December 8, 2008
Hilden on a New Louisiana State Bar Advertising Rule
FindLaw's Julie Hilden writes about a Louisiana law firm's challenges to the state bar's new rules concerning attorney advertising. Hilden suggests that the new rule has serious First Amendment problems. Read more here.
Associated Press Loses FOIA Request For John Walker Lindh Commutation Request
The Second Circuit has affirmed the dismissal of an Associated Press FOIA request for John Walker Lindh's request for commutation. The appellate court found that "Here, AP has failed to demonstrate that disclosure of Lindh’s petition would serve a cognizable public purpose such that it may not be withheld under the privacy exemptions. The DOJ’s Supplemental Declaration states that none of the reasons Lindh poses to justify reduction of his twenty-year sentence “has anything to do with any alleged Government misconduct . . . and do not reveal what the ‘government is up to.’”...AP has not asserted that the DOJ’s declarations were made in bad faith, and has further failed to show how Lindh’s petition, containing private, personal information, would in any way shed light on the DOJ’s conduct....Because we find that a significant privacy interest is implicated in release of Lindh’s petition, and that AP has failed to show that release of the information would shed light on the workings of government, we must conclude that the district court did not err in holding Lindh’s petition exempt from disclosure under FOIA Exemptions 6 and 7(C)."
The case is Associated Press v. Department of Justice, Docket No. 07-1384-cv (2008). Read the entire ruling here.
Pictures Worth a Thousand Words
CNN has this interesting story about the lure of mugshots, both celebrity and non-celebrity types, for the average American, and why the media publish so many. Says one editor, "It's just another way of getting readers online." And maybe helping the bottom line? Check out this NPR Morning Edition story about tough times just about everywhere in the media today.
New South Wales Judge Finds That, Under Statute, Cartoon Characters May Depict "Real" Human Beings
In ruling that a cartoon character, in this case the "Simpson" characters, could be interpreted as depictions of real human beings, New South Wales appellate court judge Michael Adams has dismissed the appeal of a NSW man convicted under a statute intended to prevent the possession of child pornography. In McEwen v. Simmons, the judge found that
As with literary works, it is notorious that drawings and other pictorial representations may be and often are of fictional or imaginary characters. Although the primary purpose of the legislation is to combat the direct sexual exploitation and abuse of children that occurs where offensive images of real children in various sexual or sexually suggestive situations are made, it also is calculated to deter production of other material – including cartoons – that, as the explanatory memorandum puts it, can fuel demand for material that does involve the abuse of children. There is no reason, as it seems to me, to limit the meaning of “person” to mean an actual person. Its full and usual meaning is entirely explicable. If it were necessary to do so, I would call in aid the explanatory memorandum but, since I do not consider that the provision is obscure or ambiguous, I have not done so. The depictions and representations of persons to which the definition refers include a drawing (or, for that matter, a model or sculpture) and, hence a cartoon, of a fictional character.
This, however, does not entirely dispose of the matter in the present case. Although it is conceded...for the appellant, for example, a digitally created figure of a human being, even a fictional or imaginary one, would be a “representation…of a person”, he contends that this would not cover a depiction, as here, of cartoon figures which were drawn quite deliberately to demonstrate that they were not human beings, though (as I mentioned) they were obviously intended to be metaphors for or analogies of human beings; to put the argument in another way, the mere fact that the cartoon is about human beings (and, hence persons) does not mean that it is a depiction of a person or a depiction of a representation of a person. In this respect, I am doubtful that any characterisation derived from the television series is relevant. The question is whether what is depicted in the impugned cartoons gives rise to the offences. Whether any particular drawing is a representation of a person must be a question of fact and degree. The representation of human genitalia might, in some cases (such as, I rather think, the present), be decisive. However, as the figure departs from the form of a recognisable human being it may become less like a person and, at some point, not depict or represent a person at all. Merely giving some human traits to say, a rabbit or a duck, may well still leave the image outside the requirement that a “person” be represented, even though the “rabbit” or the “duck” has character traits that are distinctly human and not at all rabbit or duck like. On the other hand, many cartoon characters, though by no means all, are drawn to closely resemble real human beings.
... Mr Craddock SC submitted that where figures such as pictured here so plainly and deliberately departed from the human form they cannot be persons within the statutory definition. Certainly, he contended, they could not be “natural persons” within the meaning of the definition of “person” in the Acts Interpretation Act 1901, accepting that a fictional character could be. However, the distinction sought to be clarified in the Interpretation Act is not that between fictional and real persons but between the different kinds of legal entities – namely natural persons on the one hand and bodies corporate of various kinds on the other – who are in law regard as legal persons. The Act is not intended, I think, to define the meaning of “person” for the purpose of s 473.1 and cognate provisions of the Code.
... If I might return to the stick figure analogy. Although it may be that such a figure does not “depict” a person (a matter which I come to later) I think that it can “represent” a person. To use the language of the offence, a picture that uses a stick figure “depicts…a representation of a person” though, for obvious reasons, it will have or is unlikely to have, any indicia of age and thus may be excluded for other reasons. Even a stick figure can depart from a representation of a human, of course. That then would leave the question whether the departure was such that a person was no longer represented. Accordingly, a cartoon of fictional figures is capable of being depicting a representation of a person and, hence, capable of grounding the offence. I am not using the term “representation” in the algebraic sense that n stands for any number. Thus, I would not accept that a sphere, even if labelled “man” in proximity with another but smaller sphere, labelled “child” could be a “representation” of a “persons” within the meaning of the offence. There must be at least some semblance of human form: a mere symbol would not be a representation.
...So far as the matter here is concerned, it seems to me that whether it actually “depicts…a representation of a person” is a question of fact and, though there is much to be said for the appellant’s secondary submission, this does not demonstrate that the learned Magistrate erred in law in concluding that the matter was within the offence in the Code.
When the State legislation was introduced, the Minister referred to the fact that “those who possess child pornography, though they may not directly harm any child, provide a market for those who produce and disseminate this material”. He referred to the need to provide effective deterrence to eliminate the market “and the impetus to produce child pornography, and to abuse children in its production…(italics added)”. He went on to say –
“A depiction or description of a child in a sexual context is a broad category that would cover, for example, situations where a child is depicted in an indecent pose or watching another person engaged in sexual activity. The requirement that the material must, in all the circumstances, be offensive to reasonable persons ensures that innocent family photographs of naked children, for example, will not be captured. The inclusion of material in which a child is a victim of torture, cruelty or physical abuse ensures that abuse which is not purely sexual, but is still offensive, is covered.”
...This rather suggests that actual children must be the subjects of the depiction. Unlike the explanatory memorandum applicable to the Code, no mention is made of cartoons. The mere fact that the dictionary definition shows that “depict” in ordinary parlance includes a portrayal or representation, does not answer the question whether the “person” depicted must be an actual as distinct from a fictional person.
... Mr Craddock SC contends, as I understand him, that whether person in ordinary parlance comprehends a real as well as an imaginary person depends on the context. If I may say so, this is plainly correct. He then argues that the purpose of the legislative prohibition would be served by interpreting “person” as meaning “actual person”. He points out that this is plainly what the Second Reading speech focussed on, with no suggestion that a wider meaning was intended. He relies on the fact that it would have been relatively simple, if it were intended to criminalize the possession of depictions of imaginary persons, to have specifically so provided. It is submitted that, as the word is ambiguous, the presumption against attributing the wider meaning should apply, citing as a recent restatement of the rule, Einfeld v R  NSWCCA 215.
... Accepting that the word gains its meaning from its context, that context is the protection of children from sexual exploitation and abuse. “Person” is capable, in its ordinary meaning, of denoting real as well as fictional persons. There is no reason for attributing to it any limited or artificial limit to its usual range, where that range is explicable in the context. Accordingly, although the word has more than one meaning, I do not think that it is ambiguous in its application and thus there is no call for the application of the interpretive presumption relied on.
...Once it is accepted that the “person” may be fictional or imaginary and may be depicted by a drawing, it follows that a cartoon character might well constitute the depiction of such a person such a “person”. This has the consequence, as I have endeavoured to show that the phrase “depicts a person” covers two fundamentally different situations. However, I have concluded that both of them fall within the statutory definition.
...As I have said in connection with the Code offence, the drawing must be that of a human being and recognisable as such but no particular human being needs to be depicted and even a substantial departure from realism will not necessarily mean that the depiction is not that of a person in this sense. This is not quite the point made in this regard by Mr Craddock SC, who relies, not merely on the departure from human form, but also on the obvious fact that the departure is intended to distinguish the figures from any possible human being and that any reasonable person would understand this to be so. It is argued, in effect, that the depictions here are not a mere caricatures of persons, but drawings of non-persons. However, this is but to beg the question. Of course, a non-person is not a person but to pose the problem in this way is simply to raise the question, what is a non-person, and the argument is no further advanced.
...It seems to me that whether a person is indeed depicted by any particular semblance or simulacrum of a human being must be a question of fact and degree. Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person – though vide the Commonwealth offence – it might well depict a representation of a person. No bright line of inclusion or exclusion can be sensibly described. Of course, because the depiction of a person is an essential element of the offence, it must be proved beyond reasonable doubt. Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects, may nevertheless be the depiction of a person within the meaning of the Act.
December 7, 2008
A New Film About a Fictional Journalist Offers Parallels To Real Life
Adam Liptak discusses the new film Nothing But the Truth, which evokes parallels to the Judith Miller case, here. The movie, which stars Kate Beckinsale, Matt Dillon, and Alan Alda, opens in mid-December in New York and Los Angeles.