March 21, 2008
FCC Bans Exclusive Contracts On Telecommunications Services In Apartment Buildings
The FCC has nixed the practice of "exclusive contracts to provide telecommunications services in residential apartment buildings, and prohibited enforcement of existing contracts that contain exclusivity provisions"and "“triple-play” offerings of voice, video and broadband." This new rule follows on the FCC's 2007 ban on one-party contracts in apartment buildings. Here are links to the various Commissioners' statements on the new rule.
Turkish Human Rights Activist Sentenced To Six Months For "Insulting Turkishness"
Agence France Presse reports that a Turkish court has convicted a human rights activist of "insulting Turkishness" by telling the German paper Der Tagesspiegel that the Turkish army had too much political influence. Eren Keskin received a six month prison sentence. She says she will appeal. Read more here. This provision in the Turkish Penal Code is the same one under which a number of writers and academics have been prosecuted.
March 20, 2008
Former Media Head Indicted
A federal grand jury has indicated Drew Levin, former head of Team Communications Group, on stock fraud, conspiracy, and several other charges. Mr. Levin made tv films; among his well-known made for tv movies is The Matthew Shepard Story, which won an Emmy in 2002 for actress Stockard Channing.
What the McCann Apology Means For British Law and Journalism
Here's additional coverage of the McCann libel apology from Clare Dyer, with a piece explaining why the award was so high, from the Guardian on whether the McCanns may sue other newspapers over stories about their involvement in Madeleine's disappearance, from the Guardian on the victimization of Gerry and Kate McCann, from Mark Lawson of the Guardian on why the Express papers will probably continue to publish misleading stories, and from Edgar Forbes on the failure of the Press Complaints Commission.
London Radio Station Apologizes For Statements About Popular Actor's Family
A London talk radio station has apologized for making suggestions that the family of a well-known actor suffering from Alzheimer's was taking advantage of him and not caring properly for him. The allegations came in the form of a letter to the station claiming that the family of Sir Norman Wisdom had sold some of his property and forbidden contact with him. Read more here. But see this article from the Daily Mail, dated last year.
Possible Shakeup At Press Complaints Commission After Express Apology To McCanns
The Guardian reports that Express editor Peter Hill, who sits on the Press Complaints Commission, may be booted from his post as a result of the apologies that the Express family of papers was forced to publish in the wake of its admissions that stories printed about Gerry and Kate McCann's involvement in the disappearance in their daughter had no foundation. The PCC members consist of representatives from both the media and the public.
March 19, 2008
U.S. Denies Writer Permission To Enter Country
U. S. authorities have refused to allow Sebastian Horsley, author of "Dandy in the Underworld," permission to enter the country, which seems to have derailed his plans to promote his book in person here. According to the New York Times, a spokesperson for the United States Customs and Border Protection Service said that "travelers who have been convicted of a crime involving moral turpitude (which includes controlled-substance violations) or admit to previously having a drug addiction are not admissible" to the United States. Mr. Horsley discusses his extensive drug use in his memoir.
Closely Watched Claims
Back in 2004, a Manhattan attorney named Ravi Batra thought that a November 2003 "Law and Order" episode, called "Floater," that featured a character named "Ravi Patel" hewed a little too closely to "ripped from the headlines" for his taste. So he filed a defamation suit under a doctrine called "libel in fiction." In a ruling handed down today, the judge in the case is allowing the case to move forward, denying "Law and Order" producer Dick Wolf legal team's motion to dismiss.
New Jersey Moves To Investigate Ads On JuicyCampus Website
New Jersey has become the first state to investigate the website JuicyCampus.com for possible consumer fraud, suggesting that law enforcement may try to "get tough" with the gossip website in response to complaints about the hurtful or defamatory comments posted there. JuicyCampus.com founder Matt Ivester has pointed to Section 230 of the Communications Decency Act, saying it immunizes him and his site from liability.
Julie Hilden on the Wikileaks Case
FindLaw's Julie Hilden publishes the second in a pair of columns on the Wikileaks flap here.
Website Apologizes, Pays Damages To British Actor Over Story
Website and newsletter Popbitch has admitted that its story about actor Max Beesley, "Maxed out - Beesley makes beeline for beauties," was untrue. In it, the website asserted that Mr. Beesley tried to recruit three women to have sex with him at a party in Cannes. Mr. Beesley requested a retraction, and then sued for defamation. The website has now apologized and is paying damages and costs. Read more here.
Papers Run Apologies To McCanns Over Suggestions They Were Involved In Madeleine's Disappearance
Gerry and Kate McCann have won large damages (over a million dollars) and an apology from the Express Newspapers, which had suggested that they were involved in the disappearance of their daughter Madeleine from a Portugeuse vacation spot last year. The Daily Express and the Daily Star ran headlines reading "Sorry" and apologies on their front pages as part of a settlement. A court was set to hand down a judgment on the McCanns' defamation suit against the papers. Read more here and here.
March 18, 2008
University of Iowa Changes Its Mind On "Open Access" Policy For Theses, Dissertations
The University of Iowa has pulled the plug on an "open access" policy that would have made all theses and dissertations freely available via its Graduate Library. The Library planned to scan all the works and make them available through the Internet.
Writing students protested that this practice would devalue their work since it might diminish the possibility that they could find publishers for their novels, poems, screenplays, etc. Graduate students in history, English and other academic disciplines apparently weren't overly thrilled either. It seems the forms that included the language about this "open access" policy were new and hadn't been vetted; it's not clear who okayed the policy. Now, says the Interim Provost, the problem is solved. Creative writing students will not be lumped in with grad students of traditional disciplines, and students will be reminded to include a copyright notice with their works when they turn them in prior to graduation. Further, she says, "It [the policy] was only a germ of a thought to begin with." Indeed.
Second Circuit Affirms Lower Court Ruling of Bin Mahfoud Motion To Dismiss
In what is labeled a case of "libel tourism," the Second Circuit has affirmed a lower court's ruling that it lacks personal jurisdiction over defendant Khalid Salim Bin Mahfouz in the case of Ehrenfeld v. Bin Mahfoud. Mr. Bin Mahfoud "obtained a default libel judgment against [Rachel Ehrenfeld] enjoining the further publication of the statements about Mahfouz in England and Wales. Thereafter Ehrenfeld sought a declaratory judgment under the Declaratory Judgment Act...against Mahfouz in the District Court...that (1) Mahfouz could not prevail on a libel claim against her under federal or New York law; and (2) the English judgment would not be enforceable in the United States, and New York in particular, on constitutional and public policy grounds."
The Second Circuit certified a question to the New York Court of Appeal: "whether New York’s long-arm statute confers personal jurisdiction over a person (1) who sued a New York resident in a non-U.S. jurisdiction; and (2) whose contacts with New York stemmed entirely from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York." The New York appellate court answered "no," and also refused to assert jurisdiction over the defendant.
Ultimately, said the Second Circuit, "For a number of reasons, plaintiff’s arguments are legally unavailing. First, plaintiff filed her complaint in the district court in December 2004 and up to this point has apparently not raised a federal constitutional challenge to a reading of N.Y. C.P.L.R. [Sec.] 302(a)(1) that would deny jurisdiction over defendant. To be sure, plaintiff sought a declaration from the district court that enforcement of the English judgment in the United States would contravene the First Amendment....She also argued before the district court and this Court that defendant Mahfouz’s contacts with New York were part of a scheme to abridge her free speech rights in New York. Plaintiff made the argument that the freedom of speech implications of the case, rising under both the First Amendment and the New York Constitution, compelled certification of the jurisdictional issue to the New York Court of Appeals. We heeded that suggestion and granted her certification request based on the public policy significance of the matter.... Plaintiff, however, has not made the argument that the First Amendment would compel us to assert jurisdiction over defendant in any case, regardless of the reading by the Courtof Appeals of the state long-arm statute....Her failure to mount an attack on First Amendment grounds against denial of personal jurisdiction over defendant Mahfouz at any prior stage of this prolonged litigation in the federal courts amounts to a waiver of the claim."
Read the entire decision here. For more about the number of cases in which Mr. Bin Mahfouz has been involved, see this post from the Chronicle of Higher Education's blog and this prior post from Media Law Prof.
Assessing When and Whether the Media Goes Too Far
Amy Gajda, University of Illinois College of Law, has published "Privacy, Ethics, and the News," as Illinois Public Law Research Paper No. 07-19. Here is the abstract.
In November 2006, a Texas prosecutor shot himself as police entered his home to arrest him on child sex solicitation charges. Waiting outside were journalists from NBC's To Catch a Predator program, persons who had initially worked with police in the sting operation. In February 2008, a federal judge ruled that NBC's behavior in covering the events preceding the suicide could be tortious, based in part on what the court decided seemed to be a violation of journalism ethics. The plaintiff had argued that her brother's would-be arrest was not news, but a sensationalistic move by NBC to raise its ratings. The court, calling the event a public spectacle, effectively agreed.
Courts, John Marshall famously declared, must say what the law is. Increasingly, however, courts are also called upon to say what the news is. When subjects of unwanted publicity sue, journalists commonly argue that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news. Recently, however, courts have grown decidedly less tolerant, driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while aggressively scrutinizing editorial judgments.
This Article demonstrates the growing threat to press freedom posed by these emerging trends. It places the conflict in historical context, explains how recent developments have undermined judicial deference to journalism in defining the news, examines the implications of the nascent resurgence of tort regulation of journalism, and concludes by suggesting that courts return to a more deferential approach in assessing newsworthiness.
Download the entire paper from SSRN here.
Commissioner Tate on the Grant of Cert in the "Fleeting Expletives" Case
Here's Commissioner Tate's statement on the Supreme Court's grant of cert in Fox v. FCC.
I am pleased that the U.S. Supreme Court has granted the petition for certiorari filed by the Solicitor General. Protecting children from inappropriate programming continues to be one of my top priorities. I hope that the Court’s decision will give broadcasters clarity regarding the use of profanity, even fleeting profanity, on the public airwaves, at times when children are most likely to be in the audience.
Commissioner Copps On the Grant of Cert In the "Fleeting Expletives" Case
Here's Commissioner Copps's statement on the Supreme Court's grant of cert in Fox v. FCC.
“I’m pleased that the Supreme Court agreed to review the Fox decision. While the FCC has a statutory duty to enforce the indecency laws, I continue to believe that all of us—government, industry, and parents—have a role to play in protecting our children from inappropriate material. The Court’s review will hopefully bring additional clarity to concerned citizens and broadcasters alike.”
The CDA and the "Marketplace of Ideas"
Anthony Michael Ciolli has published "Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas." Here is the abstract.
The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing values of promoting free speech and compensating victims of Internet defamation.
This Article argues that this conflict between speech and victim compensation is largely illusory, persisting primarily due to misconceptions about the Internet and nostalgia for the common law. Since these values do not inherently conflict with each other, it is unnecessary to strike a balance between them because Congress can pass legislation enhancing both values without detracting from either. Congress, in order to account for the sudden and unexpected transition from the walled garden intermediaries of the 1990s to the Web 2.0 intermediaries of today, should amend Section 230 to include an attorneys' fee-shifting provision in order to provide the typical Web 2.0 intermediary with an incentive to protect the speech of its users. Similarly, Congress or state governments should create the tort of no-fault defamation to provide the majority of defamation victims with a more cost-effective and efficient means of achieving the vindication they desire. Finally, Congress should consider instituting an insurance scheme or other system to provide compensation to those who have suffered tangible economic loss or irreparable harm as a result of Internet defamation, as well as pass legislation that would reduce the potential negative effects of defamatory Internet speech. These solutions whether implemented individually or as a package would result in a substantial improvement over the status quo, and also produce better, more efficient outcomes than alternate proposals that seek to promote victim compensation at the expense of speech or vice versa.
Download the paper from SSRN here.
Eighth Circuit Affirms Video Game Decision; Blocks Enforcement of Minnesota Video Game Law
The U. S. Eighth Circuit Court of Appeals has affirmed a lower court's grant of a permanent injunction against "enforcement of section 325I.06 of the Minnesota code, which prohibits minors from purchasing or renting video games bearing a "Mature" or "Adult only" rating...." Violators were subject to a fine of not more than 25 dollars.
The appellate court reviewed the district court's ruling for abuse of discretion.
The State contends that the district court erred by concluding that children have a protected First Amendment right of access to violent video games and consequently erred by applying strict scrutiny analysis to the Act’s prohibition rather than the scrutiny more typically reserved for obscenity. The State asserts that even under its strict scrutiny analysis, the district court demanded a more rigorous evidentiary showing (that of actual causation) than that which is legally required. It also argues that the Act is neither unconstitutionally over- or under-inclusive, and that the delegation of authority to the ESRB is constitutional because the ESRB applies clear and discernable standards. Because we conclude that, under the exacting standard of proof that has been established for cases of this nature, we must affirm the district court’s finding with respect to the inadequacy of the State’s evidence, we do not pass on the correctness vel non of the district court’s decision on the other issues. We have held that violent video games are protected free speech. Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003) (hereinafter Interactive Digital), a holding that the State recognizes is binding upon us, but one which it hopes might be overturned in an en banc review of this case. In light of Interactive Digital, any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis. Id. at 958. We will find the Act constitutional, then, only if it is “necessary to serve a compelling state interest and . . . is narrowly tailored to achieve that end.” Id. (citing R.A.V. v. St. Paul, Minn., 505 U.S. 377, 382 (1992)). The State offers two interests that it asserts are compelling—safeguarding both the psychological well-being and the moral and ethical development of minors....While we have concluded that an interest in safeguarding the psychological well-being of minors is "compelling in the abstarct," the alleged harms must be shown to be "real, not merely conjectual, and that the regulation will in fact alleviate these harms in a direct and material way."
In finding that the video games at issue...were protected free speech, the Interactive Digital court described them as containing "stories, imagery, age-old themes of literature, and messages, even an ideology, just as books and movies do."...Although some might say that it is risible to compare the violence depicted in the examples offered by the State to that described in classical literature, such violence has been deemed by our court worthy of First Amendment protection, and there the matter stands.
...[W]e accept as a given that the State has a compelling interent in the psychological well-being of its minor citizens....Nevertheless, in light of the heightened standard of proof that Interactive Digital says must be applied, we conclude that the evidence falls short of establishing the statistical certainty of causation demanded thereby.
Read the entire ruling here. The case is Entertainment Software Association v. Swanson, 2008 U.S. App. LEXIS 5634; 2008 WL 696550 (2008).
BBC Journalists Released
Those BBC journalists detained over the weekend by Irish law enforcement in a sweep of terrorism suspects have been released, according to a story published today in The Guardian. Roy Greenslade discusses reasons for their detention, and speculates that more than one group of journalists might have led to confusion, based on a story in the Irish Independent, here.