September 11, 2009
Louisiana Supreme Court: CNN Does Not Have Standing To Intervene In New Orleans Hospital Case
The Louisiana Supreme Court has ruled that a cable news station (CNN) did not have standing to intervene in a case in which a New Orleans hospital requested the return of property held by the District Attorney's Office. CNN asserted that it had the right to examine the records based on the Louisiana public records act.
In brief, both CNN and the AG argue that any documents obtained from Tenet-Memorial plainly fall within the definition of a public record under the Public Records Act, and, therefore, the AG has a legal duty to maintain copies of all such documents in his file. They further argue this duty overcomes Tenet-Memorial's right to have said copies returned. CNN and the AG also argue that a motion filed pursuant to La. R.S. 15:41 is by nature a civil action that can only be brought in a court of civil jurisdiction, and that, even if a motion for return of seized property can be brought in a criminal court, La. R.S. 15:41 is applicable only to property seized pursuant to a search warrant and specifically inapplicable to documents produced pursuant to a subpoena duces tecum. In opposition, Tenet-Memorial asserts that CNN lacks standing to intervene in this action, La. R.S. 15:41 is a criminal motion that can only be brought in a court of criminal jurisdiction, and La. R.S. 15:41 applies to both [Pg 14] search warrants and subpoenas duces tecum.
We must first consider whether CNN has standing to intervene in Tenet-Memorial's motion for return of property. Tenet-Memorial asserts that CNN was neither a party to the motion for return of property, nor was it made a subject of the court's order. In addition, Tenet-Memorial notes that La. R.S. 15:41 does not contemplate actions by third parties other than those who claim an ownership interest in the seized property. Consequently, Tenet-Memorial concludes that CNN lacks standing to challenge the trial court's order. CNN counters that it has an interest in the motion for return of property because the records at issue qualify as public records and therefore implicate [Pg 15] the public's rights under the Public Records Act.
When addressing a litigant's standing, we have found that the "predicate requirement of standing is satisfied if it can be said that the [litigant] has an interest at stake in litigation which can be legally protected." ... Conversely, a litigant who is not asserting a substantial existing legal right is without standing in court. ... In addition, that a party has the legal capacity to appear in court does not alone define standing; rather, standing is gauged also by the specific statutory or constitutional claims that the party presents and the party's relationship to those claims. ... The standing inquiry requires careful examination of whether a particular litigant is entitled to an adjudication of the particular claims it has asserted. ...
In this case, La. R.S. 44:35 provides for the enforcement of the public's rights under the Public Records Act:A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days . . . from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney's fees, costs and damages as provided for by this Section, in the district court for the parish in which the [Pg 16] office of the custodian is located.
La. R.S. 44:35. La. R.S. 44:35, by its plain language, provides that "any person who has been denied the right to inspect or copy a record" by the action of the "custodian" of those records a cause of action against the "custodian." ...Tenet-Memorial is not the custodian of the public records at issue in these consolidated cases, and is therefore not capable of denying CNN its right to inspect or copy a public record by filing a motion for return of its property. La. R.S. 44:31 and 44:36. Rather, the custodian of the public records at issue in these proceedings is the AG. La. R.S. 44:36. CNN's right of action under the Public Records Act is limited to actions against the custodian of the public records. La. R.S. 44:35. Consequently, CNN's action for enforcement of its rights under the Public Records Act is not by way of intervention against Tenet-Memorial in a motion for return of property filed in an Orleans Parish Criminal District Court because CNN has no substantial legal right in that motion. Rather, CNN's action for enforcement of its rights under the Public Records Act is by way of suit against the AG, in the district court for the parish in which the office of the custodian is located. La. R.S. 44:35. In fact, in these consolidated cases, CNN exercised its rights under the Public Records Act when it filed suit against the AG in the District Court for the Parish of East Baton Rouge. For these reasons, CNN lacks statutory authority and is thus without standing to also exercise that right by intervening in an Orleans Parish Criminal District Court action against an entity that is not the custodian of the public records.
[Pg 17] CNN asserts, however, that it has a right, not only to access the public records, but also to ensure that they are not compromised by the Orleans Parish District Court's order mandating the return of certain documents and copies thereof. The intent of CNN's intervention in this case is thus not to inspect the public records, but rather to maintain what it considers to be public records. However, when the facts alleged provide a remedy to someone, but the litigant who seeks relief is not the person in whose favor the law extends the remedy, that litigant is without standing. ...In this case, the right and responsibility to maintain the public records is within the exclusive statutory authority of the AG....Consequently, CNN cannot gain standing by claiming that it wishes to maintain the integrity of the public records on behalf of the AG.
In addition, when ruling on standing, it is both appropriate and necessary to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.... Here, CNN asserts a status that necessarily belongs to the AG: that of custodian of the alleged public records at issue in this case. However, CNN is without statutory authority to take up this mantle on behalf of the AG. As such, CNN also asserts that it has status as a person who has been denied the right to inspect or copy a public record. Nonetheless, CNN has asserted this status in an action for return of property. The claim sought to be adjudicated in this proceeding is that of the return of property. This claim has no logical nexus to CNN's asserted status, which is that of a party who has been denied the right to inspect or copy a public record. In order to be entitled to maintain its action, [Pg 18] CNN must have had a direct and present interest in the motion for return of property; it is insufficient that CNN had a remote or indirect interest therein....
For these reasons, we find that CNN lacked standing to intervene in the Orleans Parish Criminal District Court proceeding, and we hereby dismiss CNN from that portion of this case.
Read the entire opinion here.
New Industry Coalition Plans To Develop Tools To Measure Ratings
Time Warner, Disney Media Networks, Viacom, Procter & Gamble, AT&T, CBS/Paramount, Discovery, NBC Universal, and several other media giants have announced the formation of the Coalition for Innovative Media Measurement (CIMM), which will attempt to develop new methods of gathering ratings. According to the Hollywood Reporter, "The group will initially fund a series of pilot studies conducted by independent measurement companies. One will seek to set a new standard for using cable and satellite set top-box data, and the other will explore new methods for cross-platform measurement. The CIMM is opening the doors for companies -- including Nielsen -- to submit proposals." The CIMM says it does not intend to present itself as a rival to the Nielsen Company. Read more here.
Picking Sides In the Google Settlement
The Chronicle of Higher Education has this survey of who's on which side in the fight over the Google book settlement. Meanwhile, the Copyright Office has come out against the deal. Said MaryBeth Peters, Registrar of Copyrights, in part:
In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress. The settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come. We are greatly concerned by the parties’ end run around legislative process and prerogatives, and we submit that this Committee should be equally concerned.
September 10, 2009
When the Media Is the Story, Sometimes It Chooses To Delay Telling the StoryFrom NPR's Corey Flintoff, a story about when news organizations go dark on stories concerning kidnapped journalists. Safety is the concern.
Privacy scholars have recently outlined difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy. Shifting notions of 'reasonable expectations of privacy' in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework. This article offers a map of privacy that might help delineate at least the outer boundaries of Web 2.0 privacy. The aim is to develop an umbrella under which individual aspects of privacy may be collected and examined, along with their relationships to each other. The key aspects of privacy identified are: (i) actors/relationships; (ii) privacy-threatening conduct; (iii) motivations; (iv) harms/remedies; (v) nature of private information; and, (vi) format of information. The author suggests that by examining these aspects of privacy, and their inter-relationships, we might gain a more comprehensive picture of online privacy. We might also gain a better idea of precisely where Web 2.0 technologies are putting pressure on the boundaries of traditional notions of privacy.
Download the article from SSRN here.
September 9, 2009
Student Press Law Center Files Amicus Brief in Doninger Case
The Student Press Law Center ("SPLC&"), the nation's only nonprofit legal-assistance organization serving student journalists, filed a friend-of-the-court brief today in support of a Connecticut high-school student punished by her principal for using a personal, off-campus blog to criticize school policies and urge the public to contact the school with their opinions.
In a friend-of-the-court brief filed September 4 with the Second U.S. Circuit Court of Appeals in the case of Doninger v. Niehoff, the SPLC urged the appeals court to reverse the ruling of the U.S. district court, which found that Avery Doninger's First Amendment rights were not violated when she was punished for using a blog on LiveJournal.com to vent about a dispute with her principal over the use of school facilities for a concert. The school claimed that Avery's conduct was "disruptive,&" even though there was no evidence that anyone read the blog item at school, or that the blog had any disruptive impact on school.
"If allowed to stand, the lower court's decision will chill the exercise of First Amendment rights, for it suggests that off-campus speech may be punished if it is designed to ‘influence fellow students,' or if it encourages communication with school officials to challenge their decisions,&" the SPLC said in the brief.
Volunteer attorneys Joseph P. Esposito, William E. Potts and Edward A. Wyatt from Hunton & Williams LLP in Washington, D.C., one of the nation's top media-law and litigation firms, prepared and filed the brief for the SPLC.
Frank D. LoMonte, an attorney and executive director of the Student Press Law Center, explained that traditionally, schools have had no authority to punish off-campus conduct unless the conduct took place at a school-supervised event, such as a field trip. "Because schools often claim the right to control and punish what students say in school-funded newspapers, it is especially important that students retain the full First Amendment rights of citizenship when they are on their own property and on their own time,&" LoMonte said. "If schools are allowed to dictate what students say outside of school, then schools will have nearly unlimited ability to prevent negative news stories from coming to light.&"
LoMonte said the Doninger case exemplifies a dangerous trend in which schools have claimed that speech using electronic modes of communication is so much more pervasive and accessible than speech on paper that it is entitled to lesser First Amendment protection. "The Supreme Court has made it abundantly clear that online speech is of equal constitutional dignity with speech in print. The fact that only four known individuals read Avery Doninger's blog – none of whom did anything threatening or disruptive in response to it – goes to show that students' online speech is not so qualitatively different from speech in print that the courts should consign it to ‘second-class' constitutional status,&" LoMonte said.
The U.S. District Court for the District of Connecticut ruled in January 2009 that Avery's First Amendment rights were not violated when Principal Karissa Niehoff barred her from assuming office as secretary of her senior class at Lewis S. Mills High School in Burlington, Conn. Judge Mark R. Kravitz ruled that Avery's blog commenting on her dispute with the school administration was not protected by the First Amendment, because it used a coarse word ("douchebags&"), and because it could have been expected to cause a "disruptive&" level of public contact with the school – even though the judge acknowledged that the only actual "disruption&" was caused by the principal's own decision to miss a school meeting so she could use that time to discipline Avery. The judge did allow Avery to proceed on a secondary claim, that her First Amendment rights were violated when the school forbade her and her classmates from wearing "Team Avery&" T-shirts to a school assembly to express their opposition to Principal Niehoff's decision.
Public school students' First Amendment rights are governed by the Supreme Court's landmark 1969 ruling in Tinker v. Des Moines Independent Community School District, which held that – even on campus during school – students may freely express their opinions so long as their expression does not "materially and substantially disrupt&" school operations. "If calls and emails from parents and students are deemed sufficient to establish ‘substantial disruption or material interference,' then school officials will have free rein to suppress any off-campus student newspaper or speech that challenges their decisions, and public school students will no longer enjoy protection under the First Amendment,&" the SPLC said in its brief. "Indeed, the more substantive and hard-hitting the student's journalism, the more likely its censorship will be lawful.&"
Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.
Lawyers and the ShireThe search for the Ring can continue, after producers for New Line Cinema settled a dispute with J. J. R. Tolkien's heirs over royalties for the Lord of the Rings films. Mr. Jackson's new project, The Hobbit, is due out in 2011. Read more here.
Blogging From the Front
Troops are blogging, the Pentagon is watching, and the New York Times is reporting, here.