Friday, February 20, 2009
The Ninth Circuit has struck down California's video game statute, saying it violates the First and Fourteenth Amendments to the federal Constitution. The case is Video Dealers Software v. Schwarzenegger. Here's an excerpt.
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York , 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
The AMPTP has made what it says is its last, best, and "final" offer to the Screen Actors Guild, and it claims this one represents a substantial jump over what members of the union received in the contract that expired last year. SAG, which has been undergoing great internal tension recently, has two months to consider the new offer. Read more here and here.
The website TMZ.com has published what it says is a photo of the singer Rihanna after singer Chris Brown allegedly assaulted her. Presumably the photo was leaked by law enforcement. Other media have also published the photo. CNN, however, has refused to publish the photo, although it is covering the story.
Some have criticized the BBC's policy of reading phone numbers aloud for the visually impaired, saying it is "political correctness gone mad." Peter Horrocks, head of the BBC's newsroom, defended the policy, explaining, "I asked them [BBC news presenters] if they would please spell out URLs, email addresses and phone numbers, pointing out that a significant number of blind people use television news." Read more here in a Guardian story.
The New York Post has issued an apology over that Sean Delonas cartoon picturing two officers shooting, then discussing, a dead chimpanzee. Some critics say the apology is half-hearted, or not an apology at all. Read more here in a Guardian story, a view from across the pond.
James Tobin will not face further prosecution in a "phone jamming" case. Mr. Tobin, who was a regional GOP official, had been convicted of interfering with New Hampshire residents' rights to vote by jamming a Democratic phone bank in 2005, but his conviction was overturned. Prosecutors then pursued a false statements charge, but a judge has ruled that "A loss on appeal may occasion the consideration of new charges, but it cannot justify the government's decision to bring those charges. To rebut a presumption of vindictiveness, the government must offer more." Read more here in an AP story.
Marci Hamilton of FindLaw and the Cardozo School of Law discusses the British government's refusal to grant entry to Dutch MP Geert Wilders because of his views on Islam. "There is no question that Wilders's views are disgraceful and offensive, but the British decision is a serious blow to global liberty. Britain admitted that it acted as it did because it feared upheaval from the Islamicist community in response to Wilders and his far-right views. This is the epitome of the "heckler's veto," where those offended by the message are permitted to use their disapproval to prevent speech they do not like." Read more here.
Thursday, February 19, 2009
The FCC reports a spike in consumer calls to its phone center Monday and Tuesday, which seems linked to the switchover of some television stations from analog to digital signals. On Friday the 13th the center got some 11,000 calls, but on Monday it got more than 20,000 calls and on Tuesday more than 28,000 calls.
The Guardian reports on a new study that says the high cost of libel suits is "shackling" the media. "Conditional fee agreements are making defamation cases in England and Wales 140 times more costly than in the rest of Europe and may not be compatible with human rights legislation."
Such arrangements mean that newspapers may be effectively unable to act as the "fourth branch" of government in Great Britain.
The data showed that even in non-CFA cases (where there is no success fee or insurance) England and Wales was up to four times more expensive than the next most costly jurisdiction, Ireland. Ireland was close to ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average. The data also showed that common law jurisdictions are by far the more expensive jurisdictions in which to conduct defamation proceedings. This was exacerbated by the use of CFAs. Based on the collected data the study was able to identify costs factors, unique to the common law tradition, which partially explain (although they do not justify) the comparatively high costs in England and Wales. Although the collected data did not enable the study to pinpoint the precise underlying reasons for these costs increases in numeric, proportionate and interrelated values, it did give strong suggestions as to why England and Wales is the most expensive jurisdiction.
Read the report, completed by Oxford University, here.
Wednesday, February 18, 2009
NPR has this short piece on the Chinese government's recent move to prohibit actors and other non-physicians from posing as real doctors in ads--apparently to prevent consumers from being confused, or worse. The prohibition actually extends to the portrayal of patients as well. Here's more from the Straits Times.
The Press Complaints Commission is investigating claims that two media outlets paid for stories about the 13-year-old who appears to have fathered a baby with a 15-year-old girl. Paying for stories is a violation of the PCC's code of ethics unless "there is a demonstrable public interest." According to the PCC's website,
"Minors must not be paid for material involving children's welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interests".
Newspapers are allowed to breach this rule if there is a demonstrable public interest. The PCC will make a public ruling on the matter when it has completed its investigation. The Commission has powers - under which it is conducting this inquiry - to launch investigations of its own volition.
The Sun and The People are the papers involved. Read more here in a Guardian story.
Tuesday, February 17, 2009
Muzzamil Hassan, the head of a Buffalo, New York, television station who wanted to "counteract negative stereotypes" about Muslims went to a local police station and told law enforcement that his wife was dead. Officers found her decapitated at the tv station. Mr. Hassan has been charged with second degree murder. Mrs. Hassan had recently filed for divorce. Read more here and here.
Sirius XM Satellite Radio has struck a deal with Liberty Media to avoid a bankruptcy filing and, apparently, to block a takeover by the Dish Network. Liberty Media will invest $530 million in the struggling business and get 12.5 million shares of preferred stock. Read more here in an AP story.
Prosecutors have dropped copyright infringement charges against The Pirate Bay founders, leaving a less serious charge of making copyrighted material available (via links to other servers). The defendants hailed the move as a win but affected parties view it as a simplification of the case. Read more here in a BBC story.
The White House is rethinking the media ban on photographs of coffins of war dead returning from Iraq and Afghanistan, a ban put in place under the Bush administration. Most Americans favor lifting the ban. The prior administration prohibited the media from publishing these photos, presumably because it feared that they would hurt morale. Read more here in a MSNBC story.
The New York Times covers the current debate over Facebook's change in its terms of service. It recently changed those terms to indicate that users grant Facebook "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. You represent and warrant that you have all rights and permissions to grant the foregoing licenses."
Some users consider that this means Facebook is asserting a right in their works and are protesting vigorously. Read more here.
Monday, February 16, 2009
The national, uniform defamation laws, which came into effect across Australia in 2006, represent the most significant landmark in the history of Australian defamation law. They represent the culmination of four decades of fitful struggle toward reform and reduce eight, substantively different systems of State and Territory defamation laws to one, largely uniform statute. This article undertakes a comprehensive analysis of the substantive and procedural changes brought about by the introduction of the national, uniform defamation laws. It assesses the uniformity of the legislation as passed. It examines the introduction of a statutory choice of law rule specific to defamation; the reduction in limitation periods for defamation actions; the abolition of the distinction between libel and slander; and the further marginalisation of criminal defamation. The article canvasses the significant changes made to standing to sue by corporations and representatives of deceased persons and the respective roles of judge and jury in defamation trials. It also analyses the reforms to defences to, and remedies for, defamation. It concludes by evaluating the efficacy of the national, uniform defamation laws and by suggesting scope for future reforms.
Download the article from SSRN here.