Tuesday, September 27, 2005
Marijan Krizic has pled not guilty to charges of contempt in that he published the identity of a witness and published testimony in violation of orders to keep such information sealed from the International Tribunal now sitting at the Hague. Krizic worked for the Croatian paper Hrvatsko Slovo (Croatian Voice) at the time. He made his plea via the Internet. The Tribunal has also charged various other journalists with contempt for publishing information about the ongoing proceedings. Read more here and here.
Professor Michael Botein, New York Law School, Visiting at Southern Illinois University, 2005-2006, and Professor Dariusz Adamski, Wroclaw University, Poland, are the authors of The FCC's New Indecency Enforcement Policy: A Cautionary Tale, forthcoming in New York Law School's Media Law & Policy Journal. Professor Botein has kindly provided a pre-publication version, available here.
International Criminal Tribunal Announces Arrest and Transfer of Rwandan Media Head Joseph Serugendo
The International Criminal Tribunal for Rwanda has announced that Joseph Serugendo has been arrested and sent to the Tribunal's detention center in Arusha, Tanzania. Serugendo was a "former member of the Comité d’Initiative, the steering committee of Radio Télévision Libre des Mille Collines, (RTLM) and a former member of the National Committee of the Interahamwe militia." He was "also Technical Chief of Radio Rwanda and RTLM. He is charged with five counts of conspiracy to commit genocide, genocide, complicity in genocide, direct and public incitement to commit genocide and persecution as a crime against humanity. Serugendo is alleged to have acted in concert with others including Ferdinand Nahimana, Jean-Bosco Barayagwiza, Phocas Habimana and Félicien Kabuga, to organize and conduct the 1994 genocide in Rwanda" according to the Tribunal's press release. Read it here. Read more in the New Times, a Rwandan newspaper, here, and in a Reuters story here.
The Ontario Court of Appeal has refused to assert jurisdiction in the case of Bangoura v. Washington Post. Cheickh Bangoura had claimed that certain articles published in the Washington Post had defamed him and he had filed suit in the Ontario courts, although he did not live in Ontario and the Post only had seven subscribers in Ontario. The Washington Post filed for dismissal, arguing that Ontario had no substantial connection with either party, and no connection with the action. The motions court judge (lower court judge) dismissed the Post's action and found jurisdiction. However, the Court of Appeal, applying the relevant law, analyzed the case as follows:
"Even if the connection is significant, however, the case for assuming jurisdiction is proportional to the degree of damage sustained within the jurisdiction. It is difficult to justify assuming jurisdiction against an out-of-province defendant unless the plaintiff has suffered significant damage within the jurisdiction.
 In an affidavit filed by Mr. Bangoura, he deposed:
As a result of the continued action of the Washington Post, I have sustained damages in Ontario and elsewhere in that my opportunities for economic advancement in my profession have been adversely affected.
No details are provided. The distribution of the articles was minimal. Only Mr. Bangoura’s lawyer accessed the two articles on the Washington Post Internet database. Whatever damages were suffered by Mr. Bangoura’s losing his job with the UN, more than three years before he took up residence in Ontario, are not damages suffered in Ontario. In my view, there is no evidence that Mr. Bangoura has suffered significant damages within Ontario....
 The motion judge concluded that the defendants had no connection to Ontario, but observed at para. 22(2) that the Washington Post is a major newspaper which is “often spoken of in the same breath as the New York Times and the London Telegraph.” He concluded that “the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided.”
 I agree with the submissions of counsel for the appellants that there is no significant connection between the Washington Post defendants and Ontario. I cannot agree with the motion judge when he concluded that the appellants “should have reasonably foreseen that the story would follow the plaintiff wherever he resided.” It was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation...."
The appellate court also discussed the demands of comity and public policy, especially with regard to foreign jurisdictions. "36] In considering this factor, the motion judge referred to New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a judgment of the United States Supreme Court, and Hill v. Church of Scientology,  2 S.C.R. 1130, a judgment of the Supreme Court of Canada. In New York Times v. Sullivan, the United States Supreme Court held that public officials could only succeed in a defamation claim where they could establish that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” See New York Times v. Sullivan at p. 280.
 In Hill v. Scientology, the Supreme Court of Canada refused to adopt the so-called actual malice rule in New York Times v. Sullivan. Counsel for the Washington Post had filed on the return of the motion a legal opinion from Lee Levine, a defamation lawyer in Washington, D.C., who stated:
In the circumstances you posit – i.e., a foreign libel judgment that could not be rendered in the first instance by a court bound by New York Times Co. v. Sullivan and its progeny – it is my opinion that a District of Columbia court would deem such a judgment to be repugnant to the public policy of the District and of the United States and would therefore decline to recognize or enforce it.
Courts in the District of Columbia and in other American jurisdictions have uniformly held that libel judgments rendered in foreign courts where the law does not comport with the principle set forth in New York Times Co. v. Sullivan and its progeny are repugnant to the public policy of those jurisdictions and must therefore be denied recognition.
 The motion judge concluded at para. 23:
Frankly, I see the unwillingness of an American court to enforce a Canadian libel judgment as an unfortunate expression of lack of comity. This should not be allowed to have an impact on Canadian values. The Washington Post defendants’ home jurisdiction’s unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction. See Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (Ont. Sup. Ct.)…
 The motion judge’s conclusion does not take into account that the rule in New York Times v. Sullivan is rooted in the guarantees of freedom of speech and of the press under the First Amendment of the U.S. Constitution. In any event, the reality is that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule. Although the Supreme Court of Canada has rejected the rule for perfectly valid reasons, it is, in my view, not correct to say that the American courts’ unwillingness to enforce a Canadian libel judgment is “an unfortunate expression of lack of comity”. Canada and the U.S. have simply taken different approaches to a complex area of the law, based upon different policy considerations related to freedom of speech and the protection of individual reputations.
 The Supreme Court of Canada has recognized that Canadian courts may refuse to enforce a judgment of a foreign court which is deemed to be contrary to the Canadian concept of justice. In Beals v. Saldanha, supra, Major J., writing for the majority, said at para. 71:
The third and final defence is that of public policy. This defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice. The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker, supra, at p. 14-28:
…the traditional public policy defence appears to be directed at the concept of repugnant laws and not repugnant facts.
Given the centrality of freedom of speech to the United States Constitution, it could be argued that an American court’s refusal to recognize a Canadian judgment based on principles divergent from New York Times v. Sullivan would fall into the category of repugnant law rather than repugnant fact.
 The motion judge supported his decision by relying upon the judgment of the High Court of Australia in Dow Jones & Co. Inc. v. Gutnick (2002), 210 C.L.R. 575 (H.C.A.).
 Dow Jones v. Gutnick involved an article published in both Barron’s magazine and Barron’s Online. Mr. Gutnick was an Australian businessman who resided in the State of Victoria. He commenced his action in Victoria. Dow Jones was served with the originating process outside Australia. The issue in the case was forum non conveniens. The court held that Victoria was the appropriate forum.
 In respect of Dow Jones v. Gutnick, the motion judge quoted at para. 22(8) of his reasons from a number of paragraphs of the factum filed by counsel for Mr. Bangoura that he said put “the whole issue in a proper perspective”. The motion judge was presumably of the view that counsel’s analysis of the Dow Jones v. Gutnick case supported his view that Ontario should assume jurisdiction.
 Gutnick was a well-known businessman who resided in Victoria at the time of the impugned publication. There was evidence that Barron’s had some 1,700 Internet subscribers in Australia. Gutnick undertook that he would sue only in Victoria and only in respect of damages to his reputation in that state.
 I do not find the Australian case to be helpful in determining the issue before this court."
Monday, September 26, 2005
I am saddened to publish this news from Tulane Law School.
Official Announcements from Tulane Law Administration
From: Larry Ponoroff, Dean
I am very sorry to have to inform everyone that Professor M. David Gelfand died in a drowning accident yesterday in Pensacola. I do not have any other information at this time. David has been a member of our faculty for nearly 30 years, and was the holder of the Phelps Chair in Constitutional Law. As you all know, he was a nationally respected expert in First Amendment rights and State & Local Government, and an active proponent of equal justice under the law. We are all deeply saddened by this loss and extend our heartfelt sympathies to David’s wife, Mary, and their daughter, Katie.
The Chronicle of Higher Education (subscription required, or available through LEXIS), the National Association for Research & Therapy of Homosexuality and WorldNetDaily report that Haworth Press has cancelled its plans to publish a volume of essays on the history of same-sex practices after protests emerged on WorldNetDaily because of inclusion in the volume of an essay by Dr. Bruce Rind. Rind's essay had previously been published in the Journal of Homosexuality, also a Haworth Press publication. Read stories about the firestorm when Rind's article first appeared here, by Jonathan Rauch, and here by Carol Tavris.
A UK employment tribunal began hearing evidence in the proceeding of Richard Gizbert against ABC News on September 23. Gizbert claims that his refusal to continue covering stories in places like Iraq and Afghanistan, where many news correspondents have been injured or died, cost him his job. ABC says the termination was dictated by financial considerations. Read more here.
Saturday, September 24, 2005
If you've been waiting expectantly for the first episode of that hot new television show being pitched on TBN, DHS: The Series, featuring the Department of Homeland Security--don't hold your breath. The Los Angeles Times reports that the FBI and the IRS have arrested the producer of the proposed series, Joseph Medawar, on various charges (access may require registration, free). According to the story, Medawar never produced any of the episodes of the series, he never took the company public even though he apparently assured investors that he would, and he told investors that he had the backing of the White House and government agencies, but it is unclear exactly what involvement, if any, the federal government ever had in the production. The series was to have a Christian theme, and one of its posters featured the President and his Cabinet praying (see it at the show's website, here.) Read more about DHS: The Series and its posters, trailers and episodes in a Boston Globe from 2004 here, in an NPR Brooke Gladstone interview with Medawar and his lead actress here, and here at the blog Balkanalysis. And read E! Online's coverage here.
CNN reports that Jeffrey Borer and Arvel Reeves have been indicted for a 2003 taping of Michael Jackson and his former lawyer Mark Geragos aboard Jackson's chartered plane. Read more about the charges here and in an L. A. Times story here. Read more about the taping and the FBI's initial investigation of the incident here.
Thursday, September 22, 2005
More college students can comply with the law and download music legally while they are on campus, according to a report submitted to Congress yesterday. The Joint Committee of the Higher Education and Entertainment Communities, formed in 2002, told Congress in its report that nearly a million students now have access to legal methods of downloading across the nation. Universities and colleges can offer such services to students, who then have the choice of signing up. Whether they actually continue to do so in large numbers remains to be seen, of course. Read more in a story by Brooks Boliek here.
To add to your bibliography on that infamous clothing gap, here's a piece by Keith Brown of the FCC and Adam Candeub of Michigan State, The Law and Economics of Wardrobe Malfunction. It's forthcoming in the Brigham Young University Law Review. Herewith the abstract from SSRN.
This article examines the Federal Communication Commission's indecency regulation for television and radio. In recent years, the FCC has not only pursued high profile enforcements such as Janet Jackson's well-known Super Bowl half time show, but perhaps more important, has issued fines against broadcasters in record amounts totaling millions of dollars. Critics claim that these enforcements are politicized, arbitrary, and chilling of free speech.
This article proposes a new, market-based mechanism for indecency regulation that avoids the pitfalls of the FCC's current approach. The proposal focuses on the viewer - advertiser relationship, in distinction to the FCC's regulations, which concentrate solely on the broadcaster. Drawing on recent economic theory involving two sided markets, we argue that if the FCC required disclosure of all the programming that advertisers sponsor, consumers could more efficiently pressure advertisers directly, resulting in programs that better reflect community standards of indecency.
Get the entire piece here.
Wednesday, September 21, 2005
The Authors Guild is suing Google over its Google Print program, charging that the company hasn't asked its members for permission in advance to include their works. According to the Guild's press release, 'Through its Library program, Google is reproducing works still under the protection of copyright as well as public domain works from the collection of the University of Michigan's library. “This is a plain and brazen violation of copyright law,” said Authors Guild president Nick Taylor. “It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”....Google has agreements with four academic libraries -- those of Stanford, Harvard, Oxford and the University of Michigan -- and with the New York Public Library to create digital copies of substantial parts of their collections and to make those collections available for searching online. Google has not sought the approval of the authors of these works for this program."
The Guild seeks damages and an injunction. Google says its program complies with the "fair use" provision of the Copyright Act. Read more in an article by Nancy Gohring here, listen to an NPR story here, see a news24.com story here, and visit the Authors Guild website to see its press release here.
A would-be contestant on the ABC reality show "Extreme Makeover" has filed suit in Los Angeles Superior Court, charging that the program's decision to cancel her participation eventually led to her sister's suicide. Deleese Williams says that the producers of the program wanted her sister Kellie McGee and other family members to make "disparaging comments" about Williams' appearance, remarks which ultimately affected McGee's state of mind.
Read more about the "Extreme Makeover" lawsuit here in an AP story and in a New York Daily News piece here. In addition, ABC's "Extreme Makeover: Home Edition" is being sued by five orphaned brothers and sisters who claim they were ousted from a house that was built expressly for them. They are alleging fraud and breach of contract. Both the AP story and an interview with Dan Abrams discuss this lawsuit.
Susan Crawford, an assistant professor of law at Cardozo, examines whether someone should impose legal and ethical norms on the Internet, and whether that "someone" has, or is in the process of becoming the FCC, in her piece Someone to Watch Over Me, available via the SSRN. Here is the abstract.
Over the last ten years, the United States has avoided creating rules dictating how the internet works or what devices can attach to the internet. In recent months, the Federal Communications Commission has begun aggressively to regulate internet activity by applying to the internet policies that were developed for the world of telephone networks.
This Article presents a comprehensive inquiry into the social policies the FCC is imposing on the internet. It begins by describing the mindset of telephony companies, and why telephonists believe that someone must be in charge of any network, and continues by examining the mindset of internet exceptionalists, and why their beliefs in the unfettered future of the internet may prove remarkably naive. Next, the Article explains how the FCC has construed its implementing statute to give it authority to make rules for internet applications, and examines three social policies that are being transferred wholesale by the FCC into the internet context. Finally, the Article offers a normative proposal for online social policies. This section argues that Congress should take the nature of the internet into account when adjusting the FCC's statutory powers. The section justifies this proposal on several grounds. First, although the social concerns addressed by the FCC's actions (emergency service, assistance to law enforcement, funding of universal service) are substantial, there are better, more technologically sophisticated ways to implement these same policies online, and the path the FCC is taking is likely to be destructive of nascent online services and products. Second, there are other social policies that are equally important for the future of U.S. citizens, including open access and consumer education. Third, the proposed approach is consistent with the direction that Congress has taken thus far with respect to the internet, which has resulted in enormous innovation, creative collaboration, economic growth, and social development. The world is watching what the U.S. does, and Congress should act carefully as it takes on the regulation of the internet.
Download the full paper here.
And Another New Piece on the Point of Continuing to Differentiate Among Types of Media Speech...Or Not
Jim Chen, University of Minnesota Law School, has published Conduit-Based Regulation of Speech, in volume 54 of the Duke Law Journal, and via the SSRN. Here is the abstract.
|Architecture is destiny. As much as information today determines the contemporary wealth of nations, the physical world retains its relevance. Architecture affects crime rates, arguably even collegiality among professors. The interplay between the physical and the ethereal likewise shapes the constitutional doctrine that facilitates the free flow of ideas. The structure of a communicative medium dictates its performance. Awareness of the structure of information markets improves the calibration of intellectual property and refines legal responses to potential electronic bottlenecks. This article takes the next logical step: revealing the deep doctrinal structure of legal efforts to influence the design and maintenance of communicative conduits. |
This article's examination of free speech jurisprudence begins by describing how any communicative medium can be visualized as three distinct physical, logical, and content-based layers. End-to-end design, the Internet's operative ideal, also provides a crucial doctrinal metaphor. Like the conduits through which communications pass, free speech jurisprudence can also be analyzed layer by layer. Cases involving the regulation of the time, place, or manner of speech comprise the physical layer, in which regulatory prerogative generally prevails. By contrast, most forms of content-based regulation draw strict scrutiny.
In a perverse twist of the end-to-end principle, the intelligence in first amendment jurisprudence resides at its edges. Though the Supreme Court has achieved doctrinal stability in reviewing content-based restrictions and time-place-manner rules, the Justices have behaved erratically whenever they have examined the intermediate logical layer - cases involving the regulation of specific communicative conduits. The Court has not developed a cogent approach to regulations designed to structure channels of communication that mediate between physical space and eventual expression. A generation ago, decisions affirming comprehensive federal power over broadcasting practically defined conduit-based regulation of speech. Broadcasting cases cannot be squared with strict scrutiny of content-based regulation of speech. Since 1978 the Supreme Court has proved quite uneven in keeping pace with technological changes in communications. After locating the doctrinal baseline established in the broadcasting cases, this article surveys more recent cases involving cable television and sexually explicit speech in a variety of media.
Four interrelated rationales for conduit-based regulation of speech have emerged: scarcity, regulatory intensity, the government's interest in enhancing voices, and a conduit's pervasiveness. Although each of these rationales is superficially plausible, deeper inspection counsels a skeptical regard for the notion that conduit-based regulation merits distinctive first amendment treatment. This article accordingly disavows the strategy of adjusting first amendment standards of review in response to putative differences among conduits. In reviewing conduit-based restrictions on speech, courts should remain wary of disguised efforts to control content. The end-to-end principle counsels simple standards for reviewing regulation aimed at the logical layer of speech. Real information is ideally transmitted on simple protocols that allow speakers and listeners to control all intelligence within a network. Likewise, a constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects free speech.
|Download the paper here.|
Troy Booher, Department of Political Science and Department of Philosophy, University of Utah, has published a paper on commercial speech in the SSRN series. It is also being published in volume 15 of George Mason University's Civil Rights Law Journal. Here is the abstract.
Commercial speech continues to be formally distinguished from noncommercial speech under the First Amendment. However, a careful analysis of the development of commercial speech doctrine reveals that formally abandoning the distinction is merely the natural extension of, if not entailed by, commercial speech jurisprudence already in place. I argue that when we carefully examine what appear to be disagreements over levels of scrutiny, we can see that they are really disagreements over what constitutes a compelling state interest in the commercial speech context.
Download the complete paper here.
Tuesday, September 20, 2005
The judge presiding over the current intelligent design (ID) trial in the Dover (Pa.) school district has ruled that Court TV will not be allowed to televise it. Court TV had argued that the public had a strong societal and public policy interest in the case. Judge John Jones held that according to the Guide to Judiciary Policies and Procedures, the court's local rules and applicable case law, he could not allow the network to do so. "First, the Guide is the official medium by which direction as to courtroom procedures and other information are provided to the Federal Judiciary in support of its day-to-day operations....Pursuant to the said policy, a judge may authorize broadcasting, televising, recording, or taking photographs in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such other proceedings, only: (a) for the presentation of evidence;(b) for the perpetuation of the record of the proceedings;
(c) for security purposes; (d) for other purposes of judicial administration; or (e) for the photographing, recording, or broadcasting of appellate arguments." Neither did the judge find support for Court TV's request in the court's local rules or in case law.
Read his decision here.
Read other rulings dealing with the case at the court's website here.
Kevin Trudeau and various regulatory agencies continue to war over the content of the infomercials during which he hawks his book Natural Cures They Don't Want You To Know About (list $30, discounted at online booksellers, published by Alliance Publishing). Trudeau paid the Federal Trade Commission a $2 million fine last year to settle claims over an infomercial concerning the efficacy of coral calcium as a curative for cancer. He had run-ins in the 1990s with the state of Massachusetts over larceny charges and the federal government over issues of credit-card fraud. He pled guilty in both cases. After the 2004 FTC settlement, Trudeau agreed to stop pitching coral calcium, but he continues to publish books and newsletters pitching cures for ailments. He argues, sensibly enough, that written words, unlike products, are protected by the First Amendment, and so far, a federal judge has agreed with him. However, critics of what's in Trudeau's book, including the New York Consumer Protection Board, respond that he stretches whatever evidence exists for the cures he's propounding, and they say he leads buyers of his book astray by encouraging them to abandon traditional medicine for untestable approaches. But his book continues to sell well, as evidenced by the best-seller lists in the New York Times and on sites such as Amazon.com and BarnesandNoble.com.
Here is a transcript of a Trudeau infomercial (it includes editorial comments by the transcriber). Read more here in a New York Times story, reprinted in the Seattle Times (and elsewhere) here and in a Miami Herald story.
Here are links to FTC documents relating to Trudeau, including injunctions, final orders and settlements of claims.
Monday, September 19, 2005
Laura Sydell reports on the problems with copy protection and CDs. It should be legal, but music purchasers are having difficulties making copies of newly bought discs for personal use. Here's the link to the NPR story. MSNBC has another story about consumer outrage here.
Here's a link to the official Foo Fighters website, the group mentioned in the story.
CNN has a story about Google's print library project and associated projects, including a plan to offer television programs, here. Also of interest is Hannibal Travis' article, "Building Universal Digital Libraries: An Agenda For Copyright Reform," available through SSRN. Here's the abstract.
This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative copyright liability on technologists. This article's case for reform begins with rolling back the copyright term extensions of recent years, which were upheld by the Supreme Court in Eldred v. Reno. Indefinitely renewable copyrights threaten to marginalize Internet publishing and online libraries by entangling them in endless disputes regarding the rights to decades- or centuries-old works. Similarly, digital library projects are becoming unnecessarily complicated and expensive to undertake due to the assertion by libraries and copyright holding companies of exclusive rights over unoriginal reproductions of public domain works, and the demands of authors that courts block all productive digital uses of their already published but often out-of-print works. Courts should refuse to allow the markets in digital reproductions to be monopolized in this way, and Congress must introduce greater certainty into copyright licensing by requiring more frequent registration and recordation of rights. Courts should also consider the digitizing of copyrighted works for the benefit of the public to be fair use, particularly where only excerpts of the works are posted online for public perusal. A digital library like Google Print needs a degree of certainty - which existing law does not provide - that it will not be punished for making miles of printed matter instantly searchable in the comfort of one's home, or for rescuing orphan works from obscurity or letting consumers preview a few pages of a book before buying it. Finally, the Supreme Court's recognition of liability for inducement of digital copyright infringement in the Grokster case may have profoundly negative consequences for digital library technology. The article discusses how recent proposals for statutory file-sharing licenses may reduce the bandwidth and storage costs of digital libraries, and thereby make them more comprehensive and accessible.
Here's the link to Professor Travis' article.
Travis, Hannibal, "Building Universal Digital Libraries: An Agenda for Copyright Reform" (August 25, 2005). http://ssrn.com/abstract=793585