December 24, 2005
Judge Apologizes for Letters to Boston Herald Publisher
The judge who won a libel judgment against the Boston Herald is back in the headlines. He has been writing to the paper's publisher Patrick Purcell, apparently urging him to drop the appeal, suggesting that the chances of reversal were none, and to pay up, but the letters have been on court stationery. In one letter, Judge Murphy wrote in part: "So, here’s the deal. I’m heading off to St. Maarten, and I’ll be back in town, for business purposes, on Monday, March 7. I will be checking my e-mail while I’m down there. I’d like to meet you at the Union Club on Monday, March 7. (No magic to this date.) (But it needs to be early in that week.) Here’s what will be the price of that meeting. You will have one person with you at the meeting. I suggest, but do not insist, that such a person be a highly honorable and sophisticated lawyer from your insurer. Under NO circumstances should you involve Brown, Rudnick in this meeting. Or notify that firm that such a meeting is to take place. I will have my attorney (either Owen Todd or Howard Cooper) at the meeting. The meeting will be AB-SO-LUTE-LY confidential and “off the record” between four honorable men. You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting." In another he said, "...[Y]ou have ZERO chance of reversing my jury verdict on appeal. Anyone who is counselling you to the contrary . . . . is WRONG. Not 5% . . . . ZERO. "
Now Judge Murphy has apologized to the paper, and he may be investigated by the state Commission on Judicial Conduct.
Meanwhile, his lawyers say the Boston Herald violated confidentiality by publishing the letters. The Herald continues to appeal the verdict.
Thanks to Joel Jacobsen of the blog judgingcrimes.com for alerting me to this new twist on the Murphy-Boston Herald libel story. See his post on it here.
December 23, 2005
Metropolitan Police Must Pay Analyst; Influenced Media Not to Use Him as On-Air Commentator
A British tribunal has ordered the Metropolitan police to pay Charles Shoebridge, a specialist on security and terrorism issues, after it found that the force had improperly influenced networks not to use him on the air. Shoebridge had already sued the police force successfully in 2000 for sex discrimination. He claimed that the force then tried to discredit him by issuing a memo to at least one network, Sky News. The tribunal awarded Shoebridge fifty-two thousand pounds for "lost earnings and injury to his feelings" according to an article in The Guardian. The Met is not planning to appeal. Read more here.
Afghan Journalist To Be Released
An Afghani appellate court has reduced a journalist's sentence and agreed to release him if he apologizes for his writings. Ali Mohaqeq Nasab will have served six months of a two year sentence for, among other things, criticizing laws that did not give women equal rights. The sentence drew condemnation from many civil rights groups in Afghanistan and abroad. Read more here (subscription may be required--free).
December 22, 2005
Senate Sets the Date: February 2009 for All Digital TV Broadcasts
The Senate has set February 17, 2009 as the date by which U. S. broadcasters must begin sending all digital television signals. Cable operators will convert digital signals back to analog for major networks and some of those households which still don't get cable will get some assistance to pay for converter boxes. The February date was a compromise; the House had wanted a December 2008 date and an earlier Senate bill had proposed an April 2009 date. Read more here. Read an earlier post on this issue here.
December 20, 2005
Julie Hilden on TV, the Marketplace of Ideas and Free Speech
Findlaw's Julie Hilden explores how television's new technology promotes free speech and the "marketplace of ideas" here.
BBC Apologizes Over "Unlawful Killing" Story
The British Broadcasting Corporation has apologized to several police officers whom it apparently had implied were in part responsible for the 1999 death of a mentally ill man they had taken into custody and then taken to a hospital. During the course of the BBC's reporting, which was made on a program broadcast in 2000, it did not interview the officers, but also did not name them. A judge found the network liable last year. The BBC is paying damages and legal costs. Read more here.
New UNESCO Convention and Limits on Trade, Expression
NPR has a story about the new treaty on cultural diversity, which some maintain might limit not just the number of US films imported into other countries but might also allow some countries to limit cultural and political expression. Read more analysis by Joost Pauwelyn of Duke Law School here.
December 19, 2005
"Desperate Housewife" Actress Wins Exoneration, Damages in Libel Lawsuit
Teri Hatcher, one of the stars of the ABC series "Desperate Housewives", has won a defamation case against the British tabloid Daily Sport. The paper had printed a story in July saying that Hatcher had used a camper parked outside her L.A. home for a series of assignations with men. It now admits the story was fabricated and it has agreed to pay the actress one hundred thousand pounds in damages. Read more here.
DOJ Files New Charges Against Conrad Black
According to a press release dated December 15, the Department of Justice has filed new charges against Conrad Black, former chair of Hollinger International. They include racketeering, obstruction of justice, wire fraud and money laundering. Read more here. Read the indictment here.
Michael Dorf on Howard Stern's Move to Satellite Radio
Findlaw's Michael C. Dorf writes about Howard Stern's migration to satellite radio here.
Fifth Circuit Affirms Dismissal of Lawsuit Against Texas Board of Education for Refusal to Adopt Textbook
The U. S. Fifth Circuit has upheld a lower court dismissal of a lawsuit against the Texas State Board of Education alleging that its refusal to adopt a textbook violated the plaintiffs' First Amendment rights. The lower court dismissed the case on a 12(b)(6) motion. In its ruling the Fifth Circuit reviewed the lower court's decision de novo.
"Appellants argue that the district court erred in concluding both that Hazelwood does not require the SBOE's decision to be viewpoint-neutral and that the Board's reasons for its decision were "reasonably related to legitimate pedagogical concerns." Appellees argue, however, that the selection and use of textbooks in the public schools is government speech, not a forum, and not subject to the First Amendment rights of either textbook authors or students. Appellees argue, alternatively, that if the district court was correct in applying the Hazelwood framework, the court was correct when it concluded that viewpoint neutrality is not required.
A. The first question we must answer is whether Appellant Chiras alleged a violation of his First Amendment rights as a textbook author by the SBOE when it declined to place his textbook on the conforming or nonconforming list of textbooks for use in public school classrooms. Although the Supreme Court has not answered this question directly, the Court has given us ample guidance to allow us to comfortably answer in the negative.
1. Any discussion of the constitutionality of a state's decision to reject a textbook for its public schools must begin with the recognition that the states enjoy broad discretionary powers in the field of public education. Central among these discretionary powers is the authority to establish public school curricula which accomplishes the states' educational objectives. ...The Supreme Court, therefore, has cautioned that all First Amendment rights accorded to students must be construed "in light of the special characteristics of the school environment," and that the federal judiciary should not "intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." ...The Court's guidance regarding our limited review of the broad authority of the school board over its own policy has been amplified by the Court's recent cases addressing government's authority over its own message. The government undoubtedly has the authority to control its own message when it speaks or advocates a position it believes is in the public interest. ...
Because the Board must necessarily exercise its editorial discretion in selecting which private entities will convey the message the state selects, forum analysis and the viewpoint neutrality requirement are inapposite in this case. As a result, there is no forum to which Appellant Chiras can claim access as a textbook author."
2. Much of the Appellants' claim depends on the argument that the SBOE's decision in this case is subject to the restrictions developed by the Supreme Court in Hazelwood. In Hazelwood, a high school principal removed several pages of a school newspaper containing an article describing student's experience with pregnancy and an article on the impact of divorce on students....The Court found that the school newspaper was a nonpublic forum, established to allow students to express themselves within the context of the school's curriculum and under the supervision of school officials. ..... The Court concluded that regulation by the school was permissible so long as "editorial control over the style and content of student speech in school-sponsored expressive activities is reasonably related to legitimate pedagogical concerns."...Appellants argue that Hazelwood also requires that the editorial control be exercised in a viewpoint-neutral manner....
In order to apply Hazelwood's principles, we would have to find that the SBOE opened its lists of conforming and nonconforming textbooks as a forum, to which textbook authors and publishers might claim a right of access. We have already concluded that the SBOE has not done so, and instead created a program by which the state sets and implements its educational policy. Although the state may utilize private textbook authors, it does so to facilitate transmission of its own approved message, not a message of the authors' choosing. " We note that there is no strong consensus among the circuit courts regarding the application of First Amendment principles to the selection of curricular materials by school boards. However, our conclusion that the selection and use of textbooks in the public school classrooms constitutes government speech, and therefore that Hazelwood does not apply, is consistent with the Ninth Circuit's conclusion in Downs v. Los Angeles Unified Sch. District., 228 F.3d 1003, 1012 (9th Cir. 2000). ...
Because we conclude that the selection of curricular materials by the Board is clearly government speech based on the principles applied by the Supreme Court in Rust, Rosenberger, Forbes, Finley, and ALA, we need not adopt this multi-factor test in order to resolve this dispute. However, we note that the application of the test in this case produces a result consistent with our conclusion. The district court found that the "central purpose," "editorial control," and "ultimate responsibility" factors all weighed in favor of finding that the use and selection of textbooks in public schools constitutes government speech. The district court found that only the "literal speaker" factor weighed in favor of finding that the use of the textbook was the private speech of Chiras. Nonetheless, the district concluded on the basis of this single factor that the speech in the case was not government speech, but rather private speech which bears the imprimatur of the government....
Because we conclude that the Board's selection of textbooks is government speech, Hazelwood does not apply, and there is no forum to which Chiras might assert a right of access under the First Amendment.
B. Our conclusion that the SBOE's selection and use of textbooks in public school classrooms is government speech and not a forum for First Amendment purposes means only that Appellant Chiras may not assert a cognizable right of access to the approved list of textbooks. The conclusion that no forum exists in this case does not necessarily preclude, however, Appellant Rodriguez's asserted right as a student to receive the information in Chiras' textbook from the school. Therefore, the second question we must answer is whether Appellant Rodriguez alleged a violation by the SBOE of her First Amendment rights as a student when it declined to place Chiras' textbook on the conforming or nonconforming lists.Appellants' primary claim to support for a student's right to receive information is the Supreme Court's decision in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). In that case, the Court addressed the decision of a school board to remove certain books it found objectionable from a school library. The Court, in a plurality opinion authored by Justice Brennan, concluded that a student may assert a cognizable right to receive ideas, which restricts the ability of the school to exercise discretion over the materials removed from the school library....However, the Court carefully circumscribed that potential right, acknowledging that the case "does not involve textbooks" and that the Court's conclusion "does not intrude into the classroom, or into the compulsory courses taught there." ...
Because Pico addressed the removal of an optional book from the school library, not the selection of a textbook for use in the classroom, we decline to apply Pico to the facts before us. Even if we were to assume arguendo that the students' right to receive knowledge recognized by Justice Brennan's plurality opinion in Pico controlled our decision in this case, the Board's decision to exclude Chiras' textbook from the conforming and nonconforming lists is firmly within the scope of its discretion. ...
Appellants, however, fail to plead any specific facts which demonstrate that the SBOE's decision was motivated by "narrowly partisan or political" considerations. Although ten of the SBOE members voted against approval of Chiras' textbook, Appellants have identified only three comments by Board members which they allege demonstrate their claims. Moreover, only one of these comments refers specifically to Chiras' textbook. Appellants allege that Appellee McLeroy wrote an article published on the CSE website in which he suggested that the SBOE rejected Chiras' textbook because it was based on a "false premise" and that the textbook's "claim that the root cause of environmental problems is economic growth is simply wrong." While there may be political controversy surrounding environmental issues, Appellants offer no facts to suggest that McLeroy's comments were based on partisan, rather than scientific disagreement. ...
We affirm the district court's judgment dismissing Appellants' First Amendment claims, although we do so on different grounds. First, the selection of textbooks by the state for use in public school classrooms is government speech, and is not subject to the forum analysis of Hazelwood or the viewpoint neutrality requirement. As a result, there is no forum to which Appellant Chiras can claim a right of access. Second, even assuming that public school students possess a cognizable right to receive information, that right does not extend to the selection of textbooks for use in the classroom. Because we conclude that Appellant Chiras has not stated a claim as a textbook author to access the Board's list of approved textbooks and Appellant Rodriguez has not stated a claim as a student to compel the Board to select textbooks of her choosing, we affirm the district court's judgment in favor of Appellees."
The SBOE may permissibly exercise a wide degree of discretion in performing its traditional function of selecting a curriculum which promotes the state's chosen educational policy. In doing so, it will necessarily reject some instructional material to which some students may desire to have access. Nonetheless, where the Board is selecting textbooks for use in the classroom, students have no constitutional right to compel the Board to select materials of their choosing. As a result, Appellant Rodriguez has no cognizable right to compel the Board to place Chiras' textbook on the approved list of textbooks.
Read the entire ruling here.
Legal Realism, Free Speech and Copyright
David McGowan, University of San Diego School of Law, has published "Some Realism About the Free Speech Critique of Copyright" in volume 74 in the Fordham Law Review. It is also available via download from SSRN. Here is the abstract.
This article examines from a legal realist point of view the free speech critique of copyright - a cluster of arguments designed to encourage courts to use free speech principles to limit the length and scope of copyright laws, and to give defendants (especially transformative ones) a boost in infringement litigation. The article points out that the free speech critique needs to treat copyright and infringement suits as state action, and tends to treat users as dependent upon, and potentially oppressed by, rights-holders. Both moves - collapsing the public-private distinction and denying the autonomy of individuals - are legal realist staples. By contrast, however, free speech doctrine cannot work without a clear notion of private action and of individual autonomy. Applied consistently, the critique's premises would disable the doctrines they are designed to invoke. In addition, the critique does not turn its realism on free speech doctrine, which has become highly formal. Though the critique contains some wonderfully creative and erudite arguments, these problems are too much for it to overcome.
More On the DMCA
Bill D. Herman and Oscar Gandy of the University of Pennsylvania have published "Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings," in volume 24, of the Cardozo Arts & Entertainment Law Journal. It is also available through download from SSRN. Here is the abstract.
17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.
Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, obscuring the anticircumvention clause's domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts' ability to exonerate them via the traditional defenses to copyright infringement.
We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law's intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights' interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.
On Protection for "Embryonic Ideas"
Oren Bar-Gill, New York University School of Law, and Gideon Parchomovsky, University of Pennsylvania School of Law, have published "A Marketplace for Ideas?" in volume 84 of the Texas Law Review. It is also available via download from SSRN.
Traditionally, patent protection extended only to full-fledged inventions. In recent years, however, the legal landscape has changed. Patent law is gradually extending its reach to cover "embryonic inventions," and even naked ideas. This Essay has two goals. The first is to present an economic case against extending property rights to embryonic inventions and ideas. Specifically, this Essay argues that property rights in ideas will hinder technological progress. This Essay's second goal is to propose an alternative legal regime that would enhance innovation. To this end, this Essay contemplates the possibility of formalizing a very limited and narrow legal entitlement in ideas in order to establish a marketplace where ideas may be exchanged. After rejecting existing models of property and intellectual property protection as the foundation for a market for ideas, we propose an original market design that could enhance innovation without impoverishing the public domain