Brief for July 2012

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...

The CMLP, undeterred by the record-setting heat in Boston, has been hard at work this summer on a number of fronts. The halls of the Berkman Center are abuzz with summer interns, and our three - Kristin, Natalie, and Tabitha - have been churning out volumes of content for the CMLP, including blog posts, updates to our threats database, and new sections of our legal guide. Thanks again, team!

We are delighted to announce the expansion of our legal guide into some new topics and states. We have several new pages of content for our two newest states in the guide, Arizona and Missouri. We also added a special section on forming a news cooperative in California, and right of publicity pages for Florida, Pennsylvania, and Texas. We hope that these resources continue to be of use to those of you seeking a quick reference on legal issues related on online publication.

On the research and response side of the project, Jeff is getting ready for a trip to the Association for Education in Journalism and Mass Communication (AEJMC) conference in Chicago, where he will be discussing legal issues for journalism schools acting as news providers. Andy has been developing a number of resources for journalists planning to cover the party nominating conventions in Charlotte and Tampa late this summer. Much more on that to follow.

And throughout it all, the Online Media Legal Network has kept us busy as we connect more and more online journalism clients with attorneys. The network has now served over 200 clients with over 400 matters, and the size of the network has grown to almost 270 attorneys. If you are a digital media publisher with a legal issue, please feel free to request legal assistance. And if you are an attorney with experience in media, corporate, nonprofit, or intellectual property law, we need you! Please apply to join the network.

We hope you all are having a fun and restful summer, and look forward to sharing much more on the weeks and months ahead!

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

In a two-parter, Jeff Hermes examines free speech doctrine in light of the Supreme Court's decision on the Stolen Valor Act.
Falsity and the First Amendment: The U.S. Supreme Court Rules on the Stolen Valor Act
Stolen Valor, Part II: The Legislative and Executive Branches Take the Hint

Marie-Andrée Weiss explains what happens when free speech is subservient to the dignity of country leaders.
Lèse Majesté: 16th Century Censorship Meets 21st Century Law

Marc Randazza shows the substantive and procedural weaknesses of Nevada's anti-SLAPP law, and one place where the 9th Circuit may give it some collateral strength.
Nevada Needs A Revised Anti-SLAPP Statute, But The Ninth Circuit Gives Us Some Daylight

Natalie Nicol lays out why Washington's trafficking law fundamentally changes the duties of online content hosts.
Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

Tabitha Messick scrutinizes the peculiar claim of "defamation by omission."
Hey! You Defamed Me (By Not Saying Anything About Me)!

Mary-Rose Papandrea looks at whether Supreme Court precedent provides First Amendment protections for the in-house leakers of classified information.
Leakers and the First Amendment

Kristin Bergman looks at the balance of right of publicity and free speech, in the unique context of newspaper-based merchandise stores.
From Accident Photos to the White House: Contesting Photo Use in Newspaper Merchandise Sales

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

Scott v. WorldStarHipHop, Inc.
Posted July 17, 2012

Jacobson v. "Almostinnocentbystander"
Posted July 16, 2012

Hermès International v. Does
Posted July 12, 2012

Beaverton Grace Bible Church v. Smith
Posted July 10, 2012

Hoang v., Inc.
Posted July 6, 2012

Art of Living Foundation v. Does 1-10
Posted June 27, 2012

Lesher v. Does
Updated June 25, 2012

Bland v. Roberts
Posted June 25, 2012

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Other media law news and commentary...

Argentinian Court to Facebook: Delete Profile that Offended Local Business - 7/17/12

US Presidential Campaign Hit by DMCA Troll
TorrentFreak - 7/17/12

Popehat Sponsors Summer Bronze, Silver, and Gold In London. Want Chips With That?
Popehat - 7/16/12

ICE Shuts Down 70 Counterfeit Websites
Hillicon Valley - 7/12/12

Aereo Wins Preliminary Injunction Hearing
Slashdot - 7/12/12

Why It’s So hard for SCOTUSblog to Get Supreme Court Press Credentials
Poynter - 7/11/12

Judge Grants Injunction to Obama Campaign in 'Rising Sun' Trademark Case
Blog of Legal Times - 7/10/12

NYPD Put Couple On 'Wanted' Poster For Videotaping Police
Techdirt - 7/9/12

Boston College Must Release Records in IRA Oral-History Case, Appeals Court Says
Chronicle of Higher Education - 7/7/12

Verizon to FCC: Free Speech Trumps Net Neutrality Rules
CNET News - 7/3/12

Will the Americans with Disabilities Act Tear a Hole in Internet Law?
Ars Technica - 6/27/12

Miami Heat Owner Sues Google, Blogger Over ‘Unflattering’ Photo
Paid Content - 6/24/12

What the F***?
Huffington Post - 6/21/12

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The full(er) Brief...

"In a very fundamental sense, falsehoods and lies are integral to how we think as human beings. We see the world not only as it is, but as it might have been and as it could be. Without that capacity, people could do no more than react to stimuli; they could not compare the world they see to a different concept in their minds and exercise free will to choose what to do next. In that sense, all of human achievement is based upon the ability to believe in things that do not exist. That's different than claiming that one's own imaginings are true, of course, but (as Breyer's comments indicate) the fact that falsity is integral to our thought is expressed in its role as an important tool in our everyday lives: We lie to each other not only for gain but to show compassion; sometimes we lie to ourselves to make life bearable; we use lies as a mirror for truth. We all have a responsibility not to use falsehoods to harm others or frustrate public discussion, but determining whether falsehood inherently lacks value is a matter that is beyond judicial determination. For that reason, I believe the Court was on the right track when, instead of leaving false speech outside the First Amendment entirely, it applied First Amendment scrutiny and determined whether there were significant harms being prevented by the Stolen Valor Act."
Jeff Hermes, Falsity and the First Amendment: The U.S. Supreme Court Rules on the Stolen Valor Act. (See also Stolen Valor, Part II: The Legislative and Executive Branches Take the Hint.)

"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? 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 has been enforcing its lèse majesté law quite aggressively lately. . . . In September 2006, a military coup d’état deseated Prime Minister Thaksin Shinawatra and dissolved the Parliament. Since 2009, the Thailand public prosecutor has filed 12 lèse majesté suits against the Red Shirts, or persons suspected of supporting them. . . . Journalists and bloggers are also feeling the heat. . . . Interestingly, some republics criminalize lèse majesté. One of these is France. . . . The law was used in 2008 by then-President Nicolas Sarkozy . . . . Hervé Eon, a French citizen, was arrested in August 2008 as he was standing on the side of a road holding a placard card which read “casse toi pauv’ con[.]“ . . . . Eon was tried for having offended the French president, under article 26 of the French Press Law."
Marie-Andrée Weiss, Lèse Majesté: 16th Century Censorship Meets 21st Century Law

"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. From the Ninth Circuit's opinion: 'On October 20, 2009, Scott J. Ferrell, an attorney practicing law in Orange County California, sent “demand letters” to Metabolic Research, Inc. [ . . . ] and to General Nutrition Centers, Inc. [ . . . ]. The demand letters purported to notify the recipients that they had violated . . . the California Consumer Legal Remedies Act . . . , by falsely advertising the properties and potential benefits of a product named Stemulite . . . .' Ferrell demanded that Metabolic and GNC 'cease their false advertising of Stemulite' . . . , identify purchasers of the substance, provide refunds to them all, disgorge profits from Stemulite sales, and implement a corrective advertising campaign. A failure to do so would be met with a lawsuit. Metabolic did not cave. Instead, they filed a lawsuit for extortion against Ferrell and the putative class he claimed to represent. The suit also included claims for 'conspiracy to engage in racketeering, civil extortion, tortious interference with contract, and tortious interference with prospective economic relations, i.e., interfering with the agreement between Metabolic and GNC. Metabolic sought declaratory relief and punitive damages.' . . . Ferrell sought to have the case dismissed under the Nevada anti-SLAPP statute, Nev. Rev. Stat. § 41.660. However, the motion was doubly useless."
Marc Randazza, Nevada Needs A Revised Anti-SLAPP Statute, But The Ninth Circuit Gives Us Some Daylight

"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. . . . The question of whether [Washington Bill] SB 6251 could force Internet intermediaries to police third-party content is worth examining, because of the radical effect that imposing a monitoring requirement would have on the operation of sites that provide access to third-party content. . . . Currently, federal law does not clearly establish a general duty of Internet intermediaries to pass on the legality of material created or published by third parties. By its terms, section 230 of the Commnications Decency Act provides online service providers with broad immunity from liability stemming from third-party content. . . . Moreover, existing proscriptions for crimes of a sexual nature against minors appear to lack monitoring requirements. 18 U.S.C. § 2252, for example, outlaws the possession and distribution of child pornography. . . . If there is a duty on Internet intermediaries under section 2252 to act (if at all) with respect to third-party content, it arises only after the knowing discovery of material violative of the statute."
Natalie Nicol, Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

"Defamation by omission is closely related to defamation by implication, both types of 'indirect defamation.' If you say something and it defames me, that's direct defamation. If you imply something that defames me, that's indirect defamation. If you create that implication by leaving something out, that's defamation by omission. And while this makes some sense in theory, when you look deeper at the elements of defamation, things start to get squishy. . . . Most defamation by omission cases involve statements that name the plaintiff but allegedly omit certain information that could defuse a defamatory meaning. Thus, several cases that have found an actionable defamation by omission claim have hinged on the elements of falsity and defamatory meaning. . . . Overwhelmingly though, most courts have dismissed these types of claims because judges have not wanted to invade editorial decision-making. In the cases below, reporters also left out certain facts from their publications, but editorial discretion was given more weight than the possible inferences of defamatory meaning[.] . . . Although most plaintiffs would prefer that the press publish their version of events, interference in editorial discretion raises constitutional questions. In the 1974 case of Miami-Herald v. Tornillo, the Supreme Court held that "the choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials ‒ whether fair or unfair ‒ constitute the exercise of editorial control and judgment," and are protected by the First Amendment."
Tabitha Messick, Hey! You Defamed Me (By Not Saying Anything About Me)!

"At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes. . . . In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called 'graymail'). . . . An addition obstacle to any First Amendment claim is that all public employees with access to sensitive national security information are required to sign nondisclosure agreements in which they agree to submit any writings related to their employment to prepublication review. Thus, it would be easy to argue that employees who have signed such agreements have waived any First Amendment rights they might have otherwise enjoyed. . . . The Supreme Court has never addressed whether the First Amendment would protect leakers. Although in the Pentagon Papers case the Court certainly left open the possibility of criminal prosecutions against both the press and the leakers, the prosecutions against the leakers ended in a mistrial due to prosecutorial misconduct. In addition, in United States v. Aguilar, the Court stated that with respect to those who have voluntarily assumed the duty of confidentiality, 'government restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public.'"
Mary-Rose Papandrea, Leakers and the First Amendment

"Take a moment to explore your daily newspaper's webpage. You'll likely find recent articles and archives, video materials, job postings, classifieds, sidebars with advertisements, various forms of social media integration, and, most surprisingly (or perhaps not, considering the financial challenges journalism faces), a store. Newspapers including The Los Angeles Times, The New York Times, The Seattle Times, and The Hartford Courant have opened online storefronts that sell page and photo reprints, mugs, t-shirts, and more. One such newspaper used to be the North Adams Transcript, a daily paper in North Adams, Massachusetts that is owned by New England Newspapers. Because of this storefront, they are now defending a lawsuit that raises questions about how to evaluate the newsworthiness defense in privacy cases. In the context of such storefronts, what really matters - content or context? During July 2008, Thomas Peckham III was the victim of a drunk driving accident. His photo was taken by a photographer for New England Newspapers at the site of the wreck while he waved to family. This photo appeared as part of North Adams Transcript's coverage of the accident and reproductions of the image were made available on merchandise including "tee-shirts, coffee mugs, and mouse pads." In response, Peckham and his family filed a lawsuit against New England Newspapers, Peckham v. New England Newspapers . . . . Peckham alleged a violation of his right to privacy and negligent infliction of emotional distress based on the availability of these products."
Kristin Bergman, From Accident Photos to the White House: Contesting Photo Use in Newspaper Merchandise Sales

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