Thursday, September 30, 2010

UPDATE: Hulkster's Sweet Smackdown of Cereal-maker

Hulk Hogan has won the dubious award a record ...Image via Wikipedia
Former World Federation Wrestling champ Hulk Hogan apparently had Post Foods on the ropes, as the "Hulkster" (nee Terry Bollea) has settled his trademark infringement suit against the proud producer of Cocoa Pebbles cereal, the St. Petersburg (Fla.) Times reports.

In Terry Bollea v. Post Foods LLC et al. (Case No. 8:10-cv-01161), filed last May in the U.S. District Court for the Middle District of Florida, the plaintiff alleged that the character of an oversized blond wrestler named Hulk Boulder depicted in a tv ad for Cocoa Pebbles featuring a wrestling match with Flintstones character Bam Bam misappropriated his image by resembling him and using a stage name under which he wrestled before WWF impresario Vince McMahon convinced him to Irish-up his name to Hulk Hogan. [See "TUOL" post 6/1/10.]

Terms of the parties' settlement agreement are confidential, though part of the lawsuit's resolution includes the defendant's agreement not to show the commercial anymore.  It's safe to have breakfast again.
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Public Criticism of News Media at a Gallup

"If the Election Were Held Today"......Image by Tony the Misfit via Flickr
A record high 57 percent of Americans distrust the news media to report the news fully, according to a Gallup Poll survey this month.

As compiled by trade publication Editor & Publisher, the random digit-dial sampling of 1,019 adults found that 48 percent of those queried believe the news media is too liberal, compared to 15 percent who consider it too conservative. Lower-income, less-educated respondents were more trusting of news media accounts than their higher-educated, better-heeled counterparts.
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Tuesday, September 28, 2010

UPDATE: Judge Says Ex NY Post Editor's Harassment Claim May Proceed

I hate the New York PostImage by theogeo via Flickr
In Sandra Guzman v. News Corporation et al. (Case No. 09-cv-9323), U.S. District Judge for the Southern District of New York Barbara Jones this week ruled the plaintiff presented sufficient factual allegations to proceed with her hostile work environment sexual harassment and retaliatory discharge claims against The New York Post, where she worked for six years until she was terminated in September 2009. (See "TUOL" post 11/11/2009.)

Judge Jones heard arguments on the Rupert Murdoch-owned tabloid's motion to dismiss Guzman's lawsuit on grounds that the First Amendment permits it to publish whatever it pleases and that Guzman never protested about the alleged hostile work conditions during her tenure at the daily.  The court was amenable to the former argument, but concluded that the plaintiff's case could proceed because her 38-page complaint adequately plead a hostile work environment existed at the paper.
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'Heady' Film Doesn't Violate Maryland Wiretap Law

My Helmet cameraImage by ebel via Flickr
Hartford County (Md.) Circuit Court Judge Emory A. Pitt, Jr. has ruled that a man who used a motorcycle helmet camera to film a state trooper issuing him a traffic citation did not violate the state's wiretap law (Md. Code Ann. Courts & Judicial Proceedings sec.10-402).

Story Lab, a blog written by The Washington Post, reported that defendant Anthony Graber, a Maryland Air National Guard staff sergeant and computer systems engineer who faced a 16-year jail term, did not run afoul of the wiretap act when he posted the video on YouTube of the trooper stopping him for speeding on Interstate 95.

 Judge Pitt said the state could not sustain its wiretap case against Graber because the trooper performing his duties in public did not have a reasonable expectation of privacy, a necessary element of the offense. Judge Pitt also dismissed the charge against Graber of possessing a device (motorcycle helmet cam) whose primary purpose was intercepting oral communications.  The defendant must still answer for the alleged traffic infractions.

Graber is not the first filmmaker whose video ideas come off the top of his head.

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Monday, September 27, 2010

Sacre Bleu! Another European Court Sticks It to Google

Google France signImage by nitot via Flickr
Mountain View, Calif.-based uber-search engine Google and chief executive Eric Schmidt have wound up on wrong end of a defamation lawsuit in a French court, Agence France Presse ("AFP") reports.

The court ordered Google to pay nominal damages of one euro ($1.34) and to take remedial measures to ensure its conduct not be repeated.  Google was also assessed 5,000 euros ($6,719) of the plaintiff's court costs, which the company is expected to appeal. 

Google's woes involve its Suggest function, which offers options when terms are typed into it. The case, which  is reported at the Web site (Tribunal de Grande Instance de Paris 17eme chambre Judgment du 8 septembre 2010 M. X.../Google Inc., Eric S. et Google France), involved a plaintiff convicted of corruption of a minor appealing a three-year prison term, according to AFP.  When the plaintiff entered his name, the Google Suggest function purportedly elicited the words "rapist" and "satanist." Linkage of the plaintiff's name to those terms was deemed defamatory by the court.

Google is arguing that it did not initiate  those words in its Suggest function, but rather, the function yields the most common terms associated in the past with the term entered in the search. Google has previously found other European courts unfriendly, such as the Italian court that found Google liable in a criminal invasion of privacy matter (See"TUOL" post 2/25/2010).
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UPDATE: Paris Hilton Gets More Than a Card from Hallmark in Privacy Lawsuit

Mug shot of Paris Hilton.Image via WikipediaHotel heiress, reality tv star, and sometime drug bustee Paris Hilton has settled her misappropriation of publicity (invasion of privacy) lawsuit with Hallmark Cards, pending court approval.

As first reported by The Hollywood Reporter (, the parties reached a settlement, the terms of which were not disclosed pursuant to a confidentiality agreement, regarding the dispute, which involved a greeting card that featured a photo of Hilton's head [not the South Carolina resort] on a cartoon body. (See "TUOL" post 9/2/2009).  Hilton sued the Kansas City, Mo.-based greeting card giant in U.S. District Court for the Central District of California in 2007 (Case No. 2:07-cv-05818) alleging the privacy claim, along with trademark infringement and false designation under the Lanham Act.  Hallmark counter-sued, bringing an anti-SLAPP motion alleging First Amendment violations.

The U.S. Circuit Court of Appeals for the Ninth Circuit tossed both the anti-SLAPP claim and Hilton's trademark infringement claim, but allowed the privacy count to proceed [Docket No.  08-55443]. Trial was slated for December before the parties reached their accord.

The greeting card that inspired the lawsuit had Hilton as a waitress warning a male customer: "Don't touch that, it's hot." The customer replies: "What's hot?" Hilton's rejoinder: "That's hot!" Inside, the greeting card reads: "Have a smokin' hot birthday."  Hilton registered the expression "That's Hot!" with the U.S. Patent & Trademark Office.  Hallmark's transformative use argument was rejected by the three-judge Ninth Circuit panel, who sent the case back to the trial court to hear the privacy claim.

"TUOL" considers Paris Hilton's likely favorable resolution of her Hallmark lawsuit a publicity interlude to tide us over until the next coke bust or sex tape release. Not great jurisprudence, but more fun than some of the cases the Supreme Court will begin hearing next month.

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Friday, September 24, 2010

RTDNA: Minority Broadcasting Jobs Decline as Minority Population Climbs

television transmission towerImage by woodleywonderworks via Flickr
Results of the latest annual Hofstra U./Radio Television Digital News Association ("RTDNA") study released this week [] revealed that 20.2 percent of television news departments staffers are minorities and 5 percent of radio news jobs are minority-held, at a time when  minorities make up 35.3 percent of the nation's population.

In the previous year's study, the minority employment figures for tv and radio were 21.8 percent and 8.9 percent, respectively. The chief decline in minority representation occurred among Hispanics working in television, which dropped to 5.8 percent from 8.8 percent in 2009.

The nation's demographics are changing much faster than the composition of management at tv and radio stations, as illustrated by the study, which found 94.7 percent of tv station general managers were White, as were 92 percent of general managers at radio stations.

Television programs are being brought to you "in living color" as NBC used to tout, but apparently, not by people of color.
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Thursday, September 23, 2010

Bad Day for Southern Journos with Layoffs at Two Dailies

The Florida Times-UnionImage via Wikipedia
The continuing loss of advertising lineage and shriveling circulation among newspapers means more layoffs in the newsroom.

Trade publication Editor & Publisher reports that The Florida Times Union, owned by Augusta, Ga.-based Morris Publishing Group, this week laid off 6 percent of its work force, or 26 workers, a third of whom were editorial staffers. Editorial cartoonist Ed Gamble's position was one of eight newsroom slots eliminated. Morris Publishing Group last spring emerged from Chapter 11 bankruptcy.

The news isn't any better at The Charlotte (N.C.) Observer, which underwent its second round of layoffs this year. The paper this week eliminated 20 positions through layoffs and voluntary buyouts, and is mandating that remaining workers take an unpaid week-long furlough in the fourth quarter of 2010.  In January, the paper trimmed 11 newsroom jobs among 25 staff cutbacks overall.

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AGs Have Adult Services Ads in Their Sites

Village VoiceImage by Thomas Hawk via Flickr
Buoyed by Craigslist's decision earlier this month to discontinue accepting adult services ads, attorneys general from 21 states are pressuring Village Voice Media-owned to follow suit.

According to Dallas Morning News and Associated Press stories, Connecticut AG Richard Blumenthal and Texas AG Greg Abbott both signed on to a letter urging the company to oversee their personal and paid classified ads for suspicious listings and to discontinue free adult online listings. Blumenthal alleges has pocketed $17.5 million from "prostitution ads."

Thus far, Village Voice Media is defiant, claiming only 6 million of its 58 million ads over the past two years involved adult services and that has only testified in five cases involving the alleged abuse of underaged individuals.

"TUOL" believes the AG pressure tactics mask a First Amendment battle the authorities suspect they cannot win. More to the point, the exercise of chasing adult ads from Craigslist to Backpage and beyond is akin to picking up watermelon seeds from a freshly waxed floor--a difficult task that accomplishes little in the end.
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Blockbuster Busted--Files Chapter 11 Bankruptcy

Blockbuster logoImage via Wikipedia
Dallas-based movie rental chain Blockbuster, Inc.(NYSE: BBI, BBLB) has filed for Chapter 11 bankruptcy in U.S. Bankrutpcy Court in New York.
As reported by AmLaw Daily (,  the company lists assets of $1.02 billion and debts of $1.46 billion. According to AmLaw Daily, lead bankruptcy counsel Weil, Gotshal & Manges may oversee a fairly speedy Chapter 11 reorganization, as sufficient senior creditors purportedly are on board regarding an agreement that would reduce the company's debt by 90 percent, with principal senior lenders exchanging debt holdings for equity in the restructured company. Major debt holders include Twentieth Century Fox Home Entertainment and Warner Home Video, Inc.
Blockbuster, founded in 1985, provides in-home movie and game entertainment through more than 7,000 stores worldwide, roughly 3,000 of which are in the U.S. Netflix, Inc. has taken a large chunk of Blockbuster's business.
"TUOL" is on the lookout for a new microwave popcorn source and for old time's sake, may fine itself after a three-day period.
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Wednesday, September 22, 2010

9th Cir. Rules Oregon Child Sexual Abuse Laws Violate 1st Amendment

Opening of 2009 Oregon legislatureImage via Wikipedia
The U.S. Circuit Court of Appeals for the Ninth Circuit this week in Powell Books, Inc. d/b/a LLC v. Kroger (Nos. 09-35153, 09-35154) declared unconstitutional  two Oregon statutes intended to combat child sexual abuse as violating the First Amendment.

Oregon Rev. Stat. sec. 167.054 criminalized furnishing minors under age 13 with sexually explicit material, and Oregon Rev. Stat. sec. 167.057  imposed criminal penalties on those who lure minors under age 18 with visual, verbal or narrative descriptions of sexual conduct to arouse sexually the minor or the furnisher of the material or inducing the minor to engage in sexual activity.

Legislators claimed the laws were narrowly drafted to protect children from hardcore pornography. The validity of the statutes was challenged collectively by booksellers, nonprofit legal and health organizations, including the ACLU and Planned Parenthood of Columbia/Willamette, and a grandmother who argued the measures were over-broad and  criminalized otherwise protected speech.  The three-judge appellate panel agreed.

Writing the opinion joined by Senior Judge Ferdinand Fernandez and Judge Richard Paez, Judge M. Margaret McKeown said the statutes at issue, as drafted, "sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume."  The Court noted that materials that decidedly were not pornography, such as children's books Mommy Laid an Egg and Where Do Babies Come From? along with depictions of sex acts in  the best-seller The Joy of Sex, would be actionable under the Oregon statutes.

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Czech Cancel Google Street View Expansion

Old Town / Czech Republic, PragueImage by flydime via Flickr
Claiming the mapping function of Street View is too invasive of personal privacy, the Office for Personal Data Protection of the Czech Republic has decided against issuing the necessary registration for Street View to  Mountain View, Calif.-based Internet search engine colossus Google, Inc., according to an Associated Press article.

Google has encountered stiff opposition from several European countries and other nations around the world to the Street View feature because of privacy concerns.  Photos of neighborhoods offered by the Google function offend those who claim individuals are being filmed without their consent in places they may not want to be seen and captured engaging in activities they may want kept out of the public eye. Australia has claimed Google violated its privacy act while assembling mapping data. (See "TUOL" post 7/9/10).

It's not easy being omnipotent.

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Tuesday, September 21, 2010

Ga. Judge's Gag Gaffe

McDuffie County Confederate Monument, Thomson,...Image by J. Stephen Conn via Flickr
The Thomson, Georgia-based weekly McDuffie Mirror reports that Toombs Circuit Chief Judge Roger W. Dunaway issued a gag order barring disclosure of testimony at a pretrial hearing in the murder trial of Helen Irene Ansley.

According to the newspaper, Judge Dunaway announced near the conclusion of the hearing that information concerning the hearing could not be released to the public. Judge Dunaway made the ruling from the bench at the behest of prosecutor Durwood Davis, with the consent of defense counsel Harold Wallace.

The oral gag order bars disclosure of the identities of the witnesses who appeared at the hearing as well as the testimony given in open court.  In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), Chief Justice Warren Burger ruled that the right to attend criminal trials was implicit in the First Amendment.  Just sayin'.
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Montana Daily Tries to Shield Itself from Subpoenas in Homicide Case

Flathead County Courthouse, Kalispell, MontanaImage by kendra e via Flickr
The Kalispell, Montana-based Daily Inter Lake newspaper has invoked the Media Confidentiality Act ("MCA"), the state's shield law [Mont. Code sec. 26-1-902(1)] in hopes of quashing subpoenas seeking the testimony of the publisher and two editors in a double-murder case.

As reported by the Web site of the Reporters Committee for Freedom of the Press (, the testimony of  Daily Inter Lake publisher Rick Weaver and managing editor Frank Miele was subpoenaed for a change in venue hearing desired by counsel for 17-year-old homicide defendant Justine Winter, who is accused of killing a mother and son when her vehicle purportedly crossed the center line of a Montana highway. Miele allegedly is a neighbor of the victims.

Warren's attorney alleges that online comments connected to the Daily Inter Lake's coverage of the tragedy has prejudiced the jury pool. Although the daily is fighting the subpoenas, it willingly provided the defense with the contact information for seven online commenters  who gave testimony in the hearing that seeks relocation of the trial. Montana's shield law does not protect the identity of online commenters.

Under the MCA, anyone "connected with or employed by [a news organization] for the purpose of gathering, writing, editing or dissminating news" cannot be compelled to identify the source of information obtained or prepared during the newsgathering process.
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J-School Captain Won't Let His Ship Sink

Southern Illinois University CarbondaleImage via Wikipedia
The Daily Egyptian, the college paper for Southern Illinois University at Carbondale, reports that Journalism School Director William Freivogel will take a two-month unpaid educational leave at a personal cost of $17,000 to spare the jobs of three of his department's employees.

Faced with the directive of a 4 percent budget cut, Freivogel will take various leaves coinciding with the Christmas and Spring breaks and the close of the school year. The Daily Egyptian reports that the jobs of faculty members Carolyn Kingcade and Vicki Kreher were in jeopardy, and receptionist Sherida Evans was targeted for re-assignment, before Freivogel proposed his unpaid leave.

A 34-year veteran of  The St. Louis Post-Dispatch, Freivogel was named interim director of the journalism program in 2006, and became permanent director the following year. "TUOL" wonders how many bank presidents and corporate CEOs would follow Freivogel's path.
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Another Veteran Departs Newsweek

Howard Fineman.Image via Wikipedia
Right on the heels of 25-year veteran Evan Thomas' departure last month (see "TUOL" post 8/10/10), Howard Fineman has left Newsweek after a 30-year stint.

Fineman will report on national politics for The Huffington Post and continue to appear on MSNBC. Former editor Jon Meachem and columnist Michael Isikoff are among other luminaries who have abandoned Newsweek since the financially beleaguered newsweekly was sold by The Washington Post to electronics magnate Sidney Harmon in August.

It will fall on the 92-year-old Harmon to recruit fresh talent and established names to replace the magazine's former heavy hitters.
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Friday, September 17, 2010

Miami (Herald) Vise Tightens With Further Staff Layoffs

The Miami Herald and El Nuevo Herald building ...Image via Wikipedia
The McClatchy Co.-owned Miami Herald has slashed its staff by 49 through combined layoffs and voluntary buyouts.

Seven full-time and two part-time newsroom slots at the Herald were eliminated, as were four full-time and two part-time editorial positions at El Nuevo Herald, according to a story in Business Week. The cost-cutting measure comes a year after staffers endured pay cuts and the Herald underwent a 15 percent reduction in its work force in response to sagging circulation and a severe drop in advertising lineage.
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UPDATE: Fox Settles Madoff Yacht Footage Copyright Infringement Suit

Fox News LiveImage via Wikipedia
The parties in Kenneth Stadt v. Fox News Network LLC (Case No. 1:09-cv-07910) have filed a stipulation of dismissal with the U.S. District Court for the  Southern District of New York. Terms of the settlement were not disclosed.

The lawsuit against Fox News, which included counts alleging copyright infringement, conversion and breach of contract, was brought by Stadt, who provided footage of convicted financial scam artist Bernie Madoff and the Mrs. frolicking on a friend's yacht. [See "TUOL" posts 6/28/10, 9/17/09.]
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Court Order Sheds Light on Grazing Permits on Public Land

Cattle grazingImage via WikipediaIn her 28-page decision in Western Watersheds Project & Wildearth Guardians v. Bureau of Land Mgt. & U.S. Dept. of Interior (Case No. 09-482-CWD), Chief Magistrate Judge Candy Dale of the U.S. District Court for the District of Idaho ordered the government to disclose the names and addresses of recipients of grazing permits on public land.

The government has yet to decide whether to appeal the order, which could involve revealing the identities of  the holders of roughly 18,000 grazing permits on almost 160 million acres of land in the Western U.S., according to an Associated Press story.  Two environmental groups, Western Watersheds Project and Wildearth Guardians, brought suit under the Freedom of Information Act ("FOIA")[5 U.S.C. sec. 552 et seq.], challenging the Bureau of Land Mgt.'s position that the grazing permit data was exempt from disclosure as constituting an unwarranted invasion of the privacy of the permit holders.

Judge Dale concluded the public interest in monitoring the federal agency's public land grazing program trumped the minimal privacy interests of the grazing permit recipients. Chew on that, Bureau of Land Mgt.
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Thursday, September 16, 2010

Wisc. Daily Sues Police Dept. for Alleged Open Records Law Abuses

Milwaukee Journal SentinelImage via Wikipedia
The Milwaukee Journal Sentinel has sued the city's police department for allegedly violating Wisconsin's Open Records Law ("WORL") [Wis. Stat. Sec. 19.31-19.39 (2003] by foot-dragging in producing documents and charging excessive fees.

As reported by the Web site of the Reporters Committee for Freedom of the Press (, Journal Sentinel reporters Gina Barton and Ben Poston  were informed by the police department that their respective requests for selected incident reports would cost $3,500 and $600. The paper also complained that their independent probe of police department crime statistics would be unduly delayed by the police department's purported claim that the records sought could take as long as nine months to retrieve because of time and manpower limitations.

Under Sec. (3)(A) of WORL,  an authority may impose a fee on a requester of a copy of a record that "may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law."
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Coming Soon to the Small Screen: Federal Court Trials

The Supreme Court of the United States. Washin...Image via Wikipedia
The Judicial Conference, the 27-member federal court system policymaker presided over by U.S. Supreme Court Chief Justice John Roberts, has approved a three-year pilot program that will permit televising certain federal civil trials, according to a press release.

Final details are still being hashed out, but any broadcast will not permit the recording of the faces of jurors or witnesses, and any party to a case can opt out of the trial being aired. The pilot program was sparked by the recent Supreme Court's 5-4 vote overturning U.S. District Court for the Northern District of California Judge Vaughn Walker's order that would have permitted the telecast of the trial of the Proposition 8 same-sex marriage ban.

Participation in the nationwide pilot project is at the discretion of presiding federal court judges. No entitities, other than participating courts, would be permitted to record proceedings. The U.S. Circuit Court of Appeals for the Second and Ninth Circuits allow oral arguments to be televised. Since 1946, federal criminal proceedings have not been covered by electronic media pursuant to Rule 53 of the Federal Rules of Criminal Procedure.

"TUOL" doesn't expect to see members of the High Court spending time in the make-up chair any time soon.
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Money-Starved National Post Offers Voluntary Buyouts to Staffers

National PostImage via Wikipedia
According to a report in trade publication Editor & Publisher, in a cost-containment move, Postmedia Network has offered staffers at Canada's The National Post voluntary buyouts of three weeks' pay for each year of service.

Postmedia Network, which acquired the Camwest newspapers at a bankruptcy auction, hopes to pare labor costs. Reportedly, Postmedia, Canada's largest publisher of paid English language dailies, has overseen staff cutbacks of about 50 workers at The Calgary Herald and Edmonton Journal.

Voluntary buyout offers have also been extended to staffers at the Vancouver papers, the Ottawa Citizen, and the Victoria Times Colonist, according to the Editor & Publisher article.
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Wednesday, September 15, 2010

Giving Skechers Cartoon the Boot

The original Nickelodeon logo from April 1, 19...Image via WikipediaThe Associated Press reports that the Boston-based Campaign for a Commercial Free Childhood ("CCFC") has petitioned the Federal Communications Commission to block the airing of Nickelodeon's new action cartoon series Zevo-3, which boasts teen-aged superheroes featured in the Skecher shoes advertising campaign.

The animated action stars, whose quest is to make New Eden City an evil monster-free zone, appear in tv commercials and comic books distributed with the purchase of Skecher footware.  The FCC petition expresses concern that other kiddie entertainment will be overrun by advertising icons.

The fallout from the CCFC campaign has forced "TUOL" to scrap its series pilot: Secret Agent Ty-d-Bowl Man.

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Tuesday, September 14, 2010

Judge Wants TV Reporter's Notes from Murder Suspect Interview

WGRZImage via Wikipedia
WGRZ-TV reporter Claudine Ewing's notes from her interview with Muzzammil Hassan, whose trial for allegedly beheading his spouse is slated for January 2011, are the target of a subpoena issued by City Court Associate Judge Thomas Francyk.

Station executives plan to fight the subpoena, according to a posting on the Web site of  the Reporters Committee for Freedom of the Press. During Ewing's 50-minute interview with the 44-year-old Hassan, he allegedly confessed to killing his wife, though claimed he acted in self-defense. Judge Francyk has banned Hassan from giving on-camera interviews.
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News-Hungry Americans Lack Appetite for Newspapers

at the Pew Research CenterImage by eszter via FlickrTwenty-six percent of Americans thumbed through a newspaper yesterday, and only 8 percent of them were under age 30.

That grim disclosure for lovers of broadsheets and tabloids was among the findings culled from a Pew Research Center for People & the Press survey reported by trade publication Editor & Publisher. Forty-four percent of the respondents polled by Pew sought news through the Internet, cell phones, Email, social media or podcasts.

The 26 percent who opted to hold a newspaper in their hands is down from the 38 percent who admitted to doing so in Pew's 2006 survey.  On the positive side of the ledger, the latest poll found news consumption among Americans the highest that it's been in the best decade. If so, "TUOL" wants to know why 20 percent of Americans believe President Obama is a Muslim and why only 28 percent of people polled by Pew could identify John Roberts as Chief Justice of the U.S. Supreme Court.
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