Thursday, March 31, 2005
United States District Court Judge Christopher F. Droney has ordered Tribune Television Company to sell WTXX-TV of Waterbury, Connecticut, in compliance with a 2001 FCC order under 47 C. F. R. [section] 73.555(d)(3). The action was brought by Neil Ellis, a local real estate developer. Read Judge Droney's ruling here. Read the original grant of waiver to allow Tribune Television time to comply here.
Cleveland Browns player David Wohlabaugh has lost his appeal against Salem Communications Corporation and local station WKNR for erroneously reporting in 2001 that he was arrested by the police. In 2003 the trial court granted WKNR's motion for summary judgment, finding "that Wohlabaugh was a public figure by virtue of his status as a professional athlete, and the appellees did not display actual malice in airing the false broadcasts." Wohlabaugh appealed six days after the time limit for the filing of the appeal and the appellate court dismissed. He then "filed a motion for reconsideration...arguing that co-counsel Peter Ginsberg, who appeared pro hoc vice, had not received notice of the trial court's judgment." The appellate court denied this motion as well. Ever persistent, Wolhabaugh "filed a motion for relief from judgment in the trial court...argu[ing] that summary judgment was improperly granted because evidence of actual malice was presented. Wohlabaugh contended that pro hoc vice co-counsel Peter Ginsberg was not served with the trial court's November 3, 2003 summary judgment entry. He had made this same argument to this court, as well. " After considering all motions, arguments and appeals, the 8th circuit upheld the trial court's original determination. It awarded costs to the appellees. Read the court's opinion here.
Wednesday, March 30, 2005
Donald Richard has failed in his attempt to sue Cleveland television station WJW-TV (channel 8) and two of its reporters for failure to "adequately investigate Richard's claims of wrongdoing, and WJW-TV8's failure to air a broadcast that would help exonerate him." The Eighth District Court of Appeals of Ohio has upheld the lower court's dismissal of Richard's complaint, holding that the plaintiff failed to state a claim upon which relief could be granted. Taking all of Richard's allegations as true, the lower court still found that reporter Jeff Harwood did not "falsely represent that he would investigate the allegations of judicial and law enforcement corruption, because the complaint alleged...that Harwood conducted a six month investigation. Therefore, from the face of Richard's complaint it is clear that Harwood fulfilled any representation he may have made to investigate the allegations that Richard was wrongfully convicted and incarcerated. The trial court properly dismissed the complaint." The appellate court continued through Richard's brief, dismissing all his objections to the trial court's ruling and affirmed the judgment. Read the court's ruling here.
Saturday, March 26, 2005
Wednesday, March 23, 2005
The U. S. 2nd Circuit has again reversed one of U. S. District Court judge Richard Owen's rulings in the Frank Quattrone case, this time on the matter of the media's publication of the names of jurors hearing the proceeding. In an effort to avoid the same outcome as in the high profile trial of defendant of Dennis Kozlowski, Judge Owen had barred the press from publishing the names of the jurors. "On April 13, 2004, in a colloquy before the start of voir dire, Judge Owen informed counsel that he would order the press to refrain from publicly revealing any juror's name. The government advised the district court that the press was likely to contest the order, but Judge Owen remained firm in his position, stating that he wished to avoid a mistrial as had occurred in the Kozlowski case. During jury selection, Judge Owen stated in open court the full names of the first twelve potential jurors. The judge then declared, "Ladies and gentlemen of the jury panel, and any members of the media, should there be any in the room or outside of the room and have notice of what I'm about to say, I am preserving that it's an order of this Court that no member of the press or a media organization is to divulge at any time until further order of this Court the name of any prospective or selected juror. And that's to anybody who has notice of it, and I'm sure that's going to be communicated around." Before jury selection resumed the following morning, counsel for several media organizations submitted a letter objecting to the court's order and requesting an immediate opportunity to be heard. The court agreed to hold a hearing at the end of the day. Throughout that day, the court continued to identify prospective jurors by name in open court. The judge addressed the media's objections in a hearing on the record held in his robing room at the end of the day. In explaining the order, Judge Owen left no doubt that his primary concern was the possibility of a repeat of the Kozlowski incident, in which, Judge Owen explained, a six-month trial was "absolutely destroyed"; and "blown out of the water by a publication of [a juror's] name."; ...Clarifying that the restrictions on the press would "terminate the minute the case is over,"; and emphasizing the need to "give both the prosecution and the defense the fairest possible trial,"; the court refused to vacate its earlier order prohibiting the publication of jurors' names.... A coalition of news organizations appealed."
After finding that it had jurisdiction to hear the appeal, the 2d Circuit turned to the merits. Examining first the prior restraint issue, the court held that "[a]s to the first prong of Nebraska Press, we note that the district court did not make factual findings that publicity in this case would impair defendant's Sixth Amendment right to a fair trial. On the contrary, Judge Owen acknowledged that there had been no instance of juror harassment in Quattrone's first trial and stated that he "respected and trusted" that the media organizations were not planning to disrupt the second trial....The court appears to have based the prior restraint entirely on the incidents of the Kozlowski trial. While it is not improper for a district judge to take into account his or her "common human experience" or to make reasonable "speculations" in assessing the likely impact of news coverage... , a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial....Second, though the district court considered and rejected the possibility of an anonymous jury, the record does not demonstrate sufficient consideration of measures other than a prior restraint that could have mitigated the effects of the perceived harm....We intimate no view on whether such measures would have been prudent or permissible under the facts of this case. We merely note that the district court did not, as required, sufficiently consider possible alternatives to issuing a prior restraint, "one of the most extraordinary remedies known to our jurisprudence."....The third prong of Nebraska Press, which relates to the "efficacy" of a prior restraint, presents a somewhat closer question. ... Intuitively, the imposition of a prior restraint on the publication of jurors' identities seems likely to reduce the risk of juror harassment or other disruption of the trial. We find it significant, however, that the jurors' names here were read aloud in open court. Regardless of restrictions on the press, therefore, any member of the public present in the courtroom could have learned the jurors' names and disseminated that information as widely as possible....
"Thus, the ability of the court's order to satisfy the third prong of Nebraska Press is dubious at best. Finally, we note that the lack of notice or opportunity to be heard normally renders a prior restraint invalid. .... Here, the district court erred by failing to give prior notice and by waiting a full day after imposition of the prior restraint before granting a hearing on its merits. Given the district court's failure to satisfy the three-prong Nebraska Press inquiry and its failure to grant prior notice to the media, we conclude that the court's order constituted an unlawful prior restraint in violation of appellants' First Amendment rights. The district court's order barring publication of jurors' names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information disclosed in open court. This imposed an independent constitutional harm on appellants and rendered the district court's violation of the First Amendment even more plain. As the Supreme Court explained in Craig v. Harney, 331 U.S. 367, 91 L. Ed. 1546 (1947):
A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.
We need not address what exceptional circumstances, if any, could justify a departure from the doctrine barring restrictions on the publication of information revealed in open court. It suffices to hold that the record is devoid of facts that could justify creating such an exception in this case."
Read the entire opinion here.
Monday, March 21, 2005
The Gannett-owned newspapers in Louisiana have filed suit to obtain the 9-1-1 tapes that document the emergency medical assistance summoned to the home of Secretary of State Fox McKeithen, injured in a fall on February 17. The newspapers, including the Shreveport Times, are requesting the tapes under Louisiana's Public Records Act (R. S. 44:1 et seq.) The East Baton Rouge D.A.'s office, claiming that HIPAA (the Health Insurance Portability and Accountability Act of 1996) requires that the tapes be kept confidential, has refused to release the material. The newspapers claim that the public has a compelling interest in discovering as much as possible about McKeithen's condition, since he is currently paralyzed from the neck down and is undergoing treatment at a hospital in Atlanta. He has named Al Ater as deputy Secretary of State.
No Louisiana court has ruled on the issue. However, in 1997, then Attorney General Richard Ieyoub and Assistant Attorney General Frances Jones issued opinion 97-233 with regard to Computer Assisted Dispatch (CAD) reports, in which they summarized previous AG opinions discussing the status of 9-1-1 tapes.
"Your request for an opinion from the Attorney General's office has been forwarded to me for research and reply. Specifically, you ask about the legality of releasing C.A.D. (Computer Aided Dispatch) reports. After discussing this request with you, it is my understanding that C.A.D. reports consist of E-911 tapes, along with any other information given to emergency dispatchers during the course of interactions with callers, law enforcement and other public service personnel. Previous opinions rendered by this office have stated that tapes of 911 emergency phone calls are public records, subject to the exceptions set forth in the Public Records Act, La. R.S. 44:1, et seq. Accordingly, the E-911 tapes which are part of the C.A.D. reports would be subject to the Public Records Act, with the exceptions which are contained in La. R.S. 44:3. Additionally, it appears from a reading of 44:1 and 44:3 that other information in these reports is also subject to these provisions. This determination will have to be made on a case-by-case basis to determine if information fits any of the exceptions delineated in La. R.S. 44:3. "
Friday, March 18, 2005
The Cape Cod Times began investigating the goings-on in the Sheriff's Department of Barnstable County when one of its reserve deputies was indicted, and later resigned from the force. When it discovered that the Sheriff had a list of over 200 names of deputies, it sued to obtain the list. The Sheriff refused to divulge them, citing Massachusetts G. L. c. 4, [section] 7, the privacy right of persons not subject to the G. L. chapter 66, [section] 10, the open records law. A lower court judge sided with the Sheriff in 2003. The Supreme Judicial Court on its own initiative took up the case from the Appeals court, and issued its judgment on March 7, ruling that although the records were created by a private entity, the Barnstable County Deputy Sheriffs Association, they were "`made or received' by a public official, the sheriff, as those terms as used in G. L. c. 4 [section] 7, Twenty-sixth, and that no exemption to the statutory definition of public records or other provision of law insulates the records from inspection."
The Court examined, among other things, the history of the practice of appointing deputy sheriffs, in order to establish that the persons involved in the private association served a public, rather than a private function. "In the past, Barnstable County sheriffs have appointed private individuals to serve as "honorary" deputy sheriffs. According to the special sheriff of Barnstable County honorary deputy sheriffs were sworn in as deputy sheriffs, ostensibly engaged in no law enforcement functions, and were not employees of the sheriff's office. Shortly after he took office, Sheriff Cummings largely abolished this practice. In its place he instituted a system of appointing "reserve deputy sheriffs." The sheriff contends that his current practice differentiates more clearly than in the past between deputy sheriffs who are employees of Barnstable County or otherwise have law enforcement powers, and private citizens without law enforcement powers, now designated "reserve deputy sheriffs." The sheriff has appointed more than one hundred reserve deputy sheriffs. A letter, printed on the sheriff's official letterhead and sent as part of an application package, recites the responsibilities of reserve deputy sheriffs: they have "all the powers, duties, authority, responsibility and honors of a Deputy Sheriff when called upon by the High Sheriff or the Special Sheriff, as provided for by [G.L. c. 37, § 13, and G.L. c. 269, § 1]." The appointment of reserve deputy sheriffs is directed by the sheriff and his subordinates. A potential reserve deputy sheriff completes an application, which he or she mails to the sheriff's secretary, an employee of the sheriff's office. The application is then forwarded to the special sheriff, an employee of Barnstable County and the sheriff's highest ranking subordinate. See G.L. c. 37, §§ 4, 5, and note 5, supra. Applicants authorize "the Sheriff of Barnstable County, Massachusetts" to conduct "a background investigation" and the special sheriff directs employees to use the resources of the office to perform such background checks. After the completion of a background check, the special sheriff and two officers of the association review the application before the special sheriff makes a recommendation to the sheriff. The final decision to appoint an applicant is made by the sheriff. Each successful reserve deputy sheriff candidate is notified by the sheriff in a letter bearing the sheriff's letterhead. Each is informed that he or she "takes an oath of public trust." The successful applicant also is given a photographic identification card, made by the sheriff's personnel director and paid for by the sheriff's office, bearing the title "reserve deputy sheriff." The reserve deputy sheriff is informed that he or she may purchase at a police supply store a badge that identifies the holder as a deputy sheriff. The sheriff administers an oath to each reserve deputy sheriff at what is characterized as a "ceremonial gesture without legal consequence."
The Court noted that "it is not disputed that records "made or received" by the sheriff, an elected officer and employee of Barnstable County, a political subdivision of the Commonwealth, are subject to the public records laws. It is not disputed that the records requested by the newspaper are located in the sheriff's office, in a file maintained by, and under the control of, a public employee, the special sheriff. The sole question is whether the sheriff may nevertheless refuse to allow inspection and examination of these records on his assertion that the records are "private." In the circumstances of this case, that claim is untenable. The public records law, G.L. c. 66, § 10, requires that every person permit the inspection and examination of any public records in his or her "custody." See note 1, supra. General Laws c. 4, § 7, Twenty-sixth, in turn, defines "[p]ublic records" as all materials "made or received by any officer or employee" of any "political subdivision" of the Commonwealth unless such materials fall within an exemption specified in that they are:
"(a ) specifically or by necessary implication exempted from disclosure by statute; ... (c ) ... relat[ed] to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; ... (e ) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit." The Legislature's definition of public records "manifests a legislative intent to provide broad public access to government documents subject only to limited exemptions." General Elec. Co. v. Department of Envt'l Protection, 429 Mass. 798, 802 (1999). The statute provides the operative standard: in any court proceeding "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G.L. c. 66, § 10 (c ). Against this presumption of production, we address in turn the sheriff's assertion that the records were created in his (and the special sheriff's) "personal" capacities, and his claims that the records are the property of the association. The power to appoint reserve deputy sheriffs inheres in the office of the Barnstable County sheriff. When a public officer's actions are possible only by virtue of the public office he or she holds, they are official acts, and the evidence here is overwhelming that, when he appoints reserve deputy sheriffs, the sheriff acts as a public official and not as a private individual. Reserve deputy sheriffs "serve at the pleasure of the Sheriff"; they do not serve at the pleasure of private Citizen Cummings. Reserve deputy sheriffs agree "to obey the lawful commands of the Sheriff," not the commands of Citizen Cummings. Cummings will have no authority to appoint reserve deputy sheriffs after he leaves office. Rather reserve deputy sheriffs (if any) will serve at the pleasure of his successors. The "real party in interest" here "is the governmental entity" of the Barnstable County sheriff, not Cummings, "the named official." See Hafer v. Melo, 502 U.S. 21, 25 (1991)."
For these reasons, said the Court, "[t]he records requested by the newspaper are public records and must be made available for inspection and examination. The judgment is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
In an unpublished order, released March 4, 2005, the U. S. Court of Appeals for the 7th Circuit affirmed a lower court ruling that Gayle Raveling, the ex-sister-in-law of a former Willow Springs, Illinois police chief now in prison after his conviction on conspiracy and RICO charges, had failed to state a claim upon which relief could be granted in her case against HarperCollins Publishers, when she sued for false light invasion of privacy under Illinois law. The plaintiff had originally filed in state court in September 2003, charging that in the book Double Deal: The Inside Story of Murder, Unbridled Corruption, and the Cop Who Was a Mobster, the caption for a photograph of Ms. Raveling holding her godson, the police chief's son, identified her as "my sister-in-law, Gail Barone" in company with the infant's godfather, described in the book as the individual "who ran the Chicago mob's North Side crew." Equally unsavory to Ms. Raveling's mind was the fact that the photograph was on the same page as "a picture of a Cadillac being pulled from a Chicago sanitary canal. According to the caption, the car's trunk concealed the decomposed body of Dianne Masters, the murdered wife of Corbitt's codefendant Alan Masters." HarperCollins removed to federal court later that year.
On February 9, 2004 the district court granted HarperCollins' motion to dismiss, stating that the "mere inclusion" of the photograph did not place Ms. Raveling in a false light. Raveling moved for reconsideration and for leave to file an amended complaint; the district court denied both motions.
The appellate court examined Ms. Raveling's false light claim carefully, using the standard articulated by the Supreme Court of Illinois in Kolegas v. Heftel Broadcasting (plaintiff placed in a false light as a result of defendant's actions; factfinder could decide that the false light would be highly offensive to reasonable person; plaintiff must allege and prove defendants acted with actual malice or reckless disregard). As to the first element, the appellate court concluded that the material published about Raveling was "substantially true." As to the second element, the court held that "a plain statement of one's family relatinoship to another person simply is not highly offensive to the reasonable person." Finally, the court decided that Raveling had not shown actual malice in that she had not demonstrated (indeed could not demonstrate) that HarperCollins had acted with knowledge of or reckless disregard toward the truth or falsity of the statements about her. While the appellate court was mildly critical of the district court's dismissal of Ms. Raveling's motion, saying that procedurally it should have handled it differently, it reiterated that "the factually accurate depiction of Ms. Raveling in this book simply cannot form the basis for a false light invasion of privacy claim. Because Ms. Raveling's proposed amended complain could not have survived another motion to dismiss, we think that the district court did not abuse its discretion by denying her leave to file an amended complaint....Furthermore, although Ms. Raveling indicated her wish to file an amended complaint...under Illinois' Right of Publicity Act, 765 Ill. Comp. Stat. 1075/1 et seq., she did not attach a proposed amended complaint to her motion for reconsideration, nor did she provide anything beyond a cursory citation to the Right of Publicity Act...Therefore, we must conclude that the district court acted within its discretion when it denied Ms. Raveling's motion for leave to file an amended complaint."
The lower court decisions, Raveling v. HarperCollins, U. S. D.C. for the Northern District of Illinois, Eastern Division, dated June 30 and February 10, are available on LEXIS and WESTLAW. Neither is available in the Federal Supplement 2d.
The Illinois Right of Publicity Act is available here.
Wednesday, March 16, 2005
President Bush has named FCC Commissioner Kevin Martin the new head of the FCC, succeeding Michael Powell, who steps down tomorrow. Martin said in a statement, "I am deeply honored to have been designated as the next Chairman of the Federal Communications Commission, and I thank President Bush for this distinct privilege. I look forward to working with the Administration, Congress, my colleagues, and the FCC’s talented staff to ensure that American consumers continue to enjoy the benefits of the best communications system in the world. I thank Chairman Powell for his excellent stewardship of this agency, and I look forward to continuing his efforts in bringing the communications industry into the 21st Century.” In written statements, outgoing FCC head Powell congratulated his successor, as did Commissioner Kathleen Abernathy (see below).
Martin received his BA from the University of North Carolina, Chapel Hill, a master's degree in public policy from Duke University, and a JD from Harvard. He clerked for U. S. District Court Judge WIlliam Hoeveler (11th Circuit), practiced with Wiley, Rein & Fielding in Washington DC, worked on the Bush campaign and then on the Bush-Cheney transition team of 2001 and as Deputy General Counsel. He joined the FCC in 2001.
Tuesday, March 15, 2005
In May 2003 Boston magazine published an article called "The Mating Habits of the Suburban High School Teenager", illustrated with a large photograph of teen Stacey Stanton. Although Stanton was not mentioned in the article, and although the magazine specifically stated that the photograph did not have any connection with the material discussed in the text, she claimed that the article defamed her. She sued Boston magazine and its parent company, Metro Corporation, for defamation and false light invasion of privacy under Mass. General Laws ch. 214 sec. 1B. After a careful analysis of the claims, the judge noted that while Massachusetts courts have accepted invasion of privacy claims, "[t]he bulk of the cases decided under the statute have concerned the dissemination of allegedly private information about a plaintiff... The SJC has also recognized a cause of action under the statute for intrusion into a person's private sphere. ..However, invasion of privacy actions of the "false light" variety are not recognized in Massachusetts . "[foonotes omitted] "Neither the complaint, nor plaintiff's opposition to defendant's motion to dismiss, make any explicit reference to claims for revelation of private information or for intrusion into plaintiff's private sphere, or allege any specific facts to support such claims. The photograph does not, for example, portray her in the ladies' room, or partially dressed, or in any other similar context that would ordinarily be intended to be private. Indeed, aside from the false light assertions, the invasion of privacy claim rests on the bare allegation that the unauthorized publication of plaintiff's photograph constituted an unreasonable, substantial, and serious interference with her privacy. Amended Complaint, PP 8-9. Plaintiff cannot press an invasion of privacy claim based solely on an allegation that amounts to little more than a legal conclusion."
However, the court was clearly troubled by the defendant's use of the photograph of a teenager otherwise unconnected with the story to illustrate this particular article. "[t]he use of plaintiff's photograph in this context appears to have been entirely gratuitous. The photograph was not used to illustrate an article about proms, or anything actually depicted in the photograph itself; it was used to illustrate a sensational article about relatively extreme forms of sexual behavior. It would have been easy to create an illustration with consenting subjects, or to obscure plaintiff's identity. Nor can this be said to be the product of newsgathering in haste; the publication is a monthly magazine, not a newspaper on a daily deadline, and presumably there was ample opportunity for reflective and considered editorial judgment prior to the selection of a photograph that was certain to embarrass its teenage subjects."
The case is Stanton v. Metro Corp., No. 04-10751-FDS (D. Mass. Mar. 7, 2005).
Monday, March 14, 2005
The FCC has ruled in a Memorandum and Order that a November lead-in during Monday Night Football in which "Desperate Housewives" star Nicolette Sheridan, dropped the towel she was wearing before jumping into the arms of Philadelphia Eagles player Terrell Owens, was not indecent. The FCC ruling describes the encounter thus: "
" At 9:00 p.m. Eastern Standard Time, on November 15, 2004, as the introductory segment to the broadcast of the National Football League game between the Philadelphia Eagles and Dallas Cowboys, ABC aired a scene featuring Eagles wide receiver Terrell Owens and actress Nicollette Sheridan, appearing as her character in the ABC program “Desperate Housewives.” During the scene, Sheridan and Owens, who is fully suited for the game, are alone in the Eagles’ locker room.
Sheridan, wearing only a towel, seeks to seduce Owens. After he rebuffs her advances, telling her that the game is about to start and that his team needs him, she drops her towel. The camera shows her from the back, nude from the waist up. The viewer cannot see her body below the waist. He responds, “Aw, hell, the team’s going to have to win without me” and she then leaps into his arms. The scene concludes with two other characters from “Desperate Housewives” watching the locker room encounter on their television, who remark how “desperate” Sheridan appears and then change the channel to the game, repeating the traditional Monday Night Football introduction, “Are you ready for some football?!” The game broadcast then commences."
In its evaluation, the FCC states: "In our assessment of whether broadcast material is patently offensive, “the full context in which the material appeared is critically important." Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or shock. In examining these three factors, we must weigh and balance them to determine whether the broadcast material is patently offensive because “[e]ach indecency case presents its own particular mix of these, and possibly, other factors.” In particular cases, one or two of the factors may outweigh the others, either rendering the broadcast material patently offensive and consequently indecent, or, alternatively, removing the broadcast material from the realm of indecency." [footnotes omitted]...
The order concludes, "[T]he material in question is not patently offensive, and thus, not indecent. In particular, the “Monday Night Football” segment, although sexually suggestive, is not graphic or explicit. Owens is fully dressed throughout the segment, and, with the exception of a moment when her bare back is exposed to the audience, Sheridan is at all times fully covered with a towel. No sexual or excretory organs are shown or described, and no sexual activities are explicitly depicted or described. Furthermore, the scene where Sheridan drops her towel and jumps into Owens’s arms is brief. Although the scene apparently is intended to be titillating, it simply is not graphic or explicit enough to be indecent under our standard." [footnotes omitted].
Saturday, March 12, 2005
Judge James Kleinberg of the Superior Court, Santa Clara County, has ruled in Apple Computer v. Does 1-25, available here, that bloggers Monish Batia, Kasper Jade and Jason O'Grady are not entitled to protections under the existing California shield law, nor under any protection for traditional print and broadcast journalists that might arise under First Amendment law. Kleinberg acknowledged that "[d]efining what is a "journalist" has become more complicated as the variety of media has expanded" but continued that "[e]ven if the movants are journalists, this is not the equivalent of a free pass." In considering whether the information sought could be obtained elsewhere, the judge concluded that Apple had exhausted all other avenues of discovery open to it, and decided that the time had come for the movants to offer up the names of their sources. The judge was particularly critical of the movants' failure to identify the public interest served "by publishing private, proprietary product information that was ostensibly stolen and turned over to those with no business reason for getting it. Movants' response was to again reiterate the self-evident interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity.... Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all...the movants are doing nothing more than feeding the public's insatiable desire for information." The order is stayed for 7 days pending appeal.
Friday, March 11, 2005
A defendant has successfully petitioned to prevent a judge from opening his courtroom to television and still cameras in Heckstall v. McGrath. Using New York's Civil Practice Law and Rules section 78, pursuant to CPLR 506 (b)(1) Gregory Heckstall "alleges that respondent ignored a clear statutory bar to cameras in judicial proceedings and the presence of cameras at his trial [that] will result in a public spectacle that [will] adversely affect the testimony of witnesses, the evaluation of the evidence by jurors and the conduct of counsel. Petitioner also contends that since he will be unable to demonstrate sufficient prejudice arising from the subtle effects of the cameras' presence to warrant reversal of any conviction, respondent's decision will escape meaningful review unless this Court addresses it here. We agree.
"While respondent certainly has the right to control the proceedings before him and control his courtroom, that right is not absolute...The act by respondent that exceeded his authority was not making a ruling...but implementing a ruling interpreting Civil Rights Law [section] 52 in such a way that permitted third parties to violate the clear legislative mandate of that statute....As respondent has exceeded his authority, we must determine whether a writ of prohibition should be issued. Prohibition is required here because deprivation of a fair trial is a grave harm and petitioner cannot adequately address this issue on an appeal....It is undisputed that the right to a fair trial is paramount. Unfortunately, the extent to which cameras in the courtroom affect that right--including whether jurors will be unwilling to serve, witnesses reticent to testify, or attorneys prone to grandstanding--is unknown and largely unmeasurable...A criminal defendant cannot be expected to adequately show on appeal that he or she was prejudiced by such unmeasurable conduct. Because respondent's actions implicate petitioner's fundamental right to a fair trial in a way which cannot be adequately addressed on appeal, this Court will exercise its discretion in this action and grant the petition."
In an unpublished and extremely brief ruling, the 5th Circuit has held that CBS' newsmagazine "60 Minutes" did not defame members of a Mississippi jury shown in an episode called "Jackpot Justice". The plaintiffs had claimed, among other things, that the show libelled them, invaded their privacy, and inflicted emotional distress. In upholding the lower court's dismissal of the plaintiffs' motion to remand for lack of complete diversity and the grant of defendants' motion for judgment on the pleadings, the 5th Circuit "agree[d] with the district court's characterization that: "at best [the statements in the 60 Minutes broadcast] were directed towards Jefferson County jurors in general. Thus, they lack the specificity required to impose liability....We therefore affirm the district court's order for essentially the reasons as well-stated in its memorandum opinion and order." The case is Gales v. CBS Broadcasting, Docket no. No. 04-60710 (decided March 3, 2005).
Meanwhile comes this ruling from the United States District Court for the Northern District of Georgia in the matter of Russ Brock et al., versus Viacom International over an episode of Penn & Teller's controversial series Bullshit!which is broadcast on Showtime. The plaintiffs sued the defendants over taped interviews that made up part of an episode titled "Creationism" aired during the show's first season. The defendants moved to dismiss. "According to the plaintiffs when they met with the defendants to discuss the television series and consider the interviews, the defendants represented that the series had not yet been named and that it was a program about topics that Americans are passionate about. After agreeing to sit for the interviews, the defendants asked the plaintiffs to sign releases. While reviewing the releases, the plaintiffs noticed language indicating that the taped interviews might be used for satirical or humorous purposes. The plaintiffs requested an explanation of this language from the defendants, and the defendants responded by saying that the releases were a standard form that is used for all types of television programs. The defendants told the plaintiffs "not to worry" because the television program was "not that kind of show."...Based on these representations, the plaintiffs agreed to sit for the taped interviews. Plaintiff Russ Brock was paid $300 for the interview...As it turned out, the show was already entitled "Bullshit!" and the content of the Episode was a combination of interviews and film clips from the media's coverage of the public hearings before the Cobb County School Board, together with acerbic commentary by Penn & Teller. Penn & Teller's commentary was highly critical of the plaintiffs' views on the teaching of creationism in public schools....The plaintiffs complain that, instead of being a program about things that Americans are passionate about..."the program was an aggressive, irreverent expose of the beliefs of Christianity and Creationism, and a personal attack on Plaintiffs for their desire to have both Creationism and Evolution taught as alternate theories in the Public School System of Cobb County."
In analyzing the Defendants' motion to dismiss the court applied the Hepps standard and determined that the plaintiffs were private figures. Nevertheless, it found that the speech involved was of public concern, and that under Hepps, the plaintiffs had the burden of showing both falsity and fault. Since the episode showed statements that the plaintiffs themselves made and that they did not dispute, and that the other statements of which they complained were protected opinion, the court granted defendants' motion to dismiss. "The plaintiffs' primary complaint is not that any of the statements made in the Episode were false, but that the show advocated a viewpoint different from theirs, and, in doing so, criticized their position in an "aggressive" and "irreverent" manner....But the Supreme Court has rejected the notion that harsh criticism of a viewpoint can constitute actionable defamation....Because plaintiffs have failed to allege that any of the statements contained in the Episode are false and because the plaintiffs cannot prove the falsity of the complained of statements given that those statements are opinions, the plaintiffs' defamation-type claims fail as a matter of law, and their complaint fails to state a claim under which relief can be granted. For all of these reasons, the court grants the defendants' motion to dismiss." The case is Brock et al., v. Viacom International, et al., (Civil Action) 1:04-CV-1029-CAP (U.S.D.C., Northern District of Ga., Atlanta Division), decided February 28th, 2005(Parnell, J.).
Thursday, March 10, 2005
The Family Entertainment and Copyright Act of 2005 seems to be headed for President Bush's desk. This piece of legislation brings together several bills on related topics. One, the Artists' Rights and Theft Prevention Act of 2005 (ART Act) would provide for protection of copyrighted films by making the practice of using camcorders to film them off commercial movie screens a federal crime. Another part of the act, the Family Movie Act of 2005, allows home users to intercept "limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology" using aftermarket technology such as that marketed by ClearPlay. A likely use would be to prevent the broadcast of indecent, profane or violent material that a parent desired his or her children not to see. The Family Movie Act is controversial since the practice of intercepting objectionable bits of films or other copyrighted material is at issue in the lawsuit between Clear Play, Family Shield Technologies and Trilogy Studios, and the Directors Guild of America and various other parties over allegations of copyright violations. The case, which first began in the U. S. District Court for the District of Colorado, is Huntsman v. Soderbergh. Some of the documents are available here. The EFF's amicus brief is available here. The artists contend that the technology allows individuals to intercept more than just a few objectionable words; it permits wholesale excision of scenes, gutting the meaning of the films in some cases. The manufacturers respond that the machines simply allow the users to change the way they view the films. The technology does not change the original in any way.
The interpretation of the word "imperceptible" may be the key here. Very little in the way of legislative history accompanies the bill. However, here are Senator Hatch's comments from the Congressional Record.
"The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called "ad-skipping" technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to "ad-skipping"' cases, such as in the recent litigation involving ReplayTV. In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent "ad-skipping" litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill. That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the "making imperceptible . . . limited portions of audio or video content of a motion picture. . . ." An advertisement, under the Copyright Act, is itself a "motion picture," and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase "limited portions" is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption." 151 Cong. Rec. S495.
The other parts of the act include provisions dealing with the preservation of films (the National Film Preservation Act of 2005, National Film Preservation Foundation Reauthorization Act of 2005, and the Preservation of Orphan Works Act). S 167 is sponsored by Senator Orrin Hatch and co-sponsored by Senators John Cornyn, Dianne Feinstein and Patrick Leahy. For additional commentary and history see articles in Tech Law Journal and Brooks Boliek's piece in the Hollywood Reporter today.
Monday, March 7, 2005
Judge Roy Paul has released his ruling in the Burkle case. Applying strict scrutiny and finding a compelling government interest, the judge nevertheless found that "[t]he statute is not unconstitutional merely because it deprives the court of discretion as to what should be sealed, but because as enacted it seals the entirety of a pleading if any of the specified materials are included in it. Thus, a 100 page pleading filled with legal argument of genuine public interest must be sealed if a party's home address appears even in a footnote. Absent judicial scrutiny prior to such sealing, [section] 2024.6 could indeed become an instrument of gamesmanship. The statute cannot be deemed "narrowly tailored" because it necessarily will seal material in which there is no overriding right to privacy." The judge stayed his order, giving Mr. Burkle the right to appeal, or to seek another sealing order under CRC 243.1. An attorney for Mr. Burkle said he is likely to want to appeal the ruling.
Sunday, March 6, 2005
The recent ruling in People v. Combest further tests state shield laws, currently under review in cases like Miller/Cooper, since it allows the defendant in that case to request videotape from a legal network (Hybrid TV, filming for Court TV) to aid in the preparation of his retrial.
"Defendant contends that the Shield Law is unconstitutional as applied to criminal cases, arguing that a criminal defendant is entitled to obtain nonconfidential material possessed by a news organization even when he or she cannot meet the three-pronged showing required by the statute. He maintains that his due process rights to a fair trial, presentation of a defense, compulsory process and confrontation entitled him to obtain the nonconfidential videotapes of his own statements that were recorded by Hybrid.
As made clear in O'Neill, when faced with a litigant's request for information in the possession of the media, competing interests must be balanced (see 71 NY2d at 529). In a criminal case, defendant's interest in nonconfidential material weighs heavy. Of course, in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue. When confidential material is at issue, the media may have real reason to fear that their ability to find sources willing to provide information will soon evaporate if their guarantees of confidentiality will not be honored. While we do not question the importance of nonconfidential news gathering, whose significance we recognized in O'Neill, defendant argues that this case involves
"no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request" (Branzburg v Hayes, 408 US 665, 681-682 )."
Thus, he contends, a reporter's privilege in nonconfidential materials does not easily overcome a criminal defendant's fair trial rights. Because in this case we conclude that defendant met his burden under the Shield Law, we need not decide what standard is constitutionally required in order to overcome a criminal defendant's substantial right to obtain relevant evidence. "
But Combest also raises some interesting questions about the extent to which news coverage on legal networks like Court TV as well as the more traditional outlets like CBS, NBC, and ABC, are ever more "part of the story", when they create or air "reality" shows, or shows that purport to tell the story behind the story. Even entertainment shows can get into the act, and become unwitting witnesses in the courtroom. Attorney Todd Melnick used outtakes from the HBO series Curb Your Enthusiasm to prove that his client Juan Catalan was actually at a Dodgers baseball game and not committing murder. He had had to subpoena videotapes from the owners of the team, but apparently Larry David, of Curb Your Enthusiasm, was more, well, enthusiastic about assisting and provided his tapes voluntarily. Those tapes, along with other evidence, meant that Catalan is free today. See Jeffrey Toobin's coverage here. Dr. Park Dietz helped Andrea Yates' lawyers immensely when he asserted that she might have thought up drowning her children based on a Law & Order episode. The highly popular show is one that Yates watched often and the prosecutor pounded that point home to the jury. The problem? As we now know, no such episode exists. Edward Stern comments for the New England Psychologist here. To see what movies and series (but not individual episodes) Dr. Dietz has consulted for, go to www.imdb.com, select "more searches" and enter Park Dietz in the Cast and Characters template. A pending case in Kansas suggests that the CBS series CSI may become part of the defense as well. In that case, Kansas State professor Thomas Murray is accused of killing his ex-wife, lawyer Carmin Ross-Murray, in 2003. Police think materials found on his computer and elsewhere indicate a murder plot. He says it's evidence of a script he was researching and writing for the popular show. The trial is expected to last a month; after it concludes we shouldn't be surprised to see it influence a Law & Order script "ripped from the headlines."
Meanwhile, Jay Leno, who is under a gag order not to discuss the Michael Jackson case, invited Brad Garrett (Everybody Loves Raymond's Robert Barone) to tell his MJ jokes while he waits to see if the court will quash the order.
Wednesday, March 2, 2005
The Louisiana State Bar Association's Art, Entertainment and Sports Law Section and the MPAA are co-sponsoring a conference on Global Film on March 10 and 11 in New Orleans, Louisiana. The keynote speaker is MPAA Senior Vice President John Malcolm. See the conference website for more information on this event.
Tuesday, March 1, 2005
Judge Roy Paul has ruled that the recently amended California law allowing parties to request that their financial records be sealed during divorce proceedings is unconstitutional. The issue arose with respect to the Burkle divorce. See the AP's coverage here.
Upcoming arguments in the MGM v. Grokster appeal on March 29, 2005 promise to be provocative. Findlaw provides links to briefs, lower court proceedings and related litigation here. Julie Hilden's thoughtful February 16 column on cnn.com reviews the issues in the case.