The Online Media Legal Network Celebrates its Second Birthday!

We are pleased to announce that the Online Media Legal Network, the Citizen Media Law Project's legal referral service, is now two years old!

The OMLN was started in Dec. 2009 as a way to help online journalism ventures and digital media creators find lawyers experienced in the sorts of legal issues media ventures face and to provide legal services on a pro bono or reduced-fee basis. 

Now, two years later, the OMLN has a network of 232 lawyers in 49 states and the District of Columbia who are willing to offer their services to needy citizen journalists and online publishers.  And help they have: as of Dec. 9, the OMLN has over 170 clients and has found counsel for 347 different legal matters, ranging from setting up a business to authoringwebsite terms of use to defending clients against defamation claims. 

We commemorated the event with a talk this week as part of the Berkman Center's Tuesday Luncheon Series, where we discussed the history of the OMLN, how the OMLN works, and what we've learned from it. In-person attendees included attorneys from OMLN member firms Booth Sweet LLP and Hermes, Netburn, O'Connor & Spearing, P.C.; OMLN client and former Berkman fellow Tom Stites; and a host of citizen journalists, Berkman fellows, and other interested folks. Many thanks to all who attended!   read more »

CMLP Alert: Mass. SJC Rules on Impoundment of Inquest Materials in Amy Bishop Case

On December 13, 2011, the Supreme Judicial Court of Massachusetts ruled that a judge of the Superior Court followed the wrong standard when denying a request by the Boston Globe for access to the transcript and report of an inquest into the death of Seth Bishop, the brother of Amy Bishop.

In Massachusetts, an inquest is a form of special investigative proceeding initiated by a district attorney or the Attorney General in which a judge analyzes the circumstances and cause of a person's death -- including identification of any person whose "unlawful act or negligence appears to have contributed" to the death. Unlike other judicial proceedings, the judge does not act as a neutral arbiter; rather, the judge takes an active role in investigating the cause of death.

The transcript and report of the inquest constitute a record the process followed and conclusions reached by the judge. However, an inquest is not a prosecution: no criminal charges are brought in the proceeding; no legal defenses are considered; and the court's findings are neither evidence nor a determination of guilt on the part of any individual. Instead, the inquest procedure is used (sparingly) by prosecutors to investigate the cause of death, usually to determine whether criminal proceedings are appropriate.

The results of inquest proceedings are naturally of significant interest to the public because they represent an official evaluation of a deceased person's cause of death. There has been concern, however, that if prosecutors decide to bring charges after an inquest, the release of the results of the inquest before trial might prejudice the right of the accused to a fair trial.   read more »

No, the Sky is Not Falling: Explaining that Decision in Oregon

There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon last week that held that blogger Crystal Cox is not protected by Oregon's reporters shield law, thereby leading to a $2.5 million verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). But most of the buzz and criticism is based on an erroneous reading of the decision.

Details of the libel suit against Cox are here. (Further legal details and documents are available in the CMLP Threat database entry and an earlier CMLP blog post on a different ruling in the same case.) But the characterization of Judge Marco A. Hernandez's decision in most of commentary is incorrect. He did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected.

This requires a bit of explanation, so bear with me:   read more »

How Citizen Journalism Can Vet Quality Through Lessons from Gaming

Unlike traditional newsroom journalists, “citizen journalists” have no formal way to ensure that everyone maintains similar quality standards.  Which does not mean that quality standards are necessarily (or consistently) maintained at traditional newsrooms, but rather that a traditional hierarchical editorial structure imposes at least theoretical guidelines.

By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice.  Nonetheless, “trustiness” in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation.  Is The New York Times trusted because it’s trustworthy?  Or is it trustworthy because it’s trusted?

The “Generated By Users” journalism blog recently reported the results of its reader poll, “Do you TRUST user generated content in news?”

[O]verall we like [user-generated content] but remain skeptical and need to know that it is trustworthy and adding value and perspective to reports. In an ever more connected world we can rely on UGC for immediate breaking news, but we want experienced journalists to sum up the day; if that requires using some UGC then we are fine with that, but it must be combined with original professional content.   read more »

Is the 'Occupy' Protest Tent This Era's Burning Flag?

Is it possible that the tent is the new burning flag?

While today’s Occupy tents don’t obviously carry the same symbolic or historical meaning as the American flag, it’s a question I’ve been thinking about since it was posed recently by Dr. Cathy L. Packer, faculty director of the UNC Center for Media Law and Policy at the University of North Carolina-Chapel Hill.

And she is not alone.

As I listened to the Diane Rehm Show on NPR last month, Harvard Law School’s own Lawrence Lessig saw the situation similarly. "I don't think our framers – people who organized the conventions that produced our government – would even recognize the extent of legal regulation on the freedom of people to protest today," he said. Lessig urged Occupy protesters to make greater free speech rights one of the movement's goals.   read more »

Policing Political Speech or Just Sex Under the Magnolia Tree?

In response to local Occupy protests, Tennessee Safety Commissioner Bill Gibbons said in October that “we don’t have the resources to go out and, in effect, babysit protesters.” But as the Nashville Scene recently reported, that’s exactly what police officers did — and they did so while undercover.

According to the Scene, which received the officers' correspondence from the Tennessee Department of Safety and Homeland Security, state troopers covertly infiltrated the Occupy Nashville encampment for about a month and emailed their observations to superiors.

The Scene’s Jonathan Meador wrote that while the emails show "troopers repeatedly comment[ed] on the peaceful and friendly nature of the protesters" at the start, by Oct. 25 the state government was far more focused on, shall we say, bodily functions. Wrote State Capitol Facility Administrator David Carpenter, quoting an unnamed legislative staff member:

"There is an orgy going on out on the plaza. Celeste just saw a girl give a guy a ——job [sic] right in front of her window. She banged on the window and they just looked at her and kept going. The smokers are saying the smell of urine is so strong out on the WMB plaza that it's unbearable. These people have been smoking pot, defecating and urinating all over the place and from what we understand out security has it's [sic] hands tied...."   read more »

D.C. Courts Fight the Future in New Rule Limiting Electronic-Device Use in Courthouse

The Blog of the Legal Times reports that the Superior Court of the District of Columbia – the local trial court for the nation's capital – has issued a new administrative order regarding use of electronic devices in the courthouse. And like other courts, the new rules impose a class system of "haves" and "have nots" – favored types of the people can have and use the devices, while everyone else can not. The rules also contain an archaic view of electronic devices that effectively means that even when the rules allow them to be used, they cannot be used for any modern, web-based functions.   read more »

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

“I’m listening to a marriage disintegrate at a table next to me in this restaurant,” he wrote. “Aaron Sorkin couldn’t write this better.” He then proceeded to quote the unwitting actors at length, concluding with an exterior photo of the now very public stage, or as he called it, “the restaurant of broken dreams.”

While tweeting the anonymous conversations of others is not uncommon (read yesterday's account of an irate plane passenger, courtesy of comedian and fellow traveler Patton Oswalt), Boyle added to his narrative a photo of the couple and instantly sparked a much-needed conversation on privacy, ethics, and online etiquette, now known as #BurgerKingBreakup. In the words of @HuffingtonPost, the Twitterverse exploded.   read more »

Tarek Mehanna and the Freedom for the Thought That We Hate

Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.

Later, I return with media: DVDs of radical propaganda. They feature clips of death and mutilation from distant battlefields. They're filled with angry people gushing violent, bigoted rhetoric. I make movies like this, I tell you. And I write. I translate stuff like this from one language to another. I've done a good job, too. My blog is pretty popular.

One day you're approached by the police. They're asking questions about me: What are his beliefs? How does he spend his time? It's a crime to lie to them, so you answer truthfully. And a short time later, you see me on the news in handcuffs, above a caption: "Suspected local terrorist arrested."

Now suppose that at trial the government offers the conversations, DVDs, and writings as proof that I'm a member of a terrorist organization. They point to our conversations as evidence that I'm a dangerous criminal. They argue that the DVDs incite others to do violence, and that the writings offer a guide for those who want to do it well.

The case against me is viscerally compelling. It'd be hard for anyone to relate to, let alone sympathize with, a person capable of spewing the sort of vile slime by which I made my name. But by my words alone, can I fairly be called a criminal? Though my actions may have broken the law, to what extent can my words – "the thought we hate" famously referenced by Justice Holmes in U.S. v. Schwimmer – be punished as well?   read more »

Not THAT kind of Brotherly Love

The NAACP and the ACLU filed suit against the City of Philadelphia over a refusal to accept an advertisement for placement at Philly International Airport. (source)

The billboard reads: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners." (A larger image of the billboard is available at the NAACP's website.)

The City claims it rejected the ad because of a policy against "issue" and "advocacy" billboards. However, the suit alleges that the City has allowed such ads in the past.   read more »

Misleading and Lying Toward a More Open Government

Give the Obama Administration credit for trying. The President promised the country transparency and open government, so rather than just let FOIA requesters assume they are being lied to, the Department of Justice recently proposed coming clean and making such lies official policy. Freedom of information advocates could rejoice knowing that their government is transparent about not being transparent.

In actuality, the intent behind the now-abandoned proposal was much more manipulative, if no less ironic.

Here's how it's supposed to work: The Freedom of Information Act allows access to records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President, unless those records fall under one of several exemptions. When asked to produce certain documents pertaining to law enforcement or national security, the federal government can withhold those documents under one of the exemptions, or it could issue a "Glomar" response “neither conforming nor denying the existence” of those records.   read more »

Why Blogs Can't Be Trusted, or: 'Statements Made Here Are Not Likely Provable Assertions of Fact'

The refrain that bloggers can't be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn't be too quick to celebrate.

The basic problem is this: As we all know, you can't sue someone for defamation based on opinion, as opposed to factual statements. That standard applies the same to the Washington Post as it does to It's possible to argue, though, that statements on a blog are inherently less "factual," making it harder to sue for defamation. Some online defendants are starting to find some success with this strategy, and more power to them.

I get nervous, though, with any legal standards based on blogs' second-class status. Other tangible legal interests could be affected by such rulings (I'm thinking in particular of reporters'-shield laws). And more generally, the "you can't trust these crazy bloggers" sentiment doesn't seem to be in the long-term interests of online media.

The case I have in mind — Obsidian Finance v. Cox, out of the federal district court in Oregon (see CMLP's full treatment of the case here) — goes something like this: Blogger runs angry, critical website. Target of criticism sues. Court says that, because blogger is obviously angry and critical, nobody would believe that she's making any factual claims.   read more »

France Continues to Confuse Censorship with Civility

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

It is the latest attempt by the country to regulate the speech of its citizens online, prevent access to information deemed harmful to state interests, and create, in the words of President Nicolas Sarkozy, a “civilized” Internet. This particular decision is especially concerning given that it comes just two years after a scathing report by Amnesty International on the country’s ineffective methods of investigating police misconduct.

According to the Jurist, the Tribunal de Grande Instance de Paris, a civil trial court, ordered all French ISPs on Oct. 14 to block access to Copwatch Nord Paris I-D-F, a website that allows citizens to post videos of alleged police misconduct. The police union, Alliance Police Nationale, applauded the decision because it believed the site incited violence against officers. Said the union’s secretary general, the “judges have analyzed the situation perfectly — this site being a threat to the integrity of the police — and made the right decision.”   read more »

Keeping an Eye on ACTA

The Anti-Counterfeiting Trade Agreement (ACTA) is slowly inching its way towards implementation, but obstacles still remain. Now that the signing window for ACTA has been open for a while, let’s take a quick look at which countries have actually signed the agreement: United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea.

Sounds like a pretty impressive roster. Should go deep into the playoffs.

But not so fast.  It looks like the US Congress is not too happy with the idea of the executive entering into a binding international agreement pertaining to intellectual property. As a reminder, the Constitution gives power over IP to the Legislature: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Senator Ron Wyden (D) of Oregon sent a letter to President Obama seeking clarification that ACTA is not binding:   read more »

CMLP Guide to Reporting on Occupy Protests Goes Mobile!

For those of you who asked for our legal guide to reporting on Occupy Wall Street in a more portable format, we have good news!  Our good friends at the First Amendment Coalition have graciously offered to host a mobile version of the guide on their free iOpenGov app.  Furthermore, in recognition of the growth of Occupy protests in all regions of the United States, we have adapted the mobile version of our guide to discuss principles of law that are generally applicable across the country.

iOpenGov is available on iPhone and Android.

Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.

The facts of the case are nothing short of awesome.  read more »

CMLP ANNOUNCEMENT: Congratulations Andy Sellars!

The Citizen Media Law Project is extraordinarily pleased to announce that Andy Sellars, our Staff Attorney, was announced this past weekend to be the 2011 winner of the time-honored and prestigious Jan Jancin Award!

The Jan Jancin Award is granted each year to a single student nationwide who has excelled in the study of intellectual property law.  The ABA-Intellectual Property Law Section, the American Intellectual Property Law Association and the American Intellectual Property Law Education Foundation grant the award in memory of the late Jan Jancin, who "served not only as President of AIPLA and Chair of the ABA-IPL Section, but served with distinction in other leadership roles in other intellectual property law associations, nationally and internationally."

Andy received his J.D. with high honors from the George Washington University Law School earlier this year, where (perhaps foreshadowing this weekend's success) he was awarded the Peter D. Rosenberg Award for Patent and Intellectual Property Law.  Prior to law school, Andy had an excellent motive to develop an interest in intellectual property while working in the music industry, including for the festival production and promotion company Great Northeast Productions and as assistant tour manager and stage manager for the band moe. He received his undergraduate degree in music, summa cum laude, from Northeastern University in 2008.   read more »

Can AP Apply a 99-Cent-Song Business Model to the News?

Is it possible to create a culture for licensing news?

This is the question at the heart of a new project begun by The Associated Press, announced last April by AP CEO Tom Curley. Called The News Licensing Group, the AP, with its membership, has created a separate company to explore how tagged content can not only be tracked but also monetized.

The News Licensing Group (NLG) is an outgrowth of the AP’s News Registry project, which was announced in 2009 as a way not only to tag content but locate content thieves. That announcement attracted criticism that the AP was gearing up for a major offensive against aggregators, but that never panned out. As a new group, NLG is positioned a bit more broadly – it’s about tagging and tracking, but it’s also about creating the distribution economics for aggregators to obtain the content they want.

In short, it appears NLG is looking to embrace the new content distribution economics.

The new venture is headed by former ABC News Chief David Westin. Its new COO is Srinandan Kasi, formerly vice president and general counsel for The Associated Press.

Last week, Kasi addressed a group of lawyers and journalists at the Ohio State Bar Association in Columbus at their annual media law conference to explain what NLG is working on and to review the history of the news industry’s business choices that have led to this moment.   read more »

Introducing Guest Blogger Victoria Smith Ekstrand

I am excited to welcome Victoria Smith Ekstrand as a guest blogger! 

Victoria Smith Ekstrand is an associate professor at Bowling Green State University, where she teaches media law, public relations, and graduate courses in legal theory and pedagogy. She has an affiliate appointment with BGSU's Department of American Culture Studies. She studies the tensions between intellectual property and First Amendment law and is the author of News Piracy and the Hot News Doctrine: Origins in Law and Implications for the Digital Age (2005).

Before attending the University of North Carolina - Chapel Hill for her doctorate, she was Director of Corporate Communications for The Associated Press in New York City, where she handled media relations and employee and marketing communications for the news service. She worked for the AP for nine years, and before that worked for the Arbitron Company and for radio stations in upstate New York, New York City, and Long Island.

Please join me in welcoming Victoria to the CMLP blogroll! 

Health Reporters Unite! How One Doctor's Complaint Turned a Public Database Private

Kansas City Star reporter Alan Bavley had a hunch. After years of investigating the health care industry, Bavley began to suspect that state medical boards did not adequately discipline doctors who committed malpractice. Physicians battling substance abuse, for example, were punished far more harshly.

"I wanted to find doctors who were malpractice ‘frequent fliers' and check to see if they had been disciplined, but I never had enough time to develop a viable strategy," Bavley said in a recent interview. "So the story languished on my bucket list."   read more »

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