Magazine Industry: Fewer Births & Deaths

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The first quarter of 2010 witnessed a slowdown in the number of magazines going belly-up, but also fewer periodicals making their debut, according to online magazine database Mediafinder.com.

Folio reports that although 22 magazines ceased publications compared to a staggering 95 periodicals during the comparable period a year ago, the 1Q of 2010 saw 25 new publications, down from 110 new titles in the 1Q of 2009.  Home, food and health remain the topics that spawned new magazines.

Whereas 16 journals converted from print to online-only during 1Q 2009, only seven magazines switched to virtual-only editions in the first months of this year. Given the state of ad revenues and circulation  nowadays, the magazine industry subscribes to the credo: "Non-catastrophic news is good news." 

Pew Poll: Journalism Headed in Wrong Direction

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Hardly Pollyannaish in the best of times, print and broadcast journalists polled recently by the Pew Research Center's Project for Excellence in Journalism reflect a particularly bleak outlook toward their profession, The New York Times reports.

More than 350 journalists from the American Society of News Editors and the Radio Television Digital News Assn. responded to the poll conducted last December and January. Of the print journalists queried, 48 percent believe their news organizations will become insolvent within a decade barring a major infusion of income. Roughly 18 percent of  print editors polled said their publications are activelyconsidering charging readers for access to Web site content and another 58 percent said the notion is on their employers' radar.

Fifty-eight percent of the poll participants contend that journalism is headed in the wrong direction. Broadcast journalists weighed in with reasons for the decline, including unreasonably high profit margin expectations among media owners and a slow response by traditional media to invest in the Internet.

Despite the grim state of affairs, nearly three-quarters of the journalists who responded to the poll oppose direct government or interest-group financial support of their institutions.

'Bottoms Up' Bottoms Out: Court Okays Liquor Ad Limits

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The First Amendment rights of The Cavalier Daily and The Collegiate Daily were not abridged by alcohol advetisement restrictions imposed by the Commonwealth of Virginia, a divided U.S. Court of Appeals for the Fourth Circuit has ruled.

By a 2-1 vote, the 4th Circuit ruled in Educational Media Co. at Virginia Tech, Inc. et al. v. Susan R. Swecker, Commissioner, Virginia Alcoholic Beverage Control Commission et al, (Case No. 08-1798) that Alcohol Beverage Control Board ("ABCB") regulations limiting alcohol advertisements ( 3 Va. Admin. Code secs. 5-20-40(A) & (B)(3)) are not an unconstitutional restraint on commercial speech. The appellate court reversed the decision of the trial court where lawyers for the collegiate newspapers argued successfully that the restrictions both infringed on their free speech rights and did not deter alcohol consumption by underaged college students.  According to the plaintiffs, the ABCB cost the newspapers more than $30,000 in lost ad revenues annually through the regulations, which prohibit the use of the term "happy hour," ban references to specific cocktails, and forbid beer, wine and mixed drink ads in student-operated publications except within the context of a restaurant ad.

Writing for the majority, Judge Dennis W. Shedd concluded the ABCB restriction "is narrowly tailored to serve the board's interest of establishing a comprehensive scheme attacking the problem of underage and dangerous drinking by college students." 

Boston Media Outlets Sued for Alleging 'Sex Acts' Between Plaintiff and Inmate

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The Boston Herald and WHDH-TV Channel 7 (an NBC affiliate) were sued for defamation in  Boston's Suffolk County Superior Court last month by a 27-year-old community activist who alleges the media  defendants falsely accused her of engaging in "sex acts" with her incarcerated boyfriend during a visit to the Old Colony Correctional Center in Bridgewater.

Joanne Marinova, co-director of the nonprofit Press Pass TV that works with youngsters to produce videos, denies having engaged in sexual activity with her boyfriend, convicted murderer Darnell Jones, in the prison's visiting area.  In previous press accounts, she has said that Jones was disciplined for the prison policy infraction of touching her knee during a visit.

The incident came to light when the media defendants reported in May 2009, about Marinova accompanying 67-year-old Mass. Rep. Gloria Fox on a visit to Old Colony in a story that suggested the pol had snuck Marinova into the facility for a conjugal visit with her beau.  A story by Herald reporter Jessica Van Sack prominently featured in the tabloid on May 28, 2009, began: "State Rep. Gloria L. Fox is under state scrutiny for allegedly sneaking a murderer's girlfriend--previously bagged for engaging in 'sexual acts' with the killer con--into a state prison in Bridgewater, the Herald has learned."  WHDH-TV repeated the allegations in a local news broadcast.

Marinova's attorney says the allegations against his client are false and have damaged her reputation in the social services community in which she has worked.  If the plaintiff is deemed a private individual, she only will have to prove the defendants were negligent in reporting the alleged false statement, a lesser evidentiary standard than "actual malice," that a public official or figure would have to prove, which  would involve showing that the media defendants published the alleged false statement with knowledge that it was false or with reckless disregard whether the statement was true or not.

UPDATE: Judge & Daughter Sue Plain Dealer for Outing Anonymous Posts

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Cuyahoga County Common Pleas Judge Shirley Strickland Saffold and her daughter Sydney Saffold have filed a $50 million suit against Advance Publications, owner of The Cleveland Plain Dealer, alleging the media defendant conspired to violate the privacy policy of its Web site, www.cleveland.com, by identifying anonymous comments by "lawmiss," a user name linked to the plaintiffs (see "TUOL" post 3/26/10).

The suit, which was filed in Cuyahoga County Court of Common Pleas, accuses the media defendant of engaging in a "vendetta" in its quest to identify the users of the registered "lawmiss" cleveland.com account after one anonymous posting questioned the mental health of Plain Dealer reporter James Ewinger's relative. Sydney Saffold has acknowledged writing some of the anonymous comments under the "lawmiss" moniker, but her mother the Judge has denied authoring comments.  The Plain Dealer claims a handful of "lawmiss"'s comments concern cases over which the judge  has presided.

A Plain Dealer affiliate, Advance Internet, created cleveland.com's privacy policy, which states in part: "We reserve the right to use the information we collect about your computer, which may at times be able to identify you, for any lawful business purpose." Plaintiffs' counsel concedes that Judge Saffold and her daughter share the "lawmiss" account, but claims the AOL Email address linked to the account was established by Judge Saffold's former husband for the entire family's use.

Apparently, the plaintiffs' ardor for preserving Internet blogger anonymity only goes so far; the Complaint seeks to unmask "John Does" who criticized the judge in online comments and has named the "Does" as defendants. "TUOL" does not believe that the old adage attributed to politicians that "no publicity is bad publicity," does not extend to jurists.

Germany to Strengthen Protections for Journalists

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Germany's Cabinet intends to enact a law according greater protection to journalists who rely on confidential state informants, according to Justice Minister Sabine Leutheusseur-Schnarrenberger.

Presently, section 353b of the German Penal Code subjects individuals who betray state secrets to a maximum five years' imprisonment. Prosecutors have employed the statute, which the Cabinet plans to revise, to search and confiscate material from journalists, irrespective of whether the scribes are accused of wrongdoing.

According to Reporters Without Borders, Germany ranked 18th worldwide in press freedom in 2009, two slots higher than the U.S. (take that, 1st Amendment lovers).

NH Papers: Don't Take Free Online Content for Granite

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Count The Concord Monitor, The Portsmouth Herald, The Nashua Telegraph and The Conway Daily Sun among Granite State newspapers that will institute metered payment systems for online news content before the year is out.

Access to breaking news will remain free and unrestricted, but online readers otherwise will have a ceiling on free page views monthly before being required to register on the Web site and pay for additional viewings. The Dow Jones-owned Seacoast Media Group, which publishes The Portsmouth Herald, is expected to unveil its metered payment program sometime this fall.

Full Disclosure:  New Hampshire newspapers are near and dear to the intrepid "TUOL" staff, which more years ago than will be admitted to, worked as a reporter at The N.H. Union-Leader. The Union-Leader, which does not publish all its stories online, is not listed among the papers going the metered payment route, opting to dip its toes in the 20th Century, before rushing into the 21st.

Zap! Thwak! Federal Judge Knocks Out Suit Against Stan Lee, Marvel

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U.S. District Court for the Southern District of New York Judge Paul A. Crotty has tossed a protracted $2 billion lawsuit that spread from N.Y. into Colo. and Calif. brought by shareholders against legendary comic book creator Stan Lee and Marvel Entertainment, according to www.law.com.

Judge Crotty's 14-page decision in Jose Abadin & Christopher Belland derivatively on behalf of Stan Lee Media, Inc. v. Marvel Entertainment, Inc., Marvel Enterprises, Stan Lee & Arthur M. Lieberman (Case No. 09-cv-0715) denied the plaintiffs leave to file a second amended complaint and granted the defendants' motion to dismiss the suit in its entirety.

New investors, who acquired Stan Lee Media Inc., which declared bankruptcy in 2001, alleged that the corporation Lee established with a former partner owned the rights to comic book superheroes including Iron Man, The Incredible Hulk, X-Men and Spider-Man. The plaintiffs alleged Lee wrongly transferred the ownersip rights of  these formidable characters to Marvel Entertainment in 1998.

Judge Crotty ruled the plaintiffs lacked standing to sue because they were not shareholders when the purported improper transfer occurred. Moreover, Judge Crotty held  the plaintiffs' attempt to enforce their rights a decade after the fact violated applicable statutes of limitations, which not even the brute strength of Wolverine and the Hulk can overcome.

No doubt the plaintiffs are pretty "Thor" about the decision.

Network News Ratings for ABC and CBS B-A-D

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First quarter 2010 ratings for ABC World News & CBS Evening News hit record lows respectively, according to a report in today's New York Times.

ABC World News ratings numbers declined 3 percent from a year ago, which may or may not be related to Diane Sawyer replacing Charlie Gibson as anchor. NBC Nightly News with Brian Williams had its best 1st quarter ratings numbers in five years, benefitting from its Winter Olympics coverage. Overall, the viewer numbers were: NBC, 9.92 million; ABC, 8.27 million; and CBS, 6.45 million.

The numbers don't address a problem that plagues all three networks; namely, demographics.  The 25- to 53-year-old viewer group over whom advertisers salivate is not the bread-and-butter of  network news loyalists nowadays for a myriad of reasons, ranging from the Internet to the simple truth that many folks are still at the office at the hour when network news airs. As the accompanying commercials reflect, seniors make up a sizable percentage of  network news watchers, most likely pining for the days of Walter Cronkite, John Chancellor, Tom Brokaw, Peter Jennings, Huntley & Brinkley, and Dan Rather.

As ad revenues continue to plummet at all three networks, one wonders whether news anchors will continue to command rock-star salaries such as those doled out to Diane Sawyer, Katie Couric and Brian Williams.

Bloggers 'ImPRESSed' With Themselves

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A just-released survey by PR Week and PR Newswire finds 52 percent of bloggers polled view themselves as journalists, compared to 33 percent who considered themselves virtual ink-stained wretches when queried in 2009.

Still, only 20 percent of the bloggers derive the bulk of their income from their blogs, a 4 percent boost from 2009 figures. The medium is the message, as 98 percent of bloggers  and 68 percent of online journalists look to social media outlets, such as Twitter and Facebook, as sources of research, whereas only slightly more than a third of traditional print journalists plying their trade in newspapers and magazines use social networks and blogs as reference materials.

Somehow, a journalist tweeting: "Bloggy, Get me Rewrite!" loses something in the translation.

Fla. Appeals Court Strikes Judge's Order as 1st A. Prior Restraint

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In Maria Gagliardo v. In re the Matter of the Branam Children (Case No. 3D09-2958), Florida's Third District Court of Appeals overturned on First Amendment grounds a trial judge's order preventing a would-be author from gaining access to photos and information concerning the Branam children and the fate of their parents, who were murder victims in a high-profile case.

Jake and Kelly Branam were murdered on their expedition boat in September 2007, and their killers subsequently received five consecutive life sentences in a story that attracted media interest worldwide. After the plaintiff, who was the companion of the Branam children's great-grandfather, reported plans to write a book about the tragic story and the time she spent with the children, the aunt named temporary custodian of the youngsters went to court to protect the children's privacy.

The trial judge issued an order restricting the plaintiff and Branam relatives from distributing pertinent photos and information.  The appeals court relied on Post-Newsweek Stations Orlando, Inc. v.  Guetzloe (968 So. 608, 610 (2007), which presumes prior restraint violates the First Amendment's freedom of speech and of the press, and considers censorship of publications permissible only in "exceptional circumstances." The Florida appellate court said the Branam case offered "no exceptional circumstances...to justify censoring the writer." 

Gannett Sued Over Hawaii '5-0' Layoffs

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 America's largest newspaper publisher, Gannett Co., which owns 83 papers, is being sued in Oahu Circuit Court for allegedly violating labor laws in the sale of the Honolulu Advertiser to rival Honolulu Star-Bulletin, according to Courtroom News Service.

The Advertiser's employees' union, Intl. Longshore & Warehouse Union Local 142, claims the axing of 50 employees days after the Advertiser sale occurred violated Hawaii's Dislocated Workers Act ("DWA") [HRS ch. 394B, sec. 1 et seq.], which mandates 60 days' notice before terminating workers from a divestiture, sale, or other transaction of business.  Gannett Pacific Corp. announced the Advertiser sale to Star-Bulletin owner, Oahu Publishing Co., in late February, two weeks before terminating 50 employees effective at the end of April. The newspaper transaction, which must undergo U.S. Justice Dept. scrutiny for any potential antitrust violations, is due to be finalized sometime this summer.

The DWA allows for pink-slipped employees to receive back pay and benefits for the length of any alleged violation and subjects the offender to civil penalties up to $500 daily. The Advertiser's union wants punitive damages and penalties assessed against the media conglomerate.

Book-em Ganno!

Martha Stewart and Hallmark Cable Venture in the Cards?

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Broadcasting & Cable reports that talks are underway between Martha Stewart Living Omnimedia("MSLO") and Crown Media Holdings-owner of Hallmark Channel and Halllmark Movie Channel--concerning a new joint venture cable tv lifestyle network.

Talks are in the nascent stage, so its difficult to predict whether the outcome will be a new mega-company owned by the two entities or a more modest new cable channel, tentatively named Hallmark Home. Beginning in September, Hallmark will air the Mark Burnett-produced "Martha Stewart Show," which previously was a syndicated program. This week saw the debut of Stewart programming running seven hours daily on Hallmark, which is a lot of doilies and potpourri for a 24-hour viewing cycle.

Both companies would just as soon forget 2009, as Crown Media had a net loss of $22.5 million, and MSLO a net loss of $14.5 million. "TUOL" wonders if the Hallmark Movie Channel will air the "chicks in chains" movies featuring Linda Blair as a tribute to Stewart's brief incarceration in 2004.

CNN Prime Time Ratings Continue to Plummet

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CNN ("Catastrophic News Numbers") has followed up its grim 4th quarter prime-time progamming ratings (see "TUOL" post 12/17/09) with an even more diminished audience, according to 1st quarter 2010 ratings figures reported in today's New York Times.

The Times story reports that in February, not only was CNN's prime time slate bested by MSNBC and Fox News, but also finished behind its own HLN network and CNBC, which received a boost from the Winter Olympics.  CNN personalities took it on the chin, with Larry King's audience down 43 percent for the quarter. King has a quarter of the viewership of Fox's Sean Hanity, routinely  loses to MSNBC's Rachel Maddow, and even is getting thumped by HLN's relative newcomer, Joy Behar.

The news isn't much brighter for Anderson Cooper, whose ratings dropped 42 percent in the first quarter, and more important, 46 percent among the 25- to 54-year-old viewer demographic that advertisers crave.  CNN's Campbell Brown's 8 p.m. program had its worst results ever in the 1st quarter among this viewer group.

Even CNN's previous morning dominance was overturned, with MSNBC's  caffeine-crazed "Morning Joe" beating CNN's "American Morning" telecast.  Meanwhile, Fox News' Bill O'Reilly, Glenn Beck and Greta Van Susteren all enjoyed a substantial ratings boost compared to the previous year's figures.

Might be time for CNN to ship Larry King's suspenders to the Smithsonian and stop dazzling itself with computer graphics and refocus its attention on content and personalities who can deliver it.

Tribune Co.: Bankruptcy Is Expensive

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According to reports in The Chicago Tribune and The Am Law Daily Web site, more than $138 million in legal fees have been racked up since The Tribune Co. filed Chapter 11 bankruptcy reorganization proceedings 15 months ago, and an irate group of bondholders is asking a court to order banks that backed the leveraged buyout plan in 2007 that enabled former owner Samuel Zell to take the company private to repay $25 million used to cover the banks' legal fees.

A Tribune Co. subsidiary that did not file for bankruptcy covered the legal fees of banks involved in the Tribune LBO, which skirted the requirement that the bankruptcy court ok payments for professional fees. The $138 million in attorneys' fees represents about 25 percent of the media conglomerate's 2009 cash flow. U.S. Bankruptcy Court Judge Kevin Carey last year admonished attorneys involved in the case for hourly billing rates exceeding $1,000. Observers note that bankruptcy rates have risen roughly 10 percent annually over the last decade, and insolvency proceedings involving major corporations, such as Enron, United Airlines, and Lehman Bros. are costly affairs, so the legal fees to date for the Tribune bankruptcy are not out of line. Still, that's a tough case to make in view of one law firm that has billed the Tribune bankruptcy trustees $110,000 in photocopying costs.

St. Louis News Guild Ok's Contract with 'Dispatch'

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With three-quarters of its members casting ballots, the St. Louis Newspaper Guild ended year-long negotiations by voting 132-54 to ratify a five-and-a-half year contract with the St. Louis Post Dispatch that offers less than idyllic terms.

The contract freezes pension contributions and eradicates retiree medical benefits for existing employees, offers a 6 percent cut in wages and requires three unpaid one-week furloughs over the next two-and-a-half years. On a positive note, a provision in the contract calls for a six-month moritorium on staff layoffs and would restore wages by 2.5 percent in each of the pact's last three years provided company revenues increased by at least 2 percent annually during that period.

The daily, founded in 1878, which is currentrly owned by Davenport, Iowa-based Lee Enterprises, has a daily circulation of approximately 240,000.

Plain Dealer IDs Anonymous Poster on Website

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Academics, media ethicists and others are weighing in on the firestorm created by Ohio's largest newspaper, the Advance Publications-owned Cleveland Plain Dealer, when it identified a blogger whose anonymous posts on cleveland.com included one that questioned the mental stability of a Plain Dealer reporter's relative.

A comment by "lawmiss" on the paper's Web site concerning the mental state of a relative of reporter James Ewinger was removed as violating the site's policy against personal attacks. Editors investigated and discovered "lawmiss" shared an Email address with Cuyahoga County Common Pleas Judge Shirley Strickland Saffold, and noted that a handful of "lawmiss" posts commented on cases heard by Judge Saffold.

Judge Saffold denied sending the posts, but her daughter, Sydney Saffold, admitted to authoring at least a handful of the roughly 80 "lawmiss" comments found on the site. Journalism ethicist Bob Steele of the Poynter Institute criticized the Plain Dealer's conduct, noting that neither any threat of danger to anyone nor any inkling of judicial misconduct were in evidence to warrant uncloaking the anonymous blogger. Online privacy advocate the Electronic Frontier Foundation also took the media outlet to task for the "chilling effect on conversation" the revelation of  "lawmiss" might have.

On the other hand, Editor & Publisher commentator Shawn Moynihan backed the newspaper's action, saying the public's right to know trumped the right of "lawmiss" to hurl anonymous brickbats. The Plain Dealer defended itself by arguing the newsworthiness of someone using the Email address of a sitting judge to comment on issues of public concern.

"TUOL" sides with the Poynter Institute on this one. The First Amendment free speech/free press provision protects anonymous speech. Secondarily, "TUOL" is all for crusading newspapers, but gets a bit uncomfortable when the precipitating action that gets the newspaper's dander up is an attack on "one of its own." That's not what the old rubric about comforting the afflicted and afflicting the comfortable is all about.

PayWall Across the Pond

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Beginning in June, London's The Times & The Sunday Times Web sites will charge for Internet access, according to the Associated Press.  Subscribers will be charged 1 pound ($1.49) a day or 2 pounds ($2.98) per week.

Print subscribers to the newspapers will not be charged to view the online editions, according to owner News International, whose parent company is Rupert Murdoch's News Corp,

R.I. Restauranteur Serves Up Libel Suit Against DJ & Reporter

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Courtroom News Service (CNS) reports that politically connected Providence restauranteur Bob Burke, owner of Pot au Feu, has filed a defamation suit in Superior Court against WPRO-AM talkmeister Dan Yorke, reporter Katherine Gregg, and their respective employers, Citadel Broadcasting Co. and The Providence Journal.

Burke's eatery hosted the "Murphy's Law Luncheon" on St. Patrick's Day in 2009 for Ocean State solons headed by former R.I. House Speaker William Murphy, the District 26 Democrat succeeded last month by Gordon Fox. According to the complaint, Burke alleges the defendants ascribed to him what actually was Rep. Murphy's position that lawmakers' comments at the luncheon be "off-the-record."

Burke alleges that a column by Gregg wrongly attributed the off-the-record rule to him, which purportedly sparked an on-air rant by talk-radio provocateur Yorke against him. Burke alleges his reputation was harmed personally and professionally by the on-air attack in which Yorke purportedly called him "stupid," a "punk," a "mob actor," and a " manipulative piece of garbage," among other epithets, and invited Burke to "kiss my Irish ass."

"TUOL" has not yet reviewed the complaint. Such invective, which sadly passes for political discourse nowadays, rarely reaches the defamation threshold, but is considered opinion or rhetorical hyperbole. The high-profile plaintiff likely would be considered a public figure, rather than a private person, which also raises his burden of proving defamation.

Still, the restauranteur's lawsuit has given the local media something to chew on.

KY High Court Backs Paper on Open Records Law Request

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In Central Kentucky News-Journal v. Hon. Doughlas M. George (Case No. 2009-SC-000018-MR), the Kentucky Supreme Court this week reversed the Kentucky Court of Appeals, ruling that the twice-weekly newspaper is entitled to sealed settlement agreements from two lawsuits filed by a teacher against the Campbellsville school district and the Taylor County school board.

Teacher Katherine Moss sued the school district, claiming she was sexually harassed, and the school board for not hiring her. The News-Journal, which is owned by Landmark Community Newspapers, LLC, sought a writ of mandamus requiring trial Judge Doughlas M. George to grant access to sealed confidential settlement agreements, which the Court of Appeals denied.

Kentucky's High Court said the agreements must be disclosed pursuant to Kentucky's Open Records Act (KRS 61.870 to 61.884). Justice Will Scott wrote the statute presumes a public interest in the "free and open examination  of public records." The school boards argued the Open Records Act's privacy exemption applied, but the Court noted that taxpayer money paid the premiums on the insurance policy out of which the school boards paid the settlement proceeds.