Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 28, 2011

Mexican Journalist Found Dead

Wednesday, July 27, 2011

Submitting Articles to Law Reviews and Journals, 2011

Allen Rostron and Nancy Levit, both University of Missouri, Kansas City School of Law, have updated their article, Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 202 law reviews. The document was fully updated in July 2011.

Download the article from SSRN at the link.

July 27, 2011 | Permalink | TrackBack (0)

Tom Rachman On Journalism and Journalism Novels

Journalist Tom Rachman talks about his new novel, and his favorite reads here in a Guardian article.

July 27, 2011 | Permalink | TrackBack (0)

UK ASA Finds Two L'Oreal Ads Misleading

The Guardian reports that the Advertising Standards Authority has nixed two L'Oreal advertising campaigns on the grounds that pictures of Julia Roberts and Christy Turlington were airbrushed to perfection, violating advertising standards.

In the matter of the Julia Roberts ad, the ASA ruled that

the image was produced with the assistance of post production techniques. While Lancôme provided detail on the techniques they used, we noted that we had not been provided with information that allowed us to see what effect those enhancements had on the final image. We acknowledged the pictures supplied from laboratory testing were evidence that the product was capable of improving skin’s appearance, but on the basis of the evidence we had received we could not conclude that the ad image accurately illustrated what effect the product could achieve, and that the image had not been exaggerated by digital post production techniques. We therefore concluded the ad was misleading.

 

The ad breached CAP Code (Edition 12) 3.1 (Misleading advertising) and 3.11 (Exaggeration).

In the matter of the Christy Turlington ad, the ASA ruled that

the combined effect of the image and the surrounding text was to suggest that the product could have a significant impact on the appearance of imperfections in the skin. We noted that the claims in the text were broadly consistent with the results of the consumer testing, however, we considered that the information Maybelline provided regarding the digital re-touching of the image was insufficient to establish whether the difference between the “blocks” was an accurate representation of the results the product could achieve. We therefore concluded that the ad was likely to mislead.

 

The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.11 (Exaggeration).

July 27, 2011 | Permalink | TrackBack (0)

CBS, Netflix Seal Content Deal

From The Hollywood Reporter: CBS and Netflix have entered into a two year deal to provide Netflix users streaming content of CBS Corp's material, including 90210, United States of Tara, Californication, and Dexter. In addition, Latin American subscribers will get access to Medium and Nurse Jackie; Canadian users will have access to Numb3rs and Twin Peaks.

July 27, 2011 | Permalink | TrackBack (0)

The AI Author and Copyright

Annemarie Bridy, University of Idaho College of Law, has published Coding Creativity: Copyright and the Artificially Intelligent Author. Here is the abstract.

For more than a quarter century, interest among copyright scholars in the question of AI authorship has waxed and waned as the popular conversation about AI has oscillated between exaggerated predictions for its future and premature pronouncements of its death. For policymakers, the issue has sat on the horizon, always within view but never actually pressing. To recognize this fact, however, is not to say that we can or should ignore the challenge that AI authorship presents to copyright law’s underlying assumptions about creativity. On the contrary, the relatively slow development of AI offers a reprieve from the reactive, crisis - driven model of policymaking that has dominated copyright law in the digital era. This Article advances the argument that the increasing sophistication of generative software compels recognition that computational creativity is less heterogeneous to both its human counterpart and the current structure of copyright law than appearances may suggest. The Article frames and then seeks to answer some difficult questions arising from the artificially intelligent production of cultural works, including how and when the law of copyrights should evolve, if indeed, it can evolve within constitutional limits to accommodate the birth of the AI author.

Download the paper from SSRN at the link.

July 27, 2011 | Permalink | TrackBack (0)

Tuesday, July 26, 2011

Counterinterinsurgency and Wikileaks

Paul Rosenzweig, George Washington University School of Law & The Heritage Foundation, has published Lessons of Wikileaks: The U.S. Needs a Counterinsurgency Strategy for Cyberspace as The Heritage Foundation Backgrounder No. 2560 (2011). Here is the abstract.

Over the past 10 years, the United States has devoted significant resources to the development of a counterinsurgency strategy for fighting non-traditional enemies on the ground. As the global scandal caused by the unauthorized publication of classified government material on the infamous WikiLeaks Web site has demonstrated, it is time for a counterinsurgency strategy in cyberspace as well. While the U.S. government has authored a number of cybersecurity strategies, they all focus too much on technology and not enough on a comprehensive approach to battling cyber insurgency. This paper explains what the U.S. should do if it wants to win the escalating cyber battle.

Download the article from SSRN at the link.

July 26, 2011 | Permalink | TrackBack (0)

Twitter in the Courtroom

Mark L. Tamburri, Thomas M. Pohl, and M. Patrick Yingling, Moi University School of Law, have published A Little Bird Told Me About the Trial: Revising Court Rules to Allow Reporting from the Courtroom Via Twitter in volume 15 of the BNA Electronic Commerce & Law Report (September 15, 2010). Here is the abstract.

Over the past year, a handful of courts around the country have confronted the novel issue of whether to allow reporting of criminal trials from inside the courtroom via Twitter, the micro-blogging and social networking service. While courtroom "tweeting" provides the public with innovative and current access to trial information, certain rules banning or otherwise restricting cameras in the courtroom can also be read to prohibit tweeting from the courtroom. These rules, however, were never drafted with Twitter in mind. Given the increasing use of Twitter and related technologies by mainstream news media, it is likely that state rules committees will soon be seeking to revise the language of certain rules. This article provides a brief overview of the media's increasing use of Twitter to report on trials from within courtrooms. The balance of the article details considerations - both legal and practical - that rules committees will necessarily have to weigh to address this emerging trend.

Download the article from SSRN at the link.

July 26, 2011 | Permalink | TrackBack (0)

Saturday, July 23, 2011

The DeHavilland Case

Matt Stahl, University of Western Ontario, Faculty of Information and Media Studies, has published Employee in a Cage? Olivia De Havilland, Warner Bros. Pictures, and the 'Limiting Case' of (Star) Employment. Here is the abstract.

This paper offers a new interpretation of De Havilland’s 1944 contest with Warner Bros. Pictures. It engages some of the more evocative language animating the Superior and Appellate court decisions in order to highlight the insights into employment as an institution that sometimes emerge in the legal struggles over the terms of star employment. Star contracts and the struggles over them, I suggest, present a “limiting case” of employment, illuminating in their extremity a range of political tensions that are otherwise naturalized and obscured in the run of routine of work relations. This paper focuses on some of the ways in which the central arguments in these cases brought out into the open tensions between voluntarism and coercion that inhabit the core of the employment relation in democratic market society. The paper suggests that the employment relations of Hollywood talent – from stars to supporting cast to character actors – constitutes a marginal form of employment: actors’ labor was subject to extraordinary forms of capture and control because of its imperfectly substitutable nature.

Download the paper from SSRN at the link.

July 23, 2011 | Permalink | TrackBack (0)

Friday, July 22, 2011

FBI Seeks Info From Actor On Possible News of the World Phone Hack

Jude Law, who has filed a lawsuit against the now defunct News of the World and the still funct Sun for hacking his cell phone, may be talking to the FBI, which has launched an investigation of the case. More here from the Hollywood Reporter.

July 22, 2011 | Permalink | TrackBack (0)

Newsgathering Privilege In Canada

Jamie Cameron, Osgoode Hall Law School, York University, has published Of Scandals, Sources, and Secrets: Investigative Reporting, National Post and Globe and Mail. Here is the abstract.

Twice in 2010 the Supreme Court of Canada considered the status of confidential newsgathering sources. Each case arose from investigative reporting which exposed ethical breaches and wrongdoing at the highest levels of federal government. Rather than constitutionalize the journalist-source relationship as an element of newsgathering under s.2(b) of the Charter, the Court re-affirmed the common law Wigmore test for privilege. After rejecting the claim of privilege in National Post, the Court adopted a more source-protective approach in Globe and Mail. The Court’s lack of initiative points to the need for policy debate, leading to statutory protection for confidential newsgathering sources.

Download the paper from SSRN at the link.

July 22, 2011 | Permalink | TrackBack (0)

Thursday, July 21, 2011

UK Court Dismisses Plagiarism Case Against JK Rowling

The plagiarism case brought seven years ago by the estate of Adrian Jacobs against J. K. Rowling has been dismissed by a UK court. Trustee Paul Allen had been ordered to post a bond before the case could go forward. Because he failed to do so this week, the court dismissed the action. The estate could still bring the action in another jurisdiction; however, a U.S. court dismissed a similar action earlier this year.

July 21, 2011 | Permalink | TrackBack (0)

Press Regulation In Scotland

Interesting discussion over at the blog Lallands Peat Worrier of Scottish reaction to the phone hacking scandal and press regulation in Scotland. This post refers to another post discussing press regulation at another blog called Love and Garbage. Both bloggers are considering the failure of the Scottish PM, Alex Salmond, to propose any regulation of the Scottish press.

Says Love and Garbage in part,

The issues on which the Scottish Parliament (and Scottish government) cannot act are broadly set out in Schedule 5 to the Scotland Act 1998, which includes a reservation in relation to certain topics regarding culture and the media in Head K. The reservations include broadcasting, public lending right, a government indemnity scheme, and tax related transfers of national heritage. The press and regulation of the press does not appear in Head K. Regulation of the press does not appear anywhere in Schedule 5. This is a devolved topic. And if the SNP government had the will to do anything about the potential implications of press behaviour in Scotland after Operation Motorman they – and not Westminster – could have acted. In fact if Westminster had acted across the Uk the Scottish Parliament would have required to pass a Sewel motion to assent to Westminster dealing with devolved territory.

Salmond and the SNP have failed, as all politicians and political parties have failed, to take press regulation seriously after the Operation Motorman reports. The failure even to comment over the past five years, and to try – even now – to pass the buck to Westminster, is shameful.

Contrary to the posturing of the First Minister this is not just a Westminster problem. This is also a Holyrood problem. And in failing to take seriously the Guardian stories on phone hacking, and the Information Commissioner’s reports on Operation Motorman this has been a shameful abrogation of responsibility for the whole of our political class.

Responds Lallands Peat Worrier in part,

Salmond presents us with an image of the virtuous devolved authority, faces writ with concern, looking on as Westminster authorities did sod all. It's beyond my control, it says, with a sorrowful shrug.  It wisnae me, he implies, and on press regulation suggests - or near as damn it - that the SNP would haven regulated differently, but couldn't, so didn't. You can almost hear the distant refrain our opponents find so tiresome ~ "in an independent Scotland..." In fact, in terms of Scottish press regulation, the proper formulation is that the SNP could have done something and didn't - in large part because like (almost) everybody else, the party wasn't wildly interested in the Information Commissioner's (2006) report What price privacy? The Unlawful trade in confidential personal information and the follow-up six months later, What price privacy now? To imply otherwise is understandable but clearly dexterous positioning in the prevailing political atmosphere.
 
There are number of dimensions to this. Firstly, the devolution settlement. Is press regulation within Holyrood (and thus the SNP's) powers or not? Secondly, what does it tell us that most folk (even one suspects in the parliament) might be surprised to discover the answer to my first question is yes? Thirdly, what are the implications of Holyrood's freedom to act here? What actions might it consider taking, and why?


Both posts worth reading in their entirety.

 

July 21, 2011 | Permalink | TrackBack (0)

The "Had I But Known" Defense

Following up on the Rupert and James Murdoch testimony before a House of Commons Committee earlier this week, yesterday Prime Minister David Cameron appeared before the House of Commons to make a statement and answer questions about what he knew, and perhaps should have known about what was going on at News of the World, considering that he had hired former NOTW editor Andy Coulson as Director of Communications (Coulson has now been arrested). PM Cameron said several times in different ways that hindsight is 20/20 and that had he but known then what he knows now, he would have made a different employment choice. But others, including Nick Clegg, leader of the Liberal Democrats, are saying that they raised questions with Mr. Cameron about the employment of Mr. Coulson.

The Murdochs made essentially the same responses--had they but known about the behavior (phone hacking) then, in 2009, or 2010, they would have put a stop to it. Rupert Murdoch said specifically that he does not take "ultimate responsibility."

July 21, 2011 | Permalink | TrackBack (0)

Protecting Minors On Social Media Sites

Aspasia Tsaoussi, Aristotle University of Thessaloniki, has published Facebook, Privacy and the Challenges of Protecting Minors on Social Networking Sites. Here is the abstract.

Online social networking services such as Facebook, Twitter and LinkedIn have proliferated in recent years. In this paper, we will focus on the impact of Facebook, which is the network with the most users worldwide (as of March 2011 Facebook had more than 640 million registered users). Facebook has multiple uses: it is potentially and concurrently a dating site, a friend locator, and a public relations tool. We examine both the positive and the negative repercussions of the Facebook phenomenon. We then look more closely at one of its main effects: the fact that it serves to efface the boundaries in the traditional public/private dichotomy. Supposedly Facebook protects its users through privacy settings. Yet users add personal details (like email addresses, cell phone numbers, and photos). If something goes wrong, questions arise as to the legal relationship that users have agreed to. Who has access to their personal information? What is the meaning of the Facebook disclaimer in its “Terms of Service” (the online equivalent of “fine print” in contracts of adhesion)? Perhaps only lawyers know that under Facebook’s ToS, users give up copyright control of any material posted. As a result, laypersons at best remain partially protected. Privacy issues and data protection concerns (esp. protecting users who cannot protect themselves, such as minors under 18 who regularly use the medium) clash with freedom of expression/freedom of speech/freedom of information. The legislator concerned with efficiently regulating the use of online social networks needs to accommodate these conflicts, devising wise and balanced solutions.

Download the paper from SSRN at the link.

July 21, 2011 | Permalink | TrackBack (0)

President of Ecuador Wins Libel Suit Against Paper; Editor & Directors Sentenced To Jail

An Ecuadorian judge has sentenced the directors and an editor of a newspaper to jail for an article which suggested that President Rafael Correa had ordered an attack on a hospital last year. The defendants must also pay millions of dollars in damages. They plan to appeal. The paper, El Universo, reacts here. The story has drawn reaction from media and press organizations around the world. Reporters Without Borders released this statement.

“Even if the columnist’s comments were excessive, we condemn the three-year jail sentences and the exorbitant fines and damages awards imposed on him and El Universo’s directors,” Reporters Without Borders said. “These sentences are all the more inopportune for coming at a time when the future communication law is being debated.

“Contrary to the general trend in Latin America of decriminalizing media offences, Ecuador’s legislation still provides for prison sentences for defamation. Jailing someone for a media offence is contrary to the jurisprudence established by the Inter-American Court of Human Rights, which Ecuador is required to follow as a member of the Organization of American States.

“This kind of judicial persecution suggests that the authorities are pursuing a strategy aimed at silencing the country’s media, which are heavily criticized by President Correa in his radio and TV broadcasts known as ‘cadenas’ and ‘enlaces.’ We call again for the decriminalization of media offences and we urge the courts to overturn this ruling. Upholding it will just encourage self-censorship.”

July 21, 2011 | Permalink | TrackBack (0)

Wednesday, July 20, 2011

Ninth Circuit Overturns "Especially Unpleasant Fellow"'s Conviction

Referring to defendant Walter Bagdasarian as "an especially unpleasant fellow," the Ninth Circuit has nevertheless overturned his conviction under 18 U.S.C.  § 879(a)(3), which makes it "a felony to threaten to kill or do bodily harm to a major presidential candidate." Mr. Bagdarsarian made "the following
statements on an online message board two weeks before the presidential election: (1)  “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2)  “shoot the nig.” The Court ruled 2-1 that the statements did not meet the criteria necessary

[f]or a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. See Gordon, 974 F.2d at 1117. The second is that the defendant intended that the statement be understood as a threat. Id. Because Bagdasarian's conviction under § 879 can be upheld only if both the objective and subjective requirements are met, neither standard is the obvious starting point for our analysis, and our resolution of either issue may serve as an alternate holding.

We begin with the objective test. One question under § 879(a)(3)is whether a reasonable person who heard the statement would have interpreted it as a threat. Gordon, 974 F.2d at 1117. This objective test requires the fact-finder to "look[ ] at the entire factual context of [the] statements including: the surrounding events, the listeners' reaction, and whether the words are conditional." Id. It is necessary, then, to determine whether Bagdasarian's statements, considered in their full context, "would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm on or to take the life of [Obama]." Id. (quoting Roy, 416 F.2d at 877-78. The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the Presidential candidate.

Neither statement constitutes a threat in the ordinary meaning of the word: "an expression of an intention to inflict . . . injury . . . on another." Webster's Third New International Dictionary 2382 (1976). The "Obama fk the niggar" statement is a prediction that Obama "will have a 50 cal in the head soon." It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. "[S]hoot the nig" is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.It is difficult to see how a rational trier of fact could reasonably have found that either statement, on its face or taken in context, expresses a threat against Obama by Bagdasarian.

There is no disputing that neither of Bagdasarian's statements was conditional and that both were alarming and dangerous. The first statement, which referred to Obama as a "niggar" who "will have a 50 cal in the head soon," coupled a racial slur with an assassination forecast during a highly controversial campaign that would ultimately make Obama the country's first black president. No less  troubling is the defendant's second statement imploring others to "shoot the nig," lest the "country [be] fkd for another 4 years+" because "never in history" has a black person "done ANYTHING right." There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian's commandment. There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.

When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words' utterance, but must not distort or embellish their plain meaning so that the law may reach them. Here, the meaning of the words is absolutely plain. They do not constitute a threat and do not fall within the offense punished by the statute. In Watts, the Supreme Court reversed a conviction under a presidential threat statute. 394 U.S. at 705-06. The defendant there had said, "[a]nd now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Id. at 706. The Court held that "we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials'"; adding that "[t]he language of the political arena . . . is often vituperative, abusive, and inexact." Id. at 708 (citations omitted).

The Government argues that among the relevant elements of the factual context is that the defendant's messages were anonymous, posted only under the screen name "californiaradial." We grant that in some circumstances a speaker's anonymity could influence a listener's perception of danger. But the Government offers no support for its contention that the imperative "shoot the nig" or the prediction that Obama "will have a 50 cal in the head soon"  would be more rather than less likely to be regarded as a threat under circumstances in which the speaker's identity is unknown.Whatever the effect, in other circumstances, of anonymity on a reasonable interpretation of Bagdasarian's statements, the financial message board to which he posted them is a non-violent discussion forum that would tend to blunt any perception that statements made there were serious expressions of intended violence.

When, in this case, we look to "[c]ontextual information . . . that [could] have a bearing on whether [Bagdasarian's] statements might reasonably be interpreted as a threat," United States v. Parr, 545 F.3d 491, 502 (7th Cir. 2008), cert. denied, 129 S. Ct. 1984 (2009), the only possible evidence is that three or four discussion board members wrote that they planned to alert authorities to the "shoot the nig" posting, although only one reader, Air Force Officer Base, actually did. The dissent identifies the responsive postings as the "[m]ost telling" evidence that a reasonable person would have perceived Bagdasarian's messages as a threat. In doing so, it mischaracterizes these postings as "indicat[ing] that [their authors] perceived 'shoot the nig' as a threat to candidate Obama." Dissent at 9828. In fact, none of the responses said anything about a threat. Their authors may well have thought that Bagdasarian's messages were impermissible or offensive for some other reason or that they encouraged racism or violence. We fail to see why the fact that several people had negative reactions to the messages should be taken to mean that they or others interpreted them as a threat. It is certainly more significant that among the numerous persons who read Bagdasarian's messages, the record reveals only one who was sufficiently disturbed to actually notify the authorities.

The Government contends that two additional facts show that Bagdasarian's statements might reasonably be interpreted as a threat. The first is that when Bagdasarian made the statement that Obama "will have a 50 cal in the head soon," Bagdasarian actually had .50 caliber weapons and ammunition in his home. The second is that on Election Day, two weeks after posting the messages, he sent an email that read, "Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this," and linked to a video of debris and two junked cars being blown up. Nobody who read the message board postings, however, knew that he had a .50 caliber gun or that he would send the later emails. Neither of these facts could therefore, under an objective test, "have a bearing on whether [Bagdasarian's] statements might reasonably be interpreted as a threat" by a reasonable person in the position of those who saw his postings on the AIG discussion board. Parr, 545 F.3d at 502.

...

Even if "shoot the nig" or "[he] will have a 50 cal in the head soon" could reasonably have been perceived by objective observers as threats within the factual context, this alone would not have been enough to convict Bagdasarian under 18 U.S.C. § 879(a)(3). The Government must also show that he made the statements intending that they be taken as a threat. A statement that the speaker does not intend as a threat is afforded constitutional protection and cannot be held criminal. In Black, the Court explained that the State may punish only those threats in which the "speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." 538 U.S. at 359. And in Gordon, we held as a matter of statutory interpretation that Congress "construe[d] 'knowingly and willfully' [in § 879] as requiring proof of a subjective intent to make a threat,'" and thus requires the application of a subjective as well as an objective test. 974 F.2d at 1117 (alterations in original) (quoting 128 Cong. Rec. 21,218 (1982)).

We have explained, supra at 9809-13, why neither of Bagdasarian's statements on its face constitutes a true threat unprotected by the First Amendment. Most significantly, one is predictive in nature and the other exhortatory. For the same reasons, the evidence is not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats. See Jackson, 433 U.S. at 319. Both under the constitutional requirement established in Black that we must read into § 879, and under the statutory requirement that we found extant in Gordon, the district court's inference of Bagdasarian's intent to threaten is unreasonable taken in context and does not, even when considered in the light most favorable to the prosecution, lie within the permissible range of interpretations of his message board postings. As a matter of law, neither statement may be held to constitute a "true threat."

As we discussed in the previous section, the prediction that Obama "will have a 50 cal in the head soon" is not a threat on its face because it does not convey the notion that Bagdasarian himself had plans to fulfill the prediction that Obama would be killed, either now or in the future. Neither does the "shoot the nig" statement reflect the defendant's intent to threaten that he himself will kill or injure Obama. Rather, "shoot the nig" expresses the imperative that some unknown third party should take violent action. The statement makes no reference to Bagdasarian himself and so, like the first statement, cannot reasonably be taken to express his intent to shoot Obama.

As with our analysis of the objective test, we do not confine our examination of subjective intent to the defendant's statements alone. Relying on United States v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007), the Government points to the two facts that we discussed in our analysis of objective understanding as evidence that Bagdasarian intended to make a threat: (1) that he was later found to possess a .50 caliber gun like the one he mentioned in the "Obama fk the niggar" posting, and (2) that the Election Day email referred to the use of "a 50 cal on a nigga car." Neither fact is sufficient to prove beyond a reasonable doubt that Bagdasarian intended to make a threat when, two weeks before Election Day, he posted the two statements for which he was indicted.

In Sutcliffe, we affirmed a conviction under another threat statute, 18 U.S.C. § 875(c), which, in addition to the knowing transmission of an interstate threat, requires specific intent to threaten. 505 F.3d at 952, 960-61; see also United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988). We held that the district court did not abuse its discretion by allowing the Government to present evidence of the defendant's gun possession to demonstrate that he actually intended to threaten violence. Id. at 959. The fact of the defendant's gun possession was not determinative of the defendant's intent, however, but just one among many pieces of evidence relevant to the language and context of the threats that we considered in determining that the defendant had the requisite specific intent to threaten. Most important in Sutcliffe were the first-person and highly specific character of messages such as "I will kill you," "I'm now armed," and "You think seeing [your license plate number posted on my website] is bad . . . trust us when we say [it] can get much, much, worse. . . . [I]f you call this house again . . . , I will personally send you back to the hell from where you came." Id. at 951-52 (first omission and second alteration in original).

Given that Bagdasarian's statements, "Re: Obama fk the niggar, he will have a 50 cal in the head soon" and "shoot the nig" fail to express any intent on his part to take any action, the fact that he possessed the weapons is not sufficient to establish that he intended  [*34] to threaten Obama himself. Similarly, the Election Day emails do little to advance the prosecution's case. They simply provide additional information — weblinks to a video of debris and two junked cars being blown up and to an advertisement for assault rifles available for purchase online — that Bagdasarian may have believed would tend to encourage the email's recipient to take violent action against Obama. But, as we have explained, incitement to kill or injure a presidential candidate does not qualify as an offense under § 879(a)(3).

Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a "true threat," and they are therefore protected speech under the First Amendment. See Black, 538 U.S. at 359. Accordingly, his conviction must be reversed.

The case is U.S. v. Bagdasarian, 2011 U.S. App. LEXIS 14684. [Footnotes omitted].

July 20, 2011 | Permalink | TrackBack (0)

Information Activist Arrested For Downloading Millions Of Articles From JSTOR

Aaron Schwarz, who wrote the RSS specs 10 years ago, when he was 14, has been arrested for "excessive downloading" of documents from JSTOR, the electronic library of academic articles. He obtained access to MIT's computer system somehow and over a period of weeks apparently downloaded millions of articles. More here from the New York Times. Here is a link to a statement from Demandprogress.com, an organization started by Mr. Schwarz.

July 20, 2011 | Permalink | TrackBack (0)

Judge Allows Appeal of Ruling In Google Street View Case

A district court judge has given leave to appeal his ruling in the Google Street View litigation that concerning wireless electronic communications governed by the Wiretap Act. (Link to order staying original order). Judge James Ware handed down his original order June 29.

Google's position is that unencrypted, wireless communications are publicly available and thus do not violate the Act.

July 20, 2011 | Permalink | TrackBack (0)

Sherrod Defamation Against Breitbart Lawsuit Reaches Court

U. S. District Court Judge Richard Leon is entertaining a motion to dismiss former U. S. Department of Agriculture Shirley Sherrod's defamation lawsuit against blogger Andrew Breitbart, or, in the alternative, argue Mr. Breitbart's attorneys, to transfer the case to a California district court. Ms. Sherrod filed the case after Mr. Breitbart allowed to be uploaded to his blog an edited version of a speech Ms. Sherrod made in 2010; the edited version, Ms. Sherrod contends, made her seem "discriminatory." Ultimately, she resigned her position at the Agriculture Department. When the full, unedited video was made public, Tom Vilsack, the Ag Secretary offered her another position, which she refused.

July 20, 2011 | Permalink | TrackBack (0)