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The Federal Judicial Center has released a study which concludes that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom," and implies that juror use of the Internet and social media during trial is not a growing problem.

Alison Frankel of Thompson-Reuters is skeptical about this conclusion, and I agree with her.

The FJC report was based on a survey e-mailed to all active and senior federal judges in October 2011. Of the 952 judges who received the survey, 508 responded – a response rate of 53 percent – from all 94 federal districts.

Of the 508 judges who responded, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. Most (23 judges) had seen this during trial, rather than deliberations (12 judges), and judges reported seeing such activity more often in criminal cases (22 judges) than in civil cases (five judges). Three judges had experience with jurors using social media during both criminal and civil cases. Only two had experienced this in more than two cases of either type.   read more »

On February 7, 2012, the Joint Committee on the Judiciary of the Massachusetts Legislature will hold a hearing on Massachusetts Senate Bill No. 785, entitled "An Act relative to the protection of child witnesses." The bill would, among other proscriptions, make it a crime punishable by up to one year's imprisonment plus a fine for certain people to:

(i) disclose or release documents, which divulge the name or any other information, concerning a child or the information in them that concerns a child except to persons who, by reason of their participation in the proceeding, have reason to know such information; or (ii) disclose or release a picture of the child, except to persons who, by reason of their participation in the proceeding, have reason to possess such a picture.

A "child," under the bill, is "a person who is under the age of 18, who is a witness to a crime committed against another person." The categories of people affected by the bill are (1) all employees of the government connected with the case, including outside consultants hired by the government, (2) employees of the court, (3) the defendant, the defendant's employees, and the defendant's counsel, (4) jury members, (5) attendees at the trial, and (6) "members of the media, who come across such documents or information regardless of the source of such documents or information."   read more »

Last Thursday, Twitter announced that it would start censoring tweets by denying access to specific tweets in countries where those tweets would be illegal.  Naturally, this has caused a lot of concern online. 

Some see the announcement as a first step towards expanding into China in Twitter by complying with Beijing's compulsory, rigorous state censorship.  (Twitter's general counsel has denied this, saying the announcement “has nothing to do with China.”)

Others fear that it is somehow tied to the recent $300 million investment in Twitter by Saudi Prince Al-Waleed, and that he was flexing his capital muscle to quiet Twitter, which helped facilitate the Arab Spring and continues to threaten the stability of the region's authoritarian governments. (But take this theory with a grain of salt: Waleed owns less than four percent of Twitter, hardly enough to wield the kind of influence needed to implement censorship.)   read more »

On January 18, 2012, the Citizen Media Law Project (under its new name, the Digital Media Law Project -- new website coming soon) filed an amicus brief in the Massachusetts Appeals Court in Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533. 

The CMLP  submitted its friend of the court brief to urge the Appeals Court to uphold several fundamental legal principles, including protecting critical speech online and preventing the misuse of trademark law in a distinctly non-trademark context to impede the free flow of information.

More information about the case and the amicus brief is available on the Berkman Center website.

Links:

Amicus Brief

Press Release

Case Entry in CMLP Database

A few weeks ago, I wrote that bloggers should not be too concerned about a decision by a federal judge in Oregon that blogger Crystal Cox is not protected by Oregon's reporters' shield law in a defamation suit.

But a new decision in Illinois reaching the same conclusion about another blogger is more problematic.

The Oregon ruling – which led to a $2.5 million verdict against Cox, that she is seeking to have vacated – concluded that a blogger is not “media.” Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H, 2011 WL 2745849, 2011 U.S. Dist. LEXIS 137548 (D. Or. Nov. 30, 2011).   read more »

Say you're in law school, and your professor gives you the following hypothetical:

It's 1968. A man named Paul Robert Cohen is in the Los Angeles County Courthouse, in a public corridor. On Cohen is a jacket, and on the jacket are the words "Fuck the Draft." He takes the jacket off as he walks into the courtroom, but puts it back on when he's in the corridor again. When he does so the courthouse police arrest him and charge him with disturbing the peace. Cohen challenges the arrest as a violation of his First Amendment rights.

"How should the court rule?" your professor asks.   read more »

The day of protest against the now (hopefully) infamous "Stop Online Piracy Act" (SOPA) and "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (PROTECT IP Act, or PIPA) has ended.  Baffled students can once again access Wikipedia to do their homework; the Google doodle is no longer blacked out; and Jon Stewart can return to lampooning Republican presidential candidates rather than obtuse copyright bills.

Mission accomplished, right?

Actually, no.  It's only just begun.

To be sure, the protest was incredibly successful at drawing attention to the threat that SOPA and PIPA pose to online speech. Google News tracked nearly ten thousand stories on the bills – a number far, far above average for a single news event. Wikipedia's users were shocked into awareness of SOPA and PIPA, thanks to the site's 24-hour blackout. And the tallies on ProPublica's snazzy SOPA Opera page, which tracks Congressional support and opposition for the bills, literally reversed overnight, as members of Congress stampeded from the pro-SOPA/PIPA camp to the anti- side.   read more »

In light of today's internet blackouts, we have received numerous requests for information about the Stop Online Piracy Act ("SOPA") and the Protect IP Act ("PIPA"), as well as the reasons for today's protest of these two bills.  In response to the demand for information, the Berkman Center for Internet & Society, the center at Harvard University that hosts the Citizen Media Law Project, has collected links to useful summaries, statements and commentary about SOPA and PIPA here.  We invite you to visit Berkman's site and learn more about SOPA, PIPA and today's protest.

If you are wondering why the CMLP's own page did not go dark today, we made an institutional decision that we could best serve the public by remaining an accessible resource for information on media law and threats to online speech during the protest.

Looking to make their brand “a little more memorable,” the News Licensing Group is now NewsRight – and is billing itself as an “easy rights clearinghouse for the best news reporting and original journalism on the Web.”

Earlier this month, the group announced that 29 major news and information companies have signed on as initial investors in the startup, a new independent digital-rights and content licensing venture led by former ABC News President David Westin.

(The initial investors in NewsRight are: Advance Publications, The Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications, Landmark Media Enterprises, The McClatchy Company, Media General, MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Company, Ogden Newspapers, Pioneer Newspapers, Schurz Communications, The E.W. Scripps Company, Stephens Media, Swift Communications, Times Publishing Co. and The Washington Post Company.)   read more »

First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.   read more »

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v. Cox case.  That's the case where an Oregon federal judge rejected blogger Crystal Cox's contention that she was a member of the media, thus clearing the way for a $2.5 million verdict against her for defaming the plaintiffs. 

The story resulted in much hooting and hollering online, particularly from bloggers outraged that the judge ruled that they were not protected under Oregon's shield law.  Though as CMLP guest blogger Eric Robinson pointed out, the shield law issue was a sideshow to a much bigger problem in the ruling: that Judge Marco A. Hernandez had ruled that the Supreme Court's decision in Gertz v. Robert Welch, Inc. does not apply to Cox because she is not "media." 

Gertz stands for the proposition that plaintiffs in a defamation case cannot recover any damages without proof that the defendant was at least negligent, and may not recovered presumed damages without proof of the defendant's "actual malice." In Cox, the judge ruled that Gertz only applies to media entities, and – using a rather arbitrary list of what defines the media – determined that Cox was not a member of the protected class.  This in spite of several cases (of which the judge took no notice and Cox, acting pro se, did not cite) that state just the opposite.   read more »

By now, it is a given that many journalists have a regular presence on social networking services. The value of social media for gathering information, developing the journalist’s public persona, and promoting the journalist’s work is well-recognized. And although many news outlets have established guidelines and policies regarding behavior on social media, most outlets still permit journalists substantial discretion as to the tone and content of their tweets and posts.

Special concerns arise, however, when you use social media to promote articles that have been vetted by your attorneys. To understand these concerns, it helps to understand more about what media lawyers are looking for when we perform prepublication review of an article.

Although there are numerous issues that we might consider, media lawyers are primarily concerned with any statements in an article that might adversely affect the reputation of identifiable people or companies. Of course, a great deal of sound journalism can be damaging to reputation, including stories about political corruption, unfair business practices, or criminal activity. The lawyer’s concern is normally not whether such stories are newsworthy (that is up to you and your editor), but whether there is adequate factual support for the statements in your article. Thus, on the most basic level, our review involves identifying the individuals and companies at issue in an article and the factual support for statements about those people.   read more »

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven. 

When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn (who is represented by friend of the CMLP Marc Randazza). Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its trolling business.

It's certainly been eventful since then.

After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net.  Among the highlights (as well documented by Steve Green of the Las Vegas Sun):

● In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: righthaven.com itself.  And it's being auctioned right now!  Yes, the domain name of the country's self-described "pre-eminent copyright enforcer" can be yours!  (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.)  But hurry, the bidding closes on Jan. 6, just a few days away!   read more »

As we approach the new year, the staff of the Citizen Media Law Project had the opportunity -- thanks to a kind offer from Student Press Law Center Legal Fellow (as well as CMLP friend and blog contributor) Rob Arcamona -- to take a look back at the biggest issues in media law over the past year in an article for PBS MediaShift.  Jeff and Andy worked with Rob to identify 2011's top ten legal issues in professional and citizen journalism, so go check it out and see if you agree!

We hope you are all having a wonderful holiday season, and will see you again in 2012!

In a dramatic, last-minute effort to win the prize for “Most Obnoxious Law Enforcement Tactic of the Year,” the Los Angeles City Attorney’s Office has announced that many arrested Occupy L.A. protesters will, as an alternative to fines or jail, be given the opportunity to attend “free speech” school to learn what rights they don’t have.

Let’s reflect for a moment on this one, shall we? The City of Los Angeles wants to teach people about the First Amendment. I needed to check that they were actually talking about the First Amendment to the United States Constitution, because they have occasionally seemed to lack familiarity with that document. This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.” Yes, art cops.   read more »

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Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov. Paul LePage believes it’s none of the public’s business. When it comes to his meals, what’s eaten in the governor’s mansion stays in the governor’s mansion — the state’s Freedom of Access Act be damned.

“We have received requests for all grocery receipts from the Blaine House,” LePage wrote earlier this year. “I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

The Arkansas Supreme Court has reversed a murder conviction – and death sentence – in a case where one juror tweeted during trial, while another fell asleep. Both these problems, the court said, constituted juror misconduct requiring reversal and a new trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Dec. 8, 2011).

While the court said that the dozing juror alone required reversed of the conviction and sentence, the court added that the second juror's tweets also required a reversal.

The Supreme Court was particularly concerned about one of the juror's tweets, “Its over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror's Twitter feed – including, the court said, at least one journalist (with the online magazine Ozarks Unbound) – "had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court."

Dimas-Martinez's lawyers also pointed out that the tweeting juror tweeted during trial despite continued admonitions to the jury throughout the trial warning them not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet. (That one said, "Choices to be made. Hearts to be broken. We each define the great line.")   read more »

We are pleased to announce that the Online Media Legal Network, the Citizen Media Law Project's legal referral service, is now two years old!

The OMLN was started in Dec. 2009 as a way to help online journalism ventures and digital media creators find lawyers experienced in the sorts of legal issues media ventures face and to provide legal services on a pro bono or reduced-fee basis. 

Now, two years later, the OMLN has a network of 232 lawyers in 49 states and the District of Columbia who are willing to offer their services to needy citizen journalists and online publishers.  And help they have: as of Dec. 9, the OMLN has over 170 clients and has found counsel for 347 different legal matters, ranging from setting up a business to authoringwebsite terms of use to defending clients against defamation claims. 

We commemorated the event with a talk this week as part of the Berkman Center's Tuesday Luncheon Series, where we discussed the history of the OMLN, how the OMLN works, and what we've learned from it. In-person attendees included attorneys from OMLN member firms Booth Sweet LLP and Hermes, Netburn, O'Connor & Spearing, P.C.; OMLN client and former Berkman fellow Tom Stites; and a host of citizen journalists, Berkman fellows, and other interested folks. Many thanks to all who attended!   read more »

On December 13, 2011, the Supreme Judicial Court of Massachusetts ruled that a judge of the Superior Court followed the wrong standard when denying a request by the Boston Globe for access to the transcript and report of an inquest into the death of Seth Bishop, the brother of Amy Bishop.

In Massachusetts, an inquest is a form of special investigative proceeding initiated by a district attorney or the Attorney General in which a judge analyzes the circumstances and cause of a person's death -- including identification of any person whose "unlawful act or negligence appears to have contributed" to the death. Unlike other judicial proceedings, the judge does not act as a neutral arbiter; rather, the judge takes an active role in investigating the cause of death.

The transcript and report of the inquest constitute a record the process followed and conclusions reached by the judge. However, an inquest is not a prosecution: no criminal charges are brought in the proceeding; no legal defenses are considered; and the court's findings are neither evidence nor a determination of guilt on the part of any individual. Instead, the inquest procedure is used (sparingly) by prosecutors to investigate the cause of death, usually to determine whether criminal proceedings are appropriate.

The results of inquest proceedings are naturally of significant interest to the public because they represent an official evaluation of a deceased person's cause of death. There has been concern, however, that if prosecutors decide to bring charges after an inquest, the release of the results of the inquest before trial might prejudice the right of the accused to a fair trial.   read more »

There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon last week that held that blogger Crystal Cox is not protected by Oregon's reporters shield law, thereby leading to a $2.5 million verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). But most of the buzz and criticism is based on an erroneous reading of the decision.

Details of the libel suit against Cox are here. (Further legal details and documents are available in the CMLP Threat database entry and an earlier CMLP blog post on a different ruling in the same case.) But the characterization of Judge Marco A. Hernandez's decision in most of commentary is incorrect. He did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected.

This requires a bit of explanation, so bear with me:   read more »