February 4, 2005
Washington Supreme Court Upholds Commercial Speech Rights
In Kitsap County v. Mattress Outlet/Kevin Gould, a 5-4 majority of the Washington Supreme Court has upheld the right of a store to advertise its business offsite, finding a county ordinance an unconstitutional restriction of commercial speech. At issue was Kitsap County's ordinance, intended to prevent distractions of drivers and limit "visual blight." "One of Mattress Outlet's advertising techniques is to pay independent contractors, who wear yellow, oversized raincoats that display Mattress Outlet's name, address, and telephone number, to stand on public sidewalks and wave to passersby. Mattress Outlet also sells these raincoats at its stores, along with hats, t-shirts, and other items advertising Mattress Outlet. On October 24, 2001, a Kitsap County Code Enforcement Officer cited Mattress Outlet for using raincoat-clad workers as "an offsite sign without a permit" in violation of KCC 17.445.010 and 17.445.070(C)." The majority examined the county's ordinance under the Central Hudson test and found that it "total ban of offsite advertising under KCC 17.445.070(C) does not reflect any method of narrowly tailoring the restriction to meet the specific goals of increased safety and aesthetics. For example, if traffic safety is a concern, then the county can designate restrictions as to place and time, without completely prohibiting this method of advertising. At a minimum, the county restrictions could be narrowly tailored so as to accommodate the reasonable use of apparel displays. As it is, the offsite advertising ban burdens substantially more speech than is necessary to further the government's interests. The county has failed to demonstrate that a total ban of offsite advertising is a reasonable method of achieving its goals. Therefore, we hold that KCC 17.445.070(C) fails the fourth prong of the Central Hudson test." The dissent, however, contended that the majority misapplied the Central Hudson test to this case.
February 3, 2005
The Defamation Derby
Judge Peter Leisure has denied Dominick Dunne's request for a protective order barring public dissemination of the videotape transcript of his September 2004, deposition in Gary Condit's defamation case against him. Dunne claimed that the transcript would deprive him of his right to a fair trial in the case by prejudicing potential jurors against him. Dunne did not seek to bar dissemination of the written transcript, but argued that the videotape presented him in a poor light, partly because the plaintiff's attorney "bullied" him. After carefully examining the defendant's arguments, and balancing them against the public right to free access to information, Judge Leisure refused to issue the order. He did note however that that "as of now, Dunne's videotaped deposition is not a judicial record giving rise to the common law presumption of a public right of free access" (citing U.S. v. Amodeo, 71 F. 3d 1044 (2d Cir. 1995); U. S. v. Amodeo, 44 F. 3d 141 (2d Cir. 1995)). "Dunne's videotape has not been filed with the Court and is currently, at best, "tangential to the Article III functions of the Court" as its content does not yet affect any judicial decision-making, save being the subject of the instant motion. In re NASDAQ MarketMakers Antitrust Litig., 164 F.R.D. 346, 353 (S.D.N.Y. 1996, Sweet, J.)). The case is 02 Civ. 9910, Opinion and Order, (dated December 15, 2004).
A Kansas convict serving a life sentence for murder and kidnapping is unlikely to prevail on the merits in a defamation claim against a reporter who makes misstatements about him in print, according to the 10th Circuit. In Lamb v. Rizzo, the court upheld the lower court's dismissal of the case based on reporter Tony Rizzo's 12(b)(6) motion. Thomas Lamb had alleged that Rizzo's incorrect statements about him cost him a chance at parole in 2001, but the district court suggested instead that Mr. Lamb's own actions, including repeated escapes, rendered him libel-proof, essentially adopting the position of the defendant. "Because damage to one's own reputation is the heart of a defamation action in Kansas..Mr. Lamb's claims must be dismissed." Although Kansas has not adopted the libel-proof plaintiff doctrine, the district court suggested, and the 10th Circuit agreed, that the Kansas Supreme Court was likely to take that course, should it ultimately hear the case. ""Because we agree with the district court's prediction that the Kansas Supreme Court would adopt the libel-proof plaintiff doctrine and hold that it is a bar to Mr. Lamb's claims, and because the district court did not abuse its discretion in denying Mr. Lamb's motion to alter or amend the judgment, we affirm." The decision includes a good summary of the libel-proof plaintiff doctrine, including citations to law review articles and the doctrine's underlying policy and use.
February 1, 2005
Nevada High Court Strikes Down Son of Sam Law
Another state supreme court has struck down its state's Son of Sam law. Nevada's Supreme Court has ruled its law unconstitutional in Seres v. Lerner, 120 Nev. Adv. Op. No. 95 (Dec. 21, 2004), in which the author of You Got Nothing Coming, Notes from a Prison Fish, challenged NRS 217.007 which allowed the sister of his victim to recover "any monetary proceeds [he] might generate from published materials based upon or substantially related to the offense." Looking to Simon & Schuster (502 U.S. 105 (1991)), the high court determined that "if the proposed expression's contents must be reviewed in order to determine whether the statute applies, then the statute is a content-based restriction on speech." Further, it "places a direct financial burden only on speech with a specified and particular content, that being reference to the felony itself. Because NRS 217.007 is a content-based restriction on speech, the statute must pass a strict scrutiny level of review..." While finding that Nevada had a compelling interest in compensating crime victims for their losses, the court held that the means provided for in the statute to achieve the goal was not narrowly tailored. "...[A]lthough NRS 217.007 does not restrict a felon from engaging in whatever speech or expression he desires, it penalizes that speech based upon its discrete content by seizing all proceeds, regardless of the extent to which the work relates to the crime against the victim. This breadth of content violates Simon & Schuster."
The California Son of Sam statute to which the Nevada court refers in its opinion is back in the news, albeit in a revised form. Sharon Rocha, the mother of Laci Peterson, has gone to court to try to bar Scott Peterson from profiting from any book or movie deals he might obtain, even though he has now been convicted in the deaths of his wife and son Connor. (Susan Heredeen, Rocha Pressing Civil Lawsuit, Modesto Bee, January 25, 2005).
January 31, 2005
Some Reel Law
If you are interested in the image of media law in film, check out movies like The Front Page, first filmed in 1931, and based on the Ben Hecht play. It was remade in 1945 and in 1974, and as His Girl Friday in 1940 with Rosalind Russell in the role of the journalist who simply can't walk away from the big story (in this case an execution) and as Switching Channels with Kathleen Turner in the Rosalind Russell role. It's also been adapted for television. The journalists in The Front Page and its adaptations push the First Amendment to its limits, as do the newspapermen and women in movies like Libeled Lady (1936), a farce featuring Spencer Tracy as a big city editor threatened with a defamation action by socialite Myrna Loy. The People vs. Larry Flynt (1996) dramatizes the well-known Supreme Court case as well as lesser known events in Flynt's life. All the President's Men (1976), based on the Bob Woodward/Carl Bernstein bestseller spotlights the Watergate break-in and the Washington Post's relentless coverage of the resulting coverup. Reckless Disregard (1985) features Leslie Nielsen in a dramatic role as a journalist accused of defaming a physician in the course of reporting a story about drug trafficking. Absence of Malice (1981) centers on a young reporter (Sally Field) who writes a provocative story about a liquor distributor suggesting that he may be involved in the disappearance of a crime figure. The US attorney has used her to leak the information and the distributor (Paul Newman) threatens a lawsuit. The little known Word of Honor (1981) stars Karl Malden as a journalist who promises not to reveal his source for a story in spite of the fact that the defendant may go free. Quiz Show (1994) dramatizes the true story of the scandal surrounding the game show Twenty-One. The wonderful film Roxie Hart (1942) features a down-on-her-luck entertainer (Ginger Rogers) who admits to a murder in order to get some helpful publicity. It was adapted into the musical Chicago and ran for months on Broadway, then was filmed with Renee Zellweger in the Ginger Rogers part and Richard Gere as her lawyer, the very slick Billy Flynn. Gere is quite enjoyable to and others in the Oscar winning film are also good, including Catherine Zeta-Jones as Zellweger's eventual partner Velma Kelly. The amount of pretrial publicity surrounding Roxie's trial would put the current celebrity proceedings in the news to shame and Flynn is eager to chase down even more. Roxie Hart is loosely based on the real trials of Belva Gaertner and Beulah Annan. For more on journalists in popular culture see the website maintained by the Norman Lear Center at the University of Southern California.
January 30, 2005
Mississippi Supreme Court Upholds Cameras in Courtrooms
The Mississippi Supreme Court has ruled 5 to 3 to overturn the decision of a trial judge banning Jackson television station WLBT from coverage of the 2004 sentencing of former Madison County David Richardson. While the majority recognized that the judge was concerned about the defendant's fair trial rights, it held that the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) required that Judge Marcus Gordon provide specific findings of fact supporting his denial of the request to cover the proceeding. Justice Waller, writing for the majority, elaborated, "It is generally better for the courts to limit or terminate coverage as needed than to exclude camera and television coverage altogether. MREPC 3 speaks of ensuring fair administration of justice and protecting the rights of parties and witnesses. These words envision real and substantial rights that are at risk. The learned circuit judge, while expressing concern that things covered in the sentencing hearing "may" impact the companion case--not that there was a probability that such would be the case-stated no specific prejudice. The proper standard for restricting press coverage is that there is a "substantial probability" that the accused will be deprived of a fair trial. In Press-Enterprise II, the Supreme Court rejected the lesser standard of "reasonable likelihood" applied by the California Supreme Court and went on to point out that "the First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right." Press-Enterprise II, 478 U. S. at 14, 106 S. Ct. at 2743. The decision to restrict press access, whether by closing proceedings or by eliminating the use of the tools of the trade must be supported by specific, on the record findings of fact which show in what manner the coverage will cause a party to lose the right to a fair trial. See Hand, 571 So. 2d at 944. Butler, the defendant in the related case, is not, in the words of MREPC 3, a party "in the pending case." The judge did not indicate that Butler's trial is imminent, a circumstance which could be a factor in limiting or restricting coverage if the trial of that case was to take place shortly after the sentencing hearing. Butler sought no opportunity to intervene and raised no objection to having cameras in the courtroom." In re WLBT Inc., Miss., No. 2004-M-02239-SCT, 1/20/05.