Wednesday, November 30, 2005
Oregon Refuses to Pay Legal Fees of Law Prof Threatened with Lawsuit Over Law Review Article
Interesting story in this morning's Inside Higher Ed: Twisting in the Wind.
Merle Weiner (Oregon) published Strengthening Article 20, 38 U.S.F. L. Rev. 701 (2004), which argues that Article 20 of the Hague Convention on the Civil Aspects of International Child Abduction should be strengthened to offer more protection for domestic violence victims who flee transnationally with their children as part of their effort to escape from domestic violence. The article made two brief references to a court dispute in one such case and one of the parties to that dispute threatened to sue.
Inside Higher Ed reports that Oregon refused to pay the legal fees of Prof. Weiner in defending against the threatened lawsuit:
Weiner found out this year that even if the university expects her to publish, she was on her own when she faced a threatened suit over one of her articles, even though the university never contested the quality of the article and even though she had obtained legal opinions that she would prevail in court — if only someone had agreed to pay the bills necessary to fight....
When no one would commit to paying the anticipated legal bills, the journal that published Weiner — also unable to pay for a defense — removed from its electronic archive the reference that led to the threatened lawsuit. While the University of Oregon’s lawyer had urged her to have the journal do just that as a way of avoiding a suit, Weiner opposed this action as giving in to a threat and denying her the right to publish her work in full.
She said that the incident has hurt her ability to do her work on domestic violence and raises issues for any scholar who may publish on works that might lead someone to want to sue them. “Any time any alleged batterer wants to threaten suit, I’m going to have to defend myself, no matter how unmeritorious the suit is,” Weiner said. “If my institution wants me to be doing my job, they need to be standing behind me.”
“I never imagined in my wildest dreams that my university would leave me hanging, that any of this would have transpired,” she said. As both Oregon and San Francisco wavered on defending her, she wanted an outside expert to verify that she would win in court. Rodney A. Smolla, dean of the law school at the University of Richmond, reviewed all the materials and provided an analysis that Weiner had a strong defense. He also wrote in his analysis that the case raised academic freedom issues and urged those involved to consider that when deciding how to proceed.
The University of Oregon, however, viewed the matter in a different way. In a statement released by the university, it said that — as was “customary” — Weiner had agreed to indemnify the University of San Francisco against actions arising from the article. While the university was happy to advise Weiner on the case, it did not feel any obligation to defend her, the statement said.
[Courtesy of Paul Caron's TaxProf Blog]
Tuesday, November 29, 2005
In a statement today before the Senate Committee on Commerce, Science, and Transportation, FCC Chair Kevin Martin said that "television today...contains some of the coarsest programming ever aired. Indeed, the networks appear to be increasing the amount of programs designed to "push the envelope"--and too often the bounds of decency. For instance, the use of profanity during the "Family Hour" increased 95% from 1998 to 2002. Another recent study found that 70 percent of television shows in the 2004-2005 season had some sexual content, and the number of sexual scenes had nearly doubled since 1998." [footnotes omitted]
Martin called for the cable industry and networks to address consumer concerns, including perhaps offering programming packages that would allow customers to purchase "family friendly" packages "as an alternative to the "expanded basic" tier on calbe or the intial tier on DBS. This alternative would enable parents to enjoy the increased options and high-quality programming available through cable and satellite without having to purchase programming unsuitable for children. Parents could get Nickelodeon and Discovery without having to buy other adult-oriented fare." In the alternative Martin proposed that cable channels be "subject to the same indecency regulations that currently apply only to broadcast. This standard would apply only to channels that consumers are required to purchase as part of the expanded basic package, not premium channels. This solution would respond to the many people calling for the same rules to apply to everyone--for a level playing field."
Read Commissioner Martin's remarks in their entirety here.
Administrators at Oak Ridge High School in Oak Ridge, Tennessee seized all the copies of the Oak Leaf, the high school's paper, that they could find, because the paper's staff published articles on birth control and tattoos and body piercing in the latest issue. The student who wrote the birth control article said she wrote it because she was worried about the rising rate of teen pregnancy at the school. Administrators are concerned because students as young as fourteen read the paper, and because photographs of some students' tattoos accompany the body piercing/tattoo article, and those teens were below the age of consent to get the work done. The paper's advisor, teacher Wanda Grooms, is attempting to broker a compromise. Meanwhile, the Student Press Law Center is assisting the students. Read more here and here.
Jim VanderHei's article in today's Washington Post discusses what Viveca Novak, a reporter for Time magazine, is likely to tell a second federal grand jury investigating the Valerie Plame leak case, about her discussions with Karl Rove's lawyer Robert Luskin. According to the article, Luskin believes that Novak's testimony is crucial to deflecting an indictment against Rove. Novak is not protecting any sources and she is testifying voluntarily. Read more here.
Robert Jacob Dannay, Department of Justice, Government of Canada, considers whether P2P (peer to peer) file sharing is protected under the European Convention on Human Rights (ECHR) and incorporated into English domestic law by the Human RIghts Act 1998. The article is forthcoming in volume 10 of the International Journal of Communications Law and Policy, 2005. Here is the abstract.
This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being "necessary in a democratic society" under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPA's restriction on free expression may not be "necessary in a democratic society" under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the "public interest" defence or to make a declaration of incompatibility under the HRA.
Download the complete article from SSRN here.
Monday, November 28, 2005
The U. S. Court of Appeals for the Seventh Circuit has reversed a lower court in an invasion of privacy case by an anonymous minor plaintiff, saying that the defendant may have violated 18 U. S. C. Sec. 2510, the Federal Wiretap Statute, and has sent the case back to the lower court. Jason Smith had videotaped himself and his girlfriend, then underage, having sex, and had given copies to friends. Of course the tape surfaced on the 'net. The by now former girlfriend, identified only as Jane Doe, sued for invasion of privacy and, under the Federal Wiretap Statute, for an unauthorized interception and disclosure. The statute creates a private right of action for damages (section 2520).
The lower court had originally dismissed the action in Doe v. Smith on a 12(b)(6) motion,"ruling that Doe's complaint is defective because it does not allege in so many words that the recording was an "interception" within the meaning of §2510(4)." However, the appellate court opined that "pleadings in federal court need not allege facts corresponding to each "element" of a statute. It is enough to state a claim for relief -- and Fed. R. Civ. P. 8 departs from the old code-pleading practice by enabling plaintiffs to dispense with the need to identify, and plead specifically to, each ingredient of a sound legal theory....Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. Doe has done that; it is easy to tell what she is complaining about. Any district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain. . ." should stop and think: What rule of law requires a complaint to contain that allegation? Rule 9(b) has a short list of things that plaintiffs must plead with particularity, but "interception" is not on that list."
The court remanded to the district court to consider the question of anonymity, saying, "That question should be explored in the district court--and, if the judge decides that anonymous litigation is inappropriate, the plaintiff should be allowed to dismiss the suit in lieu of revealing her name."
Read the entire ruling here.
According to a November 26th article in the Guardian, the British regulatory agency charged with making certain that tv owners in the country have paid for licenses has caught nearly 350,000 people without that important piece of paper. Excuses range from the tv is for the dog only (and apparently he's responsible for his own debts) to one tv watcher who claimed that since the set was used only for catching Australian shows and since as far as s/he knew Australia doesn't require a license s/he wasn't breaking the law. Sanctions can reach a fine of one thousand pounds. Read more here.
Saturday, November 26, 2005
New York Court of Appeals Rules Community College Senate, Senate Executive Committee Subject to Open Meetings and Open Records Laws
In Perez v. City University of New York, the New York Court of Appeals has ruled that a Community College Senate and its Executive Committee are subject to the state's open meetings and open records law. In this case, student Perez had tried to enter an Executive Committee meeting and to give an Executive Committee member a petition, which the member had refused to accept. As the court pointed out, the committee was not at that time in Executive Session. Perez was the second student denied entrance to a non-executive session within a matter of a few months.
Said the court, "Petitioners initiated an article 78 proceeding, arguing that the College Senate and the Executive Committee were subject to the Open Meetings Law and the Freedom of Information Law. Supreme Court granted the petition, but the Appellate Division reversed, concluding that the Senate was only an advisory body and thus outside the purview of the Open Meetings Law and the Freedom of Information Law. We agree with Supreme Court and now reverse the Appellate Division order and reinstate the judgment of Supreme Court."
The court discussed at length whether the Senate and its committees were "public bodies" for purposes of the law and found that they were. "Here, we are persuaded that the College Senate and its Executive Committee...are exercising a quintessentially governmental function. The College Senate’s organizational structure is set forth in the Governance Charter, which mandates that the Senate conduct business only if a quorum is present and that the Senate and its committees conduct meetings pursuant to Robert’s Rules of Order Newly Revised. The members of the Senate elect representatives to the Committee on Committees, which has sole, non-reviewable authority to select members to the College Senate’s other standing committees, some of which exercise non-reviewable power regarding disciplinary findings and punishments, academic disputes and scholarship awards. The Executive Committee schedules regular and special Senate meetings, determines what is appropriate Senate business, sets the agenda for the Senate meetings and conducts all business between Senate sessions. Key to our conclusion in this case is the record evidence that the College Senate (which includes its Executive Committee) has been charged with a number of the responsibilities delegated by the Legislature to the CUNY Board and that the Senate functions as a proxy for the faculty councils authorized by the CUNY bylaws. The Senate is to recommend policy on all college matters to the Board. The Senate is explicitly imbued with the power to formulate new policy recommendations and review existing policies, forwarding those recommendations to the Board of Trustees in areas as far-reaching as college admissions, degree requirements, curriculum design, budget and finance; it is represented on all committees established by the College President; it is to review proposals for and recommend the creation of new academic units and programs of study; it must be consulted prior to any additions or alterations to the College’s divisions; and it is the only body that can initiate changes to the College Governance Charter. Under CUNY’s comprehensive university governance scheme, the College Senate is the sole legislative body on campus authorized to send proposals to the CUNY Board of Trustees, and although the policy proposals must first be approved and forwarded by the College President, they overwhelmingly are. While the CUNY Board retains the formal power to veto recommendations of the College Senate, that does not in and of itself negate the Senate’s policy-making role or render the Senate purely advisory. Realistically appraising the Senate’s function, we conclude that the Appellate Division erred in holding that the Senate was only an advisory body (contrast Snyder v Third Department Judicial Screening Committee, 18 AD3d 1100 [3d Dept 2005] [proceedings of Judicial Screening Committee not subject to the Freedom of Information or Open Meetings laws because its role is limited to providing information to appointing authority]). As Supreme Court held, "the college senate and the executive committee thereof constitute integral components of the governance structure of Hostos Community College. The senate and its executive committee perform functions of both advisory and determinative natures which are essential to the operation and administration of the college" (195 Misc 2d 16, 33 [Sup Ct, Bronx Cty 2002])."
Read the entire opinion here.
In an article this week, Richard Norton-Taylor and Michael White of the Guardian say that "[s]enior MPs, Whitehall officials and lawyers were agreed yesterday that Lord Goldsmith had "read the riot act" to the media" over the Daily Mirror's leak of information in a 2004 memo that detailed President Bush's floating of a plan to bomb al-Jazeera headquarters in Qatar. Goldsmith threatened to invoke the Official Secrets Act against Britain's newspapers, which apparently has never been done before. Faced with the possibility of a High Court injunction, the Mirror decided not to publish any more information from the memo. Read more here. Meanwhile, a representative of al-Jazeera has requested a meeting with Prime Minister Tony Blair to discuss the contents of the memo. Read more here.
Wednesday, November 23, 2005
The Blair government has threatened the Daily Mirror and other British newspapers with sanctions under the Official Secrets Act and the Contempt of Court Act after the Mirror quoted from a memo leaked to it that relates to discussions British Prime Minister Tony Blair and U. S. President George Bush had over the war in Iraq last year, including the President's suggestion that Al-Jazeera be bombed. The Mirror's editor Richard Wallace responded that the paper had contacted No. 10 Downing Street, the PM's official residence, in advance and received no response. A British civil servant, David Keogh, is accused of leaking the memo to a former employee of former Labour MP Tony Clarke. Mr. Clarke sent the memo back to the Prime Minister's office.
Faced with a gag order, the Mirror has now agreed to comply with the British government's request not to publish any further information from the memo. Read the Daily Mirror's original article discussing the content of the memo here. Read its follow-up article here. Read articles in the Guardian about the gag order, fall-out from the content of the memo, and the arrest of two persons leaking of taking the memo.
Tuesday, November 22, 2005
The UK media regulatory agency Ofcom has found Sky Sports in breach of Rule 2.3 of the Broadcasting Code for showing an episode of the program Late Night Smackdown: The Great American Bash in which a character named "Mohammad Hassan" appeared soon after the July 7 and July 21st London bombings.
"We accept that American professional wrestling comprises of ‘wrestlers’ taking part in contrived feuds and faked brawls, with ongoing storylines and characters. The programme was appropriately scheduled and a clear warning was given. We therefore do not consider that the programme was in breach of the requirements in the Broadcasting Code regarding the protection of children. We also appreciate that the match was broadcast live from the US and that Sky may not have been aware in advance of its precise content, in particular the inclusion of footage from the previous encounter between the two characters (as explained above, Sky had not broadcast the bout itself). However, the broadcast included a fight involving the ‘Mohammed Hassan’ character, whose established act included masked men in combat-style clothing, references to religious practices and the use of emotive language (for example, ‘martyr’, ‘sacrifice’ and ‘infidel’). We are pleased to note that this character has now been withdrawn. However we believe that his inclusion in Sky’s output, given both the current environment and the context in which he appeared, in this type of programme with the use of religious and emotive references linked to militant activity, was a mistake. Rule 2.3 states that, in applying these standards, broadcasters must ensure that material which may cause offence, for example discriminatory treatment, is justified by the context. In this case, given that this was a wrestling match for entertainment we consider that there was not adequate justification. Our concern is heightened by the fact that The Great American Bash was shown so soon after the events in London on 7 and 21 July 2005."
Read the entire ruling here.
Should we still allow women (but not men) to sue for defamation on the grounds that they have been "falsely portrayed as unchaste"? A New York trial judge is letting Georgeann Walsh Ward's suit against Gene Simmons of KISS and Viacom to proceed on these grounds. Findlaw's Julie Hilden discusses the problems with the Ward lawsuit as well as the public policy questions it raises in 2005 here.
Thirty-two state attorneys general are asking ten movie studios to include anti-smoking labels on all new DVDs sold for private use to discourage young people from taking up smoking. Anti-smoking warnings will be available for theaters soon. The AGs want more assistance from the industry since research seems to continue to show that teens are especially influenced by what they see on the screen. However, a spokesperson for the Motion Picture Association of America (MPAA) pointed out that DVD labels already indicate whether films depict such things as teen smoking. In addition, she noted that movies reflect reality, and in the real world, people continue to smoke. Read more here.
Texas AG Greg Abbott and the Electronic Frontier Foundation are both suing Sony BMG over its very busy new CDs, which the AG and the EFF allege install spyware at the same time that they play music on purchasers' computers. The Texas lawsuit states that such spyware contravenes Texas' Consumer Protection Against Computer Spyware Act of 2005 (Texas Business and Commerce Code Sec. 48.001 to 48.102 (2005)). Read more here. Read the EFF's complaint, filed in Los Angeles Superior Court.
Monday, November 21, 2005
The Florida Supreme Court has agreed to hear an appeal from the Wiccan Religious Cooperative of Florida, challenging the constitutionality of a Florida statute that exempts it from payment of sales and use tax for Bibles but not for items such as the Satanic Bible. The lower court ruled that Wiccan did not have standing to challenge the law. "In the instant case, Wiccan's constitutional challenge is that, based on the reasoning found in Texas Monthly, the Florida sales tax exemption benefits religion. The parties have stipulated that Wicca is a religion. Therefore, under Wiccan's argument that the tax exemption benefits religion, Wiccan, as a religious organization, benefits from the sales tax exemption. Accordingly, Wiccan fails to have the adverse interest necessary for standing and is not the proper party to assert the instant constitutional challenge." See Wiccan Religious Cooperative of Florida v. Zingale, 898 So. 2d 134 (C.A. Fla., 1st Dist., (2005)). Read more here. The ACLU filed a similar suit on November 16 on behalf of the Phoenix and Dragon Bookstore and the Georgia Library Association. Read more here.
In response to a request from the Spokesman-Review, a local paper, Judge Richard Miller ruled that certain material on Spokane, Washington, Mayor James E. West's city-owned laptop could be made public, but other material could not, because it would violate the privacy of third parties. West, who is currently under investigation and faces a recall election on December 6, had fought release of the information. Read more here. West now has more to contend with. A report by an attorney and investigator hired by the Spokane City Council concludes that the Mayor violated state law when he offered a job to a young man he was interested in for sexual reasons. The Mayor denies the charges. Read more here and here.
New Ofcom Report Finds Soaps, Reality Shows Have More Offensive Language Than Other Shows on British TV
The UK watchdog agency Ofcom has released a report, Language and Sexual Imagery in Broadcasting: A Contextual Investigation, that maintains that offensive language on British television now starts earlier in the evening than it did a few years ago and instances are more widespread. Further, says the report, viewers believe that soaps, including some daytime dramas, and reality shows are to blame for the increase, even though Ofcom notes that a close examination demonstrated that viewers might be associating violence with offensive language. Read more here.
Sunday, November 20, 2005
Michael Agger notes in Slate.com that those crafty students are still at it--this time in an online site called ratemyprofessors.com. At this site they tell each other--and profs across the country--what they think of teaching style, and clothing style. In the late 1990s a similar site led to claims of defamation. But published prof ratings are nothing new--I remember little printed books that circulated when I was an undergraduate. Based on student surveys of our campus profs (collected who knows how) they sold for a few dollars, and they were also a very "hot" item.