MediaLawLetter April 2010
Download Publication SUPREME COURT Supreme Court Strikes Down Ban on Depictions of Animal CrueltyCourt Refuses to Create New Category of Unprotected SpeechU.S. v. Stevens Supreme Court Takes On Major First Amendment CasesCourt Will Review Video Violence and Funeral Protest DecisionsVideo Software Dealers Ass ‘n v. Schwarzenegger; Snyder v. Phelps REPORTERS PRIVILEGE N.J. App.: Blogger Not…
Ethics Corner: The Perils of Being Merely a Mouthpiece for Your Client
This article examines a recent decision of an Australian State court arising from a conflict between a lawyer’s duties to the court and duties to the client. A number of decisions over the last few years in Australian courts have looked at the issue of independence of lawyers. The majority of those cases have, however,…
New Jersey Supreme Court Issues Employee Email Privacy Ruling
In a decision evaluating the reasonable expectation of privacy held by a plaintiff litigating claims against her former employer, New Jersey’s Supreme Court last month held that an employee’s emails to her attorney—sent via a personal Yahoo! account, but on a company-owned laptop—were privileged attorney-client communications and should have been promptly forwarded to plaintiff’s counsel…
Media Issues On the Hill: Congress Considers Its Agenda For the Rest of the Year
Congressional attention thus far this session has focused on major legislative initiatives outside of the media realm. With passage of healthcare reform now secured, however, Congress is taking stock of the backlog before it and the waning legislative calendar. Both the House and Senate will attempt to pass Wall Street regulatory reform in the coming…
Google AdWords Upheld in Europe, But the Battle Isn’t Over Yet
In September 2009, MLRC published an article that considered the American and European approaches to the legality of keyword advertising. See “Search Engine Keyword Advertisements: An International Checkerboard of Rulings,” MLRC Bulletin 2009:3. At that time, the position in Europe was unclear and European lawyers and trademark owners were awaiting a decision from the European…
German Court Finds Jurisdiction Over New York Times in Libel Suit
The German Federal Court of Justice ruled in March that the German courts had jurisdiction over The New York Times, reversing a lower appellate court’s decision in a long-running libel suit brought against the newspaper by a businessman who lives in Germany. Boris Fuchsmann v. New York Times Company and Raymond Bonner, VI ZR 23/09….
British Science Writer Simon Singh Wins Libel Appeal
On April 1, 2010 a strongly constituted Court of Appeal consisting of the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Neuberger and Lord Justice Sedley – word was that two more junior judges originally chosen for the case were bounced off the bench- unanimously overruled the earlier decision by Mr Justice…
Ohio Supreme Court Overturns Judge’s Gag Order on the Media
On April 13, 2010, the Supreme Court of Ohio unanimously ruled that a Henry County Judge’s gag order preventing the media from promptly reporting on a local manslaughter trial was “patently unconstitutional.” State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas The Supreme Court issued a permanent order requested by the…
Comcast v. FCC: Defining the Limits of Federal Regulatory Authority over Internet Services
Ancillary (an•cil•lar•y) adj. 1. subordinate: often with to 2. that serves as an aid; auxiliary. Webster’s New World Dictionary of American English (3rd college ed.) It’s not often that a judicial decision opining on an arcane regulatory law issue – the extent of a federal agency’s “ancillary” jurisdiction – spawns dramatic, even apocalyptic, headlines. But that…
Proposed New Rules For New York City Press Passes
On April, 7, 2010 a public hearing was held at NYPD Headquarters to hear public comment on “Proposed Rule Revision Of Chapter 11 of Title 38 of The Official Compilation of Rules of the City of New York, Sections 11-01, 11-02, 11-03 and 11-04, relating to the Issuance of Working Press Cards, Reserve Working Press…
New York Court Rejects Prior Restraint in Copyright Case
On March 5, 2010, Judge Paul G. Gardephe of the United States District Court for the Southern District of New York denied a request for a preliminary injunction that would have barred the Canadian Broadcasting Corporation (CBC) from using any of the videotape it had taken at a New York fashion show put on by…
Florida Appellate Court Rejects Prior Restraint to Protect Children’s Privacy
A Florida appellate court panel summarily reversed a prior restraint entered to protect the privacy rights of two young children against a relative who expressed interest in writing a book about the murder of the children’s parents. Gagliardo v. In re the Matter of the Branam Children, 3D09-2958 (Fla. App. March 24, 2010) In September…
False Allegation of Homosexuality No Longer Actionable, Says NJ Federal Court
Nearly nine years after the New Jersey Appellate Division ruled that a false accusation of homosexuality is reasonably susceptible of a defamatory meaning, a U.S. District Court judge has predicted that the New Jersey Supreme Court would no longer follow that principle. Ironically both rulings stem from gay-baiting accusations aired on the same New Jersey…
Court Refuses to Convert “Garden-Variety” Copyright Claim into §1202 DMCA Claim
A photographer’s effort to convert his “garden-variety” copyright infringement claim, involving a semi-nude photograph of two radio shock jocks, into a potentially more lucrative Digital Millennium Copyright Act (“DMCA”) §1202 claim was blocked last month by a New Jersey federal district judge. In Murphy v. Millennium Radio Group LLC, et. al., No. 08-1743, 2010 WL…
Libel Tourism: Legislative Update
Utah Enacts Libel Tourism Law On March 23, Utah Governor Gary R. Herbert signed into law a bill to make foreign libel judgments unenforceable in the state unless complaint with the First Amendment and Utah constitution. The bill was introduced on January 20, 2010 by state representative Julie Fisher, R-Fruit Heights, a former television broadcaster. …
Media Expected to Benefit from Washington State’s Newly Strengthened Anti-SLAPP Statute
The news media received an important new legal tool on March 18, when Governor Chris Gregoire signed Senate Bill 6395, an enhanced anti-SLAPP statute. The law, which takes effect June 10, will provide important procedural safeguards against unwarranted defamation suits and similar claims based on news content and other speech. The legislation protects the public…
Newspaper’s Anti-SLAPP Win Affirmed on Appeal
A California appeals court panel affirmed dismissal of a doctor’s libel complaint against a newspaper, finding that the term “misdiagnosis” as used in an article was substantially true, not defamatory, and not a trade libel of the doctor’s practice. Keene v. Lake Publishing Co., No. A125371 (Cal App. March 18, 2010) (Haerle, Lambden, Richman, JJ.)…
Summary Judgment For Newspaper Affirmed On Appeal
A New Jersey appellate panel has upheld a trial court ruling dismissing allegations of false light because there was insufficient evidence of actual malice surrounding a weekly paper’s front page teaser headline saying two men accused by the SEC of civil fraud were “arrested.” Durando and Dotoli v. The Nutley Sun and North Jersey Media…
California Court of Appeal Affirms Summary Judgment in “Ali G” Libel-in-Fiction Case
With the first appellate decision in the United States addressing “libel-in-fiction” in a television context, a unanimous three-judge panel of the California Court of Appeal in Los Angeles has ruled for the defense, protecting “the free speech rights of all comedy performers and humorists.” Doe v. Channel Four Television Corp., No. B217145 (Cal. App. April…
EDNY Dismisses Ride-Along Suit
Conclusory allegations of a “media ride-along” with the police, supported only by allegations of media presence at the location of alleged constitutional violations by government authorities, are insufficient to state a claim against the media under 42 U.S.C. § 1983, according to a recent decision by Judge Joseph F. Bianco of the Eastern District of…
Hilton v. Hallmark Cards, Amended: A Transforming Opinion
Last year a three-judge panel of the United States Court of Appeals for the Ninth Circuit affirmed a denial of a motion by Hallmark Cards under the California Anti-SLAPP statute to dismiss a California common law right of publicity claim arising from the use in a birthday greeting card of Paris Hilton’s image and trademarked…
Virgin Islands Jury Awards $240,000 to Judge Over Articles Reporting on Bail Decisions
A Virgin Islands jury recently handed a libel win to a public official plaintiff. Former Virgin Islands Superior Court Judge Leon Kendall complained of 16 articles and one editorial in the Virgin Islands newspaper, The Daily News, which reported on his rulings regarding bail. A jury of seven women and one man deliberated for three…
Kansas Enacts Shield Law by Wide Margin
For shield law advocates, the 2010 Kansas legislative session was one to celebrate. By votes of 39-1 in the Senate and 116-3 in the House, the state legislature passed a bill to protect journalists’ confidential sources, and Gov. Mark Parkinson signed the bill into law April 15. The signing of the bill capped an eight-year…
Kentucky Court Refuses to Apply Shield Law to Online Commenter
A Kentucky trial court recently granted a newspaper’s motion to quash a subpoena seeking the identity of an anonymous online commenter accused of posting defamatory statement to a news article. Clem v. An Unknown Person, No. 08-CI-1296 (Cir. Ct. March 26, 2010) (Logue, J.). The court flatly rejected the newspaper’s attempt to raise the state…
Blogger Not a Journalist Under New Jersey Shield Law
While bad facts often beget bad law, a New Jersey appellate court has stymied a website operator’s attempt to stretch those bad facts to enable her to fall within the New Jersey shield law – one of the strongest in the nation. Too Much Media, LLC v. Shellee Hale (A-0964-09T3 April 22, 2010). While the…
Supreme Court Takes On Major First Amendment Cases
Does First Amendment Bar Restrictions on Violent Video Games? The Supreme Court this month agreed to review whether a California violent video game statute violates the First Amendment. See Video Software Dealers Ass ’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), rev. granted, (U.S. April 25, 2010) (No. 08-1448). Last year a Ninth Circuit…
Supreme Court Strikes Down Ban on Depictions of Animal Cruelty
In a strongly worded opinion written by Chief Justice John Roberts, the U.S. Supreme Court rejected the government’s bid to create a new category of unprotected speech and, by an 8-1 vote, struck down as unconstitutionally overbroad 18 U.S.C. § 48, a federal statute criminalizing the creation, sale, or possession of certain depictions of animal cruelty. …