May 15, 2009
More On Criminal Libel In Colorado
An update in the Weichel (criminal libel) case:
Mr. Weichel pled guilty May 14 to two counts of harassment and received four years of probation, a five hundred dollar fine and sixty hours of community service. Read more here in an article from the Coloradoan.
Thanks to reader Steven D. Zansberg for the tip.
A New Article on Criminal Libel
David Pritchard, University of Wisconsin, Milwaukee, has published
The prevailing view of criminal libel among communication law scholars in the United States is that there are very few prosecutions, that most of the prosecutions are about politics or public issues, and that none of the prosecutions are necessary because victims of defamation can sue for civil libel. The results of an empirical study of all Wisconsin criminal libel cases from 1991 through 2007, however, suggest that criminal libel is prosecuted far more often than realized, that most criminal libel prosecutions have nothing to do with political or public issues, and that the First Amendment is an effective shield on the rare occasions when a criminal libel prosecution is politically motivated. This article concludes that criminal libel can be a legitimate way for the law to deal with expressive deviance that harms the reputations of private figures in cases that have nothing to do with public issues.
Fifth Circuit Reverses Lower Court Denial of Motion To Strike Under La. Anti-Slapp Statute In Defamation Case
In Henry v. Lake Charles American Press, the Fifth Circuit has reversed a lower court ruling denying defendants' motion to strike under Louisiana's anti-SLAPP statute, La. Code Civ. Proc. art. 971.
Henry was the owner and president of Chennault Jet Center, Inc. (“CJC”) from 1995 to 2005. CJC operated out of the Chennault International Airport in Lake Charles, Louisiana, and had contracted with the Defense Logistics Agency to refuel military aircraft. In February 2005, the government notified CJC that it was initiating an investigation into whether CJC had sold contractually noncompliant fuel for use in military aircraft. In April 2005, the government terminated the Defense Logistics Agency’s contract with CJC.
From May 2005 to January 2006, American Press published a series of articles describing the investigation of CJC’s fueling practices. Henry asserts that these articles contained several defamatory statements, but focuses primarily on reports that CJC provided “contaminated fuel” to military aircraft that may have caused them to flame out.
On May 10, 2006, Henry sued American Press for defamation in Texas state court. American Press removed the case to the Southern District of Texas on the basis of diversity and later successfully moved to transfer the case to the Western District of Louisiana. On August 20, 2007, the district court determined that Louisiana substantive law governed the dispute and permitted American Press to file a special motion to strike pursuant to Article 971 of the Louisiana Code of Civil Procedure (“Article 971”). As discussed further below, Article 971 provides a mechanism whereby plaintiffs bringing certain tort claims must show a probability of success on their claim before proceeding. The district court initially denied American Press’s Article 971 motion, and American Press requested reconsideration. The district court granted reconsideration and again denied American Press’s motion in a more detailed opinion. American Press then filed a notice of appeal from the district court’s order denying its Article 971 motion.
The threshold issue in this appeal is whether a district court’s denial of an Article 971 motion is immediately appealable under 28 U.S.C. § 1291. “[S]ince appeals of right have been authorized by Congress . . . , there has been a firm congressional policy against interlocutory or ‘piecemeal’ appeals and courts have consistently given effect to that policy.” Abney v. United States , 431 U.S. 651, 656 (1977). Section 1291 is part of that policy. Under § 1291, this court has “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. “For purposes of [§ 1291], a final judgment is normally deemed not to have occurred ‘until there has been a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Midland Asphalt Corp. v. United States , 489 U.S. 794, 798 (1989) (quoting Van Cauwenberghe v. Biard , 486 U.S. 517, 521 (1988)). Thus, as a general rule, parties must litigate all issues in the trial court before appealing any one issue. “Appeal is thereby precluded from any decision which is tentative, informal or incomplete, as well as from any fully consummated decisions, where they are but steps towards final judgment in which they will merge.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 142 (1993) (quotation marks omitted).
We must first determine whether the denial of an Article 971 motion is conclusive. Conclusivity does not merely require that the specific issue be conclusively determined; were that the case, any issue on which a district court has rendered a decision would be conclusive. See Goodman , 443 F.3d at 468. Instead, for an order to be conclusive, it should not be subject to later review or revision in the district court. See Coopers & Lybrand , 437 U.S. at 469 (noting that the denial of a request for class certification is not conclusive under the collateral order doctrine because “such an order is subject to revision in the District Court”); Baldridge v. SBC Commc’ns., Inc. , 404 F.3d 930, 931 (5th Cir. 2005) (noting that the denial of a request for certification for a Fair Labor Standards Act collective action is not conclusive under the collateral order doctrine because it “is subject to revision before the district court addresses the merits”). The mere power to revisit an order, however, is insufficient to preclude a finding of conclusivity; it should be unlikely that the district court will revisit the order. See 15A Wright et al., supra , § 3911, at 333 (“So long as there is a plain prospect that the trial court may itself alter the challenged ruling, there is little justification for immediate appellate intrusion. The bare fact that the court has power to change its ruling, however, does not preclude review. It is enough that no further consideration is contemplated.” (citations omitted)). That is, the order should be one that a district court rarely, if ever, revisits. An order denying an Article 971 motion satisfies any concerns regarding conclusivity. A district court’s denial of an Article 971 motion is conclusive as to whether Article 971 mandates dismissal of the suit. The motion freezes a suit while the court determines whether the plaintiff’s claim has merit. If a trial court grants an Article 971 motion, the litigation ceases and the case is dismissed. If a trial court denies an Article 971 motion, then the case proceeds as it normally would. There is also no indication that a trial court would revisit an earlier decision on an Article 971 motion. We therefore conclude that an order denying an Article 971 motion is conclusive for the purposes of the collateral order doctrine.
Second, we must determine whether an Article 971 motion resolves an issue completely separate from the merits of the case. Issues are not separate “where they are but steps towards [a] final judgment in which they will merge.” Cohen , 337 U.S. at 546. Moreover, where the issues raised in an interlocutory appeal “involve considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action,’” the order is often found not to be separate. Coopers & Lybrand , 437 U.S. at 469 (quoting Mercantile Nat’l Bank v. Langdeau , 371 U.S. 555, 558 (1963)).
At first blush, an order denying an Article 971 motion seems to clearly decide an issue separate from the merits; it determines only the issue of whether Article 971 requires dismissal of a suit. Our inquiry should not end here, however, as further consideration raises several concerns. First, the Article 971 determination requires an assessment of the plaintiff's probability of success. This risks involving an appellate court in the factual and legal issues underlying the plaintiff's claim. Indeed, the Article 971 determination is an assessment of the merits of a plaintiff's claim, and this court has previously suggested that such an inquiry might weigh against a finding of separability.... Second--assuming for the sake of argument that Article 971's evidentiary provision would apply in federal court--Article 971 allows plaintiffs to introduce a trial court's denial of a special motion to strike as evidence at trial....Thus, although an Article 971 motion does not necessarily involve issues that arise later in the trial, issues that arise later in the trial might involve an Article 971 motion. This also weighs against a finding of separability....
These potential entanglements, however, are insufficient to forestall a finding of separability. First, Article 971 has a purpose distinct from that of the underlying suit. As the Ninth Circuit reasoned in addressing the appealability of a similar California statute, an anti-SLAPP motion "resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff's claim will succeed." Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). Moreover, "[t]he purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim," not to determine whether the defendant actually committed the relevant tort. Id. Article 971 thus "exists separately from the merits of the defamation claim itself." Id.
Further, the policy behind the collateral order doctrine militates in favor of finding separability. The final order rule limits appeals to encourage the aggregation of all necessary issues for one appeal and to provide for efficient adjudication. The separability requirement furthers this purpose by preventing appeals on issues that will be definitively decided later in the case. In this way, one might characterize separability as a way of ensuring that a movant is not attempting to have an appellate court preemptively resolve a disputed issue still pending in the district court. Thus, in Pan Eastern Exploration Co., discussed above, the issue of whether interests of international comity warranted dismissal of the suit was dependent upon the interests in proceeding with the litigation, and the district court would balance these interests as the trial progressed.... In contrast, issues of immunity are decided prior to trial and then not normally revisited. Consequently, even where the immunity determination looks to the facts underlying the dispute, the immunity determination is tangential to the merits of the underlying case. Similarly, although an Article 971 motion looks to the plaintiff's probability of success, the court decides it before proceeding to trial and then moves on. Immediate appellate review would thus determine an issue separate from any issues that remain before the district court.
Finally, the mere fact that a trial court's decision denying an Article 971 motion is admissible at trial does not change our conclusion. Article 971(A)(3), as originally enacted, provided,
If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
1999 La. Acts 734. The Louisiana legislature amended this provision in 2004 to allow a trial court's denial of an Article 971 motion to be admissible at trial. See 2004 La. Acts 232 (amending Article 971(A)(3) to read, "If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding."). The purpose of this change is unclear, but this provision appears to strike a balance between the costs and benefits of filing an Article 971 motion. That is, defendants should be hesitant to file a frivolous Article 971 motion, as an adverse decision can then be used against them at trial.
We must also determine whether a district court's denial of an Article 971 motion is effectively unreviewable on appeal....
The denial of an Article 971 motion satisfies the unreviewability condition. The purpose of Article 971 is to free defendants from the burden and expense of litigation that has the purpose or effect of chilling the exercise of First Amendment rights. Article 971 thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute. In other words, Article 971 does not provide a defense to liability; defendants remain liable for actual acts of defamation and other torts. But it does provide defendants the right not to bear the costs of fighting a meritless defamation claim. If an Article 971 motion is erroneously denied and unappealable, then the case proceeds to trial and this right is effectively destroyed. And in line with the Supreme Court's observation in Midland Asphalt, Article 971 provides an explicit statutory guarantee of a right not to stand trial.
Two American Journalists To Go On Trial; Roxana Saberi In Vienna
North Korea is putting two U.S. journalists, detained for the past several months, on trial next month. It's not clear what charges the government has brought against Laura Ling and Euna Lee, who work for Current TV.
Meanwhile, Iranian-American journalist Roxana Saberi has arrived in Vienna. Ms. Saberi left an Iranian prison earlier this week after an Iranian court reduced her eight-year-sentence.
Former Sex Pistol John Lydon has plunged into an ad war in behalf of Country Life butter, which is battling for supremacy over rival brand Anchor, a New Zealand brand. Apparently, a number of loyal Anchor buyers think it's British, so the ads inform the public that "Anchor's from New Zealand," and Mr. Lydon then is quoted as saying, "So? I buy Country Life cos I think it tastes the best." Read more here.
Henry King, Nuremburg Prosecutor and Scholar of International Law
From Case Western Reserve Law School's Michael Scharf:
It is with great sorrow that I pass along the news that our dear friend and colleague, Professor Henry T. King, Jr. died on Saturday, May 9, 2009, just a few weeks before his 90th birthday.For the past 30 years, Henry served as a Case Western Reserve University School of Law Professor and Chair of our Canada-United States Law Institute. Right up to the end, he was energetically teaching, publishing, and organizing conferences. (faculty bio: http://law.case.edu/faculty/faculty_detail.asp?adj=0&id=121)Henry’s last televised speaking appearance was with me on a panel entitled “High Crimes, High Drama,” at the Maltz Museum of Jewish Heritage in Cleveland on December 10, 2008.Henry was Case’s version of the Dalai Lama; our students flocked to his classes to soak up the wisdom gained over a truly extraordinary legal career. At the age of 25, fresh out of Yale Law School (B.A. 1941, LL.B. 1943), Henry was hired as the youngest Prosecutor at the Nuremberg Trials. At Nuremberg, Henry worked on the Justice and Ministries cases, led the prosecution of former Luftwaffe Field Marshall Erhard Milch, deputy head of the Luftwaffe under Hermann Goering, in the High Command trial. Henry interrogated many of the major Nuremberg defendants, including Albert Speer, who Henry later chronicled in a critically acclaimed book, The Two Worlds of Albert Speer: Reflections of a Nuremberg Prosecutor.Upon returning to the United States, Henry served as director of the Agency for International Development during the Eisenhower Administration, and worked as a chief corporate international counsel for more than twenty years with TRW Inc., and later was of counsel at Squire, Sanders & Dempsey LLP. He then joined the faculty of Case Western Reserve, where he taught International Business and International Arbitration, both favorites of our students that consistently had long wait lists.
Through the conferences he organized in the late 1980s as Chairman of the Canada-United States Law Institute, Henry played an integral role in facilitating the drafting and negotiation of the North American Free Trade Agreement.
In 1998, Henry and two other 80-something-year-old former Nuremberg prosecutors, Whitney Harris and Ben Ferencz, participated in the Rome diplomatic conference to create a permanent international criminal court and used their unique moral authority, dogged persistence, and skills of persuasion to convince the delegates to include the crime of aggression in the Court’s statute (pending agreement on a definition and trigger mechanism). Last fall, in cooperation with the President of the ICC Assembly of States Parties, Henry co-chaired a conference and experts meeting on “The ICC and the Crime of Aggression” at Case Western Reserve, which developed proposals that significantly advanced the effort to define the crime and the conditions under which the Court could exercise its jurisdiction over it.
Henry was an influential leader of the American Bar Association, serving in the 1950s as Chair of the International Law Section, and later as a member of the ABA’s special task force on war crimes in the former Yugoslavia. In addition he was the U.S. chairman of a joint working group, organized by the American, Canadian, and Mexican bar associations, on the settlement of international disputes. Henry also founded the 200-member Greater Cleveland International Lawyers Group.
In 2004, Henry was appointed Canada’s Honorary Consul General for Cleveland and Northeast Ohio. The Canadian Government, U.S. Department of Justice Office of Special Investigations, Robert H. Jackson Center, and Case Western Reserve University President Barbara Snyder, among others, paid tribute to Henry at a recent event honoring his 65 years of accomplishments and public service.
At a luncheon session that I attended a few months ago in which Henry reflected on insights gained over the years, he told the standing-room crowd of students that “the most important thing is to find some way to leave your mark for the betterment of society and the world.” Henry left his mark in a big way. His life’s work and dedication to international justice is an inspiration. He will be missed terribly.
The New York Times' Dennis Hevesi has a nice remembrance of Professor King's life and accomplishments.
The Fairness Doctrine
An update on the Fairness doctrine from the Blog of the Legal Times.
More On the Google Book Search Settlement
Not everyone thinks the Google Book Search settlement is a good idea. Pamela Samuelson at Boalt Hall Law School has pointed out the pros and cons of the settlement in a letter sent to Judge Denny Chin, who's overseeing the details. Read more in a Chronicle of Higher Education article.
Are you due royalties? Check here.
A Book on Detroit TV
A new book of interest: Tim Kiska's A Newscast for the Masses: The History of Detroit Television News (Wayne State University Press, 2009). Mr. Kiska teaches journalism at the University of Michigan, Dearborn.
No Testimony From Farrow, Soon-Yi Previn in Allen Trial
Lawyers for American Apparel say they will not call Mia Farrow and Soon-Yi Previn to the stand. Read more here.
This paper argues that the automatic and opaque nature of internet filtering, together with the fact that it is generally implemented by intermediaries, raises new problems for the law and in particular may tend to undermine aspects of freedom of expression.
The paper starts by challenging the rhetoric underlying the use of the term “filtering” and suggests that the use of other terms such as "blocking" or "censorware" may be more appropriate.
It then considers where filtering fits into the modalities of governance and the resulting issues of legitimacy and accountability. As regards legitimacy it argues that the use of technology to exert control over internet speech frequently undermines aspects of the rule of law concerning both the process for and content of norms governing behaviour. In relation to accountability, the paper argues that where it is not clear what is being blocked, why, or by whom, the operation of mechanisms of accountability - whether by way of judicial review, media scrutiny, or otherwise - is greatly reduced.
Finally the paper suggests that, as compared with control through legal instruments, filtering may rob users of moral agency or responsibility in their use of the internet, with the implication that they may freely do whatever it is technically possible to do, with no necessity of moral engagement in their activities.
Download the paper from SSRN here.
May 14, 2009
Gender, Copyright and Filk Literature
Over the past few decades, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices potentially create problems in light of existing intellectual property law. In this paper, we explore those issues and whether a filker's gender influences his or her attitude towards intellectual property law. After setting out a basic explanation of filk and the intellectual property issues, the article details the various statistical results generated from the databases we built (one objective and one subjective) and draws some conclusions about gender and filk.
Judge Rules R. J. Reynolds Tobacco Ad Violated Agreement
A judge has ruled that Reynolds' Tobacco's Rolling Stone ads violated an agreement with 46 state attorneys general because it contained "cartoon imagery." He ordered the company to prepare an anti-smoking ad aimed at young people that would also appear in Rolling Stone. Read more here in an article in the Legal Intelligencer, which also contains a link to the ad.
Criminal Libel Cases In Colorado
J. P. Weichel is apparently still awaiting trial for posts he made about his girlfriend on Craigslist. The local prosecutor decided to charge him under the state's criminal libel statute, which could land him in jail if he's convicted. Mr. Weichel says he was venting over the situation between himself and the girlfriend, the mother of his child. Read more here in an L. A. Times article from last December. The Citizen Media Law Project lists this case as pending. Another case is pending in Colorado against Robert Tafoya. Read more here.
A number of states still have criminal libel laws on the books. Here's a discussion from Paul McMasters of the First Amendment Center.
May 13, 2009
More From Julie Hilden on the Prosecution of "Sexting" Cases
Julie Hilden discusses why "sexting" is not necessarily equivalent to "contributing to the delinquency of a minor" if the "sexter" is a minor.
Another Look at the EU Directive For Data Protection and Privacy
The EU Directive 95/46/EC specifically demarcates categories of sensitive data meriting special protection. It is important to review the continuing relevance of existing categories of sensitive data in the light of changes in societal structures and advances in technology. This paper draws on interviews with privacy and data protection experts from a range of countries and disciplines and findings from the Information Commissioner’s annual telephone survey of the British public in order to explore satisfaction with the current categories of sensitive data. It will be shown that the current classification of sensitive data appears somewhat outdated and thus ineffective for determining the conditions of data processing. Finally, possible reform proposals will be reviewed, including a purpose-based approach and context-based approach.
Talking Privacy: What We Talk About When We Talk About Google
Google has come to symbolize the tensions between the benefits of innovative, information-dependent new services and the desire of individuals to control the contexts in which personal information is used. This essay reviews hundreds of newspaper articles where Google speaks about privacy in an effort to characterize the company’s handling of these tensions, to provide context explaining the meaning of the company’s privacy rhetoric, and to advance the privacy dialogue among policy makers, journalists, and consumers.
The dialogue surrounding these tensions is unfocused because many policy makers, journalists, and consumers concentrate the debate on whether the company violates its “you can make money without doing evil” corporate motto. This first observation flows to a second: Google’s conception of “evil” is tied to the revolution the company brought about in advertising practices, practices that many think are mainstream now. Google is thus missing opportunities to remind the public that its advertising policies have several strong pro-consumer aspects, many of which are lost when “evil talk” is employed. Third, vague privacy rhetoric signals a weak commitment to technical or legal safeguards. Journalists are well suited to remedy this by exercising greater inquiry and skepticism in contexts where Google’s privacy representations are non-substantive. Finally, Google heavily relies upon appeals to competition, arguing that those who adopt the company’s services engage in meaningful tradeoffs. Quietly shifting practices, lock in, and lengthy data retention periods, however, mean that these tradeoffs must be continually reevaluated. Google should give voice to its competition and tradeoff rhetoric by creating data portability and deletion rights for consumers.
May 12, 2009
Wikihoaxer Creates Wikiflap
An Irish college student has proven what a lot of researchers have feared for a long time: people copy from Wikipedia without verifying the credibility of what they copy. Unfortunately, some of those copiers are journalists. Shane Fitzgerald put a juicy (and fake) Maurice Jarre quotation in the Wikipedia entry for the composer shortly after Mr. Jarre's death on March 28, and within hours it appeared in obits around the world. Wikipedia editors scrubbed it almost immediately, identifying it as bogus, but newspaper editors did not. The Guardian has admitted its error, but many other media outlets haven't owned up. Here's more from the Irish Times. The quote in question?
One could say my life itself has been one long soundtrack. Music was my life, music brought me to life, and music is how I will be remembered long after I leave this life. When I die there will be a final waltz playing in my head, that only I can hear.
Kind of lyrical, actually.
Miss California/USA Wins Out; Moving On
Donald Trump has ruled that Carrie Prejean, Miss California/USA, will continue serving, even though she posed for those infamous photos, and even though the Miss California/USA pageant officials seemed annoyed with her for failing to disclose the existence of the pictures. Here's more from the Associated Press. Skirmish over.
Bob Herbert On Race Conscious Coverage Of Murder Victims
Bob Herbert writes about the uneven media coverage given to murder victims, even today. When he was a young reporter, he notes, the tilt toward stories about white victims was obvious.
[T]he press is still very color conscious in the way it goes about covering murder. Editors may not be asking, “What color is that victim?” But, on some level, they’re still thinking it.
Which is why we’ve heard so little about an awful story out of Chicago. Some three dozen public school students have been murdered since the school year began, most of them shot to death. These children and teenagers have been killed in a wide variety of settings and situations — while riding a city bus, playing in parks, sitting in the back seats of cars, in gang disputes, in robberies, in the crossfire of sidewalk shootouts.
It’s an immense and continuing tragedy. But these were nearly all African-American or Latino kids, so the coverage has been scant.