Archive for February, 2011

Blogger Aiming to Force Righthaven to Give Back Settlement Money

Monday, February 28th, 2011

Steve Green of the Las Vegas Sun reports on the latest Righthaven news – Dana Eiser, the blogger behind Lowcountry912, is looking to force Righthaven to refund its previously collected settlement amounts.

That would be awesome if it could work.

UK Courts Give Go Ahead to Blogging Live from Court, But Give Preferences to Traditional Media

Friday, February 25th, 2011

The Lord Chief Justice of England and Wales has issued a document [pdf] of “interim practice guidance” regarding the use of “live text-based forms of communication … from court.” Blogging and tweeting, for instance.

The document generally supports allowing persons to tweet and blog from court to provide rapid reports of court proceedings. Unfortunately, however, the guidance draws a distinction between the “wider public” and “representatives of the media” in a way that may be used to discriminate against citizen bloggers:

[I]t may be necessary for the judge to limit live, text-based communications to representatives of the media for journalistic purposes but to disallow its use by the wider public in court. That may arise if it is necessary, for example, to limit the number of mobile electronic devices in use at any given time because of the potential for electronic interference with the court’s own sound recording equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings.

I find this passage troubling. Today, at least in the Twittersphere, anyone with a non-private Twitter account is on an equal footing with a salaried newspaper reporter with a Twitter account. In fact, there are a lot of citizen tweeters who have many more followers than many newspaper or television reporters with active Twitter accounts.

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.

Volokh Reports Victory Against Allegedly Libeled Philly Lawyer

Wednesday, February 23rd, 2011

Eugene Volokh of The Volokh Conspiracy reports that the U.S. Third Circuit Court of Appeals has rejected a motion to seal, the pursuit of which may have been a first step in trying to get a court order to force Volokh to take down a blog post.

Volokh said it seemed like “an innovative attempt to suppress publications that criticize a lawyers’ motions.”

The case is Wolk v. Olson, in which Philadelphia lawyer Arthur Wolk is suing for defamation. Volokh, along with Glenn Reynolds of Instapundit and Marc Randazza of Legal Satyricon, sought leave to file an amicus brief, a move Wolk resisted.

You can read Volokh’s full post for the procedural complexities, but after Wolk lodged some accusations at Volokh, Volokh then discussed those on the Volokh Conspiracy. Wolk then apparently regretted opening the door to discussing the underlying material he claimed to be defamatory. He proceeded to try to retroactively seal a portion of his own brief. In Volokh’s view, that looked like the beginning of an effort to force Volokh to remove the blog post about what would then be a sealed document.

It would have set a bad precedent for law bloggers (“blawgers”). But, happily, Volokh won. Congrats!

Prince Albert Takes Defamation Claim to Paris

Tuesday, February 22nd, 2011
Port of Monaco

Monaco. That's the prince's boat on the right. The big one. (Photo: CIA)

Libel tourism alert: The best place to vacay with your tarnished reputation continues to be Paris, France.

Prince Albert of Monaco is petitioning a Paris court to remove blog posts that His Serene Highness says are defamatory, according to a report by the Associated Press.

Robert Eringer, a blogger based in Santa Barbara, California, has accused the principality’s ruler of Olympic-Games-related corruption, saying he accepted the gift of a Russian-built dacha on Monaco’s outskirts. That’s suspect apparently because of its timing in relation to Sochi, Russia’s successful bid to host the 2014 Winter Olympics.

Albert is a member of the International Olympic Committee and a bobsledder who’s competed in several Olympics.

Eringer’s claim to expertise is that he is a former intelligence adviser to the prince. That sounds crazy, but apparently in a previous California lawsuit over backpay, court papers filed on Albert’s behalf confirmed that Eringer carried out “intelligence missions” for the prince.

Wow. Let’s just stop there for a second. What does Monaco need with spies? I guess that’s not fair on my part. If you’re going to have an independent sovereign nation, no matter how small (about 31,000 people and less than one square mile), you might as well do it up right with your own coinage, postage stamps, bobsled team, spies, and everything else.

But shouldn’t you have your own courts too? Why can’t Albert bring this action in Monaco? Is he afraid he won’t get a fair trial? Maybe it has to do with internet access. French wi-fi probably covers a large portion of the principality. Or maybe its just the allure of French libel law, as easy as a Sunday afternoon on the Champs-Élysées.

Righthaven’s Not Part of a Conspiracy, They’re Just …

Monday, February 21st, 2011

If you democratize the media, putting the power of the press in the hands of anyone who is moved to publish their thoughts, you are going to hear from conspiracy theorists.

That’s part of the explanation, I think, behind the conspiracy allegations made about copyright thugster Righthaven. Many bloggers have intimated that Righthaven has connections to the Obama administration, and is thus part of a left-wing conspiracy to silence right-leaning citizen pundits. Others have pointed to the conservative ties of Righthaven-partner The Las Vegas Review-Journal, along with its apparent reluctance to sue Tea Party candidate Sharon Angle, and thus people have suggested that Righthaven is part of some right-wing racket.

The other reason, I think, that people tend to think Righthaven must be politically motivated is a sense that what Righthaven is doing is so mean and absurd, there must be some ulterior motive.

But the real explanation is both simple and sad. They’re just jerks.

I use the word “jerk” advisedly. I’m a law professor, and I try to resist using intemperate language. But that’s the most accurate word I have.

It says something nice about the human race, something about our inherent idealism and irrepressible hope, that so many people want to come up with a morally-driven rationale for Righthaven’s behavior. But the fact is, many people don’t care about anything bigger than themselves. Righthaven is their product.

This is a point I’ve made before: As you go through a week, you accumulate numerous opportunities to sue people. Most of these would-be lawsuits aren’t worth more than a dollar in what lawyers call “nominal damages.” But it is a peculiar feature of the Copyright Act that silly, trivial infringements are compensable in the thousands of dollars. That’s thanks to the law’s provision for “statutory damages.”

In many of its cases, Righthaven has the legal right to sue and recover statutory damages. That’s a power that the U.S. Copyright Act has conferred. But our whole legal system is predicated on the fact that people will use it but sparingly. That includes lawsuits over copyright infringement.

Our current copyright law is a creature of decades past, a time when the only real participants in the media were businesses with a threshold level of capital and business management. Back then, the concept of statutory damages might have made sense. And it still might make sense so long as copyright owners exercise a level of decency and self-restraint. But Righthaven has proven that you can’t count on everyone to do the right thing. Where the law has created a legal way to extort money from hapless netizens, Righthaven has stepped in for some quick cash.

They’re not evil geniuses. They’re not right-wing extremists. They’re not left-wing zealots. The truth is much worse. They’re just jerks.

Righthaven Tries to Shake $6K Out of Sick 20-Year-Old on Disability

Friday, February 18th, 2011

Denver’s Westword has a report about Righthaven’s lastest victim: a chronically ill 20-year-old mildly autistic hobby blogger who allegedly reposted a Denver Post picture of a TSA patdown. Righthaven said they could make the suit go away for $6,000. The blogger, Brian Hill, who is on disability, says he doesn’t have the money to pay, or the money to hire a lawyer, or the money to travel to Denver to defend himself.

Zittrain Joins EFF’s Board of Directors

Thursday, February 17th, 2011

Jonathan Zittrain, a law and computer science professor at Harvard, has been appointed to the Electronic Frontier Foundation’s board of directors.

When I was in law school I took Zittrain’s Internet & Society ’99 course. It was fantastic. He’s one of the co-founders of Harvard Law’s Berkman Center for Internet & Society, and he wrote The Future of the Internet – and How to Stop It.

A strong EFF is good for blog freedom, so bloggers everywhere should be happy with this news.

Congratulations, Professor Zittrain!

Shirley Sherrod Has Now Sued Blogger Andrew Breitbart Over Video

Tuesday, February 15th, 2011

Former USDA employee Shirley Sherrod has sued blogger Andrew Breitbart. The civil servant was fired after Breitbart posted a deceptively edited video of a speech she gave.

Sherrod had been saying she would sue Breitbart.

Hazelwood and the Impetus for Anti-Hazelwood Laws

Monday, February 14th, 2011

The point of a law like this is to tie the hands of school adminisrators so that they cannot use the power given to them by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

In Hazelwood, a principal, reviewing page proofs of an upcoming issue of the school newspaper, yanked pages that contained a story about students dealing with pregnancy and a story about the impact of parents’ divorce on students. The stories were written and edited by students in journalism course at the school. The principal thought that references to birth control and sex were inappropriate for younger high school students. He also thought a divorced father, even if not named in the story, should be asked for consent before remarks concerning him were published. And the principal came up with other reasons as well: privacy, yadda yadda. Basically, discussion of divorce and pregnancy in the school newspaper made him uncomfortable. Let’s just say he’s not looking to train the next Woodward and Bernstein. He’s the kind of administrator who likes to unfold his school newspaper to see a front-page puff piece about how Friday Pizza Day is such a big hit in the school cafeteria.

The U.S. Supreme Court said that the school had not violated the students’ rights under the First Amendment. Why? In part, it was because the school owned this particular press. They created and funded the newspaper, so they could do what they wanted with it.

But the Supreme Court also went further to hold that the First Amendment rights of students in public schools are not the equal of First Amendment rights of adults in other settings. The court said that a school doesn’t have to tolerate student speech that is inconsistent with the school’s basic educational mission. So even if the government can’t censor similar speech outside the school, they can, according to the court, inside the school.

With this being how the First Amendment is interpreted with respect to schools, state legislatures have drafted so-called anti-Hazelwood statutes aimed to give students an extra measure of free-speech protection beyond that which First Amendment requires.

At first, this may seem strange, especially if you’ve never had to take a course constitutional law in law school. After all, a state legislature can’t overrule the U.S. Supreme Court. Right?

To keep track of how this works, you have to keep in mind that the First Amendment is not binding on the people. It doesn’t force the people or prohibit the people from doing anything. The First Amendment is binding on the government (including the public schools). By restraining the actions of government, the First Amendment carves out a freedom for the people. State legislatures are always free to add more restrictions on state government. Thus, state legislatures can carve out a progressively larger swath of freedom of the people in their state.

So, in essence, the anti-Hazelwood statute says, “Okay, U.S. Supreme Court, if you won’t interpret the First Amendment to tie the hands of meddling principals, we, the state legislature, will.”

Nebraska Legislature Mulls School Free Speech Statute

Friday, February 11th, 2011
Capitol tower in Lincoln, Nebraska in daytime

Nebraska Capitol in Lincoln
(Photo: EEJ)

Representative Ken Haar in Nebraska has introduced Legislative Bill 582, the “Student Expression Act.”

Now, if you are up on your state-civics trivia, you’ll know it’s called a “Legislative Bill” instead of a “Senate Bill” or “Assembly Bill” because Nebraska has just one legislative house. It’s the only state with a unicameral legislature.

The Student Expression Act would offer some protections for student bloggers.

Here is the whole text:

Be it enacted by the people of the State of Nebraska,

Sec. 1. This act shall be known and may be cited as the Student Expression Act.

Sec. 2. The Legislature finds that the State of Nebraska has an obligation to protect the First Amendment rights of public school students in order to instill in students the value of democracy and to prepare students for informed and active civic participation. To that end, the right of students to free expression in all public schools in Nebraska shall not be abridged except as provided in the Student Expression Act.

The Legislature encourages school districts to adopt and publish policies on student expression following the guidelines of the Student Expression Act.

Sec. 3. For purposes of the Student Expression Act, student expression includes the rights of a student to: Express his or her thoughts and beliefs through speech and symbols; create, write, publish, perform, and disseminate his or her views; and assemble peaceably with other students on school property for the purpose of expressing opinions.

Sec. 4. The following forms of student expression are prohibited:
(1) Student expression which is obscene; (2) Student expression which is defamatory; and (3) Student expression which creates a clear and present danger of unlawful acts, causes material and substantial disruption of the orderly operation of the school, or invades the privacy of others.

Sec. 5. No student expression made in the exercise of a First Amendment right shall be deemed to be an expression of school policy, and no public school, school district, teacher, administrator, or school board member shall be held responsible or liable in any civil or criminal action for any student expression.

Righthaven Going After Commenters

Thursday, February 10th, 2011

The Media Law Resource Center notes that with a complaint filed last month, Righthaven is now going after commenters, not just bloggers and others who own their own websites.

Combined with the fact that Righthaven is suing over photos that may have been gathered far from their affiliated newspapers’ websites, we’re seeing a considerable expansion in the breadth of Righthaven’s activities.

The MLRC blog post has links to the complaints filed in the commenter lawsuits.

(Let me give a big shout out of thanks to whomever posted the court docs to I love seeing original court docs posted somewhere besides!)

Blogger Continues Suit Against Fluvanna County over Seal Ordinance

Wednesday, February 9th, 2011

The Seal of Fluvanna County, Virginia, pixelized

The Seal of Fluvanna County, Virginia

Tasha Kates at The Daily Progress of Charlottesville, Virginia reports about legal manuverings in Fluvanna County stemming from lawsuit brought by blogger Bryan Rothamel of Fluco Blog.

Rothamel is suing to assert his First Amendment right to use the county’s seal to illustrate news stories about county government. A county ordinance passed in September 2010 made unauthorized use of the seal a Class 1 misdemeanor punishable with a fine of up to 12 months in jail and/or a fine of up to $2,500.

After being sued, the county’s board of supervisors voted to change the ordinance to downgrade the punishment to a maximum $100 fine and/or as long as 30 days in jail. That will bring Fluvanna County into line with the Commonwealth of Virginia’s seal statute.

The suit, however, will go forward. Suing on Rothamel’s behalf is The Rutherford Institute, a civil liberties organization that says the state law suffers from the “same vagueness problem” as the original ordinance.

Here’s Byran Rothamel’s March 2010 post about the ordinance accompanied by a big blank spot where the seal would be restored, I take it, if Rothamel’s suit is successful.

UK’s Advertising Standards Authority Eyeing Websites for Enforcement

Tuesday, February 8th, 2011

Union Jack - flag of the United KingdomI love listening to radio stations abroad via the internet. I quite commonly listen to Capital 95.8 FM out of London. In addition to helping me get ready for the royal wedding (Lily Allen on June 11h, of course!) I’ve also learned something relevant to blog law.

A public service announcement from the United Kingdom’s Advertising Standards Authority was letting listeners know that beginning March 1, 2011, the ASA’s jurisdiction in cyberspace is expanding. The ASA’s mandate will now include advertiser’s own websites, instead of just the per-se paid-for-placement adverts that try to draw consumers to the advertiser’s websites.

So if you’re blogging to market your own products or services in the UK, then straighten up and fly right. If you’ve got a commercially oriented blog and you have UK connections, read up on what the ASA is up to.

Image: EEJ (Konomarked flag photos on Flickr.)

Gene Quinn’s “How To” on Sending Take-Down Notices

Monday, February 7th, 2011

If someone has ripped off a blog post of yours and you’d like it taken down, the Digital Millennium Copyright Act provides a quick and effective (some would say too effective) way to get that done out of court. You send what’s called a “DMCA take-down notice.”

Gene Quinn, attorney and blogger at IPWatchdog has posted a short how-to piece for bloggers who would like to send a DMCA take-down notice: How to Stop Online Copyright Infringement.

Blogger’s E-mails Implicated as NFL Owner Tries to Get Reporter Fired

Friday, February 4th, 2011

Dan Snyder's graffitied mug as published by the Washington City Paper

The Washington Post reports that it has been asked by attorneys for Washington Redskins owner Dan Snyder to preserve e-mails between Dan Steinberg, a Washington Post sports blogger, and Dave McKenna, a staff writer for the Washington City Paper, an alternative weekly.

Snyder, angered over a cover story written by McKenna, “The Cranky Redskins Fan’s Guide to Dan Snyder”, is threatening legal action. For now, he’s complained the paper’s owners trying to get McKenna fired.

Truly a Troll: Righthaven Suing Over TSA Pat-Down Photo

Thursday, February 3rd, 2011

Steve Green in the Las Vegas Sun reports about a new spate of lawsuits filed by Righthaven against bloggers who have reposted a photo from the Denver Post showing a TSA pat-down of a passenger’s crotch: Blogger, websites sued by Righthaven over ‘TSA enhanced pat-down’ photo

What’s new – and troubling – with these latest lawsuits is that the people being sued may have had no idea that the photo they were using originated with the Denver Post. Since the photo went viral, it’s showed up in Google image search results disconnected from the Denver Post.

Bloggers worried about getting sued by Righthaven had previously been able to steer clear of newspaper sites owned by companies doing business with Righthaven. But that is no longer a way to insulate yourself from Righthaven’s wrath. Using an image from a completely random website – one you might deem unlike to sue, or at least likely to share a commodious understanding of fair use – might land you in the Righthaven drift nets.

I am not a big fan of using the word “troll” to describe people enforcing intellectual property rights. And I’ve resisted using it to describe Righthaven litigation against people who reposted stories from newspapers. But what Righthaven is now doing can truly be called trolling.

Sarah Jones Wins Early Motion Against

Wednesday, February 2nd, 2011

Sarah Jones (Photo, Cincinnati Bengals)

Eric Goldman on Technology & Marketing Law Blog writes about a recent decision in the case of a school teacher and NFL cheerleader against about the meanest blog ever to sail the cyberseas: Jones v. Dirty World Entertainment, 2:09-cv-00219-WOB (N.D. Ky. Jan. 21, 2011).

Jones defeated The Dirty’s §230 safe-harbor defense at the earliest opportunity The Dirty had to bring it up, a motion to dismiss based on the pleadings. But the defense isn’t dead. Now the parties will go through the discovery process – producing documents, undergoing depositions – and we’ll see whether Jones can defeat the §230 defense on the facts.

Goldman doesn’t seem bullish on Jones’ long-term prospects. “Based on what I saw in this ruling,’s editorial contribution beyond the user-submitted content appears to be minimal and probably legally inconsequential,” Goldman writes.

More from me:

Benihana Review Gets Kuwait Expat Sued

Wednesday, February 2nd, 2011

An online banner ad for Benihana's new Kuwait location

Mark Makhoul, a blogger and Lebanese expat who lives in Kuwait, has been sued by the owner of a Benihana franchise for writing an unflattering review on his Two Forty Eight a.m. blog. The suit seeks $18,000 in damages.

The blog post that got Makhoul sued is, at least once you know he got sued over it, surprisingly not all that negative. I mean, it’s negative. But it seems pretty tame by lawsuit standards.

Whether it’s defamatory under Kuwaiti law or not, one thing is crystal clear: Whatever the restaurant hoped to accomplish with their lawsuit has backfired in the most spectacular way. The story of Benihana Kuwait’s unpleasing chicken is now burning up Twitter, and television news shows are lining up to interview Makhoul.

Internet karma strikes again. Like a razor sharp cleaver through rubbery chicken.

Makhoul blogs about getting sued in post headlined “I’m Getting Sued by Benihana”. He says his lawyer has advised him to keep mum about it. But for those who want to learn more about the lawsuit, he has posted a court document in the original Arabic, along with a version translated into English.

I’ve read the English translation, and it’s a little confusing. The document is phrased as an “order,” but the way Makhoul talks about the lawsuit, it’s just in its beginning stages, with nothing determined as of yet. By his description, all that has happened so far is that he has been sued, and he is awaiting a court date in March. That leads me to guess that the posted document is something along the lines of what you would call a “proposed order,” a lawyer-drafted document that is submitted to the court with the hopes (sometimes high hopes) that the judge will simply sign at the bottom, turning the party’s litigation wish list into an enforceable mandate.

One thing that comes through in the document is that the restaurant is also apparently bent out of shape that Makhoul took photographs and video in the restaurant without permission. Hmmm. Where I come from, juggling knives in front of customers while spotlighted with track lighting counts as implied permission. But maybe I’m old fashioned that way.

From Makhoul's video taken at Benihana, which he posted along with his review


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