Tuesday, May 31, 2005
We are pleased to announce the launch of two new blogs as part of our Law Professor Blogs Network:
These blogs join our existing blogs:
- 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) & Ellen Swain (Vermont))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (Texas Tech))
LexisNexis is supporting our effort to expand the network into other areas of law. Please email us if you would be interested in finding out more about starting a blog as part of our network.
The Washington Post is challenging an Ontario court's ruling that it has jurisdiction to hear a former UN official's allegation that an Internet Post story defamed him. The appellate court heard arguments in early March.The Post claims that the case does not have sufficient contacts with Canada to justify the court's jurisdiction. The case has been compared to the Australian case of Dow-Jones v. Gutnick. Read the lower court's opinion here.
Thursday, May 26, 2005
An investigative judge in Bergamo, Italy is ordering prosecutors to proceed with charges against writer Oriana Fallaci for defamation of Islam in her book The Force of Reason under articles 403 and 406 of the Italian Criminal Code, according to news reports in the Italian press. The first step is the drawing up of charges, based on the complaints by Adel Smith, who heads the Italian Muslim Union. If the case proceeds further, the prosecutors will serve Fallaci under the appropriate international agreement.
Professor Alberto Zuppi of the Louisiana State University Law Center, an expert in extradition law, notes that if, once properly served, Fallaci should refuse to appear voluntarily at the trial, the Italian government might have a great deal of difficulty extraditing her. The problem lies in the doctrine of dual criminality. While Italian law criminalizes the defamation of a state-recognized religion, the First Amendment is designed to protect expressions of opinion regarding religion and groups. The only group libel case ever decided by the Supreme Court, Beauharnais v. Illinois (1952) was subsequently seriously questioned by a 7th Circuit panel in Collin v. Smith (578 F. 2d 1197 (1978)). Even if we recognize group libel and group defamation in the U.S., is it a federal criminal offense? Of course, the Italian prosecution will argue that what Fallaci wrote is not opinion, but statement of fact, and that further, it is falsehood.
In addition, Professor Zuppi believes that Italy's four-pronged scheme for handling in absentia trials may have some procedural drawbacks that would also cause problems, further delaying and perhaps completely scuttling any chances that the U. S. would agree to extradite Fallaci to Italy, should she decline to appear.
For news reports see Crispian Balmer's May 25th article and a Washington Times piece. For more on dual criminality see Jonathan O. Hafen, Comment: International Extradition: Issues Arising Under the Dual Criminality Requirement, 1992 B.Y.U. L. Rev. 191.
Wednesday, May 25, 2005
Michigan Court of Appeals Upholds Dismissal of Defamation Suit, Reverses Sanctions Against Plaintiff
A Michigan plaintiff has lost his appeal against a slate of tv stations in a defamation lawsuit but won the appeal for a reversal of the sanctions imposed by the trial court. In George v. Senate Democratic Fund, a physician running for state senate had objected to a campaign ad running on several Kalamazoo-area tv stations that suggested that because his medical practice did not take Blue Cross insurance he would be an unfortunate choice for the legislature. The plaintiff's campaign aid called the opponent's campaign office and "demand[ed] that the advertisement be pulled within fifteen minutes, issu[ed] press releases denouncing the advertisement, [held] a press conference, and [ran] an advertisement defending himself and attack[ed] LaForge in the Kalamazoo Gazette ....Notwithstanding the advertisement, plaintiff won the election."
The trial court "determined as a matter of law that the gist or sting of the advertisement was not defamatory..." and "[p]laintiff conceded that he sustained no actual monetary loss or mental or emotional distress, though he did claim general irritation and concern for his reputation as a physician." Dr. George asserted however that this action involved "defamation per se" because "it concerned plaintiff's profession or employment. We disagree. MCL 600.2911(1) specifically mentions and makes "actionable" two specific types of common law defamation per se: "[w]ords imputing a lack of chastity" and "words imputing the commission of a criminal offense." Defamation regarding one's business or profession is not made specifically actionable, and is therefore governed by the remainder of MCL 600.2911. MCL 600.2911(2)(a) and (b) limit recovery to actual damages, unless the plaintiff gives notice to publish a retraction and allows a reasonable amount of time to do so. Here, plaintiff did not request a retraction....Further, plaintiff demanded that defendant take action within fifteen minutes....
"We conclude, however, that the court erred in imposing sanctions on plaintiff and his attorney for filing this action in violation of MCR 2.111(D)(2)....The court concluded that the action was not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law...."
The appellate court found that since the plaintiff's argument "rests on the legal and factual premises that Michigan recognizes defamation by implication" and that the advertisement actually made certain implications that might have suggested conclusions to its viewers that the defendants knew were false, and that the plaintiff did suffer "adequate damages" according to a prior Michigan case, "none of these positions lacked factual support or were unwarranted by existing law or a good-faith argument for the extension, modification or reversal of existing law."
Read the entire decision here.
Sunday, May 22, 2005
The Media Guardian reports that Hello! has won its appeal against rival OK over publication of the Catherine Zeta-Jones/Michael Douglas wedding pictures, a legal battle that has been going on in various arenas since 2000. For the Guardian's extensive coverage, as well as legal commentary by Dan Tench, see the Guardian's pages beginning here.
Michael McCann and Greg Skidmore's Sports Law Blog has posted an item about sportscaster Bob Lobel's defamation suit against cartoonist Darby Conley. Thanks for Professor McCann for alerting me to this post.
Wednesday, May 18, 2005
Ofcom, the agency in charge of monitoring UK media, has ruled that the BBC's broadcast of "Jerry Springer: The Opera" was not in breach of official standards. "Ofcom recognises that a large number of people were deeply offended by the transmission of "Jerry Springer: The Opera". Nevertheless, it is Ofcom's view that the show was an important work and commentary on modern television....The programme as broadcast was not only clearly labelled and signposted, but was preceded by programmes which aimed to put the whole show in context."
Read Ofcom's decision here.
Sunday, May 15, 2005
In In re Application of American Media, the plaintiff attempted to obtain the unpublished manuscript of a former employee who used her brief employment at one of the corporation's magazines, the Star, as fodder for a novel entitled "Dischalicious." The employee, Stephanie Green, admitted signing a confidentiality agreement, but resisted turning over a copy of the manuscript, saying "Yes, it was inspired by my life, but I haven't talked about what went on at the Star. The book is obviously a work of fiction." American Media argued that it needed the manuscript in order to "plead in its complaint the specific statements made by Green and support its claims for breach of the Confidentiality Agrement and breach of fiduciary duty. AMI also [sought] copies of any documents evidencing Green's communications with prospective publishers...so as to obtain Green's description of the manuscript and `to give the publishers notice of Green's contractual obligations so that they won't tortiously interfere with such obligations.'
After noting that CPLR 3102(c) "`is available only where there is a demonstration that the party bringing such a petition has a meritorious cause of action and the information being sought is material and necessary to an actionable wrong' and `not allowed to determine whether fact supporting a cause of action exist', Judge Joan Madden found that "AMI [had] not met its burden of demonstrating that it has a potential cause of action against Green for breach of contract or breach of fiduciary duty...." In her approximately eight month tenure at the Star, Green served as a fact checker and researcher and did not have "access to trade secrets or proprietary information..., nor does AMI assert that Green intends to use any information to unfairly compete with AMI."
Read the entire decision here.
Friday, May 13, 2005
The Seventh Circuit has ruled that model June Toney's state right of publicity claim under an Illinois statute (the Illinois Right of Publicity Act) is not pre-empted by federal law and has remanded the case to the district court. In Toney v. L'Oreal Corporation, the court found that Toney had made clear that she had not consented to the continued use of her image, thus that Baltimore Orioles v. Major League Baseball Players Association can be distinguished from this case. Read the entire opinion here.
Wednesday, May 11, 2005
CNN is reporting that the French regulatory agency CSA (Conseil supérieur de l'audiovisuel) has told the French subscription channel Canal Plus that it may be fined if it violates a rule which forbids political and cultural sensibilities. The channel regularly broadcasts a show, Les Guignols de l'Info, which satirizes the issues of the day. The episode in question poked fun at Pope Benedict XVI and his membership in the Hitler Youth. The French Catholic Church has also filed a protest. Read the CNN story here. Read more about the CSA here. Read more about the Church's protest here. The webpage for Les Guignols de l'Info is available here.
"Les guignols" take their inspiration from the traditional French puppet Guignol, who is much like the English puppet Punch of Punch and Judy.
Tuesday, May 10, 2005
In DiBella v. Hopkins, the 2nd Circuit has upheld a lower court ruling that under state law, the public figure plaintiff's burden of proof of falsity in a defamation case is properly clear and convincing, rather than preponderance of the evidence. The plaintiff had argued, naturally enough, that "had the trial court charged preponderance of the evidence as the burden of proof, he would have succeeded on all of his claims..." rather than just on one.
The appellate court acknowledged that the state courts have not fully resolved this issue.
"When a state offers full protection to a federal right, state law necessarily disposes of the constitutional question...If, however, the state standard is not fully protective of a given right, a court must reach the federal constitutional question...In this case, then, we must examine state law to determine whether it provides for the highest standard available--clear and convincing proof of falsity--thus rendering a discussion of the federal constitutional standard unnecessary. Here, we are persuaded that state law requires clear and convincing proof of falsity, and decline therefore to address this open question in federal constitutional law. Having said that, we recognize at the outset that the New York Court of Appeals has not addressed New York's standard of proof for falsity in a defamation case. In the absence of authoritative law from the state's highest court, we must either (1) predict how the New York Court of Appeals would resolve the question, or, if state law is so uncertain that we can make no reasonable prediction, (2) certify the question....We have considered and rejected the necessity of certifying this question of state law to the New York Court of Appeals....We do not believe this case presents any of the exceptional circumstances that would justify using the certification procedure. Rather, in light of existing authority...we must undertake the imprecise but necessary task of predicting on a reasonable basis how the New York Court of Appeals would rule...."
Read the entire opinion here.
Sunday, May 8, 2005
The ongoing Apple v. Does case adds to the continuing confusion about just who should be considered a journalist, as Julie Hilden discusses in a piece on CNN's website April 27th. The California-based Bear Flag League has submitted an amicus brief in the O'Grady case, available along with other relevant documents through the Electronic Frontier Foundation website. For a review of the Vanessa Leggett case, which Hilden also mentions, see Daniel Scardino, Vanessa Leggett Serves Maximum Jail Time, First Amendment-Based Reporter's Privilege Under Siege. Leggett was a part-time English instructor who refused to turn over her notes pursuant to a grand jury subpoena; she had gathered them during the course of her research for a true crime work. In part because because it was to be her first book, and because Texas has no shield law, her claim that she was entitled to a professional journalist's privilege came into question. The Supreme Court later denied cert (535 U.S. 1011 (2002)). Read the lower court O'Grady ruling here. See the Reporters' Committee for Freedom of the Press Shields and Subpoenas page here.
Friday, May 6, 2005
The District of Columbia Court of Appeals has just ruled that the FCC "exceeded the scope of its delegated authority" in promulgating the controversial Flag Order in the case of American Library Association v. Federal Communications Commission. This new regulation would have allowed the use of technology to prevent the "unauthorized copying and redistribution of digital media"., a feature very much desired by the motion picture industry but opposed by some consumer groups. The court examined the agency's grant of jurisdiction under the Communications Act of 1934 and related statutes and determined that it did not have sufficient authority to enact the regulation under review. Read the court's decision here.
Wednesday, May 4, 2005
The Media Guardian reports that Ofcom, the British agency responsible for regulating the media, may also find itself regulating the internet because of the reach of proposed new changes to the EU's Television Without Frontiers Directive. Television broadcasts over the 'net might then come within Ofcom's purview. Read the Guardian's story here. Read more about the Directive here.
Monday, May 2, 2005
Maine Supreme Judicial Court Orders Release of Investigative Records in Alleged Cases of Sex Abuse by Catholic Priests
In a decision court watchers have anticipated for eleven months, the Supreme Judicial Court of Maine has ordered the release of records pertaining to "allegations of sexual abuse by eighteen deceased Roman Catholic priests" held by the Maine Attorney General, some dating back decades. The Court affirmed a lower court's judgment "to the extent that it ordered the disclosure of the records, but conclud[ed] that the court should have also ordered the records redacted so as to eliminate the names and other identifying information of the living persons who are cited in the records. We therefore vacate the judgment and remand for further proceedings so that the records will be subject to redaction before their disclosure." Blethen Maine newspapers, which publishes several papers in the state, had sought the release of the records under the state's Freedom of Access Act (FOAA) statute from the Attorney General beginning in 2002. The AG had refused, "based on his conclusion that `disclosure of the investigative records relating to the deceased priests would `constitute an unwarranted invasion of personal privacy' within the meaning of 16 M.R.S.A. [section] 614 [(Supp. 2004)] of the Criminal History Record Information Act.'"
The state had argued that release of the records might constitute an invasion of privacy into the lives of those named, including living victims and witnesses. The Court recognized the heightened privacy interests of these individuals and found that based on the appropriate balancing test the privacy interests of the dead could be overcome by public policy concerns but those of the living could not. "The Superior Court concluded, in effect, that any residual personal privacy rights that could be claimed by those named in the documents sought by Blethen are nominal and `must bend to the public interest.' The court declined to redact the names of living persons and other identifying information because of `how much information would have be taken out and the extent to which this information is likely already known, at least at a local level.' We have concluded that although the privacy rights of the deceased priests and their families are, at most, minimal, the residual personal privacy rights of the living individuals named in the records persist, albeit tempered by the manner in which the information was reported to public and church officials....Accordingly, we conclude that the public interest in the disclosure of the records is substantial and the public interest supporting disclosure can be realized even with the redaction of all identifying information regarding the persons identified in the records other than the deceased priests. On balance, the identified public interest exceeds the privacy interests associated with the records once they are redacted. We therefore affirm the court's determination that the records requested by Blethen should be disclosed...." The decision was 4-3.
Read the entire opinion here.
The 10th Circuit Court of Appeals has affirmed the jury verdict in the case of Century Martial Art Supply v. National Association of Professional Martial Artists and International Ikon, Inc.,, originally filed in the Western District of Oklahoma. Century claimed among other things that NAPMA and IKON had engaged in "defamation, tortious interference with existing and/or prospective business relationship, deceptive trade practices, and unfair competition."
Century sells martial arts supplies to martial arts schools, many of which are members of NAPMA. In 2001, NAPMA began marketing rival products to its members "under the IKON brand name." In its mailings to its members "it included a chart which compared three IKON uniforms with three Century uniforms....The information about Century's unifrom was false and the discount information was misleading." As a result, Century's sales began declining. "The President/CEO of Century contacted Graden to ask that he stop publishing inaccurate information about Century's uniforms. Graden responded that `he would print whatever he wanted; it was his magazine.'" Some of the information from the comparison chart was reprinted in an e-mail NAPMA sent to its web-site subscribers. In turn, that e-mail was reprinted in Graden's Martial Arts Professional magazine. NAPMA repeated the allegations about the fabric content (cotton/polyester percentages) and weight of Century's uniforms but noted that Century stated these figures were false....The e-mail also stated `If the comparison is inaccurate, a letter from Century is all that is needed. Instead they use the profits that they get from the industry to attack us...We receive weekly calls saying Century is out to get us. I guess this is the first shot. What is Century afraid of?'....Century indicated at trial that it already had sent such a letter when these statement[sic] were made."
The 10th Circuit noted that the jury found for the plaintiff "on all four claims and found the evidence that the defendants acted with reckless disregard was clear and convincing. The jury award Century both compensatory and punitive damages." It rejected the defendants' claims on appeal that the district court "erred in permitting the jury to consider privileged or constitutionally protected statements in support of Century's claims", finding that "were we to consider these belated defenses now, it would be Century who could claim a miscarriage of justice. Century prepared for trial and presented evidence without anyn otice from defendant that reference to statements made by Graden would violate his First Amendment rights or were in some way protected by statutory privilege." The appellate court was also unconvinced by defendants-appellants' other arguments. Read the 10th circuit's opinion here.