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Safety Equipment Manufacturer Drops Suit Against NASCAR

2003-07-15T14:03:00.000-07:00

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.

Aerial Photographer Seeks to Dismiss Streisand Privacy Suit

2003-07-15T13:47:00.000-07:00

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]

Polanski Casting for Libel Suit

2003-07-15T11:30:00.000-07:00

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.

Police Officer Wins $110,000 Verdict Over Deadly Force Story

2003-07-15T11:14:00.000-07:00

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.

The Dangerous Creep of Commercial Speech

2003-07-11T08:53:00.000-07:00

The U.S. Court of Appeals for the Eleventh Circuit has certified a question to the Florida Supreme Court concerning the scope of Florida's commercial misappropriation statute, Fla. Stat. § 540.08 (1998) in a case arising out the film "The Perfect Storm." Tyne v. Time Warner, No. 02-13281 (11th Cir. July 9, 2003) [opinion here] [link via Dishings via How Appealing].

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.

Fun With IMDB

2003-07-11T07:56:00.000-07:00

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."

National Enquirer Settles Suit With Carolyn Condit

2003-07-11T07:48:00.000-07:00

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]

Kutcher Punk'd?: Seeks Apology Over "[Bleeping]" Quote

2003-07-11T07:42:00.000-07:00

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]

Breast-Related Post of the Day: Aniston Settles UK Privacy Suit

2003-07-11T07:30:00.000-07:00

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."

Back From The Dead: Firth v. New York

2003-07-10T13:31:00.000-07:00

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."

The Boys Always Wondered Why Their Pool Parties Were So Popular

2003-07-10T12:38:00.000-07:00

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 Gun here].

Be Like Spike!

2003-07-10T12:09:00.000-07:00

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-Intelligencer here]

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.

Spike Lee v. Viacom Settled

2003-07-08T03:50:00.000-07:00

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]

Claims Against Two Defendants in "60 Minutes" Suit Dismissed

2003-07-07T14:00:00.000-07:00

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."

Judge Refuses To Dismiss Sprewell Libel Suit

2003-07-07T13:59:00.000-07:00

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 Knick Latrell 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."

Chiquita v. Cincinnati Enquirer -- Five Years Gone

2003-07-03T11:52:00.000-07:00

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.

New Yorker on Spike TV

2003-07-03T10:30:00.000-07:00

"They're all nuts!" according to Nancy Franklin of The New Yorker. [article here (scroll down)] [link via dishings.com]

Judge Orders Reporters to Turn Over Tapes

2003-07-03T10:16:00.000-07:00

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.'"

Attorneys for the reporters have stated that they will appeal the decision to the U.S. Court of Appeals for the Seventh Circuit.

Chris Webber Seeks Help On In Court

2003-07-02T17:03:00.000-07:00

The Detroit Free Press reports here that Sacramento Kings star Chris Webber has asked a federal judge to order Free Press sports columnist Mitch Albom to testify at Webber's upcoming criminal trial. Webber claims that Albom can rebut government allegations that he received $280,000 from University of Michigan basketball booster Eddie Martin during Webber's tenure with the "Fab Five" basketball team.

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.

The Art of Self Ref(v)erence Part III

2003-07-02T13:10:00.000-07:00

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!

Former Editor Sues Over Manure Crack

2003-07-02T12:35:00.000-07:00

The Denver Westword reports here (scroll down) that former Denver Post assistant city editor Arnie Rosenberg has filed suit against the Denver Post and its editor Greg Moore over a comment made by Moore about Rosenberg's firing at a well-attended staff meeting last year. According to the complaint, when a staffer asked Moore why Rosenberg had been fired, "Moore first stated that he was not at liberty to discuss personnel issues." Moore then proceeded to respond by stating "the way to clean up a place is not to move manure around the barnyard."

Rosenberg, who is now an assistant city editor at the South Florida Sun-Sentinel, claims in the complaint that Moore's comment provoked "an audible gasp from those present and numerous people looked directly at Mr. Rosenberg upon hearing Moore's statement. Mr. Rosenberg felt like he wanted the earth to 'swallow him up.'" [via Romenesko]

Back In My Day, A Contract With A Heroin Addict Meant Something

2003-07-01T11:16:00.000-07:00

In March 2003, Craig Veytia claims that Jason Mewes, "Jay" of "Clerks" and "Mallrats" fame, entered into an agreement assigning the rights to his life story to Veytia. Shortly thereafter, HBO announced that it was commissioning a documentary to be produced by Veytia's production company. The documentary titled "Rock Bottom," was to track Mewes' rehabilitation and efforts to kick his heroin habit.

Now, apparently Mewes is refusing to cooperate with the project and has disavowed the assignment agreement. Veytia, in turn, has filed a declaratory judgment action in Los Angeles Superior Court seeking a declaration that the assignment gives Veytia the right to "produce and exploit" Mewes' story. [complaint via thesmokinggun.com here]

Fox News v. Faux News

2003-07-01T10:57:00.000-07:00

MediaLife Magazine has an interview here with Richard Luckett, webmaster of agitproperties.com, a website currently serving as the bee in Fox News Channel's bonnet. Apparently the folks at Fox are none too pleased with agitproperties' "Faux News Channel" and "O'Reilly Youth" t-shirt parodies. Fox has threatened the website with legal action.

In Its Place We Bring You "Breakfast at Tiffany's" Starring Mickey Rooney as Mr. Yunioshi

2003-07-01T10:00:00.000-07:00

The Fox Movie Channel has bowed to pressure and has decided to pull from its schedule the planned broadcast of 22 restored Charlie Chan films. [for more info check CharlieChan.net] On its website, Fox makes the following statement:

Fox Movie Channel will discontinue the broadcast of the Charlie Chan mystery films.

Originally restored to meet the requests of mystery fans and film preservation buffs, Fox Movie Channel scheduled these films in a showcase intended to illustrate the positive aspects of these movies such as the complex story lines/ characters and Charlie Chan's great intellect. Additionally, numerous subscribers to Fox Movie Channel, as well as film historians, have long requested that Fox Movie Channel broadcast these films.

However, Fox Movie Channel has been made aware that the Charlie Chan films may contain situations or depictions that are sensitive to some viewers. Fox Movie Channel realizes that these historic films were produced at a time where racial sensitivities were not as they are today. As a result of the public response to the airing of these films, Fox Movie Channel will remove them from the schedule.

In the hope that this action will evoke discussion about the progress made in our modern, multicultural society, we invite you to please click CONTACT US to send us your thoughts on the matter.

L.A. Times on Spike

2003-06-30T14:03:00.000-07:00

The Los Angeles Times reports on Spike Lee v. Viacom here.

The article notes that Justice Tolub has ruled that the action will be tried without a jury. Perhaps somewhat cynically, I thought that the complaint in the case -- filed in New York court and premised entirely upon New York, rather than federal, causes of action -- tipped Cochran's hand by demonstrating that he wanted to get the case in front of a New York State court jury. While there may be a few strong decisions interpreting New York's analogues to the Lanham Act out there, I'm not aware of New York state law providing any particular benefits to plaintiffs. Additionally, New York's state courts have consistently rejected arguments for the adoption of a California-style descendible right of publicity. On the other hand, New York is obviously where Spike Lee is most popular. I would think that the ruling on the jury issue was quite a blow to Team Cochran. But who knows, the success Lee has had so far has already surprised me.

On Newsstands Now!

2003-06-30T10:46:00.000-07:00

This month's Radar magazine has a bunch of interesting media law-related articles -- an interview with Matt Drudge conducted by Camille Paglia and Maer Roshan; a feature on attorney L. Lin Wood, who is representing Richard Jewell, the Ramsey family, and Gary Condit in suits against the media; and an article on the potential downfall of the "Girls Gone Wild" empire in the wake of the April 2003 arrest of founder Joe Francis on charges including violations of RICO, promoting the sexual performance of children, procuring persons younger than 18 for prostitution and drug trafficking.

Unfortunately, only the Drudge interview is available via the Web.

Condit's Fight Release of Phone Records

2003-06-30T10:45:00.000-07:00

Attorneys for Carolyn and Gary Condit are fighting requests made by The National Enquirer for Gary Condit's cell and Washington, D.C. apartment phone records. The Enquirer seeks to use the records to bolster its defense in the $10 million libel lawsuit filed by Carolyn Condit. Ms. Condit sued after the paper published an August 2001 story with the headline "Cops: Condit's Wife Attacked Chandra."

According to an Associated Press report [here via Monterey County Herald], the Enquirer's attorneys have argued that the tabloid is entitled to know whether phone records show Carolyn Condit contacted Levy.

The case is set for trial September 30.

Seventh Circuit To Rehear College Newspaper Case

2003-06-28T07:02:00.000-07:00

Updating a prior post [here], the U.S. Court of Appeals for the Seventh Circuit agreed yesterday to rehear Hosty v. Carter, a civil rights action brought by three college students at Governors State University, a state-run institution in University Park, Illinois against Patricia Carter, the university’s dean of Student Affairs and Services, arising out of the dean's apparent attempt to have school officials review material scheduled to be printed in the school's newspaper prior to publication.

In April, a unanimous three-judge panel had ruled that prior review of college newspapers is unconstitutional and that the case against Dean Carter could proceed [decision here]. In arguing for the rehearing, Illinois Attorney General Lisa Madigan asserted that the three-judge panel overlooked previous court cases that demonstrate that the law governing free-speech rights for college students is not "clearly established." [report via Student Press Law Center here]

Looking at the current development optimistically, the decision to rehear the case may not mean that the April decision's holding that the broad censorship powers of high school administrators do not apply in the university setting will simply be thrown out. Rather, the court may hold that for purposes of Dean Carter's qualified immunity defense the law concerning censorship of school newspapers was not sufficiently established to put her on notice that her actions were in violation of the First Amendment.

Savage Makes End Run

2003-06-27T16:12:00.000-07:00

Radio-talk-show and weekend MSNBC host Michael Savage has filed a lawsuit against three websites, Take Back The Media, Michael Savage Sucks, and Savage Stupidity. [lawsuit via Savage Stupidity here] [heads up via Sugar, Mr. Poon?]

While the suit alleges that the defendants have spread defamatory e-mail, no claim for defamation is alleged. Rather, Savage pleads claims for tortious interference with contract and prospective economic relations and unfair trade practices.

British MP Files Suit Against UK Daily Telegraph

2003-06-27T15:25:00.000-07:00

Suspended Labour MP George Galloway has issued High Court libel proceedings against The Daily Telegraph over a claim that he was in the pay of Saddam Hussein. [report via Channel 4 here] [link via Drudge]

According to the report, Galloway was suspended from the Labour Party over comments he made in an interview to an Arab television station. Mr Galloway branded Mr Blair and US President George Bush as "wolves."

Diet Pill Maker Sues The New York Times

2003-06-27T15:13:00.000-07:00

MediaLife Magazine reports here that diet pill manufacturer Cytodyne Technologies Inc. has filed suit against The New York Times in New Jersey federal court over a front page story that "raised questions about the safety of Xenadrine RFA-1, a weight loss aid that contains ephedra." According to the report, the company, making implicit reference to Jayson Blair, alleges that the story by Ford Fessenden exemplifies the Times’ "pattern and practice of failing to supervise its reporters and failing to check the accuracy and completeness of the stories that run in the newspaper."

Complaint Department

2003-06-27T15:02:00.001-07:00

Findlaw has collected the complaints in Rowlings v. Daily News and Price v. Sports Illustrated and Spike Lee's Memo of Law seeking a preliminary injunction, the preliminary injunction, istself, and the appellate court decision denying Viacom's motion to stay the order.

Supreme Court Refuses to Rule in Nike v. Kasky

2003-06-27T15:02:00.000-07:00

Six justices of the U.S. Supreme Court agreed that certiorari should not have been granted and dismissed Nike v. Kasky in a one-sentence, unsigned order. In a separate opinion, Justice Stevens explained some of the reasons for dismissing the case. Stevens said the court did not need to delve into the complex free speech issues raised by the case now. "This case presents novel First Amendment questions because the speech at issue represents a blending of commercial speech and debate on issues of public importance," Stevens wrote for himself and Justices David Souter and Ruth Bader Ginsburg. Nike v. Kasky, No. 02-575 (U.S. June 26, 2003).

Justices Sandra Day O'Connor, Anthony M. Kennedy and Stephen Breyer went on record saying the court could have resolved the case.

The result allows a suit filed by Marc Kasky, a California antiglobalization activist, for false advertising to proceed against Nike. [coverage via Washington Post here]

Actual Malice has moved!

2003-06-25T19:18:00.000-07:00

ActualMalice.com has a new home and rss/rdf feed.

SDNY Holds Racist Speech Still Protected Speech

2003-06-25T12:01:00.000-07:00

U.S. District Court Judge John E. Sprizzo for the Southern District of New York has ruled that "former New York Mayor Rudolph Giuliani and the heads of the police and fire department violated the First Amendment when they fired three employees for participating in a racist float during a 1998 Labor Day parade." [coverage via New York Law Journal here]

The float, an "alleged parody of African-American integration into the predominantly white community," featured performers in black face and Afro wigs. At the end of the parade, NYC firefighter Jonathan Walters hung from the back of the truck, reminiscent of the dragging death of James Byrd Jr. in Jasper, Texas, earlier that year. Walters, fellow firefighter Robert Steiner and NYPD Officer Joseph Locurto were fired after disciplinary hearings.

Judge Sprizzo found that participation in the parade "constituted speech on a matter of public concern" because the float had two aims: "to comment on the future racial integration of Broad Channel" and to win the funniest float prize -- "a prize the group had won in the past with other ethnicity-parodying floats." The Court concluded that "the long, continuing debate over the desirability of community racial integration in this country permits no doubt that the topic is a matter of important political and social concern to the community, regardless of which side of the debate is being represented."

Ninth Circuit Rules on CDA Immunity

2003-06-25T09:07:00.000-07:00

The U.S. Court of Appeals for the Ninth Circuit has held, in a 2-1 vote, that the posting of an allegedly defamatory email message (written by a third party) by the moderator of a listerv and operator of a website may be covered by the federal immunity for liability by providers and users of interactive computer services for "information provided by another", as specified in the Communications Decency Act, 47 U.S.C. § 230. Batzel v. Smith, No. 01-56556 (9th Cir. June 24, 2003) [opinion here]

The case arose out of an e-mail message sent by "sometime-handyman" Robert Smith to the Museum Security Network, a nonprofit organization that maintains both a website and an electronic e-mailed newsletter about museum security and stolen art. Smith's e-mail related his experiences while working in the North Carolina home of attorney Ellen Batzel. In the e-mail Smith stated that Batzel had bragged that she was granddaughter of one of Hitler's right-hand men and he believed that she had stated she was a descendant of Heinrich Himmler. Smith called attention to the "hundreds of older European paintings on [Batzel's] walls, all with heavy carved wooden frames," which Batzel has allegedly told Smith she had inherited. Smith then stated, "I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people," and provided her address.

Smith's e-mail was received by Ton Cremers, "then-Director of Security at Amsterdam's famous Rijksmuseumand (in his spare time) sole operator of the Museum Security Network." Cremers, after making some minor changes to Smith's e-mail, then posted the message to the Museum Security Newtwork's listserv and on the Network's website. According to the Court's opinion, "the Network's website and listserv mailings are read by hundreds of museum security officials, insurance investigators, and law enforcement personnel around the world, who use the information in the Network posting to track down stolen art."

After discovering the message, Batzel brought suit against Smith, Cremers, the Netherlands Museum Association and Mosler, Inc., an advertiser on the Network's listserv and website.

Cremers filed two motions -- a motion to dismiss for lack of personal jurisdiction, which was denied, and a motion to dismiss based on California's Anti-SLAPP statute, which was also denied. The Ninth Circuit after deciding that it had jurisdiction to review the district court's denial of Cremers' anti-SLAPP motion addressed the issue of whether Cremers' actions were protected by the provisions of § 230 of the CDA.

The Court ultimately found that "a service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service.'"

The "reasonable person" qualification arose out of the evidence that Smith claimed that he had no idea that his e-mail would be published by Cremers on the listserv and website. Thus, creating the issue of whether Smith's e-mail qualified as "information provided by another" under the statute.

The Court vacated the district court's order denying Cremers' anti-SLAPP motion and remanded the case to the district court "to develop the facts under this newly announced standard and to evaluate what Cremers
should have reasonably concluded at the time he received Smith's e-mail." The Court continued:

If Cremers should have reasonably concluded, for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the § 230(c) immunities. Under that circumstance, the posted information was not 'provided' by another 'information content provider' within the meaning of § 230. After making such an inquiry, the district court must then evaluate whether Batzel adequately has demonstrated a probability that she will prevail on the merits of her complaint under California's anti-SLAPP statute.

Dissenting from the test set out by the majority for the application of § 230 in this case, Judge Ronald M. Gould wrote:

The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress. Nothing in the CDA's text or legislative history suggests that Congress intended CDA immunity to extend so far. Nothing in the text, legislative history, or human experience would lead me to accept the notion that Congress in § 230 intended to immunize users or providers of interactive computer services who, by their discretionary decisions to spread particular communications, cause trickles of defamation to swell into rivers of harm.

The problems caused by the majority's rule all would vanish if we focused our inquiry not on the author's intent, but on the defendant's acts, as I believe Congress intended. We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. If the defendant took an active role in selecting information for publication, the information is no longer "information provided by another" within the meaning of § 230. We should draw this conclusion from the statute's text and purposes.

New York Video Voyeur Law Enacted

2003-06-25T08:15:00.000-07:00

New York Governor George Pataki signed a law making video voyeurism -- "secretly photographing another person in a private place, such as a bathroom or bedroom -- a felony punishable by up to seven years in prison." [coverage via CNN here] [Governor's press release here] [prior related posts here and here]

I am Spike-tacus!

2003-06-25T07:56:00.000-07:00

Spike Jones Jr., son of the "legendary music satirist," has entered the fray between Spike Lee and Viacom over Viacom's proposal to change the name of the TNN cable channel to "SPIKE TV." Jones, Jr. has apparently filed an affidavit on behalf of Viacom, arguing that giving Spike Lee exclusive rights to the name Spike would improperly limit the rights in the name and likeness of Spike Jones. [coverage via CNN here]

In other developments, Justice Tolub, who entered a preliminary injunction against the name change on June 13, has ordered Lee to increase the $500,000 bond initially ordered with an additional $2 million. Trial of the action has been scheduled for August 18, after Lee's attorneys rejected an offer to hold the trial on July 7. [coverage via Newsday here] [prior related posts here, here, here, here and here]

Reality TV Trial Set to Begin Monday

2003-06-23T15:45:00.000-07:00

Findlaw reports here [via CourtTV] that Philip Zelnick's suit against Peter Funt, "Candid Camera," the Pax television network, a Bullhead City, Arizona airport and the Mojave Country Airport Authority is scheduled to go to trial Monday in Los Angeles Superior Court.

Zelnick claims he suffered physical injury and emotional distress as a result of a June 15, 2001 prank filmed for the show. The prank occurred when Funt, posing as an airport security official instructed Zelnick to climb atop an authentic-looking, but phony, X-ray scanner machine (though identical in appearance to scanners reserved for carry-on luggage, the fake did not emit real rays). Zelnick claims he was left physically bruised and with a puncture in his leg from a pen as a result of the conveyor belt ride. The complaint includes claims for battery, negligence, false imprisonment, misrepresentation, and infliction of emotional distress.

Ex-Coach Sues Sports Illustrated

2003-06-23T10:13:00.000-07:00

Former Alabama football coach Mike Price filed suit against Time Inc. for $20 million Friday, alleging that he was defamed by a Sports Illustrated article concerning the the strip club visit that led to his firing.

According to this report by the Washington Post [via Associated Press], Price contends that seven parts of the article were inaccurate, "including its report that Price had sex with two women in his hotel room after a visit to Arety's Angels strip club and used the phrase, 'It's rolling, baby,' during what the story called 'aggressive sex.'"

Sports Illustrated is standing by the story and has refused to run a retraction.

Price does admit that he went to the topless club during a night of bar hopping in Pensacola, and he says he got so drunk a woman had to ride back to the hotel with him in a cab and help him to his room. But he claims that he fell asleep and that no sex was involved.

Price was fired on May 3, 2003, about five days before the magazine was released for sale. Price is also appealing his dismissal.

Scholastic, Rowlings Rattle Sabres

2003-06-23T09:57:00.000-07:00

Upset at pre-release reviews of the latest Harry Potter book, publisher Scholastic and author J.K. Rowlings have threatened legal action against USA Today and the Associated Press. Last week Scholastic and Rowlings filed a $100 million copyright infringement and tortious interference with contract suit against the New York Daily News. Shouldn't they be busy counting their money? [coverage via New York Daily News here] [prior related post here]

Dallas Observer Wins Summary Judgment

2003-06-23T09:40:00.000-07:00

A three-judge panel of Texas' 5th District Court of Appeals has reversed the trial court and granted the Dallas Observer summary judgment in a libel suit brought by restaurateur Dale Wamstad. Wamstad had sued over a March 16, 2000 profile headlined: "Family Man: Dallas restaurateur Dale Wamstad portrays himself as humble entrepreneur and devoted father. The family he abandoned in New Orleans has a bone to pick with that." Guess which part he didn't like.

The court found that Wamstad was a public figure "noting Wamstad's history of flamboyant appearances in various media, both over his business practices and his former marriage to Lena Rumore Waddell." Waddell was tried in New Orleans at one point for shooting Wamstad but claimed self-defense and was acquitted. [coverage via Dallas Observer here] [opinion here]

New York Appellate Court Upholds Spike TV Injunction -- Next Stop, Court of Appeals

2003-06-20T10:25:00.000-07:00

A five-member panel of New York's Appellate Division refused to undo the preliminary injunction entered by Justice Walter Tolub last week. The panel scheduled a hearing before a full appellate bench for the first week in September. [coverage via CNN here]

Marty at The Trademark Blog wants your comments.

Marty also has the lowdown on today's decision from the U.S. Court of Appeals for the Sixth Circuit dismissing Tiger Woods' trademark and right of publicity claims against an artist who had included Woods' image in a lithograph entitled "Masters of Augusta." [post here with picture] [decision here]

Philadelphia Daily News Settles Judge's Libel Suit

2003-06-20T10:06:00.000-07:00

The Philadelphia Inquirer reports here that a lawsuit filed by Philadelphia Municipal Court Judge Alan K. Silberstein against the Philadelphia Daily News has been settled mid-trial. According to the report, "Silberstein agreed to dismiss his case, and the Daily News agreed that its insurance company would pay his legal fees, costs and other expenses."

Silberstein's case arose out of a 1997 report concerning the investigation following the 1996 suicide of court administrator Kevin Murray. Murray apparently killed himself after a woman who worked as a contractor for the courts told police he had forced her to perform oral sex on him. Silberstein, then Municipal Court president judge, subsequently investigated the woman and her sexual behavior. [Philadelphia Daily News' statement here] [via Romenesko]

Rowlings and Scholastic Sue Daily News Over Potter Story

2003-06-19T14:17:00.000-07:00

Author J.K. Rowlings and publisher Scholastic have filed a copyright infringement and tortious interference with contract suit against the New York Daily News over an article concerning the yet to be published next installment of the Harry Potter series. The Daily News says it purchased the book from a grocery store in Brooklyn, whose proprietor was apparently unaware of the cloak of secrecy surrounding the book's release. The copyright claim is premised upon the Daily News' publication of a photograph of the opened book as well as "plot elements and character details that go to the heart of Rowlings' as yet-unpublished work." [coverage via Washington Post here] [complaint via FindLaw here]

The Latest on Spike

2003-06-18T07:44:00.000-07:00

Media Life Magazine reports here on Viacom's efforts to get a New York State appellate court panel to lift the preliminary injunction order entered against the company last week. According to the report, Viacom claims it has already lost $17 million and that its $30 million rebranding campaign and $100 million in commitments from advertisers hang in the balance. [prior posts here, here and here]

Pour Speling and Grammer Helps Defendnat in Liable Suit

2003-06-18T07:35:00.000-07:00

The Wall Street Journal reports here that U.S. District Court Judge Charles Breyer of the Northern District of California has ruled that a message board poster's "haphazard writing style made it unlikely that any Yahoo Inc. [message board] readers who saw the postings would take them seriously." As a result, the Court denied plaintiff Mark Cohodes' efforts to force Yahoo to turn over the identity of the anonymous poster, known only as "Harry." [prior related post here]

Especially If You're The Times

2003-06-18T07:22:00.000-07:00

On Monday, The New York Times published an article describing the efforts that network news departments have made to gain exclusive access to former P.O.W. Jessica Lynch for an interview. In particular, the article focused on CBS News' supposed synergistic approach to landing Lynch -- "dangling" the prospects of various movie, book and television deals through CBS News' parent Viacom.

On Tuesday, CBS News fired back in a letter playing the Blair card to the hilt, "Unlike the New York Times' own ethical problems, there is no question about the accuracy or integrity of CBS News' reporting." [report via Washington Post here]

This Blair Thing's Going to Sting For A While

2003-06-18T07:10:00.000-07:00

The Washington Post reports here that a West Virginia jury has returned a $10 million libel verdict against WVIR-TV (Channel 29) of Charlottesville, Virginia. While the case itself involved allegations that WVIR defamed auto-repairman Jesse Sheckler, by reporting that cocaine was seized from his home and auto-repair business, the spectre of the recent Jayson Blair scandal was in the air as Sheckler's attorney made repeated references to Blair throughout the trial. Defense attorneys claim that Blair was only mentioned to inflame the jury against the media. WVIR's attorneys have asked the court to set aside the verdict and grant a new trial.

Council of Europe Proposing Internet Right of Reply

2003-06-18T07:01:00.000-07:00

Declan McCullagh of cNet reports here that the Council of Europe (an influential quasi-governmental body) is considering adotping a resolution requiring that "Internet news organizations, individual Web sites, moderated mailing lists and even Web logs (or "blogs"), must offer a 'right of reply' to those who have been criticized by a person or organization." McCullagh explains why this is a bad idea. [thanks to Marty for the heads up]

Now Who's Gonna File My Returns?

2003-06-18T06:50:00.000-07:00

Judge Lloyd D. George of U.S. District Court for the District of Nevada has ruled that tax adviser, Irwin Schiff, can no longer give tax advice, prepare tax returns or sell Mr. Schiff's book, "The Federal Mafia: How the Federal Government Illegally Imposes and Unlawfully Collects Federal Income Taxes." The book argues that income taxes are voluntary and that people can lawfully escape them by filing tax returns listing no income.

In reaching its decision, the Court found that Mr. Schiff and his associates knew that they "are offering fraudulent tax advice" and that the book is false commercial speech which "is not protected by the First Amendment. The First Amendment does not shield criminal conduct in tax schemes."

According to The New York Times, "the A.C.L.U., the American Booksellers Association, American Publishers Association, American Library Association and PEN, the writers' group, filed a friend of the court brief opposing any restriction on sales of the book as prior restraint in violation of the First Amendment guarantees of free speech. They took no position on the validity of Mr. Schiff's tax advice." [report via New York Times here]

On Second Thought . . .

2003-06-18T06:37:00.000-07:00

Editor & Publisher reports here that inventor Paul C. Heckel has dropped a patent infringement lawsuit against a dozen small newspapers, which he claimed violated his patent for a linking technology. According to the report, Heckel claims he will refile his suit "once his company, Quickview Systems, which owns the patent, returns to good standing." E&P's report suggests that Heckel's decision to sue smaller newspapers may have backfired as one of his targets is owned by Lee Enterprises, Inc., the 12th largest newspaper company in the country. [prior related post here]

It's Gotta Be The Shoes!! Spike Lee Enjoins Spike TV

2003-06-13T11:11:00.000-07:00

Yesterday, New York State Supreme Court Judge Walter Tolub granted Spike Lee's request to preliminarily enjoin Viacom from changing the name of the TNN cable channel to "Spike TV" pending trial of the action. While Viacom argued that Lee cannot prove their network's new name refers to him, the Judge Tolub disagreed, stating, "Contrary to defendants' position, the court is of the opinion that in the age of mass communication, a celebrity can in fact establish a vested right in the use of only their first name or a surname. There are many celebrities that are so recognized, including Cher, Madonna, Sting and Liza."

According to this report in Media Life Magazine, "the judge will listen to the substance of Lee's arguments at a hearing scheduled for June 23."

[coverage via CNN here] [prior related posts here and here]

Time to Go to the Track . . .

2003-06-13T11:01:00.000-07:00

As predicted in this post from February 27, 2003, New York's state legislature passed a bill Thursday that would make it a felony to take salacious pictures of unsuspecting victims. Additionally, the bill provides that people who disseminate, publish or sell secret images of the intimate parts of another person's body would face criminal penalties. Their names and addresses would also be entered in the state's sex offender registry.

Governor Pataki is expected to sign the bill shortly. [coverage via CNN here]

Kooshed!

2003-06-12T13:53:00.000-07:00

Lucille DeBellis, a 71-year-old retired police officer, filed a $3 million suit on June 11, 2003 against Warner Bros. Television and AOL Time Warner, the producers of "The Rosie O'Donnell Show." DeBellis claims she was injured when she was hit in the mouth with a Koosh Ball that was allegedly launched into the audience by a show staffer during the warm-up for a November 2001 taping of the show. [report via Media Life here]

Doe! Fourth Circuit Dismisses Privacy Action

2003-06-12T13:39:00.000-07:00

The U.S. Court of Appeals for the Fourth Circuit has dismissed a fraudulent misrepresentation, invasion of privacy, and reckless or intentional infliction of emotional distress suit brought against The Associated Press for allegedly improperly revealing the name of a sexual assualt victim who appeared in open court to deliver a victim impact statement at the sentencing hearing of his attacker. Plaintiff alleged that despite the sentencing court's order to the reporters present not to identify any sexual assault victims in press accounts of the sentencing, AP published plaintiff’s name[which plaintiff himself stated in open court], identifying him as a sexual assault victim and disseminating the report to newspapers around the country. Doe v. The Associated Press, No. 02-1965 (4th Cir. June 11, 2003) [opinion here] [more via Volokh here and How Appealing here]

In reaching its decision, the Fourth Circuit measured the plaintiff's claims against two possible branches of the four invasion of privacy torts -- public disclosure of private facts and intrusion. With respect to the private facts claim, the court stated, "[w]e cannot understand how the voluntary disclosure of information in an unrestricted, open courtroom setting could be anything but
a matter of public interest." As for the intrusion claim, the court stated, "the AP reporter was where he had a perfect right to be. A viewer in plain sight on a courtroom bench who listens to the public testimony of a witness in open court can hardly be described as 'spying' or 'intruding' like an illicit eavesdropper."

Ultimately the court held, "Plaintiff may have successfully alleged poor judgment on the part of the AP, but he has not made out a case of tortious conduct under South Carolina law," and affirmed the dismissal of the case.

Iowa Supreme Court Confirms - Satan Still Wicked

2003-06-12T09:37:00.000-07:00

The Iowa Supreme Court has reinstated a libel suit filed by Jane Kliebenstein against a Methodist church in Shell Rock, Iowa and the Iowa Conference of the United Methodist Church. Ms. Kliebenstein claims that a letter written by Rev. Jerrold Swinton, then a district supervisor for the Iowa Conference, alleged that the "spirit of Satan" [apparently in the form of Ms. Kliebenstein, who had differing views with respect to a church pastor] was at work in the congregation.

While the court acknowledged that judges cannot interfere in matters of faith and internal church discipline, that fact that the letter "was published outside the congregation weakens the shield."

With respect to the issues of defamatory meaning and the defendants' argument that the existence of Satan was "beyond the purview of the courts," the Court held: "Perusing a standard dictionary convinces us that the term used by church officials to describe Jane Kliebenstein has religious roots but also carries a common and largely unflattering secular meaning. We conclude from these definitions that the phrase 'spirit of Satan' has meaning in a secular as well as sectarian context." [report via CNN here] [opinion here]

Don't Try This At Home - Part IV

2003-06-11T14:10:00.000-07:00

The St. Louis Post Dispatch [story via The Mercury News here] reports that authorities in St. Louis are seeking the author of a website providing instructions on how to commit suicide so that they can charge the individual with voluntary manslaughter. On June 2, 2003, a 52-year-old woman killed herself apparently following the instructions from the website on how to asphyxiate oneself with helium.

According to the report, "Under [Missouri] state law, voluntary manslaughter occurs when a person knowingly assists another in the commission of self-murder. It is a felony punishable by five to 15 years in prison."

The report also describes a case filed against now-defunct asphyxiation.com, which is charged with negligently contributing to a 21-year-old woman's suicide in February 2001 -- "the young woman died of a self-inflicted hanging, her computer still logged onto the Web site, which detailed how to perform the act."

The boyfriend of the St.Louis woman claimed that while she "had a history of clinical depression . . . she would not have known how to use helium to kill herself without the site's instruction."

Just When You Thought It Couldn't Get Any Worse -- Times' '32 Pulitzer Under Review

2003-06-11T13:52:00.000-07:00

As if Jayson Blair, Rick Bragg, Howell Raines and Gerald Boyd weren't enough, the AP reports here [via The New York Times] that the Pulitzer Prize Board is reviewing its decision to award a prize in 1932 to a correspondent for The Times who has been accused of ignoring a forced famine in Ukraine that killed millions. The Prize was given to Walter Duranty "who covered the Soviet Union for The Times from 1922 to 1941, earning acclaim for an exclusive 1929 interview with Stalin." Recently scholars have accused Duranty of being aware of the famine but ignoring it in his coverage in order to maintain his close ties to Stalin.

102-Year-Old Sues Over 1921 Editorial

2003-06-10T18:00:00.000-07:00

Editor & Publisher reports here that a suit has recently been filed claiming that a story and a rumored editorial published in the May 31, 1921 edition of the Tulsa Tribune sparked the 1921 Tulsa, Oklahoma race riot. The suit was filed on behalf of Rosella Carter, 102, and her son, James Dale Carter, 84, survivors of the riot. While the Tulsa Tribune has been defunct since 1992, the suit names the Tulsa World and the family of the deceased publisher of the Tribune.

A 1999 Kansas City Star article [here], which discussed Tulsa's re-examination of the events surrounding the riot, describes the circumstances surrounding the mysterious editorial:

The front page of the May 31 Tulsa Tribune carried the headline "Nab Negro for Attacking Girl in Elevator."

This article and a mysterious back-page editorial in the late edition, which allegedly called for a lynching, have become central to the riot probe. Both were neatly torn out before the Tribune microfilmed its back issues for posterity. Researchers uncovered the front-page story years ago, but they never found the inflammatory editorial, if one existed.

"It's the Holy Grail of the race riot," says Heath Henry, Tulsa Historical Society archivist.

Minutes after the afternoon paper hit the streets, a white mob showed up at the courthouse, where Rowland was held. Turn him over, they said. Sheriff Willard McCullough refused.

Don't Try This At Home - Part III

2003-06-10T15:02:00.000-07:00

AP via The Sacramento Bee reports here that authorities are blaming car racing movie "2 Fast 2 Furious" for a recent high speed crash that left a 78-year-old man dead. Police claim that Vahan V. Shahenian, who had just seen the movie, "was traveling nearly 100 mph on a residential street Sunday when his 2002 Nissan Altima broadsided a car driven by Keiji Iko, who died instantly."

Shahenian, who only suffered a broken arm, claims he was driving the speed limit.

Blink?

2003-06-10T14:44:00.000-07:00

Media Life reports here that Rosie O'Donnell approached magazine publisher Gruner + Jahr with a settlement offer that would involve both parties dropping their dueling breach of contract lawsuits and a payment to O'Donnell of "$4 million in legal fees [Ed. -- !!!!!!!] and a donation to charity equivalent to O'Donnell's initial $6 million investment in the Rosie partnership."

G+J launched "Rosie" in March 2001 as a completely revamped version of McCall’s. While the magazine initially fared well, newstand sales dropped off and then things got ugly. O'Donnell reportedly walked out after G+J made a change in editors. Thereafter, G+J filed a $100 million breach of contract suit, to which O'Donnell responded by filing her own $125 million breach of contract and defamation action.

According to the report, G+J let pass a June 2 deadline for a response to the offer and issued a statement: “G+J does not intend to litigate its dispute with Rosie O'Donnell in the media. G+J believes that the issues raised in this litigation are more appropriately addressed in court.”

It's Alive! It's Alive!

2003-06-09T21:56:00.000-07:00

Gawker reports that Redbook has apparently been working late in the Photoshop lab again, slicing and dicing the images of its cover models. Last month Jennifer Aniston was reportedly miffed over a purported composite image that gave her an disproportionately large head. This month it's Julia Roberts. Check the cover photos here.

"60 Minutes" Report Gives Rise to Two Libel Suits

2003-06-09T21:19:00.000-07:00

The Associated Press is reporting that a May 4, 2003 "60 Minutes" report entitled, "The Terrorist Hunter," has led to the filing of two libel suits.

The first suit, filed on June 5, was brought by two Virginia-based Muslim charities, Heritage Education Trust and SAFA Trust. The charities claim that they were defamed when the report showed a disguised woman standing outside an office building in Herndon, Virginia, she claimed was "the heart of a terrorist funding ring." The plaintiffs allege that the woman is the director of the Search for International Terrorist Entities (SITE) Institute, a private terrorism watchdog organization, and that the building is owned by the Heritage Education Trust. According to the AP report, "the office was one of several sites raided by federal authorities in a March 2002 sweep in northern Virginia and Georgia. No arrests have resulted from the probe, coordinated by the Treasury Department to cut off potential sources of terrorism funding." The suit, which also names CBS correspondent Bob Simon and SITE as defendants, seeks $80 million in damages. [AP's report via Washington Post here] [additional coverage via Washington Post here]

In the second suit, Gainesville, Georgia-poultry company Mar-Jac Poultry Inc. claims the segment implied that it funnels money to terrorists. According to AP, Mar-Jac Poultry Inc. "was searched by U.S. Customs agents in March 2002 for possible connections to terrorism, but [] was never accused of wrongdoing." The suit seeks unspecified damages.

The Smoking Gun Gets Another

2003-06-09T16:25:00.000-07:00

CNN.com reports here on the success that The Smoking Gun has had in uncovering some of the less-than-flattering secrets surrounding television's reality stars.

Looks like they got another one today -- reporting here that "For Love or Money" "prize" Rob Campos was expelled from his Judge Advocate General (JAG) unit "after he drunkenly groped the breasts of a Navy officer after barging uninvited into the woman's dormitory room early one morning."

You Know Where There Is Cat?

2003-06-09T16:15:00.000-07:00

Julie Hilden of Findlaw's Writ writes on the Spike Lee v. Viacom case here. While Ms. Hilden discusses right of publicity claims, Lee actually claimed a violation of New York's misappropriation statute. I hope to discuss the differences in greater detail later. [prior related post here]

Meanwhile, Spike Lee was in court today trying to enjoin Viacom's proposed name change for TNN. The judge promised a decision by June 16. [coverage here] [via Gawker]

FBI Finds Package Grab "Less Than Prudent"

2003-06-05T11:44:00.000-07:00

The Associated Press reports here that the FBI has "has criticized several of its employees for not seeking advice from bureau managers before handling material that had been seized while being mailed between two Associated Press reporters." [via First Amendment Center] [prior related post here]

Tumult at the Times

2003-06-05T11:33:00.000-07:00

Executive Editor Howell Raines and Managing Editor Gerald M. Boyd have resigned.

More here at CNN.com.

Clinton Book Blitz Spoiled by AP Leak?

2003-06-04T15:47:00.000-07:00

Drudge links to this Washington Post report that Simon & Schuster may be considering legal action against the Associated Press for reporting on the revelations in Hilary Clinton's forthcoming memoir "Living History." While the book is not scheduled to be released until next week, AP ran a story yesterday that quoted the book extensively. According to the report, AP spokesman Jack Stokes said the agency had not broken the law and "obtained the book through good old-fashioned reporting."

Maybe His "Quote" Key Was Stuck

2003-06-04T15:37:00.000-07:00

The New York Times reports here that Little Brown has recalled "Pandora's Keepers: Nine Men and the Atomic Bomb," by Brian VanDeMark, concerning the the creation of the atomic bomb, from bookstores after "four authors complained that more than 30 uncredited passages in it were identical or nearly identical to passages in their works." Notably, one of the complaining authors was Robert S. Norris, who had been asked by The Times to review the book and discovered passages without quotation marks similar to those in his book "Racing for the Bomb."

Baltimore County Prosecutor Files $10M Libel Claim

2003-06-04T15:21:00.000-07:00

The Boston Globe reports here that Marc Mandel, a Baltimore County, Maryland prosecutor, has filed a $10 million libel suit against The Boston Phoenix newspaper and its website over an article about custody battles that involve child abuse claims that included a description of allegations that Mandel had abused children from two different marriages. According to the the Globe's report "Mandel and his estranged wife are involved in a complex custody and divorce case that has involved courts from Maryland to Massachusetts," and that Mandel "has been awarded custody of the two young children from his second marriage."

The Globe article also notes that Mandel attorneys will, despite Mandel's public official status, argue that he should be treated as private figure for purposes of the lawsuit. [via Romenesko]

Defamation Claim Against Former Los Alamos Scientist Dismissed

2003-06-04T14:59:00.000-07:00

The U.S. Court of Appeals for the Fourth Circuit has, in an unpublished decision, dismissed a defamation claim brought by Notra Trulock, a former Department of Energy official, against former Los Alamos scientist Wen Ho Lee, who was investigated for allegedly mishandling documents relating to nuclear weapons. Trulock had alleged that Lee and two other government officials defamed him when they alleged that Trulock's role in the inverstigation of Lee was motivated by racial bias. The U.S. Government ultimately invoked the "state secrets privilege" and the court agreed that the case could not go forward without use of the privileged information, mandating dismissal of the lawsuit. [opinion here]

More on the case from SW Virgina Law Blog here.

Lee v. Viacom: A Spike Lee Joint

2003-06-04T14:44:00.000-07:00

Spike Lee has sued Viacom over its recent decision to rename its "TNN" cable channel, "SPIKE TV." Lee filed the claim in New York state court and alleges claims for misappropriation, unfair trade practices, unfair competition and false advertising and is seeking, among other things, to enjoin the name change. [complaint via The Smoking Gun here] [coverage via CNN here]

Bikini Model Sues Playboy Over Mansion Party Video

2003-06-03T13:02:00.000-07:00

Adult Video News reports here that bikini model and two-time Hooters Regional Bikini Champion, Jennifer Whitney, has filed a claims for invasion of privacy, fraud and unjust enrichment against Playboy and Hugh Hefner.

Whitney claims that that she was videotaped naked at an "artistic body painting promotion" at the Playboy Mansion and unwittingly wound up on the cover of a videotape called "Playboy Mansion Parties, Hottest Moments and Body Painting." Whitney, who claims she never gave Playboy permission to use her name or likeness, alleges that "The (video) misleads viewers into thinking that all of the girls from the artistic body painting promotion, such as Ms. Whitney, were attending a pornographic lesbian party."

Warning: Unless you have a job like mine, links may not be safe for work!

Eighth Circuit Holds Violence is Not Obscenity

2003-06-03T09:51:00.000-07:00

The U.S. Court of Appeals for the Eighth Circuit has struck down a St. Louis ordinance that "makes it unlawful for any person knowingly to sell, rent, or make available graphically violent video games to minors, or to 'permit the free play of' graphically violent video games by minors, without a parent or guardian’s consent." [decision here] [prior related post here] [via How Appealing]

Pam Anderson Did the Same Thing to Me...

2003-06-03T09:33:00.000-07:00

Adam Liptak of the New York Times had an interesting article yesterday [here] about the acrimonious state of affairs between Internet personality Tucker Max and former Miss Vermont Katy Johnson. After dating briefly, Ms. Johnson was none too pleased with the "blow-by-blow" account of their relationship posted by Mr. Max on his website and went to Court to get Mr. Max to stop. Judge Diana Lewis of Circuit Court in West Palm Beach ruled, apparently ex parte, that Mr. Max could not write about Ms. Johnson, could not use the words "Katy," "Miss Johnson," or "Miss Vermont," could not disclose any "stories, facts or information, notwithstanding its truth, about any intimate or sexual acts engaged in" by Miss Johnson, and could no longer link to her site.

Mr. Max's attorneys have indicated that they will soon seek to have the Court withdraw the order and dismiss the case. As the article notes, its pretty rare and downright scary (as Kevin of TLA notes) that you can be prohibited from discussing accurate facts about your own personal life.

Further coverage: MSNBC.com's WebLog Central discusses the case, and drops in a nice link to Kevin's TLA post on the "off the record" controversy concerning the recent D: All Things Digital technology conference.

Don't Try This At Home - Part II

2003-06-03T09:16:00.000-07:00

Julie Hilden of Findlaw's Writ discusses the potential culpability of the media for copycat crimes here. [prior related post here]

In other news, CNN reports here that a 13-year-old boy was arrested for pouring boiling water on a sleeping friend and videotaping the incident for his own private "Jackass: The Movie."

Yeah, But Have You Tried Them With Ketchup?

2003-06-02T22:57:00.000-07:00

CNN reports here that McDonald's Italy has filed suit against Edoardo Raspelli, a well-known Italian food critic, for saying McDonald's "burgers taste of rubber and its fries of cardboard." Raspelli claims to have received a lot of support for his comments from the Italian "slow food" movement and calls the suit "the usual, very American effort to destroy criticism and destroy people."

Interestingly, according to the report McDonald's is claiming that Raspelli statements are "clearly defamatory and offensive to McDonald's and to the more than 600,000 Italians who each day freely choose to eat in a McDonald's restaurant."

California Supreme Court Dismisses Winter Brothers Case

2003-06-02T22:42:00.000-07:00

Updating a prior post [here], the California Supreme Court has dismissed the right of publicity claims brought by musician brothers, Johnny and Edgar Winter, against DC Comics. The Winter brothers had alleged that the comic publisher's use two "villainous half-worm, half-human" characters called Johnny and Edgar Autumn misappropriated their images in violation of California Civil Code section 3344.

The court noted that because the drawings of the plaintiffs were "distorted for purposes of lampoon, parody or caricature," the Autumn brothers, as depicted in the comic book series, contained "significant creative elements that transform them into something more than mere celebrity likenesses" and entitled the "fanciful, creative characters" to First Amendment protection.

[opinion here]

Maybe Her Trees Were Bare . . .

2003-05-30T08:50:00.000-07:00

Drudge links to this story from SFGate.com reporting that Barbra Streisand has filed a $50 Million lawsuit against an aerial photographer and related companies. Streisand claims that the aerial photographs taken of her Malibu home and property violates her right to privacy. According to the article, Streisand's complaint includes five counts of privacy intrusion, including violation of California's Anti-Paparazzi Statute, Civil Code Sec. 1708.8.

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.

Now You See It . . . Ninth Circuit Makes Copyright Claim Disappear

2003-05-29T16:07:00.000-07:00

The U.S. Court of Appeals for the Ninth Circuit has dismissed a copyright claim brought by the owner of the copyright of "The Mystery Magician," a home video that exposes the secrets of magicians, against Fox Broadcasting Co., which produced and broadcast a series of television specials also exposing the secrets of magicians. [decision here]

Coach Files Defamation Suit Against Players' Parents

2003-05-29T13:29:00.000-07:00

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 Newsday here and Dell's complaint here]

If Interested, Please Leave Message With God

2003-05-28T10:18:00.000-07:00

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.

Jury Finds New York Times Article Defamatory But Not Published With Actual Malice

2003-05-28T09:05:00.000-07:00

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 Post here]

Harrods Gets Okay to Continue With UK LIbel Action Against The Wall Street Journal

2003-05-27T12:48:00.000-07:00

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.

[coverage via Guardian Unlimited here]

Reporter Convicted of Trespass

2003-05-27T11:49:00.000-07:00

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.com here]

Spiritual and Economic Loss = 12 cents

2003-05-27T11:42:00.000-07:00

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]

Supreme Court Denies Cert. In Immigration-Access Case

2003-05-27T11:35:00.000-07:00

Updating a prior post [here], the U.S. Supreme Court has denied certiorari in North Jersey Media Group, et al. v. Ashcroft, No. 02-1289. [coverage via Editor & Publisher here]

More Groups Protest "New Beverly Hillbillies"

2003-05-23T09:45:00.000-07:00

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].

Louisiana's Anti-SLAPP Statute Protects Professor From Defamation Suit

2003-05-22T22:22:00.000-07:00

Louisiana's 2nd Circuit Court of Appeals has ruled that a university professor's criticism of school officials on matters of public interest should be protected under the state's Anti-SLAPP statute (Code of Civil Procedure Art. 971). Baxter v. Scott, No. 37,092-CW (La. Ct. App. May 16, 2003). As a result the court dismissed the claims of Richard Baxter, former vice president for external affairs at the University of Louisiana at Monroe, who had alleged that former ULM economics professor John Scott had defamed him on Scott's now-defunct www.truthatulm.homestead.com web site.

In reaching its decision, the court stated, "We believe that publishing statements relating to matters of public interest on a website is an exercise of one’s constitutional right of free speech."

[decision here] [coverage via First Amendment Center here]

Lost My Job, Doing Time, Things Just Can't Get Any Worse . . .

2003-05-22T21:38:00.000-07:00

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.

Second Circuit Holds Credit-Rating Agency Must Comply With Subpoena

2003-05-22T14:15:00.000-07:00

The U.S. Court of Appeals for the Second Circuit has held that a credit-rating agency cannot assert New York State's statutory Shield Law, N.Y. Civ. Rights Sec. 79-h, in seeking to avoid compliance with a subpoena. In re Fitch, Inc., Docket Nos. 03-7062, 03-7076 (2d Cir. May 21, 2003).

As the Court explains:

[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.

[decision here]

Is Yogi Next?

2003-05-22T13:56:00.000-07:00

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."

[coverage via People's Daily here]

Um, I Meant "THANK You Debbie"

2003-05-22T13:43:00.000-07:00

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]

How Can You Have Any Pudding?!?

2003-05-22T12:40:00.000-07:00

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]

Judge Kozinski's Cassandra Complex

2003-05-21T11:03:00.000-07:00

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.

[report via New York Times here] [decision here] [thoughts from Professor Volokh here and the folks at Crescat Sententia here]

North Dakota Supreme Court Affirms $3M Internet Defamation Award

2003-05-21T10:59:00.000-07:00

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.

[opinion here]

Supreme Court to Consider Access to Immigration Hearings

2003-05-21T10:40:00.000-07:00

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]

Yeah, But Could He Rap?

2003-05-20T12:52:00.000-07:00

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]

How Much Richer Will They Get?

2003-05-20T12:25:00.000-07:00

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]