Friday, July 11, 2008
New York Attorney General Andrew Cuomo announced that two more telecoms which provide service as ISPs, AT&T and AOL, have agreed to block access to child pornography via newsgroups. This announcement follows on the agreement with several other service providers and communications companies earlier this year to do the same. Read more in a news release issued by the AG's office.
Thursday, July 10, 2008
In an unpublished opinion, the California Court of Appeal, 6th Appellate District, has reversed a lower court's order to quash subpoenas in an anonymous blogger case and remanded the case to that court for further consideration.
Mordecai Tendler "obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Respondents, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 425.16 motion to strike. Although Tendler withdrew his request for subpoenas, the Does’ proceeded on their section 425.16 motion to strike. The superior court granted the Does’ section 425.16 motion to strike, and awarded them their attorney’s fees. On appeal, we conclude that a request for subpoenas does not fall within section 425.16, and therefore the superior court erred in granting the motion and in awarding attorney’s fees....The question before us in this case is whether a request for a subpoena falls within the scope of section 425.16....Section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1), italics added.) This “cause of action” must be contained in a complaint, cross-complaint, petition or similar pleading initiating a judicial proceeding. (§ 425.16, subd. (h); Sheppard, supra, 146 Cal.App.4th at pp. 322-323.) “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c).) The Legislature has mandated that section 425.16 “shall be construed broadly="m.” Even the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena. A request for a subpoena is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding.
"The fact that Tendler would have been required to make a prima facie showing to prevail on the motion to quash does not means that his request for subpoenas was a complaint-like pleading stating causes of action. Krinsky’s prima facie showing requirement does not apply to the request for a subpoena itself, but only to the showing necessary to overcome a motion to quash. Nothing in Krinsky supports the Does’ claim that a request for a subpoena must contain causes of action.
"The Does express great concern that, absent the availability of a section 425.16 motion to strike, their First Amendment rights may be at risk. Such concerns are not properly addressed to this court. We lack the “power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used.” (Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365.) “In interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law, whatever may be thought of the wisdom, expediency, or policy of the act.” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, internal quotation marks omitted.)
The Does’ concern may also be overstated. It is debatable whether the unavailability of a section 425.16 special motion to strike deprives an anonymous speaker whose identity is sought by a subpoena of adequate means to protect his or her First Amendment rights. In this case, for instance, the Does brought a motion to quash the subpoenas, a valid means for challenging the validity of Tendler’s discovery request. (See Krinsky, supra, 159 Cal.App.4th 1154; Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 879-881.)
The Does cannot establish that section 425.16 applies to a request for a subpoena. Consequently, we can only conclude that the superior court erred in granting the Does’ section 425.16 motion to strike and awarding attorney’s fees.
In Parmalee v. O'Neel, the Washington Court of Appeals, Division II, has ruled a state statute prohibiting criminal libel unconstitutional. Washington Revised Statute (RCW) 9.58.010 prohibits "exposure of any living person or the memory of the dead to hatred, contempt, ridicule or obloquy, or injury to a business
relationship", making such behavior "a gross misdemeanor."
Allen Parmalee, a prison inmate, filed suit against the Washington Department of Corrections claiming that it improperly punished him under the statute for language he used in a letter he sent to the Superintendent of Prisons. "Parmelee first challenges the constitutionality of Washington's criminal libel statutory scheme, RCW 9.58.010 and .020, under which DOC punished him for the language in his letter to
Superintendent Clarke. He alleges that the statute is facially unconstitutional under Garrison v.
Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). Therefore, Parmelee contends
that the superior court erred when it dismissed his claims under CR 12(b)(6) and found that DOC
may rightly rely on chapter RCW 9.58 as basis for its actions against him. "
Said the appellate court, "A plain reading of RCW 9.58.020 reveals that Washington's criminal libel statutory scheme does not meet minimum constitutional standards under Garrison. Specifically, RCW 9.58.020 is unconstitutional because it does not justify excuse from prosecution (1) false
10 RCW 9.58.010 provides:
Every malicious publication by writing, printing, picture, effigy, sign[,] radio
broadcasting or which shall in any other manner transmit the human voice or
reproduce the same from records or other appliances or means, which shall tend: --
(1) To expose any living person to hatred, contempt, ridicule or
obloquy, or to deprive him of the benefit of public confidence or social intercourse;
(2) To expose the memory of one deceased to hatred, contempt,
ridicule or obloquy; or
(3) To injure any person, corporation or association of persons in his or
their business or occupation, shall be libel. Every person who publishes a libel
shall be guilty of a gross misdemeanor."
"...[I]n Garrison, the Supreme Court explicitly held that the First and Fourteenth
Amendments prohibit criminal punishment for false speech under statutes that do not require a
showing of actual malice. Garrison, 379 U.S. at 67. This is precisely what Washington's
criminal liable statute does: it permits punishment for false statements not made with actual
malice. See Garrison, 379 U.S. at 67. A speaker may face prosecution under Washington's
statute if she makes a false statement unless it was "honestly made in belief of its truth and
fairness and upon reasonable grounds for such belief, and consists of fair comments upon the
conduct of any person in respect of public affairs, made after a fair and impartial investigation."
RCW 9.58.020. This standard in no way comports with the "actual malice" standard set forth in
Garrison. Garrison, 379 U.S. at 67; New York Times, 376 U.S. at 279-80.
Likewise, the Garrison Court explicitly held that the First and Fourteenth Amendments
absolutely prohibit punishment of truthful criticism where discussion of public affairs is concerned.
Garrison, 379 U.S. at 74. Contrary to this absolute rule, RCW 9.58.020 justifies true statements
when a person publishes them with "good motives and for justifiable ends." Thus, because RCW
9.58.020 permits punishment of true statements not made with good motives or for justifiable
ends, it does not survive constitutional scrutiny. See Garrison, 379 U.S. at 67, 73-74. In fact,
the Garrison Court cited Washington's criminal libel law as an example of the type of statute that
failed constitutional scrutiny. Garrison, 379 U.S. at 70 n.7. It is clear, therefore, that Washington's criminal libel statutory scheme does not meet the constitutional standards demanded under Garrison because it permits prosecution of persons for making false statements without actual malice and/or making true statements without good motive or intent. See Garrison, 379 U.S. at 73-74."
The Court also found that the statute was overbroad. "We hold that Washington's criminal libel statute is facially unconstitutional and is likewise unconstitutional for overbreadth and vagueness. We vacate the infraction based on the unconstitutional statute. We reverse the trial court's dismissal under CR 12(b)(6) and remand for further proceedings at which Parmelee may raise his claims for damages against DOC for violating his First Amendment rights, violating substantive due process, and retaliating against him."
Read the entire opinion here.
Wednesday, July 9, 2008
The Advertising Standards Authority has quelched an ad for a scratch-off lottery card promoted by Camelot, the folks who run the British National Lottery. The Bingo Association complained to the ASA that the ad unfairly denigrated the image of bingo halls, making them look dingy and unappealing. The ASA agreed.
The Bingo Association objected that the ad was misleading and denigratory, because it implied that bingo clubs generally were closed and that bingo clubs were a 'dying' industry.
Camelot Group (Camelot) said the ad was intended to highlight that a winner of a National Lottery scratchcard could 'upgrade' a particular aspect of their life. They believed the ad did not imply that bingo halls generally were closed or that bingo clubs were a dying industry. They said they understood that most bingo clubs did not open before 10.00 and often not until 10.30 or later. They said bingo clubs were not open 24 hours a day but, in contrast, National Lottery scratchcards could be purchased 24 hours a day from many outlets and customers could therefore purchase a scratchcard early in the morning when their bingo club was likely to be closed.
The ASA noted the sign outside the bingo hall stated "Closed", not "Closed down", and posters outside the bingo hall mentioned the prizes that could be won. We also noted Camelots argument that the ad was shot in the early morning and therefore outside a bingo halls normal operating hours. We considered, however, that it was not clear from the ad what time of day it was and it would not be obvious to viewers that it was intended to represent the early morning. We also considered that the padlock and chains around the door, in conjunction with the "Closed" sign, the aged drab look of the bingo hall and the sound of the woman tutting, gave the impression that the bingo club was closed permanently, not that it was merely closed because of the time of day. We also considered that those images implied that bingo clubs in general were closing down and the industry was dying. We concluded that the ad was misleading and denigrated the bingo industry.
The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.4.3 (Denigration) and 5.4.6 (Comparative advertising).
The ad must not be broadcast again in its current form.
Read the entire ruling here.
The News of the World editor, Colin Myler, defended his paper's representation of Max Mosley's sexual pastimes in court yesterday. Mr. Myler told the court that the representation was "fair and reasonable." Another NoW reporter testified that the coverage was newsworthy. Mr. Mosley is head of FIA, Federation Internationale de l'Automobile. His parents were Sir Oswald Mosley, a supporter of Adolf Hitler, and Diana Mitford. He is suing NoW for invasion of privacy. Here's more from the New York Times.
AFTRA, the second-largest actors union, has okayed a three year contract with AMPTP, the Alliance of Motion Picture and Television Producers, leaving the Screen Actors Guild on its own to negotiate a deal with the studios. SAG had urged its sister union not to ratify the agreement, but nearly 63 percent of the members, among them a good many who belong to both SAG and AFTRA, thought the contract provisions good enough for a "yes" vote. Read more here in an AP story and here in a story from the Hollywood Reporter.
"Spiderman, Spiderman, Doin' whatever a spider can!" Well, not really. David Malone is the third person to shimmy up the New York Times Building in the past few weeks, and the third to find New York's finest waiting for him when he climbed down. The first two, Renaldo Clarke and Alain Robert, did it June 5. Mr. Robert, who also uses the name "Spiderman," is known for his stunts, and a grand jury has refused to indict him. Mr. Clarke is still facing charges. Mr. Malone, the author of Bin Laden's Plan, is now at Bellevue undergoing evaluation.
Tuesday, July 8, 2008
We'll see who survives this lawsuit: "Survivor" producers Mark Burnett and Conrad Riggs are fighting over who owes whom what. Mr. Riggs claims that Mr. Burnett owes him more than $70 million for his contributions; Mr. Burnett says Mr. Riggs failed to sign a formal agreement last year. Read more here.
Monday, July 7, 2008
Sunday, July 6, 2008
A United States District Judge has issued a gag order that raises interesting issues of First Amendment law, because it prohibits a local tv reporter, who's also a witness in the trial, from reporting on that trial. Nashville reporter Phil Williams found out some interesting info about State Senator John Ford, who resigned and is now facing corruption charges, and turned over the evidence after reporting on it. Now Mr. Williams is on the witness list. Judge Todd Campbell told witnesses they may not speak about the case, a problem for Mr. Williams and his station, who are now challenging the gag order.
[Thanks to Tom Wood for the tip].