September 16, 2008
Pretty In Ink?
The news anchor at a major British network says some of his colleagues are chosen "for their looks." Does that indicate he thinks they may not have the qualifications to do their jobs? Mark Austin of ITV said in an interview, "Naming no names, but particularly on the 24-hour news channels. I do believe, though, that they'll get found out." Oh, dear. Read more here.
Fourth Circuit Rules Talk Show Host's Comments About Military Contractor Protected By First Amendment
The Fourth Circuit has ruled that a defendant talk show host did not act with actual malice in discussing actions of plaintiff military contractor since she relied on army reports in making her comments.
The actual malice “rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law rule compelling the critic of official conduct to guarantee the truth of all his factual assertions would deter protected speech.” ... CACI does not contest its status as a public figure. CACI became a public figure because the U.S. Army's military intelligence branch was woefully short of interrogators and engaged CACI to provide civilian interrogators at Abu Ghraib. CACI surely knew when it accepted the interrogation work that it was potentially exposing itself to the inhospitable climate of media criticism — criticism that could be emboldened by the actual malice standard....After the shocking pictures of the Abu Ghraib abuses were broadcast on 60 Minutes II in April 2004, and even more shocking revelations followed, CACI became a prime target of media criticism and comment. As the district court aptly noted, “[h]eads of states, public officials, media sources, academics, and individuals throughout the world took note of, and commented on, the events at the Abu Ghraib prison,” where CACI played a prominent role....The district court concluded that the Fay/Jones and Taguba reports “gave Ms. Rhodes reasonable grounds to make claims that CACI employees either directed United States military personnel or acted in the capacity of United States personnel when directing military personnel.” ...Therefore, the district court concluded that Rhodes's statements about CACI employees misrepresenting their authority and inappropriately assuming positions of authority were not made with actual malice. We conclude that the two military reports, together with other sources, support the district court's determination....On August 10, 2005, while speaking on her show about the treatment of Iraqi detainees at Abu Ghraib, Rhodes said in statement 1: “[T]he people that are torturing … are not our troops but it's CACI and Titan.” ...The district court, in considering this statement, held that there was sufficient information in Rhodes's sources to prevent CACI from establishing that she spoke with actual malice. According to the court, CACI could not establish that Rhodes “recklessly disregarded the truth when alleging that CACI employees had tortured Iraqi detainees.” ... We agree....In statement 1 Rhodes also referred to rape at Abu Ghraib, saying, “the people that are … raping,” that is, “the ones that are being paid to do this are not our troops but it's CACI and Titan.” The district court determined that Rhodes's sources provided sufficient support for this statement to preclude a finding that Rhodes spoke with reckless disregard for the truth. We agree....Several of Rhodes's statements that CACI challenges as defamatory are not actionable because they do not assert actual facts about CACI. As we noted above, the First Amendment protects statements “that cannot reasonably [be] interpreted as stating actual facts about an individual” or entity.... This category of protection allows for rhetorical hyperbole and other types of imaginative or exaggerated expression....CACI contends that Rhodes accused it of fighting on the side of apartheid and Mobutu, the former dictator in Zaire. On two occasions, in denouncing the use of contractors in Iraq, Rhodes mentioned that some individuals now working for contractors in Iraq had fought on the side of the apartheid and Mobutu regimes. In statement 3 on August 15, 2005, while discussing the New York Times Magazine article on the use of military contractors in Iraq and earlier conflicts, Rhodes said:No one dared talk about all these companies, Blackwater, and CACI, and Titan, and now this new one, Three Canopies, that really didn't even exist until this was started… . And these people … . They're not loyal to America. They're loyal to the corporation. And they have fought on the side of Apartheid … . These guys literally fought on the side of Mobutu who used to chop peop—, little children's hands off… . And these same guys, same people, that are making up these mercenary companies, same ones, are now over in Iraq doing whatever.... In statement 12 on August 26, Rhodes repeated her point:I'm for getting the mercenaries who are making $3,000 a week out of there, who are not loyal … to this country, don't care a thing about democracy, they care about the bottom-line of Triple Canopy or Blackwater or CACI or Titan or DynCorp, and they are some of the most notoriously evil people, and they are getting paid with our tax dollars. These are guys … they would find on the side of the government in South Africa that wanted to keep apartheid. They fought on the side of the government that was literally chopping off young boys’ hands because they didn't want to kill them. They wanted them to be handless as little reminders to everybody, that if you stood up to this government, that's what's going to happen to you, and they were like walking billboards for tyranny, for treachery, for murder!...The district court concluded that these statements were “immune from defamation liability” because the reasonable listener would understand that they were not stating actual facts about CACI itself.... We agree....We turn finally to three related statements that are appropriately analyzed under both the actual malice standard and the standard protecting statements that cannot reasonably be interpreted as stating actual facts about an individual or entity. In these statements, all made on August 24, 2005, Rhodes discussed the murder of inmates at Abu Ghraib. In statement 5 she said: “So there are more photos of Abu Ghraib … . [T]here are Congress people who have seen them and they are disgusted by them. There are videos. And, yes, they clearly show … [the] murder of people who have been caught in these dragnets in Iraq.”... A few sentences later in statement 6, she continued: “And now we have this documentary, photographic, videographic evidence of some of the really sick, twisted stuff that … was done and carried out, not by generals and not by military people but were [sic] ordered by people who work for private contractors, mercenaries if you will.” ... In statement 8 Rhodes finished her point, saying:Unless we actually apologize for these, unless we actually have a president of the United States who says—look what's been done here and I know who did it and this is who did it and it was CACI and it was Titan and it was Blackwater and it was Halliburton and it was Bechtel and it was Dyn-Corp. and it was this one and it was Triple [Canopy] —- whoever it was, and he actually says these people are going to be put on trial and they will be charged with murder. … Until and when and if that happens, the recruitment for Al Qaeda is going to surpass our recruitment capabilities here in the United States....CACI contends that in these statements Rhodes states the “actual fact” that CACI committed murder at Abu Ghraib. The statements themselves refute this contention. To begin with, the statements urge the United States to apologize for “the really sick, twisted stuff” that occurred at Abu Ghraib and to identify any culprit among the private contractors that ordered soldiers to abuse detainees.... As the district court noted, the only time CACI was mentioned in the August 24 statement was when she called on the President to investigate and identify any responsible contractor — CACI, Titan, Blackwater, Halliburton, Bechtel, Triple Canopy, or “whoever it was” — and put the contractor on trial for murder. Rhodes simply provided an open-ended list of potential targets for investigation without assigning blame to any particular contractor. She reserved judgment and urged the President to bring “whoever it was” — the responsible party or parties — to justice. Rhodes, under any reasonable interpretation of these statements, was not saying that CACI committed murder at Abu Ghraib.Even if we assumed that Rhodes in these statements was suggesting that CACI was responsible for murder at Abu Ghraib, the statements would be, as the district court concluded, protected by the actual malice standard. First, Rhodes's sources reported the murder or death in suspicious circumstances of Abu Ghraib detainees. A U.S. Senator, after reviewing unpublished photographs in the possession of the U.S. Department of Defense, said that the photographs contained scenes of murder at Abu Ghraib. The Taguba report found that photographs had been taken of dead Iraqi detainees at Abu Ghraib, and several photographs of at least one dead (and beaten) detainee were actually released. One detainee, recently transferred to military custody at Abu Ghraib, was discovered in a shower stall dead, handcuffed, and hooded with a sandbag. The Taguba report and Brigadier General Karpinski concluded that CACI employees, among others, were responsible for the range of atrocities at Abu Ghraib, and certain of Rhodes's sources indicated that murder was among the atrocities committed. Accordingly, Rhodes would not have been speaking with reckless disregard for the truth if she had suggested that CACI was responsible for murder. In other words, she would not have been speaking with a “high degree of awareness of [the] probable falsity” of her statement....Accordingly, Rhodes's statements 5, 6, and 8 relating to murder at Abu Ghraib are protected by the First Amendment....We have made a thorough and independent examination of the whole record, and we are satisfied that each of Rhodes's statements that CACI challenges as defamatory is protected by the First Amendment: either it was not made with reckless disregard for the truth or it did not state actual facts about CACI (it was rhetorical hyperbole, for example). This case reminds us that “[i]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public [issues], and this opportunity is to be afforded for vigorous advocacy” that may be caustic and even exaggerated....This essential privilege minimizes the danger of self-censorship on the part of those who would criticize, thus allowing robust debate about the actions of public officials and public figures (including military contractors such as CACI) who are conducting the country's business.
September 15, 2008
Sixth Circuit Allows Lawsuit Challenging Kentucky's Tax Injunction Act To Go Forward
The Sixth Circuit has ruled that a lawsuit challenging Kentucky's Tax Injunction Act, which bars the explanation of a new tax on consumer communication bills, is not barred by the Act. Said the court, the state's justifications fail "to satisfy even the intermediate scrutiny that applies to restrictions on commercial speech." The court remanded to the lower court for further proceedings.
No one disputes Kentucky's authority to impose this tax, the providers' responsibility to pay it or Kentucky's authority to prevent providers from switching the legal incidence of taxation to their customers. And no one disputes the providers' right to raise prices to account for this additional cost of doing business. The question is whether the Commonwealth may permit providers to raise prices but prohibit them from using their invoices to say why without running afoul of the "freedom of speech" protections of the First (and Fourteenth) Amendment. Whether the no-stating-the-tax provision is more akin to a price-advertising ban (governed by the commercial-speech doctrine) or to a ban on protesting a new tax in the forum most likely to get consumers' attention (governed by the political-speech doctrine) need not detain us. For it fails to satisfy even the intermediate scrutiny that applies to restrictions on commercial speech. The district court having come to a similar conclusion, we affirm. To the extent the district court also meant to invalidate the provision that bars providers from collecting the tax directly from the consumer, a point not entirely clear from the decision, we reverse that portion of its decision, as this provision regulates conduct, not speech.
In one sense, the law looks like it regulates commercial speech, which the Court variously has defined as "expression related solely to the economic interests of the speaker and its audience,"... The Commonwealth does not wish to regulate the providers' speech about the new tax in any venue but one: a commercial invoice. And that venue suggests that the law concerns just "the economic interests" of the parties or just the means to describe a completed commercial transaction or to propose a new one. That the law primarily regulates "economic interests" also is suggested by our suspicion that the providers would not offer to provide a line item on an invoice if the Commonwealth lowered or eliminated this tax. The providers, like most businesses, are pursuing their economic interest in preserving their shareholders' return on their investment. And one honest, yet market-savvy, way to do that is to raise prices to offset the 1.3% tax while telling customers that the price increase will permit them to maintain, not expand, profits.
In another sense, the law looks like a ban on core political speech. Just because an "economic motivation" underlies speech, we know, does not "by itself" convert it into "commercial speech."... And what is going on here is more than just a debate about how best to sell toothpaste or, as here, telephone services. It is about announcing who bears political responsibility for a new tax and about doing so in the forum most likely to capture voters' attention: an invoice that displays a predictable consequence of the tax. At the same time that the law limits the providers' efforts to duck economic responsibility for a price increase, it permits legislators to duck political responsibility for the new tax. It takes little imagination to envision why an elected official would prefer to evade accountability for a tax increase--whether that official has taken a "Taxpayer Protection Pledge," as one of the amicus curiae alleges some Kentucky legislators have taken, or not....Either way, the no-stating-the-tax provision, passed at the same time as the underlying tax, facilitates keeping consumers (and voters) in the dark about the tax and its impact on their wallets.
Perhaps our difficulty in placing a label on the law suggests it is a hybrid, one that implicates commercial and political speech, that implicates the interests of consumers and voters and that draws its heritage as much from protests over the Townshend Acts as from the Wealth of Nations. If that is the case, we presumably would apply the more rigorous scrutiny. All laws, for example, must satisfy the Equal Protection Clause's ban on irrational line-drawing. Yet that does not mean rational-basis review governs a lawsuit challenging legislative lines drawn on racial or gender grounds. The more rigorous scrutiny would apply, just as one might say it ought to apply here.
While it may often be the case that a "'commonsense' distinction" will divide commercial speech from other speech, ... this is not one of those cases. It remains difficult to pin down where the political nature of these speech restrictions ends and the commercial nature of the restrictions begins. Yet because Kentucky's regulation does not survive even the less-stringent intermediate level of scrutiny applicable to commercial speech and because a choice between these categories thus would not affect the outcome of the case, we can save the issue for another day and decide only what we must to resolve this dispute....Central Hudson announced a four-part test to gauge the validity of commercial-speech regulations: (1) does the challenged law regulate speech, does the proposed speech concern lawful activity and is it non-misleading? (2) is the governmental interest substantial? (3) does the regulation directly advance the governmental interest? and (4) is the regulation [*18] more extensive than necessary to serve that interest?...Gauged by this test, the law must fall.
First, this provision regulates speech, not conduct, as it prohibits providers from "stat[ing]" the tax on the bill. And as the positions of the parties illustrate, their debate concerns what the providers may say, not what they may do. The Commonwealth has no objection to the providers' conduct (raising prices to account for the new tax), just its speech (saying why it has raised prices).
In seeking to list the tax on consumer invoices, the providers' proposed speech also does not concern unlawful activity. If, as Kentucky has acknowledged, it does not oppose the providers' efforts to raise prices to account for the new tax, speech about the reasons for these price increases does not advance an illegal transaction. Nor does Kentucky law contain a general ban on line-item tax descriptions that the providers' invoices otherwise would violate. Indeed, the Commonwealth in some instances requires line item tax descriptions, even when (as here) the tax is imposed on the retailer....The lawfulness of the activity does not turn on the existence of the speech ban itself; otherwise, all commercial speech bans would all be constitutional.
Nor is the speech "inherently misleading" such that it receives no First Amendment protection....The proposed speech is truthful and verifiable: The Commonwealth in fact imposed a 1.3% tax on the gross revenues of providers; the providers in fact increased prices to absorb the tax; and, so far as the record shows, the providers in fact intend to send invoices that will accurately show the amount by which the new tax increases prices.
Kentucky nowhere argues that the providers' speech is false. And truthfully telling customers why a company has raised prices simply by listing a new tax on a bill, it seems to us, is not the kind of false, inherently misleading speech that the First Amendment doesnot protect. Were it otherwise, we doubt that the United States Congress, the Federal Communications Commission or the Commonwealth would endorse line-item listings of taxes in one form or another....Second, while the Commonwealth has done little to justify this ban, we will accept solely for the sake of argument that Kentucky's interest in avoiding potential consumer confusion--here, that consumers, rather than the providers, bear legal responsibility for the 1.3% tax--is substantial.
Third, the regulation does not directly advance the government's interest in avoiding consumer confusion over responsibility for paying the tax. By considering whether the government's goals and the regulation's scope align or whether the regulation is riddled with "exemptions and inconsistencies," the directly advance prong seeks to ferret out whether a law ostensibly premised on legitimate public policy objectives in truth serves those objectives....
Read the entire opinion here.
The Times on Libel Tourism
The New York Times' Adam Cohen posts this editorial on libel tourism today.
An Overview of Music-Related Offenses
Examines offences in the music industry such as counterfeiting, piracy and breaches of copyright.
Copyright's Default Rules and the Internet
This article studies the rise of copy-reliant technologies - technologies such as Internet search engines and plagiarism detection software that, although they do not read, understand or enjoy copyrighted works, necessarily copy them in large quantities. This article provides a unifying theoretical framework for the legal analysis of topics that tend to be viewed discretely. Search engines, plagiarism detection software, reverse engineering and Google's nascent library cataloging effort, are each part of a broader phenomenon brought about by digitization, that of copy-reliant technologies. These technologies raise two novel, yet central, questions of copyright law. First, whether a non-expressive use that nonetheless requires copying the entirety of a copyright work should be found to infringe the exclusive rights of the copyright owner. Second, whether the transaction costs associated with copy-reliant technologies justify switching copyright's default rule that no copying may take place without permission to one in which copyright owners must affirmatively opt-out of specific uses of their works.