November 26, 2005
New York Court of Appeals Rules Community College Senate, Senate Executive Committee Subject to Open Meetings and Open Records Laws
In Perez v. City University of New York, the New York Court of Appeals has ruled that a Community College Senate and its Executive Committee are subject to the state's open meetings and open records law. In this case, student Perez had tried to enter an Executive Committee meeting and to give an Executive Committee member a petition, which the member had refused to accept. As the court pointed out, the committee was not at that time in Executive Session. Perez was the second student denied entrance to a non-executive session within a matter of a few months.
Said the court, "Petitioners initiated an article 78 proceeding, arguing that the College Senate and the Executive Committee were subject to the Open Meetings Law and the Freedom of Information Law. Supreme Court granted the petition, but the Appellate Division reversed, concluding that the Senate was only an advisory body and thus outside the purview of the Open Meetings Law and the Freedom of Information Law. We agree with Supreme Court and now reverse the Appellate Division order and reinstate the judgment of Supreme Court."
The court discussed at length whether the Senate and its committees were "public bodies" for purposes of the law and found that they were. "Here, we are persuaded that the College Senate and its Executive Committee...are exercising a quintessentially governmental function. The College Senate’s organizational structure is set forth in the Governance Charter, which mandates that the Senate conduct business only if a quorum is present and that the Senate and its committees conduct meetings pursuant to Robert’s Rules of Order Newly Revised. The members of the Senate elect representatives to the Committee on Committees, which has sole, non-reviewable authority to select members to the College Senate’s other standing committees, some of which exercise non-reviewable power regarding disciplinary findings and punishments, academic disputes and scholarship awards. The Executive Committee schedules regular and special Senate meetings, determines what is appropriate Senate business, sets the agenda for the Senate meetings and conducts all business between Senate sessions. Key to our conclusion in this case is the record evidence that the College Senate (which includes its Executive Committee) has been charged with a number of the responsibilities delegated by the Legislature to the CUNY Board and that the Senate functions as a proxy for the faculty councils authorized by the CUNY bylaws. The Senate is to recommend policy on all college matters to the Board. The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design, budget and finance; it is represented on all committees established by the College President; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter. Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory. Realistically appraising the Senate’s function, we conclude that the Appellate Division erred in holding that the Senate was only an advisory body (contrast Snyder v Third Department Judicial Screening Committee, 18 AD3d 1100 [3d Dept 2005] [proceedings of Judicial Screening Committee not subject to the Freedom of Information or Open Meetings laws because its role is limited to providing information to appointing authority]). As Supreme Court held, "the college senate and the executive committee thereof constitute integral components of the governance structure of Hostos Community College. The senate and its executive committee perform functions of both advisory and determinative natures which are essential to the operation and administration of the college" (195 Misc 2d 16, 33 [Sup Ct, Bronx Cty 2002])."
Read the entire opinion here.
Guardian Article Says Media Gag Order Originated Over Desire to Maintain UK-US Relations
In an article this week, Richard Norton-Taylor and Michael White of the Guardian say that "[s]enior MPs, Whitehall officials and lawyers were agreed yesterday that Lord Goldsmith had "read the riot act" to the media" over the Daily Mirror's leak of information in a 2004 memo that detailed President Bush's floating of a plan to bomb al-Jazeera headquarters in Qatar. Goldsmith threatened to invoke the Official Secrets Act against Britain's newspapers, which apparently has never been done before. Faced with the possibility of a High Court injunction, the Mirror decided not to publish any more information from the memo. Read more here. Meanwhile, a representative of al-Jazeera has requested a meeting with Prime Minister Tony Blair to discuss the contents of the memo. Read more here.
November 23, 2005
Blair Government Threatens Newspapers After Memo Leaked
The Blair government has threatened the Daily Mirror and other British newspapers with sanctions under the Official Secrets Act and the Contempt of Court Act after the Mirror quoted from a memo leaked to it that relates to discussions British Prime Minister Tony Blair and U. S. President George Bush had over the war in Iraq last year, including the President's suggestion that Al-Jazeera be bombed. The Mirror's editor Richard Wallace responded that the paper had contacted No. 10 Downing Street, the PM's official residence, in advance and received no response. A British civil servant, David Keogh, is accused of leaking the memo to a former employee of former Labour MP Tony Clarke. Mr. Clarke sent the memo back to the Prime Minister's office.
Faced with a gag order, the Mirror has now agreed to comply with the British government's request not to publish any further information from the memo. Read the Daily Mirror's original article discussing the content of the memo here. Read its follow-up article here. Read articles in the Guardian about the gag order, fall-out from the content of the memo, and the arrest of two persons leaking of taking the memo.
November 22, 2005
Ofcom Cites Sky Sports for Broadcasting Episode with "Muslim Wrestler" Character
The UK media regulatory agency Ofcom has found Sky Sports in breach of Rule 2.3 of the Broadcasting Code for showing an episode of the program Late Night Smackdown: The Great American Bash in which a character named "Mohammad Hassan" appeared soon after the July 7 and July 21st London bombings.
"We accept that American professional wrestling comprises of ‘wrestlers’ taking part in contrived feuds and faked brawls, with ongoing storylines and characters. The programme was appropriately scheduled and a clear warning was given. We therefore do not consider that the programme was in breach of the requirements in the Broadcasting Code regarding the protection of children. We also appreciate that the match was broadcast live from the US and that Sky may not have been aware in advance of its precise content, in particular the inclusion of footage from the previous encounter between the two characters (as explained above, Sky had not broadcast the bout itself). However, the broadcast included a fight involving the ‘Mohammed Hassan’ character, whose established act included masked men in combat-style clothing, references to religious practices and the use of emotive language (for example, ‘martyr’, ‘sacrifice’ and ‘infidel’). We are pleased to note that this character has now been withdrawn. However we believe that his inclusion in Sky’s output, given both the current environment and the context in which he appeared, in this type of programme with the use of religious and emotive references linked to militant activity, was a mistake. Rule 2.3 states that, in applying these standards, broadcasters must ensure that material which may cause offence, for example discriminatory treatment, is justified by the context. In this case, given that this was a wrestling match for entertainment we consider that there was not adequate justification. Our concern is heightened by the fact that The Great American Bash was shown so soon after the events in London on 7 and 21 July 2005."
Read the entire ruling here.
Julie Hilden on the Gene Simmons Lawsuit
Should we still allow women (but not men) to sue for defamation on the grounds that they have been "falsely portrayed as unchaste"? A New York trial judge is letting Georgeann Walsh Ward's suit against Gene Simmons of KISS and Viacom to proceed on these grounds. Findlaw's Julie Hilden discusses the problems with the Ward lawsuit as well as the public policy questions it raises in 2005 here.
Thirty State AGs Ask for Anti-Smoking Labels on DVDs
Thirty-two state attorneys general are asking ten movie studios to include anti-smoking labels on all new DVDs sold for private use to discourage young people from taking up smoking. Anti-smoking warnings will be available for theaters soon. The AGs want more assistance from the industry since research seems to continue to show that teens are especially influenced by what they see on the screen. However, a spokesperson for the Motion Picture Association of America (MPAA) pointed out that DVD labels already indicate whether films depict such things as teen smoking. In addition, she noted that movies reflect reality, and in the real world, people continue to smoke. Read more here.
Texas, Electronic Frontier Foundation Sue Sony BMG Over CD Spyware
Texas AG Greg Abbott and the Electronic Frontier Foundation are both suing Sony BMG over its very busy new CDs, which the AG and the EFF allege install spyware at the same time that they play music on purchasers' computers. The Texas lawsuit states that such spyware contravenes Texas' Consumer Protection Against Computer Spyware Act of 2005 (Texas Business and Commerce Code Sec. 48.001 to 48.102 (2005)). Read more here. Read the EFF's complaint, filed in Los Angeles Superior Court.
November 21, 2005
Florida Supreme Court Agrees to Hear Religious Books Sales Tax Exemption Appeal
The Florida Supreme Court has agreed to hear an appeal from the Wiccan Religious Cooperative of Florida, challenging the constitutionality of a Florida statute that exempts it from payment of sales and use tax for Bibles but not for items such as the Satanic Bible. The lower court ruled that Wiccan did not have standing to challenge the law. "In the instant case, Wiccan's constitutional challenge is that, based on the reasoning found in Texas Monthly, the Florida sales tax exemption benefits religion. The parties have stipulated that Wicca is a religion. Therefore, under Wiccan's argument that the tax exemption benefits religion, Wiccan, as a religious organization, benefits from the sales tax exemption. Accordingly, Wiccan fails to have the adverse interest necessary for standing and is not the proper party to assert the instant constitutional challenge." See Wiccan Religious Cooperative of Florida v. Zingale, 898 So. 2d 134 (C.A. Fla., 1st Dist., (2005)). Read more here. The ACLU filed a similar suit on November 16 on behalf of the Phoenix and Dragon Bookstore and the Georgia Library Association. Read more here.
Judge Allows Release of Some Material on Spokane Mayor's City-Owned Computer
In response to a request from the Spokesman-Review, a local paper, Judge Richard Miller ruled that certain material on Spokane, Washington, Mayor James E. West's city-owned laptop could be made public, but other material could not, because it would violate the privacy of third parties. West, who is currently under investigation and faces a recall election on December 6, had fought release of the information. Read more here. West now has more to contend with. A report by an attorney and investigator hired by the Spokane City Council concludes that the Mayor violated state law when he offered a job to a young man he was interested in for sexual reasons. The Mayor denies the charges. Read more here and here.
U.S. v. Conrad Black Indictment
Read the indictment against Conrad Black, the former Hollinger International exec, here.
H.R.H. v. The Mail on Sunday--What's the Law?
Michael Evans discusses the law on either side of the current lawsuit between the Prince of Wales and the Mail on Sunday over the publication of excerpts from his diary. Read more here.
New Ofcom Report Finds Soaps, Reality Shows Have More Offensive Language Than Other Shows on British TV
The UK watchdog agency Ofcom has released a report, Language and Sexual Imagery in Broadcasting: A Contextual Investigation, that maintains that offensive language on British television now starts earlier in the evening than it did a few years ago and instances are more widespread. Further, says the report, viewers believe that soaps, including some daytime dramas, and reality shows are to blame for the increase, even though Ofcom notes that a close examination demonstrated that viewers might be associating violence with offensive language. Read more here.
November 20, 2005
Slate.com's "How to Be a Hot Prof"
Michael Agger notes in Slate.com that those crafty students are still at it--this time in an online site called ratemyprofessors.com. At this site they tell each other--and profs across the country--what they think of teaching style, and clothing style. In the late 1990s a similar site led to claims of defamation. But published prof ratings are nothing new--I remember little printed books that circulated when I was an undergraduate. Based on student surveys of our campus profs (collected who knows how) they sold for a few dollars, and they were also a very "hot" item.
Prince of Wales Sues Mail on Sunday Over Publication of Private Writings
Prince Charles has proceeded with a lawsuit against the Mail on Sunday over its publication of private writings he made concerning his impressions of the 1997 British surrender of Hong Kong to the People's Republic of China. He is alleging violation of copyright and confidentiality. The Mail defends itself by saying that it did nothing illegal in obtaining copies of the Prince's writings, that the writings were eventually intended to be made public, and that they are newsworthy. Read more here.