Category: First Amendment

3

Blogger sued for trade libel

From the Boston Globe:

A coastal Maine blogger who criticized the state’s tourism office has been hit with a lawsuit seeking potentially more than $1 million in damages for allegedly making false statements and posting on his website, Maine Web Report, images from proposed tourism advertisements a New York agency prepared for Maine officials.

. . .

The advertising agency is suing Dutson on three counts: copyright infringement, defamation, and trade libel/injurious falsehood. It seeks statutory damages of $150,000 for each of six images it alleges were infringed upon, as well as unspecified punitive damages and legal fees.

This suit has various elements, and it’s hard to say how much of it would go forward in the absence of the (more conventional) copyright claims. This is not purely a trade libel suit based on blog content. But it contains that claim, and as such, it’s a sobering data point. In particular, if these kinds of suits (trade libel over blog content) become a broader trend, that will have serious effects on blogs. After all, a good deal of the blogosphere is dedicated to criticism of some industry or other. There is the classic “I had a bad experience with X airline” post; there are series of posts criticizing a business or industry; and so on.

Trade libel requires (as far as I’m aware, in every jurisdiction – though I’m not an expert) actual falsehood, so that is a potential defense. But even a successful defense can be costly and time-consuming and stressful, and I suspect that few bloggers would want to risk a lawsuit. Thus, the real effect of such lawsuits is the chilling effect — that bloggers will become more hesitant in their criticisms. This may be a good thing in some cases — Heaven knows thablogs often generate more heat than light — but is certainly not an unalloyed good.

In the mean time, let me say that my New York trip has been great. Loved the food. Even the subways smelled nice. Please don’t sue me, Mayor Bloomberg. Or the blog. I was just kidding when I complained about that stale bagel. And I deleted that post, anyway. What post? I didn’t see any post about a stale bagel. Did you, guys? Didn’t think so. Carry on. Nothing to see here.

17

Internet Censorship and the US Military

marines1a.jpgIf you learned that certain blogs and websites are being censored for having political content, you’d say: “That’s no surprise. China does it all the time.” Well, it’s not just China . . . the US Military appears to be taking some lessons from the Chinese government. A few days ago, Wonkette discussed an email it purportedly received from a soldier in Iraq complaining of Interent censorship. The email stated:

Just to let you know, the US Marines have blocked access to “Wonkette” along with numerous other sites such as personal email (i.e. Yahoo, AT&T, Hotmail, etc), blogs that don’t agree with the government point of view, personal websites, and some news organizatons. This has taken effect as of the beginning of February. I have no problem with them blocking porn sites (after all it is a government network), but cutting off access to our email and possibly-not-toeing-the-government-line websites is a bit much.

Another email posted recently on Wonkette is even more troubling:

Anyway, I had a few minutes today and thought I’d look and see what else was banned on the Marine web here. I think the results speak for themselves:

* Wonkette – “Forbidden, this page (http://www.wonkette.com/) is categorized as: Forum/Bulletin Boards, Politics/Opinion.”

* Bill O’Reilly (www.billoreilly.com) – OK

* Air America (www.airamericaradio.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* Rush Limbaugh (www.rushlimbaugh.com) – OK

* ABC News “The Note” – OK

* Website of the Al Franken Show (www.alfrankenshow.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* G. Gordon Liddy Show (www.liddyshow.us) – OK

* Don & Mike Show (www.donandmikewebsite.com) – “Forbidden, this page (http://www.donandmikewebsite.com/) is categorized as: Profanity, Entertainment/Recreation/Hobbies.”

If this email is true, I find it to be quite troubling. It is disturbing enough that the government is censoring political views from US soldiers. It is ironic that we are denying democratic discourse to our troops who are busy attempting to spread democracy in the Middle East. And it is really alarming if only certain political viewpoints are being censored while others are not. Anyway, this story just seems too outrageous to be true, and I sure hope it isn’t.

1

Government Issue Porn

agReport.gif It’s no surprise that the Attorney General is turning up the heat on pornography. (Christine started us talking about DOJ recordkeeping rules last week, and the Google issue bubbled up a few weeks before.) Porn is an anathema to the GOP’s base, and with few supporters (other than those card carriers over at the ACLU and the 34 million (soon to be 40 million) anonymous consumers hunkered down behind their monitors), such attacks are an easy way to satisfy social conservatives. Perhaps Alberto Gonzalez will take the same approach as Reagan’s AG, Edwin Meese: preparation of a Porn Report. The Attorney General’s Commission on Pornography Final Report (available, at least in part, here) was more than a condemnation of pornography; it was a complete reference volume on the field. History, law, a feminist critique of objectification – everything was there in one intimidating tome. To prove that world was filled with truly porny porn, the Commission produced serious evidence: loads of material extracted from genuine dirty books and magazines. This was one racy government document; I can only imagine the lines at those designated library repositories. Sales must also have been solid. Just as happened with The Starr Report, a commercial publisher stepped in and republished the fat government document. (The flashy book cover, to the right, is the reprint.)

The moment is ripe for a new update – Porn 2K, perhaps – but times and technology have changed a great deal in the interim. Nowadays, a report need not take the form of a paper book that gathers dust in the Government Document Collection. Like many government publications, it can be distributed on the web – complete with hypertext links to sources. Imagine the manifold ways that a Gonzalez Report might show the nature and extent of pornography in America. If the Meese Report soldiered through, making its case through the use of dry text, a new hi-tech report could provide readers with link after link to graphic, vulgar, offensive, genuinely nasty smut. And the nature of this smut has changed! Pornography, like everything else, has gone the way of the celebrity. So what atrocities might be exposed in this report?

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1

Criticizing Referees and Judges

The conclusion of the collegiate and professional football seasons has brought about more than the usual number of questionable — and outright blown — calls. In response to Sunday’s replay-assisted overturning of a Pittsburgh interception, the NFL issued a statement informing fans that the call was wrong. The play should have been called — as it originally was — an interception, and the Steelers (likely) would have won the game without the drama that occurred after that point.

The controversies bring up a subject on which I plan to write this summer — the ways in which sports and the legal profession can learn from the ways each deals with criticisms of those who apply the rules. The differences are extensive and interesting.

In terms of actual independence, judges are much more insulated than are sports officials. Even in the states, where 80% of judges are elected, often terms are long and few judges have re-election challenges to worry about. (There are exceptions, of course.) And the federal system’s tenure and salary protection provide significant independence beyond the level enjoyed by state judges.

Sports officials, by contrast, may be fired more or less at will (though I am not familiar with the specifics of the NFL’s policy and invite comment from those who are). Sure, fans do not play much of a role in deciding whether to keep a referee employed, but when a significant error like this one occurs, some repurcussions are likely. At the least, Morelli will not work any more games this season, and he could even be fined, according to ESPN’s Chris Mortensen. On top of this, officials in the NFL and all amateur athletics are part-timers who have to hold down real jobs to earn a living. It is conceivable that officials’ dependence on other forms of income could lessen their ability to be independent in the face of criticism from employers, clients, etc.

In terms of criticism, though, it is judges who must endure more from the participants. Both sports officials and judges hear plenty of criticism from the public, of course, and sports officials must hear the criticism even when working. (“Kill the umpire,” etc.) But sports leagues have been draconian in prohibiting comment by players and coaches about officiating blunders. After Sunday’s Steelers-Colts game, for example, Steeler Joey Porter said, “I know they wanted Indy to win this game; the whole world loves Peyton Manning. But come on, man, don’t take the game away from us like that.” It is likely that he will be fined, even though the NFL agrees that the call was a mistake. (Porter, of course, accused the referee of bias and not just blowing the call, but there are plenty of examples where fines have been assessed merely for calling attention to officiating mistakes. The best quote on the subject is from Jim Finks, New Orleans Saints General Manager, who responded to a question about calls during one of his team’s games, “I’m not allowed to comment on lousy no good officiating.”

The legal profession, too, attempts to squelch free speech criticizing judges, but recognizes that First Amendment principles limit the extent to which parties, lawyers, politicians, and the public can be restricted.

My question is predominantly a practical one: Do restrictions on criticism of sports officials add to their respect? Does a sports league, or do individual officials, gain anything when the league prohibits a coach from saying that a particular official blew a call when replay after replay makes that fact clear to everyone? Is the speech ban prophylactic, in that the real goal is to eliminate comments relating to potential bias or limit violence? What, then, explains the leagues’ apparent acceptance of on-field criticisms of officials (e.g., Marv Levy: “You over-officious jerk!”)?

6

Whistleblowing, Journalist Privilege, and NSA Surveillance

whistleblowing1a.jpgThe DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:

“The leaking of classified information is a serious issue. The fact is that al-Qaida’s playbook is not printed on Page One and when America’s is, it has serious ramifications,” Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.

This probe will raise several important questions in the months to come.

First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don’t want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President’s actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there’s another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?

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1

Update on the Seigenthaler Wikipedia Defamation Case

Wikipedia.jpgPaul Secunda over at Workplace Prof Blog brings news about an update to the Seigenthaler Wikipedia defamation case I blogged about recently. In the case, an anonymous individual wrote in Seigenthaler’s Wikipedia entry that Seigenthaler was involved in President Kennedy’s assassination. Seigenthaler complained that he was unable to track down the identity of the alleged defamer.

Enter Daniel Brandt, who earlier had complained about information in his Wikipedia profile he claimed was false. I blogged about Brandt’s case a while back. According to the New York Times:

Using information in Mr. Seigenthaler’s article and some online tools, Mr. Brandt traced the computer used to make the Wikipedia entry to the delivery company in Nashville. Mr. Brandt called the company and told employees there about the Wikipedia problem but was not able to learn anything definitive.

Mr. Brandt then sent an e-mail message to the company, asking for information about its courier services. A response bore the same Internet Protocol address that was left by the creator of the Wikipedia entry, offering further evidence of a connection.

Paul Secunda nicely explains what happened next:

Chase later resigned from his job because he did not want to cause problems for his company. Seigenthaler has urged Chase’s boss to rehire him, but so far Chase is still without a job.

Oh, the wrath of bloggers!

More details at the NY Times article and at Paul Secunda’s post.

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11

Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

jennifer-aniston1a.jpgpaparazzi1a.jpgJennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used a high-powered telephoto lens to photograph her at her home. Aniston’s lawyers claim the photos were taken from over a mile away, but Brandt claims that this would be “impossible . . . unless you have something from NASA.”

Jack Chin at CrimProf expresses disbelief at the case:

Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a “reasonable expectation of privacy,” right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.

This case is an example of the application of California’s Anti-Paparazzi Act. In a previous post about the Act, I observed:

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10

Fake Biographies on Wikipedia

Wikipedia.jpgMost of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960′s. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.

In a USA Today editorial Seigenthaler begins by quoting the false bio and then writes:

I have no idea whose sick mind conceived the false, malicious “biography” that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable. . . .

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy’s administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers.com.

Seigenthaler explains how he tried to track down the person who posted the information:

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17

Is Anonymous Blogging Possible?

anonymity2.jpgHoward Bashman at How Appealing muses whether anonymous blogging is really possible:

These days, however, most users of the internet understand that every bit of information communicated electronically leaves electronic fingerprints that can be used to trace the source of the information, even if the source hoped to remain anonymous. To be sure, there are ways to anonymize emails and other forms of communication, but they tend to be complicated to use and difficult to figure out. . . .

I doubt whether anonymous blogging is possible. It surely isn’t possible if the blogger conducts email correspondence with others and fails to mask his or her internet protocol address. Plus, even the act of logging on to a blogging service provider, such as TypePad or blogger, leaves electronic fingerprints, and I’d have to assume that “UTR” had a TypePad subscription, enabling someone to subpoena the blog owner’s identity and/or payment information. So, to you anonymous bloggers out there, have fun, but don’t fool yourselves into thinking that simply by not providing your identity you are doing an effective job of remaining hidden.

I generally agree that it is very difficult to blog anonymously, but it is certainly possible if a person is careful.

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1

Journalist Privilege and Law Enforcement Leaks

freespeech1.jpgIn a very interesting case, U.S. District Court Judge Rosemary Collyer recently held a Washington Post reporter in contempt of court for not revealing the source of a leak in the investigation of Wen Ho Lee. [Click here for the court's opinion.] The case involves a civil suit by Lee against a number of federal agencies for violating the Privacy Act of 1974, 5 U.S.C. § 552a. Lee was a scientist employed by the Department of Energy and was being investigated by the FBI for espionage for China. Ultimately, the espionage case collapsed and Lee pled guilty to one count of mishandling computer files.

During the investigation, Washington Post journalist Walter Pincus published a few articles about the Lee investigation, identifying him by name and discussing extensive details of the investigation, including “his and his wife’s employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests.” Pincus indicated that anonymous government sources supplied him with the information.

Lee has sued the government for violating the Privacy Act, which prohibits government agencies (including the FBI) from disclosing records about an individual. Lee sought from Pincus who his sources were. Pincus raised the journalist privilege, claiming he should be sheilded from being forced to disclose.

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