Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, January 31, 2011

Ninth Circuit Reverses, Remands Alameda Books

The Ninth Circuit has reversed and remanded Alameda Books v. City of Los Angeles, a long running case in which adult booksellers challenged an ordinance requiring that adult businesses in a particular section of the city be "dispersed". For procedural history, check here;  From the latest "at bat":

The Police Department (L.A.P.D.) report compared arrests between 1969 and 1975 in Hollywood, an area where adult entertainment businesses are concentrated, with those in the rest of Los Angeles in the same period. The L.A.P.D. determined that crime rates grew at higher rates in Hollywood. For instance, “every Part I crime [including homicide, rape, aggravated assault and robbery] committed against a person, not against property, increased at a higher rate in [the] Hollywood Area than in the City-wide total.” In addition, “[p]rostitution arrests increased at a rate 15 times greater than the City average,” and “pandering arrests in[the] Hollywood Area increased by 475.0 percent.” From the L.A.P.D. data, the City concluded that concentrations of adult businesses are associated with increased rates of prostitution, robbery, assault and theft in the surrounding area.

In 1978, the City enacted an Ordinance, Ordinance No. 151, 294, adding a new section to the Los Angeles Municipal Code, L.A.M.C. § 12.70 (1977). Section 12.70 defined numerous categories of “adult entertainment businesses,” and required that they be geographically dispersed. Specifically, no two adult entertainment businesses could be located within 1,000 feet of one another. L.A.M.C. § 12.70(C).

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A problem arose for the City when it realized that the Ordinance did not explicitly prohibit the operation of an adult arcade and an adult bookstore within the same establishment. Therefore, in 1983 the City enacted Ordinance No. 157,538, amending the language of the existing ordinance to remedy this oversight. Specifically, L.A.M.C. § 12.70(C) was amended to provide that no two adult entertainment businesses could operate at the same location. In addition, the 1983 amendments added L.A.M.C. § 12.70(B)(17), which clarifies that each adult entertainment business as defined in the Ordinance “constitute[s] a separate adult entertainment business[ ] even if operated in conjunction with another adult entertainment business at the same establishment.” Thus, beginning in 1983, the L.A.M.C. unambiguously prohibited the operation of an adult arcade within an adult bookstore.

Plaintiffs Alameda Books and Highland Books opened for business in 1991 and 1993, respectively. Both businesses sell adult print media and videotapes, and both feature adult arcades where customers can view videotapes for a fee. Therefore, both Alameda Books and Highland Books were and are adult bookstores containing an adult arcade, as defined by the L.A.M.C. From the day they began operating as combined adult retail and arcade establishments, then, both businesses operated in violation of L.A.M.C. § 12.70. This fact is uncontested.

Although their businesses were unlawful, the plaintiffs operated without government interference for several years. On March 15 of 1995, a city inspector informed both parties that they were violating the Ordinance. On November 16, 1995, the plaintiffs filed suit in the U.S. District Court for the Central District of California, pursuant to 42 U.S.C. § 1983. They sought injunctive relief and a declaratory judgment that enforcing the Ordinance against the plaintiffs would violate their First Amendment rights.

Subsequently, the district court granted summary judgment in favor of the plaintiffs. The court reasoned that, when the City amended the Ordinance in 1983, it had no basis for believing that the operation of combined (as opposed to neighboring) adult businesses led to harmful secondary effects. Alameda Books v. Los Angeles, No. CV 95-7771-DDP (CTx), slip op. at 13 (C.D.Cal. May 28, 1998). The court further asserted that “[t]he classification of certain adult entertainment activities as separate businesses ․ is subject to a [heightened] standard of review because the City applies these definitions only to businesses that engage in protected speech.” Id. at 20. The district court determined that the Ordinance failed to survive strict scrutiny, because the City had not demonstrated that the ordinance was necessary to support a compelling government interest. Id. at 29. Therefore, it was unconstitutional under the First and Fourteenth Amendments. Id. at 33.

The City appealed from the grant of summary judgment, and we affirmed the district court on alternative grounds. Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719(9th Cir.2000). In particular, we held that the question whether L.A.M.C. § 12.70(C) is content-based or content-neutral need not be reached, because the Ordinance fails to meet even the more permissive intermediate scrutiny that would apply to a content-neutral regulation. Id. at 723. Although the City had a “substantial ․ interest” in reducing crime, the City had failed to show that the Ordinance was “designed to serve” this interest. Id. at 723-24. This was true because the 1977 Study focused only on the effect of establishments concentrated within a particular area, and had nothing to say about the effects of businesses within the same establishment. Id. at 724-25.

The Supreme Court reversed this decision and remanded the case in a plurality decision. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In doing so, the Court established a new framework for reviewing ordinances aimed at reducing the secondary effects of adult entertainment businesses.

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The Supreme Court remanded the case, and we, in turn, remanded it to the district court. 295 F.3d 1024(9th Cir.2002). Shortly thereafter, the parties agreed to postpone briefing and discovery until certain other Ninth Circuit cases interpreting the Supreme Court Alameda Books decision were decided. See Alameda Books, No. CV 95-7771 DDP (CTx), 2008 U.S. Dist. LEXIS 108860, at *9 (C.D.Cal. July 16, 2008). This agreement is responsible for the lengthy interval between the 2002 Supreme Court remand and the district court's 2008 re-adjudication.

In 2007, the district court entertained the parties' crossmotions for summary judgment. The court's decision thoroughly and meticulously discusses the history of the case and other relevant case law before reaching the merits. In considering the parties' summary judgment motions, the district court made several threshold decisions of importance to this appeal. First, the court struck the second of two5 declarations by the City's expert witness Vanita Spaulding, a business valuation professional, who offered a declaration to the effect that it would be possible to split a previously joined adult arcade business and adult bookstore business while preserving the economic viability of the arcade. She arrived at this conclusion by analyzing the plaintiffs' financial statements. She analyzed the profitability of their retail businesses and their arcade businesses by analyzing the existing data for each of the two kinds of businesses, as currently operated. She made no attempt to determine the extent, if any, to which the physical association of the two kinds of business contributed to the profitability of either one.

The plaintiffs argued that Spaulding's declaration should be stricken because it would confuse the issues and cause undue delay under Fed.R.Evid. 403, would not assist the trier of fact under Fed.R.Evid. 702 and because it lacked foundation under Fed.R.Evid. 703.

The district court found that Spaulding's testimony was confined only to the profitability of adult arcades which were part of adult retail establishments. But the fact that an adult arcade is profitable when physically joined to another adult business, did not, in the district court's view, fairly lead to the conclusion that an adult arcade could operate profitably as a free-standing unit. The court noted that “the question in this case is not whether the arcade portion of the combination business is profitable ․ [but] whether the arcade as a standalone business will continue to exist once unmoored from the bookstore component.” Alameda Books, 2008 U.S. Dist. LEXIS 108860, at *37-38. The court further stated that Spaulding had no basis for concluding that patrons would visit a free-standing arcade business because she did not purport to have any specific knowledge of the industry and had not interviewed business owners or customers. Id. at *38-39.

Nevertheless, the district court did not find Spaulding's statistics to be incredible. Rather, the court described her review of the costs and expenses of the retail and arcade components of the combined stores, as “an analysis with which no one disagrees.” Id. at *51. Therefore, despite striking Spaulding's declaration, the court accepted that the arcade components of the plaintiffs' businesses as presently operated are quite profitable, accounting for approximately one-half of the revenues of the combined businesses and the majority of the stores' net income. Thus, even if this evidence is not admissible for the immediate purpose intended, it may be useful in a more extended analysis.

The district court's second important threshold decision was to reject the City's objections to declarations by the plaintiffs' two witnesses, William Andrus and Rick Hinckley. William Andrus is the vice-president of Beverly Books, the corporation which now owns Alameda Books and Highland Books. He testified that he has been involved in the adult entertainment retail business for twenty years. He further opined that a stand-alone adult arcade would not be profitable because many current users of the arcade are retail patrons considering a purchasing decision, conveniently accommodated by a retail store in the same premises. In addition, a stand-alone adult arcade would be viewed to be “seedy” like adult movie theaters, most of which went out of business when prerecorded adult videos became available. He testified in conclusion that, “I have never seen or heard of a business that existed only as an adult arcade.”

Rick Hinckley is the president of Video Simplex, a San Diego company that builds and installs adult arcade systems. The company installed the adult arcade systems in both Alameda Books and Highland Books, and Hinckley was personally involved in those installations. He also testified, like Andrus, that the consensus of those in the adult entertainment industry was that a stand-alone adult arcade would not attract a significant number of customers because many current users are retail patrons considering whether to purchase merchandise available in a retail store located in the same premises as an arcade. He repeated the observation that a stand-alone adult arcade, like an adult motion picture theater, would be viewed as “seedy.”

Both the Andrus and Hinckley declarations are brief and unelaborated. Neither Andrus nor Hinckley purported to offer any empirical support for the shared position that a standalone adult arcade would not be viable. The content of the declarations is strikingly similar, and certain important passages are identical. For example, Andrus and Hinckley each declared, verbatim, as follows:

[A] stand-alone adult arcade has the same image problem as do auditorium adult motion picture theatres, which have become all but extinct because of that problem [or “reason”], namely, that they are perceived by the public as “seedy” and as attracting an undesirable element of customers, an image that no longer attaches to adult retail businesses, which tend to be more aesthetically attractive. [Footnote] That explains why free-standing adult theaters (i.e., auditorium-style theaters) nearly vanished beginning as prerecorded home adult videotapes became more widely available. Although such businesses were reasonably profitable during the 1970s, as prerecorded adult videotapes became more widely available during the 1980s, nearly all of them went out of business, the few remaining being those that were annexed to adult book and video stores, as presently are all adult arcades.

The text of the footnote referenced midway through this passage and dealing with the increasingly “couples-oriented” nature of adult entertainment retail is also identical in both declarations.

The City objected to the Andrus and Hinckley declarations, not alleging explicitly that the declarants were potentially biased, but instead that their testimony was speculative and lacking in foundation. But the district court rejected the City's arguments, observing that Andrus and Hinckley, “with their decades of experience owning and operating the specific businesses at issue in this case and their knowledge of the industry, have sufficient foundation to testify that they are not aware of any stand-alone arcade ever existing.” Alameda Books, 2008 U.S. Dist. LEXIS 108860, at *47-48. Because the declarants were testifying as to their understanding of the industry, and not to a scientific process of causation, their industry experience was “all the foundation necessary.” Id. at 49. The district court acknowledged that both witnesses were closely associated with a party to the litigation, but did not address the obvious bias of these witnesses relating to their close association and apparent financial interest.

Applying the second step of the Supreme Court's Alameda Books burden-shifting framework, the district court held that “[p]laintiffs' evidence casts the requisite doubt” because the Andrus and Hinckley declarations “suggest[ ] that the City's intent in passing the ordinances was to reduce secondary effects by closing arcades-impermissibly ‘reducing speech in the same proportion.’ “ Id. at 49(citing Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring)). Since Vanita Spaulding's declaration had been struck, there remained little with which the City could rebut the plaintiffs' evidence that the Ordinance ran afoul of Justice Kennedy's concurrence. Thus, the district court ruled,

Defendant now bears the burden to present some evidence that arcades could survive on their own. The City has not made this showing. Instead, the City relies on the [sic] Vanita Spaulding's Second Declaration, which reviews the revenue and expenses generated and incurred by the arcade and retail components․ However, as already discussed, her declaration is not admissible.

Id. at *51-52. The court went on to conclude that “[t]here is ․ no question of material fact but that Los Angeles Municipal Code section 12.70(C) cannot withstand intermediate scrutiny, and that it violates the First Amendment.” Id. at *6061. Accordingly, the district court granted summary judgment for the plaintiffs. The City filed a timely appeal.

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Following Alameda Books, the test for the constitutionality under the First Amendment of a dispersal ordinance relating to adult businesses remains that prescribed in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). We have encapsulated that test recently as follows:

First, we must determine whether the regulation is a complete ban on protected expression. Renton, 475 U.S. at 46. Second, we must determine whether the county's purpose in enacting the provision is the amelioration of secondary effects. Id. at 47. If so, it is subject to intermediate scrutiny, and we must ask whether the provision is designed to serve a substantial government interest, and whether reasonable alternative avenues of communication remain available. Id.

Dream Palace, 384 F.3d at 1013.

The Supreme Court's Alameda Books plurality clarified the “substantial government interest” standard of the third step of Renton, by prescribing the burden-shifting test we have noted:

If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance.

Alameda Books, 535 U.S. at 438-39.

Justice Kennedy's concurrence slightly modifies this burden-shifting framework by narrowing the universe of allowable municipal rationales to support an ordinance. In particular, “[a] city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring). Justice Kennedy went on to elucidate what this means for the present dispersal statute: “The claim ․ must be that [the] ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced.” Id. at 451.

In addition, the City raises a statute of limitations argument. The statute of limitations applicable to an action pursuant to 42 U.S.C. § 1983 is the personal injury statute of limitations of the state in which the cause of action arose. See Wallace v. Kato, 549 U.S. 384, 387 (2007); DeGrassi v. City of Glendora, 207 F.3d 636, 644 (9th Cir.2000). The California limitations period applicable in this case is one year. See Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir.2004).

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Although we have interpreted the Supreme Court's Alameda Books decision on several occasions, we have yet to hold that a plaintiff has succeeded in “casting doubt” on the city's evidence or rationale. It emerges from these cases that to succeed in “casting doubt” on a city's evidence or rationale, a plaintiff must do more than point to a municipality's lack of empirical evidence, Ctr. For Fair Pub. Policy, 336 F.3d at 1168, or challenge the methodology of the municipality's evidence, Gammoh v.. City of La Habra, 395 F.3d 1114, 1126-27 (9th Cir.2005). When a municipality offers multiple rationales in support of an ordinance, the plaintiff must address each one. See Fantasyland Video, Inc. v. Cnty. of San Diego, 505 F.3d 996, 1002 (9th Cir.2007); World Wide Video v. City of Spokane, 368 F.3d 1186, 1196 (9th Cir.2004). The Sixth Circuit has explained that the plaintiffs bear a heavier evidentiary burden in attempting to “cast doubt” than the municipality does in justifying the ordinance at the outset, and that the plaintiffs' burden will not be carried by “anecdotal” or “unsystematic” evidence. Richland Bookmart v. Knox Cnty., 555 F.3d 512, 527-28 (6th Cir.2009).

An important common element in these cases with respect to the second step of Alameda Books is that to successfully “cast doubt” on a municipality's rationale, a plaintiff must offer not merely evidence, but “actual and convincing” evidence. See Fantasyland Video, Inc., 505 F.3d at 1001(citing Alameda Books, 535 U.S. at 439). Such evidence “must do more than challenge the government's rationale; it must convincingly discredit the foundation upon which the government's justification rests.” Imaginary Images, Inc. v. Evans, 612 F.3d 736, 747 (4th Cir.2010) (citing Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 516 (4th Cir.2002)).

We are not satisfied that the plaintiffs' evidence in this case was “actual and convincing” enough to justify summary judgment-and we emphasize that the procedural posture here was summary judgment. The district court did not explicitly reach a contrary conclusion. Rather, the court dismissed the lack of specific factual foundation in the declarations, did not mention that they contain lengthy passages of identical text and did not discuss at all the facial bias of the declarants. Rather, the district court seemed to opine that no evidence must yield to some evidence-no matter how superficially frail and unexamined-to support a summary judgment.

The district court's failure to take into account as part of its explicit analysis the bias of the plaintiffs' witnesses was a significant oversight. The credibility of witnesses is almost categorically a trial issue, see SEC v. M & A West, Inc., 538 F.3d 1043, 1054-55 (9th Cir.2008), which means that, if bias is an evident factor, summary judgment is not generally indicated. The existence of credibility issues on material questions means that plaintiffs cannot short-circuit the “actual and convincing” language of Alameda Books and its progeny by seeking to have their case resolved at summary judgment. See Anderson, 477 U.S. at 254(“[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.”). If this “actual and convincing” language is to be meaningful, the district court must consider whether the plaintiffs have complied with it before resolving the case in their favor. This means considering inter alia the patent biases of the plaintiffs' witnesses, since evidently biased testimony is not generally convincing. See United States v. Abel, 469 U.S. 45, 52 (1984). Here, the extent to which the Andrus and Hinckley declarations are “convincing” is diminished by their obvious self-interest: one declarant is the vice-president of a party to this litigation, and the other is the president of a Southern California company that installs adult arcades, including those owned by the plaintiff. The content of the declarations strikes us as plausible, but the sources are necessarily suspect.

Moreover, as the City has argued, the Andrus and Hinckley declarations actually establish very little. Neither declarant offers any empirical data in support of his conclusion. Their testimony amounts to a conclusory assertion that they work in the industry, and we should take them at their word that adult arcades could not survive as stand-alone businesses because they would be perceived as too “seedy.” We do not see any support, other than the ipse dixit of the declarants, for the asserted relationship between the seediness of an adult entertainment venue and its ability to stay in business. This lack of substantiation is more problematic when viewed in the context of the arcades' profitability, as demonstrated in Vanita Spaulding's financial analysis. The Spaulding analysis showed the arcades to be profitable in their present forms, a relevant step in a more in-depth examination of their performance in isolation.

Viewing the evidence in the light most favorable to the City, the plaintiffs' two declarations are weakened by their not insignificant verbatim repetition and are affected by obvious bias. The district court should have at least recognized the bias problem in determining whether they successfully “cast doubt” on the City's rationale for its Ordinance. At trial, the frailties of this evidence and its conformity to the “actual and convincing” standard of the Alameda Books framework present an issue of material fact that might be examined, but summary judgment is not indicated.

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Finally, we must turn briefly to the City's argument that the plaintiffs filed suit untimely under the one-year California statute of limitations. This argument is readily disposed of by the City's waiver. A statute of limitations is subject to waiver, including by a government defendant in a § 1983 case. See, e.g., Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 696-97 (9th Cir.2003) (assuming that a waiver by a government defendant in a § 1983 case is possible, although not finding waiver under the circumstances). Here, the City did not argue the statute of limitations in its May 31, 2007 motion for summary judgment, and the district court's opinion does not address it. There may also have been waiver at an earlier point, but this May 2007 waiver was the latest and clearest.

We REVERSE the district court's grant of summary judgment in favor of the plaintiffs, and REMAND this case for further proceedings.

January 31, 2011 | Permalink | TrackBack (0)

Unhappy Hotel Owner May Sue Website Over Unfavorable Review

Remember that story published by TripAdvisor about the dirtiest hotels in the US, and picked up by breathlessly by just about every website with a section on travel? Well, Dennis Devlin, the owner of number three on the list, the Desert Inn Resort in Daytona Beach, says he may sue the website. “One person can write two negative reviews a month just by having different e-mail addresses, different IP addresses,” he said. TripAdvisor notes "the reviews are based on cleanliness ratings from travelers who said they’ve stayed at The Desert Inn Resort. They said out of hundreds of reviews, 80 percent wouldn’t recommend the hotel."

January 31, 2011 | Permalink | TrackBack (0)

Courtney Love's Twitter Lawsuit

Some analysis on the Courtney Love twitter defamation lawsuit here. Meanwhile, it may never reach a courtroom. The judge has given the parties several more weeks to work on a settlement, meaning that February 8th court date may be moot.

January 31, 2011 | Permalink | TrackBack (0)

CBS Faces Losses As Star Heads To Treatment

As "Two and a Half Men" star Charlie Sheen heads back to treatment, his network puts the popular show on hiatus and admits it faces some economic losses. The Hollywood Reporter speculates those costs could balloon as high as a quarter of a billion dollars if the show ends prematurely. More analysis of the economic costs, and Mr. Sheen's value to the brand, here from the L.A. Times. Meanwhile, the network has set a new show, "Mad Love," to premiere Mondays at 8 p.m., on Valentine's Day. One character, Ben, is an attorney.

January 31, 2011 | Permalink | TrackBack (0)

Friday, January 28, 2011

Egypt In Revolution

CNN reports that internet outages in Egypt during this week's violent clashes have been "coordinated" and "extensive" and many think the government is behind them. MSNBC.com's Wilson Rothman examines what faces the Egyptian economy if internet access isn't restored by Monday. He also asks if access to the 'net is a human right. Within the past few hours, President Hosni Mubarek has announced that his government is resigning and that he will institute reforms.

January 28, 2011 | Permalink | TrackBack (0)

"Dr. Phil" Guest Who Showed Approaches To Discipline Now Facing Child Abuse Charges

An Alaskan mother who appeared on the "Dr. Phil" show last November and showed video of her approaches to child discipline is now facing child abuse charges. Her attorneys have entered a "not guilty" plea on her behalf.

January 28, 2011 | Permalink | TrackBack (0)

Thursday, January 27, 2011

Charlie Sheen Taken To Hospital

From The Hollywood Reporter: After complaining of abdominal pains, Two and a Half Men's Charlie Sheen was taken to Cedars-Sinai Hospital early this morning. The show is currently on hiatus. More here from MSNBC.com.

January 27, 2011 | Permalink | TrackBack (0)

Contractual Relationships and the Passive Online Media User

Woodrow Hartzog, University of North Carolina, Chapel Hill School of Journalism & Mass Communication; Stanford University Center for Internet & Society, has published The New Price to Play: Are Passive Online Media Users Bound by Terms of Use? at 15 Communication Law and Policy 405 (2010). Here is the abstract.
When individuals turn on the television, listen to the radio, or read newspapers, they are not forming contractual relationships. Yet almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users” - online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.
The full text is not available from SSRN.

January 27, 2011 | Permalink | TrackBack (0)

London Police Reopen News of the World Phone Hacking Case

Scotland Yard is reopening its investigation of News of the World's phone hacking of prominent persons, four years after the case seemed to have been closed and NOTW's royal editor Clive Goodman received a four month sentence for intercepting some Clarence House phone messages. The story seemed over, but in 2009, the Guardian began reporting that others besides Mr. Goodman had eavesdropped and that the police had evidence. Stories alleging the bad behavior continued to surface; just this week, Kelly Hoppen, a well known decorator and the stepmother of actress Sienna Miller, filed a suit against NOTW. Whispers grew about former NOTW editor Andy Coulson, who had taken a position with the government. He resigned last week. Roger Graef of the Guardian suggests that the initial police investigation may have been soft-pedaled for the usual reasons. Meanwhile, Rupert Murdoch, owner of News of the World, tries to deal both with the phone hacking mess, and with a proposed repurchase of BSkyB (British Sky Broadcasting), which Jeremy Hunt, the Culture Secretary, may oppose.

January 27, 2011 | Permalink | TrackBack (0)

Man Wins $400,000 In Damages In Internet Libel Case

Gene Cooley has won a libel suit and more than $400,000 in damages against a woman who posted libelous statements on the Internet against him. Beginning in 2008, shortly after the death of Mr. Cooley's fiancee, Sybil Denise Ballew began posting false statements about Mr. Cooley, including accusations that he was "a pervert and a drug user." Mr. Cooley lost his job and the trust of friends. He moved but then hired an attorney, who instituted the suit against Ms. Ballew. More here from the Chicago Sun Times.

January 27, 2011 | Permalink | TrackBack (0)

Wednesday, January 26, 2011

True Threats, Advocacy, and the First Amendment

Mark Strasser, Capital University Law School, has published Advocacy, True Threats, and the Constitution at 38 Hastings Constitutional Law Quarterly 339 (2011). Here is the abstract.

Brandenburg v. Ohio is thought by many to offer very robust speech protections, but the true threat exception to the First Amendment can swallow up much of the protection that Brandenburg offers. Regrettably, the Court has failed to offer guidelines to help determine when Brandenburg rather than true threat analysis applies, which has caused lower courts to reach radically different results in relevantly similar cases. Unless the Court addresses the current inconsistencies in the jurisprudence, the interests in security and in robust debate will both continue to be sacrificed.

The full text is not available from SSRN.

January 26, 2011 | Permalink | TrackBack (0)

The Narrative of Citizens United

Reza Dibadj, University of San Francisco School of Law, is publishing Citizens United as Corporate Law Narrative in the forthcoming Symposium Issue of Chapman's Journal of Law and Policy. Here is the abstract.

In a 5-4 opinion, decided January 21, 2010, Citizens United struck down § 203 of the Bipartisan Campaign Reform Act of 2002 which prohibited corporations and unions from using general treasury funds for “electioneering communications” – defined as broadcast, cable or satellite communications that are publicly distributed, within 30 days of a primary election and 60 days of a general election, and advocate for or against a particular candidate in a federal election. This Essay analyzes Citizens United through two lenses – constitutional law and corporate law. It suggests that while the majority’s opinion is breathtaking as a piece of constitutional law, it is actually unremarkable when considered as a narrative in corporate law.

The argument is structured into two principal sections. Part I argues that the opinion is truly unusual from a constitutional perspective. To begin with, it eschews the principle of constitutional avoidance, refuses to consider § 203 as a time, place and manner restriction, and pays precious little attention to stare decisis. Beyond these technical concerns, the majority’s opinion presents deeper constitutional issues: its bold rhetoric is divorced from First Amendment doctrines, other relevant constitutional provisions are ignored, and untested assumptions are proffered about money and speech, corruption, and corporate constitutional rights. By contrast, Part II suggests that the opinion is entirely unremarkable when viewed through the narrative of corporate law. By giving corporations the ability to use general treasury monies to fund political speech, the majority in Citizens United is privileging a class of corporate insiders in a manner consistent with corporate doctrines such as the business judgment rule. Moreover, the opinion’s depiction of voters as autonomous, rational, well-informed participants in political discourse has striking parallels to the manner in which corporate law idealizes shareholders.

The full text is not available from SSRN.

January 26, 2011 | Permalink | TrackBack (0)

The Interception of Electronic Communications Under Spanish Law

Cristina Zoco Zabala, Universidad Publica de Navarra, has published Interception of Electronic Communications in volume 4 of InDret (2010). Here is the abstract.

The objective of this work is to analyse Chapter II of Royal Decree 424/2005, dated 15th April, by which a procedure is regulated to tap electronic communications with the aim of verifying if this practice affects the conditions that limit the essential content of article 18.3 CE. It is concluded that these regulations do not affect article 18.3 CE as refers to the enumeration it includes of the types of data associated to electronic communications that can be legally intervened together with the content thereof. It does, however, mutilate the essential content of article 18.3 CE as refers to the obligation of the judge to determine at least some of such data in the legal tapping order. Inasmuch as the secret of communications is a formal right that limits its content to the possibility of intervene communications by means of a previous judicial resolution detailing the causes thereof, the associated data obtained as a consequence of such an intervention are not protected by article 18.3 CE, but in any case by articles 18.1 and 18.4 CE. This means that once the judicial organ has explicated in its judicial intervention order the objective suspicions of an alleged serious crime as well as the inexistence of other means to prove such a crime that would clarify the alleged criminal conduct that is being investigated, the data obtained as a consequence of such an interception would be protected by article 18.1 CE if that information is revealed to third parties, or by article 18.4 CE if the information is used for other purposes that are different from those for which the tapping was authorised. As a derivation of this, it is also not necessary that organic legislators regulate what data associated to the communications the judges are to mention, as it is necessary to leave a margin of action for the judicial authorities to determine if they believe it is convenient to gather certain associated data mentioned in the regulations, or if a generalised judicial opening of electronic communications is necessary that gathers both the content of the communication as well as data that are associated thereto.

Download the paper from SSRN at the link.

January 26, 2011 | Permalink | TrackBack (0)

Tuesday, January 25, 2011

BBC Apologizes For Remarks On Quiz Program Concerning Double A-Bomb Survivor

The BBC has apologized for the poor taste of celebrity participants on the quiz show QI, who joked after answering a question about the dropping of the two atomic bombs on the Japanese cities of Hiroshima and Nagasaki in 1945. The question involved the fact that one man happened to be in both cities and survived the bombings. The celebs made jokes at his expense; the Japanese Embassy in London protested the remarks as did others who heard the show or heard about the incident. More here from the BBC News.

January 25, 2011 | Permalink | TrackBack (0)

New York State Senator Introduces Amendment To Expand Shield Law To Include Bloggers

New York State Senator Thomas Duane has introduced an amendment to the state shield law that would include "those for gain or livelihood," [are] "engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association [or], wire service or WEB LOG OR other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication." 

Senator Duane introduced similar bills in 2007 (Senate Bill 8746)  and 2009 (Senate Bill 4642). 

January 25, 2011 | Permalink | TrackBack (0)

Monday, January 24, 2011

Images of Politicians in the Egyptian Media

Sherif Elgebeily, University of Westminster School of Law, has published David and Goliath: The Polarised Media Portrayal of the Politicians in Egypt. Here is the abstract.
President Hosni Mubarak is currently the 5th longest living African head of State, having been in power for 29 years since the assassination of Anwar Sadat. In the most recent elections in 2005, Mubarak won with 88% of the vote. However, if you asked Egyptians away from the prying eyes of police officers, army troops or presidential guards whether they support him or not, the overwhelming answer would be one of hatred, bitterness and resentment against a leader whom they feel has failed his people at every turn.

Of course, the media has no small part in the falsification of the sentiments of the nation. In this paper I will address how the newspapers and television channels, many of which are under state-controlled, have built an image of Mubarak as defender, protector, peacemaker and economic saviour, which at best is untrue and at worst deliberately fabricated. I will also address how these same media outlets have vilified any opposition that might face him, from the state media’s endorsement of the imprisonment of Ayman Noor to the more recent return of former IAEA chief, Elbaradei.

Over a quarter of the population aged 15 and above in Egypt are illiterate; there is, thus, a heavy reliance on the visual media in swaying the political opinions of Egyptians. I intend to support my argument by drawing upon photos of the billboards that line the streets of Egypt from the capital, Cairo, to smaller towns and on highways in between. Mubarak’s face in its various guises from the now tattered and dirty posters of his youthful 1980’s face through to more stern photos taken at the turn of the century provide an almost farcical storybook of a dictator who simply refuses to give up power.
Download the paper from SSRN at the link.

January 24, 2011 | Permalink | TrackBack (0)

Wrigley, GM Abandon "Skins"

Advertisers Wrigley and GM have left MTV's "Skins," Wrigley saying it does not want to "offend" consumers. More here from The Hollywood Reporter.

January 24, 2011 | Permalink | TrackBack (0)

A Blogger Acts, and a Community Reacts

When blogger Daniel Cavanagh started writing, and posting photos, about what happens in his community, Gerristsen Beach, New York, he didn't expect the explosion that has followed. But his posts revealed the activities of a local non-profit, which found itself in trouble with the parks department. The non-profit, Gerritsen Beach Cares, was unhappy. Sparks flew. Meanwhile, Mr. Cavanagh continued to report on activities and post information, including an interview with someone, although he didn't tell the interviewee he was taping the conversation and would post it on his blog. He copied Facebook posts, to which some take exception.

Mr. Cavanagh says he's not a journalist, just someone documenting the scene around him. So what legal and ethical standards apply? More here in an article from the New York Times.

January 24, 2011 | Permalink | TrackBack (0)

Why Keith O Left

In the New York Times: explaining the Olbermann exit.

January 24, 2011 | Permalink | TrackBack (0)

Friday, January 21, 2011

French Court Finds Bronfman, Messier Guilty in Vivendi Case

Both Edgar Bronfman, Jr., chairman and CEO of Warner Music Group, and Jean-Marie Messier, formerly head of Vivendi, were convicted on various charges related to their activities at Vivendi during the late 1990s and early 2000s by a French court. Mr. Bronfman, who was at one time executive vice president of Vivendi Universal, received a fine and a suspended sentence for "conveying false or misleading information" about the company. Mr. Messier was convicted for misusing company funds. He also received a suspended sentence. The prosecutor in the case had not pursuing the case against Mr. Bronfman and Mr. Messier because of a lack of evidence. lMore here from the Associated Press and here from the Guardian.

January 21, 2011 | Permalink | TrackBack (0)