Saturday, February 13, 2010
Wednesday, February 10, 2010
The 10th Circuit has upheld the dismissal of a defamation suit against John Grisham and his co-defendants brought by a district attorney, a police officer, and a criminologist who were instrumental in the convictions of two men first convicted and then exonerated in the rape and murder of a young Oklahoma woman nearly thirty years ago. The plaintiffs alleged that the defendants' writings libelled them, put them in a false light, and inflicted emotional distress. The lower court granted the defendants' 12(b)(6) motion.
Said the 10th Circuit in part,
Oklahoma law defines libel as "a false or malicious unprivileged publication . . . which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation." ...To state a claim for libel, a plaintiff must allege that a defendant made: "(1) a false and defamatory statement concerning [plaintiff]; (2) an unprivileged publication to a third party; and (3) fault amounting to at least negligence on the part of the publisher." ...
Unless a plaintiff demonstrates that a defendant committed libel per se, she must also plead and prove special damages caused by publication. Because plaintiffs in this case concede that they alleged no special damages, they must prove libel per se, which requires a statement that is "clearly defamatory on its face." ...In contrast, statements that are "reasonably susceptible of both a defamatory and innocent meaning" are not libelous per se. ... Likewise, mere "gratuitous conclusions of the pleader" cannot be taken to give "words a meaning which they did not otherwise have." ...
Given that plaintiffs are public officials, they face an especially heavy burden in attempting to demonstrate libel per se. Under Title 12, § 1443.1, of the Oklahoma Statutes, "[a]ny and all criticisms upon the official acts of any and all public officers" are privileged and cannot be considered libelous, unless a defendant makes a false allegation that the official engaged in criminal behavior. To fall into this category, "the words alleged to have been spoken of the plaintiff, when taken in their plainest and most natural sense, and as they would be ordinarily understood, [must] obviously import the commission of crime punishable by indictment." ...
Plaintiffs have not carried their burden. Several of the statements included in plaintiffs' second amended complaint do not concern plaintiffs and therefore would not constitute libel against them regardless of their status as public officials or whether they had pled special damages. As to those that do, we agree with the district court that plaintiffs point to no statement in which defendants directly accuse any plaintiff of a crime. Plaintiffs expect us to scale a mountain of inferences in order to reach the conclusion that defendants' statements impute criminal acts to plaintiffs and render the statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any connection between defendants' statements and an accusation of criminal activity is far too tenuous for us to declare them as unprivileged for purposes of § 1443.1.
Similarly, § 1443.1 protects defendants from plaintiffs' false light claims. ...Unlike a claim for libel per se, a claim for false light invasion of privacy can properly rest on a defendant stating a falsehood by implication--such as through the use of innuendo. ...However, there must be a clear connection between a defendant's statement and the falsehood that the statement purportedly implies. ... As noted, plaintiffs fail to allege the necessary nexus between defendants' statements and the proposition that plaintiffs were involved in a crime. It necessarily follows that, under Oklahoma law, plaintiffs fail to state an actionable claim for false light invasion of privacy.
Plaintiffs likewise fail on their final claim, civil conspiracy. A civil conspiracy consists of two or more persons agreeing "to do an unlawful act, or to do a lawful act by unlawful means." ... But "a conspiracy between two or more persons to injure another is not enough; an underlying unlawful act is necessary to prevail on a civil conspiracy claim." Id. "Disconnected circumstances, any . . . of which are just as consistent with lawful purposes as with unlawful purposes, are insufficient to establish a conspiracy." ...
Plaintiffs argue that defendants' parallel conduct in publishing (and republishing) their books in close temporal proximity and defendants' endorsements of each other's books are sufficient evidence to establish a civil conspiracy. We disagree. Merely because defendants published their books in close temporal proximity to one another does not demonstrate there was an illegal agreement to engage in "a massive joint defamatory attack." The same is true for book endorsements. There may well have been other entirely legitimate motives at play, such as a desire to sell more books or aspirations to foster public support for the abolition of the death penalty. Publishing and endorsing books are perfectly lawful activities. We conclude that plaintiffs failed to plead either illegal ends or illegal means, and accordingly the district court did not err in dismissing plaintiffs' claim of a civil conspiracy.
The case is Peterson v. Grisham, 2010 U.S. App. LEXIS 2116. Read more about the underlying case here.
Tuesday, February 9, 2010
This paper examines how the constitutional protections for commercial speech have limited the ability of Congress and FDA to regulate prescription drugs in ways that can affect safety. In Thompson v. Western States, the Supreme Court struck down a Congressional restriction on advertisements for unapproved “compound” drugs because a disclosure that FDA had not approved the compound was considered a constitutionally adequate alternative. While drug compounds are a relatively obscure category, the decision influenced Congress in deciding not to require a moratorium on television advertisements for newly approved drugs until the risks were better known.
The paper also provides an overview of the intense dispute about the legal and constitutional protections for manufacturers who distribute reprints to doctors of studies they fund about off-label uses of a drug with a disclosure about the lack of agency approval. At the end of the Bush Administration, FDA issued a Guidance Document that the agency did not intend to consider the non-promotional distribution of reprints about an off-label use by a company with disclosures about the lack of FDA approval as establishing an "intent" that the product be used for an unapproved use. While the agency position is ambiguous on whether it rests on statutory or constitutional grounds, or is an enforcement policy, if the new Administration were to revoke the Guidance, a constitutional challenge could ensue. That litigation could also test the difference between commercial speech and expressive speech that receives the highest First Amendment protections.
Justice Breyer, in his dissent in Western States, maintained that a "more lenient application" of the Constitution is needed and warned against "an overly rigid commercial speech doctrine" for Governmental decisions that affect "health and safety." Transforming these decisions into a constitutional decision "would involve a tragic constitutional misunderstanding" as shown by history with respect to the Due Process clause. Instead, for drugs and products that affect health, the test needs to be a "flexible" one that examines the restrictions "proportionality, the relation between restriction and objective, the fit between ends and means." This paper explores how a safety-aware proportionality test would apply to the areas where the commercial speech doctrine has limited FDA's ability to restrict drug promotion.
Monday, February 8, 2010
The Federal Communications Commission (“FCC”) has issued a Notice of Proposed Rulemaking (“NPRM”) that would codify rules aiming to preserve a free and open Internet for consumers. The NPRM appropriately concentrates on preventing broadband Internet access providers (“IAPs”) from acting as gatekeepers between end-users and online content and application providers. However, the NPRM does invite comments on a proposal of AT&T that openness principles be applied to Internet content and application providers. This paper strongly opposes AT&T’s imitative as both unlawful and unwise. The FCC’s appropriate concern about end user access to the Internet via IAPs does not justify an extension of regulatory oversight to include those entities providing content and applications. Regulating the vibrant application and content markets would constitute a departure from current policy and would threaten the open Internet.
The paper provides an extensive analysis of what regulatory wingspan the FCC has to establish federal Internet policy. While the Commission does have some statutory authority to oversee operators of wire and radio, including IAPs, the Commission cannot extend its direct or ancillary jurisdiction to regulate providers of content and software applications. The paper also explains how the FCC has long-recognized competitive and operational distinctions between facilities-based network providers and services that depend on those networks to reach end-users. The paper concludes that factors supporting enforceable openness rules for IAPs do not exist for extending any such rules to Internet content and applications that run “over-the-top” of IAPs’ networks.
Download the paper from SSRN at the link.