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)
Phil Carter, "a former Army officer, journalist and UCLA law student," is doing an amazing job tracking and analyzing the war reports at Intel Dump. Phil's hard work is paying off as nearly 75,000 people have visited his site in the past week.
For my part, I pass along two interesting documents from the Department of Defense -- Public Affairs Guidance on Embedding Media, which sets forth the ground rules for embedded reporters, their media organizations and the military, and the Release, Indemnification, and Hold Harmless Agreement and Agreement Not to Sue, which must be signed by both reporter and media organization. Interesting that while the Government will "lend" reporters Nuclear, Biological, Chemical (NBC) protective equipment, that reporters are responsible for procuring and using their own "personal protective gear," such as helmets and flak jackets, as wearing these items is a "personal and professional choice." Kind of like the NHL helmet rule a few years back.
Adam Liptak of The New York Timesreports on the pending appeal before the Pennsylvania Supreme Court of a case that raises the issue of whether the state recognizes a neutral report privilege. At issue in the case is a 1995 article that appeared in The Daily Local News, a West Chester, Pennsylvania newspaper, that reported on a town council meeting that turned ugly when one council member, William T. Glenn Sr., called the council president and the mayor "liars," "criminals," "draft dodgers" and "child molesters." According to the report, Mr. Glenn did not then or later produce evidence for any of his charges.
After the article appeared, under the headline "Slurs, insults drag town into controversy," the council president and the mayor filed a suit for defamation not only against Glenn, but also against the newspaper and the reporter who had reported on the meeting. At trial, a jury ordered Glenn to pay the two plaintiffs $17,500 each, but returned a verdict in favor of the newspaper and the reporter based upon an instruction given by the trial judge, Thomas G. Gavin, that "the First Amendment protects the accurate and disinterested reporting of the charges regardless of the reporter's private views regarding their validity."
In 2002, however, an appeals court reversed the decision, holding that the jury instruction was wrong and that there was no neutral report privilege in Pennsylvania. If that decision is left undisturbed, the case will be sent back for retrial without the neutral report privilege instruction.
The privilege seeks to undo somewhat the common law libel maxim of "tale bearers are as bad as tale makers," by giving the press some degree of protection when reporting on charges leveled against public figures. The leading authority on the neutral report privilege is the decision of the U.S. Court of Appeals for the Second Circuit in Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir. 1977). As set forth in Edwards, the privilege provides that "when a responsible, prominent organization . . . makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity." The court held that the media would be immune from defamation suits "where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made," but that, " it is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage."
According to law.com, the California Supreme Court is set to hear argument this week on whether DC Comics violated the rights of publicity of rock and blues musicians Johnny and Edgar Winter by publishing comic books featuring "Johnny and Edgar Autumn" -- long-haired, half-worm, half-human albino villains who live underground in the Old West, eat raw pig brains, rip the heads off livestock, and fornicate with animals. The Autumn characters were featured in "Jonah Hex: Riders of the Worm and Such," a five-volume comic book series described as "an aesthetic hodgepodge of gothic horror conventions, ancient legends, cowboy ballads, Hollywood movies and western cliches."
In June, Los Angeles's Second District Court of Appeal ruled that triable issues of fact existed about whether DC Comics' Autumn brothers met the transformative test laid out by the California Supreme Court in 2001 in Comedy III Productions Inc. v. Gary Saderup Inc., 25 Cal.4th 387. In that case, involving lithographed and silk-screened images of The Three Stooges, the California Supreme Court ruled that an artist's celebrity depictions aren't protected by the First Amendment unless creative elements are added to transform the work into more than a likeness or imitation.
According to the article DC Comics' attorney, Howard Bergman, has argued in papers filed with the court that "If this court permits a trier of fact to decide whether the depiction of the Winters' as the Autumn brothers is sufficiently creative so as to be transformed into something more than a mere imitative likeness of the Winters', the scope of First Amendment protection heretofore afforded to literary works will be dramatically narrowed."
Conversely, the attorney for plaintiffs, Vincent Chieffo, has argued that the use of the Winter brothers' images was no more than a "free ride on the public's interest" in the twosome for financial purposes. Chieffo also argues that the comic books are no more than commercial speech.
While I disagree with Chieffo's assertion regarding comics as commercial speech, I am interested to see how the court will handle the use of real people celebrities as the basis for fictional characters.
Newsdayreports that attorney/author Marie Flaherty has filed a copyright infringement suit against Queen Latifah and Walt Disney Co., among others, claiming that the film "Bringing Down the House" was stolen from a script she had written a few years back called, ""Amoral Dilemma." According to the suit, Ms. Flaherty's script tells the story of a lawyer who meets a prisoner online, only to have the prisoner wreak havoc in his life -- a storyline similar to "Bringing Down the House."
Flaherty claims she sought the assistance of attorney George N. Tobia Jr. to sell her script in 1999, but that a few months later, Tobia called her to say he and a family friend, screenwriter Jason Filardi, had sold a script "Jailbabe.com," that would eventually become "Bringing Down the House."
In addition to Queen Latifah, who produced the film, and Disney, the suit also names Tobia, Filardi and Hyde Park Entertainment.
Fun fact of little to no value: The title of the script for "Bringing Down the House" was changed from "Jailbabe.com" because let's just say others had already taken the name -- "jailbabe.com" is a porn site (you can copy and paste it, but I'm not doing the work for you), but "jailbabes.com" seems to be an honest to goodness "pen-pal and singles introduction service" for incarcerated females. Hey, "Do you know that there are hundreds of beautiful ladies sitting in prison, just waiting for someone to love and care about them?"
CNNreports that a lawsuit brought by Jack Deamer against "Will & Grace" co-creator Jason "Max" Mutchnick has been settled prior to trial. The suit alleged that Mutchnick had reneged on his promise to buy Deamer a house and car if Deamer would allow the Jack character in the TV sitcom to be based on him. According to the report, Deamer and Mutchnick were friends for ten years before Mutchnick created "Will & Grace" in 1998. Upon watching the pilot that included a "flamboyantly gay, constantly over the top, promiscuous and irresponsible" character named Jack, Deamer was "chagrined, embarrassed and devastated as he realized that the 'TV Jack' character was a thinly veiled caricature of himself."
This case reminds me of the suit filed a few years back by Michael Costanza in which he claimed that the producers of "Seinfeld" had stolen his identity when they created the character of George Costanza. The defendants in that case insisted that the character was based on the show's co-creator, Larry David. The suit was ultimately dismissed.
Reuters is reporting that a Florida-based news web site, YellowTimes.org, was taken offline by its web host after posting pictures of captured American soldiers. According to the report, the hosting company, in an email to YellowTimes.org, claimed the photos violated the "adult content" provision of the site's web hosting agreement. YellowTimes.org is reportedly planning on relocating to a web host based in San Francisco.
According to the report, Lewis is not amused and considering legal action. Alan Isaacman, Lewis' attorney, stated, ''Jerry is outraged that this impersonation occurred, especially at this critical time in the conduct of foreign policy. These are life and death matters, and the last thing that's needed is someone getting involved in this situation in a false manner. It's reprehensible and irresponsible, and we intend to pursue the appropriate remedies.'' KROQ declined to comment.
The FCC may also get involved as the call violates FCC regulations, which mandate that the caller must notify the other party if a phone conversation is to be broadcast. ''We can't speak about a case directly, but the violation of this rule has caused us to take action against other radio stations in the past,'' an FCC spokesman told EW.com.
According to E! Online News, French officials are claiming that they pulled a joke of their own as it wasn't Chirac on the line.
law.comreports that two cases against Georgia radio personalities alleging violations of the federal Telephone Consumer Protection Act 47 U.S.C. 227 arising out of prerecorded telemarketing calls from Atlanta radio station WNNX FM-99.7 were recently decided by the Georgia Court of Appeals. In one of the cases, the appellate court affirmed the dismissal of the claim on the basis that the plaintiff, attorney Ryan Schneider, had a "business relationship" with the radio station because he had registered with the station for its "Freeloader" promotion. The federal law prohibits prerecorded cold calling to people who have no business relationship with the caller.
In the second case, there was no pre-existing relationship between the station and Mathew G. Garver, the recipient of the call. The appeals court remanded the case back to the trial court, however, finding that the lower court judge erred in ruling that she didn't have jurisdiction to rule on the constitutionality of the federal law governing telemarketing, as the station has requested.
According to BBC News, Roxette singer Marie Fredriksson has sued the Swedish newspaper Expressen over a report claiming that she was suffering from a second brain tumor. Fredriksson, who apparently had surgery in September 2002 to remove a tumor, is seeking an apology and a 500,000 kronor (£37,000) payment, which she would donate to the Swedish Cancer Society.
The paper has already apologized and admitted its report had no basis, but has not offered Fredriksson any compensation.
Joanne Mariner of Findlawwrites on Richard Perle's announcement that he plans to sue Seymour Hersh in the United Kingdom and does a nice job describing the discrepancies between the libel laws of Great Britain and the United States. [prior post here]
I was flipping through my old Mass Media Law casebook this weekend (stop laughing) and came across an interesting (if now quaint) point. The book noted that while English defamation law crossed the Atlantic, "it seems never to have been enforced as vigorously in the United States as it was in England." The book then quotes a passage from Professor Zechariah Chafee's 1947 "Government and Mass Communications," which speculates that defamation actions are more common in the United Kingdom because English society is much more static and defined by status, and therefore a slur on one's reputation could drop you "several rungs down the social ladder."
"An able American," Professor Chafee writes,"has too much else to do to waste time on an expensive libel suit. Most strangers will not read the article, most of his friends will not believe it, and his enemies, who will believe it of course, were against him before. Anyway, it is just one more blow in the rough-and-tumble of politics or business. Even if his reputation is lowered for a while, he can make a fresh start at his home or in a new region and accomplish enough to overwhelm old scandals. A libeled American prefers to vindicate himself by steadily pushing forward his career and not by hiring a lawyer to talk in a courtroom."
Those were the days. These days, "A libeled American prefers to vindicate himself by escaping the protections of the First Amendment and hiring a barrister to talk in an English courtroom."
AP reports that Ana Martinez, a 20-year-old student from Oakland, beat out 120 other contestants to win the second world championship of "Rock Paper Scissors" in Healdsburg, California.
Doug Walker, co-president of the Toronto-based World Rock Scissors Paper Society, sponsor of the annual contest, noted "It's really about the mind games. There's a lot of trash talking and mental intimidation." (co-president?)
Second-place finisher, Jeff "Big Blue" Johnson, remarked, "Whenever you see a tense muscle, they're going rock. If they looked relaxed, it's going to be paper." Jeez, Jeff if you've got it all figured out how come Ana beat you.
Click here for a breakdown of the final match. Why oh why does this sound like a completely made up story?
According to AP, a free Tennessee newspaper, the Bradley News Weekly, is claiming that a recently introduced anti-litter bill is really an attempt at retaliation on the part of two lawmakers. The bill, introduced by Tennessee state Senator Jeff Miller and Representative Dewayne Bunch of Cleveland, Tennessee would impose a fee of 10 cents per copy on the delivery of free printed materials. The lawmakers claim the bill is aimed at fighting litter.
Toby Pendergrass, managing editor of the Bradley News Weekly, claims that the bill is actually motivated by revenge for his paper's critical coverage of the lawmakers [apparently the paper has named the pair "The Toxic Twins"]. The newspaper said it would have to pay $2,200 per week in delivery fees if the bill becomes law and has argued in an editorial that the bill violates the First Amendment guarantees of free speech and free press.
Puma, upset over two fake sexually suggestive ads, has fired off a number of cease and desist letters to several weblogs seeking to have the ads taken down.
Prior to the letters being sent out, some of my thoughts on the subject were posted on Kevin Heller's Tech Law Advisor. At that time, I believed that if Puma were to take action (which in light of the potential backlash, I suggested it should really think hard about), it would go the straight trademark route with possibly a little trade disparagement thrown in for flavor. I was a bit surprised when I saw the C&D letters [posted here, here and here], and noted that Puma led by rattling the sabre of defamation and then followed with a trademark claim.
In the letter sent to Gawker, Puma wrote, "Please be advised that such offensive image was created without our knowledge or consent and is extremely damaging to the PUMA brand. Your intentional publication of the image will likely injure PUMA's reputation/ good name and excite adverse and derogatory opinions against PUMA. The image is obviously defamatory in nature and PUMA will not tolerate its continued use." The letter then goes on to mention that the fake ads also infringe Puma's trademark and closes with the request that the ads be removed from the site.
Generally, in order to state a claim for defamation, a plaintiff must show that the defendant 1) published a 2) non-privileged false statement of fact that 3) defames 4) a living, identifiable person or entity. Finally, in order to establish liability, the plaintiff must show that the defendant published with the requisite degree of fault. With respect to certain defamatory statements, damages may be presumed. Compensatory damages and punitive damages are also generally available.
What is not available via defamation, and what it seems Puma is really interested in, is equitable relief (viz., the ads to disappear). If a libel plaintiff successfully sues over a defamatory book, he does not get to go to bookstores and libraries to remove the offending books from the shelves. I am not aware of any defamation action where the plaintiff's recovery included equitable relief. Millions of dollars, sure. A recall, I don't think so. Thus, given the fact that the posters of the fake Puma ads have clearly stated that the ads are fakes, hasn't Puma already achieved all it could via the defamation route short of a full-blown trial on damages (provided it could even get that far)? This points out an issue that I touched on in an earlier post regarding the nature of the Internet as a medium. Given that a website, in all likelihood, can be easily changed, a natural response would be to seek removal of the offending material. But as the courts have analogized Internet publishers to traditional media outlets, it seems that the law of defamation would no more require an Internet publisher to alter web content than it would the New York Times to recall an edition of the paper for pulping.
That said, it appears that Puma would have to rely on trademark law for what I presume to be its desired remedy. For more on that, please see my earlier comments here or Marty Schwimmer's on The Trademark Blog.
The Seattle Times is reporting that Leon Hendrix has asked the King County Superior Court to dismiss the defamation claim he brought against the Hendrix estate. According to the report, Leon filed suit last year to wrest control control of the estate, left by Jimi's late father Al, from Jimi's step-sister Janie Hendrix. Leon had claimed that Al and Janie Hendrix defamed him by questioning whether he is Al Hendrix's biological son.
Lawyers for the estate claim that Leon dropped the claim because he did not want to submit to DNA testing. Leon's lawyers say there was just no reason to proceed with the claim.
Related coverage on the Hendrix family feud can be found here.
Thanks to Howard Bashman of How Appealing for noting me as his "interesting law blog of the day" today (as probably many of you now here, who came from there, already know). Welcome to this humble blawg and feel free to look around and kick the tires. Hopefully, some of you will come back because after today's spike, next week's hit totals are going to be downright depressing.
According to Yahoo! News, Howard Stern has gone ahead and filed suit against ABC claiming that the network's "Are You Hot?" show copied the "unique aspects" of a Stern radio segment in which members of his crew and guests evaluate the bodies of in-studio contestants. The suit seeks over $10 million in damages. [prior posts here and here]
The Los Angeles Timesreports that acting coaches and several actors have filed suit against ABC alleging invasion of privacy. The suit arises out of an ABC 20/20 hidden camera investigation into "pay for audition" workshops, where hopeful actors pay "to sharpen their skills in front of casting directors." The complaint, filed in Los Angeles County Superior Court, also names investigative journalist Brian Ross and former "20/20" co-anchor John Miller as defendants, along with ABC and three people who helped produce or edit the show. The complaint includes claims for trespass, infliction of emotional distress, media stalking and violating the state's eavesdropping statute.
The Times article contains extensive quotes from the plaintiffs' attorney and "aggressive privacy litigator" Neville Johnson. In fact, it was a case brought by Johnson a few years back (against ABC) that served to toughen California's privacy law. In Sanders v. ABC, a case involving a hidden camera investigation into telepsychic phone centers, Johnson ultimately convinced the California Supreme Court that employees, who might not have a reasonable expectation of privacy with respect to their co-workers, might nonetheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of workplace conversations. The case also apparently induced the California legislature to enact a new tort that imposes liability for physical or constructive invasion of privacy. Civil Code Sec. 1708.8.
The Wall Street Journal via Yahoo! Finance is reporting that US Foodservice has threatened legal action against a web site that allows users to post comments about the food service industry and invites them to submit internal documents for posting.
According to the letter [posted here], US Foodservice claims the website has not only defamed the company but is also tortiously interfering with the company's relationships with its employees. Interestingly, while US Foodservice acknowledges the protections of Section 230 of the CDA, it claims that the website would not qualify for protection under the statute as it is a "information content provider." [related post on Section 230 here]
According to the New York Sun, Richard Perle, chair of the Pentagon’s Defense Policy Board, has announced his intention to file a defamation suit against journalist Seymour Hersh over this article in The New Yorker. According to the Sun article, and perhaps taking a cue from Boris Berezovsky, Perle intends to file suit in the United Kingdom "because it is easier to win such cases there, where the burden on plaintiffs is much less."
Hersh's article raises questions about Perle's potential conflict of interest created by his advisory position at the Pentagon and his financial interest in Trireme Partners L.P., a company that invests in companies "dealing in technology, goods, and services that are of value to homeland security and defense," and particularly whether Perle used his advisory position to set up a meeting with potential Saudi investors.
Perle, who over the weekend described Hersh on CNN Sunday as "the closest thing American journalism has to a terrorist," claims the article is "all lies, from beginning to end."
Hmmm, an American public official wants to sue an American reporter over an American publication.... London does seem like the logical choice.
The industry argued that the ban on sales is unconstitutional as video games should be entitled to the same First Amendment protection as books and movies. According to the industry, the voluntary ratings system already in place is a sufficient safeguard to protect children.
The county cited the work of Craig Anderson, chairman of the Department of Psychology at Iowa State University, who claims to have linked violence in games and real-life behavior, in support of the ban. A number of academics have questioned Anderson's findings in Court papers, however. In response to the challenges, the county argued that "The government shouldn't have to wait to develop a record of harm. While the First Amendment is important, the county can't wait for scientists to provide evidence."
CNN reports that former Spice Girl Victoria Beckham ("Posh Spice) has agreed to pay £55,000 ($88,000) in damages to settle a slander case brought by the owners of a sports memorabilia shop. Ms. Beckham reportedly became upset when she saw an autographed photo of her husband, soccer star David Beckham, that she believed was not genuine. Newspapers reported the visit and said Beckham loudly proclaimed the store was "ripping off" customers. The owners of the shop, who purchased the autographed photo from a reputable dealer, claimed that Ms. Beckham's comments hurt their business and filed suit in March 2001.
MTV News is reporting that a new suit filed in the wake of the Rhode Island nightclub fire is targeting the radio station and beer company that sponsored the show. The suit, filed on behalf of a 6-year-old girl who lost her mother in the fire, includes claims against 18 defendants including radio station WHJY-FM; WHJY's parent company, Clear Channel Communications; beer distributor McLaughlan & Moran; and Budweiser brewer Anheuser-Busch.
According to the report, another attorney who has filed a separate suit over the events relating to the fire is considering amending his complaint to also add the radio station and its parent company because "there is evidence that the radio station knew that hard-rockers Great White were going to use pyrotechnics at Warwick's Station club that night and knew that other bands had fired off pyro at the club before." The attorney reportedly stated that he was not considering adding Anheuser-Busch because that would be "far-fetched."
Several media companies, including Associated Press, Dow Jones, Forbes Inc., Gannett Co., McGraw-Hill Cos., New York Times Co., Reuters Group Plc and Washington Post Co., have voiced their opposition to a New York Stock Exchange proposal that would require newspapers, magazines and other media to disclose a stock or bond analyst's potential conflicts of interest or lose the analyst as a source of information. The media groups believe it should be up to the discretion of editors and reporters to disclose an analyst's potential conflict. [coverage here]
Seems like these guys aren't the only ones who are feeling left out in the cold by ABC's "Are You Hot?" [prior post here] Now, Howard Stern is making noises that he may seek legal redress against the show, which he claims has stolen his format. Notably, Stern's longtime (but no longer) sidekick/writer Jackie Martling is a consultant on the show, while Scott Einzinger, former producer of Stern's E! television show produces the ABC show. [coverage here, here and here]
For those who don't listen to Stern, the show has for years featured a segment called "The Evaluators," in which women submit themselves to the scrutiny of Stern's laser-pointer wielding staff to determine whether they are attractive. According to one report, Stern claims that his negotiations with a network for producing an attractiveness-rating program fell apart when ABC's show was announced.
The Pioneer Press of Minnesota has reported that the U.S. Supreme Court is letting stand the Minnesota Supreme Court's refusal to enforce a default judgment entered in Alabama against a Minnesota resident. In 1997, plaintiff Katherine Griffis of Alabama, filed suit against Marianne Luban, then living in Minnesota, claiming that Luban defamed her in an Internet Egyptology newsgroup by ridiculing her credentials and expertise. When Luban did not respond to the complaint in Alabama, a default judgment was entered for Griffis for $25,000.
Griffis then attempted to enforce her judgment through the Minnesota courts. While a Minnesota Court of Appeals held that the Alabama court had properly exercised jurisdiction over Luban, the State Supreme Court reversed. The Minnesota Supreme Court held that that the Alabama court could only have exercised jurisdiction if "the defendant expressly aimed the tortious conduct at the forum state such that the forum state was the focal point of the tortious activity." The court determined that although Luban had published the defamatory statements on the Internet, they were not expressly aimed at Alabama.
Judge Koeltl held, "No ordinary prudent reader would view the contents of the magazines as similar and no reasonable reader seeking the contents of one magazine would turn to the other." Hmmm, I'm not so sure. According to the article, "O," the fetish magazine, "depicts voluptuous women in bondage gear and fantasy settings." But doesn't "O: The Oprah Magazine" also depict a voluptuous woman in fantasy settings. I guess that bondage part is the key.
The film was based upon a 1994 book entitled, "Hardball: A Season in the Projects," by Daniel Coyle. The book describes the time the author spent coaching a Little League team in the projects in and around Chicago. While the book focuses on the children Coyle coached, it also discusses other coaches including the plaintiff, Robert Muzikowski. In fact, Muzikowski is prominently featured in the book and various details of his personal life are included.
Muzikowski, a one-time drinking, drug abusing ne'er do well, turned his life around and became involved in coaching and founding Little League programs in the Chicago projects (for which he has received some acclaim). Muzikowski filed his claim alleging that the O'Neill character experiences almost the same exact things that Muzikowski did in real life. The only differences, Muzikowski alleges, are things that are false and unflattering particularly when people believe that they are seeing a portrayal of Muzikowski's life.
While the Court discarded a number of the statements Muzikowski complains about as either opinion or as defamatory per quod statements that were not preserved on appeal, it found at least two statements -- the characterization of O'Neill practicing as a securities broker without a license and the depiction of O'Neill's thieving ways -- as sufficient to satisfy the requirements of pleading for a defamation per se claim. And although Muzikowski, appearing pro se, apparently pleaded himself out of a better case, the appellate court's decision gives him a shot at showing that "no one could think that anyone but him was meant, and the changes to 'his' character, far from supporting an innocent construction that O'Neill is a fictional or different person, only serve to defame him . . . ." on remand.
This case joins the ever growing sub-genre of cases involving "Defamation by Fictional Characterization in a Film Concerning Children's Baseball Teams." In 1998, the California Supreme Court dismissed a claim filed against Twentieth Century Fox Film Corp. over the 1993 film "The Sandlot." Polydoros v. Twentieth Century Fox Film Corp., 79 Cal.Rptr.2d 205 (1998). In that case, plaintiff Michael Polydoros, childhood friend of the film's writer/director, unsuccessfully claimed that he was defamed and that his privacy was invaded by the inclusion of a character named "Michael 'Squints' Palledorous" in the film. [coverage here]
I received an e-mail this morning from my friend and former colleague Elizabeth Read letting me know about a film called "Horns and Halos," that she had seen over the weekend. After chiding her (gently I hope) for not realizing that I had posted regarding the film last week, I suggested that she write up her review of the movie and post it as a comment. She did, and you can read her interesting take on the film here.
I've been doing this blogging thing for a little over a month now and the time felt right for a little navel-gazing. I'm pretty happy with how things are going, though I need to regulate my posting schedule (and finish my bio page). Of course, I would love to have more visitors -- I'm averaging 50-60 visitors a day but hit 120 once ( a pittance I know) -- but from my referrer logs, it seems that I have some return visitors, which I am happy about. The most disconcerting thing is the sense of screaming into the void, so I'd love to get some feedback from the people who check the site out. Drop me a line and let me know what's good, what's bad, etc. I'd appreciate it. Thanks.
It seems that there has not been much press concerning the settlement of the Berezovsky v. Forbes case. [prior post here] The Financial Times ran a report on Friday [subscription required unfortunately] that stated that while no money was paid to Berezovsky, Forbes agreed to publish a correction on its web site and in its magazine.
Berezovsky was apparently not content to wait for the publication of the correction and ran a full page ad in The Financial Times on Friday trumpeting the settlement. The somewhat bizarre ad, headlined "Forbes accepted in the High Court yesterday that allegations published in their magazine about Boris Berezovsky were false," featured an altered photographic image that depicted several of the players in the case (as well as Russian President Putin) with statements in cartoon-like balloons coming from their mouths.
The ad continued to state that "Forbes accepted that there was no evidence that Boris Berezovsky was responsible for any murder, or has ever been charged with any offence involving violence. Forbes also accepted that it was wrong to characterise Boris Berezovsky as a mafia boss. Forbes agreed that they will publish in their magazine and on their website a correction notice together with the statement they made in the High Court."
Okay, so I didn't watch FX's "The Pentagon Papers." I think I'm allergic to made-for-TV movies and besides, I'm HBO's girl on Sunday nights. But I will try to catch it during one of its numerous encore presentations. The FX site for the film includes some teaching materials for teachers and librarians that may be useful.
The mayor of Panama City Beach, Florida has warned the folks from "Girls Gone Wild" that arrests will be made if they are caught encouraging Spring Breakers to expose themselves for the cameras. The creators of the "Girls Gone Wild" videos are apparently planning a live pay-per-view broadcast next Thursday from an undisclosed spring break destination. [coverage here]
According to Media Life magazine, VH1's “Music Behind Bars” special has drawn a lawsuit. According to the report, the family of West Virginian Michael Hart, whose killer appeared on the 2002 show, has sued VH1 parent company Viacom for emotional distress. Plaintiffs, the victim's mother and sister, are seeking unspecified compensatory and punitive damages and a court order preventing future re-airings of the show.
Last year, before the show even aired, there was a great deal of controversy over the concept of filming convicts' rock bands. Hart's family, the families of several other victims, and the governor of West Virginia sought to convince VH1 not to run the program.
Lord of the Dance, Michael Flatley, has fired back at a woman who has sued him for rape with a $100 million libel suit according to The Age of Australia. The woman, Tyna Marie Robertson, filed a $33 million dollar suit in Illinois earlier this week. She claims she met Flatley in Las Vegas and that he invited her to visit him for a day of sightseeing, shopping and gambling and that he raped her in her room at the Venetian Resort Hotel-Casino. Flatley contends that he had consensual sex with the woman in October and November of last year, and that after their second tryst the woman began to try to extort money from Flatley.
Ms. Robertson filed a rape report with the Las Vegas Police Department, but authorities declined to seek charges against Flatley.
Plaintiff, Christine Carafano p/k/a Chase Masterson, an actress who appeared on Deep Space Nine sued Metrosplash.com, Inc., and others for invasion of privacy, misappropriation of right of publicity, defamation and negligence arising out of the publication of a fraudulent personals ad for Carafano by Matchmaker.com. Carafano claimed that the ad, comprised of responses to multiple-choice questions created by Matchmaker falsely characterized her as licentious. She alleged that the Profile contained a litany of false statements about her, including the following: She contacted Matchmaker because she was “looking for a one-night stand”; she “might be persuaded to have a homosexual experience”; her main source for current events is Playboy/Playgirl; she is interested in meeting someone “hard and dominant in more ways than one. Must have a strong sexual appetite”; she likes “being controlled by a man in and out of bed." In addition, Carafano asserted that the Profile disclosed her address, telephone number and that she lived alone with her son.
While U.S. District Court Judge Dickran Tevrizian in the Central District of California granted defendants' motion for summary judgment, the result was not without its costs. In fact, the judge denied Matchmaker's attempts to rely upon the internet service provider immunity provided by the CDA. Section 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." While Judge Tevrizian agreed that Matchmaker was an "internet service provider," he found that based upon Matchmaker's role in creating the content (i.e., providing the 62 multiple-choice questions and a series of essay questions tailored for each Matchmaker community) made into an "information content provider" under the statute. The court ultimately dismissed Carafano's claims based upon her failure to establish a genuine issue of fact for trial with respect to each of her causes of action.
According to the CNET article, "The ruling is believed to be the first significant challenge to the core protections of the Communications Decency Act, which were drafted seven years ago at the behest of Internet service providers such as America Online." Venkat Balasubramani notes that the "CA seems like a hastily drafted piece of legislation. The definition of "interactive computer service" is laughable." To some extent that's not far from the mark. You must remember, however, that the legislation was drafted in 1996, and the legislation reflects that time. As I noted in an earlier post, Section 230 was enacted in reaction to a 1995 New York State court decision holding Prodigy responsible as the publisher of anonymous statements made by users on its bulletin boards. At the time Prodigy, CompuServe and AOL were really the main avenues of access to the Internet and the World Wide Web was nothing compared to what it is today. I remember assisting in drafting an amicus brief in the Prodigy case (I was a 2L at the time) and citing to telegraph law for the proposition that you could not hold a service provider like Prodigy responsible for the actions of its users. Ultimately, the Prodigy case was settled, but despite the fact that the parties submitted a joint statement asking the court to vacate its earlier ruling, the judge refused. Section 230 came along shortly thereafter.
Anyway, Section 230 has served Internet companies very well over the past seven years and it will be interesting to see what the Ninth Circuit does.
Early word that the Berezovsky v. Forbes case in the United Kingdom has been settled. Apparently, the parties submitted a joint letter to the High Court wherein Forbes admitted that statements it had made in a 1996 report characterizing Berezovsky, one of Russia's richest and most powerful businessmen, as a "mafia boss" were wrong. Will update as more information becomes available.
The case has received considerable press as Berezovsky's filing of the suit in London was seen as forum shopping on an international scale. Despite Forbes magazine's limited circulation in the United Kingdom, Berezovsky successfully pointed to the offending article's Internet publication to keep his case in London. [earlier coverage of the forum battle here and the House of Lords ruling here ]
The New York Post's Page Six reports that Mel Gibson is fired up over the pending publication of a article concerning him this Sunday's New York Times Magazine. According to the Post, the Times article claims that Gibson "embraces an ultra-traditional 'strain of Catholicism rooted in the dictates of a 16th-century papal council and nurtured by a splinter group of conspiracy-minded Catholics, mystics, monarchists and disaffected conservatives,'" and quotes Gibson's father with respect to his belief that the Holocaust never happened.
Trivia: What was Mad Max's last name? (you'll have to vouch that you didn't look at the imdb.com link here)
CNET News.com is reporting that the Rev. Jerry Falwell's attempt to reclaim web addresses using his name (www.jerryfalwell.com and www.jerryfallwell.com) has failed, as U.S. District Judge Norman K. Moon of the Western District of Virginia held that his court did not have jurisdiction over the matter because the site does not "specifically relate" to Virginia. Rather, the Court found that the site, which parodies Falwell's stand and statements on such issues as the Sept. 11, 2001 attacks and President Bush's Faith-Based Initiative, is addressed to a national audience.
The suit was apparently Falwell's second try at wresting the domains from Gary Cohn, the Illinois based webmaster. Prior to this suit, Falwell had gone the UDRP route but lost as the review panel found that the sites were "a legitimate noncommercial or fair use of the domain name."
CBS fends off questions regarding why it hired an actor to read the translation of Saddam Hussein's statements with a fake Arabic accent for the Dan Rather/Saddam Hussein interview. [Romanesko via Los Angeles Times].
The Reporter's Committee has posted a story concerning the charging of a reporter with criminal trespass for entering upon the property of a former police officer who was later indicted for second degree murder. Byron Wells, a reporter for the the East Valley Tribune and the Scottsdale Tribune, was covering the Oct. 11, 2002 shooting of a woman who tried to pass a fraudulent prescription. The woman was shot and killed, allegedly by Police Officer Dan Lovelace. After Lovelace was fired and the day before Lovelace was to appear in court on second-degree murder and endangerment charges, Wells went to Lovelace's home to get the former officer's side of the story.
Wells apparently entered the property through an unlocked gate to speak to a woman he saw doing yard work. According to the article, Wells "introduced himself and told the woman the purpose for his presence -- to give Lovelace another chance to talk about the incident. The woman said they were not making any comments and asked Wells to leave. He said he apologized for the intrusion and left the property."
Over a month later, Wells was tald that criminal trespass charges had been filed against him. Wells, who is fighting the charges, could face up to six months in jail and a $2,500 fine if convicted.
Back in 1999, St. Martin's Press recalled 70,000 copies of J.H. Hatfield's biography of George W. Bush entitled, "Fortunate Son," after questions were raised regarding allegations in the book and it was discovered that Hatfield had been convicted of attempted murder in 1978 and served time in prison. I thought that was the end of the story. Apparently, I was wrong.
The New York Timesreviews a documentary film called "Horns and Halos," that depicts the efforts of Sander Hicks, "a self-styled punk rock publisher," to put "Fortunate Son" back on the bookshelves. Reviewer David Kehr calls the film "a rich tale of our times, very well told with an appropriate minimum of means," and notes that the film captures Mr. Hatfield's descent into paranoia that apparently led him to commit suicide in July 2001. [more here]
A coalition of New Jersey media organizations, along with the ACLU, filed a petition for certiorari today with the U.S. Supreme Court requesting that the Court review a lower court ruling upholding a government policy that blocks media and public access to immigration hearings of people detained after September 11. [ACLU press release]
The case is North Jersey Media Group, Inc. and New Jersey Law Journal v. John Ashcroft, Attorney General of the United States and Hon. Michael Creppy, Chief Immigration Judge of the United States, No. 02-2524.
As I was going about my nightly stroll for stories I realized that the Freedom Forum web site had undergone a transformation. At first annoyed by having to track down the links to news stories I usually find there, I was quickly placated when I found the Forum's First Amendment Library. Click on Freedom of Expression and you'll a list of topics from Academic Freedom to Zoning. Click on any of the topics (like defamation) and you'll get a list of Supreme Court cases relating to that particular area. Click on a case and you can find the opinion, possibly commentary and briefs, and may get hooked into Northwestern University's Oyez Project where you can check out a case abstract, drag your cursor over a picture of the Justices to see how they voted, or listen to the oral argument from the case via Real Audio (unfortunately, not all of the cases have been given the Oyez Project treatment). I've listened to parts of Sullivan and Falwell. "May it please the Court?" Don't mind if I do!
According to the Sunday Times of South Africa, Natasha Tsichlas, the managing director of one of South Africa's biggest soccer clubs who is known as the "Iron Lady of Soccer," is seeking the removal of allegedly defamatory postings on an Internet web site. According to the article, Ms. Tsichlas has asked the the Johannesburg High Court to order the soccer web site www.kickoff.com to remove postings from soccer fans referring to her as a "Greek hooker", a "clown" and a "Greek bitch."
Richard Maguire, editor of Kick Off magazine, the website's affiliate, has offered to remove the remarks containing the word "prostitute" purely "as a gesture of goodwill" and to avoid further litigation with Tsichlas. He claimed that the comments referring to "idiots" and "clowns" were "meaningless abuse," however.
The case is apparently the first to fall under South Africa's recently passed Electronic Communications and Transactions Act.
The Pennsylvania Supreme Court heard argument yesterday in the case of a Pennsylvania state judge seeking the identity of an anonymous Internet poster who the Judge claims defamed her. [coverage via CNN and the Pittsburgh Post Gazette]. The plaintiff, Superior Court Judge Jane Ore Melvin, claims a chat-room message, insinuating she illegally lobbied then-Gov. Tom Ridge to appoint a friend to a vacant spot on the Allegheny County bench, was defamatory.
In March 1999, the judge filed suit and served a subpoena on AOL in the state of Virginia seeking the identity of the poster. [coverage via Wired News] In June 1999, however, a Virginia Circuit Court judge ruled that his court lacked jurisdiction to hear the matter and dismissed the action and quashed the subpoena. [coverage via ACLU press release]. Thereafter, Judge Melvin filed suit in Pennsylvania and again sought the discover the identity of the anonymous poster. A decision by an Allegheny County judge ordering that the identity be disclosed set the stage for the instant appeal.
The ACLU, representing the anonymous poster and citing to the nation's history of anonymous pamphleteering, argued that it was not seeking complete immunity from suit for anonymous Web critics, but rather that in cases involving criticism of public officials, the public official should be required "to show that she actually suffered some harm from the statement before she can proceed to unmask the speaker." As Judge Melvin was recently endorsed by the state Republican Party to fill a vacancy on the Supreme Court, it is thought that she will have difficulty in proving she suffered harm. [ACLU's brief on appeal]
Judge Melvin's attorneys claim that Judge Melvin has been "humiliated, embarrassed" and "shunned" as a result of the post.
The complained of post was as follows:
"Despite being prohibited from engaging in political activity, a couple of Judges have been keeping themselves pretty busy recently with politics. Judge Joan Orie Melvin has been lobbying the Ridge administration on behalf of a local attorney seeking the appointment by Governor Ridge to fill the vacancy on the Allegheny County Court of Common Pleas created by the mandatory retirement earlier this month by Judge Robert Dauer, now a Senior Judge. Dauer has also been actively pushing for this attorney's appointment. The last GS99 heard, this attorney is on the Governor's short-list of candidates. Let's hope that the Gov does the right thing and appoints somebody better qualified. Shame on Orie-Melvin and Dauer – this is exactly the kind of misconduct by our elected officials that the residents of Allegheny County will not stand for anymore … and a good reason why Judges should be held accountable for their actions and remembered at the polls at retention time."
The Courier-Journal of Louisville, Kentucky reports that the Kentucky Court of Appeals has affirmed the dismissal of two defamation actions brought against WCPO-TV, the station's owner, E.W. Scripps Co., investigative reporter Laure Quinlivan, and interview subject Toni Allender. Plaintiffs, Howard Hodge, housing development director for the city of Covington, and Esther Johnson, a real estate developer, brought the suits after the station alleged that Hodge gave Johnson "preferential treatment that enabled her to get a disproportionate share of federal loans for rehabilitation of historic and low-income properties." The station reported that Hodge and Johnson had a "close personal relationship" and had vacationed together (Hodge acknowledged the relationship).
The appellate court found that Hodge, as a public official, had failed to provide evidence of actual malice. Likewise, the court found that Johnson, whose status as a high-profile and outspoken businesswoman made her a limited purpose public figure, also failed to demonstrate actual malice.
According to the report, the court also noted that "Federal housing officials had investigated complaints about Hodge and found that Johnson benefited from the loan program more than any other developer. Their report noted the appearance of favoritism, and Hodge offered no evidence to refute those findings, the court said."
Gawker via Page Six reports that model Saira Mohan is upset with Esquire magazine for allegedly embellishing a quote from her with the words "fat Bulgarian dog trainer." According to the report, Ms. Mohan was bombarded with "very angry e-mails" from upset Bulgarians. Putting the issue of whether Ms. Mohan actually included reference to weight-challenged canine behavioralists of Bulgarian descent aside (which she denies), what's going on here?
"9. Conversely, pick the most obvious part of our beauty and forget about it. Men who compliment our eyes should be taken out back and flogged by a fat Bulgarian dog trainer."
First, I'd like to know if that sentence can be read as anything other than a joke and second, how does it disparage Bulgarians. Is there a "fat Bulgarian dog trainer" stereotype that I don't know about? Please fill me in.
CNNreports on the demise of the once-great WNEW-FM here in New York. As I can still remember my sister taping the station's 24-hour vigil for John Lennon with one cassette after another (I was but 9), it is a shame to hear the pre-progammed, DJ-less, Top 40 that is currently being broadcast in anticipation of the station's "rebirth."
The Mercury News is reporting that man currently serving three years in prison for throwing a dog into traffic during a fit of road rage [story re conviction here] has filed suit against the dog's owner and the Mercury News for "causing him everything from mental anguish to post-traumatic stress disorder over the matter."
According to the report, Andrew Burnett claims he suffered spinal and neck injury when Sara McBurnett's car bumped his on a rainy night in February 2000. His injuries must not have been immediately apparent as Burnett exited his vehicle to confront McBurnett, and when she rolled down her window to apologize, he reached inside grabbed Leo, McBurnett's dog, and tossed him into oncoming traffic, where he was struck and killed. Burnett also claims that McBurnett concealed the severity of the accident and defamed him in statements made to the press. Burnett included claims against the Mercury News for "knowingly and maliciously'' printing the defamatory statements. Burnett filed the suit pro se from prison.
Perhaps its time to put some teeth into frivolous lawsuit sanctions. Or perhaps we can get this guy to put some teeth into Burnett.
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