Friday, June 27, 2008
Steven Hatfill, who was named as a "person of interest" in the 2001 anthrax attacks, has settled his defamation and invasion of privacy lawsuit against the Department of Justice. DOJ has admitted no wrongdoing, but will pay Dr. Hatfill close to $3 million in a one time payment and $150,000 per year thereafter. The settlement also probably means contempt charges against Toni Locy, a former USA Today reporter and current professor of journalism at West Virginia University, will be dropped. Read more here. Here's a link to Dr. Hatfill's complaint.
The Sixth Circuit has upheld the FCC's rulemaking authority in Alliance for Community Media v. FCC. The case involved a challenge to an FCC "adopting rules interpreting and implementing section 621(a)(1) of the Communications Act of 1934...which prohibits local franchising authorites from `unreasonably refus[ing] to award' competitive cable franchises. The FCC released the Order on March 5, 2007 on the basis of record evidence that the operation of the local franchising process was unreasonably impeding competitive entry into the cable television market."
The Court examined the history of cable regulation and the role of the FCC in that regulation. During the early period, the FCC refrained from regulating the entry of cable into the market "because it believed it lacked the authority to do so under existing statutory provisions....By the mid-1960s, however, cable television had proliferated to such a degree that the FCC determined that it must regulate cable franchises in order to carry out it statutory duty to oversee all forms of broadcasting on behalf of the public interest....The Supreme Court subsequently affirmed the FCC's regulatory authority over cable television, holding that the agency was authorized to issue rules that were `reasonably ancillary to the effective performance of the Commission's various responsibilities...'".
Continued the Court, "Regulation of cable services did not fall entirely on the shoulders of the FCC....Municipalities, of LFAs, also exerted an interest in regulating the cable medium...." The Court then examined the history of overlapping jurisdictions, the passage of the Cable Communications Policy Act of 1984, intended to clear up some of the confusion, and the impact of the resulting Title VI, interpretation of which is at issue in the case at bar. Finally in 1992, Congress passed the Cable Television Consumer Protection and Competition Act, revising section 621(a)(1) to provide that an LFA may grant "1 or more francises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise." (emphasis added by the Court). According to the Court, Congress granted "potential entrants" with a remedy at law under 47 U.S. C. sec. 541 (a)(1) since local subscribers would otherwise have no opportunity to make significant choices between or among cable systems. "Over a decade following the passage of the 1992 amendments...the FCC compiled data suggesting that competition had yet to materialize as a reality for the cable market....To investigate the state of the cable market...the FCC adopted a Notice of Proposed Rulemaking...and subsequently released it...."
Petitioners challenged the FCC's authority to promulate rules implementing the order requiring granting of additional franchises. "Petitioners maintain that the FCC exceeded the bounds of its authority when it adopted the Order because Congress never explicitly or implicitly delegated power to the FCC to interpret section 621(a)(1)." The FCC disagreed.
The Court ruled that "Petitioners are...correct in noting that, while the text expressly reference franchising authorites, it is silent as to the agency's role in the process of awarding cable franchises. Where petitioners' argument falls short, however, is in the equating the omission of the agency from section 621(a)(1) with an absence of rulemaking authority." The Court cited the Supreme Court's decision in AT&T v. Iowa Utitilies Board as precedent for the FCC's authority in the area. Next it addressed the question of deference. Turning to a Chevron analysis, it acknowledged that while the language in 621(a)(1) is ambiguous, the FCC's construal of the language "amounts to a permissible contruction of the language." Next, the Court assessed the reasonableness of the Order. Given the agency's extensive fact-finding and the amount of deference due the agency by the Court, the Court found the agency's interpretations and ultimately its Order reasonable. Finally, the Court rejected petitioners' claim that the rule-making activity here was arbitrary, capricious, and an abuse of discretion. "We conclude that the FCC's rulemaking activity was rooted in a sufficient evidentiary basis."
Press Complaints Commission Denies Harry Potter Author's Complaint Concerning Media Invasion of Privacy
The Press Complaints Commission has told "Harry Potter" author J. K. Rowling that publication of information about her new digs somewhere near her existing property in Perthshire does not amount to an invasion of privacy. The PCC told the writer that articles describing the purchase did not disclose enough precise information to amount to a breach of the press code. Read more here.
Thursday, June 26, 2008
NBC and Patricia Conradt have settled a lawsuit over the death of Ms. Conradt's brother Louis, who killed himself after he was accused of engaging in "sexually explicit" conversations with an adult who posed as a child for the NBC program "To Catch a Predator." The judge in charge of the case had determined that Ms. Conradt's lawsuit presented enough facts to make it possible for a factfinder to determine that the suicide was foreseeable, and directed the case to go forward. It's not clear whether the program "To Catch a Predator" will return in the fall.
Wednesday, June 25, 2008
The BBC reports that a journalist who had written about the deaths of three women brutally killed in Kicevo, Macedonia, committed suicide in his cell after his arrest. Vlado Taneski killed himself by drowning himself in a bucket of water. He came under suspicion after the articles he wrote about the deaths of the women included details police had not released to the public. Read more here.
Robert Burck, "the Naked Cowboy," can proceed with his suit against Mars Candy for using what the company claims is a parody of his image in an ad featuring an M&M candy playing a guitar in boots and underpants, just as Mr. Burck has done for years in Times Square. U. S. District Court Judge Denny Chin said that Mr. Burck, who has registered his trademarks to the "Naked Cowboy" name and likeness, can proceed with his suit because viewers of the ads might believe he has endorsed the candy. But he judge dismissed the invasion of privacy claim, since New York law only protects the "name, portrait, or picture of a living person." Read more here and here (picture of "the Naked M&M").
Tuesday, June 24, 2008
Heinz has stopped showing that ad for Deli Mayo that features two men kissing, after viewers filed hundreds of complaints in less than a week. Comments ranged from "inappropriate" to "offensive" to "unsuitable" for children to see this scene. However, the Heinz ad was not to be shown during the children's programming block because the product does not meet Ofcom's dietary guidelines for children. Read more here in a Guardian story.
The Texas Court of Appeals, 1st District, has held that the Houston Chinese Press was entitled to summary judgment in a defamation case brought by David Tang, a limited purpose public figure. The affidavit presented by the Press's editor negated the accusation of actual malice since it was "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies...". The Press had published an article reproducing some of Mr. Tang's remarks during a board meeting of the Chinese Civic Center; Mr. Tang alleged that because they were redacted, they gave a false impression of his meaning. The Press defended by claiming that it had not published with actual malice.
To negate the actual malice element, the Houston Chinese Press offered the affidavit of its editor-in-chief, defendant, Jianguang Wang. Affidavits from interested witnesses will negate actual malice as a matter of law only if they are "clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."....[T]o negate actual malice, a defendant's affidavit must establish his belief in the challenged statement's truth and provide a plausible basis for his belief....First, Wang's affidavit establishes his belief in the truth of the allegedly defamatory statements. Wang testified that, at the time of publication, he "knew of no statement" in the article that was "false" and "had no doubts as to the truth of any statements" in the article.
For summary judgment purposes, we assume the truth of Tang's assertion that he intended his statement to be a call for the Chinese community to unify to overcome the financial difficulties faced by the CCC....Nonetheless, to avoid summary judgment, Tang is still required to offer evidence establishing that the Houston Chinese Press acted with actual malice in its publication. In this respect, Tang contends that the "alteration" of his statement...is itself evidence raising an issue of material fact regarding actual malice. Tang asserts that, by omitting the...language, the Houston Chinese Press "altered" and "distorted" Tang's statement....Contrary to Tang's position, this alone is not sufficient to raise a fact issue regarding actual malice. Rather, a public figure seeking to recover for an omission must show that the publisher selected the material with actual malice....For an omission to be actual malice, the plaintiff must prove that the publisher knew or strongly suspected that the omission could create a substantially false impression....In the absence of evidence that it omitted Tang's remarks to portray his statements falsely, the First Amendment protects the Houston Chinese Press's editorial choice regarding what material it included in the article....At most, the Houston Chinese Press's decision to include only the first part of Tang's statement was an error in judgment arising from Wang's interpretation of Tang's comments. Errors in judgment are not evidence of actual malice.
Read the ruling here. The case is Jianguang Wang and Yellow Emperor Communications, d/b/a Houston Chinese Press v. David Tang, Texas Court of Appeals, No. 01-08-00009-CV (2008).
Monday, June 23, 2008
The popular leftist paper Le Monde is in dire financial trouble, and its latest problems may well finish it off. It's lost nearly 20 percent of its circulation in four years and is 75 million Euros in debt. The ownership is considering a restructuring plan but if it fails, the 64-year-old paper may be headed for a takeover. Read more here.
Satirist George Carlin has died of heart failure. The comedian, whose "Seven Filthy Words" routine was the center of a Supreme Court case, passed away on Sunday. He was supposed to receive the Mark Twain Prize for American Humor later this year. Read more and hear a discussion of the continuing debate over the use of the words he identified as "filthy" (with bleeps) in this CNN story and a link to a CNN video. Here's more from NPR.