Life Coach: The Blair Pitch Project

Cover of The Blair Witch Project

Janet Cooke, Stephen Glass, R. Foster Winans. No litany of the list of charter members of the journalists' Hall of Shame was ever complete without including Jayson Blair.

The former New York Times wunderkind published his memoir in 2004--Burning Down My Masters' House: My Life at the New York Times, in which he accused The Grey Lady of racism and attributed the ethical missteps that led to his resignation from the Times in May 2003, to substance abuse and bipolar disorder. A 28-member task force of Times staffers and outside journalists examined Blair's body of work at the Times and uncovered 36 national stories written by Blair between October 2002, and May 2003, rife with alleged fabrications and instances of plagiarism. NYT Executive Editor Howell Raines and Managing Editor Gerald Boyd resigned because of the imbroglio.

After maintaining a relatively low profile over the past five years, Blair has re-surfaced as a life coach in Ashburn, Virginia. According to his Website (www.jayson-blair.com), he focuses on career assessment, attention deficit disorder, developmental disorders and substance abuse problems. Blair works for Ashburn Psychological Services where he receives praise from his superiors for his ability to connect with patients.

In this case, one hopes the adage "old habits die hard," does not apply, as clients dissatisfied with their lives should not be counseled to make up a new one.

News Media Presses to Keep Public Speeches Public

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"Off the record," "not for attribution," "background," "deep background." The lexicon employed by journalists in their dealings with news sources is increasingly muddled and meaningless in the blogosphere and Twitterville.

Still, the Sunshine in Government Initiative has rallied print and broadcast journalists in Washington, D.C. and nationwide to attempt to eliminate the growing trend of government officials couching their remarks in public forums as "off the record."

More than 6,800 journalists sent a letter to more than 600 press secretaries within Congress and the Obama Administration calling for an end to the practice of going off the record in the presence of large audiences. The Daily Gallery, Radio-Television and Periodicals Congressional press galleries backed the letter. Signatories include The New York Times, U.S. News & World Report, the Society for Professional Journalists. American Society of News Editors, and Radio-Television Correspondents' Association.

Aimed principally at federal agency and Congressional staffers, the initiative believes "background" briefings should be confined to one-on-one settings between a reporter and a government news source designed to encourage transparency in the daily operations of government.

By the way, this post is on "extremely deep background," so you can't use it.

Longing for Burma Shave Billboards

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U.S. District Court Judge for the District of South Carolina Cameron McGowan Currie has ruled that a state law that prohibited billboards displaying adult-oriented businesses within a mile of public roads constitutes an unconstitutional prior restraint on the First Amendment.

The statute, which took effect in February 2006, and required compliance within three years, was challenged as a violation of free speech by the Lion's Den Adult Superstore in Orangeburg County, which boasted four billboards advertising the adult bookstore along Interstate Highways 26 and 95 between Columbia and Charleston.

Judge Currie issued a permanent injunction against the removal of the billboards by state officials. Last week, a federal judge in Kansas approved an agreement between Lion's Den and the Attorney General's office concerning a similar statute under which the AG acceded not to enforce highway sign size and content restrictions (see "TUOL" 7/2/09).

Judge Orders Google to ID Model-Trashing Blogger

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New York Supreme Court Judge Joan Madden has lifted the cloak of anonymity to reveal the identity of a blogger who featured Vogue cover model Liskula Cohen in five derisive posts in August 2008, on a blog entitled "Skanks in NYC."

In January 2009, Cohen petitioned the court for pre-action discovery from Google to uncover the author of the postings that characterized Cohen as a "psychotic, lying, whoring...skank." In her ruling ordering Google or Blogspot to provide Cohen with the name, address, email, IP address, and phone number of the blogger, Judge Madden held that Cohen had established an underlying legitimate defamation claim to warrant enforcement of her subpoena (In the Matter of the Application of Liskula Cohen for an action pursuant to Sec.3102(c) of the Civil Practice Law and Rules to compel disclosure from Google, Inc. and/or its subsidiary Blogger.com, Index No. 100012/09).

Cohen alleged the postings, along with photos of her, captions, and commentary were defamatory per se because they falsely portrayed her as promiscuous and unclean. Counsel for the blogger argued the comments were rhetorical hyperpole, opinion, and vague insults that were not actionable as defamation.

Judge Madden found the use of words such as "skanky," "ho," and "whoring," when accompanied by photos of Cohen, "carry a negative implication of sexual promiscuity."

The fashion model was pleased with Judge Madden's ruling, but rumors that she planned to regurgitate her victory dinner are unfounded.

Newsday Faulted for Rejecting Tennis Channel Ad

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Newsday is being slammed for turning down an ad from the Tennis Channel that is highly critical of Cablevision, Newsday's parent.

The ad, which appeared in The New York Times, New York Post, Bergen Record, and Westchester-Rockland Journal News calls out Cablevision for its limited coverage of the U.S. Open and encourages readers to subscribe to DirecTV, Verizon FiOS, or another Cablevision competitor. The ad reads: "Thanks for nothing Cablevision. You've dropped the ball by preventing your subscribers from seeing Tennis Channel's round-the-clock coverage of the U.S. Open."

Cablevision acquired Newsday from the Tribune Co. Despite declining ad revenues experienced by mainstream print journalism generally, Newsday declined to comment on why it passed on adding to its net income from the Tennis Channel.

It certainly appears as if Newsday did not want to ruffle the feathers of its new owner Cablevision, and if that's the case, this judge rules a double fault.

Superman and Bizarro Superman Battle in Court

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Call it the Man of Steel versus the Men of Steal.

Warner Bros. and DC Comics must share the ownership of copyrights of portions of the Superman oeuvre with the heirs of the superhero's creator, Jerry Siegel, ruled Judge Stephen Larson of the U.S. District Court for the Central District of California, Eastern Division. The case is Joanne Siegel and Laura Siegel Larson v. Warner Bros. Entertainment, Inc., Time Warner, Inc. and DC Comics (Case No. 04-8400).

The plaintiffs are represented by attorney Marc Toberoff, who successfully represented the heirs of the creator of Lassie in a copyright dispute that was a real bitch. Judge Larson's ruling gives the plaintiffs co-ownership of the first two weeks of the Superman daily comic strips, along with part of the backstory of Superman, such as the superhero's origins on planet Krypton and his crash-landing on earth. The defendants are the sole owners of the copyrights involving the term "kryptonite," master villain Lex Luthor, and the tights-wearing hero's ability to fly.

Superman's X-ray vision would have trouble penetrating the judge's 92-page decision.

Reader's Digest's Latest Chapter Is 11

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Reader's Digest, founded in 1922 by Lila Bell and DeWitt Wallace, will submit a voluntary pre-packaged Chapter 11 filing in U.S. Bankruptcy Court under a restructuring agreement with its principal lenders.

The bankruptcy move is intended to reduce the publication's debt to $550 million from $2.2 billion. The entire Reader's Digest Association's board of directors, except for CEO Mary Berner, has resigned.

The Pleasantville, N.Y.-based publication's senior lenders include GE Capital, JP Morgan and Bank of America. In 2005, the magazine adopted the slogan: "America in your pocket." Now the magazine's pockets are empty. It would be fitting if the magazine underwent a "condensed" bankruptcy.

Chillin' II--the Sequel

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No blogging today as your humble poster is chasing down media law & journalism leads in the Berkshires this weekend. "TUOL" resumes Monday.

In Union-Tribune There Is No Strength

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Three months after new owner Platinum Equity lopped 192 positions off the newspaper's payroll, The San Diego Union-Tribune has announced that the daily will further reduce its staff by 112.

The newspaper is promoting its coverage of local community news and prodding small businesses to advertise at reduced rates through a "micro-zoning" inititative. The Platinum Equity investment firm is one of three prospective purchasers of The Boston Globe that submitted bids to Globe parent The New York Times Co.

At its current pace, the Union-Tribune may soon have the same number of players as the San Diego Padres and would likely be as inept.

You Gotta Have Friends, But Tweets?

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The news on the tweet, er, street, is that social media monster Facebook, already four times the size of Twitter, outpaced its rival in overall growth in July.

According to TechCrunch, Facebook drew 87.7 million unique visitors in July, a 14 percent boost over its June figures, while Twitter bested its June figures by 6 percent, attracting 21.2 million unique visitors to its U.S. Website. Facebook beat Twitter in new visitors by a 10 to 1 margin.

The estimates compiled by comscore do not include statistics from desktop and mobile outlets Tweetdeck, Tweetie, and Seesmic. Overall, Twitter is outgrowing Facebook on an annual basis because it began from a smaller base of initial users. The Palo Alto, California-based Facebook launched in 2004, while the San Francisco-based Twitter flew onto the scene in 2006.

Poke that.

Clemens Entering 'Hall Defame'?

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The litigation swirling around seven-time Cy Young Award-winner Roger Clemens continues to mount (see "TUOL" post 7/2/09), and soon, you'll need a scorecard to sort out all the players.

The latest lawsuit hails from Texas, courtesy of a former Houston gym owner. In Kelly Blair v. Michael O'Keeffe, Christian Red, Teri Thompson, Nathaniel Vinton, Robin Dobbins, & Knopf Doubleday Publishing Group (Harris County District Court Cause No. 09-50671), Blair sued the publisher of "American Icon: The Fall of Roger Clemens and the Rise of Steroids in America's Pastime," and four New York Daily News reporters who wrote the book for defamation and intentional infliction of emotional distress.

According to Blair, the book allegedly falsely portrays him as a drug dealer operating an underground steroids network. Among the allegations in the book that Blair disputes are that he sold steroids to New York Yankees southpaw Andy Pettitte and Clemens, the retired 46-year-old pitching great, and to Pettitte's father.

Last month, the U.S. District Court for the Southern District of Texas drove a stake into the heart of Clemens' defamation suit against Brian McNamee. Meanwhile, McNamee's attorneys vow to bring a defamation suit against Clemens in a New York court.

With apologies to umpires everywhere: "Plaintiff Up!"

Chillin'

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"The Unruly of Law" will not be posting today. Your humble servant will be cavorting at the Museum of Fine Arts while his blog is being unclogged.

"TUOL" will return tomorrow.

What Happens at Emperor's Club Stays at Emperor's Club

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Readers clamoring for the further sexual adventures of "Client 9" are in for a disappointment.

The U.S. Circuit Court of Appeals for the Second Circuit reversed a trial judge and decided that The New York Times has no 1st Amendment right of access to sealed wiretap applications concerning the government investigation of the Emperor's Club, a prostitution ring patronized by former NY Governor Elliot Spitzer.

In In re: Application of The New York Times Company to Unseal Wiretap & Warrant Materials(Docket Nos. 09-0854cv, 09-1164), the appellate court concluded that the Times has not shown “good cause” to unseal wiretap applications, orders, and related documents pursuant to Title III of the Omnibus Crime Control and Safe Streets Act.

The court noted that wiretap applications have not traditionally been open to the press or general public. In rejecting the lower court's finding that the documents sought by the Times were "judicial records" germane to the court's handling of the cases and of interest to the public, the appellate court said Congress' intent to preserve confidentiality and the privacy interests of those subject to the wiretaps trump any 1st Amendment interests.

Gov. Spitzer resigned within days of the March 2008, arrest of 4 persons charged with running the Emperor's Club prostitution ring and the disclosure that he was "Client 9" referred to in the investigatory materials.

Prospering Periodicals in Poor Publishing Climate

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"TUOL" posts have been awash in bleak news of declining ad revenues and faltering magazines such as Business Week and TV Guide, but some journals are still bringing the juice.

Admittedly, the 243 magazines tracked by Publishers Information Bureau ("PIB") showed a 28 percent drop in ad pages during the first half of 2009, compared to the first six months of 2008. But some periodicals increased ad pages in 2009 when matched against 2008 figures, according to PIB.

Don't look for the Utne Reader, Atlantic Monthly, Harper's or any political or news magazine among the prospering periodicals. Instead, the winners include Fitness, Muscle & Fitness, Country Weekly, Sports Illustrated for Kids, Cooking with Paula Deen, OK!, Family Circle, Organic Gardening and Scholastic Parent & Child.

The secrets to their success vary, ranging from attractive re-designs to Scholastic Parent & Child's decision to run ads on their cover. Venture capitalist alert: this blogger is considering a start-up computer magazine that will focus on food, parenting and fitness Websites. Make your blank checks payable to "TUOL."

Oprah Dodges (Dum Dum) Bullet

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A judge in the U.S. District Court for the District of Columbia has dismissed a poet's copyright infringement suit against talkmeister Oprah Winfrey for lack of subject matter jurisdiction.

The case, Damon Lloyd Goffe v. Oprah Winfrey (Case No. 09-1438), was tossed because Goffe never registered with the U.S. Copyright Office the poems that he claimed Winfrey appropriated. Talk about poetic justice--Goffe sought $1 trillion in damages, enough to make tv megastar Winfrey cut back on her summer vacation plans. A spokesperson for Winfrey said the Complaint was never served on Winfrey before the court threw it out.

"TUOL" has yet to confirm the rumor that to show her gratitude for the dismissal of the suit, Oprah is buying everyone in the country a car.

Failed Clemency Applicants Can't Hide Behind the Bush

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Applicants for clemency who were shot down by former President George W. Bush have no reasonable expectation of privacy, a federal judge has ruled.

In George Lardner v. Department of Justice (case no. 08-1398), the United States District Court for the District of Columbia said the privacy exemptions under the Freedom of Information Act (5 U.S.C. sec. 552) do not apply to the list of names of individuals who were denied executive clemency. The Office of the Pardon Attorney had initially refused to turn over the names to Lardner, an open government advocate.

In its reasoning, the Court said denial of clemency is commonplace, so applicants should not be stigmatized by the public disclosure of their application being rejected. President Bush granted 157 pardons and 6 commutations of sentences, but denied 1,535 pardon requests and 6,290 commutation requsts.

Lardner sought the names of more than 7,000 individuals who were denied a get out of jail free card from the OPA, which assists the President in evaluating clemency petitions. The Court noted that Lardner did not seek disclosure of substantive personal information contained in the actual clemency files.

Now, a Program from Your Sponsor...

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As if prime-time programming on the big 4 networks isn't hard enough to sit through, now comes word from Advertising Age that "in-show" ads may soon be the norm.

The ads would run on the top or bottom of the screen during the program. Recently, ABC reported that 29 percent of viewers remembered an ad that appeared in the center of weather graphics, rather than during a commercial break. Likewise, a series of crawl ads along the bottom of the screen during NASCAR race coverage yielded positive results.

Product placement has long been a part of contemporary movies. Might be fun if the ads matched the programming, such as Coppertone sunscreen during "Gilligan's Island" or an ad for Magellan GPS systems during "Lost." It won't be long before we're counting down the seconds before acts of terrorism on "24" courtesy of the Seiko on Jack Bauer's wrist.

Growing Price of 'Astroturf'

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Regulators are cracking down on dubious endorsements of online products and faux reviews by marketers.

"Astroturfing," a marketing practice so-named because it involves seeding the Internet with fake testimonials and reviews of products, is coming under fire both here and abroad from government officials and consumer watchdog groups. The European Union has instructed member nations to prohibit individuals from falsely portraying themselves as consumers of a product or service promoted on the Web.

Closer to home, the Federal Trade Commission (FTC) this summer will shore up its guidelines to clarify its opposition to trumped up online reviews. Recently, New York Attorney General Andrew Cuomo forced Lifestyle Lift, Inc., a cosmetic surgery practice, to fork over $300,000 after it had its employees write glowing tributes about the business while pretending to be satisfied customers, .

Recently, the travel Website, TripAdvisor, warned visitors that several of its 400,000 customer reviews of places to stay may have been written by hoteliers. In January 2009, Belkin Electronics apologized on its Website for the actions of a sales rep who paid a fee to individuals to write positive online reviews and to flag negative product reviews as "not helpful."

The FTC for more than two decades has required product endorsements to be honest opinions from actual consumers and has mandated disclosure of payments or other circumstances that might taint the credibility of the testimonials. An April survey of more than 1,000 adults by Opinion Research Corp. revealed 84 percent said they were influenced in their online purchases by favorable customer evaluations.

Probably an inopportune time to note that :"The Unruly of Law" has received 5 platinum stars and 4 opposable thumbs-up for its thoughtful coverage of media law and journalism issues from a group whose acronym is too long to repeat here.

Win Ben Stein's Column: NYT Fires Biz Writer

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Ben Stein, 64, was a speechwriter for Presidents Nixon and Ford, a scene-stealing monotone teacher in Ferris Bueller's Day Off ("Bueller? Bueller? Bueller?"),and a quiz show host on Comedy Central.

Add to the list of what Ben Stein no longer is--"Everybody's Business" columnist for the Sunday New York Times.
The Times fired Stein because of what they deemed the inherent conflict of interest in Stein shilling for www.Freescore.com. in a series of tv ads. Freescore, a financial services company, offers customers a "free" credit score but actually charges them $29.95 to see the credit report on which the score is based. Such credit reports are free in many states and under federal law, and available at Websites such as www.AnnualCreditReport.com.

The Times said it is an ethical breach for a journalist to perform public relations work, paid or not. Stein still has his Comcast tv commercials with NBA star Shaquille O'Neal. Freescore or Free throw, it's all the same to Ben Stein.

Digital Content Removal Kindles Class-Action Suit Against Amazon

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When Amazon remotely deleted bootlegged digital versions of George Orwell's Animal Farm and 1984 from its e-reader Kindle, it may have thought it was just doing the right thing. But now that Amazon finds itself a defendant in a class-action suit in the U.S. District Court for the Western District of Washington, it probably will, in Orwellian terms, "doublethink" its decision.

In the case of Justin Gawronski and A. Bruguier, individually and on behalf of all others similarly situated v. Amazon. com, Inc. and Amazon Digital Services, Inc., the plaintiffs sued Amazon for trespass to chattels, conversion, breach of contract, violation of the Washington Consumer Protection Act, and violation of the federal Computer Fraud and Abuse Act (18 U.S.C. sec. 1030) over the remote removal of 1984 from Kindle. The 18-page complaint was filed July 30.

Buyers of the Kindle electronic book reader agree to Amazon's terms of service, which enables the Delaware corp. to modify, suspend or discontinue the service without liability to consumers. From Amazon's perspective, consumers are not buying a book, which is tangible property, but rather, a service that Amazon controls. Low-tech types may gloat that were they in good faith to buy a paperback of 1984 to accompany their Cliff Notes version at Borders that turned out to be an unauthorized version of the futuristic novel, the bookstore would be hard-pressed to snatch the book back from them without refunding their money.

It will be interesting to see how this plays out for Amazon. A bit of advice to Amazon: if the court grants class status to the Complaint and Winston Smith becomes a named plaintiff, you might want to settle, because a federal courtroom is no Ministry of Love.

MySpace Zaps News Corp. 4Q Earnings; Rupe Wants $$ for Content

Smacked by massive impairment and restructuring charges tied to enfeebled MySpace, News Corp. reported a loss of $203 million for the fiscal fourth quarter ending June 30.

The 4Q loss of 8 cents a share compares unfavorably to 4Q results a year ago that showed a profit of $1.1 billion or 43 cents a share. News Corp. Chair Rupert Murdoch vowed to begin charging a fee for online content for his newspaper and television news holdings. Presently, The Wall St. Journal, owned by Murdoch, successfully operates a firewall, but it's a niche publication for which its business subscribers are willing to pony up. With competitors such as BBC and CNN offering news content for free, it's questionable whether folks would ante up for the same news online from Fox, though some people would probably pay to keep the tabloid musings of The New York Post off the Internet.

According to its Website, News. Corp. has total assets of $53 billion and annual revenues of $30 billion as of June 30, 2009. News Corp. stock (NWS) is trading at $12.56 a share on the NASDAQ exchange at this hour.

J-Grads J-obless, Study Finds

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Mark Jurkowitz of the Project for Excellence in Journalism reports that the Univ. of Georgia "Annual Survey of Journalism & Mass Communications Graduates," which elicited responses from 2,500 recent grads, revealed that just slightly more than 60 percent of 2008 bachelor degree conferees had landed full-time jobs in the approximate six months since graduation.

The statistics are the lowest in the study's 23-year history and dim compared to 2007 grads, 70 percent of whom landed jobs in the field. The median salary of $30,000 for bachelor degree recipients remains unchanged from 2006 and 2007 figures.

Obama & Thomas in Natal Blowout

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President Barack Obama, who shares a birthday with Hearst Newspapers Columnist and former UPI icon Helen Thomas, took time off yesterday from affairs of state for a surprise joint celebration of the event.

President Obama, 48, brought a plate of cupcakes to White House Correspondent Thomas, 89, and led a chorus of reporters in the White House briefing room in a Happy Birthday serenade to Thomas as she blew out a candle on a cupcake.

President Obama's gift wish list doubtless includes immediate comprehensive health care reform legislation, and one imagines Thomas' calls for immediate health care, though all the correspondent who has everything asked for was world peace.

Twitter a 'Cheep' Knockoff?

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Three months after garnering a Webby Award as "Breakout of the Year," Twitter, Inc., the San Francisco-based social networking and micro-blogging behemoth, finds itself on the wrong end of a patent infringement suit.

TechRadius, Inc. of Sugarland, Texas, sued Twitter, Inc., in the U.S. District Court for the Southern District of Texas in Houston, alleging that Twitter has infringed on its patented IRIS (Immediate Response Information System) technology. According to the Complaint, TechRadius sells, develops and services mass notification systems that enable a "message author" to originate a message that simultaneously can be delivered via communications gateways to "message subscribers."

TechRadius' Complaint includes a jury demand. Ideally, the jury will be drawn from a pool of 140 characters. The factfinders will have to determine whether Twitter is a victim of a plaintiff looking to cash in on Twitter's success or whether it engaged in devious behavior and is flourishing at the expense of others' genius.

Schtick or Tweet?

Is Blogger's 'Cushy' Job Journalism?

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Few would challenge the journalism credentials of novelist and long-time columnist Dan Gearino, formerly of The News & Observer (Raleigh, NC). Still, his current venture in "corporate-sponsored journalism" may add to the sleepless nights traditional mainstream journalists are experiencing these days.

Gearino is blogging "Stephenville Dreams," which chronicles small-town life in Stephenville, TX (pop. 15,000). The blog is the social media arm of a marketing campaign by the Carpenter Co., makers of pillow and mattress pad cushioning, and is featured on the company's consumer Website, www.SleepBetter.org. The marketing campaign also encompasses "Lullaby," the latest release by country artist and Stephenville resident Jewel.

Though Carpenter embraces mattress covers, Gearino insists he doesn't cover mattresses or otherwise shill the company's products or do its bidding insofar as what he writes about. Still, it seems as if Gearino, a freelancer, has found himself a comfy corporate patron and given new meaning to the term "embedded journalist."

UPDATE: Illegal Downloader Slammed to Tune of $675k

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Twenty-five-year-old BU grad student Joel Tenenbaum of Providence, R.I., has been ordered by a Massachusetts jury to pay four record companies $675,000 in total for downloading 30 copyrighted songs in 2004 through the KaZaA peer-to-peer network.

Tenenbaum, only the second defendant in a music downloading case ever to go to trial in the nation, could have faced a judgment of up to $4.5 million under the copyright statute for willful infringement, rather than the $22,500 for each of the 30 tunes. (See "TUOL" post 7/28/09.) Tenenbaum's legal team, headed by Harvard Law Prof. Charles Nesson, is expected to appeal the verdict based on U.S. District Court for the District of Massachusetts Judge Nancy Gertner's ruling that precluded "fair use" as a defense.

The case is (Capitol Records, Inc. v. Noor Alaujan, Case No. 03-cv-11661; Sony BMG Music Entertainment et al. v. Joel Tenenbaum, Case No. 07-cv-114446).