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October 2023

MediaLawLetter October 2023

in this issue

The Critical Importance of Televising the Trump Trials

George Freeman

It’s hard to believe that one-quarter of the way through the 21st century, with Americans spending more time looking at screens than ever before, the criminal trials of a former President and a leading candidate to be our next President will not be televised.

Kenneth P. Norwick: 1941-2023

Widely admired New York media lawyer, and passionate champion of artistic expression, Ken Norwick, died October 30th at the age of 82.


Ten Questions to a Media Lawyer

Bob Corn-Revere

FIRE - and former DWT - attorney on his introduction to the First Amendment, cancel culture, big law versus non-profits, and his karaoke pick.

“This Stuff Is Incomprehensible”: Will Mass. High Court Reconsider its Anti-SLAPP Jurisprudence?

Jeffrey J. Pyle

The Massachusetts Supreme Judicial Court may soon simplify its Byzantine interpretation of the Commonwealth’s Anti-SLAPP Law, if the justices’ questions at a recent oral argument are anything to go by.

NBCUniversal Wins Dismissal of January 6 Activist’s Defamation Complaint

Natalie J. Spears, Samuel Fifer, Gregory R. Naron and Jessica Laurin Meek

In a strongly worded opinion, Judge Bataillon of the District of Nebraska granted NBCU’s motion to dismiss with prejudice on substantial truth grounds.


Third Circuit Affirms Dismissal of Internet Defamation Claims as Time-Barred

Elizabeth Seidlin-Bernstein

In concluding that the claims were time-barred under Pennsylvania’s one-year statute of limitations for defamation, the Third Circuit provided welcome clarity on the application of the single-publication rule to statements made on the internet and by journalists during the reporting process.


Iowa Journalist Can Proceed with Suit Against Officer Who Arrested Him, Eighth Circuit Decides

Matt Kristoffersen

“Once Officer Holtan was aware Nieters was a member of the press and had no reason to believe Nieters had been within hearing distance of the orders to disperse,” the opinion states, “it certainly was not an ‘objectively reasonable’ mistake to believe probable cause existed for the arrest.”


Fifth Circuit Holds Texas Drone Regulation Law to Be Constitutional

Alicia Wagner Calzada

A recent drone journalism opinion out of the Fifth Circuit could have negative implications for years to come, beyond the issues in the case itself.


Federal Court Holds that Incidental Capture of Photos in Background of Documentary Film is Fair Use

Adam Rich and Samuel Bayard

This decision will be helpful to documentary filmmakers who incidentally capture copyrighted works while documenting actions and events that are of legitimate public concern.

Utah State Records Panel Rules that Public Universities Must Disclose NIL Contracts

Jeffrey J. Hunt and Maria J. DeMarco

A government body — perhaps for the first time — has ruled that name, image, and likeness contracts that college athletes submit to public universities are public records and not protected from disclosure under the Family Education Rights and Privacy Act (FERPA).

Telephone Records Showing County Jail Snooping on Private Attorney-Client Phone Calls Ruled Public Records in Maine

Sigmund D. Schutz and Alex Harriman

In a recent win, the Maine Monitor secured a Superior Court order establishing that public records law requires disclosure of reports showing whether jails have recorded privileged telephone calls between jail inmates and their attorneys.


Colorado Court Holds That Public Officials’ Text Messages on Cell Phones are Public Records

Steve Zansberg

Judge Scoville’s ruling joined numerous other state courts in finding that text messages of public employees housed on personal cell phones are not outside the statutory definition of “public records” merely because they were never transferred to any government entity’s servers for storage and retrieval.

Discovery Order Leads to 8,000 New Pages of Documents in FOIA Lawsuit

Eric Weslander

A FOIA lawsuit in the U.S. District Court for the Western District of Missouri recently led to the discovery of 8,000-plus pages of hospital survey materials that the requesters were previously told could not be found.