Tag Archives: Journalism

Other People’s Information Doesn’t Want to be Free

Originally posted 2005-03-12 21:37:00. Republished by Blog Post Promoter

Last night Santa Clara County Superior Court Judge James Kleinberg ruled in the Apple case that “reporters who published ‘stolen property’ weren’t entitled to protections. ”

B-b-b-b-b-b-but even if they’re reporters?!

Yes. Even if they’re reporters. This is not a First Amendment issue. Just ask The Nation.

Cover me

Originally posted 2010-05-18 13:02:18. Republished by Blog Post Promoter

Photo Attorney Carolyn Wright writes:

Rebecca Tushnet over at the 43Blog reports on a recent case in New York where the court determined that the use of a woman’s photograph for a fiction book cover required a model release.  This ruling creates an anomaly with other NY cases where the court ruled that a photograph of a person used for a news article does not require a release.  The lesson?  It’s always safest to get a model release when using a photograph of a person.

Good pickup.  Good advice, too.  Although, now that I think about it, the facts in this case and the publishing sector in which it occurred sound eerily familiar to me

Just Say No

Originally posted 2005-03-30 09:40:00. Republished by Blog Post Promoter

Got a call from CBS News a few minutes ago. “You’re a constitutional lawyer, right?”

“Yes,” I replied. “It is constitutional for me to practice law.”

Laughter. “We’re looking for someone to comment on this latest appeal in the Schiavo case. Have you been following that case?”

“Oh, no, I’m sorry. Not professionally in the slightest.”

I’m not sure it’s even a constitiutional question they have, but I guess that tells you how little I know about the procedural aspects of the Schiavo case.

I really am a “constitutional lawyer” because I spend a lot of time on issues relating to the First Amendment, as witness this blog. But on the sad world of Terry Schiavo, I have no expertise to offer.

Second class on the First Amendment

Originally posted 2009-04-06 08:38:10. Republished by Blog Post Promoter

The Administration believes bloggers can’t be trusted with free speech the way everyone else is, it seems.  Reports FT.com (hat tip to Marco):

Advertisers in the US are bracing themselves for regulatory changes that they fear will curtail their efforts to tap into the fast-growing online social media phenomenon.

Revised guidelines on endorsements and testimonials by the Federal Trade Commission, now under review and expected to be adopted, would hold companies liable for untruthful statements made by bloggers and users of social networking sites who receive samples of their products.

Bad, bad idea.  I definitively (!) addressed this two years ago right  here.  Nothing else to talk about.

Talking a leak

Originally posted 2006-01-12 19:24:54. Republished by Blog Post Promoter

Want to know the difference between a leaker and whistle-blower? Johnny Dollar posits the distinction.

The Floyd Abrams Myth

Originally posted 2005-08-16 13:29:30. Republished by Blog Post Promoter

Mickey Kaus links to this story about “the federal government’s decision to drop subpoenas issued to The New York Times and the writer of a series of articles the newspaper published in 1998 about former CIA operative Luis Posada Carrile.” Says Kaus:

“Are you a New York Times writer facing a government subpoena? Hint: Those who don’t go with Floyd Abrams as their lawyer tend to stay out of jail!”

That doesn’t seem particularly fair. Clearly the hardest cases go to Abrams. Not that he necessarily takes them, mind you.  Not at all.

More bad news for reporters seeking exemption from laws

Originally posted 2006-08-15 19:44:16. Republished by Blog Post Promoter

The AP reports:

A federal judge told two San Francisco Chronicle reporters they must comply with a subpoena and tell a grand jury who leaked them secret testimony of Barry Bonds and other elite athletes ensnared in the government’s steroid probe.
The decision by U.S. District Judge Jeffrey White means reporters Lance Williams and Mark Fainaru-Wada must appear before a grand jury investigating the leak unless a higher court blocks the ruling. The pair have said they would not testify and would go to jail rather than reveal their source or sources.

It’s getting tiresome. But as working for a mainstream press organization continues to slide in prestige, at least reporters can console themselves with that unique self-satisfaction that only comes with civil disobedience.

Love means …

Originally posted 2010-05-10 11:50:20. Republished by Blog Post Promoter

Jim Lindgren of the The Volokh Conspiracy writes (hat tip to Glenn Reynolds), a tad grudgingly, of a kinder, gentler left-wing Supreme Court nominee on the issue of that supposedly black-hearted fascist group I’ve been an active member of since 1985:

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ‘80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, ““You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer. . . .

In a 2009 interview, Elena Kagan makes her praise for the Federalist Society sound almost like an afterthought, rather than her opening statement . . . I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.

Man in Federalist Society tie on CNN

Man in Federalist Society Tie on CNN

The answer, Jim, is because we get it.  She doesn’t agree with the Federalist Society but she respects the standard it has set for intellectual discourse in legal academia even though we’re not her people.

I’m pretty damned pleased, even if I should not have to be, that someone with her profile, credentials and influence has elevated us sulfur-breathing, horned devils to “lovable” on any level at all.

She’s not our people, either.  But if she considers us people at all, that is a big improvement over plenty of the others, I am sure, on President Obama’s short list.

UPDATE:  Speaking of love and relationship, sometimes — as they say on the Internet — “it’s complicated” (response here).

Not So Plain Dealing

Originally posted 2005-07-10 10:12:05. Republished by Blog Post Promoter

Instapundit links to this teef-gnashing item from Michael Silence about this super-secret scandal, based on leaked documents, that the Cleveland Plain Dealer would for sure be investigating and breaking wide open ‘cept that those meanies on the Supreme Court make you go to jail if you won’t tell a criminal investigation who illegally leaked the documents you based your story on.Sorry, Professor, the real story is in the comments of the Silence piece. (Insert obligatory “silence” pun here.) I have excerpted some here but edited them for this blog’s delicacy standards. These are just the first bunch, chosen at random. I have added emphasis to some of my favorite points:


Not to be anti-libertarian or anything, but the Plain Dealer is just as guilty of witholding information from a criminal investigation whether they report the story or not.
Posted by: Carl at July 9, 2005 11:12 AM

IRRC the Judge in the Plame case made a point of stressing that journalists would have had a much better case for claiming privilege if the leak had been an instance of whistle-blowing.
Posted by: Glen at July 9, 2005 11:34 AM

Finally! Illegal leaks are being judged as such. There is much information that is either classified for national security reasons or confidential. What if someone leaked the recipe for Coke to the NYT? They could print it with impunity and legally refuse to disclose the source?
Posted by: KBK at July 9, 2005 11:36 AM

Boo friggin hoo. Gee, it’s too bad the Cleveland Plain Dealer’s desire for self-aggrandizement is exceeded only by its cowardice. IF you are in the right, then have the courage to act on it, and that goes double for your leaking informant. Otherwise, you are playing a dirty game with one set of rules for yourself and another for everyone you believe you have the duty to investigate.

Grow a set of [testosterone-producing glands], and ethics.
Posted by: charles austin at July 9, 2005 11:45 AM

The Plain Dealer is just lazy. If they have information leading to a story they can do some investigative reporting to establish the basis of the story without revealing their source. They’ve been given a good lead. I think this whole story is fallacious.
Posted by: Gordon at July 9, 2005 12:18 PM

Is Doug Clifton some sort of fool? The crime isn’t reporting, the crime isn’t receiving docs. The crime is leaking them. He’s just told the whole world he’s protecting two criminals (whatever you may think about whether they should be classified as such).

He’s just stuck a “Sue me” sign on himself for any ambitious young prosecutor.

Posted by: Tim Worstall at July 9, 2005 12:33 PM

The update on campaign contributions has nothing to do with the main post on source protection. I hope those who naively supported McCain-Feingold are coming around. Concerning the separate subject of criminal investigations, there is little we as voters can’t do about it. The legislatures decide what is a crime. Reasonable people will agree that we want our government to protect certain information and punish those who leak it. If the government goes overboard—as is in its nature—we can fix the government.

The big chill? Piffle. Don’t lose your cool.
Posted by: Pavel at July 9, 2005 12:35 PM

Maybe the Plain Dealer needs to hire some new lawyers. It took me all of five minutes to find Ohio Revised Code 2739.12 which states: sec. 2739.12. Newspaper reporters not required to reveal source of information.

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

Shorthand, it’s a press shield law. So in the immortal words of Coach Mike Ditka, Plain Dealer who are you [carping about]?

Posted by: Ross at July 9, 2005 12:41 PM

Ross, the Ohio law would not help if a federal prosecutor got into the act.
Posted by: Voiceguy at July 9, 2005 12:50 PM

“It took me all of five minutes to find Ohio Revised Code 2739.12 which states: sec. 2739.12.”

Have you read an annotated version of the ORC, one giving case citations construing that statute and those regarding other privileges? Read any of those cases?

Virtually no privilege, in any jurisdiction, is absolute. While I do not defend the Plain Dealer’s decision, I strongly suspect its attorneys’ advice is correct.
Posted by: Mona at July 9, 2005 02:10 PM

If the story is that great that “people would be well served to know it”, but you are afraid that unfriendly US laws are going to ruin your day, one could do what Canadian “sources” did to break open the corruption investigations in the Great White North…
Posted by: Eric Anondson at July 9, 2005 02:18 PM

If something is categorized as a “leak” and deals with national security issues (which it does when it comes to identities of CIA agents), then you have the moral and civic duty to NOT report this to the public. Because the public, in today’s world, is not only friendlies but enemies.
Posted by: Dan Sherman at July 9, 2005 02:36 PM

pardon me, but this is just bull[oney]. “Illegally leaked documents?” Under what law? The Plain Dealer is getting National Security docs leaked? Really? Explain to me again just why I should believe such an incredibly self-serving statement? They’re worried because the people breaking the law by leaking may be in trouble? Who woulda thunk?

I presume their lawyers have also pointed out that the PD is in trouble just for having the docs?

I have an idea, why don’t we do away with courts and let newspaper editors decide what is right or wrong?

It’s astonishing. (Actually, one thing that’s astonishing is the quality of debate in the comments on this blog. Okay, not astonishing, but impressive.) First Amendment absolutists — on this issue, perhaps we should call them the First Amendment Expansionists — will inevitably now write the teef-gnashing, hand-wringing editorials that go, “The public doesn’t even support its right to be informed any more! It’s the end of the commonwealth!” But the real story is, “The public doesn’t cede any special privilege under the law to a self-appointed Fifth Estate that has badly abused its status, especially in an era when newspapers have not much in particular over everybody else in the world who can publish to the world basically for free.” The institutional press has drawn down all its Watergate capital, or perhaps the IOU’s of earlier times (and not such earlier times) have finally come due. It’s the end of the world as we know it, yes, but we don’t feel all that awful.

That is the story, Glenn! Considering your own views about the questionable validity of the journalists’ privileges, I think you’d agree with me (in fact, maybe you already do).

UPDATE: Some perspective from Joe Gandelman.

UPDATE: Via Instapundit again, here’s another reason why the “press” isn’t entitled to any more “privilege” than you or I.

UPDATE: More of the same, very well done.

Old media vs. new in LA federal court

Originally posted 2007-05-07 08:35:05. Republished by Blog Post Promoter

CNET News.com reports:

NBC Universal and Viacom have come out against YouTube in a legal case that could help to determine whether the video-sharing site is culpable for copyright violations committed by users.

On Friday, NBC Universal and Viacom filed a request with the U.S. District Court in Los Angeles asking that they be allowed to file a friends-of-the court brief in support of journalist Robert Tur, according to a copy of the request obtained by CNET News.com.

Tur, a Los Angeles-area news reporter, accused YouTube of copyright infringement in a lawsuit last summer. Tur said in his suit that footage he shot of the 1992 Los Angeles riots appeared repeatedly on the video-sharing site.

Google, which acquired YouTube last October for $1.65 billion, has filed a summary judgment asking that Tur’s suit be dismissed, according to court documents. NBC and Viacom want the opportunity to argue against dismissing the case.

“Any ruling on YouTube’s motion will have far-reaching ramifications for the owners of video content,” NBC and Viacom said in their filing. “And especially for content owners such as Viacom and NBCU, whose works have been copied, displayed, and performed and disseminated by YouTube and others without their authorization.”

YouTube is taking the position, in effect, that it’s just an Internet service provider, a common carrier, a pipe, and that it can profit (well, has it ever profited?  Its founders did when they sold out to Google) from content placed on its website but cannot be held liable for it.  It think that’s preposterous, and that this position is not what Congress had in mind when it passed the amendments to the Copyright Act on which Google is relying (NB:  I have not seen the actual Google filings — if someone can correct my characterization of them, I welcome that).

UPDATE:  Read this.

Judge: New York Times reporter waived press shield privilege

Originally posted 2006-05-17 10:12:49. Republished by Blog Post Promoter

The New York Law Journal reports (subscription required):

A New York Times reporter must testify in an emotional-distress case regarding an interview he conducted with the defendant, the Riverside Church’s controversial leader, the Reverend James A. Forbes Jr., a Manhattan judge has ruled.

Reporter Daniel Wakin waived any exemption he may have enjoyed under New York’s Shield Law when he “voluntarily informed plaintiff of the specific information” he had heard while interviewing Reverend Forbes, Supreme Court Justice Walter B. Tolub held in Guice-Mills v. Forbes, [index number] 124635/02.

Disclosure of otherwise privileged material frequently vitiates the privilege, because you’ve already told the information you seek to someone not covered by the privilege, presumably for your own benefit; why then should you be able to claim the privilege for your benefit (as opposed to that of your source) as well?

The court gives the usual salute to the vital importance of press shield laws in protecting the First Amendment, stating that without it, why, you could be required to testify — just like a regular human being who knows something that could be important to someone else’s well being. Can’t have that. You’re a journalist!  No, I don’t like press shield laws. But here at least the court wisely prevented an abuse of one.

Pro shutterbug’s guide to IP

Originally posted 2007-07-04 22:04:10. Republished by Blog Post Promoter

Here’s a good excerpt from a new book by copyright doyenne Nancy Wolff called The Professional Photographer’s Legal Handbook. It’s on a favorite topic of mine, namely intellectual property rights (supposed ones, that is) in buildings:

A three dimensional building will rarely serve as a trademark. An owner of a mark needs consistency to create a trademark. The building must be shown in the same angle on all brochures, advertising, marketing material, etc. Other museums or entities learning a lesson from Rock & Roll Hall of Fame may begin using the same image of their building consistently and over time build trademark rights. An example of the consistent use of a building as a trademark is the stylized illustration of the Transamerica pyramid as a logo for the insurance company. Use of the logo would constitute trademark infringement by a competitor, but showing the building in a skyline photo of San Francisco would not.

Nancy Wolff gets it! And if I were a professional photographer (and sometimes I wish I were), I’d get her book.