Attorney Argues His Blog Post About Judge Was Protected Speech
The Daily Business Review is reporting on a blog post case where in exchange for a public reprimand, a Florida criminal defense attorney admitted to violating a Florida Bar rule forbidding attorneys from impugning the qualifications of a judge and making statements known to be false or in reckless disregard to the truth. The case centers on a JAABlog post where the attorney called a controversial Broward judge an "evil, unfair witch" and "seemingly mentally ill".
The deal with the Florida Bar was called into question last month by the Florida Supreme Court. The Court has now directed the parties to file briefs by Monday on whether the attorney's comments are protected speech under the First Amendment. For now, read Respondent Sean William Conway's Show Cause Order Response (pdf) in Florida Bar v. Conway (No. SC08-326). [JH]
Court Orders Newspaper To Disclosure Identity of Anonymous Blogger
In Ottinger v. The Journal News, ___Misc. 3d ___ (July 8, 2008) Westchester County (NY) Court Judge Rory J. Bellantoni reasoned: "There is no question that the First Amendment protects the right of a person to speak anonymously. That protection, however, is no greater than the right of a person to speak when their identity is known. . ." and a court "must balance the defendant's First Amendment right of anonymous free speech against the strength" of the plaintiff's case.
Details with additional links on Adjunct Law Prof Blog. [JH]
Free Speech and the Blogosphere
Check out Bloggingheads' podcast of Cass Sunstein and Eugene Volokh discussing free speech and the blogosphere. Hat tip to Daniel Solove, Concurring Opinions.
Legal Blog Watch reports that a U.S. lawyer was arrested in Singapore recently for offensive comments made on a blog and in an email about a judge in a pending case. Hat tip to Mitchell Rubinstein, Adjunct Law Prof Blog. [JH]
Canadian Law Students File Privacy Complaint Against Facebook
The law students at the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic analyzed Facebook’s policies and practices in a course last winter, identifying specific practices that may violate the Canadian Personal Information Protection and Electronic Documents Act. They have now filed a privacy complaint (pdf) against Facebook with Canada’s federal privacy commissioner.
Hat tip to Christine Corcos (LSU), Media Law Prof Blog. [JH]
Second Circuit Rules in High School Student Blog Case
On Adjunct Law Prof Blog, Mitchell Rubinstein writes "Doninger v. Niehoff, ___F.3d___ (2d Cir. May 29, 2008), is a major student First Amendment free speech case. The facts are simple and straight forward. A disagreement arose concerning the "battle of the bands" concert. A high school student posted what was described as a "vulgar and misleading" message from her home on a publicly accessible web blog where among other things, she referred to the central administration as 'douchebages.' In turn, the school disqualified her from running for Senior Class Secretary and from speaking at graduation. The administration concluded that the student's conduct 'failed to display the civility and good citizenship expected of class officers.'" Click over to Adjunct Law Prof Blog for Rubinstein's analysis of the ruling. [JH]
12 Important U.S. Laws Every Blogger Needs to Know
Check out the brief overview at Aviva Directory. [JH]
2d Circuit Hears Appeal Of Student Disciplined for Using Vulgar Slang in Blog Post
What! A Connecticut high school student used vulgar slang to describe her school's cancellation of an event in a blog post that was sent from her personal computer while at home and the school barred her from serving on the student council. Adjunct Law Prof Blog has the story and legal analysis. [JH]
Legal Consequences of Co-Blogging
Interesting article from InformIT: "The decision to blog collaboratively can have significant legal consequences for the co-bloggers. In part 1 of a two-part series, Eric Goldman examines how current legal doctrines relevant to co-blogging can lead to unexpected (and possibly unwanted) results." See also: Legal Consequences of Co-Blogging, Part 2 and our earlier post on Goldman's Co-Blogging Law paper. [RJ]
Blogs Cited as Reason for Attorney's Change-of-Venue Request
The National Law Journal's Peter Page is reporting that a "Tennessee defense attorney is arguing for a change of venue in a racially charged double murder by citing postings on Internet blogs along with newspaper and television reporting." We may see more arguments like this one but I doubt they will be any more persuasive than the usual arguments citing newspaper and television coverage.
Hat tip to Adjunct Law Prof Blog. [JH]
Defamation Suit Against Anonymous Blogger Dismissed
Adjunct Law Prof Blog editor Mitchell H. Rubinstein has the story. [JH]
Senate Judiciary Committee Backs "Reporter's Privilege" for Bloggers
"Anyone regularly engaged in "journalism," which would seem to include some bloggers, wouldn't generally be forced to divulge confidential sources in federal cases under a bill approved by a U.S. Senate committee.
By a 15-2 vote, the U.S. Senate Judiciary Committee backed an amended version of the so-called Free Flow of Information Act. Sens. Sam Brownback (R-Kansas) and Jon Kyl (R-Ariz.) cast the "no" votes.
Some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia. This bill would extend that protection to federal cases, shielding anyone engaged in the practice of "journalism"--with a number of exceptions, naturally--from being forced to give up confidential information or provide testimony.
The term "journalism" clearly would sweep up at least some bloggers because the bill defines it thusly: "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." [RJ]
Law Of The Blog By a Layperson for Laypersons
Law Of The Blog: A Blogger's Guide to Copyright, Defamation, Trademark and Other Legal Issues is a 72 page $9.95 self-published eBook written by Nicholas Carroll. Carroll writes that he is not a lawyer, stating "my legal experience comes through business (publishing, real estate, manufacturing, services, etc.), writing contracts, and occasional litigation." About his book he says:
If you're crazed about fine detail, you probably don't, because this is written for the lay reader, and I am not about to slam them with Latin. If you're one of the many lawyers who hates reading statute and case law, then think of Law of The Blog as a painless overview of the legal landscape of blogging and general online law. The final manuscript was sliced and diced – but never skewered – by lawyers in libel, personal injury, child rights, criminal, intellectual property, etc. Despite that there is no reliance, of course. (Or equitable estoppel.)
FEC Resolved Two Matters Involving Internet Activity; Applies Media Exemption to Political Blogs
The Federal Election Commission announced that it has unanimously resolved two complaints alleging that Internet blog activity is subject to Commission regulation, finding that the activity is exempt from regulation under the media or volunteer exemption.
In Matter Under Review (MUR) 5928, the Commission determined that Kos Media, L.L.C., which operates the website DailyKos, did not violate the Federal Election Campaign Act. The Commission rejected allegations that the site should be regulated as a political committee because it charges a fee to place advertising on its website and it provides “a gift of free advertising and candidate media services” by posting blog entries that support candidates. The Commission determined that the website falls squarely within the media exemption and is therefore not subject to federal regulation under the Act.
Since 1974, media activity has been explicitly exempted from federal campaign finance regulation. In March 2006, the Commission made clear that this exemption extends to online media publications and that “costs incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station. . . , Web site, newspaper, magazine, or other periodical publication, including any Internet or electronic publication,” are not a contribution or expenditure unless the facility is owned by a political party, committee, or candidate. With respect to MUR 5928, the FEC found that Kos Media meets the definition of a media entity and that the activity described in the complaint falls within the media exemption. Thus, activity on the DailyKos website does not constitute a contribution or expenditure that would trigger political committee status. The Commission therefore found no reason to believe Kos Media, DailyKos.com, or Markos Moulitsas Zuniga violated federal campaign finance law.
In MUR 5853, the Commission rejected allegations that Michael L. Grace made unreported expenditures when he leased space on a computer server to create a “blog” which advocated the defeat of Representative Mary Bono in the November 2006 election. The Commission also rejected allegations that Grace coordinated these expenditures with Bono’s opponent in the race, David Roth, and found that no in-kind contributions to Roth’s campaign resulted from Grace’s blogging activity. The Commission also found that the respondent did not fraudulently misrepresent himself in violation of 2U.S.C. § 441h.
The Act exempts from regulation volunteer activity by individuals. In the FEC’s Internet regulations, the Commission clarified that an individual’s use, without compensation, of equipment and personal services for blogging, creating, or hosting a website for the purpose of influencing a Federal election are not expenditures subject to the restrictions of campaign finance law. Even if there were some costs or value associated with Mr. Grace’s blog, these costs are exempt from Commission regulations. The FEC therefore found no reason to believe Mr. Grace or the Roth campaign violated federal campaign finance law."
Additional information regarding MURs can be found on the FEC website at https://www.fec.gov/em/mur.shtml. [RJ]
Pedophile Blogger Tiptoes Around Law
CNN is reporting on the activities of Jack McClellan who was arrested recently for allegedly violating a temporary restraining order requiring him to stay at least 30 feet from any child in California. McClellan openly talked about his attraction to little girls on his now off-line blog where he also posted pictures of children he had photographed in public places. "There is no law against someone making you feel uncomfortable," said Laurie Levenson, a former federal prosecutor and a Loyola Law School professor. "There's a line to cross and I don't think he has yet. He's tiptoeing around the law." [JH]
Malpractice Insurance and Law Blogs
Can recent actions by a major legal malpractice insurer have a chilling effect on your law blogs content? Check out what Karen R. Schneiderman, Research and Instructional Services Librarian, Drexel Law Library, and Contributing Editor of Law Librarian Blog has to say. [JH]
Santa Clara law prof Eric Goldman exams co-blogging law in a work deposited in SSRN. He writes
Bloggers often work collaboratively with other bloggers, a phenomenon I call "co-blogging." The decision to co-blog may seem casual, but it can have significant and unexpected legal consequences for the co-bloggers. This Essay looks at some of these consequences under partnership law, employment law and copyright law and explains how each of these legal doctrines can lead to counterintuitive results. The Essay then discusses some recommendations to mitigate the harshness of these results.
Podcasting Legal Guide: Rules for the Revolution
Collette Vogele and Mia Garlick's Podcasting Legal Guide: Rules for the Revolution deals with the legal implications of podcasting and vlogging (video-blogging). Building on a blogging resource guide recently published by EFF, this paper focuses on the issues specifically faced by individuals and entities publishing digital content on the web through podcast and video technology. The end result will be a practical guide to issue spotting and minimizing legal risks for publishing content through these methods.
China backing off mandatory blogger identity registration
The Xinhua news agency is reporting that the Chinese government looks set to back down from its long-held intention to impose strict real-name registration for the country's 20 million bloggers after outcries from the industry. In a draft self-discipline code for blog services published by the Internet Society of China (ISC) on Tuesday, real-name registration is only to be "encouraged" instead of being made compulsory.
What Are the Rules When Bloggers Use Video Excerpts and Photographs Without Permission?
FindLaw columnistJulie Hilden discusses two high-profile recent disputes concerning the "fair use" exception to copyright law. In the first, music company UMG challenged pundit and blogger Michelle Malkin's unauthorized use of excerpts from videos by and of its rap-music artist, Akon, in a podcast critical of Akon's behavior. Ultimately, UMG withdrew its request that YouTube, pursuant to the Digital Millennium Copyright Act (DMCA), de-post the Malkin podcast. In the second, photo agency X17 challenged blogger Perez Hilton's unauthorized use of its photos. X17 has sued; Hilton defends his use of the photos -- which he marks up with comments and drawings in white pen -- as satire, but Hilden explains why this defense is unlikely to persuade a court.
Hat tip to Mitchell H. Rubinstein, Adjunct Law Prof Blog. [JH]
Must Reading for Bloggers: Gant's We're All Journalists Now
We're All Journalists Now
The Transformation of the Press and Reshaping of the Law in the Internet Age
By Scott Gant
Free Press, June 2007
Hardcover, 256 pages
List Price: $26.00
Description: As the internet continues to reshape almost all corners of our world, no institution has been more profoundly altered than the practice of journalism and distribution of information. In this provocative new book, Scott Gant, a distinguished Washington attorney and constitutional law scholar, argues that we as a society need to rethink our notions of what journalism is, who is a journalist and exactly what the founding fathers intended when they referred to "the freedom of the press."
Are bloggers journalists, even if they receive no income? Even if they are unedited and sometimes irresponsible? Many traditional news organizations would say no. But Gant contends otherwise and suggests we think of these sometimes unruly online purveyors of information and opinion as heirs to those early pamphleteers who helped shape our fledgling democracy. He gives us a persuasive and engaging argument for affording bloggers and everyone else who disseminates information and opinion in the U.S. the same rights and privileges that traditional journalists enjoy.
The rise of the Internet and blogosphere has blurred the once distinct role of the media in our society. It wasn't long ago that the line between journalists and the rest of us seemed relatively clear: Those who worked for news organizations were journalists and everyone else was not. Those days are gone. On the Internet, the line has totally disappeared. It's harder than ever to answer the question, "Who is a journalist?" Yet it is a question asked routinely in American courtrooms and legislatures because there are many circumstances where those deemed "journalists" are afforded rights and privileges not available to the rest of us. The question will become increasingly important as the transformation of journalism continues, and bloggers and other "citizen journalists" battle for equal standing with professional journalists. Advancing arguments that are sure to stir controversy, Scott Gant leads the debate with a serious yet accessible discussion about whether, where, and how the government can decide who is a journalist. Challenging the mainstream media, Gant puts forth specific arguments about how to change existing laws and makes elegant suggestions for new laws that will properly account for the undeniable reality that We're All Journalists Now. For all of us who care about the ways in which the digital revolution is sweeping through our culture, this is a work of opinion that will be seen as required reading.
Editor's Note: I can't wait to get a copy! [JH]