Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, November 21, 2008

Judge Rules Names Of Two Convicted in Death of "Baby P" Cannot Be Published

Newsweek's Rod Nordland writes about the contempt of court order that prevents the British press from publishes the names of two of those convicted in the death of "Baby P," a toddler who never made it to the age of two, and who sustained horrific abuse before his little body gave out in 2007. Police and social workers visited his home numerous times, and a physician examined him, but somehow, no one could help him. The mother, stepfather, and Jason Owen, a man who lived in the house with them, all convicted for "causing or allowing" the child's death, await sentencing. Meanwhile, British police are investigating sites that have posted or allowed posting of the names of the mother and stepfather in violation of the court order.

November 21, 2008 | Permalink | TrackBack (0)

Louisiana Appellate Court Rules Police Files Public Records Under Louisiana Public Records Act

A Louisiana appellate court has ruled that a trial court erred in not ordering disclosure of redacted police files under the Louisiana Public Records Act, since the public had a strong interest in the information contained in them and the police officers did not have an individual privacy interest in them.

In this appeal, we consider whether the trial court erred in concluding that Internal Affairs Division (“IAD”) files of the Baton Rouge Police Department (“the BRPD”), be deemed confidential under La. R.S. 40:2532 and not subject to disclosure under the Public Records Act, La. R.S. 44:1 et seq. Finding that the police officers under investigation had no individual privacy interest in these files and recognizing a strong public interest in disclosure, we find the trial court erred in not ordering disclosure of the records after the redaction of certain protected information, as later directed in this opinion. We hereby issue a writ of mandamus directing the BRPD and the East Baton Rouge Parish Metropolitan Council (“the Metropolitan Council”) to make available to Capital City Press, L.L.C. d/b/a/ The Advocate (“Capital City Press”) a redacted copy of the IAD files within ten days of the finality of this opinion. Accordingly, we reverse the trial court's judgment and remand for a determination of the amount of attorneys’ fees and litigation costs due to Capital City Press.
Read the entire opinion here. The case is City of Baton Rouge v. Capital City Press (decided Oct. 10, 2008).

November 21, 2008 | Permalink | TrackBack (0)

PRC Government Allows Press to Report "Bad News"

Reuters reports that Beijing is allowing the Chinese press to report "bad news." The thought seems to be that this approach will mitigate some of the negative effects of stories that spread through new communications technologies, such as the Internet, which the government has much more trouble controlling. Read more here.

November 21, 2008 | Permalink | TrackBack (0)

Update On Cancelled TV

Media TV update for Friday: MSNBC.com's Linda Holmes suggests there's a dearth of understanding of medmal on Grey's Anatomy. "Hilariously, it was decided that, for performing unauthorized and unnecessary surgery on a patient they almost killed, the creepy interns would get probation. PROBATION." Check out this week's episode here.

Meanwhile, ABC isn't picking up Eli Stone, Pushing Daisies, or Dirty Sexy Money for next year. We already knew Boston Legal wasn't returning. Four law-related dramas, gone.

November 21, 2008 | Permalink | TrackBack (0)

Jon Gaunt and Freedom of Speech

Meanwhile, the Guardian's Mark Lawson sticks up for freedom of speech--even shock jock Jon Gaunt's--after Mr. Gaunt is fired from TalkSport over his remarks about "health Nazis." He compares the reaction to Mr. Gaunt's remarks, and his firing, with what he refers to as "Granddaughtergate" (the Brand/Ross flap), and suggests that had that not occurred, Mr. Gaunt might still be employed.

November 21, 2008 | Permalink | TrackBack (0)

BBC Trust On Brand/Ross Calls To Andrew Sachs

The BBC Trust has spoken. Its head, Sir Michael Lyons, noted that the Russell Brand/Jonathan Ross situation could have been "avoided" if the BBC had paid attention to its own guidelines, and the pair was likely to be troublesome. But he also seem to think the matter is now closed, and supports the actions taken by BBC Director General Mark Thompson. The Trust recommended that the BBC create a list of "high-risk" programs to try to anticipate further problems. Read more here; the page also provides a link to Sir Michael's comments. Here's a link to the BBC Trust's report.

November 21, 2008 | Permalink | TrackBack (0)

Thursday, November 20, 2008

Tennessee State, Hampton U, Decide To Block Access To JuicyCampus.Com

Both Tennessee State University and Hampton University have decided to begin blocking access to JuicyCampus.com, the popular gossip site. Matt Ivester, the head of JuicyCampus.com, said the company is "considering" its "legal options," apparently since TSU is a publicly funded university. TSU decided to block access because the parent of a student had contacted TSU administration about comments concerning the students that had been posted on the site. Read more here in a Chronicle of Higher Education story.

November 20, 2008 | Permalink | TrackBack (0)

The Last Dance

John Sergeant, the journalist celeb on Britain "Strictly Come Dancing" who kept disappearing courtesy of the judges and reappearing courtesy of the fans, had one more turn around the dance floor with partner Kristina Rihanoff. As the fox trotted off, he said, "We had fun dancing, and dancing is a wonderfully enjoyable thing, but if the joke wears thin - if people begin to take things very seriously, and if people are getting so wound up that it is very difficult to carry on the joke - then it is time to go." Indeed. Read more here.

November 20, 2008 | Permalink | TrackBack (0)

Politkovskaya Murder Trial Now To Take Place Behind Closed Doors

The judge in charge of the Politkovskaya murder trial has closed it to the media, and has been severely criticized by journalists and human rights groups as well as by Ms. Politkovskaya's friends and family. He had originally said that the trial would be open, but now says that he is worried about potential threats to the jurors. Read more here in a Guardian article.

November 20, 2008 | Permalink | TrackBack (0)

Wednesday, November 19, 2008

Still Auf the Air: Project Runway

The New York Times reports on the ongoing battle between Lifetime and NBC over the show Project Runway, which the Weinsteins thought they had sold to Lifetime earlier this year. NBC sued, saying it had a right of first refusal. Drama ensued. The case now sits in federal court, awaiting a decision on whether it should return to state court. Meanwhile, in anticipation of the evential loss of the series, NBC is preparing its own potential rival fashions to Project Runway. Make it work, people.

November 19, 2008 | Permalink | TrackBack (0)

Department of Education's New Info Gathering System Seems To Overreach, Say Education Lobbying Groups

The Department of Education's proposed new data mining system, intended to combat fraud and abuse, is taking some heat from groups such as the American Council on Education and the American Association of Universities, which see it as unlikely to gather data accurately. It also provides a Privacy Act waiver.

Federal Register: October 16, 2008 (Volume 73, Number 201)]
[Notices]            
[Page 61406-61412]

This system of records is maintained for the general purpose of
enabling OIG to fulfill the requirements of section (4)(a)(1) and (3)
of the Inspector General Act of 1978, as amended, which requires OIG to
provide policy direction for and to conduct, supervise, and coordinate
audits and investigations relating to the programs and operations of
the Department and to conduct, supervise and coordinate activities for
the purpose of promoting economy and efficiency in the administration
of, or preventing and detecting fraud and abuse in, the programs and
operations of the Department. This system is maintained for the purpose
of improving the efficiency, quality, and accuracy of existing data
collected by the Department. Records in this system will be used to
conduct data modeling for indications of fraud, abuse and internal
control weaknesses concerning Department programs and operations. The
result of that data modeling may be used in the conduct of audits,
investigations, inspections or other activities as necessary to prevent
and detect waste, fraud and abuse in Department programs and
operations.

...

The Department may disclose information contained in a record in
this system of records without the consent of the individual if the
disclosure is compatible with the purpose for which the record was
collected, under the following routine uses. OIG may make these
disclosures on a case-by-case basis or, if OIG has met the requirements of the
Computer Matching and Privacy Protection Act of 1988, as amended, under
a computer matching agreement.
    (1) Disclosure for Use by Other Law Enforcement Agencies. The
Department may disclose information from this system of records as a
routine use to any Federal, State, local, or foreign agency or other
public authority responsible for enforcing, investigating, or
prosecuting violations of administrative, civil, or criminal law or
regulations if that information is relevant to any enforcement,
regulatory, investigative, or prosecutorial responsibility of the
receiving entity.
    (2) Disclosure to Public and Private Entities to Obtain Information
Relevant to Department of Education Functions and Duties. The
Department may disclose information from this system of records as a
routine use to public or private sources to the extent necessary to
obtain information from those sources relevant to an OIG investigation,
audit, inspection, or other inquiry.
    (3) Disclosure for Use in Employment, Employee Benefit, Security
Clearance, and Contracting Decisions.
    (a) For Decisions by the Department. The Department may disclose
information from this system of records as a routine use to a Federal,
State, local, or foreign agency maintaining civil, criminal, or other
relevant enforcement or other pertinent records, or to another public
authority or professional organization, if necessary to obtain
information relevant to a Department decision concerning the hiring or
retention of an employee or other personnel action, the issuance or
retention of a security clearance, the letting of a contract, or the
issuance or retention of a license, grant, or other benefit.
    (b) For Decisions by Other Public Agencies and Professional
Organizations. The Department may disclose information from this system
of records as a routine use to a Federal, State, local, or foreign
agency, other public authority, or professional organization in
connection with the hiring or retention of an employee or other
personnel action, the issuance or retention of a security clearance,
the letting of a contract, or the issuance or retention of a license,
grant, or other benefit.
    (4) Disclosure to Public and Private Sources in Connection with the
Higher Education Act of 1965, as Amended (HEA). The Department may
disclose information from this system of records as a routine use to
facilitate compliance with program requirements to any accrediting
agency that is or was recognized by the Secretary of Education pursuant
to the HEA; to any educational institution or school that is or was a
party to an agreement with the Secretary of Education pursuant to the
HEA; to any guaranty agency that is or was a party to an agreement with
the Secretary of Education pursuant to the HEA; or to any agency that
is or was charged with licensing or legally authorizing the operation
of any educational institution or school that was eligible, is
currently eligible, or may become eligible to participate in any
program of Federal student assistance authorized by the HEA.
    (5) Litigation and Alternative Dispute Resolution (ADR)
Disclosures.
    (a) Disclosure to the Department of Justice. If the disclosure of
certain records to the Department of Justice (DOJ) is relevant and
necessary to litigation or ADR and is compatible with the purpose for
which the records were collected, the Department may disclose those
records as a routine use to the DOJ. The Department may make such a
disclosure in the event that one of the following parties is involved
in the litigation or ADR or has an interest in the litigation or ADR:
    (i) The Department or any component of the Department;
    (ii) Any employee of the Department in his or her official
capacity;
    (iii) Any Department employee in his or her individual capacity if
the DOJ has been asked or has agreed to provide or arrange for
representation for the employee;
    (iv) Any employee of the Department in his or her individual
capacity if the Department has agreed to represent the employee or in
connection with a request for that representation; or
    (v) The United States, if the Department determines that the
litigation or ADR proceeding is likely to affect the Department or any
of its components.
    (b) Other Litigation or ADR Disclosure. If disclosure of certain
records to a court, adjudicative body before which the Department is
authorized to appear, individual or entity designated by the Department
or otherwise empowered to resolve disputes, counsel, or other
representative, party, or potential witness is relevant and necessary
to litigation or ADR and is compatible with the purpose for which the
records were collected, the Department may disclose those records as a
routine use to the court, adjudicative body, individual or entity,
counsel or other representative, party, or potential witness. The
Department may make such a disclosure in the event that one of the
following parties is involved in the litigation or ADR or has an
interest in the litigation or ADR:
    (i) The Department or any component of the Department;
    (ii) Any employee of the Department in his or her official
capacity;
    (iii) Any Department employee in his or her individual capacity if
the DOJ has been asked or has agreed to provide or arrange for
representation for the employee;
    (iv) Any employee of the Department in his or her individual
capacity if the Department has agreed to represent the employee; or
    (v) The United States, if the Department determines that the
litigation or ADR is likely to affect the Department or any of its
components.
    (6) Disclosure to Contractors and Consultants. The Department may
disclose information from this system of records as a routine use to
the employees of any entity or individual with whom or with which the
Department contracts for the purpose of performing any functions or
analyses that facilitate or are relevant to an OIG investigation,
audit, inspection, or other inquiry. Before entering into such a
contract, the Department must require the contractor to maintain
Privacy Act safeguards, as required under 5 U.S.C. 552a(m) with respect
to the records in the system.
    (7) Debarment and Suspension Disclosure. The Department may
disclose information from this system of records as a routine use to
another Federal agency considering suspension or debarment action if
the information is relevant to the suspension or debarment action. The
Department also may disclose information to any Federal, State, or
local agency to gain information in support of the Department's own
debarment and suspension actions.
    (8) Disclosure to the Department of Justice. The Department may
disclose information from this system of records as a routine use to
the DOJ to the extent necessary for obtaining the DOJ's advice on any
matter relevant to Department of Education programs or operations.
    (9) Congressional Member Disclosure. The Department may disclose
information from this system of records to a Member of Congress or to a
congressional staff member in response to an inquiry from the
congressional office made at the written request of the constituent
about whom the record is maintained. The member's right to the
information is no greater than the right of the individual who
requested the inquiry.

[[Page 61411]]

    (10) Benefit Program Disclosure. The Department may disclose
records as a routine use to any Federal, State, local, or foreign
agency, or other public authority, if relevant to the prevention or
detection of fraud and abuse in benefit programs administered by any
agency or public authority.
    (11) Collection of Debts and Overpayment Disclosure. The Department
may disclose records as a routine use to any Federal, State, local, or
foreign agency, or other public authority, if relevant to the
collection of debts or to overpayments owed to any agency or public
authority.
    (12) Disclosure to the President's Council on Integrity and
Efficiency (PCIE). The Department may disclose records as a routine use
to members and employees of the PCIE for the preparation of reports to
the President and Congress on the activities of the Inspectors General.
    (13) Disclosure for Qualitative Assessment Reviews. The Department
may disclose records as a routine use to members of the PCIE, the DOJ,
the U.S. Marshals Service, or any Federal agency for the purpose of
conducting qualitative assessment reviews of the investigative or audit
operations of the Department's OIG to ensure that adequate internal
safeguards and management procedures are maintained.
    (14) Disclosure in the Course of Responding to Breach of Data. The
Department may disclose records to appropriate agencies, entities, and
persons when (a) it is suspected or confirmed that the security or
confidentiality of information in this system has been compromised; (b)
the Department has determined that as a result of the suspected or
confirmed compromise there is a risk of harm to economic or property
interests, identity theft or fraud, or harm to the security or
integrity of this system or other systems or programs (whether
maintained by the Department or by another agency or entity) that rely
upon the compromised information; and, (c) the disclosure is made to
such agencies, entities, and persons who are reasonably necessary to
assist the Department in responding to the suspected or confirmed
compromise and in helping the Department prevent, minimize, or remedy
such harm.

DISCLOSURE TO CONSUMER REPORTING AGENCIES:
    Not applicable to this system of records.

Read more here.

November 19, 2008 | Permalink | TrackBack (0)

Music Piracy Has Unintended Consequences For Some Students

The Chronicle of Higher Education reports that some students, faced with payment demands from the RIAA for illegal file sharing, are paying up, and then finding that they cannot afford to return to school. Read more here.

November 19, 2008 | Permalink | TrackBack (0)

Tuesday, November 18, 2008

Former USA Today Reporter No Longer Faces Contempt Charges In Hatfill Case

An appellate court has vacated the contempt order against West Virginia journalism professor (and former USA Today reporter) Toni Locy, who was originally ordered to divulge her sources in the Hatfill lawsuit against the Justice Department. But it's not clear that Dr. Hatfill can't seek legal fees from Professor Locy. Read more here in a post from The BLT: the Legal Times' blog.

November 18, 2008 | Permalink | TrackBack (0)

Robert Tsai's Eloquence & Reason

Robert Tsai has published Eloquence & Reason: Creating a First Amendment Culture (Yale University Press). Dan Solove reviews it here at Concurring Opinions.

November 18, 2008 | Permalink | TrackBack (0)

ABA Journal Conducting Survey

The ABA Journal is surveying lawyers about the job market and the current state of the economy. Here's the link to the survey.

The Journal will publish the survey results in the January issue. Answers will be kept confidential and used only in combination with all other responses received.

November 18, 2008 | Permalink | TrackBack (0)

Taking the First Amendment Into Virtual Reality

Marc Jonathan Blitz, Oklahoma City University, has published "The Freedom of 3D Thought: The First Amendment in Virtual Reality," in volume 30 of the Cardozo Law Review. Here is the abstract.

Unlike the virtual worlds of the present, which appear to us on two-dimensional computer screens, the virtual worlds of the near future will likely be 3D worlds that swallow our perceptual universe. In such an electronic environment, we don't merely move an "Avatar" on a virtual street; we have the experience of walking upon it ourselves. The street life we see consists not of computer animations confined to a rectangular interface, but pedestrians, street vendors, and cars that appear to move all around us.

Such virtual reality (or VR) technology has long had a prominent place in science fiction - from the first episode of the Twilight Zone almost fifty years ago, to the cyberpunk of writers like William Gibson and Neal Stephenson, to Star Trek: The Next Generation's Holodeck, to the film, The Matrix. Thanks to Robert Nozick's "Experience Machine," it has also has a place in philosophy. According to a recent news report, an "immersive cocoon" - set to be available in 2014 - may soon give it a place in people's living rooms.

This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as "speech" or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment "speech" when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these - which generally count as "non-expressive" conduct, unprotected by the First Amendment, in the physical world - suddenly become "expressive" in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR's convincing illusions are First Amendment "speech," like the movies or video games of which they are arguably three-dimensional analogues, or "conduct" like the actions they mimic.

Perhaps the most natural way to address this challenge is to ask, using the Supreme Court's test in Spence v. Washington, whether the virtual conduct is an activity that conveys a "particularized message" under circumstances in which an audience will be likely to understand that message ("the Spence test"), or, alternatively (under the exception to the Spence test established in Hurley v. Irish-American, Gay, Lesbian & Bisexual Group of Boston) is analogous to a medium already recognized as expression, such as a parade, a painting, or a musical composition. Under such a framework, a virtual reality car ride or sexual encounter will not count as speech when people seek it for the same (non-expressive and non-artistic) reasons they seek out the real-life equivalent.

This article, however, argues that such an approach is a flawed one when it applies to a private and solitary VR experience, like the one an individual would have in an adventure inside a real-life Experience Machine. When VR is used privately, I argue, it is best conceived as a technologically-sophisticated representation of individuals' fantasy life and, as such, should receive the same First Amendment protection that individuals receive when they draw sequences from a daydream or write thoughts in a journal. In fact, I argue, recognizing this helps us better mark out both the scope of First Amendment freedom of speech as well as the distinct protection that the First Amendment offers for our freedom of thought (as recognized in cases such as Stanley v. Georgia and Wooley v. Maynard). While the Spence test may help draw the boundaries of what counts as "speech" in communication or other dialogue, it should not guide us in determining what counts as "speech" or "thought" in unshared representations of our imagined worlds or actions. I argue here that private VR experience can help mark out these boundaries by clarifying (1) why such experience should count as solitary and protected speech of the kind we engage in when we draw a picture or write a poem for our own benefit and (2) why such experience should also come under the coverage of the First Amendment freedom of thought set out in Stanley v. Georgia. The same protections, I further argue, should also bar the government from thwarting our use of "telepresence" to create the illusion of being transported to another place in the real world, even though such VR experiences link us to the outside world in ways not true of films or books we watch or read in our own homes.

Apart from providing us with an initial framework for applying the First Amendment to the revolutionary changes promised by VR, this analysis of VR's status under the First Amendment can also help us to think more carefully and systematically about how First Amendment freedom of thought might apply to other activity in the external world that is closely intertwined with thought (such as use of psychotropic medication or drugs to generate certain mental states, or observations that we make of the natural world or surrounding environment to gather certain kinds of information from sources other than speech).

Download the entire article from SSRN here.

November 18, 2008 | Permalink | TrackBack (0)

Monday, November 17, 2008

"MySpace" Jurors Can Hear Evidence of Suicide

The judge presiding over Lori Drew's MySpace "hoax" case has ruled that prosecutors may introduce evidence of Megan Meier's suicide. Ms. Drew's lawyer had argued that the jury would be confused that think that his client was on trial for Megan's death, but the judge said he was satisfied that the jurors would already be familiar with the suicide from reading news reports and from a Law & Order: SVU episode ("Babes") that used some facts from the case, and that aired November 11. Read more here.

November 17, 2008 | Permalink | TrackBack (0)

British Broadcasters Move Toward Product Placement Code

Britain's ITV is signing on to a product placement code put together by an industry group that would allow viewers to see when products are being advertised within a program, and more broadcasters are likely to follow. A "generic symbol" would indicate that a product is being touted so that the audience knows when a product has been placed. Pact, the industry group, has created the code in order to demonstrate that broadcasters and advertisers can be responsible for these kinds of messages. One question yet to be decided is whether product placement can be squared with EU law. Read more here in a Guardian article.

November 17, 2008 | Permalink | TrackBack (0)

Michael Jackson Being Sued Over Recording Contract

Sheikh Abdulla Bin Hamad Bin Isa Al-Khalifa, a son of the King of Bahrain, is suing singer Michael Jackson for breach of contract over failure to complete a recording contract. The case is being heard in a London court. Read more in this BBC article.

November 17, 2008 | Permalink | TrackBack (0)

Politkovskaya Murder Trial Begins

The murder trial of three men charged with complicity in the killing of journalist Anna Politkovskaya has begun in Moscow. However, the alleged killer is still at large, and some commentators believe the trial will yield little information about the identity of the person or persons who ordered her murder. Read more here.

November 17, 2008 | Permalink | TrackBack (0)