Obama Deletes SEC FOIA Exemption

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President Barack Obama last week signed Senate Bill 3717, removing an exemption under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.] that could have enabled the Securities and Exchange Commission to withhold documents regarding much of its regulatory and oversight duties.


The measure, which took aim at sec. 9291 of the Dodd-Frank Wall St. Reform & Consumer Protection Act,  affords Wall St. institutions some protection from SEC investigatory and regulatory activities under FOIA exemption 8 that shields matters "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions," heretofore, banks, investment banks and trust companies.


Sec. 9291 was attacked by open government proponents as overbroad and potentially applicable to any SEC action or inquiry.

D.C. Appeals Court Sides With U.S. in Gitmo Detainee's Disclosure Claim

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In Djamel Amaziane v. Barack Obama et al. (Docket No. 09-5236), the U.S. Circuit Court of Appeals for the D.C. Circuit last week overturned a trial judge's ordered disclosure of information concerning  Algerian Djamel Amaziane, who has been detained at Guantanamo Bay Naval Station for more than eight years.


According to the Jurist Web site,  in a heavily redacted 19-page decision, the appeals court said the trial judge did not pay due deference to the government's claim that disclosure of sensitive information sought by Amaziane would compromise the nation's security and foreign policy interests. Still outstanding is a decision by the Inter-American Commission on Human Rights on Amaziane's August 2008, complaint alleging that he was tortured and denied medical care, among other alleged abuses of his human rights, in violation of the American Declaration of the Rights and Duties of Man.


Amaziane further alleges he has been deprived of a timely review of his habeas corpus petition

2d Cir. Rekindles MSNBC Reporter's Libel Suit Against Network

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In Claudia DiFolco v. MSNBC Cable LLC, Rick Kaplan & Scott Leon (Docket No. 09-2821-cv), the U.S. Circuit Court of Appeals for the Second Circuit last week reinstated defamation and breach of contract claims against the cable network brought by Claudia DiFolco, former Los Angeles correspondent for MSNBC at the Movies and MSNBC Entertainment Hot List.


The appellate court reversed the March 30, 2007, decision of U.S. District Court for the Southern District of New York Judge Loretta Preska's dismissal of DiFolco's lawsuit alleging defamation, breach of contract and tortious interference with prospective business relations for failure to state a claim by reinstating the contract and defamation counts.  Writing for the three-judge panel, Judge Roger Miner said the trial court precipitously accepted the defendants' argument that the plaintiff had resigned.

DiFolco contended that MSNBC President Rick Kaplan wrongly interpreted an email she sent about alleged mistreatment of her by producers of her programs to be her resignation before her two-year contract expired.  She alleged MSNBC leaked her purported departure to online industry news sites Inside Cable, News Blues and TV Spy, which she claimed defamed her in online articles. TV Spy posted a pseudonymous comment that DiFolco "believe[d] that cleavage, overtime in the makeup chair and a huge desire to become a star is...how to pay your dues," while the other two sites claimed she quit MSNBC mid-contract.


Judge Preska ruled DiFolco's repudiation of her agreement negated her breach of contract claim and found the defenses of truth and fair comment (opinion) defeated her defamation claims.  The appeals court, however, noted that opinions grounded on false facts are actionable, so Judge Preska prematurely ruled TV Spy's posting was non-defamatory, and that the parties' email exchange did not reflect unequivocally DiFolco's intention to resign as correspondent, giving new life to the breach of contract allegation.

In this instance, MSNBC, whose new slogan is "Leaning Forward," may fall on its face.

Psychologist Wins Libel Case Against Calif. Weeklies Publisher

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A jury this week found Raymond Pryke, publisher of California weeklies, including the Hesperia Resorter, Adelanto Bulletin and Apple Valley News, defamed psychologist Nancy Bohl in a series of articles from June 1999, to April 2000, alleging she used her relationship with her husband, former San Bernadino County Sheriff  Gary Penrod, to secure a county contract and that she provided the Sheriff's office with confidential material from her counseling sessions.


According to stories in The San Bernadino Sun and The Victorville Daily Press, following a six-week trial, the 12-member jury awarded Bohl, owner of The Counseling Team, which offers crisis intervention services to sheriff's deputies, damages totaling $332,500 for lost business, emotional distress and harm to her reputation. In her complaint filed in June 2000, Bohl sought $1.5 million in damages, as well as punitive damages.


According to newspaper accounts, the 87-year-old Pryke's weeklies claimed that Bohl turned over  information obtained during confidential counselor-patient  sessions to Sheriff Penrod, whom she was dating at the time. Seventeen witnesses testified at trial that no confidences were breached, and the jury unanimously found the newspapers' accusations false. 


Crucial to the favorable verdict for the plaintiff  was San Bernadino County Superior Court Judge Frank Gafkowski's ruling last August that Bohl was a private individual, not a public figure, which meant that she only needed to prove negligence on the defendant's part in publishing the purported defamatory articles, rather than the higher standard of actual malice, which requires a finding that the media defendant knew it was publishing false information or exhibited reckless disregard concerning the truth or falsity of the information.


The defendant has yet to decide whether to appeal.

Demoted Editor's Gender Bias Suit Cites Advertiser Pressure

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Former Stoughton Hub Courier Editor Autumn Drussell has filed a gender discrimination suit with Wisconsin's Equal Rights Division against the weekly newspaper's publisher, the Woodward Communications, Inc.-owned Unified Newspaper Group, claiming she was demoted for a column she wrote, though a male supervisor who reviewed the column was not disciplined.


Drussell still works for the paper as a reporter and page designer, but is seeking reinstatement as editor, along with lost wages and attorneys fees, according to an Associated Press story.  She alleges that her demotion was in reprisal for a column she wrote last July after attending a Chamber of Commerce function in which she admonished local businesses to improve customer service and appeal to frugal patrons to compete with discount giants such as Wal-Mart and Target. Drussell wrote that the faltering economy had her shopping at the economy chain stores.

A local hardware store owner said he would no longer advertise with the Hub Courier until the economy approved, echoing the sentiments of several area advertisers who complained about Drussell's column.  A week after the column ran, the Hub Courier wrote an editorial imploring readers to shop locally and conceding that many businesses felt "betrayed" by Drussell's column.

Drussell's complaint claims that she lost her editorship days after the column appeared and that her employer pressured her to sign a document in which she agreed to 90 days probation and to stop writing columns.


Advertisers exerting influence on media outlets is nothing new and cannot be ignored in the harsh economic climate that newspapers and television news stations presently face.  Still, if Drussell's claims are borne out, the Hub Courier may have to undergo a name change to "Water Carrier."

Alleged Art Theft Victims Sue County for Libel

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In Kennaugh et al. v. Monterey County (Case No. GNM108497) former Harvard Medical School physician Dr. Ralph Kennaugh and business partner Angelo Ben Amadio allege in Monterey County Superior Court that the county's Sheriff's Department defamed them by questioning the authenticity of a purported multi-million dollar art theft from the men's home.


As initially reported by the Central Coast News and also The Harvard Crimson, the plaintiffs allege in their complaint 26 purported defamatory statements by the Sheriff's Department regarding what the duo claim was last year's theft of artwork, including pieces by Rembrandt, Vincent Van Gogh and Jackson Pollock, supposedly worth $80 million, from their Pebble Beach home.

According to the complaint, the plaintiffs claim the Sheriff's Dept. mishandled the case, questioned the men's veracity, investigated them for fraud, and further claim a detective allegedly slandered them by uttering a homophobic slur.


The Sheriff's Dept. found the plaintiffs unable sufficiently to document ownership of the art they reported stolen. At a press conference held by authorities, Commander Mike Richards allegedly characterized the alleged heist as a "scam" by one or both of the purported victims. Authorities contend the plaintiffs were uncooperative in the investigation.

Argentine High Court Upholds Media Law Injunction

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Argentina's Supreme Court has unanimously upheld the injunction issued by federal Judge Edmundo Carbone against Media Law regarding Article 161 that requires companies to divest their radio and television stations within a year, according to an article in the Buenos Aires Herald.


Judge Carbone's order previously had been affirmed by the Second Division of the Federal Civil and Commercial Chamber.  The injunction is being challenged by the Clarin Group, publisher of the country's largest newspaper, Clarin, whose circulation tops 330,000 and boasts a 44 percent market share in Buenos Aires.


The Supreme Court pressed Judge Carbone to set a deadline for the injunction to expire and urged him to resolve the main dispute within two years.

Sacramento Bee Stung By More Layoffs

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Twenty-nine employees, including sports editor Bill Bradley and two newsroom photographers, are being laid off by the McClatchy Co.-owned Sacramento Bee, according to a report in trade publication Editor & Publisher.


Circulation and Production departments are being hardest hit by the latest round of layoffs and buyouts. In the past two-and-a-half years, the Sacramento  Bee has endured five rounds of staff cutbacks in the face of shrinking advertising and flagging circulation.

Kurtz Leaves Wash. Daily for Beast Daily

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Another sign that metro daily newspapers are passe: long-time media critic for The Washington Post Howie Kurtz, has bolted for Tina Brown's The Daily Beast, where he will serve as Washington Bureau Chief.


Kurtz will continue to host Reliable Sources on CNN. He will report on politics and the news media for the Daily Beast.

Earlyandoften.org debuts in Chicago as source of political coverage

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The Chicago News Cooperative (CNC) this week launched Earlyandoften.org, a Web site devoted to Windy City political news, according to an article in The Chicago Reader.


Subscribers who pony up $150 ($175 after October 18) will be treated to original reporting on the political scene in the City of Big Shoulders, according to the Web site founders.   The Reader reports that CNC is partnering in the venture with the creator of Aldertrack, a clearinghouse of information about local political candidates, started up by Jimm Dispensa.

 As a former Chicago denizen, "TUOL" never bypasses an opportunity to feature the city's striking skyline.

Calif. Enacts Law Barring Release of Murdered Children's Med Rex & Autopsy Reports

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Calif. Gov. Arnold Schwarzenegger has signed into law S.B. 5, the Deceased Child Victims' Protection & Privacy Act, sponsored by Sen. Dennis Hollingsworth (R-San Diego), which enables legal guardians of murdered children to prevent the release of autopsy reports and medical records of the young victims, the Web site of Reporters Committee for Freedom of the Press reports.


Parents of murdered children can deprive the general public and the news media of access to the victims' autopsy reports and medical records. Although current law characterized autopsy reports as investigatory records exempt from disclosure under California's Public Records Act (Govt. Code Secs. 6250-6276.48), coroners and other records custodians could make such records public at their discretion.

At first glance, the measure seems a legitimate attempt to preserve the privacy of tragic minor victims and discourage morbid curiosity at the expense of the loved ones of murdered children.  Still, "TUOL" shares the concern of critics of a statute that sets the precedent of allowing non-elected individuals to regulate public access to governmental records. Moreover, child autopsy reports are a treasure trove of information and could, for example, reveal evidence of child abuse that otherwise might go undetected.

CBS Radio Newser & Journo Spouse in Pot Bust

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Washington-based CBS Radio News correspondent Howard Arenstein and his wife, Orly Azoulay, Washington correspondent for Israeli newspaper Yedioth Abronoth, were charged with possession with intent to distribute marijuana after police raided their home Saturday, according to accounts in The Washington Post and The Chicago Tribune.


Police allegedly retrieved 11 mature marijuana plants, each of which authorities claim equal one pound of marijuana, and six bags of marijuna from the couple's home. Arenstein has overseen major stories during his CBS tenure, including the DC sniper shootings, the September 11, 2001 hijackings and the 2000 presidential campaign.  The CBS eye is a little redder this morning.

N.J. Appellate Division Finds Party Defamed Despite Lack of Damages

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In W.J.A. v. D.A. (Docket No. A-0762-09T3), the N.J. Superior Court Appellate Division reversed and remanded a trial judge's dismissal of a plaintiff's defamation claim because he failed to prove damages.


As reported by the Web site of the Reporters Committee for Freedom of the Press ( www.rcfp.org), the Appellate Division addressed the issue of: "whether Internet postings that accuse one of engaging in sexual misconduct are the type of defamatory statements for which damages may be presumed and therefore do not require the aggrieved party to prove actual harm to reputation."


The case initially arose in 1998 when D.A.'s nephew, W.J.A., sued him for allegedly sexually molesting him as a child. D.A. countersued for defamation, among other claims. W.J.A.'s suit was tossed because the statute of limitations had expired, but D.A. prevailed and was awarded damages for defamation and for frivolous litigation.


D.A. subsequently discovered that W.J.A. in 2007 posted on a Web site allegations that his uncle had sexually abused him, and again sued for defamation.  The trial judge found that the statements at issue were defamatory per se, but awarded summary judgment to W.J.A. because D.A. failed to prove damages beyond "individual subjective moral reactions."

The appellate division, however, ruled: "If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense does not offend us."

In 2000, the N.J. Supreme Court found that in defamation cases that involved the actual malice standard (i.e., public figures, public officials or matters of public concern were raised), plaintiffs must prove actual damages, but left unanswered whether damages may be presumed where private individuals are involved and no issues of public concern are raised.

All Is CALM Among DC Legislators

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The Senate this week unanimously passed a measure that would require tv stations and cable counterparts to air commercials at the same volume rate as programming.


Last year, the House passed H.B.6209, the so-called CALM (Commercial Advertisement Loudness Mitigation Act) measure [See "TUOL" post 6/12/09]. Now, the House and Senate versions must be reconciled when lawmakers convene post-election in November before the bill can become law.  Sen. Sheldon Whitehouse (D-R.I.) sponsored the Senate bill and Rep. Anna Eschoo (D.-Calif.) was the prime mover of the House bill.


The FCC, which  has not been regulating sound levels of advertisements, would be required to adopt the legislators' recommendations as regulations within a year and begin enforcing them a year after that.  Nice to see bi-partisan support to tackle a problem that jarred couch potato solons awake from their late-night tv viewing. Maybe they can see about the deficit, tax breaks, and alternative energy sources now that they've found common ground.

2 Sides of the Globe

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Beginning in the latter half of 2011, The Boston Globe will debut BostonGlobe.com, a subscription-only pay site, while continuing to offer gratis the ad revenue-generating news site, Boston.com.


New England's largest daily newspaper, which is owned by The New York Times Co., will not charge subscribers to the print edition of the newspaper to access BostonGlobe.com, and has yet to announce the subscription rate for digital-only readers.  The digital version will offer all the content of the print edition, along with interactive features, video, and in-depth analysis.


Boston.com, which attracts roughly five million visitors monthly, good enough to be the eighth largest newspaper Web site, according to Nielsen NetRatings, will have limited access to the Globe's news stories, but will include breaking news, sports, classified ads, social networking, and restaurant and entertainment information.

UPDATE: Hulkster's Sweet Smackdown of Cereal-maker

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Former World Federation Wrestling champ Hulk Hogan apparently had Post Foods on the ropes, as the "Hulkster" (nee Terry Bollea) has settled his trademark infringement suit against the proud producer of Cocoa Pebbles cereal, the St. Petersburg (Fla.) Times reports.


In Terry Bollea v. Post Foods LLC et al. (Case No. 8:10-cv-01161), filed last May in the U.S. District Court for the Middle District of Florida, the plaintiff alleged that the character of an oversized blond wrestler named Hulk Boulder depicted in a tv ad for Cocoa Pebbles featuring a wrestling match with Flintstones character Bam Bam misappropriated his image by resembling him and using a stage name under which he wrestled before WWF impresario Vince McMahon convinced him to Irish-up his name to Hulk Hogan. [See "TUOL" post 6/1/10.]


Terms of the parties' settlement agreement are confidential, though part of the lawsuit's resolution includes the defendant's agreement not to show the commercial anymore.  It's safe to have breakfast again.

Public Criticism of News Media at a Gallup

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A record high 57 percent of Americans distrust the news media to report the news fully, according to a Gallup Poll survey this month.


As compiled by trade publication Editor & Publisher, the random digit-dial sampling of 1,019 adults found that 48 percent of those queried believe the news media is too liberal, compared to 15 percent who consider it too conservative. Lower-income, less-educated respondents were more trusting of news media accounts than their higher-educated, better-heeled counterparts.

UPDATE: Judge Says Ex NY Post Editor's Harassment Claim May Proceed

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In Sandra Guzman v. News Corporation et al. (Case No. 09-cv-9323), U.S. District Judge for the Southern District of New York Barbara Jones this week ruled the plaintiff presented sufficient factual allegations to proceed with her hostile work environment sexual harassment and retaliatory discharge claims against The New York Post, where she worked for six years until she was terminated in September 2009. (See "TUOL" post 11/11/2009.)


Judge Jones heard arguments on the Rupert Murdoch-owned tabloid's motion to dismiss Guzman's lawsuit on grounds that the First Amendment permits it to publish whatever it pleases and that Guzman never protested about the alleged hostile work conditions during her tenure at the daily.  The court was amenable to the former argument, but concluded that the plaintiff's case could proceed because her 38-page complaint adequately plead a hostile work environment existed at the paper.

'Heady' Film Doesn't Violate Maryland Wiretap Law

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Hartford County (Md.) Circuit Court Judge Emory A. Pitt, Jr. has ruled that a man who used a motorcycle helmet camera to film a state trooper issuing him a traffic citation did not violate the state's wiretap law (Md. Code Ann. Courts & Judicial Proceedings sec.10-402).


Story Lab, a blog written by The Washington Post, reported that defendant Anthony Graber, a Maryland Air National Guard staff sergeant and computer systems engineer who faced a 16-year jail term, did not run afoul of the wiretap act when he posted the video on YouTube of the trooper stopping him for speeding on Interstate 95.


 Judge Pitt said the state could not sustain its wiretap case against Graber because the trooper performing his duties in public did not have a reasonable expectation of privacy, a necessary element of the offense. Judge Pitt also dismissed the charge against Graber of possessing a device (motorcycle helmet cam) whose primary purpose was intercepting oral communications.  The defendant must still answer for the alleged traffic infractions.


Graber is not the first filmmaker whose video ideas come off the top of his head.

Sacre Bleu! Another European Court Sticks It to Google

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Mountain View, Calif.-based uber-search engine Google and chief executive Eric Schmidt have wound up on wrong end of a defamation lawsuit in a French court, Agence France Presse ("AFP") reports.


The court ordered Google to pay nominal damages of one euro ($1.34) and to take remedial measures to ensure its conduct not be repeated.  Google was also assessed 5,000 euros ($6,719) of the plaintiff's court costs, which the company is expected to appeal. 


Google's woes involve its Suggest function, which offers options when terms are typed into it. The case, which  is reported at the legalis.net Web site (Tribunal de Grande Instance de Paris 17eme chambre Judgment du 8 septembre 2010 M. X.../Google Inc., Eric S. et Google France), involved a plaintiff convicted of corruption of a minor appealing a three-year prison term, according to AFP.  When the plaintiff entered his name, the Google Suggest function purportedly elicited the words "rapist" and "satanist." Linkage of the plaintiff's name to those terms was deemed defamatory by the court.


Google is arguing that it did not initiate  those words in its Suggest function, but rather, the function yields the most common terms associated in the past with the term entered in the search. Google has previously found other European courts unfriendly, such as the Italian court that found Google liable in a criminal invasion of privacy matter (See"TUOL" post 2/25/2010).