Friday, March 20, 2009
The Guardian reports that a judge has upheld a request from Barclays' bank to prohibit the paper from publishing tax documents relevant to a current Barclays' lawsuit, even though the documents are available elsewhere. The Guardian obtained the documents from a member of Parliament. In order to comply with the order, the paper has deleted a number of posts from its website.
Mohammad Ali Dadkhah, an Iranian lawyer, says he believes that his client, blogger Omid Mir Sayafi, has died in prison. Mr. Sayafi was jailed for insulting the Ayatollah Ali Khamenei in an Internet post. Another inmate, a physician, got the news out about Mr. Sayafi's possible death to Mr. Dadkhah earlier this week. Read more here.
Thursday, March 19, 2009
First Circuit Allows Defamation Case To Proceed; Massachusetts Law Allows Plaintiff To Try To Show Defendant Acted With "Actual Malice" Even If Statement Is True
The First Circuit has reversed itself in the Noonan case, ruling that the plaintiff presented sufficient grounds on which to proceed on a defamation claim.
Noonan claims first that Staples committed actionable libel against him through the sending of the Baitler e-mail. Under Massachusetts law, a plaintiff alleging libel must ordinarily establish five elements: (1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.
Since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement's truth as an absolute defense to a libel claim....Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with "actual malice" in publishing the statement....Noonan argued before the district court, and reiterates before us, that Baitler's e-mail was both defamatory and false, and thus constituted actionable libel. Staples countered that the evidence clearly established that Noonan did indeed violate the company's travel and expense policy, and that the e-mail was consequently true and no libel action could lie. The district court sided with Staples, concluding that Noonan's libel claim could not proceed as a matter of law because the Baitler e-mail was true: even when viewed in the light most favorable to Noonan, the record demonstrates that he failed to comply with the policy. Our review of the record and Massachusetts law leads us to the same conclusion. Thus, there is no triable issue of fact on the question of truth.
We focus first on Noonan's arguments concerning the e-mail's falsity, because if the evidence corroborates Staples's asserted defense that the e-mail's contents were true, then absent actual malice on the part of Staples, the libel claim must be dismissed regardless of whether the e-mail defamed Noonan....Noonan does not seriously challenge that, on their face, all the sentences in the e-mail were true. As the e-mail states and the record bears out, Staples did indeed commission an investigation of Noonan's expense-reporting practices, and the investigators determined that he was not in compliance with the travel and expense policy. Even Noonan admits that he frequently disregarded the letter of the policy, booking travel with non-company travel agents, using his personal credit card instead of the company card, and failing to turn in receipts. Whether, as Noonan asserts, he actually saved Staples money -- through, for example, buying cheaper plane tickets from online agents or committing mathematical or typographical errors on his expense reports in Staples's favor -- is immaterial. Whether, as Noonan asserts, many other traveling employees also regularly disregarded the policy is likewise irrelevant. Even taking these assertions as accurate, they do not change the simple fact relayed in the e-mail, and supported by the evidence in the record, that Staples fired Noonan after an investigation determined him to be out of compliance with the travel and expense policy....Noonan urges us, however, to look beyond the letter of the e-mail to the effect it must have had on its approximately 1,500 recipients. He argues that reasonable recipients could have read other passages in the e-mail and, viewing the e-mail in its totality, drawn the inference that he arrogantly regarded Staples's policies as subject to his personal whim and committed some sort of grave misconduct -- grave enough that Baitler himself departed from company policy on employee privacy by referring to Noonan by name in the e-mail. Indeed, according to Noonan, the e-mail's reference to an "investigation," the recent experience with the firing and later indictment of Dorman for stealing money from the company, and the fact that Staples took the drastic step of terminating Noonan instead of merely reprimanding him or delaying the relevant reimbursements, could have led reasonable readers to conclude that he, like Dorman, committed a crime. At the very least, the e-mail's reference to the company Code of Ethics could have given reasonable readers the impression that Noonan was terminated for illegal or unethical conduct in the reporting of his travel expenses. As support for these arguments, Noonan cites a number of cases applying Massachusetts law and holding that, to determine whether a given statement is defamatory, the court must look at it as a whole and in the context in which it was published.
Noonan's only hope for keeping his libel claim alive is to prove that Staples -- or other employees responsible for composing and sending the e-mail -- acted with actual malice. As noted above, under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with "actual malice." ...
The relevant statute, Mass. Gen. Laws ch. 231, § 92, passed in 1902, does not define the term "actual malice." Noonan argues that the term "actual malice" refers to actual malevolent intent or ill will. Though we initially concluded otherwise, on rehearing we now agree.
Though the Massachusetts statute at issue in this case also uses the term "actual malice," we are persuaded that we should not read that term as having the specialized meaning later developed by the Supreme Court. We had initially reached a different conclusion after considering Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E.2d 282 (Mass. 2000). In that public-figure case, the Supreme Judicial Court stated that "[i]n the context of defamation, the term 'actual malice' does not mean the defendant's dislike of, hatred of, or ill will toward, the plaintiff," but rather whether the defendant acted with knowledge of falsity or reckless disregard for whether a statement was true or false.... Based on this language, we had concluded that the public-figure definition of actual malice applied throughout "the context of defamation."...We now reject this conclusion for a number of reasons. First, since the statute was passed before the development of the modern definition of actual malice, it would not be consistent with legislative intent to read it as applying a more modern definition. ... Since the Legislature of 1902 could not have intended to apply the modern definition of "actual malice," we will not apply it here, absent an explicit contrary interpretation from the Supreme Judicial Court. Rotkiewicz is not such precedent; it was a public-figure case and was not interpreting Mass. Gen. Laws ch. 231, § 92. Rotkiewicz, 730 N.E.2d at 289.
The district court concluded that there was no evidence of actual malice. Viewing "actual malice" as "ill will," we disagree. First, in Baitler's twelve years with the company, he had never previously referred to a fired employee by name in an e-mail or other mass communication. From this evidence, a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him. To be sure, Staples has offered a non-malicious explanation. Baitler stated in his deposition that he considered the e-mail naming Noonan to be important in effectively making the point to his employees that they must comply with Staples's travel and expense policies. But, a jury could nevertheless conclude that Baitler's explanation for the deviation from policy was pretextual.
Second, Baitler had supervised Dorman and had failed to notice his misfeasance. Moreover, Baitler did not send around a similar e-mail regarding Dorman's actions. Noonan explains that he will argue to the jury that they should infer that Baitler singled out Noonan to detract attention away from the Dorman scandal. These facts, while speculative on their own, could provide additional background to support Noonan's pretext argument.
Third, Baitler sent the e-mail to a list of 1500 or 1600 employees of Staples. Noonan contends that many individuals on that list did not travel and so had no reason to be advised of the travel policy. Noonan will thus ask the jury to infer that the e-mail's excessive publication shows Baitler's, and thus Staples's, malevolent desire to harm Noonan's reputation.
In this case, the presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan. In this case, where "motive and intent play a leading role, summary judgment should not be granted" since Noonan presented evidence beyond conclusory allegations or mere speculation.
The case is Noonan v. Staples, 2009 U.S. App. LEXIS 2848.
Wednesday, March 18, 2009
An ad for Angelina Jolie's new film Wanted is unsuitable for children of all ages, according to the Advertising Standards Authority, which has told Universal Studios that it can no longer show the ad when youngsters are likely to be watching television. The commercial shows Ms. Jolie posing with a weapon. Last year, the ASA also told Universal that posters for the film showing guns were also unacceptable. The agency says the film "glamorizes" the use of guns. The studio counters that it thinks there is a concern about a woman in a lead role in an "action" film. Read the ASA adjudication here.
Tuesday, March 17, 2009
This short article highlights the increasing reliance by Indian courts on Wikipedia. The Supreme Court seems to have accepted Wikipedia as a reliable source of information. The article discusses how far such judicial reliance is warranted on Wikipedia.
Guitar tablature Web sites have been the subject of recent cease-and-desist letters, forcing most to shut down. Litigation has been side-stepped with the arrival of new creative means to continue operation. The case that may have gone to court is discussed here, ranging from the appropriate legal claims of copyright infringement to the fair-use-defense arguments that would have been made. Policy solutions are considered to resolve the tension between the public's desire to use such tablatures and the copyright owners of the original artists.
Download the article from SSRN here.
From Nick Federico, Deans Fellow to Professor Anthony Varona, Professor of Law at the American University, Washington College of Law
CALL FOR PAPERS & PANELS
OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS
IN THE POLICYMAKING OF THE NEW AMERICAN REGIME
American University - Washington College of Law
October 1 - 4, 2009
Please join us at LatCrit XIV, the Fourteenth Annual LatCrit (Latina and Latino
Critical Legal Theory, Inc.) Conference, which will take place in Washington, D.C.,
from Thursday, October 1 through Sunday, October 4, 2009.
LatCrit/SALT Junior Faculty Development Workshop
The Seventh Annual Junior Faculty Development Workshop, sponsored jointly with the Society of American Law Teachers (SALT), will begin at 9:00 am, Thursday, October 1st and continue through Friday morning.
LATCRIT XIV THEME
OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS IN THE POLICYMAKING OF THE NEW AMERICAN REGIME
In October 2009, LatCrit will meet inside the Beltway for the first time in its history amidst a tectonic shift in American government. With the January inauguration of President Barack H. Obama, the nation’s first “outsider” president, we also saw the ascendance of a new progressive governance philosophy in Washington. As a biracial former law professor with working class and immigrant roots and an international and multicultural upbringing, Mr. Obama ran a progressive campaign that echoed many core LatCritical values, including internationalism and global-mindedness, the valorization of human rights and multidimensional diversity, the centrality of antidiscrimination work, a commitment to rigorous interrogation of longstanding dominant assumptions and norms, and a preference for discourse and dialogue over militarism. Notably, President Obama’s Yes We Can! campaign slogan has its roots in the ¡Si Se Puede! rallying cry coined by Dolores Huerta of the United Farm Workers movement and invoked in more recent progressive and mostly Latino/a political actions.
The new Presidential administration and enlarged bicameral Democratic majority in Congress account only for part of the historic paradigmatic transition in American national government. The ongoing deterioration of the American and world economies also has catalyzed an aggressive reassessment by moderate and even some conservative thinkers of the wisdom of the Reagan Revolution’s uber alles dependency on the private marketplace for the realization of the public good – an antiregulatory disposition that dominated federal government through the last seven presidential administrations. In the United States, the failure of the government’s dominant antiregulatory disposition to prevent the ensuing economic meltdown has catalyzed a new, aggressive Federal response in the form of much more statist economic interventions, including the de facto nationalization of key economic components. To add irony, it was the administration of President George W. Bush – the loudest in exalting the power of unbridled private marketplaces to regulate themselves – that laid the foundation for the national takeover of large sectors of the financial services and banking industries.
These quantum changes in the leadership and driving philosophies of American government present unique and in some cases unprecedented opportunities for scholars engaged in critical outsider scholarship to influence and inform national policy and legislation. The new executive and legislative branch incumbents have telegraphed early receptivity to the instantiation of LatCritical and other progressive theories and principles in the tangible products of Federal government (i.e., legislation, regulation, presidential directives, and, of course, caselaw). As President Obama’s aspirational campaign continues to transition into the nouveau regime at the helm of the most powerful government on Earth, millions of Americans expect the vague Yes We Can promise to become the Yes We Are reality.
But with these openings come potential pitfalls. Although the ascendance of a putatively progressive president and likeminded Congressional majority indeed may open up new opportunities to bridge the theory/praxis chasm, it also may pose serious challenges to the independence and even legitimacy of progressive critical theory movements. Should the cooption or even distortion of conservative theory by militaristic, extremist partisan politicos serve as a cautionary tale in the formation of new relationships between the progressive government and outsider critical theorists? More specifically, what if the first year in office of the Yes We Can presidential candidate unfolds into more of a No We Won’t disappointment? What if the exigencies of governing to and from the middle – which many pundits insist is the sine qua non for reelection viability – result in the sacrificing of Obama’s progressive promise? What roles should outsider critical legal scholars and their scholarship assume then? More generally, what should the incarnation of progressive theory in the new American regime look like? And what prevents that theory from being co-opted and corrupted by the corroding influences of insider power?
The LatCrit XIV Host Committee invites the submission of proposals for panels and papers related to this open-textured theme and encompassing the fullest array of theoretical and doctrinal topics and approaches. Because we will be in Washington, DC, we encourage the submission of paper and panel proposals propounding prescriptive critiques of discrete areas of law, policy and regulation of specific relevance to outsider communities, including (but by no means limited to) economic justice, international and comparative law, criminal law and the death penalty, civil rights and constitutional law (including gender and LGBT equality, reproductive and disability rights), feminist legal theory, immigration, political and electoral (dis)enfranchisement, communications policy and intellectual property, healthcare, education, employment, tax policy, and the environment. We also, of course, welcome proposals for more theoretical panels and papers, particularly (but not exclusively) in areas linked to the challenges posed by progressive governance and the ascendance of outsiders to positions of ultimate authority.
Please submit your panel and paper proposals through the online process at the LatCrit website (www.law.du.edu/latcrit/index.htm) no later than MONDAY, APRIL 27, 2009. Please note that although paper proposals for work-in-progress sessions may be submitted now, we will continue to accept those proposals through mid-July (please refer to LatCrit website for forthcoming additional details).
Standing LatCrit Themes
LatCrit conferences seek to feature and balance four basic perspectives in organizing each annual conference’s substantive program. These four perspectives are listed as themes below. They have, thus far, served as useful lenses of LatCritical inquiry, enabling LatCrit scholars to develop an impressive body of work that increasingly links issues of identity to the substantive analysis of law, policy and process. This effort to link identity issues to substantive analyses has been particularly fruitful in revealing the way race and ethnicity are implicated precisely in those areas of law and policy that are ordinarily thought not to be about race and ethnicity: for example, in the operations and assumptions of international law and legal process, foreign affairs, liberal democracy, religion and sexuality, to name just a few areas of recent LatCrit attention.
To build on these accomplishments, everyone is encouraged to develop their proposals with a view to: (1) expanding our understanding of the impact of race and ethnicity in substantive areas of law and policy ordinarily thought to be about "something other than race" (e.g. issues of sovereignty, labor rights, globalization, intellectual property, antitrust law); and (2) deepening our analysis of the various ways in which identity issues intersect, conflate and conflict in our self-understandings and coalitional efforts. The following four themes are offered, therefore, as possible points of reference for thinking in new ways about familiar issues (like affirmative action and bilingual education), as well as for encouraging critical forays into new substantive areas (like communications or antitrust laws):
1) Papers or panels that focus on the multidimensionality of Latina/o identity and its relationship to current legal, political and cultural regimes or practices. The ideal is to explicate aspects of the Latina/o experience in legal discourse, both domestically and internationally. Nonetheless, you are free to address identity issues that do not specifically touch upon Latina/o identity or the law.
2) Papers or panels especially salient to this region (the East Coast). Regional emphasis ensures that the Conference's geographic rotation will illuminate local issues, helping us understand how local particularities produce (inter)national patterns of privilege and subordination.
3) Papers or panels that elucidate cross-group histories or experiences with law and power, such as those based on the intersections of class, gender, race, sexuality and religion. In this way, each Conference aims to both elucidate intra-Latina/o diversities and contextualize Latina/o experience within inter-group frameworks and Euro-Heteropatriarchy. Accordingly, we constantly ask how we can create progressive movements, communities and coalitions that meaningfully recognize difference.
4) Papers or panels that connect or contrast LatCrit theory to other genres of scholarship, both within and beyond law and legal theory, including but not limited to the various strands of critical outsider jurisprudence (critical race theory, feminist legal theory, queer legal theory) that critique class, gender, race, sexuality and other categories of social-legal identities and relations.
The Sponsoring Institution – American University Washington College of Law
Founded in 1898, the American University Washington College of Law is the first law school in the world founded by women, Ellen Spencer Mussey and Emma Gillett, who did so in part to combat the de facto exclusion of women from legal education and practice. WCL also was the first law school to have a woman dean and the first to graduate an all female law school class. The law school later expanded its mission to provide more generally opportunities for those historically outside the mainstream of the legal profession.
Today WCL is one of the most diverse law schools in the country, with 1,216 full-time JD students (40% identifying as minorities and 55% women), 160 students in two LLM degree programs and 25 SJD candidates. WCL’s student body includes native speakers of 92 languages and dialects, with almost all nations of the world represented. Its main building at 4801 Massachusetts Avenue, NW, occupies nearly 180,000 square feet over six stories, including the 54,000-square foot Pence Law Library.
WCL’s faculty consists of 61 tenured and tenure-track and over 100 active visiting and adjunct professors engaged in teaching, scholarship and service benefiting a myriad of professional and community institutions and social justice causes. Dr. Claudio Grossman, WCL dean and Raymond I. Geraldson Scholar for International and Humanitarian Law, is the longest serving Latino law school dean in the nation and an active practitioner of international and human rights law, currently serving as the unanimously elected chair of the United Nations Committee against Torture (UNCAT).
The Conference Sites
The LatCrit/SALT Junior Faculty Development Workshop (On Thursday, October 1) and the first full day of the LatCrit Conference (Friday, October 2) will take place in the Conference Center at the Hyatt Regency Bethesda Hotel in Bethesda, Maryland, which also will serve as the primary lodging site for conference attendees. A very accessible and comfortable hotel, the 390-room Hyatt Regency Bethesda offers two full-service restaurants, fully equipped fitness center, in-room broadband Internet access, and spacious conference facilities. The hotel is located at the heart of Downtown Bethesda, a diverse and lively urban center two miles northwest of the Washington, DC, border and three miles from American University. Over 200 restaurants, three live theaters, two cinemas, and several bookstores are within a short walk of the hotel, which sits directly above the Bethesda station on the Metro Red Line, offering rapid, low-cost and high-frequency rail service to Dupont Circle (15 minutes); the National Mall, White House, and Capitol Hill (20 minutes); and Reagan National Airport (30 minutes).
The LatCrit XIV planning committee selected the Hyatt Regency Bethesda in June 2008 after a lengthy and exacting search, and was able to lock in a significantly discounted guestroom rate for LatCrit attendees, comparable to previous LatCrit conference rates, in what is one of the most expensive hotel markets in the nation. Hotel reservation information will be made available, together with conference registration information, in early summer.
Most of the conference events on Saturday, October 3, including several rounds of panels, all work-in-progress workshops, and a community lunch, will take place at the American University Washington College of Law. Free shuttle bus transportation will be available between the hotel and the law school.
Monday, March 16, 2009
An upcoming episode of the BBC's program BBC Click TV will demonstrate how botnets send spam. But the network used its own botnet to show how easy it is to do so, and might have broken British law when it did that, according to one blogger. According to a Guardian story, the BBC told PC owners that "their PCs had been compromised, and it had closed down the botnet." So, says one lawyer, the network probably has nothing to fear. But does that make it all right? Read more here.
From the Guardian
The Guardian Student Media Awards 2009 have now launched!
Now in their 31st year, the Guardian Student Media Awards have made 100s of media moguls out of mere mortals including some of the country's most successful journalists, editors, broadcasters, designers and photographers. Past winners, including Andrew Rawnsley, Rankin, Jonathan Freedland and Emily Barr , who have all gone on to build successful careers in their chosen fields.
Now it's your chance to show you've got what it takes to develop a lasting career in the media.
However limited your resources, our experienced judging panel will recognise the kind of imagination and energy that will drive a successful career in media. They know, because they've been in your position, and if you're successful, pretty soon you could be in theirs.
This year's judging panel consists of many leading figures from the media industry including Alan Rusbridger, editor, the Guardian; Sam Baker, editor-in-chief, Red; Jeremy Langmead, editor, Esquire; Jane Bruton, editor-in-chief, Grazia; Jane Martinson, editor, MediaGuardian; Christina Lamb, author and Foreign Affairs, correspondent, Sunday Times; Evan Davis, presenter, Today Programme, Radio 4; Bryan Appleyard, author and Sunday Times writer; Carolyn Roberts, creative director, The Observer; Fiona Shields, Picture editor, the Guardian; Janine Gibson, Editor guardian.co.uk; Adam Gee, Commissioning Editor, Cross-platform Factual, Channel 4; Peter Barron, Head of Communications and Public Affairs, Google UK; Jon Snow, Presenter, Channel 4 News; Colin Murray, presenter, BBC radio and Channel Five; Kay Burley, Sky News Presenter; Sarah Miller, Editor, Conde Nast Traveller; Polly Toynbee, Columnist, The Guardian; Conor McNicholas, editor, NME; Eleanor Oldroyd, Broadcaster, BBC Sport and Tim Lewis, editor, Observer Sport Monthly
With 13 categories ranging from newspaper and magazine of the year, to best design and broadcaster of the year, there is an opportunity for every contributor to your student publication/ station to win - so make sure you enter as many categories as possible.
A full list of categories and details of how to enter are in the application pack enclosed, and at
Winners will be awarded cash prizes and work experience at the Guardian and Sky News. There is even an NME blogging internship on offer. One overall winner displaying outstanding talent and promise will win an extended six week work placement at the Guardian and £1650 subsistence allowance.
The shortlist will be announced in MediaGuardian in September. The winners will be revealed after the Guardian Student Media Conference at the awards ceremony in late Autumn 2009.