Monday, February 28, 2005
The recent dismissal of the Baltimore Sun's lawsuit against Maryland Governor Bob Ehrlich (Baltimore Sun v. Ehrlich) seems simply to have exacerbated the controversy over what the Sun considers to be the Governor's lack of candor and the Governor considers the Sun's unreasonable demands for information. Now, the Governor's Chief Counsel has begun an investigation into the mystery surrounding "MD4BUSH" and his (or her) involvement in spreading rumors about Mayor Martin O'Malley's personal life. Targets reportedly also include Baltimore Sun reporters, on the theory that they might have information helpful to the inquiry. See more in an AP story here, and a Baltimore Sun story by Ivan Penn here. James Keat, a retired Sun editor, published a pointedly pro-freedom of information piece in the Sun on the 25th, making some analogies between Ehrlich and Russian President Vladimir Putin. For more about the dismissal of the Sun's suit see Wiley Hall's piece in the Washington Post from February 14th here. Read Judge Quarles' opinion here. [NB: The Sun provides extensive coverage of the lawsuit and of the O'Malley investigation in its archives but may require registration for an archive search. Registration is free.]
Sunday, February 27, 2005
The Second Circuit has affirmed the dismissal of a copyright holder's lawsuit against the Smithsonian press for lack of jurisdiction, holding that such suits must be filed in the U. S. Court of Federal Claims under 28 U.S.C.S. § 1498(b). Arguing pro se, Kevin O'Rourke, who practices law in New York, wished ultimately to bring a claim that the Smithsonian had infringed his copyright in his book Currier and Ives: The Irish in America when it published its book Currier and Ives: America Imagined. The court examined the legislative history of the relevant statutes as well as Congress' relationship to the Smithsonian and concluded that Congress meant to establish "that the Smithsonian is within the term "the United States" in 28 U. S. C. [sec]1498(b). That section waives sovereign immunity with respect to copyright infringement claims brought against the United States, but only to the extent that such claims are brought in the United States Court of Federal Claims. Accordingly, we affirm the judgment of the district court, dismissing the present action for lack of subject matter jurisdiction." Read the opinion here.
Frank Rich's column today in the New York Times makes some provocative observations about the possible links among the demands from some viewers for more stringent enforcement of broadcast decency standards from the FCC, a resulting measureable drop in viewership for the 2005 Super Bowl half time show and other live shows, and Oscar host Chris Rock's recent comments about tonight's show, which the network will broadcast with a five second delay. Rich goes on to discuss the extent to which it is possible to return to the 1950s and early 1960s, when many of today's audience members actively seek the kind of entertainment that the FCC seems determined to discourage these days. Finally, he reviews financial contributions made by the media, communications, and entertainment community to certain members of the majority party, citing for example Comcast. According to the article, Comcast's pay per view networks provide quite a menu of porn for subscribers. But Comcast also provides quite a lot of campaign support for Republican Fred Upton, a leader in the current anti-porn, anti-indecency campaign and other members of the current party which dominates the Administration (see p. 17, citing the Center for Responsive Politics website). NB: The online article contains a correction not in the print copy.
Thursday, February 24, 2005
Judge Robert Sweet has refused to dismiss a 2004 lawsuit that the New York Times filed against the U. S. Department of Justice to prevent DOJ from obtaining records of phone calls placed between two of its reporters, Judith Miller and Philip Shenon, and some of their sources after the September 11, 2001 terrorist attacks. Judge Sweet cited his concerns that government secrecy seems to be rising. He also pointed out that the government failed to meet the relevant test--that the information it seeks is not only relevant to its case but is also material and is not obtainable through another route. He also likened the phone records to testimony by the reporters. Read the judge's lengthy ruling.
One of the reporters named, Judith Miller, is one of the journalists involved in the Valerie Plame Wilson case. According to an article in today's Times, Floyd Abrams, attorney for the paper in both cases, plans to use Judge Sweet's decision in the request for a rehearing before the full court in the Miller/Cooper case. Meanwhile, DOJ's Patrick Fitzgerald, unhappy with today's ruling, is considering an appeal.
Wednesday, February 23, 2005
An appellate panel consisting of Judges Edwards, Sentelle and Rogers heard oral argument yesterday in American Library Association et al. v. Federal Communications Commission, et al., the "broadcast flag" case. According to observers, the questioning directed at the agency was particularly hot from Judge Harry Edwards, who told the FCC's attorney his client exceeded its authority in promulgating its rule. However, the other judges had reservations about the ALA's standing to contest the agency's rule. Read the ALA's brief here and the FCC's brief here. Read the ALA's reply brief here. Brooks Boliek writes about yesterday's arguments for the Hollywood Reporter here. Even the BBC is covering the story. Declan McCullagh's article on c/net has helpful links for the technology impaired as well as for those wishing to review the history of the FCC rule.
Tuesday, February 22, 2005
In the wake of the controversy over the refusal of Judith Miller of the New York Times and Matthew Cooper of Time Magazine to reveal the sources who provided information about CIA operative Valerie Plame Wilson, state and federal legislators have introduced bills to protect journalists in similar situations. Connecticut State Representative James Spallone introduced House Bill 5385 on January 19, which provides "[t]hat the general statutes be amended to establish a news reporter shield law providing that, with certain exceptions, a news reporter may not be compelled to reveal confidential sources in civil or criminal proceedings or investigations."
New York's State Senator Balboni introduced Senate Bill 1921 on February 7 to amend the Civil Rights Law to protect book publishers. Section 1(6) also defines the term "professional journalist."
Section 1. Paragraph 6 of subdivision (a) of section 79-h of the civil rights law, as amended by chapter 468 of the laws of 1981, is amended to read as follows:
(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
Section 2. Subdivision (a) of section 79-h of the civil rights law is amended by adding a new paragraph 9 to read as follows:
[A> (9) "BOOK PUBLISHER" SHALL MEAN A CORPORATION, COMPANY, PARTNERSHIP OR SOLE PROPRIETORSHIP THAT ROUTINELY PREPARES OR ISSUES FOR PUBLIC DISTRIBUTION OR SALE BOOKS, WHETHER WRITTEN OR AUDIO, AND WHETHER IN PRINT, ON TAPE, ON DISK, OR IN ANY ELECTRONIC OR OTHER MEDIUM, CONCERNING LOCAL, NATIONAL OR WORLDWIDE EVENTS, OR OTHER MATTERS OF PUBLIC INTEREST OR AFFECTING THE PUBLIC WELFARE. <A]
Section 3. Subdivision (b) of section 79-h of the civil rights law, as amended by chapter 33 of the laws of 1990, is amended to read as follows:
(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.
Section 4. Subdivision (c) of section 79-h of the civil rights law, as added by chapter 33 of the laws of 1990, is amended to read as follows:
(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature, or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.
Section 5. This act shall take effect immediately.
U. S. Senator Richard Lugar (R-Indiana) has introduced Senate Bill 340 which would provide federal protections for journalists. Called the Free Flow of Information Act of 2005, it reads:
SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE.
(a) Conditions for Compelled Disclosure. No Federal entity may compel a
covered person to testify or produce any document in any proceeding or in
connection with any issue arising under Federal law unless a court
determines by clear and convincing evidence, after providing notice and an
opportunity to be heard to the covered person--
(1) that the entity has unsuccessfully attempted to obtain
such testimony or document from all persons from which such testimony
or document could reasonably be obtained other than a covered person;
(A) in a criminal investigation or prosecution, based on information
obtained from a person other than a covered person--
(i) there are reasonable grounds to believe that a crime has occurred;
(ii) the testimony or document sought is essential to the investigation,
prosecution, or defense; or
(B) in a matter other than a criminal investigation or prosecution,
based on information obtained from a person other than a covered person, the
testimony or document sought is essential to a dispositive issue of
substantial importance to that matter.
(b) Limitations on Content of Information. The content of any testimony
or document that is compelled under subsection (a) shall, to the extent
(1) be limited to the purpose of verifying published
information or describing any surrounding circumstances relevant to
the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of time
SEC. 3. COMMERCIAL OR FINANCIAL INFORMATION.
The provisions of section 2 do not apply to a request by a Federal
entity for any testimony or document that consists of only commercial or
financial information unrelated to newsgathering or news and information
dissemination by a covered person.
SEC. 4. COMPELLED DISCLOSURE PROHIBITED.
Notwithstanding any provision of section 2, in any proceeding or in
connection with any issue arising under Federal law, no Federal entity may
compel a covered person to disclose--
(1) the identity of a source of information--
(A) from whom the covered person obtained information; and
(B) who the covered person believes to be a confidential source; or
(2) any information that could reasonably be expected to lead
to the discovery of the identity of such a source.
SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES.
(a) Conditions for Compelled Disclosure. The provisions of sections 2,
3, and 4 shall apply to any testimony or document that a Federal entity
seeks from a third party if such testimony or document consists of any
record, information, or other communication that relates to a business
transaction between such third party and a covered person. Such record,
information, or other communication includes any telephone record or other
record held by a telecommunications service provider, Internet service
provider, or operator of an interactive computer service for a business
(b) Notice and Opportunity Provided to Covered Persons. A court may
compel the testimony or disclosure of a document under this section only
after the party seeking such a document provides the covered person who is a
party to the business transaction described in subsection (a)--
(1) notice of the subpoena or other compulsory request for
such testimony or disclosure from the third party not later than the
time at which such subpoena or request is issued to the third party;
(2) an opportunity to be heard before the court before the
time at which the testimony or disclosure is compelled.
(c) Exception to Notice Requirement. Notice under subsection (b)(1) may
be delayed only if the court determines by clear and convincing evidence
that such notice would pose a substantial threat to the integrity of a
SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.
The publication or dissemination of any testimony or document (or
portion of such testimony or document) sought under section 2 shall not
waive the requirements of such section. The publication or dissemination of
any testimony or document (or portion of such testimony or document),
identity, or information described in section 4 shall not waive the
prohibition described in such section.
SEC. 7. DEFINITIONS.
In this Act:
(1) Covered person. The term "covered person" means--
(A) an entity that disseminates information by print, broadcast, cable,
satellite, mechanical, photographic, electronic, or other means and that--
(i) publishes a newspaper, book, magazine, or other periodical;
(ii) operates a radio or television broadcast station (or network of
such stations), cable system, or satellite carrier, or a channel or
programming service for any such station, network, system, or carrier; or
(iii) operates a news agency or wire service;
(B) a parent, subsidiary, or affiliate of such an entity; or
(C) an employee, contractor, or other person who gathers, edits,
photographs, records, prepares, or disseminates news or information for such
(2) Document. The term "document" means writings, recordings,
and photographs, as those terms are defined by Federal Rule of
Evidence 1001 (28 U.S.C. App.).
(3) Federal entity. The term "Federal entity" means an entity
or employee of the judicial, legislative, or executive branch of the
Federal Government with the power to issue a subpoena or provide other
(4) Third party. The term "third party" means a person other
than a covered person.
Representative Michael Pence (R-Indiana) has introduced for himself and Representative Rick Boucher (D-Virginia) the same bill (H. R. 581) in the House. As of February 14, six other Congresspersons were co-sponsors of the legislation.
Monday, February 21, 2005
In State v. Safeway Judge George King has allowed the unsealing of some records that may show that the defendants in that case, three supermarket chains, agreed to "mutual assistance" in order to outlast strikers during a lengthy labor union dispute during 2003/2004. The Los Angeles Times was an intervenor in the proceeding. Considering only the classification of the particular documents in an earlier proceeding as confidential, Judge King found that the public right of access outweighed the defendants' right to keep the materials private, particularly since the matter involved a lengthy strike (141 days), and also recognized the press' historic role in serving "as a monitor of both the State and the courts". He nevertheless stayed the order to release the materials until February 4th, pending the defendants' appeal to the 9th Circuit. On February 5th, the documents, called collectively a mutual aid agreement, became public, and the L. A. Times published an extensive article discussing them.
Saturday, February 19, 2005
Judge Ernest B. Murphy has won his libel suit against the Boston Herald and its reporter David Wedge. A jury decided this week that Wedge had misquoted him, leading to threats against the judge and members of his family. It awarded the judge $2.1 million. On the stand, the reporter claimed that he had tried to reach the judge to verify the accuracy of his stories, but had been unable to do so. Wedge's stories began running in the Boston Herald in 2002. The Herald has not indicated whether it plans to appeal. See coverage of the trial on the First Amendment Center's website here, here, here, here, and here.
Friday, February 18, 2005
Judge Rodney Melville has released the eight page questionnaire which potential jurors in the Michael Jackson trial filled out, revealing among other things whether they had heard about the 1993/1994 investigation carried out against Jackson by the authorities (see question #37). The questionnaire, which the media have been eager to see, is available here.
Thursday, February 17, 2005
Saying that " if a local candidate wants to be on television, and cannot afford to advertise, his only hope may be to have a freak accident", John McCain (R-Ariz.) has introduced the Localism in Broadcasting Reform Act of 2005, which would require broadcasters to renew their licenses every three years, down from the present 8 year cycle. As partial support for his contention that some broadcasters are not meeting their obligations to serve the public interest, McCain cited a recent report by the Norman Lear Center at the Annenberg Center of the University of Southern California. Read the Center's report here.
The Center hosts an impressive array of resources, including pages on the Image of the Journalist in Popular Culture and extensive reports on issues of the day. See for example the Center's Local News Archive, a joint project with the University of Wisconsin.
Wednesday, February 16, 2005
Tuesday, February 15, 2005
The Court of Appeals for the District of Columbia Circuit has affirmed the decision of the United States District Court for the DC Circuit in the matter of Judith Miller and Matthew Cooper, two reporters who refused to disclose the sources who revealed information to them, including that concerning the identity of a C.I.A. agent revealed to be Valerie Plame Wilson, the wife of diplomat Joseph Wilson. The court found that the government had established that "no First Amendment privilege protect[s] the evidence sought. We further conclude that if any...common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court." Read the opinion here.
Monday, February 14, 2005
In a 2-1 ruling, the Michigan Court of Appeals has held that Eastern Michigan University does not have to release a letter dealing with the construction of the university President's new house. Using MCL 15.243, the Ann Arbor News had sought a copy of the letter discussing the cost of the building; when the school denied it, the paper filed a motion to compel disclosure of the letter. The Court of Appeals upheld the trial court's denial of the request, ruling that the trial court was within its discretion to rule that, among other things, the material in the letter was of a nature that fell within the "frank communications" exception of the state FOIA statute. The case is Herald Co. v. Eastern Michigan University.
Sunday, February 13, 2005
The Motion Picture Association of America and Edward Webber, who ran a website through which the MPAA said users could download pirated copies of films, have settled a lawsuit over Webber's activities, which the MPAA and its members allege constitute copyright infringement. Among other things, Webber agreed to pay a hefty fine and turn over his domain name, http://www.lokitorrent.com/, to the MPAA, which now warns visitors of the dangers of pirating copyrighted materials. Read more here.
In today's New York Times, Timothy L. O'Brien writes about the history of public relations firms and consultants and the rise of concerns over p. r. ethics. He uses the the current flap over Armstrong Williams and Maggie Gallagher as a jumping-off point, but examines the public relations business as far back as the early 20th century for insights into today's ethical and legal issues. See the article online at the Times website.
Friday, February 11, 2005
A Russian newspaper owned by Boris Berezovsky has paid up in a defamation case filed by Alfa Bank last summer. Kommersant had published an article in which it suggested that the bank was in financial trouble. As a result, the bank claimed it lost substantial deposits when customers panicked, and it sued in Moscow's Arbitration Court, winning a judgment of the equivalent of more than $11 million. But in protest, in its January 31st issue the paper featured the court's ruling as well as a photograph of the bank's owner shaking hands with Russian President Vladimir Putin. Five of the paper's other eight pages were blank. Observers consider the Kommersant's choice of the photograph, as well as the rest of the content of the issue, an ironic commentary on the state of freedom of the press in Russia today. For more see Neil Buckley, Bank Victory Makes Russian Press Cutting, Financial Times, Feb. 1, 2005. Read Kommersant's original story and followup articles here. Peter Krug, Professor of Law at the University of Oklahoma Law School, has discussed Russian press law in Civil Defamation Law and the Press in Russia, 13 Cardozo Arts and Entertainment Law Journal, 487 (1995) and 14 Cardozo Arts and Entertainment Law Journal 297 (1996). He is currently researching and writing more on the issue of legal rights in Russia, having recently presented a paper on the subject at the American Association for the Advancement of Slavic Studies in Boston on December 4, 2004.
Thursday, February 10, 2005
The House Committee on Energy and Commerce has reported out the Broadcast Decency Enforcement Act of 2005 (2005 H.R. 310) to the full House by a 46-2 vote. Representative Fred Upton's bill, co-sponsored by more than 30 other House members, would raise maximum fines to $500,000 per violation for "obscene, indecent, and profane broadcasts". The bill further provides
"Section 503(b)(2) of the Communications Act of 1934 (47 U.S.C. 503(b)(2)) is further amended by adding at the end (after subparagraph (E) as redesignated by section 2(1) of this Act) the following new subparagraphs:
"(F) In the case of a violation in which the violator is determined by
the Commission under paragraph (1) to have uttered obscene, indecent, or
profane material, the Commission shall take into account, in addition to the
matters described in subparagraph (E), the following factors:
"(i) With respect to the degree of culpability of the
violator, the following: "(I) whether the material uttered by the violator was live or recorded, scripted or unscripted; "(II) whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming may contain obscene, indecent, or profane material; "(III) if the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming; "(IV) the size of the viewing or listening audience of the programming; and "(V) whether the programming was part of a children's television program as described in the Commission's children's television programming policy (47 CFR 73.4050(c)).
"(ii) With respect to the violator's ability to pay, the following: "(I) whether the violator is a company or individual; and "(II) if the violator is a company, the size of the company and the size of the market served.
"(G) A broadcast station licensee or permittee that receives programming
from a network organization, but that is not owned or controlled, or under
common ownership or control with, such network organization, shall not be
subject to a forfeiture penalty under this subsection for broadcasting
obscene, indecent, or profane material, if--"(i) such material was within live or recorded programming provided by the network organization to the licensee or permittee; and "(ii)(I) the programming was recorded or scripted, and the
licensee or permittee was not given a reasonable opportunity to review
the programming in advance; or--"(II) the programming was live or unscripted, and the licensee or permittee had no reasonable basis to believe the
programming would contain obscene, indecent, or profane material.
The Commission shall by rule define the term 'network organization' for
purposes of this subparagraph.".
SEC. 4. INDECENCY PENALTIES FOR NONLICENSEES.
Section 503(b)(5) of the Communications Act of 1934
(47 U.S.C. 503(b)(5)) is amended--(1) by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively;
(2) by inserting "(A)" after "(5)";
(3) by redesignating the second sentence as subparagraph (B);
(4) in such subparagraph (B) as redesignated--
(A) by striking "The provisions of this paragraph shall not apply,
however," and inserting "The provisions of subparagraph (A) shall not apply
(B) by striking "operator, if the person" and inserting "operator, (ii)
if the person";
(C) by striking "or in the case of" and inserting "(iii) in the case
(D) by inserting after "that tower" the following: ", or (iv) in the
case of a determination that a person uttered obscene, indecent, or profane
material that was broadcast by a broadcast station licensee or permittee, if
the person is determined to have willfully or intentionally made the
(5) by redesignating the last sentence as subparagraph (C).
SEC. 5. DEADLINES FOR ACTION ON COMPLAINTS.
Section 503(b) of the Communications Act of 1934 (47 U.S.C. 503(b)) is
amended by adding at the end thereof the following new paragraph:
"(7) In the case of an allegation concerning the utterance of obscene,
indecent, or profane material that is broadcast by a station licensee or
"(A) within 180 days after the date of the receipt of such
allegation, the Commission shall--
"(i) issue the required notice under paragraph (3) to such licensee or
permittee or the person making such utterance;
"(ii) issue a notice of apparent liability to such licensee or permittee
or person in accordance with paragraph (4); or
"(iii) notify such licensee, permittee, or person in writing, and any
person submitting such allegation in writing or by general publication, that
the Commission has determined not to issue either such notice; and
"(B) if the Commission issues such notice and such licensee,
permittee, or person has not paid a penalty or entered into a
settlement with the Commission, within 270 days after the date of the
receipt of such allegation, the Commission shall--
"(i) issue an order imposing a forfeiture penalty; or
"(ii) notify such licensee, permittee, or person in writing, and any
person submitting such allegation in writing or by general publication, that
the Commission has determined not to issue either such order.".
SEC. 6. ADDITIONAL REMEDIES FOR INDECENT BROADCAST.
Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further
amended by adding at the end the following new subsection:
"(c) Additional Remedies for Indecent Broadcasting. In any proceeding
under this section in which the Commission determines that any broadcast
station licensee or permittee has broadcast obscene, indecent, or profane
material, the Commission may, in addition to imposing a penalty under this
section, require the licensee or permittee to broadcast public service
announcements that serve the educational and informational needs of
children. Such announcements may be required to reach an audience that is up
to 5 times the size of the audience that is estimated to have been reached
by the obscene, indecent, or profane material, as determined in accordance
with regulations prescribed by the Commission.".
SEC. 7. LICENSE DISQUALIFICATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.
Section 503 of the Communications Act of 1934 (47 U.S.C. 503) is further
amended by adding at the end (after subsection (c) as added by section 6)
the following new subsection:
"(d) Consideration of License Disqualification for Violations of
Indecency Prohibitions. If the Commission issues a notice under paragraph
(3) or (4) of subsection (b) to a broadcast station licensee or permittee
looking toward the imposition of a forfeiture penalty under this Act based
on an allegation that the licensee or permittee broadcast obscene, indecent,
or profane material, and either--
"(1) such forfeiture penalty has been paid, or
"(2) a court of competent jurisdiction has ordered payment of
such forfeiture penalty, and such order has become final,
then the Commission shall, in any subsequent proceeding under section
308(b) or 310(d), take into consideration whether the broadcast of such
material demonstrates a lack of character or other qualifications required
to operate a station.".
SEC. 8. LICENSE RENEWAL CONSIDERATION OF VIOLATIONS OF INDECENCY
Section 309(k) of the Communications Act of 1934 (47 U.S.C. 309(k)) is
amended by adding at the end the following new paragraph:
"(5) License renewal consideration of violations of indecency
prohibitions. If the Commission has issued a notice under paragraph
(3) or (4) of section 503(b) to a broadcast station licensee or
permittee with respect to a broadcast station looking toward the
imposition of a forfeiture penalty under this Act based on an
allegation that such broadcast station broadcast obscene, indecent, or
profane material, and--
"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final,
then such violation shall be treated as a serious violation for
purposes of paragraph (1)(B) of this subsection with respect to the
renewal of the license or permit for such station.".
SEC. 9. LICENSE REVOCATION FOR VIOLATIONS OF INDECENCY PROHIBITIONS.
Section 312 of the Communications Act of 1934 (47 U.S.C. 312) is amended
by adding at the end the following new subsection:
"(h) License Revocation for Violations of Indecency Prohibitions.
"(1) Consequences of multiple violations. If, in each of 3 or
more proceedings during the term of any broadcast license, the
Commission issues a notice under paragraph (3) or (4) of section
503(b) to a broadcast station licensee or permittee with respect to a
broadcast station looking toward the imposition of a forfeiture
penalty under this Act based on an allegation that such broadcast
station broadcast obscene, indecent, or profane material, and in each
such proceeding either--
"(A) such forfeiture penalty has been paid, or
"(B) a court of competent jurisdiction has ordered payment of such
forfeiture penalty, and such order has become final, then the Commission shall commence a proceeding under subsection
(a) of this section to consider whether the Commission should revoke the
station license or construction permit of that licensee or permittee for
"(2) Preservation of authority. Nothing in this subsection
shall be construed to limit the authority of the Commission to
commence a proceeding under subsection (a)."."
Wednesday, February 9, 2005
With the retirement of Louisiana Congressman Billy Tauzin, some broadcast industry analysts worry that his successor, Texan Joe Barton, may succeed in pushing through a date certain by which analog television transmissions will end. The Hollywood Reporter's Brooks Boliek covers this story succinctly in DTV Fees Looming Again.
Tuesday, February 8, 2005
A Louisiana appeals court has upheld the dismissal of a lawsuit against New Orleans television station WVUE Channel 8 for reporting allegations that the plaintiff, a minister, had been accused of embezzling funds from his church. The court found that the station and its reporter did not state that Reverend Norwood Thompson did not embezzle, merely that he had been so accused. Further, because he was and is a public figure and the matters involved are of public concern, "we find that the speech contained in the WVUE broadcasts was speech that was protected under the First Amendment to the United States Constitution as well as under La. Const. Art. I, § 7. Therefore, the allegations in the second amended petition are subject to the provisions of La. C.C.P. art. 971. As discussed above, article 971 provides that a cause of action based on the furtherance of a person's right of free speech is subject to a special motion to strike except when a court has determined that the plaintiff in the action has established a probability of success on the claim. In the instant case, the trial court did not find that Reverend Thompson had established a probability that his claim against WVUE would succeed." The case is Thompson v. Emmis Broadcasting, 2005 La. App. LEXIS 62 (2005).
It's Mardi Gras. From Baton Rouge, Louisiana, laissez les bon temps rouler!
Sunday, February 6, 2005
The U. S. Sixth Circuit has affirmed the dismissal of the extremely messy lawsuit that George Ventura, former attorney for Chiquita Brands International, had filed against the Cincinnati Enquirer, after Ventura was identified as a source for a series of articles published by the Enquirer. Ventura had argued breach of contract, namely that the Enquirer, through its reporters, Michael Gallagher and Cameron McWhirter, had promised him confidentiality in return for assistance in gaining information they used in writing some stories published in the Enquirer which it ran in 1998. "According to the record", Ventura was already identified as a source; indeed Ventura himself told the company he was speaking with Gallagher, "in an apparent effort to convince Chiquita that he was not a confidential source." Reviewing the grant of summary judgment de novo, the Sixth Circuit found no evidence that the newspaper revealed Ventura's identity, no duty owed to Ventura by the Enquirer, and no breach of contract, since public policy "precludes enforcements of agreements to conceal a crime." The information Gallagher obtained with Ventura's help was illegally gained through passwords Ventura provided to the Chiquita Brands International voice mail system. Gallagher pled guilty in 1999 to charges of illegal access and was sentenced to five years probation. He also lost his position with the Enquirer. The Enquirer repudiated the series, and paid Chiquita more than ten million dollars in 1998. In its ruling, the Sixth Circuit also discusses briefly the role of Ohio's shield law. The case is Ventura v. Cincinnati Enquirer, 03-3440 (decided Jan. 28, 2005)(see link above).