, and other electronic media. The other derives its doctrine from society's more marginal communications media - such as leaflets, pickets, soap-boxes, and burning flags. Yet, for no good historical reason, the doctrine derived from burning flags and other marginal media takes center stage in law school casebooks, while the doctrine derived from significant media is ignored and harshly criticized.
The two speech doctrines are not identical. They would lead to different results in many significant speech controversies, especially those involving speech through current and evolving electronic media. The two doctrines also have different animating concerns. The major concern of the doctrine derived from electronic media is a distrust of government action where the action diminishes the diversity of viewpoints and the wide distribution of speech power. The animating concern of the other doctrine, however, is a distrust of any government action directed at speech.
This Article demonstrates that constitutional and First Amendment case-books and treatises largely ignore electronic media cases even though electronic media are Americans' primary speech media, and even though, in practice, speech doctrine derives from such cases. These books devote very little space to broadcast, cable, the internet, and the telephone, while focusing most of their attention on less significant media like burning flags and soap-boxes. Moreover, in the brief space that these law books devote to electronic media cases, they imply the cases were wrongly decided and they privilege the decisions on insignificant media. In the process, law students' books push one conception of free speech doctrine, derived from marginal media, at the expense of another, derived from society's most widely used media.
Download the entire paper from SSRN here.
November 3, 2005
NBC Universal Starting New Cable Channel Devoted to Crime
It had to happen: if not the "Columbo Channel", then something very similar. The Hollywood Reporter says that the Sleuth Channel will start soon in a limited number of homes, courtesy of NBC/Universal and Time/Warner with content provided by Universal's archives, which include "Miami Vice" and "The A-Team", though not "Law & Order", which seems to be getting enough exposure on other cable channels. Read more here (subscription may be required). Still, if Sleuth takes off, it should provide even more inspiration for those of us inclined to integrate media in our media law.
Lance Armstrong Wins Cybersquatting Case
In a cybersquatting case, an arbitration panel of the World Intellectual Property Organization (WIPO) has found in favor of cyclist Lance Armstrong and against a California company, CSA Marketing, which began offering rival "Livestrong" bracelets last year through domain names it claimed in 2004 and websites it then set up. Armstrong's Foundation promotes cancer awareness and cancer prevention and sells the bracelets and other merchandise directly and through third parties to fund its programs. The arbitration panel agreed with Armstrong, holding that CSA's activities amounted to "opportunistic and abusive conduct...". Read more here.
November 2, 2005
Lords Criticize New Government Plans For BBC Oversight
The House of Lords Committee examining the British government's new plans for BBC governance has criticized them as "confusing" and "misguided", according to media reports. The Committee also says the plans insufficiently protect the BBC's independence. The BBC has been re-examining its policies and procedures for some time. Read more here, here, and here.
November 1, 2005
Controversy Continues Over Press Payments to British Inmates
The Media Guardian reports that complaints continue to surface over the UK prison system's refusal to allow inmates to collect payments for writings they do while incarcerated. Read more here.
Artist, University of Alabama In Court Over Use of Images
Daniel Moore is known for his paintings of University of Alabama football, which are particularly lifelike. The University thinks they are entirely too lifelike and is suing him for trademark infringement. Moore is now countersuing for violation of the Visual Artists Rights Act (17 USC Sec. 106A). He also claims the protections of free speech and freedom of the press under the First Amendment. The issue is now in federal court. Hear an NPR story and see some of Moore's art here.
October 31, 2005
The NBA and Tattoo Advertising
John Vukelj, Cornell University School of Law, has published "Post No Bills: Can the NBA Prohibit Its Players From Wearing Tattoo Advertisements?" in the 2005 volume of the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
Professional boxers have been using tattoo advertising to make extra money for several years, notwithstanding considerable opposition from boxing regulators and television broadcasters. Certain National Basketball Association (NBA) players have proposed wearing tattoo advertisements during televised games as well - picture Allen Iverson with a Twizzlers logo emblazoned across his shoulders - but the NBA insists it will prohibit the practice. In response, the NBA Players Association has stated it believes tattoo advertising is permissible and would likely file a grievance with the National Labor Relations Board (NLRB) if the NBA thwarts a tattoo advertising campaign. This article explores the false advertising, first amendment, and labor law implications of the NBA's stated prohibition of tattoo advertising on players.
Download the entire paper from SSRN here.
Use of Copyrighted Material on the Internet
Daniel J. Gervais has published "Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing," in In the Public Internet: The Future of Canadian Copyright Law, edited by Michael J. Geist (2005). Here is the abstract.
The Internet has been a catalyst for problems latent within the copyright system. Fundamentally, the question is to determine under what circumstances should a copyright holder have a right to exclude others from using her copyright work on the Internet? This is the topic of this chapter. The underlying hypothesis is that policy analysis concerning copyright has shifted because it is now facing a number of formidable opponents, in most cases for the first time on that scale. Those opponents are other rights, including privacy. Copyright is not or no longer a closed system with exceptions looping back to a set of exclusive rights in which an appropriate equilibrium in the regulation of knowledge creation and dissemination was supposed to be reached. After an analysis of the problems that have emerged in trying to use copyright to exclude use on the Internet, the Chapter suggests possible solutions articulated along three types of use: those that should be free; those that should be licensed collectively (i.e., where the power to exclude is replaced with a remuneration system accompanied by standard conditions) and a small set of uses that can be licensed transactionally. In suggesting a greater role for collective (as opposed to individual) licensing, the paper considers the introduction of an Extended Repertoire System in Canada.
Donwload the entire paper from SSRN here.
AP CEO Supports Federal Shield Law for Reporters
Tom Curley, the Associated Press CEO, told the National Press Club that journalists need a federal shield law to protect their sources. Read more here.