Tuesday, June 10, 2014
In summing up for the jury in the phone hacking case against Andy Coulson, former News of the World editor, Mr. Justice Saunders put a particularly amusing comment from witness Dan Evans in context. Mr. Evans, who has pled guilty to hacking, said that the practice was systemic at the defunct tabloid. In fact, it was so prevalent that "even the office cat knew," meaning, said Mr. Justice Saunders, that many people (including presumably the defendant) knew it was going on. But, noted the judge, the defense responded, "Where is the office cat?" Where is the proof that many people were aware?
As someone who has long shared her home with felines, I feel constrained to point out that while they do know many, many things, they disclose very few. And the human-cat privilege (concerning neighbors, bathroom rituals, and screening calls from one's mother, among other things) is, in my opinion, sacred.
A cat keeping it under his beret
Monday, June 9, 2014
Michael G. Bennett, Northeastern University School of Law, has published Celebrity Politicians and Publicity Rights in the Age of Obama at 36 Hastings Communications and Entertainment Law Journal 339 (2014). Here is the abstract.
The right of publicity is a relatively marginalized yet increasingly radical form of intellectual property. Typically, celebrities use it to prevent freeloaders from profiting on their fame by making unauthorized use of their image, likeness or signature to make goods or services more attractive to consumers. The right of publicity allows famous individuals to stop this type of behavior by providing a property right in identity or persona. Brandished by celebrities who are also political figures, though, the doctrine can become a powerful means of chilling political speech, and therefore a direct threat to First Amendment free speech rights. The descriptive goal of this article is to explain how publicity rights can cause problems in the context of political figures that also have celebrity status. This article extends the existing literature on the tension between publicity rights and free speech rights, and uses the spectacle of Barack Obama's initial presidential bid to theorize how a publicity right suit can be used to undermine the political speech of an individual whose public persona is similar to that of a celebrity. This is a new form of strategic intellectual property litigation that could have crippled the first Obama campaign, and a strategy that is likely to be used against future candidates. The normative section of this article argues that individuals who gain a nontrivial measure of pop cultural fame and then go on to become political figures should have no publicity rights, and that denying such figures the power to stop unauthorized commercial use of their likenesses is the only way to avoid societally detrimental chilling of political speech.
Download the article from SSRN at the link.
Richard Ashby Wilson, University of Connecticut School of Law, is publishing Inciting Genocide with Words in volume 36 of the Michigan Journal of International Law (2015). Here is the abstract.
This article calls for a rethinking of the causation element in the prevailing international criminal law on direct and public incitement to commit genocide. After the conviction of Nazi propagandist Julius Streicher at Nuremberg for crimes against humanity, the crime of direct and public incitement to commit genocide was established in the UN Convention on the Prevention and Punishment of Genocide in 1948. The first (and thus far, only) convictions for the crime came fifty years later at the International Criminal Tribunal for Rwanda (ICTR). The ICTR’s incitement jurisprudence is widely recognized as problematic, but no legal commentator has thus far offered an adequate solution to one central contradiction, namely the Trial Chamber’s repeated claims of a causal connection between defendants’ speech and subsequent acts of genocide. Such claims imply that the commission of genocide is relevant to determining incitement, despite the fact that incitement is an inchoate crime and therefore only the speaker’s intention matters. Drawing upon J.L. Austin’s ordinary language philosophy, the article disentangles the intention of the speaker from the consequences of speech acts. In determining incitement to commit genocide, international law might differentiate between three aspects of performative utterances, or what Austin terms the "locutionary" (the meaning and content), the "illocutionary" (its force) and the "perlocutionary" (the consequences) qualities of speech acts. Specific intent to commit genocide is found in the content, meaning and force of speech acts, rather than in consequences, which can be an unreliable guide to intention. By using this template, international tribunals might better distinguish modes of liability that require causation (such as instigating) from inchoate crimes such as direct and public incitement to commit genocide, where the meaning and the force of public statements is paramount. Other benefits of this approach include refocusing attention on the prevention of genocide and clarifying and narrowing the range of impermissible speech.
Download the article from SSRN at the link.
The New York Times' David Carr and Ravi Somaiya report on the solitary, and financially dangerous, way ahead for Time, Inc., after it parts ways with Time Warner.
Monday, June 2, 2014
The Supreme Court has denied cert in New York Times reporter James Risen's appeal in a case brought by the Justice Department. Mr. Risen had sought the Court's review of a Fourth Circuit ruling that ordered him to comply with a subpoena requiring him to testify concerning Jeffrey Sterling, a former C.I.A. operative and information Mr. Sterling had disclosed to him, that Mr. Risen had published in New York Times articles and in his book State of War (2006).
Said the Fourth Circuit in part:
Like the Branzburg reporters, Risen has "direct information . . . concerning the commission of serious crimes." ...Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury -- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead. The subpoena for Risen's testimony was not issued in bad faith or for the purposes of harassment. ...Risen is not being "called upon to give information bearing only a remote  and tenuous relationship to the subject of the investigation," and there is no "reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement." Nor is the government attempting to "annex" Risen as its "investigative arm." (internal quotation marks omitted). Rather, the government seeks to compel evidence that Risen alone possesses -- evidence that goes to the heart of the prosecution.
The controlling majority opinion in Branzburg and our decision in Shain preclude Risen's claim to a First Amendment reporter's privilege that would permit him to resist the legitimate, good faith subpoena issued to him. The only constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self-incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability. Accordingly, we reverse the district court's decision granting Risen a qualified First Amendment reporter's privilege that would shield him from being compelled to testify in these criminal proceedings.
The Fourth Circuit also rejected Mr. Risen's common law reporter's privilege claim. Rehearing en banc, denied by United States v. Sterling, 732 F.3d 292 (4th Circ. 2013).
Mr. Risen seems ready to refuse to comply with the subpoena, although it's not entirely clear that the Justice Department will demand jail time. More coverage here from U. S. News & World Report.