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First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.   read more »

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v. Cox case.  That's the case where an Oregon federal judge rejected blogger Crystal Cox's contention that she was a member of the media, thus clearing the way for a $2.5 million verdict against her for defaming the plaintiffs. 

The story resulted in much hooting and hollering online, particularly from bloggers outraged that the judge ruled that they were not protected under Oregon's shield law.  Though as CMLP guest blogger Eric Robinson pointed out, the shield law issue was a sideshow to a much bigger problem in the ruling: that Judge Marco A. Hernandez had ruled that the Supreme Court's decision in Gertz v. Robert Welch, Inc. does not apply to Cox because she is not "media." 

Gertz stands for the proposition that plaintiffs in a defamation case cannot recover any damages without proof that the defendant was at least negligent, and may not recovered presumed damages without proof of the defendant's "actual malice." In Cox, the judge ruled that Gertz only applies to media entities, and – using a rather arbitrary list of what defines the media – determined that Cox was not a member of the protected class.  This in spite of several cases (of which the judge took no notice and Cox, acting pro se, did not cite) that state just the opposite.   read more »

By now, it is a given that many journalists have a regular presence on social networking services. The value of social media for gathering information, developing the journalist’s public persona, and promoting the journalist’s work is well-recognized. And although many news outlets have established guidelines and policies regarding behavior on social media, most outlets still permit journalists substantial discretion as to the tone and content of their tweets and posts.

Special concerns arise, however, when you use social media to promote articles that have been vetted by your attorneys. To understand these concerns, it helps to understand more about what media lawyers are looking for when we perform prepublication review of an article.

Although there are numerous issues that we might consider, media lawyers are primarily concerned with any statements in an article that might adversely affect the reputation of identifiable people or companies. Of course, a great deal of sound journalism can be damaging to reputation, including stories about political corruption, unfair business practices, or criminal activity. The lawyer’s concern is normally not whether such stories are newsworthy (that is up to you and your editor), but whether there is adequate factual support for the statements in your article. Thus, on the most basic level, our review involves identifying the individuals and companies at issue in an article and the factual support for statements about those people.   read more »

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven. 

When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn (who is represented by friend of the CMLP Marc Randazza). Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its trolling business.

It's certainly been eventful since then.

After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net.  Among the highlights (as well documented by Steve Green of the Las Vegas Sun):

● In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: righthaven.com itself.  And it's being auctioned right now!  Yes, the domain name of the country's self-described "pre-eminent copyright enforcer" can be yours!  (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.)  But hurry, the bidding closes on Jan. 6, just a few days away!   read more »

As we approach the new year, the staff of the Citizen Media Law Project had the opportunity -- thanks to a kind offer from Student Press Law Center Legal Fellow (as well as CMLP friend and blog contributor) Rob Arcamona -- to take a look back at the biggest issues in media law over the past year in an article for PBS MediaShift.  Jeff and Andy worked with Rob to identify 2011's top ten legal issues in professional and citizen journalism, so go check it out and see if you agree!

We hope you are all having a wonderful holiday season, and will see you again in 2012!

In a dramatic, last-minute effort to win the prize for “Most Obnoxious Law Enforcement Tactic of the Year,” the Los Angeles City Attorney’s Office has announced that many arrested Occupy L.A. protesters will, as an alternative to fines or jail, be given the opportunity to attend “free speech” school to learn what rights they don’t have.

Let’s reflect for a moment on this one, shall we? The City of Los Angeles wants to teach people about the First Amendment. I needed to check that they were actually talking about the First Amendment to the United States Constitution, because they have occasionally seemed to lack familiarity with that document. This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.” Yes, art cops.   read more »

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Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov. Paul LePage believes it’s none of the public’s business. When it comes to his meals, what’s eaten in the governor’s mansion stays in the governor’s mansion — the state’s Freedom of Access Act be damned.

“We have received requests for all grocery receipts from the Blaine House,” LePage wrote earlier this year. “I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

The Arkansas Supreme Court has reversed a murder conviction – and death sentence – in a case where one juror tweeted during trial, while another fell asleep. Both these problems, the court said, constituted juror misconduct requiring reversal and a new trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Dec. 8, 2011).

While the court said that the dozing juror alone required reversed of the conviction and sentence, the court added that the second juror's tweets also required a reversal.

The Supreme Court was particularly concerned about one of the juror's tweets, “Its over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror's Twitter feed – including, the court said, at least one journalist (with the online magazine Ozarks Unbound) – "had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court."

Dimas-Martinez's lawyers also pointed out that the tweeting juror tweeted during trial despite continued admonitions to the jury throughout the trial warning them not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet. (That one said, "Choices to be made. Hearts to be broken. We each define the great line.")   read more »

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 »

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 »

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 »

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 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 »

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 »

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 »

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 »

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 »

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 »

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 »

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 YoMammaSo.blogspot.com. 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 »