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)
Defendant, photographer Kenneth Adelman, whose "California Coastal Records Project Web site, californiacoastline.org, provides an aerial photography survey of the California coast for scientific and other researchers," claims that "his intent was to provide a baseline for conservationists and other land-use researchers interested in a detailed record of the coastline." [additional info on the California Coastal Records Project website]
The California Anti-Paparazzi Statute, which became effective January 1, 1999, created civil causes of action against photographers and others who use visual and sound recording equipment for alleged physical and constructive invasions of privacy. The law expanded available remedies adding treble compensatory damages, punitive damages, and equitable relief, subjecting media photographers to an additional disgorgement of profits penalty. In a 1998 report, LDRC called the law "ill thought out, likely unconstitutional, and most basically, unnecessary." [link here].
The California law started out as one of several federal and state proposals that attempted to restrict the activities of the paparazzi in the wake of the death of Princess Diana. At the federal level, four separate bills were introduced in 1998 and a one-day hearing was held before the House Judiciary Committee on May 21, 1998, at which, in addition to a number of actors, then-Harvard Law Professor Lawrence Lessig testified in support of the bills. The federal proposals were not passed in 1998 and have apparently fallen from Congress' radar screen.
Update:The Smoking Gun has Streisand's complaint and suggestions for some additional defendants she might want to go after.
The New York Times reports here that now-suspended baseball high school coach Robert Dell has filed a defamation action against the parents of some of his players. Dell was suspended in the wake of revelations that 15 members of his team visited a strip club during a team Spring Break trip to Florida. Dell claims that the players visited the club "during their free time," and claims that the parents named in his suit, who apparently tipped off the school to the players' strip club adventure, defamed him because they thought he was not letting their sons play enough. Dell has also sued the school district in an attempt to get his job back. [additional coverage via Newsdayhere and Dell's complaint here]
findlaw.com via AP reports here that Universal Pictures' decision not to use the generic 555 telephone extension in the film "Bruce Almighty" is causing some problems among people who share the number used in the film. One woman, Dawn Jenkins, claims that the number in the film is the same as her cell phone number and that she's been getting about 20 calls per hour, with callers asking for God before hanging up. According to the report, Ms. Jenkins is looking for an attorney.
An Ohio federal jury has found that while The New York Times may have libeled an Ohio Supreme Court justice by falsely saying he had used his influence in a case he had been involved in earlier as a prosecutor, the paper did not do so with actual malice. Plaintiff, Justice Francis Sweeney, alleged that the Times' April 13, 2000 report concerning a lawsuit filed by the son of Sam Sheppard defamed him by implying that his decision not to recuse himself from ruling on the Sheppard lawsuit was somehow related to his tenure as a county prosecutor during the time when Sam Sheppard was retried for the murder of his wife. According to Sweeney's attorney, the Times should have known that Sweeney had nothing to do with the retrial of Sam Sheppard while serving as county prosecutor. [coverage via Washington Posthere]
UK High Court Judge Eady refused to stay a libel action brought by British department store Harrods against The Wall Street Journal over an April 5, 2002 article calling Harrods "the Enron of Britain." The comparison was apparently intended as a joking response to a press release issued by Harrods the day before April Fool's Day, which claimed Harrods owner Mohamed Al Fayed would make an important announcement the next day about a "first come, first served share option offer." The release claimed the information would be posted on Mr. Fayed's personal website, Alfayed.com, until 12 noon on April 1 and invited anyone interested to contact LOOF LIRPA - an anagram of April fool.
While the Wall Street Journal article did not appear in the European edition, only 10 copies were sent to UK subscribers from the USA, and the online edition scored a very small number of hits, Harrods brought suit for defamation. In denying the Wall Street Journal's request to stay the UK action, Justice Eady encouraged the two sides to arrive at a "sensible compromise" before further legal costs were incurred.
Updating another prior post [here], reporter Bryon Wells of the East Valley Tribune was fined $300 and sentenced to a year of probation for trespassing on the property of a former police officer's home while trying to interview the man about possible charges from a fatal on-duty shooting. Wells' attorney plans to appeal the conviction. [coverage via findlaw.comhere]
Houston Rockets star Yao Ming has gone ahead and filed suit in Shanghai against Coca-Cola (China) for using his image on Coke products distributed in China. According to a report from Sports Illustrated [here], the suit seeks compensation of only 1 yuan (12 cents) for "spiritual and economic losses" and an apology from Coca-Cola China made via the Chinese media. [prior post here]
A number of additional groups have added their voices to the protests surrounding CBS's plan to revive "The Beverly Hillbillies" by creating a reality TV show based on bringing an Appalachian family to Beverly Hills. Authors [via Asheville Citizen Times], miners [via E! Online and Newsday] and steelworkers [via Atlanta Journal Constitution].
A South Carolina jury has awarded a $9 million libel award to two attorneys who claimed that a former TV news director made up stories concerning a supposed spat between one of the attorneys and her father's former law partner. The judge in the case dismissed the claims against the TV station the defendant worked for, and its parent company Jefferson-Pilot Communications Co., finding that they could not be held responsible for the actions of their former news director.
In fact, according to this report by the Associated Press [via Washington Post], the news director, Don Feldman, is currently serving a federal prison term after pleading guilty in 2001 to taking nearly $2.5 million from the station. In view of the likelihood that Mr. Feldman won't be writing a check for $9 million anytime soon, plaintiffs' attorney has indicated that they will appeal the judgment and seek to hold the TV station and Jefferson-Pilot responsible.
[B]oth federal and New York courts recognize a special privilege that can be asserted by journalists resisting a subpoena. New York codified its journalistic privilege into the Shield Law, N.Y. Civ. Rights Law § 79-h (McKinney 2002). The Shield Law protects journalists from contempt for refusing to comply with a nonparty subpoena when the subpoena seeks to discover information conveyed to the journalist in confidence. Id. § 79-h(b). It also prevents discovery of unpublished nonconfidential information unless the party seeking the subpoena makes a “clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source.” Id. § 79-h(c). There is also a “common law” privilege recognized by this Court independent of New York’s Shield Law. See Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 32 (2d Cir. 1999) (endorsing journalistic privilege for nonconfidential information); In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982) (per curiam) (recognizing privilege for confidential information).
While the Court specifically states that it was not addressing the issue of whether credit-rating agencies could ever avail themselves of the Shield Law, it found that the specific agency in this case [Fitch] did not fit the criteria for two reasons: 1) the information-disseminating activity of Fitch did not seem to be based on a judgment about newsworthiness, but rather on client needs; and 2) Fitch's level of involvement with the client's transactions is not typical of the relationship between a journalist and the activities upon which the journalist reports.
Houston Rockets star Yao Ming is complaining that Coca-Cola (China) has improperly used his likeness by putting his picture on its latest "packages of drink." [this is from a Chinese newspaper, bear with me] Ming is apparently pictured with his Chinese National Teammates Menk Bateer and Guo Shiqiang wearing Chinese national team shirts. Ming is demanding that Coke "withdraw all the products bearing my image and all promotion materials which use my names or images immediately."
Coke claims that it has a contract with the agent of the Chinese national men's basketball team - Chinese Sports Management Company, which approves Coca-Cola to use the image of the Chinese team in "group images."
thesmokinggun.com has the lowdown on a defamation suit filed by DeAngelo Bailey, sanitation worker and aspiring rapper, against Eminem. Bailey claims that he was defamed by the Eminem song "Brain Damage," which identifies Bailey as a bully who repeatedly harassed and beat the young Marshall Mathers III in grade school. Turns out, Eminem's mom Debbie, who filed her own defamation suit against Eminem over his lyrics a few years back, filed a complaint in 1982 alleging that the local school board was failing to protect young Marshall from Bailey's daily beatings. [thesmokinggun.com has the school board case here]
The allegedly defamatory lyrics:
Way before my baby daughter Hailey
I was harassed daily by this fat kid named D'Angelo Bailey
An eighth grader who acted obnoxious, cause his father boxes
so everyday he'd shove me in the lockers
One day he came in the bathroom while I was pissin
And had me in the position to beat me into submission
He banged my head against the urinal til he broke my nose,
Soaked my clothes in blood, grabbed me and choked my throat
I tried to plead and tell him, "We shouldn't beef"
But he just wouldn't leave, he kept chokin me and I couldn't breathe
He looked at me and said, "You gonna die honkey!"
The principal walked in (What's going on in here?)
and started helpin him stomp me
I made them think they beat me to death
Holdin my breath for like five minutes before they finally left
Then I got up and ran to the janitor's storage booth
Kicked the door hinge loose and ripped out the four inch screws
Grabbed some sharp objects, brooms, and foreign tools
"This is for every time you took my orange juice,
or stole my seat in the lunchroom and drank my chocolate milk.
Every time you tipped my tray and it dropped and spilt.
I'm gettin you back bully! Now once and for good."
I cocked the broomstick back and swung hard as I could
and beat him over the head with it til I broke the wood
Knocked him down, stood on his chest with one foot..
According to the Associated Press the case is scheduled to go to trial this month. [additional coverage via Findlaw here]
A London school complained yesterday that a photographer goaded a student into making "rabbit ears" behind the head of education secretary Charles Clarke during a photo op. The boys, who were selected to meet Mr. Clarke because they were among the best behaved pupils in the school, will apparently not be punished. [story and photo here]
In Suzuki Motor Corp. v. Consumers Union, U.S. Court of Appeals for the Ninth Circuit Judge Alex Kozinski, just as he did in White v. Samsung, warns, forcefully and eloquently, of the potential erosion of First Amendment protections. Unfortunately, in both cases Judge Kozinski was writing in dissent.
The case involves Suzuki's claim that it was libeled by a Consumers Union's 1988 report that concluded that the Suzuki Samurai "rolls over too easily" and rated it "not acceptable." While the case was dismissed on a motion for summary judgment in 2000, a divided Ninth Circuit panel sent the case back for trial last year. Judge Kozinski's dissent, which eleven other Ninth Circuit judges joined, was published as part of the full Ninth Circuit's refusal to rehear the case en banc.
Judge Kozinski's dissent includes an interesting discussion of the doctrine of Independent Appellate Review, a dead-on analysis of Suzuki's libel claims and a warning about what the case may mean for the future:
If C.U. can be forced to go to trial after a thorough and candid disclosure of its methods, this is the death of consumer ratings: it will be impossible to issue a meaningful consumer review that a band of determined lawyers can't pick apart in front of a jury. The ultimate losers will be American consumers denied access to independent information about the safety and usefulness of products they buy with their hard-earned dollars.
How Appealing notes that The National Law Journal has reported that the North Dakota Supreme Court has upheld a $3 million verdict on behalf of a University of North Dakota professor who claimed that a former student defamed him in, among other things, postings to her web site. Wagner v. Mishkin, 2003 ND 69. While the Law Journal's report notes that "a key issue in the North Dakota case, and many cases involving Internet jurisdiction, is whether courts can stretch the long arm of the law to nonresident defendants whose alleged crimes are committed on the Internet," I'm not so sure that the result in this case does anything to expand the potential for Internet posters being haled into Court in foreign locales. Indeed, the North Dakota Supreme Court itself notes that "This Court has not previously had occasion to consider an Internet jurisdiction case. The present case, lacking a complete transcript of the district court proceedings, does not provide us with a sufficient record to undertake such an analysis," and states further:
[W]e note this case does not depend solely on Internet communications, either for jurisdictional purposes or defamation liability. Wagner's amended complaint alleged Miskin defamed him through several different mediums, not just over the Internet. Although she is currently a Minnesota resident, the record reflects Miskin was a North Dakota resident, attending a North Dakota university and living in campus housing, when many of the communications and incidents alleged in Wagner's amended complaint occurred. She also used a North Dakota University System email account to send messages to Wagner.
Tony Mauro, writing for Legal Times, reports here that the U.S. Supreme Court will consider whether to hear argument in North Jersey Media Group, et al. v. Ashcroft, No. 02-1289, during its private conference on Thursday. According to the report, "Media outlets are asking the Court to overturn a ruling by the 3rd U.S. Circuit Court of Appeals that allowed the Bush administration to hold closed deportation hearings for so-called special interest aliens detained after the Sept. 11 terrorist attacks." [via law.com] [prior post here]
A Chattanooga, Tennessee disk jockey received a suspended sentence of 30 days in jail and 10 days of community service for disorderly conduct arising out of a April Fool's Day prank. The DJ, Troy Shannon Brimmer of WXKJ-FM, told listeners that rapper Eminem would make an unscheduled stop in Chattanooga on April 1. Hundreds of people turned out expecting to hear the performer, only to find someone dressed in an M&M candy suit. The crowd apparently got upset and a melee ensued. [story from First Amendment Center via AP here]
Findlaw.com via AP reports here that High Court judge John Lindsay has scheduled a hearing to determine the level of damages to be awarded to Catherine Zeta-Jones and Michael Douglas in their case against UK's Hello! Magazine for July 16. [prior post here]
Models, Kate Moss and Liberty Ross, have filed suit in the UK against style magazine "The Face," alleging that the magazine published conversations between the women recorded during a December 2001 photo shoot. The complaint seeks £15,000 for "damage and distress" from loss of their privacy. [coverage via The Mirrorhere]
This time it's "The Jamie Kennedy Experiment." Plaintiff, Thea Robinson, claims that she was unwittingly duped into taking part in a job interview at restaurant. Things turned ugly when show host Jamie Kennedy, who was disguised as the restaurant manager, became involved in a brawl with two "patrons," who were actually employed by the show. Ms. Robinson claims that she left the restaurant but upon returning to collect items she had left behind, "everyone in the room burst into applause and laughter," with some shouting, "you've been Xed!"
Robinson's suit says she was "in a complete state of shock," and broke down crying when she later called her husband. In the six months since the prank, Robinson said she has "suffered confusion, paranoia, depression, anxiety and fear of crowds and unfamiliar situations," according to the lawsuit. The complaint alleges fraud, unfair business practices, invasion of privacy and intentional infliction of emotional distress, among other accusations, and seeks unspecified general, compensatory and punitive damages. [coverage via SFGate.comhere]
Earlier this month a California judge dismissed libel claims against e-Bay holding that the online auctioneer was immune from suit based on the Sec. 230 of the Communications Decency Act of 1996. [coverage via cnet here]
Today, cnet reports that the U.S. Supreme Court has denied certiorari in a Internet defamation case involving jurisdiction letting stand an appeals court's ruling that two Connecticut newspapers could not be sued for libel in a Virginia court over allegedly defamatory articles posted on their Web sites. [coverage via cnet here]
Media-inspired copycat crimes and negligent publication cases are of particular interest to me. I have collected a number of these cases and hope to write on the topic some day. In the meantime, I give you the first in what will certainly be an ongoing series of what I like to call "Don't Try This At Home."
"The Matrix" Blamed for Series of Murders [story here]
On a somewhat related note, actor Marcus Chong has sued the makers of "The Matrix" for allegedly breaching their promise to recast him as a freedom fighter in the 1999 sci-fi thriller's two sequels. Mr. Chong has spiced up an otherwise pedestrian breach of contract case with claims that the filmmakers of "intentionally publish[ed] numerous false statements ... that he was a terrorist," and of conspired to blackball him in Hollywood. [story via Reutershere]
A timeline here [via Deseret News] points out the events surrounding the recent Salt Lake Tribune/National Enquirer imbroglio including the National Enquirer's apology to the family of Elizabeth Smart, the National Enquirer's demand for a retraction from the Salt Lake Tribune, the firing of two Salt Lake Tribune reporters who apparently provided the National Enquirer with false information in exchange for $20,000, and the resignation of the Salt Lake Tribune's editor. The Salt Lake Tribune's report on the "Enquirer Incident" here.
Everything you always wanted to know about Jayson Blair (and then some) can be found at Romensko here. [also coverage via Newsweekhere] And New York Lawyer takes a look at the potential legal ramifications for the New York Times here. [thanks to Martin Schwimmer for the link]
Update: Perhaps seeking to cash in on the cache of prevarication, the New York Post today admitted that it too has hired a liar as one of its freelancers apparently "borrowed" from a National Enquirer story. [story here]
Mr. T became the latest celebrity to sue an electronics store for misappropriation/violation of the right of publicity when he filed a complaint against Best Buy earlier this month in Los Angeles Superior Court. Mr. T claimed that the electronics store chain made unauthorized use of his 1982 breakout role as boxer Clubber Lang in "Rocky III" to sell its appliances. According to the complaint, Mr. T, born Laurence Tureaud, alleged that the chain altered the "noble and serious" boxing sequence in the "Rocky" film by digitally removing actor Sylvester Stallone and making it appear Mr. T was boxing with a "middle aged, balding, out-of-shape" Best Buy salesman. [story via AP here] [prior related post here]
As reported by The Smoking Gun, the parents of Jim Morrison have filed suit against Doors' members Ray Manzarek and Robbie Krieger for "maliciously misappropriat[ing]" the name and logo of The Doors and using Morrison's poetry and photos without permission in connection with Manzarek and Krieger's reformed "Doors" band. [story with excerpt of complaint here] [I don't know exactly what this is, but Ma and Pa Morrison might want to amend their complaint after they check it out -- (took me a few minutes before I realized that you have to click on the letters)]
Finally, the U.S. Court of Appeals for the Sixth Circuit has reversed a grant of summary judgment in favor of the rap group OutKast. The appellate court revived the Lanham Act Sec. 43(a) and right of publicity claims alleged by civil rights figure Rosa Parks arising out of an OutKast song entitled, "Rosa Parks." Apparently the court felt that the use of Ms. Parks' name was not, as a matter of law, "artistically relevant" enough to the song's content, which includes the line "Everybody move to the back of the bus" in the chorus. Mr. Poonpoints to an interesting post on rap music and law at Sub Judice, which makes a number of points that I agree with. As Sub Judice points out, I also think that there really is a good argument justifying the artistic relevance of the title within the context of rap music, I just wonder to what degree the argument was developed on the record before the summary judgment papers were filed. [additional coverage via The Trademark Bloghere]
Sorry about the break in posting folks, but I got caught up in an interesting and active case that's kept me quite busy for the past few weeks. Things are calming down a bit, so I'm hoping to get back to whatever passed for "regular" posting before the blackout. Thanks for bearing with me.
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