Friday, August 31, 2007
The parents of a missing four year British girl announced that they plan to sue the Portuguese newspaper Tal & Qual for suggesting that they were responsible for the disappearance of their daughter. Kate and Gerry McCann said that the newspaper's allegation that police believe they caused the death of of Madeleine McCann is "...without truth or evidence." Madeleine has been missing for nearly four months from a resort where her family was vacationing. Read more here.
Thursday, August 30, 2007
François Hollande and Valérie Trierweiler, who sued the French edition of the magazine Closer for publicizing their liaison and thereby breaking up Mr. Hollande's relationship with former French presidential candidate Ségolène Royal, have won their invasion of privacy action against the publication. A French court awarded damages of 15,000 Euros. However, they did not obtain another requested remedy: the destruction of all copies of the issue. Read more here in an article in the Media Guardian.
The author of the book "Running With Scissors" and his publisher have settled a defamation lawsuit brought against them by the family with whom the author lived for several years. The Turcotte family of Northampton, Massachusetts, had sued Augusten Burroughs for defamation, invasion of privacy and emotional distress over the contents of his book. Mr. Burroughs and his publisher St. Martin's Press have now agreed to call the book a "memoir". Other details of the settlement are sealed. The family had contemplated litigation against Sony Pictures over a movie based on the book; that suit was averted in 2006.
Tuesday, August 28, 2007
Arkansas Supreme Court: Trial Court Must Examine Emails To Determine Which Ones Are Subject To Public Records Law
The Arkansas Supreme Court has remanded a case to the trial court to determine which of a former public official's emails requested by a newspaper under the state's FOIA statute are public records and which are private.
This appeal arises from an order of the Pulaski County Circuit Court, providing certain e-mails be disclosed pursuant to the Freedom of Information Act (FOIA) set forth in Ark. Code Ann. §25-19-105 (Repl. 2002). On appeal, Appellant Pulaski County argues that the circuit court erred in holding that the e-mails were “public records” as defined by the FOIA. We remand this case to the circuit court with the instruction to perform an in camera review of the e-mails....The circuit court concluded that the withheld e-mails were public records and ordered them released to Appellee within twenty-four hours of the entry of its judgment. Pulaski County filed a notice of appeal, a designation of the record, and a motion for stay pending appeal. The circuit court denied the motion for stay on June 26, 2007. Pulaski County then filed motions to expedite and for stay pending appeal with this court. We granted the motion to expedite, and ordered the stay pending appeal. We also ordered the parties to file simultaneous briefs addressing the following issues on appeal:1. Do Pulaski County and the intervenor, Jane Doe, have standing to raise an FOIA issue?2. Are personal e-mails in a county computer exempt from FOIA? If so, under what circumstances?3. Did the intervenor waive all privacy rights by sending e-mails to a county computer?4. Is it necessary for this court to do an in camera review of the e-mails to distinguish personal from business e-mails?First, because Appellee admits in its reply brief that Pulaski County has standing, we need not address this issue. It is necessary to conduct an in camera review to determine whether the e-mails at issue are public records, and thus should be disclosed pursuant to the FOIA. We cannot decide the issues of whether the Intervenor has standing or whether the Intervenor has waived any privacy rights until we know the outcome of the in camera review. Therefore, we will not address these issues.We now turn to the issue of whether personal e-mails in a county computer are exempt from the FOIA. Though we have asked the parties to brief the issue of whether personal e-mails in a county computer are exempt from FOIA, we conclude that the issue in this case is not exemption. Rather, the issue here is whether the e-mails are “public records” pursuant to the FOIA. Pulaski County asks us to reverse and dismiss this case, arguing that the trial court erred in finding that the e-mails were “public records” as defined by the FOIA. Alternatively, it argues that this case should be remanded with the instruction to conduct an in camera review to determine if these documents do, in fact, “constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee,” thereby making them “public records” pursuant to the FOIA. Appellee responds, arguing that the circuit court correctly determined that the e-mails at issue are public records. Appellee asks us to affirm the circuit court's decision and lift the stay of the circuit court's judgment and injunction.In this case, we are asked to interpret the FOIA statutory provision regarding the disclosure of records. We review issues of statutory construction de novo....On review of an issue of statutory interpretation, we are not bound by the decision of the trial court; however, in an absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal.... We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner....Furthermore, this court broadly construes the Act in favor of disclosure....While recognizing our commitment to the general proposition that the FOIA should be broadly construed in favor of disclosure and exceptions construed narrowly in order to counterbalance the self-protective interests of the governmental bureauracracy, we are also aware of the need for a balancing of interests to give effect to what we perceive to be the intent of the General Assembly. In doing so, a common sense approach must be taken....Pulaski County argues that when determining whether a document is a public record, we must look at the content of the document, rather than where it is located. Appellee agrees that we must look at the content, but also argues that we must look at the context, including “the circumstances surrounding the transmission of the e-mails, the location of the e-mails, and subsequent facts that have come to light regarding Mr. Quillin in his position as a public official.”Other states have used a content-driven analysis in determining whether a document is a public record. The Florida Supreme Court has held that personal e-mails do not fall within the definition of “public records” subject to disclosure by virtue of their placement on a government-owned computer system....In Clearwater, city employees reviewed their e-mails and sorted them into two categories, personal and public. A reporter from Times Publishing Company requested all e-mails sent from or received by two city employees over the City's computer network. Even though the City copied the public e-mails and provided them, Times Publishing asserted that it was entitled to all the e-mails generated by and stored on the City's computers. The Florida Supreme Court held that the determining factor of whether a document is a public record subject to disclosure is the nature of the record, not its physical location. The court concluded that “‘personal’ e-mails are not ‘made or received pursuant to law or ordinance or in connection with the transaction of official business’” and, therefore, do not fall within the definition of public records in Florida Statutes Annotated section 119.011(1) by virtue of their placement on a government-owned computer system. Similarly, the Colorado Supreme Court has held that “[a]n analysis of the messages based solely on the context in which they were created, without an explanation of the content of the messages, is insufficient to determine whether the messages are public records....Pulaski County argues that an in camera review is necessary in this case to determine the content of the e-mails. Specifically, Pulaski County asserts that the circuit court's finding could not have been made without reviewing the e-mails in question. Further, it contends that because the circuit court did not conduct an in camera review, the e-mails were not included in the record, and therefore there is no evidence in the record to support the circuit court's findings.Appellee responds, arguing that because there is no claim that the e-mails fall under a FOIA exemption, an in camera review is not necessary. It asserts that because of the FOIA presumption that the e-mails are public records, the circuit court was correct in not conducting an in camera review. In its reply brief, Appellee contends that such a review would further delay public access to the e-mails....Both Pulaski County and the Intervenor asked the circuit court to review the subject e-mails in camera. The circuit court decided not to review the e-mails, and therefore the e-mails are not included in the record. Without reviewing the e-mails, there is not enough evidence to support the factual findings that “[i]t is impossible to discern whether some emails at issue were purely business emails while other emails were purely personal in nature,” and that “all aspects of the personal relationship between Mr. Quillin and Jane Doe are intertwined and enmeshed in the business relationship between Pulaski County and Government e-Management Solutions, Inc.” Nor does the limited amount of evidence in the record support the conclusion that “the e-mails at issue are public records because they involve a business relationship of the County and are a record of the performance or lack of performance of official functions by Ron Quillin during the times when he was an employee of Pulaski County.”We agree with the circuit court's conclusion that not all e-mails on Pulaski County computers are public records, and that even with the statutory presumption, it is still necessary to examine the facts concerning e-mails on a case-by-case basis. However, we hold that in this particular case, it is necessary to conduct an in camera review of the e-mails to discern whether these e-mails relate solely to personal matters or whether they reflect a substantial nexus with Pulaski County's activities, thereby classifying them as public records. See Griffis, supra. Both parties agree that the definition of “public records” is content-driven. The only way to determine the content of the e-mails is to examine them. In this case, no court has reviewed the e-mails at issue. Absent such a review, we have no record on which we can determine the nature and content of the requested documents.Rather than relying on Pulaski County or Appellee to make the determination of whether the documents are public, it is necessary to have a neutral court make this decision. See Griffis, supra. Accordingly, we remand this case to the circuit court with instruction to conduct an in camera review to determine if these e-mails “constitute a record of the performance of official functions that are or should be carried out by a public official or employee” thereby making them “public records” pursuant to the FOIA. We ask the circuit court to address this matter forthwith."
Monday, August 27, 2007
Elizabeth Engdahl reviews Saira Rao's novel, Chambermaid, about clerking for a federal judge, here, in today's Legal Times (may require subscription). Overall, Ms. Engdahl likes this look inside a judge's chambers. So did Paula Reed Ward of the Pittsburgh Post-Gazette. But some in the blawgosphere did not. Here's James Grimmelmann's take. The book is Saira Rao, Chambermaid (NY: Grove Press, 2007).
Friday, August 24, 2007
The Fifth Circuit has dismissed a publication of private facts invasion of privacy case against a newspaper based on the newspaper's newsworthiness defense.
"The San Antonio Express News, a Hearst subsidiary, published an article describing a blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary's lovers by sending them draft Rule 202 petitions (the “202 documents”) naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted's intent to contact the men's wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted's behavior. Additionally, the story revealed details of the Roberts’ domestic life, including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an eight-year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since been tried and convicted on charges of theft related to the allegations in the article."
..."The 202 documents were discovered by Ted's former law partner, Robert West, and introduced in a separate Texas state court dispute between the two of them. During that litigation, Ted and Mary alleged that West copied and removed the 202 documents from their law offices. The state trial court issued a protective order, in the form of a temporary injunction, which sealed the 202 documents and barred the parties from accessing them. Ted and Mary then filed a motion to permanently seal the 202 documents and posted a public notice of their intent, as required by Texas Rule of Civil Procedure 76a. The Express-News intervened to oppose the sealing. The trial court determined that the 202 documents had not been properly sealed and ordered the entire record unsealed. Ted and Mary appealed, and the Texas Court of Appeals reversed. The court held that the 202 documents were not “court records” as defined by Rule 76a and that the first protective order issued by the trial court was therefore valid. The court modified the temporary injunction to prevent release of the information in the 202 documents to the public, as well as to the parties and their agents. Ultimately, therefore, Express-News was denied access to the 202 documents by the Texas Court of Appeals. At this point, the parties’ accounts of the facts diverge. Express-News maintains that it obtained the 202 documents from another source and published the article. Ted and Mary argue that Express-News violated the Texas state court order and used the litigation documents as the primary source for the article. At some point after the publication of the article, Ted and Mary declared bankruptcy. The bankruptcy trustee, John Patrick Lowe, then brought this suit in district court on behalf of the estate seeking damages for public disclosure of private facts and intentional infliction of emotional distress. Lowe invoked diversity jurisdiction pursuant to 28 U.S.C. §1332(a)(1). On January 26, 2006, the district court dismissed both claims with prejudice under Rule 12(b)(6). Lowe appeals the dismissal of only his claim for public disclosure of private facts. "
Reviewing the dismissal de novo, the appellate court stated, "This court decides as a matter of law whether a publicized matter is of legitimate public concern....The test for determining newsworthiness is to be construed broadly, extending beyond “the dissemination of news either in the sense of current events or commentary upon public affairs” to include “information concerning interesting phases of human activity and embrac[ing] all issues about which information is appropriate so that individuals may cope with the exigencies of their period.” The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492....In Cinel, this court held that there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction in facts indicating that a priest, who had been granted immunity, possessed child pornography). While at the time the article was published the Roberts had not yet been charged with any criminal activity, the article did mention the district attorney's response, which at the time was seeming disinterest. Maro Robbins & Joseph S. Stroud, Sex, Lawyers, Secrets at Heart of Sealed Legal Case, San Antonio Express-News, June 13, 2004, at A1. Given the broad interpretation of newsworthiness, particularly with regards to alleged criminal activity, an article describing the use of the legal system by prominent local lawyers in a way that could be described as blackmail is a matter of public concern. In this case, the newsworthiness of the story was enhanced by a discussion regarding the legal ethics of Ted's actions, as well as by commentary from the prosecutor's office about its proposed response.
Stephen Calkins, Wayne State University Law School, retells the Broadcast Music case in one of the chapters in the forthcoming book Antitrust Stories (Foundation Press, edited by Eleanor Fox and Dan Crane). Here is the abstract.
In his chapter in the forthcoming book Antitrust Stories (Foundation Press, Eleanor Fox and Dan Crane editors), Steve Calkins relates the saga that included the landmark Broadcast Music case. It's a great story peopled with colorful characters - and one in which amicii, both in Broadcast Music and in a predecessor case, may have helped cause the litigation to have lasting impact.
Download the entire chapter here from SSRN.
Some said the much hyped reality/comedy series "Anchorwoman", starring actress/model and former Miss New York Lauren Jones as a real-life anchor at third-ranked station in Tyler, Texas was bad news from the start. It came in fourth. CBS' "Power of Ten" took first place in the ratings. Many journalists and some reviewers thought the premise, in which a model with absolutely no journalistic chops would come in to fill the job, was offensive. Others thought it was amusing. Ms. Jones herself misses cues on camera; other station employees ("Ed Murrow is spinning in his grave"). Fox has now canceled "Anchorwoman" after one episode. If you missed it, and really, really want to see the remaining episodes, they're available through the Fox on Demand service on the Fox website.
The Daily Mail will pay £45,000 in costs to a police officer falsely accused of racism, fired from the force, and eventually rehired. Gurpal Virdi's legal saga has played out over ten years. Last year the Daily Mail agreed to print an apology, which ran yesterday.
Read more here in a Media Guardian article.
Based on a series of recent scandals, both BBC anchor Jeremy Paxman and former BBC political editor Andrew Marr believe the British public harbor serious doubts about the degree to which it can trust the BBC and its hierarchy. But BBC director general Mark Thompson defends the decades-old institution. Read more here in a Media Guardian article.
Actor David Hasselhoff has won damages and an apology from OK! Magazine over allegations in its July 3 issue that he was "off his face" as the result of drinking in a Los Angeles nightclub earlier this year. The actor, who denied the claims, presented evidence in a London court that he drank only non-alcoholic beverages that night. The magazine admitted that the allegations were false. A leaked tape showing Mr. Hasselhoff in a drunken state had previously circulated widely in the media. As a result, he was forced into a battle for custody with his ex-wife over his teenaged daughters. Read more here in a BBC story.
Wednesday, August 22, 2007
Sara Sun Beale, Duke University School of Law, has published "The News Media's Influence on Criminal Justice Policy," at 48 William & Mary Law Review 397 (2006). Here is the abstract.
This Article argues that commercial pressures are determining the news media's contemporary treatment of crime and violence, and that the resulting coverage has played a major role in reshaping public opinion, and ultimately, criminal justice policy. The news media are not mirrors, simply reflecting events in society. Rather, media content is shaped by economic and marketing considerations that frequently override traditional journalistic criteria for newsworthiness. This Article explores local and national television's treatment of crime, where the extent and style of news stories about crime are being adjusted to meet perceived viewer demand and advertising strategies, which frequently emphasize particular demographic groups with a taste for violence. Newspapers also reflect a market-driven reshaping of style and content, resulting in a continuing emphasis on crime stories as a cost-effective means to grab readers' attention. This has all occurred despite more than a decade of sharply falling crime rates.
The Article also explores the accumulating social science evidence that the market-driven treatment of crime in the news media has the potential to skew American public opinion, increasing the support for various punitive policies such as mandatory minimums, longer sentences, and treating juveniles as adults. Through agenda setting and priming, media emphasis increases public concern about crime and makes it a more important criteria in assessing political leaders. Then, once the issue has been highlighted, the media's emphasis increases support for punitive policies, though the mechanisms through which this occurs are less well understood. This Article explores the evidence for the mechanisms of framing, increasing fear of crime, and instilling and reinforcing racial stereotypes and linking race to crime.
Although other factors, including distinctive features of American culture and the American political system, also play a role, this Article argues that the news media are having a significant and little-understood role in increasing support for punitive criminal justice policies. Because the news media is not the only influence on public opinion, this Article also considers how the news media interacts with other factors that shape public opinion regarding the criminal justice system.
Download the entire paper from SSRN here.
FindLaw's Julie Hilden critiques the Second Circuit's decision in Time Warner Cable v. DirecTV (2007 U.S. App. LEXIS 18846)(2007)(2007 WL 2263932 (C.A.2 (N.Y.)).
Says Hilden, "The Second Circuit panel's decision required it to interpret the federal Lanham Act's prohibition on false advertising, which encompasses a "false or misleading description of fact, or false or misleading representation of fact….in commercial advertising" pertaining to "the nature, quality [or] characteristics of….another's goods, services or commercial activities." However, because the Constitution trumps federal statutes, the Lanham Act's prohibition must be interpreted in a way that is consistent with the First Amendment. That's true....Nevertheless, the Second Circuit reached two conclusions that are jarringly inconsistent with basic First Amendment principles: First, it held that, rather than making its own independent review of the advertisements at issue, it could properly defer to the district court's interpretations of the advertisements' meaning unless that determination was "clearly erroneous." This makes little sense, however, for a court performing First Amendment review should never check its own independent judgment at the door. To the contrary, the court should conduct its own searching review, as if the meaning of the speech were a question of first impression. Second, while the Second Circuit panel deemed the Simpson commercial "literally false," on the ground that it is "flatly untrue" that DIRECTV provides the "best picture quality" compared to cable, it deemed the Shatner commercial not literally false but simply misleading. Yet it still upheld the district court's decision to enjoin the commercial at a preliminary stage, even before the case had been litigated. This decision, too, is highly problematic from a First Amendment standpoint...."
Tuesday, August 21, 2007
Monday, August 20, 2007
The Daily Mail reports that the BBC has removed comments from its website that Jesus was "a bastard" and shunned by his contemporaries after it received numerous complaints that its comments board had been "hijacked by extremists". The Daily Mail also reports the BBC did not remove other comments, such those that were extremely anti-Semitic, for example. Here is the BBC standard for removing comments: "likely to 'disrupt, provoke attack or offend others or ...considered racist, homophobic, sexually explicit or otherwise objectionable'". Read more in a Daily Mail article here.
Friday, August 17, 2007
Jay Kaycappa, who was found guilty earlier this summer of assaulting Heather Mills McCartney while he tried to get a photo of her, has been sentenced to 140 hours of community service and a 100 pound fine. He must also pay a fifty pound fine to her friend Mark Payne; he was also found guilty of assaulting Mr. Payne in a separate incident. Mr. Kaycappa must also pay court costs. Read more here.
Scott Moss on the Don Imus Settlement With CBS and the Kia Vaughn Defamation Lawsuit Against Don Imus
Here's FindLaw's Scott Moss on Don Imus's recently settled wrongful dismissal case against CBS and the recently filed defamation lawsuit against Don Imus. In his opinion, the settlement's a good idea, and the defamation suit's a bad one, for the plaintiff.
Thursday, August 16, 2007
That O. J. Simpson manuscript "If I Did It" which caused so much controversy and cost Judith Regan her publishing imprint and her job may finally see the light of day. The Goldman family obtained the rights to it in a judicial proceeding a few weeks ago and has negotiated with Beaufort Books to publish it, probably under a new title. Meanwhile, Denise Brown, sister of the late Nicole Brown Simpson, is protesting the Goldman family's plan to publish the work.
KinderUSA, Laila Al-Marayati Drop Lawsuit Against Yale, Author; Cambridge Agrees to Destroy Unsold Copies of "Alms For Jihad"
Kinder USA and its chair, Dr. Laila Al-Marayati, have abandoned their defamation suit against Dr. Matthew Levitt and his publisher, Yale University Press. The suit concerned Dr. Levitt's book Hamas: Politics, Charity and Terrorism in the Service of Jihad. According to a press release from the Washington Institute for Near East Policy, where Dr. Levitt is a senior fellow, "In addition to dismissing its lawsuit, the plaintiffs released all their claims based on Dr. Levitt's book. Dr. Levitt, The Washington Institute, and Yale University Press are not obligated to make any changes to Hamas, they are not limited in what they can write in the future, and they have not offered or given any compensation -- monetary or otherwise, now or in the future -- to plaintiffs for their dismissal of the suit."
Meanwhile, rather than go to court, Cambridge University Press has agreed to destroy all unsold copies of Alms for Jihad, a book that Saudi banker Khalid bin Mahfouz complains has defamed him. The Press has also asked all libraries that have purchased copies to remove them from shelves. The American Library Association has issued a statement clarifying its position on this question. It says in part:
Unless there is an order from a U.S. court, the British settlement is unenforceable in the United States, and libraries are under no legal obligation to return or destroy the book. Libraries are considered to hold title to the individual copy or copies, and it is the library's property to do with as it pleases. Given the intense interest in the book, and the desire of readers to learn about the controversy first hand, we recommend that U.S. libraries keep the book available for their users.
I checked some Internet op book dealers. Copies are scarce, and those available are going for more than one hundred dollars each.