Idaho Judge Orders Daily to Identify Anonymous Poster

(Photo credit: mMathab)Idaho First Judicial District Court Judge John P. Luster has ordered the Spokesman-Review to identify the anonymous blogger whose post offended Kootenai County Republican Party Chair Tina Jacobsen, the Spokesman-Review reports.

The pseudonymous almostinnocentbystander commented online under a photo of Jacobsen, questioning whether a purportedly missing $10,000 from the County's Central Committee was "stuffed inside Tina's blouse." The post was removed less than three hours after it first appeared.

Judge Luster rejected the daily's free speech argument in denying the paper's motion to quash the subpoena seeking identifying information about the unidentified blogger, noting that the First Amendment does not protect defamatory speech. Idaho lacks a shield law, but Judge Luster said such a statute was irrelevant because the editorial staffer overseeing the Spokesman-Review's online blog was performing as an administrator, rather than as a reporter, when he removed the offending comment.

Editor Gary Graham said the daily is weighing an appeal of Judge Luster's ruling, according to the
Spokesman-Review article.

UPDATE: Judge Withdraws from Facebook Privacy Case Day Before Settlement Hearing

(Photo credit: Wikipedia)United States District Court for the Northern District of California Judge Lucy H. Koh has recused herself without explanation from hearing Fraley v. Facebook (Case No. 5:11-cv-01726) the day before a scheduled settlement hearing, Reuters reports.

In a 38-page decision last year, Judge Koh denied the social media giant's motion to dismiss the putative class action suit based on Facebook's "Sponsored Story" Ads, finding the plaintiffs presented an actionable claim under California's Right of Publicity law [Calif. Civ. Code sec. 3344]. (See "TUOL" post 12/22/11.)

The parties reached a settlement under which Facebook purportedly would pay $20 million and users would have more of a say in how their personal information was used, according to the Reuters article.  The terms of any proposed resolution of the case, however, require the presiding judge's approval.

Scheduled dates to hear motions in the case were vacated by Judge Koh and she has asked that another judge take over the matter.

UPDATE: R.I. High Court Affirms Dismissal of Restaurateur's Defamation Suit

(Photo credit: Wikipedia)In Robert L. Burke et al. v. Katherine Gregg et al. (Case No. 2011-148), the Rhode Island Supreme Court this week upheld a trial court's dismissal of a restaurant owner's defamation suit against The Providence Journal and Citadel Broadcasting Co.-owned WPRO-AM (see "TUOL" post 3/26/10).

In the decision written by Associate Justice Francis X. Flaherty, the High Court ruled against Burke, owner of Providence's Pot au Feu restaurant, holding that the article at issue by Journal reporter Katherine Gregg was not susceptible to a defamatory meaning and that an epithet-laced rant by WPRO-AM talk show host Dan Yorke against Burke amounted to First Amendment-protected opinion based on underlying facts.

A lower court previously tossed Burke's suit, which arose from a Gregg article about a St. Patrick's Day "Murphy's Law Luncheon" roast hosted by Burke's restaurant and attended by pols and business leaders. The Journal article allegedly wrongly attributed to Burke that remarks at the event were "off the record." That led to a nasty exchange between Burke and Yorke on the latter's radio show in which Yorke allegedly called Burke a "punk," "stupid," and a "manipulative piece of garbage."

Such coarseness, however, is the life's blood of talk radio, which courts routinely dismiss as opinion and rhetorical hyperbole incapable of harming one's reputation. Regarding Gregg's article identifying Burke as wanting the luncheon proceedings off the record, Justice Flaherty could not "conceive of how these comments could reasonably be interpreted to have injuriously affected Burke's reputation, degraded him in society, or brought him into public hatred or contempt."

Restaurant owners know that when there's a disagreement, sometimes it's best to "comp" the check and move on.

Buzz Goes for a Spin

(Photo credit: matthetube)Spin, the 27-year-old alternative music magazine, has been acquired by music and celebrity Web site conglomerate Buzzmedia, the New York Times reports today.

Plagued like other periodicals by readers' changing habits and declining ad revenues, Spin has experienced over the past decade a drop in circulation from 530,000 to 460,000, based on Audit Bureau of Circulation figures cited in the Times article. The future of the print edition is uncertain, as Spin has bolstered its Web site and its Spin Play iPad app.

Buzzmedia operates music Web sites, including Sterogum and Idolator, as well as celebrity sites for the likes of Kim Kardashian, which may be reassuring to some.  Terms of the purchase were not disclosed.

UPDATE: Fired Star Columnist Sues Paper Over Plagiarism Allegations

(Photo credit: CoolValley)Almost a year after being terminated allegedly for multiple verbatim use of press releases in his writings without attribution, former Kansas City Star Metro columnist Steve Penn, 54, has sued the McClatchy Co.-owned daily for defamation, the Star reports.

Penn, a 31-year Star veteran who had written a Metro column since 2000, alleges in his complaint filed in Jackson County Circuit Court that reproducing press release content in articles without crediting the source was widespread, common practice at the daily. He alleges he was defamed by the Star and seeks $25,000 compensatory damages and punitive damages.

His former employer cited a dozen instances in which Penn purportedly used press release text without attribution. (See "TUOL" post 7/14/11.) The litigation is scheduled for mediation and a November hearing before Judge Ann Mesle, according to a Star article.

State Law School Clinic's Documents Exempt Under Open Records Law

(Photo credit: Wikipedia)In a 32-page opinion written by New Jersey Supreme Court Chief Justice Stuart Rabner, the Garden State's High Court ruled that records from the Rutgers (University) Environmental Legal Clinic ("RELC") were not subject to being produced under the Open Public Records Act ("OPRA") [N.J.S.A. 47:1A-1].

In Sussex Commons Associates, LLC v. Rutgers (A-97-10; 067232), the Court held that notwithstanding that Rutgers University is a public institution, its law school clinics are not involved in governmental functions and therefore, OPRA is inapplicable. Outlet mall developer Sussex Commons sued for access to the law clinic's records to determine whether a competing entity was impeding Sussex Commons's efforts to secure mall tenants.

According to an Associated Press account,  since 2004, RELC has provided pro bono representation to two groups opposed to building a mall in Sussex County. OPRA requires that "government records shall be readily accessible...with certain exceptions, for the protection of the public interest."

Speaking Fee Story a Page-Turner

(Photo credit: RubyGoes)The Chicago Tribune is weighing its options regarding what action, if any, to take against Trib editorial board member and syndicated columnist Clarence Page, whose controversial speaking engagement in Paris last month purportedly violated the daily's code of editorial principles.

The 65-year-old Page, a Pulitzer Prize winning commentator and frequent panelist on The McLaughlin Group and The Chris Matthews Show, reportedly received travel expenses and a $20,000 appearance fee to deliver a three-minute speech at a rally supporting Mujahadin-e-Khalq (MEK), an Iranian group looking to vacate its slot on the U.S.-compiled list of foreign terrorist organizations, according to accounts by ProPublica and the Romanesko.com media Web site.

Although the Tribune allows some latitude to employees concerning paid speaking engagements, the paper requires editorial staffers to obtain management approval before accepting "buckraking" gigs. ProPublica reports Page has received payment for seven appearances over the past year-and-a-half.

The columnist is quoted as saying that he has not sought superiors' approval in more than three years regarding speaking appearances. A Tribune article claims Page had "misgivings" once he determined the Paris event was more than just a human rights rally and discussion about Iranian exiles, but delivered his remarks nonetheless.

Afghan Journalists Concerned Proposed Media Law Diminishes Press Freedoms

Taliban controlled area (Photo credit: Wikipedia)A proposed revised media law in Afghanistan could tighten the reins on Afghani journalists in the war-torn country and restrict access to foreign programming, press freedom supporters fear.

According to a Reuters wire story, the proposed revision of a media law enacted in 2009 would strengthen the influence over the media in Afghanistan by the 13-member High Media Council, which is overseen by the Culture Minister and whose ranks include a religious scholar. Nai, a media advocacy group, notes that the proposed law would impose limits on the percentage of foreign programming broadcast on state media and subject such programming to the High Media Council's "acknowledgement."

Media advocates are wary as the Kharzei government pursues peace negotiations with the decidedly media-unfriendly Taliban. Afghanistan receives poor marks from the Committee to Protect Journalists, which ranks the country seventh on its Impunity Index, reflecting Afghanistan's ineffectiveness in stanching the continued widespread killing of journalists.

UPDATE: High Court Won't Hear Media Cross-Ownership Rules Case

(Photo credit: Wikipedia)The U.S. Supreme Court last week without comment denied certiorari in the case of National Association of Broadcasters v. FCC (Docket No. 11-698), disappointing media outlets that sought to end restrictions on same-market ownership of television stations and newspapers.

Last year, the United States Court of Appeals for the Third Circuit ordered the Federal Communications Commission to revise its media ownership rules after holding an FCC rule change in 2007 had run afoul of the notice and comment requirements of the Administrative Procedure Act ("APA") [5 U.S.C. sec. 551]. (See "TUOL" post 7/8/11.)

In 2007, the FCC tried to ease the three-decade-plus-old ban on cross-ownership of television stations and newspapers in the same market by a media company by permitting cross-ownership in the nation's 20 largest media markets provided that at least eight media outlets existed in the market to compete against such a multi-media company. The proscribed cross-ownership continued, however, after the Third Circuit found the FCC non-compliant with the APA, much to the chagrin of broadcasters who lamented that such ownership restrictions are an anachronism in the Internet age and unfair because other media platforms, such as satellite and cable, are exempt from the restrictions.

Euro On Your Own

(Photo credit: Wikipedia)The Unruly of Law will be on hiatus while its devoted staff takes an extended vacation and attempts through profligate spending to help a couple of European nations to weather the harsh economic times.  Any devoted readers who believe a Fox News story they hear during our absence have only themselves to blame.

The blog will resume July 2.

UPDATE: SLAPPing a Birther: Judge Tosses Defamation Suit Against Esquire

In a 20-page Memorandum of Decision in Joseph Farah et al. v. Esquire Magazine et al. (Case No. 11-cv-1179), United States District Court for the District of Columbia Judge Rosemary Collyer this week dismissed a defamation suit brought by a publisher and the author of a book questioning President Barack Obama's U.S. citizenship against Esquire magazine over a satirical post (see "TUOL" post 7/6/11).

Farah, creator of WorldNetDaily.com and political science Ph.D. and professed investigative reporter Jerome Corsi, author of Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible to Be President, sued Esquire magazine and blog poster Mark Warren for defamation, false light invasion of privacy, interference with business relations and violation of the Lanham Act [15 U.S.C. sec. 1125(a)], seeking $285 million in actual, compensatory and punitive damages over a post in the Politics Blog of Esquire.com that appeared May 18, 2011.

The plaintiffs support the position of  the so-called "Birthers" who believe President Obama does not satisfy the requirement set forth in Article II, Sec. 1 of the U.S. Constitution that a president be a Natural born citizen or U.S. citizen. Soon after President Obama released his long-form birth certificate from Hawaii, Warren wrote a post headlined: BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!. Two hours after his intial post, Esquire published another item noting that Warren's piece was intended as satire.

In her decision, Judge Collyer said the Lanham Act count was inapplicable because it covers only commercial speech, not non-commercial satirical content such as the Warren post. She granted the defendants' motion to dismiss the suit under Washington, D.C.'s anti-SLAPP ("Strategic Lawsuits Against Public Participation") statute enacted in 2010 [D.C. Code sec. 16-5501], which enables a party to fend off lawsuits filed by one side of a political or public policy debate in an attempt to stifle speech presenting an opposing view.

The judge noted that satire is protected First Amendment speech and that the blog post at issue was clearly satire because it was denoted as humor, contained an exaggerated, decidedly un-newslike headline sporting an exclamation point, and used the same siren logo employed by conservative blogger Matt Drudge. Judge Collyer also pointed out that Dr. Corsi himself had originally dismissed Warren's post as a poor attempt at satire.

The plaintiffs' attorney reportedly plans to appeal the dismissal.

UPDATE: Fed Judge Enjoins Wash. Age-Verifying Law for Adult Ads

(Photo credit: Wikipedia)United States District Court for the Western District of Washington Judge Ricardo Martinez this week issued a temporary restraining order ("TRO") preventing a Washington law from taking effect that would require companies that accept online classified adult ads to verify the age of those offering "adult services."

Democratic Gov. Christine Gregoire signed S.B. 6251 into law last March that subjects violators who don't check ID regarding adult ads to jail time of up to five years and a $10,000 fine (See "TUOL" post 4/3/12). The four-page TRO in Backpage.com, LLC v. Rob McKenna et al. (Case No. 2:12-cv-00954-RSM) enjoins the measure, which was scheduled to take effect June 7, for two weeks pending further litigation. 

Village Voice Media-owned Backpage.com is challenging the constitutionality of the statute, claiming it violates both the First Amendment and the Communications Decency Act of 1996 [47 U.S.C. sec. 230(c)(1)], which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  In its complaint, the plaintiff claims requiring providers, both in-state and out-of-state, to determine whether third-party posted content "is an ‘implicit’ ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, ... maintain a record of the person’s ID...would bring the practice of hosting third-party content to a grinding halt.”

In granting the TRO,  Judge Martinez found: “Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief. “

Paywall Construction on the Rise

(Photo credit: Wikipedia)Newspaper digital subscription programs continue to grow, as roughly 186 newspapers across the nation have erected paywalls, according to the Web site Newsandtech.com

Gannett Co.'s U.S. Community Publishing division last week unveiled digital subscriber plans for The Des Moines Register, The Tennessean and The Courier-Journal, raising to 28, the number of its newspapers requiring online visitors to pay for access to content. (See "TUOL" post 2/23/12.)

A dozen major newspaper publishers have erected paywalls for digital versions of their publications, according to Poynter.org.  Holdouts still remain, however, including Hearst Newspapers, LLC, which doesn't charge for online viewing.

UPDATE: A Flicker of Freedom's Light Shines on Malawi

(Photo credit: Wikipedia)Heeding the call from President Joyce Banda to eliminate repressive laws, the Malawi Parliament this week repealed Section 46 of the Penal Code, the Web site Allafrica.com reported.

Section 46 was amended in November 2010, during the oppressive regime of former president Bingu wa Mutharika (see "TUOL" post 2/8/11). It empowered the minister of information and civic education  to prohibit the publication of, or importation of any publication he believed "would be contrary to the public interest." 

Human rights advocates and Malawi journalists were among those who haled the action by the 43rd Session of Parliament.