UPDATE: U. Wisc. Settles Suit With College Paper

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In a case that began more than a year ago, the University of Wisconsin at Milwaukee has settled a lawsuit with its college newspaper, The UWM Post, concerning an alleged violation of The Badger State's public records law (see "TUOL" post 11/16/09).

The Associated Press reports that the two sides settled, with the University agreeing to assume the paper's  nearly $12,000 in attorneys' fees and to turn over an unredacted version of the documents initially sought by the paper.  The Post wanted copies of the agendas, audio recordings, and minutes of meetings of  the university's student union board dating back to 2008 pursuant to the public records law [Wis. Stat. sec. 19.31-19.39], which the administration initially turned over, though the names of students and even audio tracks of  their voices were omitted, actions that the school claimed were mandated by Family Educational Rights and Privacy Act ("FERPA") [20 U.S.C. sec. 1232g].

FERPA is intended to protect student records, such as grades, but in this instance, was applied to a public body, albeit one composed of students.

USA Today Staff Feeling (Fur)lough

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The good news for the roughly 1,500 workers at Gannett Co.'s USA Today is that they each will get to choose a week off between Feb. 28 and July 3.  The bad news is they won't be getting paid for the time off.

With ad pages down 10.5 percent in the last quarter,  the newspaper imposed the furlough and extended the year-old salary freeze another three months. The paper experienced a 17 percent drop in circulation for the six-month period that ended in Sept. '09. Most of the staff was forced to take a two-week unpaid furlough last year.

Judge Says Prosecutor Not Entitled to Know Identies of Anonymous Bloggers

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Orange County (N.Y.) Court Judge Nicholas De Rosa has quashed a  grand jury subpoena seeking the identities of two anonymous bloggers who posted on a newspaper's Web site concerning a story about the controversial resignation of a school superintendent.

The grand jury subpoenaed  Straus Newspapers' The Chronicle, a weekly covering Goshen and Chester, New York, to learn the names of the anonymous posters who commented on the resignation of former Chester Superintendent of Schools Helen Ann Livingston.

Judge DeRosa reviewed the anonymous messages from the bloggers in his chambers because grand jury documents are sealed. He concluded that the statements at issue were neither criminal nor did they constitute a noncriminal violation. He also held that the prosecution failed to prove the information sought was indispensable to the case being reviewed by the grand jury.  The district attorney has yet to disclose whether he plans to appeal Judge De Rosa's ruling.

Appeals Court: Lawyers May Have 1st A Right to Post-trial Jury Interviews

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The U.S. Circuit Court of Appeals for the Tenth Circuit this week ruled in Sam Clyma v. Sunoco, Inc. (Case No. 08-5153) that attorneys may have the right, under the 1st Amendment to the U.S. Constitution, to interview jurors in trials in which the attorneys were not involved.

The Oklahoma Employment Lawyers Association ("OELA") sought permission to interview jurors from a three-year-old Americans with Disabilities Act job bias trial.  The case was tried in the U.S. District Court for the Northern District of Oklahoma where a court rule forbids attorneys from interviewing jurors without first obtaining permission from the court.

The 10th Circuit opinion suggests that if attorneys have such a 1st Amendment right to speak to the jurors, it is only to the extent that the lawyers' underlying purpose is to educate a segment of the bar.

Ninth Circuit Rejects Lobbyist Privacy Claim in FOIA Request

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In Electronic Frontier Foundation v. Office of the Director of National Intelligence, Department of Justice (Case No. 09-17235), the U.S. Circuit Court of Appeals for the Ninth Circuit this week rejected an invasion of privacy defense to a Freedom of Information Act ("FOIA") request for disclosure of the identities of telecommunications companies' lobbyists.

 The EFF sought disclosure of the identities of lobbyists who successfully persuaded Congress to grant immunity to telecommunications companies that were involved in the government's warrantless electronic surveillance of Americans' phone calls carried out by the National Security Agency post 9/11. In affirming in part, and reversing in part, the ruling by the U.S. District Court for the Northern District of California, Judge Michael Daly Hawkins wrote: "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

The EFF in the past attempted to learn which telecommunications companies participated in the NSA surveillance program, but the companies were granted immunity from the FOIA requests.  Although it dismissed the lobbyist privacy argument, the 9th Circuit decision ordered the trial court to review the information sought by the EEF to determine whether it should be exempt from disclosure under the FOIA for other reasons, such as national security interests.

Plagiarist Posner Punted from 'Daily Beast'

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Author/attorney Gerald Posner, the chief investigative reporter for Tina Brown's year-old Internet news site The Daily Beast, has quit the online publication amid charges of plagiarism.

According to a report in today's Miami Herald, Posner blogged and tweeted his resignation from The Daily Beast after a discussion with Managing Editor Edward Felsenthal concerning an internal investigation of alleged plagiarism by Posner, the author of 11 books, including Miami Babylon. The internal probe was prompted by initial accounts by Slate.com's Jack Shafer that revealed a purported instance of Posner filching five sentences from a Miami Herald article.  A follow-up piece by Shafter alleged multiple instances of Posner plagiarizing works from The Miami Herald, Texas Lawyer, and a journalism blog devoted to healthcare issues.

Reportedly, Posner attributed cribbing others' writings to his "master electronic files system" and the "warp speed of the Net." Way to step up and accept responsibility for one's actions.

U.S. Military Releases Reuters Photog From Custody in Iraq

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After being detained without charges since September 2008, by U.S. and Iraqi military personnel, freelance photographer and tv cameraperson Ibrahim Jassam Mohammed has been freed.

Mohammed was working for Reuters when he was arrested and initially held at a prison camp on the border of Iraq and Kuwait, and later transferred to a detention center near Baghdad Airport, according to Editor & Publisher. The military has yet to respond either to why Mohammed was imprisoned or the basis for his being released.

Our troops remain in Iraq so that Iraqis can experience the freedoms that Americans have, though, apparently, we're reluctant to share freedom of the press and freedom from illegal search and seizure.

Tiger Woods' Handicap Lands TV Gig

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Rachel Uchitel, a/k/a golfer/swinger Tiger Woods' "Mistress No. 1," has been offered a "special correspondent" slot on the syndicated tabloid tv entertainment show "Extra."

The Page Six column of The New York Post reports that the show's producers were impressed with Uchitel after she was interviewed by Mario Lopez (not to be confused with Charlie Rose). She is expected to cover nightlife, in which she has demonstrated some expertise.

First Ashley Dupre, former NY Gov. Elliot Spitzer's favorite escort, lands an advice column with The New York Post (see "TUOL" post 12/14/09), and now Uchitel scores a high-profile media job.  Wonder how long before Monster.com adds "floozy" and "trollop" to its career board options?

Will Sportswriter's Overtime Suit Against Tampa Trib Die Sudden Death?

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Former Tampa Tribune sportswriter Brett McMurphy has sued the paper's parent company, seeking overtime pay under the Fair Labor Standards Act ("FLSA") over a two-year period.

In Brett McMurphy v. Media General Operations, Inc. (Case No. 8:2010cv00404), filed in the U.S. District Court for the Middle District of Florida, McMurphy is seeking overtime pay for the period from Februrary 1, 2007, through October 1, 2009, his last day at the Tribune, under FLSA Cause 29:201(Denial of Overtime Compensation). McMurphy joined the Tampa paper in 1987.

McMurphy claimed the paper forced him to work more than 40 hours a week during the relevant time period.  No response as yet from the defendant.

Oregon Appeals Court: 1st A No Defense to Church in Libel Suit

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In a case headed for the state's highest court, the Oregon Appeals Court has reinstated a $355,000 libel judgment against a church regarding allegations that a former pastor misappropriated church funds.

Writing the majority opinion in Tim Tubra v. John Michael Cooke, Ron Swor, and The International Church of the Foursquare Gospel (Case No. A134332), Judge Rex Armstrong said the Free Exercise Clause of the First Amendment of the U.S. Constitution does not immunize church officials from the defamation claim brought by fired interim pastor Tim Tubra. A Multnomah County Circuit Judge initially tossed the jury verdict, claiming the court lacked jurisdiction because of the Free Exercise Clause, which states: "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof [emphasis added]."

As reported in The Oregonian, the appellate court concluded that defamatory statements are not religious by nature or shielded by the First Amendment.  Allegations that Tubra engaged in theft are no more a religious subject "than is a defamatory statement accusing a pastor of child molestation," Judge Armstrong wrote.

Tubra was never charged criminally after he was terminated as interim pastor in 2004. The Appeals Court heard arguments in the case in August 2008.

British Tabloid Suffers Wrath of 'Brangelina'

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The U.K.'s best-selling newspaper, the Sunday tabloid NewsoftheWorld, is bracing for a libel war with Hollywood glamour couple Brad Pitt and Angelina Jolie.

While Pitt, 46, and Jolie, 34, watched the Super Bowl Sunday from a private box in Miami's Sun Life stadium (to avoid other fans asking "Who dat?"), their lawyers readied a claim for filing Monday in London's High Court.
 The defendant tabloid on Jan. 24, according to the lawsuit, published false and intrusive allegations that the power couple planned to separate and had worked out custody arrangements for their six children and a division of their alleged assets of $320 million.

Pitt and Jolie became an item while filming the action/comedy Mr. & Mrs. Smith in 2005.  Pitt is divorced from actress and tabloid fave Jennifer Aniston, and Jolie was twice-married, to actors Billy Bob Thornton and Jonny Lee Miller, both of which ended in divorce.

Under British libel law, the burden of proof rests with the publisher to prove the truth of the statements in dispute. In contrast, in the U.S., public figures carry the burden of showing the article at issue was both false and published with actual malice.

Locker Room Humor Marketing: First iPad, Now Nook E-Reader

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After a two-month production delay,  New York-based bookseller Barnes & Noble, Inc. expects its Nook electronic book reader to be available for purchase in most of its bookstores this week, Reuters reports.

Until now, the rival to Amazon.com, Inc.'s Kindle reader could only be had through the book chain's Web site or via in-store kiosks. Introduced in October 2009, the Nook e-reader sold out before the December holidays and the company struggled to restock the product.

The erudite, sophisticated, law-trained "TUOL" staff is renowned for its demureness, but Madison Ave. ad agencies must be overstaffed with frat boys to have come up with "Nook E-reader." Does it come with a V-chip? Can you only read boxed sets?  Is the text viewing piecemeal?

Sorry, but at least "TUOL" showed admirable restraint when Apple debuted the iPad.

Newspaper Guild Lodges NLRB Complaint Against Thomson Reuters

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Financial information and news service Thomson Reuters is the target of a National Labor Relations Board (NLRB) complaint filed by the Newspaper Guild of New York, Local 31003 of the Communications Workers of America.

The Guild has accused Thomson Reuters of unilaterally declaring an impasse in contract negotiations on Jan. 19 so that it could impose draconian pay cuts against unionized journalists and technicians. The Guild claims the pay cuts average will 10 percent, but Thomson Reuters disputes the claim, arguing that the roughly 400 unionized journalists at Reuters News Service  actually will see a .5 percent boost in their wages.

The Guild also alleged that Thomson Reuters implemented a Twitter policy for its staff without negotiating the issue with the union. New York City-based Thomson Reuters is the product of the Thomson Corp. 2008 purchase of Reuters.

Arbitrator Orders News-Press to Pay Ex-Editor's Legal Fees

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Perhaps Publisher Wendy McCaw and Ampersand Publishing, owner of the Santa Barbara (Calif.) News-Press,should have quit while they were ahead.

Less than a month after the U.S. Circuit Court of Appeals for the Ninth Circuit sided with the publisher in an NLRB dispute concerning eight terminated editorial staffers (see "TUOL" post 1/28/10), arbitrator Deborah Rothman has issued a 68-page decision ordering Ampersand to pay the $750,000 legal bill of former editor Jerry Roberts and another $167,000 in arbitration fees and expenses.

Both parties agreed to binding arbitration after Ampersand brought a $25 million defamation suit against Roberts for comments he allegedly made about the paper purportedly in violation of his contract after his departure in 2006. Roberts quit over what he claimed was editorial interference by McCaw.

The publisher reportedly spent $2.4 million litigating the claim against Roberts.

Last Stand for Newsstands?

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Newsstand magazine sales plunged 9.1 percent over the last half of 2009 compared to the comparable six-month period in 2008, according to the Audit Bureau of Circulation (ABC).

Among the 472 consumer titles examined by the ABC, W Magazine suffered the steepest newsstand decline of nearly 42 percent to 25,000 copies sold for an average issue, followed closely by Newsweek with more than a 41 percent dropoff to 62,000 copies sold on average, and SmartMoney, down 37 percent to 26,000 copies.

Magazine circulation, including subscriptions, declined 2.23 percent overall. TV Guide led the way with a 26 percent decline in circulation, edging out Readers Digest, whose circulation dropped 13 percent,  for the dubious distinction.

Not all the news was bad. Women's Health circulation rose 21 percent and Disney's FamilyFun circulation skyrocketed 16.7 percent.

Extra ! Extra! Read all about it--online, apparently.

Kansas High Court Rejects Reporter's Privilege Claim

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The Kansas Supreme Court has rejected an appeal by Dodge City Globe reporter Claire O'Brien, whose notes and confidential sources are being sought by a prosecutor in a homicide case.

Prosecutors are seeking information from O'Brien arising from her jailhouse interview of a murder suspect.  The Kansas Supreme Court not only denied O'Brien protection, but also refused to allow submission of friend-of-the-court amicus briefs on her behalf.

Kansas does not have a shield law.

10th Circuit 'Firmly' Supports Grisham in Libel Case

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The U.S. Circuit Court of Appeals for the Tenth Circuit has upheld a trial court's dismissal of a defamation suit against best-selling legal thriller author John Grisham arising from his novel, The Innocent Man.

In Peterson v. Grisham (Case No. 08-7100), the appellate court sided with the U.S. District Court for the District of Oklahoma judge who tossed the case against the 55-year-old Grisham in September 2008. In the appellate ruling, Judge Carlos F. Lucero said the plaintiffs' false light and intentional infliction of emotional distress claims were barred by Okla. Statute 1443.1 and that their claim that the defendants' purported statements accused them of engaging in criminal activity were too "tenuous" to constitute defamation.

The plaintiffs included Okla. District Attorney William Peterson, former police officer Gary Rogers and former state criminologist Melvin Hett. Defendants besides Grisham were publishers Doubleday Dell Publishing Group, Random House, Inc., and Broadway Books, author Robert Mayer, Dennis Fritz, and anti-death penalty advocate Barry Scheck.

In 1988, Dennis Fritz and Ronald Williamson were convicted, through the efforts of the plaintiffs, of the rape and murder of Debra Sue Carter. Both men were exonerated after spending a decade in prison. Fritz wrote a book, Journey Toward Justice, concerning his wrongful imprisonment and Grisham based his novel, The Innocent Man, on Williamson.

When the libel suit initially was dismissed by the district court in 2008, the trial judge wrote: "The wrongful convictions of Ron Williamson and Dennis Fritz must be discussed openly and with great vigor."  As for  Grisham, the author/attorney  who wrote The Appeal (2008) can now say he has personally prevailed in one.

UPDATE: Texas AG Says Towns Lack 1st A Right to Contest Open Meetings Act

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Texas Attorney General Greg Abbott has filed a 10-page motion in federal court in Pecos seeking to have four municipalities dropped as parties to a case challenging the constitutionality of the Texas Open Meetings Act ("TOMA")[Tex. Govt. Code Sec. 551.001(3)], See "TUOL" post 12/15/09 for details concerning the case.

Alpine, Rockport, Wichita Falls and Pflugerville, along with 15 town officials, alleged in their complaint that TOMA violated their First Amendment free speech rights by barring elected officials from discussing public issues in public or private. Violators face up to six months in prison and a $500 fine.

Abbott contends that the four municipalities are "creatures of the state," and, as such, can't assert constituional claims against Texas, and that only citizens possess First Amendment rights. No date has been set by the court to hear the motion as of yet.

Dismissal of 'Invisible Eden' Libel Suit No 'Flook'

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Barnstable (Mass.) County Superior Court Judge Robert Rufo has tossed the 2006 libel case filed by the former boyfriend of murdered fashion writer Christa Worthington against the publisher and author of a book that he claimed suggested he was her killer.

In Tim Arnold v. Maria Flook & Random House Inc. (Case No. 06356), the plaintiff, who found Worthington's body, claimed the book, "Invisible Eden," invited readers to conclude he murdered Worthington. According to the complaint, the "imputation of crime, though indirect, is yet unmistakable."

Apparently, not to Judge Rufo, who decided that Flook merely reported information from prosecutors who, at one point, considered Arnold the prime suspect. Christopher McCowen, a Cape Cod sanitation worker, was convicted of stabbing Worthington to death in a case that involved accusations of racial bias by certain jurors.

Judge Rufo and Arnold's counsel also disagrred regarding the plaintiff's burden of proof in his libel suit, with the latter arguing Arnold was a private individual and Judge Rufo considering him a public figure because of the multiple news media interviews in which he participated.  Under Massachusetts libel law, a public figure must prove "actual malice" on the part of the defendant, whereas a private citizen need only satisfy the lower standard of "negligence."

Palin Periodical Hits Newsstand

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Sarah Palin: Faith, Family, Freedom, a glossy 100-page magazine published by a subsidiary of the IMG marketing firm and Imagine That Publishing, will be available through April 30 for those willing to dole out $8.99 for the periodical purportedly prepared without Palin's knowledge or authorization.

Editor/Publisher Steven LeGrice, founding editor of  In Touch magazine, said the journal is all in the words of the former almost 1-term Alaska Governor and current Fox News commentator without any opinion added in, which sounds like a fact-checker's and copy editor's worst nightmare. The periodical is replete with family photos the publisher obtained from private sources.

Included in the publication are segments on "Where Sarah Palin Stands on the Big Issues," and "The Wit & Wisdom of Sarah," which begs the question: Are there enough photos to fill 99 pages?  There are photos of Palin on her Going Rogue book tour and childhood pictures aplenty, including one featuring Palin, her siblings, and a dead bear bleeding over a stump. No, really.

"TUOL" believes LeGrice missed a golden opportunity by not having the magazine open from the right in honor of its namesake's politics. Wonder if Sen. John McCain plans on purchasing a copy, if for no other reason, than to complete the puzzle page.

N.H. High Court Boosts Right-to-Know Law

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In a Jan. 29 unanimous decision in Professional Firefighters of New Hampshire v. Local Government Center, Inc. ("LGC") (Case No. 2009-215), the N.H. Supreme Court ordered a private entity that represents public agencies to release its salary information pursuant to a request under the Granite State's right-to-know law [RSA ch. 91-A (2001 & Supp. 2009)].

Chief Justice John Broderick rejected the LGC claim that its salary data was not covered by the statute, writing that information that reveals how an organization spends taxpayer dollars to conduct public business "is essential to the transparency of government, the very purpose underlying the Right-to-Know law." The firefighters union sought the salary figures from LGC, which represents municipalities and schools, to follow how taxpayer money was being spent by LGC on health insurance. The parties have been embroiled in an eight-year fight as the firefighters union has tried to obtain documents to gauge whether the LGC has been diverting money targeted for health insurance for other purposes.

The Supreme Court denied the union's request for attorneys' fees.

SJC Rules Anti-SLAPP Statute Inapplicable to Reporters

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Massachusetts' anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, M.G.L. c. 231, sec. 59H, does not protect reporters, ruled the Supreme Judicial Court today in Fustolo v. Hollander [SJC-10485].

Steven Fustolo, a real estate developer who owns several properties in Boston's historic North End, claims he was defamed by a series of articles in the Regional Review written by former reporter Fredda Hollander, a community activist, who along with spouse William Lee, is active in the North End Waterfront Residents' Association.  Hollander responded to Fustolo's allegations that she stirred public sentiment against him in the series of articles that forced him to scuttle building projects by filing a motion to dismiss the defamation suit pursuant to M.G.L. c. 231, sec. 59H, which states in part: "In any case in which a party asserts that the civil claims...against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss."

SJC Justice Margot Botsford's opinion noted that the anti-SLAPP statute applies only to citizens' rights to petition government for redress of a perceived grievance, and does not encompass articles about the issue. Journalists are not defenseless, the SJC pointed out, citing the seminal libel case, New York Times v. Sullivan, 376 U.S. 254 (1964), which affords First Amendment protection to reporters against frivolous suits.

Cable News Getting in Touch with Its Feminine Side

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It's a big week for cable newswomen as both Fox News Channel and CNN named women to high-profile slots.

CNN named senior political correspondent Candy Crowley host of "State of the Union," succeeding John King, who replaced Lou Dobbs. Crowley thereby becomes the only female anchor of a Sunday morning news show. "State of the Union" is being reduced to a 1-hour program, CNN executives announced.

Meanwhile, cable ratings champ Fox News Channel announced 39-year-old Megyn Kelly will solo as host of "America Live," anchoring the 1 p.m. and 2 p.m. EST slots. Kelly, a former litigator for Jones Day, has co-anchored "America's Newsroom" since 2007 and also appears weekly on Bill O'Reilly's program.

Chipping Away at Black Rock

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CBS may want to change its logo from an eye to a bullseye, based on a story in today's Los Angeles Times that up to 7 percent of the staff of CBS News may get pink-slipped based on declining ad revenues and shrinking audience.

The Times suggests as many as 100 of 1,400 staff positions may be lopped off, including editorial positions, support staff and technicians, though on-air personalities may be spared.  Reportedly, CBS News has shuttered its 3-member Moscow bureau, cut three part-timers from its Tel-Aviv bureau, and could trim a dozen positions from its 150-member Washington bureau.

CBS News executives have stated that the workforce reduction will not be as severe as depicted in the LA Times account.  The CBS Evening News with Katie Couric has been a perennial third-place finisher in the network evening news ratings war.

NewsCorp Subsidiary Settles Antitrust Suit for $500 million

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A four-year antitrust battle between News America Marketing, a subsidiary of Rupert Murdoch's NewsCorp that accounted for nearly 8 percent of  NewsCorp's operating income in FY 2009, and Livonia, Michigan-based Valassis Communications, Inc., concerning alleged unfair competition and tortious interference  in newspaper coupon insert publishing and other marketing practices, has ended.

Under terms of the settlement, NewsCorp reportedly will pay Valassis $500 million and News America Marketing will participate in a 10-year shared  mail distribution agreement with Valassis Direct Mail. The $500 million figure takes into account a $300 million judgment Valassis previously secured against NewsCorp in a related action in Michigan state court, as well as pending cases in California state court and federal court in Michigan.

The NewsCorp media conglomerate's holdings include Fox Broadcasting Co., The Wall St. Journal, and The New York Post.