Eric P. Robinson's blog

Will E.U. Court's Privacy Ruling Break the Internet?

In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).   read more »

Hear Ye, Hear Ye! Some Federal Courts Post Audio Recordings Online

While the propriety of video and photography equipment in federal courts is subject of ongoing debate and testing, a number of federal bankruptcy courts and three federal district courts make audio recordings of their proceedings available to the public for a nominal fee.

In his article for The New York Times "Room for Debate" feature on whether courts should eliminate human court reporters (spurred by the chaos caused by the recent resignation of a drug-addicted court reporter in New York), U.S. District Court Judge Richard G. Kopf casually mentions that proceedings in his court in Lincoln, Nebraska, are routinely audio recorded. The recordings are posted to the court's public online PACER database the same day.

PACER, short for Public Access to Court Electronic Records, is the federal courts' online case docket access system. Access to PACER requires registration, and fees are charged for accessing materials in the database.   read more »

With Cameras Banned in the Supreme Court, Undercover Video Emerges

People are discovering a recently-posted YouTube video that apparently shows both a portion of the oral argument in a campaign finance case in October 2013 and Wednesday's interruption of an oral argument before the U.S. Supreme Court.

The first half of the video says that it is shows the argument is in McCutcheon v. Federal Election Commission, No. 12-536, a case argued on Oct. 8, 2013 which challenges the constitutionality of federal limits on contributions to non-candidate political committees. The date stamp on part of the video matches the date that the case was argued. While the audio of the Justices and lawyers speaking can be heard, its impossible to make out the words. The scene, however, is clearly the courtroom of the U.S. Supreme Court.   read more »

Lawyers in the Vortex: When Attorneys Become Public Figures

There was substantial media coverage of the defense verdict in the recent "twibel" (i.e., libel via Twitter) case against singer Courtney Love. Although the case attracted attention for the medium in which the allegedly defamatory statements were made, the dispositive issue was a long-standing element of libel law that did not depend on Love's use of Twitter.  Specifically, the jury found that plaintiff Rhonda Holmes, a lawyer who briefly represented Love in disputes stemming from the estate of Love's husband Kurt Cobain, had not proved the degree of fault on Love's part necessary for Holmes to win the case.

Curiously, the level of fault that the court required Holmes to prove was "actual malice," i.e., knowledge on Love's part that the statement was untrue, or reckless disregard by Love for whether it was true or not. Under U.S. Supreme Court precedent, the actual malice standard is applied when the plaintiff is a public figure.   read more »

California Judicial Council Recommends Repeal of Law Criminalizing Juror Internet Use

In August 2011, California adopted a statute making it a crime for jurors to use social media and the Internet to do research or disseminate information about cases. Now, two years after the law went into effect, the state's Judicial Council has recommended that the statute be repealed.

The Judicial Council adopted the recommendation (item E on the Consent Agenda) during its Dec. 13, 2013 meeting (audio), and will advocate for the repeal during the 2014 legislative session.

The statute, 2011 Cal. Laws chap. 181 (effective Jan. 1, 2012, codified at Cal. Penal Code section 166(a)(6)), expanded the state's jury instructions admonishing jurors not to use the Internet, and provided that "willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research" could be punished as civil or misdemeanor criminal contempt of court.   read more »

Ninth Circuit Starts Live Streaming, As Federal Camera Test Continues

In early December, the Ninth Circuit Court of Appeals announced that it would provide live-streams and archived video of oral arguments on its web site, starting later in the month. This makes it the only federal appeals court to offer online video coverage of its proceedings. [UPDATE: The court is now offering streaming audio as well.]

Several state appeals courts (such as the Massachusetts Supreme Judicial Court, the California Supreme Court, the Florida Supreme Court, the Michigan Supreme Court, and the New York Court of Appeals) already offer online video of their proceedings. (The Radio Television Digitial News Association has a compilation of court camera rules in all 50 states.) The U.S. Supreme Court does not allow cameras, but does release audio recordings of its arguments.   read more »

Web Restrictions Not The Answer to Juror Online Research

Juror use of the Internet to do research or communicate about trials is a growing and persistent problem. So, what can a judge do? For several years now courts have been giving jurors more detailed admonitions and jury instructions against educating themselves about cases online, to little effect.

A few judges have taken a different approach, ordering web sites with information on specific cases to remove the information from the Internet. But in a pair of recent decisions, appeals courts have said this method of limiting juror online research is an unconstitutional prior restraint.

Fifth Circuit

In Lafayette, Louisiana, several former and current city police officers maintained a website (, no longer online but archived here) that supported their civil rights lawsuit against the city for allegedly barring them from discussing or reporting what they allege is corruption of the city's police chief. Among the items posted on the site were audio recordings of a meeting discussing possible charges against officers who were in a bar after hours.   read more »

Cash Cutoff for Mugshot Sites A Dangerous Idea

If you're arrested, your arrest is public information: your name, your address, what you're accused of. Many news organizations publish this information on a daily basis for their communities, as part of their news coverage.   read more »

Senate Shield Bill Is Actually Pretty Broad

An amended bill passed Sept. 12 by the Senate Judiciary Committee to protect journalists from being forced to reveal confidential sources in federal court includes a relatively broad definition of who would be covered by the law; a definition that would include most bloggers.

As I've noted before, the question of whether bloggers are covered by shield laws has been a prominent one recently. Last month a New Jersey trial court judge published her prior decision holding that a blogger is covered by that state's shield law (h/t Eric Goldman); in May, Hawaii's shield law actually expired after legislators could not agree on its application to bloggers.

Senators had been debating the language of the shield law bill for a while, with many expressing concern that sites like Wikileaks should not be included. In the end, the Judiciary Committee accepted an amendment which would provide coverage under the statute to
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"Dirty" Verdict Sets Up Section 230 Appeal

A federal jury's verdict awarding $338,000 to former Cincinnati Bengals cheerleader and high school teacher Sarah Jones over postings on website may lead to a re-examination of the scope of the law that web site operators have widely invoked to claim immunity from legal liability for postings by users.

Jones sued over postings on the site in 2009 which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones has had other problems: last year, she pleaded guilty to charges stemming from a sexual relationship with with one of her students. She was sentenced to five years probation and barred from teaching; she is now engaged to her former student.)   read more »

British Ruling Sets Standards for Twitter Libel

A British judge's decision that a tweet by Sally Bercow (wife of the Speaker of the House of Commons, John Bercow) libeled Lord Robert Alistair McAlpine (former Deputy Chairman and Party Treasurer of the Conservative Party and an aide to Prime Minister Margaret Thatcher) shows -- if anyone still had doubts -- that tweets can indeed be libelous. In doing so, the ruling provides a good model for analyzing Twitter posts to determine whether they are defamatory.

The case stemmed from a Nov. 2, 2012, BBC report on alleged sexual abuse at a foster care home in Wales in the 1970s and 1980s. A victim of the abuse alleged that one the abusers was a "leading Conservative from the time." The abuser was also referred to as "a leading Conservative politician from the Thatcher years," "a senior public figure," "a shadowy figure of high political standing," and "a prominent Tory politician at the time." While the BBC report did not name the alleged abuser, the identity of the alleged abuser was leaked to the political editor of Britain's Channel 4, who tweeted that the alleged abuser -- also without identification -- denied the claims. 

But speculation was rampant on social media, with many naming Lord McAlpine as the alleged abuser. Bercow's tweet, "Why is Lord McAlpine trending? *Innocent face*," was sent two days after the BBC report aired.    read more »

Social Media Goes Legit

There have several recent developments which mark a milestone in the evolution of social media platforms: their acceptance as mainstream forms of communication, on equal footing with older forms of communicating official or "important" messages.

In late February, a bill was introduced in the Texas legislature (H.B. No. 1989) which would allow service of process -- sending initial notice of a lawsuit to the defendant -- via a message sent through a social media site.

This is a new innovation in the United States, with only a few cases like Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (approving service via e-mail as a secondary method) and Mpafe v. Mpafe (Minn. Dist. Ct. May 10, 2011) (allowing service online, via social media websites and e-mail). Last year a federal judge in New York denied a request to serve notice via Facebook, since it was unclear whether the account to which the message was to be sent actually belonged to or was accessed by the defendant. Fortunato v. Chase BankUSA, No. 1:11-cv-06608-JFK (S.D.N.Y. June 7, 2012). [Ed. note -- For more background on electronic service of process, see our blog post here.]   read more »

Iowa Retains Media/Non-Media Distinction, Leaving Bloggers Vulnerable

I've already written several posts about the overblown predictions that a ruling involving an Oregon blogger (now on appeal) would have dire consequences for bloggers in that state. But a recent decision by Iowa's Supreme Court on who can be considered "news media" under Iowa law may truly endanger bloggers and other online contributors in the Hawkeye State.

The issue is that the Iowa Supreme Court decided to maintain the distinction in Iowa state law between "media" and "non-media" defendants, with the latter being easier to sue for some types of libel.

Bierman v. Weier, No. 10–1503, 2013 WL 203611 (Iowa Jan. 18, 2013) is a libel suit based on Scott Weier's memior, Mind, Body and Soul, which focuses on Weier's personal transformation after his divorce from plaintiff Beth Weier. In the book Scott Weier alleged that Beth suffered from mental illness because her father, plaintiff Gail Bierman, had molested her as a child.

Scott Weier paid vanity publisher Author Solutions, Inc. $3,183.81 to design and print 250 copies of the book. He distributed between 20 to 30 copies to friends, family, and local businesses. In addition, three copies were sold through Author Solutions' website, and one sold through The rest of the books are in storage.   read more »

Negligence Claims Against Twitter Won't Last

A Tulsa, Oklahoma girl and her mother are suing Booker T. Washington High School and Twitter, alleging that another member of the daughter's basketball team held the daughter while another teammate took pictures of her in her underwear, and sent the photos as tweets.

The lawsuit says that several other children at the school received and re-tweeted the photos, leading to harassment of the victim. The suit, which also names the teammates and their parents as defendants, seeks damages of at least $75,000.

The claims against the school are negligence and negligent supervision of the students. Against the girls who allegedly held the victim down and took the photos, the lawsuit makes claims of intentional infliction of emotional distress, assault, battery, and two invasion of privacy claims. The claims against their parents are negligent supervision and negligent entrustment (for giving their daughters cell phones).

Against Twitter the claims are negligence, intentional infliction of emotional distress and invasion of privacy. The suit claims that Twitter owed the victim and her mother "a duty ... to use reasonable care in the administration of its website so as to prevent the publication of photographs of minors while undressing, particularly when said photographs are posted on Defendant's website by multiple users over the course of several weeks."   read more »

Chicago Area Courts Ban Electronic Devices, For Some

Criminal courthouses in Cook County, Illinois (Chicago and environs) will ban the public from bringing in electronic devices as of Jan. 15, under an order issued by Cook County Chief Judge Timothy Evans in mid-December. See Gen’l Admin. Order 2012-8 (Ill. Cir. Ct., Cook Cnty. Dec. 11, 2012).

In a press release announcing the new policy, Evans cited concerns that people attending court proceedings were using cellphones to photograph – and intimidate -- witnesses, judges, jurors, and prospective jurors, to relay courtroom testimony to upcoming witnesses, and to stream judges’ comments during trial. “The court is sending a strong message to gang members and others that any attempts to intimidate witnesses, jurors, and judges in court will not be permitted,” Evans was quoted saying in the release. “The ban will help to ensure that justice is properly done by preserving the integrity of testimony and maintaining court decorum.”

The ban will apply to 12 of the 13 courthouses in county. The exception will be the Richard J. Daley Center Courthouse in Chicago, which handles civil, traffic and misdemeanor cases.   read more »

Amici Line Up In Appeal of "Blogger Not a Journalist" Ruling

A federal judge's ruling that a blogger was not covered by Oregon's reporters' shield law is being appealed to the Ninth Circuit, and is getting some amicus support from media organizations. But the appeal -- and the amici -- are not addressing the main issue that led to an online uproar over the trial judge's initial decision.

Both the Reporters Committee for Freedom of the Press (where I once worked) and, a site that covers U.S. Supreme Court cases in intimate detail, have filed amicus briefs in the case, concerned that the courts not define "media" and "journalist" in such a way that bloggers are not categorically denied coverage by state reporters' shield laws.   read more »

Study Finds Significant Juror Interest In Internet, But No Use -- Yet

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A survey of jurors from 15 trials has found that jurors generally understand instructions not to use the Internet or social media to research or communicate about trials, but also that many jurors wish they could use technology to do some sort of research about the cases they sat on. Very few, however, reported that they had violated admonishments not to research or discuss the case with others prior to deliberations, and all of these involved pre-deliberation discussions with either fellow jurors or family members. None involved the internet or social media.

The study was a prelimary examination conducted by the National Center for State Courts for the Executive Session for State Court Leaders in the 21st Century, a three-year series of meetings of court leaders from around the country sponsored by Bureau of Justice Assistance, the State Justice Institute, and the National Center for State Courts, and held at Harvard's Kennedy School of Government.

Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website The comment, posted April 12, 2009, stated that "Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!"

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.   read more »

The Feds Try Again, But Just Won't Say Why

The federal courts have revised the jury instructions released in 2010 to address jurors' use of the internet and social media. But while the revised version is more specific about what activities jurors should avoid, they are still inadequate. This is because they are still in the form of a command -- "thou shalt not" -- but do not explain to jurors why they should not discuss the case or do research online.   read more »

Recent Cases, Article Show That Justices Use "Extrinsic Evidence" Found Online

A pending law review article -- and two of the Supreme Court's recent major decisions --  provide vivid examples that judges (and Supreme Court justices in particular) often use "extrinsic evidence" (materials other than what the lawyers present to them in briefs, trial, or argument) to make judicial rulings. In recent decisions, this material is often found online.

In the Supreme Court's recent ruling mostly striking down Arizona's immigration enforcement law, Justice Antonin Scalia's dissent criticized the Obama administration's recent announcement that it would defer deportations of young people under age 30 who immigrated to the U.S. illegally when they were under the age of 16, are in or have graduated from school or have served in the armed forces, and meet other criteria. This announcement was made ten days before the decision was released, and eight weeks after the case was argued.

And in discussing the new policy, Scalia cites a New York Times article on the administration's announcement, see Arizona v. United States, No. 11–182 (June 25, 2012) (Scalia, J., dissenting), at 20, a memorandum from Homeland Security Secretary Janet Napolitano, id., and the President's remarks on the policy. Id. at 21. For the latter two, the dissent cites the websites where these materials are available.   read more »

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