The Journal News Fallout: Limiting the First Amendment to Protect the Second

Eight days after a gunman entered Sandy Hook Elementary School, shooting and killing 20 young students, 6 staff members and fueling a national discussion on gun control, The Journal News in Lower Hudson, New York, published an interactive map of all residents in its community who possessed a firearms permit. The data — initially including the names and addresses of permit holders — had been obtained through the state’s Freedom of Information Law and could have been accessed by anyone upon request. Still, the decision to publish the data in its aggregate appeared to many as an unacceptable and needless invasion of the privacy of gun owners, and sparked a fierce debate over the ethics of such disclosure.   read more »

Filing Lawsuits in the United States over Google Autocomplete is...

On December 21, 2012, Dr. Guy Hingston, a cancer surgeon from Port Macquarie in New South Wales, Australia, filed suit against Google in the U.S. District Court for the Central District of California. Dr. Hingston's complaint alleges that Google portrayed him in a "false light" through its "autocomplete" feature, because for at least some users entering his name into Google's search engine has triggered the option to search for the phrase "guy hingston bankrupt."

Dr. Hingston, of course, denies that he is bankrupt. This is not the first lawsuit against Google based upon autocomplete results; we have written before about suits in other countries.  However, this is the first such suit filed in a United States court, raising the question of whether the suit could succeed under the laws of California and the United States, including the First Amendment.

"False light" is a notoriously ambiguous tort, but for the purposes of this post I will focus on California's interpretation of the tort. California's version of "false light" is very similar to defamation, except that while defamation involves false statements of fact about the plaintiff, false light involves false implications of fact. (For more on California's false light tort, see our Legal Guide entry). Nevertheless, false light is subject to limitations similar to those applicable to a defamation claim, several of which are fatal to this claim.

"Of and Concerning"   read more »

The Impact of "Aaron's Law" on Aaron Swartz's Case

Like so many around the greater Berkman community I was stunned and saddened to hear that Aaron Swartz committed suicide late last week. I truly admired Aaron's work and consider the future of Internet policy substantially worse off without his presence. For more on his life and work, I'd encourage you to visit this gathering of Berkman blog feeds, which this week is filled with posts that discuss his life and work in greater detail.

Much of my attention towards Aaron was focused on his recent federal prosecution. This week Representative Zoe Lofgren has announced on Reddit that she plans to introduce a new bill that changes computer crime law to protect activities like Aaron's from future prosecution. (This action itself is a very fitting tribute to both Aaron's work in shaping a pro-Internet political climate and his early and involved work with Reddit.)   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 »

The First Circuit Tackles Copyright in News Photography and Docudramas

On Monday the First Circuit released an important opinion addressing copyright and news photography, in Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2003).  The case is related to the famous "Clark Rockefeller" incident. For those unfamiliar, "Clark," a wealthy Boston socialite who was purportedly a member of the Rockefeller family, kidnapped his daughter and fled Boston in July 2008. This lead to a nationwide manhunt that ended a little over a week later in Baltimore. After he was apprehended it was revealed that "Clark" was actually Christian Gerhartsreiter, a German immigrant that had come to the United States as a teenager and since then assumed many different fake identities, including that of Boston socialite "Clark Rockefeller." After a conviction for parental kidnapping, Gerhartsreiter is now in California, standing trial for a 1985 murder.

If you have one image in your mind from this famous news story, it's probably this photo:

This photo was taken by freelance photographer Donald Harney for a piece in the Beacon Hill Times. The photo was used by state and federal police agencies during the manhunt for Gerhartsreiter, where it saw widespread dissemination.   read more »

RT the Hate: France and Twitter Censorship, Part Two

Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ("a good jew"). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ("if my son is gay") or the xenophobic #SimaFilleRamèneUnNoir ("if my daughter brings a Black man home"). As with #unbonjuif, the "game" consisted of adding messages to these hashhags to create a "joke."

This time the hashtags prompted a response from the government. Najat Belkacem-Vallaud, France’s Minister of Women's Rights, reacted to these offensive tweets by writing an editorial published on December 28 in Le Monde under the title "Twitter must respect the values of the Republic." She described these tweets as being "morally reprehensible and illegal under our laws," and goes on by writing that:

[i]t is the honor of France to have progressively included in its criminal code punishment for incitement to hatred or violence against a person or group of persons because of their origin, membership or non-membership in an ethnic group, nation, or because of their sexual orientation or gender identity. These acts or remarks are punishable by law and the fact that they were made using a virtual channel does not make less punishable those who committed them and whose case made be tried by courts.   read more »

Are Rights of Publicity the Fatal Flaw of the Mugshot Racket?

Before the holidays, Wired reported the filing of a putative class action in Ohio against a group of privately owned websites that allegedly collect and publish mugshot photos, and then charge those whose photos appear exorbitant amounts to have the photos removed. The lawsuit is premised on the right of publicity - that is, a person's right to control the commercial exploitation of their name or likeness.

I have little sympathy for the so-called "mugshot racket," but using the right of publicity as a method of attack has some issues. Ordinarily, the right of publicity is invoked to prevent the exploitation of an individual's persona without permission through use of a name or photograph for promotional purposes. For example, the right prevents the unauthorized use of a celebrity's likeness in advertising to falsely suggest the endorsement of a product. In that sense, the right of publicity reflects the positive value that can accrue to an individual's identity through the individual's efforts, and gives the individual the ability to control how that value is used. According to the Ohio Second District Court of Appeals:

The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.   read more »

And That's It for 2012...

Tomorrow, Harvard University will shut down for its annual Winter Recess, marking the end of the calendar year for those of us at the Digital Media Law Project.  It seems like this year has flown by, with so much that we have done and so much that we still plan to do.

I’ll leave the full summary of our activities to the December edition of our newsletter, the Citizen Media Law Brief, but thought it would be worthwhile to highlight some of our major projects in 2012.   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 »

Congratulations to The Lens on its Section 501(c)(3) Determination!

The Digital Media Law Project would like to congratulate The Lens, the New Orleans area's first nonprofit, nonpartisan public-interest newsroom, on obtaining a positive ruling on its Section 501(c)(3) status from the Internal Revenue Service!

This ruling will exempt from federal taxation the organizational income that The Lens derives from its mission "to educate, engage and empower readers with information and analysis necessary for them to advocate for a more transparent and just governance that is accountable to the public." It will also allow The Lens to receive tax-exempt donations from charitable foundations and the general public.

The Lens was one of several news organizations stuck in an extended IRS review of their eligibility for tax-exempt status -- in the Lens' case, for over 26 months.  The determination on The Lens' application follows a similar positive determination in September with respect to San Francisco Public Press, which received approval of its 501(c)(3) status after waiting two and a half years. These long delays are likely related to internal debate at the IRS on whether a news organization can be organized and operated exclusively for one or more of eight charitable purposes set forth in Section 501(c)(3) of the Internal Revenue Code -- specifically, whether journalism should be recognized as a method of carrying out an "educational" purpose as opposed to a purely for-profit concern. Movement on these long-delayed applications suggests that the IRS is beginning to resolve its concerns and to formulate strategies for evaluating applications from news organizations.   read more »

Copyright in Tattoo Case: Escobedo v. THQ, Inc.

Excerpt from Escobedo v. THQ Inc. lawsuit

A tattoo artist sued THQ, Inc., the makers of an Ultimate Fighting Championship (UFC) themed video game, for copyright infringement. The artist tattooed a lion on fighter Carlos Condit's torso, and claims that it was his original creation. (Complaint at 12.) The artist alleges that he created the original design, and owns a registration for the copyright to the design. (Compl. at 16.) He claims that by using the work in a video game, depicting Carlos Condit, THQ infringed upon his copyright in the work.

A press release issued by the firm representing the artist, Christopher Escobedo, states:   read more »

A Special Deal Just For You: The Value of Big Data Continues to Elude Consumers

For a while now, one of the main causes of concern for privacy advocates has been "Big Data," that is, the collection, aggregation and analysis of data, on a, well, BIG scale. This post takes the opportunity to review some specific issues and recent developments in this area.

The exploitation of Big Data for commercial purposes may have negative consequences on individuals’ lives, yet consumers are not yet fully aware of the impact it may have on their privacy and their economic interests. Even more galling, consumers have no way to claim any portion of the profits generated by their data when sold to advertising companies for top dollars.

Big Data Enables Economic Discrimination

One of the most common uses of aggregated consumer data is in online advertising, where the advertisements that users see are based upon their online history. Automated algorithms assess whether a consumer is likely or not to be interested in a particular type of ad, and the opportunity to deliver an ad to that consumer is auctioned off on a split-second basis using an electronic trading system. Companies often present this use of Big Data as being advantageous to consumers, as they only see advertisements which are truly relevant to their interests, and thus are less exposed to spam.    read more »

Copyright of “Public Facts”: Craigslist v. PadMapper

Craigslist was meant for the common good, or as founder Craig Newmark puts it, “doing well by doing good.”  At least, that has been its announced mission since it began as an email distribution among friends. Craigslist kept its mantra through its rise to Silicon Valley stardom, snubbing multi-million dollar buyout offers and fighting attempts to monetize the site along the way.

The physical layout of Craigslist hasn’t changed much over the years. Point your browser in its direction and, like an old friend, you’ll be greeted with the same underlined blue links you’ve known for years. Fans are legion, but so too are critics: Critics see stagnation in this comfort, some of whom have taken matters into their own hands through attempts at innovation. However, as some have already discovered, developing tools to work around (critics would say “enhance”) Craigslist’s simple functionality can invite legal response. Is an early darling of Silicon Valley showing a decidedly uglier side, or is Craigslist still simply looking out for the common good?   read more »

The Thankless Task of the Political Fact-Checker

One overarching theme of the 2012 election season was a struggle with truth. Both campaigns were accused of serial falsehoods, and continuing to spread incorrect information after the truth was reported. The utility of fact-checking in the election was also questioned: David Carr argued that the efforts of fact-checkers were irrelevant to the conduct of the campaigns, while the parsing of endless minutiae fed partisan bickering; Bill Adair of PolitiFact responded that the purpose of fact-checking was to inform voters so that they could better judge the candidates, not to moderate the statements of candidates directly.

As a lawyer who has defended more than a few defamation cases, all of this led me to consider the difficulties faced by those who attempt to analyze the truth of even seemingly simple statements. It sometimes surprises those not familiar with media law that courts in libel cases are not generally tasked with deciding issues of ultimate truth. Rather, judges and juries are responsible for determining whether a defendant's statements are probably true or false, to a degree of probability that allows imposition of penalties in a manner consistent with society's level of comfort. After all, jurors are not witnesses and have no direct knowledge of events; their verdict represents the opinion of a small sample of the public about the veracity of actual witnesses and conclusions as to how piecemeal information fits together. Such a decision might be reliable enough for an award of damages, but it would seem strange to present a jury's determination to the world as a binding declaration of indisputable fact.   read more »

Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

Fighting for the First Amendment can often mean confronting and defending vile, caustic, hurtful, and downright disgusting speech. But not all free speech cases address the words of the most hateful or offensive amongst us. Every once in a while you get a case concerning speech at its most fun and playful. In that spirit, and in light of tomorrow's holiday, I'd like to share an update from a case in New Hampshire that Marc Randazza first blogged about here last October.

The case concerns Jonathan Doyle, who decided to dress up as Bigfoot one day in September 2009 and walk around Mount Monadnock State Park to see how people would react (as you do). He filmed some of the interactions he had with passing hikers, and even convinced two park employees to write a note confirming a "bigfoot" sighting on Mount Monadnock.

Doyle decided to return a week or so later, this time announcing his trip in advance through a press release in the Keene Sentinel.  Doyle brought along some of his friends, including a friend dressed up as "Boda the Blue Yoda" (your guess is as good as mine) and a child dressed up as "the Pirate Ambassador." The trio of disparate characters hiked up the mountain and did some more filming, to the delight and amusement of the participants and scattered spectators.   read more »

Another Go-Round with Recording the Police in Massachusetts

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue's car at his direction, and later uploaded to YouTube.

But wait a minute -- didn't we already deal with this issue in Massachusetts? Didn't the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there's a First Amendment right to record the activities of the police in public?   read more »

A UNC Student’s Summer Experience in Media Law

Today we are pleased to republish a piece from Tabitha Messick about her experiences as a 2012 Digital Media Law Project Summer Intern; this post was originally published by the DMLP's founder, David Ardia, on his blog at the UNC Center for Media Law & Policy. Thanks to both David and Tabitha for allowing us to run this post!

If you are interested in becoming a summer intern for the DMLP, please visit the Berkman Center's Summer Internship Program website for more information!

My 2L summer at the Digital Media Law Project  (DMLP) at the Berkman Center for Internet & Society (based at Harvard University in Cambridge, MA) was simply amazing. I’ve known about the Berkman Center for years, and have frequently used the resources at DMLP (formerly the Citizen Media Law Project). I would have never imagined that I would have the opportunity to work there.

I came to law school with an interest in media law, Internet policy and privacy issues. I am a 2007 graduate of UNC’s School of Journalism and Mass Communication.  I chose to enroll at UNC School of Law because of its media law curriculum and because of the Center for Media Law & Policy.   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 »

Ballot Disclosure Laws: A First Amendment Anomaly

Today, the Digital Media Law Project is launching a new guide to photography and filming at this year’s presidential election, Documenting the Vote 2012. This resource provides a wide range of information for all fifty states plus the District of Columbia, regarding laws that restrict the use of cameras in and around polling places (as well as other journalistic activities).

One particular type of law, common to many states, is worthy of particular note. As reflected in our new guide, many states have statutes that prohibit the display of one’s own marked ballot to others. A small number of these states only prohibit disclosure of one’s ballot in the voting room or prior to submission of the ballot, but most impose a flat prohibition on disclosure backed up by criminal penalties or cancellation of the vote in question. These statutes by their explicit terms appear to ban sharing of a photograph of one’s ballot even after the election is over.

Now, we can debate the wisdom of a voter openly declaring the candidate for whom he or she voted. There are sound reasons for a person to keep his or her ultimate selection secret, whether to prevent intimidation at the polling place or retribution by employers or others after the fact. It is easy to imagine situations in which the thoughtless posting of a marked ballot on Facebook could result in negative consequences, as with the posting of so many other ill-advised Facebook photos.

And yet, the First Amendment’s protection is at its peak in the realm of speech on political issues. Can a law prohibiting a voter from disclosing his or her own marked ballot be constitutional?

Content-neutral or content-based?   read more »

Twitter, France, and Group Libel

On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ("agoodjew" and "agoodmuslim," respectively), some Twitter users were posting derogatory comments about Jews and Muslims, some allegedly meant to be 'jokes.'

The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users.

But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court.   read more »

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