July 1, 2006
The Urge For Local Control
Read New York Times reporter Laura B. Holson's article on the movement among so many local investors to buy back their hometown papers here. She discusses the recent investor-led purchase of the Philadelphia Inquirer and other newspapers, what drives such investments, and whether other investor-led purchases of local papers, like the Los Angeles Times, might be in the offing.
Third Circuit Declines to Issue Stay of Planned FCC Wireless Auction
The Third Circuit has refused to issue a stay of the FCC's auction of Advanced Wireless Services licenses, planned for next month. The court explained its reasoning in Council Tree Communications, Inc. v. FCC (06-2943), finding that the petitioners had not shown that the harm they alleged was likely to occur, and holding that the auction was in the public interest. Read the order in full here.
French Move Toward New Copyright Law
France may be getting a new copyright law soon. Both legislative houses have given an okay to a new bill which would mandate that new music players and their content, such as iPods and iTunes, be compatible with rival players and downloads. The only hurdle left is France's Constitutional Court, which could declare the law unconstitutional before it goes into effect. Read more here in a Washington Post story. Read the text of the proposed law (in French) here.
USA Today Publishes Additional Story on Long Distance Carriers, NSA Cooperation
USA Today has published an additional story following up on its May 11th article asserting that BellSouth, Verizon and AT&T had turned over customer records to the National Security Agency. The paper has revised its description of the program and now says it cannot verify that either BellSouth or Verizon agreed to turn over "bulk" customer records to the NSA. In an accompanying story, USA Today details the work of Congress in examining the NSA database of phone call records.
June 29, 2006
Tenth Circuit Rules That Lower Court May Order Grand Jury Report Released
In In re Special Grand Jury Report 89-2, the Tenth Circuit has ruled that a district court has the authority to order the release of a grand jury report. Members of the media had requested the report's release; the district court had refused, responding, "The Court explained to the Special Grand Jury the detailed requirements of how to submit a report for public view. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view. It is with great regret that the Court has watched the Special Grand Jury fall short of the objectives of its empaneling. The Grand Jury submitted documents that failed the legal requirements for release."
Said the 10th Circuit, "Federal Rule of Criminal Procedure 6(e) prohibits grand jurors, court reporters, government attorneys, and others from disclosing "a matter occurring before the grand jury." The rule contains several exceptions authorizing disclosure to certain government attorneys and other government officials in specified circumstances, and permitting a court to authorize disclosure in other limited circumstances. Appellants were members of a federal grand jury empaneled in 1989 to investigate possible environmental crimes at the Rocky Flats Nuclear Weapons Plant (Rocky Flats) in Colorado. They were discharged on March 24, 1992, on the eve of a plea agreement between the United States Attorney and Rockwell International Corporation (Rockwell), the operator of the facility under contract with the Department of Energy (DOE) from 1975 through 1989. At that time the grand jury submitted to the district court a report of its findings. In January 1993 the district court publicly released a heavily redacted version of the report.
"On August 1, 1996, almost all the members of the grand jury filed with the district court a petition requesting that the secrecy obligation imposed on them by Rule 6(e) be lifted so that they could give an "accurate account" of certain matters that had occurred before the grand jury. Aplt. App. at 8. Later they added requests to release a less redacted version of the report, along with portions of the grand jury transcript and certain sealed filings from this case. They contend that some of this material is not governed by Rule 6(e); that some can be released under the exceptions in Rule 6(e); and that insofar as Rule 6(e) does not authorize disclosure of other material, the district court has inherent power to do so. One of the grand jurors, Appellant Kenneth Peck, has also separately filed a similar petition. The district court denied both petitions, believing that it lacked jurisdiction because the petitions sought only an advisory opinion and therefore did not present a Case or Controversy under Article III of the United States Constitution. Appellants filed two notices of appeal, one by Appellant Peck and one by the others. We have jurisdiction under 28 U.S.C. § 1291.
"On appeal the government contends that Appellants' notices of appeal were untimely because they did not meet the 10-day deadline for appeals in criminal cases, and that the district court lacked jurisdiction because the petitions sought an advisory opinion and Appellants lacked standing. We disagree, holding that the notices of appeal satisfied the time limits for appeals in civil cases and that the district court had jurisdiction. We therefore reverse and remand for further proceedings, providing some guidance to the district court regarding the scope of Rule 6(e). "
The government presented four reasons for treating the case as criminal. The 10th Circuit disagreed. "First, relying on our opinion in Company X, 835 F.2d at 237, it asserts that appeals from grand jury proceedings are "categorically criminal." United States Juris. Mem. Br. at 8. But in Company X we were being asked to review a subpoena from an active grand jury. The appeal now before us, in contrast, will not affect the "investigative and charging function of the grand jury," 835 F.2d at 239, whose activities are to be reviewed. This grand jury was discharged more than 13 years ago, and this case was not filed until more than four years after that discharge. Second, the government notes that the grand jurors are seeking to be released from an obligation imposed on them by a rule of criminal procedure, and that grand jury secrecy protects the proper functioning of the criminal justice system. As described above, we relied on similar reasoning in Jones, noting that proceedings relating to the forfeiture of a criminal bail bond arise "under the criminal laws" and that the provisions relating to forfeiture "are set forth in the Rules of Criminal Procedure." 567 F.2d at 966-67. But we rejected this reasoning when we overruled Jones in Brouillet, 736 F.2d at 1415. Notwithstanding the underlying criminal case and rules, we looked to whether the case was essentially civil....Closely related to this argument is the government's third contention--that it is a rule of criminal procedure, Rule 6(e), that governs the process for seeking disclosure of grand jury materials. This is sufficiently addressed by the preceding paragraph. We add only that this argument is further undercut by Madden, 95 F.3d at 39 n.1, which held that a motion under Fed. R. Crim. P. 41(g) for return of seized property is a civil proceeding. Finally, the government contends that this case encompasses a core grand jury function because Appellants have requested that the district court make referrals for possible prosecution based on what occurred before the grand jury. But this is, at most, a collateral matter. There is no ongoing criminal investigation. The gist of Appellants' petitions is a request for disclosure of documents and permission to speak. We hold that the proceeding below was "essentially a civil proceeding," Brouillet, 736 F.2d at 1415; Rule 4(a) therefore applies; and Appellants' notices of appeal were timely."
The government also challenged the district court's jurisdiction. "The jurisdiction of federal courts is defined and limited by Article III of the Constitution. . . . [T]he judicial power of federal courts is constitutionally restricted to "cases" and "controversies." . . . Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine. Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action....The government raises two arguments why the district court lacked jurisdiction: (1) they endorse the district court's view that resolution of this case calls for only an advisory opinion, and (2) they contend that Appellants lack standing. We address, and reject, each argument in turn. We review jurisdictional questions de novo....[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (internal quotation marks omitted). Thus, "[t]he real value of the judicial pronouncement--what makes it a proper judicial resolution of a 'case or controversy' rather than an advisory opinion--is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff." Hewitt v. Helms, 482 U.S. 755, 761 (1987) (emphasis omitted). In denying Appellants' petitions the district court invoked Article III and stated that "the petitions now before this court and the procedures suggested do not enable this court to go forward to adjudicate and balance the competing interests of grand jury secrecy and the interests of petitioners in public disclosure," and that were the court to do so, "the ultimate result would be nothing more than an advisory opinion of general conclusions and insufficient particularity to protect the petitioners from possible sanctions in criminal or civil proceedings." Aplt. App. Vol. 2 at 373 (Order on Sealed Petitions at 4, March 12, 2004).
"It is not clear to us why the district court felt that resolution of Appellants' petitions would require an advisory opinion. Aside from attorney fees, which are derivative of the other claims, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998) ("An interest in attorney's fees is insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." (internal quotation marks and ellipsis omitted)), the Turley Appellants requested six categories of relief: (1) release of the proffer and transcript from the 1997 hearings; (2) release of the legal arguments and filings from this case; (3) release of identified portions of the grand jury report and transcript relevant to the proffer; (4) findings from the court regarding the allegations of wrongdoing made by Appellants, and possible referral for further investigation; (5) permission for Appellants to discuss their concerns "within the boundaries of the public record," Aplt. App. Vol. 2 at 287 (Petitioners' Statement of Relief at 15, June 23, 2003); and (6) preservation of all grand jury material for possible future investigations. With respect to categories (1) through (3), the Turley Appellants also proposed procedures whereby the court could determine, after appropriate motions and responses from each side, whether portions of these materials should be redacted before release. Appellant Peck likewise requested (1) release from the secrecy obligation, and (2) disclosure of (a) an unredacted version of the grand jury report, (b) his testimony before the magistrate judge, and (c) an affidavit attached to his petition which gives details about certain occurrences before the grand jury. There would be nothing advisory about a decision either granting or denying the requested relief. Either way, the ruling would relate not to a hypothetical set of facts, but to a concrete dispute concerning the parties before it."
The 10th Circuit also found that appellants had standing "to petition to have the secrecy requirement lifted." The court rejected the government's claims of issue preclusion and claim preclusion and remanded the matter to the district court for a decision on the merits. Read the ruling in full here.
Egyptian Court Jails Journalist For Insulting President
An Egyptian court has sentenced editor Ibrahim Eissa to a year in prison for publishing criticism of President Hosni Mubarek in the form of an article that called for Mubarek to be called to account for what the article asserted was the misspending of public money. After Mubarek was re-elected, he pledged to reform the country's libel laws but has yet to do so. Read more here.
June 27, 2006
Administration, Others Continue to Criticize New York Times For Story on Financial Records Program
President Bush has criticized the New York Times for deciding to go ahead with publication of a story in the June 22 New York Times about a secret program through which the administration has been tracking financial transactions that might lead to the funding of terrorist organizations and their activities. For two months the White House, along with other government leaders urged the Times not to publish the story. The administration seems to suggested no other tactics, including legal ones. Critics say the Times may have violated the law by publishing. Last week, the Times, the Wall Street Journal, the Los Angeles Times, and other papers and tv outlets released details of the program. Read another story in the Times itself on the President's reaction to the Times story here (has links to other stories, video). Read Times Executive Editor Bill Kellar's Letter justifying the paper's decision to publish here.
June 26, 2006
California Appellate Court Affirms Denial of Motion to Strike Plaintiff's Missappropriation Case in Playboy Photo Case
A California appeals court has denied Playboy Entertainment Group's request to overturn a lower court's decision not to strike a plaintiff's amended complaint against the company for misappropriation, common law misappropriation, false light, fraud, unjust enrichment, and quantum meruit. PEG claims that the plaintiff's (Jennifer Whitney)'s claims "arise out of Playboy's exercise of its free speech rights on a public issue; (2) Whitney cannot meet her burden of establishing a probability of prevailing...and (3) Playboy is entitled to its attorney fees and costs under Civil Code section 3344."
The appellate court recounted the facts. "In 2001, Whitney was hired by Playboy to dance and serve drinks...Events at the Playboy Mansion were private...Playboy strictly forbade photography, filming, or recording inside the...Mansion....No one was allowed to record events for publication or sale....In preparation for the subject party, Whitney and other models were painted in the gym area... Whitney was openly videotaped while being painted while being painted....She was also given a release form to sign. Whitney did not sign the release and later threw it into a trash can....Playboy subsequently produced two videotapes for sale, entitled "Playboy Mansion Parties, Behind the Scenes," and "Playboy Mansion Parties, Body Painting." Whitney's picture appeared twice on the front cover of one videotape box and and once on the other videotape box. Throughout the videos, she appeared nude and in different stages of having paint applied to her body. The videos also contained scenes of women masturbating, kissing, and undressing each other at a different party, filmed on a different night. Playboy filed a motion to strike...In support...Playboy...attached the deposition of a Playboy employee who stated that on the night of the party, he gave the models, including Whitney, a release to sign, which she did. He stated that the cameraman explained to the models that they were giving Playboy "the right to show you on camera." Playboy also cited Whitney's deposition testimony in which she stated that she "supposed," but was not sure, that the paper she was handed was a release....This appeal followed."
The court analyzed whether Playboy had made a showing on the issues of whether Whitney was a public figure and of whether the matter involved was one of public concern.
"At issue here is whether the videos included conduct in further of the exercise of the constitutional right of petition or the constitutional right of free speech with a public issue or an issue ofpublic interest....Playboy contents that the videos were protected free speech...While Whitney concedes that the videotapes were protected free speech, we agree with her argument that the videos were not created in connection with a public issue or an issue of public interest as required for protection under section 425.16, subdivision (e(4).... Whitney herself was not a public figure or closely connected with those who are well known.... Whitney's agreement to dance at a private party or to be photographed with Mr. Hefner for what she believed was for private use, does not make her a public figure..We disagree with Playboy that Mr. Hefner's activities or parties...involve a topic of widespread public interest....Public interest does not equate with mere curiosity. "
The case is Whitney v. Playboy Entertainment Group, B182230. Read the entire ruling here.
Anita Ramasastry On the MySpace Lawsuit
Read Anita Ramasastry's analysis of a fourteen year old girl's lawsuit against MySpace, apparently for failing to protect her against assault from a nineteen year old's attack. Does the youngster have a case? Or are MySpace, Facebook and similar sites not liable, at least not yet, for face to face encounters that go awry? Congress is considering a bill, the Deleting Online Predators Act, that would address some of the problems presented by "commercial social networking websites [and] chat rooms". Read it here.