Minors Pursuing Lawsuit Must Be Named, Court Says

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In Jacob Doe, a minor, by parents & next friends, et al. v. Kamehameha Schools/Bernice District of Hawaii et al. (Case No. 09-15448), the U.S. Circuit Court of Appeals for the Ninth Circuit refused a rehearing request by plaintiffs, who are minors, who sought to pursue their civil rights discrimination suit against a school system anonymously.


In March, the appeals court upheld a federal district court judge's ruling that the juvenile plaintiffs must be identified by name in court documents and open court as their lawsuit against Hawaii schools' race-based admissions policy proceeds. The complaint alleges the defendants favor applicants of Hawaiian ancestry. Counsel for the minors argued for preserving the students' privacy rights and protecting them against harassment by classmates and others, but the Ninth Circuit denied the rehearing request, with two justices dissenting, holding that the students' concerns were overridden by the need for open courts bolstered by the 1st & 6th Amendments to the U.S. Constitution.

The matter may be appealed to the U.S. Supreme Court, according to a blog post by the Reporters Committee for Freedom of the Press (www.rcfp.org).

Washington Independent Turns Off the Lights

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The headline on today's online edition says it all: "The Washington Independent signing off."


Owned by the American Independent News Network (formerly The Center for Independent Media), the nonprofit Washington Independent, which favored the dying art of investigative reporting, is ending a three-year run. Spencer Ackerman and David Weigel were among the Washington Independent's best-known alumni.

See Jane(sville) Run: Daily Curbs Comments on Online Edition

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Wisconsin daily The Janesville Gazette, which is owned by Bliss Communications, Inc., is anything but extremely happy about the tenor of  readers' comments following news stories in the Gazette's online edition.


The Gazette began soliciting comments from online readers three years ago, and by its own estimate, presently attracts four million pageviews monthly and receives roughly 10,000 comments a month. But, as the newspaper management laments, "The nastiness...is too much."

Consequently, The Janesville Gazette has decided to ban online comments from readers concerning stories involving courts, crimes, accidents, race, or sex.  The editor pledged to continue to monitor readers' comments and invited readers to submit old-fashioned letters-to-the-editor to the print version or to call the publication's "SoundOff" line.

Dem Consultants Go Off on a 'Huff' in Lawsuit Against News Aggregator

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The guardian.co.uk Web site reports today on a 26-page complaint filed in the Supreme Court of New York (Peter Daou & James Boyce  v. Arianna Huffington, Kenneth Lerer & TheHuffingtonPost.com, Inc.) in which two Democratic politicos allege breach of contract, breach of fiduciary duty, idea misappropriation, unjust enrichment, quantum meruit, fraud, negligent misrepresentation and breach of implied contract against the co-founders of  The Huffington Post news aggregator.


According to their lawsuit, Daou & Boyce are being deprived of an ownership interest in HuffPost by the defendants, whom they accuse of stealing their idea for the influential Web site that launched in 2005. According to the Guardian account, Daou has pledged to donate any proceeds from the lawsuit to progressive political causes.


Huffington & Lerer released a statement to the Politico Web site denying the plaintiffs' accusations, and asserting that Daou & Boyce had no role in the creation, financing or operation of TheHuffingtonPost Web site. The defendants allege they rejected hiring or entering into a partnership with the plaintiffs six years ago.

The lawsuit is in its nascent stage as the defendants have yet to file an answer to the complaint. The defendants should have no problem mounting a defense with the money that they don't pay Web site contributors, but Arianna probably wishes she had the "bus money" she doled out to transport New Yorkers to the Stewart/Colbert Rally for Sanity in Washington, D.C. last month.

X-Posed: National Enquirer & Star Tabloids in Bankruptcy Love Nest

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As anticipated here [see "TUOL" post 11/2/10], Boca Raton, Fla.-based American Media, Inc., whose publications include the Star and National Enquirer supermarket tabloids, has filed for Chapter 11 bankruptcy protection in the U.S. District Court for the Southern District of New York (In re American Media, Inc., 10-BK-16140), according to Bloomberg News.

The publisher of the popular gossip tabloids listed assets of  under $50,000 against debts of up to $1 billion in its court filing.  The Enquirer's circulation as of September 2010, averaged 695,000, a drop of 83,000 compared to October 2009 figures, while the Star's  numbers during the same period saw a decrease to 940,000 from 1.1 million, according to Bloomberg.

Short, But Tweet

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AllTwitter(www.alltwitter.com), a new blog reporting on news, and providing pointers and opinions supporting social media platform Twitter, debuted last week on Mediabistro's blog network.


The self-professed "Unofficial Twitter Resource" week-old blog, which thankfully is not limited to Tweet-length entries, today offers a link revealing the full-breadth of Verified Twitter accounts. If irony still exists, the new blog will attract a maximum 140 followers.

USA Today: News is Hard, So Less Hard News

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A newsroom flow chart for Gannett Co.'s leaky flagship USA Today reproduced in Gannett Blog yesterday is an eye-opener.  Among the lowlights concerning the allocation of editorial resources is that USA Today has five reporters assigned to cover Congress, as compared to 27 journalists covering entertainment.


Over the past four years , circulation at USA Today, the nation's second largest daily after The Wall St. Journal, has dropped to 1.8 million from 2.3 million, while ad pages have decreased by half the same period [see "TUOL" post 8/27/10]. 


Gannett no doubt considers the redistribution of reporters as a revenue and readership booster, but count "TUOL" as among the rank and file who view it as capitulation. It's also misguided as Congress is at least as shallow as the entertainment world.

Newsweek & The Daily Beast Merge

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Beleaguered news magazine Newsweek, which 92-year-old audio magnate Sidney Harmon acquired for $1 in September [see "TUOL" post 8/2/10], has merged with The Daily Beast Web site to create The Newsweek Daily Beast Co. that will be co-owned by Harmon and Beast financier Barry Diller, chair of  IAC/Interactive Corp. Tina Brown will serve as editor-in-chief of both entities.


As initially reported by The New York Observer and confirmed in today's The New York Times, under the 50/50 merger, the editorial staffs of  The Beast and Newsweek will combine under the control of Brown, who, nine days shy of her 57th birthday,  re-enters the print magazine industry after a decade-long hiatus. The flamboyant Brown previously served as editor of The New Yorker, Vanity Fair, and the defunct Talk magazine.


The Beast will act as the digital operation of Newsweek, though for the time being, each entity will retain its name.  A wise decision, as neither NewsBeast nor The Daily Week  inspire confidence. It's a May/December wedding of a stodgy 77-year-old news magazine and an edgy 2-year-old Web site.

Soccer Star Scores Libel Win Against UK Daily

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Tip of the hat to media law Web site www.stinkyjournalism.org for noticing an Associated Press account of a successful defamation suit against UK Daily Telegraph by soccer star Cristiano Ronaldo.


Ronaldo will receive legal fees and undisclosed damages from the daily newspaper for its July 18, 2008, erroneous account of  Ronaldo's purported conduct at a Los Angeles nightclub following his attendance at a sports awards program at which he was a nominee for Best International Male Athlete. Ronaldo, who plays for Real Madrid, but in 2008 was a Manchester United standout, was injured and using crutches when he attended the awards event and post-ceremony nightclub celebration.


According to the Daily Telegraph story, Ronaldo consumed ample Cristal champagne and discarded his crutches to shake his groove thing with four models on the nightclub dance floor.  The footballer's attorney alleged in a defamation suit that the Telegraph article embarrassed the winger/forward, harmed his reputation among teammates and fans, and was false.  Although Ronaldo was at the nightclub, he neither consumed alcohol nor danced, his lawyer claimed.


The Daily Telegraph posted an apology online on Nov. 9 in which it conceded that Ronaldo was not "living it up" or acting unprofessionally and acknowledged that it wrongly suggested he was imbibing alcohol and dancing while ostensibly recuperating from his injury. The apology concluded: "We would like to apologise to Christiano for the embarrassment and offence our report caused to him as a professional who takes his health, fitness and recovery from injury seriously and are happy to set the record straight."

As Spanish soccer announcer Andres Cantor might say: "Libellllllll!"

Employer Gets Facebook Slap from NLRB For Firing Worker Over Posts

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The National Labor Relations Board (NLRB), the independent federal agency charged with safeguarding employees' rights and targeting unfair labor practices, has sued ambulance company American Medical Response of Connecticut, Inc. (AMR) regarding the firing of an employee who  called her supervisor derogatory names in off-hours Facebook posts.


The NLRB has scheduled a hearing on January 25, 2011, in the case involving Dawnmarie Souza.  According to the action initiated by the NLRB's Hartford, Conn., office,  a customer complained about Souza in November 2009, which prompted her superiors to request that she write up an incident report.  Souza asked for representation from her union, Teamsters Local 443, but her request was denied, and her supervisors allegedly threatened to discipline her over her representation request, according to the complaint.

From her home computer later that same day, Souza allegedly posted on Facebook, purportedly calling her supervisor a dick and a scumbag.  AMR fired Souza in December 2009, for violating the company's Internet policy that prohibits company-related posts without permission.


The NLRB asserts that AMR's policy is overbroad and its dismissal of Souza illegal, taking the position that social media policies that restrict negative comments about superiors violate labor laws that guarantee employees' right to address matters such as working conditions and wages. Besides the protected speech claim, the NLRB contends that Souza was illegally denied union representation.

Wash. High Court: Federal Privacy Laws Pre-empt State Public Records Law

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In Ameriquest Mortgage Company v. En banc Washington State Office of the Attorney General (Case No. 82690-1), the Washington Supreme Court affirmed an appellate court decision that federal privacy laws pre-empt Washington's Public Records Act ("WPRA") [Ch. 42.56 RCW].


Attorney Melissa Huelsman in 2007 submitted a WPRA request to Washington's Attorney General's Office for records pertaining to the office's investigation into alleged predatory lending practices by Ameriquest. (Disclosure: "TUOL" in his litigation heyday sued Ameriquest on more than one occasion on behalf of Bay State homeowners.) A state trial court originally had ruled against an injunction sought by Ameriquest against the release of records it had turned over to the AG on the grounds that disclosure violated federal privacy statutes.


The Washington High Court agreed, interpreting the relevant federal laws as preventing financial institutions from releasing "nonpublic personal information" to unafilliated third parties. Such information would require redaction of customer-identifying data, and the WPRA prohibits the AG from producing altered information in response to a request under the Act.


Kudos to the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org) for reporting on this case.

Newstand Space Available: US News & World Report Goes Digital-Only

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US News & World Report, always the "show" in the newsmagazine race with "win/place" competitors Time and Newsweek, will publish its last print edition in December, according to stories in Agence France Presse and The New York Times.


Over the past two years, US News has evolved from a weekly to a semi-monthly to a monthly magazine as it was not immune to falling circulation, shrinking advertising revenue, and the migration of its readers to free Internet news sites that have plagued the industry.  Newsweek was sold for a $1 to an audio magnate a couple of months ago [see "TUOL" post 8/2/10]. US News' print edition's circulation was roughly 1.2 million.

Despite its digital-only decision, US News will continue to publish print versions of its special issues ranking colleges and hospitals and other occasional special single-topic issues. News content will be free at USNews.com.  The news organization claims no editorial layoffs will be precipitated by the decision to produce an online edition alone. 

Federal Judge Tosses Md. Woman's 1st A. Facebook Suit

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In Young v. Facebook (2010 WL 4269304 N.D. Cal. 10/25/10), U.S. District Court Judge for the Northern District of California Jeremy Fogel dismissed a Maryland woman's lawsuit against Facebook that alleged violation of her First Amendment rights, breach of contract, negligence and other common law claims.


Judge Fogel tossed Karen Beth Young's First Amendment count against Facebook because the social media monolith is not a government actor, notwithstanding the existence of  federal agencies' Facebook pages per contractual arrangement with the social network service. Young also alleged breach of contract, claiming Facebook didn't abide by its Statement of Rights and Responsibilities ("SRR") by failing to halt alleged online harassment of her, but Judge Fogel pointed to Facebook's express disclaimer in the SRR regarding monitoring the network's safety and noted the SRR did not create an affirmative contractual obligation by Facebook toward the plaintiff.


Depending on one's vantage point, Young was either the harasser or the harassed. She claims she was subjected to offensive comments and postings after she objected online to an anti-President Obama Facebook page that Facebook failed to halt. Facebook, however, banned her from the social network because of what it claimed was harassing behavior in which she allegedly engaged, such as attempting to friend people she did not know en masse.  At the time Facebook shut down her account, she purportedly had 4,300 friends on her personal page (certainly a deterrent to casual get-togethers with pals).

Young brought the suit pro se and allegedly twice drove from Maryland to Facebook's California  headquarters in unsuccessful attempts to get her account reactivated, so she apparently wasn't wanting for spare time.

Those interested in further claims Young alleged and Judge Fogel rejected should read Evan Brown's informative blog, Internet Cases (http://blog.internetcases.com).

Media Orgs. Seek Records Access in Chandra Levy Murder Trial

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In U.S. v. Guandique (Criminal Case No. CF1009230), four media groups this week in Washington, D.C. Superior Court filed a Motion for Contemporary Access to Courtroom Exhibits and Completed Juror Questionnaires in the Chandra Levy murder trial.


Counsel for the Associated Press, The Washington Post, Gannett Co., Inc. and the Reporters Committee for Freedom of the Press also filed the prerequisite Motion for Leave to Intervene that would enable a nonparty to seek access to case records. The move was prompted by court officials who indicated such records would not be made public during the prosecution of the defendant charged with killing California native Levy, a then-24-year-old intern for the Federal Bureau of Prisons, whose disappearance in May 2001, drew nationwide attention because of a rumored affair with Gary Condit, a former Democratic U.S. Representative from California's 18th Congressional District where Levy's family resided.


The hint of a scandal involving a purported straitlaced Congressman enabled the missing intern's story to share page one coverage with a handful of shark attacks on humans in newspapers during the summer of 2001, a situation that abruptly changed following the September 11 terrorist attacks on the World Trade Tower and Pentagon.


Numerous Supreme Court decisions, including Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), acknowledge a First Amendment right to public access to criminal proceedings and related documents. "TUOL" believes the media organizations involved are taking the proper action, but perhaps for the wrong reason.  A cornerstone of our legal system is the important concept of "justice in the open," where the public may view it. On the other hand, the tragic disappearance of Levy feeds the circulation-driven base instincts of the news media to over-cover a lurid, sensational case with no national impact or precedential legal value because of the possible sexual undertones.

MGM Files Chapter 11 Bankruptcy: The Lion Weeps Tonight

Image via WikipediaSpeaking of James Bond, Metro-Goldwyn-Mayer Studios, Inc., which owns the rights to the 007 film franchise, filed a voluntary petition for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York today.

The Am Law Daily blog reports that more than 100 MGM bondholders and lenders signed off on the pre-approved re-organization plan, which involves swapping a $4 billion debt for a 95 percent ownership stake in the film studio when it emerges from bankruptcy protection. The plan is for Spyglass Entertainment executives to oversee MGM's operations once the post-bankruptcy dust settles.

MGM hopes to raise $500 million and continue to churn out tv programs and films as a leaner and meaner post-bankruptcy company.  The studio is hopeful the court will okay the proposed re-organization within 30 days.

An effect of the 14-page bankruptcy filing is that it wipes out the ownership stakes of the consortium that presently owns MGM, including Comcast, Sony and a handful of private equity firms.

Ars Gratia Artis ("Art for Art's Sake") and all that, but a movie mogul has gotta eat.

'Trademark, Registered Trademark

Image via WikipediaJames Bond aficionados remember the scene in Dr. No (1962) in which Q and M admonish Agent 007 and force him to relinquish his Beretta handgun in exchange for the more powerful Walther PPK 7.65 millimeter firearm ("with a delivery like a brick through a plate-glass window").

Thanks to the U.S. Patent & Trademark Office, the PPK is now a registered trademark, though still not quite as famous as Sean Connery. The USPTO initially was lukewarm to the gun maker's application to register James Bond's Weapon of Choice, which was submitted along with movie posters and news media references, to make the case that the weapon had its own aura and mystique.

The deal was sealed, however, after the manufacturer provided the results of a blind Internet survey of current or prospective handgun owners, age 18 and older. Roughly 54 percent of those queried identified the PPK handgun, many of whom cited 007 in their response. That led the USPTO trademark and trial board to conclude the weapon's design possessed the requisite distinctiveness to warrant trademark protection.

Wonder if this will give George Lazenby any ideas?  As Bond might quip: "It's worth a shot."

Facebook Trademark Suit Involves Different Kind of 'Poking'

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Kansas Shield Law Repels First Test

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Kansas' shield law (Senate Substitute for H.B. 2585), passed five months ago, served The Wichita Eagle well in its inaugural run last week.


Sedgwick County District Judge Willliam Woolley ruled that the Eagle did not have to disclose the identities of confidential sources it relied on for a story about the accidental death of a child last March. Counsel for the mother of the 5-year-old victim in a negligence/wrongful death action subpoenaed an Eagle reporter. Judge Woolley held that all other potential avenues for obtaining information must be exhausted before seeking the information from a journalist by means of subpoena.


The Kansas shield law requires a party seeking previously undisclosed information to make a reasonable effort to obtain the information initially in ways other than subpoenaing journalists.  In this case, Judge Woolley said the material could likely be obtained through discovery options available to litigants, such as interrogatories and requests for production of documents.

Federal Judge Says Expanded Mass. Obscenity Law Violates 1st Amendment

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In American Booksellers Foundation for Free Expression et al v. Coakley et al. (Case No. 10-11165), U.S. District Court for the District of Massachusetts Judge Rya Zobel last week enjoined the enforcement of an amended Massachusetts statute that prohibited disseminating electronic information "harmful to minors" on the grounds that it violated the First Amendment.


In a 9-page memorandum of decision, Judge Zobel said Sections 2 and 34 of Chapter 74 of the Acts of 2010 signed by Gov. Deval Patrick last April that amended M.G.L. c. 272, secs. 28 and 31 were overbroad and unconstitutional.  Among the plaintiffs who challenged the amendments were booksellers, publishers, a nonprofit photographic association and a marriage and family therapist. The plaintiffs sought an injunction, arguing that the statutory revisions exposed adults who distribute 1st Amendment-protected sexually explicit information electronically to liability because minors may be recipients of the material without the adults' knowledge.

Massachusetts legislators amended a 1982 law that made it a crime to distribute visual, written or printed material harmful to minors to incorporate email, instant messages, and the like after a Supreme Judicial Court decision last February reversed the conviction of  a man who sent sexually graphic text messages to undercover police posing as a 13-year-old girl on the grounds that the law did not contemplate online communications.

Critics said the amendments to the statute were poorly drafted and inhibited free speech by exposing adults, for example, to criminal liability for transmitting data about pregnancy or health issues. Violators faced a $10,000 fine and up to five years' jail time under the amended law.

National Enquirer Seeks Chapter 11 Protection: Space Aliens to Blame?

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If Demi Moore, Charlie Sheen, Mel Gibson, Courtney Cox and other Hollywood celebs have an extra bounce in their step today, it's probably because they read The New York Post story about National Enquirer parent company American Media's decision to seek Chapter 11 bankruptcy protection.


American Media, which owns Shape and Star, along with the Enquirer, previously planned a debt-for-equity exchange, but instead has opted for a pre-packaged Chapter 11 re-organization plan.  Key bondholders Capital Research, Avenue Capital Management, Angelo Gordon & Co. and the Oppenheimer Fund, along with fellow bondholders, who are owed upward of $355 million in total, are likely to wind up with a 95 percent controlling interest in American Media Stock, according to the Post story.


The Chapter 11 filing is two weeks away, and the tabloid owner is expected to emerge from bankruptcy within 60 days after filing, according to the Post.  Meanwhile, Enquirer editors are keeping their fingers crossed that another John Edwards or Michael Jackson story is just around the corner.