Tuesday, July 19, 2005
The Director-General of the BBC denied accusations that he told journalists not to use the word "terrorist" during BBC coverage of the July 7 attacks on London buses and subways. Mark Thompson said however that reporters might have been aware that network guidelines do require them to "think carefully" about language. But he pointed out that the extremity of the situation made clear that terrorism was a likely conclusion for anyone watching the coverage. Thompson's comments were made in the context of the BBC's renewal before the House of Lords. See Jason Deans' story here.
Arizona Supreme Court Holds That 1st Amendment Protects Letter To Editor Calling For Killing Innocent Muslims
In Citizen Publishing Co. v. Miller, the Arizona Supreme Court has held that a newspaper may not be held liable for intentional infliction of emotional distress "for printing a letter to the editor about the war in Iraq."
In December of 2003, the Tucson Citizen printed the following letter from Dr. Emory Metz Wright Jr. "We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a 'Holy War' and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis." As a result, the newspaper received numerous responses criticizing Wright's views, including one from Aly W. Elleithee, one of the real parties in interest in the case. In January of 2004 Elleithee and Wali Yudeen S. Abdul Rahim filed this action in trial court in Pima County against both the Citizen and Wright. The Citizen filed a 12(b)(6) motion. The trial court dismissed the plaintiffs' assault claim, but allowed the IIED claim to proceed and also found that "a public threat of violence directed at producing imminent lawlessness and likely to produce such lawlessness" might exist, thus that the Citizen's claim that Brandenburg controlled here was not necessarily persuasive. The appellate court refused to accept jurisdiction and the Supreme Court agreed to hear the case.
According to the Court, "[t]he only issue is whether the publication of [Wright's] letter is protected by the First Amendment." Plaintiffs offered in the alternative that the words here were "incitement", "fighting words" or a "true threat." The Court rejected the incitement alternative, judging that the letter "however offensive, the letter did not advocate `imminent lawless action.' The suggestion that `we' execute Muslims was premised on the occurrence of some future `assassination or another atrocity.' Nor were the words likely to produce imminent lawless action. The statement was made in a letter to the editor, not before an angry mob. Indeed, the complaint was filed more than a month after the challenged statements were made and did not allege that a single act of violence had ensued from the publication nor that such violence was imminent. Rather, the only thing that appears to have resulted from the challenged speech was more speech..."
Next, the Court considered and rejected the suggestion that Wright's were "fighting words." "This case does not fall within the fighting words exception...The statements at issue were made in a letter to the editor, not in a face-to-face confrontation with the target of the remarks. While the letter expresses controversial ideas, it contains no personally abusive words or epithets. The letter is neither directed toward any particular individual nor likely to provoke a violent reaction by the reader against the speaker."
Finally, the Court examined the notion that "the letter constituted a "true threat....Given both the content and the context of the statement at issue here, we conclude that it is not a constitutionally proscribable true threat. First, the letter involved statements with a plainly political message. Indeed, the comments arose in the context of a discussion about a central political issue of the day...Such statements are far less likely to be true threats than statements directly purely at other individuals....Second, this expression occurred in the letters to the editors section of a general circulation newspaper, hardly a traditional medium for making threats, and a public arena dedicated to political speech. Speech that is part of this sort of public discourse is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations.... Third, the action "threatened" in the letter was that "we" should take deadly measures in response to future assassinations and other atrocities. The letter is unclear as to whom "we" refers--it could be read as referring to the United States armed forces or to the public at large....Given the letter's conditional nature and ambiguity, we do not believe that a reasonable person could view that letter as "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals....In short, we conclude that this letter does not fall within one of the well-recognized narrow exceptions to the general rule of First Amendment protection [sic] for political speech."
Read the entire opinion here.
Monday, July 18, 2005
Roman Polanski's long awaited defamation suit against Conde Nast and its publication, Vanity Fair, finally began today, after Britain's high court ruled earlier this year that Polanski could give testimony via a video link from Paris. Polanski is suing over a 2002 article in which the magazine stated that he made advances toward a woman while he was on his way to Sharon Tate's funeral in 1969. Tate, Polanski's late wife, was among the people brutally murdered by followers of Charles Manson, for which he received the death sentence (later reduced to life in prison). Read Claire Cozens' article here. Read more about the Manson trial at Doug Linder's Famous Trials website here.
Friday, July 15, 2005
U. S. District Court Judge Jeffrey Miller has dismissed the invasion of privacy and copyright infringement case against the Associated Press and photographer Seth Hettena. He found that the pictures which formed the basis of the suit were newsworthy, and that the AP broke no law in publicizing them. He also found no merit in the invasion of privacy claims, noting that the subjects of the photographs chose to be photographed. One of the plaintiffs' attorneys said they may refile the copyright claims. Read the story here.
In order to decide whether journalists who covered the current controversy over whether intelligent design (ID) should be taught in the Dover Area, Pennsylvania, schools, should be required to testify, the federal judge presiding over the case will examine those reporters' notes. The two reporters will turn over their source materials to Judge John E. Jones III in order for him to decide whether the reporters' testimony is relevant to the proceeding. If he decides it is not, he will quash the subpoenas issued to the journalists by the school board, which hopes to defend the changes in its curriculum made last year. Those changes include the introduction of information on intelligent design, which presents the notion that the universe must have been created by an unnamed but purposeful force. The Thomas More Law Center, of Ann Arbor, Michigan, is providing legal assistance to the school board. Eight families are challenging the changes in the curriculum, saying that ID is simply creationism dressed up in secular language. See a story here about the judge's decision to review the notes, an ACLU press release about the lawsuit here, and a December 2004 story from the Pittsburgh Post-Gazette about the lawsuit here.
FindLaw columnist John Dean has posted an interesting piece on Karl Rove, in which he discusses among other things the applicability of the Intelligence Identities and Protection Act to Rove's presumed situation, since Time reporter Matthew Cooper has now identified Rove as his source. According to Dean, it's not clear that the Act applies yet, if at all. But it's possible that other laws were violated, and he goes on to discuss a prior case involving Jonathan Randel, a government employee convicted of leaking information in 2002. Further, he discusses whether, if New York Times reporter Judith Miller told Rove about Valerie Plame (and not the other way around), that lessens Rove's legal problems. His conclusion--not necessarily. See his column here.
Meanwhile, yet another source, speaking on condition of anonymity (what, again?) says that Karl Rove told the grand jury he learned about Valerie Plame's identity from reporters, then talked about her with "a Time magazine reporter" (presumably Matthew Cooper) later. Read AP writer John Solomon's story here.
Variety and other media report that Bavaria Film admits it engaged in product placement, which is illegal in Germany, even if disclosed. An investigation by Evangelischer Pressedienst (EPD) revealed that covert pitching for products and issues, including Turkish membership in the EU, had been going on for years. Several execs have now been fired and an investigation continues, not only into the activities of Bavaria Film, which is a public entity, but into what may have been going on at Germany's commercial networks. Read more in Variety here and in Hollywood Reporter here.
Thursday, July 14, 2005
Director Roman Polanski, who has lived in France since he pled guilty in 1977 in a U.S. court to having sex with a 13-year-old girl, and then fled the country before he was sentenced, is preparing to testify via video link in his defamation case against Vanity Fair magazine. He claims that the periodical libelled him in a 2002 article when it wrote that he flirted with a Swedish woman while on the way to his wife's funeral in 1969. A lower court had ruled that in order to proceed with his case, Polanski would have had to come to London to testify. Setting foot in England would have put him at risk of extradition to the United States. But England's highest court overturned the lower court ruling, allowing him to use a video link from Paris instead. France will not extradite him to the U.S. Read Mike Collett-White's article here. Read the opinion of the House of Lords overturning the lower court here.
Ruling that Michael Moore's statements were "factual and substantially true", U. S. District Court Judge Paul D. Borman has tossed James Nichols' lawsuit against the filmmaker without allowing the case to proceed to trial. Nichols had objected that Moore's portrayal of him in the 2002 film "Bowling for Columbine" might cause viewers to believe that he actually participated in the Oklahoma City bombing of 1995. He also claimed that Moore's film caused him emotional distress and invaded his privacy. Borman considered Nichols a public figure for purposes of the suit, since the brother of convicted bomber Terry Nichols "voluntarily injected himself into the public controversy surrounding the bombing". Read more about the ruling here and here.
The Guardian, ITV, Reuters and other media outlets lost their appeal to keep hold of photographs, tapes and other materials related to the 2004 pro-hunt rally in Parliament Square, which resulted in allegations of police violence against demonstrators. In order to investigate the allegations, John Cummins of the Independent Police Complaints Commission, had requested the materials. But Andrew Nicol, representing the media, maintained that Cummins did not have adequate authority under the relevant statute to make such a sweeping request. However, the ruling of the judge in the case has been upheld, and Mr. Nicol's further request for judicial review has been denied. See the Media Guardian's coverage here. See more about the 2004 rally and fox-hunting here. See more about the Independent Police Complaints Commission here.
Wednesday, July 13, 2005
As The Day (July 15) nears, speculation on which character in the Harry Potter universe will bite the dust by the end of Harry Potter and the Half-Blood Prince is running rampant. Security is still tight in order to make certain that no one gets a copy of the book before the Big Day. Read more about Potter security in the Christian Science Monitor here.
The two men charged with stealing two copies of the book in June were stopped dramatically, and author J. K. Rowling got an injunction against them--read an account here. She and her lawyers have also gone after all sorts of "take-offs" on the Harry Potter books, such as Tanya Grotter and the Magic Double Bass--read Tim Wu's article about their odyssey here. Are these books unprotected HP ripoffs, or protected parodies? Somewhat difficult to tell--the Barry Trotter parodies are available here in the U. S., though (you can read Michael Gerber's Barry Trotter and the Unauthorized Parody and Barry Trotter and the Unnecessary Sequel any time you like).
In a reversal of its long-standing policy, the BBC has now changed the way it handles copyright for independent companies that provide it radio programs for broadcast. Instead of keeping the copyright for such programs, it will now license the programs for 10 years. The companies will hold their own copyright in the material. While the deal is not quite as liberal as that in place for independent television companies, which get a five year licensing deal, it's still much better than what faced the radio producers previously. In addition to keeping copyright, the producers will be able to sell their programs abroad and exploit the possibility of creating new works through other technologies such as podcasting. The industry group Radio Independents Group (RIG) is reported to be pleased with this outcome. Read Julia Day's story here.
The German mag Die Bunte, mentioned in one of yesterday's posts, is a popular mag that features stories about celebs, politicians and those currently in the public eye. It also carries hot news, of the Time and Newsweek variety. Thanks to Michael Botein of New York Law School for pointing out that some folks might not know of the popularity of Die Bunte over here.
Tuesday, July 12, 2005
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Fifth Circuit Upholds Lower Court Dismissal of Lawsuit Brought by Former Swiss Ambassador, Wife Based on Lack of Jurisdiction
The U.S. FIfth Circuit has upheld a lower court ruling dismissing a lawsuit involving defamation, IIED and other claims against Hubert Burda Media, Bertelsmann AG, and Gruner & Jahr on the basis of lack of personal jurisdiction, finding that "none of [the] appellees has sufficient contacts in Texas to satisfy due process limitations on general or specific jurisdiction in the forum state." Thomas Borer, former Swiss Ambassador to Germany, and his wife, a former Miss Texas, brought the action based on stories (later admitted to be false) that Borer had had an affair with a beautician, and that the plaintiffs alleged cast Mrs. Borer in an unflattering light as "accustomed to playing the role of wife to an unfaithful husband...". As media scrutiny continued, "the couple suffered negative ramifications. In April 2002, Borer was recalled to Switzerland and was stripped of his ambassadorship. Around the same time, Fielding [Mrs. Borer] suffered a miscarriage....The couple alleges that they suffered injury to their reputation amongst their family, friends and acquaintances in Texas."
The district court examined the contacts that the magazine which published the stories had in Texas and found them insufficient to assert jurisdiction. "Knowledge that sufficient harm would be suffered in Texas is conspicuously lacking. In addition to reporting German activities of German residents, the Bunte articles were directed at a German audience, as demonstrated by the fact that all of the articles were published in the German language, and 97% of the magazine's issues were sold in Germany. Moreover, the plaintiff's mere residence in the forum state is not sufficient to show that the defendant had knowledge that effect would be felt there...Here, Fielding and Borer have not even proven that they did, in fact, ever reside in Texas during any of the time relevant to this suit." Plaintiffs also failed to establish that the court had any personal jurisdiction over the publishers. Thus, "since the brunt of the harm of the alleged libel was not suffered in Texas and the publishers did not meaningfully direct their activities toward Texas" the 5th Circuit upheld the district court's grant of dismissal in the case. Read the opinion here.
Monday, July 11, 2005
The United Kingdom's Department for Constitutional Affairs has released its Post Consultation Survey on cameras in the courtroom. Photographic equipment has been banned from UK courtrooms since 1925. Lord Falconer, the Lord Chancellor, announced he had not made a decision on whether to allow cameras in any courtroom. Most proponents of courtroom cameras thought that justice should be seen to be done, and that broadcasting, whether over the airwaves or via the Internet, would assist in this enterprise. Opponents thought that the right to a fair trial would be infringed. In between were those who thought that some proceedings in open court, or in some types of courts, such as the Courts of Appeal, might be broadcast, but others should not. The paper is available here.
Doug Clifton, the Cleveland Plain Dealer's editor, said in a June 30, 2005 column that he is sitting on two stories because "[p]ublishing the stories would almost certainly lead to a leak investigation and the ultimate choice: talk or go to jail." The column has made headlines across the pond. See the PD story here. See Media Guardian coverage here.
Meanwhile, commentary continues to pour in from abroad. In a piece that appeared in Beirut's The Daily Star, David Ignatius sympathizes with the New York Times' Judith Miller but maintains that this case makes bad law. The Jamaica Observer supports Miller's position. See here.
Time's website currently has a piece called "When To Give Up a Source." See here. (Payment may be required).
Friday, July 8, 2005
Plaintiff Karla Knafel objected to the following words that Chicago Sun-Times reporter Richard Roeper wrote about her and her relationship with Chicago Bulls star Michael Jordan: "...[t]here are some women who see a famous horny guy, blink their eyes and hear the ka-ching of a cash register. Women like Karla Knafel....Knafel was once an aspiring singer. She's now reportedly a hair designer. But, based on the money she's been paid already and the additional funds she's seeking in exchange for her affair with Jordan, she's making herself sound like someone who once worked in a profession that's a lot older than singing or hair designing." Knafel claimed that the words complained of were suspetible of only one construction. On that basis she sued for defamation. The Sun-Times and Sun-Times Online moved to dismiss and the lower court granted the motion. The appellate court heard the case de novo. It first established the relevant Illinois law: "...a statement which falls into a category supporting a claim for defamation per se will not be found to be defamatory if it `reasonably capable of an innocent construction.'" Next it considered Knafel's claim that the dismissal was improper because "the innocent construction rule cannot be applied on a motion to dismiss in federal court" and that the lower court judge "looked to matters outside the pleadings in making her decision, thus converting the motion to a motion for summary judgment without giving notice and allowing Knafel time to engage in discovery."
The court considered that there was an innocent interpretation of Roeper's words other than he intended to accuse Knapel of prostitution. "We see two significant concepts in this passage [the passage quoted above]. Roeper says Knafel was having an "affair" with Jordan. It is reasonable to interpret that word to imply a longer term relationship than is contemplated in the Illinois definiation of prostitution. Secondly, as we said, despite the reluctance of counsel for the SUn-Times to concede the obvious at oral argument, Roeper almost certainly refers to prostitution when he talks about an "older" profession. But it is reasonable to read the passage as saying that although Knafel was having an affair (i.e., a longer term relationship) with Jordan, by demanding so much money from him she is demeaning herself. Roeper does not say Knafel has committed the crime of prostitution but, rather, she is making herself sound like she has. The words "sound like" imply similarity, but not identity. In short, Roeper is hard on Knafel as revealed by the headline of the column: "Is Karla Knafel's affection really worth "5 million?" But his words are reasonably (and easily) subject to an innocent construction; i.e., one that stops short of saying she committed a crime."
With regard to the lower judge's use of use of matters outside the pleadings, the appellate court dismissed this objection. "Knafel's support for her contention...is Judge St. Eve's use of the phrases "non-disclosure agreement" and "non-disclosure contract" to describe the agreement between Knafel and Jordan; the argument seems to be that the Cook County judge used the phrases; therefore, because Judge St. Eve also used the phrases, she must have considered the Cook County decision--a matter outside the pleading--in her evaluation of this case. The argument is an air ball. A nondisclosure agreement is what was involved between Knafel and Jordan. How else was the district judge to refer to it? We're quite sure the judge could have come up with the language all by herself."
Read the opinion here.