Archive for the ‘judges’ Category

The Full Order from Johns-Byrne v. TechnoBuffalo, Plus Excerpts

Tuesday, July 17th, 2012

Updating today’s earlier post, I have now posted the order [pdf] from Johns-Byrne v. TechnoBuffalo, in which the court denied Johns-Byrne’s attempt to find the identity of TechnoBuffalo’s tipster.

Also, here are some more excerpts from the opinion.

More to my point that the judge was not a fan of TechnoBuffalo, thus indicating that the decision in TechnoBuffalo’s favor wasn’t results-driven judging:

Reviewing the [TechnoBuffalo] website is disconcerting. The website makes it clear that TechnoBuffalo is inviting conduct which may or may not be legal and is very likely actionable. They solicit employees of tech companies to be “super secret ninjas” to “discover something top secret in your store’s inventory” and handover “inside information” to TechnoBuffalo who then disseminates it for their own purposes and who will “take your name to the grave.”

And more:

These solicitations are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed. … Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct, the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.

By the way, I do not buy that these solicitations are detrimental to the industry. Also, I don’t think it is accurate to say that Motorola is in “the intellectual property industry.” Moreover, an “intellectual property industry,” as such, tends not to be heavily reliant on employee confidentiality precisely because of intellectual property laws. Much of this line of argument comes from distorted ideas of what constitutes a “trade secret.” But, anyway, it goes to show that this decision was made on the law, not, as we say in the lawyering business, the “atmospherics.”

One more excerpt, in which we see what the court made of Johns-Byrne’s argument that what TechnoBuffalo peddles is not news but “hype”:

JBC asserts that the content of the article at issue, or moreover, any of the content posted on the TechnoBuffalo website, does not amount to legitimate news but is rather mere “commercial hype” and “entertainment.” However, these concepts or terms of art are nowhere to be found in the Illinois Act. The Act nowhere states that certain content is news and other content, like the “hype” or “entertainment” asserted by JBS, is not news. The content of the “news” simply is not discussed and is not a factor in determining the application of the privilege under the current language of the Act. … TechnoBuffalo’s article falls under the broad, plain meaning of “news.” Therefore, JBC’s attempt to distinguish “hype” from actual news is unavailing.

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Big Win for Bloggers: TechnoBuffalo Court Victory Shields Source of Leaked Photos

Tuesday, July 17th, 2012

stylized "B" logoJon Rettinger, the founder and editor of gadget blog TechnoBuffalo, e-mailed me to let me know that they have won in their attempt to shield the source of leaked images of a yet-to-be-released cell phone.

Judge Michael R. Panter of the Cook County Circuit Court granted TechnoBuffalo’s motion for reconsideration, thus denying plaintiff Johns-Byrne Company, a commercial printer who made the packaging for the phones, the ability to find who in their company leaked the photos.

This is a substantial legal victory for the blogosphere, because it puts blogs on a potentially equal footing with mainstream news media when it comes to the special legal privileges that allow journalists to keep sources anonymous.

Whether blogging will inherit the privileged legal status of the traditional news media is, in my mind, the biggest question in blog law. This case strongly suggests the answer should be “yes.”

The key issue in applying the Illinois law was whether a blog would count as a “news medium.” Judge Panter decided it did, applying the law straightforwardly:

The issue of whether a blog/news site such as TechnoBuffalo is to be treated as a “news medium” is novel and has seldom been dealt with by other states containing shield laws. … “News” is defined by wwww.merriam-webster.com as “a report of recent events” and “previously unknown information.” Similarly Dictinary.com [sic] defines “news” as “a report of recent events.” Under the ordinary meaning of “news,” the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo’s article falls under the broad, plain meaning of “news.” … In sum, withing the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.

I applaud Judge Panter’s decision not only because it was, in my judgment, the right one, but even more so because it wasn’t results-driven jurisprudence. Judge Panter made it clear was was not love-struck with the scoop-savvy blog, which solicits anonymous tipsters:

Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious. It may weaken the very industry that TechnoBuffalo depends upon. It may itself be actionable under the statutes and authorities JBC cites. However, as of this writing, it cannot be excluded from the extremely broad protection of the journalistic privilege.

That’s an excellent example of good judging.

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Court in Texas Should Uphold the Full Lousiness of Patent Law

Friday, February 24th, 2012

Over on my Pixelization blog, I’ve explained why I think a ridiculous patent that threatens Silicon Valley should have carried the day in a federal court in Texas:
Court in Texas Should Have Upheld the Full Lousiness of Patent Law

Jury Instructions Regarding Blogs, Twitter, and Facebook

Wednesday, January 11th, 2012

New trends in how juries are being instructed about social media have been a recurrent topic on this blog. I thought it might be interesting to let you see that those Jury instructions actually look like in the flesh.

These particular jury instructions come from a Missouri automobile-collision negligence case, Molina v. Harlan. The full instructions comprise 1641 words. (I’ve put the whole set of instructions in the Blog Law Blog library.) The portion concerning juror research or communication about the case is 335 words (so, it’s a little more than a fifth of the whole thing).

One thing that strikes me as kind of funny, right off the bat, is that even as the instructions are an attempt to stay in step with the times, they show an old-school haplessness with punctuation and capitalization. Not only do they capitalize “Internet,” but they lowercase and place in quotes “‘facebook’,” “‘myspace’,” and “‘twitter’.”

What’s up with that? Does the court think that “facebook” is some kind of slang that the young kids are using? It’s very odd.

And, of course, another sign of out-of-touchness is any reference at all to Myspace.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.
If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.

Judge Posner Worried By Mic-Wielding Bloggers

Tuesday, September 27th, 2011

Hon. Richard A. Posner (Photo: U. Chicago)

Illinois has an eavesdropping and wiretapping statute that prohibits making an audio recording of any conversation without the consent of all persons involved. This applies not only over the phone or in a private place, but even in a public place. And even when the conversation is with public officials concerning a matter of public concern. Violations can be prosecuted as felonies, and civil suits are authorized as well.

If you don’t think that sounds constitutional, I’m inclined to agree. And so is the ACLU, who is suing on behalf of several people arrested for secretly recording on-duty police officers. The civil liberties group is challenging the law in ACLU v. Alvarez.

On appeal to the federal Seventh Circuit, the ACLU faced questioning by a panel that included America’s most famous federal circuit judge, the Hon. Richard A. Posner. His questioning was alarming. Just 14 words into his argument, ACLU lawyer Richard O’Brien was interrupted with this:

“Yeah, I know … But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”

Huh? Really? Ferreting out public corruption, abuse of power, obstruction of justice by those charged to guard it – all that sounds interesting to me.

Posner proceeded to worry about how striking down the law could aid snooping bloggers:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Such a thing as privacy for on-duty police officers? Even when they are in public or interacting with civilians? Gosh, I can’t get behind that.

Justin Silverman at CMLP has an extremely thoughtful post on the matter. He writes, “Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.”

Jonathan Turley also is taken aback. He writes on his blog, “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. … As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering ‘who will rid us of these meddling citizens?,’ they appear to have one jurist in Illinois not just ready but eager to step forward.”

Unfortunately, the facts of the case show that Turley’s comment is not the hyperbole you wish it were. The story told by one of the plaintiffs in the suit, Tiawanda Moore, is terrifying: She was groped in her home by a Chicago police officer who had responded to a domestic disturbance call. Moore was brave enough to take the issue to internal affairs. But they tried to deflect her complaint and sought to dissuade her from pursuing the matter. In the interests of protecting herself, she began to secretly record her conversations with investigators on her Blackberry.

When the recordings came to light, Moore was arrested and charged with violation of Illinois’s eavesdropping statute. Sadly, prosecutors took the case to trial. But in a strong affirmation of the role of civilian jurors, the jury acquitted her of the charge.

Just a few weeks ago, the First Circuit ruled that there is a constitutional right to record police actions in public places. Hopefully the Seventh Circuit will follow the lead and clear the way for snooping bloggers and sexually harassed citizens alike to be free to record the police in the City of Big Shoulders.

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Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

Keith J. Bybee: Blogs and Newspapers and the Images of Judging

Thursday, February 24th, 2011

Keith J. Bybee of Syracuse University College of Law and SU’s Maxwell School has posted to SSRN his paper, Will the Real Elena Kagan Please Stand Up? Conflicting Public Images in the Supreme Court Confirmation Process. The article will appear in the Wake Forest Journal of Law & Policy, Spring 2011.

Here is the abstract:

What images of judging did the Kagan confirmation process project?

My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decision-making, with a portrait of judging as a matter of reason and principle vying for attention with a picture of judging as a political enterprise.

Second, I identify the different appearances of judicial action actually at play in the Kagan confirmation process by assessing all confirmation-related news articles, editorials, opinion pieces, and blog posts published in the Washington Post, the New York Times, and the Los Angeles Times. I find that the confirmation coverage in the three newspapers conveys a contradictory mix of images that closely corresponds to the contradictory views of the Court already held by large numbers of Americans.

Finally, I consider the significance of the Janus-faced public beliefs about the Supreme Court. I acknowledge the ways in which political perceptions can chip away at judicial legitimacy, but I also argue that the public’s competing views may ultimately have a stable co-existence. If we believe that individuals generally place contradictory demands on the courts, calling for an objectively fair system and at the same time seeking a guarantee that their own side will prevail, then a judiciary that appears at once to be governed by impartial principle and by partisan preference may cohere.

Margaret Tarkington on Impugning Judges

Tuesday, February 1st, 2011

Mauricio Hernandez, a Blog Law Blog reader and an attorney in my home state of Nevada, e-mailed me about the work of Professor Margaret Tarkington of BYU’s law school. Tarkington has written on a somewhat obscure corner of lawyer ethics – the rule subjecting lawyers to discipline for impugning the integrity of a judge.

Model Rule of Professional Conduct 8.2 says “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 Boston College Law Review 363 (2010), Tarkington notes several cases where attorneys and even their clients have been sanctioned for calling into question a judge’s fairness, even when those comments were made in court filings and were relevant to the matter at hand – such as arguing that a client was denied due process because of a biased judge.

From a blog law perspective, I’m particularly interested in the out-of-court/online expression of attorneys. As blogs open up more and more opportunity for attorneys to make their opinions known, I imagine there will be more judges with wounded sensibilities who will want to sanction attorneys. As a lawyer and law professor, I have tremendous respect for judges. But at the same time, I think it is particularly important that judges should be subject to criticism, and even invective when someone is moved. Ultimately, the rule of law is better safeguarded by thriving freedom of expression directed at the judiciary than a erecting a legal rampart to deflect unwanted words.

I like what Tarkington says here:

The speech at issue is by definition political speech—speech regarding the qualifications and integrity of public officials—and thus is entitled to the fullest protection offered by the Constitution. But rather than protecting such speech, courts have imposed viewpoint-based punishment regardless of the forum in which the speech is made, whether to the press, on blogs, in personal letters, or otherwise. Suppressing attorney speech regarding the judiciary frustrates democracy by denying the right of the attorney speakers to contribute to the robust, uninhibited, and wide-open debate regarding public officials that is central to our ability to self-govern. Such suppression correspondingly denies the right of the public to receive opinions from those who have the education, training, and exposure to best offer informed views regarding the judiciary. This manipulation of public debate regarding the judiciary in turn frustrates the ability of the public to employ democratic correctives to check the abuse of judicial power and allows for judicial self-entrenchment.

Id. at 431

Internet Speech Freedom on the Line in Paris

Monday, January 31st, 2011

Professor Joseph H.H. Weiler

Joseph H.H. Weiler, an extremely well-regarded scholar of international law (and my teacher back in law school) has completed his criminal trial for libel in France. The verdict isn’t due back until March 3rd, but Weiler’s account of the trial is up on his journal’s blog, and it’s great reading.

The case stems from an unflattering review of Dr. Karin Calvo-Goller’s book The Trial Proceedings of the International Criminal Court. Weiler didn’t write the review, but he did publish it on Global Law Books, a website of the European Journal of International Law. Weiler is and was editor-in-chief of the EJIL.

Calvo-Goller was offended and demanded that Weiler pull the review down. Weiler offered to publish Calvo-Goller’s response, but he refused to remove the review. After his investigation, Weiler determined the piece contained no factual inaccuracies.

While the case involves a book review, not a blog entry, the stakes for blog law are high. That’s because of what Calvo-Goller did next.

She didn’t sue Weiler where he lived. Instead, Calvo-Goller filed a criminal complaint in Paris.

From Weiler’s post:

Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? …

Paris … is very plaintiff friendly.

In France an attack on one’s honor is taken as seriously as a bodily attack. Substantively, if someone is defamed, the bad faith of the defamer is presumed just as in our system, if someone slaps you in the face, it will be assumed that he intended to do so. Procedurally it is open to anyone who feels defamed, to avoid the costly civil route, and simply lodge a criminal complaint. At this point the machinery of the State swings into action.

The French Republic v. Weiler has been brewing for a while. But this month, it  finally went to trial.

The trial took place in in France’s version of Old Bailey – the hallowed Tribunal de Grande Instance de Paris,
where Émile Zola was tried for libel over the publication of his J’accuse! letter. More than 100 years later, France is still criminally prosecuting alleged libel.

Especially interesting for me was Weiler’s account of the procedural aspects of the quick trial, which he described as “a strange mélange of the criminal and civil virtually unknown in the Common Law world.”

Despite its unfamiliarity, Weiler expressed considerable admiration for a procedure that was steadfastly “aimed at establishing the truth.”

“The trial was impeccable by any standard with which I am familiar,” Weiler wrote in the post. “Due process was definitely served. It was a fair trial.”

Read Weiler’s full account. It’s worth it. The stakes in this case are high. Blog freedom, along with Weiler, is “in the dock.”

Righthaven Loses Early on Fair Use

Monday, November 1st, 2010

Thugster slayer Michael Nelson

Righthaven has lost a copyright infringement case because of a successful fair-use defense raised at the earliest procedural opportunity. The case is Righthaven LLC v. Realty One Group, Inc., 2:10-cv-1036-LRH-PAL.

In May 2010, Michael J. Nelson, a Las Vegas realtor, posted a portion of a Las Vegas Review Journal news story about a federal housing program on his blog, www.michaeljnelson.featuredblog.com. Righthaven took a copyright assignment from the Review Journal and pounced with a federal lawsuit. Happily for bloggers everywhere, instead of caving and forking over a low-dollar-value nuisance settlement, Nelson fought back and claimed that what he did was legally protected fair use.

The court agreed.

Of key importance for the court was that Nelson copied only eight sentences of a 30-sentence story, and the portion he copied was of a factual nature, as opposed to the portion which contained the reporter’s commentary.

U.S. District Judge Larry R. Hicks made short work of the case in a four-page order.

The court found that the first fair-use factor – purpose and character of the use – weighed against Nelson because he used his blog to promote his realty business. The second factor – nature of the work – weighed in Nelson’s favor because the portion of the news article copied was factual in nature. The third factor – amount and substantiality of the portion of the copyrighted work used – weighed in favor of Nelson, the court held, since he only copied eight sentences from a total of 30 in the news story. The fourth factor – effect on the potential market – weighed in Nelson’s favor as well. Regarding this factor, the court said:

The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson’s use supports a finding of fair use.

That line of analysis portends very well for other bloggers sued by Righthaven.

Now I’d like to see Nelson file a motion to get attorneys’ fees.

Nelson’s case seems like a great victory for free speech and fair use, but there’s a sad postscript: As of the time I am writing this post, Nelson has removed all the content from his blog.

So Righthaven has lost, but free expression has lost too.

Jury Instructions on Blogs

Tuesday, October 26th, 2010

For a while now, trial judges have been careful to warn juries against using social media to communicate about their trial. Here is an example of how that is being done. Below are recent jury instructions from the case of Digital Ally, Inc. v. Todd Elder & Co. from a state court in Jackson County, Missouri.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, layers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post anything about his trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

The complete document is available on Westlaw at 2010 WL 3417831.

Does the R. Allen Stanford Criminal Trial Gag Order Apply to Blogs?

Tuesday, October 5th, 2010

Noting that there has been a willingness to attempt to try the R. Allen Stanford / Ponzi-scheme case in the press, Judge David Hittner of the U.S. District Court for the Southern District of Texas issued a sua sponte gag order [pdf] in the case on Friday.

Here’s the operative section:

[T]he Court hereby

ORDERS that from this date until the final disposition in this case: [the attorneys, the parties, all witnesses, and alleged victims,] their representatives, and their agents, including publicity agents, shall not give, authorize, or permit any extrajudicial statement to any person associated with any public communications media relating to the trial, the parties, the witnesses, or the issues in this case, which [may interfere with a fair trial and which is not public record].

Now, you tell me: Does that stop the victims, parties, and attorneys from blogging about the case?

The phrasing of the order is definitely from the era of old media. It’s written as if the people subject to the gag order are not themselves associated with “public communications media”. These days, aren’t we all?

On the face of it, it doesn’t look like the order bans blogging. But I can’t believe that Judge Hittner meant to bar parties and witnesses from trying the case on CNBC but meant to allow them to try the case in the blogosphere.

As a point of comparison, we are now seeing jury instructions that explicitly ban blogging by jurors about their cases. So why wasn’t this order phrased with the web in mind? This sure looks like another example of the judiciary failing to keep pace with changing times.

Vegas Court Rules it has Jurisdiction Over Out-of-State Righthaven Defendant

Wednesday, September 8th, 2010
Street-level view of modern Lloyd D. George U.S. Courthouse in Las Vegas in daytime

The Lloyd D. George U.S. Courthouse in Las Vegas

Judge Roger L. Hunt of the U.S. District Court for the District of Nevada in Las Vegas has ruled that his court has jurisdiction over an out-of-state defendant in one of the Righthaven copyright infringement suits.

Righthaven is thugster ad litem for the Las Vegas Review-Journal in a campaign of no-warning copyright infringement suits filed against bloggers and others who have reposted stories or portions of stories from the newspaper.

Many Righthaven defendants were hoping to get their lawsuits dismissed for lack of personal jurisdiction. With this ruling, it appears defendants will have to look to other tactics if they are to ward off Righthaven claims.

In a case against a Texas law firm, Righthaven LLC v. Dr. Shezad Malik Law Firm P.C. (Case No. 2:10-cv-0636-RLH-RJJ), Judge Hunt denied a motion to dismiss with an order employing analysis that would seem to be applicable to all Righthaven defendants:

… Defendant itself cites to a case both on point and dispositive of this issue. Applying the “effects” test of Calder v. Jones, 465 U.S. 783 (1984), the Ninth Circuit found that where a defendant “willfully infringed copyrights owned by [the plaintiff], which, as [the defendant] knew, had its principal place of business in the Central District [of California], “[t]his fact alone is sufficient to satisfy the ‘purposeful availment’ requirement.” Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir. 1994). It is common knowledge that the Las Vegas Review Journal newspaper is published and distributed in Las Vegas, Nevada by the party which assigned the copyrights together with the right to seek redress for past, present and future infringements. Accordingly, this Court has jurisdiction over Defendant, based upon the allegations of the Complaint.

Steve Green reported the decision in the Las Vegas Sun.

10th Circuit Opinion Discusses Something Called a “Blog”

Wednesday, June 23rd, 2010

A slip opinion issued June 14, 2010 by the 10th Circuit in the case of Silver v. Brown shows that the federal appeals court is worried that you might not know what a blog is. The opinion, written by Circuit Judge Monroe G. McKay, puts quotations marks around the word “blog” when first using it:

The basis for Mr. Silver’s personal tort claims for slander, defamation, and duress against Mr. Brown and Mr. McMullen was a “blog” that Mr. Brown posted to the internet regarding this conflict, with the intent of negatively affecting Mr. Silver’s and Santa Fe’s reputation.¹

[Footnote:] ¹ A “blog” is short for “weblog” and is defined as “a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer; also: the contents of such a site.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/blog (last visited May 13, 2010).

Judge McKay wouldn’t be the first judge to do this. But as of right now, he appears to be the last.

At least “internet” is no longer drawing quotation marks.

(The slip op may be found on Westlaw at 2010 WL 2354123.)

Blogger Blights Bench

Tuesday, May 11th, 2010

Via FindLaw: Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger by Anita Ramasastry.

(Ha’p: Media Law Profs)