Friday, January 5, 2007
While refusing to abandon the innocent construction rule, the Illinois Supreme Court has reversed the finding of an appellate court that statements complained of as defamatory were capable of a "reasonable innocent construction" and has remanded the case to a trial court. In Tuite v. Corbitt, the plaintiff had alleged that in the book Double Deal the defendants had made statements about him that were defamatory per se "because they impute to him criminal wrongoing, a want of integrity as an officer of the court, a want of integrity in the performance of his ethical duties as an attorney, and an inability to perform his professional duties as a criminal defense attorney....Tuite alleged that publication of the statement was wilful and wanton and damaged his reputation as an attorney and as an officer of the court." Tuite also alleged intentional infliction of emotional distress and false light invasion of privacy. The trial court dismissed, and the appellate court affirmed the judgment. One of the appellate judges "disagreed with the majority's conclusion that the statements were subject to a reasonable innocent construction....In Justice Wolfson's view, "[t]he clear message is that Tuite was ready and able to fix the case, that he was paid to fix it, and that he did not deliver, something that should have caused a premature end to his life. It takes more than a `strain' to apply an innocent meaning to the offending words. It takes a gyration of Olympian proportion.'"
The Court analyzed the application of the innocent construction rule. "The innocent construction rule originated in Illinois from obiter dictum....We observed that one of the early justifications for the rule was that it mitigated the harshness of strict liability that existed in defamation law prior to Gertz v. Robert Welch....The strongest rationale for the rule, however, was that it comported with the constitutional interests of free speech and free press and encouraged the robust discussion of daily affairs....The primary criticism of the rule was that courts had a tendency to strain to find an unnatural innocent meaning for a statement when an innocent construction was clearly unreasonable and a defamatory meaning was far more probable...."
The Court considered all of Tuite's arguments in favor of abandoning the innocent construction rule, including that appellate courts misapply it and that it is thus unworkable, but declined to do so. Instead, the Court said, "[T]his court has held that the innocent construction rule advances the constitutional interests of free speech and free press and encourages the robust discussion of daily affairs....The rule applies only to claims of defamation per se, and it is justified due to the presumption of damages....We conclude that the rationale underlying the rule remains valid. Tuite has not established the good cause or compelling reason required for this court to depart from stare decisis."
However, the Court then went on to consider the application of the rule in this case and found it misapplied. Discussing the use of specific words as well as the message of the book as a whole, the Court said, "Defendants maintain that it is reasonable to accept the innocent construction that Tuite was hired on the basis of his legal skills. We disagree. The isolated use of those terms does not control the meaning of the excerpt. The context of the book as a whole significantly colors those terms. Importantly, this book is not about hiring a lawyer or complimenting Tuite's skills as an attorney. The book is a series of stories about corruption, including corruption within the judicial system. It is not reasonable to believe defendants intended to convey a story about Tuite's trial skills given the context of the book as a whole. It is far more reasonable to believe defendants intended to convey a story about corruption.
"Defendants further argue that they explicitly accused other people of criminal misconduct....Tuite, however, was not explicitly accused....Defendants, therefore, contend that the excerpt is capable of a reasonable innocent construction. We agree that Tuite was not explicitly accused....Based on the wording of the excerpt along with the context of the book as a whole, we believe that a reasonable reader would most likely conclude this passage was intended to allude to bribery and corruption of the judicial system....There is simply no basis for a reasonable reader to believe that defendants implicity intended to compliment Tuite's trial skills in the middle of a book about organized crime and corruption."
"Finally, Tuite's false light invasion of privacy claim was based upon the defamatory per se nature of the statements....Because we reverse the dismissal of Tuite's defamation per se claim, it follows that the dismissal of his false light invasion of privacy claim must also be reversed."
Read the entire opinion here.
Thursday, January 4, 2007
The American Bar Association Forum on Communications Law and the Donald E. Biederman Entertainment and Media Law Institute of Southwestern Law School have begun publication of the Journal of International Media & Entertainment Law. The first issue includes an article on the journalist's privilege, an excerpt from Floyd Abrams' book Speaking Freely, an essay on media law and globalization by Richard N. Winfield, and the proceedings of a symposium on practicing entertainment law in a global environment. Issues are available to members of the Forum on Communications Law of the ABA. Non-members can subscribe for a rate of $75 per year; contact the ABA at 321 North Clark Street, Chicago IL 60610-4714 or email firstname.lastname@example.org.
A federal district court has dismissed a plaintiff's claim against Atkins Nutritrionals and the representative of the estate of the late Dr. Robert Atkins that the Atkins Diet caused health problems directly related to his use of the Atkins diet. Jody Gorran had sued for "products liability, negligent misreprentation, and deceptive conduct under Florida law. Gorran conten[ded] that the Diet is dangerous because it calls for a high-fat, high-protien, low-carbohydrate diet that increases the risk of coronary heart disease, diabetes, strokes, and certain types of cancer. He allege[d] that products sold by defendants--books, food products, and nutritional supplements--are "defectives and unreasonably dangerous."" Before going on the diet, Gorran's cholesterol was at 146. After just two months on the Diet it was measured at 230. He continued on the Diet, then experienced "severe chest pain", then had to undergo an angioplasty. He then decided to sue the defendants, deciding that the deterioration in his health was a direct result of his adherence to the Diet. The defendants asked the court to dismiss pursuant to Rule 12(c) of the FRCP, which the judge granted. "Defendants' books and food products are not defective or dangerous products within the meaning of products liability law. Pastrami and cheesecake--large amounts of which Gorran admitted consumed--may present risks, but these are risks of which consumers are aware.The average consumer surely anticipates that these and other high-fat or high-protein foods may increase cholesterol levels and the risk of heart disease. Moreover, the Diet consists of advice and ideas. The concepts may be controversial and the subject of criticism, but they are protected by the First Amendment."
The judge notes that the book "contains a disclaimer on the copyright page, which states that the advice offered in the Book is not intended to be a substitute for the advice and counsel of the dieter's personal physician." Applying Florida products liability law, he states, "...Gorran has not alleged any facts that would lead to the conclusion that the food products sold by defendants were defective as defined by products liability law; there is no allegation that the food products were not in a condition anticipated by the average consumer. The average consumer surely anticipated that a high-fat, high-protein diet would increase both cholesterol levels and the risk of heart disease."
"Gorran's products liability claim is also deficient to the extent it is based on the Book, for the Book is not a "product."...[A] defect in a book's tangible qualities --the cover, pages, and binding--could potentially give rise to a products liability action....The intangible qualities of a book, however--the ideas and expressions--are not products for purposes of products liaiblity law...."
"To state a claim for negligent mispresentation under Florida law, a plaintiff must allege that: (1) the defendant made a misrepresentation of material fact; (2) the defendant was ngeligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and (4) injury resulted to the plaintiff by his justifiable reliance on the misreprentation....Gorran alleges that defendants misrepresented the risks of the Diet....Defendants argue that Gorran has failed to allege that they owed him a duty of care. Gorran responds that the majority of Florida courts do not require a plaintiff to allege a duty of care....Gorran's argument fails....Negligent misrepresentation claims and other actions based on a defendant's allegedly false speech must be reconciled with the First Amendment....Defendants argue that the content in the Book and on the Website is noncommercial speech fully protected under the First Amendment....Gorran...contends that the Book and the Website serve as advertisments....I hold that the Book is noncommercial speech....The Book is not an advertisement...;rather, it is a guide to leading a controlled carbohydrate lifestyle....ANI maintains that the Website content is "purely opinion"....Applying the factors set forth in Proctor and Gamble, I hold that the Website contains both commercial and noncommercial speech. Upon navigating to the Website, the user is taken to a page that prominently displays the ANI "Atkins Advantage" brand name. By clicking on "Products" on the main menu bar, the user has the option to learn about the "superior nutrition and taste" of the Atkins Advantage product line....These aspects...clearly propose commercial transactions....The Website also, however contains a wealth of information on how to follow the Diet and recommendations for optimizing health and nutrition....For the foregoing reasons, defendants' motions for judgment on the pleadings are granted, and the complaint is dismissed in its entirety, with prejudice and costs but without fees."
Read the entire opinion here.
The Iraqi government has launched an investigation into the leaking of the cell phone video of Saddam's execution. Al-Jazeera television had a copy of the video as did various Internet sites. The Iraqi government had banned cell phones from the execution chamber. Read more here.
The Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) has set a deadline of 12:01 Monday for a walkout unless it can come to agreements over compensation for new technologies such as Internet broadcasts for its members, and certain other issues. The union has been in talks with the Canadian Film and Television Production Association for some time without success. Read more in a Globe and Mail story here.