Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, October 5, 2007

Inspector General: No Evidence That Research Was Destroyed Or Suppressed

The FCC's Inspector General has released a report indicating that there is no evidence that draft research reports were suppressed or destroyed, as was hinted last year. Senator Barbara Boxer (D-California) and others asked the Inspector General to launch an investigation when concerns over two papers, "Do Local Owners Deliver More Localism", and "Review of the Radio Industry, 2003", surfaced. Here is the FCC's press release.

The Inspector General of the Federal Communications Commission has released a report finding that the evidence did not substantiate allegations that two draft research reports of staff economists in the Commission’s Media Bureau had been suppressed by senior managers at the Commission or that senior managers had ordered one of the reports to be destroyed.  The investigation was directed by Carla Conover, Deputy Assistant Inspector General for Investigations. 

FCC Chairman Kevin J. Martin asked the Inspector General to look into these matters on September 18, 2006.   Senators Barbara Boxer, Byron Dorgan and Ron Wyden, as well as Members of Congress also urged the Inspector General to undertake the thorough investigation requested by Chairman Martin.  In addition, the Senators asked the Inspector General to investigate whether it was, or had been, a pattern or practice of anyone in senior Commission management to suppress similar information.  Based on the extensive and wide-ranging investigation conducted by Ms. Conover and her colleagues, the Inspector General found no evidence that there had ever been a pattern or practice of suppressing research at the Commission.

            The draft papers that were the subject of the allegations were titled “Do Local Owners Deliver More Localism” and “Review of the Radio Industry, 2003” and were made available on the Commission’s website, along with other material collected in response to a related FOIA request, during December 2006.

October 5, 2007 | Permalink | TrackBack (0)

Thursday, October 4, 2007

U. S. District Court Holds that City Manager, as Public Official, Must Show Actual Malice in Defamation Suit Against Newspaper

In Sparks v. Reneau Publishing, the U. S. District Court for the Eastern District of Texas has held that the former city manager for the city of Silsbee, Texas, is a public official for the purposes of his defamation suit against the Silsbee Bee. Mr. Sparks had sued the Bee over articles it printed discussing his conduct in the aftermath of Hurricane Rita. The court found that the newspaper's statements conveyed the substantial gist of discussion about Mr. Sparks' conduct at a council meeting during which the decision was taken to terminate his employment, even though some comments such as “failed to return,” “doesn't come back,” “ran all the way home to Virginia,” “dereliction of duty,” “ordered to return,” and “extended evacuation,” were never said.

The Court began, "This is a libel case. Plaintiff Sparks acted as City Manager for the City of Silsbee, Texas in the late summer and early autumn of 2005. On September 24, 2005, Hurricane Rita struck East Texas, devastating the region. Sparks left Silsbee during a mandatory evacuation on September 22, 2005, choosing to ride out the storm in his native Virginia. Sparks did not return to Silsbee until October 5, 2005. Disappointed with his prolonged absence, after holding a public meeting which featured much criticism of Sparks’ conduct, the City Council unanimously voted to fire Sparks as its City Manager. After his termination, Sparks filed a lawsuit against the City of Silsbee alleging breach of contract, which was ultimately resolved through settlement. The Silsbee Bee, published by Defendant Reneau Publishing, is the local Silsbee newspaper and covered these events. In an October 12, 2005 article titled “Silsbee Council fires city manager,” the paper reported on Sparks’ whereabouts during the evacuation and what occurred at the special public meeting which resulted in Sparks’ termination. The paper chronicled, among other things, that “Dennis Sparks evacuates, doesn't come back” and that Sparks “failed to return following the storm.”...Under Texas law, libel is defined, in relevant part, as (1) a defamation expressed in writing; (2) that tends to injure a living person's reputation; (3) thereby exposing the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue or reputation....In his capacity as City Manager, Sparks is “among the hierarchy of government employees” and wielded “substantial responsibility for or control over the conduct of public affairs.”...Accordingly, Sparks is a public official....For a public official to prevail, he must show that the statements were made with actual malice....

"Truth, of course, is the perfect defense to defamation....The defense of truth “does not require that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.”... Substantial truth means that if a statement has the same effect on the mind of the average reader as a true statement, then it is not false....If the article correctly conveys the story's gist, but relayed certain details incorrectly, the article will be considered substantially true....The October 12, 2005 article in which Sparks was allegedly first defamed described the public city council meeting which resulted in Sparks’ termination. Having read the article, the Court can fairly say that its gist can be summed up as “Sparks was terminated at the end of that meeting for his failure to quickly return to Silsbee following Hurricane Rita.” Defendants produced the minutes of the October 7th City Council session. The minutes show citizens and board members criticizing Sparks for failing to promptly return to the city. At approximately 8:45 p.m., the Council recessed into executive session to consider what action, if any, should be taken regarding Sparks. After the executive session, the Council unanimously voted to terminate Sparks. The minutes reflect Mayor Muckleroy explaining the decision: “It's not that you left, it's that we felt you should have came back a lot sooner and you were told that you were needed. You were in your rights to leave, but time element is our factor. The feelings of Council is that better efforts should have been made by you to help us get on track.”... Factually, the article fairly relays the substantial truth of its subject. Sparks' argument appears to be that the Silsbee Bee unfairly played up his absence as an allegation of cowardice, shirking, abandoning ship, or, in the parlance of our times, “cutting and running.” Sparks argues that the phrases used in the article, such as “failed to return,” “doesn't come back,” “ran all the way home to Virginia,” “dereliction of duty,” “ordered to return,” and “extended evacuation” were never uttered during the meeting, and thus the Silsbee Bee’s reporting of such action was false. Of course, those phrases were not included in the articles as direct quotes from meeting. They merely serve the purpose of informing the public about what happened at the meeting, well within the usual journalistic license needed to articulately describe events. Sparks alleges that the statements blaming Sparks’ termination on his failure to return amounts to a “libelous cover-up that Reneau printed to apparently shield the Mayor for taking over Sparks’ responsibilities” but fails to offer sufficient facts to back up that assertion....The gist of the article is that Sparks was terminated because he failed to promptly return after evacuating the city. The underlying facts corroborate the article's gist as the substantial truth. The other articles Sparks complains of rely on the same basis as the initial article, and thus are equally substantially true."
Ultimately, concluded the Court, "Sparks has failed to raise a genuine issue of material fact regarding the falsity of the statements published by The Silsbee Bee as well as the malice with which those statements were allegedly made. His libel claim must fail, and defendants are entitled to judgment as a matter of law."
The case is Sparks v. Reneau Publishing, 35 Med. L. Rptr 2185, decided Aug. 2, 2007.
See here for an additional post regarding this case.

October 4, 2007 | Permalink | TrackBack (0)

Wednesday, October 3, 2007

GAO Releases Report Critical of FCC

The Governmental Accountability Office has released a report that says that the FCC generally follows established procedures in rulemaking, except when it doesn't. Here's an excerpt.

FCC generally followed the rulemaking process in the four case studies of completed rulemakings that GAO reviewed, but several stakeholders had access to nonpublic information. Specifically, each of the four rulemakings included steps as required by law and opportunities for public participation. Within the case studies, most ex parte filings complied with FCC rules. However, in the case studies and in discussions with other stakeholders that regularly participate in FCC rulemakings, multiple stakeholders generally knew when the commission scheduled votes on proposed rules well before FCC notified the public. FCC rules prohibit disclosing this information outside of FCC. Other stakeholders said that they cannot learn when rules are scheduled for a vote until FCC releases the public meeting agenda, at which time FCC rules prohibit stakeholders from lobbying FCC. As a result, stakeholders with advance information about which rules are scheduled for a vote would know when it is most effective to lobby FCC, while stakeholders without this information would not.

Read the GAO's report, requested by Representative Edward Markey (D-Mass.) more than a year ago, here.

October 3, 2007 | Permalink | TrackBack (0)

PCC Criticizes Newspaper for Breaching Code in Describing Suicide of Local Teacher

The Press Complaints Commission is criticizing a British paper for its coverage of a local man's suicide, pointing to what it considers insensitivity and the possibility of "copycat" deaths. The watchdog agency said that breach of the press code, specifically clause 5, which suggests that reporting on suicides should not include specific details of the death, was breached in this case. The newspaper responded that its article was accurate.

Said the PCC, "The Commission agreed with the complainant that the newspapers had included too much detail in describing how the suicide happened. Inquests are held in public and newspapers are free to report their proceedings, but to abide by the terms of the Code – which sets out standards over and above the legal framework – the papers should on this occasion have been less specific about the method used. By going into such detail, there was a danger that sufficient information was included to spell out to others how to carry out such a suicide. The breach of the Code in this case was an opportunity for the Commission to underline to all editors the importance of taking care over the reporting of suicide. The complaint was upheld."

Read more here in a Media Guardian article. Read the PCC's ruling here.

October 3, 2007 | Permalink | TrackBack (0)

Another Look at Neutral Reportage and the Decision in New York Times

David Andrew Elder, Northern Kentucky University College of Law, has published "Truth, Accuracy, and Neutral Reportage: Beheading the Media Jabberwock's Attempts to Circumvent New York Times v. Sullivan," at 9 Vanderbilt Journal of Entertainment & Technology Law 551 (2007). Here is the abstract.

The article critiques a series of overlapping media attempts to circumvent the Supreme Court's extraordinarily media friendly decision in New York Times v. Sullivan. Sections I and II demonstrate persuasively that the Court has repeatedly rejected absolute protection for defamatory falsity and that its jurisprudence, including the Smith v. Daily Mail/Bartnicki v. Vopper line of cases, provides no First Amendment basis for absolute protection for all accurately reported false, defamatory information.

Sections III-VI take a fresh look at “neutral reportage” and conclude that the doctrine was founded in intellectual quicksand (Edwards v. National Audubon Society), engendered a deservedly tepid response from the courts, and received its death knell in the Pennsylvania Supreme Court's decision in Norton v. Glenn.

Section VII examines the attempts of a small minority of courts to reformulate all accurate reportage as truth supposedly subject to the common law and/or First Amendment protection for truth. Of course, this approach is at odds with Masson v. New Yorker Magazine's adoption of classic doctrine - truth and plaintiff's burden of falsity generally refer to underlying truth, not facial accuracy. Section VII also criticizes at length attempts by a minority of decisions to extend “fair report” far beyond its historic and justified limitation to official acts, reports and proceedings open to or available to the public.

Sections VIII and IX delve into the corrosive impact “neutral reportage” would have on other, largely indistinguishable scenarios involving “messenger”-“conduit” defendants and how the Second Circuit has adopted a bizarre reformulation of “neutral reportage” in interpreting New York's “grossly irresponsible” conduct test for private persons as to matters of public concern - under Second Circuit doctrine calculated falsehood magically becomes “responsible” media conduct!

In sum, the article is a hard-hitting, hopefully definitive, analysis of the topics covered, demonstrating how New York Times v. Sullivan protection for public persons has accorded the media the most extensive protection in world history - and why courts (and the Supreme Court) should reject the media Jabberwock's aggressive attempts to use these circumvention devices to provide absolute protection to the media for false defamatory error.

Download the entire article from SSRN here.

October 3, 2007 | Permalink | TrackBack (0)

Dreamworks, Actor Settle Lawsuit Over Spilled Plot Details

The Indiana Jones folks and extra Tyler Nelson have settled a lawsuit filed after Mr. Nelson revealed details of the new Indiana Jones movie due to be released sometime next year. Mr. Nelson breached a confidentiality agreement while he was giving an interview to hometown paper the Edmond (Oklahoma) Sun. Will Indy prevail against the dark forces afoot in the film? Will Tyler ever work in Tinseltown again? Stay tuned....

October 3, 2007 | Permalink | TrackBack (0)

Tuesday, October 2, 2007

Japan Seeking Answers in Death of Journalist

Japan has sent a diplomat to Myanmar to request an explanation into the death of journalist Kenji Nagai, who died in the violence in Yangon late last month. The Guardian has video and more information here.

October 2, 2007 | Permalink | TrackBack (0)

Psst! Wanna Get Published?

Borders, Court TV and Gather.com are looking for the next Scott Turow or Richard North Patterson. Together they are seeking "the next great crime writer". The contest runs from October 1 through November 11 and will help launch the second season of the series "Murder by the Book", which runs on Court TV. Submit your manuscript here. Read more here.

October 2, 2007 | Permalink | TrackBack (0)

Monday, October 1, 2007

University Will Not Expel Student Who Revealed Security Breach, But Will Not Renew Faculty Advisor's Contract

Western Oregon University has decided to allow a student journalist who revealed the existence of a serious data breach to remain enrolled, but has told the faculty advisor to the campus newspaper that it will not renew her contract, though it has not explained the basis for that decision. These decisions are the upshot of several months of investigations and a campus hearing. Blair Loving, who worked on the campus newspaper, discovered that he could get access to private information through university computers, and he brought this fact to the attention of the newspaper faculty advisor Susan Wickstrom. Read more here in a Chronicle of Higher Education blogpost. Here's more providing some background from The Oregonian (registration required, free).

October 1, 2007 | Permalink | TrackBack (0)

Sunday, September 30, 2007

Judge Rules Congressman Must Provide Deposition in Defamation Lawsuit

District Court Judge Rosemary M. Collyer has told Congressman John Murtha (D-Pa.) that he must provide further information via a deposition the defamation lawsuit that Marine Staff Sergeant Frank Wuterich has filed against him before she will dismiss the lawsuit. Congressman Murtha made comments regarding “cold-blooded murder and war crimes” by soldiers in Iraq, whom he did not name, at a 2006 news conference. Read more here.

September 30, 2007 | Permalink | TrackBack (0)