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February 2021

MediaLawLetter February 2021

in this issue

One Year Into the Pandemic: When Will We Have In-Person Conferences Again?

George Freeman

So if the site is great and the optimistic downward trend of cases and fatalities due to Covid continue, we should be all set, right? As lawyers well know, nothing is ever that easy.


Defamation Claims Brought by Art Fraudsters Dismissed

Sigmund D. Schutz and Peter G. Callaghan

In a case mixing the sale of forged paintings and claims of defamation, a New Hampshire Superior Court recently ruled that reporting by several news organizations about an art forgery lawsuit is protected by the substantial truth doctrine and the fair report privilege.

Barron’s Wins Dismissal of Prominent Securities Lawyer’s Defamation Complaint

Natalie J. Spears and Gregory R. Naron

In a victory for investigative journalism emphasizing New York law’s strong protection for headlines, Judge Paul Engelmayer of the Southern District of New York dismissed with prejudice all claims against Dow Jones and veteran reporter Bill Alpert in a defamation lawsuit brought by a prominent securities lawyer arising from an online Barron’s magazine article.

New York State Appellate Court Rejects Defamation and Right of Publicity

Michael J. Grygiel

An intermediate appellate court in New York recently affirmed the dismissal of a complaint asserting a potpourri of tort claims against a community newspaper based on its publication of an archived photograph to illustrate a current news story.

Allegations of Scientific Misconduct Protected as Opinion or Substantially True

Kevin Shook and Ryan Goellner

The court affirmed summary judgment for the defendant—another researcher who exposed alleged fraud and errors in Dr. Croce’s work—and clarified that Ohio defamation law can protect accusations of plagiarism and fraud when founded on disclosed facts or substantial truth.


Oklahoma Court SLAPPs Police Officer’s False Light Claim

Robert Nelon

It is comforting to media and satisfying to their counsel when courts recognize accuracy, professionally achieved. One Oklahoma district court provided that comfort and satisfaction recently in Yates v. Gannett.

Maryland Federal Court Dismisses Nunes Advisor’s Defamation Lawsuit

Maxwell S. Mishkin

The court dismissed Harvey’s complaint for failure to state a claim and lack of personal jurisdiction.


Warrantless Border Searches of Electronic Devices Constitutional

Jackson Busch

The First Circuit ruled this month that warrantless searches of electronic devices at the border do not violate the First or Fourth Amendments.


Eight Circuit Finds Police Officers’ Subjective Beliefs May Limit First Amendment Right to Film Them

Michael L. Nepple

The evolving First Amendment right to film the police is not absolute, according to the Eighth Circuit.


Thanks to Cameras, No Qualified Immunity for Cop Who Tear-Gassed Journalists During Ferguson Riots

Ross Ufberg

An officer responding to protests in Ferguson, Missouri after the 2014 death of Michael Brown is subject to suit claiming he violated news media’s First Amendment rights.


Contempt and Suppression Down Under

Peter Bartlett

When the third most powerful man in the Vatican was convicted of molesting two choirboys by an Australian jury in December 2018, media companies scrambled worldwide. Yet in Australia, there was media silence on specific details of the case.

High Court Hands Privacy Victory to Meghan Markle in Battle with Mail on Sunday

Julian Darrall

Mr Justice Warby gave summary judgment against Associated Newspapers in respect of the privacy claim, and on the issues of subsistence and infringement of copyright, concluding in each case that there was no realistic prospect of ANL successfully defending those issues at trial.

Easier Said than Done? Recent Developments in Ontario’s Anti-SLAPP Law

Iris Fischer, Kaley Pulfer and Justin Manoryk

After several years of uncertainty around the interpretation and application of Ontario’s anti-SLAPP legislation, the past six months have brought a number of important developments.

Second Circuit Strikes Down Connecticut Law Sealing Judicial Records in Juvenile Felony Cases Transferred to Adult Criminal Court

Shannon Jankowski and Madeline Lamo

The Hartford Courant argued that the law effectively required secret trials for teenagers accused of murder, rape, and other serious crimes, and seriously impeded its ability to inform readers about court proceedings.

Second Circuit: New York Police, Fire Unions Can’t ‘Bargain Away’ Public Records Disclosure Obligations

Madeline Lamo

A three-judge panel ruled that allegations of misconduct against New York City’s police officers, firefighters and correctional officers could be released to the public.

Eighth Circuit Unsealing Decision Leaves a Lot to be Desired

Ross Ufberg

While the opinion was unsealed, the motion to seal which precipitated the recent action was left under seal, and the court did not issue any explanation of its prior thinking or subsequent reversal of course.


Daily News Obtains Partial Unsealing of Plea and Sentencing Transcripts for Jeffrey Epstein’s Last Cellmate

Matthew Leish

Judge Failla partially granted a motion by the Daily News to unseal transcripts and documents related to the plea agreement and sentencing of Efrain Reyes, who gained brief notoriety as the final cellmate of Jeffrey Epstein prior to Epstein’s suicide.


Senators Propose Substantial Revisions to Section 230’s Protections for Online Providers

Christopher W. Savage, Ambika Kumar Doran, and James Rosenfeld

If passed, the Act would dramatically change the landscape of online liability.

Eighth Circuit Allows State Rep to Block Constituents from Campaign-Focused Twitter Account

Michael L. Nepple

The Eighth Circuit determined that an elected Missouri legislator did not violate the First Amendment when she blocked a constituent from her Twitter account because she operated it “in a private capacity, namely, as a campaigner for public office,” and, thus, not “under color of state law.”


The Colors on a Rubik’s Cube are Nonfunctional? Really?

Jeff Hermes

In this article, I will focus on one aspect of the report: the magistrate’s ruling that the coloration of the Rubik’s Cube is not functional, and therefore eligible for trade dress protection. Because, what?

Reflecting on Larry Flynt: How an Instance of Censorship Sparked a Friendship

Clay Calvert

Unsurprisingly, it was an instance of censorship that led me to meet Larry Flynt, the founder and publisher of Hustler magazine who passed away at age 78 in early February.

Letter to a Young Media Lawyer

Susan Weiner

On the last day of 2020 I retired from my position as General Counsel of the NBCUniversal News Group and Executive Vice President of NBCUniversal.

10 Questions to a Media Lawyer: Jeff Hunt

Jeffrey Hunt

Utah lawyer reflects on his legal education, career, COVID living and more.