Eric P. Robinson's blog

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 »

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 »

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 »

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 »

The Blog of the Legal Times reports that the Superior Court of the District of Columbia – the local trial court for the nation's capital – has issued a new administrative order regarding use of electronic devices in the courthouse. And like other courts, the new rules impose a class system of "haves" and "have nots" – favored types of the people can have and use the devices, while everyone else can not. The rules also contain an archaic view of electronic devices that effectively means that even when the rules allow them to be used, they cannot be used for any modern, web-based functions.   read more »

After a slow start, the latest experiment of video cameras in federal courtrooms, announced last October, appears to be finally starting to roll.

The first recording of a proceeding recorded under the experiment, a preliminary injunction hearing in Gauck v. Karamian, Civil No. 11-2346 (W.D. Tenn. filed May 4, 2011), was posted in July. Since then, four of the fourteen federal trial courts authorized  to record civil proceedings under the experiment have posted recordings of six cases online.

Besides the Gauck case – in which a television news reporter sued a racy web site for misappropriation over its alleged use of her name, and eventually settled after the preliminary injunction was denied – the recorded proceedings include the following:   read more »

Basketball Wives: Los Angeles lives! And one of the reasons is an athlete's Twitter habit.

Orlando Magic point guard Gilbert Arenas sued in California federal court (complaint) to stop the broadcast of the primiere episode of the VH1 reality show, which the channel touts as featuring "a group of dynamic women with relationships to some of the biggest basketball players in the game."

Two of the women featured on the show are Laura Govan, who broke up with Arenas after having four children with him, and her sister Gloria Govan, who is engaged to Los Angeles Laker Matt Barnes. Gloria Govan was previously featured on another show, Basketball Wives, based in Miami, of which the L.A. show is a spinoff.

Arenas's lawsuit to stop the new show claimed that it would improperly use his name and likeness to imply that he was involved in the program. In order to receive the preliminary injunction he was seeking, Arenas had to show (among other elements) that he was likely to win on his claims, and that he was likely to suffer irreparable harm if the show proceeeded.   read more »

California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to  research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions. 

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions already admonish jurors not to conduct electronic research or communications. See Jud. Council of Cal., Civ. Jury Instrs. [CACI] Nos. 100 and 5000 (2011), available here; and Jud. Council of Cal., Crim. Jury Instr. [CALCRIM], Nos. 101 and 201 (2011), available here.

The new law also charges court officers to bar jurors from communicating outside the jury room, by electronic or other means, during deliberations.

Under the new statute, "willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research" can be punished as contempt of court, a misdemeanor.   read more »

It lacks the drama of the various flavors of "Law and Order" or the intrigue of a John Grisham novel. But the video of a July 21 hearing on the plaintiff's request for a preliminary injunction in Gauck v. Karamian, Civil No. 11--2346 (W.D. Tenn. filed May 4, 2011) is nevertheless an important milestone.

Aside from the issues at stake in the hearing itself -- which are of interest to citizen journalists and bloggers -- the video is the first recording of a federal court proceeding in the federal court's new pilot program of cameras in selected courtrooms.

The program, which was approved by the U.S. Judicial Conference last year and allows court-operated cameras to cover civil proceedings in 14 federal trial courts, is just the latest chapter in the long saga on the question of camera coverage of federal trial courts.   read more »

Eighteen months after the Federal Trade Commission revised its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," including revision of rules regarding product and service endorsements by bloggers and other social media contributors, the agency has announced that it is planning to revise its general guidelines for online advertising, which it released in 2000. Currently the Commission is soliciting comments regarding the revision.   read more »

Social media are abuzz about English Premier League footballer ("soccer player" to us Yanks) Ryan Giggs, who has obtained an order from a British court requiring Twitter to reveal the identity of various tweeters who identified him as having had an affair with model and Big Brother contestant Imogen Thomas.

The court's order against Twitter was based on a prior order issued by the court last month, which barred The Sun newspaper from revealing Giggs' name. At the initiative of lawyers for plaintiffs in defamation cases, British courts began issuing such "super injunctions" -- which bar not just disclosure of the information subject to the order, but also ban disclosure of the order itself -- in 2008, with the number of such orders increasing ever since.  (The Guardian newspaper detailed some of the early super injunctions, while the magazine Private Eye lists several recent examples.) The growth of such orders has become a political issue in Great Britain, and there is talk of eliminating them.   read more »

The regulation of commercial speech on social media sites continues to increase. In late March, a federal court in California held that Facebook postings fit within the definition of "commercial electronic mail message" under the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act;" 15 U.S.C. § 7701, et seq.). Facebook, Inc. v. MAXBOUNTY, Inc., Case No. CV-10-4712-JF (N.D. Cal. March 28, 2011).

The court's ruling led it to deny dismissal of a lawsuit brought by Facebook against online marketer MAXBOUNTY.  Facebook alleged that MAXBOUNTY posted misleading commercial statements to Facebook users, in violation of the CAN-SPAM Act and other legal principles. Facebook also alleged that MAXBOUNTY's ads fraudulently appeared to be coming from Facebook itself, and "tainted the Facebook experience."

The court has not yet decided on the merits of these claims.  But MAXBOUNTY sought to have the suit dismissed, in part because the company said that the CAN-SPAM Act applied only to e-mail, not to messages sent within Facebook.

The CAN-SPAM Act was passed in 2003, and generally requires accurate sender information for commercial e-mail messages; that senders allow and honor opt-out requests; and provide a physical, real-world address where the advertiser can be located.  In its suit against MAXBOUNTY, Facebook alleged that the company had violated each of these provisions.   read more »

The U.S. Judicial Conference, which helps set policy for federal circuit (appeals) and district (trial) courts, has issued a memo, first reported by Wired's "Threat Level" blog, that is meant to help individual courts set policies on when and how smartphones and similar devices can be brought into and used in courthouses and in courtrooms.

The memo outlines some of the issues that arise with smartphones and other electronic devices in courthouses, and informally surveys various federal courts' existing policies regarding smartphones.

The survey found that 41 of the 94 district courts allow anyone to bring the devices into their courthouses, often with some restrictions on their use.  Of these 41 courts, nearly a third prohibit the public from bringing the devices in the courtroom, while the remaining two-thirds require that devices be kept off or in silent mode without the judge's permission.

Forty-eight district courts ban devices, except for those possessed by judges, court personnel, and probation and pretrial officers, or with the express permission of a judge. Other courts ban only certain devices, such as devices that include cameras. In both types of situations, courts either check and store the devices or else simply bar individuals from entering with such a device.

Five district courts, according to the survey, had no stated policy on the issue on their websites.   read more »

The Federal Trade Commission has announced the first monetary penalty under its "Guides Concerning the Use of Endorsements and Testimonials in Advertising": a $250,000 settlement with a company that sells guitar lessons on DVDs.

The FTC guides require disclosure of compensated endorsements in media where such compensation is not obvious (in the view of the FTC), such as on blogs and other social media.

In response to criticism, shortly after issuing the rules the Commission clarified that "If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been."

In the months since, the FTC has reached non-monetary settlements with clothing retailer Loft and public relations firm Reverb Communications.  Both companies agreed to stop their practices that attracted the FTC's attention, and not to repeat it.

The latest settlement, with Legacy Learning Systems, Inc. and owner Lester Gabriel Smith, is the first to include a monetary payment.  (Since it's a settlement, the payment is technically not a fine.) The company will also be required to submit monthly reports to the agency ensuring compliance by its top 50 revenue-generating affiliate marketers, and a random sampling of another 50 of their affiliate marketers.   read more »

The Office of Fair Trading, the British equivalent of the United States Federal Trade Commission, has determined that the hiring of bloggers and other social media contributors to promote particular products without adequate disclosure of the relationship may violate U.K. consumer protection laws. Handpicked Media Ltd (Handpicked Media), Case Ref. CRE-E-25932 (OFT Dec. 13, 2010).  This is the first time these laws have been applied online.

This is similar to the stance that the FTC has taken in a 2009 update to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which includes disclosure requirements for similar arrangements.  I and others have written extensively about the guides and their application.

"The OFT was concerned that individuals engaged by Handpicked Media were publishing online content which promoted the activities of Handpicked Media's clients, without sufficient disclosures in place to make it clearly identifiable to consumers that the promotions had been paid for. This included publication on website blogs and microblogs (forexample Twitter)," the British agency wrote in its ruling.  "As a result of its investigation, the OFT formed the view that Handpicked Media may be operating in breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)."    read more »

An exercise we did Friday at Univeristy of Nevada, Reno's High School Journalism Day raised an interesting legal question: can a public university restrict its students' use of social networking sites such as Facebook and Twitter?

It turns out that a number of public and private universities -- including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina -- have followed the lead of the National Football League, which imposes limits on players' use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season.  Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school's coaching staff.   read more »

The Federal Trade Commission has reached a second settlement with a marketer over apparent violations of the Commission's rules requiring disclosure of compensated endorsements, particularly on blogs and social media, as well as other contexts in which the compensation (which may include free samples or discounts) is not "reasonably expected by the audience."

Back in April, the Commission sent a letter to Ann Taylor LOFT raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns. The Commision declined to undertake any enforcement action in that case because it was the firm's first apparent violation, only a very small number of bloggers posted content as a result of the promotion, and the company adopted a written policy in February 2010 stating that it would not issue any gifts to bloggers without first telling the bloggers that the gift must be disclosed.

Now, the Commission has reached a settlement with Reverb Communications, a public relations firm, which the FTC alleged had employees and interns post positive reviews on Apple's iTunes store for games produced by Reverb clients.  According to the FTC complaint,  read more »

The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements.

As I've explained in detail in prior posts, the Commission revised the guidelines last year for the first time since 1980, with a particular emphasis on endorsements by bloggers and other online citizen journalists who do not disclose that the products or services they review were provided to them for free or at a discount. Despite a number of questionable incidents since the FTC issued its revised guidelines, it has taken only one public action under the revised rules: sending a letter in April to Ann Taylor Loft raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns.

The FTC's new factsheet states that "since the FTC issued the revised Guides, advertisers, ad agencies, bloggers, and others have sent questions to endorsements@ftc.gov," and offers what it says are "answers to some of the most frequently asked questions." But the factsheet also seems to be responding to criticims of the rules, by myself and others.   read more »

An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).

According to prosecutors, William White's overthrow.com site (archived here) featured racist and anti-Semitic articles, and promoted the American National Socialist Workers Party, which billed itself as "America's only organization advocating for the interests of the white working class."

Among the topics discussed on overthrow.com was the trial of leader of the white supremacist organization World Church of the Creator Matt Hale, who was convicted in 2005 and received a 40-year prison sentence for soliciting the murder of a federal judge in 2003.   read more »

CMLP contributor Eric P. Robinson and Wichita (Kansas) Eagle Staff Writer for Interactive News Ron Sylvester discuss Tweeting, blogging and use of other social media to report on courtroom proceedings in the latest Lawyer2Lawyer podcast. 

Eric has written numerous posts on this issue for this blog, including here, here, here, here, here, here,here, and here. 

Title: Tweeting and Blogging from the Courtroom  read more »