June 7, 2007
North Carolina Appeals Court Holds That Public Records Act Does Not Apply to Clemency Applications
The North Carolina Court of Appeal has held that the state's public records act does not apply to applications for clemency in News and Observer Publishing Co. v. Easley.
The newspaper had asked the Governor of the state to produce records pertaining to requests for clemency. The court said in its opinion, "With respect to the N&O's request for clemency records, we hold that N.C. Const. art. III, §5(6) carves out a limited area in which the General Assembly may exercise its authority as to clemency. The constitution expressly allows the General Assembly to enact legislation “relative to the manner of applying for pardons.” Id. All other clemency authority rests with the Governor. We have further concluded that this constitutional provision requires that the legislation specifically relate “to the manner of applying for pardons” and, therefore, legislation such as the Public Records Law, which does not specifically reference clemency, cannot be allowed to intrude upon the Governor's clemency authority. We, therefore, uphold the trial court's dismissal of the N&O's lawsuit pursuant to N.C.R. Civ. P. 12(b)(6)....This case does not involve judicial review of the Governor's exercise of clemency power. Instead, the question before the Court is whether the N&O is entitled, under the Public Records Law, to certain clemency records within the possession of the Governor. The answer to that question turns not on a political question, but on the meaning of our constitution's proviso that the Governor's power is subject to legislation “relative to the manner of applying for pardons.” The principle that questions of constitutional and statutory interpretation are within the subject matter jurisdiction of the judiciary is just as well established and fundamental to the operation of our government as the doctrine of separation of powers....Because the outcome of this litigation is governed by the meaning of N.C. Const. art. III, §5(6), we conclude that the judicial branch has authority to resolve this dispute, and we reject Governor Easley's challenge to our subject matter jurisdiction. The trial court, therefore, did not err in denying the Governor's motion to dismiss for lack of subject matter jurisdiction.
More On the Lott Defamation Lawsuit Against Steven Levitt
The Chronicle of Higher Education reports that John Lott has filed a motion for a gag order to prevent leaks of information from documents obtained during discovery as his defamation lawsuit against Steven Levitt, the author of Freakonomics, moves toward an October trial date. According to Mr. Lott and his lawyers, such leaks could damage sales of his new book, Freedomnomics. Read the Chronicle's post here.
June 6, 2007
Advertising Standards Authority Tells Toyota To Pull Prius Ad
The Advertising Standards Authority, the British agency charged with investigating advertising claims complaints, has told Toyota that its ad concerning environmental benefits available to consumers who purchased the hybrid Prius goes too far. Therefore the company must no longer broadcast the ad in its current form. According to the ASA's ruling, "Toyota sent a chart that took an average of the emissions of new cars registered in 2005 and compared that with the emissions of the Prius. The chart showed that, on average, new cars registered in 2005 emitted 172g of CO2 / km, while the Prius emitted 104g / km. They said they had taken the difference of 68g/km and multiplied it by 20,000km, which they considered a reasonable average annual distance travelled by a car. That gave an emissions saving of 1.36 tonnes. The chart also gave emissions figures for individual cars with engines of between 1.2 and 2.2 litres. They said they had chosen 1.8 litres as a threshold of comparison because although the Prius had a 1.5 litre engine, they believed its output was comparable to a 2.0 litre engine. They sent a document that compared the output of the current Prius with the first generation Prius hybrid and the Toyota Allion, which had a 2.0 litre engine. They argued the chart showed that the Toyota Prius emitted one tonne less of CO2 than a range of cars with engines either side of their threshold of comparison and pointed out they had qualified the claim by stating "up to" 1 tonne less to make clear that the emissions saved would not always be as much as 1 tonne. The Broadcast Advertising Clearance Centre (BACC) said they had checked Toyota's evidence with an independent consultant, who had advised it was suitable to show that the Toyota Prius emitted significantly less CO2 than other cars....The ASA noted on-screen text stated that the claim compared the Prius with "an equivalent family vehicle with a diesel engine" and that it made clear calculations were based on an annual driving distance of 20,000km a year. However, we noted that the chart sent by Toyota held data on petrol and diesel cars and that, while the average annual distance driven by private cars in the US was 20,000km, the average for the UK was 13,440km. We noted that the chart drew on UK government data and compared the Prius against a range of cars from different manufacturers, but the document that measured the output of the car was produced inhouse and only compared the Prius against the previous model and another Toyota car. We did not consider that document suitable to establish that the output of the Prius was comparable to all 2.0 litre cars registered in 2005. We noted that none of the cars with 1.5 litre engines featured in the chart emitted 1 tonne more CO2 than the Prius and that less than half of those new cars that had engines of less than 1.8 litres emitted 1 tonne more CO2 than the Prius. We noted that Toyota had qualified the claim by stating "up to one ton less CO2 per year" and that the Prius emitted significantly less CO2 than some other cars with greater engine capacity, but we did not consider their evidence demonstrated that it emitted 1 tonne less than equivalent vehicles with diesel engines or that it took into account the average annual distance driven by private cars in the UK. The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications), 5.2.6 (Environmental claims) and 5.4.6 (Comparative advertising)....The ad should not be broadcast again in the same form." Read the ruling here. Read more about the ad in an article in the Media Guardian here.
June 5, 2007
The Future of Newspapers
Randall Bezanson, University of Iowa College of Law, and Gilbert Cranberg, University of Iowa School of Journalism, have published "Taking Stock of Newspapers and Their Future," in volume 2 of the Florida International Law Review (2007). Here is the abstract.
In this essay, we will touch upon many subjects that are contributing to the changing face of daily newspapers in the United States. We begin with a brief and conclusory definition of editorial freedom in news, the foundation of journalism, and the key to its educational function in the news setting. We will then turn to markets, technology, economics, organization of the news firm, operation of the newsroom, and the changing definition of news. Our purpose is to identify deep changes that are occurring in the nature and institutions of news, changes that will continue to evolve in un-foreseeable but perhaps controllable ways as the Twenty-first Century un-folds.
Download the Essay from SSRN here.
June 4, 2007
Second Circuit Finds New FCC Standard Arbitrary and Capricious
The Second Circuit has ruled that the FCC's new standard regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act because the agency has failed "to articulate a reasoned basis for its change in policy." Fox Television, along with intervenors had challenged a November 2006 FCC order issuing notices of apparent liability.
The court examined the agency's prior applications of the Pacifica decision. "First, there is no question that the FCC has changed its policy. As outlined in detail above, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime.....Agencies are of course free to revise their rules and policies.... Such a change, however, must provide a reasoned analysis for departing from prior precedent.....Accordingly, agency action will be set aside as arbitrary and capricious if the agency fails to provide a reasoned explanation for its decision....Our evaluation of the agency’s reasons for its change in policy is confined to the reasons articulated by the agency itself. occurrence of an expletive is indecent or profane under its rules. For example, although “there is no outright news exemption from our indecency rules,”... the Commission will apparently excuse an expletive when it occurs during a “bona fide news interview,” ...(deferring to CBS’s “plausible characterization” of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane). Certainly viewers (including children) watching the live broadcast of The Early Show were “force[d]...to take the ‘first blow’” of the expletive uttered by the Survivor: Vanuatu contestant. Yet the Commission emphasized during oral argument that its news exception is a broad one and “the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose.” ...[T]he record simply does not support the position that the Commission’s new policy was based on its concern with the public’s mere exposure to this language on the airwaves. The “first blow” theory, therefore, fails to provide the reasoned rationale is disconnected from the actual policy implemented by the Commission....The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme Court’s Pacifica decision. In Pacifica, the Supreme Court justified the FCC’s regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning....The Court rejected the argument that the audience could simply tune-out: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.”.... We cannot accept this argument as a reasoned basis justifying the Commission’s new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful “first blow” for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives."
With regard to the constitutionality of the speech at issue, the court noted that "that in reviewing these numerous constitutional challenges, which were fully briefed to this court and discussed at length during oral argument, we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster....speech covered by the FCC’s indecency policy is fully protected by the First Amendment....With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane."
Finally, the court concluded, "[w]e are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion. Accordingly, we grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion. The stay previously granted by this court is vacated as moot."
Read the entire ruling here. The case is Fox v. Federal Communications Commission, Docket Nos. 06-1760-ag (L), 06-2750-ag (CON), 06-5358-ag (CON).
Journalist Arrested After Dispute in Debate Spin Room
CNN reports that Eric Alterman, a columnist for the Nation, was arrested after he apparently refused requests to leave the debate spin room during the evening's proceedings. He had entered an area set off for a private party. Mr. Alterman says the arrest was the result of a misunderstanding. He says he will attempt to have the charge of criminal trespass dropped. Read more here in a CNN story.