Friday, June 1, 2012
A New York state appellate court has ruled that the statement that someone is gay is not slanderous per se. In doing so, the court overruled the Matherson v. Marcello ("Good Rats") case of 1984. Citing among others the Lawrence v. Texas case, the court held,
Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002,has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit,education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L2011, ch 95, § 3) in June 2011, which was strongly supported bythe Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage,including "the symbolic benefit, or moral satisfaction, of seeingtheir relationships recognized by the State" (Hernandez v Robles,7 NY3d 338, 358 ). Even prior to the Marriage EqualityAct, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" –including numerous statutory benefits and judicial decisionsexpressing a policy of acceptance (Dickerson v Thompson, 78 AD3dat 54). Similarly "evidenc[ing] a clear commitment to respect,uphold and protect parties to same-sex relationships[,] executive and local orders extend recognized by the State" (Hernandez v Robles,7 NY3d 338, 358 ). ...
We note that the most recent Appellate Division decisionconsidering the issue in depth was decided nearly 30 years ago(Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984],supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in lightof the then-existing "social opprobrium of homosexuality" and"[l]egal sanctions imposed upon homosexuals in areas ranging fromimmigration to military service" (id. at 241 [emphasis added]).Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored"....
In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease....In short, the disputed statements in this case are not slanderous per se....
The case is Yonaty v. Mincolla, decided April 23, 2012.
Thursday, May 31, 2012
The judge overseeing the Dish/Fox ad-skipper litigation has granted a preliminary restraining order that prohibits Fox Networks from proceeding until next month. U. S. District Court Judge Laura Swain will take up the litigation in a few weeks when she hears more motions in the case pitting Dish Networks against Fox, and the related suits brought by Fox and other networks in California against Dish. More here (with analysis) from the Hollywood Reporter, here from L. A. Times.
Andy Coulson, formerly an editor at the now shuttered News of the World, and then Director of Communications for David Cameron, has been charged with perjury over his testimony at the trial of Tommy Sheridan in 2010. He was arrested yesterday at a police station in Glasgow. More here from the Guardian.
David S. Levin, Elon University School of Law; Stanford University Center for Internet and Society, has published Bring in the Nerds: Secrecy, National Security and the Creation of International Intellectual Property Law at 30 Cardozo Arts & Entertainment Law Journal 105 (2012). Here is the abstract.
The negotiations of the international Anti-Counterfeiting Trade Agreement and Trans Pacific Partnership Agreement have been conducted largely in secret, elevating intellectual property piracy to the level of national security concerns for purposes of accessing information through the Freedom of Information Act (FOIA). However, the level of actual secrecy has been tiered, with corporate interests enjoying far more access to negotiation information than the general public. At the same time, similar intellectual property issues were negotiated in the relative transparency of Congress’ debate over the Stop Online Piracy Act and PROTECT IP Act, allowing for much greater public involvement. With national security concerns as the backdrop, the focus of this Article is the use of national security arguments to prevent the public, and more specifically, public experts (i.e., the “nerds”) from accessing information through FOIA about the creation of international intellectual property law. The Article proposes ways to address the information failures existing in international intellectual property lawmaking and international lawmaking more generally from policy and, as introduced in this Article, theoretical perspectives.
Download the article from SSRN at the link.
Wednesday, May 30, 2012
Russian radio host and journalist Sergei Aslanyan iwashospitalized after being stabbed at least 20 times by at least one or possibly more than one unknown persons. Mr. Aslanyan told police he went outside to talk with someone and then was attacked. Law enforcement is investigating. The attack on Mr. Aslanyan is one in a pattern of assaults on members of the media over the past few years. Some journalists have been killed, including Anna Politkovskaya (2009). In a first trial, those accused of murdering her were acquitted. A second trial is underway.
Tuesday, May 29, 2012
Carina Trimingham, the partner of Chris Hulme, the former Secretary of State for Energy, has lost a lawsuit against the Daily Mail and the Mail on Sunday in which she alleged that articles the papers printed invaded her privacy and harassed her. The judge hearing the case ruled that she invited public interest since she worked on Mr. Hulme's campaign, and thus was not a purely private figure. Mr. Justice Tugendhat also denied her any right to appeal and ordered her to pay the papers' costs of litigation, which might reach a million pounds. Here is a link to the decision. Here is reaction from the New Statesman.
Alina Ng, Mississippi College School of Law, is publishing Copyright and Moral Norms in the Loyola Journal of Public Interest Law. Here is the abstract.
The role normative principles such as morality and ethics play in a legal system is a highly contentious point in jurisprudence and legal theory. Scholars and philosophers have often disagreed on whether laws should reflect and incorporate moral and ethical norms. The idea that there could be a necessary connection between law and objective morality has been forthrightly rejected by some jurists because of the heterogeneity of social views and beliefs about what is right and wrong conduct. This paper challenges the assertion by legal positivism that morality cannot be incorporated into legal analysis because they obfuscate analytical thinking about the law. Instead, this paper argues that morality and ethics clarifies the proper role for law and legal institutions in society and deepens one’s understanding about the functions of a legal system. For copyright law, incorporating moral or ethical principles into legal analysis would allow one to determine if copyright laws accurately reflect common expectations for the progress of science. This paper then shows that modern day jurisprudence on copyright law does not reflect common expectations of society for the progress of science. It goes on to argue that copyright law should reflect these standards if the progress of science is to be sustained. This paper is divided into three parts. The first part of this paper analyzes literature to draw out the essential premises for the disagreement between legal positivism and natural law. It demonstrates that the incorporation of moral and ethical ideals into legal analysis will lead to greater understanding about the nature and purpose of law. The second part of this paper shows how the social and separability theses so essential to positivism affect legal understanding of copyright laws and the role copyright laws play in society. The third part of the paper argues that copyright laws must reflect objective morality - and not economic calculuses - for the progress of science to be sustained and looks to environmental law as a model for conserving and preserving the common good in copyright. This paper concludes with a preliminary proposal on how the progress of science can be sustained by the incorporation of moral and ethical principles into the law.
Download the article from SSRN at the link.