Brief for October 2011

Welcome to the Citizen Media Law Brief, a monthly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website, as well as upcoming events and other announcements. You are receiving this email because you have expressed interest in the CMLP or registered on our site, 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

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News from the Citizen Media Law Project...

September was a busy month for the folks at the CMLP. We co-produced the Online News Association's Law School for Digital Journalists (session recordings to be available soon!), attended the iLaw conference here at the Berkman Center, and sent Andy off to Chicago for the Block by Block conference hosted by the Reynolds Journalism Institute. At these events we enjoyed great discussions with journalists, students, and lawyers about the legal landscape for online journalism today. Somehow, amidst all of this we found the time to continue our work on our legal guide, threats database, and the Online Media Legal Network. We even released a special addendum to our legal guide addressing the rights of those reporting on the #occupywallstreet protest.

October promises even more excitement! Our big event for this month is the Center for Sustainable Journalism's “Media Law in the Digital Age” event, held at Kennesaw State in Georgia. This promises to be a full day of high-level discussion about legal issues facing journalists today, including special panels addressing recording in public, use of social media, and apps and wireless platforms. Registration is still available, but going fast. Sign up here today!

In December, our Online Media Legal Network will be celebrating its second anniversary. To mark the occasion, we're hosting a Berkman Tuesday Luncheon highlighting our achievements and discussing our plans for future growth. We are always trying to grow the OMLN, so if you are an attorney with experience in media law, intellectual property, or business issues for start-up ventures, please consider applying to join.

Finally, we have a new Director, even if he's been around the place for a while! Jeff Hermes, formerly the Assistant Director of our project, has officially stepped into the shoes of the CMLP's first director and co-founder, David Ardia. Jeff is thrilled to take over the leadership of the CMLP and the Online Media Legal Network at this exciting point in its development, and looks forward to continuing and building upon all of David's great work.

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

The staff of the CMLP released a special guide on citizen journalism and the ongoing #occupywallstreet protest.
A Citizen's Guide to Reporting on #OccupyWallStreet

Arthur Bright explains how Al Jazeera's use of Creative Commons can help Americans access news from the Middle East. Al Jazeera's Laudable Embrace of Creative Commons

Itai Maytal tells the tale of the strange case from Minnesota, where a blogger was punished for telling the truth.
$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment

Justin Silverman explains how one person's "snooping around" can be another's "defending againt police misconduct."
Tell Us, Judge Posner, Who Watches the Watchmen?

Timothy Cornell recaps a Ninth Circuit case where a conviction for wearing a phony military medal was upheld under First Amendment challenges.
'Act' of Valor: Ninth Circuit Decides First Amendment Does Not Protect People Who Sport Phony Medals

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Threats recently added to the CMLP database or updated...

Darm v. Craig
Posted October 12, 2011

Milwaukee Police Dept. v. Clint Fillinger
Posted October 6, 2011

Admission Consultants, Inc. v. McGraw Hill Publishing Co.
Posted September 29, 2011

Davis v. Avvo, Inc.
Updated October 11, 2011

Admission Consultants, Inc. v. Google
Updated September 29, 2011

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Other media law news and commentary...

Federal Court to Let Cameras Record Some Civil Trials for Broadcast on Internet and TV Metro Desk - Thurs. 10/6/11

Has FCC Policy Hurt Journalism?
Suffolk Media Law - Thurs. 10/6/11

Public Records Helped Free Texas Man
National Freedom of Information Coalition - Wed. 10/5/11

Failure to Delete Third Party Comments Supports a Malice Finding in Defamation Case
Technology & Marketing Law Blog - Sun. 9/25/11

Professor Cuts Out Insult to Obama on Students' 'Free Speech Wall' with Box Cutter
Foundation for Individual Rights in Education - Fri. 9/23/11

FOIA Info Reveals That BART Shut Down Cell Service With One Email To Telco Partner
Techdirt - Thurs. 9/22/11

Headlight Flashing Faces Test as Free Speech in Florida
USA Today - Mon. 9/19/11

Americans Spend Just a Fraction of Online Time with News Compared to Social Media
Poynter - Mon. 9/12/11

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The full(er) Brief...

"We at the Citizen Media Law Project have taken great interest in the ongoing "Occupy Wall Street" protest in New York. Much of what we know about the protest has come from independent reporters and citizen journalists covering the story from the ground. Knowing this, we are alarmed to hear reports of police arresting reporters during the protest. This, of course, could greatly discourage press coverage of this story. In order to encourage citizen reporting from the ground in New York, and to dispel the uncertainties as to the rights of those covering the protest, we have created this special question-and-answer guide regarding covering the protest in New York as a special addendum to our CMLP Legal Guide."
CMLP Staff, A Citizen's Guide to Reporting on #OccupyWallStreet

"During the Arab Spring uprisings in Tunisia and Egypt, [Al Jazeera English] was the place to go for news. You couldn't find decent coverage in the US press; the only Western-based, English-language outlet to do the Arab Spring justice was the BBC – where, incidentally, a whole lot of AJE employees used to work. But Al Jazeera reporters were on the ground and in the thick of it nearly from the get-go in Tunis, Tahrir Square, and Tripoli, providing a clear, no-spin picture of what was happening. . . . Of course, you'll have to stick to Al Jazeera's online offerings if you're in the US. US cable providers have proven sadly reluctant to put AJE on the air. . . . It is the combination of the uniqueness of Al Jazeera's coverage, the importance of the Arab Spring, and the nearly complete inability to watch AJE in the US that makes Al Jazeera's commitment to Creative Commons so important, laudable, and just plain smart."
Arthur Bright, Al Jazeera's Laudable Embrace of Creative Commons

" In a recent ruling, the Minnesota District Court in that case refused to set aside a jury verdict awarding the plaintiff $60,000 in damages against a blogger who posted truthful information about him that contributed to his losing his job. In other words, although the jury found the statement at issue was truthful and therefore not defamatory, they still ruled in favor of the plaintiff under a claim of "tortuous interference with employment contracts." This ruling seems on its face to be a flagrant violation of a constitutional precept and a prime candidate for reversal on First Amendment grounds. Yet this strange decision out of Hennepin County, Minnesota, merits a closer look. "
Itai Maytal, $60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment

" In what is now their widely publicized exchange, U.S. Seventh Circuit Judge Richard Posner took attorney Richard O'Brien to task last week for arguing that the Illinois eavesdropping statute should be stricken as unconstitutional . . . . The statute criminalizes the audio recording of non-consenting parties, even if they are public officials conducting official business in public view. . . . During last week's arguments, the critical and often snarky judge not only said that an increased surveillance of public officials is a "bad thing" but also expressed concern about "snoopers" interfering with investigations courtesy of curiosity and a tape recorder. Posner's apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner's comments smack of condescension for journalists. . . . Is this a bunch of needless snooping as Posner suggests? No, this is a matter of protection that brings to mind the answer to an age-old question: 'Quis custodiet ipsos custodes?' "
Justin Silverman, Tell Us, Judge Posner, Who Watches the Watchmen?

" The First Amendment's protection of phony heroes makes murky doctrine. The Ninth Circuit has held that people who simply brag about their medals are protected under the First Amendment because that is an act of pure speech, which gets a higher standard of protection. . . . Wearing a phony medal puts the imposter into a different category, the Ninth Circuit held [in U.S. v. Perelman]. Citing the old draft card burning case of U.S. v. O'Brien, . . . the Ninth Circuit said the government had the right to regulate expression if it could show that it furthers an important government interest, that the interest is unrelated to the expression, and that the restriction is no greater than what is required to achieve the government interest. The government has the right to restrict people from wearing military uniforms, the court said, so the interest of preserving the government's interest in honoring heroism is important and passes the rest of those tests. "
Timothy Cornell, 'Act' of Valor: Ninth Circuit Decides First Amendment Does Not Protect People Who Sport Phony Medals

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