Friday, October 19, 2007
Thirty-one-year-old Rex Ditto has pled guilty to first degree and robbery of Alan Shalleck, who with Margret and Hans Rey created the "Curious George" stories and films. Mr. Shalleck was found dead on Super Bowl Sunday, 2006. Another defendant in the crime, Vincent Puglisi, faces trial in the murder next year. Read more here.
Florida Appellate Court Reverses Injunction: Broadcaster May Use Private, Medical Records It Obtained From Third Party
A Florida appellate court has lifted an injunction preventing a broadcaster from disseminating the contents of private and medical records that it acquired after they were sold at auction. The owner of the private and medical records had stored them in a facility but apparently failed to pay the storage fees due.
According to the appellate opinion, "An unknown third party purchased the records. Appellant acquired the documents from the third party. Thereafter, Appellant contacted Appellee to inform him that it intended to publish portions of the contents of the records in its telecast. Appellee sought to prevent the public airing of his personal information by filing a two-count complaint seeking declaratory and injunctive relief and replevin. He also filed a verified motion for temporary injunction without notice. In the motion, Appellee alleged that the records remained his private property, despite Appellant’s claim of ownership, because the storage facility’s determination that he had failed to pay was erroneous. The motion further alleged that some of the boxes of records included medical records of Appellee and his family, and communications between Appellee and his attorneys. The lower court granted the motion, ex parte, and temporarily enjoined Appellant from publicly airing the information."
The broadcaster filed this appeal, claiming that it amounted to a prior restraint. The parties agreed that Appellee is a public figure.
In its de novo review, the Court found that, "Here, Appellee asserts that his privacy interest in his private papers, and in particular his medical information and attorney-client communications, is sufficient to sustain his burden. Although Appellee does not direct our attention to any Supreme Court case that has ever upheld a prior restraint to protect a competing privacy interest, the possibility that privacy rights might justify such a restraint has not been completely foreclosed by the Court. For example, in a leading case, although stating that a prior restraint may be justified only in "exceptional cases," such as maintaining the secrecy of troop movements in wartime, the Court emphasized that its holding did not address the “authority to prevent publications to protect private rights according to principles . . . of equity.”... Notwithstanding any suggestion by the Court that privacy rights might trump the First Amendment in a given circumstance, time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. The Court has done so by prohibiting both prior restraints and the constitutionally less-intrusive, post-publication imposition of criminal and civil liability....
"Although these precedents are somewhat instructive because they suggest that privacy will rarely trump the First Amendment, all of these cases are distinguishable from the situation that we are confronted with here. In this case, Appellee seeks to enjoin the publication of documents that, based on the nature of the documents, are of no obvious public concern. We particularly observe that in most instances, an individual's medical records would not be of public interest. We do not think that Appellee’s status as a public figure means that every aspect of his private life is of pubic (sic) concern....
"But even if Appellee’s documents are of public concern due to his status, it is difficult to envision how the medical records of his family could be a concern to the public. The abstract issue framed by the parties in this case, therefore, involves the extent to which privacy interests in information, which is of no apparent public concern, may be asserted as a basis for limiting the First Amendment’s prohibition against censored expression by a publisher who comes into possession of the information without resort to improper means.
"Appellant urges that the answer is never; it contends that the sole remedy for an alleged invasion of privacy under these circumstances is an action for damages. Otherwise, Appellant argues that the determination of whether a fact is of public concern is taken away from editors and placed with the courts, amounting to prohibited censorship. Appellee’s position is not as rigid. He contends that a prior restraint based on privacy grounds may be justified when privacy rights outweigh the First Amendment’s protections. He urges that the balancing of these interests, as was done by the lower court here, is the appropriate approach. We find it unnecessary to sanction either position to resolve this case because, even under Appellee’s approach, we determine that the injunction is not justified as Appellee has failed to establish that the contents of the records at issue are sufficiently sensitive to give rise to an actionable invasion of privacy should the documents be published.
"Therefore, even if we were to balance the respective rights of the parties, Appellant would prevail. To reach this conclusion, we need only examine Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996), the case upon which Appellee places his heaviest reliance. There, the court entered an injunction to prohibit broadcast journalists from engaging in certain conduct in connection with an Inside Edition exposé on the high salaries being paid to the executives of U.S. Healthcare. The court predicated the injunction on a finding that the plaintiff had established a likelihood that he would succeed on his claims for unlawful interception of oral communications and invasion of privacy under Pennsylvania and Florida state law. On the invasion of privacy claim, the court found that the plaintiff had proven the “highly offensive to a reasonable person” element of the tort. These statutory and tort law violations, said the court, were sufficient to overcome the defendants’ First Amendment arguments. Even assuming that Wolfson is a correct analysis of the interplay between the First Amendment and privacy interests protected by state law, we cannot conclude that Appellee has shown that he is likely to prevail because he has not proven that Appellant’s anticipated conduct would constitute a tort or actionable violation of state law."Read the entire opinion here. The case is Post-Newsweek Stations, Inc. v Guetzloe, Case No. 5D07-430 & 5D07-526. See also the Florida broadcaster's "Guetzloe Files' webpage here to see why there was so much interest in the plaintiff.
New York Court Dismisses Defamation Suit Against Newspaper; Finds Headline Was "Fair Index" Of Article
The New York Supreme Court, New York County, has granted a newspaper's motion to dismiss in a defamation action brought by plaintiffs who alleged that the newspaper's coverage of their arrest amounted to "libel (first cause of action), libel per se (second cause of action), negligent infliction of emotional distress (third cause of action), intentional infliction of emotional distress (fourth cause of action) and negligence (fifth cause of action)."
The newspaper argued that "(i) the article is a fair and true report of a judicial proceeding and therefore absolutely privileged pursuant to Civil Rights Law § 74; (ii) the complained-of article is substantially true; and (iii) the defendants were not grossly irresponsible in publishing the article."
The plaintiffs claimed, however, that "the defendants are not immune from a civil suit for libel because the article, and specifically the headline, did not merely report on those judicial proceedings, but falsely represented without including the word, “allegedly”, that a heinous and despicable crime occurred, and included material which was not contained in the criminal complaint."
According to the court, "...[T]he headline of the article “must be read and evaluated in conjunction with the text it precedes....If the headline is a fair index of an accurate article, it does not give rise to a cause of action....Moreover, where, as here, “the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition,” the party defamed may recover only if he is able to “establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” ...Defendants contend that plaintiffs cannot meet their burden of showing by a preponderance of the evidence that they acted in a “grossly irresponsible manner”, since defendant Weiss has detailed in a sworn affidavit his efforts to gather and verify information prior to the publication of the article which included (i) calling the Public Information Office for the New York County District Attorney's Office (“the DA's office”) on or about July 18 or 19, 2004 to obtain details of the arrest and to obtain a copy of the criminal complaint, and (ii) contacting the Press Office for the New York City Police Department (“NYPD”) to obtain additional information regarding the plaintiffs’ arrests and to confirm the information which he received from the DA's Office....Although plaintiffs argue that there are triable issues of facts as to whether The Post acted in a grossly irresponsible manner...plaintiffs have not submitted any evidence to refute defendant Weiss’ affidavit. Accordingly, based on the papers submitted and the oral argument held on the record on January 31, 2007, this Court finds that the statements contained in the article in question do not give rise to an actionable claim for libel or libel per se."
The case is Corso v. NYP Holdings Inc., 2007 N.Y. Misc. LEXIS 6661; 238 N.Y.L.J. 59; 35 Med.L.Rptr. 2286;(N.Y. Sup. Ct. 2007).
Thursday, October 18, 2007
According to media lawyer Floyd Abrams, the film in which he plays a judge, Alan Alda's Nothing But the Truth is not the Judith Miller case, although the character he plays sends a journalist to jail for refusing to reveal her sources. Others in the movie include Kate Beckinsale and Matt Dillon. Here's a Variety article from July discussing the Yari Film Group project. BTW, is Mr. Abrams following in Joseph Welch's footsteps? (Mr. Welch, you'll recall, played a jurist in Otto Preminger's Anatomy of a Murder). Stay tuned....Warner Brothers is also coming out with a movie inspired by the Valerie Plame case.
U. S. District Judge Michael A. Posner dismissed author John Dunn's claims against "Da Vinci Code" writer Dan Brown last month, saying they were "absurd." Mr. Dunn had said that Mr. Brown's book infringed his work "The Vatican Boys." Judge Posner, however, simply didn't see it. Mr. Dunn had sued for four hundred million dollars. Read more here.
The judge in charge of Warren Jeffs' recently completed trial on rape charges had ordered media not to interview prospective jurors. Nevertheless, local reporter Katie Baker of Salt Lake City's KUTV did a story with an individual who was eventually not chosen for the jury. Ms. Baker says she was unaware of the judge's order. While Judge James Shumate is willing to believe her, he's unwilling to let her off the hook completely. She must produce a "public service story" in the next three months and submit it to him on DVD, or be found in contempt. The story doesn't need to be broadcast but must also appear on the station's website. The contempt citation could carry a 30 day sentence or a thousand dollar fine. Read more here in a Salt Lake City Tribune article and here in the Deseret Morning News.
FCC Chair Kevin J. Martin is actively pushing a plan to allow same company ownership of newspapers and tv or radio stations in the same market, and he would like to put this plan into operation by the end of 2007. To do so, he would have to have the support of a majority of his fellow FCC Commissioners. He has also faced concerns from some lawmakers, and setbacks in the courts. Read more in an article by Stephen Labaton in today's New York Times. Here's a page from the FCC website on the Media Ownership rules, discussing the ongoing review.
Wednesday, October 17, 2007
Joshua Dickman has published "Anonymity Rights and the Demands of Civil Procedure in Music Downloading Lawsuits," to be published in volume 82 of the Tulane Law Review (2008). Here is the abstract.
The internet has spawned a vast amount of anonymous online activity, both good and bad. On the one hand, cyber-anonymity encourages the open exchange of ideas and creative expression; on the other, it protects improper and illegal behavior such as cyber-stalking, defamation, and copyright violations. This Article, through the prism of music downloading lawsuits, examines the unexpected impact that courts' pretrial procedural rulings have in preserving internet anonymity rights and policing improper online conduct. Specifically, the Article addresses issues of personal jurisdiction and misjoinder that arise in the typical music downloading lawsuit, which record companies bring against multitudes of anonymous “John Doe” defendants for downloading music that they did not purchase. The Article discusses how courts' treatment of the personal jurisdiction and misjoinder issues impacts anonymity rights implicated by the Does' downloading activity. The Article focuses on the importance of when courts choose to address these issues of personal jurisdiction and misjoinder and examines whether courts are correctly choosing to defer ruling on the issues until after the Does' true identities are revealed. The Article ultimately concludes that while courts are correctly waiting to rule on the question of personal jurisdiction, courts are incorrectly deferring the question of misjoinder, at a substantial cost to the government and in disregard of the Does' anonymity rights.
Download the entire article from SSRN here.
A federal judge has found no similarities between Cherie Phillips's Wisdom Bible of God and Sanderson Beck's Wisdom Bible From Ancient China, India, Greece, the Middle East and Rome. Thus, she has decided that Ms. Phillips is not entitled to maintain her claims of copyright infringement and trademark infringement against Mr. Beck. Judge Susan Mollway indicated that the expression of the ideas in the case were not similar enough to merit copyright protection, and that Ms. Phillips's assertions that Mr. Beck had diluted the secondary meaning of her book were unsubstantiated. Both parties appeared pro se.
Read more here. The case is Phillips v. Beck, 2007 WL 2972605; 2007 U.S. Dist. LEXIS 75165; (D. Haw. Oct. 9, 2007).
MySpace and Sony have executed a licensing deal that will allow MySpace users to include music and videos by Sony artists on their personal pages. The companies will split the resulting ad revenue. It's one way that companies are trying to avoid lawsuits and increase market share. Read more here.
FindLaw's Julie Hilden addresses some recent judicial rulings, and one that's not so recent, as well as Congress's 1998 decision to extend copyright protection to 70 years after the author's death. Hers is a two-part look, and as usual, it's worth reading. Check it out, here and here.
Bill Peterson, an Oklahoma DA, and Gary Rogers, a former OSBI agent, are suing John Grisham and several others for defamation in connection with the decades old murder case of Debbie Sue Carter. Mr. Peterson and Mr. Rogers were involved in the prosecution and conviction of two men who were eventually freed based on DNA evidence. Now, one of the exonerated men, Dennis Fritz, is also a defendant in the suit. The plaintiffs in the suit are unhappy of the contents of Mr. Grisham's book The Innocent Man, which is about the trial, Mr. Fritz's book Journey Toward Justice, a book by Mr. Fritz's lawyer Barry Scheck, Actual Innocence, another author, Robert Mayer, and the publisher Doubleday Dell. Read more here.
Monday, October 15, 2007
Some members of the British media are challenging a judicial order that a man who pled guilty to committing offenses against minors may have his identity concealed because revealing it would put his children at risk of harassment. Normally, concealing a sex offender's identity is possible if revealing it would put the victims at risk of such harassment, but in this case the minors involved are not the victims. The media, backed by the government, are appealing the order. Read more here in an article from the Guardian.