Media Law Prof Blog

FCC Issues Report, Order, Notice of Proposed Rule Making On Participation of Minorities and Women

The FCC has issued a "Report and Order and Third Further Notice of Proposed Rule Making" concerning increased "participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses, which historically have not been well-represented in the broadcasting industry."

English Reporter Wins Unfair Dismissal Case Against Al-Jazeera

Al-Jazeera has lost an unfair dismissal case to Yvonne Ridley, a journalist who claimed she was fired for protesting "the removal of stories she had published about the behaviour of US troops in Iraq and Afghanistan on al-Jazeera's English-language website." Her case, filed in Qatari courts, took four years. She won nearly 14,000 pounds in damages. Ms. Ridley now works for PressTV, an Iranian English language channel.

Read more here.

Britain On the Way To Eliminating Offense of Blasphemy

The House of Lords has voted to eliminate the common law offenses of blasphemy and blasphemous libel in England and Wales by an overwhelming vote (nearly 2 to 1 for). The last prosecution for blasphemy in England was eighty years ago. Here's the text on which the House of Lords voted. Read more in a BBC story here, and here in a Los Angeles Times story. The House of Lords, sitting as a court of appeal, refused earlier this week to hear an action for blasphemy against the BBC for broadcasting "Jerry Springer--The Opera."

French Court: Donnez Des Notes Aux Professeurs, C'est Interdit

Unlike U.S. students, French students are apparently not allowed to "rate their profs," at least according to a French court. French unions and the French education ministry filed a lawsuit when a website popped up purporting to do that, claiming that such a practice amounted to invasion of privacy and an "incitement to public disorder." Quite right, said the court, and told the website owners they could not name teachers, or they would be subject to fines. Read more here.

Wikileaks Lawsuit Abandoned

Julius Baer, the bank that had been pursuing the lawsuit against Wikileaks.org, has abandoned the litigation, at least for now. The U.S. district court judge who had originally granted an injunction against Wikileaks, which had posted documents in the case, had reversed his decision last week. The bank gave no reason for dropping the suit. Read more here in a Guardian story.

Doninger v. Niehoff, Or Footloose II

The Second Circuit has heard oral arguments in the case of a teen who criticized, on her blog, in somewhat enthusiastic language, the administrators of the high school she attends. After erroneously reporting on the activities of the administrators at Lewis S. Mills High School in Burlington, Connecticut, seventeen-year-old Avery Doninger called them "douchebags". The "douchebags" then barred her from running for re-election as class secretary. She ran anyway and won with write-in votes. The school then invalidated the results of the election.

Avery's mother sued on her behalf, and a district court judge upheld the school's decision. Read part of his ruling below.

The case is Doninger v. Niehoff, 514 F. Supp. 2d 199; 2007 U.S. Dist. LEXIS 64566 (U.S.D.C., Dst. Conn.2007).

Ordinarily, to obtain a preliminary injunction, a plaintiff must establish the following: (1) irreparable harm; and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in her favor.... In this case, however, Avery seeks an injunction requiring the school to remove the current Senior Class Secretary and to hold a new election for Senior Class Secretary in which Avery would be allowed to participate. Because this is a mandatory injunction that alters (rather than merely maintaining) the existing status quo,...an even higher legal standard applies. Avery must show a "clear" or "substantial" likelihood of success on the merits....Since an injunction regarding the school administration's authority to ban partisan t-shirts and other electioneering materials would be necessary in the immediate future only if the Court ordered a new election for Senior Class Secretary, the Court will apply the same clear or substantial likelihood of success on the merits standard to that claim as well.

The Second Circuit has also repeatedly emphasized that it considers "a showing of irreparable harm to be the most important prerequisite for the issuance of a preliminary injunction."... Avery asserts that any loss of First Amendment freedoms for even minimal periods of time "unquestionably constitutes irreparable injury." ...Despite the rather capacious language of Elrod, however, courts have recognized that plaintiffs invoking the First Amendment do not always get a free pass on irreparable harm. As the Second Circuit has noted, "[w]e have not consistently presumed irreparable harm in cases involving allegations of abridgement of First Amendment rights." ...Unless a governmental directive limits protected speech directly, which is clearly not the case here, the Second Circuit has required that a First Amendment plaintiff seeking an injunction demonstrate that a challenged governmental action has had or likely will have an actual chilling effect on speech. ...Avery claims that she was chilled from wearing her "Team Avery" t-shirt into the election assembly as a result of Ms. Niehoff's ordering other students to remove their "Team Avery" t-shirts.  Further, she asserts that she has limited her email and blog communications in an attempt to prevent another episode such as this one from occurring. For example, she has since limited access to her blog entries on livejournal, rather than leave the privacy setting for the site as public. Strictly speaking, existing case law does not seem to place any minimum on the First Amendment interest a party must assert to qualify for the irreparable harm presumption,... and so for purposes of this preliminary injunction motion the Court will assume that Avery has established irreparable harm with regard to her First Amendment claims. The Court is less certain that being denied the opportunity to run for Senior Class Secretary -- while obviously important to Avery herself -- constitutes irreparable harm under the Equal Protection Clause of the Fourteenth Amendment.   However, the Court is willing to assume irreparable harm for the purposes of this opinion, especially in light of its determination that Avery has satisfied the requirement of showing irreparable harm for her First Amendment claim.

...

The Supreme Court has made clear that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."...The Court has also cautioned, however, that "the constitutional rights of students are not automatically coextensive with the rights of adults in other settings,"...and that the rights of students "must be 'applied in light of the special characteristics of the school environment.'"

...

In the present case, this Court must determine whether LMHS administrators were entitled to decide that Avery's conduct in using the blog to address her concerns regarding Jamfest, as well as the language she chose to use in the blog itself, were sufficient to justify their declaring Avery ineligible to run for Senior Class Secretary, a voluntary extracurricular activity. This Court emphasizes that it need not -- and does not -- decide in this case whether and when a school can suspend, discipline, or remove a student because of the content of a blog or email the student prepared off-campus.

...

The parties in their briefs argue strenuously about which line of First Amendment student speech cases should provide the proper framework for analyzing the school's actions in this case. Avery champions one of the most famous of student speech cases, Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In that case, several students decided to wear black armbands to school in order to protest the Vietnam War, despite a prohibitory school policy implemented two days earlier in an effort to forestall the students' protest. The Supreme Court "affirm[ed] the comprehensive  authority of States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools," but also noted that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."...However, other speech, especially passive political speech such as that reflected in the wearing of the black armbands, was protected.

In response, the school Defendants ask the Court to focus instead on Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).  In Fraser, a student gave a speech on behalf of a nominee for student office that relied upon an extended sexual metaphor. Although the speech itself was not sexually explicit, the student later admitted that he "deliberately used sexual innuendo," and as a result, he was suspended for three days. ... The Supreme Court concluded that  [t]he First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission."

...


It is apparent to the Court that Hazelwood does not apply to this case, as there was no risk that anyone would consider Avery's blog to be speech sanctioned by or otherwise attributable to the school....However, whether Tinker or Fraser provides the appropriate framework for considering the school's actions in this case is far less clear.

For neither Tinker nor Fraser involved participation in voluntary, extracurricular activities, and in other contexts, the Supreme Court and other courts have been willing to accord great discretion to school officials in deciding whether students are eligible to participate in extracurricular activities. Indeed, as one treatise has noted, "an overwhelming majority of both federal and state courts have held that  participation in extracurricular activities . . . is a privilege, not a right. In fact, one of the longest string cites one is likely to encounter this side of a law review article supports the proposition that extracurricular activity is not a constitutionally protected property interest."

...

As a student leader, Avery had a particular responsibility under the school handbook and school policy to demonstrate qualities of good citizenship at all times. Ms. Niehoff testified that she defined good citizenship as respect for others, behaving appropriately and as a good role model, working to initiate community connections, and promoting positive interactions and conflict resolution. Avery and Ms. Doninger also signed the school handbook, which included language regarding the social and civic expectations of students, at the beginning of the school year. Ms. Niehoff testified as well that class officers were expected to work toward the objectives of the Student Council, work cooperatively with their advisor and with the administration, and promote good citizenship both in school and out. Not least, the Court finds that Ms. Niehoff discussed these responsibilities with Avery on April 24, 2007, in the context of the original Jamfest email, and indicated to Avery that such an approach to conflict resolution with the administration was inappropriate. Understandably, then, Ms. Niehoff testified that a factor of particular relevance in her disciplinary decision was the fact that Avery posted her blog entry the very evening of the day on which that conversation occurred.

The blog itself clearly violates the school policy of civility and cooperative conflict resolution. Apart from the use of the word "douchebags," Avery also urged her readers to contact Ms. Schwartz specifically to "piss her off more," Defs.' Ex. C., hardly the type of constructive approach that a school would wish to encourage. Avery also strongly suggested in her email that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, even according to Avery's own testimony, offered the possibility of rescheduling Jamfest later in the school year. Thus, this statement was at best misleading, and at  worst, entirely false. As Ms. Niehoff noted in her testimony, Avery's conduct in writing the blog was exacerbated by her inclusion verbatim of the email the four students had sent earlier in the day and which Ms. Niehoff had told Avery was in violation of the school's internet policy. The three other signatories to the email, P.A., J.E., and T.F., all stated that they considered the use of the  word "douchebags" to be inappropriate, and Ms. Doninger also agreed that the blog was offensive and deserving of punishment. See Dep. of T.F., Ct. Ex. 1, at 93-94; Defs.' Ex. H (Ms. Doninger). Indeed, Avery's counsel conceded at oral argument that the blog entry was offensive. Even Avery herself intimated that she opposed the specific punishment chosen rather than denying the appropriateness of any punishment at all, stating that this was a case where "the punishment didn't fit the crime."

Perhaps a more "fitting" punishment, as suggested by Ms. Doninger, would have been to bar Avery from participation in either this year's or next year's Jamfest. See Pl.'s Ex. 11. However, as the Court has already discussed, it is not the Court's role to determine whether the discipline imposed was the most appropriate, but only whether that discipline was constitutionally acceptable. Once school authorities made the permissible decision to punish Avery for her blog entry, the scope of that punishment lay within their discretion. The Court defers to their experience and judgment, and has no wish to insert itself into the intricacies of the school administrators' decision-making process.

None of this is to say that school officials have completely unfettered discretion to disqualify students from participating in extracurricular activities. This Court is not faced with a case where a student was denied the right to run for student office because of the color of her skin, or her religion, or even her politics. Nor was Avery barred from running simply because she disagreed with school administrators and that is made clear by the fact that the other three students who sent the mass Jamfest email were permitted to run for student office. Instead, Avery was barred from running as a class officer because of her conduct and the vulgar language she used in her blog, neither of which were consistent with her desired role as a class leader. There can be no question that teaching students the values of civility and respect for the dignity of others is a legitimate school objective.

...

The Court has more substantial concerns, however, regarding the "Team Avery" t-shirts. The shirts did not violate the school dress code or contain vulgar or offensive language, and could not be seen as endorsed by the school administration. Moreover, the students intended to wear them in the auditorium as a silent protest, similar to the wearing of black arm bands in Tinker. As such, the t-shirts are not governed by either Fraser or Kuhlmeier, but rather by Tinker. As mentioned above, under Tinker, the school administration must show that permitting the t-shirts into the auditorium "would materially and substantially  interfere with the requirements of appropriate discipline in the operation of the school."...No such showing was made at the preliminary injunction hearing; the only evidence of a disruption at the election assembly was the shouting of one or perhaps a few students that Avery be allowed to speak. Not only was the disruption minor and temporary, it could hardly be due to the t-shirts, as the students were forbidden to wear them into the auditorium. Ms. Niehoff and Ms. Schwartz have presented no evidence that had the t-shirts been permitted, the foreseeable disruption would have been so much greater as to meet the Tinker standard.

However, the Court would also note that Tinker applies to the "prohibition of a particular expression of opinion." ...School administrators are certainly free to set reasonable, ex ante policies regarding the forms of expression considered appropriate in light of the school's educational mission. ... At the hearing, Ms. Niehoff testified that her objection to the students' t-shirts was based on her conviction that permitting electioneering materials in the auditorium where voting was to take place was unfair to those candidates without such resources.

The Court today need not rule on the wisdom of such an approach. Here, however, there was certainly no formal written policy to that effect at the time, and instead the approach of school administrators appears to have been rather ad hoc, to say the least, at least on the evidence presented to date. And, of course, Avery was not a candidate for any office. The danger of such an ad hoc approach is that it may allow for censorship based on the message conveyed ? here, support for Avery in her struggle with administrators. ...

Therefore, it is fair to say that the Court is troubled by the school's conduct regarding the "Team Avery" t-shirts. However, as noted previously, the concerns about the "Team Avery" t-shirts are inextricably entwined with Avery's request for a new election, as the Court has not been made aware of any imminent or upcoming election at LMHS and school administrators had no objection to students wearing such t-shirts outside of the election assembly. Since the Court will not grant Plaintiffs request for a new election and Plaintiff has not identified any upcoming election assembly at which t-shirts might be banned, the Court sees no need to rule definitively on this important issue at this time.

...

Having examined the evidence provided by Avery, the Court finds that she has failed to show a clear or substantial likelihood of success on the merits of her equal protection claim. Regarding the April 24, 2007 email, Ms. Niehoff testified that she had similar log entries placed in the activity logs of each of the four students involved in sending the original Jamfest email. J.E., one of the Jamfest coordinators and a co-signatory of the email, testified that she and her mother in fact found a similar entry in her own log. All four students were present at the April 25, 2007 meeting with Ms. Niehoff and Ms. Schwartz, at which Ms. Niehoff testified she raised the issues of the impropriety of the email and the conduct expected of class officers. Even crediting Avery's account that Ms. Niehoff did not discuss the conduct expected of class officers, all the students present were aware that Ms. Niehoff and Ms. Schwartz were upset about the email and the resulting phone calls and emails from parents and local citizens. Thus, the Court finds that Avery was not the only student scolded for sending the original Jamfest email on April 24, 2007.

...

Avery also claims that her equal protection rights were violated when she was the "only student taken into Defendant Niehoffs office and scolded for the April 24, 2007 e-mail," and when "she was punished for her livejournal.com entry while another student who posted another comment on livejournal.com that stated the superintendent of school was 'a dirty whore' was not punished."

The judge declined to grant the preliminary injunction, and Mrs. Doninger appealed to the Second Circuit.

ITV Profits Down, Attributed To Call-In Scandals

The call-in scandals that hit a number of British networks, including the BBC and ITV, have taken their toll in terms of profits. ITV reports its approximately two billion pounds in pre-tax profits represent a nearly 35 percent dip compared to what it earned in 2006 (nearly 2.2 billion pounds). Working with Ofcom, ITV continues to probe why viewer call-ins were mishandled. Read more here. Meanwhile, ITV boss Michael Grade addressed the problem and defended his network's record and plans for the future.

McNamee Asks Judge To Dismiss Defamation Case

Brian McNamee has asked a U. S. District Court to dismiss Roger Clemens's defamation suit against him, claiming that his (Mr. McNamee's statements) to former Senator George Mitchell were covered by a grant of immunity. Read more here.

Julie Hilden On the Wikileaks Case

FindLaw's Julie Hilden writes about the Wikileaks case in part one of a two part column.

British Cameras In the Courts

Mark Lawson discusses why, even though British courtrooms remain closed to the tv cameras, defendants do end up on the nightly news via what he calls "interrogation-room telly", and why this phenomenon might ultimately amount to an end-run around the matter. Read his comments here.

More On "Love and Consequences"

Here's more on the repercussions from the discovery that Margaret B. Jones's memoir Love and Consequences is a hoax. In this article from yesterday's New York Times, Motoko Rich interviews those who worked with the author, now revealed to be Margaret Selzer, who discuss what they did to try to verify the material in the book, and what she did to forestall being found out. Riverhead Books, the publisher of Love and Consequences, is offering refunds to purchasers of the book. In Ms. Rich's new NYT article, published today, she notes that the foundation Ms. Selzer claims to have set up for the welfare of urban young people seems to be difficult to track down.

Here's discussion from NPR's Tell Me More on why writers fabricate their supposed autobiographies, memoirs, or other writings.

ASA Upholds RyanAir Complaint About Competitor's Ad

The Advertising Standards Authority has ruled in favor of a complaint filed by RyanAir over competitor easyJet's recent ad touting low summer fares. RyanAir had alleged that the number of restrictions that easyJet put on the fares made it nearly impossible for customers to shop comparatively. Said the ASA:

Four easyJet internet banner ads and one press ad promoted their "lowest price guarantee".

The press ad showed an orange egg timer with the following text written on it: "Our best summer fares are disappearing fast Prices from £19.99 single inc. taxes!" Text beneath the egg timer stated "Book by Friday and if you find it cheaper elsewhere we'll refund DOUBLE the difference*". Smaller text at the bottom of the page listed the terms and conditions: "Price correct at 30/05/07. Double the difference refund is on fare price only and is available on flights booked on www.easyJet.com between 00.01am on Monday June 4th 2007 and 22.59pm on Friday June 8 2007 only, for flights departing between 00.01 am June 1st and 23.59pm July 31st 2007. Offer applies to directly comparable flights only (same departure and destination airports departing within 1 hour of each other) ... Claims must be made within 1 hour of booking. Maximum claim €100 or equivalent ... "

One internet banner ad showed a picture of a sandcastle and contained the text "Our best summer fares are disappearing fast". The other three banner ads had pictures of egg timers and the text "Prices from £19.99 single inc. taxes ... Find it cheaper elsewhere and we'll refund double the difference LOWEST PRICE GUARANTEE". 

...

1. Upheld
The ASA considered the evidence sent by easyJet.  We noted the terms and conditions stated that the double the difference refund was only available on  flights departing within one hour of easyJet flights from the same airport to the same destination airport. We considered that while the design and layout of the ads gave the impression the double the difference refund was easy to obtain, the very restricting terms and conditions suggested it was not.  We also noted easyJet had not sent evidence to show customers had been able to take up the offer.  We therefore concluded the ads were misleading.

On this point the ads breached CAP Code clauses 3.1(Substantiation), 7.1(Truthfulness), 17.1(Guarantees) and 19.1(Other comparisons).

...
We told easyJet not to repeat the ads.

Read the entire ruling here. Read more in a Guardian article here.

House of Lords Nixes "Jerry Springer--The Opera" Appeal

The Law Lords have refused to hear an appeal in the "Jerry Springer--the Opera" case. Christian Voice had lost its case in the trial court and in the High Court; the House of Lords was its final hope. The lobbying group sought to demonstrate that the musical was blasphemous. Read more here.

News of the World Admits Story About Rosanna Arquette Untrue

News of the World has agreed that its story that actress Rosanna Arquette has had problems with drugs is false, and has apologized and will pay damages. Ms. Arquette will donate the amount to Los Angeles's Children's Hospital.

Media May Interview Ready and Willing Jurors As To Likely Verdict: Texas Appellate Court

The Texas First District Court of Appeal has ruled that the media has the right to interview ready and willing former jurors in a trial as to their likely verdicts, except when the press's right to do so is outweighed by the defendant's Sixth Amendment right, or the jurors' right to privacy, right to be free from harrassment, or the necessity to protect juror deliberations.

The trial court in a case involving an explosion at a BP plant in 2005 had ordered the jurors not to speak to the press after a settlement had been reached, since approximately 1200 cases were still pending. "[T]he trial court was concerned about additional pretrial publicity interfering with the parties’ rights to a fair trial by making the task of selecting future juries even more difficult, particularly because the jurors had not heard all the evidence. Therefore, the trial court admonished the jurors, “I am going to forbid you from speaking to anybody in the media or anybody other than myself or the lawyers or their employees until after all cases have settled.”

The Houston Chronicle challenged the gag order as an unconstitutional prior restraint.

"The trial court declined to rescind the gag order, but instead signed a written order limiting the time period of the restriction on the jurors’ speech. In the order, the trial court found that (1) no final judgment or nonsuit was reached in the subject trial and that numerous other claims in the consolidated litigation remained outstanding; (2) media coverage of the discharged jurors’ impressions about the evidence, trial, or disclosure of what their votes would have been, based upon the incomplete trial record, posed a threat to the administration of justice in the remaining, pending cases; and (3) the temporary restriction on discharged jurors’ speech was the least restrictive means available to prevent the potential harm. The trial court, therefore, ordered that “discharged jurors are under an instruction not to speak or disclose to the press, media, or others about their views of the evidence and/or their impressions of what their vote would have been if the evidence had concluded on the day that the jurors were discharged until on or after January 2, 2008 unless such order is extended upon motion of any party for good cause shown.”

Said the appellate court:

"The First Amendment provides, “Congress shall make no law … abridging the freedom of speech, or of the press … .” U. S. Const. amend. I. Similarly, article I, section 8, provides that “no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const. art. I, §8. The parties have not argued that the right to gather news under the Texas constitution is broader than that afforded by the United States constitution. In fact, at oral argument they directed our attention to federal precedent. In light of the nearly identical language in the two charters, we find that the right to gather news under the Texas constitution is coextensive with that right under the United States constitution. ...As a Texas appellate court construing the constitutionality of a Texas district court order restricting the rights of Texas citizens, we apply Texas law, i.e., Davenport. However, we also look to well-reasoned and persuasive federal authority to inform our analysis of the relator's right to gather news. ...News organizations may receive, investigate, and report on public trial proceedings, but they generally have no right to information not available to the public generally.,,,In Express-News, the Fifth Circuit held a local federal district court rule prohibiting any person from interviewing any juror concerning the deliberations or verdict of the jury, except by leave of court, to be unconstitutional as applied to the interviews sought. Id. at 808. In particular, the court of appeals held that the rule violated the newspaper's constitutional right to gather news. Id. The court of appeals noted the relationship between freedom of the press and the right to gather news: The first amendment's broad shield for freedom of speech and of the press is not limited to the right to talk and to print. The value of these rights would be circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is of little value if there is nothing to say. Therefore, the Supreme Court recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656, 33 L.Ed.2d 626, 639 (1972), that news-gathering is entitled to first amendment protection, for “without some protection for seeking out the news, freedom of the press could be eviscerated.”... The court also noted the relationship between the right to gather news and the public's right to receive the news: Government-imposed secrecy denies the free flow of information and ideas not only to the press but also to the public. The public right to receive information has been repeatedly recognized and applied to a vast variety of information. The judiciary, like the legislative and judicial branches, is an agency of democratic government. The public has no less a right under the first amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information....Finally, the court of appeals observed that the right to gather news is not absolute, and may sometimes be outweighed by competing interests, like a criminal defendant's Sixth Amendment right to a fair trial, or a discharged juror's right to privacy and protection against harassment.... But even in these instances, a court rule cannot restrict the journalistic right to gather news unless it is narrowly tailored to prevent a substantial threat to the administration of justice....In addition, the court of appeals stated that discharged jurors are under no obligation to speak....Restrictions on juror speech have rarely been found to be constitutionally permissible; the restrictions have been limited to situations, such as protecting the secrecy of juror deliberations, protecting the privacy of jurors, and preserving a defendant's sixth amendment right to a fair trial in criminal cases....We conclude that the right to gather news generally includes the right of the press to interview willing, discharged jurors, except when outweighed by a compelling government interest, such as the need to protect the sanctity of jury deliberations, a juror's right to privacy and to be free from harassment, or a defendant's Sixth Amendment right to a fair trial....

"The trial court restricted the discharged jurors’ right to speak to “the press, media, or others,” because it concluded that the additional, incremental publicity would cause imminent and irreparable harm to the judicial process by making it even more difficult to empanel a jury. But no findings or evidence show that the additional, incremental publicity from juror interviews would cause imminent and irreparable harm to the judicial process....To satisfy the second prong of Davenport, the prior restraint must be the least restrictive means possible to prevent the threatened imminent and irreparable harm to the judicial process.... Other than voir dire, nothing in the record shows that the trial court considered other less restrictive means, such as continuance or change of venue....Pretrial publicity does not necessarily create such harm to the judicial process as to outweigh the media's right to gather news....

The record does not show that interviews of the discharged jurors would preclude the selection of an impartial jury or that measures less restrictive than a gag order would be ineffective...."

The case is In re Hearst Newspapers, 241 SW3d 190 (Tex. Ct App. 1st Dct. 2007).

Virginia Supreme Court Upholds Conviction Under Computer Crimes Act

By a split vote, the Virginia Supreme Court has upheld a conviction under a state statute that prohibits the sending of "spam" emails. Jeremy Jaynes appealed his conviction under the Virginia Computer Crimes Act for sending more than 12000 emails in 24 hours over the AOL network (July 16, 2003). On subsequent days in July he sent more than 24,000 and more than 19,000. The Court noted that none of the recipients had requested Jaynes's communications and that he had falsified headers in the emails. Mr. Jaynes tried both a First Amendment and a Commerce Clause defense. Read the entire ruling here. The case is Jaynes v. Virginia (2008 WL 539744(Va)).

And More....

Now Riverhead Books, a division of Penguin USA, is recalling all copies of Love and Consequences, by "Margaret B. Jones," who, as it turns out, is not part Native American and a former gang member, but a privileged young Caucasian woman who grew up in Sherman Oaks and who did not live the life she wrote about in the book. The entire work is fiction, although "Ms Jones" (in reality Margaret Seltzer) says she based much of the story on "the experiences of close friends she had met over the years while working to reduce gang violence in Los Angeles." Some reviewers apparently detected a hint of novelization in the text, although they still accepted it as the memoir it purported to be. Here's more in a story from CNN. Shades of James Frey.

Author of Holocaust Bestseller Admits Content Is Fiction

Misha Defonseca, the author of Misha: A Memoire of the Holocaust Years, has admitted that the bestseller is fiction, and that she never lived with wolves in the forest to escape the Nazis, as she claimed to recall in the memoir. Although the book was a bestseller, many historians of the Holocaust thought the book was "a fake", as surgeon Serge Aroles, an expert on wolf-children research, says.

Ms. Defonseca, whose real name is apparently Monique De Waal, said she created the story to escape the reality of what she experienced as a child living in occupied Belgium. Ms. Defonseca and her publisher went to court over profits from the book in 2005, and the author and her ghostwriter, Vera Lee, prevailed; now the publisher, Jane Daniel, indicates she will try to get that verdict reversed. Read more here in a story from CNN. Read about the lawsuit over the book, an argument over copyright and authorship, here in a Boston Globe article.

Where Are The Non-White Faces In British Print Media, Asks One Commentator

Joseph Harker critiques the lack of diversity among senior British newspaper staffers here.

Express Newspapers Journalists Vote On Possible Strike

The National Union of Journalists is preparing for labor action at Express Newspapers in London, Glasgow and Lancashire. Talks aimed at increasing reporters' pay by three percent have failed. The vote on the strike will run from March 6 through March 26. Read more here.