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March 2021

MediaLawLetter March 2021

in this issue

From the Executive Director’s Desk: An MLRC Trivia Quiz for the Start of Spring

George Freeman

As vaccinations increase and the warmth of Spring begin to envelop us, I thought it was time for a lighter column.


New York Federal Court “SLAPPS” #MeToo Defamation Claims

Cara McGourty, Katherine L. McKnight and Mark I. Bailen

This decision appears to be the first in federal court to apply the revised New York anti-SLAPP statute in a case not involving a public figure.

SDNY Dismisses #Metoo Libel Suit – Rejects Claims of “Physical Impossibility”

Jonathan M. Albano and Elizabeth I. Beuchner

A hedge fund founder accused of sexual harassment by five former employees failed to plausibly allege that a Boston Globe online science and health publication acted in a grossly irresponsible manner by publishing an article reporting on the allegations.


Second Circuit Affirms Dismissal of Attorney’s “Groping” Libel Suit Against New York Times

Al-Amyn Sumar

The Second Circuit has affirmed dismissal of a libel suit against The New York Times brought by a Justice Department official who took issue with a story reporting he had groped a young administrative assistant.

Illinois Supreme Court Reject Application of Single Publication Rule

Steven Mandell and Brian Saucier

Despite recognizing that “Ekl, Ciolino and the appellate court all appear to assume that the single publication rule applies,” the Illinois Supreme Court took a different approach.


New York Times Wins Dismissal of Libel Suit from Trump Campaign

Alexandra Settelmayer

The Trump Campaign, alleging “millions of dollars” in damages, brought the suit over a 2019 Op-Ed by Max Frankel which concerned interactions between Russians and associates of Mr. Trump during the 2016 presidential campaign.

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Court Dismisses Libel Suit By Former Trump Campaign Adviser Against Yahoo News and HuffPost

Jeff Grossman

A Delaware court has dismissed a defamation lawsuit brought by former Trump 2016 campaign adviser Carter Page against Yahoo News and HuffPost concerning articles about the U.S. intelligence investigation into Page’s contacts with Russia.

NY Anti-SLAPP Cases Test Scope of Law

Kevin W. Goering

Two recent state court decisions apply New York's new anti-SLAPP law.

Comedian Kathy Griffin Gets Last Laugh in Covington Students’ Lawsuit

Jack Greiner and Mike Grygiel

The Griffin decision is good news for Sixth Circuit lawyers who no longer have to worry about a “gotcha” technicality and also for citizens who wish to comment on matters of public interest without risking being hauled into court where the subject of the tweet resides.


Gannett Wins Summary Judgment on Defamation by Hyperlink Claim

Brian C. Spahn

Sometimes a hyperlink is the last word in a defamation case.

Seattle Times Wins Summary Judgment in Surgeon’s Libel Suit

Jessica L. Goldman

A federal judge in Seattle has granted summary judgment and dismissal of a $26 million defamation lawsuit brought by neurosurgeon Dr. Johnny Delashaw against The Seattle Times.


It’s Just a Parking Space, Gentlemen

Kevin Goering

A New York County Supreme Court judge has rendered the latest decision in the two-year old saga (and defamation case) of Cieszkowski v. Baldwin. The case is familiar to most New Yorkers, as the defendant is Alec Baldwin.

Second Circuit “Clarifies” (Restores?) Law Governing Fair Use

Kenneth P. Norwick

The court not only reversed pretty much the entirety of the extensive decision of the SDNY judge under review but it came close to disowning one of its own most important (and controversial) recent fair use precedents.

King Takes Rook: Eleventh Circuit Affirms Summary Judgment for Dark Tower

Vincent Cox

The suit raised the typical array of copyright issues relating to such matters as ownership, access, and substantial similarity of protectible expression. Complicating those issues were the long passage of time between creation of the works and the claim of infringement.

Sixth Circuit Clarifies When Online Marketplaces Can and Can’t Be Liable for Direct Trademark Infringement

Sam Zeitlin

The court held that direct trademark liability is limited by the Lanham Act’s requirement that the defendant “use” the mark in a way the Act prohibits, and as a result “some trademark-infringing activity does not create liability.”

When Copyright Met Cryptocurrency: A Conversation About NFTs

Jeff Hermes

MLRC deputy director thinks through non-fungible tokens.

Supreme Court Confirms That Nominal Damages Prevent Claims from Being Moot

Michael Mestitz

The Supreme Court ruled that a plaintiff’s request for nominal damages—a claim for one dollar or a similar, small sum—satisfies the redressability requirements of Article III standing and prevents a plaintiff’s lawsuit from becoming moot.

PA High Court Upholds Gag Order Forbidding Mother from Speaking Her Own Name

Ross Ufberg

The Pennsylvania Supreme Court, in the face of a powerful dissent, upheld a stunningly capacious gag order last December.


SCOTUS Sides with Fish & Wildlife Service in FOIA Battle

Gunita Singh

The Supreme Court held that opinions designated as drafts by an agency are protected from disclosure under Exemption 5 of the federal Freedom of Information Act, even when they serve as an agency’s last word on a proposed course of action.

Judge Orders Release Under FOIA of Report on Sexual Abuse of Children at Federal Health Agency

Matthew E. Kelley

In consolidated cases brought by The New York Times and The Wall Street Journal, a federal magistrate judge has ordered the federal government to make public a contractor’s report about mismanagement at the Indian Health Service that allowed a doctor to sexually abuse children for more than two decades.

D.C. Court of Appeals Rules in Favor of CIA on Syria Program FOIA Request

Jeffrey Light

The appellate court’s “who-knows-for-sure” standard is rhetorically striking and illustrates the virtually unbridled deference courts give to federal agencies in FOIA cases involving national security.

Court Unseals Government Docs in Prosecutor Misconduct Inquiry

Brian Barrett

A New York federal district court ordered the unsealing of government emails, text messages and other documents at the heart of an extraordinary prosecutorial misconduct inquiry involving the elite terrorism and international narcotics unit in the U.S. Attorney’s Office for the SDNY.

Signed, Sealed, Delivered: Fifth Circuit Addresses Growing Concern With Overbroad Sealing Practices

Evan M. Rios

The panel addressed a “peripheral-yet-essential point: Judicial records are public records. And public records, by definition, presume public access.”

Texas Appellate Court Declines to Seal Court Records Shining Light on Defective Toyota Product

Ben Moss

The Court of Appeals applied the full rigor of Rule 76a to alleged trade secrets, notching a win for advocates of open access to public records in Texas.