Gone Fishin'

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"TUOL" will resume posting on September 3rd. Think good thoughts about the First Amendment until then.

No 'Air Jordan' to Help, 7th Cir. Slam Dunks Scottie Pippen's Libel Suit

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The United States Court of Appeals for the Seventh Circuit this week upheld the trial court's dismissal of former Chicago Bulls great Scottie Pippen's defamation suit against several broadcasting and Internet defendants who allegedly erroneously reported he had filed for bankruptcy.

In the nine-page ruling in Pippen v. NBC Universal Media LLC et al (Case No. 12-3294), Judge Frank Easterbrook said the Basketball Hall of Fame Forward had failed to satisfy the elevated burden of proof of actual malice that public figures must meet in defamation claims, which means showing that the media defendants published the purportedly false statements knowing they were untrue or with reckless disregard of their truth or falsity.

The 48-year-old Pippen filed suit in 2011 in the United States District Court for the Northern District of Illionis (see "TUOL" post 12/29/11) alleging that the defendants falsely reported that he had sustained $120 million in financial losses and had filed for bankruptcy, which he claimed cost him fees from endorsements and personal appearances.

"Since Pippen's opportunities diminished after the statements were made," Judge Easterbrook wrote, "he believes they must have diminished because the statements were made. This theory of causation is weak for professional athletes, whose earnings related to past stardom drop as time passes since their playing days."

Judge Easterbrook's opinion also rejected Pippen's argument that the defendants were liable for not correcting the false information about his financial well-being in online accounts. "[E]xcluding the Internet from the single publication rule would eviscerate the statute of limitations and expose online publishers to potentially limitless liability," Judge Easterbrook concluded.

Under the single publication rule, subsequent circulation of an allegedly libelous story does not create fresh claims of defamation; rather, the claim for relief for defamation is complete when the initial publication occurs. Evidently, Pippen's  court appearances require Michael Jordan and Phil Jackson to be successful.

Tip of the hat to THR, Esq. Web site for its full-court press on this story.

State Appeals Court Nixes Law Barring Sex Offenders from Social Networking Sites

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In State of North Carolina v. Lester Gerard Packingham (Case No. 10CRS57148), the North Carolina Court of Appeals this week unanimously declared unconstitutional N.C. Gen. Stat. sec. 14-202.5, which made it a Class I felony for a registered sex offender to access commercial social networking Web sites that permit minors to become members.

Under N.C. Gen. Stat. sec. 14-208.7, persons convicted of sexually violent offenses or offenses against minors after 1996 must register as sex offenders and maintain that registration for a minimum 30 years. The appellate court overturned the social networking ban on First Amendment grounds because it "arbitrarily burdens" registered sex offenders from engaging in modes of communication and expressive activity without actually shielding children from sexual predators.

According to the Jurist Web site, a federal court earlier this year overturned an Indiana statute barring sex offenders from social networking sites, ruling the law did not survive strict scrutiny review mandated in free speech cases.

HuffPo Next Month to Require Commenters to Use Real Names

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Beginning in September, the Huffington Post will require commenters on their posts to use their full given names, founder Arianna Huffington said yesterday.

As reported in The Boston Globe and elsewhere, HuffPo, which claims to have generated more than 260 million comments on its posted stories (& sideboob images of celebs of the Miley Cyrus & Rhianna ilk, no doubt) since its inception in 2005, will no longer allow comments by pseudonymous posters. Presently, the mega-news aggregator employs 40 human monitors and an advanced screening algorithm, but Huffington says more is needed in our ever-coarsening culture.

The Globe story quoted Huffington as saying: "I feel that freedom of expression is given to people who stand up for what they say and not hiding behind anonymity."

The U.S. Supreme Court did not share those sentiments in McIntyre v. Ohio Election Commission, 514 U.S. 334, 341-42 (1995). Anonymity, the High Court said, "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular." In leaving it up to authors to decide whether to identify themselves, the Court wrote: "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority."

Keep that in mind, Arianna, when you ask followers to add monikers to their reactions to stories such as Jen Aniston Wows in white bikini.

Fox News Axes Corp Comm. Exec VP; 'Financial Irregulariies' Alleged

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Brian Lewis, who has been at Roger Ailes' side since cable powerhouse Fox News Channel's inception 17 years ago, was terminated for cause July 25 and escorted from the premises where he most recently served as Executive Vice President, Corporate Communications, according to an account by The Hollywood Reporter.

The network issued a statement that Lewis was terminated for alleged breach of his employment contract and over purported issues involving "financial irregularities."  Lewis kept a watchful eye over public relations matters involving Fox News, Fox Business Network, 20th Television and Fox Television Stations, according to the THR article.

Lewis fostered a close relationship with Ailes and was considered his (far?) right-hand man. He joined Fox in 1996 as vice president of public relations and most recently, acted as a liason to author Zev Chafets, who recently completed a flattering biography of Ailes, Roger Ailes: Off Camera.

In Legal 'Twist,' Federal Judge Keeps Chubby Checker Trademark Suit Alive

Cover of Chubby Checker

"Let's Twist Again," is the battle cry of 71-year-old Rock 'n Roll legend Chubby Checker after United States District Court for the Northern District of California Judge William H. Alsup last week ruled Checker (nee Ernest Evans) may pursue a $500 million trademark infringement claim against defendants Hewlett-Packard and Palm, Inc.

The case, Ernest Evans et al. v. Hewlett Packard Company & Palm, Inc. (Case No. 3:13-cv-02477-WHA), was brought in the San Francisco federal court in February 2013, by Checker over a smart phone app called Chubby Checker that purportedly enabled users to gauge a man's genital size based on his shoe size.

The South Carolina native best known for early '60s hits including The Twist, Pony Time and The Hucklebuck, sued out of concern his stage name would be forever-linked to obscene images, according to a New York Daily News article written last February. The defendants deny any involvement in the creation of the app allegedly developed by Magic Apps, but removed it from HP and Palm-hosted sites in September 2012.

The lawsuit claims the plaintiff received no compensation for the app's alleged unauthorized use of the Chubby Checker moniker and blames the defendants for allegedly endorsing the app and misleading consumers.  Both sides are actively engaged in settlement negotiations, according to a joint case management status report filed by the parties this month with the court.

The devoted staff of "TUOL" is tempted to exercise its puerile sense of humor by pointing out Checker's recordings include Limbo Rock, The Fly and Birdland, but instead, will just put on its Blue Suede Shows (size 18, app lovers) and walk away from the whole thing.

UPDATE: AOL Patch Jettisons 40 Percent of Staff

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AOL CEO Tim Armstrong last Friday took actions promised in his earnings call to investors (see "TUOL" posts 8/7/13 & 8/9/13), laying off 40 percent of the staff of the Patch hyperlocal news sites.

Reports on the number of workers actually pink-slipped to reach that 40 percent figure ranged from 350 to 480, in various news accounts of the staff reduction by BusinessInsider.com, JimRomanesko.com and the Associated Press. In a brief 9-minute call during which he took no questions, Armstrong said 60 percent of Patch sites would continue to operate, 20 percent would consolidate or shut down and 20 percent would seek to operate jointly with other entities.

Patch staffers complained to Romanesko.com that Patch Regional Editors were not consulted before the axing began, and accused AOL of randomly targeting employees based on recommendations by an outside consulting firm, rather than on the unlucky workers' performance.

Slow News Day in Portland?

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It's not news that there's no love lost between the local press and 64-year-old Paul LePage, Maine's 74th Governor.

LePage, the Republican former Mayor of Waterville who became governor in January 2011, once told students that buying a newspaper was akin to paying someone to lie to you.  It's also a poorly kept secret that the loose-lipped LePage often sparks controversy with shoot-from-the-hip comments, whether referring to the IRS as the "new Gestapo," or commenting that the local NAACP chapter offended by his non-participation in Martin Luther King Day events could "kiss his butt."

Still, no further proof is needed that we're in the throes of the Dog Days of Summer than the kerfuffle fueled by the Portland Press Herald over a recent lame LePage witticism. Sitting in an F-35 Lightning II fighter jet simulator at Berwick defense contractor Pratt & Whitney facility last week, LePage was captured in video footage responding to a question about what he wanted to do, saying: "I want to find the Portland Press Herald building and blow it up." Not wanting to let his bon mot go unnoticed, LePage, when asked later at the event by a WMTW-TV reporter if he had any targets in mind when he was in the simulator, replied: "The Press Herald and the Bangor Daily News." Guess you had to be there.

The Press Herald  wrote a story about the remarks, eliciting criticism about the comments from political opponents of the Governor. The daily even went so far as to ask the FBI in Portland about the statements, only to be told--probably in a monotone--that the FBI responds to threats that are specific and credible, which the law enforcement mavens concluded LePage's statements were not.

The Press Herald has more important fish to fry, such as figuring out how to stay afloat in a newspaper-unfriendly economic environment (see "TUOL" post 10/14/11), and  Gov. LePage, who holds the state record for vetoing bills and is a GOP small government champion, might consider adding a joke writer to his staff.

When the tireless staff of "TUOL" wants to be stunned, shocked, or wowed by news events, it bypasses the Press Herald and heads directly to The Huffington Post for photos of actresses not wearing make-up or sideboob photos of Miley Cyrus.

AM News Flatlines; Burial in September

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After a 55-year run, AM News will cease publication September 9, affecting 20 staffers, Crain's Chicago Business reported yesterday.

The American Medical Association also will shut down the AmedNews.com Web site, though content will remain accessible through the end of 2013. Sagging ad sales was blamed for the decision to end the print edition of the magazine that published 24 times annually. AM News boasted a print circulation of about 230,000.

The research-oriented Journal of the American Medical Association ("JAMA") will continue to publish, according to the Crain's article.

Citizen Journos Among Those Pardoned by Kuwaiti Emir

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Right result, wrong reason, is the reaction of human rights activists and free speech proponents to Kuwaiti Emir Sheikh Sabah al-Ahmad Al-Sabah's pardoning of numerous prisoners, including citizen journalists Badr al-Rashidi and Ourance Rashidi, according to watchdog group Reporters Without Borders ("RWB").

The mass release of inmates last week, including al-Rashidi and Rashidi, who had been incarcerated since June 14, 2012 and October 27, 2011, respectively, was occasioned by the end of Ramadan, during which gestures of mercy are commonplace.  The online journalists were among those jailed for criticizing the Emir, according to RWB.

Insulting the Emir, under Kuwait's criminal code, remains punishable by a maximum five years' imprisonment.

Financial Woes Prompt Pacifica NYC Station to Jettison 2/3 of Staff

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Chronic financial problems plaguing Pacifica Foundation-owned forced WBAI-FM to pink-slip 66 percent of its staff effective today, the New York Times reported.

Nineteen of the noncommercial station's 26 staffers were axed, as Pacifica redirected funds to pay transmitter rent and retain the station's license. The move eliminated the 50-year-old station's news department.

WBAI-FM, long a liberal voice on the airwaves, was particularly hard-hit financially by Hurricane Sandy, which prompted the station to vacate its Wall St. studio. The Times reported the station has been awash in red ink for nearly a decade.

Other Pacifica Foundation stations are teetering as well, according to the Times article, including Washington, D.C.-based WPFW-FM, which insiders forecast may not last through September.

UPDATE: Fed. App. Ct. Zaps Cartoonist's Heirs in Marvel Copyright Suit

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In the 57-page opinion this week in Marvel Entertainment, Inc. v. Kirby (Case No. 11-3333) by Judge Robert D. Sack, the United States Court of Appeals for the Second Circuit sided with Walt Disney Co.-owned Marvel Entertainment in a copyright termination rights suit involving the heirs of renowned cartoonist Jack Kirby.

The federal appeals court upheld the decision of United States District Court for the Southern District of New York Judge Colleen McMahon, who in 2011 granted summary judgment to Marvel (see "TUOL" post 8/1/11), finding that the company held exclusive ownership of copyrights on characters including Iron Man, Spiderman, The Fantastic Four and The Incredible Hulk, and that Kirby's comic book artistry was a work for hire.

The case involved 262 titles between the years 1958-1963. The Second Circuit agreed with the trial court that Barbara and Susan Kirby did not have copyright termination rights under 17 U.S.C. sec. 304(c)(2). The three-member appellate panel concluded the trial court lacked personal jurisdiction over the late cartoonist's other two children, Lisa and Neal Kirby, vacating the judgment against them. "The judgment here will declare the existence vel non of Barbara and Susan's termination rights," Judge Sack wrote, "and whatever the practical effect of this declaration, it can do no more or no less."

The disputed works were created at Marvel's instance and expense, and the heirs failed to prove the existence of any agreement to the contrary, the court concluded.

UPDATE: Patch Won't Hold Massive Leak of Staffers Next Week

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More than 550 staffers may be pink-slipped next week and as many as 400 Patch hyperlocal news sites may be shuttered unless partners can be found to run them, AOL CEO Tim Armstrong said today.

According to news media accounts, including the New York Observer, Poynter.org and the AOL-owned TechCrunch, two days after Armstrong's earnings call to investors (see "TUOL" post 8/7/13), AOL will focus next week on 400 of the 900 Patch sites that are far-removed from fulfilling AOL's goal of Patch profitability by the end of the year.

AOL bought Patch in 2009 when Armstrong, who launched Patch in 2007, took the helm of AOL. Patch's costs have already been trimmed by a quarter this year.  Reports that Patch CEO Steve Kalin and Chief Content Officer Rachel Feddersen are headed out the door were not confirmed by Armstrong.

Armstrong took some flak from TechCrunch for using the word impacts, rather than layoffs, in discussing the fate of editorial staffers, who soon may feel as if they ran into a brick wall, and would likely find impact more appropos.  AOL also has been taken to task in press accounts for the relative short notice given to employees.

The Sun: Erin Won't Go Bragh-less Anymore

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On the 39th anniversary of President Richard M. Nixon announcing he would resign the presidency, The Unruly of Law, as a serious media law and journalism blog, today should post about profound changes in the communications industry and serious challenges facing our deeply entrenched First Amendment principles.

But they don't call 'em the "Dog Days of summer" for nothing, so instead, "TUOL" reports that the Ireland edition of  Rupert Murdoch's tabloid The Sun this week decided to discontinue running photos of topless women on page 3 that will continue to appear in the Great Britain edition because of what Irish edition Editor Paul Clarkson labeled "cultural differences."

As reported by The Guardian, Clarkson explained that Page 3 is a "popular pillar of the Sun in the UK and part of a package (ed. note: some package!) of great journalism, which engages, entertains and informs in equal measure." The Irish Sun, Clarkson went on to say, strives "to cater for our own readers' needs and reflect the cultural differences in Ireland."

Those readers' needs must be behind the reason the Irish Sun on Monday published a nude photo of Hollywood siren Marilyn Monroe that did not display her nipples (Bust Stop?). According to The Guardian article, the Irish Sun, which sells more than 63,000 copies daily--plunging like a neckline from 72,000 a year ago--has thus far drawn one angry complaint over its decision to engage in a cover-up, so to speak, and "TUOL" hopes the protestor had the good sense not to leave his name.

One only hopes that all these years that the Irish Sun displayed Page 3's bare-breasted women didn't contribute to The Troubles. One also hopes that the self-censorship won't prevent The Irish Sun from publishing on this momentous day a photo of President Nixon's bust.

A Rough Patch

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AOL CEO Tim Armstrong's not OK with the unprofitable performance of the online company's network of news sites, Patch (see "TUOL" 5/9/13 post), and outlined plans to turn things around during a second quarter earnings call to investors this week, Forbes reported.

Armstrong said by the end of this year, 300 or so Patch sites that are lagging in the earnings department will be shut down, sold off, or possibly partnered, perhaps with money-starved  newspapers whose online editions are not fully developed. Forbes quoted Armstrong as saying the average cost of a Patch site is "much, much lower" than the two-year-old figure of $150,000.

Newsstand's Last Stand?

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The Alliance for Audited Media ("AAM") today reported first-half magazine sales figures and the news continue to be bad, with celebrity and women's periodicals feeling the most pain, according to a New York Times article.

Paid subscriptions dipped 1 percent, compared to a 10 percent plunge in newsstand sales of magazines, AAM reported. Cosmopolitan was in free-fall, suffering a near 24 percent decrease in newsstand sales, and Glamour newsstand sales were 28 percent lower than the same period a year ago. Pre-Royal Baby, People witnessed an 11.8 percent drop-off in newsstand sales,  better than Us Weekly's 16.7 percent decrease or Life & Style's 20.9 percent plunge, the Times article reported. Vogue flew off the newstand shelves at a rate 10.4 percent below 2012 figures and Vanity Fair newsstand sales were down 11 percent.

Fortunately for the publishers of these titles, the AAM numbers offered a glimmer of hope through a boost in sales of digital versions of periodicals. in the first half of this year, 10.2 million digital replica editions of magazines were sold, 3.3 percent of all magazine sales, the Times article noted.

Amazon.com Founder Buys WaPo in $250m Cash Deal

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After an 80-year grip on the company, the Graham family has agreed to sell The Washington Post and affiliated publications to the 49-year-old founder of Amazon.com, Jeffrey P. Bezos, in a $250 million cash deal, the Post reported today.

Days after Boston Red Sox owner John Henry agreed to buy The Boston Globe  from The New York Times Co. for $70 million cash, Bezos will bring his expertise in digital companies and $25.2 billion net worth to the owner's chair of the newspaper that helped bring down the presidency of Richard M. Nixon with its Watergate scandal coverage.  Seattle-based Amazon.com will have no role in WaPo, with Bezos dipping into his pocket money to become sole owner.

The Post article reported that Bezos, who started Amazon.com 19 years ago with a $300,000 stake from his parents, plans to take the enterprise private.  Executive Editor Marty Baron will stay on, as will Publisher Katherine Weymouth, niece of Post Co. Chair Donald Graham.

The deal is expected to be finalized within 60 days.  In a letter published in the Post, Bezos said he plans to remain in Seattle and pledged "[t]he paper's duty will remain to its readers and not the private interests of its owners."  There was no suggestion of any layoffs of the WaPo staff, which is roughly 2,000 strong.

As reported by this blog (see "TUOL" 5/6/13 post), the Post has struggled mightily in recent years, with its revenues declining from $957 million in 2005 to $581 million last year. The metropolitan daily lost $53 million last year and saw its circulation in 2012 dip to 471,000, compared to 705,000 in 2005.

Westchester Daily Cuts 11% of Staff; Gannett Paper Trimming Approaching 300 Jobs

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Gannett Co.-owned The (Westchester) Journal News has laid off 11 percent of its staff, eliminating 26 jobs, as Gannett's U.S. Community Publishing division's blood-letting nears 300 workers pink-slipped, the Gannett Blog (Gannettblog.blogspot.com) reported today.

Seventeen of the Journal News employees terminated worked in the newsroom, reducing the daily's total workforce to 206. Gannett, the nation's largest newspaper publisher, has been tight-lipped about the latest round of staff reductions, but the Gannett Blog tally is roughly 280 jobs lost across 45 sites. Even the Gannett Government Media division was not spared, as the Army Times drummed 17 staffers off the premises last month.

The U.S. Community Publishing division employs about 18,000. The latest round of layoffs is the company's most severe since June 2011.

Federal Judge Blots Out Noted Art Authenticator's Libel Suit

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In a 51-page ruling in Biro v. Conde Nast et al. (Case No. 11-civ.-4442), United States District Court for the Southern District of New York Judge J. Paul Oetken tossed a defamation claim brought by a forensic art expert arising from an unflattering 2010 article in The New Yorker.

David Grann, author of the article, The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art, was sued for defamation by Canadian art authenticator Peter Paul Biro, as was The New Yorker's publisher, Conde Nast, and in subsequent amended complaints, Gawker Media, Business Insider, among others. The 16,000-word article casts a suspicious eye on Biro's methodology that matched fingerprints on artwork to the artists who painted the pieces.

Oetken, who according to accounts by Courthouse News Service and The New York Times, has been widely published in scientific journals and often lectures at universities, was deemed a limited public figure by the Court. Judge Oetken ruled Biro failed to meet the elevated burden of proof of actual malice in his defamation claim or show that Grann fabricated quotes or relied on "wholly unverified or patently unreliable sources" in preparing The Mark of a Masterpiece.

In granting the defendants' motion for judgment on the pleadings, Judge Oetken found: "There is little question that a reader may walk away from the article with a negative impression of Biro, but that impression would be largely the result of statements of fact that Biro does not allege to be false."  Attorneys for the plaintiff plan to appeal the ruling to the United States Court of Appeals for the Second Circuit.

IBT Media Acquires Newsweek; Publication to Remain Digital-Only

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Newsweek, an 80-year-old publication that once boasted readership of three million, has become the Christmas fruitcake of publications--a hard-to-swallow confection no one wants that gets recycled from one unlucky recipient to another.

IBT Media, an eight-year-old digital-only company that publishes the International Business Times, has acquired Newsweek from IAC/Interactive for an undisclosed sum, according to press accounts. For readers keeping score, The Washington Post. Co. sold Newsweek to the late audio magnate Sidney Harman for $1 in 2010. Harman, in turn, partnered with IAC's Barry Diller to combine Newsweek with The Daily Beast in 2012, and a digital-only version of the news magazine has very quietly been produced since January 2013 (see "TUOL" post 5/29/13).

The International Business Times globally publishes 10 editions in several languages and claims to reach 7 million readers in the U.S. and 13 million people worldwide monthly. The Daily Beast will continue to produce Newsweek during a 60-day transition period.

In what English majors will recognize both as foreshadowing and irony, IBT, a company on the upswing, during a 2011 expansion moved into New York City offices previously occupied by Newsweek.

Acquitted Anthony Retains 'Her Story' in Settlement with Bankruptcy Trustee

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U.S. Bankruptcy Court for the Middle District of Florida Judge K. Rodney May has accepted an agreement between Trustee Stephen L. Meininger and Casey Anthony concerning the disposition of the rights of her life story involving her 2011 acquittal in the trial for the murder of two-year-old Caylee Anthony, whose remains were discovered in December 2008.

The Orlando Sentinel reported that the 27-year-old Anthony, who filed for Chapter 7 bankruptcy last January citing $792k in debt, will pay $25,000 to the bankruptcy estate and put to rest any struggle over whether her story constitutes an asset.  Last March, Meininger asked the Court for "exclusive worldwide rights" to Anthony's story as an asset to satisfy creditors, but withdrew his motion two months later. Anthony's attorneys, according to the Sentinel article, claimed compelling the sale of Anthony's story violated her First Amendment rights and would be invasive of her private thoughts.

Anthony has maintained a low profile since the around-the-clock cable tv coverage of her highly charged trial.

Federal Shield Law in Limbo Until the Fall

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The Senate Judiciary Committee this week bolstered a proposed federal shield law, the Free Flow of Information Act of 2013 (S. 987), but failed to muster a final voice vote on the measure before adjourning for Congress' summer recess.

Senators were unable to agree on criteria defining who would be a  journalist eligible for protection from having to reveal confidential sources and information to authorities. Sen. Charles Schumer (D-N.Y.) acknowledged that information-gathering has evolved and favored a broader interpretation of journalist, whereas Sen. Dianne Feinstein (D.-Calif.) was wary of bloggers and WikiLeaks and said the shield law should only cover "real reporters."

The Committee did unanimously consent to a "manager's amendment" that requires a judge to rule on whether a notice of a subpoena to a journalist could be delayed and would require a judge to sign off on a 45-day extension of the original 45-day suspension of notice.

Plain Dealer Dealing Less to Clevelanders; Massive Layoffs & Reduced Home Delivery

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Cleveland, Ohio's second largest city and the nation's 45th largest city, deserves better.

New York-based Advance Publications yesterday pink-slipped 50 newsroom employees at the Cleveland Plain Dealer, one-third of its editorial workforce, as the daily prepares next week to reduce home delivery to four days a week, according to reports by the Associated Press and Crain's Cleveland Business.

Last year, the Plain Dealer slashed its newsroom personnel by a third, from 168 to 110 employees (see "TUOL" post 12/7/12). Business Editor Randy Roguski was among the Newspaper Guild member photogs, page designers and reporters who received a fateful phone call yesterday cutting them loose. The paper plans to publish a six-page supplement this Sunday outlining proposed changes, according to Crain's.

Among those changes will be home delivery of the paper only on Wednesday, Friday, Saturday and Sunday. Some of the staffers laid off may re-apply for jobs with the Northeast Ohio Media Group, a new digital-emphasizing entity responsible for providing content for Cleveland.com and for handling the Plain Dealer's marketing and ad sales.

The AP article reports the Plain Dealer's weekday circulation is roughly 286,000.