Media Law Prof Blog

Fifth Circuit Dismisses Publication of Private Facts Case Against Newspaper

The Fifth Circuit has dismissed a publication of private facts invasion of privacy case against a newspaper based on the newspaper's newsworthiness defense.

"The San Antonio Express News, a Hearst subsidiary, published an article describing a blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary's lovers by sending them draft Rule 202 petitions (the “202 documents”) naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted's intent to contact the men's wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted's behavior. Additionally, the story revealed details of the Roberts’ domestic life, including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an eight-year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since been tried and convicted on charges of theft related to the allegations in the article."

..."The 202 documents were discovered by Ted's former law partner, Robert West, and introduced in a separate Texas state court dispute between the two of them. During that litigation, Ted and Mary alleged that West copied and removed the 202 documents from their law offices. The state trial court issued a protective order, in the form of a temporary injunction, which sealed the 202 documents and barred the parties from accessing them. Ted and Mary then filed a motion to permanently seal the 202 documents and posted a public notice of their intent, as required by Texas Rule of Civil Procedure 76a. The Express-News intervened to oppose the sealing. The trial court determined that the 202 documents had not been properly sealed and ordered the entire record unsealed. Ted and Mary appealed, and the Texas Court of Appeals reversed. The court held that the 202 documents were not “court records” as defined by Rule 76a and that the first protective order issued by the trial court was therefore valid. The court modified the temporary injunction to prevent release of the information in the 202 documents to the public, as well as to the parties and their agents. Ultimately, therefore, Express-News was denied access to the 202 documents by the Texas Court of Appeals. At this point, the parties’ accounts of the facts diverge. Express-News maintains that it obtained the 202 documents from another source and published the article. Ted and Mary argue that Express-News violated the Texas state court order and used the litigation documents as the primary source for the article. At some point after the publication of the article, Ted and Mary declared bankruptcy. The bankruptcy trustee, John Patrick Lowe, then brought this suit in district court on behalf of the estate seeking damages for public disclosure of private facts and intentional infliction of emotional distress. Lowe invoked diversity jurisdiction pursuant to 28 U.S.C. §1332(a)(1). On January 26, 2006, the district court dismissed both claims with prejudice under Rule 12(b)(6). Lowe appeals the dismissal of only his claim for public disclosure of private facts. "

Reviewing the dismissal de novo, the appellate court stated, "This court decides as a matter of law whether a publicized matter is of legitimate public concern....The test for determining newsworthiness is to be construed broadly, extending beyond “the dissemination of news either in the sense of current events or commentary upon public affairs” to include “information concerning interesting phases of human activity and embrac[ing] all issues about which information is appropriate so that individuals may cope with the exigencies of their period.” The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492....In Cinel, this court held that there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction in facts indicating that a priest, who had been granted immunity, possessed child pornography). While at the time the article was published the Roberts had not yet been charged with any criminal activity, the article did mention the district attorney's response, which at the time was seeming disinterest. Maro Robbins & Joseph S. Stroud, Sex, Lawyers, Secrets at Heart of Sealed Legal Case, San Antonio Express-News, June 13, 2004, at A1. Given the broad interpretation of newsworthiness, particularly with regards to alleged criminal activity, an article describing the use of the legal system by prominent local lawyers in a way that could be described as blackmail is a matter of public concern. In this case, the newsworthiness of the story was enhanced by a discussion regarding the legal ethics of Ted's actions, as well as by commentary from the prosecutor's office about its proposed response.

"Lowe also argues that while the details of the alleged blackmail scheme may be matters of public concern, other details within the article, such as the Roberts’ recent purchase of a house and family details were not matters of public concern and could serve as a basis for liability. The Texas Supreme Court holds that, “While the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.” Star-Telegram, Inc., 915 S.W.2d at 474. Nevertheless, excessive judicial intervention “foreseeably could cause critical information of legitimate public interest to be withheld until it becomes untimely and worthless to an informed public.” ....Lowe contends that, regardless of the newsworthiness of the article, the district court erred in failing to address his allegation that Hearst violated the state court's protective order by using the 202 documents as the source for its article. However, as the district court noted, under both Texas and Fifth Circuit precedent, the court may only consider the illegality of Hearst's conduct once Lowe has established a prima facie case. See Star Telegram, Inc., 915 S.W.2d at 475 (“Because Star-Telegram's summary judgment evidence negated an essential element of Doe's invasion of privacy cause of action, we do not reach … whether truthful information was lawfully obtained.” (quotation omitted)); see also Ross, 870 F.2d at 275. Even accepting Lowe's allegation that Hearst obtained the information in the article in violation of the court order, there can be no liability for invasion of privacy if the information is a matter of public concern. Lowe is free to seek a contempt charge, see Tex. R. Civ. Pro. 692 (violations of court injunctions punishable by contempt), or allege a cause of action that addresses the source of the information, see Ross, 870 F.2d at 275 (“[T]he discussion leaves open the state's power to protect … privacy by preserving the confidentiality of the state's records, and punishing any who steal the information. Liability for the wrongful taking could encompass damages resulting from the foreseeable publication of the information.”)."

Read the entire opinion here. The case is Lowe v. Hearst Communications, 487 F3d 246 (U. S. C. A., 5th Cir., 2007).

Another Look at the Broadcast Music Case

Stephen Calkins, Wayne State University Law School, retells the Broadcast Music case in one of the chapters in the forthcoming book Antitrust Stories (Foundation Press, edited by Eleanor Fox and Dan Crane). Here is the abstract.

In his chapter in the forthcoming book Antitrust Stories (Foundation Press, Eleanor Fox and Dan Crane editors), Steve Calkins relates the saga that included the landmark Broadcast Music case. It's a great story peopled with colorful characters - and one in which amicii, both in Broadcast Music and in a predecessor case, may have helped cause the litigation to have lasting impact.

Download the entire chapter here from SSRN.

Fox Nixes "Anchorwoman" Reality Series After One Episode

Some said the much hyped reality/comedy series "Anchorwoman", starring actress/model and former Miss New York Lauren Jones as a real-life anchor at third-ranked station in Tyler, Texas was bad news from the start. It came in fourth. CBS' "Power of Ten" took first place in the ratings. Many journalists and some reviewers thought the premise, in which a model with absolutely no journalistic chops would come in to fill the job, was offensive. Others thought it was amusing. Ms. Jones herself misses cues on camera; other station employees ("Ed Murrow is spinning in his grave"). Fox has now canceled "Anchorwoman" after one episode. If you missed it, and really, really want to see the remaining episodes, they're available through the Fox on Demand service on the Fox website.

Daily Mail To Pay Libel Costs to Reinstated Police Officer

The Daily Mail will pay £45,000 in costs to a police officer falsely accused of racism, fired from the force, and eventually rehired. Gurpal Virdi's legal saga has played out over ten years. Last year the Daily Mail agreed to print an apology, which ran yesterday.

"Our article 'Sikh police officer who won hate mail pay out sues again' (22 April 2006), reported that an Employment Tribunal had awarded Gurpal Virdi compensation for racial discrimination following accusations he sent hate mail to colleagues. "We also reported that a later independent inquiry by South Wales police concluded Mr Virdi was behind the race hate campaign. "We have been asked to make clear that the then Commissioner and Deputy Commissioner, Lord Stevens and Sir Ian Blair had already provided Mr Virdi with letters of apology accepting he was not responsible for disseminating racist material and that he was a victim of racial discrimination. "We emphasise that we did not allege that Mr Virdi was guilty of sending racist hate mail and apologise to Mr Virdi and his family if a false impression was given." Read more here in a Media Guardian article.

The "Crisis" Over Public Trust in the BBC

Based on a series of recent scandals, both BBC anchor Jeremy Paxman and former BBC political editor Andrew Marr believe the British public harbor serious doubts about the degree to which it can trust the BBC and its hierarchy. But BBC director general Mark Thompson defends the decades-old institution. Read more here in a Media Guardian article.

Hasselhoff Wins Libel Award From OK! Magazine

Actor David Hasselhoff has won damages and an apology from OK! Magazine over allegations in its July 3 issue that he was "off his face" as the result of drinking in a Los Angeles nightclub earlier this year. The actor, who denied the claims, presented evidence in a London court that he drank only non-alcoholic beverages that night. The magazine admitted that the allegations were false. A leaked tape showing Mr. Hasselhoff in a drunken state had previously circulated widely in the media. As a result, he was forced into a battle for custody with his ex-wife over his teenaged daughters. Read more here in a BBC story.

Sara Sun Beale on the News Media's Effect on Criminal Justice Policy

Sara Sun Beale, Duke University School of Law, has published "The News Media's Influence on Criminal Justice Policy," at 48 William & Mary Law Review 397 (2006). Here is the abstract.

This Article argues that commercial pressures are determining the news media's contemporary treatment of crime and violence, and that the resulting coverage has played a major role in reshaping public opinion, and ultimately, criminal justice policy. The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that frequently override traditional journalistic criteria for newsworthiness. This Article explores local and national television's treatment of crime, where the extent and style of news stories about crime are being adjusted to meet perceived viewer demand and advertising strategies, which frequently emphasize particular demographic groups with a taste for violence. Newspapers also reflect a market-driven reshaping of style and content, resulting in a continuing emphasis on crime stories as a cost-effective means to grab readers' attention. This has all occurred despite more than a decade of sharply falling crime rates.

The Article also explores the accumulating social science evidence that the market-driven treatment of crime in the news media has the potential to skew American public opinion, increasing the support for various punitive policies such as mandatory minimums, longer sentences, and treating juveniles as adults. Through agenda setting and priming, media emphasis increases public concern about crime and makes it a more important criteria in assessing political leaders. Then, once the issue has been highlighted, the media's emphasis increases support for punitive policies, though the mechanisms through which this occurs are less well understood. This Article explores the evidence for the mechanisms of framing, increasing fear of crime, and instilling and reinforcing racial stereotypes and linking race to crime.

Although other factors, including distinctive features of American culture and the American political system, also play a role, this Article argues that the news media are having a significant and little-understood role in increasing support for punitive criminal justice policies. Because the news media is not the only influence on public opinion, this Article also considers how the news media interacts with other factors that shape public opinion regarding the criminal justice system.

Download the entire paper from SSRN here.

Julie Hilden on the TimeWarner Cable v. DirecTV Decision

FindLaw's Julie Hilden critiques the Second Circuit's decision in Time Warner Cable v. DirecTV (2007 U.S. App. LEXIS 18846)(2007)(2007 WL 2263932 (C.A.2 (N.Y.)).

Says Hilden, "The Second Circuit panel's decision required it to interpret the federal Lanham Act's prohibition on false advertising, which encompasses a "false or misleading description of fact, or false or misleading representation of fact….in commercial advertising" pertaining to "the nature, quality [or] characteristics of….another's goods, services or commercial activities." However, because the Constitution trumps federal statutes, the Lanham Act's prohibition must be interpreted in a way that is consistent with the First Amendment. That's true....Nevertheless, the Second Circuit reached two conclusions that are jarringly inconsistent with basic First Amendment principles: First, it held that, rather than making its own independent review of the advertisements at issue, it could properly defer to the district court's interpretations of the advertisements' meaning unless that determination was "clearly erroneous." This makes little sense, however, for a court performing First Amendment review should never check its own independent judgment at the door. To the contrary, the court should conduct its own searching review, as if the meaning of the speech were a question of first impression. Second, while the Second Circuit panel deemed the Simpson commercial "literally false," on the ground that it is "flatly untrue" that DIRECTV provides the "best picture quality" compared to cable, it deemed the Shatner commercial not literally false but simply misleading. Yet it still upheld the district court's decision to enjoin the commercial at a preliminary stage, even before the case had been litigated. This decision, too, is highly problematic from a First Amendment standpoint...."

Read the entire column here. Read the opinion here.

Video Game Laws

Seth Schiesel writes in today's New York Times about the fate of state statutes that block sales or rentals of violent video games to minors. So far, federal judges have ruled all unconstitutional. Read the article here.

BBC Removes Anti-Jesus Comments From Website

The Daily Mail reports that the BBC has removed comments from its website that Jesus was "a bastard" and shunned by his contemporaries after it received numerous complaints that its comments board had been "hijacked by extremists". The Daily Mail also reports the BBC did not remove other comments, such those that were extremely anti-Semitic, for example. Here is the BBC standard for removing comments: "likely to 'disrupt, provoke attack or offend others or ...considered racist, homophobic, sexually explicit or otherwise objectionable'". Read more in a Daily Mail article here.