Eric P. Robinson's blog

Intentional Grounding: Can Public Colleges Limit Athletes' Tweets?

An exercise we did Friday at Univeristy of Nevada, Reno's High School Journalism Day raised an interesting legal question: can a public university restrict its students' use of social networking sites such as Facebook and Twitter?

It turns out that a number of public and private universities -- including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina -- have followed the lead of the National Football League, which imposes limits on players' use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season.  Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school's coaching staff.   read more »

FTC Flexes Blogger Rules Again

The Federal Trade Commission has reached a second settlement with a marketer over apparent violations of the Commission's rules requiring disclosure of compensated endorsements, particularly on blogs and social media, as well as other contexts in which the compensation (which may include free samples or discounts) is not "reasonably expected by the audience."

Back in April, the Commission sent a letter to Ann Taylor LOFT raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns. The Commision declined to undertake any enforcement action in that case because it was the firm's first apparent violation, only a very small number of bloggers posted content as a result of the promotion, and the company adopted a written policy in February 2010 stating that it would not issue any gifts to bloggers without first telling the bloggers that the gift must be disclosed.

Now, the Commission has reached a settlement with Reverb Communications, a public relations firm, which the FTC alleged had employees and interns post positive reviews on Apple's iTunes store for games produced by Reverb clients.  According to the FTC complaint,  read more »

FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines

The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements.

As I've explained in detail in prior posts, the Commission revised the guidelines last year for the first time since 1980, with a particular emphasis on endorsements by bloggers and other online citizen journalists who do not disclose that the products or services they review were provided to them for free or at a discount. Despite a number of questionable incidents since the FTC issued its revised guidelines, it has taken only one public action under the revised rules: sending a letter in April to Ann Taylor Loft raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns.

The FTC's new factsheet states that "since the FTC issued the revised Guides, advertisers, ad agencies, bloggers, and others have sent questions to endorsements@ftc.gov," and offers what it says are "answers to some of the most frequently asked questions." But the factsheet also seems to be responding to criticims of the rules, by myself and others.   read more »

7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror

An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).

According to prosecutors, William White's overthrow.com site (archived here) featured racist and anti-Semitic articles, and promoted the American National Socialist Workers Party, which billed itself as "America's only organization advocating for the interests of the white working class."

Among the topics discussed on overthrow.com was the trial of leader of the white supremacist organization World Church of the Creator Matt Hale, who was convicted in 2005 and received a 40-year prison sentence for soliciting the murder of a federal judge in 2003.   read more »

Eric Robinson and Reporter Ron Sylvester Discuss Social Media in the Courtroom on Lawyer2Laywer

CMLP contributor Eric P. Robinson and Wichita (Kansas) Eagle Staff Writer for Interactive News Ron Sylvester discuss Tweeting, blogging and use of other social media to report on courtroom proceedings in the latest Lawyer2Lawyer podcast

Eric has written numerous posts on this issue for this blog, including here, here, here, here, here, here,here, and here

Title: Tweeting and Blogging from the Courtroom  read more »

FTC's Provocative Discussion Paper on Saving Print Media

The Federal Trade Commission—which last year created guidelines to impose ethical standards on bloggers—is now taking on the ambitious task of saving the print media in the Internet era.

In preparation for the final in a series of hearings on the future of the news media, the Commission has released a staff report that makes some pretty bold proposals, including legal changes and even government subsidies for traditional media.  The final hearing will be held June 15 at the National Press Club in Washington, D.C. 

The report carefully notes on the first page that "[t]his draft does notrepresent final conclusions or recommendations by the Commission or FTC staff; it is solely for purposes of discussion."  The Commission issued a subsequent press release to clarify this. The proposals in the report were raised by panelists testifying at the FTC hearings, not generated by the FTC itself. 

Among the proposals in the report:  read more »

Hate Mongers and Tunnel Rats are Entitled to Free Speech, Too

It's often said that bad cases make bad law.  In the case of a decision issued by a New Jersey state court back in December, a bad case has also made for bad law commentary.

You may have heard about the Apex Technology case, which we covered in our Legal Threats Database.  In a broad order issued days before the Christmas holiday, a New Jersey court issued the takedown of three websites critical of the  H-1B visa program, which allows skilled foreigners to work in the U.S. 

The order was issued in connection with a defamation case in which Apex Technology Group, Inc. sued the anonymous posters of comments on the Endh1b.com blog (now offline), accusing Apex of not paying the workers it placed and other improprieties.  

Apex e-mailed Endh1b.com, seeking removal of the comments.  Instead of complying, Endh1b.com posted the e-mail, made further accusations against Apex, and solicited funds for a legal defense. The offending posts about Apex also appeared on other sites opposing the  H-1B visa program, including www.itgrunt.com  and www.guestworkerfraud.com.   read more »

Seventh Circuit Vacates Contempt for E-Mail Barrage

The Seventh Circuit Court of Appeals has vacated the summary contempt citation and sentence imposed by U.S. District Judge Robert Gettleman after his court e-mail account was inundated with messages after infomercial pitchman Kevin Trudeau urged his supporters to e-mail the judge. FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010).

The appeals court vacated Judge Gettleman's summary citation of Trudeau for contempt, and the imposition of a 30-day sentance, concluding that such summary contempt proceedings were limited to interference with court proceedings that a judge personally observes, and occurs within the physical boundaries of the court room.  The Court noted that the goal of such a summary procedure, in which the judge simply declares someone in contempt and imposes a penalty, is to quickly resolve the disruption and proceed with the court's business.

The record in this case is devoid of any suggestion that Trudeau’s summary punishment was necessary to restore the court’s ability to resume its duties. "No trial was being disrupted by a failure to comply with a court order."  And, while we credit the judge’s determination that the e-mails "imped[ed] [the court’s] means of communication and caus[ed] the necessity of a threat assessment," he made no finding that immediate and summary punishment for Trudeau was necessary to solve his communication problems. . .

FTC v. Trudeau, slip op. at 12 (internal citation omitted).   read more »

New Legal Guide Section on Foreign Risks

It's pretty obvious that material placed on the "word wide web" is, indeed, available around the world -- at least most of it.

While the ability to make content available worldwide is a great virtue of the Internet, it has the potential to create a legal minefield for citizen journalists, who could face a civil or criminal legal action over online content in any country where the content is available.

A new section of the Legal Guide on "Dealing with Foreign Legal Threats" explains the possible legal risks that bloggers and other creators of online content could face outside the United States, and gives some tips and resources for responding to these threats.

While the most of CMLP's work, including the Legal Guide and the  Online Media Legal Network, is currently limited to legal issues within the United States, it is important for citizen journalists to be aware that they could face legal issues outside the U.S. as well.  We hope that this new Legal Guide section helps citizen journalists understand the possible foreign legal implications of the content they place online.   

FTC Endorsement Rules Get Their First Workout

The Federal Trade Commission has announced that it has completed its first investigation under the "blog-ola" rules it adopted last year, which require bloggers and other social media posters who receive a free or discounted product or service to disclose the freebie in their reviews or commentary about the product or service, or face the possibility of an FTC enforcement action.  See "Guides Concerning the Use of Endorsements and Testimonials in Advertising," 16 CFR Part 255 (2010) (html) (pdf).

In the end, the FTC decided not to take any action against Ann Taylor (decision letter), whose Loft division (formerly Ann Taylor Loft) offered gifts to bloggers who attended a January 26 "exclusive blogger preview" of the chain's summer 2010 line.  

"Bloggers who attend will receive a special gift," the invitation to the event read, "and those who post coverage from the event will be entered in a mystery gift card drawing where you can win up to $500 at LOFT!"    read more »

Search Warrants in the Sky: FBI Collects Info from Google Docs

If you spend any time at all online, you've probably seen—and, depending on the effectiveness of your spam filters, received in your email—ads extolling the supposed virtues of acai berry, a so-called "super food" that has been a big seller for the past couple of years. (This despite the fact that, according to the Mayo Clinic and Web MD, the benefits of acai berry—other than, like other berries, as a source of generally beneficial antioxidants—are uncertain.)

Wired recently reported on a search warrant the FBI served on Google last year to retrieve documents stored on the Google Docs "cloud" word-processing service, in an investigation of a company named Pulse Marketing. The company allegedly sent millions of spam emails promoting and offering to sell acai berry, and had established a system to create multiple Yahoo and Gmail email addresses to send the spam.  The search warrant came to light when the FBI applied for a search warrant to examine the Yahoo email accounts.   read more »

Using the Internet During Trial: What About Judges?

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 »

Trial Judges Impose Penalties for Social Media in the Courtroom

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 »

Infomercial King Gets 30-Day Sentence for EMail Barrage

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 »

Federal Courts to Jurors on Social Media: Don't Do It

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 »

Denying Anti-SLAPP Coverage, Massachusetts High Court Draws Activist/Journalist Boundary

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 »

Courts In Colorado, Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research

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.]

Colorado

It turns out that I missed a 2003 Colorado case in which the state's Court of Appeals had done just that.

In People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd, 97 P.3d 932 (Colo. 2004), a juror in a criminal trial had done research online about the drug Paxil, which the defendant accused of murdering her step-grandson had taken, and shared that research with other jurors.  The trial court denied a motion for a new trial, but the appeals court reversed, holding that   read more »

Google's "Oprah" Moment, Gwyneth Paltrow's Rave, and Two Tests for FTC's Endorsement Guides

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 »

Man Bites Dog: Prosecutor Pays a Price for Chasing Commenters

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 »

ADA Online: Is a Website a "Place of Public Accommodation"?

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 »

   
 
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