Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, February 11, 2005

Russian Newspaper Loses Defamation Case

A Russian newspaper owned by Boris Berezovsky has paid up in a defamation case filed by Alfa Bank last summer. Kommersant had published an article in which it suggested that the bank was in financial trouble. As a result, the bank claimed it lost substantial deposits when customers panicked, and it sued in Moscow's Arbitration Court, winning a judgment of the equivalent of more than $11 million. But in protest, in its January 31st issue the paper featured the court's ruling as well as a photograph of the bank's owner shaking hands with Russian President Vladimir Putin. Five of the paper's other eight pages were blank. Observers consider the Kommersant's choice of the photograph, as well as the rest of the content of the issue, an ironic commentary on the state of freedom of the press in Russia today. For more see Neil Buckley, Bank Victory Makes Russian Press Cutting, Financial Times, Feb. 1, 2005. Read Kommersant's original story and followup articles here.  Peter Krug, Professor of Law at the University of Oklahoma Law School, has discussed Russian press law in Civil Defamation Law and the Press in Russia, 13 Cardozo Arts and Entertainment Law Journal, 487 (1995) and 14 Cardozo Arts and Entertainment Law Journal 297 (1996). He is currently researching and writing more on the issue of legal rights in Russia, having recently presented a paper on the subject at the American Association for the Advancement of Slavic Studies in Boston on December 4, 2004.

February 11, 2005 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 10, 2005

Broadcast Indecency Bill Reported Out of Committee

The House Committee on Energy and Commerce has reported out the Broadcast Decency Enforcement Act of 2005 (2005 H.R. 310) to the full House by a 46-2 vote. Representative Fred Upton's bill, co-sponsored by more than 30 other House members, would raise maximum fines to $500,000 per violation for "obscene, indecent, and profane broadcasts". The bill further provides

"Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is further amended by adding at the end (after subparagraph (E) as redesignated by section 2(1) of this Act) the following new subparagraphs:
"(F) In the case of a violation in which the violator is determined by
the Commission under paragraph (1) to have uttered obscene, indecent, or
profane material, the Commission shall take into account, in addition to the
matters described in subparagraph (E), the following factors:

      "(i) With respect to the degree of culpability of the
      violator, the following: "(I) whether the material uttered by the violator was  live or recorded, scripted or unscripted; "(II) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming may contain obscene, indecent, or profane material; "(III) if the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming; "(IV) the size of the viewing or listening audience of the programming; and "(V) whether the programming was part of a children's television program as described in the Commission's children's television programming policy (47 CFR 73.4050(c)).

      "(ii) With respect to the violator's ability to pay, the following: "(I) whether the violator is a company or individual; and "(II) if the violator is a company, the size of the company and the size of the market served.

"(G) A broadcast station licensee or permittee that receives programming
from a network organization, but that is not owned or controlled, or under
common ownership or control with, such network organization, shall not be
subject to a forfeiture penalty under this subsection for broadcasting
obscene, indecent, or profane material, if--"(i) such material was within live or recorded programming provided by the network organization to the licensee or permittee; and "(ii)(I) the programming was recorded or scripted, and the
      licensee or permittee was not given a reasonable opportunity to review
      the programming in advance; or--"(II) the programming was live or unscripted, and the licensee or permittee had no reasonable basis to believe the
      programming would contain obscene, indecent, or profane material.

The Commission shall by rule define the term 'network organization' for
purposes of this subparagraph.".

SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.

Section 503(b)(5) of the Communications Act of 1934
(47 U.S.C. 503(b)(5)) is amended--(1) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively;

      (2) by inserting "(A)" after "(5)";
      (3) by redesignating the second sentence as subparagraph (B);
      (4) in such subparagraph (B) as redesignated--

(A) by striking "The provisions of this paragraph shall not apply,
however," and inserting "The provisions of subparagraph (A) shall not apply
(i)";
(B) by striking "operator, if the person" and inserting "operator, (ii)
if the person";
(C) by striking "or in the case of" and inserting "(iii) in the case
of"; and
(D) by inserting after "that tower" the following: ", or (iv) in the
case of a determination that a person uttered obscene, indecent, or profane
material that was broadcast by a broadcast station licensee or permittee, if
the person is determined to have willfully or intentionally made the
utterance"; and
      (5) by redesignating the last sentence as subparagraph (C).

SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.

Section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) is
amended by adding at the end thereof the following new paragraph:
"(7) In the case of an allegation concerning the utterance of obscene,
indecent, or profane material that is broadcast by a station licensee or
permittee--
      "(A) within 180 days after the date of the receipt of such
      allegation, the Commission shall--
"(i) issue the required notice under paragraph (3) to such licensee or
permittee or the person making such utterance;
"(ii) issue a notice of apparent liability to such licensee or permittee
or person in accordance with paragraph (4); or
"(iii) notify such licensee, permittee, or person in writing, and any
person submitting such allegation in writing or by general publication, that
the Commission has determined not to issue either such notice; and
      "(B) if the Commission issues such notice and such licensee,
      permittee, or person has not paid a penalty or entered into a
      settlement with the Commission, within 270 days after the date of the
      receipt of such allegation, the Commission shall--
"(i) issue an order imposing a forfeiture penalty; or
"(ii) notify such licensee, permittee, or person in writing, and any
person submitting such allegation in writing or by general publication, that
the Commission has determined not to issue either such order.".

SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.

Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further
amended by adding at the end the following new subsection:
"(c) Additional Remedies for Indecent Broadcasting. In any proceeding
under this section in which the Commission determines that any broadcast
station licensee or permittee has broadcast obscene, indecent, or profane
material, the Commission may, in addition to imposing a penalty under this
section, require the licensee or permittee to broadcast public service
announcements that serve the educational and informational needs of
children. Such announcements may be required to reach an audience that is up
to 5 times the size of the audience that is estimated to have been reached
by the obscene, indecent, or profane material, as determined in accordance
with regulations prescribed by the Commission.".

SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.

Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further
amended by adding at the end (after subsection (c) as added by section 6)
the following new subsection:

"(d) Consideration of License Disqualification for Violations of
Indecency Prohibitions. If the Commission issues a notice under paragraph
(3) or (4) of subsection (b) to a broadcast station licensee or permittee
looking toward the imposition of a forfeiture penalty under this Act based
on an allegation that the licensee or permittee broadcast obscene, indecent,
or profane material, and either--

      "(1) such forfeiture penalty has been paid, or
      "(2) a court of competent jurisdiction has ordered payment of
      such forfeiture penalty, and such order has become final,

then the Commission shall, in any subsequent proceeding under section
308(b) or 310(d), take into consideration whether the broadcast of such
material demonstrates a lack of character or other qualifications required
to operate a station.".

SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLATIONS OF INDECENCY
PROHIBITIONS.

Section 309(k) of the Communications Act of 1934 (47 U.S.C. 309(k)) is
amended by adding at the end the following new paragraph:

      "(5) License renewal consideration of violations of indecency
      prohibitions. If the Commission has issued a notice under paragraph
      (3) or (4) of section 503(b) to a broadcast station licensee or
      permittee with respect to a broadcast station looking toward the
      imposition of a forfeiture penalty under this Act based on an
      allegation that such broadcast station broadcast obscene, indecent, or
      profane material, and--
"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final,
    then such violation shall be treated as a serious violation for
    purposes of paragraph (1)(B) of this subsection with respect to the
    renewal of the license or permit for such station.".

SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.

Section 312 of the Communications Act of 1934 (47 U.S.C. 312) is amended
by adding at the end the following new subsection:
"(h) License Revocation for Violations of Indecency Prohibitions.
      "(1) Consequences of multiple violations. If, in each of 3 or
      more proceedings during the term of any broadcast license, the
      Commission issues a notice under paragraph (3) or (4) of section
      503(b) to a broadcast station licensee or permittee with respect to a
      broadcast station looking toward the imposition of a forfeiture
      penalty under this Act based on an allegation that such broadcast
      station broadcast obscene, indecent, or profane material, and in each
      such proceeding either--

"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final, then the Commission shall commence a proceeding under subsection
    (a) of this section to consider whether the Commission should revoke the
    station license or construction permit of that licensee or permittee for
    such station.
      "(2) Preservation of authority. Nothing in this subsection
      shall be construed to limit the authority of the Commission to
      commence a proceeding under subsection (a)."."

February 10, 2005 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 9, 2005

Increased Broadcast Fees in Networks' Future?

With the retirement of Louisiana Congressman Billy Tauzin, some broadcast industry analysts worry that his successor, Texan Joe Barton, may succeed in pushing through a date certain by which analog television transmissions will end. The Hollywood Reporter's Brooks Boliek covers this story succinctly in DTV Fees Looming Again.

February 9, 2005 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 8, 2005

Louisiana Appeals Court Upholds Dismissal of Lawsuit Against Television Station

A Louisiana appeals court has upheld the dismissal of a lawsuit against New Orleans television station WVUE Channel 8 for reporting allegations that the plaintiff, a minister, had been accused of embezzling funds from his church. The court found that the station and its reporter did not state that Reverend Norwood Thompson did not embezzle, merely that he had been so accused. Further, because he was and is a public figure and the matters involved are of public concern, "we find that the speech contained in the WVUE broadcasts was speech that was protected under the First Amendment to the United States Constitution as well as under La. Const. Art. I, ยง  7. Therefore, the allegations in the second amended petition are subject to the provisions of La. C.C.P. art. 971. As discussed above, article 971 provides that a cause of action based on the furtherance of a person's right of free speech is subject to a special motion to strike except when a court has determined that the plaintiff in the action has established a probability of success on the claim. In the instant case, the trial court did not find that Reverend Thompson had established a probability that his claim against WVUE would succeed." The case is Thompson v. Emmis Broadcasting, 2005 La. App. LEXIS 62 (2005).

It's Mardi Gras. From Baton Rouge, Louisiana, laissez les bon temps rouler!

February 8, 2005 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 6, 2005

Sixth Circuit Upholds Dismissal of Ventura Lawsuit Against Cincinnati Enquirer

The U. S. Sixth Circuit has affirmed the dismissal of the extremely messy lawsuit that George Ventura, former attorney for Chiquita Brands International, had filed against the Cincinnati Enquirer, after Ventura was identified as a source for a series of articles published by the Enquirer. Ventura had argued breach of contract, namely that the Enquirer, through its reporters, Michael Gallagher and Cameron McWhirter, had promised him confidentiality in return for assistance in gaining information they used in writing some stories published in the Enquirer which it ran in 1998. "According to the record", Ventura was already identified as a source; indeed Ventura himself told the company he was speaking with Gallagher, "in an apparent effort to convince Chiquita that he was not a confidential source." Reviewing the grant of summary judgment de novo, the Sixth Circuit found no evidence that the newspaper revealed Ventura's identity, no duty owed to Ventura by the Enquirer, and no breach of contract, since public policy "precludes enforcements of agreements to conceal a crime." The information Gallagher obtained with Ventura's help was illegally gained through passwords Ventura provided to the Chiquita Brands International voice mail system. Gallagher pled guilty in 1999 to charges of illegal access and was sentenced to five years probation. He also lost his position with the Enquirer. The Enquirer repudiated the series, and paid Chiquita more than ten million dollars in 1998. In its ruling, the Sixth Circuit also discusses briefly the role of Ohio's shield law. The case is Ventura v. Cincinnati Enquirer, 03-3440 (decided Jan. 28, 2005)(see link above).

February 6, 2005 | Permalink | Comments (0) | TrackBack (0)