Justice Delayed But Not Denied – Appellate Court Overturns $60K Verdict Against Blogger for Posting “Not False” Information

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." – Winston Churchill

Until last week, a Minnesota blogger named John Hoff could have been forgiven for spurning the wisdom of Mr. Churchill, having been slapped with a $60,000 jury verdict for posting the truth (or “not false” facts) about a local man that may have cost him his job. But a state appellate court has found that Hoff will not have to pay a dime in damages since his statements and collateral conduct were protected by the First Amendment.    

Jerry Moore, a former employee of the University of Minnesota who was hired to study foreclosures, brought this suit after Hoff, a.k.a. “Johnny Northside,” accused him in a 2009 blog post of being involved in a “high-profile fraudulent mortgage” and being “fired from [a previous position] for misconduct, (fistfight, cough cough).” There was also testimony in the underlying trial that Hoff asked an acquaintance named Donald Allen to get Moore terminated from his position. University officials did send a letter to Moore the day after Allen forwarded them Hoff’s cutting blog post, indicating that Moore’s “services would no longer be needed,” according to the Minnesota appellate court decision. Allen, who was also sued by Moore, settled before trial and later testified against Hoff, making claims that Hoff denied.   read more »

How Do You Say 'Public Forum Doctrine' in Hawaiian?

It is ridiculously easy to create an online forum.

Even just a few years ago, you had to have a fairly high level of technical savvy to put together such a thing - maybe some php or other coding skills, certainly a solid grip on html at the very least.   But now, thanks to the likes of Facebook, Google, and plenty of other online megacorporations, all it takes is a few mouse clicks.  And as a result, more government entities than ever are getting in on the action and creating forums -- in a technological sense -- for public debate.

But are they also creating public forums in a legal sense? In the physical world, when the government sets aside space as free for public use, it is not allowed to discriminate based on the viewpoints that members of the public might express in such spaces. But does that principle extend by analogy to virtual spaces hosted by government agencies?

That's the issue highlighted by a case filed just last week in federal court in Hawaii, in which Christopher Baker and Derek Scammon, as well as the Hawaii Defense Foundation (a pro-gun organization), are suing the Honolulu Police Department for constitutional violations after the HPD apparently removed the individual plaintiffs' comments from the Department's Facebook "fan" page.   read more »

Announcing a Guide to Reporting at the 2012 Republican and Democratic National Conventions

Click here to download
the guide (pdf)
As you may have seen on our home page today, the DMLP has released a Guide to Reporting at the 2012 Republican and Democratic National Conventions. I wanted to share a little more about why and how we decided to release this document.

As we mentioned already, the conventions are creatures of chaos. Thousands of journalists and even more demonstrators will descend upon these cities. These crowds are typically met with an overwhelming police presence, and the clashes between protesters and the police typically result in numerous arrests. Avoiding police detention as a journalist is often a challenge, as a large tangle of laws regulates crowd behavior, and police often enforce these complex laws with sweep arrests of whole crowds.

Many experienced journalists are not strangers to such tough situations, but the nature of the conventions as "national special security events" presents special concerns, especially around the norms journalists establish with local law enforcement. The Secret Service takes the lead during these national security events, and the normal journalist–police relationships that allow journalists to report from over police lines are likely to be jettisoned in favor of a strict enforcement of the law.   read more »

Balancing Interests for an Open Internet: Verizon Challenges the FCC's Net Neutrality Rules

This July, Verizon Communications and MetroPCS Communications filed a brief in the U.S. Court of Appeals for the D.C. Circuit, arguing that the Federal Communications Commission (FCC) lacks the authority to enact net neutrality rules and that these neutrality rules are unconstitutional under the First and Fifth Amendments. Now, debate over the FCC's approach to net neutrality is not a recent development. In fact, even the predecessor to the net neutrality rules, the policy statement for net neutrality principles, was challenged and ultimately defeated in a case brought by Comcast. Still, Verizon's latest case and public debate may shed light on the liberties at stake with the net neutrality rules and how to best balance everyone's interests.   read more »

Olympic Citius Altius Fortius Pan-American: The U.S. Olympic Committee's Exclusive Rights

The U.S. Olympic Committee ("USOC") has a reputation for aggressively policing their exclusive rights to certain words, phrases, and symbols. And they have a special act of Congress to back them up.

The Ted Stevens Olympic & Amateur Sports Act (hereafter "the Act") grants the USOC the exclusive right to use the word "Olympic," and other Olympic related terms and symbols, and therefore the right to prohibit certain commercial or promotional uses by others. The Act allows the USOC to license use of the marks to contributors and suppliers of goods or services who wish to advertise that "the contributions, goods, or services were donated or supplied to, or approved, selected or used by [the USOC]."

(a) Exclusive Right of Corporation. ‒ Except as provided in subsection (d) of this section, the corporation has the exclusive right to use ‒

(1) the name "United States Olympic Committee";

(2) the symbol of the International Olympic Committee, consisting of 5 interlocking rings, the symbol of the International Paralympic Committee, consisting of 3 TaiGeuks, or the symbol of the Pan-American Sports Organization, consisting of a torch surrounded by concentric rings;

(3) the emblem of the corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief; and

(4) the words "Olympic", "Olympiad", "Citius Altius Fortius", "Paralympic", "Paralympiad", "Pan-American", "America Espirito Sport Fraternite", or any combination of those words.   read more »

ANNOUNCEMENT: Live Web Chats on Reporting at the RNC & DNC

This Thursday, August 16, and again next Thursday, August 23, the Digital Media Law Project's own Andy Sellars will be joining Free Press and the International News Safety Institute to host live online sessions on reporting in conflict areas, with a special emphasis on reporting at the upcoming Democratic National Convention and Republican National Convention. 

In the last year, nearly 90 people have been arrested while trying to report on protests in the United States, and many others have faced abuse, harassment and press suppression from local authorities. Both the RNC and DNC are expected to draw large numbers of protesters to high-security areas, increasing the risk to journalists. Join us to hear concrete tips on how to stay safe while covering these events and learn about local laws and issues that may impact the conventions. These free webcast events will feature both personal stories from journalists who have been arrested and analysis of past events and legal cases. There will be ample opportunity for participants to ask questions and share their own stories.

No registration or signup is necessary -- just visit Free Press's webinar page on August 16, starting at 7 p.m., or on August 23, starting at 8 p.m. (or both, if you're so inclined). We hope to chat with you then!

Update: You can also visit the webinar page to see the archived event if you can't make it to one of the sessions.

When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity

The issue of same-sex unions is hotly debated, and the discussion is heating up this election year with the case on California’s Proposition 8 making its way to the Supreme Court, and with President Obama recently declaring that he is in favor of same-sex marriage.

Two GOP candidates for the Colorado State District 8 Senate seat did not have the same opinion on same-sex unions. Incumbent Sen. Jean White had supported the 2011 Colorado bill on civil unions, S.B. 172. She has a niece and a nephew who are gay, and she spoke emotionally during the debate, concluding: “My vote today is for love and respect and commitment. My vote today is for my niece and my nephew.”

Senator White’s opponent, Rep. Randy Baumgardner, does not support civil unions. He was therefore the candidate of choice of Public Advocate of the United States (Public Advocate), a nonprofit organization based in Falls Church, Virginia.

Public Advocate’s website indicates that it is in favor of “[a] federal traditional marriage (man-woman) amendment to the Constitution to defend tradional [sic] marriage from assaults from those who claim to promote 'same sex marriage'.” It also “offers strong and vocal opposition to … [s]ame sex marriage and the furtherance of so-called 'Gay Rights.'” This anti-gay stance has earned Public Advocate a spot on the Southern Poverty Law Center hate map.   read more »

Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

Some of the most commercially successful and popular music of all time – including the entire catalog of The Beatles – is subject to a degree of uncertainty under current copyright law in the United States due to an anomaly in the federal copyright framework with respect to older sound recordings. Because these recordings are not protected under federal copyright law, commentators and courts are uncertain as to whether online hosts of such recordings are protected under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).

When Congress passed the Copyright Act of 1909, it did not extend federal statutory protection to audible musical works (i.e., a song as recorded by a particular artist). Despite falling outside of the Act's provisions, however, sound recordings remained eligible for copyright protection under state common law.

Sound recordings were entitled solely to state law protection for the better part of the 20th century, until advances in technology (enter the cassette tape) made the unauthorized reproduction of existing sound recordings simpler than ever before. In response, a number of states adopted criminal statutes proscribing music piracy in the 1970s. Shortly thereafter, Congress reacted to the issue by overhauling federal copyright law, amending the Copyright Act of 1909 to include sound recordings within the classes of creative works entitled to federal protection.

However, this amendment was forward-looking. Only those sound recordings created after February 15, 1972, would be eligible for federal protection; those fixed beforehand would remain subject to state common law copyright. This dual system of copyright was preserved by Section 301(c) of the Copyright Act of 1976, which states:   read more »

Recent Cases, Article Show That Justices Use "Extrinsic Evidence" Found Online

A pending law review article -- and two of the Supreme Court's recent major decisions --  provide vivid examples that judges (and Supreme Court justices in particular) often use "extrinsic evidence" (materials other than what the lawyers present to them in briefs, trial, or argument) to make judicial rulings. In recent decisions, this material is often found online.

In the Supreme Court's recent ruling mostly striking down Arizona's immigration enforcement law, Justice Antonin Scalia's dissent criticized the Obama administration's recent announcement that it would defer deportations of young people under age 30 who immigrated to the U.S. illegally when they were under the age of 16, are in or have graduated from school or have served in the armed forces, and meet other criteria. This announcement was made ten days before the decision was released, and eight weeks after the case was argued.

And in discussing the new policy, Scalia cites a New York Times article on the administration's announcement, see Arizona v. United States, No. 11–182 (June 25, 2012) (Scalia, J., dissenting), at 20, a memorandum from Homeland Security Secretary Janet Napolitano, id., and the President's remarks on the policy. Id. at 21. For the latter two, the dissent cites the websites where these materials are available.   read more »

On Reconsideration, Illinois Judge Holds Blog Is Protected By Shield Law

On a motion for reconsideration, an Illinois trial judge who held in January that the technology news blog was not protected by Illinois' reporter's shield law (75 Ill. Comp. Stat. §§ 5/8-901 - 8-909) has reversed himself, holding now that "within the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege."   read more »

Rhode Island Repeals Law Criminalizing False Speech Online

In my four years in Providence, I undoubtedly told some white lies online. Of those I can easily remember, I have sent a message on Facebook claiming I was sick to get out of a party I had no interest in going to, though I was perfectly healthy; emailed a show's director that I'd be late to rehearsal because of a study group conflict when in fact I had brunch plans with some friends; and entered my height in heels into a Google spreadsheet as 5'4" when I know that could only true in my dreams. Little did I know that under Rhode Island General Laws § 11-52-7(b) (on computer crime), I was committing a misdemeanor every time and could have been subject to a $500 fine and/or imprisoned for a year each time. Fortunately, as I return to the area for visits, I will no longer have to worry about what I type, as this law was repealed by the Rhode Island General Assembly this June. With United States v. Alvarez, No. 11-210, 567 U.S. __ (2012), decided just days after the repeal, it's impossible not to consider how the repeal also shows a society that places value in protecting false speech. Furthermore, in the wake of Alvarez, had § 11-52-7(b) remained and been subject to a facial challenge, it would likely be found unconstitutional.

Enacted in 1989, Rhode Island General Laws § 11-52-7(b) stated,   read more »

Service of Process, 2.0

The judicial system in the United States has kept up with technological change in many ways. We have electronic filing, websites for federal courts, and Internet streaming court coverage. But there is one way that courts have not been as quick to adapt electronically – service of process.

Last month, the U.S. District Court for the Southern District of New York denied a request to allow service of process via social networking site (in this case, Facebook). The case, Fortunato v. Chase Bank U.S.A., involved Chase Bank's attempts to locate and serve process on a third-party defendant who fraudulently charged up multiple credit cards and gave a false physical address. The judge called the request "unorthodox," and found that Chase Bank had not given the court "a degree of certainty" about the defendant's alleged Facebook profile and the email address attached to that profile that would ensure that the defendant would receive and read the notice. However, the judge did allow for alternative service by general publication in local newspapers.  

So why are judges reluctant to allow electronic service of process?    read more »

Hearing on National Security Leaks Features Much Media-Bashing, Little Progress

On the morning of July 11, the House Judiciary Subcommittee on Crime, Terrorism, and National Security held a hearing on the recent national security leaks.  I have watched a video of the hearing so you won’t have to (you can thank me later). Experts testifying included President George W. Bush’s homeland security advisor Kenneth Wainstein, American University Professor Stephen Vladeck, George Mason Professor Nathan Sales, and U.S. Army (Ret.) Col. Kenneth Allard.

As the witnesses pointed out, this is the third time in a year and a half that Congress has called for testimony on national security leaks. The sheer frequency of the hearings indicates that Congress should really try to figure out how to reform the Espionage Act, but I am not going to be holding my breath waiting for this to happen.  This latest hearing raised some interesting questions but unfortunately provided little guidance on how Congress might revise the Espionage Act.

Not surprisingly, Republican members of the Subcommittee largely used this hearing as an opportunity to rail against the lack of a special prosecutor to investigate the most recent national security leaks, while Democrats spent their time pointing out the most recent leaks were nothing new because leaks have been going on since the founding of this country.   read more »

Coming Soon? Graduated Response Measures by Internet Service Providers

The nation's largest Internet service providers, in an unprecedented partnership with titans of the entertainment industry, have agreed to implement a uniform policy aimed at deterring online copyright infringement known as the Copyright Alert System. An agreement that sets forth extensive details about the program was finalized more than one year ago, but it has yet to take effect. Coverage of the scheme by Time and CNN has drawn attention back to the program in recent weeks. So, where exactly does the Copyright Alert System stand?

For those of you unfamiliar with the CAS, it is a graduated response approach to copyright enforcement created in an agreement between five major ISPs and representatives from the entertainment industry. Often referred to as the "six strikes" plan (for the number of warnings subscribers may receive), the program will result in a series of alerts that increase in seriousness if an Internet user's account is flagged by a content owner as one associated with the unauthorized sharing or downloading of copyrighted material via a peer-to-peer network.    read more »

Stolen Valor, Part II: The Legislative and Executive Branches Take the Hint

On June 28, 2012, the U.S. Supreme Court held that the Stolen Valor Act is unconstitutional because it penalizes speech (albeit false speech) without consideration of less restrictive alternatives or a clear connection between the speech and the harm sought to be prevented. In U.S. v. Alvarez, No. 11-210, 567 U.S. __ (2012), Justice Kennedy (writing for a plurality of four justices) suggested that a less speech-restrictive option would be for the government to create a database of winners of military awards:

There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief for Respondent 25, and at least one database of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government "concluded that such a database would be impracticable and insufficiently comprehensive." Brief for United States 55. Without more explanation, it is difficult to assess the Government's claim, especially when at least one database of Congressional Medal of Honor winners already exists.   read more »

ANNOUNCEMENT: Panel and Fundraiser for "Without My Consent"

We would like to congratulate Without My Consent on its one-year anniversary, and announce an exciting event in celebration!

Without My Consent is a 501(c)(3) non-profit organization dedicated to empowering victims of online harassment, as well as facilitating debate and discussion around the issues of online invasion of privacy, accountability, theI nternet and free speech. The project was co-founded by Colette Vogele and Erica Johnstone as a fellow project at Stanford's Center for Internet & Society. We are excited by the work that Colette and Erica are doing at Without My Consent, as they provide critical resources to victims of online invasion of privacy while remaining focused on the risk that excessive regulation poses to the legitimate exchange of information.   read more »

Lèse Majesté: 16th Century Censorship Meets 21st Century Law

When hearing the expression “lèse majesté,” images of the Queen of Hearts ordering heads to be chopped off ASAP may come to mind. Marie-Antoinette, the queen who was once a “majesté” in France, herself lost her head during the French Revolution. Surely, the crime of lèse majesté is now a thing of the past?

Lèse Majesté Law is Heavily Enforced in Thailand

Not quite, as some monarchies still prosecute this crime. Several of the European monarchies still have lèse-majesté laws, including Norway, where prosecuting the crime can only be carried out by the king or with his consent.

Thailand, a constitutional monarchy, has had a lèse-majesté law since 1908, the year of the enactment of its first criminal code. Although the political powers of the king (currently King Bhumibol Adulyadej, who has reigned since 1946) are limited, the monarchy is held in high regard.  A clause in the Thai constitution states that "The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action." Article 112 of the Thai Criminal Code states that "Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to 15 years." The code does not define, however, what constitutes a defamation or an insult.   read more »

Nevada Needs A Revised Anti-SLAPP Statute, But The Ninth Circuit Gives Us Some Daylight

As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states' views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.

It has no anti-SLAPP law to speak of. Its state legislation intended to deter frivolous litigation, Fla. Stat. 57.105, looks great on the books but is a "paper tiger." While the statute was amended in 2002 to give it some real teeth, the state judiciary generally does not apply it. As a result, Flori-duh is a hotbed of frivolous SLAPP litigation.

If Nevada does not update its anemic anti-SLAPP law, it bears the risk of becoming the Florida of the West – at least with respect to frivolous SLAPPs. That risk is laid bare for all to see in the recent case of Metabolic Research v. Ferrell, despite the fact that the Ninth Circuit seems to have tossed in a prescription to cure some of the symptoms of the Nevada anti-SLAPP statute's lack of a fully developed spine.

What Happened?

From the Ninth Circuit's opinion:   read more »

Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

Signed into law earlier this year, Washington Senate Bill No. 6251 creates the felony offense of "advertising commercial sexual abuse of a minor." Though the bill does not explicitly reference, there is little doubt that the Village Voice Media Holdings site was the impetus for the law. has generated a veritable furor by refusing to nix its adult section, to which personals featuring underage prostitutes are posted at a frequency subject to considerable debate. During hearings on the bill, a member of the Washington state legislature announced that she would "love to see the escort services section [of] shut down completely." The law was also touted as a landmark in the years-long offensive by state attorneys general condemning for not doing enough to prevent exploitation of minors via the site.    read more »

Hey! You Defamed Me (By Not Saying Anything About Me)!

Another day. Another "I created Facebook first" case.  

Last month, a federal magistrate judge in Massachusetts dismissed the lawsuit of Aaron Greenspan, a former classmate of Facebook founder Mark Zuckerberg, against Random House Publishing and Columbia Pictures (and others), the respective distributors of the 2009 book about Facebook's creation, "The Accidental Billionaires," and the film adaption, "The Social Network," in 2010.

Amid various copyright claims (which were also dismissed) was an interesting, "Is this really a legal thing?" claim of "defamation by omission." Greenspan basically argues that he was defamed when he was left out of the movie based on the book about Facebook because he claims that he was "indirectly" involved in the founding of the company. In his complaint, Greenspan alleges he was referred to as "Grossman" in the book, and completely left out of the film. And by being left out, he alleges that he was excluded from any recognition of his contributions, and that all these (complicated and diluted) matters have affected his "career prospects." Sounds like a slam-dunk for the "subject ridicule, shunning and abuse" element for a defamation claim, right?

Not hardly.   read more »

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