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August 2021

MediaLawLetter August 2021

Ninth Circuit Affirms First Amendment Protection for Rachel Maddow; The Most Bizarre Lawsuit(s) Involving ‘The Most Gullible Man in Cambridge’ Gets Dismissed; The ‘Embed’ Saga Continues: Another Court Rejects ‘Server Test’ With More Decisions Looming; Ten Questions for Harry Melkonian and much more.
in this issue

Times v. Sullivan, Rosenbloom, and Justice Gorsuch: Where is SCOTUS Heading?

George Freeman

Here are a few personal thoughts on the issue – first, on the need for the continued reliance on the actual malice rule; and, second, dealing with the criticism of the public figure (as opposed to public official) categorization by a return to the Rosenbloom rule.


Ninth Circuit Unanimously Affirms First Amendment Protection for Rachel Maddow’s “Paid Russian Propaganda” Commentary

Nathaniel L. Bach and Marissa M. Mulligan

The Court held that the Southern District of California correctly granted Defendants’ anti-SLAPP motion because Ms. Maddow’s statement that OAN “really literally is paid Russian propaganda”—in the context of her broadcast, in which she employed entertaining and hyperbolic language while commenting on a matter of public concern and fully disclosing the facts—“is well within the bounds of what qualifies as protected speech under the First Amendment.”

New York Federal District Court Dismisses Financier’s Libel Case

Robert P. LoBue

The decision covers a number of issues of current interest to the media bar, including the circumstances in which hyperlinking to an earlier, allegedly libelous article is a republication starting a new limitations period, the scope of the “issue of public interest” standard in the recently-enacted amendments of New York Anti-SLAPP statute, and the actionability in the context of newsgathering of torts such as interference with confidentiality agreements and inducement to breach of fiduciary duty.

The Most Bizarre Lawsuit(s) Involving ‘The Most Gullible Man in Cambridge’ Get Dismissed

Jeremy Chase and Carl Mazurek

These decisions – both of which are now on appeal – serve as vindication for the magazine and its author, Kera Bolonik, and mark a key turning point in this long-running and outlandish saga.


What the Zuck! Court Grants USA Today’s Motion to Dismiss Social Media Personality’s Complaint

Michael Pusateri and Michael J. Grygiel

Judge Karsznitz — who presided over a two-hour oral argument on the motion to dismiss — was guided by longstanding precedent holding that the First Amendment is implicated whenever a plaintiff takes aim at speech addressing matters of legitimate public concern, no matter how her claims are styled. 

Eleventh Circuit Affirms Early Dismissal of ‘Hate Group’ Defamation and Religious Discrimination Claim

Peter Canfield

Alleging “nothing but love for people who engage in homosexual conduct,” no matter how “vile” and “shameful” their conduct, is not enough to legally ground a defamation and religious discrimination lawsuit filed by a media ministry challenging its public branding as an anti-LGBTQ “hate group.”


The ‘Embed’ Saga Continues: Another Court Rejects ‘Server Test’ With More Decisions Looming

Kenneth P. Norwick

SDNY Rakoff, in Nicklen v. Sinclair, effectively followed Breitbart and fulsomely rejected Perfect 10’s “server rule.” And there is more judicial “embed” activity to be expected in the immediate future.


Sacramento Bee Scores Win Against Police Secrecy

Karl Olson and Aaron Field

California’s Legislature passed a landmark bill, Senate Bill 1421, to curb police secrecy effective in 2019, but the state’s police agencies and powerful police unions have fought and delayed its implementation virtually every step of the way. Now the Sacramento Bee, in an August 13 ruling, has scored  another victory —  mirroring earlier victories by…

Pushing Back Against NYPD for Violations of Journalists’ Constitutional Rights

Mickey H. Osterreicher and Robert D. Balin

In a recently filed suit, five visual journalists are suing the NYPD for civil rights violations after each journalist was targeted, beaten, or arrested by NYPD officers while attempting to cover the 2020 George Floyd protests in New York City.

Court Analyzes FOSTA Exception to Section 230

Jeff Hermes

The case involved claims against Twitter arising out of its alleged failure to remove links to third-party sex trafficker pornographic videos upon the request of minors depicted therein.

Some DNA Issues for Art Law

Jesse H. Ausubel

DNA can contribute powerfully to attribution and authentication of artworks, and thus to historic and market value. 

10 Questions to a Media Lawyer: Harry Melkonian

Harry Melkonian

The Sydney lawyer on career moves, big cases, quarantine living, and more.