April 7, 2012
Current TV Fires Back At Keith Olbermann
Current TV has filed a cross complaint and answer to Keith Olbermann's lawsuit, alleging among other things that Mr. Olbermann breached a confidentiality agreement and failed to perform work according to the terms of his contract. More here in a Hollywood Reporter article (includes a link to the Current TV documents).
April 6, 2012
CSU Tells Faculty, Staff: Get Approval Before Speaking To Press
Chicago State University has issued a new policy that forbids its faculty and employees to speak to the press via traditional or new media without prior approval from an "authorized CSU media relations officer or designate," according to an article in the Chicago Tribune. Failure to obtain prior approval could result in a sanction up to including termination. Reaction from those employed at CSU and elsewhere has been swift and negative. More here from the Chicago Tribune.
Here is a link to CSU's "brand" policy document. Here's more from the Chronicle of Higher Education, with reader comments, one of which notes that the policy has since been withdrawn. More reactions to the policy from the press (wonder who communicated with them?) here (local CBS station) and here (Academe Blog).
April 5, 2012
Social Media Background Checks and the Fair Credit Reporting Act
Sherry Denise Sanders, Southern University Law Center, is publishing Privacy is Dead: The Birth of Social Media Background Checks in the Southern University Law Review. Here is the abstract.
For years employers have used social networking sites (SNS) such as Facebook, Twitter, MySpace, Google, and LinkedIn to dig up incriminating evidence on prospective or current employees. Now credit reporting agencies (CRA) may conduct “social media background checks” on employees as well. The Federal Trade Commission (FTC) has given companies, like Social Intelligence, the stamp of approval to rummage around the Internet for anything a potential job candidate has done or said online in the past seven years. Both CRAs and employers must comply with the Fair Credit Reporting Act (FCRA).
This article addresses the legal ramifications of social media background checks and the difficulty in applying the FCRA to this new employment practice. A careful review of important provisions governing the FCRA and federal cases that have interpreted the statute illustrate the difficulty in holding CRAs liable for inaccurate or negligent reporting. This article focuses on the application of the FCRA to CRAs, employers, and SNSs. Additionally, the article will look at ways employees are contributing to an invasion of their own privacy. The social media background check practice may prove to be troublesome and detrimental to employees. The author proposes that the practice should be abolished as the risk of harm to employees outweighs the potential benefits to employers.
Download the article from SSRN at the link.
April 4, 2012
Social Media, Jurors, and the Fair Trial Guarantee
Amy J. St. Eve, U. S. District Court Judge, and Michael A. Zuckerman, U. S. District Court, have published Ensuring an Impartial Jury in the Age of Social Media, in volume 11 of the Duke Law & Technology Review (2012). Here is the abstract.
The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions — the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.
In this Article, we present informal survey data from actual jurors on their use of social networking during trial. We discuss the rise of web-based social networks like Facebook and Twitter, and the concerns that arise when jurors communicate about a case through social media before returning a verdict. After surveying how courts have responded to jurors’ social media use, we describe the results of the informal survey. The results support a growing consensus in the legal profession that courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about trial. Although others have stressed the importance of jury instructions in this area, we hope that the informal survey data will further the dialogue by providing an important perspective — that of actual jurors.
Download the article from SSRN at the link.
Olbermann To File Multi-Million $ Lawsuit
From the Hollywood Reporter: Keith Olbermann is set to file a mega million dollar lawsuit against Current TV, his former employer, after its spectacular termination of his employment there at the end of last month. Current says the former anchor/commentator repeatedly failed to show up for work. Mr. Olbermann says the network failed to support him in his attempts to provide a quality program, and that he was not in default of his work obligations. Stay tuned.
Limitations On Attorney Speech
Peter Margulies, Roger Williams University School of Law, is publishing Advocacy as a Race to the Bottom: Rethinking Limits on Lawyers’ Free Speech, as a Roger Williams University Legal Studies Paper. Here is the abstract.
Attorneys looking for protection under the First Amendment have searched in vain for a consistent theory. Courts have not helped. In a high-water mark for robust interpretation of the First Amendment, the Supreme Court in Legal Services Corp. v. Velazquez struck down limits on government aid to lawyers who challenged welfare reform legislation. However, other cases send a mixed message. Courts limit lawyers’ public discussion of evidence in pending cases, while the Supreme Court’s decision in Garcetti provided no protection for internal dissent in prosecutors’ offices. A recent decision, Holder v. Humanitarian Law Project, has prompted fears that the Court is poised to bar legal representation of terrorist groups.
Scholars have compounded the confusion. Some advance a managerial perspective, criticizing Velazquez by wrongly asserting that a court’s established power to punish frivolous legal claims should also allow Congress to choose the laws that government-funded attorneys can challenge. In contrast, absolutists contend that lawyers and other individuals have identical free speech rights, but tie their analysis to a dubious analogy between the town meeting and the courtroom. Managerialists demand too much deference to restrictions on speech; absolutists bridle at any limits at all.
To ease the confusion, the paper outlines a new approach: structural signaling. Signaling can build trust when obtaining complete information is too costly, as when a lawyer’s opinion letter replaces a lender’s exhaustive investigation of a loan application. However, signaling can rapidly turn dystopian, triggering races to the bottom that destroy public goods such as the integrity of adjudication. Prejudicial pretrial publicity, in which the media becomes the jury, reflects this sort of ruinous competition, which I call a signaling spiral. The government can also trigger signaling spirals, as in the tacit signaling of prosecutorial nondisclosure that the Garcetti Court spurred by leaving internal debate unprotected. In each, signaling spirals have structural effects, imperiling courts’ role in democratic governance. To show how courts can respond with pivots from deference to free-speech protection, the paper cites examples from criminal justice, restrictions on access to legal representation, and lawyers’ marketing.
Download the paper from SSRN at the link.
April 3, 2012
James Murdoch Out at BSkyB
Breaking news from CNN, Hollywood Reporter, the Guardian. James Murdoch is leaving BSkyB as its head, effective immediately, apparently as a consequence of fallout from the phone hacking scandal. He had already stepped down from his position at News International UK.
The Illinois Right of Publicity Statute and Online Social Networks
Anne McLean, Northern Illinois University College of Law, has published Me.Com: The Growing Need for the Illinois Right of Publicity Act to Respond to Online Social Networks. Here is the abstract.
This Comment discusses the recent growth in prevalence of online social networks ('OSNs') in both personal and commercial contexts and, given the novelty and breadth of current issues surrounding OSNs, focuses analysis on problems that arise when attempting to locate a home for claims involving OSNs within the current Illinois publicity statute, the Illinois Right of Publicity Act. Of the thirty states that recognize the right of an individual to recover damages for the appropriation of his identity, Illinois is one of nineteen states to codify these rights by statute and adopts the majority view - extending protection to individuals without regard to their celebrity status.
Due to the pervasive nature of the media as emphasized throughout this Comment, the inevitable correlating rise in OSN-related litigation evidences the increasing significance of the issues raised. Most of these issues involve the implication of user publicity or privacy rights stemming from the exploitation or appropriation of a user’s online identity. While this is especially true when the user is a celebrity, this Comment provides an extensive analysis concerning the role OSNs play in the creation of a new breed of celebrity borne not of traditional media, but of an entirely novel form pioneered by OSNs. It argues that by providing a convenient interface and expansive network to share and communicate a digital persona to the public is in many ways beneficial, from a commercial standpoint, OSNs represent a highly viable medium enabling ready access to a highly vulnerable 'cyber-captive' audience.
Further, this Comment argues the extensive potential scope of such claims beckons the need for the Illinois court system to address the unique issues raised, particularly those involving a right of publicity based on the digital persona as a non-traditional notion of celebrity. This Comment provides an in-depth analysis of the 2011 Illinois case Maremont v. Fredman Design Group where an individual alleged damage to her publicity right under the Illinois Right of Publicity Act stemming from unauthorized postings to the individual’s OSN pages.
A discussion of several tests applied by courts around the United States as well as to the definition of the right of publicity in Illinois exposes many issues of significance yet to be tackled by the Illinois court system or recognized within the current Illinois statute. The Comment concludes arguing that, in limited circumstance, Illinois should recognize a digital right of publicity and proffers a tailored statutory revision incorporating a two-part analysis to be applied to claims implicating this right.
Download the Comment from SSRN at the link.