Sam Bayard's blog

On Friday, Senators Arlen Specter (D-PA) and Charles E. Schumer (D-NY) released a revised version of the proposed federal shield bill (S. 448), which expands the bill's coverage to bloggers and other amateur journalists publishing on the Internet. This version departs from a previous one, announced in September, which limited protection to "salaried employee[s]" and independent contractors for established news media organizations. The new language reads:

(2) COVERED PERSON.—The term "covered person"—

(A) means a person who—

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—   read more »

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections.  In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legalizing same-sex marriage.  Sure, it's an off-year for Congress and it doesn't have the historic dimensions of the last election, but there are still plenty of reasons for ordinary voters and journalists alike to document the day and gather news at the polls, including to root out fraud and other problems in election procedures. 

To help out, the Citizen Media Law Project has updated its legal guide pages on laws regulating recording activities in and around polling places on Election Day.  Our specific focus is on the laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places.   read more »

A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity.   read more »

We reported earlier this month that Glenn Beck filed a UDRP action against glennbeckrapedandmurdereda younggirlin1990.com seeking transfer of the domain name.  Beck alleges that the website, which instantiates an Internet meme born on Fark.com that pokes fun at Beck's rhetorical style, is improperly using his trademarked name.  This week, First Amendment bad ass Marc Randazza filed a response brief on behalf of Isaac Eiland-Hall, the previously anonymous individual behind the site.

As you might imagine, Mr. Eiland-Hall is not taking this whole thing lying down (from the brief):   read more »

IP Osgoode alerts us to an interesting decision from the Court of Appeal for British Columbia that has important implications for online speech in Canada.  In an opinion issued earlier this month, the Canadian court held that Jon Newton of p2pnet news could not be held liable for linking to allegedly defamatory articles written by others about politician Wayne Crookes. The appellate ruling upheld a lower court decision last fall dismissing Crookes' case against Newton.

In much the way CMLP often does, in 2006 Newton published a blog post about a defamation lawsuit brought by Crookes against Michael Pilling, who runs OpenPolitics.ca.  In his post about the lawsuit, Newton linked to the allegedly defamatory articles in question on OpenPolitics.ca, as well as to an article posted on another website.  Newton did not reproduce or comment on any of the allegedly defamatory material.  Here's the important passage:   read more »

It's amazing how many times you can hear a phrase without really understanding it.  Take "splitting the baby" for instance.  Excuse my ignorance, but I'd always thought it had a more-or-less neutral connotation, suggesting a pragmatic compromise to a question or problem.  But consider the Solomonic origins of the phrase, and you get quite a different picture.  Split the baby and you kill it, and nobody likes a dead baby.  So, I have to apologize up front for the title of this post — I haven't decided yet whether the approach to unmasking online commenters described below deserves praise or blame, but I couldn't resist this awesome wikicommons reproduction of Guissepe Cades' Judgment of Solomon.   read more »

Long before Liskula Cohen's case brought online anonymity into the mainstream press, New York courts were already struggling with the law surrounding the outing of anonymous Internet speakers. For example, back in October 2007, a court in New York County denied a school board member's request to unmask "Orthomom," an anonymous blogger who had published critical comments about her. In June 2008, Judge Rory Bellantoni of Westchester County ruled that ex-Congressman Richard Ottinger and his wife could obtain the identity of an anonymous commenter to a forum on LoHud.com, an online news site operated by The Journal News that covers New York's Lower Hudson Valley.   read more »

As originally reported by Orin Kerr at The Volokh Conspiracy, a federal district judge in California issued an opinion on Friday overturning the jury verdict finding Lori Drew guilty of a misdemeanor violation of the Computer Fraud and Abuse Act (CFAA).  Judge Wu ruled that accepting the government's theory — and the jury's finding — that Drew violated the CFAA merely by intentionally violating MySpace's terms of use would render the statute unconstitutionally vague.  As a result, he granted Drew's motion for a judgment of acquittal, ending the government's case against her.  The judge previously announced in July that he planned on reversing the conviction.   read more »

We blogged last week about RECAP, a Firefox plugin that lets PACER users share federal court documents through a repository hosted by the Internet Archive.  There was some rumbling late last week when Paul Levy and the folks at RECAP noted that the federal courts had posted statements warning lawyers about security concerns associated with the plugin.

Over at the CL&P Blog, Levy reports that a representative of the federal courts contacted him this week to clarify that the Administrative Office of the United States Courts has no problem with lawyers using RECAP to share court documents:    read more »

Last week, Courtney Love filed a motion to strike the lawsuit brought against her by Austin-based fashion designer Dawn Simorangkir (a/k/a the "Boudoir Queen").  In her m0tion, Love invokes California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16), a law designed to deter frivolous lawsuits brought to discourage individuals and organizations from speaking out on public issues or controversies.  Originally fashioned as protection for environmental groups sued by land developers over campaigns to galvanize the public and government regulators, the anti-SLAPP law is now understood to apply to a broad range of speech activities. If Love's motion is successful, it will apparently protect celebrity trash talking on Twitter.   read more »

Last Thursday, the District of Columbia Court of Appeals weighed in on what procedural safeguards are necessary to protect the rights of Internet users to engage in anonymous speech.  In Solers, Inc. v. Doe, the D.C. high court set out a stringent standard for its lower courts to follow and emphasized that a plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed to have violated the law.

D.C.'s new standard most closely resembles those set out in Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008).  It requires D.C. courts to follow five steps before ordering the disclosure of an anonymous speaker's identity:   read more »

Is it fair use to recast an iconic photograph of President Obama to send a political message?  You've got to hand it to the National Organization for the Reform of Marijuana Laws (NORML) for adding a humorous dimension to this now-familiar question:

The Washington Post reported earlier this month that photographer Lisa Jack is peeved over NORML's use of her photograph of Obama, taken in 1980 when he was a freshman at Occidental College, where Jack was also a student. The photo and others in the same series were published in Time Magazine's 2008 Person of the Year issue and are currently on exhibit at the M+B Gallery in Los Angeles.   read more »

There has been no shortage of anecdotal evidence suggesting that using social media like Facebook or Twitter can sometimes jeopardize your job.  Back in March, a Philadelphia Eagles employee lost his job when he posted a Facebook status update lamenting free agent Brian Dawkins' signing with the Denver Broncos.  Around the same time, a Twitter user jeopardized a job offer at Cisco by tweeting "Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."  This summer, the D.C. Department of Employment Services fired a contractor who was working with city youth after he posted updates on Twitter calling the Anacostia neighborhood a "ghetto" and suggesting that he was slacking on the job.  A New York civil servant resigned in July after posting apparently racist comments to Facebook about President Obama and the Henry Louis Gates arrest.

My personal favorite comes recently from an image posted on Imgur.com:   read more »

Daniel Neiditch, President of the Board for Atelier Condos on West 42nd Street in New York City, filed a lawsuit last Wednesday against two condo owners and three former employees, alleging that they published defamatory statements on various websites and blogs (defunct), as well as on Twitter (also defunct).  The condo building's property manager and the estate of its former resident manager also joined as plaintiffs in the lawsuit,* which was filed in New York Supreme Court, New York County. The case against the individual defendants is fairly complex and ultimately not that interesting — it involves a string of different websites and some pretty horrific accusations of "murder, bribery, extortion, illicit payoffs, and corruption." Cmplt. ¶ 1.

What makes the case notable is that Neiditch and his fellow plaintiffs also sued Twitter, WordPress.com, and Ning for hosting the allegedly defamatory content, and Go Daddy for providing URL redirects to it.   read more »

Horizon Realty Group, an apartment leasing and management company in Chicago, filed a defamation lawsuit last week against a former tenant, Amanda Bonnen, over a tweet she posted about the company on Twitter.  According to the complaint, filed in Cook County Circuit Court, Bonnen posted the following tweet on May 12, 2009: 

@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you?  Horizon realty thinks it's ok.

According to Chicago Bar-Tender, Bonnen had just 20 followers before her account disappeared from Twitter.  Nevertheless, Horizon claims that, as a result of the post, the company "has been greatly injured in its reputation as a landlord in Chicago."   read more »

We are proud to announce the release of Newsgathering and Privacy Part 2 - Stay on the Story, Don't Become the Story!, the second of two short videos addressing the legal issues people are likely to face as they head out with camera in hand to cover the news. The second video expands on our previous release, which appeared last month on YouTube's newly launched Reporters' Center. The two videos describe the legal and practical issues you may encounter as you gather documents, take photographs or video, and interview others. 

YouTube's Reporters' Center features how-to videos on a variety of topics related to news reporting, including how to fact check stories and adhere to journalistic principles. For additional details, see our previous post on the launch of the initiative.   read more »

CBS News is reporting that downloading or watching the peephole video of ESPN reporter Erin Andrews walking around naked in a hotel room is a crime:

"The Early Show" spoke with CBS News Legal Analyst Lisa Bloom, who said downloading or watching the nude Erin Andrews video is illegal.

"Its like buying or selling stolen property," said Bloom. "If you know you are buying something that was stolen... you could be liable criminally and civilly." (Source)   read more »

There's an interesting debate afoot about TechCrunch's decision to publish selected documents it received from someone who hacked into the email accounts of Twitter CEO Evan Williams and other Twitter employees. There's already been some good coverage of the journalism ethics side of the debate, but I wanted to weigh in with some detail on what U.S. law has to say about the situation. Is it legal for TechCrunch to publish hacked documents?  As with most questions worth asking a lawyer, it depends.  It depends largely on whether the content of any particular published document is of legitimate concern to the public.   read more »

As if anyone needed more proof that shooting off an ill-conceived cease-and-desist letter is a bad PR move, Techdirt points us to a recent gem.  The hilarious FAIL Blog publishes user-submitted photos and videos documenting various mishaps, incongruous images, and other examples of human fallibility, which it refers to as "fails."  Last week, it published "Record Breaking Fail," which showed a screenshot from the Guinness World Records website for the entry "most individuals killed in a terrorist attack."  The "fail" captured by the screenshot was a link on the page -- apparently part of the site's template -- encouraging readers to "break this record."    read more »

In a June 30 decision, New Jersey Superior Court Judge Louis Locascio ruled that Shellee Hale, a blogger, private investigator, and "life coach," could not invoke New Jersey's journalist shield law to protect the identity of her sources in connection with postings she made to an Internet message board.

Hale sought protection for her sources under the shield law in the course of a defamation lawsuit brought against her by New Jersey-based Too Much Media, LLC, a software company that serves the online adult entertainment business.  In the lawsuit, Too Much Media claimed that Hale defamed the company on Oprano.com, a forum for those in the adult entertainment industry -- self-described as the "Wall Street Journal of porn." According to the court's decision, Hale's forum posts accused Too Much Media and two company officers of intentionally mishandling a security breach and engaging in threatening behavior.   read more »