Blog Law Round-Up: September 2014

September 30th, 2014 by Eric E. Johnson

Blog-law relevant stories circulating this month:

In an apparent first, a New York court handling a child-support case approves Facebook as the primary means of service of legal notice.

Occupy Wall Street activists are in a legal battle over control of their Twitter account.

An Arkansas judge (handle “geauxjudge”) is banned from the bench for life for various troubling anonymous online comments, including revealing confidential information about Charlize Theron’s adoption.

Suicide, Social Media, and Public Health

August 13th, 2014 by Eric E. Johnson

The Washington Post has an excellent story pointing up the irresponsibility of the Academy of Motion Picture Arts & Science in posting the following tweet – “Genie, you’re free” – that romanticizes the suicide of actor/comedian Robin Williams, the who hanged himself on Monday.

@TheAcademy tweeting "Genie, you're free."

The story notes “[t]he starry sky from Disney’s Aladdin, and the written implication that suicide is somehow a liberating option, presents suicide in too celebratory a light.”

Indeed, it’s pretty perplexing how AMPAS thought this was a good idea. The concern, of course, is that glorifying suicide may inspire copycat suicides. As NBC News reports, there was a significant increase in suicides among white women around Marilyn Monroe’s age when she killed herself in 1962.

The American Foundation for Suicide Prevention has guidelines for responsible reporting and social media about suicide. The National Suicide Prevention Lifeline organization has social media guidelines as well.

They urge, when writing about suicide, to note that suicide usually has warning signs and to refer readers to helpful resources.

If you see someone on social media who is expressing thoughts of suicide, you can visit NSPL’s page on how to help. There are even specific instructions for what to do if you see suicidal users on Twitter, Facebook, Tumblr, You Tube, and MySpace.

If you are having thoughts of suicide, please visit the National Suicide Prevention Lifeline website, or call 1-800-273-TALK.


Gregory D. Saxton and Ashley E. Anker on Financial Bloggers

July 31st, 2014 by Eric E. Johnson

Seal of SUNY BuffaloGregory D. Saxton and Ashley E. Anker of SUNY Buffalo have recently posted to SSRN their paper The Aggregate Effects of Decentralized Knowledge Production: Financial Bloggers and Information Asymmetries in the Stock Market. The paper was published in the Journal of Communication, vol. 63, no. 6, pp. 1054-1069.

Here is the abstract:

New media have markedly enhanced individuals’ capacity to produce and disseminate original knowledge; however, the literature has not extensively examined the broad effects of such decentralized production processes. The current study thus focuses on a unique context — the stock market — in which it is possible to test the aggregate impact of blog-based information production. Using data on 150 top financial bloggers and stock returns from the S&P 500, this study supports the hypothesis that financial blogging activity diminishes harmful information asymmetries between key market investors. This study thus adds to the “media effects” literature, highlights the societal relevance of bloggers, and shows how economic concepts and financial market settings can be employed for powerfully testing communication theories.

Deidré A. Keller on TWiL

July 11th, 2014 by Eric E. Johnson

Professor Deidré A. Keller of Ohio Northern is on This Week in Law with Denise Howell. It’s happening now (2-3 p.m. EDT). Live stream live here:  http://twit.tv/. Later, it should be archived here: http://twit.tv/twil266.

They are talking about copyright – in particular, fair use as applied to election campaigns.

UK Bans Warns of Criminal Charges for Using Social Media to Discuss 25-Year-Old Soccer Tragedy

April 23rd, 2014 by Eric E. Johnson
Persons scramble away from the human crush in the stadium

From television coverage of the game in 1989.

In the United Kingdom, there is a new example of that country’s sometimes surprising limitations on free speech.

The UK Attorney General is warning people that they might be held in criminal contempt for using social media to discuss the 1989 Hillsborough soccer tragedy. That disaster resulted in 96 deaths when people were crushed in an overcrowded stadium to watch a match between Liverpool and Nottingham Forest.

The notice reads:

Editors, publishers and social media users should note that the inquest proceedings are currently active for the purpose of the Contempt of Court Act 1981.

The Attorney General wishes to draw attention to the risk of publishing material, including online, which could create a substantial risk that the course of justice in the inquests may be seriously impeded or prejudiced, particularly as this inquest involves a jury.

This risk could arise by commentary which may prejudge issues that witnesses may give evidence about, or matters that the jury will need to consider in reaching their verdict. The inquests could also be prejudiced by publishing details of material (whatever its source) which may not form part of the evidence at the inquest.

The Attorney General’s Office will be monitoring the coverage of these proceedings.

This spring marks the 25th anniversary of the disaster, so naturally people want to talk about it. But just at this moment, the British government squelched discussion with heavy-handed criminal laws. That seems extremely regrettable to me.

An ESPN documentary on the tragedy is currently banned from being distributed in the UK. The director told Sports Illustrated:

Because the new inquest has started just two weeks ago, it can’t be shown in the UK until the jury delivers its verdict. Which is a year from now. I really want it to be shown now. You want it to have the impact now, but you can’t. It’s as simple as that.

Of course, the conversation a year from now will be a different one than could be had now. So it’s not just delaying speech, it is destroying speech.

Previously I’ve discussed how in the UK using social media can quite easily subject someone to possible jail time or draconian civil liability.

And here’s another example of the UK banning speech related to soccer:

Op-ed on Nuclear Science Experiment and Planetary Disaster Risk

February 10th, 2014 by Eric E. Johnson
Twin accelerator rings in tunnel.

Brookhaven National Laboratory's RHIC machine

Prof. Michael Baram of Boston University and I published an op-ed today in the International Business Times: New U.S. Science Commission Should Look At Experiment’s Risk Of Destroying The Earth.

The piece concerns the Relativistic Heavy Ion Collider – the RHIC (pronounced “Rick”) – at Brookhaven National Laboratory on Long Island. The question is whether it might create a “strangelet” that would begin a process of converting all matter on Earth into hyperdense “strange matter.”

Prof. Baram and I argue that a new science commission created by Congress should look at the risks of experiments in addition to their benefits.

Adam Savage and Mythbusting Net Neutrality

January 16th, 2014 by Eric E. Johnson

 

Kind of sad to see Adam Savage of Mythbusters as the face of the National Cable & Telecommunications Association – one of the key trade groups lobbying against net neutrality.

You’ll never guess who the cable-telecommunications industry thought prevailed in Verizon v. FCC [pdf]. The “big winner,” they said, was “the consumer.”

It’s interesting to see the double-talk the NCTA uses to argue that net neutrality is bad. (Or, as they would say, that “fair broadband pricing” is good.)

Allowing consumers to choose the best broadband plan to suit their needs promotes fairness, saves customers money and encourages adoption to a wider audience than more restrictive “universal” pricing plans. The continued expansion of broadband networks and usage-based tiers will provide consumers with significant benefits without asking that they subsidize the efforts of a select few.

See? Telecommunications companies aren’t trying to hold the internet hostage to collect ransoms. They’re helping consumers. Thanks for busting that myth for us.

Blighted and Slighted: Landlords Sue Slumlord Watch Blogger

December 31st, 2013 by Eric E. Johnson

Blogger Carol Ott of Baltimore Slumlord Watch is being sued by two landlords on allegations that she hired graffiti artists to paint murals on abandoned properties.

Ott’s website – tagline: “If you own vacant property in Baltimore City, clean it up!” – consists of posts with addresses of rotting buildings listed with their owners and contact information for those owners.

According to the Towson Patch, the trusts that own the moralized properties are seeking $2,500 in damages to cover the costs of re-painting. According to the Patch, Ott denies the claims, saying that she provided background information on properties but did not direct people to take action.

Al Jazeera, which has pictures of the murals, reports that Ott recently worked with Wall Hunters, a group of street artists who pasted QR codes to dilapidated buildings with links to landlord contact info.

The Atlantic Monthly recent profiled Ott’s efforts to clean up Charm City’s urban blight.

More:

City of London Police Hijacking Websites Without Court Orders

October 10th, 2013 by Eric E. Johnson

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

More:

“Terms and Conditions May Apply” Documentary Film

August 13th, 2013 by Eric E. Johnson

Terms and Conditions May Apply - logo incorporating motifs of major websitesRight now, playing in San Jose, California is a movie I very much wish I could see: Terms and Conditions May Apply.

It’s about online privacy and the fine print of websites and apps. The trailer looks great. Sadly, the film isn’t scheduled to be playing anywhere I’ll be, but here’s the upcoming schedule in case it will be making a stop in your town:

San Jose – Camera 3 Cinemas – Aug 2 – 15
Premieres on PIVOT TV Sunday, Aug 11th 8/7c
Lake Worth – Lake Worth Playhouse – Aug 16-22
San Diego – Digital Gym – Aug 16-22
Washington, DC – West End Cinema – August 16-22
Oakland – The New Parkway Theater – August 20
Miami – Cosford Cinema @ UM – Sept 20
Whitehorse, Yukon Terr – Yukon Film Society – Sept 22
Boulder – Boedecker Theater at Dairy Center – Sept 24-28
Macon, GA – Douglass Theatre – Oct 22

One-Man Protest for Bradley Manning’s Freedom in Indiana Town

July 31st, 2013 by Eric E. Johnson
Protestor holds sign reading "FREE BRADLEY MANNING" (Photo: EEJ)

Jason Urbanski holds a one-man rally for intelligence leaker Bradley Manning on July 31, 2013 in La Porte, Ind.

On the day news broke of the conviction of U.S. Army intelligence analyst Bradley Manning for downloading secret government documents and giving them to Wikileaks for release to the public, Jason Urbanski held a one-man rally for Manning’s freedom in front of the county courthouse in La Porte, Indiana. His handpainted sign with red-glitter letters said ‘FREE BRADLEY MANNING.”

I happened upon Urbanski while I touring around the area. I took the opportunity to talk with him a bit.

Urbanski spoke of Manning in heroic terms. “He sacrificed his freedom to show the world the truth,” Urbanski said. “He made a really unselfish decision to do something good. We can’t forget about him.”

A restaurant worker in nearby New Buffalo, Michigan, Urbanski said he was hoping that a future president, if not the current one, would pardon Manning. The way to pursue that, Urbanski reasoned, was to start at a grassroots level.

Manning was convicted by a court martial on several counts, including espionage. Manning was acquitted, however, of aiding the enemy, which was the most serious charge pursued by prosecutors.

“I think that what Bradley Manning did was just motivated by simple human empathy,” Urbanski said. “It was a political act, but really it was an act of human compassion.”

While I was there, Urbanski’s protest seemed to draw neither cheers nor jeers from passers-by. I think it is safe to say his opinions represent a minority view in the United States. I, myself, don’t see Manning in the same light that Urbanski does, but I am, however, very happy to see someone out flexing their First Amendment rights on a courthouse street-corner to weigh in on the topic.

Some Interesting Facts on Teens, Online Media, and Cyberbullying

July 16th, 2013 by Eric E. Johnson

Yesterday I blogged about the Define the Line website, which is headed up by McGill professor Shaheen Shariff. Here’s a few other interesting things I found on the website:

Shaheen Shariff’s “Define the Line” Website on Cyberbullying

July 15th, 2013 by Eric E. Johnson
headshot of Shaheen Shariff

(Photo: McGill)

Shaheen Shariff is a professor with the Faculty of Education at McGill University and is also associated with the Centre for Human Rights and Legal Pluralism at McGill’s law school. She works on social media issues, with a particular focus on cyberbullying. I had the pleasure of meeting Shaheen at the affiliates meeting of the Stanford Center for Internet and Society last week where she gave a very interesting presentation.

Shaheen takes an approach to the topic of cyberbullying that is at once balanced, scholarly, and practically oriented. You can see this reflected in a website that Shaheen directs, Define the Line, which has a wealth of information on educationlegislation, and policy.

The website’s mission is “clarifying the blurred lines between cyberbullying and digital citizenship.” The concept of “digital citizenship,” is, I think, quite a useful one. Here’s how Define the Line explains it:

The concept of digital citizenship is premised on encouraging and developing learning opportunities for youth to develop their online proficiency, engagement and creativity, rather than focusing exclusively on the ways in which digital media can be used detrimentally. A microscopic focus on the negative aspects of digital communication usage among youth ignores the potential benefits of digital media, and the possibility for youth to engage in socially responsible digital behaviour.

Well said.

 

Blog Law Blog Has Never Cooperated with NSA’s Special Source Operations

June 6th, 2013 by Eric E. Johnson


Well, it’s been a busy day for cybernews.

The Washington Post has broken a huge story that the U.S. government, specifically the NSA and the FBI, are accessing e-mails, photos, videos, and other personal data via its “Special Source Operations” – NSA talk for buddy-bud tech companies. The cooperators in this outed “PRISM” program are, according to the Post story, “nine leading U.S. Internet companies”: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.

(Hey, good for AOL getting lumped into the category of “leading U.S. Internet companies.” No doubt they were super-psyched to see that.)

Well, for my part, I can state unequivocally that Blog Law Blog has never cooperated with the NSA or FBI in sharing any data. (But I do use Google Analytics, as do bazillions of others – so be warned.)

In the same news cycle comes the revelation that Chinese government hacking into private American computer systems is far wider and deeper than previously known. They even hacked the 2008 Obama and McCain presidential campaigns.

Unfortunately, I can make no guarantees that Blog Law Blog has not been hacked by the Chinese government. The only real protection I have against being hacked by China is staying below their radar. Which I’m guessing I probably have. (Although I’ve certainly discussed how China is a leading jailer of bloggers, among other things.)

Hey, by the way, did you notice who is missing from that Special Source Operations list? Yup, no Twitter. Good for Twitter. They’ve certainly shown their user-privacy backbone before. And no Amazon or eBay either.

UK Court Rules 7-Word Tweet Libeled Lord

June 4th, 2013 by Eric E. Johnson

Gavel coming down on twitter bird, combined with British flagLord Robert Alistair McAlpine was libeled by a tweet from Sally Bercow, the wife of the Speaker of the House of Commons, according to a May 24, 2013 decision of UK’s High Court of Justice.

With a question of damages still pending, the parties terminated the litigation with a settlement on undisclosed terms.

Eric P. Robinson blogged that the case “shows — if anyone still had doubts — that tweets can indeed be libelous.”

“In short — appropriate for Twitter — a libel is a libel, no matter how few characters it contains,” Robinson concluded.

A BBC report in 2012 about alleged sexual abuse in a Welsh foster-care home in the 1970s and 80s communicated an allegation by a victim that one of the abusers was a leading Tory politician, but no particular person was named. Social media speculation following the BBC report then centered around Lord McAlpine.

Then came the libelous tweet from Bercow:

Why is Lord McAlpine trending? *Innocent face*

It turns out Lord McAlpine was not an abuser. The ensuing scandal led to the resignation of the head of the BBC.

It appears Sally Bercow abandoned Twitter.

The case is a good example of how defamation can happen indirectly, and by implication. It also provides a good point of contrast with American law – UK law on libel is much stricter and not subject to the strong protections that we have under the First Amendment on this side of the Pond.

For a full unpacking of the facts and law, read Robinson’s thorough post on Blog Law Online.

Moore Tornado

May 21st, 2013 by Eric E. Johnson

The terrible tornado that hit Moore, Oklahoma was just a few miles north of where I live in Norman. It was visible from the hill where I live – although only indirectly. The funnel could not be seen through the rain, but the power flashes were clearly visible. Here you can see some of my neighbors watching.
From the time that the tornado hit until 9:15 p.m., internet and television were not functioning in my neighborhood. It was a day of listening to the radio. No pictures, no interactivity, just the audio simulcast of KWTV’s television coverage. One reporter almost wretched on the air when coming across a victim who was impaled. Another left a long stretch of dead air when she was unable to continue talking after discussing the reaction of a parent of one of the children lost at an elementary school.

Would Bloggers Be Covered By a Federal Shield Law?

May 17th, 2013 by Eric E. Johnson

Since the news of the Justice Department getting their hands on phone records of the Associated Press – without the AP’s cooperation – there has been new talk of a federal shield law.

But how broad would the shield law be? To cut to the chase: Would if cover bloggers?

The issue was nicely teed up in a PandoDaily post yesterday by Adam L. Penenberg:

[W]hen you’re trying to craft laws to protect journalists from having to disclose the identities of confidential sources, the first thing you must do is define what a journalist is. Unfortunately, that’s not so easy, because, well, what is a journalist? I’ve been working as one for almost 20 years, and I couldn’t give you a definition. What’s more, I don’t know anyone who could. More to the point, how do you cover everyone who should be covered in this day, when everybody can be his or her own publisher but not cover those who shouldn’t be protected?

Mr. Penenberg’s post does a nice job of exploring the range of possible ways to deal with that question in surveying some of the many state shield laws in the U.S. and giving some of the history of how false starts on a federal shield law in recent years have dealt with the blogger question.

Of course, there’s also the separate scope question of a national-security exception. With such an exception, the question of who counts as a journalist may often be academic.

Famed Media Lawyer James C. Goodale Calls Out Obama on Press Freedom

May 16th, 2013 by Eric E. Johnson

Daily Beast logoFamous media lawyer James C. Goodale (who I was lucky enough to meet when I was a summer associate at his law firm in New York in 1999), has written a provocative piece for the Daily Beast that I think is worth a read: Is Obama Worse For Press Freedom Than Nixon?

Goodale argues that Barack Obama’s campaign to stamp out leaks is trampling on the freedom of the press. He notes that the Obama administration has obtained more indictments of leakers – a total of six – than any other American president. (That’s a factoid I found somewhat surprising.)

To avoid making bad history, Goodale urges the Obama administration to drop any effort to prosecute Wikileaks founder Julian Assange under a theory that the conspired with the Army’s Bradley Manning to violate the Espionage Act. Doing so would breathe life into a legal theory that Goodale calls “extremely dangerous to freedom of the press.”

Such a prosecution, Goodale explains, “would only require that Manning agreed with Assange to leak information. This would be far easier to prove than trying to prove Assange, in fact, violated the Espionage Act.” Going there would “put in jeopardy the gathering of national security information by any reporter and so criminalize the newsgathering process.”

New Booklet on Citizen Journalism Law in Massachusetts

May 15th, 2013 by Eric E. Johnson

Newsgathering in Massachusetts coverHarvard Law School’s Digital Media Law Project and Cyberlaw Clinic have released a booklet called Newsgathering in Massachusetts, available as free-to-download pdf.

It’s an information-packed reference tailor-made for citizen journalists, and it includes coverage of
open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.

Massachusetts is an especially interesting state for this area of the law. The Boston-born case of Glik v. Cunniffe, discussed in the booklet, is one of the most important citizen-journalist cases to come down the turnpike in the digital era. In that case, a Simon Glik was arrested in Boston Common for filming the police making an arrest of a homeless man. With the help of the ACLU, he got the U.S. First Circuit Court of Appeals to recognize a First Amendment right to videotape in public places.

Kudos to DMLP and the Cyberlaw Clinic for putting this together.

The Citizen Media Law Project Has Changed its Name to the Digital Media Law Project

May 14th, 2013 by Eric E. Johnson

Harvard Law School’s Citizen Media Law Project

CMLP logo

has changed it’s name. It’s now the Digital Media Law Project.

Digital Media Law Project logo

The change was effective March 1, 2013.

I know this change has been in the works for quite sometime. I remember talking to David Ardia, the program’s founder, about this in March of 2011.

I was a fan of “Citizen Media Law Project” as a name, but I like the new name too. Whether you use the word “citizen” or “digital,” the point is that this goes beyond a “media law project” in that it’s focused on the new reporting opportunities and legal threats that have been created and revealed by the democratization of the news media as fueled by computers and the internet.

I guess you could call it the “Non-Traditional Media Law Project,” but that’s pretty awkward. Even worse, it makes it sound like it’s the project that’s non-traditional, rather than the media. Any good copyeditor – even a non-traditional one – would see the problem with that.

So Digital Media Law Project it is. And the change is more than a change in name. There’s also a change in mission.

As project of Harvard’s Berkman Center for Internet & Society, the Citizen Media Law Project was launched in 2007 “to support the vibrant online culture of citizen media and independent journalism by providing free legal advice and information on a wide range of media law, intellectual property and business law issues,” as is explained on the project’s homepage.

With the change to “digital,” the project is acknowledging that reporters with their bona fides – that is, people who can be called “professional journalists” – are now increasingly working online and outside of a traditional media entity. They too face a uniquely challenging legal environment.

“Citizen journalists continue to do excellent work,” wrote Jeffrey P. Hermes, the project’s director, in a blog post about the change, “but professional journalists who believe in the potential of online speech have launched numerous independent ventures as well.”

So DMLP is broadening its focus. Hermes wrote, “Our project is no longer limited to addressing the narrow challenges faced by new and inexperienced entrants into the journalism market, but innovating to provide a comprehensive and mutually supporting set of resources to assist digital journalism as a whole.”

Best wishes to DMLP on their rechristening!

Tatyana Dumova on the Future of Blogging

May 13th, 2013 by Eric E. Johnson

Point Park University sealTatyana Dumova of Pittsburgh’s Point Park University has posted Social Interaction Technologies and the Future of Blogging to SSRN. It is published in Blogging in the Global Society: Cultural, Political and Geographical Aspects, pp. 249-274, T. Dumova & R. Fiordo, eds.(Information Science Reference 2012). Here is the abstract:

In an age of user-generated content, multimedia sharing sites, and customized news aggregators, an assortment of Internet-based social interaction technologies transforms the Web and its users. A quintessential embodiment of social interaction technologies, blogs are widely used by people across diverse geographies to locate information, create and share content, initiate conversations, and collaborate and interact with others in various settings. This chapter surveys the global blogosphere landscape for the latest trends and developments in order to evaluate the overall direction that blogging might take in the future. The author posits that network-based peer production and social media convergence are the driving forces behind the current transformation of blogs. The participatory and inclusive nature of social interaction technologies makes blogging a medium of choice for disseminating user-driven content and particularly suitable for bottom-up grassroots initiatives, creativity, and innovation.

Fighting to Protect Anonymous Yelpers in Virginia

May 10th, 2013 by Eric E. Johnson

White van with Hadeed carpet cleaning liveryIn an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

The amicus brief ([pdf]) argues, in part:

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

(Photo: joehadeed.com. Used without permission.)

Aurora Town Council Apologizes for Suing Bloggers

May 9th, 2013 by Eric E. Johnson

Train station in Aurora. (Photo: Secondarywaltz)

The town council of Aurora, Ontario has voted to make a formal apology to bloggers who were on the receiving side of a meritless defamation lawsuit brought by then-mayor Phyllis Morris in her official capacity.

The council’s motion, which passed 6-2, provided:

THAT the Mayor on behalf of Council, be authorized to issue a formal apology to those named in the action and to the community at large stating our commitment to freedom of speech and our regret that the Town of Aurora was ever associated with a SLAPP action … (Town Council Minutes [pdf])

Kudos to the members of the town council who voted in favor of the apology to bloggers Bill Hogg, Richard Johnson, and Elizabeth Bishhenden.

Councillor Michael Thompson, who, made the motion, explained his concept of responsibility: “There will be some who will say we are not the ones who should apologise because we did not create it, but this Council is now the ones who are responsible and accountable to this Town. Whether we create or inherit an issue, it is our role to act upon, if needed. In this case, I believe in the simple principle when you are wrong, do the right thing, admit it, and make amends where possible.”

One of the no votes was one of the people who had reason to take direct responsibility. Councillor John Gallo was one of the original votes on September 14, 2010 to hire outside council to pursue the bloggers. And Gallo was the lone vote against the council’s action to stop funding the legal campaign after the rest of the town council came to their senses.

Coverage:

Prior coverage on Blog Law Blog:

Thanks to vindicated blogger/defendant Richard Johnson for sending in the tip on this.

“Diabetes Warrior” Challenges North Carolina Licensing Board’s Attempt to Restrict his Blogging

April 22nd, 2013 by Eric E. Johnson
Steve Cooksey's before-and-after photos.

Steve Cooksey's before-and-after photos. (From his blog.)

A North Carolina diabetic blogger’s lawsuit may help answer the question of when occupational licensing laws can be used to restrict speech.

The blogger, Steve Cooksey, runs Diabetes Warrior, which answers questions sent in my readers about how to manage their disease.

It’s not surprising that Cooksey has raised eyebrows. His advice is decidedly anti-establishment.

“[Y]ou know that we have been lied to by Big Food, Big Pharma and the medical industry,” he tells his readers, “including doctors, diabetes educators, dietitians and nutritionists.”

Cooksey’s slogan is, “Diabetes Management from a Paleolithic Perspective.” Instead of insulin treatment, Cooksey advocates a “primal” diet – one patterned after what humans from the Stone Age would have eaten. His chief claim to expertise on the matter is his own experience as a diabetic. He blogs, “I have not taken a drug since March 2009. I have weaned off drugs and insulin completely… and I have normal blood sugar.”

A month after starting his blog in 2011, the North Carolina Board of Dietetics/Nutrition informed him he was engaging in the unlicensed practice of dietetics. As his public-interest law firm, The Institute for Justice, explains it:

[T]he State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service. The State Board went through Steve’s writings with a red pen, indicating what he may and may not say without a government-issued license.

So Cooksey sued to vindicate a free-speech right to blog as he sees fit.

He was dealt an early blow when a federal district court dismissed his case for lack of an injury. But the case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. Cooksey quotes his attorney, Jeff Rowes, as saying:

Under the First Amendment, a citizen is injured by the mere existence of a statute that regulates speech. And there are literally dozens of Supreme Court and federal appellate cases saying that you have standing when the government actually tells you that your speech is illegal. The courts have a very relaxed standard for bringing a First Amendment case because the right to free speech is considered to be so important.

Once the court of appeals recognizes that this is a First Amendment case, we expect it to rule that we have standing and send the case back to the district court to be litigated as a free-speech case.

I think occupational licensing, in general, is okay. It is sometimes badly needed to protect consumers from rank incompetence. But such statutes can conflict with free speech. And in this case, it seems to me that the North Carolina licensing authority has indeed gone beyond regulating a profession and has entered into the business of censorship.

(Another case along the same lines is that of Horace Hunter, an attorney in Virginia.)

Sadly, CISPA Passes U.S. House

April 18th, 2013 by Eric E. Johnson

U.S. Capitol dome in daytimeToday, sadly, the U.S. House of Representatives passed CISPA, the Cyber Intelligence Sharing and Protection Act (roll call).

The EFF, TechDirt, and the ACLU have explained why CISPA is bad. Basically, it tramples on civil liberties to give government the all clear to go spelunking through your personal data without a warrant.

CISPA now goes to the Senate. Please consider taking a moment to contact your senators to urge them to vote no on CISPA.