Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, October 27, 2006

FCC Chair Kevin J. Martin's Speech to 2006 ABA ADMINISTRATIVE LAW CONFERENCE, WASHINGTON, DC, OCTOBER 26, 2006

Read the text of FCC Chair Kevin J. Martin's speech to the ABA Administrative Law Conference on October 26, 2006 here.

October 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Review of "Death of a President"

The New York Times has a review of the controversial "Death of a President", directed by Gabriel Range, and distributed by Newmarket Films, which opens across the U.S. today.

October 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Supreme Court Vacates Lower Court Order Directing Newspaper To Surrender Computer Hard Drives to Attorney General's Office

The Pennsylvania Supreme Court has vacated a lower court's order to Lancaster Newspapers to surrender some computer hardware, including two computer hard discs, pursuant to a grand jury subpoena. The newspaper "contended...that the subpoena was overbroad because it required production of information that was not relevant to the grand jury investigation, and further, violated its constitutional and statutory rights, since it required production of work product materials protected by the First Amendment Privacy Protect Act, 42 U.S.C. [sec.] 2000aa-2000aa-12, and newspaper source information protected by the First Amendment of the United States Constitution, as well as the Pennsylvania Shield Law, 42 Pa.C.S. [sec.] 5942. The supervising judge denied the motion to quash; however, he directed that the examination of the newspaper hard drives...would be closely limited to permit only the review of historical information concerning internet access and admonished that no document files or other content unrelated to such history were to be viewed or accessed...." Lancaster Newspaper requested a stay pending appeal; the judge issued an order granting the stay, but Lancaster was forced to surrender the computer hard drives. The newspaper complied. Lancaster appealed the judge's order. The grand jury issued additional subpoenas. Lancaster and several employees filed motions to quash, alleging "that the subject matter was not appropriate to a statewide investigating grand jury, because the investigation did not involve organized crime or public corruption, did not implicate conduct within more than one county, and did not require the specialized resources of a statewide body....[T]he newspaper also sought access to document related to the administration of the grand jury, including the sealed notice submitting the underlying investigation...." The supervising judge granted Lancaster Newspaper's petition for access....

"During a subsequent telephone conference with the supervising judge, the Attorney General's office advised that it would not produce Notice 12 [the sealed notice], but rather, would seek appellate review....The next day, Lancaster Newspapers...filed the present submission styled as an emergency application for review in this Court's original appellate jurisdiction....The Attorney General filed a petition for review....This Court issued orders staying the effectiveness of the supervising judge's contempt order [to Lancaster] and requirement of disclosure concerning the content of Notice 12, pending our expedited review. We also granted the request to seal designated filings."

The Court agreed with Lancaster on the merits. "[U]ltimately we agree with Lancaster Newspapers that measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth. In this regard, the analogy made by the newspaper between the computer hard drives and entire media file cabinets appears apt....We find that the supervising judge's approach is not sufficient to address the potential chilling effect referenced by the newspapers, as the unavoidable effect is that the essential "filing cabinets" of the newspapers are transferred to the custody and control of the executive branch of government. While it may be that, given the technologies involved, the method crafted by the supervising judge is the most expedient manner of investigation, a careful balancing of the respective interests involved leads us to the conclusion that this particular method of disclosure is unduly intrusive in the circumstances presented. Notably, part of the reason that the Fourth Amendment is of limited application in the setting of grand jury subpoenas is that the appearance at grand jury proceedings is not regarded as a search or seizure....The extraction by the executive branch of entire "filing cabinets" from a witness and/or subject of investigation, however, tests the limits of credulity in the attempt to maintain the understanding that no search or seizure is involved."

With regard to Lancaster's request for disclosure of the contents of Notice 12, the Court held that its decision in a prior case (In re Investigating Grand Jury of Phildelphia County (Appeal of Washington)), 490 Pa.31(1980) supported Lancaster's position. "We find that the Appeal of Washington decision provides adequate support for Lancaster Newspapers' position....Certainly, a witness or subject will be hampered in the ability to challenge a notice of submission if he lacks any access to the document. Therefore, at least when, in the sound judgment of the supervising, judge (subject to this Court's appellate reviev...), the policy concerns raised by the Attorney General are not implicated in the particular circumstances involved, we find that confidential disclosure is available."

Read the entire opinion here.

October 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 26, 2006

Geoffrey Fieger Appealing Michigan Supreme Court Ruling

Attorney Geoffrey Fieger, a prominent Michigan attorney and former Democratic gubernatorial candidate (1998) is appealing a Michigan Supreme Court opinion that found his remarks directed at a panel of appellate court judges and delivered during a radio show were deserving of a reprimand. After the appellate court overturned a jury verdict for Mr. Fieger's client, he made certain statements about the judges, including that they were "jackasses." Complaints were filed with the Attorney Discipline Board of Michigan. According to the Supreme Court, "[o]n appeal to the ADB...the lead opinion...concluded that MRPC 3.5(c) and MRPC 6.5(a) did not apply to Mr. Fieger's comments because they were made outside the courtroom in a case they regarded as completed. They further observed that, if the rules did apply, then they were in violation of the First Amendment. A second opinion...agreed that Mr. Fieger's comments were protected by the First Amendment, but dissented from t he lead opinion's conclusion that the rules only apply to remarks made within the courtroom. A third opinion, agreeing in part with the second opinion...held that Mr. Fieger's remarks, even though made outside the courtroom, were prohibited by the rules, and that the remarks were not protected by the First Amendment. The sum of all this was that a majority (albeit not the same majority for each issue) concluded that the two rules applied to Mr. Fieger's out-of-court statement, while a different majority concluded that those rules were in violation of the First Amendment." The Michigan Supreme Court agreed to "consider whether the remarks by Mr. Fieger, although uncontestedly discourteous, undignified, and disrespectful, nevertheless did not warrant professional discipline because they were made outside the courtroom and after the Court of Appeals had issued its opinion. We also granted leave to appeal to consider whether the ADB possesses the authority to decided issues of constitutionality and whether the two rules in question are constitutional."

The Court decided among other things that Mr. Fieger made the remarks before the case was completed, allowing lawyers' speech to be more regulated during an on-going case than after all appeals are exhausted; that the rules apply to comments toward the tribunal outside as well as inside the courtroom; that the ADB has no power to declare the rules unconstitutional; and that the rules are not unconstitutionally vague. Read the entire opinion here.

Noting that "[t]he case presents an interesting First Amendment attorney speech issue that has split the lower courts," David Moran, Mr. Fieger's attorney, has kindly provided a copy of the cert petition

October 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Tom Bower on Conrad Black

The Times of London has excerpted Tom Bower's biography of Conrad Black, Conrad and Lady Black, published in the U.S. as Outrageous Fortune: The Rise and Ruin of Conrad and Lady Black, by HarperCollins, here.

October 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Jane Pauley Sues New York Times, DeWitt Publishing

Jane Pauley, formerly a co-host for the Today show, is suing the New York Times and DeWitt Publishing over an interview she says she was deceived into giving to a DeWitt Publishing employee last year. Ms. Pauley says she believed the interview was for a Times news piece. Instead, her remarks appeared in an advertising supplement and her photograph appeared on the cover of the supplement. The Times says Ms. Pauley's assistant was fully informed of the circumstances of the interview. Read more here in a Times article and here in an Associated Press/Hollywood Reporter article.

October 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 25, 2006

Ministry of Defense to ITV News: No More Embedded Reporters

The British Ministry of Defense has told ITV News that it may no longer embed its reporters with British military after that network broadcast footage of injured soldiers. The Ministry claims the network did so without the soldiers' permission and that ITV news has presented an inaccurate picture of the care given to the wounded. ITN, the parent company, responds that the Ministry has not indicated what in ITV's reporting is inaccurate or false. Read more here in the Media Guardian and here in the Times online.

October 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Telefilm Canada To Change Funding Formula

Telefilm Canada, the agency that funds Canadian films, has revamped the way it will distribute monies to home-grown movies. Check the Telefilm Canada website for the new standards, which are different for French and English language films, or read a Globe and Mail article about the changes here.

October 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Man Found Guilty of Murder in Death of Retired New York Times Reporter

A Washington, D. C. jury has found Percey Jordan, Jr., guilty of murder in the death of David E. Rosenbaum, who was attacked near his home on January 6 of this year. Another man, Michael C. Hamlin, Jordan's cousin, pled guilty last month, and testified against him. Rosenbaum was a reporter for the New York Times from 1968 until his retirement in 2005. Read more about the trial here.

October 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Federal Judge Rules That First Amendment Protects Confidential Survey Results

From a UCG press release:

ROCKVILLE, MD, Oct. 19, 2006–In a First Amendment win for journalists, a federal judge has ruled that UCG does not have to disclose the identities of subscribers who responded to a confidential reader survey. The ruling came nearly a year after UCG was subpoenaed for the information as part of a civil lawsuit. The Funeral Consumers Alliance, which filed an anti-trust lawsuit against three public funeral home companies and a casket supplier, last year subpoenaed Funeral Service Insider, a UCG newsletter. The Alliance wanted the names of funeral directors who had responded to a reader survey in 2004, arguing that the survey responses amounted to confessions by funeral directors to having participated in an illegal boycott of third-party casket sellers.

“This is information that nobody is going to give to the press if they’re not promised confidentiality,” said U.S. Magistrate Judge Jillyn K. Schulze, in announcing the decision. “If they don’t think this information is privileged, you don’t get this information. You don’t just hamper the press; you cut the press off in a situation like this.”

UCG refused to produce the identity of the survey participants, because such information constituted protected source information under the First Amendment. Funeral Service Insider guaranteed anonymity to readers who answered the on-line survey.

“When we promise confidentiality to our sources, we keep that promise, even if it means we have to go to court,” said UCG partner Dan Brown.

The Funeral Consumers Alliance sought a judge’s order to compel UCG to turn over the information.

Judge Schulze ruled in favor of UCG after a hearing on Oct. 5 in Greenbelt, Maryland.

She said that Funeral Service Insider could not have gotten the story without the confidential survey.

“This is exactly the kind of investigative reporting an individual reporter could not do,” without using a computer-assisted national survey," she noted. The judge said “the balance weighs so heavily on reporter’s privilege in this case that it’s not even close.”

William L. Webber of Howrey LLP, a Washington, D. C. law firm that represented UCG, said news reporters often win such disputes in civil cases. “The judge correctly concluded that, in this case, the reporter’s qualified privilege under the First Amendment to maintain the confidentiality of news sources had to prevail over the Funeral Consumer Alliance’s professed need for this information in its private antitrust suit,” Webber said.

Founded in 1977, UCG is one of America's leading providers of specialized business-to-business information. It is based in Rockville, Md.

October 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, October 23, 2006

New Studies On Media Ownership Released Today

The Benton Foundation and the Social Science Research Council have released studies on media ownership that are in sharp opposition to the FCC's assumptions, which gave rise to proposed 2003 rules, later tossed out by an appellate court. The studies are available here.

October 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Entertainment Industry Enlists Boy Scouts In Anti-Piracy Campaign

The entertainment industry and the Boy Scouts have joined forces. Boy Scouts can now earn an activity patch for learning about intellectual property. The program is available only in the Los Angeles area right now, but soon will be able available throughout California. Read more here.

October 23, 2006 | Permalink | Comments (0) | TrackBack (0)

YouTube Deletes Thousands of Illegally Posted Files

YouTube has deleted more than 29,000 copyrighted files posted without permission on its site after receiving complaints from Japan's Society for Rights of Authors, Composers and Publishers. YouTube's policy is to remove such files after receiving notice from the rights holders.  Read more here in an AP story.

October 23, 2006 | Permalink | Comments (0) | TrackBack (0)