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September 2023

MediaLawLetter September 2023

in this issue

MLRC’s Media Law Conference

George Freeman

About 325 members attended, and the consensus was that it was a terrific and very worthwhile meeting.


Ten Questions to a Media Lawyer: Clara Steinitz

Paris attorney on her start in the business, American v. French legal culture, Paris must-sees, books that move her, and more.

New York Appellate Court Holds, For the First Time, That Orders Denying Motions on Shield Law are Reviewable via Article 78

Kate Bolger, Abigail Everdell, and Hilary Oran

The Third Department’s decision not only confirms the procedure for challenging denials of motions to quash during pending criminal proceedings, it also articulates a broad view of the Shield Law’s protections.

Los Angeles Court KOs Boxing Writer Deposition and Enforces California Shield Law in “Fight of the Century” Case

Karl Olson and Zachary Colbeth

Attempts to depose a former Los Angeles Times boxing writer went down for the count and the First Amendment and shield law emerged in their rightful place as the heavyweight champion last month in a Los Angeles courtroom.

Federal Court Blocks Texas’ Book Ban

Michael J. Lambert

Judge Albright issued an Order preliminarily enjoining HB 900, holding that it violated the First Amendment because it compels speech, is unconstitutionally vague, and is an impermissible prior restraint.

Inadvertent Disclosure of FOIA-Exempt Material Cannot Justify Prior Restraint

Matthew Thornton, Matthew Cate, and Chuck Tobin

The court—which months earlier had ruled that the record fell within the FOIA’s privacy exemption—held that the agency’s attempt to claw back the document and prohibit its dissemination would constitute a prior restraint in violation of the First Amendment.


Anti-SLAPP and Neuwirth = A Tough Challenge for Plaintiffs in New Jersey

Bruce S. Rosen

New Jersey’s long-awaited version of the UPEPA Anti-SLAPP law becomes effective with filings as of October 9, 2023, but now it has added teeth, not from the Legislature, but because of the Appellate Division’s sweeping published decision in Neuwirth, requiring all “public” defamation cases to plead specific facts supporting an allegation of actual malice.

Nicholas Sandmann Blocked on Appeal

Meenakshi Krishnan and Nathan Siegel

The Sixth Circuit affirmed the District Court’s grant of summary judgment to several media defendants (The New York Times, CBS, ABC, Gannett, and Rolling Stone) in a series of long-running defamation cases brought by Nicholas Sandmann.


Connecticut Supreme Court Clarifies the Scope of Connecticut’s Absolute Immunity Doctrine

Alexa Millinger and Kylie Huff

In a decision clarifying the limits of absolute immunity in defamation claims, the Connecticut Supreme Court held that a former Yale student accused of sexually assaulting a classmate can bring a civil defamation suit against his accuser arising out of a campus disciplinary proceeding.


Newsday Wins Defamation Suit Over Wrong Photo Used in News Article

Jesse Feitel and Rachel Strom

Newsday moved to dismiss the complaint, arguing that New York’s anti-SLAPP Law applied to the action, that the complaint does not satisfy the heightened pleading standard imposed by the anti-SLAPP Law, and that the complaint should be dismissed because the plaintiff has not and cannot establish that Newsday published the article with actual malice.

Essential Elements of a Libel Claim Are Indeed Essential

Jack Greiner

Mr. Weiler attempted to put the cart before the horse here by arguing that the impact of the statements – true or false – harmed his reputation. But a plaintiff can’t proceed without evidence to support an essential element.

New Jersey Court Rejects Discrimination Claims Based on Newspaper Columns

Elizabeth Seidlin-Bernstein

A state trial court recently dismissed claims under New Jersey’s Law Against Discrimination arising from newspaper columns that were allegedly motivated by discriminatory animus.

Federal Court in Tiger King Case Cites Warhol in Dismissing Copyright Claim Against Netflix

Anthony Doherty

Despite some gloom and doom about the future of fair use after the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith last May, it seems that for documentary film makers at least, fair use is in roaring good health.

Journalist Who Fled Mexico After 2008 Death Threats Finally Granted Asylum

Chuck Tobin and Steve Zansberg

The tribunal noted that “journalists in Mexico are sometimes subject to physical attacks, harassment, and intimidation due to their reporting, making Mexico one of the most dangerous places in the world, outside war zones, for journalists.” 


A Resounding Endorsement of Open Courts from South Carolina Supreme Court

Eric Robinson

But justices differed on the impact of closed nature of the trial court’s proceedings regarding the early release, with the majority ruling that the closure required that the release order be vacated and the dissent arguing that such an action was not required.


Colorado Lawmakers Commit to Stop Auto-Deleting Instant Messages with Other Lawmakers

Steve Zansberg

The directive is the first in the nation to expressly prohibit legislators from using so-called “ephemeral messaging” apps when discussing public business.

Washington Post Wins Suit Seeking Disciplinary Records of Former LGBTQ and Community Policing Liaison with History of Excessive Force

Margaret N. Strouse, Maxwell S. Mishkin, and Chuck Tobin

In an important victory for police transparency, DC Superior Court Judge Maurice A. Ross granted the Post’s motion for summary judgment, rejected the District’s arguments for withholding the records under FOIA’s privacy exemption, and ruled that the Post should be awarded its attorney’s fees.

North Carolina Court Holds Records in Possession of Third-Party Contractor Subject to Public Records Disclosure Requirements

Lauren Russell and Kaitlin Gurney

The court also held that even though requestor, Charlotte television station WBTV, received the records before a final ruling on the merits, it was entitled to recover its attorneys’ fees under North Carolina’s public records law mandating fee awards to claimants who substantially prevail in compelling disclosure of public records.

“The Happiest Courtroom on Earth”: Disney & Friends Take on DeSantis

Joe Slaughter and Chuck Tobin

It is rare to see three powerful amicus briefs filed at the motion to dismiss stage. But the unusual context only underscores the fundamental arguments made in the briefs: that DeSantis’s actions, as alleged in the complaint, are inimical to and corrosive of three fundamental pillars of American society – law, politics, and business.    


Louisiana Man’s COVID-19 Joke Protected by First Amendment, Fifth Circuit Decides

Matt Kristoffersen

“His post did not advocate ‘lawless’ and ‘imminent’ action, nor was it ‘likely’ to produce such action," wrote the court.