UPDATE: 5th Circ. Upholds Texas Open Meetings Act Sanctions

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In Diana Asgeirsson, Alpine Council Member, et al. v. Texas Attorney General (Case No. 11-50441), a three-member panel of the United States Court of Appeals for the Fifth Circuit this week unanimously upheld a provision of the Texas Open Meetings Act ("TOMA") [Tex. Govt. Code Sec. 551.001(3)] that subjects violators to misdemeanor penalties of up to a year in jail and a maximum $500 fine, the Houston Chronicle reported.

Local government officials in  15 communities, including  Wichita Falls and Sugar Land, have been fighting the measure for more than six years on First Amendment grounds, and are weighing an appeal before the entire 17-judge Fifth Circuit. (See "TUOL" posts 7/29/10 & 12/15/09.)

Discussing public business behind close doors, the appellate court wrote, "would decrease government transparency, and the state has determined that the benefits of making these discussions public outweigh any harm done by the disclosure of information."  TOMA does not apply to the governor, executive-level policymakers or the state legislature, the Chronicle article noted.

Calif. Shields Workers' Social Media Passwords

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Gov. Jerry Brown took to Facebook to post that he has signed two bills that will protect employees and students from having to divulge social media passwords to employers or the universities they attend, Cnet.com reports.

AB 1844, sponsored by Nora Campos, does not allow employers to demand social media account user name and password information from personnel or job applicants. Assemblywoman Campos claims more than 100 such cases are pending before the National Labor Relations Board.

Gov. Brown also signed SB 1349, a measure that prohibits colleges and universities from seeking the same information from students and prospective students. Solons in Washington, D.C. are weighing the merits of the Password Protection Act of 2012 whose aims are similar to AB 1844, according to the Cnet.com article.

D.C. Circ. Court to Decide if White House is Log Cabin

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It's all so simple in the Star Trek future world in which James T. Kirk disclosed the contents of his Captain's log at the outset of each episode.

In contrast, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit last week heard arguments in Judicial Watch, Inc. v. U.S. Secret Service (Case No. 1:12-cv-01562) in which the appeals court must decide whether to uphold a ruling last summer by United States District Court for the District of Columbia Judge Beryl A. Howell that granted the plaintiff conservative watchdog group access to White House visitor logs pursuant to its request under the Freedom of Information Act ("FOIA") [5 U.S.C. sec. 552] (see "TUOL" post 8/18/11).

According to accounts on the respective Web sites of The National Law Journal and Reporters Committee for Freedom of the Press, the appellate court panel on Sept. 18 heard Department of Justice attorneys claim that the logs being sought were not Secret Service agency records created by the president's protectors subject to production under the FOIA, but rather, were records of the Office of the President, which are exempt under the Act.  DOJ attorneys also voiced concerns that the records contained confidential information, some of which had national security implications. For example, the Secret Service vets all visitors, so the records contain  background personal information, including visitors' Social Security Numbers and birthdates, and the records flag sensitive data, such as visits from prospective U.S. Supreme Court nominees.

Judge Howell, himself an appointee of President Barack Obama, agreed with Judicial Watch that the logs were under the Secret Service's control and subject to FOIA production and that it would be overreaching by the government to withhold all the data requested. Trying to allay the justices' concerns, the plaintiff's lawyers argued before the appellate panel that exemptions within the FOIA could shield sensitive material contained in the logs.

Media groups, including Bloomberg, Inc., National Public Radio and The Washington Post, as well as the Reporters Committee for Freedom of the Press, submitted amicus briefs backing Judicial Watch.  The watchdog group began its quest for the logs in 2009. The White House Web site (www.whitehouse.gov) has disclosed the names of roughly 2.5 million White House visitors since September 2009, in response to a voluntary initiative by the Obama Administration, but critics cite the one-and-a-half to two-month delay in the release of the data and the White House selective withholding of names it doesn't want published.

Village Voice Sold; Jettisons Backpage.com

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Village Voice Media Holdings, which includes its namesake free newspaper and a dozen other alternative weeklies, has been sold for an undisclosed sum to the company's CEO Scott Tobias and a private equity management team, Forbes reports.

Among other papers included in the sale are the Dallas Observer, LA Weekly and Phoenix New Times. Christine Brennan has been tapped to be the newspaper group's Executive Editor.

Former Village Voice Media heads Michael Lacey and James Larkin will retain Backpage.com, the controversial Web site that has attracted harsh public criticism and the interest of authorities over its adult ad services offerings (see "TUOL" posts 6/7/12 & 4/3/12).

Gray Lady's Quote Approval Memo a Positive Step

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The devoted, journalism-as-watchdog lovin' staff of  "TUOL" hales the recent Public Editor's Journal column by New York Times ombudsperson Margaret Sullivan that cites a Times internal memorandum that almost drives a stake in the alarming, spreading practice of journalists granting sources pre-publication quote approval.

As reported by the World Association of Newspapers and News Publishers ("WANNP") Web site (http://www.editorsweblog.org), the internal Times memo acknowledges: "[D]emands for after-the-fact 'quote approval' by sources and their press aides have gone too far...[so] reporters should say no if a source demands, as a condition of an interview, that quotes be submitted afterward to the source or a press aide to review, approve or edit."

Credit must be given to the recently hired Sullivan, who called for a Times policy on the subject in an earlier column, and to Times media critic David Carr, who condemned the practice of quote approval as "puppetry" in a column that "TUOL" gleefully retweeted.

Quote approval has gained a foothold with admissions by media outlets such as The Huffington Post and Vanity Fair (Michael Lewis's profile of President Barack Obama), Bloomberg News, The Washington Post and Reuters that they had ceded the right to sources on occasion.  Some publications, including The National Journal and The Harvard Crimson, do not permit sources to review quotations.

Unfortunately, the Times' memo, according to  the WANNP post, concludes with a "never say never" escape hatch, admonishing reporters that potential exceptions to the no quote approval rule should be addressed to department heads or masthead editors.

Apparently, every watchdog has an inner lapdog fighting to get out for a good scratch behind the ears.

Conde Nast Resurrects M Magazine for Rich Guys

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M magazine, published by Conde Nast's Fairchild division, has risen from the ashes of its economic recession-fueled extinction in the early '90s and hits newsstands next week, the New York Post's "Media Ink" column reports.

The quarterly periodical is targeting men who earn $200k and above and is eying circulation figures of 75,000, according to the Post column. Editorial Director Peter Kaplan said the hoped-for audience consists of "affluent trailblazers who want to look under the hood." Yeah, people in the publishing industry  talk like that.

Hollywood actor and under-the-hood-looker Bradley Cooper, star of such trailblazing films as The A-Team and The Hangover, will grace the cover of M's premiere issue.

Jordan Press Law Stifles Electronic Media

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Arab League co-founder Jordan has free press advocates on edge over an amendment to its Press and Publications Law that requires government licensure of electronic publications, the Daily Star reported this week.

The constitutional monarchy headed by King Abdullah authorizes the culture ministry to block unlicensed Web sites without having to secure a court order, according to Human Rights Watch. The new law presents a nebulous definition of electronic publication, but clearly articulates that Web site owners will be deemed responsible for content posted on their sites and that site users' comments will be subject to government-imposed restrictions.

The Star article cites an Associated Press estimate that roughly 400 Jordanian Web sites will be affected by the new law. In contrast, Section 230 (c)(1) of the Communications Decency Act in the U.S. shields Internet Service Providers from liability for content from third parties.  Jordan's Press and Publications Law already criminalizes defamation, encompassing governmental and religious entities, as well as people.

Virtual Lobbying

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The nation's capital isn't wanting for lobbyists, but add the Washington, D.C.-based The Internet Association to the list of lobbying groups looking to influence Congress on issues ranging from online security to privacy.

Bloomberg News this week reported that Michael Beckerman will serve as the IA's CEO and president. Group members include Google, Facebook, AOL, Zynga, EBay, Expedia, Monster, LinkedIn and Trip Advisor.  Economic growth in the ether will be one of the organization's principal goals.

UPDATE: Time Out in Google Digital Library Copyright Suit

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Associated Press reports that United States Circuit Court of Appeals for the Second Circuit Judge Raymond J. Lohier, Jr. has ordered a stay of the The Authors Guild copyright infringement lawsuit against Mountain View, Calif.-based Google, Inc., pending Google's appeal of The Authors Guild being granted class status.

In its epic struggle against Google's efforts to amass the world's largest digital library (a purported 20 million books already have been scanned), The Authors Guild, a nonprofit New York-based 8,500-member strong industry group, contends Google is infringing on copyrights pursuant to the Digital Millenium Copyright Act [Pub. L. 105-304], which amended the Copyright Act of 1976 [17 U.S.C. sec. 1 et seq.], and its actions are not protected by the Act's Fair Use exception.  Google disputes that it is noncompliant with copyright laws.

Judge Denny Chin, who presently serves on the Second Circuit Court of Appeals, and has presided over the seven-year-old case, granted class status last May and denied Google's motion to stay the litigation pending its appeal of his ruling.

First Fall Sighting of Winklevi

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Faithful readers of this blog know that the Winklevoss twins, Cameron and Tyler, of The Social Network cinematic fame, regularly appear in "TUOL" (see posts on 7/26/11, 6/24/11 et al.).  Well, they're back, with Harvard pal Divya Narendra, investing $1 million in SumZero, a social network for professional investors, co-founded by Narendra and Aalap Mahadevia in 2008, according to an article in The Wall St. Journal this week.

The Winklevi duo, who, aided by Narendra, engaged in a protracted legal battle with Mark Zuckerberg over ownership of Facebook that netted the twins a reported $65 million settlement, have turned their attention to Winklevoss Capital, an investment company fueled by their personal wealth, and SumZero is the inaugural beneficiary. SumZero's membership of 75,000 or so is geared toward private equity firms and hedge fund and mutual fund investors, though a small group of outsiders may subscribe by doling out $129 a month to receive a few investment ideas with the blessings of their authors. Members are required to submit investment ideas to maintain access to their fellow members' tips, according to the Journal article.

SumZero plans next month to relocate into office space in Manhattan owned by the Winklevoss boys. You can't keep a good man down--or the Winklevoss's either, apparently.

UPDATE: No 1st Amend. Violation in College Paper Alcohol Ad Ban

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The United States District Court for the Eastern District of Virginia has upheld the Commonwealth's Alcohol Beverage Control ("ABC") regulations that bar alcohol advertising from the University of Virginia's Cavalier Daily newspaper.

Judge M. Hannah Lauck conceded her alcohol advertisement ruling restricts commercial speech, but wrote: "it does not, nor does it tend to, restrict the length, content or substance of noncommercial speech," and therefore, does not impede the First Amendment rights of The Cavalier Daily. As reported by the Charlottesville, Va.-based The Daily Progress, the decision upheld the ABC regulations, recognizing that collegiate newspapers' principal audience is under age 21.

Pursuant to the relevant ABC regs., [3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)], terms such as happy hour are banned and references to specific brands of alcohol, as well as beer, wine and mixed drink advertisements in student-run publications, except in the context of restaurant advertising, are prohibited. (See "TUOL" posts 11/30/10, 8/24/10, 4/12/10.)

Expert testimony for the government suggested binge drinking and alcohol consumption overall would lessen under the ban, but the college newspapers, who complained the ban cost them $30,000 in advertising revenues annually, presented expert testimony that alcohol ads promote brand loyalty and have little impact on the demand for intoxicating beverages.  The student publications, which were represented by the ACLU, have yet to decide whether to appeal.

Emory Bored with Journalism Dept.?

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The journalism program at Atlanta-based Emory University is winding down and will disappear in two years, College of Arts and Sciences Dean Robin Forman announced last week.

The journalism department, one of four programs being phased out, according to reports in the Atlanta Journal-Constitution and the Knightcenter@utexas.edu Web site, not surprisingly, is not reacting well to being consigned to extinction by the university.  Former Journal-Constitution Managing Editor Hank Klibanoff, who heads the school's journalism program, voiced disappointment, claiming that discontinuing the journalism department translates into a less-informed public and fewer critical thinkers.

With Emory joining other schools such as the University of Colorado in eliminating journalism as a major (see "TUOL" posts 2/22/11 & 8/26/10), journalism advocates are seeking salvation in a "teaching hospital" approach to journalism education, emphasizing professional training over an academic mindset and focusing on digital communication.

New Fall TV Season Won't Include Airing Guantanamo Bay Tribunal

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Citing military commission rules that prohibit radio or tv broadcasting of proceedings, military judge Col. James Pohl said he lacks authority to grant permission to news organizations to air a war crime tribunal at Guantanamo Bay naval base, the Associated Press reported this week.

In his ruling, Col. Pohl said attendance at the proceedings by the press and members of the public satisfy the constitutional requirements of a public trial. According to the AP, attorneys for Saudi defendant Abd al-Rahim al-Nashiri, accused of plotting the 2000 attack on the U.S.S. Cole in Yemen in which 17 American sailors were killed, sought live feeds of his trial to highlight what they allege are the legal drawbacks of military commissions.

Pohl's ruling applies only to the Cole prosecution.

Sawyer, ABC News 'Slimed' with $1.2b Defamation Suit by S. Dak. Beef Filler Maker

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Dakota Dunes, South Dakota-based Beef Products, Inc.("BPI"), the nation's largest producer of lean finely textured beef filler unaffectionately dubbed pink slime, has slammed ABC News, anchor Diane Sawyer and others with a $1.2 billion defamation suit, according to a report by the Reuters news wire.

In a 263-page complaint filed in Union County Circuit Court, Beef Products Inc. et al. v. American Broadcasting Cos. et al (Case No. 12-292), the plaintiff is seeking $400 million in compensatory damages, along with punitive damages, for what it claims were more than 200 defamatory statements by ABC News in reports alleging the beef filler product it produces, which is made from ammonia-sprayed fatty trimmings, was harmful and not beef.

BPI is represented by high-profile Chicago attorney Dan Webb, a former U.S. attorney from Illinois whose prominent cases include prosecuting retired Adm. John Poindexter in the Iran-Contra scandal during the Reagan administration.  Besides Sawyer, ABC News journalists Jim Avila and David Kerley are also named as defendants.

The BPI complaint, according to the Reuters piece, alleges the company suffered staggering financial losses after ABC News telecast negative reports about pink slime in March and April of 2012, and was forced to pink slip half its work force--700 jobs--along with shuttering three of its four operating plants. The plaintiff alleges the defendants acted with actual malice in reporting about the finely textured beef it produces.

Jury Gone Wild: Francis Socked with $40m Defamation Judgment

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Joe Francis, the force behind the Girls Gone Wild! soft-core phenomenon and lead Barbarian at the Gate, finds himself on the wrong end of a $40 million defamation judgment after a jury doubled its verdict in a suit in which Francis alleged that Las Vegas casino mogul Steve Wynn threatened to kill him over a  2009 disputed $2 million gambling debt.

Music legend Quincy Jones, Francis's neighbor, was dragged into the defamation claim brought by Wynn last April as a witness and proved to be the defendant's undoing, according to accounts by Courthouse News Service and THR, Esq. Francis alleged that Jones showed him emails from Wynn purportedly threatening to bash Francis in the head with a shovel and bury him in the desert over the gambling dispute, but Jones testified at trial that he knew nothing about any such alleged emails.

Wynn, who owns the Bellagio among other gambling resorts, reportedly will donate the $20 million award and $20 million punitive damages to charity. Francis plans to appeal.

UPDATE: Minn. Peer-to-Peer Song Filcher Socked with $220k Judgment

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The United States Court of Appeals for the Eighth Circuit has weighed in on the epic three-year litigation war between the Recording Industry Association of America ("RIAA") and Minnesotan Jammie Thomas-Rasset, whose love of sharing copyrighted songs on the defunct KaZaA is going to cost her $220,000.

In Capitol Records, Inc. et al. v. Jammie Thomas Rasset  (Case No. 11-2820), the appellate court assessed the defendant $9,250 for each of 24 copyrighted '80s and '90s hits she downloaded, ranging from Green Day's Basket Case to Journey's Don't Stop Believin'.  The parties have gone through three trials dating back to 2007 and seen damage awards for copyright infringement soar to $1.5 million and plunge to $54,000 (see "TUOL" posts 7/25/11, 1/29/10, 1/26/10).  Rasset was one of the first individuals to contest peer-to-peer copyright suits filed by the RIAA against devotees of defunct companies such as KaZaA and Lime Wire.

Libya Loses Cybersquatting Case

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In his 19-page decision last week in Libya & Embassy of Libya v. Ahmad Miski (Case No. 1:06-cv-02046), United States District Court for the District of Columbia Judge Reggie Walton sided with a domain name-holder, ruling that the North African nation failed to show "Embassy of Libya" or "Libyan Embassy" were entitled to trademark protection.

As reported by Legal Times, Libya sued Miski, executive director of the Washington-based Arab American Chamber of Commerce, for trademark infringement [15 U.S.C. secs.1125(a)(1)A,(B)] and violation of the AntiCybersquatting Consumer Protection Act [15 U.S.C. sec. 1125(d)]. The defendant in 2002 and 2003 purchased four domain names that combine the words embassy and Libya.

Judge Walton noted that the plaintiffs never registered the Embassy of Libya name for trademark protection, and failed to present evidence that the public was confused by the defendant's Web sites. Judge Walton held that the embassy's name was descriptive, rather than suggestive, and therefore, did not merit trademark protection. Descriptive names merely describe the essence of an entity, whereas suggestive names require consumers  to work harder to understand what the name or mark entails.

In ruling that Miski had done nothing illegal, Judge Walton wrote that the Libyan embassy also failed to show continuous use of its mark because it was unable to offer services during the 18 years that the U.S. imposed sanctions on the nation then ruled by Muammar Gaddafi, who was deposed and killed in a 2011 insurrection.

If you want to do business online with the Embassy of Libya, you have to go to www.libyausaembassy.com.

Old News: Journal Register Co. Re-Enters Bankruptcy

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Despite a promising shift to digital news, nagging debt and a near 20 percent decline in print advertising over the past two years has again pushed the Journal Register Co. this week to file for Chapter 11 bankruptcy protection, according to stories in The New Haven Register and NiemanLab.org.

The Yardley, Pennsylvania-based Journal Register Co., owner of the New Haven Journal Register and the Media News chain, emerged from Chapter 11 bankruptcy in 2009 six months after declaring insolvency. For now, the company maintains its latest filing to seek reorganization and protection from creditors will not result in any staff reductions.

The Journal Register Co. is managed by Digital First Media, whose CEO John Paton has succeeded in a relatively short time period in boosting significantly the Journal Register's online readership and digital revenues. According to news accounts, the company expects to exit bankruptcy in 90 days and publication will continue uninterrupted.

The Alden Global Capital hedge fund, which owns the Journal Register Co., is likely to remain in charge of the company once the dust has settled, and may even acquire Digital First Media in the bargain, according to reports.

Minn. High Court Distinguishes Medical Device from Medical 'Tool'

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The Minnesota Supreme Court yesterday heard oral arguments in David McKee, M.D. v. Dennis Laurion (Case No. A11-1154), a libel case that turns on the question of whether the plaintiff was defamed by a comment by the defendant on a rate-your-physician Web site.

McKee, a neurologist at Northland Neurology and Myology in Duluth, treated the defendant's father, Kenneth Laurion in April 2010, when the 65-year-old was hospitalized after suffering a stroke, according to an article in The Minneapolis Star-Tribune. The defendant, displeased with the neurologist's bedside manner, posted the following allegedly defamatory comment on a Web site: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"

A trial court dismissed McKee's defamation claim, but the Minnesota Appeals Court reinstated the case last January. The defendant is asserting Internet free speech rights and arguing that calling someone a "tool" is a statement of opinion not susceptible to a defamatory meaning, a position that the Star Tribune article suggested found favor with some of the Minnesota Supreme Court justices (and the humble staff of "TUOL"). Plaintiff's counsel, however, argued the defendant fabricated the purported conversation with a nurse and damaged the doctor's reputation by portraying him as uncaring and insensitive.

A decision is expected from the High Court within three to five months, according to the Star Tribune article. Until then, the medical experts at "TUOL" prescribe that the plaintiff take two pills a day until the swelling in his ego goes down.

9th Circ.: Monroe Heirs Can't Benefit from Calif. Privacy Law

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Although Hollywood sex symbol Marilyn Monroe died of a drug overdose at age 36 in 1962, her image and persona have continued to generate millions of dollars for her heirs. But following an adverse ruling last week by the United States Court of Appeals for the Ninth Circuit in Milton H. Greene Archives, Inc. v. Marilyn Monroe, LLC et al (Case No. 08-56471),  her beneficiaries may have crossed the River of No Return (1954).

According to accounts in The New York Times and THR, Esq., the appellate court ruled that the Delaware-formed Marilyn Monroe LLC cannot benefit from California's right of publicity statute [Cal. Civ. Code sec. 3344] that allowed her estate to reap the financial rewards of holding onto the rights of a celebrity's name, likeness and image. Monroe was born Norma Jean Mortenson in Los Angeles, but was a New York resident when her untimely death occurred, the Ninth Circuit concluded, and the Empire State's right of publicity statute [N.Y. CLS Civ. R. sec. 50(2000] does not recognize posthumous privacy rights.

Forbes Magazine's "Top Earning Dead Celebrities" macabre feature indicates Monroe generated $27 million in income in 2011, placing her behind only Michael Jackson and Elvis Presley in that category in which stars are not eager to be recognized, for obvious reasons. Her litigious Estate sued to prevent a San Francisco company from selling images of the actress without permission, perhaps following the imperative of one of the actress's films, Let's Make It Legal (1951), but ultimately, its tax planning strategy worked against it in the Ninth Circuit decision. As another of Monroe's films noted, Something's Got to Give (1961).