January 21, 2006
California Appellate Court Upholds Lower Court Decision in Burkle v. Burkle
A California appellate court has upheld a lower court in the case of Burkle v. Burkle. The proceeding involved the interpretation of California Family Code section 2024.6, which allowed the sealing of "any pleading that lists and provides the location or identifying information of financial assets of the parties." Millionaire Roy Burkle had wanted to prevent his wife's lawyer, and various media, from obtaining information about his assets. Trial court judge Roy Paul had ruled that the statute was not narrowly tailored to achieve the result desired by the Legislature, but he allowed Mr. Burkle time to appeal his February 28, 2005 order. In its January 20, 2006 opinion, the appellate court agrees that on its face the statute violates the First Amendment. Read the decision here.
Why Did ABC Cancel "Welcome To The Neighborhood"?
The New York Times has a follow-up piece on the never-aired ABC reality series "Welcome to the Neighborhood" after people in that Austin, Texas neighborhood showed active opposition to some of the participants, who were openly gay. The piece explores the suggestion that Disney, which owns ABC, wanted to secure support for the soon-to-open "Chronicles of Narnia" among evangelical Christians and may pulled the show, using the protests as cover. Read Jacques Sternberg's article here. Read an earlier post on the show here.
January 20, 2006
Hilden on Hilton
Read Julie Hilden's take on the Paris Hilton defamation lawsuit here.
A Case Only Lawyers Could Love
In a case worthy of Henry Cecil, U. S. District Court Judge Deborah Chasanow dismissed Coppinger v. Schantag, not because the family of the deceased plaintiff requested that the case be dismissed, but because the cause of action did not survive his death.
"This case presents a legal conundrum that will sound absurd to a non-lawyer. Counsel for Plaintiff has filed a notice of voluntary dismissal, reciting that Plaintiff unfortunately died on December 19, 2005, and that the family does not wish to proceed with this action alleging defamation and false light invasion of privacy. While it might seem unnecessarily convoluted, the law does not permit an attorney to file the notice because his agency relationship with Plaintiff ceased on Plaintiff's death. Nor does the filing suffice as a suggestion of death under Fed. R. Civ. P. 25...triggering the 90-day period for substitution. Moreover, Maryland law seems to provide that the causes of action do not survive Plaintiff's death so as to permit substitution of a party under Rule 25. Accordingly, the notice of dismissal is ineffective, but the case will nevertheless be dismissed."
Read her succinct ruling here.
Henry Cecil (Leon)(1902-1976) is the author of wonderful ironic novels such as Fathers in Law, in which an adoptive couple battles to retain custody of its son after a judge fails to order that the natural father be notified of the adoption proceedings, and Brothers in Law (1957) which was made into a popular film with Richard Attenborough, Ian Carmichael and Terry-Thomas.
Texas Court of Appeals Reverses Trial Court in Libel Action Against Publisher
The Texas Court of Appeals, First District, has reversed a lower court in a defamation action against Harvest House Publishers brought by a church which claimed that the publisher had labelled it a cult in the Encyclopedia of Cults and New Religions written by John Weldon and John Ankerberg and published by Harvest House. Harvest House had moved for summary judgment, which the trial court denied. The appeals court ruled that the material complained of was not as a matter of law defamatory.
"...Under the Establishment Clause of the First Amendment, civil courts are prohibited from deciding theological matters, or interpreting religious doctrine, or making matters of religious belief the subject of tort liability...we conclude that being labeled a "cult" is not actionable because the truth or falsity of the statement depends upon one's religious beliefs, a matter which cannot and should not be tried in a court of law.
"...The church contends that some of the conduct mentioned in connection with the characteristics of cults--prostitution, rape, beating, molesting children, drug smuggling, and murder--are facts that can be proven false, and, therefore, are actionable under Milkovich v. Lorain Journal Co...The publisher and authors, however, argue that the characteristics of cults--including the criminal acts that the church contends are provable as false..."cannot reasonably be interpreted to defame every group in the book." In other words, the publisher and authors argue that the second element of a defamation--that a defamatory statement was made concerning the plaintiff--cannot be met. We agree. If a statement does not concern appellants, it cannot defame them, nor can it injure their reputations....Under the group libel doctrine, a plaintiff has no cause of action for a defamatory statement directed to some or less than all of the group when there is nothing to single out the plaintiff.
"...The gist of the church's complaint is that, by calling it a "cult" and including a chapter on it in the book, the publisher and authors have accused it of every "immoral, illegal and despicable action" mentioned in the book. However, as we stated earlier, under the group libel doctrine, a plaintiff has no cause of action for a defamatory statement directed to some or less than all of the group when there is nothing to single out the plaintiff. We have already held that nothing in the book singles out the church as having committed the "immonral, illegal, and despicable" actions alleged in its petition. Simply being included in a group with others who may have committed such "immoral, illegal and despicable" actions does not give rise to a libel claim....Because the allegedly libel statements are not defamatory, as a matter of law, we sustain the publisher and authors' first issue on appeal. Accordingly, we need not address the remaining issues and decline to do so. We reverse the judgment of the trial court and render judgment that the church take nothing from the publisher and authors."
Read the entire ruling here.
Google Rejects White House Info Request
The White House has asked the web's best known search engines for information on what individuals look for when they search the Internet. Yahoo has complied, though it says it did not release any personal information. But Google has not, prompting Attorney General Alberto Gonzales to ask a federal judge to force the company to turn over requested records. Google says it's a matter of privacy, noting that people sometimes input social security numbers or other identifying information. The government says it needs sample records from one week to test the efficacy of laws preventing child access to adult websites. Read more here, here, and here. See the court documents here.
January 19, 2006
District Court Grants in Part, Denies in Part Newspaper's Motion to Dismiss Lawsuit Over Disclosure of Private Facts, Intentional Infliction of Emotional Distress
In Lowe v. Hearst Communications, U. S. District Judge Orlando Garcia granted in part and denied in part the San Antonio Express-News' request to dismiss a complaint brought by a bankruptcy trustee alleging that its article "Sex, lawyers, secrets at heart of sealed legal case" caused emotional distress and invaded the privacy of Ted and Mary Roberts. The Roberts couple "bilked several of Mary's lovers out of tens of thousands of dollars. According to the article, Mary ran a personal ad on the internet seeking "erotic and intellectual" relationships with men. Ted would prepare draft petitions and settlement agreements and present them to Mary's lovers, naming them as potential defendants and threatening them with legal action that would publically expose their affairs with Mary. As many as five men ultimately entered into settlement agreements with Ted to avoid litigation. Ted collected from $ 75,000 to $ 155,000 from the men, according to the article." With regard to the question of invasion of privacy, the court stated that, "Hearst first argues that the Robertses lacked any legally cognizable expectation of privacy in the facts published because they had already distributed the draft petitions, settlement agreements, and e-mails contained in the 202 Documents to their potential legal adversaries. Plaintiff asserts that this argument is an assertion of a defense, not a pleading defect. Plaintiff also argues that, in any event, the "publication" did not extend beyond the Robertses and Mary's paramours -- they were not circulated publically. The tort requires circulation of the private facts to more than a small, closed circle of people. 'Publicity' requires communication to more than a small group of persons; the matter must be communicated to the public at large, such that the matter becomes one of public knowledge. ...The mere fact that the Robertses disclosed these documents to a handful of individuals who had every incentive not to disclose them publicly does not destroy the Robertses' expectation of privacy as a matter of law."
"...If plaintiff's allegations in the present case are true (and the Court must accept them as true for purposes of the present motion) and Hearst obtained the sealed documents in contravention of the sealing order and published them, it has done so "illegally" in the sense that it violated a lawful court order of which it had notice. And plaintiff has stated a potential cause of action for invasion of privacy."
With regard to the IIED claim, the court held that "[e]ven if a cause of action for intentional infliction of emotional distress were available in conjunction with a privacy action involving the same facts, Hearst argues that as a matter of law its conduct was not extreme or outrageous. A review of Texas law confirms that position. Publication of truthful, albeit embarrassing, information has again and again been determinged not to constitute extreme and outrageous conduct....For the reasons set forth above, Hearst's motion to dismiss plaintiff's intentional infliction of emotional distress claim will be granted."
Read the entire ruling here.
Britain's Freedom of Information Legislation: One Year On
Rob Evans of the Guardian has a review of the accomplishments and shortcomings of Britain's Freedom of Information statute after one year. Read more here.
ASA Head Discusses Risks, Challenges of Advertising in Cyberspace
Christopher Graham, the head of the UK's Advertising Standards Authority, acknowledges that regulating advertising in cyberspace is much more difficult than regulating advertising in the "real world." He suggests that self-regulation may be a powerful curb on those he identified as "rogue advertisers"; otherwise the government might step in. Read more here.
January 17, 2006
Product Integration Now a Part of Product Placement
Read about "product integration", the art of including the mention of advertisers' products in the dialogue of a television episode, here. It, like ordinary product placement, is a bone of contention between the Writers Guild of America and various producers and networks.
Guardian Wins Libel Case
Olivier Martinelli, a member of the French National Front party led by Jean-Marie Le Pen, has lost his defamation case against the Guardian and two of its journalists. Martinelli had claimed that a 2002 article in the Guardian had referred to him as a "neo-Nazi". The presiding judge found that "the words in question contain no imputation of any specific wrongdoing against the person targeted", and were not actionable. Read more here.
Teen Journalists Expose Fake Aristocrat
Some high school reporters at Stillwater Area High School in Oak Park Heights, Minnesota, have exposed a "royal" visitor to their school as a complete fake and a convicted sex offender. "Caspian James Crichton-Stuart IV, the Fifth Duke of Cleveland", claimed to be in line to the British throne, and to be 17. Smelling a rat, the budding journalists checked with the British Consulate and with various websites, and discovered that he is Joshua Adam Gardner, 22, who was convicted of having sex with a fourteen year old in 2003. They reported what they found to school administrators, who passed on the information to police. The cops picked Gardner up. He now awaits a hearing on parole violations. Read more here.
January 16, 2006
Texas Court of Appeals Affirms Summary Judgment in Favor of Dallas Morning News
In Humane Society of Dallas v. Dallas Morning News, the Texas Court of Appeals, 5th District has upheld a grant of summary judgment for the newspaper. The paper's columnist Steve Blow had written a column about
"a family's experience after discovering the family's lost dog at an adoption event sponsored by appellant." ..."Appellees filed a motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant's defamation claim because: (1) the column was not defamatory; (2) the column was an opinion protected by the Texas and United States Constitutions; (3) the column was fair comment and criticism protected by Texas statute; (4) the column was true or substantially true; and (5) appellant was a public figure and appellees had negated actual malice. After appellant amended its petition adding claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships, appellees filed a supplemental motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant's additional claims because the column was true, was privileged, and was published without malice. Appellees also asserted, “in the event the trial court denied summary judgment on the elements of falsity, malice and privilege,” that there was no evidence of the elements of appellant's tortious interference claim and the special damage element of the business disparagement claim.
"Appellant responded to appellees' motions, claiming: (1) material statements in the column were false; (2) Blow was malicious; (3) the column was not protected opinion because many statements in it were expressed as facts; (4) appellant is not a public figure; and (5) its summary judgment evidence was sufficient to create fact issues regarding malice, each element of the business disparagement claim, and special damages. After considering the motions, the summary judgment evidence, the objections to summary judgment evidence, and the argument of counsel, the trial court sustained appellees' objections to appellant's summary judgment evidence, denied appellant's objections to appellees' summary judgment evidence, and granted appellees' motions. The trial court did not specify a basis for its ruling on the motions for summary judgment. This appeal followed.
"Although appellant briefed the issue of the truth of the article extensively, the briefing was only in the context of state and federal constitutional protection for statements that are true or substantially true. In its brief, appellant did not address or discuss in any way appellees' ground that appellees are not liable for publication of the article because pursuant to Texas statute, the column was privileged as a fair comment or criticism on a matter of public concern. Even after appellees argued in their brief that the summary judgment should be affirmed because appellant had failed to address this ground, appellant did not address or discuss the privilege in its reply brief. Nor did appellant challenge, within the context of the fair comment or criticism privilege, appellees' assertion that because the column was true, privileged and published without fault, appellant's claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships claims must likewise fail.
"Appellant was entitled to present argument on all grounds upon which it contends summary judgment was improper....However, appellant has not done so. Appellant's failure to take advantage of the opportunity to present argument on this ground results in waiver....Because summary judgment may have been granted, properly or improperly, on a ground not challenged by appellant, we affirm the summary judgment with respect to appellant's defamation claim. ...Likewise, because summary judgment was proper on appellant's defamation claim, its claim for statutory libel must also fail....Further, appellees contended, in their supplemental motion for summary judgment, that they were entitled to judgment on appellant's business disparagement and tortious interference with prospective commercial relationships because the column was true, was privileged, and was published without malice. The fair comment or criticism privilege precludes recovery on these claims because it operates to negate an element of each of the claims.... We overrule appellant's third and fourth issues. Having done so on procedural grounds, we need not address appellant's remaining issues regarding the trial court's evidentiary rulings. Accordingly, we affirm the trial court's judgment."
Read the entire opinion here.
U. S. Military Frees Two Reuters Journalists
The U. S. military has finally freed two Iraqi journalists working for Reuters after imprisoning them for several months at Abu Gharib. Neither man was ever charged. Cameraman Ali al-Mashhadani and reporter Majed Hameed went free along with about 500 other detainees, but a third journalist, Samir Mohammed Noor, remains behind bars. Both Reuters and a number of groups concerned with the rights of the media have criticized the military's repeated arrest of journalists in Iraq. Read more here (from the Guardian), here (from the International Federation of Journalists), and here (from the Committee to Protect Journalists).