Eric P. Robinson's blog

Over the past year, we've watched the courts struggle with Internet and social media use involving a variety of actors. We've seen jurors doing Internet research and using social media during trial, courtroom observers using portable recording devices, and supporters of a popular defendant bombarding a judge with emails. Recent developments from courts in New York and Ohio have brought a new courthouse player onto the scene: the judge.

New York Judge Searches for Rain Gear   read more »

As state and federal courts continue to struggle with the use of social media in courtrooms and courthouses, recently state judges in Colorado and Ohio took action against courtroom observers who used social media technology in court. 

Intimidation by Cell Phone

An Ohio judge imposed the more serious penalty against two trial attendees who separately pointed a Flip camera and a cell phone towards to the jury during trial testimony in a murder case.

On February 16, Dwayne Davenport went on trial for the fatal shooting of Michael Grissett in East Cleveland on January 16, 2009.  (Two other defendants in the case pleaded guilty, and are awaiting sentencing.)    read more »

Click here for an update to this post.

According to infomercial pitchman Kevin Trudeau, there are numerous "truths"—natural cures to diseases and medical conditions, weight-loss plans, debt-relief strategies, and government grant programs—that "they" (the government, big business, and the mainstream media) don't want you to know about.

On February 11, a federal judge told Trudeau that he didn't want to know about how the author and pitch master had purportedly affected people's lives.  The judge held Trudeau in contempt after the judge's email account was flooded with hundreds of emails supporting Trudeau in response to a missive on Trudeau's web site.   read more »

Following the approach taken by several state courts, in late January the U.S. Judicial Conference—which sets policies for all federal courts except the Supreme Court—sent all federal district judges suggested jury instructions on "juror use of electronic communication technologies" during trial.

The message of the instructions, in a word, is "Don't!"

The suggested instruction to be used before trial states:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. 

The pre-trial instruction also admonishes jurors that they must not discuss the case with anyone, including fellow jurors.  The suggested instruction also includes a laundry list of technologies that jurors should not use:   read more »

A ruling by the highest court in Massachusetts could impact the methods that activists use to advocate their causes, by setting a boundary between activism that is protected by the state's anti-SLAPP statute and factual reporting, which is not.

Earlier this week, the Massachusetts Supreme Judicial Court (SJC) ruled in Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010), that the writer of newspaper articles on a local development controversy could not use the state's anti-SLAPP statute to get defamation claims by a developer dismissed, even though the writer was also involved in the story as the co-founder of a community group that opposed the development. 

The writer's involvement in the community group did not make her articles an exercise of her "right to petition" on the development issue, the high court said, because the articles were objective journalistic accounts that did not advocate a particular position or disclose the writer's involvement. 

From Participant to Observer    read more »

Appeals courts in Colorado, Maryland and New Jersey are the first to reverse jury verdicts because of social media use by jurors during trial.

I wrote about the issue of jurors' use of social media back in May, and reported: "there do not appear to be any cases in which courts overturned a jury verdict or ordered a new trial because of use of social media by jurors during trial."

[More courts, however, are adopting rules and jury instructions to curb this growing problem.  See this blog post and associated comments for details.]

It could have been a moment right out of The Oprah Winfrey Show.  But instead of the entire audience getting Pontiac G6s (click here for a fun mash-up video of that big event), all the reporters attending the unveiling of Google's new Nexus One mobile phone on January 5 were given a special offer: they could get one of the phones for free, or to opt for a free, 30-day trial, after which the phone will be returned (loan agreement). (The free offer is mentioned in the 1:55 p.m. posting on this Wall Street Journal live blog of the press conference.)  It appears that some other reporters who were not at the event also got the phones.   read more »

When a dog bites a man, that is not news, because it happens so often. But if a man bites a dog, that is news. — attributed to  New York Sun city editor John B. Bogart (1848- 1921)

Unfortunately, it's become an increasingly common occurrence: a public official, outraged over something posted about him/her anonymously on the Internet, asks a court to issue a subpoena to find out the identity of the poster(s). The Legal Threats Database contains a number of examples, and the "Legal Protections for Anonymous Speech" section of the Legal Guide lays out the legal analyses that courts have used to evaluate these subpoenas.    read more »

A lawsuit filed in October claims that Sony's online games—ranging from Everquest and Star Wars Galaxies to Wheel of Fortune—do not provide tools to allow visually impaired users to successfully play the games, and thus violate both the federal Americans with Disabilities Act and California's civil rights law. Stern v. Sony Corp. of America, 09-cv-o7710 (C.D. Cal. Oct. 23, 2009).

The plaintiff and his attorney share the same last name, so the claim may have been filed to get the attention of Sony, which allegedly ignored the plaintiff's repeated efforts to contact the company about this issue. 

But legally, does this lawsuit make a valid claim?

It may. The Americans with Disabilities Act (ADA), Pub. L. No. 101-336, 104 Stat. 327, codified at 42 U.S.C. § 12101, et seq., prohibits state and local governments, and privately-owned "places of public accommodation" from discriminating against individuals with disabilities. 42 U.S.C. § 12182(a).  Department of Justice regulations implementing the statute require that   read more »

Jeffrey A. Kilbride and James Robert Schaffer are spammers.  They sent millions of unsolicited e-mails advertising pornographic web sites, and were paid a fee whenever a recipient of their e-mails purchased a subscription to one of the sites, earning a total of $1.1 million.

In 2007, Kilbride and Schaffer were convicted of violating the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM Act) by using falsified headers and domain names in their e-mails, conspiracy, fraud, money laundering, and various obscenity charges, and sentenced to 72 and 63 months in prison, respectively.  They were also fined $100,000 and ordered to pay $77,500 in restitution to AOL and to forfeit the proceeds from their spamming operation.

Kilbride and Schaffer appealed, leading to an important decision on how the Supreme Court's standards for obscenity apply on the Internet.  U.S. v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009).

Miller's "Community Standards" Test

In the 1950s and '60s, film was a primary medium for distribution of pornography. And in a series of cases, the U.S. Supreme Court and lower courts struggled to draw the line at which pornography, which is protected under the First Amendment, becomes obscenity, which is not.   read more »

As social media become more popular, it is inevitable that enterprising politicians will use it promote themselves, connect with constituents, and garner votes.  The White House has a blog, several Senators and House members tweet, and elected officials and candidates at all levels of government are using social media to get out their messages.

But just as use of social media by voters is coming into conflict with existing election laws, some politicians are discovering that their use of social media may clash  — or at least create possible problems — with existing campaign and government disclosure laws.   read more »

On October 5, the Federal Trade Commission issued new guidelines (large pdf) on advertising involving endorsements and testimonials. The guidelines, which are due to go into effect on December 1, have caused a stir among bloggers, journalists, and new media types because they appear to place significant requirements and restrictions on blogs and social media.  Most notably, they suggest that bloggers or other consumers who "endorse" a product or service online may be liable for civil penalties if they make false or unsubstantiated claims about a product or fail to disclose "material connections" between themselves and an advertiser. (Although Richard Cleland, assistant director of the FTC's  division of advertising practices, told Fast Company that the Commission will focus on warnings and cease-and-desist orders, rather than monetary fines, and told PRNewser that the Commission will target advertisers for violations, not bloggers. Another FTC official reiterated this.)   read more »

UPDATE:  Federal District Judge Joe Billy McDade has issued a letter apologizing for allowing cameras into his courtroom to cover a Sept. 15 hearing on a consent decree settling a school discrimination case.

The apology came after Judge Frank Easterbrook, chief judge of the 7th Circuit, issued an opinion chiding Judge McDade for allowing cameras into a consent decree hearing in a school discrimination case, saying that it violated a 1996 resolution of the 7th Circuit Judicial Council adopting the national Judicial Council's ban on cameras, discussed below.

The video, available on the local newspaper's web site, is of a hearing on the final consent decree in a federal lawsuit that alleged racial discrimination in the public schools of Champaign, Illinois.     read more »

Paul Klocko got a surprise in the mail in April: a letter on official stationary from Weston, Wisconsin administrator Dean Zuleger, demanding that Klocko stop posting comments on the web criticizing him.  The letter also asked that Klocko "come out from behind the cloak" and meet Zuleger in person.

The letter was surprising because Klocko had posted his comments on the web site of the Wausau Daily Herald using a pseudonym, "juanmoore."  But when Zuleger contacted the newspaper, demanding that it identify his anonymous critic, the Daily Herald gave him Klocko's real e-mail address, which Klocko had provided when registering as a commenter on the site and which contained his true name. 

The newspaper apologized to Klocko over the summer, and its parent company, Gannett, clarified that its policy was to release information on anonymous commenters only when ordered by a court or when a comment threatens imminent harm.   read more »

Responding to a storm of criticism, the 12-university Southeastern Conference was forced to back away from proposed rules which would have prohibited fans from blogging, Twittering, instant messaging, or otherwise disseminating "any material or information about [its sports competitions], including, but not limited to, any account, description, picture, video, audio, reproduction or other information concerning the Event."

In response to the criticism, the Conference quickly came up with a new policy under which "Personal messages and updates of scores or other brief descriptions of the competition throughout the Event are acceptable," but "Absent the prior written permission of the Southeastern Conference, game action videos of the Event may not be taken . . . ."

(The SEC also issued a revised media credentialing policy in the face of protests from professional media over a new policy restricting their use of video, audio and blogging, but still drew objections and refusals to agree to the new rules.)   read more »

In what appears to be the first use of a new Florida law that criminalizes the promotion of gangs on the Internet, the Lee County Sheriff’s Office arrested 15 men over the contents of their MySpace pages, which prosecutors claim advertised and promoted gang membership.

The statute, Fla. Stat. 874.11, was adopted on June 30, 2008 as part of the "Criminal Gang Prevention Act," and became effective October 1, 2008. The statute provides:

874.11  Electronic communication.--Any person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication to intimidate or harass other persons, or to advertise his or her presence in the community, including, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.   read more »

Attorneys in New York are hot and heavy (or should that be a-Twitter?) over rules being drafted by the Southern District of New York's Ad Hoc Committee on Cell Phones that may place severe restrictions on bringing electronic devices into the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan.

The Ad Hoc Committee is accepting comments as it formulates a policy on whether cell phones, PDAs, laptops, and other electronic devices can be brought into the federal courthouse, and held a hearing on the issue for Wednesday, July 29 (hearing notice). Update: The New York Law Journal's coverage of the hearing is here.

In the meantime, the Southern District has adopted an interim policy barring laptops from the courthouse without "a court order authorizing a specific attorney to bring a specific electronic device into the building for a specific proceeding."  Attorneys who obtain such an order must "certif[y] that the laptop will not be used to send or receive wireless transmissions or record or broadcast images or sounds and that the laptop lacks that capability or that that capability has been disabled by the attorney."

This is on top of Local Rule 1.8, which provides that   read more »

I blogged several weeks ago about recent cases in which jurors have caused a stir by using social media such as Twitter to communicate about their jury service.  Taking the issue on proactively, the Michigan Supreme Court has adopted a new rule requiring judges to admonish jurors to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case.

The new rule, which takes effect September 1, 2009, adds specific admonitions to a general statement that judges must generally instruct the jurors to base their verdict only on the evidence presented in court.

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not   read more »

UPDATE: After making some changes from the proposal discussed below, the FTC published the new regulations in the Federal Register on Oct. 5, 2009, with the new rules scheduled to go into effect on Dec. 1.  More details here.

What do Harry Potter books, The Blair Witch Project, Razor scooters, the Ford Focus and Hebrew National hot dogs have in common? In the late 1990s and early 2000s, these brands -- or, more precisely, the marketers behind them -- were at the cutting edge of a new advertising technique: "buzz marketing." A decade later, the government's efforts to control such marketing techniques may have impact on blogs and other citizen media.

Inspired by Malcolm Gladwell's 2000 book The Tipping Point: How Little Things Can Make a Big Difference, the idea behind buzz marketing, as explained by BusinessWeek magazine in July 2001, was to eschew traditional advertisements, replacing them with "influencers" whose role is to promote a brand to a particular group of people. These "influencers" can be paid in the traditional sense, or instead they can be offered special perks and benefits, or given free samples for their own use, or to give away to others. The key is that the "influencers" do not reveal the arrangement, so that their use and interest in a product seems to be a genuine personal preference.   read more »

In Hawaii, a 22-year-old former hospital worker was recently sentenced to one year in jail, five years probation and 200 hours of community service on a felony charge of "unauthorized computer access to confidential records" (apparently under Haw. Rev. Stat. §708-892, Computer damage in the first degree) after she obtained a patient's records stating that he was HIV-positive and gave them to the patient's sister-in-law, who posted them on her MySpace page. The prosecutor had recommended a sentence of only 30 days, but Circuit Judge Randal Lee reportedly said during sentencing that "Young people in this society have to realize that the Internet is not something that can be taken advantage of. You can't use the Internet to do unlawful conduct."

Although the patient in the Hawaii case his since died, a lawyer for his estate said that he planned to file a civil lawsuit against the former hospital worker who may face liability for the publication of private facts. (Another civil suit stemming from posting of personal medical information is Mason v. Grey, detailed in the Legal Threats database.)   read more »