Sam Bayard's blog

Dave Aeikens at SPJ and the Reporters Committee for Freedom of the Press report that last night the U.S. House of Representatives passed H.R. 985, the House version of a federal shield law that would provide journalists a qualified privilege against disclosing the identity of sources and turning over information obtained or created in the course of newsgathering.  According to the Reporters Committee, the bill passed by a "voice vote under a suspension of the rules, a typical procedure used to pass non-controversial bills."

The text of the bill is the same as the 2007 version (H.R. 2102), which passed the House by a huge margin in October 2007, but failed to become law when its Senate counterpart died without a vote at the end of the legislative session.  (For details on the previous bills, see previous CMLP posts here, here, here, and here.)  Like its predecessor, H.R. 985 limits coverage of the shield law to journalists who make significant money from their activities:   read more »

Twitter gets a lot of attention these days.  In recent weeks, we've seen jurors twittering from the jury box, lawmakers twittering during Obama's first address to Congress, and celebrity ghost twitterers, to name just a few examples of the growing visibility of the micro-blogging platform.  There's been enough hoopla for John Stewart to report the outbreak of a "Twitter Frenzy."  While Stewart expresses mock luddite skepticism ("I have no idea how it works, or why it is"), the New York Times hails it as "an important marketing tool for celebrities, politicians and businesses, promising a level of intimacy never before approached online, as well as giving the public the ability to speak directly to people and institutions once comfortably on a pedestal."

Now, at least as far as CMLP is concerned, Twitter has come of age.  Why?  Because Twitter has sparked its very first defamation lawsuit. (A colleague cleverer than me suggested we call it a "twibel" claim.)  Making a good story better, the first defendant to be sued for tweeting is not some egg-headed techie type, but loose-canon-rock-star Courtney Love.     read more »

Yesterday, CMLP and a number of media and advocacy organizations asked an Illinois appellate court for permission to file an amicus curiae brief in Maxon v. Ottawa Publishing.  The brief urges the Illinois Appellate Court for the Third District to protect the rights of anonymous Internet speakers by imposing important procedural safeguards before ordering disclosure of their identities. 

Harvard Law School's Cyberlaw Clinic represented the amicus coalition with the help of local counsel Michael T. Reagan of Herbolsheimer Lannon Henson Duncan and Reagan PC.  Coalition members include Gannett Co., Inc., Hearst Corporation, the Illinois Press Association, Reporters Committee for Freedom of the Press, Public Citizen, and others.   read more »

The United States Court of Appeals for the First Circuit issued an order today denying Staples' petition for rehearing en banc in Noonan v. Staples, a decision in which a panel of the First Circuit held that chapter 231, section 92 of the Massachusetts General Laws permits a private figure plaintiff to recover for defamation based on truthful statements made with "actual malevolent intent or ill will," at least if the statements relate to matters of purely private concern.  The Staples case has generated outcry and tons of media attention because it upends the fundamental notion that defamatory statements must be false.  Last week, the CMLP joined a coalition of media organizations and media law advocacy groups in filing an amicus curiae brief urging the court to grant Staples' petition for rehearing.

The First Circuit stuck by its guns, arguing that Staples had waived the constitutional issue:   read more »

Last Friday, a circuit judge in Nashville, Tennessee ruled from the bench that the First Amendment protects anoynymous Internet speech and adopted the Dendrite International v. Doe standard for balancing the speaker's First Amendment right against the would-be plaintiff's right to legal redress for actionable speech. The judge seemed swayed by the Maryland Court of Appeal's recent adoption of Dendrite in Independent Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009).   A video of the ruling is available on blip.tv:

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Today, the Citizen Media Law Project joined numerous other media organizations and media law advocacy groups in filing an amicus curiae brief urging the U.S. Court of Appeals for the First Circuit to grant rehearing en banc in Noonan v. Staples.  In Noonan, a three-judge panel of the First Circuit held that an outdated Massachusetts statute allowed a former Staples employee to hold the company liable for defamation based on a truthful email sent to employees explaining the reason for his termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will." 

In the decision, which Robert Ambrogi rightly called "the most dangerous libel decision in decades," the First Circuit declined to address the very substantial First Amendment issue raised by enforcement of a statute permitting defamation liability for truthful statements, explaining that Staples failed to raise the issue properly in its initial briefing.  Without even dealing with the constitutional issue, the court's opinion de facto carved out an exclusion from First Amendment protection for all statements of purely private concern in lawsuits brought by private-figure plaintiffs, at least for purposes of Massachusetts law.   read more »

Waldo Jacquith, the Virginia blogger targeted with an outrageously broad subpoena back in January (see my previous post), filed a brief last week arguing that he should not be required to turn over the IP addresses of those who viewed and commented on an article posted to his blog, as well as his email correspondence relating to the article.  Paul Alan Levy of Public Citizen, Josh Wheeler of the Thomas Jefferson Center, and Rebecca Glenberg of the ACLU of Virginia filed an excellent brief on behalf of Jacquith, arguing that the requested information is irrelevant, that the qualified reporter's privilege recognized in Virginia courts protects the information from disclosure, and that the commenters have a First Amendment right to remain anonymous. 

Most notably, the brief argues that bloggers who perform journalistic functions should enjoy the same privilege for sources and unpublished information that traditional journalists do:    read more »

Today, Ars Technica published a fascinating exchange between Berkman Center faculty co-director John Palfrey and Adam Thierer (Progress & Freedom Foundation, Technology Liberation Front) on Section 230 of the Communications Decency Act, the federal statute that shields website operators and other online service providers from liability for information posted or published by users of their sites or systems. 

The debate centers around Professor Palfrey's suggestion, put forward in preliminary fashion in Born Digital, his book with Berkman Executive Director Urs Gasser, that Congress amend Section 230 to explicitly allow plaintiffs to bring negligence claims against online service providers for failing to take reasonable steps to ensure the safety of users. In Palfrey's view, this change would give online service providers like social networks the incentive to take meaningful steps to protect children and others from harm that comes to them as a result of their activities online, and would require no more than what is expected of offline businesses (and individuals) as a matter of course.   read more »

Wendy Davis of MediaPost reports that the blogger behind the Skanks in NYC blog has appeared through counsel to challenge model Liskula Cohen's request for discovery from Google regarding his/her identity.  Two weeks ago, the anonymous blogger filed a brief arguing that Cohen should not be permitted to unmask him/her because her allegations fail to set out a valid cause of action and therefore fail to meet the heightened standard required by cases such as Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Ottinger v. Non-Party The Journal News, 2008 WL 4375330 (N.J. Sup. Ct. June 27, 2008).

I like how the brief tries to put this gossipy case into context:   read more »

On Friday, the Court of Appeals of Maryland quashed a subpoena seeking the identity of five anonymous commenters and provided guidance to lower courts regarding what showing an aggrieved plaintiff must make before a court will order a website operator to reveal the identity of an anonymous commenter.  In Independent Newspapers, Inc. v. Brodie, the Maryland high court concluded that

a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test -- such as the standard set forth in Dendrite, 775 A.2d at 760-61 -- most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks. 

Ind. Newspapers, Inc. v. Brodie, No. 63, slip op. at 41 (Md. Feb. 27, 2009) (citing Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)). For factual background, see our database entry, Brodie v. Independent Newspapers, Inc. (Subpoena), and Wendy Davis's article on the case.    read more »

Last Wednesday, Google began including advertisements in its Google News search results in the United States.  The next day, Zachary Rodgers at ClickZ speculated that this move might stir major media companies to sue Google for copyright infringement, and an article in yesterday's New York Times reported that "[s]ome publishers complained" when the search giant added advertising.  Google may have licensing arrangements with some of the publishers whose content it reproduces, but I imagine it would rely on fair use to excuse what might otherwise be copyright infringement in the event of a lawsuit (see, e.g., Agence France-Presse's lawsuit against Google in 2005, which ultimately settled when Google agreed to license AFP's content).  So the question arises, does including advertisements alongside Google News search results change the fair use analysis?   read more »

Over at the Consumer Law & Policy Blog, Paul Alan Levy of Public Citizen has an excellent post on the recent settlement of Jones Day's trademark lawsuit against real estate news site BlockShopper.com.  In the lawsuit, Jones Day alleged that BlockShopper infringed and/or diluted its trademark by using the name "Jones Day" to identify two of its associates who purchased homes in Chicago and by using anchor text in hyperlinks from each associate's name back to their lawyer bios on Jones Day's own website (here, here).  According to Jones Day, this created a likelihood of consumer confusion about whether it was the sponsor of or affiliated with the BlockShopper web site.  (For details on the case and links to the underlying court documents, see our database entry, Jones Day v. BlockShopper LLC.)   read more »

Last Friday, the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose liability for truthful statements.  In Noonan v. Staples, a three-judge panel of the federal appeals court in Boston held that Alan Noonan, a former Staples employee, may hold the company liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan's termination, so long as he can prove that the email was sent with "actual malevolent intent or ill will." 

The decision interpreted a 1902 Massachusetts statute, Mass. Gen. Laws ch. 231, § 92, which states that truth is a defense to libel unless "actual malice is proved."  A 1998 decision of the Supreme Judicial Court of Massachusets, Shaari v. Harvard Student Agencies, ruled the statute unconstitutional when applied to statements of public concern, but the First Circuit refused to consider whether the SJC's reasoning in Shaari extends to statements of purely private concern, explaining in a footnote that Staples failed to properly raise the issue of the statute's constitutionality in its initial briefing.    read more »

On Monday, a California appellate court reversed a trial court that had granted Richard Silverstein and Joel Beinin's motion to strike Rachel Neuwirth's defamation lawsuit against them under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). 

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam, and the other made by Beinin on the "Alef" listserv and subsequently re-published by Silverstein.  Neuwirth (one one side) and Silverstein and Beinin (on the other) are ideological foes on issues surrounding the Israeli-Palestinian conflict, and they had some unpleasant exchanges via telephone and email (according to Silverstein) before the statements complained about in the lawsuit were made.   read more »

Reuters, the LA Times, and the International Herald Tribune report that Egyptian state security police detained blogger Philip Rizk on Friday night, when he was returning to Cairo after a march to raise awareness about conditions in the Gaza Strip.  Rizk is a graduate student in the Middle East Studies program at the American University in Cairo, a political activist, and documentary filmmaker, and he blogs about Palestinian issues on his blog tabula gaza.

The authorities are holding Philip without formal charge, a common practice in the Egyptian state security system. His whereabouts were completely unknown until Sunday night, when friends and supporters were able to determine that he was being held in state security headquarters in downtown Cairo.  Egyptian state security police are notorious for torturing detainees during interrogation.    read more »

On January 21, the California Anti-SLAPP Project (CASP) filed a special motion to strike the complaint of Yvonne Wong, a pediatric dentist who sued Yelp! Inc. and two parents based on a negative review of her services the parents posted on Yelp. 

Dr. Wong's complaint alleges that Tai Jing and Jia Ma defamed her by posting a critical review complaining that she gave their son laughing gas, failed to discover all of his cavities, and filled a cavity using an amalgam containing mercury.  Even though section 230 of the Communications Decency Act (Section 230) immunizes website operators for publishing the statements of third parties, Dr. Wong also named Yelp! as a defendant.  John Ter Beek, Wong's attorney, told the San Francisco Chronicle weeks ago that he would likely dismiss the case against Yelp! because of Section 230, but so far has not done so, potentially opening himself up to sanctions.    read more »

In perhaps the most blatant misuse of the subpoena power we've seen since the subpoena served on Kathleen Seidel of Neurodiversity last March, a lawyer for Thomas Garrett of Virginia has served a patently overbroad subpoena on blogger Waldo Jaquith, who publishes cvillenews.com, a community news blog about Charlottesville, Virginia. 

Garrett's lawyer served the subpoena in connection with his defamation lawsuit against The Hook, a weekly newspaper in Charlottesville that also publishes content on its website.  Garrett, a chicken farmer and Hollywood publicist (who knew such a combination existed?) sued the newspaper after it published a series of articles covering state criminal proceedings against him (he pled guilty to a "minor count akin to trespassing" according to his complaint in the defamation case).  For more information on the lawsuit, see our database entry, Garrett v. The Hook.   read more »

I'm excited to welcome Michael A. Lindenberger, a veteran news reporter, as a guest blogger.  Michael writes about the policy and politics of transportation for The Dallas Morning News and about national legal affairs for TIME.com.  He also teaches Mass Communication Law to journalism majors at the University of North Texas.  He graduated from the Louis D. Brandeis School of Law at the University of Louisville.  

Please join me in welcoming Michael!

Wendy Davis of MediaPost reports that the blogger behind the Skanks in NYC blog will keep his/her identity secret for another four weeks.  In a hearing yesterday in New York Supreme Court, Judge Joan Madden refused to rule on model Liskula Cohen's request for discovery from Google regarding the blogger's identity until after Google notified the blogger, providing him/her an opportunity to object.  Davis notes that the court ordered Google to email the blogger the court papers by Wednesday,  January 28, and another hearing is scheduled for February 23.    read more »

The defamation lawsuit against Dixie Chicks singer Natalie Maines and her band mates over an open letter published on the band's website has recently garnered the attention of legal bloggers (On.Point, THR, Esq.), who are asking whether Maines and her co-defendants can assert the fair report privilege as an affirmative defense despite their not being members of the traditional media.

The fair report privilege protects those who report on official actions and proceedings from liability for repeating defamatory statements if the report is fair and accurate and the speaker attributes the statements to the official source.   The privilege enables one to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records. For additional details, please see our legal guide page on the fair report privilege.   read more »