First Amendment and Media Law issues, including libel, privacy, newsgathering, and intellectual property.
"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
-New York Times v. Sullivan, 376 U.S. 254 (1964)
Sports Illustrated reports here that safety equipment manufacturer Bill Simpson has settled his $8.5 million defamation suit against NASCAR. Simpson claimed that NASCAR had wrongly blamed his former company's seat belt for the death of Dale Earnhardt in a crash during the 2001 Daytona 500. While Simpson had indicated that he really wanted an apology from NASCAR, not money, terms of the settlement were not disclosed. According to the report, Simpson and NASCAR released the following statement:
Simpson and NASCAR are happy to announce that they agree that it is in the best interest of racing that they direct their time, energy and resources away from litigation and toward their joint goal of improving safety for professional racing drivers.
The Washington Post reports here that attorneys for Kenneth Adelman, an aerial photographer sued by Barbra Streisand for posting photographs of her Malibu estate on the Internet, have moved to dismiss the lawsuit. Adelman claims his California Coastal Records Project web site provides the photographs for scientific and research purposes, and his attorneys have argued that the photos are a matter of public interest that should be protected as part of Adelman's free speech. [prior related post here]
The New York Daily News reports here that director/fugitive from the law Roman Polanski is lining up an all-star cast to testify in a libel suit he is bringing against Vanity Fair. Polanski is reportedly suing the magazine over a report last year that alleged that he propositioned a Swedish beauty in New York while en route to his murdered wife's funeral. Polanski asserts that he never stopped in New York when traveling to the funeral. [link via Gawker]
Like many others, Polanski has chosen to file suit in the UK given its "plaintiff-friendly" libel laws. But given the UK's apparently "US fugitive-unfriendly" laws, Polanski will not actually set foot in the UK and hopes to testify via video-link. According to the report, "[Polanski] was charged in 1977 with the statutory rape of a 13-year-old at Jack Nicholson's Hollywood home. He agreed to plead guilty but fled the country while awaiting sentencing."
Notably, the Daily News summed up the differences between UK and US libel law: "Polanski is suing in London because tough British libel laws will force the magazine to prove it did not commit libel. In the U.S., a public figure has to prove malicious intent." Close, but alas, no cigar.
The Star Tribune reports here that Thomas Schlieman, a St. Cloud, Minnesota police officer, has won $110,000 in a defamation lawsuit against KARE-TV in the Twin Cities. The case arose over a statement in a May 1999 KARE report concerning the fatal shooting of Kevin Hartwig by Officer Schlieman.
According to the Star Tribune report, "Officers had gone to Hartwig's home after a neighbor called police. He came outside with a knife sticking out of his chest. Police told him to leave the knife in his chest, but he pulled it out and charged at them. Schlieman fired, hitting Hartwig in the chest." Dennis Stauffer of KARE, however, reported that two witnesses told him that Hartwig wasn't being aggressive. Schlieman's attorneys stated that the two witnesses later said they never told Stauffer that Hartwig wasn't being aggressive.
This was the second time the case was tried. An earlier verdict that resulted in a verdict for the station was reversed on appeal. KARE has indicated that it will be appealing this time around.
Plaintiffs, the surviving family members of Billy Tyne, the captain of the ill-fated Andrea Gail, filed claims for misappropriation and false light invasion of privacy against the film's producers over the fictionalization of the events surrounding the Andrea Gail's loss at sea. Specifically, the plaintiffs complained that the film depicted Billy Tyne as an "obsessed sea captain" who put the lives of his crew at stake.
While the U.S. District Court for the Middle District of Florida dismissed the action, the appellate court, unsure of the proper scope of the state's misappropriation statute, has now certified the following question to the Florida Supreme Court: To what extent does Section 540.08 of the Florida Statutes apply to the facts of this case?
The question arises out of several statutory construction issues concerning the Florida law. First, noting that § 540.08(1) employs the phrase "any commercial or advertising purpose," the plaintiffs "note that if the statute covers only the promotion of a product or service, then the term 'any commercial . . . purpose' is rendered surplusage; there would be no need to state both 'advertising' and 'commercial' if the two terms had precisely the same meaning. This reading, they observe, would run counter to the wellknown principle that a statute should be read to give effect to each of its provisions and to avoid rendering any terms mere surplusage."
Second, the Court recognized that the plaintiffs "contend that if § 540.08 were read to solely prevent the unauthorized use of a name to directly promote the product or service of the publisher, it would conflict with language in the statute's two 'exception' provisions [for use of a person's name or likeness in news or other media if the use implicates public interest and is not for an advertising purpose and resale or redistribution of artistic works]."
Given the points raised by plaintiffs, the Court certified the question to the Florida Supreme Court.
With respect to the dismissal of the false right claim, however, the Court affirmed the dismissal.
In the course of the exhaustive research concerning yesterday's Stripperella post, I came across some funny stuff in Pam Anderson's IMDB.com bio. Not only is Ms. Anderson credited as "Producer" of the home video sex tapes of her and then-husband Tommy Lee, she's also credited as the "Hair Stylist" and "Makeup Artist."
CNN.com reports here that the $10 million libel suit brought by Carolyn Condit against The National Enquirer has settled. No details were released. Ms. Condit sued over "an August 7, 2001, article that cited confidential police sources as saying Carolyn Condit 'flew into a rage' during a telephone conversation with [Chandra] Levy." Ms. Condit denied ever speaking with or meeting Levy. [prior related post here]
The New York Daily News reports here that Ashton Kutcher has demanded an apology from the London Evening Standard over a quote that Kutcher says he never uttered: that girlfriend Demi Moore "was the hottest actress in Hollywood when I was growing up. Now I'm [bleeping] her." Kutcher claims the paper simply made the quote up and is reportedly considering his legal options.
It's also not a good sign when the reporter credited with the story also claims the quote was fabricated. According to the report, reporter Jane Bussmann has also asked for an apology from the paper. [link via Gawker]
In the wake of the Michael Douglas and Catherine Zeta-Jones trial against Hello!, Jennifer Aniston has reportedly settled her breach of privacy suit with the UK's Daily Sport for £40,000. [report here via Guardian Unlimited] Aniston claimed the Daily Sport breached her privacy by publishing photographs of her topless and in swimwear taken with a telephoto lens. The photographs, one by her pool in Los Angeles and two on a private beach in Mexico, were taken without her knowledge and published in March last year.
The article also reports that Aniston's settlement "comes a month after DJ Sara Cox won £50,000 from the People for publishing naked photos of her on honeymoon."
Just as cases like Batzel v. Smith [prior post here] seem to be widening the gap between the traditional principles of common law defamation jurisprudence and defamation law as applied to the Internet, along comes the reincarnation of Firth v. State of New York.
On March 18, 1998, George Firth, former director of the Department of Environmental Conservation's Division of Law Enforcement, filed an action for defamation against New York State based on statements made in a report issued by the Office of the State Inspector General, originally issued at a press conference held on December 16, 1996 and published on the Internet soon thereafter.
In July 2002, the New York Court of Appeals, noting that Firth's complaint was filed outside of New York's one-year statute of limitations, affirmed the dismissal of the claim holding that the single publication rule applies to the Internet, such that there is not a republication for defamation purposes each day the item is available on the Internet but, instead, the statute of limitations runs from the item's initial posting. Firth v State of New York, 98 NY2d 365 (2002).
Apparently not easily dissuaded, Firth filed another defamation claim against the state arguing this time that the state "republished" the allegedly defamatory statements when when the report was moved to a new directory on the State Library's web site as part of the state's web site revision project. This time around, however, he's gotten better results as New York's Appellate Division has denied the state's motion for summary judgment. Firth v. State of New York, No. 93031 (N.Y. App. Div. June 12, 2003).
The court found:
The Court of Claims properly denied defendant's motion for dismissal of the complaint pursuant to CPLR 3211 (a) (7), since claimant's allegations that the report was moved to a different Internet address are sufficient to state a cause of action for republication to a new audience akin to the repackaging of a book from hard cover to paperback.
Continuing, the court faulted the state for failing "to meet its burden of establishing that no triable issues of fact exist, based on its insufficient motion papers. Defendant submitted a conclusory attorney affirmation and an affidavit of a state employee without personal knowledge of the facts surrounding the alleged republication."
While the state had attempted to amend its motion papers and sought leave to reargue its motion, both the Court of Claims and the Appellate Division rejected the efforts as the state had "offered an insufficient excuse for failing to submit these documents on the summary judgment motion."
It must have been a scorcher that day in May 1999 on Lake Havasu, when Michelle Padilla, then a 23-year-old single mom, decided to showcase her wares by flashing her breasts in response to the exhortations of onlookers . Four years later, Padilla, now 27, is married and is the stepmother of her husband's two sons, ages 14 and 11. Oh, and she's also featured on the cover of a "Girls Gone Wild" video, in the video itself, in "GGW" advertising and on the "GGW" website.
With her sons reportedly having heard "rumors" at school about their stepmom's "Girls Gone Wild" appearance, Padilla has filed a lawsuit against the folks at "GGW" alleging that they've violated her right to publicity and seeking an injunction barring further sale or distribution of the offending video and DVD. Padilla claims she had no idea she was being filmed during her brief indiscretion. [story and portion of the complaint via The Smoking Gunhere].
Following in the footsteps of Spike Lee, Janet Clover, a former stripper, is seeking to have Spike TV's "Stripperella," an animated series featuring Pamela Anderson as the voice of a stripper who moonlights as a superhero, taken off the air. Ms. Clover claims she's the brains behind the show and gave cartoonist/creator Stan Lee the idea for the show a year ago during a private dance session. The suit names Anderson, Lee and Viacom. [coverage via Seattle Post-Intelligencerhere]
Speaking of Spike, not a lot has been divulged about the settlement of his misappropriation suit against Viacom. While it's been hinted that the settlement included development deals for Spike and his wife Tonya, the only information released publicly was this statement from Mr. Lee:
On reviewing the circumstances concerning the name change of the network, I no longer believe Viacom deliberately intended to trade on my name when naming Spike TV.... As an artist and a filmmaker, I feel that protection of freedom of expression is a critical value, and I am concerned that my efforts to stop Viacom from using the Spike TV name could have the unintended consequence of threatening the First Amendment rights of Viacom and others. I am pleased to be able to resolve this matter and be able to work with Viacom on new projects.
The New York Times reports here that Spike Lee and Viacom are expected to announce the settlement of Lee's misappropriation and New York-based trademark suit against the network. Lee brought the action in response to Viacom's plan to rename the TNN cable channel "Spike TV." According to the report, New York Supreme Court Justice Walter Tolub, who had enjoined Viacom from renaming TNN last month, lifted the injunction yesterday and indicated that he was doing so at the request of both sides. [more here from Newsday]
Findlaw.com reports here that two defendants -- florist Beau Strittman and Wyatt Emmerich, owner Emmerich Newspapers Inc. -- had libel claims against them dismissed by U.S. District Judge David Bramlette of the U.S. District Court for the Southern District of Mississippi. The case, a $6.4 billion defamation lawsuit over a CBS "60 Minutes" report about Jefferson County's reputation for large jury awards, continues against defendants Media General Operations, which owns CBS-affiliate WJTV, and "60 Minutes" producers Don Hewitt, Deirdre Naphin and Jennifer Breheny and reporter Morley Safer.
Strittman was shown in the segment saying that juries in Jefferson County "awarded these people this money because they felt as if they were going to get a cut off of it." Strittman claimed he was joking at the time and thought he was off the camera at the time. In the segment, Emmerich "described Jefferson County jurors as disenfranchised residents who want to stick it to Yankee companies."
ESPN.com reports here that a New York State Supreme Court Judge has denied the New York Post's motion to dismiss a libel suit filed by New York KnickLatrell Sprewell. According to the report, "Sprewell is suing the newspaper and its staff writer [Marc Berman] for publishing four reports that claimed Sprewell fractured his right pinkie finger -- an injury that kept him out of the first eight games of the NBA season -- during an altercation on his boat."
The Cincinnati City Beat reports here that five years have passed since the ugly events surrounding a Cincinnati Enquirer investigation into Chiquita Brands were resolved. According to the article, the anniversary heralds the final step in the settlement -- the destruction of all reporting notes and research material from the original May 1998 investigative series on Chiquita.
The article also relates the details of the settlement (thanks in part to the reporting of Editor & Publisher, which also harshly criticized the settlement in a June 16, 2003 editorial). In addition to paying Chiquita $14 million, "the Enquirer also printed three front-page apologies to Chiquita (June 28, June 30 and July 1, 1998), renounced the original 18-page series and all follow-up stories, deleted the work from its Web site and fired [reporter Michael] Gallagher, who had illegally retrieved internal voice mails of Chiquita executives."
More troubling were these additional concessions in a settlement agreement discovered by E&P:
· Enquirer employees, [former editor Lawrence] Beaupre and [reporter Cameron] McWhirter couldn't cover Chiquita or any of then-CEO Carl Lindner's other companies (Provident Bank, American Financial), any business owned by Lindner's family (UDF) or Lindner himself and his family. The bans effectively meant The Enquirer, with Beaupre as editor, agreed to stop writing about Lindner, the most powerful business leader in its home town.
· Gannett would investigate its own employees, as well as non-Enquirer people, to find out who besides Gallagher knew about the illegal voice mails -- and then turn over their names to Chiquita.
· Gannett would give Chiquita access to all the notes, transcripts and files compiled by Gallagher and McWhirter, then place all the material in secure storage so that no one could see it without Chiquita's permission. On the agreement's five-year anniversary, Gannett would destroy all the reporting material.
· Chiquita wouldn't take legal action against anyone at The Enquirer except Gallagher, whom the company sued several days after he was fired. The civil lawsuit was settled when Gallagher pleaded guilty to two felony charges in 1999 and received five years probation.
The article also provides a "where are they now?" roundup of the principals involved.
The Chicago Tribune reports here that U.S. District Judge Ronald A. Guzman of the Northern District of Illinois has ordered three Chicago reporters to hand over tapes of interviews with an FBI mole who is a key witness in a trial in Ireland of an alleged Irish militant. The FBI mole, David Rupert, is a key prosecution witness in the case against Michael McKevitt, an alleged member of the IRA-splinter group, the Real IRA. Rupert was interviewed by reporters Flynn McRoberts of the Chicago Tribune and Abdon Pallasch and Robert C. Herguth of the Chicago Sun-Times for a book by Pallasch and McRoberts.
According to the report, "Guzman in his ruling said that the reporters should hand over the tapes of their interviews with Rupert in part because Rupert had no expectation that the conversations would be kept confidential. Disclosure of the tapes 'does not involve the disclosure of the identity of any source who wishes to remain anonymous.'"
The Free Press has rejected Webber's request. The paper's attorney referring to the reporter's privilege states, "We aren't in the business of providing expert witnesses for everyone who would like to use the credibility of a journalist for their own purposes. The courts are sensitive to this problem and have created a privilege for journalists."
Webber and his father, Mayce Webber Jr., are facing trial July 15 on charges of lying to a federal grand jury about $280,000 Chris Webber allegedly received from Martin.
As we say up in Rockland County, New York, I've been getting some mad crazy inbound links recently. First, Aaron Bailey of 601am put me up on his links sidebar as a "good media law nyc blog." Then, the lovely and talented Denise Howell of Bag and Baggage linked to me not once, but twice, for my posts on Batzel and the non-decision in Nike (she even threw my name in with the likes of legal big-boy blogs SCOTUSBlog and Howard Bashman's How Appealing). As if that wasn't enough, yesterday reason.com's "hit and run" picked up my Charlie Chan post and The Legal Reader picked up the Jason Mewes item. And finally John of BricolageCentral identified this blog along with another big boy blog, Marty Schwimmer's The Trademark Blog, as two websites he "loves."
Thanks to you all and to all of you coming here via those links -- Welcome!
The content on this web site has been prepared for informational purposes only and does not constitute legal advice. I make no representations or warranties, express or implied, with respect to the information provided on this web site or on any third-party web site which may be accessed by a link from this web site, including any representations or warranties as to accuracy, timeliness or completeness.
This web site is not intended to create, and will not create, an attorney-client relationship with you. Any information you convey to me via the Internet may not be secure, and information conveyed prior to establishing an attorney-client relationship may not be privileged or confidential.
The views expressed herein are solely the author's and should not be attributed to his firm or its clients.