Monday, January 31, 2005
If you are interested in the image of media law in film, check out movies like The Front Page, first filmed in 1931, and based on the Ben Hecht play. It was remade in 1945 and in 1974, and as His Girl Friday in 1940 with Rosalind Russell in the role of the journalist who simply can't walk away from the big story (in this case an execution) and as Switching Channels with Kathleen Turner in the Rosalind Russell role. It's also been adapted for television. The journalists in The Front Page and its adaptations push the First Amendment to its limits, as do the newspapermen and women in movies like Libeled Lady (1936), a farce featuring Spencer Tracy as a big city editor threatened with a defamation action by socialite Myrna Loy. The People vs. Larry Flynt (1996) dramatizes the well-known Supreme Court case as well as lesser known events in Flynt's life. All the President's Men (1976), based on the Bob Woodward/Carl Bernstein bestseller spotlights the Watergate break-in and the Washington Post's relentless coverage of the resulting coverup. Reckless Disregard (1985) features Leslie Nielsen in a dramatic role as a journalist accused of defaming a physician in the course of reporting a story about drug trafficking. Absence of Malice (1981) centers on a young reporter (Sally Field) who writes a provocative story about a liquor distributor suggesting that he may be involved in the disappearance of a crime figure. The US attorney has used her to leak the information and the distributor (Paul Newman) threatens a lawsuit. The little known Word of Honor (1981) stars Karl Malden as a journalist who promises not to reveal his source for a story in spite of the fact that the defendant may go free. Quiz Show (1994) dramatizes the true story of the scandal surrounding the game show Twenty-One. The wonderful film Roxie Hart (1942) features a down-on-her-luck entertainer (Ginger Rogers) who admits to a murder in order to get some helpful publicity. It was adapted into the musical Chicago and ran for months on Broadway, then was filmed with Renee Zellweger in the Ginger Rogers part and Richard Gere as her lawyer, the very slick Billy Flynn. Gere is quite enjoyable to and others in the Oscar winning film are also good, including Catherine Zeta-Jones as Zellweger's eventual partner Velma Kelly. The amount of pretrial publicity surrounding Roxie's trial would put the current celebrity proceedings in the news to shame and Flynn is eager to chase down even more. Roxie Hart is loosely based on the real trials of Belva Gaertner and Beulah Annan. For more on journalists in popular culture see the website maintained by the Norman Lear Center at the University of Southern California.
Sunday, January 30, 2005
The Mississippi Supreme Court has ruled 5 to 3 to overturn the decision of a trial judge banning Jackson television station WLBT from coverage of the 2004 sentencing of former Madison County David Richardson. While the majority recognized that the judge was concerned about the defendant's fair trial rights, it held that the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) required that Judge Marcus Gordon provide specific findings of fact supporting his denial of the request to cover the proceeding. Justice Waller, writing for the majority, elaborated, "It is generally better for the courts to limit or terminate coverage as needed than to exclude camera and television coverage altogether. MREPC 3 speaks of ensuring fair administration of justice and protecting the rights of parties and witnesses. These words envision real and substantial rights that are at risk. The learned circuit judge, while expressing concern that things covered in the sentencing hearing "may" impact the companion case--not that there was a probability that such would be the case-stated no specific prejudice. The proper standard for restricting press coverage is that there is a "substantial probability" that the accused will be deprived of a fair trial. In Press-Enterprise II, the Supreme Court rejected the lesser standard of "reasonable likelihood" applied by the California Supreme Court and went on to point out that "the First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right." Press-Enterprise II, 478 U. S. at 14, 106 S. Ct. at 2743. The decision to restrict press access, whether by closing proceedings or by eliminating the use of the tools of the trade must be supported by specific, on the record findings of fact which show in what manner the coverage will cause a party to lose the right to a fair trial. See Hand, 571 So. 2d at 944. Butler, the defendant in the related case, is not, in the words of MREPC 3, a party "in the pending case." The judge did not indicate that Butler's trial is imminent, a circumstance which could be a factor in limiting or restricting coverage if the trial of that case was to take place shortly after the sentencing hearing. Butler sought no opportunity to intervene and raised no objection to having cameras in the courtroom." In re WLBT Inc., Miss., No. 2004-M-02239-SCT, 1/20/05.
Friday, January 28, 2005
The Scotsman reports that Operation Christian Vote, a Christian political party, has asked for an official investigation into whether the BBC broke the law by airing the program Jerry Springer--The Opera on BBC2. The musical is currently running in London's West End. The broadcast attracted both a large audience (nearly 2 million viewers) and a large number of objections (47,000). The head of Operation Christian Vote, the Reverend George Hargreaves, identified a particular scene in the show as blasphemous. (Kate Foster, Springer TV Opera Faces Blasphemy Complaint, January 16, 2005).
For its part, the BBC defends the transmission. The Times reports that BBC Chairman Michael Grade checked with BBC Director-General Mark Thompson to make certain that the performance would not be considered either criminal or offensive. Both the network and Ofcom (the British agency empowered to regulate UK communications industries) are preparing to investigate the matter. (Adam Sherwin, BBC Chief Defends Jerry Springer, Times Online, January 13, 2005).
A BBC Radio 3 producer has left his post over the matter, citing a matter of conscience. The Times quotes Anthony Pitts' letter of resignation as indicating his dismay over the extent of the offense.
The protests over Jerry Springer--The Opera follow by just a few weeks objections by some in the Birmingham, England Sikh community to the staging of a play called Behzti (Dishonor) by the Birmingham (England) Repertory Company. Dan Tench, a specialist in public and media law at Olswang, offers an interesting review of the application of blasphemy law in England and Scotland over the past 400 years. Tench surveys the use of the charge against booksellers and publishers through the 1970s. He points out that even the European Convention on Human Rights with its protections for freedom of expression does not quite succeed in overcoming the presumption that the charge has a legitimate purpose.(Dan Tench, The Guardian, January 17, 2005). But as he points out, we cannot tell exactly what "blasphemy" means in the English legal scheme. He reviews the Gay News case which proceeded throughout the British courts to the European Court of Human Rights. (See R v. Lemon, R v. Gay News Ltd.,  Appeal Cases 617,  1 All England Law Reports 898,  2 Weekly Law Reports 281).
Thursday, January 27, 2005
Court TV is reporting that U. S. District Judge Peter K. Leisure has now allowed part of former California Congressman Gary Condit's defamation lawsuit against writer Dominick Dunne to go forward. Condit originally filed the suit against Dunne in December of 2002, after Dunne appeared on various talk shows including "Larry King Live" and theorized about the disappearance of intern Chandra Levy. Court TV elaborates that according to the judge, Dunne also connected Condit to the disappearance by saying, "I believe firmly that he knows more than what he has ever said." Condit had also claimed that statements Dunne made in newspapers were also defamatory, but Leisure dismissed those parts of the suit.
Wednesday, January 26, 2005
Roy Paul, the Los Angeles judge presiding over the divorce trial of Ron and Janet Burkle, has set a February 18, 2005 date to hear arguments over whether records should continue to be sealed pursuant to California Family Code Section 2024.6 in the case of Burkle v. Burkle. Lawyers for the Los Angeles Times, the Associated Press and the California Newspaper Publishers Association, as well as Mrs. Burkle's attorneys, have challenged the code section's constitutionality on various grounds. The Briefs read in part: "...Mr. Burkle is asking this Court to seal virtually the entire court file and proceedings--including court orders and judgments--in his acrimonious divorce case. Mr. Burkle is relying on a new secrecy statute, Family Code [section] 2024.6, which requires the automatic sealing of any divorce court document that discloses the financial assets of one of the parties. Curiously, this new statute was signed into law as "urgency legislation" by Gov. Arnold Schwarnegger on June 7, 2004--just months after this Court denied Mr. Burkle's previous request to seal divorce court records containing financial information--and shortly before Mr. Burkle and his companies donated $121,200 to the governor's political committees on March 1, 2004....This Court should reject Mr. Burkle's latest bid to hide his divorce proceedings and his financial asset information...Even assuming that Family Code [Section] 2024.6 provided for the blanket sealing of the entire divorce file--which it does not--this hastily enacted statute is flatly unconstitutional because it requires the trial court to seal divorce court records, including court orders and judgments, without providing for the document-by-document analysis and threshold inquiries required by the First Amendment." Read more of the Intervenors' Briefs here and here.
Tuesday, January 25, 2005
On January 7, a new law entitled the Access to Information and Protection of Privacy Amendment Act went into effect in Zimbabwe. Together with the Access to Information and Protection of Privacy Act (AIPPA), which was passed in 2002, it allows the government to prosecute journalists caught working without government permission. Zimbabwe's Media and Information Commission oversees the independent media in the country. Article 19, an NGO registered as a charity in the UK, has released a report on the AIPPA. The report begins, "The Access to Information and Protection of Privacy Act, commonly referred to as AIPPA, was passed by the Parliament of Zimbabwe on 31 January 2002 and signed into law by President Mugabe on 15 March 2002. It may accurately be described as the leading weapon of the government and the ruling ZANU PF party in their ongoing campaign to stifle independent media reporting in Zimbabwe." Zimbabwe's next general elections are scheduled for March of this year.
Those interested in the rights of student journalists anxiously await the 7th Circuit’s ruling in Hosty v. Carter, a case argued January 8, 2004. The University in Hosty claims the right to practice prior review of its student newspaper, The Innovator, which has now been shut down. Governors State University Dean of Student Affairs Patricia Carter halted publication of the bimonthly paper in 2000 after it printed articles criticizing the university administration. The Managing Editor of the paper, Margaret Hosty, and two other students filed suit in federal district court charging First Amendment violations. In November 2001 the district court allowed the suit to proceed and in 2002 the university appealed, citing Hazelwood v. Kuhlmeier. The 7th Circuit eventually found in favor of Hosty, April 10, 2003. However, in July 2003 the Illinois Attorney General, Lisa Madigan, successfully intervened on behalf of the University. The 7th Circuit vacated the April 10th decision and agreed to a re-hearing en banc. The Student Press Law Center (SPLC) has an informative page on the case on its website.
The Federal Communications Commission has refused to rule that a word in general, and vulgar, use as an alternative for the male sexual organ was indecent when spoken by characters on episodes of "Dawson's Creek," or when alluded to on an episode of "Friends." It also ruled that an episode of "King of the Hill", a cartoon series, did not reach a level of indecency when it depicted--briefly--a boy entering a shower after removing his towel. In FCC 04-279 and FCC 04-280, the FCC dismissed more than 30 complaints involving indecent language on network TV that the Parents Television Council has filed since 2001. Both Commissioner Martin and Commissioner Copps approved in part and dissented in part; Commissioner Martin will issue a statement at a later date. Commissioner Copps issued a statement today, charging that the FCC had merely lumped together these complaints, failing to analyze them carefully or to provide any meaningful guidance for viewers or for broadcasters attempting to determine when the FCC might hold them accountable for indecent or patently offensive language. Perhaps in an attempt to ward off criticism, Fox, which drew a $1.2 million fine from the agency for its show "Married by America", has decided to rename its cable channel sport talk show "Best Damn Sports Show Period" "Best Darn Super Bowl Road Show Period." "Married by America" garnered a reported 90 complaints (written by 23 people) about its content. However, blogger Jeff Jarvis reported that most of those complaints seem to have come on form letters generated by the Parents Television Council. Frank Ahrens discusses the FCC rulings in an article in the Washington Post today at page E01. See Frank Ahrens, "FCC Dismisses 36 Indecency Complaints as Not "Patently Offensive".
Monday, January 24, 2005
Stephen Colbert is the interviewee on Terry Gross' show Fresh Air today, January 24, 2005. Colbert is the "newsman" on Jon Stewart's Daily Show. NPR also offers a related story on "Comedy as News," its Talk of the Nation, March 4, 2004, broadcast.
Nick Ciarelli, facing a lawsuit by Apple Computer over information he revealed on his Think Secret website, will be represented by Terry Gross of the San Francisco firm of Gross & Belsky. Ciarelli, who uses the online pseudonym of Nick de Plume, had considered abandoning his website if Apple agreed to drop the lawsuit, according to a story reported today on National Public Radio, but the Electronic Frontier Foundation, which has worked with Gross in the past, put the Harvard student in touch with the attorney. While Apple contends that Ciarelli revealed trade secrets, Gross plans to respond that the First Amendment protects the budding journalist's writing, since nothing that Ciarelli published was illegally obtained. Pamela Samuelson has published an interesting working paper on the conflict between protecting trade secrets and freedom of speech, in which she also reviews the literature by other scholars in the area including Andrew Beckerman-Rodau, RIchard Epstein, David Greene, Mark Lemley, and Eugene Volokh.
Friday, January 21, 2005
FCC Chair Michael Powell, who joined the agency in 1998, becoming its head in 2001, may be set to leave long before his term ends in 2007. Sources say he will announce his resignation later today. Powell's leadership has been characterized by battles with the networks over obscenity and indecency, the latest over Howard Stern's comments on talk radio and Janet Jackson's "wardrobe malfunction" on a 2004 Super Bowl half-time show. Powell also backed the controversial media ownership rule changes many of which the Third Circuit stayed later in the year pending further justification by the agency. (The Third Circuit's page providing links to media ownership rules documents is available here). Powell has also tried to promote digital broadcasting, a move that broadcasting have resisted since most viewers continue to balk at the price of HDTV units.
Tuesday, January 18, 2005
The Cincinnati Enquirer has been denied its request for an order requiring that the city of Cincinnati's health department release the names and other information about property owners in violation of the city's "no lead" provisions. Since 1994 the city has targeted these owners; in 2004 the newspaper asked the city for a list of names. The city refused, citing HIPAA (the Health Insurance Portability and Accountability Act). On December 30, 2004 the First Appellate District Court of Appeals (Hamilton County) decided in favor of the city, citing the state's Public Records Act (R.C. 149.43) as well as HIPAA. The court recognized that competing interests were at stake, but found that the city met its burden of showing an exception to disclosure by referring to medical information included that could be protected from disclosure under the state's public records act. Since the information was unredacted and no waivers were provided for, the court upheld the city's refusal to disclose at this time. Here is the case: State ex rel. Cincinnati Enquirer v. Adcock, Ohio Ct. App., No. C-0400064, decided Dec. 30, 2004.
A California law that Governor Arnold Schwarnenegger signed on June 7, 2004 that permits some divorce records to be sealed at the request of either party is at the center of a constitutional challenge. Section 2024.6 of the California Family Code allows either party to petition the court to list financial assets and then seal the information. The code section provides that "[t]he request may be made by ex parte application." In billionaire Ron Burkle's pending divorce from wife Janet, attorneys for the investor have invoked this section to seal what observers believe might be some extremely interesting financial information. Lawyers for Mrs. Burkle and some media attorneys, including representatives for the Associated Press and the L. A. Times, have now challenged the move before a judge in Los Angeles County Superior Court.
It's not entirely clear why the Family Code was amended in this way, but the bill passed both houses as "urgency" legislation. Two lawmakers who supported the measure, John Burton of San Francisco and Christine Kehoe of San Diego, have not commented so far. Kehoe has championed privacy rights legislation in the past. Some commentators suggest that wealthy political supporters like Burkle have an interest in protecting information about their assets in case of divorce. Attorneys for Burkle had apparently unsuccessfully tried to seal some financial records shortly before the change in the code.
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