September 1, 2006
British TV's Channel 4's Controversial Drama
British TV's Channel 4 is risking controversy with its drama that details the assassination of a sitting US president. "Death of a President" will premiere in Toronto, and will also air on Channel 4. According to a story in the Guardian, the White House would not comment about the ninety minute film. Read more here. CNN features a video clip from Showbiz Tonight about the movie on its homepage today.
August 31, 2006
Second Circuit Affirms District Court in Employee "Speech of Public Concern" Case
The U. S. Second Circuit has affirmed a lower court's ruling that in the case of an attorney who claimed that his demotion and later firing for a statement made in the course of an interview to New York magazine, "the speaker's motive is not dispositive in determining whether speech is on a matter of public concern....that [the employer] has waived the issue of disruption by agreeing not the include it in the jury charge...[and that the employer] cannot benefit from qualified immunity because it would not have been objectively reasonable for him to believe the speech was unprotected and the jury found that he acted with improper retaliatory motive."
Robert Reuland, a Brooklyn district attorney and budding novelist, had given an interview to New York magazine, during the course of which he stated, "Brooklyn is the best place to be a homicide prosecutor" because "[w]e've got more dead bodies per square inch than anyplace else." "On February 22, 2001, after the article was published, Reuland met with First Assistant District Attorney Amy Feinstein, who told him that prominent politicians were outraged over his description of Brooklyn in the article. Reuland explained that he did not mean the statement to be literally true and was merely trying to explain why he enjoyed his job. He offered to write a letter to the editor explaining his remark. Feinstein and Assistant District Attorney Barry Schreiber edited Reuland's draft letter, and Hynes approved it. The letter explained that while the quote was correct: [T]his was not intended to be, nor is it, literally true. In fact Brooklyn's murder rate has declined more that 66 percent during the past decade. Even with the remarkable reduction, the loss of life remains high and still keeps a homicide prosecutor busy--the point of my hyperbolic remark. The letter was published in the April 2, 2001 issue....On March 9, 2001, Reuland met with Hynes, who told him that his remarks were hurtful, because, as District Attorney, Hynes had actually reduced the crime rate. Reuland explained that from his perspective...there was still a great deal of work to be done....Hynes was not satisfied with this explanation and accused Reuland of lying to him and seeking the promotion to the Homicide Bureau simply to sell books. Hynes told Reuland he could either accept transfer to the Orange Zone...or quit. Ultimately, Reuland accepted the demotion. Reuland did not receive positive reviews...while in the Orange Zone. On July 16, 2001, Reuland wrote to Feinstein to request transfer back....Feinstein denied this request...told Reuland she expected his resignation by the end of the day. Reuland sent her his resignation.
"After his termination, Reuland filed suit...claiming adverse employment actions in retaliation for his exercise of his First Amendment right to freedom of speech. Hynes moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and on the basis of qualified immunity.....
"A jury trial was held, at which Hynes testified that he met with Reuland after the New York magazine statement was published because he wanted to know why Reuland would say something that was not supported by statistics. Hynes also testified that he decided to demote Reuland during this meeting because he believed Reuland lied to him....Hynes did not express any concern that, because Reuland's statement...had been untrue, Reuland's credibility would be destroyed and he would no longer be able to function effectively as a prosecutor, as Hynes now contends.
"The jury found that Reuland's statement...was a motivating factor in Hynes's decision to demote him, and that, absent this motivation, Reuland would not have been demoted anyway, because Hynes believed Reuland had lied to him. However, the found that the statement was not a motivating factor in Reuland's termination. The jury also found that, in making the statement, Reuland was not motivated by a desire to address a matter of public concern. On the issue of damages, the jury awarded $30,000 for Reuland's demotion and declined to award punitive damages.
"Both Reuland and Hynes sought entry of judgment in their favor based on the jury's findings of fact. Judge Gleeson held that the jury's finding regarding Reuland's motive was not dispositive....He further held that the jury's finding regarding Hynes's motivation precluded Hynes from showing that the reason for the demotion was disruption, and from demonstrating he was entitled to qualified immunity....Therefore, he entered judgment in favor of Reuland...."
The Second Circuit first discussed Reuland's claim that his speech was protected under the First Amendment. "Because Reuland's statement was...hyperbole, to demonstrate that it is not entitled to First Amendment protection Hynes would have to show that the statement (1) would reasonable have been perceived as an assertion of fact, (2) was false, and (3) was made with knowledge or reckless disregard of its falsity....He has not done so. " With regard to analysis of Reuland's claim that he was dismissed for exercising his free speech rights, the court said, "[t]o determine whether an employee's speech rights have been violated by an adverse employment action, we first apply a two-part test....First, the court determines, as a matter of law, whether the speech relates to a matter of public concern...If so, the adverse action nevertheless does not violate the employee's rights "if the employee's speech is reasonably likely to disrupt the effective functioning of the office, and the employee is fired to prevent this disruption." To prevail...the government must show [under Pickering] that the employee's interest in free speech is outweighed by the employer's interest in avoiding disruption....
"A third aspect...deals with causation. Initially...the employee must show that the speech was a substantial or motivating factor in the adverse action...The burden then shifts to the government to show that "it would have undertaken the same adverse employment action even absent the protected speech." ...Finally..."the employee may still carry the day if he can show that the employer's motivation...was retalilation for the speech itself, rather than for any resulting disruption."
"We first address whether Reuland's statement...constituted a matter of public concern....We hold that the speaker's motive...is not dispositive....[A]lthough Reuland's statement does not fit into the citizen-employee distinction discussed in Connick and NTEU, we cannot conclude the fact that his motivation to sell books means his speech does not address a matter of public concern....We join the majority of circuits in finding that the speaker's motive is not dispositive as to whether an employee's speech relates to a matter of public concern. Therefore, the jury's finding that Reuland was not motivated by a desire to address a matter of public concern does not resolve the issue....Reuland's statement addressed the crime rate in Brooklyn. We have previously held that crime rates are inherently a matter of public concern...."
With regard to the Pickering balance, the court said, "Hynes argues on appeal that he demoted Reuland because Reuland's hyperbolic statement made him untrustworthy...Hynes further contends that this disruption of the effectiveness of the district attorney's office outweighed Reuland's interest in the speech....Although this argument is not without merit, we hold that Hynes has waived the issue...by agreeing not to submit the underlying facts of his disruption claim to the jury."
On the qualified immunity question, the court said, "[w]e address whether it was objectively reasonable for Hynes to believe Reuland's statement to New York magazine was not a matter of public concern, either because it was false or because Reuland's motive in making the statement was to sell books. In finding that hyperbolic speech is protected by the First Amendment, we rely on well-established precedent from the Supreme Court....Therefore, it would not have been reasonable for Hynes to believe that Reuland's statement was not protected because it was untrue....Although it would have been reasonable for Hynes to believe that Reuland's motive would be relevant in determining whether his statement is a matter of public concern, this is not enought. Connick's command to consider the "content, form, and context" of the speech, as well as the Supreme Court's application of that test, would have suggested to any objectively reasonable government official that the speaker's motive is not dispositive....NTEU also suggested that a financial motive does not mean speech is not a matter of public concern....Finally, the fact that nearly every circuit...has found motive is not dispositive should have alerted Hynes that it would not be reasonable to assume otherwise....Next, we consider whether it would have been objectively reasonable for Hynes to believe that he could prevail on the Pickering balance. Because even if the disruption outweighed the employee's speech interest, "the employee may still carry the day...", Hynes would be entitled to qualified immunity on this basis only if a finder of fact determined that he had no retaliatory motive. Hynes has waived this issue....Therefore he cannot now claim qualified immunity.
"Accordingly...we affirm the district court's entry of judgment in favor of Reuland."
The case is Reuland v. Hynes, Docket no. 04-5521-cv, U. S. C. A. (2d. Cir., Aug. 21, 2006).
Read the entire opinion here.
Croatian Journalist Found Guilty of Contempt by ICTY; Fined 20,000 Euros
The International Criminal Tribunal for the Former Yugoslavia has found journalist Josip Jovic guilty of contempt of the Tribunal for publishing in Slobodna Dalmacija excerpts of written testimony of Stjepan Mesic, President of Croatia, before Trial Chamber I, in direct violation of court orders to keep Mesic's testimony secret. The Tribunal has fined Jovic 20,000 Euros. Read a summary of the judgment here.
August 30, 2006
State Department Releases Report on Kenneth Tomlinson, VOA, Radio Free Europe Head
The State Department Office of the Inspector General inquiry into Kenneth Tomlinson's tenure as the person overseeing the Voice of America and Radio Free Europe has been completed. Tomlinson is the former head of the Corporation for Public Broadcasting who left that agency after an intensive investigation into his term there. Read some of the State Department investigation conclusions reported here in a New York Times article. Here is an article from the Washington Post about Tomlinson's departure from the CPB. Here is the Corporation for Public Broadcasting Office of the Inspector General's Report (2005) regarding Tomlinson's tenure at CPB.
August 29, 2006
Technology, Journalism and Reader Access
The New York Times decided to cut its British readers off from an article on the London terror plot "on advice of legal counsel". The Times explanation appears here. The Times had already decided not to print the story in its British edition, but withholding the web version was more difficult, according to Times sources. The paper did it using technology already available to advertisers. A link to the omitted article appears on the webpage identified above.
It Takes a Thief
The BBC's new drama Robin Hood is on hold: someone has filched the master tapes for the series and the production company has no backups. Without backups--no start date for the series, and observers speculate that the thief or thieves may be holding Robin Hood for ransom. Read more here.
August 28, 2006
First Amendment Project Auction Underway
The First Amendment Project is again auctioning off naming rights in various authors' novels. High bidders can have a character named for them in any of nineteen upcoming works by Michael Chabon, Amy Tan, Lemony Snicket, Peter Straub, Nora Roberts, Stephen King, Ayelet Waldman, and other favorite writers. Proceeds go to the FAP, an organization which protects freedom of expression, information and petition. Read more here at the Project's website.
Liability of ISPs for P2P Traffic
Niva Elkin-Koren, University of Haifa Faculty of Law, has published "Making Technology Visible: Liability of Internet Service Providers for Peer-to-Peer Traffic" in volume 9 of the New York Journal of Legislation and Public Policy. Here is the abstract.
The liability of Internet Service Providers (ISPs) for infringing materials posted by their subscribers was highly controversial during the early days of the Internet. The cost of enforcing copyrights increased immensely as mass copying and distribution means became widespread and the volume of infringing materials increased. Copyright holders sought to actively engage ISPs in their efforts to enforce copyright, by making them liable for any infringing material residing on their system. ISPs opted for neutral policies and refused to undertake the role of gatekeepers. The safe harbor regime established by the Digital Millennium Copyright Act (DMCA) in the late 1990's, provided ISPs with a shield that mostly kept them out of copyright wars. The introduction of peer-to-peer networks destabilized the equilibrium achieved under the DMCA and copyright owners are now trying to draw ISPs back into the legal scene, seeking to engage them in addressing peer-to-peer piracy.
When the DMCA was adopted, the growing Internet industry sought to establish itself as a common carrier, withstanding attempts to hold ISPs directly liable for copyright infringements committed by their users. ISPs' stance helped to preserve the decentralized nature of Internet architecture, which was a key to its success in facilitating innovation, business and political deliberation. Yet, peer-to-peer design brings the interests of ISPs and those of copyright holders closely together. Peer-to-peer technology confronted ISPs with a dilemma: it boosted their business, increasing the demand for broadband and upgraded services, but at the same time created a growing burden of limitless bandwidth consumption. No single ISP can entirely eliminate peer-to-peer without risking its market share. Consequently central management of peer-to-peer traffic becomes an attractive option.
The risk involved in central management of online exchanges was one the reasons for exempting ISPs from liability. It was assumed that liability for injurious materials would induce ISPs to monitor online traffic for the purpose of minimizing their legal exposure. Consequently, liability may come at the cost of losing out on the economic and political benefits generated by peer-to-peer networks. Central management of peer-to-peer systems would turn these distributed networks into giant broadcast systems provided by ISPs, and centrally managed through their gates. Potential liability may also boost the emergence of new managing technologies and shape the design of peer-to-peer networks. Thus, liability of ISPs for peer-to-peer infringing traffic could carry long-term consequences for network architecture. The paper explores the ramifications of liability rules for design choices, focusing on the implications of ISP liability for network architecture.
Download the entire paper from SSRN here.
"I Sue You, You Sue Me...."
Lyons Partnership, which owns the Barney the Purple Dinosaur brand, is suing Stuart Frankel, who parodies Barney, on his website http://dustyfeet.com/evil/enemy.html. Now the Electronic Frontier Foundation is stepping up to defend Mr. Frankel. The legal lions have emitted their roars...read more here.
U. S. Journalist Detained in Sudan
Paul Salopek, a Chicago Tribune journalist on assignment for the National Geographic, has been charged with spying by the Sudanese government. The New York Times reports that Salopek was arrested August 6 but the U. S. Embassy only received word of his detention August 17. His interpreter and a driver are also being held. Read more here. Read an appreciation of Salopek's journalism by Tribune colleagues here.
August 27, 2006
Fox Journalists Freed
CNN and other sources are reporting that two journalists working for the Fox network in Gaza, Steve Centanni and Olaf Wiig, have been freed after nearly two weeks of captivity. A group called the Holy Jihad Brigades had claimed responsibility for the kidnapping. Read more on the events leading up to the freeing of the journalists here and here.
Journalist Sentenced to Prison
How Knight-Ridder Disappeared
Read Katharine Seelye's article in today's New York Times on the relatively rapid disappearance of the Knight-Ridder media empire.