Alleged Neglectful Mom Remark Sparks Libel Suit

Kanawha River; downtown Charleston, West Virginia;  (Photo credit: Wikipedia)

A Fayette County (W.Va.) woman has filed libel and emotional distress claims against The Charleston Gazette parent Daily Gazette Co., alleging she was defamed by comments included in the daily's profile of a mortician suggesting she was culpable in the deaths of her four children who perished in a house fire.

The complaint in Bohanna v. Daily Gazette Company (Case No. 12-C-670), filed in Kanawha Circuit Court, includes counts alleging defamation and intentional and negligent infliction of emotional distress. Though not identified by name in the purportedly offending comments, plaintiff Linda Bohanna alleges she was defamed by statements that appeared in the Gazette's April 18, 2011, article entitled I Want Family to Mean Something attributed to funeral home director Junora Walton.

As reported by the Gazette and Courthouse News Service, in the article, Walton recounted  having to deal with  four children killed in the blaze one month after she became a mortician. "Their mother had left them alone in the house with a space heater while she went out with friends to a club," Walton is quoted as saying. The article contrasts the funeral director's response to the unnamed mother to the community's hostility, quoting Walton as saying: "Did I want to smack her around?...You bet I did...But I didn't...I told her, 'I'm not supposed to judge you.' And I was there for her. Compassionate."

The plaintiff alleges the article refers to her and her children who died in the September 1984, fire. Her complaint claims the defendant daily should have known Walton's statement was false, having covered the tragic event. The complaint seeks punitive damages and medical expenses against the defendant.

According to the Gazette article, the daily, in its online archives, subsequently included the following Note: "Correction. An earlier version of this story included a recollection by Junora Walton-of a fire that killed four children in 1984. According to a news clipping from the time, the recollection was misstated. The children's mother was home at the time of the fire, the past story states, and received burns in the blaze."

Author's Heart Throbs Over Romance Publisher's Alleged Infringement

Bob Casey Federal Courthouse (Photo credit: Wikipedia)

Toronto-based Harlequin Enterprises, Ltd., which boasts publishing more than 110 romantic potboilers monthly in 31 languages sold worldwide, faces a copyright infringement suit in the United States District Court for the Southern District of Texas from an author who claims the company produced a novel in 2011 that infringed on her work written two years earlier.

In her 8-page complaint, Rucker v. Harlequin Enterpises Ltd. (Case No. 4:2012-cv-01135), Kelly Rucker alleges more than 40 instances in which Harlequin's The Proud Wife purportedly infringes on her tome, How to Love a Billionaire. Although Courthouse News Service reports the complaint does not specify any purportedly plagiarized passages, Rucker claims the defendant had access to her work through her submission of the manuscript to competitions sponsored by the Romantic Writers of America.

The complaint alleges The Proud Wife has been financially successful for Harlequin and garnered positive reviews. Rucker is seeking all the profits from the Harlequin novel, along with damages for copyright infringement. Expect to see lots of heaving bosoms, burning stares and masculine tumescence in the courtroom.

Bay Guardian Being 'Examined' By Prospective Buyer?

Newspaper 'San Francisco Examiner' showing headlines of Japanese relocation, San Francisco, California, United States, 26 Feb 1942 Source United States National Archives Identification Code ARC 195535 U.S. Government photo. (Photo credit: Wikipedia)Renowned left-leaning San Francisco weekly Bay Guardian may soon be acquired by the San Francisco Examiner, according to a post on Eastbayexpress.com.

The 46-year-old Bay Guardian, a hotbed of progressive politics, has been looking for suitors for awhile. The Examiner, a daily once owned by the decidedly unprogressive Hearst media empire, was itself acquired in 2011 by the San Francisco Newspaper Company, LLC

WashPo Writer Resigns After Editor's Note Apologizes for Uncredited News Source

(Photo credit: Wikipedia)Washington Post Blogpost writer Elizabeth Flock has left the paper, following an Editor's Note that appeared over one of her stories that apologized for her item's "inappropriate, extensive use of an original report by Discovery News and also failed to credit that news organization as the primary source for the blog post."

As reported by Poynter.org, the apology comes four months after another Editor's Note and a column by the Post ombudsman were authored in response to another post she did about Mitt Romney. The WaPo writer told Poynter her resignation was voluntary and a personal decision. Still, two Editor Notes in a relatively short time likely led some Post executives to decide to get the Flock out of there.

Foreign Investors' Voting Rights Suspended by News Corp. in FCA Compliance

Logo of the Fox Broadcasting Company (Photo credit: Wikipedia)Foreign shareholders of Class B Common Stock in News Corp. have temporarily had their voting rights suspended to enable the media conglomerate to comply with the Federal Communications Act (FCA) regulation that limits to 25 percent the ownership and voting authority of non-American investors in broadcast stations.

As reported by the New York Times and Wall St. Journal among others, News Corp.'s foreign investors owned roughly 36 percent of the company's Class B shares, necessitating the move. Foreign shareholders still receive dividends and distributions, despite the loss of voting privileges.

News Corp. CEO and chair Rupert Murdoch is an American citizen, but his family, which holds nearly 40 percent of News Corp.'s voting shares, will not vote a portion of its shares. Among the media giant's holdings are 27 television stations nationwide and Fox Broadcasting.

The News Corp. board of directors okayed an immediate suspension of half of foreign investors' voting rights. The vigilant, but ever-playful "TUOL" staff can't help but wonder  if the Murdoch media empire learned of the FCA breach by hacking into FCC commissioners' telephone conversations.

Gannett Quarterly Profits Off a Quarter

(Photo credit: Wikipedia)Restructuring costs and plunging newspaper advertising revenue are to blame for the 25 percent decrease in First Quarter profits for McLean, Va.-based media conglomerate Gannett Co. compared to a year ago.

According to an Associated Press report, Gannett, whose stable includes USA Today among its 82 newspapers, along with 23 television stations, saw a 2.6 percent decline in First Quarter revenues compared to the same period in 2011. Digital ad revenues, however, jumped 6.8 percent.

9th Circ. Okays Public Television Accepting Political Ads

In a 49-page decision, the United States Court of Appeals for the Ninth Circuit ruled 2-1 to overturn a federal law banning public television stations from accepting public issue and political advertising.

In Minority Television Project, Inc. v. FCC (Case No. 09-17311), the appeals court reversed the trial court, holding that the federal law restriction was unconstitutional. The FCC fined San-Francisco based KMTP-TV $10,000 for airing paid promotional messages from for-profit companies in violation of 47 U.S.C. sec. 399(b). The statute bars public broadcasters from being compensated for messages for (1) for-profit cos., (2) that express personal views and (3) political messages supporting candidates.

The Ninth Circuit upheld the proscription regarding for-profit companies (and therefore, the $10k fine), but found the law's remaining provisions violative of the First Amendment.

Will Outcome of Pitcher's Perjury Trial Be 'Clemens-y'?

Rusty Hardin, attorney for Roger Clemens. Getty Images via @daylife"Let's play two!" Hall of Fame Chicago Cubs shortstop Ernie Banks enthusiastically used to exclaim.

The notion must have come to the mind of United States District Court for the District of Columbia Judge Reggie Walton as he began presiding today over the government's second attempt to obtain a perjury conviction against Cy Young Award-winner "Rocket" Roger Clemens.

Jury selection is underway, the Associated Press reported, in the case against Clemens, who is accused of giving false testimony to a Congressional committee looking into steroid use in Major League Baseball. The list of potential witnesses is a Who's Who of prominent baseball figures, ranging from Commissioner Bud Selig and Hall of Fame baseball writer Peter Gammons, to tainted home run king Barry Bonds and many of Clemens' former Yankee teammates, including Jorge Posada and Paul O'Neill.

Judge Walton declared a mistrial in July 2011, on the second day of testimony after prosecutors presented evidence to the jury that the court already had ruled inadmissible. A four-week to six-week trial is expected, which is about as long as the average Yankees-Red Sox game.

Adults Love Local News

(Photo credit: Knight Foundation)A phone survey of more than 2,200 adults last January found 72 percent of the adults polled relied on local newspapers to satisfy their craving for local information.

The study by the Pew Research Center's Project for Excellence in Journalism and Internet & American Life Project, backed by the John S. and James L. Knight Foundation, which has a 2 percent margin of error, gauged how respondents obtained information about 16 topics, ranging from crime news and school information to weather reports.

The results, reported on www.PewInternet.org, found 32 percent of adults conceding the absence of their local paper would have a major impact on their lives, a number that jumped to 35 percent among adult respondents age 40 and older. The survey was conducted both on cell phones and landlines.

Magazines Running Out of Ammo

The Sporting News photo of Jay Hughes (Photo credit: Wikipedia)Advertising pages in the consumer magazine sector plunged 8.2 percent in the First Quarter of 2012, compared to First Quarter results last year, according to Publishers' Information Bureau (PIB) statistics cited in Folio (www.Foliomag.com).


Sporting News (a "TUOL" staff fave during their formative years) suffered an 80.1 percent drop-off in ad pages. Overall, the "women's magazine" category performed badly in the First Quarter, PIB numbers reflect, as titles such as O! The Oprah Magazine, Ladies Home Journal and Better Homes & Gardens all endured fewer ad pages. Marie Claire was a shining exception, boasting a 10 percent increase in ad pages.

The numbers weren't much better for news magazine not named Bloomberg, as The Economist slipped 4.8 percent in ad pages over the first three months of 2012, while Time's ad pages sank 21 percent. Automotive and food products were advertising categories that severely cut back on magazine advertising, as only toiletries & cosmetics and apparel & accessories stepped up a periodical presence during the First Quarter of 2012.

Solons Pass Law Shielding Job Applicants' Social Media Passwords

Chamber of House of Delegates, Maryland State Legislature. (Photo credit: Wikipedia)Maryland, which enacted the nation's first shield law to protect journalists in 1896, is now also the first state to protect job applicants' social media passwords from prospective employers' perusal.

The (Maryland) Gazette.net Web site and the Raycom News Network reported that the Maryland legislature nearly unanimously passed the measure that Democratic Gov. Martin O'Malley is expected to sign. The bill, backed by the American Civil Liberties Union and opposed by the Maryland Chamber of Commerce, bars employers from demanding applicants provide passwords to their personal Facebook, Twitter and other social media accounts.

Other states, including Michigan, Illinois and California, are considering similar legislation to preserve the privacy right of individuals.

Journo Tweet Triggers Mistrial in Kansas Murder Case

The Topeka Capital Journal (Photo credit: Marion Doss)A Topeka (Kan.) Capital Journal reporter's courtroom Tweet about a murder case prompted the judge to declare a mistrial, the daily reported.

One day after the case against 20-year-old Austin Tabor, accused in the 2010 shooting death of 20-year-old Matthew Mitchell, began, the court declared a mistrial because an online image posted by the Capital Journal journalist live-Tweeting the proceedings depicted one or more jurors hearing the case. Rules created by the Kansas Supreme Court bar the photographing of individual jurors.

The presiding judge agreed before the proceedings began to the use of camera phones, but forbade photographing jurors. The Capital Journal apologized for the inadvertent image and said it would use the miscue as a "training opportunity" for staff members.  Prosecutors expect to try Tabor sometime this summer, according to the Capital Journal article.

Soap Opera Weekly Magazine Shuts Down...Unless It Was All Just a Dream

Original main title (Photo credit: Wikipedia)With once-thriving daytime dramas down to four stalwart soap opera hangers-on, including General Hospital and Days of Our Lives, it's not surprising news that American Media Inc. has discontinued Soap Opera Weekly ("SOW").

According to an article in Ad Week citing Audit Bureau of Circulations numbers, SOW circulation plunged 50 percent over the past four years to 107, 817. Competitor Soap Opera Digest ("SOD") continues to keep readers abreast of all the torrid affairs, long-lost twins and other hijinks among their favorite  "soaps" characters, but also saw  circulation decline by 40 percent last year to 292,219.

Sounds as if this segment of the publishing industry is undergoing a not-so Secret Storm and can use a Guiding Light to show it the way to profitability.

Twitter Tags Spammers With Federal Court Suit

Image via CrunchBaseSan Francisco-based monster microblogger Twitter last Thursday sued five Websites it claims are using software to bombard tweeter with advertising and virus-plagued links.

Twitter named TweetBuddy, TweetAdder, TweetAttacks, justinlover.info's James Lucero and tropion.com's Garland E. Harris as defendants who allegedly devise tools to carpet-bomb Twitter account holders with spam, according to a Reuters article.  

Wouk This Way

Aharon Meskin, Herman Wouk and Misha Asherov. (Photo credit: Wikipedia) Mediabistro.com reports that a new book by 96-year-old best-selling author Herman Wouk is expected to be published this fall by Simon & Schuster.

The Lawgiver, which tracks communications between characters concerning a proposed movie about the Biblical leader Moses, is the latest literary effort by the author of The Caine Mutiny. The Winds of War and Marjorie Morningstar are among Herman Works' Wouks, er, Wouk's works.

Hope Wouk's agent got a hefty advance for its nonagenarian client.

FCC Seeks Online Repository for Local TV Political Ad Data

Logo of the United States Federal Communications Commission, used on their website and some publications since the early 2000s. (Photo credit: Wikipedia)At their April 27 meeting, FCC Commissioners are expected to push for regulations requiring local television stations to submit data to a central Website about political advertising that they air, the New York Times reports.

Stations already compile such information, which documents programming and cash outlay on political ads, but object to the FCC plan, which they argue would be financially onerous and of little use to the public. The agency and advocates of the plan, however, claim transparency regarding political ads will increase and members of the public will have easier access to such data if it is warehoused online at one site. The FCC contends stations would spend under $1,000 to upload the data and would ultimately realize a savings in storage and printing costs.

Viacom Back in Business: Second Circuit Restores Suit Against YouTube

Seal of the United States Court of Appeals for the Second Circuit. (Photo credit: Wikipedia)In Viacom International, Inc. et al. v. YouTube, Inc. et al. (Case No. 10-3270-cv), the United States Court of Appeals for the Second Circuit yesterday reversed the trial court's dismissal of the plaintiffs' copyright infringement suit against YouTube.

The trial court in 2010 rejected the plaintiffs' claim that YouTube infringed on their copyrights by allowing users to upload unauthorized clips from Comedy Central's The Daily Show with Jon Stewart, citing the Safe Harbor provision, Title II of The Digital Millenium Copyright Act of 1998, which shields Internet Services Providers from liability provided they promptly block access to infringing material when they receive notice of the infringement from the copyright holder.

The appellate court, however, found "a reasonable jury could conclude that YouTube had knowledge or awareness" of the infringement regarding "a handful of specific clips." The Second Circuit ordered the lower court to determine whether YouTube turned a blind eye to the actions of its users.

Arizona Bill Has Free Speech Advocates on Edge

Arizona Governor Jan Brewer (Image credit: Getty Images via @daylife)House Bill 2549, passed by the Arizona legislature and wending its way toward Gov. Jan Brewer's desk, seems certain to invite a First Amendment challenge from online advocates of free expression.

H.B. 2549, according to a report by ABC News, makes it a misdemeanor offense subject to a maximum six months' jail time for an individual who employs digital or electronic means to "terrify, intimidate, threaten, harass, annoy or offend" another. Although more than two-thirds of the states have enacted cyberbullying statutes, the proposed H.B. 2549 apparently could have a chilling effect on speech because, for example, its vague wording doesn't define what might satisfy the "annoy" or "offend" burden of proof.

Social media users and blog commenters will have to be on their guard if the measure passes. For the Arizona legislature, which previously authored a draconian immigration law that seemingly makes "driving while looking Latino" a criminal offense, and was the last state legislature to acknowledge Martin Luther King's birthday as a holiday, it's just another day at the office.

Convict Journos Entitled to Bylines Under New Bureau of Prisons Rule

Central office of the Federal Bureau of Prisons (Photo credit: Wikipedia)Beginning May 3, avid readers of prisoner publications will know the names of the incarcerated scribes, Courthouse News Service reports.

The federal Bureau of Prisons adopted a rule it previously introduced in 2010 on an interim basis that will allow cons to have bylines on their stories. In 2007, a federal judge in Colorado held that the First Amendment rights of jailhouse journalists were being violated by rules proscribing bylines on prison paper stories.

"TUOL" wonders if convict columnists will have front- and side-view photos accompanying their work.

Newsrooms Continued to Shrink in 2011

(Photo credit: Wikipedia)The largest U.S. newspaper publishers last year combined trimmed their work force more than 7 percent, according to a review of Securities & Exchange Commission filings by Media Daily News (www.mediapost.com).

A.H. Belo, owner of the Dallas Morning News and Providence Journal, among other papers, slashed its job force by 13.6 percent compared to 2010 figures, while its revenues declined 5.3 percent. Media General shrank its newsroom personnel by 9.7 percent, almost matching a 9.1 drop in revenues.

Likewise, the Washington Post Co. newspaper division cut its work force 4.5 percent and suffered a 5 percent decrease in revenues. The McClatchy Co., which owns 30 dailies, reduced its work force by 11.5 percent and experienced a 7.4 percent drop in advertising revenues.

The Gannett Co. axed 6.7 percent of the workers in its publishing division as publishing revenues declined 5.7 percent. E.W. Scripps grew its television holdings, but cut 6.7 percent of its newspaper employees.

The New York Times Co. was the winner among the losers, as it were, lopping off only 2 percent of its newsroom staff, in line with a modest 2.9 percent decrease in revenues. Rounding out the depressing Media Daily News article, Lee Enterprises endured a 6.5 percent drop in staff size, while operating revenues were down 3.1 percent.

Google Feeling Down Under

Melbourne Federal Court Building. (Photo credit: Wikipedia)Internet search monster Google was taken to the woodshed yesterday by the Australian Federal Court, which sided with the Australian Competition and Consumer Commission ("ACCC") position that Google deceived consumers by interspersing paid advertisements in search results.

According to a Reuters story, between March 2006, and July 2007, Google users who queried Honda Australia received responses that included paid ads from Honda rival CarSales that purportedly indicated a link between Honda Australia and CarSales. Publishing the paid ads was "misleading and deceptive," said  the Court's three-judge panel, chastising Google.

The Court assessed court costs against Google and ordered the company to institute a compliance program to guard against paid advertisements misleading users. It's unclear what Google's next step will be following the adverse ruling by the Australian court, which wouldn't happen in the U.S. where 47 U.S.C. sec. 230(c) of the Communications Decency Act of 1996 shields ISPs such as Google from liability for content from other Internet service providers.

Washington Law Targets Adult Classified Ad Purveyors

LAS VEGAS, NV - AUGUST 30: Washington Gov. Christine Gregoire speaks during the National Clean Energy Summit 4.0 at the Aria Resort & Casino at CityCenter August 30, 2011 in Las Vegas, Nevada. Political and economic leaders are attending the summit to discuss a domestic policy agenda to advance alternative energy for the country's future. (Image credit: Getty Images via @daylife)Gov. Christine Gregoire (D.-Wash.) last week signed into law a measure exposing to criminal sanctions classified ad companies that don't use ID to verify the age of people in online or print adult ads.

As reported by the Associated Press, Village Voice Media-owned Backpage.com, which accepts classified ads for a variety of adult services, is braced to challenge the new law's constitutionality. The law accepts as an affirmative defense good-faith efforts by the classified ad company to verify the age of the advertised individual in a sex escort or adult-related ad.

Backpage.com is expected to claim immunity based on the provision of the Communications Decency Act of 1996, 47 U.S.C. sec. 230(c)(1) that 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."

No Rule-Changing Mid-game: Judge Says Unpaid HuffPo Writers Will Stay That Way

Jonathan Tasini . (Photo credit: Wikipedia)United States District Court for the Southern District of New York Judge John Koeltl ruled last Friday  in Jonathan Tasini v. America Online, Inc. (Case No. 1:11-cv-02472-JGK) that just because The Huffington Post hit the mother lode when Internet Service Provider AOL acquired the news aggregator for $315 million (see "TUOL" post 2/7/11), uncompensated HuffPo writers were not entitled to payment after the fact.

Authors Molly Secours and Jonathan Tasini were among writers whose work appeared on the Web site of The Huffington Post, which was founded in 2005. As reported by the New York Law Journal and The Wall St. Journal Law Blog, the plaintiffs sued for upward of $105 million, alleging they were deceived by Arianna Huffington into writing for the site gratis in exchange for the exposure that appearing on the popular site purportedly would generate.

In granting the defendant's motion to dismiss, Judge Koeltl said the plaintiffs, many of whom are professional journalists, knew they weren't getting paid for having their work published on the HuffPo site.  "No one forced the plaintiffs to give their work to The Huffington Post for publication," Judge Koeltl wrote, "and the plaintiffs candidly admit that they did not expect compensation. The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid; repeatedly agreed to the same bargain and went into the arrangement with eyes wide open."

The plaintiffs advanced both an implied-in-law contract argument to prevent unjust enrichment to AOL, and alleged the defendant's purported deceptive conduct violated New York General Business Law sec. 349.  The case brought by the unpaid contributors was dismissed with prejudice by the Court.

Actress Model Sues Distiller Over Controversial 'Rape' Ad

(Photo credit: Angelo)In Alicyn Packard v. Moet Hennessy USA, Inc. (Case No. BC481858) filed in Los Angeles County Superior Court last week, an actress/model sued the maker of Belvedere Vodka for negligent infliction of emotional distress and misappropriation of  likeness [Cal. Civ. Code sec. 3344].

As reported by THR, Esq., Courthouse News Service and elsewhere, Packard, best-known for her voice work in the animated The Mr. Men's Show, alleges an image of her and actor Chris Strickland, taken from an Awkward Moments comedy short, was used without her (or his) permission in an online ad on March 23. The image depicts a frightened Packard being grabbed from behind by a smiling Strickland and is accompanied by advertising copy that reads "Unlike some people, Belvedere always goes down smoothly."

According to the 10-page complaint, the plaintiff alleges the ad, which has since been pulled, sparked a negative online response for what she claims was its double-entendre message suggesting nonconsensual sexual conduct. Belvedere's president apologized on the company's Web site and indicated the vodka company had contributed to the Rape, Abuse and Incest National Network.

No Anti-SLAPP Shield for CNN in News Captioning Lawsuit

Seal of the en:United States District Court for the Northern District of California (Photo credit: Wikipedia)A United States District Court for the Northern District of California judge last week denied a motion by CNN to strike a complaint against it by the Greater Los Angeles Agency on Deafness ("GLAD"), ruling the cable news network's reliance on California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute [Cal. Civ. Proc. Code sec. 425.16] was improper.

In her 19-page decision in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. (Case No. 3:11-cv-03458], U.S. Magistrate Judge Laurel Beeler rejected CNN's attempted anti-SLAPP defense. The statute affords a party the right to strike a complaint against it based on "an act in furtherance of [the party's] right of petition or free speech under the United States or California Constitution in connection with a public issue."

GLAD sued CNN on behalf of 100,000 deaf or hearing-impaired Californians for failing to provide captioning for online video content. Like CNN, no other major news network captions online videos.

The defendant argued its choice not to caption online videos constituted editorial discretion protected by the First Amendment and the anti-SLAPP legislation. Judge Beeler, however, said the plaintiff's action was grounded in discrimination and not based on CNN's protected speech or petition activity.

Tip of the hat to the Reporters Committee for Freedom of the Press Website (www.rcfp.org) for its coverage of the case.