The US District Court in San Diego has ruled that the city’s anti-nudity ordinance did not violate the First Amendment Rights of the intended participants in the San Diego Naked Bicycle Ride which was intended to protest against petroleum-based technology. In her brief to the court the organiser Sarah Bush’s lawyer’s contended “The Plaintiff Is Entitled To Strip Naked, Paint Her Body With Political Slogans and Protest Important Public Issues.” This argument was rejected. The judge held that
“Nudity has the potential to amplify that message only because it naturally amplifies any message by attracting attention and publicity. Plaintiff’s message is otherwise old hat. Plaintiff isn’t likely to prevail on her claim that the ordinance violates her rights under the First Amendment.”
It appears that the plaintiff’s appeal was rejected by the Ninth Circuit Court of Appeals on 11 June 2010 but the ride went ahead on a “partially clothed basis”. The background to the claim is explained by the San Diego Voice which also deals with the defeat at first instance.
An article by John Kobline in the “New York Observer” entitled “The End of Libel?” discussed the comments of Robin Bierstedt on her retirement as Time Inc’s legal counsel. When asked why she was retiring she replied “No more lawsuits.” She said that when she started in 1983 there were 20 current claims but Time Inc has no active libel claims and has not had one for 11 months. A number of other media lawyers confirmed that the number of libel claims against the media in the US is very substantially down. However, the Media Law Blog suggests that “reports of the death of libel are greatly exaggerated”. A similar view is taken on the Prawfsblawg under the title “Is Libel Dead? (Not So Fast.)”.
There are, nevertheless, a number of interesting libel claims in the news this week – although not involving the media. It is reported that Pia Zadora’s ex-husband is bringing a claim that alleging that the actress defamed him with false accusations that he sexually molested their son.
In Ciemniecki v. Parker McCay 09-6450, a US District Judge refused to dismiss a claim by the plaintiff, the defendant’s former law librarian alleging the firm defamed and falsely imprisoned her by having her arrested on a charge of setting off a fire alarm. The judge rejected the argument that absolute privilege applied to statements made to the police and said that, if the plaintiff was right that she has been falsely implicated for complaining about the size of her pay increase and about her work schedule, then the qualified privilege defence would be rebutted. There is a news story about the case on Law.com.
The Ohio Supreme Court has said that says businesses can pursue defamation lawsuits against residents of other states who disparage their products on the Internet. Justice Paul Pfeifer, writing for the majority in Kauffman Racing Equip. v. Roberts, said Ohio courts could hear the case because Roberts’ comments were viewed by Ohioans. Justices Terrence O’Donnell and Judith Ann Lanzinger dissented, saying Roberts’ statements fell short of the legal standard to establish a strong connection to Ohio. There is a story about the case in the Columbus Dispatch.
The case of T & J Towing v Kurtz concerns a person who set up a Facebook page attacking a towing company which he said had wrongly towed away his car. The company issued defamation proceedings claiming US$750,000 damages. Details of the case can be found on the Citizen Media Law Project Blog.
In Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010), the court reversed a trial court order granting Ottawa Publishing’s motion to dismiss a pre-litigation petition for discovery seeking the identity of a commenter to its mywebtimes.com website There is a comment on the case on the Citizen Media Law Project Blog which also has details of the court documents.
On 8 June 2010 in El-Shifa Pharmaceutical Industries Co v United States the Federal Appeals Court for the District of Columbia upheld the dismissal of a defamation suit for statements that Clinton administration officials reportedly made to the press to justify the missile attack against a pharmaceutical plant in Sudan in 1998. The plant owner, Salah Idris had alleged government officials concocted a story tying him and the plant, El-Shifa Pharmaceutical Industries Co., to terrorism. Administration officials made statements to the press linking Mr Idris to Osama bin Laden. The Court relied on the “political question doctrine”, holding that the case
“requires us to determine the factual validity of the government’s stated reasons for the strike. If the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target, and the plaintiffs ask us to do just that.”
The highly questionable background to this attack is set out in the plant’s Wikipedia entry. There is a characteristically hard hitting article by Christopher Hitchens on the episode.
Finally, the Volokh Conspiracy Blog draws attention to the remarkable fact that criminal libel laws not only continue in existence in about one third of US states but in Virginia there were about 200 criminal libel prosecutions between 2001 until 2008. The relevant statute provides that
Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any female of chaste character, any words derogatory of such female’s character for virtue and chastity, or imputing to such female acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or shall use grossly insulting language to any female of good character or reputation, shall be guilty of a Class 3 misdemeanor.
He also points out that there have been a small number of criminal libel prosecutions in other states. Commentators on his blog suggest that the Virginia statute might be fulfilling the role of a harassment law but the law does appear to be a strange anomaly in the land of the First Amendment.
Leave a Reply