February 22, 2008
CBS Fights Subpoena For Video In Haditha Case
CBS is asking a judge to quash a subpoena requesting outtakes that purportedly include a confession by Staff Sergeant Frank Wuterich that he ordered men under his command to shoot Iraqi civilians at Haditha in November of 2005. The outtakes are part of video compiled for a 2007 "60 Minutes" interview. CBS maintains that the material is covered by the California shield law, and that the prosecution has not yet investigated all other available sources. However, the shield law does not apply in federal prosecutions. Read more here and here.
Actor Will Smith Wins Damages Over Defamatory Statement
Actor Will Smith, the star of such films as "Hitch" and "I Am Legend", has won damages and an apology from World Entertainment News Network (WENN) over a statement published by WENN which alleged that Mr. Smith had said that dictator Adolf Hitler "was a good person." The statement was published in an interview with the actor in December. Mr. Smith's attorney told London's High Court that "The allegation is false and without any foundation. It wholly misrepresents the claimant's actual words, given in an interview to the Daily Record, a Scottish newspaper and website." Even though the defendants had retracted the statement, it had been republished worldwide; therefore her client had requested damages and legal fees as well as an apology. WENN agreed, and the case has ended in victory for Mr. Smith. Read more here.
Media Best Able to Keep Tabs on Former Public Servants Now In Private Employ, Says British Committee Head
The chair of a British committee charged with examining the proper role of former ministers and civil servants has reported that that it should leave such scrutiny to the media. If the press then reports wrongdoing, then the government should launch an investigation. Apparently the group, the Committee on Business Appointments headed by Lord Mayhew, rejected the position of one of its members that former public servants should be banned for life from taking positions in private industry closely linked to their former public employment. Read more here.
Magarian on Media Regulation
Gregory Magarian, Villanova University School of Law, has published "Substantive Media Regulation in Three Dimensions," in volume 76 of the George Washington Law Review. Here is the abstract.
Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic polity, while opponents emphasize self-interested or captured government elites. As to the second issue, who is being regulated, supporters emphasize owners of media corporations, while opponents emphasize editors and reporters. As to the final issue, the goal of regulation, supporters emphasize the need to facilitate fulsome discussion of important public issues, while opponents emphasize the conceptually impossible aim of creating perfect balance between opposing points of view. With these contrasting positions in mind, the article attempts to synthesize principles that might guide a workable and beneficial revival of the fairness doctrine. In order to maximize the extent to which new fairness regulations would serve the political community rather than political elites, both Congress and the courts would have to take a more active role than under the former fairness doctrine in shaping and directing FCC enforcement. In order to minimize interference with socially valuable editorial functions, enforcement of fairness regulations would have to focus on countering economic disincentives to presenting political debate and, where possible, protecting editors from economic pressure imposed by owners and publishers. Finally, the goal of any new fairness regulations would most sensibly be framed as balancing the Internet's atomization of public discourse and opinion by requiring conventional mass media to present varied perspectives on important public issues. The focus should not be on some elusive idea of balance but rather on the prominence of debate and dissension.
Download the article from SSRN here.
Martin Redish on Commercial Speech
Martin Redish, Northwestern University School of Law, has published "Commercial Speech, First Amendment Intuitionism, and the Twilight Zone of Viewpoint Discrimination," in volume 41 of the Loyola of Los Angeles Law Review (forthcoming). Here is the abstract.
In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support reduced protection for commercial speech logically applies with equal force to one or more categories of fully protected non-commercial expression, yet those advocating reduced protection for commercial speech readily provide full protection to the categories of non-commercial expression that suffer from the very same defect. Thus, what superficially appears to constitute a plausible and principled rationale for reducing protection for commercial speech in reality is applied¿irrationally and unjustifiably¿to commercial but not to various forms of fully protected speech. Such irrational underinclusion represents a classic form of sub rosa viewpoint discrimination. In this case, the viewpoint being discriminated against, while not embodied directly in the commercial speech itself, is a belief in a capitalist system of which all commercial speech is a part. Ironically, then, speech which some say should be denied protection because it fails to deal with the political process, in reality is likely excluded from the First Amendment's scope by many for what amount to foundational ideological concerns.
Download the paper from SSRN here.
February 21, 2008
Northwestern Journalism Dean Issues Apology For Use of Anonymous Quote
The Chronicle of Higher Education reports via its News Blog that the Dean of Northwestern's Journalism School has apologized for his use of an anonymous quotation in writing that he did for Northwestern's alumni magazine. Meanwhile, the University has begun investigating the issue. Read the blogpost here.
DGA Oks Contract With AMPTP
The Directors Guild of America members have approved a new contract with the Alliance of Motion Picture & Television Producers which will take effect July 1. Read more in a Hollywood Reporter story here.
Get Thee Behind Us, SpongeBob
The PRC has banned SpongeBob, Mickey Mouse, and Pokemon, among other popular cartoon characters, to post 9 p.m. television viewing. The government hopes that these and other new regulations will draw audiences to the baby Chinese animation industry. Read more here.
The Times on the Wikileaks Takedown
Here's a New York Times article, published today, on the Wikileaks injunction.
The Wikileaks Injunction
A website operator, wikilinks.org, says it will defy a U.S. court's order and continue its practice of allowing the posting of documents in the Julius Baer bank case, in which the bank is accused of illegal business dealings. Julius Baer had obtained an injunction from a Swiss court, and the U.S. district court agreed to enforce it by ordering the domain name registrar to take the site offline. The website operator compares this action to the U. S. government's position in U. S. v. New York Times (the Pentagon Papers case), essentially claiming that the action is a prior restraint. Read more here. Here's a link to the injunction.
The problem in taking the entire site offline, as I see it, is that it also takes down other documents that have nothing to do with the Julius Baer case. On what theory can the judge limit access to those documents?
February 20, 2008
Supreme Court To Judge Alex: Arbitrate This
The Supreme Court has ruled 8-1 that the Federal Arbitration Act supersedes state law in cases in which parties argue to arbitrate disputes in a particular forum. The case involves tv's "Judge Alex" Ferrer and the attorney who represented him. Alex Ferrer later tried to prevent the attorney, Arnold Preston, from collecting a percentage, saying that Mr. Preston is not licensed as a talent agent as required under the California Talent Agencies Act. Judge Ruth Bader Ginsburg wrote the majority opinion. Justice Thomas dissented, saying that he did not believe that the FAA applies in state courts.
This case concerns a contract between respondent Alex E. Ferrer, a former Florida trial court judge who currently appears as "Judge Alex" on a Fox television network program, and petitioner Arnold M. Preston, a California attorney who renders services to persons in the entertainment industry. Seeking fees allegedly due under the contract, Preston invoked the parties' agreement to arbitrate "any dispute . . . relating to the terms of [the contract] or the breach, validity, or legality thereof . . . in accordance with the rules [of the American Arbitration Association]."...
Preston's demand for arbitration, made in June 2005, was countered a month later by Ferrer's petition to the California Labor Commissioner charging that the contract was invalid and unenforceable under the California Talent Agencies Act (TAA)... Ferrer asserted that Preston acted as a talent agent without the license required by the TAA, and that Preston's unlicensed status rendered the entire contract void.
In December 2005, the Superior Court denied Preston's motion to compel arbitration and enjoined Preston from proceeding before the arbitrator "unless and until the Labor Commissioner determines that . . . she is without jurisdiction over the disputes between Preston and Ferrer."...During the pendency of Preston's appeal from the Superior Court's decision, this Court reaffirmed, in Buckeye, that challenges to the validity of a contract providing for arbitration ordinarily "should . . . be considered by an arbitrator, not a court." ...In a 2-to-1 decision issued in November 2006, the California Court of Appeal affirmed the Superior Court's judgment. The appeals court held that the relevant provision of the TAA, vests "exclusive original jurisdiction" over the dispute in the Labor Commissioner....Buckeye is "inapposite," the court said, because that case "did not involve an administrative agency with exclusive jurisdiction over a disputed issue."... The dissenting judge, in contrast, viewed Buckeye as controlling; she reasoned that the FAA called for immediate recognition and enforcement of the parties' agreement to arbitrate and afforded no basis for distinguishing prior resort to a state administrative agency from prior resort to a state court....The California Supreme Court denied Preston's petition for review....We granted certiorari to determine whether the FAA overrides a state law vesting initial adjudicatory authority in an administrative agency.
An easily stated question underlies this controversy. Ferrer claims that Preston was a talent agent who operated without a license in violation of the TAA. Accordingly, he urges, the contract between the parties, purportedly for "personal management," is void and Preston is entitled to no compensation for any services he rendered. Preston, on the other hand, maintains that he acted as a personal manager, not as a talent agent, hence his contract with Ferrer is not governed by the TAA and is both lawful and fully binding on the parties.
Because the contract between Ferrer and Preston provides that "any dispute . . . relating to the . . . validity, or legality" of the agreement "shall be submitted to arbitration,"...Preston urges that Ferrer must litigate "his TAA defense in the arbitral forum,"....Ferrer insists, however, that the "personal manager" or "talent agent" inquiry falls, under California law, within the exclusive original jurisdiction of the Labor Commissioner, and that the FAA does not displace the Commissioner's primary jurisdiction....The dispositive issue, then, contrary to Ferrer's suggestion, is not whether the FAA preempts the TAA wholesale....The FAA plainly has no such destructive aim or effect. Instead, the question is simply who decides whether Preston acted as personal manager or as talent agent.
The TAA permits arbitration in lieu of proceeding before the Labor Commissioner if an arbitration provision "in a contract between a talent agency and [an artist]" both "provides for reasonable notice to the Labor Commissioner of the time and place of all arbitration hearings" and gives the Commissioner "the right to attend all arbitration hearings." § 1700.45. This prescription demonstrates that there is no inherent conflict between the TAA and arbitration as a dispute resolution mechanism. But § 1700.45 was of no utility to Preston. He has consistently maintained that he is not a talent agent as that term is defined in § 1700.4(a), but is, instead, a personal manager not subject to the TAA's regulatory regime. 145 Cal. App. 4th, at 444, 51 Cal.Rptr. 3d, at 631. To invoke § 1700.45, Preston would have been required to concede a point fatal to his claim for compensation -- i.e., that he is a talent agent, albeit an unlicensed one -- and to have drafted his contract in compliance with a statute that he maintains is inapplicable.
Procedural prescriptions of the TAA thus conflict with the FAA's dispute resolution regime in two basic respects: First, the TAA, in § 1700.44(a), grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U.S., at 446; second, the TAA, in § 1700.45, imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally....
Ferrer contends that the TAA is nevertheless compatible with the FAA because § 1700.44(a) merely postpones arbitration until after the Labor Commissioner has exercised her primary jurisdiction....The party that loses before the Labor Commissioner may file for de novo review in Superior Court. See § 1700.44(a). At that point, Ferrer asserts, either party could move to compel arbitration under Cal. Civ. Proc. Code Ann. § 1281.2(West 2007), and thereby obtain an arbitrator's determination prior to judicial review. ...
That is not the position Ferrer took in the California courts. In his complaint, he urged the Superior Court to declare that "the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration," and he sought an injunction stopping arbitration "unless and until, if ever, the Labor Commissioner determines that he/she has no jurisdiction over the parties' dispute." ...Ferrer also told the Superior Court: "[I]f . . . the Commissioner rules that the [c]ontract is void, Preston may appeal that ruling and have a hearing de novo before this Court."...
Nor does Ferrer's current argument -- that § 1700.44(a) merely postpones arbitration -- withstand examination. Section 1700.44(a) provides for de novo review in Superior Court, not elsewhere. Arbitration, if it ever occurred following the Labor Commissioner's decision, would likely be long delayed, in contravention of Congress' intent "to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible."... If Ferrer prevailed in the California courts, moreover, he would no doubt argue that judicial findings of fact and conclusions of law, made after a full and fair de novo hearing in court, are binding on the parties and preclude the arbitrator from making any contrary rulings.
Ferrer asks us to overlook the apparent conflict between the arbitration clause and § 1700.44(a) because proceedings before the Labor Commissioner are administrative rather than judicial.... Allowing parties to proceed directly to arbitration, Ferrer contends, would undermine the Labor Commissioner's ability to stay informed of potentially illegal activity... and would deprive artists protected by the TAA of the Labor Commissioner's expertise....
In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), we considered and rejected a similar argument, namely, that arbitration of age discrimination claims would undermine the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal law. The "mere involvement of an administrative agency in the enforcement of a statute," we held, does not limit private parties' obligation to comply with their arbitration agreements.
Finally, it bears repeating that Preston's petition presents precisely and only a question concerning the forum in which the parties' dispute will be heard...."By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral . . . forum." ...So here, Ferrer relinquishes no substantive rights the TAA or other California law may accord him. But under the contract he signed, he cannot escape resolution of those rights in an arbitral forum.
In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer and adopted by the appeals court. When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.
Note that in January of this year, the California Supreme Court ruled that the Talent Agencies Act applies to personal managers as well as to talent agents. See Marathon Entertainment v. Blasi.
ASA Vanishes Ad For Magic Pendant
The Advertising Standards Authority has found that an ad on MATV Punjabi which promised purchasers of a "Ganesh rudraksh pendant " that they would have good health and avoid bad luck is exploitative and breaches the advertising standards code. It also found that the manufacturer lacked scientific evidence to back up claims made in the ad.
The ASA ruled that
[T]he research "Beyond Entertainment" conducted by the Broadcasting Standards Commission (BSC) and the Independent Television Commission (ITC) into The Acceptability Of Alternative Beliefs, Psychic And Occult Phenomena On Television in 2001 stated "Occult - Finally black magic, Ouija, Satanism, spells and voodoo were clearly classified as Occult by both participants and Experts. White magic spells were borderline. Most felt they were harmless and not to be taken seriously, but there was some recognition that they were about influence and, therefore, edging into dubious territory. The key issues associated with occult were negativity, dark forces, influence and control." The CAP (Broadcast) TV Advertising Standards Code prohibits advertising for products or services within the recognized character of the occult. We considered that the ad promoted a good luck charm; we concluded that the ad was for an unacceptable category.
The ad breached CAP (Broadcast) TV Advertising Standards Code rule 3.1 (i) (the occult) and 10. 3 (The occult, psychic practices and exorcism).
We considered that the claim anybody who wears Ganesh Rudraksh on their body, cannot be affected by bad Omen" exploited the superstitious. We concluded that the unsubstantiated claims and testimonies exploited vulnerable viewers.
The ad breached CAP (Broadcast) TV Advertising Standards Code rules 10.4 (Superstition) and 10.13 (Vulnerable viewers).
We considered that the website pages were inadequate to substantiate the claims and the testimonials. In the absence of clinically controlled trials prove the efficacy of the product we considered that the claims were misleading.
The ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading), 5.2.1 (Evidence), 5.4.4 (Testimonials)
Read the entire ruling here.
[Cross posted to the Law and Magic blog].
February 19, 2008
Charges Against Leonardo Blair Dropped
NPR reports that those charges against New York Post reporter Leonardo Blair have been dropped. Here's more.
Florida Court Quashes Subpoena in Reporter's Shield Case
A Florida court has granted a reporter's motion to quash a subpoena, based on the state's shield law, since the state had not made a showing sufficient to overcome the qualified privilege.
"According to Section 90.5015, Florida Statutes, a party seeking to overcome the professional journalist's qualified privilege “must make a clear and specific showing” of the following:
Toshiba: We Concede
...and it's official. Toshiba announced today that it is out of the HD-DVD business, following Wal-Mart's announcement that it was discontinuing sale of the HD-DVD players. Here's a Washington Post article on what consumers might expect, now that Blu-Ray dominates the market, at least for the near term.
Judge May Hold Reporters In Contempt In Hatfill Lawsuit
U. S. District Court Judge Reggie B. Walton, who is presiding over the Steven Hatfill lawsuit against DOJ, says he may hold two reporters in contempt over their failure to cooperate with Dr. Hatfill. The two are USA Today reporter Toni Locy and James Stewart, who formerly worked for CBS. Read more here.
Taking Another Look At Regulating Content-Based Speech
Marvin Ammori, University of Nebraska College of Law, has published "Content-Based Laws Are Unproblematic?: The Case For Content-Based Promotion of Democratic Speech." Here is the abstract.
Everyone seems to think the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite the distinction's wide acceptance, the distinction lacks any precedential or normative basis - unless it also accounts for an equally important distinction. Content-based laws that suppress specific content are problematic - like banning a television show. But content-based laws that promote certain kinds of content, such as promoting educational and political shows, should not be problematic. The problem is that courts ignore this distinction in cases involving the most important speech media - such as cable television and perhaps internet communication.
In almost every other area of First Amendment doctrine, courts apply minimal scrutiny to content-based promotion, even though the courts think they are adopting exceptions to content-analysis. The exceptions actually add up to a rule, and this rule makes sense. The First Amendment should permit government to promote speech in a content-based way, especially to promote educational and political speech. The current exception applies most notably to dominant electronic media, but that exception should be corrected.
Download the paper from SSRN here.
Campus Shootings and Video Games
What made NIU shooter Steven Kazmierczak snap, resulting in that tragic incident last week? MSNBC's Wilma Benedetti reports that attorney Jack Thompson thinks he has the answer--video games, even though she points out that we still have no real connection between them and Mr. Kazmierczak at all. And if video games don't cause violence, they cause obesity. That's according to the CEO of McDonald's UK. Read more here.
February 18, 2008
District Court Denies Preliminary Injunction For Use of Song In Video Game Lawsuit
In Romantics v. Activision Publishing, the U. S. District Court for the Eastern District of Michigan denied a request for a preliminary injunction "distributor of video game and related entities from advertising or distributing game containing new recording of song, originally released by band in 1980, which, pursuant to synchronization license, is used in synchronization with visual images to enable game play...." The court determined that the plaintiffs had not met the 6th Circuit's "four-factor test. Under this test, the following factors must be balanced: 1) whether Plaintiffs have shown a strong or substantial likelihood of success on the merits; 2) whether Plaintiffs have demonstrated irreparable injury; 3) whether the issuance of a preliminary injunction would cause substantial harm to others; and 4) whether the public interest is served by the issuance of an injunction."
The game in question is "a part of the “Guitar Hero” video game franchise which includes a series of games, guitar shaped game controllers, accessories and merchandise under the “Guitar Hero” trademark. This franchise has been very successful, winning numerous accolades and becoming the top selling franchise for console video games as of September 2007. The Game is a complex artistic work combining visual, audio and narrative elements for which Defendants spent months developing the unique theme and technology. The Game allows players to pretend they are playing guitar in a rock and roll band. Play begins as players choose among options such as character, costume, and model of guitar, and then simulate the guitar play of various songs by correctly timing the pressing of fret buttons and strum bars on a guitar-like controller. The Game includes thirty songs from the 1980s to add to the realistic experience of playing in a rock band from that era. Each song in the Game has a level of difficulty, and only after reaching a certain proficiency on a song can a player advance to another more difficult song. The graphic video elements of the Game require complex synchronization with each song to enable the realistic simulation of guitar play."
The Defendants obtained a "valid nonexclusive synchronization license from EMI Entertainment World, Inc., the owner of the copyright in the musical composition entitled “What I Like About You” (written and originally recorded in 1979 by the band, The Romantics, and published in 1980) (the “Song”). A synch license, in the context of a video game, permits Defendants to make a new recording of the underlying composition and to use that recording in synchronization with visual images in the video game to enable game play. In accordance with this license, Defendant WaveGroup Sound (“WaveGroup”) recorded a new version of the Song which was incorporated, or synchronized, into the Game. The Game was commercially released in July 2007."
Site Promoting Campus Gossip Upsets Students Across the Country
In the tradition of Autoadmit.com comes JuicyCampus.com, a website which CNN (in a story from the AP) describes as "a simple conduit urging users to post gossip and promising them total anonymity", and available on more than fifty campuses around the country. The site, started by Matt Ivester, takes advertising, so is free to use, but tells posters, "`our terms and conditions require users to agree not to post anything that is defamatory, libelous, etc." But a few paragraphs later, the blog implies that it will rebuff anything short of a public safety query: "If your school calls upset about some girl being called a slut, we're not handing over access to our server data. If the LAPD calls telling us there is a shooting threat, you better believe we're gonna help them ...'".
Apparently relying on Section 230 of the CDA, the site's owners take no responsibility for upsetting or defamatory posts, which apparently abound. In response, many students at the schools at which the site is accessible are urging that their peers avoid logging on. Read more here in CNN's story and here in a Yale Daily News story.