Saturday, May 2, 2009
The Guardian reports that four journalists working for the Baltimore Sun got the news that they had joined the ranks of the unemployed while they were covering a Baltimore Orioles game. A reporter for the Orange County Register blogging the game kept a running count and updated the score. Wrote Bill Plunkett early in the day, "Tough times in the newspaper biz. Two writers for the Baltimore Sun in the press box here got the news — by phone during the game — that they had been laid off in the latest round of cost-cutting. Stay classy, Baltimore Sun management."
A New York state appellate court has upheld a lower court summary judgment ruling in Kipper v. NYP Holdings, finding that the plaintiff failed to show with clear and convincing evidence that the defendant published the statements with actual malice.
On December 7, 2003, page 24 of the New York Post's Sunday edition carried a short, eight-paragraph, "rewrite" of a 98-paragraph article taken from the Los Angeles Times's wire service. The Times article, entitled "Harsh Reality of 'Osbournes' No Laughing Matter," described the rock-singer John "Ozzy" Osbourne's allegations that his former physician, plaintiff David A. Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series. In addition, the Times article accurately stated that the California Medical Board had "moved to revoke" plaintiff's license due to his alleged gross negligence in the treatment of other patients. But the Post article, which appeared under the inaccurate headline "Ozzy's Rx doc's license pulled," contained an error. Despite clearly indicating that it was based upon "Los Angeles Times reports," the sixth paragraph of the Post rewrite incorrectly stated that "the state medical board revoked Kipper's license."
On appeal, our task is to undertake an independent review to determine whether the record evidence is capable of demonstrating actual malice with "convincing clarity"....We turn then to plaintiff's argument that the record contains evidence sufficient for a reasonable jury to find that the Post published the erroneous statements regarding his license with reckless disregard for the truth.
Although incapable of "one infallible definition . . . . reckless conduct is not measured by whether a reasonably prudent [person] would have published, or would have investigated before publishing" (see St. Amant v Thompson, 390 U.S. 727, 730-731 ). Instead, to cross the constitutional threshold of actual malice, there must be "clear and convincing evidence that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of . . . probable falsity".... The inquiry is thus a subjective one, focusing upon the state of mind of the publisher of the allegedly libelous statements at the time of publication.... This decidedly high standard of culpability has been set because "it is essential that the First Amendment protect some erroneous publications as well as true ones".... The actual malice standard recognizes that falsehoods relating to public figures are "inevitable in free debate" and that publishers must have sufficient "breathing space"...so that the First Amendment's commitment to "the principle that debate on public issues should be uninhibited, robust, and wide-open" will be realized....
We agree with the Appellate Division that the present record lacks the clear and convincing evidence necessary for a jury to conclude that defendant's inaccurate statements were published with actual malice. As an initial matter, plaintiff's reliance upon the Post's failure to employ fact-checkers, to attempt to verify the status of his license prior to publication, or to identify those individuals responsible for the false headline and statement is misplaced. Put simply, such proof of "[m]ere negligence does not suffice" to establish actual malice by clear and convincing evidence.... Conceivably, in an extreme case, a failure to investigate could be so gross as to prove a willful avoidance of knowledge..., but this is not that case.
We are concerned here with whether there is "concrete" or "affirmative evidence"...in the record that would allow a jury to conclude with "convincing clarity"...whether the Post's employees actually entertained serious doubts about the truth of the rewrite's inaccurate headline and sentence or that they published those statements with a high degree of awareness of their falsity. Plaintiff argues that a jury applying the New York Times actual malice standard could find in his favor because the record establishes that a Post editor fabricated the facts concerning plaintiff's licensure to make Gittens's rewrite "more sensational" and thereby generate increased sales. Other than the fact that the rewrite contains two erroneous statements, however, there is no evidence that Gittens, his editor Venezia, or anyone else at the Post seriously doubted the truth of the complained-of statements or was highly aware that they were incorrect prior to publication. Evidence of falsity does not equate with proof of actual malice....
Given this lack of concrete proof, plaintiff relies heavily upon Gittens's testimony that the lead paragraph of a wire service article was usually edited to make it "more Post-like." But the full context of Gittens's testimony along with his affidavit, Angelo's affidavit, and Venezia's testimony, demonstrate that this short-hand phrase referred to stylistic alterations and not to the fabrication of facts. A writer can make an article a "better read" and engage in "more interesting word selection" without sacrificing factual integrity. Clearly, the First Amendment offers no shield to "calculated falsehoods"..., but at no point does this record even suggest that the Post set out to falsely defame plaintiff in this instance, or other individuals regularly, to increase its sales. Moreover, plaintiff's heavy reliance on the "more Post-like" testimony is flawed since Gittens's deposition indicates that he was using that jargon to refer to changes made to a rewrite's lead paragraph. Here, however, plaintiff does not contend that that paragraph is inaccurate.
[T]he possible revocation of defendant's license was accurately mentioned in a lengthy Los Angeles Times wire service article. Thus, plaintiff's license controversy was not thrust into the public eye merely on defendant's whim. Second, there is no evidence that defendant's employees intentionally or recklessly fabricated the relevant false statements. Although the actual status of plaintiff's license could be verified through an accurate reading of the Times article, this potentiality does not negate the possibility that Gittens or his editors, all working under a deadline, simply misperceived the correct statement in the Times article or draft rewrite.... Certainly, there is no evidence that any Post employee deliberately avoided consulting the Times article so as to publish a more sensational, albeit concocted, story with an untarnished mental state...[along with other circumstantial evidence, newspaper's failure to interview key witness or to listen to available tape recordings that would verify or refute account of newspaper's source constituted an actionable "purposeful avoidance of the truth"] [internal citation omitted])....
In sum, a reasonable jury confronted with these facts and circumstances could not find with convincing clarity that defendant's erroneous statements were published with actual malice. Rather, the record bespeaks non-actionable mistake or negligence. Thus, a grant of summary judgment in defendant's favor was appropriate.
The case is Kipper v. NYP Holdings, 2009 NY Slip Op 3407; 2009 N.Y. LEXIS 762 (2009).
Friday, May 1, 2009
Police finally had to intervene. A couple chose a spot on the lawn at Windsor Castle to, well, express affection for each other, and just--would--not--stop in spite of repeated comments by tourists and others present encouraging them to cut it out. The police "confirmed that two people had been arrested and cautioned for outraging public decency." The Guardian notes that some visiting Japanese were comparing their videos. How long before we'll see confirmation of the event on YouTube?
The Advertising Standards Authority is investigating an ad for the designer ice cream brand Antonio Federici Gelato Italiano (warning: a parody of "That's Amore!" plays when you open up the website) which rolled out a new advertising campaign with an ad featuring a nun and a priest looking as if they are about to kiss. The ad carries the tagline: Kiss Temptation. The ASA warns that the ad might contravene the advertising code because it might give offense to religion. The company's spokespeople say the ad is intended to be lighthearted. Read more here.
Thursday, April 30, 2009
The Scientist reports that the drug company Merck paid the publisher Elsevier to put out the Australasian Journal of Bone and Joint Medicine, a product that it says turned out not to be a real scientific journal but that seems to have been an advertisement for Merck's own drugs. Says The Scientist, "Merck paid an undisclosed sum to Elsevier to produce several volumes of a publication that had the look of a peer-reviewed medical journal, but contained only reprinted or summarized articles--most of which presented data favorable to Merck products--that appeared to act solely as marketing tools with no disclosure of company sponsorship." The Scientist also says that the publication did not have a website. The Scientist provides links to two of the publication's issues. Information about the Australasian Journal of Bone and Joint Medicine came out during the course of a civil trial last week.
The Hollywood Reporter notes that Screen Actors Guile (SAG) ballots will be mailed to the membership May 19, due back June 9. SAG members are voting up or down on whether to ratify the new tentative agreement worked out with the Alliance of Motion Pictures and Television Producers (AMPTP) which would expire in 2011.
Tony Blair's twenty-five-year-old son Euan, an aspiring banker, has launched a lawsuit at the Sunday Express for printing a story about his personal life. The younger Blair says the story invades his privacy. During the former Prime Minister's tenure at 10 Downing Street, he and his wife often had words with the press over stories printed about their young family. Read more here in a Guardian article.
Wednesday, April 29, 2009
A Hong Kong court has found a computer technician guilty of "copying and distributing" material which he found on the laptop of Chinese-Canadian actor Edison Chen. The material was intimate photographs of Mr. Chen and various well-known actresses. Sze Ho-chun took the material from the laptop when Mr. Chen dropped it off for repair in 2006. Later the material made its way to the Internet. As a result, Mr. Chen says he has received death threats; both he and several of the actresses have taken time off from filmmaking.
Peter Hill, editor of the Daily Express, defended his paper's reporting of the Madeleine McCann kidnapping and of the coverage of the death of Princess Diana, and told Members of Parliament that he never offered to resign over it. Said Mr. Hill, "If editors had to resign every time there was a libel action against them, there wouldn't be any editors." The Daily Express eventually apologized for its McCann coverage after the parents' attorneys threatened legal action.
Mr. Hill also defended the number of stories the paper had written about the possibility of conspiracy leading to Princess Diana's death. "Of course we believed it. I do not publish stories that I believe to be untrue. That is something I do not do." Finally he agreed with the editor of the Daily Mail by saying, "We do not have a free press in this country by any means. We have a very shackled press."
Read more here in a Guardian story.
A Los Angeles Superior Court judge has told both Britney Spears' ex-manager Sam Lufti and a former lawyer, Jon Eardley, to stay away from her, but both say they will appeal the orders. He also ordered a former boyfriend to stay away for three years. Ms. Spears is currently on tour.
The website Football 365 has agreed that the story it published alleging that Aston Villa's manager Martin O'Neill had lied about the possible move of player Gareth Barry from Aston Villa to Liverpool and will pay "substantial damages" to Mr. O'Neill, according to the Guardian. An attorney for the website apologized to Mr. O'Neill in open court.
Tuesday, April 28, 2009
Supreme Court Rules In Favor of FCC On Administrative Issue in "Fleeting Expletives" Case; Declines To Decide Free Speech Issue
The Supreme Court has ruled in favor of the FCC in the "fleeting expletives" case, finding that the agency has power under the statute to change its prior policy without demonstrating "to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one." But it sent the case back to the lower court on the free speech issue. Here is a link to the opinion.
Here is an excerpt from Justice Scalia's majority (5-4) opinion.
To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. See United States v. Nixon, 418 U.S. 683, 696 (1974). And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must -- when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.
In this appeal from the Second Circuit's setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters' arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). We know of no precedent for applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside "arbitrary [or] capricious" agency action, the Administrative Procedure Act separately provides for setting aside agency action that is "unlawful," 5 U.S.C. § 706(2)(A), which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action. If the Commission's action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act's "arbitrary [or] capricious" standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.
Judged under the above described standards, the Commission's new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent "prior Commission and staff action" and explicitly disavowing them as "no longer good law." Golden Globes Order, 19 FCC Rcd., at 4980, P12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order, 21 FCC Rcd., at 13308, P23, 13325, P61.
Moreover, the agency's reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the Commission said with regard to expletive use of the F-Word, "the word's power to insult and offend derives from its sexual meaning." Id., at 13323, P58. And the Commission's decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica, 438 U.S., at 750. Even isolated utterances can be made in "pander[ing,] . . . vulgar and shocking" manners, Remand Order, 21 FCC Rcd., at 13305, P17, and can constitute harmful "'first blow[s]'" to children, id., at 13309, P25. It is surely rational (if not inescapable) to believe that a safe harbor for single words would "likely lead to more widespread use of the offensive language," Golden Globes Order, supra, at 4979, P9.
When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, P12 (repudiating the view that the Commission's enforcement power was limited to "deliberate, repetitive use of the seven words actually contained in the George Carlin monologue"); In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, P17 ("reject[ing] an approach that would hold that if a work has merit, it is per se not indecent"). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable because that was "at odds with the Commission's overall enforcement policy." Remand Order, supra, at 13308, P23.
The Court of Appeals found the Commission's action arbitrary and capricious on three grounds. First, the court criticized the Commission for failing to explain why it had not previously banned fleeting expletives as "harmful 'first blow[s].'" 489 F.3d at 458. In the majority's view, without "evidence that suggests a fleeting expletive is harmful [and] . . . serious enough to warrant government regulation," the agency could not regulate more broadly. Id., at 461. As explained above, the fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so. And it is not the Commission, but Congress that has proscribed "any . . . indecent . . . language." 18 U.S.C. § 1464.
There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. See, e.g., State Farm, 463 U.S., at 46-56 (addressing the costs and benefits of mandatory passive restraints for automobiles). It is something else to insist upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe -- or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity.
The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica, and we nonetheless held that the "government's interest in the 'well-being of its youth' . . . justified the regulation of otherwise protected expression." 438 U.S., at 749 (quoting Ginsberg v. New York, 390 U.S. 629, 640, 639 (1968)). If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decisionmaking.
The court's second objection is that fidelity to the agency's "first blow" theory of harm would require a categorical ban on all broadcasts of expletives; the Commission's failure to go to this extreme thus undermined the coherence of its rationale. 489 F.3d at 458-459. This objection, however, is not responsive to the Commission's actual policy under review -- the decision to include patently offensive fleeting expletives within the definition of indecency. The Commission's prior enforcement practice, unchallenged here, already drew distinctions between the offensiveness of particular words based upon the context in which they appeared. Any complaint about the Commission's failure to ban only some fleeting expletives is better directed at the agency's context-based system generally rather than its inclusion of isolated expletives.
More fundamentally, however, the agency's decision to consider the patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious. "Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale," we have explained, "would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected." Pacifica, supra, at 750, n. 29. The same rationale could support the Commission's finding that a broadcast of the film Saving Private Ryan was not indecent -- a finding to which the broadcasters point as supposed evidence of the Commission's inconsistency. The frightening suspense and the graphic violence in the movie could well dissuade the most vulnerable from watching and would put parents on notice of potentially objectionable material. See In re Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television Network's Presentation of the Film "Saving Private Ryan," 20 FCC Rcd. 4507, 4513, P15 (2005) (noting that the broadcast was not "intended as family entertainment"). The agency's decision to retain some discretion does not render arbitrary or capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review -- shows that were expected to (and did) draw the attention of millions of children.
Finally, the Court of Appeals found unconvincing the agency's prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives one at a time. 489 F.3d at 460. But even in the absence of evidence, the agency's predictive judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance. The Court of Appeals was perhaps correct that the Commission's prior policy had not yet caused broadcasters to "barrag[e] the airwaves with expletives," ibid. That may have been because its prior permissive policy had been confirmed (save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more expletives than the Commission (which has the first call in this matter) deemed in conformity with the statute.
The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission's stepped-up enforcement policy. Golden Globes Order, supra, at 4980, P11. And the agency's decision not to impose any forfeiture or other sanction precludes any argument that it is arbitrarily punishing parties without notice of the potential consequences of their action.
The Second Circuit did not definitively rule on the constitutionality of the Commission's orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, "not of first view." Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). It is conceivable that the Commission's orders may cause some broadcasters to avoid certain language that is beyond the Commission's reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material "surely lie at the periphery of First Amendment concern," Pacifica, 438 U.S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.
* * *
The Second Circuit believed that children today "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech," and that this cuts against more stringent regulation of broadcasts. 489 F.3d at 461. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to "substitute [our] judgment for that of the agency," State Farm, 463 U.S., at 43, and we find the Commission's orders neither arbitrary nor capricious.
The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
The photo-op flyover wasn't such a good idea after all. The White House's Military Office Director, Louis Caldera, who okayed the use of one of the President's two 747's for the event, now apologizes, saying he probably should have realized the effect it would have on a jittery New York. And the President himself is reported to be really annoyed. Here's a link to Mr. Caldera's statement [reproduced below].
"Last week, I approved a mission over New York. I take responsibility for that decision. While federal authorities took the proper steps to notify state and local authorities in New York and New Jersey, it’s clear that the mission created confusion and disruption. I apologize and take responsibility for any distress that flight caused."
Mayor Michael Bloomberg, however, says he was not notified of the flyover.
Read more here.
Monday, April 27, 2009
FindLaw's Julie Hilden discusses the Moreno case here; it's the one in which a high school principal submitted a former student's poem (previously published on MySpace) to a local paper without her permission. The poem was not complimentary of the town in which the student had lived, and the student's family subsequently received death threats and was forced to close down its business and leave town. The student sued the paper and the principal for various invasion of privacy claims and for IIED.
The appellate court allowed the plaintiff's IIED claim to proceed but upheld the dismissal of the privacy claims.
"The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress." ...To be outrageous, conduct must be so extreme that it exceeds all bounds of that usually tolerated in a civilized community.... However, conduct that might not otherwise be considered extreme and outrageous may be found to be so if a (1) defendant abuses a relation or position that gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress....
It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.... In making this determination, the court employs an objective standard applied to the actual conduct, i.e., how reasonable people might view it, excluding from that category those who are either overly sensitive or callous.... But, "'[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.'" ... Here, the trial court concluded that Campbell's conduct did not meet the standard of outrageousness necessary to constitute a cause of action for intentional infliction of emotional distress as a matter of law.
In stating their claim for intentional infliction of emotional distress, appellants alleged that Campbell submitted the Ode to the Coalinga Record, knowing he did not have permission to do so. Appellants further alleged that Campbell engaged in this act to punish appellants for the contents of the Ode and intended to cause them emotional distress. Appellants contend that this conduct was extreme and outrageous, especially in light of Campbell's position as Araceli's principal....
Since this appeal is from the sustaining of a demurrer without leave to amend, this court must assume the truth of appellants' allegations against Campbell. Based on these allegations, we conclude that reasonable people may differ on whether Campbell's actions were extreme and outrageous. Accordingly, it is for a jury to make this determination. Thus, the trial court erred in sustaining the demurrer to the intentional infliction of emotional distress cause of action.