An interesting example of how far the US media thinks “First Amendment Protection” should go is found in a New York Times editorial lamenting the fact that the the Supreme Court has refused a petition for certiorari (that is, leave to appeal) in the case of Pirate Investor LLC. v. SEC. The case concerned a claim for securities fraud against the publisher of a financial newsletter who promised a hot stock tip, based on inside information, to people willing to pay US$1,000. The tip was a bad one and the Securities and Exchange Commission sued for securities fraud.
A large group of newspaper publishers, including The New York Times, urged the Supreme Court to reverse the decision by the Fourth Circuit Court of Appeals that the defendant was liable. In a friend-of-the-court brief, the Reporters Committee for the Freedom of the Press called that decision “a significant threat to the free dissemination of news about the financial markets and specific investment opportunities.” The Supreme Court refused to review the decision. The NY Times believed this to be an encroachment on the right of the news media to be wrong. From an English or European perspective it seems to be a perfectly proper piece of financial regulation.
The American Civil Liberties Union have produced a new report, “Policing Free Speech: Police Surveillance and Obstruction of First Amendment-Protected Activity” which surveys news accounts and studies of questionable snooping and arrests in 33 states and the District of Columbia over the past decade. According to ACLU
“Our review of these practices has found that Americans have been put under surveillance or harassed by the police just for deciding to organize, march, protest, espouse unusual viewpoints and engage in normal, innocuous behaviors such as writing notes or taking photographs in public”
Media lawyers round the world know that, in the United States section 230 of the Communications Decency Act 1996 provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others. Section 230(1)(c) provides that
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
David Ardia of the Berkman Center for Internet & Society has now carried out an empirical study of 184 decisions on this provision, which is published in the Loyola of Los Angeles Law Review under the title “Free Speech Savior or Shield for Scoundrels” The full paper can be accessed here. His examination shows that
defendants won dismissal on section 230 or other grounds in more than three-quarters of the cases studied.
He discusses the paper on the Citizen Media Law Project Blog.
In the case of The Cadle Co. v. Jan R. Schlichtmann et al (Case No. 05-00603-D) a jury has awarded US$149,000 for defamation against an attorney Jan Schlichtmann who had set up a website to alert the public to what he believed was unlawful conduct by the claimant. After a month long trial the jury found that his statements were malicious. A previous case of Mr Schlichtmann’s was dramatised in the 1998 film “A Civil Action” – he was played by John Travolta. There is a post about the case on the Unruly of Law blog.
In Don King Productions v Walt Disney Company (30 June 2010) the District Court of Appeal of Florida, Fourth District dismissed a defamation and false light claim by boxing promoter Don King arising out of statements made during an ESPN Sports Century television program about his life and career. King pointed to notes on the show’s script where producers allegedly wrote that the program should portray him as “more evil,” “greedy,” and “engaging in criminal activities.” Judge Dorian Damoorgian said that while ESPN may have portrayed him in a negative light,
“nothing in the record shows that ESPN purposely made false statements about King in order to bolster the theme of the program or to inflict harm on [him].”
Courthouse news has the story here.
In the case of AVT, Inc. v. The Penguin Group, et al. (Case No. 00386093) a U$100 million suit has been filed in Orange County (Calif.) Superior Court against an author and his publisher, alleging libel, false light invasion of privacy, and negligence. The claim concerns a book called The Zeroes: My Adventures in the Decade Wall Street Went Insane, by Randall Lane, editor-at-large of The Daily Beast blog and former Washington bureau chief for Forbes magazine. There is a post about the case on the Unruly of Law blog.
In the case of Thomas S. Hester Jr. v. Jane or John Doe a/k/a “Beautiful Dreamer,” and/or “Confused,” “Fatboy” et al. (Case No. 10-CVS-361) a North Carolina judge ordered an online-news editor to produce the names of six anonymous posters who allegedly posted defamatory comments on his website – although one of them identified himself on a local AM radio station. The Reporters Committee for Freedom of the Press has the story here and there is an interesting post on the Unruly of Law Blog.