Euro On Your Own

(Photo credit: Wikipedia)The Unruly of Law will be on hiatus while its devoted staff takes an extended vacation and attempts through profligate spending to help a couple of European nations to weather the harsh economic times.  Any devoted readers who believe a Fox News story they hear during our absence have only themselves to blame.

The blog will resume July 2.

UPDATE: SLAPPing a Birther: Judge Tosses Defamation Suit Against Esquire

In a 20-page Memorandum of Decision in Joseph Farah et al. v. Esquire Magazine et al. (Case No. 11-cv-1179), United States District Court for the District of Columbia Judge Rosemary Collyer this week dismissed a defamation suit brought by a publisher and the author of a book questioning President Barack Obama's U.S. citizenship against Esquire magazine over a satirical post (see "TUOL" post 7/6/11).

Farah, creator of WorldNetDaily.com and political science Ph.D. and professed investigative reporter Jerome Corsi, author of Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible to Be President, sued Esquire magazine and blog poster Mark Warren for defamation, false light invasion of privacy, interference with business relations and violation of the Lanham Act [15 U.S.C. sec. 1125(a)], seeking $285 million in actual, compensatory and punitive damages over a post in the Politics Blog of Esquire.com that appeared May 18, 2011.

The plaintiffs support the position of  the so-called "Birthers" who believe President Obama does not satisfy the requirement set forth in Article II, Sec. 1 of the U.S. Constitution that a president be a Natural born citizen or U.S. citizen. Soon after President Obama released his long-form birth certificate from Hawaii, Warren wrote a post headlined: BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!. Two hours after his intial post, Esquire published another item noting that Warren's piece was intended as satire.

In her decision, Judge Collyer said the Lanham Act count was inapplicable because it covers only commercial speech, not non-commercial satirical content such as the Warren post. She granted the defendants' motion to dismiss the suit under Washington, D.C.'s anti-SLAPP ("Strategic Lawsuits Against Public Participation") statute enacted in 2010 [D.C. Code sec. 16-5501], which enables a party to fend off lawsuits filed by one side of a political or public policy debate in an attempt to stifle speech presenting an opposing view.

The judge noted that satire is protected First Amendment speech and that the blog post at issue was clearly satire because it was denoted as humor, contained an exaggerated, decidedly un-newslike headline sporting an exclamation point, and used the same siren logo employed by conservative blogger Matt Drudge. Judge Collyer also pointed out that Dr. Corsi himself had originally dismissed Warren's post as a poor attempt at satire.

The plaintiffs' attorney reportedly plans to appeal the dismissal.

UPDATE: Fed Judge Enjoins Wash. Age-Verifying Law for Adult Ads

(Photo credit: Wikipedia)United States District Court for the Western District of Washington Judge Ricardo Martinez this week issued a temporary restraining order ("TRO") preventing a Washington law from taking effect that would require companies that accept online classified adult ads to verify the age of those offering "adult services."

Democratic Gov. Christine Gregoire signed S.B. 6251 into law last March that subjects violators who don't check ID regarding adult ads to jail time of up to five years and a $10,000 fine (See "TUOL" post 4/3/12). The four-page TRO in Backpage.com, LLC v. Rob McKenna et al. (Case No. 2:12-cv-00954-RSM) enjoins the measure, which was scheduled to take effect June 7, for two weeks pending further litigation. 

Village Voice Media-owned Backpage.com is challenging the constitutionality of the statute, claiming it violates both the First Amendment and the Communications Decency Act of 1996 [47 U.S.C. sec. 230(c)(1)], which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  In its complaint, the plaintiff claims requiring providers, both in-state and out-of-state, to determine whether third-party posted content "is an ‘implicit’ ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, ... maintain a record of the person’s ID...would bring the practice of hosting third-party content to a grinding halt.”

In granting the TRO,  Judge Martinez found: “Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief. “

Paywall Construction on the Rise

(Photo credit: Wikipedia)Newspaper digital subscription programs continue to grow, as roughly 186 newspapers across the nation have erected paywalls, according to the Web site Newsandtech.com

Gannett Co.'s U.S. Community Publishing division last week unveiled digital subscriber plans for The Des Moines Register, The Tennessean and The Courier-Journal, raising to 28, the number of its newspapers requiring online visitors to pay for access to content. (See "TUOL" post 2/23/12.)

A dozen major newspaper publishers have erected paywalls for digital versions of their publications, according to Poynter.org.  Holdouts still remain, however, including Hearst Newspapers, LLC, which doesn't charge for online viewing.

UPDATE: A Flicker of Freedom's Light Shines on Malawi

(Photo credit: Wikipedia)Heeding the call from President Joyce Banda to eliminate repressive laws, the Malawi Parliament this week repealed Section 46 of the Penal Code, the Web site Allafrica.com reported.

Section 46 was amended in November 2010, during the oppressive regime of former president Bingu wa Mutharika (see "TUOL" post 2/8/11). It empowered the minister of information and civic education  to prohibit the publication of, or importation of any publication he believed "would be contrary to the public interest." 

Human rights advocates and Malawi journalists were among those who haled the action by the 43rd Session of Parliament.

A Break In Watergate Documents Release?

(Photo credit: Wikipedia)Then-White House Press Secretary Ron Ziegler dismissed it as a "third-rate burglary attempt." Forty years later, the Justice Department, a federal judge and a Texas academic are central figures in a document tussle that is bound further to illuminate the Watergate break-in and ensuing scandal that toppled the presidency of Richard Nixon.

As reported by the Associated Press, Luke Nichter, a history professor at Texas A&M University-Central Texas who oversees a Website of cataloged covert Oval Office recordings made by President Nixon, submitted a Freedom of Information Act request [5 U.S.C. sec. 552 et seq.] to the Justice Department, which last week responded that it would not object to the release of some Watergate-related documents.

The Justice Dept., however, does oppose materials that disclose personal information, grand jury data and documents concerning content derived from illegal wiretaps. Prof. Nichter, according to the AP article, specifically wants documents related to hearings involving testimony by former FBI agent Alfred Baldwin III, who listened to and transcribed conversations from a Democratic National Committee telephone that the seven Watergate burglars wiretapped on May 28, 1972, roughly three weeks before their arrest.

United States District Court for the District of Columbia Chief Judge Royce Lamberth will decide to which documents Prof. Nichter will have access. Last year, Judge Lamberth ruled the public should have access to a 297-page transcript of President Nixon's grand jury testimony.

EFF Opposes Forum Shopping in Online Defamation Suit

(Photo credit: ElectronicFrontierFoundation)The Electronic Frontier Foundation ("EFF"), a nonprofit online free speech advocate, wants a California federal court to retain a defamation suit into which a federal judge in Illinois has inserted himself, the Courthouse News Service reports.

The United States District Court for the Central District of California is where plaintiffs last month initially filed an 18-page Complaint alleging, among other counts, defamation, trade libel and trademark infringement in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-04095). McFadden, a VH1 tv reality star of House of Consignment, alleges the defendant's blog posts amounted to cyberbullying and harmed her eBay business by accusing McFadden of engaging in "shill bidding", a practice that artificially inflates a product's value.

Since then, however, the plaintiffs obtained a temporary restraining order from United States District Court for the Northern District of Illinois (Eastern Division) Judge Matthew F. Kennelly prohibiting the defendant from levying "shill bidding" allegations against the plaintiffs in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-036323).

Enter the EFF, which has filed a 16-page amicus curiae brief urging that the case remain in California and that the court deny plaintiffs' motion to dismiss the California case without prejudice. The crux of the EFF's argument is that the plaintiffs are seeking to move to Illinois to avoid California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute and the United States Court of Appeals for the Ninth Circuit's free speech-friendly approach toward the Communications Decency Act. The EFF asserts transferring the case from California would have a chilling effect on free speech.

'Gay' Label No Longer Slanderous, N.Y. Court Rules

(Photo credit: Wikipedia)

Overturning a nearly three-decade old legal precedent, a New York appellate court this week ruled that a statement labeling someone as gay cannot be defamatory per se.

In the seven-page decision by the New York Supreme Court Appellate Division Third Judicial Department in the case, Yonaty v. Mincolla (Case No. 512996), Judge Thomas E. Mercure wrote that as a matter of law, falsely stating that an individual is gay is not slanderous per se, and that past state court rulings are "inconsistent with current public policy and should no longer be followed."

Acknowledging, for example, the New York Legislature's passage in June 2011, of  the Marriage Equality Act [Domestic Relations Law Sec. 10-a, as amended by L2011, ch 95, Sec. 3] that granted same-sex couples the right to marry in New York, the appellate court overruled Matherson v. Marchello, 100 A.D.2d 233, 241-242 (2d Dept. 1984), which considered allegations of homosexuality defamatory per se in light of the then-existing "social opprobrium of homosexuality."

According to accounts by the Associated Press and the Media Law Prof Blog, in the present case, plaintiff Mark Yonaty alleged that defendant Jean Mincolla spread a rumor that Yonaty was gay intending that it harm Yonaty's relationship with his girlfriend, which he claimed it did. As reported by this blog [see "TUOL" post 6/24/11], Broome County Supreme Court Justice Phillip R. Rumsey  previously denied Mincolla's motion for summary judgment to dismiss the suit.