Sam Bayard's blog

From the Trentonian comes a wild story about the mayor of a New Jersey town pushing through a resolution "demanding the immediate termination of a 'malicious' website called BordentownMayorReallySucks.com and the identity of its creators."  James E. Lynch Jr., Mayor of Bordentown, New Jersey, convinced the City Commission to pass the resolution by a 2-1 vote last night. 

According to the Trentonian article, the resolution calls on BordentownMayorReallySucks.com's hosting service, BlueHost Inc., to "dismantle" the website "on grounds the domain violates New Jersey’s consumer affairs law and possibly other state and federal laws." "It also calls for hiring a special attorney to consider legal action against the creators — two with in-city IP addresses and two outside." 

Remarkably, the Mayor's beef seems to be that the gripe site "creates the impression it's the city mayor's website."  To be fair, the site was originally called "Bordentownmayor.com" before being renamed to make its critical bent more obvious, and it does contain some odd headings like "Bordentown City Phone Directory," which might confuse a moron in a hurry.   

But Mayor Lynch also is clearly ticked off about critical content appearing on the site, claiming that "previous posts were personal attacks on him, his wife and daughter, and a city police officer who suffers from a disability," according to the Trentonian article. More from the Trentonian:   read more »

This morning, the Supreme Court of New Hampshire handed down an important decision holding that a mortgage industry website, The Mortgage Lender Implode-O-Meter, is entitled to protection under the state's reporter's privilege.

The case is Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., which was argued before the New Hampshire Supreme Court last fall. The dispute centers on an article that Impode-O-Meter published in August 2008, which detailed administrative actions taken by the New Hampshire Banking Department against The Mortgage Specialists, a mortgage lender. The article included a link to a financial document that The Mortgage Specialists allegedly submitted to the state banking authorities, which Implode-O-Meter had obtained from an anonymous source. After the mortgage company discovered the disclosure, it sued the website, demanding that the document be removed from the Internet and that the anonymous source be identified.  A Rockingham County Superior Court judge granted these requests.   read more »

Gizmodo announced this afternoon that California police seized computers and servers from the home of its reporter/editor Jason Chen on Friday night. They've posted the search warrant, Gawker C.O.O. Gaby Darbyshire's letter to the police disputing the legality of the seizure, and Chen's first-hand account of what happened. I would like to see the government's response to Darbyshire's letter before weighing in definitively, but it looks like the search warrant was invalid under California Penal Code § 1524(g).

Detective Matthew Broad of the San Mateo Sheriff's Office obtained the warrant as part of the "iPhone 4" investigation. Although Gizmodo returned the next generation iPhone to Apple last week, authorities are mulling criminal charges against the finder of the phone, Gizmodo/Chen, or both. My previous post missed an important detail of California criminal law that makes the question of criminal responsibility very much a live question: § 485 of the California Penal Code. It says that   read more »

Today, CMLP published extensive updates to its legal guide pages on the legal protections for anonymous and pseudonymous speech on the Internet. We overhauled the general page on First Amendment protections to reflect significant changes in the law over the past few years, and updated the state pages to include many new cases on the topic. As a result, we added new state pages for Maryland, Missouri, Montana, New Hampshire, Oregon, and Tennessee, and significantly revised the existing pages for Connecticut, the District of Columbia, Illinois, New Jersey, New York, and Pennsylvania.     read more »

A Dow Jones press release on BusinessWire announces that the financial media giant filed a lawsuit today against Briefing.com, alleging that the subscription-based financial site misappropriated its headlines and articles.  The complaint, filed in U.S. District Court for the Southern District of New York, includes claims for copyright infringement, "hot news" misappropriation, breach of contract, and DMCA violations based on removal of copyright management information. 

I haven't digested the complaint (113 pages including attachments), but the press release gives us a taste of the allegations: "In just one two-week period, Briefing.com copied a substantial portion of at least 100 articles and republished more than 70 headlines within three minutes of the initial publication on Dow Jones Newswires." Hitting all the hot news buzzwords, the press release states that Briefing.com is "free-riding" on Dow Jones' original content, that Briefing.com is in "direct competition" with Dow Jones, and that Briefing.com's actions threaten to undermine Dow Jones' incentive to create news and business information. This quote sums up Dows Jones' position well:    read more »

Unless you've been hiding under a rock for the past few days, you've heard that a newfangled iPhone mysteriously turned up in a fancy beer bar in Redwood City, California, and photos of it ended up on Endgadget and Gizmodo.  Since yesterday, new details have come to light, and the prodigal "iPhone HD" is headed back to the mothership, thanks in part to decidedly low-tech California law on lost property.

A legal fight seemed a possibility yesterday, as it became clear that Gizmodo's parent company, Gawker Media, had paid for access to the device. Then Gizmodo released details about the Apple employee who lost the phone (doh!), and the efforts of the person who found it to return it to Apple, albeit unsuccessfully: 

He reached for a phone and called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.   read more »

Harvard Law School professors Jack Goldsmith and Lawrence Lessig published an opinion piece today in the Washington Post, in which they lay out the serious constitutional concerns surrounding the Obama administration's plan to adopt ACTA as a "sole executive agreement" that requires only the president's approval. It's well worth a read.

Goldsmith and Lessig point out that, while the limits of the sole executive agreement power has never been clarified by the Supreme Court, "[h]istorical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century)."  And, of course, the president lacks independent constitutional authority over intellectual property and communications policy, these being matters the Constitution gives primary authority over to Congress.

Goldsmith and Lessig also do an excellent job dismantling the argument, advanced by the USTR and the administration, that ACTA would not change U.S. domestic law, noting how executive agreement provisions can preempt inconsistent state and possibly federal law, at least under certain circumstances, and that a canon of statutory interpretation requires courts "to interpret ambiguous federal laws to avoid violations of international obligations."   read more »

Techdirt first drew our attention to Google's recent legal troubles in Brazil over its Orkut social networking site (which, as Mike Masnick says, is—mysteriously—only popular in Brazil). The case has gotten a lot less attention than the whole Italy kerfuffle, perhaps because it lacks the drama of a court holding executives personally accountable. But, the Brazilian case presents some obvious parallels with the Italian convictions, and it further underscores the importance of strong legal protections for intermediaries in preserving freedom expression and promoting innovation online. 

Press accounts report that, on Tuesday, a Brazilian court fined Google for failing to block Orkut pages containing dirty jokes that "offended" two teenagers. The court imposed a $2700 fine for each day that the offending pages remained up and ordered Google to stop similar material from being posted in the future.  Ironically, the court apparently cited Google's censorship of material in China as proof that it was feasible to do so in Brazil, leaving out Google's showdown with China and its ultimate decision to pull out of China altogether.    read more »

In 2003, prolific legal scholar and 7th Circuit Judge Richard Posner published a law review article entitled "Misappropriation: A Dirge," which discussed—among other things—the continued viability of "hot news" misappropriation, a theory of unfair competition that dates back to the Supreme Court's 1918 case, International News Service v. Associated Press, 248 U.S. 215 (1918), which involved unauthorized re-publication of wire service reports. Contrary to what Posner's title might suggest, the article didn't outright announce the death of the hot news doctrine, but it did paint a picture of a legal doctrine on the ropes—disdained by noted jurists, unwise as a matter of policy, and limited in practical significance. For better or worse, a decision issued last Thursday shows the doctrine to be very much alive and relevant. In fact, the case raises some disturbing prospects for news aggregation and sharing of information on the Internet more generally.     read more »

A couple of weeks ago, my good friend and all-around First Amendment bad ass Marc Randazza called on a bunch of law bloggers to make March "Anti-SLAPP Month" in honor of Congressman Steve Cohen (D-TN)’s proposed Citizen Participation Act, which would create a federal anti-SLAPP statute. Others have answered Marc's call, making for some excellent reading on SLAPP-related topics; my personal favorite is Ken from Popehat's federalism-minded analysis of the federal bill's removal provision. I'm still warming up the old gray matter to do a post on the federal anti-SLAPP bill, but for now I bring anti-SLAPP news from California, the state with probably the most robust anti-SLAPP statute in the country.     read more »

Nicholas Brilleaux, publisher of Hammond Action News, got a big victory yesterday when a Louisiana judge dissolved an order prohibiting him from posting a satirical news story about a fictional giraffe attack on his blog.

On March 2, without a hearing, Judge Brenda Bedsole Ricks of the 21st Judicial District Court in Amite, Louisiana granted Global Wildlife Center a temporary restraining order requiring Brilleaux to remove the story from his site. Yesterday, District Judge Beth Wolfe held a hearing on Global Wildlife's request to convert the order into a preliminary injunction. Judge Wolfe not only refused the injunction and dissolved the TRO, but ordered Global Wildlife to pay Brilleaux $500 in attorneys' fees and court costs, according to newstimes.com.

We don't have a transcript of yesterday's hearing, so the details of the decision are kind of sketchy.  But, it sounds like Judge Wolfe agreed with the argument, put forward by Brilleaux as well as the ACLU in its amicus brief, that the First Amendment protects satirical speech like the giraffe-attack article. Stated differently, in a defamation case like this one, liability cannot be based on statements that a reasonable reader would not understand as stating actual facts about the plaintiff.   read more »

Science journalist Simon Singh announced on Friday that he is giving up his Guardian column to devote his time and energy to fighting the British Chiropractic Association's libel lawsuit against him and to campaigning for libel reform in the United Kingdom. 

Singh's case has garnered much attention and has become a rallying cry for those seeking to reform Britain's notorious libel laws.  The BCA sued Singh for libel in 2008 after he published an article in the Guardian calling some of its medical claims "bogus."

English libel law put the burden of proving truth on the defendant, even in lawsuits relating to matters of public concern, and last May an English court ruled that, in order to prevail, Singh would have to show that BCA was being "consciously dishonest" in promoting chiropractic cures for the ailments in question.  Singh appealed the ruling—for information on a recent hearing before the Court of Appeals in London, click here.    read more »

Many others already have written about the worrisome case of Professor Weiler, an NYU law professor who is being haled before a French criminal court to answer for the "crime" of hosting an academic book review that displeased the author of the book in question. I'll add my voice to the chorus because Professor Weiler's appeal for assistance (below) deserves the widest possible dissemination, and because the case is another object lesson on the importance of legal protection for intermediaries in preserving some modicum of freedom of expression online.    read more »

The Supreme Court has granted certiorari in Snyder v. Phelps, the funeral picketing "God Hates Fags" case involving the kooky Phelpsian Westboro Baptist Church.  Albert Snyder, the father of a U.S. marine killed in Iraq, won a $10.9 million jury verdict for intrusion and intentional infliction of emotional distress against the Phelps clan as a result of their picketing his son's funeral carrying offensive, unpatriotic, and antigay messages, as well as their publication of "The Burden of Marine Lance Cpl. Matthew A. Snyder" on the church's website.

The trial court reduced the jury verdict to $5 million, and the Fourth Circuit Court of Appeals reversed the award of damages altogether, holding that the Phelps' speech—while repugnant—is constitutionally protected.  The case raises fascinating questions about whether the intrusion and intentional infliction of emotional distress torts may constitutionally be applied to speech on matters of public concern without creating all sorts of gnarly overbreadth, vagueness, and viewpoint discrimination problems. 

UCLA law professor Eugene Volokh has several brilliant posts exploring all of this in great detail and with great eloquence. I highly recommend these posts to anyone interested in the First Amendment (or just this crazy case).

Thomas O'Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania.  In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for "information that would disclose the true identities" of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him.  The United States District Court for the Western District of Pennsylvania denied McVicker's motion to compel the newspaper to turn over identifying information.    read more »

With the help of Harvard Law School's Cyberlaw Clinic, CMLP and a coalition of media and advocacy organizations submitted an amicus curiae brief to the Illinois Supreme Court this week, urging the court to reject two lower courts’ narrow interpretations of the state’s Anti-SLAPP statute, known as the Citizen Participation Act.  The aim of the Citizen Participation Act (CPA), like most anti-SLAPP statutes, is to deter abusive litigation by allowing defendants to secure quick dismissals and recover attorneys' fees when faced with meritless lawsuits that threaten their ability to speak and petition the government.

CMLP and amici Public Participation Project, Online News Association, and the Chicago Current got involved in the case—Wright Development Group LLC v. Walsh—to weigh in on an issue that, while seemingly procedural in nature, goes to the heart of the policy motivations behind the CPA.    read more »

Last week, federal district judge Jeremy Fogel issued a technical but important decision in Stephanie Lenz's lawsuit against Universal Music over the "Let's Go Crazy" dancing baby takedown.  As Eric Goldman points out, the decision is one of the few (if not the only) to weigh in on what damages are recoverable from a copyright owner who sends a bogus takedown in violation of 17 U.S.C. § 512(f).

In relevant part, section 512(f) provides that a copyright owner who makes knowing false statements in a takedown notice "shall be liable for any damages, including costs and attorneys’ fees, incurred by [by the 512(f) plaintiff] as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing."   read more »

Andrew Wang of Chicago Breaking News reports that an Illinois judge has dismissed Horizon Realty Group's defamation lawsuit against Amanda Bonnen. Surely you remember this gem from last summer? The landlord that sued its tenant for tweeting to all of 20 followers that her apartment was moldy; the management company that made—and then backpedalled on—one of the greatest statements (foot-in-mouth-wise) of all time: "We're a sue first, ask questions later kind of an organization." Ah, good times indeed.

Cook County Circuit Court Judge Diane J. Larsen found that Bonnen's tweet wasn't capable of supporting Horizon's claim because it was "too vague to meet the legal standards of libel." Ruling from the bench, the court also apparently indicated that the tweet could be construed innocently or as a statement of opinion, according to Wang's article.   read more »

This afternoon, the Supreme Court put the final kibosh on video streaming of the Prop 8 trial to five federal courthouses around the nation.  The Court stayed U.S. District Judge Vaughn Walker's order permitting the broadcast.  The stay will remain in force for the foreseeable future, putting an end to the controversy for practical purposes. The Court did not address the recording and dissemination of the trial on YouTube, viewing it unnecessary because Judge Alex Kozinski, the Chief Judge of the Ninth Circuit, had not approved Judge Walker's decision to allow Internet dissemination when the petitioners sought a stay.

The Justice split 5-4 down familiar ideological lines, with the conservative majority ruling that Judge Walker's order was invalid on procedural grounds because "the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting." This despite the Ninth Circuit Judicial Council's mid-December approval of a pilot program allowing limited use of cameras in district courts within the Circuit. According to the majority, the district court did not give the public sufficient notice and opportunity to comment before revising a local rule that prohibited the broadcast at the "eleventh hour."   read more »

The Reporters Committee for Freedom of the Press reports that the National Freedom of Information Coalition (NFOIC) has received a $2 million, three-year grant from the John S. and James L. Knight Foundation to create the Knight FOI Fund, which will help state freedom of information advocacy groups cover litigation costs associated with public records and open meetings disputes.

NFOIC is a nonpartisan alliance of citizen-driven, nonprofit, freedom of information organizations, academic and First Amendment centers, journalistic societies, and attorneys that works to protect the public's right to oversee its government.  The coalition was spurred to create the litigation fund after a summer 2009 survey of its members revealed declining levels of freedom of information litigation and the prospect of steeper declines in the future.  From NFOIC's press release: 

The need for such a fund arose from the realization that the economic crisis and the evolution of the news media has resulted in declining levels of FOI advocacy. The Knight Foundation and the NFOIC had a hunch that that support for litigation and for the work of FOI coalitions themselves was threatened by the media economy. So, in the summer of 2009, we asked NFOIC members to respond to a brief informal survey.   read more »