Thursday, April 28, 2005
Alabama state lawmaker Gerald Allen has introduced a bill to ban the use of state funds to purchase literature featuring homosexual activities or lifestyles. Specifically, HB 30 provides that "[n]o public funds or public facilities shall be used by any state agency, public school, public library, or public college or university for the purchase, production, or promotion of printed or electronic materials or activities that, directly or indirectly, sanction, recognize, foster, or promote a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of the state of Alabama. No public funds shall be used for the purchase of textbooks or library materials that recognize or promote homosexuality as an acceptable lifestyle or encourages or proposes to public school children that they have a legitimate right to decide or choose illegal conduct."
In addition, "[n]o state agency, public school, public library, or public college or university, directly or indirectly, shall require or encourage the entity's members or employees to provide information or materials or engage in any activities that, directly or indirectly, sanction, recognize, foster, or promote a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of the state of Alabama."
Further, "[a]ny public employee who violates the provisions of this section shall be guilty of a Class A misdemeanor."
The bill declares that "[t]his section shall not be construed to be a prior restraint of the First Amendment protected speech. It shall apply only to state agencies, public schools, public libraries, and public colleges and universities in the use of public funds and public facilities."
(Thanks to Sean Sirrine for alerting me to this item).
Wednesday, April 27, 2005
Tuesday, April 26, 2005
In a per curiam opinion the Michigan Court of Appeals has affirmed a trial court's dismissal of a false light invasion of privacy action against hip hop artist Eminem. In Deangelo Bailey v. Marshall Bruce Mathers III, a/k/a Eminem Slim Shady, the court held that the private figure plaintiff had failed to show falsity in this "publication of public concern."
The plaintiff had objected that in a song called "Brain Damage" and in a Rolling Stone article in which he discussed the lyrics of the song, the defendant had "negligently placed him [the plaintiff] in a false light concerning his character." The lyrics recounted how the plaintiff had "shove[d] [the defendant] in the lockers", taken his chocolate milk, "stomped" on him and committed other batteries, some with the assistance of the school principal.
Reviewing de novo the trial court's decision and considering the evidence submitted in the light most favorable to the nonmoving party, the court stated first: "[t]he tort of false-light invasion of privacy cannot succeed if the challenged statements are true....[P]laintiff has not challenged the trial court's identification of the allegedly actionable statements in both the song lyrics and the Rolling Stone article..." Thus, the court concluded, "[P]laintiff has not demonstrated any error in the trial court's conclusion that plaintiff failed to demonstrate a genuine issue of material fact with regard to the falsity element under the substantial truth doctrine."
Further, the court found that the lyrics themselves contained "a number of signals that would convey to a reasonable person that it should not be taken literally....Examples include the highly improbable event of a school principal assisting plaintiff in "stomping" on defendant and leaving him for dead...It is apparent that a reasonable listener would not take the song lyrics about defendant literally The sting of the song lyrics rests in their characterization of plaintiff as a bully, rather than the specific factual statements about the bathroom assault. Thus, the material question is whether the literal truth yields the same effect...In light of plaintiff's admissions that he "picked on" defendant when defendant was in the fourth grade and that plaintiff was part of a group at school that did "bully type things"...we uphold the trial court's determination that no genuine issue of material fact was shown....Viewing the evidence most favorably to plaintiff, plaintiff's deposition indicates that plaintiff...picked on defendant."
Concluded the court, "A reasonable person could interpret the uncontested facts as indicating that plaintiff...bullied defendant...Because the literal truth yields the same effect as the sting of the song lyrics, plaintiff did not meet his burden....Hence, the trial court properly granted defendant's motion...".
Read the entire opinion here.
Monday, April 25, 2005
Justice Kennedy Denies Application for Stay in Prior Restraint Case; First Coast News v. Circuit Court of Florida, St. Johns County
Justice Kennedy has issued a single justice opinion in the case of Multimedia Holdings Corporation, d/b/a as First Coast News, v. Circuit Court of Florida, St. Johns County. First Coast News had challenged two orders of the court. "The first was entered July 30, 2004. It states the court had discovered that copies of the transcript of certain testimony before the grand jury had been released to members of the press as well as to investigators from the St. Johns County Sheriff's office, in apparent violation of Fla. Stat. [sec.] 905.27 (2003). Section 905.27 generally prohibits the disclosure of grand jury testimony, with certain exceptions. As relevant here, the order directs that "[n]o party shall further disclose the contents of the transcript of testimony before the Grand Jury to any person not authority by F. S. 905.27(2)." After First Coast News intervened to set aside the order, the court issued a second order, which stated that "[a]t no point in the Court's [July 30 Order] is [applicant] precluded or restrained from publishing matters which are public record, nor is [applicant] enjoined or restrained from broadcasting matters in this case. The [July 30 Order] clearly provides that the parties to this action are enjoined from further disclosing the contents of the transcript of testimony before the Grand Jury to any person not authorized by F. S. 905.27(2). The parties to this action are the State of Florida...and defense counsel." Justice Kennedy noted that the trial court "denied applicant's motion to intervene and its motion to set aside the July 30 Order."
The Fifth District Court of Florida denied the newspaper's request for review, and because "the...denial is not appealable to the Florida Supreme Court...applicant filed with me as Circuit Justice an application for a stay of the orders, urging that they operate as a prior restrain in violation of the First and Fourteenth Amendments...The application...is denied...It is not sufficiently established on this record that applicant is enjoined by or otherwise subject to the orders in question or that any threat to is real or substantial; hence it is unlikely that, despite indications that a prior restraint may have been imposed at the time of the first order, four Members of the Court would vote to grant certiorari."
In spite of Justice Kennedy's denial of the application for a stay, his opinion is not entirely what one might call a "loss" for media freedoms. He points out in his analysis of the applicant's arguments that "the court's first order was not accompanied by notice or hearing or any other of the usual safeguards of the judicial process. It bears many of the marks of a prior restraint....The first order is of further concern because it singles out this applicant and could be interpreted to place it on notice that publication of grant jury testimony in the underlying case could subject it to prosecution or place it in contempt of court. Assuming that order constituted a prior restraint, however, any chilling effect it had on speech was substantially diminished by the court's second order. That second order indicates that the court was directing its order only to the conduct of those who are parties to the underlying action....In addition, the second order forecloses interpreting the first order to put applicant on notice that future publication would place it in contempt...To the extent the court's orders might suggest a particular animus toward applicant...the judge who entered them has retired from judicial service."
First Coast News also indicated that it feared contempt proceedings from the judge, and prosecution from the district attorney's office. Justice Kennedy pointed out that "it does not appear that the court may itself institute a prosecution....The decision to charge and prosecute is an executive responsibility..." Further, "[a]lthough the State has not guaranteed applicant immunity from prosecution for future publication of the transcript, it has suggested that further publication will not be prosecuted....True, informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint. Warnings from a court have added weight...If it were to be shown that even the second order might give a reporter or television station singled out earlier any real cause for concern, the case for intervention would be stronger." Read Justice Kennedy's opinion here.
Friday, April 22, 2005
The Florida Supreme Court has ruled in favor of Time-Warner in a question of commercial misappropriation under a Florida Statute (section 540.08). Plaintiffs had brought suit alleging that the film The Perfect Storm, based on the book by Sebastian Junger, asking for "recompense". They also sued for common law false light invasion of privacy. The District Court granted the defendants' motion for summary judgment on all claims. On appeal, the Eleventh Circuit certified the question under review to the Florida Supreme Court.
The Florida court restated the question as follows: "DOES THE PHRASE `FOR PURPOSES OF TRADE OR FOR ANY COMMERCIAL OR ADVERTISING PURPOSE' IN SECTION 540.08(1), FLORIDA STATUTES, INCLUDE PUBLICATIONS WHICH DO NOT DIRECTLY PROMOTE A PRODUCT OR SERVICE?" It considered a prior case, Loft v. Fuller (Fla. 4th DCA 1981), in which a Florida court first construed the meaning of the statute, and which continues to be the interpretation applied. "In our view, section 540.08, by prohibiting the use of one's name or likeness for trade, commercial or advertising purposes, is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher. Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual's name or his personality with something else. Such is not the case here."
The Court concluded by finding in favor of the appellees. Read the opinion here. Read the amicus brief filed by Entertainment, Arts and Sports Law Section of the Florida Bar here. Jordan Tabach-Bank has published a case note in the Loyola of Los Angeles Entertainment Law Review on the proceeding: read Missing the Right of Publicity Boat here.
Wednesday, April 20, 2005
The DC Circuit has denied per curiam journalists Judith Miller and Matthew Cooper's request for a re-hearing en banc. The judges found the reporters' arguments completely unpersuasive. Judge Tatel filed a separate statement opining in part, "To avoid incarceration, they need not persuade the district judge that any accusation against them is false; they need only abandon their unlawful resistence (sic) and testify before the grand jury." Read the order here.
The Baton Rouge Advocate reports today that a Louisiana trial court judge has refused to order release of the 911 tapes made when Secretary of State Fox McKeithen fell at his home February 17. Judge Janice Clark indicated that because the tapes dealt with Secretary McKeithen's private health information she was disinclined to make them public. She cited McKeithen's privacy rights (including Section 5 of the Louisiana Constitution) in support of her decision. She gave the media five days to appeal her ruling.
Tuesday, April 19, 2005
The South Carolina Supreme Court has ruled that a 911 tape documenting a store owner's call for assistance is subject to the South Carolina Freedom of Information Act (S. C. Code Ann. Secs. 30-4-10 through 30-4-165 (1991 & Supp. 2004)). The Evening Post Publishing Company, publishing as the Post and Courier, had requested release of the tape, but the City of North Charleston, citing concerns over an upcoming trial of four men charged with attacking the man fatally shot in the ensuing incident, had refused to release the material. The newspaper lost at the trial and appellate levels and appealed to the Supreme Court.
On appeal, the Supreme Court noted that the Court of Appeals erred when it held that "harm is irrefutably presumed when the subject of the FOIA request will be evidence in a prospective criminal trial. We reject this categorical rule in favor of the usual case-by-case approach. The City was required to prove particular harm." Noting that "[t]he City argue[d] that pre-trial release of the tape would have led to substantial pre-trial publicity, which likely would have tained the entire jury pool, causing the venue of the trial to be changed", the Supreme Court still found that this particular harm was not the harm "that section 30-4-40(a)(3)(B) is intened to prevent. Rather, it is intended to prevent harms such as those caused by release of a crime suspect's name before arrest, the location of an upcoming sting operation, and other sensitive law-enforcement information. We do not close the door to pre-trial publicity ever factoring into a decision whether this exemption applies. We hold only that the financial burden of a potential change in venue did not justify withholding the 911 tape."
Noted the court, "[t]he City was not entitled to a presumption that it would be harmed by disclosure of the 911 tape's contents. The City was required to prove that it would suffer particular harm...The City's non-disclosure therefore violated FOIA."
Read the decision here.
The California Court of Appeals (Third Appellate District) has reversed the trial court, denying the request of the Los Angeles Times to compel the California Commission on Peace Officer Standards and Training (POST) to release certain information about its personnel under the California Public Records Act (Gov. Code section 6250 et seq.). POST had argued that the data was exempt because it was information ordinarily contained in confidential personnel files and was part of the officers' "employment history" as that term is understood within the meaning of section 832.8 subdivision (a) of the Penal Code. The appellate court agreed, saying, "As we will explain, all of the information sought by The Times was obtained by POST from peace officer personnel records within the meaning of Penal Code sections 832.7 and 832.8. Thus, the data is exempt from disclosure under section 6254, subdivision (k). " The Times had argued, however, that such information was information not expressly listed in Penal Code 832.8 as "components of a peace officer's personnel file". Therefore "they do not constitute personnel records within the meaning of Penal Code section 832.7 and...are not privileged under the CPRA." Read the entire opinion here.
Thursday, April 14, 2005
Two Sunday Telegraph journalists charged with breaking Zimbabwe's media laws have been acquitted by a judge, but still face charges for overstaying their visas. Read more about Zimbabwe and the press here at the Media Guardian's website.
Texas Supreme Court Rules in Favor of Houston Chronicle; No Actual Malice in Story About Smith County Prosecutors
In Hearst Corporation v. Skeen, the Texas Supreme Court has granted summary judgment for the Houston Chronicle, reversing the Court of Appeals. Three Smith County prosecutors had claimed that the paper had defamed them when it published articles which "reported that Smith County `is noted for its own brand of justice,' which is `driven by aggressive prosecutors who achieve some of the state's longest sentences.'" One of the articles commented, "`Critics say Smith County's justice system is tainted and inequitable.' It also declared that Smith County prosecutors `have been accused of serious infractions' including `suppressing evidence, encouraging perjury and practicing selective prosecution.'"
The three prosecutors named filed suit for defamation, the trial court denied the defendants' motion for summary judgment, and the court of appeals affirmed. Said the Supreme Court, "...[W]e need not decide whether the article was actually false to resolve this appeal. The plaintiffs can prevail here only if there is some evidence that Hearst and Moore [the reporter] published the article with actual malice. To establish actual malice, the plaintiffs must prove Hearst and Moore published the article with either knowledge of the falsity or reckless disregard for the truth...Knowledge of falsity is a relatively clear standard, but reckless disregard is much less so...Reckless disregard is a subjective standard, requiring evidence that Hearst and Moore entertained serious doubts as to the truth of the article at the time it was published. A libel defendant is entitled to summary judgment under Texas law if it can negate actual malice as a matter of law. Hearst and Moore supported their motion for summary judgment with numerous exhibits....Having negated actual malice, the burden shifted to the plaintiffs to raise a fact issue. The plaintiffs contend that Moore knew the article was false because the ten cases discussed in the article were a relatively insignificant sample from which to conclude that the Smith County D. A.'s office routinely engaged in unethical practices...The fact that Moore had not reviewed every indictment during D. A. Skeen's service...is not evidence that he knew the article contained false statements. Arguing the article was published with reckless disregard for the truth, the plaintiffs claim Hearst and Moore purposefully avoided the truth..."A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is." Bentley, 94 S. W. 3d at 596. We analyzed evidence of purposeful avoidance in Bentley...In contrast we held in Huckabee that the purposeful avoidance theory did not apply because "no source could easily have proved or disproved the "documentary's allegations." ...Like the filmmakers' research in Huckabee, Moore's five months of research involved interviewing parties on both sides of the issue...Furthermore, no source existed that could have easily disproved the criticisms of the Smith County D. A. 's office...The evidence simply does not support a purposeful avoidance theory."
Further, the Supreme Court found that the reporter "had many sources corroborating the criticisms of the Smith County D. A.'s office. Moore testified that he spoke to over twenty attorneys, who told him that the Smith County D. A.'s office: was too aggressive; was too closely aligned with law enforcement; was overly influenced by prominence of the victim or accused; had sentences that were harsh or excessive as compared to other jurisdictions; and had suppressed evidence or encouraged false testimony to win convictions. Although most onditioned their responses on anonymity, several attorneys, inluding perhaps most significantly a former Smith County D. A., allowed their names to appear in the article." Read the entire opinion here.
Monday, April 11, 2005
We are thrilled to announce that LexisNexis has agreed to sponsor all of the blogs in our Law Professor Blogs Network:
- AntitrustProf Blog (Shubha Ghosh (SUNY Buffalo))
- ContractsProf Blog (Carol Chomsky (Minnesota) & Frank Snyder (Texas-Wesleyan))
- CrimProf Blog (Jack Chin (Arizona) & Mark Godsey (Cincinnati))
- Health Law Prof Blog (Betsy Malloy (Cincinnati) & Tom Mayo (SMU))
- LaborProf Blog (Rafael Gely (Cincinnati))
- Law Librarian Blog (Joe Hodnicki (Cincinnati))
- Law School Academic Support Blog (Dennis Tonsing (Roger Williams))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (St. Mary's))
LexisNexis shares our vision for expanding the network into other areas of law, so please email us if you would be interested in finding out more about starting a blog as part of our network.
Sunday, April 10, 2005
Judge Lyobov Dednyova of Khamnoviki District Court has ruled against Igor Smykov, a Moscow father who had claimed that the American cartoon shows The Simpsons and The Family Guy were tending to corrupt children. Smykow had filed a lawsuit against RenTV, the broadcaster of the shows, in 2002. Mr. Smykov said his son Konstantin's awareness of cocaine came from watching the two series. The judge issued her decision after watching a marathon session of episodes of the shows. A account of the proceeding written by Francesca Mereu and Carl Schreck indicates that some observers believe the lawsuit might have been motivated by an attempt to pressure RenTV, which often carries criticism of the Russian government. See also short coverage here by the New York Post and from Reality TV World here providing the UPI coverage of the story.
Friday, April 8, 2005
In the matter of Westport Insurance Corporation v. Tuskegee Newspapers, Inc., Tuskegee Newspapers negligently failed to publish an announcement of a foreclosure notice requested by a local bank. The bank filed a complaint and the newspaper asked its insurer, Westport Insurance to defend it against the complaint pursuant to its policy. Westpost did so "under reservation of rights" and in 2003 filed an action for a declaratory judgment claiming that that "it owed Tuskegee neither a defense nor indemnification."
At the center of Westport's argument was the Errors and Omissions Endorsement, which read "[t]he coverage afforded by the Communications Liability portion of Section I, COVERAGE, is extended to include any negligent error, omission, misstatement or misleading statement by or with the permission of the NAMED INSURED or its subsidiary in matter which is uttered or disseminated..." Westport argued that coverage applied to materials actually printed in the paper and not to materials omitted. The trial court agreed and granted summary judgment to the insurance company. The newspaper, however, argued that "the word `matter', which is not defined in the Policy, should be read to refer to the newspaper in its entirety, thereby affording coverage to the wholesale omission of the legal notice, which is an `omission...in matter which is uttered or disseminated.'"
The appeals court went on to consider the appropriate manner of interpretation of such language under Alabama contract law. "When the contract at issue is an insurance policy, any ambiguity is `to be resolved in favor of coverage.'...Westport says that the language of the Errors and Omissions Endorsement is susceptible of only one reasonable interpretation, and under that interpretation, the Tuskegee Newspapers' omission of the foreclosure notice is not covered. This argument is based on the ideas that (1) the word `matter' must take identical meaning in both the communications liability provision and the errors and omissions provision; and that (2) `matter' means content actually printed in the Tuskegee News. We are persuaded by neither. As to the first, Westport's argument that simply because a contract must be read as a whole means that a particular word must be read identically wherever it is used in the contract is unsupported by Alabama law. Alabama law requires simply that an agreement `must be construed in its entirety...'[E]ven if we accepted Westport's argument that we must construe `matter' identically in each section... we would remain unpersuaded...For one thing, the word `matter' is an inherently flexible and imprecise term...Significantly, the word is nowhere defined in the Policy. Without definitions, we must give the words of the Policy `their customary and normal meaning.'...Because Westport's definition of `matter' is not the only meaning that term can reasonably be read to take, and because the Policy is still susceptible of more than one reasonable reading even if we give `matter' Westport's preferred meaning, we are constrained to conclude that th Policy is susceptible to the interpretations of both parties and therefore ambiguous. Under Alabama law, any ambiguity in an insurance policy is `to be resolved in favor of coverage.'..."
After further consideration of Westport's arguments the 11th Circuit "REVERSE[D] and REMAND[ED] with instructions to enter summary judgment for Tuskegee Newspapers." Read the entire opinion here.
Thursday, April 7, 2005
In a learned and closely watched decision, Silvers v. Sony Pictures Entertainment, the 9th Circuit has held that a writer who holds "an accrued claim for copyright infringement, but has no legal or beneficial interest in the copyright itself" may not "institute an action for infringement." In Silvers, the plaintiff had written a work for hire, the script for "The Other Woman," which had become a made for television movie. Some three years later Sony Pictures released the Julia Roberts vehicle "Stepmom." The makers of "The Other Woman" turned over some of their rights in "The Other Woman", but not the underlying copyright, to Silvers and she began an action against Sony Pictures. The District Court dismissed the action, and she appealed. A panel of the 9th Circuit affirmed, she requested a rehearing, and the 9th circuit voted to rehear the case (370 F. 3d. 1252 (9th circ. 2004)).
In order to determine whether Silvers had the right to bring the action, the majority engaged in a lengthy examination of the legislative history of the relevant sections of the Copyright Act, as well as the decisions in other circuits. "The Supreme Court has noted "Congress' paramount goal in revising the 1976 Act of enhacing predictability and certainty of copyright ownership."...As we have phrased it, "[c]ongressional intent to have national uniformity in copyright laws is clear."...That admonition makes sense, given the nature of intellectual property. Inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide. The bare assignment of an accrued cause of action is impermissible under 17 U. S. C. [section] 501(b). Because that is all Frank & Bob Films conveyed to Silvers, Silvers was not entitled to institute and may not maintain this action against Sony for alleged infringement of the copyright in "The Other Woman."
Read the entire decision here.
Minnesota Court of Appeals Upholds Lower Court Ruling; University Not Liable for Defamatory Statements
A former dean at Minnesota's St. Cloud State University may not hold the university liable for allegedly defamatory statements published in SCSU's student-run newspaper, the Chronicle, the Minnesota Court of Appeals has ruled in a March 22, 2005 opinion. Said the court, "Because the parties presented materials outside of the pleadings, the district court treated the motion as one for summary judgment and granted judgment to respondents. The district court concluded that because respondents have no editorial control over the Chronicle, they cannot be held liable for defamatory statement published in the Chronicle. This appeal followed." The Court of Appeals quoted from the Board of Trustees Policy, which states that "[s]tudent-funded publications shall be free to develop their own editorial and news coverage policies." Interpreting this language, the Court determined that "[t]he policy is binding on SCSU." Therefore, the district court was correct in ruling that the university had no control over the newspaper, and "[a] significantly differently relationship...from a private publisher's relationship with its newspapers. Respondents, unlike a private publisher, have no control over the content of the Chronicle. Despite the "plethora of connections" between The Chronicle and SCSU asserted by appellant and accepted by the district court for purposes of summary judgment, it cannot be disputed that respondents' policy prohibits SCSU from exercising any control over the content of the Chronicle." (footnote omitted).
The court also examined case law from other jurisdictions that concerned financial and editorial control of student newspapers on university campuses. The court noted that "[a]ppellant points out that the cases relied on by the district court are lower-level court opinions from foreign jurisdictions that do not reflect any broad or widespread pattern. We disagree with this assertion; the cases relied on by the district court simply follow the firmly established policy of giving students on college campus (sic) as many first amendment rights protections as the community at large." The case is Lewis v. St. Cloud State University. Read the full opinion here.
For one of the stories (since retracted) about Lewis published in the Chronicle, see here.
Wednesday, April 6, 2005
In what some have labeled a "libel by omission" lawsuit, the Washington Supreme Court has reversed the Washington Court of Appeals and reinstated the trial court's grant of a motion for summary judgment in a case in which a store owner sued a local tv station for defamation. In 1998, Spokane's KXLY Television aired a story about 40-year-old Glen Burson, who had wanted to wash the windows of Kitchen Interiors Showcase, a local business, in exchange for some candy. Mr. Glen Burson, who suffers from Down's Syndrome, was told to leave by the store's proprietor. Eventually, the owner called police, who arrested Mr. Burson. The situation escalated until Burson found himself charged "with criminal trespass and harassment, charges that Glen really doesn't understand." The owner received angry calls from KXLY viewers who watched the segment and followup newscasts. Finally, he filed a lawsuit against the station, charging that KXLY had defamed him since the newscasts "contained false statements and omitted material facts. The complaint alleged: Grant [a reporter for the station], while acting in the course and scope of his employment as a KXLY employee and KXLY were negligent and acted recklessly when they failed to describe as part of these telecasts the previous incidents and threats that had been made by Burson. Said negligence and reckless conduct constitute defamation, the omission of material facts and is libel by implication by KXLY and Grant regarding the reason Glen Burson was arrested." The Supreme Court disagreed, holding that "[t]o survive a defendant's motion for summary judgment, a plaintiff must make a prima facie showing as to all the defamation element. In a defamation by omission case, the plaintiff must show with respect to the element of falsity that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability....Here, the omitted information would not have negated the asserted defamatory implication in its entirety....Mohr has not made a prima facie showing that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Furthermore, the Court of Appeals' standard of "less arbitrary and insensitive" is not the correct test by which to measure defamation by implication caused by omitted facts." Read the entire opinion here.
The Eleventh Circuit has ruled in favor of Key West publisher Dennis Reeves Cooper, allowing his suit against the city and a police officer to proceed. Cooper had published several articles charging, among other things, that officer Robert Christensen had failed to investigate allegations of perjury against another member of the force. Christensen then sought to arrest Cooper under a Florida law that prohibits leaking information about an ongoing investigation. A federal district court judge dismissed Cooper's lawsuit and Cooper appealed. The Eleventh Circuit held that "the statute is content-based because the purpose of the statute is to stifle speech of a particular content, namely speech regarding pending investigations of law enforcement officers....While the district court focused on the fact that the statute only proscribed the dissemination of information on the basis of how it was obtained (i.e. pursuant to an investigation), it failed to analyze the statute's "purpose" to determine whether it was content-based vel non...." Read the Eleventh Circuit's decision here.
Tuesday, April 5, 2005
New York's highest court has determined that the New York Times may have access to some of the tapes and transcripts pertaining to September 11, 2001, pursuant to Freedom of Information Law requests filed by Times reporter Jim Dwyer under CPLR article 78 in early 2002. Some of the family members of victims later joined the action. The lower court "ordered disclosure of tapes and transcripts containing: (1) the 911 calls, to the extent that the words recorded are those of public employees and of the eight men whose survivors sought disclosure, but redacted to delete the words of other people who called 911; (2)the dispatch call, redacted to delete opinions and recommendations of Fire Department employees; and (3) the oral histories, redacted to delete opinions and recommendations and the "personal expressions of feelings" of the interviewees. The Appellate Devision affirmed these ruling, except that it ordered the "ersonal expressions of feelings" in the oral histories disclosed. We granted both sides' motions for leave to appeal...We now affirm the Appellate Division's order with two modifications: (1) we direct that the entire oral histories be disclosed, except for specifically-identified portions that can be shown likely to cause serious pain or embarrassment to an interviewee; and (2) we direct that the Department of Justice be given a chance to demonstrate that disclosure of the six potential exhibits would interfere with the Moussaoui case would deprive either the United States Government or Moussaoui of a fair trial." Read the entire ruling here.