Tuesday, July 8, 2014
Law Firm Files Defamation Action Against Former Client Who Posted Unflattering Review on Yelp---And Didn't Pay Fees
A Texas law firm has filed a defamation lawsuit in response to the disparaging review of its services a former client posted on Yelp. The client, Joseph A. Browning, claims that the content of his post is accurate and has refused to pay the firm's fees. The firm, Grissom & Thompson, of Austin, says it has no recourse now that Mr. Browning refuses to pay, but also wants him to remove the post. More here in an article in the Texas Lawyer. Read the firm's complaint here. For interested readers, the Browning review is still available on Yelp, but I won't link to it; you can easily find it by searching for it online.
Mr. Browning is not the first person to be sued over a Yelp review. Last February, both a woman who reviewed a local contractor's work, and the contractor who then responded to her review, were found liable for defamation.
Monday, July 7, 2014
Various British media, including the BBC and the Guardian, are critizing Google's implementation of the ECJ ruling, Google v. Costeja González. The court's opinion requires that search engine companies delete links to outdated, irrelevant, or incorrect information retrieved through searches if a private individual so requests, based on the EU's data protection directive which was at issue in the case.
Google admits that its attempts to comply with the ruling so far have led to some stumbles as it has struggled to apply the principles laid down in the case. It has received thousands of requests to delete links, and has assigned paralegals, not lawyers, to assess the requests. Some media outlets, however, say that deletion of links means that readers have difficulty in finding media content. In addition, some requests for removal come not from parties who have the right to request removal, but from third parties.
The bad news continues for Andy Coulson, former editor at the now shuttered tabloid News of the World. After being convicted for conspiracy last week and receiving an 18-month-sentence, he is now facing a perjury charge before a Scottish court.
The perjury charge arises from testimony Mr. Coulson gave as a defense witness in a 2010 proceeding for Tommy Sheridan, a Scottish politician.
Anthony Cumia of the radio show "Opie and Anthony" is out of a job after he tweeted a number of racially insensitive statements about an incident in New York's Times Square. He says a woman attacked him there after objecting to being pictured in a photograph that he took while in the iconic area. The owners of Sirius Radio fired him for the statements, calling them "racially charged" and "hate-filled." More here from The Hollywood Reporter, here from the New York Times.
Thursday, July 3, 2014
Randall Miller and Jody Savin, owners of Unclaimed Freight Productions, and Jay Sedrish, executive producer of the film "Midnight Rider," have been charged with involuntary manslaughter and criminal trespass in the death of Sarah Elizabeth Jones, a camera assistant working on the film who was on the railroad tracks in February of this year when an oncoming train struck and killed her. Prosecutors in Wayne County, Georgia, announced the charges today.
The three face up to 10 years in prison on the involuntary manslaughter charge. More on the criminal action here from the Atlanta Journal Constitution.
Ms. Jones' parents have also filed a wrongful death action against Unclaimed Freight Productions, its owners, Mr. Sedrish, and Gregg Altman, the subject of the film. More here from the AJC, here from The Wrap.
European Union regulators have given Telefonica the go-ahead to acquire mobile company E-Plus. The merger allows Germany's third and fourth largest cell phone companies to compete with rivals T-mobile and Vodaphone. Madrid-based Telefonica arranged to purchase E-plus for nearly $12 billion earlier this year. More here from the New York Times, here from the Guardian.
The New York Court of Appeals has struck down a local law which criminalizes cyberbullying, holding that it still prohibits a range of speech that the First Amendment of the U.S. Constitution protects.
In People v. Marquan M., the court held that Albany County Local Law No. 11 of 2010, § 1 criminalized not just cyberbullying, the intended problem, but also ""any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person."
Said the court in part:
On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as "posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail." But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child. In considering the facial implications, it appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.
The court found that it could not sever the relevant portion in order to save the law; doing so would not still not cure the issues with its constitutionality.
As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as "legitimate," as Albany County has attempted to do (see Snyder v Phelps, __ US __, 131 S Ct 1207, 1220 , quoting Erznoznik v Jacksonville, 422 US 205, 210-211 ; cf. People v Shack, 86 NY2d at 536-537). It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime. Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner. Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.
Wednesday, July 2, 2014
Rhode Island Supreme Court Rules Defendant Has No Reasonable Expectation of Privacy In Text Messages On Another's Phone
Richard Bean's parody of the tabloid news world, including the now defunct News of the World, has opened at the National Theatre. It features a protagonist named "Paige Britain," and another character, equally interesting, called "Virginia White." Either could be taken for an interesting current player on the media stage. More here from the New York Times, here from The Guardian.
Tuesday, July 1, 2014
Monday, June 30, 2014
A Florida trial court judge has granted NBC's motion to dismiss in a defamation lawsuit George Zimmerman filed against the network nearly two years ago, holding that Mr. Zimmerman is a limited purpose public figure, and would have to demonstrate actual malice or reckless disregard in order to recover against the network in the suit. She found that the network's use of edited quotations from broadcasts of Mr. Zimmerman's 911 call accurately portrayed the "gist" of the call. Mr. Zimmerman had also argued that the network's presentation of his statement about Trayvon Martin as a "racial epithet" was defamatory but the judge held that the reporter's statement could not be "verified as false" and Mr. Zimmerman bore the burden of proving falsity and actual malice.
Mr. Zimmerman had also alleged intentional inflicted of emotional distress. The judge ruled that because Mr. Zimmerman used the same set of facts for the IIED claim as for the defamation claim, and because he failed to make out the defamation claim, he could not proceed on the IIED claim.
Read the entire opinion here (courtesy of SCRIBD). The case is Zimmerman v. NBC Universal, CA-7A-1278 (18th Judicial Circuit, Seminole County Circuit Court, Nelson, J.). More here from The Hollywood Reporter, here from the Orlando Sentinel.
Friday, June 27, 2014
Alice E. Marwick, Fordham University, Communication and Media Studies; McGannon Center, and Ross W. Miller, Fordham University School of Law, have published Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape as Fordham Center on Law and Information Policy Report No. 2. Here is the abstract.
This interdisciplinary project focused on online speech directed at women and seeks to provide a primer on (i) what legal remedies, if any, are available for victims of sexist, misogynist, or harassing online speech, and (ii) if such legal remedies and procedures exist, whether practical hurdles stand in the way of victims’ abilities to stop harassing or defamatory behavior and to obtain legal relief. The study concluded that while online harassment and hateful speech is a significant problem, there are few legal remedies for victims. This is partly due to issues of jurisdiction and anonymity, partly due to the protection of internet speech under the First Amendment, and partly due to the lack of expertise and resources on online speech at various levels of law enforcement. Given this landscape, the problem of online harassment and hateful speech is unlikely to be solved solely by victims using existing laws; law should be utilized in combination with other practical solutions.
The objective of the project is to provide a resource that may be used by the general public, and in particular, researchers, legal practitioners, Internet community moderators, and victims of harassment and hateful speech online.
Download the report from SSRN at the link.
Thursday, June 26, 2014
Charles E. Colman, New York University School of Law & NYU Steinhardt Department of Visual Culture: Costume Studies, is publishing Trademark Law and the Prickly Ambivalence of Post-Parodies in volume 163 of the University of Pennsylvania Online. Here is the abstract.
This essay examines what I have termed “post-parodies” — specifically, in the context of apparel. This “DIY” fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex, layered forms of expression. I examine the historical and cultural circumstances giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence.
Unfortunately, trademark law’s current doctrine governing trademark “parodies” cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped view of “worthy” expression. I argue that trademark law is asking the wrong questions — at least, if it hopes to adjudicate the lawfulness of post-parodies in a meaningful way — and that current parody doctrine must be supplanted by a more thoughtful and nuanced framework.
“[What most prevents us] from grasping what people are up to is not [so much] ignorance as to how cognition works . . . as a lack of familiarity with the imaginative universe within which their acts are signs.” Clifford Geertz, The Interpretation of Cultures 13 (1973).
“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.” Yankee Publishing v. News America Publishing, 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (Leval, J.).
Download the article from SSRN at the link.
Brian Leiter, University of Chicago, has published The Case Against Free Speech. Here is the abstract.
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not. Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity. Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be. I argue that only the first of these — the "Problem of the Epistemic Arbiter" as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing "freedom of speech" like "freedom of action": speech, like everything else human beings do, can be for good or ill, benign or harmful, constructive or pernicious, and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist "left" and the public choice "right"— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied.
Download the paper from SSRN at the link.
Wednesday, June 25, 2014
Ashley Messenger, American University, has published Reflections on New York Times Co. v. Sullivan, 50 Years Later at 12 First Amendment Law Review 423 (2014). Here is the abstract.
The Supreme Court's ruling in New York Times Co. v. Sullivan depends crucially on the concept of statements being "true" or "false" and one's knowledge thereof. This principle, however, fails to account for the wide range of statements people make or intentions people have when making a statement. This article explores the concept of journalism; the various theories justifying First Amendment protection; how those theories relate to the Court's decision in Sullivan; the strengths and weakness of various theories and the Sullivan decision in protecting journalism as an activity; and the practical impact that Sullivan has had on the practice of journalism and protection for speech. It concludes that Sullivan certainly had an impact on media organizations, but the legal principles that have flowed from the ruling are not always consistent with the needs or interests of excellent journalism. This paper was part of UNC's First Amendment Law Review's Symposium on the 50th Anniversary of New York Times Co. v. Sullivan.
Download the article from SSRN at the link.
The Supreme Court has ruled, 6-3, that Aereo's retransmissions of network broadcasts infringe those copyright holders' copyrights. The Court found that the company both "performs" the broadcasts and transmits them to the "public" within the meaning of the statute. Aereo CEO Chet Kanojia had said in an interview that the company had no "Plan B," no backup plan, if it lost its case.
Here's a link to the opinion.
Tuesday, June 24, 2014
Richard J. Bonnie, University of Virginia School of Law, has published The Impending Collision Between First Amendment Protection for Commercial Speech and the Public Health: The Case of Tobacco Control as Virginia Public Law and Legal Theory Research Paper No. 2014-34. Here is the abstract.
Tobacco policy in the United States is being transformed from the laissez faire approach (accompanied by a stunning history of industry deception) that prevailed for most of the twentieth century to a uniquely aggressive scheme of regulation reflected in the federal Tobacco Control Act of 2009, FDA regulations, and state and local tobacco control restrictions. The widely acknowledged aim of current national policy is to suppress consumption as a means of reducing tobacco-related morbidity and mortality. The nation’s aggressive regulatory policy, explicitly framed as an alternative to prohibition, has four subsidiary goals: reduce initiation among young people; help smokers quit; reduce harm among people who are unable to quit; and protect non-smokers from environmental tobacco smoke. Although many innovations mandated by the Tobacco Control Act and by the FDA’s implementing regulations have survived industry challenge, others have not. Two federal circuit courts have opined, respectively, that the First Amendment entitles tobacco companies to use colorful images to promote smoking while it forecloses the government from trying to discourage smoking by requiring the companies to include graphic health messages on cigarette packs. This incoherent conception of the First Amendment narrows the available policy space and forces the government to choose between prohibition and a tepid form of regulation. If tobacco were an illegal product, no one would have a right to promote its use and government would be free to use all available media to discourage it. Under these two misguided precedents, however, by allowing tobacco to remain legal, the government is constitutionally foreclosed from using potentially effective tools of regulation to protect the public health. One naturally wonders whether the First Amendment also forecloses meaningful public health regulation of marijuana if prohibition is abandoned.
Download the paper from SSRN at the link.
The jury has rendered its verdicts in the phone hacking and conspiracy trial of Rebekah Brooks and Andy Coulson and several other defendants, who were accused of arranging to obtain access to voicemail messages of various persons in order to obtain information for stories for the tabloid News of the World (now defunct). The jury acquitted Ms. Brooks of all charges, but convicted Mr. Coulson of conspiracy. The trial lasted more than four months, and revealed the underside of tabloid journalism. Mr. Coulson and Clive Goodman, a former editor for News of the World, who has already served time for phone hacking.
Thursday, June 19, 2014
Google is preparing a set of procedures in order to comply with the ECJ's recent ruling in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, decided May 13, 2014. In that opinion, the ECJ found that pursuant to Article 12(b) of Direction 95/46 that an EU citizen may request that links retrieved in an online search that refer to him or her be removed if the links are are "incompatible with the directive ... not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes."
... It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.... Therefore, if it is found, following a request by the data subject pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time, incompatible with Article 6(1)(c) to (e) of the directive because that information appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased.