Week of May 1, 2009

Digital Media Law Brief

News and more from the Digital Media Law Project at Harvard's Berkman Center for Internet & Society.

Week of May 1, 2009

Welcome to the Citizen Media Law Brief, a weekly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website. You are receiving this email because you have expressed interest in the CMLP or registered on our site, www.citmedialaw.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.citmedialaw.org/newsletter/subscriptions.

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News from the Citizen Media Law Project...

This week, we launched a cool new page that aggregates everything on our site relating to section 230 of the Communications Decency Act ("Section 230"), the important federal statute that protects operators of websites and other interactive computer services from liability for publishing the statements of third-parties.  We've also added some detailed background on Section 230, links to our legal guide materials, and feeds showing recent legal threats from our database, CMLP blog posts, and news from other websites.  The page also has a list of outside resources and will soon host a compendium of Section 230's legislative history.

We hope that this new page will help citizen media and other online publishers conveniently access the diverse and ever-increasing materials and commentary on our site and across the Web relating to Section 230 and provide useful context for understanding the statute and the debates surrounding it.

You can check out the new page here.

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The latest from the Citizen Media Law Project blog...

Mary-Rose Papandrea examines the constitutionality of the FCC's approach to regulating indecent speech.
FCC v. Fox: Rethinking the Regulation of Indecent Speech in a Time of Pervasive Media

Matt Sanchez reports on a cautionary tale for dilatory government officials.
Blogger Wins $225,000 Settlement Over Public Records Delay

Marc Randazza lambasts a public official's attempt to silence a critical website.
Orlando Police Chief v. The First Amendment

Eric Robinson discusses the history behind state laws prohibiting display of marked ballots.
Blogger Threatened Over Ballot Photo As 19th Century Laws Meet 21st Century Technology, Sensibility

Marc Randazza lauds a recent Court of Appeals decision ruling that allegedly defamatory statements must be read in context.
If the Speech Can't Be Taken Seriously, It Can't Support a Claim For Defamation

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Recent threats added to the CMLP database...

King County, WA v. Sharkansky
Posted April 29, 2009 

Too Much Media, LLC v. Hale
Posted April 29, 2009

Demings v. Harris
Posted April 28, 2009

Ecommerce Innovations v. Doe (Subpoena)
Posted April 27, 2009

New York v. Sherwood
Posted April 26, 2009

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Other citizen media law news...

Judge Shuts Down NewWest.Net Twitter Feed from Yellowstone Club Trial
NewWest.Net - Thurs. 4/30/09

Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?
Volokh Conspiracy - Thurs. 4/30/09

Tweetmark Infringement
Likelihood of Confusion® - Thurs. 4/30/09

Why Did the White House Choose Attribution and not Public Domain?
Creative Commons - Wed. 4/29/09 

Public Booted From DVD Copying Trial Over 'Secret' CSS Code
Wired/Threat Level - Mon. 4/27/09

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The full(er) Brief...

Earlier this week the Supreme Court handed down its eagerly awaited decision in FCC v. Fox.  In a 5-4 vote, the Court rejected Fox's argument that the Federal Communication Commission had violated the Administrative Procedure Act (APA) by failing to give sufficient justification for its new policy banning 'fleeting expletives' on broadcast radio and television.  Although the administrative law issues raised in the case are interesting (namely, how much of an explanation an agency needs to give when it changes its existing policy), it is much more fun to try to figure out whether the Court would hold the fleeting expletives policy constitutional - or even whether the Court would uphold any part of the FCC's indecency regime. At the end of his opinion, Justice Scalia predicted that the Court will have to address this issue soon, and perhaps even in this very case when it comes back up to the Court. . . . It is possible that even without Justice Stevens, the Court would still strike down the FCC's expansive indecency regulations. Justice Kennedy, who joined Justice Scalia's majority opinion in FCC v. Fox, might also decide that the FCC regulations are unconstitutional. Justice Kennedy is as fickle as the wind, but he has from time to time been a great defender of free speech rights. Justice Kennedy could potentially join Justices Souter (or his replacement), Breyer, Ginsburg, and Thomas to strike down the FCC's indecency policy entirely. . . ." 
Mary-Rose Papandrea, FCC v. Fox: Rethinking the Regulation of Indecent Speech in a Time of Pervasive Media

"In a nice cautionary tale for government agents who refuse to take public records requests seriously, Washington state political blogger Stefan Sharkansky won a $225,000 settlement last week from a county government that took two years to comply with his request for information.  The settlement ended Sharkansky's lawsuit against King County over officials' improper delay in producing documents related to the state's 2004 gubernatorial election. Sadly, the victory is bittersweet.  Sharkansky says the documents reveal that King County officials counted hundreds of ineligible ballots in an election decided by 133 votes.  If Sharkansky is right, timely production of the records could have had a significant impact on an election that took two recounts and a trial to settle. Nonetheless, Sharkansky's story is a great example of how bloggers can contribute to the public dialogue.  Sharkansky saw a hole in news coverage of an important event and took it upon himself to fill it.  Doing so didn't require any specialized journalistic knowledge, save for a few basics on freedom of information that one can easily acquire in a quick glance at CMLP's Legal Guide. . . ."
Matt Sanchez, Blogger Wins $225,000 Settlement Over Public Records Delay

"There aren't too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn't done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical. Not anymore. The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office. . . . Winthrop and Demings both ought to be forced to attend a remedial course in Constitutional Law. The First Amendment requires politicians and other public figures to have a reasonably thick skin and endure a substantial amount of harsh criticism. Unfortunately for Demings, she seems to lack that thick skin, and didn't seem to get the best advice. Winthrop really should have known better. My prediction: Demings will eventually be forced to back down. I can't really see anyone being stupid enough to file a suit like this. Wait, scratch that, I've seen many lawyers dumb enough to file a suit like this. Despite Winthrop's ill-advised statements to the media, I'm not betting that he is one of them. . . ."
Marc Randazza, Orlando Police Chief v. The First Amendment

"As noted in the Documenting Your Vote section of CMLP's Legal Guide, several states have laws prohibiting voters from displaying their ballots to someone else. In Missouri, an anonymous blogger who sponsored a fake campaign for St. Louis Blues hockey player T.J. Oshie to become mayor of O'Fallon, Missouri posted a picture of a ballot with Oshie's name written in. (Although the blog remains, the photo -- available here -- has been removed.) This is an apparent violation of Mo. Rev. Stat. § 115.637 (14), which prohibits a voter from 'allowing his ballot to be seen by any person with the intent of letting it be known how he is about to vote or has voted.' Violation is a a class-four election offense, punishable by up to a $2,500 fine and/or up to a year in jail. . . . In this 'let it all hang out' age, when it seems that everyone is posting even the most intimate details of their lives online, a law prohibiting someone from posting a picture of their own ballot may seem quaint and silly. But the concern that led to the enactment of these laws in the 19th century -- the integrity of elections -- remains important in the 21st, even in the face of new technologies. . . ."
Eric Robinson, Blogger Threatened Over Ballot Photo As 19th Century Laws Meet 21st Century Technology, Sensibility

"In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn mere hurt feelings into a defamation suit payday. Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit. Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff's reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning. . . .
Marc Randazza, If the Speech Can't Be Taken Seriously, It Can't Support a Claim For Defamation

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Last updated on May 1st, 2009

   
 
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