2d Circ.: Bankruptcy Law Doesn't Stifle Attorney's First Amendment Rights

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In Diana G. Adams, U.S. Trustee Region 2  v. Zenas Zelotes, Esq. (Case No. 07-1853cv), the United States Circuit Court of Appeals for the Second Circuit this week ruled that a Bankruptcy Code Provision [11 U.S.C. sec. 526(a)(4)] did not violate the First Amendment freedom of speech rights of attorney Zenas Zelotes.

Citing the March 8, 2010, decision of the U.S. Supreme Court in Milavetz, Gallop & Milavetz v. U.S. (Docket Nos.  08-1119, 08-1225), the Second Circuit reversed the trial court ruling. Zelotes alleged the  bankruptcy court provision at issue that prohibits debt relief agencies from advising clients to assume additional debt in contemplation of filing for bankruptcy violated his First Amendment right to advise clients freely.

The appellate court cited the Supreme Court's Milavetz decision that said the Bankruptcy Abuse Prevention and Consumer Protection Act should be interpreted narrowly as prohibiting debt relief agencies and attorneys from emboldening clients to "load up" on debt before filing for insolvency with the expectation that the debt would be discharged by the bankruptcy.

Facebook Addressing Privacy Concerns

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Facebook plans to bolster privacy safeguards for its users, according to a story on www.Reuters.com, but the "opt-out" versus "opt-in" controversy remains unresolved.

In a blog post, Facebook CEO Mark Zuckerberg outlined steps the social networking Website will take to shield its users, including enabling users to block third-party access to personal information without explicit permission from the users. The number of privacy settings required for a user to protect all personal information will be reduced to less than 15, compared to the more than 50 presently required. Additionally, less information will be accessible in the user directory.

Facebook users, however, will still specificallyy have to "opt-out" of default policies that render most personal data accessible to the public.  Privacy advocates continue to favor an "opt-in" system that would require users affirmatively to consent to sharing their personal information.

The Facebook revisions to the privacy settings are expected to occur over the next few weeks.

'Nightline' Scores Highest Ratings Interviewing Jesse James

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ABC News' Nightline achieved its highest ratings Tuesday night since it debuted with its makeover format in 2005.

The reason for the ratings leap was correspondent Vicky Mabry's interview with Jesse James. Not the outlaw--the inbred. The 41-year-old James, the motorcycle and car customizer, former star of cable tv fare such as Discovery Channel's Monster Garage and Spike TV's Jesse James Is A Dead Man, and soon-to-be ex-Mr. Sandra Bullock.

James regaled breathless viewers with tales of how being physically abused by his father somehow led him to cheat on Bullock--America's Sweetheart--including his affair with Michelle "Bombshell" McGee, the multiple-tattooed stripper who seems to share James' penchant for donning Nazi regalia.

ABC News executives  apparently decided there was no need to report on the BP oil slick when it would be easier to interview someone who is slick and oily.  Somehow, "TUOL" suspects that the thrice-married James, who co-starred on Donald Trump's second season of Celebrity Apprentice, would not have been appeared on the original Nightline even if Ted Koppel were being asked to conduct the interview at gunpoint.

Sad.

The Unruly of Law Celebrates Its 500th Post

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With its humble efforts today, "TUOL" has passed 500 postings.

When "TUOL" debuted May 11, 2009, it had no followers, no influence, and generated no income.  Today, a mere year and  502 postings later, The Unruly of Law has few followers, little influence, and generates no income, but that's not the point.

"TUOL" is listed in several blog directories and is often cited in Inforrm's Blog, produced by the International Forum for Responsible Media, and the online Suffolk Media Law newsletter, among other publications.

Still, this milestone of sorts is a time of reflection for the tireless "TUOL" staff concerning its mission, as it continues to troll the baffling, sometimes unfriendly blogosphere.  Are "TUOL"'s readers being served?

If this celebratory post seems like a craven attempt by "TUOL" to elicit feedback from its readers, well, it is.  What are we doing right? What could we be doing better?  Will you be able to go on, if "TUOL" doesn't?

Inquiring minds want to know.

Calif. Judge Upholds Gag Order in Child Murder Case Despite Guilty Plea

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The Associated Press reports that the gag order on the release of information imposed by San Joaquin (Calif.) County Judge Linda Lofthus regarding the murder of eight-year-old Sandra Cantu remains in effect, even though the accused, 29-year-old Melissa Huckaby, has pleaded guilty to the March 2009, killing.

Judge Lofthus has indicated a willingness to revisit her prior restraint order after Huckaby is sentenced on June 14, but justifies the gag order as necessary to preserve the plea arrangement entered into by the defendant, which she believes unsealing court records could jeopardize.  The victim's family supports the suppression of details concerning the heinous crime.

The (Stockton, Calif.) Record, Associated Press, and the Bay Area News Group unsuccessfully challenged Judge Lofthus' gag order in a motion on May 12.

Media Audit: WSJ Readership Climbs Under Murdoch Ownership

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Editor & Publisher reports that a recent study by Media Audit of  The Wall St. Journal, The New York Times and USA Today covering 2007 to 2009 shows a 20 percent jump in Journal readers since Rupert Murdoch's News Corp. acquired the business daily in 2007, while the Times readership remained flat and USA Today's plummeted.

Media Audit attributed the boost in readership to the Journal's increased coverage of politics and non-business news. According to the study, in 2009, more than 4.3 million adults read the WSJ in the more than 80 markets surveyed, or 3 percent of  adults in those markets, compared to 2.5 percent of adults who read the WSJ in those markets in 2007.

Meanwhile, Gannett Co.'s USA Today saw its readership decline over  the three-year period by 8.3 percent, while 4.4 percent of adults read the Times both in 2009 and 2007, according to Media Audit. Not surprisingly, the Media Audit study found that WSJ readers generally were more affluent than those of its counterparts.

GOP Campaign Ads: Stick to Country & Western & Andy Williams

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David Byrne of Talking Heads,  the New Wave band that thrived in the '70s and '80s, is suing Florida Gov. Charlie Crist for allegedly appropriating the band's 1985 single Road to Nowhere in a campaign attack ad without permission or copyright licenses, according to Billboard magazine.

The suit filed in Tampa in the U.S. District Court for the Middle District of Florida (Case No. 8:10- cv-1187-T26(MAP)) demands $1 million in damages for Crist's alleged use of the song in a YouTube attack ad against his then-GOP  primary rival for the U.S. Senate race, Marco Rubio. Crist has since not only abandoned the Talking Heads tune, but also the GOP, and is running for Senate as an independent.

The suit alleges copyright infringement and also includes a violation of the Lanham Act count for purportedly implying Byrne's endorsement of Crist's candidacy. Coincidentally, Byrne's attorney also successfully sued the GOP in the U.S. District Court for the Central District of California for using Jackson Browne's Running on Empty during Sen. John McCain's presidential run without permission (Case No. cv08-05334) [see "TUOL" post 7/21/09].


Road to Nowhere appeared on the 1985 album Little Creatures, the band's sixth album. Other Talking Heads song titles No Compassion, Artists Only, and Give Me Back My Name, seem more apropos regarding the lawsuit.

Newspaper Websites Visits Soar: Where's the Ad Revenue?

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The Newspaper National Network reports that the number of visitors to online newspapers in the 25 largest media markets continues to soar, climbing to 83.7 million unique visitors in April 2010, a 15 percent increase over January 2010 figures.

Based on the NNN's comScore measure, that translates to 2 billion page views last month, compared to 1.6 billion page views in January 2010, a 24 percent increase. The numbers are equally encouraging in the top 10 media markets, which saw a 15 percent boost in April figures compared to January.

The percentage increase in visitors at the online newspaper sites outdistanced the numbers at CNN.com and The Huffington Post. The devoted staff of "TUOL" is clearly in the minority when it turns the pages of the morning daily while downing coffee at the breakfast table.

Bill Seeks to Curb U.K. Libel Tourism Trade

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According to an item in "Banksy's Blog," Lord Lester this week will introduce a private member's  libel reform bill to the House of Lords.

The measure would attempt to restore balance to claimant-friendly defamation laws in Great Britain.  Lord Lester's bill reportedly would require claimants--individuals and corporations alike--to prove damages in defamation claims, which are presumed as the law currently is written. Other revisions to the libel law would mandate that libel trials be bench trials, rather than jury trials, and that defenses  common in U.S. libel law, such as privilege, be available to English media defendants. (See "TUOL" post 3/24/10 for a discussion of England's libel law.)

England's defamation law was last revised in 1996.

Judge (De)Grades Paper on College Prez Critique

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The Associted Press reports that a Laramie County District Court Judge has enjoined The Wyoming Tribune Eagle from publishing an article critical of Laramie County Community College President Darrel Hammon.

After its request to the college for a copy of a report that surfaced at an employee hearing was rejected, the Tribune Eagle obtained the report from an unnamed source that purportedly concerns a 2008 school-sponsored trip to Costa Rica in which Hammon served as a chaperone.

District Court Judge Peter Arnold apparently was swayed by attorneys for the college who sought an injunction against publication of the story by the Tribune Eagle on grounds that  it would violate the Federal Education Rights and Privacy Act (FERPA)[20 U.S.C. sec. 1232g].

Counsel for the newspaper has raised the possibility of publishing an article about the report, but removing the names of any students, to satisfy the intent of FERPA, which is meant to protect the privacy of students regarding matters, such as disclosing grades. It is not intended, however, to shield college employees and administrators from the consequences of possible misconduct, and Judge Arnold's order ultimately may run afoul of the First Amendment.

UPDATE  (5/26/10):   Judge Peter Arnold dissolved his injunction, freeing the college paper to report on President Hammon's Costa Rica adventure. The Court rejected the college's position that federal funding could be lost if the information became public.    

Judge Quashes Subpoena: 'Stokklerk' Can Toil Anonymously

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U.S. District Court Judge for the Northern District of California Susan Illston last week quashed a subpoena from attorneys for a Pa. corporation that wanted Yahoo! to turn over information concerning a pseudonymous online critic.

The case,  USA Technologies, Inc. v. John Doe a/k/a "Stokklerk" et al. (Case No. C 09-80275SI) involved claims for common law defamation and violation of The Securities Exchange Act of 1934 [15 U.S.C. sec. 78a et seq.]. Judge Illson ruled that Stokklerk had a First Amendment right to express a "hyperbolic opinion" about the company and its CEO George Jensen Jr. on a Yahoo! message board.  Besides asserting the anonymous posts were harmful to USA Technologies' reputation, plaintiff's attorneys alleged Stokklerk engaged in securities fraud because the faceless critic's comments purportedly reflected a financial interest in denigrating the company.

Judge Illson ruled the plaintiff has a ways to go to satisfy its burden of proof before she would order Yahoo! to disclose information concerning the anonymous poster. Calling Jensen "a known liar," is a mere insult, the judge held, that doesn't rise to the level needed to warrant identifying the nameless critic.  The Electronic Frontier Foundation took up the cudgel for Stokklerk and succeeded in getting the subpoena quashed. 

Yahoo! We're in the News Biz!

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Under the direction of 26-year-old Andrew Golis, Yahoo! News is gaining traction, having bolstered its staff with six full-time beat reporters.

After breaking into the original content arena through Yahoo! Sports, Yahoo! News, the one-time news aggregator, has begun breaking stories, such as a piece on the late news anchor icon Walter Cronkite's active involvement in anti-war protests during the Vietnam era.  Yahoo! News already is the nation's largest news Website.  According to Golis, April saw 57 million total page views for The Newsroom, Yahoo!'s news blog.

Pa. AG Subpoenas Twitter to ID Two Subscribers

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The Pittsburgh Post-Gazette reports that Pennsylvania Atty. Gen. and Republican gubernatorial candidate Tom Corbett has subpoenaed Twitter for information concerning subscribers @bfbarbie and @CasablancaPA, whose tweets have attacked Corbett's oversight of the "Bonusgate" legislative corruption cases.

Twitter has yet to respond to the subpoenas, which were issued May 6 and posted this week on casablancapa.blogspot.com. The Pa. ACLU chapter is assisting CasablancaPA in its defense.

"Bonusgate" refers to 25 former and current state lawmakers accused of using taxpayer money for campaign purposes.  The Tweeters under fire allege that Corbett is wielding his prosecutorial power to stifle political opponents.

It is expected that the anonymous Twitter accounts will move to quash the subpoenas, leaving it up to a judge to balance the Tweeters' First Amendment interests against the prosecutor's purported justification for requiring the identifying information.

Caramba! Fox News Latino Coming This Fall

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Reuters reports that Rupert Murdoch's News Corp. this fall will launch www.FoxLatino.com, that will generate original news and features of interest to one of the nation's fastest growing segments of the population.

Some of the content on the Website also will be featured  on  The Strategy Room of FoxNews.com. Videos and other content originating from the U.S., Central America and South America will be included on the site.  According to Pew Research, Latinos comprise 15.4 percent of the U.S. population.

"TUOL" doubts that Lou Dobbs, Glenn Beck or Sean Hannity will blog on the site, but wonders if Murdoch, who erected a paywall around The Wall St. Journal's online presence, will opt for an electrified pay fence to limit access to FoxNewsLatino.com.

UPDATE: Wisc. Shields Journos With Whistleblower Protection Act

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Wisconsin Gov. James Doyle, Jr., yesterday signed into law the Whistleblower Protection Act [2009 A.B. 333, Wis. Stats. 885.14] that protects journalists and their confidential sources(see "TUOL" post 4/22/10).

The Wisc. Newspaper Assn., Wisc. Broadcasters Assn. and the Wisc. Freedom of Information Council worked together to draft the bill that makes  the Badger State the 39th in the nation to enact a shield law.  The law takes effect in three months.

The Whistleblower Protection Act defines a news person as a gatherer and disseminator of news to the public through any medium, including print publications, books, news agencies or wire services, broadcast, cable, satellite or electronic services.  Case law will be the final arbiter, but it appears the act would encompass online journalists.

The legislation imposes restrictions on the issuance of subpoenas to nonjournalists if the underlying purpose is to obtain information from the individuals concerning an interaction involving a journalist that the statute would protect from disclosure.

Campbell Wants Out of CNN Soup

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CNN (Cable's Nielsen Nightmare) has granted Campbell Brown's request to tear up her contract that will free her from ratings-starved prime time 8 p.m. program.

Brown threw in the towel after her weeknight program continued to get throttled in the ratings by opinionmeisters Fox News' Bill O'Reilly, MSNBC's Keith Olbermann, and HLN's Nancy Grace, as well as by  routine tests of the emergency broadcast system. The 41-year-old Brown joined CNN in 2008 after 11 years with NBC News.

Brown will continue to host the program until a replacement is found.

UPDATE: Theriot & Jeffersion Parish to Anonymous Bloggers: 'Never Mind'

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The Web affiliate of the New Orleans Times-Picayune, www.Nola.com, reports that Interim Jefferson Parish President Steve Theriot has dropped the lawsuit in which he and the parish were plaintiffs that sought the identities of anonymous posters on the "NOLA" Website critical of him and parish political machinations (See "TUOL" post 5/12/10).

In  a dazzling display of revisionism, Theriot claims he brought suit in the 24th Judicial District (Parish of Jefferson & Steve Theriot  v. John Does 1-100, Case No. 687191) and subpoenaed the daily newspaper and its Website for the identities of 11 anonymous bloggers because he wanted to learn more about the specific complaints of the pseudonymous posters.  One has to admire such a dedicated public servant's interest in the concerns of the parish's constituents, but that doesn't jibe with the Complaint itself that alleged Theriot "suffered embarrassment" or that the anonymous comments contained defamatory remarks.

Maybe a law student told Theriot that a municipality can't be defamed, or more likely, some elected officials told him to stop wasting Jefferson Parish funds on such an ill-advised venture. Big Easy, meet Big Sleazy.

DC Comics Goes After Kryptonite Attorney in Superman Suit

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DC Comics, which is owned by Time Warner's Warner Bros. division, wants damages from Marc Toberoff, the attorney representing the heirs of Superman co-creators Jerry Siegel and Joe Shuster in a copyright suit against the media giant (see "TUOL" post 8/17/09).

In a 56-page complaint filed in the U.S. District Court for the Central District of California, the media company seeks declaratory relief concerning alleged copyright termination and assignment issues, and accuses the attorney of interfering with the economic advantage of his clients' agreements with the comic book publisher (DC Comics v. Pacific Pictures Corp., IP Worldwide LLC, IPW LLC, Marc Toberoff et al.).

According to the plaintiff's suit, the Man of Steel's creators never challenged DC Comics' copyrights and their families abided by lifetime compensation agreements entered into with the media company until Attorney Toberoff came onto the scene like Lex Luthor threatening Metropolis (that part's not in the complaint). The plaintiff claims Toberoff persuaded Siegel and Shuster's descendants to repudiate the compensation agreement that resulted in the lawsuit Joanne Siegel & Laura Siegel Larson v. Warner Bros. Entertainment Inc. et al (Case No. 04-8400). DC Comics accuses Toberoff of violating U.S. Copyright laws and  exploiting the Superman franchise to the media giant's detriment.

As Jimmy Olsen might say: "Jeepers!"

Judge Gives Filmmaker's 'Variety'Suit the Boot

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Iron Cross filmmaker Joshua Newton has another cross to bear--a Los Angeles County Superior Court judge has ordered Newton to pay the legal fees of Reed Elsevier-owned Variety after allowing the entertainment industry journal's SLAPP (strategic lawsuit against public participation) motion offered in defense against Newton's complaint.

Newton's lawsuit alleged Variety solicited advertising revenues from the film's producers in March 2009, and promised to bolster the Holocaust-themed revenge drama's distribution and enhance its chances for an Oscar nomination, but reneged on the agreement and savaged the film in a movie review by Variety critic Robert Koehler in December 2009.  The film, which starred the late Roy Scheider of  Jaws & Seven-Ups fame, wrote Koehler, was "simply mediocre stuff, choppy and uncertain, with hints of ambitious ideas that fail to gather steam."

Variety no doubt considers the judge nixing Newton's case a boffo outcome.

The court tossed the plaintiff's suit, finding the complaint "fatally defective," and citing Variety's First Amendment right to publish an unflattering film review. In defamation cases, the "fair comment" defense generally protects arts critics, whose reviews constitute opinions, which by their nature, do not satisfy the false statement element of a libel claim.  Plaintiff's counsel plans to appeal, hoping to shift the focus from freedom of the press to what plaintiff alleged were Variety's deceptive business practices.

 

President Obama to Sign Press Freedom/ Human Rights Act

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According to the Jewish Telegraphic Agency news service, President Barack Obama today will sign into law the Daniel Pearl Freedom of the Press Act.

The measure requires the State Dept. to flag nations that abuse press freedom, evaluate whether these countries facilitate or condone press violations and report on how nations preserve an independent media and whether those who attack or kill journalists are prosecuted by the government. The law is named after Daniel Pearl, a Wall St. Journal reporter who was captured in Pakistan and decapitated in 2002 by radical Islamists.

Supreme Court Rejects Cablevision Petition Challenging Must-Carry Rule

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In Cablevision v. FCC (Case No. 09-901), the U.S. Supreme Court has denied Cablevision's petition for a writ of certiorari, letting stand the U.S. Circuit Court of Appeal for the Second Circuit's upholding of the "must-carry" rule.

The Second Circuit Court of Appeals last June upheld the FCC decision in Cablevision v. FCC, which required Cablevision, the fifth-largest U.S. cable operator, to carry on its Long Island cable systems WRNN of Kingston, NY. Cablevision challenged the applicability of the "must-carry" rule, enacted in 1992, that mandates cable systems with at least 300 subscribers carry the signals of local commercial television stations that operate within the same television market as the cable system.  The Supreme Court twice in the 1990s upheld the constitutionality of the must-carry rule, saying it was narrowly tailored to uphold the critical government interests of  "preserving the benefits of free over-the-air local broadcast television" and "promoting the widespread dissemination of information from a multiplicity of sources."

Arguing successfully on behalf of the government that the Supreme Court should decline to hear the case was Solicitor General Elena Kagan.

NewsFeed: TIME Magazine Aggregator News Tapas?

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After seeing competitor Newsweek tossed into the bargain bin, venerable newsweekly magazine TIME, no stranger to declining ad revenues and shrinking circulation itself, is battling back with NewsFeed (http://newsfeed.time.com), a newly launched news aggregating Website.

"We're not here to break news," the Website oddly, but proudly, proclaims. "Instead, NewsFeed puts breaking news and trends into perspective, telling you what it means, why it's important, and why people are talking about it."

The site boasts edited stories from the writers and editors of TIME, along with stories gleaned from sources such as Google, Facebook and Twitter. Federal Express is a prominently featured sponsor of the Website.

DOJ: Gitmo, Know Less...

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The U.S. Court of Appeals for the Federal Circuit is weighing a request from the Department of Justice to redact the transcript of an oral argument involving a Guantanamo Bay hearing that occurred in open court.

According to the Blog of LegalTimes (http://legaltimes.typepad.com), oral arguments in Kiyemba v. Obama occurred April 22, though only the first half of the arguments was open to the public.  Initially, the appellate court granted the DOJ request to seal the hearing transcript in its entirety, but the government has since asked the court to seal only portions of the transcript of the public arguments.

The appellate court has yet to address its rationale for sealing the transcript.

Federal Court Says Candidate Properly Excluded from TV Debate

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The U. S. District Court for the District of Hawaii this past week refused to grant a temporary injunction to a Congressional candidate to prevent the airing of a televised political debate from which he was excluded.

In C. Kaui Jochanan Amsterdam v. KITV 4 Television Station; Mike Rosenberg, General Mgr. (Case No. 10-00253), the Court rejected the plaintiff's claim that his First Amendment and Fourteenth Amendment rights were violated by his not being included in a televised debate among three candidates for the U.S. House of Representatives seat. In all, 14 candidates are seeking the vacant Congressional seat. KITV 4 and the League of Women Voters are co-sponsoring the debate.

The Communications Act of 1934 and FCC regulations control tv debates among candidates for public office. Specifically, Section 315 of the Act precludes a private right of action by an individual against a broadcast entity concerning political debates.

The Court cited Arkansas Television Commission v. Forbes, 523 U.S. 666, 682-83 (1998), writing that the defendant's exclusion of the plaintiff from the tv debate was a "reasonable viewpoint-neutral exercise of journalistic discretion." The plaintiff's failure to generate "appreciable public interest," and not his political viewpoint, was the basis for his absence from the stage with some of his fellow candidates, the Court held. A televised candidate debate is a nonpublic forum, and no First Amendment issue is raised, because the tv station is a privately owned business, not a government entity; thus, no state action is presented.

"TUOL" agrees with the Court's ruling, which is consistent with well-established legal precedent. Still, there is a chicken-and-egg aspect to the lawsuit, in that the broadcaster tells the candidate: "You're not a major candidate with sufficient voter support to merit your participation in the debate," and the candidate responds: "I'm lacking in public support because I can't get media exposure with networks not allowing me to participate in debates."

UPDATE: Banned Gitmo Journos Appeal Expulsion

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The Toronto Star, The Miami Herald and CanWest Newspapers have appealed to the Pentagon the exclusion of their respective reporters. Michelle Shepard, Carol Rosenberg and Steven Edwards, from covering the Guantanamo Bay detention hearings because they reported the name of a witness whose identity the presiding judge had ordered sealed, even though the witness's name had previously been disclosed during coverage of his court martial and in an on-the-record interview the witness gave to one of the blacklisted reporters. (See "TUOL" post 5/7/10.)

In a letter to the Pentagon, the news outlets said the restriction against the named reporters serves no military purpose and should be rescinded.