Friday, November 7, 2008
PRESS RELEASE: New Text Provides Legal Resource on Student Journalism
Law of the Student Press Addresses 21st Century Media Issues
© 2008 Student Press Law Center
November 7, 2008
each year through its attorney hotline and its website, www.splc.org.
Just as the BBC was recovering (slightly) from the Russell Brand/Jonathan Ross horror show, Jeremy Clarkson let loose on last Sunday's episode of Top Gear with a joke about truck drivers murdering sex workers. The BBC defended airing the quip (and the pre-recorded show) by saying that audiences know Mr. Clarkson's on air persona quite well.
The vast majority of Top Gear viewers have clear expectations of Jeremy Clarkson's long-established and frequently provocative on-screen persona. This particular reference was used to comically exaggerate and make ridicular an unfair urban myth about the world of lorry driving, and was not intended to cause offence.
However, in February an Ipswich truck driver was sentenced to life in prison for killing five women who had worked as prostitutes in the city. The high profile trial heightened awareness of dangers to sex workers and of unsolved murders. Mr. Clarkson's remarks, say some, suggest that he is "insensitive" to these dangers.
Meanwhile, BBC Director General Mark Thompson indicated earlier this week that the broadcaster will no longer be offering high paying contracts to its celebrity hires in the wake of Sachsgate.
Here's a link to the transcript of oral argument in FCC v. Fox, on appeal from the 2nd Circuit, argued Tuesday. Among the interesting questions posed from the bench:
From Justice Ginsburg,
One of the problems is that, seeing it in operation, there seems to be no rhyme or reason for some of the decisions that the Commission has made. I mean, the "Saving Private Ryan" case was filled with expletives, and yet the film about jazz history, the words were considered a violation of the Commission's policies. So that there seems to be very little rhyme or reason to when the Commission says that one of these words is okay and when it says it isn't.
GENERAL GARRE: Well, we do think, of course, that there is rhyme or reason to its determination. First, let me say that much of the vagueness type of arguments that the Respondents are making similar to your question could be made equally with respect to the Commission's policy with respect to repeated utterances as well as isolated utterances.
If you take the "Saving Private Ryan" and the blues documentary example, those were repeated utterances cases. We are here because they challenged the Commission's change in policy to go from repeated utterances to consider enforcement actions in the case of isolated expletives where they met its contextual analysis and where it was explicit, graphic, shocking or pandering in the context.
Now, I think certainly there are going to be situations and this Court has indicated that the vagueness inquiry doesn't turn about coming up with hypotheticals at -- at the outer margins of the standard.
I think in the Pacifica case our reading of the Court's decision is similar to the D.C. Circuit's reading of that decision in the Action for Children's Television case, that implicit in the Court's decision in Pacifica was that it rejected a vagueness challenge to the Commission's definition of "indecency," which is the same definition that the Commission is applying today.
Forty states' attorneys general and the popular online site Craigslist have come to an agreement concerning those "erotic services" ads that have been proliferating, and gaining attention, since last year. Craigslist will now require such advertisers to verify their identities and pay for their ads using credit cards, and it will funnel such payments to NGOs engaged in supporting and fighting for women's and children welfare. Read more about the agreement between Craiglist and law enforcement here in a New York Times story.
Poor Barney Bush. First, his favorite party animals lose on Tuesday. Then he can't even take a quiet walk outside, one of his few remaining as Top Dog, without being bothered by reporters. But, Barney. Dude. Chill. Meditate on the name you share with a Big Purple Dinosaur. After all, your species did win an important election in Rabbit Hash, Kentucky. And the Obamas don't seem to be completely Clintonized. After all, they aren't (gasp) Cat People.
Thursday, November 6, 2008
The Supreme Court of Florida has refused to recognize the tort of false light but has recognized defamation by implication, in the case of Jews for Jesus v. Rapp.
Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort and answer the certified question in the negative. In declining to recognize false light, we resolve two additional issues raised by this case. First, we conclude that Florida recognizes a cause of action for defamation by implication. Second, we hold that a communication can be considered defamatory if it "prejudices" the plaintiff in the eyes of a "substantial and respectable minority of the community," as set forth in comment e of the Restatement (Second) of Torts § 559 (1972).
The case is Jews for Jesus v. Rapp, decided October 23, 2008.
Turkey may make its anger known to the British government over an ITV documentary on conditions in some state-run Turkish orphanages. Sarah Ferguson, former wife of the Duke of York, participated in a visit to the orphanages, but did not reveal her identity during the trip. The Turkish government indicated that it believed the ITV crew wanted to portray the government in a "bad light" as Turkey tries for entry into the European Union, and that the former Duchess was part of the attempt. ITV has defended its news gathering and its documentary. Read more here in a Guardian story.
China Business Post reporter Cui Fan has sued the Chinese government for closing down the paper, alleging Beijing does not have the authority to do so. She is asking for the paper's reinstatement as a going concern, damages, and an apology. Although she is unlikely to succeed in her lawsuit, Guardian reporter Tania Branigan notes that such a move shows members of the Chinese media are becoming more willing to stand up for their rights. Read more here.
Wednesday, November 5, 2008
Many attorneys, judges, and journalists have claimed that watching television programs like CSI has caused jurors to wrongfully acquit guilty defendants when no scientific evidence has been presented. This so-called effect was promptly dubbed the "CSI effect," laying much of the blame on the popular television series and its progeny. This study of 1027 jurors found that 46 percent expected to see some kind of scientific evidence in every criminal case; 22 percent expected to see DNA evidence in every criminal case; 36 percent expected to see fingerprint evidence in every criminal case; and 32 percent expected to see ballistic or other firearms laboratory evidence in every criminal case. The findings also suggested that expectations for particular types of scientific evidence seemed to be rational based on the type of case.
For all categories of evidence CSI viewers generally had higher expectations than non-CSI viewers but the CSI viewers had higher expectations about scientific evidence that was more likely to be relevant. Interestingly, potential jurors' increased expectations of scientific evidence did not translate into a demand for this type of evidence as a prerequisite for finding someone guilty. Jurors were more likely to find a defendant guilty than not guilty even without scientific evidence if the victim or other witnesses testified, except in the case of rape. On the other hand, if the prosecutor relied on circumstantial evidence, the prospective jurors said they would demand some kind of scientific evidence before they would return a guilty verdict.
There was scant evidence in our survey results that CSI viewers were either more or less likely to acquit defendants without scientific evidence. Only 4 of 13 scenarios showed significant differences between viewers and non-viewers on this issue, and they were inconsistent. In the "every crime" scenario, CSI viewers were more likely to convict without scientific evidence if eyewitness testimony was available. In rape cases, CSI viewers were less likely to convict if DNA evidence was not presented.
In both the breaking-and-entering and theft scenarios, CSI viewers were more likely to convict if there was victim or other testimony, but no fingerprint evidence. Although CSI viewers had higher expectations for scientific evidence than non-CSI viewers, these expectations had little, if any, bearing on the respondents' propensity to convict.
Download the article from SSRN here.
This study examines the coverage of the Supreme Court of Israel functioning as the High Court of Justice (HCJ) in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media. Our results show that more prominent coverage of the HCJ over time, especially in the elite press, accentuates the salience of the Supreme Court in public life. In addition, the topics, the stages of the HCJ proceedings, the petitioners, and the outcome of the cases covered by the press, as well as the generally uncritical reporting of the Court decisions help create the frame of an autonomous, powerful Court that frequently opposes and restrains the government. We suggest that the pattern of media coverage of the HCJ benefits both the Court and the media: it reinforces the image of the media as a critical watchdog of the government, while at the same time it legitimates the Court's expansion of power and strengthens its image as an apolitical and independent institution.
Download the paper from SSRN here.
In its continuing efforts to promote efficient use of spectrum and to extend the benefits of such use to the public, the Federal Communications Commission (FCC) today adopted a Second Report and Order (Second R&O) that establishes rules to allow new, sophisticated wireless devices to operate in broadcast television spectrum on a secondary basis at locations where that spectrum is open. (This unused TV spectrum is now commonly referred to as television “white spaces”). The rules adopted today will allow for the use of these new and innovative types of unlicensed devices in the unused spectrum to provide broadband data and other services for consumers and businesses.
The rules represent a careful first step to permit the operation of unlicensed devices in the TV white spaces and include numerous safeguards to protect incumbent services against harmful interference. The rules will allow for both fixed and personal/portable unlicensed devices. Such devices must include a geolocation capability and provisions to access over the Internet a data base of the incumbent services, such as full power and low power TV stations and cable system headends, in addition to spectrum-sensing technology. The data base will tell the white space device what spectrum may be used at that location.
Wireless microphones will be protected in a variety of ways. The locations where wireless microphones are used, such as sporting venues and event and production facilities, can be registered in the data base and will be protected in the same way as other services. The Commission also has required that devices include the ability to listen to the airwaves to sense wireless microphones as an additional measure of protection for these devices.
All white space devices are subject to equipment certification by the FCC Laboratory. The Laboratory will request samples of the devices for testing to ensure that they meet all the pertinent requirements.
The Commission also will permit certification of devices that do not include the geolocation and data base access capabilities, and instead rely solely on spectrum sensing to avoid causing harmful interference, subject to a much more rigorous approval process.
The National Union of Journalists has indicated it plans to survey members concerning a possible strike because ITV management, NUJ says, is not cooperating in formal negotiations over handling job cutbacks. The union says it had offered to go to an arbitrator with the network after talks broke down, but that ITV had not agreed. ITV does not see the situation in the same light. Ofcom is monitoring the situation and is due to release a report in a couple of months. Read more here in a Guardian story.
Tuesday, November 4, 2008
Authorship and ownership exist in a curious relation in U.S. copyright law. In theory and common sense, authorship underwrites and is the condition of ownership, but in practice ownership can establish authorship retroactively. Distinctions between proprietary and non-proprietary creative cultural workers, in this view, turn in no essential way on evidence of creativity or the investment of personality in cultural creation. This paper examines a legislative struggle between recording artists and the recording industry over the status of their stock-in-trade, sound recordings. In 2000, recording artists obtained the repeal of a 1999 law allocating authorship and ownership of recordings to their record company contractors through the former's assertions not of authorship in the commonsense understanding, but through the artists' legal ability to alienate their employed backup musicians, engineers and other creative personnel. Analyzing this struggle against the backdrop of a historical/theoretical consideration of the dynamics of domination and dispossession naturalized in the employment relationship, I show how the political-economic organization of creative production in the cultural industries depends crucially on and further naturalizes this legal furniture of the social world (Ellerman, 1992), as much or more than it does on immanent aspects of cultural products or production processes.
Download the paper from SSRN here.
Days before a trial was to begin, the Daily Mail will pay Italian soccer player Marco Materazzi "substantial" damages for printing stories that he made racial comments to French rival Zinedine Zidane that made him so angry during a game that he lost his temper during the 2006 World Cup final. After the game, Mr. Materazzi said he had made personal, insulting comments to Mr. Zidane but denied that they were racial, and said they were the same kind of the remarks that soccer players often make to one another. Mr. Zidane told an interviewer that Mr. Materazzi had said "very personal things" but he "tried not to listen."
At least one other newspaper which has printed about Mr. Materazzi's racial statements to Mr. Zidane have has retracted them and agreed to pay damages. The Daily Mail will print an apology and pay Mr. Materazzi's costs as well as damages. Read more here in a Guardian story.
Monday, November 3, 2008