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May 2020

MediaLawLetter February 2020

in this issue

Letter to a Young Media Lawyer: Deanna Shullman

Deanna Shullman

Dear Future Badass Media Lawyer: MLRC has asked me to write an advice column for young(er) media lawyers. MLRC is either flattering me or it’s shuffling me out the door and wishing me well in retirement. I’m not sure. But I do know that I am in good company with my predecessor columnists, who have…

State Courts Can’t Agree on Whether “Revenge Porn” Laws Violate the First Amendment

Erik Bierbauer and Michael Cort

Laws targeting reprehensible speech often raise thorny First Amendment issues, and punishments for disseminating non-consensual intimate images, or “revenge porn,” fit that mold. State court decisions are split on the constitutionality of “revenge porn” laws, which have been enacted in 46 states, the District of Columbia, and Guam. See (last visited Jan. 28, 2020)….

Second Circuit Affirms Fair Use Finding in Drake Sampling Case

Giselle M. Girones

On February 3, 2020, the Second Circuit Court of Appeal upheld the summary judgment awarded to Drake and other music industry defendants, which found the sampling of a 1982 song amounted to fair use. Estate of James Oscar Smith v. Graham, et al., No. 19-28 (2d Cir. Feb. 3, 2020). Background Plaintiffs, the Estate of…

Fast Company Secures Denial of Motion to Compel Disclosure of Journalist’s Confidential Source

Megan Daneshrad and Toby Butterfield

In a decision seemingly of first impression, Fast Company and its journalist Marcus Baram managed to resist an aggressive and well-funded attempt by Shervin Pishevar to take discovery from journalist Marcus Baram – including by forcing him to disclose his confidential for his reporting – on the grounds that Pishevar intended to use that information…

Federal District Court Grants Partial Release of Historical Grand Jury Records

Jacob M. Schriner-Briggs

The U.S. District Court for the District of Massachusetts recently ruled for Harvard historian Jill Lepore in her effort to unseal grand jury records related to the leak of the Pentagon Papers. Judge Allison Burroughs held that the government must release many of the records it possesses unless it can demonstrate sufficient rationale for maintaining…

City Teacher Sues Media and City for Defamation, Learns Lesson About Fair Report Privilege and the First Amendment

Amanda Levine

On February 24, 2020, Judge McMahon of the United States District Court for the Southern District of New York issued a decision dismissing various claims brought by former Bronx middle school teacher Patricia Cummings against the New York Daily News (the “Daily News”), the Hechinger Report, Larry McKelvey (a/k/a “Charlamagne Tha God”), and numerous city…

$40 Million Libel Suit By “Teletherapy” Platform Talkspace Dismissed

Dori Hanswirth and Jesse Feitel

No Personal Jurisdiction Based on Letters & Emails to D.C. On January 21, 2020, Chief Judge Beryl Howell of the United States District Court for the District of Columbia dismissed a libel lawsuit brought by “teletherapy” platform Talkspace against Psychotherapy Action Network (“PsiAN”) and its co-founders. Chief Judge Howell ruled that there was no personal jurisdiction…

Court Dismisses Virginia Lieutenant Governor’s Defamation Suit Against CBS

Emmy Parsons and Matthew E. Kelley

In mid-February, a judge in the Eastern District of Virginia granted CBS’s motion to dismiss a defamation lawsuit filed by Virginia Lt. Gov. Justin Fairfax over the broadcast of interviews with two women who accused him of sexually assaulting them. Fairfax v. CBS, 1:19-cv-01176 (E.D. Va. Feb. 11, 2020). The court held that, because CBS…

Texas Appeals Court Confirms Substantial Truth Can Be Asserted as a Defense

Catherine Robb

The First Court of Appeals in Houston, Texas recently confirmed that a defendant can assert the affirmative defense of substantial truth in a defamation case, even after a plaintiff has met its burden under the Texas Anti-SLAPP statute to present a prima facie showing of falsity. Propublica v. Frazier, No. 01-19-0009 (Tex. App. Jan. 23,…

Fair Report Privilege Applied to Reverse $250,000 Libel Verdict

Dennis R. Bailey

Plaintiff Alleged “To Catch a Predator” Broadcast Falsely Labeled Him a “Sex Offender” The Alabama Supreme Court has reversed and rendered a $250,000 libel verdict based upon the application of the state’s statutory fair report privilege in a case involving a “To Catch a Predator” public interest broadcast. Birmingham Broadcasting (WVTM-TV) LLC v. Hill, No. 1180343…

From the Executive Director’s Desk: February Was the Worst Month for the First Amendment, But A Great Month for Journalism

George Freeman

I have taken the position for three years that while President Trump’s media bashing has been unprecedented, unpresidential, and extremely dangerous and damaging, at least he really hasn’t done anything to harm or endanger media law. While he still hasn’t directly altered the law, it is hard not to agree with the proposition that in…

MediaLawLetter February 2020

 Download Publication MLRC February Was the Worst Month for the First Amendment, But A Great Month for Journalism: Trump and WeinsteinGeorge Freeman Letter to a Young Media LawyerDeanna Shullman LIBEL & PRIVACY Ala.: Fair Report Privilege Applied to Reverse $250,000 Libel VerdictPlaintiff Alleged “To Catch a Predator” Broadcast Falsely Labeled Him a “Sex Offender”Dennis R….