Archive for the ‘New York’ Category

CJR: Who’a a Journalist? – NYPD’s Credentialing at Occupy

Wednesday, January 4th, 2012

Columbia Journalism Review
An article by Erika Fry in the Columbia Journalism Review investigates an intriguing question arising out of the police action against people reporting on the occupy protests in New York. With bloggers and other non-traditional reporters seeking to avoid being swept up by the New York Police Department, Fry asks: Who’s A Journalist?

The article’s a great read, and it gets at one of the essential questions of blog law – to what extent are bloggers entitled to be treated by the police and the government like traditional journalists?

The particular object of Fry’s scrutiny is the NYPD’s system for issuing press credentials to reporters. The credentials help in official and unofficial ways, getting reporters access to press conferences and allowing them to avoid hassles at crime scenes and to avoid roundups of crowds. The way the NYPD doles out press credentials has been hotly criticized. But for bloggers, things are, at least, better than they used to be. Fry writes:

Yet this system, backlog and all, is roundly considered by journalists and civil liberty types to be an improvement over the NYPD’s press credentialing process that was in place until 2010, and was notorious for being opaque and inaccessible to bloggers and journalists from nontraditional media organizations—so much so that three men filed a lawsuit against the NYPD for unfairly denying them credentials in 2008. As Gothamist reported at the time, the reforms to the system in 2010 were intended to “help the Police Department modernize the City’s credentialing system to reflect changes to the media industry and, for the first time, expressly incorporate online-only media such as blogs.”

Legal Guide to Blogging Occupy

Wednesday, October 19th, 2011


Photo: David Shankbone, CC BY 2.0.

The wonderful folks at the Citizen Media Law Project of Berkman Center at Harvard Law School have put together a guide for citizen journalists covering Occupy Wall Street. They have done a tremendous job of going through the relevant law in a very comprehensive, yet very concise way. And it makes for interesting reading even for those who are not planning to go to Zuccotti Park and blog, tweet, or snap pictures for Flickr.

Among the questions they tackle:

  • Do I have the right to record police action at the protest?
  • Do I have a right to record the protesters?
  • May the police search me?
  • May the police seize my camera and view its contents?

Here are just a few interesting tidbits from the guide:

  • “There is no law in New York that prohibits the publication of private facts about individuals, and so you cannot be sued in civil court for publishing such facts” [Other states are contrary –EEJ]
  • “You might also have a specific First Amendment right to record the activities of the police in public. This right has been recognized in jurisdictions outside of New York, and would trump any state law that would otherwise prohibit such recording. However, no New York court has ruled on the existence of this right.” [Wouldn't it be interesting if Occupy Wall Street forced the issue in this jurisdiction? –EEJ]

Freelancer Litigation from 1990s Has No End in Sight

Monday, August 22nd, 2011

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

Prosecutor Michael C. Green Should Resign

Tuesday, June 28th, 2011

Monroe County District Attorney Michael C. Green (Photo: Monroe County)

Prosecutors have dismissed their case against Emily Good, who was arrested for video recording Rochester, N.Y. police officers during a traffic stop. Good, who was doing the filming while on her own property, was charged with “obstructing government administration.”

The entire affair was a rank abuse of power.

The police involved should be disciplined. Many have chimed in to call for that, and an internal review is pending. But what I have not seen much discussion of is the role of the DA’s office in this.

Good was arrested May 12. It took until yesterday, June 27, for the DA’s office to get rid of this case. That is, they waited until after a media firestorm and protests erupted. The fact is, Good never should have been charged. The DA’s office in Monroe County, N.Y. failed in its obligation to protect the public trust. Instead, the district attorney’s office used its resources to intimidate a citizen obviously exercising constitutionally protected rights.

Monroe County DA Michael C. Green should tender his resignation immediately.

Unless there is something big that I’m missing – such as Green being in a coma for the last month – he bears the responsibility for the lion’s share of this disgrace. The police arrested Good. But it was the DA’s office who pursued the case.

The Monroe County DA’s office is a big place, and I understand that, but there is no way this could have escaped Green’s attention early on. Green should have taken action immediately to dismiss the charges and set this right. Instead, by pursuing the case as far as he did, Green – who is an elected official – sent a clear message that he will use the power of his office to protect local government from citizen scrutiny and intimidate its critics.

And, by keeping this going, he forced Good to hire a lawyer to defend herself from these sham charges. Someone had to pay for that. And no citizen should have to endure it. Absolutely outrageous.

Shame on Mike Green.

More:

Zuckerberg is Officially a Californian, Sorry New York

Monday, April 4th, 2011

A federal court in New York, after thinking through the issue thoroughly, has decided that Facebook founder Mark Zuckerberg is domiciled in California. That means that the federal court will hold on to jurisdiction in Ceglia v. Zuckerberg, instead of kicking it to state court. Oddly enough, it doesn’t look like Zuckerberg’s Facebook profile information settled the issue. Evan Brown blogs it.

Courtney Love Going to Trial for Tweet Libel

Thursday, January 6th, 2011

Courtney Love’s facing a civil trial in February for tweeting that fashion designer Dawn Simorangkir was a drug-pushing prostitute. If you’re looking to be a defamation defendant, that’s a good way to do it. Almost as on target as these folks.

Apparently Simorangkir was in a spat with Love over unpaid bills on a few thousand bucks worth of clothes.

I know an attorney in LA who sued Love a few years ago over unpaid wages owed to his clients. It was pretty funny to hear him describe his troubles in trying to serve the papers on her. I think he finally got her cornered at the Grammys.

But back to Simorangkir v. Love. THR, Esq. reports that Love may be planning a sort of insanity defense:

Love’s attorneys have their own witnesses, including a medical expert who plans to testify that even if Love’s statements were untrue, her mental state was not “subjectively malicious” enough to justify the defamation lawsuit.
That claim — something akin to an insanity defense for social media — suggests that Twitter was so appealing and addictive for Love that she had no appreciation for how the comments she posted would be received by others.

That’s just funny. And it really makes it sound like Love’s going down in flames. The only thing that makes Love’s litigation prospects look dimmer is this quote from her lawyer:

“We don’t believe there’s any defamation, and even if there were defamatory statements, there was no damage,” says James Janowitz, an attorney for Love.

But, you know, assuming just like THEORETICALLY that it’s defamatory to accuse someone of being a drug-pushing prostitute, we feel there’s a good backup argument on damages. Yikes.

Read the whole thing from Matt Belloni in THR, Esq. It’s totally worth it.

Fired Lawyer and Sex Blogger Sues Allen & Overy

Monday, December 20th, 2010

From the homepage of self-described "naked poet," Deidre Dare (a/k/a Deidre Clark)

Deidre Clark was fired from the Moscow office of London-based law firm Allen & Overy after it came to light that she was behind the online identity of Deidre Dare (NSFW).

Clark, a lawyer from New York, blogged about her sex life and penned an online book, Expat, about sex and drugs in the Russian capital, which she said was based on her own experiences at A&O.

Word from A&O is that Expat used names of A&O employees and even the name of a client.

In addition to her book, Clark’s website contains poetry, philosophical musings, and a set of boudoir photos of herself. Let me warn you: Her whole site should be considered NSFWUYHTEOBALP (Not Safe For Work Unless You Have The Excuse Of Being A Law Professor).

She is now suing her former employer for wrongful termination, seeking more than $5 million in damages.

I don’t know much about British or Russian employment law, but my thought would be, good luck with that!

Is the Tyler Clementi Act a Threat to Free Speech?

Thursday, December 16th, 2010

David French in the National Review Online argues that the Tyler Clementi Higher Education Anti-Harassment Act (H.R. 6425) is a threat to free speech.

As I mentioned previously, the bill specifically targets cyberbullying and includes blogging activity within its coverage. My discussion of the bill is here.

French’s argument is that the bill has First Amendment problems because it lacks a requirement that the harassment be “objectively offensive.”

I see his point, but I think he’s off the mark. The text of the bill requires that the harassment be:

sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment at an institution of higher education

That seems to me to be limiting enough to protect legitimate expressive interests. At the same time it seems specifically tailored to protecting a person’s ability to benefit from a federally funded educational program.

In fact, the bill’s current limitations seem to be more protective of free speech interests than an “objectively offensive” requirement would be by itself.

An objectively offensive requirement would presumably make a jury issue out of how far the content of the speech deviates from community norms. That sounds to me like a device that could marginalize minority viewpoints and cause more First Amendment problems than it solves.

At any rate, I certainly disagree with French’s assertion that the law’s “primary effect will be a greater chill on free expression.” I think the primary effect would be communicating to gay students society’s revulsion at gay-bashing, as well as our commitment to allowing all students, regardless of sexual orientation, to benefit from America’s educational opportunities.

Federal Law Would Require Colleges to Prohibit Harassment by Blog

Tuesday, November 30th, 2010

U.S. Capitol dome in daytimeIn response to the suicide of Rutgers University student Tyler Clementi, Rep. Rush Holt (D-NJ) and Sen. Frank Lautenberg (D-NJ) have introduced in Congress the Tyler Clementi Higher Education Anti-Harassment Act, H.R. 6425.

Clementi killed himself by jumping from the George Washington Bridge over the Hudson River after fellow students secretly videotaped an intimate encounter Clementi had with another man and uploaded it to the internet.

The bill specifically targets cyberbullying and thereby brings within its ambit blogging.

If enacted as law, H.R. 6425 would require higher-ed institutions, as a condition of participating in federal financial aid programs, to prohibit “harassment” of students by faculty, staff, and other students, whether that harassment is done on or off campus, and it would include harassment through the use of university computer networks.

Under the bill, “harassment” is defined as:

conduct, including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility (including conduct that is undertaken in whole or in part, through the use of electronic messaging services, commercial mobile services, electronic communications, or other technology) that –

(I) is sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment at an institution of higher education; and

(II) is based on a student’s actual or perceived — race; color; national origin; sex; disability; sexual orientation; gender identity; or religion.

[
some signposting removed]

The bill would also establish a grant program for activities aimed at preventing harassment.

I’m not sure how much good this law would do. Will people sufficiently evil to do what was done to Tyler Clementi be deterred by a campus policy? It seems unlikely. But since you can’t legislate tolerance and compassion, I suppose you do what you can do. If nothing else, a new federal law would be an expression that our society’s self-ascribed moral character is incompatible with bullying young people on the basis of sexual orientation.

More: OpenCongress, NJ.com

Inimai Chettiar and James Scott Holladay on the Economic Benefits of Net Neutrality

Wednesday, November 24th, 2010

Inimai Chettiar of the NYU School of Law and James Scott Holladay of NYU School of Law’s Institute for Policy Integrity have posted to SSRN Free to Invest: The Economic Benefits of Preserving Net Neutrality.

Here is the abstract:

It is hard to imagine a future where the value of the Web takes a downward spiral: where less content is created, online access is less useful, and fewer people log on. Currently, thousands of new websites and applications are constantly created. The content attracts millions of new users who email, tweet, blog, and discuss the information on the Web freely. Net neutrality supports this open and entrepreneurial dynamic which helps to create billions of dollars in free value for the American public. In Free to Invest, the Institute for Policy Integrity warns of negative economic consequences if net neutrality is weakened. The report arrived at five main findings that describe the trade-offs of revoking net neutrality.

Suit Says Mom Blogger Promised Puff Piece for Dental Work

Thursday, October 28th, 2010


From Jose Martinez in the New York Daily News: Mommy blogger Lyss Stern agreed to write puff piece to pay off $45K dental bill then reneged: suit Almost as soon as Lowenberg & Lituchy DDS filed the lawsuit in Manhattan Supreme Court, they said they were filing paperwork to dismiss it. Odd.

Blog Post Accusing Town Officials of Sexism Helps Discrimination Claim Survive

Friday, July 16th, 2010

An opinion from a federal court in New York has cited blogged accusations of sexism as part of a set of allegations sufficent to uphold a constitutional equal-protection gender discrimination claim brought by a real estate developer against government officials. The complaint stems from rejected requests for zoning changes.

The case is Catcove Corp. v. Heaney, No. 08-CV-4156 (JS)(ETB), E.D.N.Y., Seybert, J., presiding. The opinion is at 685 F.Supp.2d 328. Here is the excerpt about the blog post:

Plaintiffs also allege an Equal Protection violation based upon sex discrimination. Specifically, Plaintiffs allege that: (1) Mr. Heaney “possessed [ ] a clear bias against women,” and that “women were discriminated against” within Southampton; (2) in a local blog report, “several women” described “Heaney and his administration’s ‘Neanderthal’ Town Legal Staff-to be disrespectful, misogynistic and crude”; (3) Mr. Heaney “discriminate[d] against Ms. Gotthelf because she is female” and wanted “to force her to sell her properties” to his “male friends,”; (4) Mr. Murphee said that he liked Plaintiffs’ proposed project, but “wanted a real developer to develop it”; and (5) Messrs. Heaney and Murphree coerced Plaintiffs to sell a different property to one of “defendants’ ‘good old boys.’ ” (Amend. Compl. ¶¶ 32, 35, 41, 46, 51). Given these allegations, the Court will permit Plaintiffs’ sex discrimination claims against Mr. Heaney and Mr. Murphree to survive-for now. With respect to Mr. Heaney, Plaintiffs have pled enough factual allegations to suggest that Mr. Heaney possessed an animus towards women and favored male developers over Ms. Gotthelf. These allegations (and reasonable inferences drawn therefrom) suffice to set forth a “plausible” claim against Mr. Heaney, albeit barely.

Also interesting in the opinion: other parts of the lawsuit – ones not concerning blogs apparently – led the judge to impose Rule 11 sanctions on the plaintiff. Claims against certain defendants were, according to the court, “utterly lacking in support.”

It’s not every day you see Rule 11 used.

The court was merciful however, saying that “only mild sanctions” were warranted, leveling a $1,000 fine.

Podcast on Bloggers’ Use of Mainstream News

Thursday, July 8th, 2010

A podcast from the Legal Talk Network tackles the issue of bloggers’ legal and ethical obligations regarding use of material from mainstream news sites. In the piece, lawyers Robert J. Ambrogi and J. Craig Williams interview Alan Schwarz, sports reporter for the The New York Times. Schwarz is critical of bloggers who go too far in using copyrighted content. Schwarz says:

When you create your own work, you have rights to its dissemination. You know, this whole information, you know, “wants to be free” business is a bunch of hooey. It’s preposterous. And an entire generation of Americans has grown up with no respect for copyright law.

For the purpose of policing his own material, Schwarz has a Google alert set to notify him when a blog uses his name. I would assume many reporters do the same. (Hi, Mr. Schwarz!)

Note: This post was revised July 9, 2010, as explained here.

Jalopnik Libel Suit Settled by Deleting Post and Issuing Correction

Thursday, June 17th, 2010

Gawker Media has settled a defamation lawsuit with Confederate Motors over a post on its Jalopnik blog. Online Media Daily reports Gawker bailed out by deleting the post and issuing a correction, with no money being paid as part of the settlement. Gawker COO Gaby Darbyshire said the case was settled “because it was too trivial an issue to take to court,” adding that “[o]ne must pick one’s battles.”

The allegedly defamatory statement that passed the judge’s early scrutiny was that “Last we heard the Alabama-based company was being sued so heavily in state courts by disgruntled owners that they were unable to do business [in New York.]”

Gawker Media has backed off that representation with their correction.

The above quotes and an explanation of the case and the settlement are in Wendy Davis’s Online Media Daily story.

Ben Sheffner’s Copyrights & Campaigns blog has a March 2010 post describing the lawsuit and a June 2010 update on the settlement.

Confederate motorcycle on salt flats

A motorcycle of plaintiff Confederate Motors. It looks cool, no doubt. But the bike's maker has been hit with blog cracks about reliability problems and litigation turmoil. (Image: Confederate Motors)