Jeffrey P. Hermes's blog

On April 24, 2012, a Texas jury awarded $13.78 million to a married couple in a case based upon an extended campaign of defamation on the website Topix.com - to be specific, more than 1,700 separate statements accusing the plaintiffs of a wide array of criminal activity and, shall we say, unusual sexual practices, among other misconduct. The husband was awarded $5.1 million from one defendant and $1.7 million each from two others. The wife was separately awarded $3.168 million from the first defendant (the less-than-round number reflecting in part the value of the wife's business, which she allegedly lost as a result of the defamation).

A brief review of the 733-page complaint is enough to make one's skin crawl, and if the allegations are to be believed – as clearly the jury did – the size of the verdict becomes more understandable from a gut perspective. That said, the core of a defamation action is injury to reputation; i.e., the impairment of the plaintiffs' good name in the view of their community or a respectable part thereof. The sheer size this verdict begs the question of whether the jury was actually attempting to compensate for reputational injury, or was simply trying to smack the defendants with as large a number as they could rationalize.

Even when not confronted with conduct as disturbing and provocative as that alleged by the plaintiffs in this case, juries face difficult questions when evaluating damage to reputation caused by false statements on social media. For example:   read more »

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)   read more »

As you might have seen from our home page, the Digital Media Law Project [FN] today released our Guide to the Internal Revenue Service Decision-Making Process under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations. The Guide is intended to demystify the standards applied by the IRS in determining whether a journalism-oriented non-profit is entitled to a federal tax exemption.

Many new journalism ventures consider forming as non-profit corporations. This should come as no surprise in the current market, where making a profit in the news business remains a dubious proposition even for mainstream outlets. As of December 2011, the number of clients who had contacted our legal referral service, the Online Media Legal Network, for help forming non-profit organizations was about twice the number looking to form traditional for-profit businesses.   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 »

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 »

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 »

Next Thursday, September 22, 2011, the Citizen Media Law Project at Harvard’s Berkman Center for Internet & Society, together with the Online News Association and the UNC Center for Media Law and Policy will present "Law School for Digital Journalists," a Pre-Conference day for the ONA’s 2011 Conference in Boston.

This intensive day of practical legal training is open to the public without registration for the full ONA conference. We will cover what digital journalists need to know about how the law impacts their profession, both on the editorial and business sides, and including basics of content liability and intellectual property law, business formation and governance issues, and newsgathering law. The day will end with a high-level plenary discussion and reception.  Classes will be taught by leading media lawyers and journalism educators.

Online registration was originally set to close on September 14, 2011, but has been extended through 11:59 p.m. Friday, September 16th – so come join us!

The CMLP's friends at the New England First Amendment Coalition will soon be selecting twenty-five New England journalists for an intensive course on freedom of information law and investigative reporting techniques at the inaugural First Amendment Institute to be held November 13-15, 2011, in Dedham, Massachusetts.

Participants in the three-day program, presented by the New England First Amendment Coalition and Northeastern University’s Initiative for Investigative Reporting, will work with six Pulitzer Prize winners and prominent media law and First Amendment attorneys.  Topics covered will include: harnessing state and federal public records laws to serve investigative reporting; working with documents from the Securities & Exchange Commission; identifying important stories; and handling leaked information.

There is still time to apply for this exciting program.  Applications will be accepted until September 15, 2011 from journalists all career levels with a demonstrated interest in investigative work and right-to-know issues.  Successful applicants will be notified by October 15th. Application documents are available here.

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news -- I urge you to read Justin's posts as well. 

The CMLP is thrilled to report that in the case of Glik v. Cunniffe, which the CMLP has blogged previously and in which the CMLP attempted to file an amicus brief, the U.S. Court of Appeals for the First Circuit has issued a resounding and unanimous opinion in support of the First Amendment right to record the actions of police in public.

For those of you not familiar with Simon Glik's case, Glik was arrested on October 1, 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common.   In return for his efforts to record what he suspected might be police brutality -- in a pattern that is now all too familiar -- Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.

As tends to happen in cases like these, the charges didn't hold up, with the Commonwealth dismissing the aiding escape charge and the Boston Municipal Court dismissing the remaining charges.  But unlike most arrestees, Glik, with the assistance of the ACLU, fought back against this treatment.  He filed an internal affairs complaint with the Boston Police Department, but the BPD neither investigated the complaint nor initiated any disciplinary action.   read more »

The CMLP's friends at the National Freedom of Information Coalition and the Media Law Resource Center have just released the results of a recent survey of citizen interest in government transparency and the willingness of traditional media outlets to fight for access to government information.

For those of us who have been watching the sunshine scene, it will come as no surprise that traditional outlets are devoting fewer resources to accountability reporting, and in particular to litigating access issues.  The results of the new survey, however, illustrate the scope of that troubling trend -- especially when considered in light of a 2009 survey by the NFOIC and MLRC on the same topic.

More surprising, perhaps, are the survey's results with respect to the interest and assertiveness of the public with respect to their rights to open government.  (Hint: it's good news.)   read more »

I am thrilled to welcome Andy Sellars, our new Staff Attorney, to the Citizen Media Law Project, and to welcome him back to the Berkman Center for Internet & Society as an Employee Fellow.   read more »

Next month, I will be attending "Create or Die 2," a three-day Journalism That Matters conference in Greensboro, North Carolina.  Designed as a platform for journalism-oriented entrepreneurs who want to "disrupt and diversify the media   status quo," the conference is a mashup of journalists, entrepreneurs, programmers, bloggers, technologists, educators, developers, designers, social entrepreneurs, community activists and others.  Create or Die 2 is the second act of Journalism That Matters’ successful "Create or Die" diversity-and-journalism sequence that began last summer at Wayne State University in Detroit.   read more »

It is a fundamental principle of the United States legal system that courts should be open to the public.  This principle is widely regarded as more aspirational than factual, because of numerous practical barriers to courtroom access -- not the least of which is that most of us do not have the time or ability to travel to the court to witness proceedings in person.  While the news media report on judicial proceedings, their resources are limited; as a result, coverage is normally focused on specific cases of particular interest.  Moreover, audiovisual recording of judicial activity is sporadic due to a complicated patchwork of largely discretionary rules about allowing cameras in the courtroom.

OpenCourt, an experimental project launched on May 2, 2011, by WBUR, Boston's NPR news station, seeks to change all of that.  With the cooperation of the Massachusetts Supreme Judicial Court (the highest court in the Commonwealth) and the Massachusetts District Court (a department of the Massachusetts Trial Court), the OpenCourt project has started streaming live video and audio of the proceedings in the First Session of Quincy District Court.  OpenCourt also provides WiFi access to journalists and bloggers so that they can report live from the courtroom.    read more »

There has been substantial controversy over the past couple of weeks arising out of revelations that some smartphones, most notably Apple's iPhone and Google's Android devices, have been logging certain location-based information.  Lawsuits have been filed, a state attorney general has started demanding answers, and an inquiry by a U.S. Senate subcommittee has been scheduled.  And then the South Korean police raided Google's Seoul offices.  But is the logging of location data really such a surprise, and is it worthy of all of this concern?   read more »