May 29, 2009
Texas Passes Shield Law; It's Already In Use
Texas' new shield law has already been put to use: a judge quashed a subpoena issued to KIII reporter Katy Kiser using the Free Flow of Information Act this week. Read more here.
Spector Gets 19 Years To Life
A judge has sentenced music producer Phil Spector to a term of 19 years to life for the murder of Lana Clarkson and told him he must serve a minimum of 19 years before being eligible for parole.
U. S. District Court For the Western District of Kentucky Holds That Single Publication Rule Applies To Internet In Defamation Cases
The U. S. District Court for the Western District of Kentucky has ruled that the single publication rule applies to the Internet. The plaintiff claimed that he had been defamed per se on the defendant's website. The defendant claimed that the plaintiff's action was barred by the statute of limitations.
The parties’ briefs raise several issues for consideration on this motion. First, this Court must identify the proper governing law that provides the appropriate statute of limitations. Plaintiff suggests that Alabama law, not Kentucky law, may govern this action. In a diversity action, the District Court applies the choice-of-law principles of the state in which the court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). This Court applies Kentucky choice of law principles. For tort actions, “any significant contact with Kentucky is sufficient to allow Kentucky law to be applied.” Monumental Life Ins. Co. v. Nationwide Retirement Solutions, Inc., 242 F.Supp.2d 438, 450 n.8 (W.D. Ky. 2003) (citing McGinnis v. Taitano, 3 F.Supp.2d 767, 769 (W.D. Ky. 1998)); see also Arnett v. Thompson, 433 S.W.2d 109, 113 (Ky. 1968). Plaintiff resides in Kentucky and seems to have discovered the allegedly defamatory statements in Kentucky. Any injury to Plaintiff's business reputation would be particularly experience in Kentucky, where he practices law. Such contacts are sufficient to apply the Kentucky limitation for filing an action for defamation....Reasonable arguments exist to support using a discovery rule instead of the publication rule for determining when the statute of limitations accrues. The Sixth Circuit has previously addressed this argument considering Kentucky case law. Lashlee, 570 F.2d at 109. In Lashlee, the plaintiff argued that the statute of limitations in a libel action should “not accrue until he learned or should have learned of [the publication's] existence.” Id. The Sixth Circuit noted that although Kentucky recognizes the discovery rule in medical malpractice cases, no Kentucky precedent supported applying the discovery rule to defamation cases. Id. It found reason in Kentucky case law to suggest Kentucky would now apply the discovery rule to defamation actions. Further, Kentucky Courts make clear that the medical malpractice discovery rule represents an exception to the general rule. Id. (citing Caudill v. Arnett, 481 S.W.2d 668, 670 (Ky. 1972).The statute of limitations for defamation is also governed by the single-publication rule. Under that rule, “any form of mass communication or aggregate publication … is a single communication and can give rise to only one action for libel.” In re Davis, 347 B.R. 607, 611 (W.D. Ky. 2006) (citing Mitan v. Davis, 243 F.Supp.2d 719, 722 (W.D. Ky. 2003); Restatement (Second) of Torts §577A)). The rule applies “where communication is simultaneously available to multiple persons.” Id. Under the single-publication rule, the statement is considered published and “the statute of limitations runs as soon as the communication enters the stream of commerce.” Id. (citing Mitan, 243 F.Supp.2d at 722).Examples of mass communication include “the publication of an edition of a book or periodical, or the broadcast of a single radio or television program.” Id. Kentucky Courts have yet to extend the single-publication rule to Internet publications. Yet, the Western District of Kentucky has twice predicted that Kentucky courts would apply the single-publication rule to material published on the Internet. Id.; Mitan, 243 F.Supp.2d at 722-24. This Court agrees that Kentucky would apply the single-publication rule to the Internet. The purposes behind the single-publication rule align with the Internet as a means of communication. The desires to avoid “multiplicity of actions; to protect the defendant from excessive liability based on a single publication run; to allow the plaintiff to recover all of his damages at once; and to reduce the chilling effect that the common-law rule might have on the mass communication of ideas,” are all applicable to Internet publications.The only variant seems to be the shear [sic] scale of the Internet: (1) its infinite ability to amass information and (2) its ability to reach an immense and diverse audience. True, public websites can more easily be accessed on not only the initial day of publication but on subsequent days as well. Yet this ease of accessibility cuts two ways: while a defamed person's injury is potentially greater, but it is also easier for that person to identify defamatory content. Since no case law suggests that a defamed party must know of defamatory statements, or even subscribe to the publication in which they were defamed, no facts seem to persuasively distinguish the Internet from other publication sources. Accordingly, this Court will apply the single-publication rule to Internet publications.Plaintiff did not discover the allegedly defamatory statements until July 2008. The Complaint also states that Plaintiff believes the statements were originally published some time in 2006. The complaint itself is not conclusive on the date of publication. In Defendant's affidavit, the Intelligence Report editor, Mark Potok (“Potok”), affirms that the alleged defamatory statements were first placed on Defendant's website on July 7, 2006 and the printed publication was mailed on August 14, 2006. He further affirms that the statements were not edited in any manner prior to their removal. Such evidence, if uncontroverted, establishes that the statute of limitations began running no later than August 14, 2006 and thus this action, having been filed in December 2008, was not timely filed....Despite Plaintiff's exhortations, parties may only avoid the consequences of the statute in a limited number of ways. The doctrine of republicationPage 1696operates as an exception to the single-publication rule. In re Davis, 347 B.R. at 611. Republishing material in a new edition, editing and republishing it, or placing it in a new form resets the statute of limitations. Id. (citing Restatement (Second) of Torts §577(A) cmt. c, d). This exception protects Plaintiff by providing “a remedy where the defendant edits and retransmits the defamatory material, or distributes the defamatory material for a second time with the goal of reaching a new audience.” Id. (citing Firth v. New York, 98 N.Y.2d 365, 466 (N.Y. Ct. App. 2002). Determining instances of republication is fact intensive. See, e.g., Woodhull v. Meinel, 202 P.3d 126, 130 (N.M. App. Ct. 2008) (“[T]he point at which republication may occur depends heavily on the facts of each case.”). Generally, a website is republished when its content is “substantially modified.” Atkinson v. McLaughlin, 462 F.Supp.2d 1038, 1052 (D.N.D. 2006) (citing Churchill v. State, 876 A.2d 311, 317 (N.J. Super. 2005); Firth, 775 N.E.2d at 465); see also Am. Dental Ass'n v. Khorrami, 2003 WL 24141018, *5 (C.D. Cal. 2003) (noting that the single-publication rule applies to the Internet so long as the statement “is not substantially changed after its initial appearance.”).Although avoidance is limited, the evidence is not conclusively in Defendant's favor at this time. Potok affirms that the statements were not edited in any manner between July of 2006 and July of 2008; however, other changes to the website's content may exist that would constitute substantial modification. Plaintiff has taken no discovery and, therefore, is unable to respond to Defendant's claim at this time. This Court will give the parties appropriate time to pursue discovery on the narrow issue of the statute of limitations.
The case is Salyer v. Southern Poverty Law Center, 37 Med.L.Rptr. 1693; 2009 U.S. Dist. LEXIS 35226; 2009 WL 1036907 (W.D.Ky.).
Craigslist CEO: We're At Center of "Witchhunt"
Craigslist head Jim Buckmaster says his company is enduring a "witchhunt" over the erotic ads it has accepted over the past few years. He notes in particular the actions of South Carolina Attorney General Henry McMaster, against whom Craigslist was granted a temporary restraining order last week. However, apparently the company has now dropped out of that litigation after Mr. McMaster agreed not to pursue criminal complaints against Craigslist execs.
David Souter and Academic Freedom
For the Chronicle of Higher Education, Steve Sanders writes that we may find that one of the greatest losses academics sustain now that Justice Souter is leaving the bench is one that is not immediately obvious: his devotion to academic freedom.
With the retirement of David H. Souter, academics and librarians will lose an ally on the nation's highest court. Not only did he staunchly defend intellectual freedom, but his opinions also displayed sensitivity and a sophisticated understanding toward faculty work and university decision making.
Souter's writings on such matters were not frequent...[b]ut he deserves praise for several thoughtful, carefully argued opinions that rejected what he saw as unworkable restraints on the freedoms of colleges, library patrons, and professors.
More than some of his colleagues, Souter seemed to understand that colleges are unique institutions whose internal workings the law must respect. For example, in Board of Regents of the University of Wisconsin System v. Southworth (2000), a group of conservative students challenged the university's mandatory activity fee because it supported certain activities — including centers for women and gay students and a liberal political-action group — with which they disagreed. The students argued that being forced to help pay for such things violated their First Amendment rights.
May 28, 2009
New York City's Film Tax Credit Legislation May Be Revamped
New York City is rethinking and re-introducing its film tax credit legislation. Maximum tax credits would drop from five to four percent, run through 2011, and cap at a quarter of a million dollars. Television shows could get the four percent credit for the first three years, then a maximum of three percent for the next year, and two percent for the fifth year. Productions must do three-quarters of their shooting in the city to be eligible. Still, not bad.
Daily Mail Issues Apology, Pays Damages, Over Story About Preferring Adoption and Careers To Natural Childbirth
The Daily Mail has apologized to four woman and paid out 10,000 pounds in damages to three of them after running a story that suggested that they valued their careers and figures more than having biological children, and thus chose to adopt. The women then hired the noted firm of Carter-Ruck, to represent them in legal action against the paper. Read more here.
Photo Agency, Online Service, Apologize For Inclusion of Photo of Disaster As Potential Jigsaw Puzzle
A photo agency has apologized after an image of a fire in which more than 50 people died in 1985 was included by an online service as a potential photo for use as a jigsaw puzzle. PA Photos included the image of the Bradford City (England) fire in a book of important photographs for sale and Media Storehouse, an online service, imported them into an "automated feed." Both companies have apologized. Read more here.
May 27, 2009
Science, the Brain, and the First Amendment
Interesting post by Marc Blitz over at Neuroscience and Law Blog on the subject of "low value speech" and the assumptions that scholars make about it, particularly with regard to its effect on mental images. Says Professor Blitz, "Can we use science to test and perhaps refine such assumptions?" He goes on:
While the First Amendment generally bars officials from censoring speech on the basis of its content, there are some exceptions to this rule: Government can punish words that incite others to break the law and can punish “true threats” that put us in fear of our physical safety. Many decades ago, the Supreme Court likewise held that we might be arrested for using “fighting words,” words so hateful or insulting that “by their very utterance [they] inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). While curse words are generally protected speech, the FCC has generally barred their use on daytime broadcast TV, when children can hear them. And some scholars have argued that the First Amendment should allow government to use similar measures to restrict minors’ access to television or video game violence. In many of these cases, courts have assumed that certain uses of threatening or violent words an imagery are likely to have a certain, worrisome impact on the audience’s mental processes and possible behavior. There also may be similar assumptions lurking behind some of the case law relegating commercial speech to the realm of “low value” speech (as is evident in some of the cases cited in my last post on subliminal advertising and communication).
Here are some more of Professor Blitz's posts: The Mind and Brain in Popular, and Not-So-Popular, Music; Neuromarketing, Subliminal Messages, and Freedom of Speech
German Court Lifts Ban On Film
A film starring Keri Russell may be shown in Germany after a court ruled that screening it would not infringe the rights of convicted killer Armin Meiwes, whose actions inspired the movie. Another court banned Grimm Love (German title Rohtenberg), released in 2006, because it agreed with Mr. Meiwes' argument that the film's storyline, that of a murderer who eats his victim, would cause Mr. Meiwes emotional harm. Mr. Meiwes was convicted of killing and eating another man in 2006. But the second court held that the case was widely publicized, that Mr. Meiwes had attempted to make money out of it himself, and that those involved in the making of Grimm Love had artistic rights of their own that on balance outweighed Mr. Meiwes' rights.
D (Digital) Day
Switchover day is nearly here (again), but this time it seems as though nearly everybody is ready. Nearly 3 percent of U.S. households may be in the dark when stations go from analog to digital signals, but can they say they weren't warned? Read more here.
For assistance with converter boxes and setup, call 1-888-CALLFCC, or go to the FCC's website; check out http://www.dtv.gov/callcenter.html. The FCC page also provides a search function through which you can find assistance in your area. It tells you what stations have or will soon go digital, who can come to your home to install a converter box, how to purchase a converter box, and other useful information.
Banning Lawyer Advertising
Notwithstanding a string of defeats in the United States Supreme Court, the organized legal profession has hardly relented in its efforts to limit lawyer advertising. Among the most dubious restrictions to which many states have clung is the prohibition on "self-laudatory" claims or other subjective representations by attorneys. This Article argues that a categorical ban on such claims rests on premises at odds with the Court's commercial speech jurisprudence. In particular, the prohibition clashes with the Court's disapproval of sweeping restrictions rooted in paternalistic assumptions about the public's capacity to assess commercial advertising. Admittedly, the Court has indicated some latitude for states to curb representations about legal services that are not susceptible to objective verification. Given the broader foundations of commercial speech doctrine, however, these pronouncements cannot be taken to support wholesale suppression of attorney advertising that exceeds the narrow presentation of data. On the contrary, ambiguities in the application of commercial speech principles to such provisions should be resolved in favor of the doctrine's fundamental impulse in favor of expression. Part I provides an overview of the Court's commercial speech doctrine, including discrete treatment of cases involving lawyer advertising and solicitation. Part II sets forth central tenets underpinning the Court's approach to commercial speech. Part III examines the tension between these principles and categorically forbidding self-laudatory and other subjective attorney advertising.
Download the article from SSRN here.
Contemporary Understanding Of the Fourteenth Amendment
For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment “incorporated” the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed “privileges” and “immunities” gave no hint of a connection with the Bill of Rights.Download the article from SSRN here.
May 26, 2009
Some of S. C. Nominee's Opinions
For a partial list of Supreme Court nominee Judge Sonia Sotomayor's opinions, see
From SCOTUSBlog: a post on the nominee's civil opinions
From Sports Law Blog: her sports law opinions
From Religion Clause: her religion opinions
Keeping Defamation Suits At Home
A New York Times editorial in support of anti-libel tourism legislation.
Daily Telegraph Removes Tory MP's Blog
The Daily Telegraph is no longer allowing Tory politican Nadine Dorries to blog on its site, after she accused the paper's owners of improper motives in allowing reporters to pursue further investigations concerning MP expenses. She accused the paper of mounting a "witch-hunt." The paper shut down Ms. Dorries' blog pursuant to the paper's user policy. Suggestions are that it feared a defamation action.
The Viacom v. YouTube Litigation
On March 13, 2007, Viacom International, Inc. and its affiliates, Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation and Black Entertainment Television, LLC (collectively as “Viacom”), commenced an action for direct, contributory and vicarious copyright infringement and inducement of copyright infringement against YouTube, Inc., YouTube, LLC and Google, Inc. (collectively as “YouTube”) in the United States District Court for the Southern District of New York. This action was consolidated with a putative class action law suit, which was filed on May 4, 2007, for purposes of discovery. The most recent development in the case is an order from the United States District Court for the Northern District of California, which directed BayTSP, Inc (“BayTSP”) to produce records and documents related to its efforts in policing infringing material hosted by YouTube.
Download the article from SSRN here.
May 25, 2009
Legal and Social Issues of Wifi Roaming
Download the article from SSRN here.
WiFi technology has become the preferable form for mobile users to connect to the Internet. The growing popularity of WiFi-enabled devices and the increasing number of WiFi networks guarantees that this trend will continue in the future. Since a single network provider is usually not able to ensure WiFi coverage for its own users across many geographic locations the WiFi roaming technology appears to be the promising solution. A special attention upon the practical deployment of WiFi roaming should be paid to possible threats coming from the misuse of technology. In this light we analyze various legal implications that might become relevant due to the deployment of WiFi roaming and discuss several risks and problems related to the security during the establishment of roaming connections between mobile devices and the Internet.
Fundamental Rights in Virtual Communities
As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights, and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression.
Because our legal system views the proprietor's interests as absolute private property rights, however, participants who are arbitrarily, capriciously, or maliciously ejected have little recourse under law. This paper argues that rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between 'public' and 'private' spaces and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants whilst simultaneously protecting the interests of developers.
Download the article from SSRN here.
A Famous Cartoon
The New York Times notes that on May 25, 1872, Harper's Weekly published a cartoon parodying three New York state judges--Albert Cardozo (father of Benjamin), John McCunn, and George Barnard--for providing the Tweed Ring and Tammany Hall with helpful decisions. The cartoonist was Frank Bellew.