May 15, 2010
Controversy Over Seattle Station's Handling of Videotape
Two employees of CNN Seattle affiliate KQPC (Q13) have left the station, after questions have been raised over the station's seeming unwillingness to air a videotape of what seems to show police assaulting a man, now identified as Martin Monetti. Local freelancer Jud Morris shot the video on April 17 and gave it to the station, which then failed to air it. Mr. Morris then posted the video on YouTube. He also told another local CNN affiliate that Q13 did not want to air the tape because it airs the popular crime solving show "Washington's Most Wanted," which features local law enforcement. Q13 denies that involvement with the show had any effect on its delay in airing the tape. The FBI and internal affairs are now investigating police actions with regard to events depicting on the tape.
Read more here in a CNN story.
May 14, 2010
Stephen, Sedition and Restricting Freedom of Speech
Sir James Fitzjames Stephen was one of the most subtle and obstinate critics of the arguments which John Stuart Mill put forward in On Liberty (1859), particularly Mill’s defence of liberty of thought and discussion. Stephen began composing this reply to Mill on the voyage back to England from India, where amongst other official duties, he had been responsible for the revision of the Indian Penal Code (IPC) so as to introduce an offence of sedition. Against this background it is particularly interesting to examine how the Indian courts have dealt with the IPC offences of sedition, of promoting enmity, hatred or ill-will between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, of making imputations, assertions prejudicial to national integration, of committing deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and of making statements conducting to public mischief. In broad terms, these or similar offences are to be found also in the Penal Codes of Pakistan, Bangladesh and Myanmar (Burma). This book chapter focuses on India, as the only one of those countries in which (the Emergency apart) national electoral democracy and constitutional judicial review have consistently functioned. The chapter examines how the Indian courts have interpreted these parts of the IPC in the light of the constitutional guarantee of freedom of expression. It also considers the scope and use of the powers to impose prior restraints on freedom of speech and freedom of assembly which state governments and the executive magistracy have under sections 95 and 144 of the Indian Code of Criminal Procedure. The chapter also compares the approach of the Indian courts to expression likely to provoke enmity, hatred or ill-will on grounds of religion (or caste) with the approach taken to such matters by the European Court of Human Rights. It concludes by re-examining the disagreement between Mill and Stephen on the scope of liberty of thought and discussion, in the light of these examples of the relevant law and practice in South Asia.
Download the essay from SSRN at the link.
New Hampshire Supreme Court Finds Website Publisher May Claim Newsgathering Privilege; Adopts Dendrite Test For Disclosure of Anonymous Speakers
The New Hampshire Supreme Court has ruled in Mortgage Specialists Inc. v. Implode-Explode Heavy Industries Inc., that a company operating an online service that gathers information about mortgage lenders and posts it online qualifies as a newsgatherer for purposes of the state's newsgathering privilege.
In Mortgage Specialists, the Court said in part:
Although our cases discussing the newsgathering privilege have involved traditional news media, such as newspapers, see, e.g., Keene Pub. Corp., 117 N.H. at 960, we reject Mortgage Specialists' contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting. The trial court implicitly found that Implode is a “legitimate publisher of information” and a member of the press. The court further noted that it “has every reason to believe that [Implode] is a reputable entity desirous of only publishing legitimate information about the mortgage industry to various interested parties.”
The fact that Implode operates a website makes it no less a member of the press. In light of the trial court's implicit findings, we conclude that Implode's website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.
We also reject Mortgage Specialists' alternative argument that if Implode is considered a reporter, then Downing v. Monitor Publishing Co., Inc., 120 N.H. 383, 415 A.2d 683 (1980), is controlling and disclosure is warranted. In Downing, the issue was whether the defendant-newspaper in a libel case should be required to disclose the source of allegedly defamatory information it published... In holding that it should, we also held that “there is no absolute privilege allowing the press to decline to reveal sources of information when those sources are essential to a libel plaintiff's case.” ... We established that a “plaintiff must satisfy the trial court that he has evidence to establish that there is a genuine issue of fact regarding the falsity of the publication.” ... Critical to our ultimate ruling that source disclosure was required was the fact that as a public official, the plaintiff was required to prove that the defendant-newspaper acted with actual malice....Here, Mortgage Specialists does not seek damages against Implode for libel.
We have set forth guidelines to determine whether a plaintiff can compel a defendant-newspaper to disclose confidential sources in a libel action...and whether a defendant can overcome the qualified newsgathering privilege in a criminal case....However, we have not yet established a standard to determine whether a plaintiff can overcome the newsgathering privilege in a civil suit where the press is a non-party to a defamation action. In the absence of binding precedent, in interpreting Part I, Article 22 of our State Constitution, we are guided by the First Circuit Court of Appeals' balancing test, which weighs the First Amendment rights of a news organization against the rights of a litigant seeking confidential information.... In Bruno & Stillman, the First Circuit vacated the district court's decision granting the boat company-plaintiff's motion to compel the disclosure of confidential sources and information conveyed by them to The Boston Globe.
The First Circuit agreed and instructed courts faced with requests for the discovery of journalistic materials to “be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.” ... It remanded the case for reconsideration of the plaintiff's motion to compel discovery and instructed the district court to “balance the potential harm to the free flow of information that might result against the asserted need for the requested information.” ... The court cited several factors for trial courts to consider, including whether the claim is merely “a pretense for using discovery powers in a fishing expedition,” whether there is a need for confidentiality between the journalist and the source, the exhaustion of other non-confidential sources, and the importance of confidentiality to preserve the journalist's continued newsgathering effectiveness.
We hold that this balancing test applies to a trial court's review of a petition seeking disclosure of an anonymous source from the press to ascertain the identity of a potential defendant in a defamation action. Here, the trial court ordered the disclosure of the Loan Chart source without analyzing the applicability of the qualified newsgathering privilege or conducting any balancing of interests. We therefore vacate the trial court's disclosure order and remand for further proceedings consistent with this opinion.
Implode also challenges the trial court's order mandating disclosure of the source of the Brianbattersby's postings. Implode argues that the trial court erred in failing to balance Brianbattersy's First Amendment rights against Mortgage Specialists' need to discover his identity. In ordering disclosure of Brianbattersby's identity, the court found that “[t]he maintenance of a free press does not give a publisher a right to protect the identity of someone who has provided it with unauthorized or defamatory information.”
We take this opportunity to adopt a standard for trial courts to apply when a plaintiff requests disclosure of the identity of an anonymous defendant who has posted allegedly defamatory material on the Internet.
Recently, several courts have enunciated rules regarding disclosure of anonymous Internet speakers.... The seminal case is Dendrite International, Inc. v. Doe Number 3, 342 N.J. Super. 134, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). The plaintiff corporation, Dendrite, sued several John Doe defendants for defamation, based, in part, on the posting of statements on a website forum.... Dendrite appealed an order denying its request to conduct limited expedited discovery to ascertain the identity of the John Doe defendants.... A three-judge panel of the Superior Court of New Jersey affirmed the denial of Dendrite's motion based upon the trial court's finding that Dendrite failed to establish harm resulting from the Internet comments.
We conclude that the Dendrite test is the appropriate standard by which to strike the balance between a defamation plaintiff's right to protect its reputation and a defendant's right to exercise free speech anonymously. Accordingly, we join those courts which endorse the Dendrite test.... We hold that the qualified privilege to speak anonymously requires the trial court to “balanc[e] … the equities and rights at issue,” thus ensuring that a plaintiff alleging defamation has a valid reason for piercing the speaker's anonymity....We accordingly vacate the trial court's disclosure order and remand for further proceedings consistent with the Dendrite test.
Finally, Implode argues that the trial court erred in enjoining it from republishing the Loan Chart and the two Brianbattersby postings because the injunction constitutes an unlawful “prior restraint” on publication in violation of the First Amendment to the Federal Constitution. Mortgage Specialists counters that the publication of the Loan Chart is unlawful because it violates the confidentiality requirements of RSA 383:10-b (2006) and constitutes an invasion of privacy. It further asserts that the Brianbattersby postings are unlawful because they are false and defamatory.
Generally, “[w]e will uphold the issuance of an injunction absent an error of law, an unsustainable exercise of discretion, or clearly erroneous findings of fact.” ... In cases involving alleged prior restraint of speech, the trial court must consider whether publication “threaten[s] an interest more fundamental than the First Amendment itself.” ...In considering the validity of such injunctions under the First Amendment, we have “an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ...
Courts and commentators define prior restraint as a judicial order or administrative system that restricts speech, rather than merely punishing it after the fact.... In reviewing prior restraint cases, the United States Supreme Court has stated: “The court has interpreted … [First Amendment] guarantees to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary — orders that impose a ‘previous’ or ‘prior’ restraint on speech.”...“Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” ....
In the seminal prior restraint case, Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the defendant was the publisher of a newspaper containing anti-Semitic articles critical of local officials. In issuing a permanent injunction against the defendant, the trial court relied upon a state statute authorizing injunction of “malicious, scandalous and defamatory” publications.... The state supreme court affirmed, and the publisher appealed to the United States Supreme Court.... The Court reversed, finding that the state statute violated the freedom of the press because it was the “essence of censorship.”.. . The Court explained that prior restraints may be issued only in rare and extraordinary circumstances, such as when necessary to prevent the publication of troop movements during time of war, to prevent the publication of obscene material, and to prevent the overthrow of the government.
In the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), the federal government sought to enjoin The New York Times and The Washington Post from publishing a stolen classified study on United States decision-making policy in Vietnam. Although the newspapers sought to publish these top-secret documents during the Vietnam War and the documents contained highly classified information that presumably threatened national security, the Supreme Court held that even those threats to important governmental interests could not overcome the established presumption against prior restraint on speech....
Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.
Read the entire ruling here.
Press Complaints Commission Refuses To Uphold Politician's Complaint Against Blogger
The Press Complaints Commission has refused to find in favor of Viscount Monckton, who filed a complaint concerning a post by writer/journalist George Monbiot on his Guardian blog. Said the PCC in part:
The blog entry, by George Monbiot, commented on the announcement that Viscount Monckton had joined the UK Independence Party. The complainant said that the piece listed a number of claims that he had made and wrongly cast doubt on their validity....The complainant maintained that all of his assertions on these points were true, but the journalist had suggested otherwise. The article also ascribed statements to him that he had never made: that he claimed to have won the Falklands war; that he had claimed to have made himself a gold pin to prove his Nobel-prize winning credentials; and that he had previously ‘boasted' of telling untrue stories.
In addition, the piece referred to the complainant as a ‘swivel-eyed maniac', which he said was a discriminatory reference to a physical disability (proptosis) he suffered as the result of having had Graves' disease.
The newspaper defended most of the disputed points. While the complainant may indeed have read the draft Copenhagen Treaty, he could not have known with certainty, when speaking in mid-October, what precisely would be signed in mid-December. It was legitimate, therefore, for Mr Monbiot to jokingly refer to the complainant as a clairvoyant. As to whether the Treaty referred to ‘world government', the newspaper acknowledged that it did but said it was clear that the Treaty was not envisaging a supranational government to replace national governments.
With regard to the complainant's claim to be a member of the House of Lords, the newspaper pointed out that, while the complainant may have a hereditary title, this had been irrelevant to membership of the Upper House of Parliament since 1996. The complainant himself accepted that he had no right to sit or vote in the House of Lords. The question of whether the IPCC had taken account of the complainant's ‘contribution' to its 2007 report was irrelevant....As to the claim that he had ‘boasted' of telling untrue stories, the newspaper pointed to an article from the Scotsman (to which the blog had itself linked) in which the complainant admitted to telling a tall tale for personal benefit....
The Guardian accepted that the complainant had not made himself a gold pin (it had been made for, and presented to, him by a third party) and it offered to place a clarification on the blog. It also noted that he disputed having once claimed to have won the Falklands War, contrary to a reported comment in an Observer article from 2007, to which the blog linked and which had not been the subject of a PCC complaint. The Guardian said that it was willing to clarify publicly the context in which the remark had previously been reported. But, since there had been no complaint to the PCC about the Observer piece, and since the Observer journalist stood by his article, it did not consider additional action to be reasonable.
As to the complaint about discrimination, the Guardian said George Monbiot had been unaware of the complainant's illness. The blog had used the phrase ‘swivel-eyed maniac' as part of a direct quote from another blog (about which there had been no complaint)....Nonetheless, it understood the complainant's concerns and offered to remove the description from the blog.
The complainant said these measures were inadequate and asked the Guardian to publish a full letter of reply from him.
Read commentary from Roy Greenslade here.
May 13, 2010
Gender and Political Ads
In America women not only vote differently than men but they also vote in larger numbers (Poggione). In 2000, 56 % of women turned out while only 53% of men voted. This translated to 8 million more women in the electorate (Schaffner, 804). Women tend to vote for the candidate who talks about issues that they consider to be most important including, healthcare, education, welfare, elderly, and war and peace issues. Research has shown that this is true regardless of party and ideology (Poggione). The gender gap is the idea that women are more liberal than men and tend to care about different issues. The issues like healthcare, education, welfare, elderly and war and peace are referred to as "women's issues." Women place more of an emphasis on issues when they vote than on party and ideology. Some scholars have found that gender is the largest contributing factor that determines how one will vote. Others say that there are stronger factors such as socioeconomic status, party affiliation, the region in which one resides, and a person’s religious affiliation that determine how a woman will vote. The questions driving this paper are: do candidates develop strategies that appeal specifically to women in order to garner votes? Will the candidate who includes more of these issues in his or her campaign message win the female vote? To carry out my research I coded political ads from the 2008 general election campaigns of Barack Obama and John McCain to determine which candidate had more ads focused on issues that have been determined to attract women. I anticipated that the presidential candidate who spoke to women’s issues most during the campaign would maximize his or her chances of securing the female vote at election time. Ultimately this study will assess candidate behavior through political ads to determine whether or not targeting women’s issues in a campaign message helps a candidate win the female vote.
Download the paper from SSRN at the link.
Sean Penn Pleads No Contest; Gets Community Service and ProbationAccording to the BBC, two time Oscar winner Sean Penn has pled no contest to a vandalism charge and received a sentence of 300 hours of community service and 3 years of probation from the judge, this after yet another run-in with a paparazzo. He spent time in jail for assault in 1987.
CommLaw Conspectus Call For Papers
From the editors of CommLaw Conspectus
CommLaw Conspectus: Journal of Communications Law and Policy is currently seeking submissions for publication in its Volume 19 editions. CommLaw Conspectus publishes thoughtful, timely, and useful articles that discuss recent developments in communications law and policy. The journal welcomes articles, essays, and book reviews written by scholars, practitioners, and other leading experts in the field of communications law.
CommLaw Conspectus is a semiannual publication. Articles published in CommLaw Conspectus typically consist of lengthy explanations and criticisms of an area of the law while essays tend to be much shorter and discuss or seek to initiate a discussion in an area of communications law. A typical issue contains three to four lead articles written by communications law scholars and practitioners and three to four student notes and comments. In addition, we periodically publish essays, book reviews, a bibliography of recent communications law books, and summaries of major communications law cases and FCC dockets.
Each submission to CommLaw Conspectus is reviewed by at least two staff personnel. Authors are usually notified of a publication decision between one and six weeks after a submission is received. In order to expedite the review of manuscripts, the journal strongly recommends that all submissions be sent via email to firstname.lastname@example.org.
CommLaw Conspectus follows citation conventions described THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass'n et al. eds., 18th ed. 2005)
Submissions should conform as much as possible with this style guide. If you have written a manuscript about a topic of current interest in the field of communications law or policy, we invite you to submit your writing to CommLaw Conpsectus. Please note that submissions will not be returned.
Submissions may be mailed to:
CommLaw Conspectus: Journal of Communications Law and Policy
The Catholic University of America
Columbus School of Law, Suite 248
3600 John McCormack Road, N.E.
Washington, D.C. 20064
Phone: (202) 319-5134
From Writing To Speech To ActionMarci A. Hamilton on the controversy over Swedish cartoonist Lars Vilks' image of the Prophet Mohammed, "Jihad Jane," American Colleen LaRose, who is accused of plotting to kill him, and the right to speak.
May 11, 2010
Media Ethics and Middle East Reporting
This article presents a brief overview of press freedom under the First Amendment, attempts to create a working definition of media “objectivity,” examines various codes of professional ethics for journalists, and analyzes specific cases in which such standards have allegedly been abused or abandoned in Middle East reporting.
Download the article from SSRN at the link.
Regulating the Ratings Industry
This Note argues that courts should reject the Southern District of New York's distinction in Abu Dhabi Commercial Bank v. Morgan Stanley & Co. between publicly and privately disseminated ratings, instead analyzing ratings as commercial speech. Courts should do so not because precedent compels such analysis, but instead because the First Amendment values that the Supreme Court has previously identified render an analogy with commercial speech appropriate. Analyzing ratings as commercial speech best addresses the Supreme Court’s underlying concerns in Dun & Bradstreet. Moreover, it provides a standard for private liability that neither immunizes egregious conduct nor threatens the financial viability of the rating industry. Finally, it identifies the interests in pursuit of which the legislature may regulate rating agencies.
Download the note from SSRN at the link.
FCC Launches "Bill Shock" Initiative To Address Customer Amazement At Unexpectedly High Cell Phone Charges
Today the FCC’s Consumer and Governmental Affairs Bureau (CGB) launched an initiative on “bill shock” – the experience of getting an unexpectedly high wireless phone bill. The Bureau is seeking input on ways to alert consumers about potential high charges before they add up. One idea is a technical solution now used in Europe that could help consumers avoid this problem.
”We are hearing from consumers about unpleasant surprises on their bills,” said Gurin. “We’ve gotten hundreds of complaints about bill shock. But this is an avoidable problem. Avoiding bill shock is good for consumers and ultimately good business for wireless carriers as well.” Gurin will discuss the initiative at a press avail at the FCC today at 11:00.
Today’s action is one of the first initiatives undertaken by the Commission’s Consumer Task Force which was launched in January by Chairman Genachowski and is chaired by Joel Gurin, Chief of the FCC’s Consumer and Governmental Affairs Bureau.
“There can be many causes of bill shock, including unclear or misunderstood advertising, unanticipated roaming or data charges, and other problems,” Gurin said. “All can lead to charges that people don’t expect to get. In the European Union, carriers are required by law to send text messages to consumers when they are running up roaming charges or getting close to a set limit for data roaming. We’re issuing a Public Notice to see if there’s any reason that American carriers can’t use similar automatic alerts to inform consumers when they are at risk of running up a high bill.”
In the Public Notice, the Bureau asks for comment on:
· Whether technological or other differences exist that would prevent wireless providers in this country from employing usage alerts similar to those now required by the EU.
· The extent to which consumers can now monitor their wireless usage and know when they are exceeding their predetermined allocations of voice minutes, text messages, or data usage.
· The extent to which U.S. providers are already offering such usage alerts, and the cost to the consumer or the provider.
· Whether certain usage controls lend themselves more to one type of service (such as voice) than to another (such as data).
· The extent to which such information can be accessed on wireless devices by people with disabilities – in particular, by people who are blind or have low vision -- and what kinds of usage alerts would be most helpful to them.
Gurin says that complaints about bill shock come from all over the country and involve all the major wireless carriers. He cited some recent complaints from the FCC call center’s files:
· “My [cell phone] bill suddenly tripled in one month. . . When I got to looking it over, I noticed that they had charged me for my mobile to mobile minutes. They had advertised free mobile to mobile.”
· “I received a bill this month with over $500 in overage charges which led me to check my statement. I found that on my wife’s and my phones over the past three months we have had 246 calls totaling 304 minutes from [two unknown numbers].”
· “I recently updated my wireless plan in Sept 09. Since I upgraded my plan, my bills have been outrageous. I was informed . . . that my rollover minutes were taken away when I changed my plan. . . . I was never informed this would affect my rollover minutes and have thus racked up hundreds of dollars in overages at $.45 a minute.”
Comments to the Public Notice are due 45 days after publication in the Federal Register; reply comments are due 60 days after publication in the Federal Register.