Blog Law Online

Another Verdict Falls Due to Internet Research

2012-02-03T12:25:00.000-08:00

The Vermont Supreme Court has reversed a conviction for aggravated sexual assaulton a child because a juror in the case was found to have researched Somali religion and culture, which was an issue in the case. Statev. Abdi, No. 2010-255, 2012 VT 4, 2012 WL 231555, 2012 Vt. LEXIS 5 (Jan. 26, 2012).

The defendant in the criminal case was a member of the Somalian immigrant community in Burlington, Vt. who was accused of sexually assaulting his nine-year-old niece, based on the word of the child. Testimony in the criminal trial included discussion of issues such as Somali cultural attitudes towards such accusations by a child, whether a sexually-assaulted child would be able to eventually marry within the community, and the grounds that the community would accept if the defendant's wife wanted to divorce him. (Regarding the latter, the defense argued that the defendant's wife had a motive to fabricate the accusation, since sexual misconduct is seen as legitimate grounds for divorce in Somali culture.)

After a two-day trial, the jury found the defendant guilty of one count of aggravated sexual assaulton a child based on one incident, but was unable to reach a verdict on a second count of the same charge, based on a second alleged incident.

A few days after trial, one of the jurors contacted the trial court to complain that she had been intimidated into voting for a guilty verdict by another juror who had read aloud a definition of an “incompetent juror” from a piece of paper. The court held a hearing on the matter, during which other jurors corroborated this story, and that the definition apparent came from the Internet. All of the jurors questioned, other than the one who reported the incident, said that this information had not effected their verdict.

During the hearing, another juror revealed that during deliberations a fellow juror had announced the results of Internet research into Somali culture, and that the jury had discussed these findings for about 10 or 15 minutes.

The defense sought a new trial based on both of these incidents, but the district court denied the motion. As to the “incompetent juror”definition, the district court said that the information "didnot relate to any material element or defense at trial and thus did not havethe capacity to influence the verdict." Abdi at ¶ 11. And it held that the information on Somali culture included "no specific information indicating that it was inflammatory or directly relatedto any material issue in the case," id., and that it appeared that the information "was basically ignored by all the other jurors and did not affecttheir verdict." Id.

On appeal, the Vermont Supreme Court disagreed. After discussing the legal standards applicable in cases in which jurors are alleged to have based their verdict on extraneous evidence not submitted into evidence during a criminal trial, the Supreme Court concluded that "... Somali Bantu religion and culture lay at theheart of this case, and it is simply impossible to conclude that outsideinformation used by at least one juror—as the trial court found—to “interpretthe testimony of the Somali witnesses and to determine the credibility of thesewitnesses” could have had no impact on the verdict." Id. at ¶ 23. Thus, the Court concluded, the trial verdict must be reversed and a new trial was necessary. Id.

Because of its ruling on the juror's research into Somali culture, the Court said it did not need to decide the impact of the separate research into the definition of an incompetent juror. Id. at ¶ 24.

The Court went on to discuss the general issue of juror use of the Internet, and the need for comprehensive jury instructions on the issue -- which I have advocated in the past.

Wenote ... the increasing problem of jurors consulting the internet foroutside information that this case all too clearly illustrates. Although Vermont trial courts routinely admonish jurors not to consultoutside sources, it may well be time to consider a stronger and moretechnology-specific admonition similar to the standard instruction employed,for example, in Colorado. We can not ignore therealities of our “information age,” where the internet and other technologieshave made information more widely and immediately accessible than everbefore.

Id. at ¶ 25.

After an addition in 2010, Vermont’s criminal jury instructions are actually already somewhat specific in their admonitions against Internet and social media use and research.

Your verdict must be based solely on the evidence admitted during the trial. During your deliberations, you must not seek any information about this case from any outside source, including but not limited to television, newspaper, radio, cell phones, iPhones, smart phones, BlackBerries, social networking sites, or any site on the internet.

You also must not communicate by any means about your deliberations with anyone who is not a fellow juror. This includes tweeting, texting, blogging, emailing, posting information on a social networking site or other website, or any other means of communication at all.

Vt. Crim. Jury Instr. Comm., Model Crim. Instr. 03-051 (adopted 2010).

But as the Vermont Supreme Court noted, it is important for courts to discuss these issues in detail with jurors, and to repeat the admonitions frequently during trials.

It's also a good idea to explain why these restrictions are necessary, and the important legal issues at stake when a juror pulls out her smartphone.

See No Evil: Study Says Judges Don't Find Jurors Using Social Media

2012-01-29T18:35:00.001-08:00

cross posted at the Citizen Media Law Project)

The Federal Judicial Center has released a study which concludes that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom," and implies that juror use of the Internet and social media during trial is not a growing problem.
Alison Frankel of Thompson-Reuters is skeptical about this conclusion, and I agree with her.

The FJC report was based on a survey e-mailed to all active and senior federal judges in October 2011. Of the 952 judges who received the survey, 508 responded -- a response rate of 53 percent -- from all 94 federal districts.

Of the 508 judges who responded, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. Most (23 judges) had seen this during trial, rather than deliberations (12 judges), and judges reported seeing such activity more often in criminal cases (22 judges) than in civil cases (five judges). Three judges had experience with jurors using social media during both criminal and civil cases. Only two had experienced this in more than two cases of either type.

Among the sites and services that the judges observed jurors using, use of Facebook and Google were the most common, both reported by nine judges. Use of an instant messaging was noticed by seven judges, while use of Twitter or an Internet chat room was detected by three each. One judge reported juror use of an Internet bulletin board, while one reported juror use of MySpace.

Seventeen of the judges also reported the substance of the jurors' activities: five said jurors had done research on the case; four said that they had shared information about the case, such as its progress; three judges found jurors "friending" trial participants; and the same number of judges discovered jurors otherwise communicating with trial participants.

Of the 30 judges who discovered social media use by jurors, 28 indicated how they learned of the activity. Thirteen heard of it from fellow jurors, five were told by attorneys, and five said they found out via post-trial motions or interviews. Three found out from court staff, and two observed it themselves.

As the report itself points out, "the data from the survey represent judges’ reported experiences and perceptions of jurors’ use of social media to communicate about proceedings in which they are involved. The data are not actual empirical measures of such behavior." Study at 2.

While there is "no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population," Taylor v. Louisiana, 419 U.S. 522, 538 (1975), the jury pool from which trial juries are selected must "reasonably reflect[] a cross-section of the population suitable in character and intelligence for that civic duty." Brown v. Allen, 344 U.S. 443, 474 (1953).

Two recent studies comparing juror and population demographics in New York reported on by the Cornell Journal of Law & Public Policy blog -- one statewide, the other focused on Monroe County, which includes Rochester -- found that generally jury pools generally reflect the demographics of the larger community, although the statewide report found racial and ethnic disparity in individual counties. Academics have given a number of reasons why racially-neutral jury pool selection processes can result in unrepresentative juror pools. See, e.g., Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 Vand. L. Rev. 353, 356 (1999) (discussing various impediments to adequate racial representation).

But the issue here is whether the correlation of the jury pool and frequent users of the Internet and social media, and then whether jurors who are such users can be convinced -- or compelled -- to not use these services while serving jury duty.

According to the Pew Internet and American Life Project, overall 78 percent of adults use the Internet. (There are, however, some variations on usage based on age and education level.) About 77 percent of adults do so on a daily basis.

If a jury pool is representative of the adult population, it certainly includes these daily Internet users.

The fact that only two of the judges in the survey discovered the social media use on their own shows that such activity is hard to detect, both inside the courthouse and -- especially -- outside of it.

There are certainly numerous anecdotal instances in which jurors have been found to be using the Internet or social media during trial. The problem is that it may be impossible to really know how many jurors are doing this.

But that doesn't mean that it isn't happening.

Another Challenge for the FTC

2012-01-27T12:08:00.000-08:00

The New York Times reports that a retailer of cases for the Kindle Fire offered customers a complete refund to purchasers in return for a posting a review on Amazon about the product.

The retailer's letter detailing the offer did not explicitly state that the review must be positive, but that was the clear implication. And, as reported by the Times, 310 out of the 335 reviews of the product were five stars, the highest ranking.

So far, the Federal Trade Commission has resolved more of the apparent violations of its "Guides Concerning the Use of Endorsements and Testimonials in Advertising" with settlements rather than fines. But in this case the violation seems so blatant -- and so public, thanks to the Times coverage -- that the FTC will have to act.

Now, You Can Worry

2012-01-18T12:37:00.000-08:00

cross posted at the Citizen Media Law Project)

A few weeks ago, I wrote that bloggers should not be too concerned about a decision by a federal judge in Oregon that blogger Crystal Cox is was not protected by Oregon's reporters' shield law in a defamation suit. But a new decision in Illinois reaching the same conclusion is more problematic.

The Oregon ruling -- which led to a $2.5 million verdict against Cox, which she is seeking to have vacated -- concluded that a blogger is not “media.” Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H, 2011 WL 2745849, 2011 U.S. Dist. LEXIS 137548 (D. Or. Nov. 30, 2011).

This what got most of the attention in coverage of the case. But it was not the primary basis for the court's holding that was not protected by the shield law. Instead, the judge denied Cox the protection of the shield law because she tried to use the existence of the source as evidence in her defense, while at the same time invoking the shield law to refuse to identify that source. This is known as using the reporter’s privilege as both a "sword and shield" and has been rejected by courts in many states. In addition, Oregon's shield law statute specifically prohibits it. See Ore. Rev. Stat. § 44.530(3).

The new Illinois decision more directly involved application of the state's reporters' shield law to an online news source: in this case, TechnoBuffalo.com, which consists of frequent blog posts on (excuse the pun) bits of technology news.

The question was wether the site falls under Illinois' reporter's shield law, 75 Ill. Comp. Stat. §§ 5/8-901 - 8-909, which provides that "No court may compel any person to disclose the source of any information obtained by a reporter except as provided in [the other provisions of the shield law]." (emphasis added)

The terms "reporter" and "source" are defined in the statute, as is the phrase "news medium:"

(a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .

(b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

(c) "Source" means the person or means from or through which the news or information was obtained.

75 Ill. Comp. Stat. §§ 5/8-902

According to news reports about the decision (here and here; I haven't been able to find the decision itself), Judge Michael R. Panter of the Cook County Circuit Court held that "TechnoBuffalo’s reliance on the Illinois reporter’s privilege is misplaced," because the site did not qualify as a "news medium" under the statute. "TechnoBuffalo’s anonymous 'tipster' is hardly an example of a 'source' of investigative journalism that requires protection of the Act."

Judge Panter's decision is contrary to a decision of a California court holding that a similar blog was covered by that state's reporters' shield provision. In O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App., 6th Dist. 2006), the California Court of Appeals held that the "O'Grady's PowerPage" blog was included in the shield provision language extending coverage to "[a] publisher, editor, reporter, or other person connected withor employed upon a newspaper, magazine, or other periodicalpublication ... ." See Cal. Const., Art. I, § 2(b) (shield provision in state constitution); see also Cal. Evid. Code § 1070 (statutory provision).

Given the numerous ambiguities presented by "periodical publication" in this context, its applicability must ultimately depend on the purpose of the statute. It seems likely that the Legislature intended the phrase "periodical publication" to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs. The Legislature was aware that the inclusion of this language could extend the statute's protections to something as occasional as a legislator's newsletter. If the Legislature was prepared to sweep that broadly, it must have intended that the statute protect publications like petitioners', which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content.

O'Grady v. Superior Court, 44 Cal.Rptr.3d at 104-05 (citations omitted).

The New Hampshire Supreme Court faced a similar question in Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010), except that New Hampshire's journalist's privilege exists as a matter of common law, not statute. See Opinion of the Justices, 117 N.H. 386, 373 A.2d 644 (1977) (finding journalists' privilege under state constitution's free speech provision). Yet the New Hampshire high court also found that a blog news site was covered by the privilege.

The fact that Implode operates a website makes it no less a member of the press. In light of the trial court’s implicit findings, we conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.

Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 234, 999 A.2d 184, 189 (N.H. 2010).

The federal judge in Oregon reached the opposite conclusion in the Cox case. Without much discussion, he simply stated that the blog in that case was not covered by Oregon's shield statute, which provides that “[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required [to reveal confidential sources],” Ore. Rev. Stat. 44.520(1), and then provides that

"Medium of communication” has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

Id.

Judge Marco A. Hernandez focused on the list, and found that Cox and her blog did not fit under any of these categories. In doing so, he ignored the statute's language that “medium of communication” includes not only the specific media listed.

On a related issue, Judge Hernandez observed that "Defendant cites no cases indicating that a self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim." Of course there are no such opinions, since blogs and social media are a new emerging medium.

Such a legalistic application of a journalists' shield law is reminiscent of the 11th Circuit's opinion in Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005), modified, 425 F.3d 1292 (11th Cir. 2005), which held that Sports Illustrated was not covered by Alabama's shield law, Ala.Code § 12-21-142, because "magazines" were not specifically mentioned in the list of media protected by the statute.

The rulings in Price and Obsidian Finance Group are worrisome and overly legalistic, and do not recognize that the purpose of reporters' privilege provisions is to facilitate the free exchange of information: and that blogs are certainly a new means of doing this, and should be covered by these shield provisions, as the courts found in O'Grady and Mortgage Specialists.

The Illinois court could -- and should -- have used the rationale in O'Grady and Mortgage Specialists to include the TechnoBuffalo blog in Illinois' reporters' shield law. Now, it will probably be left for an appellate court to do this, which will provide judges like Marco A. Hernandez an appellate ruling to cite for the logical conclusion that shield law protect bloggers as they protect other journalists.

FTC Punts Again

2012-01-07T08:18:00.003-08:00

Just before the holidays, a post on the Federal Trade Commission's Bureau of Consumer Protection Business blog highlighted a staff letter announcing a decision to not pursue charges against Hyundai Motor America over a campaign in which bloggers were offered gift certificates for linking to the company's videos or commenting on its Superbowl ads, without telling the bloggers that they are required to disclose the incentives under the Commission's "Guides Concerning the Use of Endorsements and Testimonials in Advertising."

The Commission's position is that advertisers which offer such incentives can be held accountable under the Guides for failing to inform bloggers of the disclosure obligation. But its record of enforcing the provisions has been mixed.

In the Hyundai case, the letter announced that the FTC staff "determined not to recommend enforcement action at this time."

As stated in the FTC's own blog post, "What gives?"

The letter explains that "Hyundai did not know in advance about use of these incentives," and that "the actions with which we are most concerned here were taken not by Hyundai employees, but by an individual who was working for a media firm hired to conduct the blogging campaign," and "upon learning of the misconduct, the media firm promptly took action to address it."

This marks the third publicly announced case in which the FTC has declined to take action against apparent violations of the blogger endorsement rules. Last August, the Commission declined to investigate an online issue of Details magazine, guest edited by actor Ashton Kutcher, which profiled a number of tech companies in which Kutcher has investments. And in April 2010, the FTC decided not to take any action against Ann Taylor, whose Loft division offered gifts to bloggers who attended a January 26 "exclusive blogger preview" of the chain's summer 2010 line.

The Commission has taken action in two cases: it reached a settlement with a public relations firm that allegedly posted positive reviews of client's video games on Apple's iTunes store, and a $250,000 settlement with a company that sells guitar lessons on DVDs.

Yet, as chronicled on this blog, situations that raise the question of whether the blogger endorsement rules apply continue to arise. It's still an open question, however, the extent to which bloggers know the rules exist. (Which is what the FTC says in its post, recommending that the letter "is worth a read if your company has added social media to your marketing arsenal.")

Hot Topics

2011-12-19T10:57:00.000-08:00

Two of the issues that I've frequently written on this blog and elsewhere are jurors' use of social media and the Internet, and public access to court proceedings, including cameras in courtrooms.

I've been interviewed on both of these topics in the past few days.

On Friday, the Legal Talk Network posted the latest "Lawyer2Lawyer" podcast, in which I joined Professor of Law at Chicago-Kent College of Law professor Nancy Marder to discuss the current debate over cameras in the U.S. Supreme Court, including calls for the arguments over the constitutionality of the Patient Protection and Affordable Care Act (often pejoratively referred to as "Obamacare"). Professor Marder, a former law clerk to U.S. Supreme Justice John Paul Stevens, opposes cameras in the Supreme Court, while I'm generally in favor (although that is my personal opinion, not that of the Reynolds National Center for Courts and Media). She ably argued her side, but I felt a sorry for her since the show's co-hosts, J. Craig Williams and Bob Ambrogi, were clearly in favor of cameras.

Today, the Pew Center for the States' stateline.org site published an article on the dilemma posted to the courts by jurors' online media use. The article stems in part from the decision earlier this month by the Arkansas Supreme Court overturning a murder conviction, in part because of a tweeting juror. I am quoted in the article making a point I have made before on this blog and elsewhere: besides telling jurors not to use the Internet and social media, the courts also have to explain the rationale behind these restrictions.

Murder Conviction Reversal Raises Concern Over Juror Tweets

2011-12-09T08:14:00.006-08:00

(cross posted at the Citizen Media Law Project)
The Arkansas Supreme Court has reversed a murder conviction -- and death sentence -- in a case where one juror tweeted during trial, while another fell asleep. Both these problems, the court said, constituted juror misconduct requiring reversal and a new trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Ark. Dec. 8, 2011).

While the court said that the dozing juror alone required reversed of the conviction and sentence, the court added that the second juror's tweets also required a reversal.

The Supreme Court was particularly concerned about one of the juror's tweets, “Its over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror's Twitter feed -- including, the court said, at least one journalist (with the online magazine Ozarks Unbound) -- "had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court."

Dimas-Martinez's lawyers also pointed out that the tweeting juror tweeted during trial despite continued admonitions to the jury throughout the trial warning them not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet. (That one said, "Choices to be made. Hearts to be broken. We each define the great line.")

The case raises the question of whether admonishing jurors to not use the internet and social media is effective. The Arkansas Supreme Court expressed its clear concern, and suggested that measures more drastic than admonitions may need to be taken:

[W]e take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case. Thus, we refer to the Supreme Court Committee on Criminal Practice and the Supreme Court Committee on Civil Practice for consideration of the question of whether jurors’ access to mobile phones should be limited during a trial.

Of course, one problem with such bans is that the are not effective once the jury goes home for the day. Another is that they are often unevenly applied.

It is worth noting that while the jurors in this murder trial were told not to tweet about the trial, it does not appear, based on the admonitions repeated in the Arkansas Supreme Court's decision, that they were told why. This is despite the fact that the state's model jury instructions for criminal cases include a lengthy discussion of the subject. After stating that "You must decide this case only on the evidence presented in the courtroom," Ark. Model Jury Instr., Civil 101 (Dec. 2010), the model instruction goes on to state that

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. The parties have entrusted their case to you and to no other person or entity. If you become aware of any violation of these rules you must notify court personnel of the violation.

Id.

Such full explanations of the possible consequences of jurors tweeting, texting, and using other social media and the internet during trial are probably going to be the only way that the courts will be able to deal with this growing issue. Futile attempts to keep the electronic equipment out of the courthouse, or adopting unrealistic rules limiting their use, is not going to put the electronic genie back in the bottle.

Another Settlement, As the "Twibel" Watch Continues

2011-12-08T16:05:00.003-08:00

Our wait for the first American "twibel" trial -- a defamation trial stemming from comments post on Twitter -- continues, and another settlement has struck out another contender.

The Associated Press reports that it has settled a libel suit brought by National Basketball Association referee Bill Spooner over a tweet by AP sports reporter Jon Krawczynski during a Jan. 24 game between the Houston Rockets and the Minnesota Timberwolves. (Houston won, by the way.)

With 10 minutes and 22 seconds left in the second period, Spooner called a foul against Timberwolves player Anthony Tolliver. Minnesota Coach Kurt Rambis complained to Spooner about the call. During that conversation, according to Spooner's lawsuit, Spooner told Rambis that he would review the call at
halftime and get back to him about it. As Rambis walked away, according to the suit, he said "words to
the effect of, 'that's fine, but how do I get those points back?'"

Within the next 39 seconds, three fouls -- one offensive, one personal, one shooting -- were called against the Rockets. Spooner called two of these fouls, one of which he called simultaneously with another referee.

AP reporter Krawczynski, who reportedly was seated courtside about 15 to 20 feet away from where Spooner and Rambis had spoken after the first call, then sent out the following tweet:

Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks.

The tweet led Spooner to sue Krawczynski and the AP in federal court, seeking at least $75,000 in damages.

As I noted when the suit was first filed, the AP initially stood behind the facts reported in the tweet. But in a statement issued as part of the settlement, the news agency all but admits that Krawczynski probably misheard Spooner's comment.

AP and its reporter Jon Krawczynski learned through discovery that referee Bill Spooner and coach Kurt Rambis have both consistently and independently denied that Mr. Spooner told the coach ‘he’d get it back’ in an exchange that occurred after a disputed call against the Timberwolves on Jan. 24, 2011, as Mr. Krawczynski had tweeted from courtside that night. Mr. Spooner has testified that he instead told the coach he would ‘get back’ to him after reviewing videotape of the play during a halftime break.

The NBA promptly investigated at the time and concluded that Mr. Spooner had acted properly. AP was initially unaware of the investigation and does not contest the NBA’s finding. During the game, Mr. Krawczynski tweeted what he believed he had heard. Mr. Krawczynski acknowledges the possibility that he misunderstood what Mr. Spooner said and has therefore removed the Tweet from his APKrawczynski Twitter feed.

Besides issuing the statement and removing the tweet, as part of the settlement the AP also agreed to pay Spooner $20,000 to cover his legal fees.

So, like many of the other contenders for the title of first American twibel trial, another lawsuit is out of the running.

So, the "twibel" watch continues...

No, the Sky is Not Failling: Explaining that Decision in Oregon

2011-12-07T17:27:00.015-08:00

(cross posted at the Citizen Media Law Project)
There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon who released a decision last week holding that blogger Crystal Cox is was not protected by Oregon's reporters' shield law in a defamation suit against her, which led to a $2.5 million verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). But most of the buzz and criticism is based on an erroneous reading of the decision.

Details of the libel suit against Cox are here. But the characterization of the Judge Marco A. Hernandez's decision in most of commentary is incorrect. He did not deny Cox the protection of the shield law primarily because she is a blogger, but because she tried to use the shield law in a way that courts have rejected.

This requires a bit of explanation, so bear with me:

The problem is that while the Oregon shield law provides that “[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required [to reveal confidential sources],” Ore. Rev. Stat. 44.520(1), "medium of communication" is defined by Ore. Rev. Stat. 44.510(2), which states that:

“Medium of communication” has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

Judge Hernandez focused on the list, and found that Cox did not fit under any of these categories. He apparently ignored that the statute says that “medium of communication” includes not only the specific media listed, and that the statute also explicitly states that its coverage is not limited to the listed media. (The court’s decision does not dwell on this point.)

But there was a more important basis why the judge held that Cox was not covered by the shield law in this case – it’s because she was attempting to claim that there was a confidential source and, at the same time, use the existence of that source as evidence that she did not act with negligence in making the blog post at issue. In other words, she was attempting to use the existence of the source – which she refused to identify – as evidence in her defense. This is known as using the reporter’s privilege as both a "sword and shield." This has been rejected by courts in many states, and Oregon's shield law statute specifically prohibits it. See Ore. Rev. Stat. 44.530(3).

While Cox’s status as a blogger was not (primarily, at least) the basis for the court holding that was not protected by the shield law in this case, there’s another part of the decision in which the judge does say that a blogger is not “media” – and that part is problematic.

Under U.S. Supreme Court (Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Oregon Supreme Court (Bank of Oregon v. Independent News, Inc., 298 Or. 434, 693 P.2d 35 (1985)) precedents, plaintiffs in a defamation case against a media entity cannot recover any damages without proof that the defendant was at least negligent, and may not recover presumed damages without proving that the defendant acted with "actual malice" (knew a statement was untrue and published it anyway, or acted with “reckless disregard” for whether the statement was true or false). But the judge in Cox’s case said that these precedents did not apply, because she was not a journalists and her blog was not “media:”

Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

Judge Hernandez is technically correct: I was unable to find a case holding, in the context of applying a negligence standard because the defendant is a media entity, that bloggers are journalists and that blogs are media. But there ARE cases with this holding: two prominent examples are O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App., 6th Dist., 2006) (involving California's shield law) and Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010) (New Hampshire's constitutional journalist's privilege).

As pointed out by Forbes magazine, there may be other reasons that Cox is not a journalist. But that should not affect the legal standard, and it is unreasonable for Judge Hernandez to expect there to have already been an Oregon case holding that a blog or web site was "media" for the Gertz rule regarding the plaintiff's burden of proof in cases against media defendants. Even though the Internet has been around for almost two decades now, it is still too new, and appellate decisions involving the web are still too few (though growing), for that issue to have already been litigated.

It appears, however, that the cases that have found blogs to be media were not brought to this judge's attention. The fact that Cox is representing herself may have something to do with that.

The fact that Cox is writing on blogs does not prevent her from being categorized as a journalist under the law. A lawyer, however, she is not.

The Dragon Tatoo and the FTC's Taboo

2011-12-07T00:00:00.000-08:00

Some of the usual sources for film and media insiders -- Indiewire; The New York Times "Carpetbagger" blog; NPR's "Monkey See" blog; the "All Things Digital" blog; and the Poynter Institute site formerly known as Romenesko -- are buzzing over film critic David Denby's review of “The Girl with the Dragon Tattoo” in the latest New Yorker magazine.

While Denby's review is generally positive, calling the film a "bleak but mesmerizing piece of filmmaking," he published it prior to the agreed-to "embargo date" for reviews of the movie, a violation of protocol which producer Scott Rudin described in an e-mail to Denby (published by Indiewire) as "a very, very damaging move and a total contravention of what [Denby] agreed [by attending an advance screening.]"

As described by Linda Holmes of NPR, such embargoes are a frequent part of movie reviewing.

[I]n return for getting to attend screenings with their dual advantages of seeing movies free and seeing movies early, you're asked to follow some requests — one is that you give in to those obnoxious phone-confiscating policies, but the most common is an embargo date: an agreement not to run your review until a particular day. Studios like embargo dates — which are most commonly the opening date of the movie, which makes Dragon Tattoo unusual — because they cause all the reviews to hit on the same day, which is good for the movie's PR push.

As Holmes notes, the previews at which movie reviewers see the films are free: neither the reviewers, nor their employers, pay for the screenings.

This standard practice of free movie previews for reviewers without disclosure to readers may be considered an ethical issue by some. But for bloggers and others who review movies on social media platforms, failure to disclose the free preview could run afoul of the Federal Trade Commission's
"Guides Concerning the Use of Endorsements and Testimonials in Advertising." That's because, as I've written before, the guides -- which the FTC can enforce with fines -- require disclosure of such freebies in new media, while not requiring it of traditional media, on the rationale that "everyone knows" that traditional media get such perks.

I should note here that the FTC has said that it will not go after individual bloggers; instead, it has targeted companies and ad agencies that have offered free or reduced-price products and services to bloggers, without telling them of the disclosure requirement.

But the problem is that the FTC should not apply one set of rules to social media and another to traditional media. If the fact that David Denby and other movie reviewers for mainstream media outlets saw "The Girl with the Dragon Tatoo" for free need not be disclosed, then there should be no such requirement for their colleagues in newer forms of media.

D.C. Courts Fight the Future in New Electronic Device Rule

2011-11-14T22:11:00.008-08:00

(cross posted at the Citizen Media Law Project)
The Blog of the Legal Times reports that the Superior Court of the District of Columbia -- the local trial court for the nation's capital -- has issued a new administrative order regarding use of electronic devices in the courthouse. And like other courts, the new rules impose a class system of "haves" and "have nots" -- favored types of the people can have and use the devices, while everyone else can not. The rules also contain an archaic view of electronic devices that effectively means that even when the rules allow them to be used, they cannot be used for any modern, web-based functions.

Unlike most other "state" courts, the D.C. Superior Court maintains an almost complete ban on photography in court. See D.C. Super. Ct. R. Crim. Proc. 53(b); D.C. Super. Ct. R. Civil Proc. 203(b); D.C. Super. Ct., Juv. Proceed. R. 53(b), and D.C. Super. Ct. Dom. Rels. R. 203(b). The Radio Television Digital News Association points out a limited exception to the ban: the juvenile and criminal court rules permit photography “in any office or other room of the courthouse” with the consent of the person in charge of the office or room and the person or people being photographed.

In practice, this means that all such devices must be left outside the courthouse, or checked with court officers at the entrances.

The new order, Admin. Order 11-17 (D.C. Super. Nov. 9, 2011) continues this policy, by generally requiring that "before entering any courtroom, everyone shall turn off all electronic devices in his or her possession. Pocket-sized electronic devices shall be turned off and stowed so that they are not visible." The order's definition of "electronic device" is expansive, and includes all types of cameras (whether film or digital, cell phones, computers, analog or digital recorders, MP3 players, "and any other device that is capable of receiving, transmitting, or recording messages, images, sounds, data, or other information by electronic means".

The order specifically mentions that it covers "all members of the media and students, who may take notes manually," but the order also provides that "[m]embers of the media may be given permission by the presiding judicial officer to use electronic devices in the courtroom for official business."

While the order says that this requirement applies to "everyone," it does not really apply to every person in the courthouse. The order goes on to state that "[t]his prohibition does not include a litigant representing himself or herself and to whom the court has given permission to use an electronic device or any person appearing before a judicial officer in the well of the courtroom if authorized by the presiding judicial officer to use an electronic device in the courtroom." The order also exempts "[m]embers of the Bar or other individuals who are authorized to sit in designated rows of the courtroom (such as pretrial service officers, probation officers, supervision officers, or social workers in court on official business)."

So, the new rules create a class system for electronic devices: the haves and have-nots. And, as I've written before, that's a problem.

But there's an even bigger issue with the new rules. After creating the class system for who can and cannot have and use devices, the order then limits what the "haves" can use these devices for:

If an electronic device is used while sitting in a designated row in a courtroom by a Member of the Bar, pretrial service officer, probation officer, supervision officer, social worker or litigant representing himself or herself, or by a member of the media who is given permission by the presiding judicial officer, the following restrictions apply unless otherwise directed by the presiding judicial officer:
Usage is limited to court or business-related matters, such as legal research, scheduling, presentation of evidence, etc.
Photographs or imagery shall not be made.
Audio or video recordings shall not be made.
Transmissions of any type shall not be sent or received.
A call shall not be made or received on a cellular telephone.
The notification mode of any cellular telephone shall be set on vibrate or silent.
An MP3 player or any equivalent device shall not be used; ...

So, what CAN these devices be used for? From the language of the order, it seems that the only permissible use is obtaining information already stored on an electronic device. The prohibition against "transmissions" would presumably keep users from accessing anything via the Internet, or via e-mail. (See this post on the Volokh Conspiracy blog on this issue.)
Violators will risk being removed from the courthouse, as well as criminal and civil fines for contempt.

With more people relying on cloud computing to store e-mail, calendars, and documents, this rule is archaic before it even goes into effect. Or, more likely, those authorized to use such devices will use them to access this material anyway, since it will be difficult, if not impossible, to know where the information is stored: on the device or elsewhere.

Instead of fighting the inevitable, the District of Columbia courts should instead focus on controlling use of electronic devices in ways that matter: to protect the rights of litigants, ensure the integrity and decorum of trials, and guarantee the incorruptibility of verdicts.

UNR Scores Off the Court

2011-11-03T00:32:00.000-07:00

The local newspaper here in Reno has published a profile of University of Nevada, Reno basketball player Dario Hunt which starts with a discussion of the blog that he contributes to, living.life.fearless.

The interesting thing for me about the profile is that even though Hunt plays for a NCAA Division I school, UNR -- unlike other some schools -- has not stopped him from having his own blog. Indeed, UNR basketball coach David Carter is quoted in the article, although he talks about Hunt's athletic prowess, not the blog.

As I wrote last year, several top-tier NCAA schools have adopted policies barring athletes from commenting about their games and teams on social media, while others have adopted a ban on social media for at least some athletes, either during the season or entirely. As I wrote, such bans by public universities are of dubious legality, although schools may restrict athletes' insubordinate comments about coaches or teammates.

I have to admit that I'm not a huge fan of college sports, but it's good to know that I work for an institution that doesn't overstep its bounds by attempting to control the speech of its athletes.

Jurors and Social Media Still a Hot Topic

2011-11-01T22:54:00.001-07:00

The media fascination with the issues involving juror use of the Internet and social media during trial continues.

I'm been quoted in two articles on the topic published in the last week, in the Chicago Tribune and the November issue of Plaintiff magazine.

Meanwhile, more incidents of such juror misconduct continue to come to light...

Federal Courts' Camera Experiment Rolls On

2011-10-17T13:34:00.001-07:00

(cross posted at the Citizen Media Law Project)
After a slow start, the latest experiment of video cameras in federal courtrooms, announced last October, appears to be finally starting to roll.

The first recording of a proceeding recorded under the experiment, a preliminary injunction hearing in Gauck v. Karamian, Civil No. 11-2346 (W.D. Tenn. filed May 4, 2011), was posted in July. Since then, four of the fourteen federal trial courts authorized to record civil proceedings under the experiment have posted recordings of six cases online.

Besides the Gauck case – in which a television news reporter sued a racy web site for misappropriation over its alleged use of her name, and eventually settled after the preliminary injunction was denied – the recorded proceedings include the following:

jury selection and the trial in a contract dispute, Parma Community General Hospital v. Premier Anesthesia of Parma, Civil No. 09-00325 (N.D. Ohio filed Feb. 9, 2009);
trial in a personal injury case, Morton v. Fort Madison Community Hospital, Civil No. 09-00179 (S.D. Iowa filed Dec. 17, 2009);
a hearing in an effort by a convicted felon to have his life sentance vacated, claiming ineffective assistance of counsel in his trial on gun charges stemming from a 1997 armored truck robbery, United States v. Andrew L. Thomas, Civil No. 03-2416 (W.D. Tenn. filed June 2, 2003);
trial in a trademark/unfair competition dispute, Groeneveld Transport Efficiency, Inc. v. Lubecore International, Inc., Civil No. 10-702 (N.D. Ohio filed Apr. 2, 2010); and
a hearing on a stipulated order in a long-running suit over drinking water quality in Guam, United States v. Guam Waterworks Auth., Civil No. 02-00035 (D. Guam filed Dec. 20, 2002).

These cases are from only four of the fourteen courts approved for participation in the courtroom camera experiment. So, what about the other courts? Here is the status of the cameras experiment in the ten federal district courts in the program in which no trial proceedings have been recorded and posted online:

Middle District of Alabama: The court issued a notice seeking comment on a proposed amendment to Local Rule 83.4, which bans cameras from courts within the district, to allow a limited exception for the experiment. The submission by the Radio Television Digital News Association in response to this notice is available here.
Northern District of California: On Sept. 1, 2011, the court adopted General Order 65, implementing the Judicial Conference guidelines for the experiment. The court has also created a page on its website explaining the program. The court's involvement in the cameras experiment comes as it continues to be roiled by the controversy over broadcast of the trial of a suit challenging the constitutionality of anti-gay marriage Proposition 8. See Hollingworth v. Perry, 130 S. Ct. 705, 175 L.Ed.2d 657 (2010); see also Perry v. Schwarzenegger, NO. C 09-02292 JW, 2011 WL 4527349 (N.D. Cal. Sept. 19, 2011) (ordering release of trial recordings), stayed, Perry v. Brown, No. 11-17255 (9th Cir. Sept. 26, 2011).
Southern District of Florida: Among the numerous changes in the court's local rules proposed in Admin. Order 2011-82 (S.D. Fla. Sept. 28, 2011) is an addition to the court's Local Rule 77.1 (which limits cameras to ceremonial proceedings) to allow for the camera experiment. The court is currently accepting public comment on the changes, and will hold a hearing Nov. 17. The proposed changes to Rule 77.1 are slated to go into effect on Dec. 1, 2011.
Northern District of Illinois: Local Rule 83.1(c) (available via this link) completely bans cameras from all court proceedings. Aside from a slight modification adopted in June 2011 to add the 8th floor and remove the 9th of the Chicago courthouse from this restriction, see Gen'l Order 11-0011 (N.D. Ill. June 8, 2011), there is apparently no current proposal to change the rule to accommodate the cameras experiment.
District of Kansas: On Oct. 14, the court issued a press release announcing the judges participating in the experiment. Local Rule 83.2.1, which generally bars cameras from all but ceremonial proceedings, also exempts "official court records" and "employees who work in the courthouse," which probably would allow for the federal experiment, which requires cameras to be operated by court personnel.
District of Massachusetts: The court issued a public notice and District Court Chief Judge Mark L. Wolf held a press conference Oct. 6, announcing that the court's participation in the program would begin Oct. 17. Local Rule 83.3 was modified and new Local Rule 83.3.2 was adopted to allow for the experiment. In 2009, a judge of this court appoved the video webcasting of a music downloading trial, but was reversed on appeal. See In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009) (reversing trial court order allowing webcast), cert. denied, Tenenbaum v. Sony BMG Music Entertainment, 130 S.Ct. 126, 175 L.Ed.2d 234 (2009).
Eastern District of Missouri: The court amended Local Rule 13.02 on June 24, 2011 (approved by the Eighth Circuit Judicial Council on July 6, 2011) to allow for the new camera experiment. The amendment adopted the U.S. Judicial Council guidelines for the test, which the court posted on its website.
District of Nebraska: While the experiment was slated to officially begin July 18, in early July the court was waiting for the camera equipment to be delivered and installed. Chief District Judge Joseph F. Bataillon was enthusiastic about the program, pointing out to the Lincoln Journal Star that the court had been among the first to offer electronic document filing and audio digital recordings. "This is just the next step," he told the newspaper.
Southern District of Ohio: Three of the eight district judges within the district volunteered for the federal cameras experiment. One of the three, District Judge Gregory L. Frost, told The Columbus Dispatch that he was ambivalent about the program. "I don't have a dog in the fight," he said. "I don't care one way or the other if we use cameras." On June 24 the court released a revised Local Rule 83.2 to allow for the experiment.
Western District of Washington: In anticipation of the experiment, on Nov. 18, 2010, the court adopted a revised Local General Rule 4, prohibiting cameras "except as authorized by the Judicial Council of the United States or the Judicial Council of the Ninth Circuit." See Gen'l Order 10-06 (W.D. Wash. Nov. 10, 2010).

The experimental program is the newest chapter in the long saga of the issue of camera coverage of federal trial courts, and is the second such test in the federal courts (the first occurring in the early 1990s).

The experiment will continue for up to three years, with the Federal Judicial Center producing interim reports at the end of its first and second years and a final study of the program at its conclusion.

Even after all the courts in the experiment are revved up, the experiment's limitations will mean that the number of cases that are recorded and posted will probably be few. Then, only time will tell if this experiment finally leads to federal courts being open to regular camera coverage, or if it will be just another short period of openness before cameras are once again left outside the courtroom doors.

Radio Daze

2011-10-13T17:35:00.000-07:00

I was interviewed this morning on Oregon Public Broadcasting about defamation online as part of a segment on an Oregon doctor who sued a woman who blogged and tweeted about a 2001 disciplinary incident against the doctor. (The case was settled last week.)

The segment is available here.

A New Contender in Oregon

2011-10-11T10:28:00.003-07:00

For a while I've been tracking a number of defamation cases stemming from posts on Twitter -- including several involving singer Courtney Love -- to see which would be the first Twitter libel case to go to trial in an American court. Now a new contender -- a case from Oregon -- has emerged as a possible contender.

As Sally Ho reports in an article -- in which I'm quoted -- in The (Portland) Oregonian, a Tigard, Oregon physician has filed a defamation suit against a woman who blogged and tweeted about his highly-advertised "aesthetic medicine" practice, including reporting on a 2001 order by Oregon's Medical Board that he not be alone with female adult patients after a patient accused him of offering to accept intimate (but non-intercourse) physical contact in lieu of payment. (The Board lifted the limitations in a subsequent 2009 order.)

The defense is seeking to get the case dismissed under Oregon's anti-SLAPP statute (Ore. Rev. Stat. 31.150), which allows for easy dismissal of defamation lawsuits found to be primarily filed as a means of limiting discussion of an issue of public interest. The court has already ruled that the 2001 order was an issue of public interest; a hearing next week will examine the other question under the anti-SLAPP statute, the viability of the plaintiff's case.

If the anti-SLAPP motion is not granted, and the case is not dismissed, this case may be a new contemder for the dubious distinction of being the first trial in a Twitter defamation case. Stay tuned...

On the Back Page

2011-10-06T12:09:00.000-07:00

My latest article, "Cameras roll in new federal court experiment," appears as "The Back Page" column -- on, you guessed it, the back page -- of this month's issue of The Brechner Report, published by the University of Florida.

Another Score in My Media Blitz

2011-10-02T14:12:00.004-07:00

Those of you who know me know that I'm not exactly a huge sports fan. My hometown roots lead me to support the often-hapless New York Mets, and I'll attend or watch games of various sports with some friends, but that's about it.

But I do know something about the law, which led to an e-mail interview with The Legal Blitz web site about efforts by sports leagues and teams -- particularly the NHL, which I don't follow at all (sorry, Michael) - to limit their players' social media activities. I wrote about this issue in regards to college athletes almost a year ago.

Thanks to Steve Silver of The Legal Blitz site for the interview.

A Second Chance for Love

2011-09-26T23:07:00.003-07:00

Back in January, it looked like a defamation lawsuit brought by fashion designer Dawn Simorangkir against singer Courtney Love over her tweets would be the first libel trial in the U.S. stemming from Twitter. But then the parties settled for $430,000 plus interest.

In the meantime, a Twitter libel case went to trial in the United Kingdom, and ended in a £3,000 in damages plus £50,000 in court costs. But Americans are still waiting (on the edge of their seats? :) ) for the first defamation trial stemming from Twitter.

And now it turns out that Courtney Love has a second chance at being first. In addition to the lawsuit against her for her tweets by Simorangkir and another brought by "cookie diet" doctor Sanford Siegal, also settled, Love was also sued by a law firm that temporarily represented Love in disputes regarding her husband Kurt Cobain's estate, over another statement on Twitter, as well as a comment to the New York Post.

According to the Hollywood Reporter's Hollywood, Esq, blog, a California judge has now dismissed some the claims in the law firm's lawsuit against Love, but has allowed the law firm to amend its complaint and has also allowed the suit as a whole to proceed.

This means that Love now has a second chance for becoming a part of U.S. legal history, by being the defendant in the first American defamation trial stemming from Twitter. FWIW.*
* "For what it's worth," in Twitter-speak.

He Tweets, He Misses! Court Blocks Gilbert Arenas's Preliminary Injunction

2011-09-15T15:11:00.003-07:00

(cross posted at the Citizen Media Law Project)
Basketball Wives: Los Angeles lives! And one of the reasons is an athlete's Twitter habit.

Orlando Magic point guard Gilbert Arenas sued in California federal court (complaint) to stop the broadcast of the primiere episode of the VH1 reality show, which the channel touts as featuring "a group of dynamic women with relationships to some of the biggest basketball players in the game."

Two of the women featured on the show are Laura Govan, who broke up with Arenas after having four children with him, and her sister Gloria Govan, who is engaged to Los Angeles Laker Matt Barnes. Gloria Govan was previously featured on another show, Basketball Wives, based in Miami, of which the L.A. show is a spinoff.

Arenas's lawsuit to stop the new show claimed that it would improperly use his name and likeness to imply that he was involved in the program. In order to receive the preliminary injunction he was seeking, Arenas had to show (among other elements) that he was likely to win on his claims, and that he was likely to suffer irreparable harm if the show proceeeded.

While District Judge Dolly M. Gee concluded that the show was likely to include Arenas's name in the context of Laura Govan's prior relationship with him, she noted that Arenas himself had made his relationship with Govan a matter of public concern, by writing about it in numerous messages on his Twitter account (partially archived here after Arenas recently closed his account). Arenas v. Shed Media US Inc., No. CV 11-5279-DMG (C.D. Cal. order Aug. 22, 2011).

She also rejected Arenas's claim that allowing the show to proceed would cause him irreparable harm, citing his guilty plea for carrying a pistol without a license and his tweets stating his views on women, which the court described as "opinions that would be characterized by many, if not most, people as crude and offensive."

Judge Gee also noted that Arenas had tweeted about the show, undermining his claim that his reputation would be injured by an association with the program, and had spoken about his breakup with Govan in a radio interview.

Adding in the harm to VH1 if the show was halted, and the public interest, Judge Gee denied Arena's effort to stop the program, and granted VH1's motion to strike Arena's right of publicity claim.

So Basketball Wives: Los Angeles lives, and we can now follow the antics of the Govan sisters and the five other women with basketball connections.

The lawsuit on Arenas's remaining claims lives also; in early September, Judge Gee set a trial date in June 2012.

But Gilbert Arenas may not be too upset: according to a posting on the VH1 blog, Govan is saying that she and Arenas have gotten back together.

Two Online Marketing Bungles

2011-09-08T10:18:00.002-07:00

Two recent developments show that marketers who attempt to use pranks as part of their online marketing campaigns run the risk of instead engendering anger rather than sales. And there are also legal risks to such activities.

The New York Tiimes reports on a marketing campaign in which food bloggers and mommy bloggers were invited -- and were invited to bring two of their readers -- to what they were told was a dinner at an "underground restaurant" in New York by “Ultimate Cake Off” chef George Duran and featuring "supermarket guru" Phil Lempert. But the restaurant didn't really exist beyond the five dinners, and the meal featured an entree -- three meat and four cheese lasagna -- and a dessert -- razzleberry pie, served a la mode -- that are two of the Marie Callender’s brand frozen foods. Marketers for ConAgra, Marie Callender’s parent company, placed hidden cameras in the room, and planned to record the blogger's praise of the meal before its nature was revealed.

But, as reported by the Times, many bloggers' reactions after the secret was revealed was less than enthusiastic (examples here, here, here, here, here and here). Not all reaction was negative (see this post, for example), but the overwhelming sentiment amongst the bloggers involved was anger that they had been duped and, for those who ran contests to have readers join them at the dinner, their credibility with their audiences threatened.

But there's another issue here. As I've written before, the Federal Trade Commission has said that while the its endorsement guides require bloggers to disclose freebies and discounts that they get for writing about particular products or services, marketers that provide the goodies must inform the bloggers of their obligation. It has even taken in some cases where marketers who failed to do so (here, here and here). The sponsors of the event appear to have never told the bloggers about the FTC guides. (Of course, doing so may have "ruined" the "surprise" about the meal.)

In addition, the stunt probably ran afoul of New York City zoning rules.

Meanwhile, Evan Brown's "Internet Cases" blog reports on a California appeals court's decision allowing a woman's lawsuit against Toyota and advertising agency Saatchi & Saatchi North America to proceed, after she received a series of creepy e-mails from an apparent stalker with access to her personal information, which turned out to be an advertising campaign for the Toyota Matrix. Toyota had tried to get the legal case dismissed and the controversy sent to an arbitrator on the grounds that the women had consented to receiving the e-mails by clicking on "I agree" on a Toyota website that purported to be a "Personality Evaluation." But the woman argued that any agreement to the terms and conditions, including a mandatory arbitration clause, was void because it was based of fraud. The court agreed.

It is unsurprising, of course, that the terms and conditions were drafted in such a way as to conceal from Duick the true nature of the conduct to which she was going to be subjected—Duick was undisputedly the target of a prank, and it would make no sense for the pranksters to warn the target in advance. Our conclusion that the contract is void because of fraud in the inception is not, however, based on any alleged facts concerning defendants‘ intent. Rather, our conclusion is based solely on the following propositions: (1) defendants were the drafters and creators of the relevant web pages, including the full text of the terms and conditions; (2) by drafting and presenting the terms and conditions as they did, including the use of the phrase "Personality Evaluation," defendants misrepresented and concealed (whether intentionally or not) the true nature of the conduct to which Duick was to be subjected; and (3) Duick was not negligent in failing to understand the true nature of the conduct to which she was to be subjected, because no reasonable person in her position would have understood it.

Duick v. Toyota Motor Sales, U.S.A., Inc., No. B224839, 2011 WL 3834740, slip op. at 7 (Cal.App., 2d Dist. Aug. 31, 2011).

As online advertising and promotion moves beyond display and pop-up ads, to interactive experiences, marketers have be careful not to push the boundaries so far as to offend their intended audiences, or run into legal trouble for doing so.

New California Law Prohibits Jurors' Social Media Use

2011-09-01T14:59:00.004-07:00

(cross posted at the Citizen Media Law Project)
California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions.

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions make no specific mention of electronic research or communications.

The new law also charges court officers to bar jurors from communicating outside the jury room, by electronic or other means, during deliberations.

Under the new statute, "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" can be punished as contempt of court, a misdemeanor.

Assembly Member Felipe Fuentes, who sponsored the legislation, explained the need for the changes in his statement of support: "Although current law arguably prohibits the use of electronic/wireless communication devices to improperly communicate, disseminate information or research, the fact that this kind of communication is not expressly included in current law has resulted in increased problems in courts across the county."

Several of these problems have been in California courts.

In 2007, a California appellate court reversed a trial court’s refusal to grant a motion by a convicted burglary defendant to contact the jurors in his trial, after the jury foreman discussed the jury’s deliberations in the case on his blog. People v. McNeely, No. D048692, 2007 WL 1723711 (Cal. App., 4th Dist., Div. 1 June 14, 2007) (unpublished), reh’g denied (Cal. App., 4th Dist., Div. 1 July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007).
In 2008, a juror who posted a picture of the weapon in a murder trial to his blog was held in contempt by a Superior Court judge, but no penalty was imposed after the judge determined that the blogging did not result in an unfair trial. See Raul Hernandez, Juror held in contempt for blog of murder trial, Ventura County (Cal.) Daily Star, Jan. 23, 2008.
In 2009, a California appeals court denied an appeal by a man of convicted of torture and other crimes, including spousal and child abuse offenses, who alleged that the jury was tainted by a juror’s online search for a definition of the term “great bodily injury.” People v. Hamlin, 170 Cal. App. 4th 1412, 89 Cal.Rptr.3d 402 (2009).
Another appellate decision in 2009 affirmed a trial court’s denial of a new trial motion in a murder case, even though a juror was found to have blogged extensively about the case during the trial. People v. Ortiz, Crim. No. B205674, 2009 WL 3211030 (Cal. App., 2d Dist. 2009) (unreported).
In February 2011, a trial court judge, after determining that a jury foreman had been posting updates to Facebook during a criminal gang beating trial, ordered the foreman to authorize Facebook to make the postings available to the judge for his review. The foreman appealed, and the California Supreme Court vacated the appellate court’s refusal to act on the trial court’s order. The case is now fully briefed and pending before the California Court of Appeals. See Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. filed Feb. 8, 2011) (docket showing that case is fully briefed as of May 12, 2011) (appeal of Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 [Cal. App., 3d Dist. Feb. 10, 2011] [denying petition], vacated, No. S190544 [Cal. Mar. 30, 2011].)

Then-Governor Arnold Schwarzenegger vetoed a similar bill last year, explaining that "[e]xisting law already sufficiently deals with communications among jurors," and that "this type of admonishment is better handled through court rules rather than by statute."

The new law will go into effect on January 1, 2012.

Juror Sentenced for Contempt After "Friend" Attempt

2011-08-29T15:35:00.000-07:00

The [Ft. Worth, Tex.] Star-Telegram reports that a Texas juror has pleaded guilty to four counts of contempt and was sentenced to two days of community service after he attempted to “friend” on Facebook the defendant in a civil case stemming from a car crash on which the juror was sitting. After the “friend” request, the juror sent the defendant an apology, saying that he had confused her with someone else.

Short Statement in The State

2011-08-29T11:55:00.004-07:00

I was quoted over the weekend in an article in The State newspaper (and posted on their sports website, gogamecocks.com) on University of South Carolina football coach Steve Spurrier's decision to bar his players from using Twitter during the season.

The newspaper's call was based on my earlier post on the legality of coaches at public universities imposing such restrictions.

Once again, my direct quote in the article could itself be a tweet: only 49 characters.

More Cases, But No Twitter Trials

2011-08-26T10:33:00.004-07:00

As Twitter becomes more ubiquitous -- it now has more than 200 million registered users, and 155 million tweets are sent each day -- defamation, privacy and other lawsuits stemming from tweets are becoming more common.

I've been chronicling them in this blog, including lawsuits against singer Courtney Love (one settled, one pending); a suit by NBA referee against an Associated Press reporter (pending); and the lawsuit against the creator of the "Cookie Diet" against Kim Kardasian (dismissed, possibly settled).

Last week Media Bistro's "All Twitter" blog compiled these lawsuits, pegged to a Hollywood Reporter story on a suit newly filed by Notifi Records CEO Ira DeWitt against former New Edition singer Johnny Gill over a number of tweets. In addition, an Oregon TV station reports on a lawsuit filed by a doctor over a tweet and blog post.

None of these cases have gone to trial, so we're still waiting for the the first defamation trial -- and award -- in an American court stemming from Twitter. The "twible" watch continues.

Ashton Kutcher Gets a Pass; Was the FTC Punk'd?

2011-08-24T22:36:00.001-07:00

The New York Times "Bits blog" reports that the Federal Trade Commission has announced -- in a tweet, which is noteworthy in itself -- that it would not be investigating the online issue of Details magazine, guest edited by actor Ashton Kutcher, which profiled a number of tech companies in which Kutcher has investments. (The Times story came after gawker.com pointed out the breach of journalistic ethics.)

The FTC's announcement came one day after the blog reported that Richard Cleland, assistant director of the comission's division of advertising practices, had said that online magazine could run afoul of the FTC's "Guides Concerning the Use of Endorsements and Testimonials in Advertising."

“If you’re out there promoting individual products that you have a specific investment in, it needs to be disclosed,” the blog reported Cleland as saying. “If you have a significant economic investment that is not otherwise apparent, that may potentially affect the credibility of your endorsement, and I see that as a potential problem.” “It’s certainly a possibility that a case like this could be investigated,” he added.

As I've written before on this blog and elsewhere, the FTC guides require disclosure of compensated endorsements in media where such compensation is not obvious (in the view of the FTC), such as on blogs and other social media.

Since issuing the final guides in late 2009, the commission has taken action in three cases, by reaching settlements with Loft stores, a company selling online guitar lessons and a public relations firm. But it declined to act against various companies' relationships with bloggers, including Google, Absolut vodka, exhibitors at the 2011 North American International Auto Show and a Moroccan hotel.

By announcing its decision not to pursue Kutcher under the Guides via Twitter, with its 140-character limit, the commission's announcement did not provide any details on the decision. And an FTC spokesman did not elaborate in a Times interview, saying only that “Rich Cleland misspoke.”

New State-By-State Compilation of Social Media Jury Instructions

2011-08-11T05:29:00.000-07:00

Last year I began a state-by-state compilation of jury instructions regarding jurors' use of the Internet and social media, which has been one of the most popular posts on this blog.

Now I have put together a complete compilation of such instructions from the every state, as well as the federal circuits, along with summaries of cases in which the courts have dealt with juror using the Internet and social media during trial.

The new compilation is published in the latest edition of the Reynolds Courts & Media Law Journal (available here), the journal I edit for the Donald W. Reynolds National Center for Courts and Media.

Cameras Roll in New Federal Court Experiment

2011-07-27T13:02:00.007-07:00

(cross posted at the Citizen Media Law Project)
It lacks the drama of the various flavors of "Law and Order" or the intrigue of a John Grisham novel. But the video of a July 21 hearing on the plaintiff's request for a preliminary injunction in Gauck v. Karamian, Civil No. 11--2346 (W.D. Tenn. filed May 4, 2011) is nevertheless an important milestone.

Aside from the issues at stake in the hearing itself -- which are of interest to citizen journalists and bloggers -- the video is the first recording of a federal court proceeding in the federal court's new pilot program of cameras in selected courtrooms.

The program, which was approved by the U.S. Judicial Conference last year and allows court-operated cameras to cover civil proceedings in 14 federal trial courts, is just the latest chapter in the long saga on the question of camera coverage of federal trial and courts.

This is not the first time that the federal courts have experimented with camera coverage of their proceedings. From 1991 through 1994, the federal courts conducted a limited test of camera coverage of civil trials in eight federal district courts, which led to a recommendation that federal courts allow televised proceedings. But the Judicial Conference -- which sets policies for all federal courts except the U.S. Supreme Court, which sets its own rules -- rejected this recommendation, concluding in 1994 that “the intimidating effect of cameras on some witnesses and jurors was a cause for serious concern.”

The Judicial Conference then relented a bit, deciding in March 1996 to allow each federal Circuit to decide the issue for itself and the district courts in its geographic area, while strongly urging the Circuits to follow the Conference’s 1994 policy.

In reaction to the change, the Second Circuit (covering Connecticut, New York, and Vermont) permits its district courts to allow cameras, resulting in varying policies under each district court's local rules.

But while most states allow camera coverage of at least some court proceedings, the question of cameras in federal courts remains a contentious one, as shown by the recent controversies over the proposed video webcasting of a music downloading trial in a Massachusetts federal court, see In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009) (reversing trial court order allowing webcast), cert. denied, Tenenbaum v. Sony BMG Music Entertainment, 130 S.Ct. 126, 175 L.Ed.2d 234 (2009), and the planned live broadcast and streaming of a trial challenging the constitutionality of California's anti-gay marriage Proposition 8. See Hollingworth v. Perry, 130 S. Ct. 705, 175 L.Ed.2d 657 (2010).

The first proceeding to be recorded and posted online in the new cameras experiment was the preliminary injunction hearing in Gauck v. Karamian. The case was brought by Memphis, Tenn. television reporter Lauren Lee Gauck Giovannetti -- who uses the name Lauren Lee professionally and filed the suit using her maiden name -- against the owner of the TheDirty.com website, which she alleged published sexually explicit photos which the site falsely claimed were of her (complaint). This is not the only case making claims against the site; other examples are here and here.

While the photos were removed after Gauck's attorney contacted the site, she still sought a preliminary injunction barring publication (re-posting) of the allegedly damaging material. This request was the subject of the July 21 hearing.

On July 12, Chief Judge Jon Phipps McCalla, presiding over the case, informed the parties that the preliminary injunction hearing was eligible to be recorded as part of the cameras in the courtroom experiment. Both parties agreed to participate (defendants' consent). "One of the reasons we consented to cameras was to hopefully ensure we would get a hearing," Gauck's attorney told the Memphis Commercial-Appeal.

"The parties in this case have consented to participation in a pilot project authorized by the Judicial Conference of the United States ... .," Judge McCalla said at the start of the hearing. "The court is required under [the experiment's] guidelines to remind all persons present in the courtroom that a recording is taking place and to request that they, of course, limit noise or side conversations that might adversely affect the project. The court is also required to caution attorneys, parties and any witnesses about disclosing confidential or personal information. By consenting to a video recording ... neither party is agreeing or consenting to the public disclosure of material as to which they have previous asserted a privacy right or other claim."

Although both parties agreed to the recording, they were barred from displaying in court (and thus on camera) the explicit photographs at issue in the case because they had previously agreed to keep the photos under seal. "[The photos] will remain under seal and obviously since they're under under seal they're not going to be displayed [on camera]," Judge McCalla said.

Some of the pictures and posts on the site were, however, described during the proceeding.

During the proceeding, Gauck's attorney argued that the injunction was necessary to protect her from further harm to her reputation as a journalist, and Gauck herself testified about the potential harm that the photos could cause. The website's attorney argued that the material was posted by a third party, not the website owners or editors, and that the defendants were thus not liable for the postings under section 230 of the federal Communications Decency Act (47 U.S.C.§ 230).

At the conclusion of the hearing, Judge McCalla said that he was taking the case under advisement, and that the preliminary injunction motion involved "substantial issues and will require an opinion."
While Judge McCalla has not yet issued that opinion, the case already has set a precedent by being the first -- and so far, the only -- proceeding recorded and posted online in the federal courts' new test of cameras in courtrooms.

Only time will tell if this experiment finally leads to federal courts being open to regular camera coverage, or if it will be just another short period of openness before cameras are once again left outside the courtroom doors.

For more on the federal experiment, see Mickey Osterreicher's post for the National Press Photographers Association.

Will "Hot News" Fly Away with Flyonthewall Ruling?

2011-06-22T10:05:00.001-07:00

Almost a year after it heard arguments in the case, the Second Circuit Court of Appeals has ruled that Wall Street analyst's buy and sell recommendations are legitimate news, and that financial and investment firms cannot prevent dissemination of these facts by a website, Theflyonethewall.com.

The case was an appeal of a permanent injunction and an award of $12,750 in statutory damages, plus interest and attorneys' fees, to three financial research firms against Theflyonthewall, which charged subscribers for summaries of the research reports that the financial firms offer to their own clients, including recommendations to buy, sell or hold securities.

The firms claimed that Theflyonthewall violated their copyrights in the reports, and that the site's actions constituted unfair competition under the "hot news" doctrine, which protects use of valuable information gathered by others at considerable expense.

The 2d Circuit held that the "hot news" doctrine applied only to information collected by an entity seeking to protect it; not to information, such as the recommendations at issue in this case, created by the entity.

Fly is not ... "free-riding." It is collecting, collating and disseminating factual information -- the facts that [the financial firms] and others in the securities business have made recommendations with respect to the value of and the wisdom of purchasing or selling securities -- and attributing the information to its source. The Firms are making the news; Fly, despite the Firms' understandable desire to protect their business model, is breaking it. ...

In pressing a "hot news" claim against Fly, the Firms seek only to protect their Recommendations, something they create using their expertise and experience rather than acquire through efforts akin to reporting.

Barclays Capital Inc. v. Theflyonthewall.com, Inc., Civil No. 10-1372 (2d Cir. June 20, 2011), at 60, 62 (original emphasis) (decision).

Using this limited definition of the "hot news" doctrine, the court held that it was preempted by the federal copyright law: even though the the factual information at issue in the case -- the financial firm's recommendations -- was not protectable by copyright.

In a concurring opinion, Judge Reena Raggi reached the same conclusion, but was not as dismissive as the majority of a prior decision involving NBA scores.

The flyonthewall ruling limits the "hot news doctrine," which was already on weak ground. It was created in International News Service v. Associated Press, 248 U.S. 215 (1918), in which the U.S. Supreme Court found that a news agency's use and sale of news information collected and published by a rival agency constituted misappropriation.

The only matter that has been argued before us is whether defendant may lawfully be restrained from appropriating news taken from bulletins issued by complainant or any of its members, or from newspapers published by them, for the purpose of selling it to defendant's clients. ... Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi property for the purposes of their business because they are both selling it as such, defendant's conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainant's goods as its own.

International News Service v. Associated Press, at 232, 242.

The INS decision, as a common law creation of a federal court, is no longer valid law because of the Supreme Court's later rejection of any federal common law. See Erie Railroad Co. v. Tompkins, 304 U.S.64 (1938). Thus the hot new doctrine survives, if it does at all, only in states that have adopted it as part of their common law. Barclays Capital Inc. v. Theflyonthewall.com, Inc., slip op. at 42. And now the Second Circuit has held that it is preempted by federal copyright law if the claim involves reporting (with attribution) of information put out by others.

We conclude that in this case, a Firm's ability to make news -- by issuing a Recommendation that is likely to affect the market price of a security -- does not give rise to a right for it to control who breaks that news and how.

Barclays Capital Inc. v. Theflyonthewall.com, Inc., slip op. at 71.

FTC Looks to Revise Online Advertising Guide

2011-06-05T18:59:00.002-07:00

(cross posted at the Citizen Media Law Project)
Eighteen months after the Federal Trade Commission revised its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," including revision of rules regarding product and service endorsements by bloggers and other social media contributors, the agency has announced that it is planning to revise its general guidelines for online advertising, which it released in 2000. Currently the Commission is soliciting comments regarding the revision.

The fundamental gist of the 2000 guidelines, published under the title "Dot Com Disclosures: Information About Online Advertising," was that "[t]he same consumer protection laws that apply to commercial activities in other media apply online," including requirements for "clear and conspicuous" disclosures. The 2000 guidelines also state that existing restrictions on solicitations by direct mail apply equally to e-mail.

But the 2000 guidelines do not discuss application of FTC rules to newer forms of Internet and electronic communication: including social media, which barely existed at the time. As the Commission stated in announcing the revision, "Since the FTC staff published Dot Com Disclosures, mobile marketing has become a reality, the 'App' economy has emerged, the use of 'pop-up blockers' has become widespread, and online social networking has emerged and grown popular."

As I've discussed before, the Commission did address social media in its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," and declared that bloggers and other social media posters who mention a product or service must disclose when they any compensation for that mention, including freebies or discounts. But the Commission added that "bloggers may be subject to different disclosure requirements than reviewers in the traditional media."As justification for this, the Commission stated that freebies and discounts for traditional news reporters are "reasonably expected by the audience," while such benefits for bloggers, Twitterers and other social media are not. I've criticized this position in prior posts.

The question is whether the Commission will take a similar approach in revising "Dot Com Disclosures." If, as the FTC stated in 2000, "fraud and deception are unlawful no matter what the medium," then the Commission's rules regarding fraudulent and deceptive advertising should apply equally to all types of media organizations, online and off.

Love in a Battlefield

2011-05-31T09:49:00.001-07:00

Just a few months after settling a lawsuit over comments she tweeted about fashion designer Dawn Simorangkir, singer Courtney Love have been sued over another statement Twitter, as well as a comment to the New York Post.

This time, the plaintiff is a law firm that temporarily represented Love in disputes regarding her husband Kurt Cobain's estate. Courthouse News has the details.

Prior to the settlement, it seemed that Simorangkir lawsuit against Love was going to be the first American defamation trial over a Tweet. But now there's still a chance -- if another suit doesn't get there first -- that Love will indeed be involved in the first court test of defamation in this new, 140-character medium.

My Short Comment on Courtroom Tweeting

2011-05-23T10:13:00.001-07:00

The Alaska Dispatch news site has quoted me in an article on an Alaska judge who expressed displeasure over two tweets sent by a television reporter covering a prominent murder trial. Since the article's about tweets, which are limited to 140 characters, it's appropriate that my comment in the article (with spaces) is 141 characters long. Guess I should have dropped the period.

Banned in (much of) Britain, And Beyond?

2011-05-23T07:36:00.011-07:00

(cross posted at the Citizen Media Law Project)
Social media are abuzz about a English Premier League footballer ("soccer player" to us Yanks) Ryan Giggs, who has obtained an order from a British court requiring Twitter to reveal the identity of various tweeters who identified him as having had an affair with model and Big Brother contestant Imogen Thomas.

The court's order against Twitter was based on a prior order issued by the court last month, which barred The Sun and other newspapers from revealing the name of the player. At the initiative of lawyers for plaintiffs in defamation cases, British courts began issuing such "super injunctions" -- which bar not just disclosure of the information subject to the order, but also ban disclosure of the order itself -- in 2008, with the number of such orders increasing ever since. (The Guardian newspaper detailed some of the initial super injunctions, while the magazine Private Eye lists several recent examples.) The growth of such orders has become a political issue in Great Britain, and there is talk of eliminating such orders.

Despite the original order barring publication of Giggs' identity, a reporter for the London Times sent several tweets naming Giggs and joking about his situation. This led the judge who issued the order to refer the reporter's violation to the Attorney General.

Gigg's name was widely distributed on Twitter and blogs, leading the player to seek the second court order against Twitter. The second order garnered even more attention, including coverage by The New York Times.

Then, the Scottish newspaper The Sunday Herald published the player's name contrary to the initial order. While the Herald is apparently protected by the fact that orders from courts in England do not apply in Scotland, the Attorney General nevertheless pledged to investigate with an eye towards prosecution. The High Court refused an effort to lift the injunction, after which MP John Hemming named Giggs on the floor of the House of Commons. Though his disclosure violated the injunction, Hemmings is apparently protected by the Parliamentary privilege. And by making his statement in a parliamentary session, Hemmings put Giggs' name on the public record, perhaps allowing the media to name him without running afoul of the injunction. (Although a judicial committee report coindidentally issued three days before concluded that journalists could still be prosecuted for reporting on such statements.) The Attorney General then announced that another committee would examine the entire question of "super injunctions."

Thus the footballer's saga is a familiar example of the Streisand effect, in which efforts to ban discussion of a subject actually end up attracting more attention to the banned material.

But does Twitter have to comply with the second order, seeking the identities of the Twitter posters?

While Twitter has users worldwide, including Britain, it is an American-based company. Thus, as a corporate entity, it is not subject to the jurisdiction of a British court.

Courts in both California and New York -- the states in which Twitter currently has offices -- have ruled that foreign court judgments involving free speech can be enforced in the United States only if the foreign nation recognizes First Amendment values.

A federal court in California held that a French court order barring Yahoo! from selling Nazi memorabilia could not be enforced in an American court without violating the First Amendment. Yahoo!, Inc. v. La Ligue Contre le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181, 1192 (N.D. Cal. 2001), rev’d en banc on other grounds, 433 F.3d 1199 (9th Cir. 2006) (en banc), cert. denied, 547 U.S. 1163 (2006). An appellate court then ordered dismissal of the case on jurisdictional and ripeness grounds.

In New York, in Bachchan v. India Abroad Publ’ns, Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992), a trial court declined to enforce a British libel judgment, based on a New York statute which provides that “[a] foreign country judgment need not be recognized if . . . the cause of action on which the judgment is based is repugnant to the public policy of this state . . . .” N.Y. C.P.L.R. 5304(b)(4).

Another factor are laws in California and New York, as well as the recently passed federal SPEECH Act [Securing The Protection of Our Enduring and Established Constitutional Heritage Act] of 2010 (28 U.S.C. §§ 4101-4105). These laws bar courts from enforcing foreign defamation judgments from nations that do not provide free speech and press protections similar to those provided in American courts. While these laws apply only to foreign defamation judgments, they do express a legislative intent to protect American individuals and companies from foreign judgments that do not recognize the value of free speech. The federal statute, for example, includes the Congressional finding that

Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction.

Pub. L. 111-223 (2010), § 1 (codified at 28 USC § 1, note).

Twitter's imminent plans to open a London office could complicate this analysis. With an office -- or a subsidiary with an office -- in England, Twitter may not be able to avoid complying with an English court order, other than by challenging it in a British court. It may also not want to defy the order on the eve of opening an office in the U.K., as a matter of corporate policy and public relations. (This is similar -- albeit less stark -- to the dilemma the China poses to Internet companies; including Google, which eventually pulled out of that country.)

The point is that American Internet companies are increasingly going to be vulnerable to foreign court orders and judgments, especially as they expand their operations and physical presence beyond American shores. And the companies' vulnerability could also make their users -- both in the United States and elsewhere -- similarly vulnerable to rulings by courts that may not have the same respect for free speech that American courts have found in applying the First Amendment.

As content, and the companies that provide it, go global, so does the possibility of courts around the world trying to control that content.

Can CAN SPAM Apply to Social Media? Yes It Can.

2011-04-26T00:11:00.004-07:00

(cross posted at the Citizen Media Law Project)
The regulation of commercial speech on social media sites continues to increase. In late March, a federal court in California held that Facebook postings fit within the definition of "commercial electronic mail message" under the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act;" 15 U.S.C. § 7701, et seq.). Facebook, Inc. v. MAXBOUNTY, Inc., Case No. CV-10-4712-JF (N.D. Cal. March 28, 2011).

The court's ruling led it to deny dismissal of a lawsuit brought by Facebook against online marketer MAXBOUNTY. Facebook alleged that MAXBOUNTY posted misleading commercial statements to Facebook users, in violation of the CAN-SPAM Act and other legal principles. Facebook also alleged that MAXBOUNTY's ads fraudulently appeared to be coming from Facebook itself, and "tainted the Facebook experience."
The court has not yet decided on the merits of these claims. But MAXBOUNTY sought to have the suit dismissed, in part because the company said that the CAN-SPAM Act applied only to e-mail, not to messages sent within Facebook.

The CAN-SPAM Act was passed in 2003, and generally requires accurate sender information for commercial e-mail messages; that senders allow and honor opt-out requests; and provide a physical, real-world address where the advertiser can be located. In its suit against MAXBOUNTY, Facebook alleged that the company had violated each of these provisions.

But first it had to convince the court that the Act applied to messages sent through Facebook's web site. The Act defines an "electronic mail message" as "a message that is sent to a unique electronic mail address," 15 U.S.C. § 7702(6), and an "electronic mail address" is defined as a "destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox and a reference to an Internet domain (commonly referred to as a "domain part"), whether or not displayed, to which an electronic mail message can be sent or delivered." 15 U.S.C. § 7702(5).

The court, citing earlier cases on the question, held that "the Act should be interpreted expansively and in accordance with its broad legislative purpose."

"A determination that the communications at issue here are 'electronic messages,'" the court concluded, "... is consistent with the intent of Congress to mitigate the number of misleading commercial communications that overburden infrastructure of the internet." Thus the court declined to dismiss Facebook's CAN-SPAM Act claims, although the court did dismiss a conspiracy claim that Facebook made against MAXBOUNTY.

What does this mean for citizen journalists who use social media platforms? It means that if you send an advertising message to individual users through social media sites, you have to fulfill the obligations of the CAN-SPAM Act. This also would apply to automatic, unsolicited messages sent to social media users telling them about content available on a more traditional site.

Federal Courts Discuss Smartphone Policies

2011-03-30T22:18:00.004-07:00

(cross posted at the Citizen Media Law Project)
The U.S. Judicial Conference, which helps set policy for federal circuit (appeals) and district (trial) courts, has issued a memo, first reported by Wired's "Threat Level" blog, that is meant to help individual courts set policies on when and how smartphones and similar devices can be brought into and used in courthouses and in courtrooms.

The memo outlines some of the issues that arise with smartphones and other electronic devices in courthouses, and informally surveys various federal courts' existing policies regarding smartphones.

The informal survey found that 41 district courts allow anyone to bring the devices into their courthouses, often with some restrictions on their use. Of these 41 courts, nearly a third prohibit the public from bringing the devices in the courtroom, while the remaining two-thirds require that devices be kept off or in silent mode without the judge's permission.

Forty-eight district courts ban devices, except for those possessed by judges, court personnel, and probation and pretrial officers, or with the express permission of a judge. Other courts ban only certain devices, such as devices that include cameras. In both types of situations, courts either check and store the devices or else simply bar individuals from entering with such a device.

Five district courts, according to the survey, had no stated policy on the issue on their websites.

The memo also notes that many district courts have special policies allowing journalists to bring electronic devices into the courthouse, but also notes that only six district courts allow journalists to use these devices in courtrooms, which various restrictions. The memo notes that a consideration in adopting such a policy for journalists is "how to distinguish, if at all, between members of the traditional press and those who report solely through social media sites or other internet venues."

The memo lays out some of the arguments for and against allowing electronic devices in courthouses, including concerns about recording and broadcast of court proceedings (which the memo mistakenly states is barred in all federal district courts; more on that in this post); and the concern that "[t]hese common devices present security issues because some can be and have been converted for use as weapons, including explosives." The Wired blog scoffs at this rationale.

The memo does not recommend that district courts adopt any particular policy, but lists several factors that courts should consider in formulating a policy, including:

which devices will fall under the policy (the memo's list includes cell phones, PDAs, earpiece (Bluetooth) devices, laptops, and digital and other types of video cameras or recorders);
how the policy will apply to and perhaps distinguish amongst the various types of persons entering the courthouse and courtrooms (see this post for a critique of this approach);
the lack of court security officer resources to implement such a policy;
the times, locations, or proceedings at which the devices may be used;
whether the same policy should apply in every division and courthouse of the district or circuit;
the policy's effect on access to the courts by the public and family and friends of litigants and criminal defendants, as well as the policy's effects on jury service;
the policy's effect on other tenants and visitors to the building housing the court;
whether the court should provide training on the risks and benefits of bringing the such devices into the courthouse or courtroom; and
the effects of the policy on court administration.

The memo ends by emphasizing that whatever policy an individual federal court adopts, "there should be ample notice provided, including signs posted outside the courthouse and at the security posts, and the policy should be featured prominently on the court’s website and in notices provided to attorneys and jurors," and that court security officers be apprised of both the letter and spirit of the policy, and clearly told how to implement it.

Fine Day for FTC's Blogger Rules

2011-03-19T12:19:00.001-07:00

(cross posted at the Citizen Media Law Project)
The Federal Trade Commission has announced the first monetary penalty under the its "Guides Concerning the Use of Endorsements and Testimonials in Advertising": a $250,000 settlement with a company that sells guitar lessons on DVDs.

The FTC guides require disclosure of compensated endorsements in media where such compensation is not obvious (in the view of the FTC), such as on blogs and other social media.

In response to criticism, shortly after issuing the rules the Commission clarified that "If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been."

In the months since, the FTC has reached non-monetary settlements with clothing retailer Loft and public relations firm Reverb Communications. Both companies agreed to stop their practices that attracted the FTC's attention, and to not repeat it.

The latest settlement, with Legacy Learning Systems, Inc. and owner Lester Gabriel Smith, is the first to include a monetary payment. (Since it's a settlement, the payment is technically not a fine.) The company will also be required to submit monthly reports to the agency ensuring compliance by its top 50 revenue-generating affiliate marketers, and a random sampling of another 50 of their affiliate marketers.

According to the FTC's complaint, Legacy Learning Systems and Smith "represented, directly
or indirectly, expressly or by implication, that reviews for Legacy’s instructional videos
represented endorsements from persons who had used or reviewed those instructional videos.
Respondents failed to disclose, or disclose adequately, that the endorser receives financial
compensation from the sale of Legacy’s products."

"Whether they advertise directly or through affiliates, companies have an obligation to ensure that the advertising for their products is not deceptive," David Vladeck, Director of the FTC’s Bureau of Consumer Protection, was quoted as saying in the agency's announcement of the settlement. "Advertisers using affiliate marketers to promote their products would be wise to put in place a reasonable monitoring program to verify that those affiliates follow the principles of truth in advertising."

The Commission voted unanimously to approve the settlement, which is now subject to public comment before becoming final.

Mommies Blog Best

2011-03-19T08:43:00.001-07:00

The New York Times apparently has "a thing" for "mommy bloggers," with two articles in recent weeks focusing on women who blog about their families, children and everyday lives; and also discuss services and products, which has gotten the attention -- and, in some cases, largesse -- of marketers.

The first article mentioned the commercial aspect of these blogs only in passing, prompting me to post an item on this blog and a comment on the Times' site noting the disclosure requirements of the FTC's blogger endorsement rules.

This week, the Times published a second article focusing on the marketing possibilities of mommy bloggers, which prominently mentions (and links to) the FTC rules, which require disclosure of any incentives for bloggers and other social media contributors to mention commercial products or services.

With the first fines having now been paid under under the FTC rules (against an advertiser, not the bloggers involved; more on that shortly), it's important for mommy bloggers and other social media commentators to understand that even on the web, there are rules to the game.

Another Twibel Contender

2011-03-15T22:02:00.000-07:00

As I noted yesterday, we're still waiting for the first defamation trial in an American court stemming from Twitter -- what the British apparently think us Yanks call "twible."

While the two cases that were contenders both concluded prior to trial, there's a new contender: an NBA referee is suing an Associated Press reporter over a tweet sent during a Jan. 24 game that the referee claims accused him of fixing the game. The offending tweet is here; details on the case are here; the complaint is here.

The interesting thing here is that although it stems from a Twitter posting, in this case the defendant is a professional journalist from an established news organization. And while anything can happen, the AP's aggressive statement in response to the suit -- my friend and colleague Dave Tomlin,* who is associate counsel of the news agency, said that “We believe all of the facts we reported from the game in question were accurate.” -- and the AP's ability to pay lawyers to defend the suit makes this one a good contender for the first "twibel" trial.

* In the interest of full disclosure, I should also note that in addition to my professional relationship with Dave, he sits on the board of my employer.

The Trouble with "Twibel"

2011-03-14T22:58:00.001-07:00

In coverage of the first libel settlement award in Britain stemming from a posting on Twitter, a number of articles state that in the United States, libel via Twitter is referred to as "twibel."

This is stated matter of factly in stories by Agence France-Presse (AFP), the Daily Mail, and The (London) Times (subscription required), which used the term in a headline. PC World
and ComputerWorld UK both use the term without attribution.

But it's unclear where the term or the "fact" that it's an American term came from; I've never heard the term "twibel" used to refer to libel via Twitter. This isn't too much of a surprise, since there hasn't yet been a defamation trial stemming from Twitter in the United States: the two cases that were the leading contenders both ended prior to trial.

A Google search for the term turns up a woman who's is tweeting the Bible; a disparaging term for the Twilight teenage vampire series; and a British discount code website; but no other Twitter defamation cases.

But it's a cute term, and one that's likely to propagate -- once there's actually a case in the U.S. to apply it to.

First Twitter Libel Damages, By the Pound

2011-03-14T21:08:00.001-07:00

While the two American lawsuits that each could have been the first known defamation suit stemming from a Twitter posting both settled (for details, click here and here), the settlement of a British case has now led to the first damage award in that county in a Twitter defamation case: £3,000 in damages (~ $4,840), plus £50,000 (~ $80,730) in court costs.

As detailed by the BBC, Agence France-Presse (AFP), the Daily Mail and others, Caerphilly, Wales town councilman Colin Elsbury sent a tweet prior to local elections in 2009 alleging that his opponent for a county council seat, fellow town councilman Eddie Talbot, had been "forcibly removed" from a polling place by the police.

But it was another man who was removed from the voting location. Elsbury sent subsequent tweets correcting his error, but Talbot still sued.

"This sends out a message out to people to be careful what they say on social network sites - it could prove expensive," Talbot told the Daily Mail after the settlement was announced.

Elsbury, who won the 2009 election, also agreed to tweet an apology as part of the settlement. And he concurred about the dangers of Twitter and other social media. "This case will no doubt act as a warning to people, including politicians, to be extremely careful when using Twitter and other social media such as blogs," he told the newspaper.

It's just a matter of time before there is a defamation trial in an American court stemming from Twitter. But it's important to note that Elsbury, as a public official, would had a harder time winning a defamation suit in the U.S. than he would have in Wales, had the case gone to trial there. That's because under New York Times v. Sullivan, 376 U.S. 254 (1964), public officials have to prove that the speaker (or tweeter) acted "actual malice" -- knowledge that the statement was untrue, or reckless disregard for whether it was true or not.

In Great Britain, the House of Lords -- the nation's highest court until the creation of the British Supreme Court in 2009 -- has adopted a more limited version of the actual malice test. Known as the "Reynolds defence" (gotta love that British spelling) after the case in which it was first announced (Reynolds v Times Newspapers Ltd, [2001] 2 AC 127). Succinctly, the Reynolds defence states that

There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

Reynolds v Times Newspapers Ltd, [2001] 2 AC 127, para. 13.

Meanwhile, across the pond, the wait for the first American Twitter libel trial continues....

Model -- and Modern -- Jury Instructions for the Digital Age

2011-03-10T19:59:00.002-08:00

Thaddeus Hoffmeister, an Assistant Professor at the University of Dayton School of Law, has posted a set of "Model Jury Instructions for the Digital Age" on his blog on jury issues.

Professor Hoffmeister was kind enough to show me the instructions in draft form, and to incorporate my suggestions in the "Introduction" section of his model rules.

As I've written before, jury instructions in many states have not kept up with new technology, and do not specifically address jurors' use of social media and the Internet.

If the courts need jurors to restrain themselves from online activity, they need to do more than "just say no": they also have to do a good job of explaining why. Model instructions like Professor Hoffmeister's, if they are adopted and used by the courts, are a good first step.

Cookie Twitter Lawsuit Crumbles

2011-03-04T07:00:00.003-08:00

While the settlement of the Twitter libel lawsuit by fashion designer Dawn Simorangkir against singer Courtney Love is getting a fair amount of attention, there's been less attention paid to another Twitter libel suit that was also dismissed in early February.

In December 2009, Dr. Sanford Siegal sued celebrity Kim Kardashian after she published criticisms of Siegal's "Cookie Diet" on her Twitter feed. Siegal v. Kardashian, No. 2009-93439-CA-01 (Fla. Cir. Ct., Miami-Dade County filed Dec. 29, 2009) (complaint). More precisely, Kardashian's Tweets claimed that Dr. Siegel had improperly listed her as an endorser of his diet plan, and came as her attorneys demanded that Dr. Siegel's company remove her name from its site. Among the Tweets at issue in the suit:

"Dr. Siegal's Cookie Diet is falsely promoting that I'm on this diet. NOT TRUE! I would never do this unhealthy diet! I do QuickTrim!"
If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!"

Seigel's lawsuit said that while his website linked to articles from various news sources which stated (incorrectly, it turns out) that Kardashian was an advocate of his diet plan, the site did not itself make the claim. This could have made an interesting legal issue: does linking to an inaccurate statement on another website make the site with the link responsible for the falsehood?

The lawsuit also claimed that the links on the Cookie Diet website actually benefited Kardashian, who "benefited from her name being publicly associated with Dr. Siegal and Dr. Siegal's Cookie Diet Company products, both of which had received incredible media attention over the past year."

The lawsuit received a fair amount of attention at the time it was filed (including here, here, here, and here), but then faded into obscurity.

On Feb. 2, Dr. Siegal and his company agreed to dismiss the lawsuit, perhaps indicating that the parties reached a settlement. (The notice of dismissal is available on the court's website.)

With the dismissal of this suit and the settlement of the Dawn Simorangkir-Courtney Love Twitter libel suit, there apparently still hasn't been a defamation suit based on Twitter postings that has gone to trial. But, like other forms of social media that have seen defamation trials and verdicts, it's just a matter of time.

Love's Twitter Settlement Revealed

2011-03-04T05:44:00.002-08:00

In late January, I posted that it appeared that fashion designer Dawn Simorangkir's libel lawsuit against singer Courtney Love, which was expected to be the first defamation trial stemming from posts on Twitter, was going to end in a settlement. Now The Hollywood Reporter has revealed the amount of the pre-trial settlement: $430,000, plus interest.

Here's how the settlement amount compares to results from other cases: It is 43 percent higher than the $300,000 median of trial awards in defamation, privacy and related cases against media defendants from 1980 through 2009, but is only 15 percent of the average award in these cases, $2.85 million. Of course, most of these initial awards are reversed or reduced on appeal.

While the Simorangkir-Love suit has been settled, it's just a matter of time before another, probably lower profile lawsuit will explore defamation in Twitter's 140 character-chunks. (More on that in this post.)

Mommy Bloggers Have To Do Their Homework

2011-02-27T16:53:00.002-08:00

Today's New York Times Magazine has an article on "mommy bloggers," focusing on Heather Armstrong’s Dooce.com, which includes some discussion of advertisers that specifically provide such bloggers with free or discounted products or services, or pay them with either cash or gift cards, for mentions on the blogs.

One of the blogs mentioned in the article, the SelfishMom.com blog, has a rating scale to indicate the extent of such sponsorships: from "level 1," which indicates that the blogger received the product or service for free or at a considerable discount not available to the public,” to "level 13," which indicates a sponsored post with talking points that may have been suggested by the sponsor.

As I mentioned in a comment to the Times article, the Federal Trade Commission's "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which require disclosure of incentives for bloggers to mention commercial products or services, apply to "mommy bloggers" just as they do to other bloggers and social media commentators.

Bloggers' statements about sponsorships do not have to be as extensive as the SelfishMom.com system, but the guides do require some sort of disclosure. They also require the advertisers to inform bloggers of this requirement.

If "mommy bloggers" -- and all other bloggers and social media posters -- include sponsored statements, they have to do their homework.

Textbook Site Needs a Lesson

2011-02-26T09:51:00.002-08:00

The college used textbook sale and rental site Swellhead may need to go back to school, after it announced (via an e-mail to college journalists and on its website) a contest in which the writer of "most shared" article about the company will win a new iPad. To be eligible, articles must be at least 200 words, "must appear in a prominent space on your newspaper," must link back to the Swellhead site, and must be posted on the wall of Swellhead's Facebook page.

The problem is that unless the articles specifically mention that the writers are vying for a prize, they would violate the Federal Trade Commission's "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which require disclosure of incentives for bloggers to mention commercial products or services.

Last year, the FTC took no action against Ann Taylor's Loft division over a similar contest, after the clothing retailer committed to not offering any incentives to bloggers for coverage in the future without informing the bloggers of their obligation under the FTC guides to disclose the arrangement. The commission's investigation of Loft was consistent with its assurances after adopting the guides that it would target advertisers that offer freebies or discounts without informing bloggers and social media contributors of the disclosure requirement, rather than targeting the writers of the posts.

Swellhead makes no mention of the disclosure requirement in the contest information on the company's website, although the "Fine Print" includes a standard disclaimer that entrants "hold harmless Swellhead from and against any claim or cause of action arising out of participation in the Giveaway or receipt or use of any prize."

It's also worth nothing that while the FTC guides specifically apply only to bloggers and other social media -- based on the dubious conclusion that traditional media have "independent editorial responsibility" in writing about products, and that readers "reasonably expect[]" that traditional media journalists receive free or discounted products and services -- they would apply here even though Swellhead's contest targets journalists at traditional student newspapers, since the contest requires that the articles be posted online. This also points out another absurdity in the FTC applying different rules to online and offline media.

But Swellhead's contest -- which has received some ridicule -- still should raise red flags; under the FTC guides, it's anything but swell.

A Website's Empty Threats

2011-02-23T21:27:00.001-08:00

Last week The New York Times "Haggler" column reported about an online appliance retailer (fullhouseappliances.com) which threated to sue the poster of comments critical of the company for allegedly violating the terms of service of the retailer's web site

These terms of service apparently originally provided that

I understand that libel is a prosecutable felony in the state where FHA operates. I agree that if I intend to provide negative feedback, the only legitimate one is based solely on verifiable and documented facts, i.e., the e-mail, live chat transcript and all the terms and conditions in the ‘About Us’ section of FHA’s Web site. ...

Only a non-response from FHA after 72 business hours from the time it is read can be used as a basis of negative feedback in the lack of response category, unless there is a specific time requirement for response in my e-mail due to the time sensitivity.

The terms of service were changed in response to the Times story, and apparently after someone pointed out to Full House Appliances that "the state where FHA operates," which the site lists as Texas, repealed its criminal libel statute in 1974. See 1973 Tex. Laws 399 (eff. Jan. 1, 1974) (adopting Texas Criminal Code); see also Shackelford v. State, 516 S.W.2d 180 (Tex. Crim. App. 1974) (reversing a criminal libel conviction from before the repeal, on the grounds that that the criminal complaint was defective because it was undated, while noting that “there is a serious question as to the constitutionality of the criminal libel statutes.”)

The Times spoke to someone from the company who said that it was based in Washington state. But that state also repealed its criminal libel statute, in 2009, see 2009 Wash. ch. 88, § 1 (eff. July 26, 2009) (repealing Wash. Rev. Code § 9.58.010, et. seq), after the primary provisions were held unconstitutional in Parmelee v. O'Neel, 145 Wash.App. 223, 186 P.3d 1094, 36 Media L. Rep. 1865 (2008).

After the revisions, the site's terms of service now (as this is written) provide that

We have seen firsthand how selfish and unreasonable these consumers may become simply because they felt they could hide behind a computer. This false sense of invisibility and invincibility led them to be very aggressive. You know the second you are on-line, you leave "digital footprints" behind you...[sic] We confronted them. We told them Internet is not a "Wild West". It is just another form of media. They still need to play the game by the rules. Otherwise, we will assert our legal rights to protect ourselves from libels. Libel is a prosecutable felony in many states, (update: In the jurisdiction over our operation, it is no longer a felony. It is subject to civil action. We apologize for the blunder.)

So Full House Appliances has removed its implied threat of criminal defamation charges. But that still leaves the question of whether it can legally enforce another provision of its original terms of service, which barred customers from providing negative feedback that is not based "solely on verifiable and documented facts," and then only if FHA failed to respond within 72 hours, unless the customer specifies a shorter time in his/her complaint.

In other words, can a FHA customer be said to have contracted away his/her rights to complain?

This 2007 article from the journal Communications Law and Policy examines the enforceability of such "shrinkwrap" and "clickwrap" license provisions. Genelle Belmas and Brian Larson, Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses, 12 Comm. L. & Pol’y 37 (2007). While noting that "[courts] have so far not addressed the enforceability of gagwrap clauses," id. at 37, the authors conclude that "[the] right to speak and the right to hear are essential to democratic self-governance, and attempts to stunt the free flow of information through use of gagwrap clauses should be suspect." Id. at 89.

There do not appear have been any subsequent decisions on this question. See Enforceability of "Clickwrap" or "Shrinkwrap" Agreements Common in Computer Software, Hardware, and Internet Transactions, 106 A.L.R.5th 309 (2003 and supp. 2010).

So Full House Appliances' threat to make contractual claims against users' expressions of dissatisfaction, like its threat of criminal libel prosecution, is dubious.

But the question of whether web sites may enforce such provisions in their terms of service remains an open question.

What I've Been Up to in Nevada...

2011-02-10T10:16:00.008-08:00

New journal examines media influence on court cases

By Bridget Meade, Reynolds School of Journalism

Might social media influence what takes place in the courtroom? Released in January, the first scholarly journal of the Reynolds National Center for Courts and Media takes an in-depth look at this and other questions regarding the courts and media.

“Our hope is that the journal, and the associated conferences that we're having … will spark discussion and raise the profiles of the issues we're dealing with, as well raise the profile of the center,” said Eric Robinson, journal editor and Reynolds Center for Courts and Media deputy director. The center held its first conference in Houston last week in connection with the first issue of the journal.

The first edition of the journal features a critique of an important contemporary court case—the trial of former Enron President Jeff Skilling. Even though social media was in its infancy, the case received heavy coverage in both mass and social media due to Enron’s collapse and the convictions of other Enron executives. Skilling was unsuccessful in his request for a venue change based on the heavy media coverage and after he was convicted, was sentenced to 24 years in prison. His appeal reached the Supreme Court where some of his convictions on some charges were overturned for reasons not having to do with coverage of the case, and sent back to a lower court for review.

Articles in the new journal examine how new social media—from bloggers and Facebook to Twitter—affect the courtroom, libel laws and the First Amendment.

“The biggest question that courtrooms face today is how to deal with new technology,” Robinson said. “Historically, courts have been slow to deal with changes. Some boneheaded decisions will be made in regards to allowing Tweeting and blogging in the courtroom. However, appeal courts will weigh in and it will work itself out.”

Robinson collaborated with Center Director Ben Holden and Assistant Professor Scranton, who teaches visual communication at the Reynolds School. Scranton created the layout and design of the journal, a time-consuming process that presented challenges for the former Newsweek art director.

“The biggest challenge was that this was a new journal and we had to invent the look and feel,” Scranton said. “There are many law journals printed today, mostly very conservative looking ... justified typography, no photography, centered alignment. We wanted a design that was a cross between existing law journals and what you might see in a magazine or newspaper today.”

The journal will be formally introduced to the public at an event in March.

Twitter Trial Torpedoed

2011-01-31T12:29:00.000-08:00

The National Law Journal reports that a settlement is likely in fashion designer Dawn Simorangkir's lawsuit against singer Courtney Love over Tweets criticizing the designer, which is scheduled to go to trial in February. As noted previously, the case would have been the first defamation trial in U.S. based on comments posted on Twitter.

My Thrill on TWiL

2011-01-21T22:04:00.000-08:00

This morning I was among the guests on the This Week in Law webcast, during which we discussed several current issues in Internet and technology law, ranging from Tweeting from courtrooms, which I do know something about, to the implications of copyright and patent protection for various video codecs, which is pretty much beyond my expertise.

Audio and video of the webcast is available here.

It was a great experience, and I thank Denise for inviting me on the show.

Swag, and Swagger, at the Auto Show

2011-01-18T11:00:00.003-08:00

Friday's Detroit News had an article on the "freebies galore" that journalists received during the "press preview" days of the 2011 North American International Auto Show. The Wall Street Journal also had a blog posting on one car company's popular giveaway.

But how many of these reporters are going to tell their editors -- or their readers -- about the swag they received?

For those who write for blogs, failure to do so could be a violation of the FTC "guides" requiring disclosure of such freebies. As I've blogged before, this aspect of the guides applies to bloggers and contributors to other social media, but not traditional media. This is based on the FTC's assumption that traditional media exercises "independent editorial responsibility" in writing reviews and that many bloggers and social media users may not, and that freebies for traditional news reporters are "reasonably expected by the audience," whereas freebies for bloggers and influential Twitterers are not.

It is unclear how many of the 5,000 journalists credentialed for the show are bloggers (although the article mentions one online journalist by name).

Anyone care to guess how many of these journalists -- online or off -- will disclose their swag?

Mistrial in Pennsylvania Gives Me a Voice

2011-01-17T20:36:00.000-08:00

The Citizen Voice newspaper in Wilkes-Barre, Pa. called me Friday afternoon to comment on a mistrial in a capital murder case after a juror did research online and shared the information with other jurors. To be quoted in a late-breaking story in the East, it's good to be on Pacific Time.

I'm also scheduled to be a guest on This Week in Law this coming Friday [Jan. 21], at 2 p.m. Eastern time. You can watch it at http://twit.tv/twil.

U.K. Extends Consumer Disclosure Laws Online, As In U.S.

2011-01-14T11:10:00.004-08:00

(cross posted at the Citizen Media Law Project)
The Office of Fair Trading, the British equivalent of the United States Federal Trade Commission, has determined that the hiring of bloggers and other social media contributors to promote particular products without adequate disclosure of the relationship may violate U.K. consumer protection laws. Handpicked Media Ltd (Handpicked Media), Case Ref. CRE-E-25932 (OFT Dec. 13, 2010). This is the first time these laws have been applied online.

This is similar to the stance that the FTC has taken in a 2009 update to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which includes disclosure requirements for similar arrangements. I and others have written extensively about the guides and their application.

"The OFT was concerned that individuals engaged by Handpicked Media were publishing online content which promoted the activities of Handpicked Media's clients, without sufficient disclosures in place to make it clearly identifiable to consumers that the promotions had been paid for. This included publication on website blogs and microblogs (forexample Twitter)," the British agency wrote in its ruling. "As a result of its investigation, the OFT formed the view that Handpicked Media may be operating in breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)."

The agency reports that the company cooperated with the investigation, and agreed to adopt policies consistent with the consumer protection regulations. This is another similarity to the FTC, which has reached similar resolutions.

The Guardian and Daily Mail speculate that the ruling may be the start of an OFT crackdown on celebrities, such as model and actress Elizabeth Hurley, who endorse products in their social media postings.

In a list of "questions and answers" about the ruling, the agency states that it is simply applying existing consumer disclosure rules to the Internet, not creating new law. "These rules apply irrespective of whether the activity is offline (for example, promotional activity in newspapers and magazines) or online (such as websites and social networks)," the q&a list states. And that's where there is a difference from the FTC guides, which do not apply the same way to traditional media (a distinction that I've previously criticized).

But it is now clear that Internet marketers in both the U.S. and the U.K. must pay heed to endorsement and sponsorship disclosure rules in their online social media postings.

OMG! Twitter Trial Looks GTG*

2011-01-06T15:06:00.004-08:00

According to The Hollywood Reporter, it looks like fashion designer Dawn Simorangkir's lawsuit against singer Courtney Love over Tweets criticizing the designer is going to trial next month. [UPDATE: The National Law Journal reports that a settlement is likely.] If there is no pre-trial settlement, this would apparently be the first defamation trial in U.S. based on comments posted on Twitter.

While this would be the first defamation case involving what could arguably be considered a new medium, the standard requirements in a libel case will apply: that is, Simorangkir will have to show that Love's Tweeted comments would have been reasonably understood to disparage Simorangkir, and that Simorangkir actually suffered damages as a result.

Of course, the recent emergence and innovation in new, web-based media has led to a number of "firsts" in defamation litigation in the past several years.

According to my research for the Media Law Resource Center, the first lawsuit over a "blog" (at least, over a web site that would now be considered a blog) was Holmes v. Ford, No. BC221609 (Cal. Super. defense motion for summary judgment granted Oct. 31, 2000), which was dismissed on summary judgment. The first damage award in a blog libel case was in Banks v. Milum, No. ___ (Ga. Super. verdict for plaintiff Jan. 27, 2006), aff’d, 283 Ga.App. 864, 642 S.E.2d 892 (Ga. App. March 5, 2007), cert. denied (Ga. June 4, 2007), in which a $50,000 award for the plaintiff was affirmed on appeal.

And the first case involving a social networking site that I'm aware of was Chick v. Kuziw, No. RCV-RS093848 (Cal. Super., San Bernardino County filed March 14, 2006), which was settled.

Technologies may change, but defamation lawsuits will apparently always be with us.

---
* For those you who don't speak Twitter-ese, the headline of this post is, "Oh My God! Twitter Trial Looks Good To Go"

First Amendment Fun

2010-11-18T09:17:00.000-08:00

Yesterday we held a mock oral argument of four historic First Amendment precedents, with students from two sections of UNR's media law class arguing both sides.

And in a major rewrite of history, the three judge panel -- consisting of UNR Reynolds School of Journalism Dean Jerry Ceppos, Journalism Professor Emeritus Warren Lerude and Melody Luetkehans, program attorney for the National Judicial College -- held, in a two-to-one decision, that the student team representing the government had the more compelling argument in the Pentagon Papers case (New York Times v. U.S., 403 U.S. 713 (1971)).

The other cases argued by the students were Near v. Minnesota, 283 U.S. 697 (1931); New York Times v. Sullivan, 376 US 254 (1964); and Cohen v. California, 403 U.S. 15 (1971).

I organized the event and served as Marshall, which means that I got to recite the court opening mantra. "Oyez! Oyez! Oyez!"

More details on the argument are on the journalism school website.

Vasoline Does It Right (But That's Not an Endorsement)

2010-11-12T12:09:00.000-08:00

Ever since the Federal Trade Commission issued its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," with its specific guidelines for disclosure of compensated reviews and endorsements by bloggers, I have been writing about questionable advertising campaigns that appeared to run afoul of the rules. (I have also been criticizing the rules themselves, and the disparate treatment of traditional and citizen media.)

So I was interested to see a New York Times article on a new advertising campaign by Unilever's Vasoline brand for its Vaseline Intensive Rescue skin cream.

The campaign features three "mommy bloggers" (A Giveaway Addicted Mommy; An Island Life; Supermom Reviews) that the company found by searching for blogs discussing dry skin. The bloggers are featured on the campaign's web site, and they also write about the product and the campaign on their blogs.

The important part, regarding the FTC rules, is that the bloggers all disclose on their sites that they are being compensated, either by being paid cash or receiving free products. (Although some of the disclosures could be clearer.)

The Vaseline Intensive Rescue campaign shows that advertisers and bloggers can comply with the FTC guidelines, not matter how misguided the Guides may be.

I was not compensated, in cash or with any free or reduced-price products, for this posting. Too bad.

Intentional Grounding: Can Public Colleges Limit Athletes' Tweets?

2010-11-09T14:31:00.005-08:00

(cross posted at the Citizen Media Law Project)
An exercise we did Friday at Univeristy of Nevada, Reno's High School Journalism Day raised an interesting legal question: can a public university restrict its students' use of social networking sites such as Facebook and Twitter?

It turns out that a number of public and private universities -- including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina -- have followed the lead of the National Football League, which imposes limits on players' use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season. Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school's coaching staff.

As private organizations, legally the NFL and the University of Miami can impose whatever restrictions they want on players. But the situation is more complicated for the public universities. As government entities, their ability to limit speech -- including the speech via Twitter of football players -- is limited by the First Amendment.

The U.S. Supreme Court famously declared in 1969 that "[neither] students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and that high school authorities could limit speech only when they foresee "substantial disruption of or material interference with school activities." Id. at 514. In more recent cases, the Court has found a number of circumstances in which the possibility of such disruption allowed high school administrators to restrict speech, including a profanity-laden student speech (Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)) and a banner referencing drug use (Morse v. Frederick, 551 U.S. 393 (2007)).

The court has also held that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities [such as a school-sponsored newspaper] so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). The court added that students would have more freedom in publications that have served as "public forums." Id. at 267.

All of these cases involved high school students; for college students, the courts have been more protective of First Amendment rights. Thus a college's refusal to give a particular student group the same recognition it gave to other groups was held to violate the First Amendment, when the college's refusal was based on a generalized fear of disruption (Healy v. James, 408 U.S. 169 (1972)) or when the college refused to recognize or provide funds to religious groups while doing so for secular groups (Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995)). While most of these cases involved on-campus speech, some lower courts, and the Supreme Court in Morse, applied these rules to off-campus speech with a possible impact on campus.

Generally, public schools can limit students' speech only if the limitations are content-neutral, further an important government interest, and are "narrowly tailored" to further that interest. U.S. v. O'Brien, 391 U.S. 367 (1968). In most of the cases, the cited governmental interest is the school's interest in ensuring a safe, non-disruptive educational environment.

Some courts have held that, in the context of a school athletic team, this interest includes the ability to punish insubordination amongst team members. Thus both the Sixth Circuit and the Eighth Circuit have upheld the removal of public school athletes who created and signed petitions expressing general lack of confidence in their coaches. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), reh'g and reh'g en banc denied (6th Cir. Feb. 1, 2008), cert. denied, 129 S.Ct. 159, 172 L.Ed.2d 42 (U.S. Oct. 6, 2008); Wildman ex rel. Wildman v. Marshalltown Sch. Dist., 249 F.3d 768 (8th Cir. 2001).

But the Ninth Circuit found that a petition by athletes complaining of physical and psychologically intimidation by their coach was protected by the First Amendment. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 768 (9th Cir. 2006). And in Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000), the court reversed a lower court's dismissal of First Amendment claims brought against a coach who allegedly removed a student who refused to apologize for complaining to school authorities and the police about a hazing incident.

The rule emerging from these cases seems to be that public schools can reprimand student athletes for insubordinately expressing dissatisfaction with their coaches, while they cannot punish athletes for serious -- and specific -- allegations. The Indiana University suspension, resulting from Tweets critical of the coaches, would probably be upheld under this rule.

But it would be difficult for the blanket rules imposed by the other schools on use of social media by football players -- a total ban on Twitter or on all social media, applying either during the season, or at all times -- to withstand First Amendment scrutiny. Schools may penalize students for specific Tweets or posts that are likely to lead "substantial disruption of or material interference" with the team and its activities, but cannot impose a prior restraint on athletes in mere anticipation of such a comment.
For failing to go through the First Amendment goalposts, the public colleges' policies limiting athletes' use of social networking sites should be sacked.

My Moment in the [Kitsap, Washington] Sun

2010-11-01T12:20:00.001-07:00

I was quoted over the weekend in an article in the Kitsap[, Washington] Sun on a trial in which potential jurors were asked whether they have ever blogged about violent crime.

http://www.kitsapsun.com/news/2010/oct/30/lawyers-in-sk-murder-trial-asking-would-be-if-on/

Florida Updates its Jury Instructions

2010-10-28T01:18:00.002-07:00

The Florida Supreme Court has joined the handful of other states that have officially changed their standard jury instructions to account for new technologies such as Twitter, Facebook and text messaging. The changes were first proposed by the court several months ago. See
In Re: Standard Jury Instructions (Civil) And (Criminal), Juror’s Use Of Electronic Devices, Case No. SC10-51 (Fla. 2010).

The revised criminal instructions state in part,

... In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

I'm Quoted in the Times

2010-10-15T10:27:00.000-07:00

The New York Times has a story on a trial in Connecticut that received substantial coverage on Twitter, from traditional media outlets. I'm quoted about half-way through the story.

AP Covers My Appointment

2010-10-04T21:36:00.005-07:00

The Associated Press has a story mentioning my new appointment here.

Reynolds National Center for the Courts and Media names deputy director (ME!)

2010-10-01T13:04:00.001-07:00

For immediate release: Sept. 27, 2010

Reynolds National Center for the Courts and Media names deputy director

Attorney holds degrees from Vassar College and Syracuse University

RENO, Nev. – Eric Robinson, an attorney with experience in media and Internet law, has been named deputy director of the Donald W. Reynolds National Center for Courts and Media, part of the Reynolds School of Journalism at the University of Nevada, Reno. He begins in Reno Oct. 1.
The center, managed by the Reynolds School in collaboration with the National Judicial College, is the only organization devoted to resolving conflicts between competing constitutional guarantees free speech and open courts, and fair trials.

“Eric’s essential experience in First Amendment law will be valuable to the center as we develop training curricula, education materials that judges and journalists will find useful as they fulfill the expectations of their respective roles,” said Ben Holden, director.

Robinson will oversee Reynolds Courts and Media Law Journal, a new scholarly journal that will explore emerging issues such as the impact of social media on courts.

“The issues involving the courts and the media have moved beyond issues such as ‘cameras in the courtroom,’ to include new issues involving use of the Internet and other new communication technologies in our courts,” Robinson said.

Robinson previously was staff attorney at the Media Law Resource Center in New York, where he tracked and analyzed litigation and legal issues involving the media and the Internet. He also has published articles in The Encyclopedia of the First Amendment and the Journal of Internet Law, and is a regular blog contributor for the Berkman Center for Internet and Society at Harvard University.

Robinson has worked in federal, state and local government, and previously worked as an editor and reporter for community newspapers in the New York City area.

The Reynolds School of Journalism is the state's only accredited journalism school.

Most of the funding for the center comes from the Donald W. Reynolds Foundation of Las Vegas, the journalism school's biggest benefactor.

The Donald W. Reynolds Foundation is a national philanthropic organization founded in 1954 by the late media entrepreneur for whom it is named. Headquartered in Las Vegas, Nevada, it is one of the largest private foundations in the United States and has made grants totaling more than $100 million through its National Journalism Initiative.

# # #

Nevada’s land-grant university founded in 1874, the University of Nevada, Reno has an enrollment of nearly 17,000 students. The University is home to one the country’s largest study-abroad programs and the state’s medical school, and offers outreach and education programs in all Nevada counties. For more information, visit www.unr.edu.

Two Courts Rule on Internet Use: Lawyer's Use OK; Juror's Use is Not

2010-09-13T06:08:00.000-07:00

In two recent decisions, appellate courts in New Jersey and Florida addressed use of the Internet to conduct research during trial.

The big difference was who was doing the research: the New Jersey court held that an attorney could research potential jurors during voir dire, but the court in Florida held that a juror's research during deliberations was improper.

In Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010) (unpublished), an appeals court declined to reverse a jury verdict in a medical malpractice case in which the judge barred plaintiff's counsel from using the courthouse's free wifi to "google" prospective jurors during voir dire, holding that it gave that attorney an unfair advantage. In rejecting the trial judge's rationale, the appeals court held,

Despite the deference we normally show a judge's discretion in controlling the courtroom," we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling.

But a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of "prudence" -- used in the jury instructions -- during a break in deliberations and shared the definition with other jurors. Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010).

"Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual," the appeals court wrote in its opinion. "It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court."

Juror Use of Social Media: A State-by-State Guide

2010-09-13T06:03:00.008-07:00

FOR A NEW, COMPREHENSIVE COMPILATION OF THESE INSTRUCTIONS, CLICK HERE.

Courts are increasingly becoming aware -- and wary -- of jurors using social media and other Internet tools to communicate to or from the courthouse during trial and / or deliberations.

Juror use of this media may take several forms: jurors conducting independent research on the case on the Internet; sending e-mails, text messages, Tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings.

In response to this growing concern -- and a growing number of mistrials in some cases due to improper juror use of technology -- several states have adopted or proposed rules or statutes which would explicitly limit such activity by jurors.

The goal of this post, which will be updated as developments warrant, is to compile these rules. Contributions of such rules that I have missed are welcome (email eric at blowlawonline.com).

Federal

A federal district court judge declared a mistrial in a complex drug prosecution after discovering that 10 of the 12 jurors had done independent Internet research on the case. U.S. v. Frank Hernandez, Crim. No. 07-60027 (S.D. Fla. mistrial declared March 10, 2009). (Details.)

In late January 2010 the U.S. Judicial Conference — which sets policies for all federal courts except the Supreme Court — sent all federal district judges suggested jury instructions on "juror use of electronic communication technologies" during trial. (Details.) Some circuit courts already had included instructions on Internet use (see 9th Cir. Civ. J. Inst. 1.12 and 9th Cir. Crim. J. Inst. 1.9).

Individual federal courts' jury instructions:

8th Cir.: "Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio, television or Internet reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals and listening to any television, radio or Internet newscasts. ... Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not consult a dictionary, textbook or encyclopedia, go to the Internet or consult any other source for information about some issue or person in this case. ... Seventh, cell phones are not permitted in the jury room during deliberation." 8th Cir. Model Civil Jury Inst. 1.05. For some reason, the model criminal instructions include the Internet only the "sixth" provision, and do not include to cell phone ban. 8th Cir. Model Crim. Jury Inst. 1.08.
9th Cir.: The Ninth Circuit was among the first federal appellate courts to have jury instructions on Internet use. 9th Cir. Civ. J. Inst. 1.12 includes "e-mail, text messaging, or any Internet chat room, blog, [and] Web site[s]" in its admonition against jurors discussing the case prior to deliberations, and also explains that "The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]" (brackets in original to indicate optional text). 9th Cir. Crim. J. Inst. 1.9 contains the same language.

Alabama

Alaska

American Samoa

Arizona

Arizona's civil jury instructions, last revised in 2005, includes only one reference to the Internet, in the jury admonition. The criminal instructions, updated in 2009, include a much more extensive discussion of juror use of the Internet and social media.

"Do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. 'Research' includes doing things such as looking up words in a dictionary or encyclopedia, or using treatises or similar sources with respect to any of the issues involved in the case. Research also includes searching on the internet or using other electronic devices to obtaininvformation. The reason for this is that you have to base any decision on the evidence that is produced here in the courtroom." -- Rev. Ariz. Jury Inst. (Civ.) 4th (2005), Prelim. Inst. No. 9 (emphasis added)

"Each of you has gained knowledge and information from the experiences you have had prior to this trial. Once this trial has begun you are to determine the facts of this case only from the evidence that is presented in this courtroom. Arizona law prohibits a juror from receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a dictionary, a reference manual, television, radio or the Internet for information. If you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys.

Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended, and you have been discharged as jurors. This prohibition about not discussing the case includes using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine, or any other form of electronic communication for any purpose whatsoever, if it relates in any way to this case. This includes, but is not limited to, blogging about the case or your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony or exhibits or any aspect of the case or your courtroom experience with anyone whatsoever, until the trial has ended, and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over.

One reason for these prohibitions is because the trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. As I previously told you, the only evidence you are to consider in this matter is that which is introduced in the courtroom. The law that you are to apply is the law that I give you in the final instructions. This prohibits you from consulting any outside source.

If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them only during breaks, so long as you do not use them to communicate about any matter having to do with the case. You are not permitted to take notes with laptops, Blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the notepad provided by the court. Devices that can take pictures are prohibited and may not be used for any purpose. ..."

Rev. Ariz. Jury Inst. (Crim.) 3rd (2009), Prelim. Inst. 13 (emphasis added)

Arkansas

California

California's Civil Jury Instruction 100 (pp. 63-64 of pdf), which is to be given at the outset of every civil case, includes the following admonitions:

... Do not post any information about the trial or your jury service on the Internet in any form. Do not send or accept any messages, including e-mail or text messages, to or from anyone concerning the trial or your service. ...

Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments.

The criminal jury instructions include similar provisions:

Do not share information about the case in writing, by email, or on the Internet. ... During the trial, do not read, listen to, or watch any news report or commentary about the case from any source.

Do not do any research on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. ...

If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay.

Crim. Jury Inst. 101 (p. 84 of pdf)

In January 2008, a Superior Court judge held a juror who had blogged during trial in contempt. But the judge did not impose a penalty after determining that the blogging did not result in an unfair trial.

As of Jan. 1, 2010, the California Superior Court in San Fransisco requires that all juror questionnaires include this cover sheet, containing the following statement: "You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information." See S.F. Super. Ct. Rule 7.2, available here. (Details.)

Colorado

Colorado's Jury System Standing Committee is currently considering the adoption of rules regarding juror use of social media. See Minutes of Feb. 18, 2010 meeting.

The draft rules, to be read to all potential jurors, are as follows:

If you have a cell phone, pager or personal digital assistant, please turn it off while in the courtroom and during jury deliberations. Remember you are not allowed to communicate with anyone via any means about what is happening in the trial for the duration of the proceeding until a verdict is announced in court.
During the course of the trial do not conduct independent research, view or listen to media reports, or access any information via the Internet or using any electronic tool, regarding this case, its participants, this type of case, or any related subject matter.

Connecticut

Both the civil and criminal jury instructions in Connecticut -- which state judges may use, but are not required to use -- admonish jurors not to use the Internet during trial.

The civil instructions provide:

You may not perform any investigations or research or experiments of any kind on your own, either individually or as a group. ... Do not look anything up on the Internet concerning information about the case or any of the people involved, including the parties, the witnesses, the lawyers, or the judge. ... Do not go to the scenes where any of the events that are the subject of this trial took place or use Internet maps or Google Earth or any other program or device to search for or view any place discussed during the case. ...
The same thing is true of any media reports you may come across about the case or anybody connected with the case. If you do come across any reports in the newspaper or a magazine, on TV, or any Internet site or "blog," you may not read or watch them because they may refer to information not introduced here in court or they may contain inaccurate information. ...
You may not communicate to anyone any information about the case. This includes communication by any means, such as text messages, email, Internet chat rooms, blogs, and social websites like Facebook, MySpace, YouTube, or Twitter.

Conn. Civ. Jury Inst. 1.1-1.

This language is duplicated in the criminal jury instructions. See Conn. Crim. Jury Inst. 1.2-10.

The instructions also include clear, concise explanations of the reasons behind the limits on use of social media.

Delaware

District of Columbia

Florida

The Florida Supreme Court has joined the handful of other states that have officially changed their standard jury instructions to account for new technologies such as Twitter, Facebook and text messaging. The changes were first proposed by the court several months ago. See

In Re: Standard Jury Instructions (Civil) And (Criminal), Juror’s Use Of Electronic Devices, Case No. SC10-51 (Fla. 2010).

The revised criminal instructions state in part,

... In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

In September 2010, a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of "prudence" -- used in the jury instructions -- during a break in deliberations and shared the definition with other jurors. Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010). "Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual," the appeals court wrote in its opinion. "It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court."

In January 2010, a Florida appeals court rejected a trial judge's restrictions on use of a laptop by a reporter for live blogging of a murder trial. See Morris Publ. Co. v. Florida, No. 1D10-226 (Fla. App. Jan. 20, 2010). But the trial judge re-imposed the same restrictions, holding that the reporter's use of the laptop was a distraction.

Georgia

In March 2010, the Atlanta Journal-Constitution reported that the Georgia state courts were drafting jury instructions that will prohibit communicating about cases online, and discouraging jurors from doing independent online research. In February, a Fulton county judge declared a mistrial and fined a juror $500 for doing online research during a rape case.

Guam

Hawaii

In 2009 the Hawaii Supreme Court amended its standard criminal jury instructions to specifically address juror use of the Internet and social media.

The criminal instructions now include the following provisions:

1. Do not talk to anyone, including your fellow jurors, friends or members of your family about anything having to do with this trial, except to speak to court staff. This means that you must not discuss this case with anyone until the verdict is received or you are excused from jury service. No discussion also means no e-mailing, text messaging, tweeting, blogging or any other form of communication. ...
6. Because of the requirement that your verdict must be based only on the evidence received in the courtroom and instructions on the law, you must not read, listen to or watch any news reports about this trial, if there are any, regardless of whether the report is from the newspaper, radio, television, internet or any other source.
7. Do not research this case on your own or as a group by using a dictionary, encyclopedia, map or reference materials, including online or other electronic sources. You are not permitted to search the Internet, for example, using Google, or any other search engine or web site to look for information about this case or about the participants in the trial. ... The Court understands that in your daily life it may be a common occurrence for you to look for more information about a product or an event, but the moment you try to gather information about this case or the participants, is the moment you contaminate the process you promised to uphold.
8. Do not share information, opinions or anything else about this case with others, personally or in writing, or through computers, cell phone messaging, personal electronic and media devices and other forms of wireless communications. This includes, for example, communication about this case through e-mail, instant messaging, tweeting, text messaging, or using the Internet in any way. Also, do not post or look at information about this case on a blog, forum, social network site, chat room, discussion board or any other web site.
9. If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom. ...

Hawaii Pattern Jury Inst., Crim., No. 2-01 (rev. 2009).

Idaho

In December 2010, the Idaho Supreme Court's Media/Courts Committee began considering use of new telecommunications devices in the state's courtrooms.

Neither Idaho's civil nor criminal jury instructions currently mention the Internet or social media, although the state's Handbook for Jurors states that jurors"may not discuss the case with anyone during the course of the trial" (para. 5, p. 7); and that they "are not allowed to read, watch, or listen to media stories relating to the trial to which they are assigned" (para. 6, p. 7).

Most members of the Media/Courts Committee apparently agree that webcams and cell phone cameras are covered by Idaho Court Administrative Rule 45, which sets out the rules for audio and visual coverage of court proceedings in the state.

Illinois

Indiana

Indiana has amended its jury instructions, effective July 1, 2010, banning juror use of electronic devices. The new rules read as follows:

The court shall instruct the jurors before opening statements that until their jury service is complete, they shall not use computers, laptops, cellular telephones, or other electronic communication devices while in attendance at trial, during discussions, or during deliberations, unless specifically authorized by the court. In addition, jurors shall be instructed that when they are not in court they shall not use computers, laptops, cellular telephones, other electronic communication devices, or any other method to:
(1) conduct research on their own or as a group regarding the case;
(2) gather information about issues in the case;
(3) investigate the case, conduct experiments, or attempt to gain any specialized knowledge about the case;
(4) receive assistance in deciding the case from any outside source;
(5) read, watch, or listen to anything about the case from any source;
(6) listen to discussions among, or received information from, other people about the case; or
(7) talk to any of the parties, their lawyers, any of the witnesses, or members of the media, or anyone else about the case, including posting information, text messaging, email, Internet chat rooms, blogs, or social websites.

Ind. Jury Rule 20(b) (eff. July 1, 2010).

The new rules also provide for the court to collect electronic devices from jurors during deliberations:

The court shall instruct the bailiff to collect and store all computers, cell phones or other electronic communication devices from jurors upon commencing deliberations. The court may authorize appropriate communications (i.e. arranging for transportation, childcare, etc.) that are not related to the case and may require such communications to be monitored by the bailiff. Such devices shall be returned upon completion of deliberations or when the court permits separation during deliberations. Courts that prohibit such devices in the courthouse are not required to provide this instruction. All courts shall still admonish jurors regarding the limitations associated with the use of such devices if jurors are permitted to separate during deliberations.

Ind. Jury R. 26(b) (eff. July 1, 2010).

The Indiana Supreme Court adopted the new rules after it considered a case in which a juror took a cell phone call during deliberations. In its decision, the court wrote:

Ms. Henri presented her claim of error due to the juror's cell phone use in her motion to correct error. It was denied by the trial court, which concluded that "[n]othing about these events comprise[s] misconduct in any form." On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue.

We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror's receiving improper information or otherwise being influenced; and a witness's or juror's distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice re-cording, and photo and video camera capabilities, among others.[6] The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication de-vices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.

Henri v. Curto, No. 49S02-0812-CV-641,slip op. at 6-7, 908 N.E.2d 196 (Ind. June 17, 2009).

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

The Maryland Court of Special Appeals has reversed two jury verdicts because of social media use by jurors during trial. In Wardlaw v. State, No. 1478/07, 185 Md.App. 440 (Md. Ct. Special App. May 8, 2009), a unanimous, three-judge decision concluded that the trial court's failure to question the jurors about the influence of a juror's Internet research required a reversal. A different three-judge panel of the same court reached the same conclusion in Allan Jake Clark v. State of Maryland, No. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported; listed here). (Details.)

The November 2009 corruption trial of Baltimore mayor Sheila Dixon in Baltimore Circuit Court was covered by several bloggers and Tweeters. Once Dixon was convicted, she initially asked for a new trial because five jurors had become friends and discussed the case on Facebook. Dixon then reached a plea agreement that included her resignation. The court then imposed a blanket ban on "the use of any device to transmit information on Twitter, Facebook, Linked In or any other current or future form of social networking from any of the courthouses within the Circuit Court for Baltimore City." (Details.)

In October 2009, the state's Standing Committee on Rules of Practice and Procedure voted against adopting a proposed state-wide rule that would have generally banned most cell phones and other electronic devices from courthouses (except for court and law enforcement personnel, and jurors), limiting their use in courtrooms, and banning them entirely from jury deliberation rooms. But at the request of Robert M. Bell, chief judge of the Maryland Court of Appeals, the issue is to be raised again at the committee's March 5, 2010 meeting (agenda and supporting documents; details).

Massachusetts

Michigan

In Sept. 2009, the Michigan Supreme Court revised its court rules to require judges to admonish jurors in civil cases to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case. See Mich. Ct. Rule 2.511(H)(2) (p. 118 of pdf). (Details.) This led to revisions in the state's Model Civil Jury Instructions (pdf), which now provide:
(3) While you are in the courtroom and while you are deliberating, you are prohibited altogether from using a computer, cellular telephone, or any other electronic device capable of making communications. You may use these devices during recesses, but even then you may not use them to obtain or disclose the kind of information I will describe next. ...
(6) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case.

Mich. Civ. J. Inst. 2.06

In September 2010, a Michigan juror was removed from the jury in a criminal trial and punished for contempt after posting a message on Facebook during trial stating, "actually excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY." Macomb County Circuit Court Judge Diane Druzinski found the juror, Hadley Jons, guilty of contempt of court, and ordered her to pay a $250 fine and to write an essay about the constitutional right to a fair trial.

Minnesota

Mississippi

Missouri

In 2007, the Missouri Supreme Court revised the state's civil jury instructions to admonish jurors not to conduct Internet research:

(8) JUROR RESEARCH PROHIBITED
Your decision must be based only on the evidence presented to you in the proceedings in this courtroom. You should not conduct your own research or investigation into any issues in this case. You should not visit the scene of any of the incidents described in this case. You should not conduct any independent research of any type by reference to textbooks, dictionaries, magazines, the use of the Internet or any other means.

Mo. Amend. Inst. Civil No. 2.01, as modified in In re Revisions to Mai-Civil, (Mo. May 1, 2007), slip. op. at 6.

Further revisions to Missouri's civil jury instructions proposed in November 2009 directly address juror use of social media:

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.

In re Revisions to Mai-Civil, 2009 Mo. LEXIS 544, 5-6 (Mo. Nov. 23, 2009), at *5-6.

Montana

Nebraska

According to this Grand Island Independent article, many judges are extending Nebraska's general prohibition on broadcasting of trial court proceedings to new technologies such as cell phones. See Neb. Sup. Ct. Rule § 2-118. But some trial courts in Nebraska have adopted rules allowing camera coverage of proceedings under an "expanded media coverage" pilot program.

Nevada

New Hampshire

New Jersey

In State of New Jersey v. Scott, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. App. Div. July 20, 2009), certif. denied, 2009 N.J. LEXIS 1370 (N.J., Nov. 9, 2009), the Superior Court of New Jersey, Appellate Division, reversed the convictions of three cousins on aggravated manslaughter charges because of a juror's apparent Internet research. (Details.)

But in Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010) (unpublished), an appeals court declined to reverse a jury verdict in a medical malpractice case in which the judge barred plaintiff's counsel from using the courthouse's free wifi to "google" prospective jurors during voir dire, holding that it gave that attorney an unfair advantage. In rejecting the trial judge's rationale, the appeals court held,

Despite the deference we normally show a judge's discretion in controlling the courtroom," we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling.

New Mexico

New Mexico’s criminal jury instruction on juror conduct, which already included the Internet in the admonition to avoid coverage of the case, was amended effective March 25, 2011 to give more specifics about prohibited activities online.

… You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. You must not visit the scene of the incident on your own. You cannot make experiments with reference to the case.

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in this case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Do not try to find out information from any source outside the confines of this courtroom.

Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I know that many of you use cell phones, the internet, and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone or any other device that can access the internet through email, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, such as __________ (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, or YouTube).

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, computer, or any other device that can access the internet; the internet, any internet service, or any text or instant messaging service; or any internet chat room, or by way of any other social networking websites, such as __________ (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, YouTube, or Twitter), to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
N.M. Uniform Jury Instr. – Crim. [NMUJI – Crim.] 14-101 (2011)

The recess instruction for criminal trials was similarly amended. See NMUJI – Crim.14-114 (2011).

New York

New York's Criminal Jury Instructions (pdf) tell jurors that they "must not use internet maps or Google Earth or any other program or device to search for and view any location discussed in the testimony;" to not read accounts or discussions of the case "by newspapers, television, radio, the internet, or any other news media;" and to not research the case "in a library or on the internet, or by any other means or source."

The preliminary instructions conclude with the following admonition:

In this age of instant electronic communication and research, I want to emphasize that in addition to not conversing face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter.

You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device, or internet site, including blogs, chat rooms, social websites or any other means.

You must also not Google or otherwise search for any information about the case, or the law which applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge.

The instructions then admirably explain why these restrictions are necessary.

North Carolina

North Dakota

Northern Marianas Islands

Ohio

After a Feb. 11, 2010 workshop on new media technologies and the courts (press release; coverage), Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to re-examine the Ohio rules on broadcasting of court proceedings. Earlier in February, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusky. But lawyers, judges, court personnel, law enforcement officers, and journalists are exempt: a problematic double-standard. (Details.)

In May 2010, the Ohio Bar Association revised the Admonition to its jury instructions to cover not only the Internet and social media, but also to caution jurors against using notions of the law gleaned from popular television programs:

2. WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror.

3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.

4. WARNING ON OUTSIDE CONTACT. Finally, you must not have contact with anyone about this case, other than the judge and court employees. This includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind regarding this case or any aspect of your jury service during the trial. If anyone tries to contact you about the case, directly or indirectly, do not allow that person to have contact with you. If any person persists in contacting you or speaking with you, that could be jury tampering, which is a very serious crime. If anyone contacts you in this manner, report this to my bailiff or me as quickly as possible.

Oklahoma

Oregon

Pennsylvania

In January 2010, a trial judge rejected a criminal defendant's motion to prohibit "tweeting" from the courtroom during a public corruption trial.

In August 2010, a federal judge declined to dismiss a lawsuit brought by a expelled student who claimed that the university disciplinary hearing that led to his expulsion was procedurally defective because one of the witnesses against him and a student member of the board hearing the case were Facebook friends. Furey v. Temple University, Civ. No. 09-2472 (E.D. Pa.) (Aug. 3, 2010)

Puerto Rico

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virgin Islands

Virginia

According to this article, Virginia's jury instructions contain a provision relating to social networking.

In July 2010, the Dansville, Va. News & Advance willingly provided the registration information for an anonymous web commenter who claimed to have been a juror in a murder case, and who wrote that the jurors had reviewed the slain woman's personal journal, despite a court ruling that jurors should not have access to the journal. The revelation led to a new trial in the case.

Washington

West Virginia

West Virginia's jury instructions currently do not include a provision specifically dealing with juror use of the Internet and other new technologies, the West Virginia Supreme Court of Appeals has noted that such an instruction may be a good idea.

Currently, West Virginia's Criminal Jury Instructions provide as follows:

2.11 NO DISCUSSION
You must not discuss this case among yourselves at any time either here in the courtroom or beyond the courthouse. You must wait until the trial is concluded and you have been asked to retire to your jury room to consider your verdict.

2.12 FORM NO OPINION
Do not make up your mind or form any opinion as to the guilt or innocence of the defendant until the trial is concluded and you have heard all of the evidence, the instructions of law and the argument of counsel. This defendant comes before you presumed to be innocent, with a clean slate, and you must keep that presumption throughout this trial.

2.13 AVOID OUTSIDE DISCUSSION
You are not to discuss this case with anyone other than the other members of this jury during deliberations. Do not even discuss this case with members of your own family or your friends.

2.14 NO INVESTIGATION
Do not make any kind of a private investigation, do not conduct any experiments and do not do any research. You may only consider the evidence that is introduced in this case.

2.15 NO MEDIA
Do not read any newspaper article or story or listen to any news coverage or watch any TV coverage that deals with this trial.
The state's standard civil jury instructions (available here in draft form) apparently do not have any provisions regarding juror discussions or access to external information.

On June 3, 2010, the West Virginia Supreme Court of Appeals reversed the conviction of a deputy sheriff for misconduct regarding grants he administered and ordered a new trial, based on the fact that a juror in the case had not disclosed her relationship to the defendant and to two of the witnesses. The court also called for trial judges to instruct jurors regarding use of the Internet during trial. State v. Dellinger, No. 35273 (W.Va. June 3, 2010).

The juror and the defendant had formerly lived in the same apartment complex, and approximately one week before trial the juror -- using a pseudonym -- invited the defendant to become friends on MySpace, which the defendant accepted. When the trial judge subsequently asked the juror why she did not disclose this during voir dire, she said that "I just didn't feel like I really knew him. I didn't know him personally." The trial court found that the juror's "contact with [Appellant] was minimal, and she was a fair and impartial juror," but the appeals court disagreed.

[A]s demonstrated by the facts set forth above, Juror Hyre intentionally and repeatedly failed to be forthcoming about her connections to Appellant and witnesses Frame and Slaughter, arguably, in order to improve her chances of serving on Appellant's jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. Accordingly, we find that the trial court abused its discretion in denying Appellant's motion for new trial.

In a footnote, the appeals court states that a general instruction to jurors regarding use of social media may be prudent:

[W]e also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service.

As noted above, West Virginia's jury instructions currently do not contain such a provision.

Wisconsin

In December 2009, Wisconsin's Criminal Jury Instructions Committee revised its model jury instructions (see Wis. J. Inst., Crim. No. 50; pdf of revised rule) to admonish jurors not to conduct their own research on cases, or to post or e-mail updates about trial proceedings. While the changes are discretionary, they are likely to be adopted by most trial judges in the state.

Wyoming

Juror Penalized for Facebook Post

2010-09-03T06:15:00.003-07:00

A Michigan juror was removed from the jury in a criminal trial and punished for contempt after posting a message on Facebook during trial stating that the defendant was guilty.

The Facebook post, which juror Hadley Jons initially denied posting, said, "actually excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY."

The post was discovered by the son of the criminal defendant's attorney, who works in his mother's law office.

The juror was removed from the case, and the trial continued with an alternate juror.

On Sept. 2, Macomb County Circuit Court Judge Diane Druzinski found the juror, Hadley Jons, guilty of contempt of court, and ordered her to pay a $250 fine and to write an essay about the constitutional right to a fair trial.

http://www.macombdaily.com/articles/2010/09/02/news/doc4c7fb67b5bf14990644106.txt

FTC Flexes Blogger Rules Again

2010-08-28T06:13:00.001-07:00

(cross posted at the Citizen Media Law Project)
The Federal Trade Commission has reached a second settlement with a marketer over apparent violations of the Commission's rules requiring disclosure of compensated endorsements, particularly on blogs and social media, as well as other contexts in which the compensation (which may include free samples or discounts) is not "reasonably expected by the audience."

Back in April, the Commission sent a letter to Ann Taylor LOFT raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns. The Commision declined to undertake any enforcement action in that case because it was the firm's first apparent violation, only a very small number of bloggers posted content as a result of the promotion, and the company adopted a written policy in February 2010 stating that it would not issue any gifts to bloggers without first telling the bloggers that the gift must be disclosed.

Now, the Commission has reached a settlement with Reverb Communications, a public relations firm, which the FTC alleged had employees and interns post positive reviews on Apple's iTunes store for games produced by Reverb clients. According to the FTC complaint,

From approximately November 2008 through May 2009, Reverb employees, including [Reverb owner] Tracie Snitker, and company managers, posted [positive] public reviews about Reverb’s clients’ gaming applications in the iTunes store. These reviews were posted using account names that would give the readers of these reviews the impression they had been submitted by disinterested consumers.

In the Matter of Reverb Communications, Inc., No. 092 3199 (FTC 2010), complaint at 2.

While Reverb did not admit any wrongdoing, under the settlement the company agreed to remove within seven days any previously posted endorsements that misrepresent the authors as independent users or ordinary consumers, and that fail to disclose connection between Reverb and the game developers. The settlement also bars such misrepresentations in any future comments. (FTC analysis of settlement here.)

The five-member Commission unanimously gave preliminary approval to the settlement, and will take a final vote after a 30-day public comment period.

While I've questioned the disparate application of the FTC rules to new and traditional media, enforcement of the rules to remedy the apparent "astroturfing" in this case is a good use of the FTC's power to ensure that customer endorsements are just that: honest opinions of actual customers.

Second Circuit Abuzz About FlyontheWall Case

2010-08-07T11:46:00.005-07:00

On Friday morning (Aug. 6), I attended oral argument before the Second Circuit Court of Appeals in Barclays Capital Inc. v. Theflyonthewall.com, Inc., No. 10-1372-cv (2d Cir.), an appeal of a permanent injunction and an award of $12,750 in statutory damages, plus interest and attorneys' fees, to three financial research firms against a website that charged subscribers for summaries of the firms' research reports, including recommendations to buy, sell or hold securities.

A primary topic of the argument -- which, although scheduled for 40 minutes, went on for more than twice that length of time -- was the viability of the "hot news" doctrine, which the district court applied to find that Theflyonthewall improperly undercut market for the financial firms' reports. The district court also found that the site violated the firms' copyrights.

The question of the viability of the "hot news" doctrine has become an important one in the Internet era, when news and information is easily -- and frequently -- paraphrased, linked to, and outright copied from one site or service to another. In recent years lawsuits invoking the doctrine have been filed by Dow Jones against the financial news site Briefing.com; and by the Associated Press against All Headline News.

The lawsuit argued in the Second Circuit was brought by Barclays, Merrill Lynch and Morgan Stanley, which produce and distribute numerous reports on individual companies and sometimes entire industries. These reports, which often include recommendations on actions to take on individual financial instruments such as stocks, are mostly distributed in the early morning hours, before the financial markets open, and are used throughout the trading day by the firms' brokers, who often convey the reports' recommendations to their clients. The firms claimed that Theflyonthewall, which paraphrased the report recommendations and sometimes also summarized the reports, often within minutes of their release, violated their copyrights in the reports, and that the site's actions constituted unfair competition.

Flyonthewall eventually conceded on the copyright claim. As to the unfair competition / "hot news" claim, District Court Judge Denise Cote first discussed the history of the "hot news" tort, starting with its creation in International News Service v. Associated Press, 248 U.S. 215 (1918), through its application in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997), a case involving a service that sent updated basketball scores to pagers. In short, the court held that the tort continued to be viable under New York State law, and could be applied to Theflyonthewall. Barclays Capital Inc. v. TheFlyOnTheWall.com, Civil No. 06-4908 (S.D.N.Y. Mar. 18, 2010). (Detailed analysis of that decision here.)

The court defined the elements of the "hot news" claim as follows:

(i) a plaintiff generates or gathers information at a cost;
(ii) the information is time-sensitive;
(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;
(iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and
(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Id., slip op. at 55 (citing NBA, 105 F.3d at 845).

Applying these elements, Cote found that Theflyonthwall's activities met each of the elements.

The Firms have supplied ample evidence that the continued conduct of Fly, and others like Fly, would so reduce their incentive to invest the resources necessary to produce equity research reports that the continued viability of plaintiffs’ research business is and “would be substantially threatened.” Indeed, the conduct of Fly and others has, along with other unrelated factors, already reduced the resources devoted to the research aspect of the Firms’ business. The ability of the Firms to “monetize” their research is critical to its continued production. Thus, the factual scenario at the heart of the hot news misappropriation doctrine exists here.

Id., slip op. at 72.

Judge Cote then issued an injunction barring Theflyonthewall from continuing its previous practices. The court's injunction did not prohibit Theflyonthewall from publishing the financial firms' recommendations, but allowed it only a few hours after release of the relevant research report.

Theflyonthewall appealed to the Second Circuit, and the parties and amici argued the case on Aug. 6 before a panel of judges Rosemary S. Pooler; Reena Raggi; and Robert D. Sack. Google; StreetAccount.com; and Twitter appeared as amici for Theflyonthewall, while the Securities Industry and Financial Markets Association (SIFMA) appeared on the side of the financial companies. A coalition of media entities also appeared in the case as amici, but on neither side of the dispute.

Judge Raggi was the most active questioner, asking Glenn Ostrager of Ostrager Chong Flaherty & Broitman P.C., representing Theflyonthewall, about the site's marketing materials, which promised what she characterized a "cut rate price" for the same "inside information" that Wall Street professionals have. Ostrager responded that Theflyonthewall's activities were traditional newsgathering, collecting and synthesizing information from various sources.

Judge Sack stated that the appeals court was bound by its prior decision in the NBA case, which led Raggi to ask Ostrager how his client claimed that the district court misapplied that case. Ostrager responded that the district court erred by finding that Theflyonthewall and the financial companies are competitors.

Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, representing Google, StreetAccount.com and Twitter, directly challenged the NBA decision, saying that it was erroneous under the U.S. Supreme Court's decision in Feist Publ’ns, Inc., v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), which she argued held that the "hot news" doctrine created the the INS case was no longer viable. And even if the INS decision is still valid, she said, it should be limited to direct competitors, not applied to news aggregators like Theflyonthewall (and Google).

Sullivan further argued the NBA decision was wrong in holding that the hot news doctrine existed under New York law. "There's no such thing as 'hot news' anymore," she said. "'Hot news' becomes old in a nanosecond." Judge Pooler asked whether the appeals court should certify the question to the New York Court of Appeals. Sullivan agreed that that was a possibility, but urged the court to limit the NBA ruling to direct competitors.

Andrew Deutsch of DLA Piper LLP, representing the coalition of media companies, argued that "hot news hasn't gone away," and that Feist was a not a limit on individual states' "hot news" doctrines.

R. Bruce Rich of Weil Gotshal & Manges LLP, representing the financial firms, told the appeals panel that the parties had stipulated to the application of the five NBA factors at the district court, and should not be able to question their validity on appeal. When Judge Pooler asked if the appeals court should look at the continued viability of the NBA decision, Rich responded that the case here "should not be turned upside down."

In response to another question from Judge Sack, Rich said that federal copyright law and state "hot news" torts can co-exist, because they protect different interests.

Rich added that his clients have no problem with general financial news reporting on their reports and buy/sell recommendations, but that Theflyonthewall made disclosure of these reports and recommendations its entire business. Theflyonthewall's business model, he argued, was specifically designed to take away the advantage of subscribing to the financial firms' services.

In response to a comment by Judge Pooler that it would be difficult to create a standard that barred "free riding," while not impeding news aggregation in general, Rich expressed confidence that the court could create a fact-specific test that did so.

The final amicus, the Securities Industry and Financial Markets Association (SIFMA), was represented by Stephen Kinnaird of Paul, Hastings, Jankofsky & Walker. Kinnaird said that the position advocated by Google, StreetAccount.com and Twitter would eliminate the law of unfair competition.

When Judge Sack observed that "all news reporting in a sense is free riding," Kinnard said that while occasional reporting of financial firms' recommendations was not a problem, Theflyonthewall was widely free-riding on the financial firms' work and reputations. This lead Judge Raggi to observe that the financial firms' real problem was with employees or clients who provide the firms' reports the Theflyonthewall.

Theflyonthewall's counsel, Glenn Ostrager, got the last word in rebuttal, and reiterated his argument that while the Supreme Court's INS ruling involved head-to-head competing news services, Theflyonthewall was not in the same primary market as the financial firms. The financial firms presented no evidence that they lost clients because of the Theflyonthewall, he said, concluding that "the products are night and day."

The appellate panel took the case under advisement, and is likely to take several months to issue an opinion.

FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines

2010-07-30T10:00:00.002-07:00

(cross posted at the Citizen Media Law Project)
The Federal Trade Commission recently issued a factsheet in response to questions it reeceived about its revised guidelines requiring disclosure of compensated endorsements.

As I've explained in detail in prior posts, the Commission revised the guidelines last year for the first time since 1980, with a particular emphasis on endorsements by bloggers and other online citizen journalists who do not disclose that the products or services they review were provided to them for free or at a discount. Despite a number of questionable incidents since the FTC issued its revised guidelines, it has taken only one public action under the revised rules: sending a letter in April to Ann Taylor Loft raising concerns about a promotion the clothing company ran for bloggers and warning the company not to undertake any similar campaigns.

The FTC's new factsheet states that "since the FTC issued the revised Guides, advertisers, ad agencies, bloggers, and others have sent questions to endorsements@ftc.gov," and offers what it says are "answers to some of the most frequently asked questions." But the factsheet also seems to be responding to criticims of the rules, by myself and others.

In response to the question, "Why did the FTC revise its Endorsement Guides to include social media?," the factsheet explains that "[t]he FTC revised the Guides because truth in advertising is important in all media – including blogs and social networking sites. ... The FTC revised the examples to show how these standards apply in today’s marketing world."

Responding to another question, the FTC asserts that "the financial arrangements between some bloggers and advertisers may be apparent to industry insiders, but not to everyone else who reads a blog. Under the law, an act or practice is deceptive if it misleads 'a significant minority' of consumers. So even if some readers are aware of these deals, many readers aren’t. That’s why disclosure is important."

Different Rules Online and Offline?

The Commission also denied that the revised guidelines hold online reviewers to a higher standard than reviewers for paper-and-ink publications. "The Guides apply across the board," the factsheet states in response to a question on this point.

The issue is – and always has been – whether the audience understands the reviewer’s relationship to the company whose products are being reviewed. If the audience gets the relationship, a disclosure isn’t needed. For a review in a newspaper, on TV, or on a website with similar content, it’s usually clear to the audience that the reviewer didn’t buy the product being reviewed. It’s the reviewer’s job to write his or her opinion and no one thinks they bought the product – for example, a book or movie ticket – themselves. But on a personal blog, a social networking page, or in similar media, the reader may not expect the reviewer to have a relationship with the company whose products are mentioned. Disclosure of that relationship helps readers decide how much weight to give the review.

This is a bit of a change from the FTC's prior justification for creating different rules regarding the "material connections" disclosure requirement, which were based on the assumption that traditional media exercises "independent editorial responsibility" in writing reviews and that bloggers and social media users may not, and that freebies for traditional news reporters are "reasonably expected by the audience."

Fines for Bloggers?

The factsheet also responds to concerns that bloggers could be fined for violating the guides.

I’ve read that bloggers who don’t comply with the Guides can be fined $11,000? Is that true?

No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide.

Are you monitoring bloggers?

We’re not monitoring bloggers and we have no plans to. If concerns about possible violations of the FTC Act come to our attention, we’ll evaluate them case by case. If law enforcement becomes necessary, our focus will be advertisers, not endorsers – just as it’s always been.

This is a continuation of previous efforts by FTC officials to downplay the risks to bloggers and other users of social media.

Richard Cleland, assistant director of the FTC's advertising practices division, told Fast Company that bloggers would not, as a practical matter, be fined:

That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That's the thing I don't think people need to be concerned about. There's no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We're focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they're saying is true?

The guides were issued under the authority of 15 U.S.C. § 45, which outlaws "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce," and authorizes the FTC to enforce this prohibition by the adoption of rules and byissuing orders to cease and desist against violators.

The statute provides that the primary form of enforcement is orders issued by the Commission after hearings, 15 U.S.C. § 45(b), with opportunities for appeal, both within the agency and in the courts. 15 U.S.C. § 45(c).

Continued violations of final FTC orders can, indeed, be penalized up to $16,000, by a civil enforcement action brought by the FTC in federal court. 15 U.S.C. § 45(l),(m) . (Note that while § 45(l) sets the penalty at $10,000, the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 (Oct. 5, 1990), as amended by Pub. L. 104-134, title III, Sec. 31001(s)(1) (Apr. 26, 1996), allows the agency to raise the penalties to account for inflation. The FTC raised the relevant fines to $11,000 in 2000. See 65 Fed. Reg. 69666 (Nov. 20, 2000) (modifying 16 C.F.R. § 1.98). In 2009, the FTC raised them to $16,000. See 74 Fed. Reg. 857 (Jan. 9, 2009) (further modifying 16 C.F.R. § 1.98).

It is true that such "competition" enforcement actions are rare; the current FTC report, dated March 31, 2010, states (on p. 102, p. 104 of the pdf) that no such cases are pending. And Cleland and the FTC factsheet are correct in pointing out that a single violation of the guides will not result in a monetary penalty. And the FTC has made it clear that it will use its discretion in enforcing the rules, focusing on warnings to bloggers while reserving more serious enforcement actions to advertisers. But there is still the possibility, however remote, that a blogger can, after repeated warnings for violations of the guides, be sued in federal court and possibly fined.

More Examples, and Suggested Disclosures

Aside from the justifications for the rules, much of the FTC factsheet is devoted to answering questions related to specific situations and scenarios. The gist of these answers, like the examples provided in the guides themselves, is that "buzz marketing"— in which compensated "influencers" promote a brand through apparently noncommercial means -- must be disclosed.

The factsheet also includes a series of "answers" on how bloggers and others should disclose material connections. The problem is that the FTC statements on this issue continue to be vague: there's no special language to use, they say, but a single disclosure on a page or via a link is probably not adequate.

Finally, the factsheet addresses how the endorsement guides apply to affiliate and network marketing programs.

* * *

As we've said before, bloggers and other posters on social media should be familiar with the guides, and can comply with them by acting within the journalistic standards and prinicples of independence and transparency.

But it's also interesting that the agency has felt the need to respond, in the factsheet and elsewhere, to concerns raised by bloggers, lawyers and commenters about the rules, and their application to the online world.

Teenage Taunts Are Not Defamation, Court Rules

2010-07-26T14:01:00.001-07:00

A New York judge has dismissed a teenage girl's defamation claims against five fellow members of a private Facebook group, accessible only to members of the group. Finkel v. Dauber, No. 012414/09, 2010 NY Slip Op 20292 (N.Y. Sup. Ct., Nassau County order July 22, 2010).

The lawsuit stemmed from a series of posts on the "90 Cents Short of a Dollar" group, which began with a post claiming that the plaintiff, identified on the site as "the 11th cent," had contracted AIDS from another (unnamed) member of the group. In an apparent game of one-upmanship, subsequent posts added new allegations about how the plaintiff purportedly contracted the disease, including sex with animals; sharing a needle with heroin addicts; and hiring a male prostitute. A later post claimed that she had been transformed into the devil, and included a doctored photo of the girl with a third ear in the middle of her forehead.

The girl and her parents sued the members of the group and Facebook in federal court. After the claims against Facebook were dismissed under section 230 of the Communications Decency Act, which immunizes online service provider from liability for third party posts on their sites, the case was removed to state court.

On July 22, New York State Supreme Court Justice Randy Sue Marber dismissed the remaining claims, saying that the statements did not purport to be statements of fact.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

Finkel v. Dauber, slip op. at 6-7.

Justice Marber also dismissed plaintiffs' claims that the comments constituted online bullying, since New York, unlike several states, does not recognize that claim.

10th Circuit Revives Criminal Libel Suit

2010-07-23T10:45:00.002-07:00

In a decision released on Monday (July 19), the federal 10th Circuit Court of Appeals revived a civil rights lawsuit brought by a student whose home was searched and computer was seized after he mocked a university professor on a parody website. By reviving the suit, the appeals court also questioned the validity of applying Colorado's criminal libel statute to satire and parody. Mink v. Knox, No. 08-1250 (10th Cir. July 19, 2010).

The case stemmed from a satirical website, The Howling Pig, that University of Northern Colorado student Thomas Mink posted online in 2004. The site included an altered photo of UNC professor Junius Peake, with, as the appeals court described it, "dark sunglasses and a Hitler-like mustache," labeled as Junius Puke, the purported editor of the site.

Professor Peake filed a criminal complaint against the site under Colorado's criminal defamation law, Colo. Rev. Stat. § 18-13-105. Thus statute provides that:

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

(3) Criminal libel is a class 6 felony.

The Colorado Supreme Court held in 1991 that the statute could not constitutionally be applied to public figures and matters of public concern, but upheld the constitutionality of the statute as applied to private figures and matters of no public concern. People v. Ryan, 806 P.2d 935 (Colo. 1991), cert. denied, 502 U.S. 860 (1991). This makes Colorado one of 16 American jurisdictions with extent criminal defamation statutes

Based on this decision, Assistant District Attorney Susan Knox gave the go-ahead for the Greeley, Colo. police to search the home that Mink shared with his mother, and to seize his computer.

Mink and his mother sued in federal court, claiming that the search and computer seizure violated their civil rights. After the police returned the computer and the district attorney decided not the pursue the criminal case, Mink amended his federal complaint to challenge the constitutionality of the Colorado criminal libel statute.

The district court dismissed the suit on the grounds of standing and mootness, as well as the district attorney's immunity from suit. The10th Circuit affirmed on standing and mootness, but reversed and remanded the question of whether the Knox was immune from suit. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007). Knox “may be entitled to qualified immunity," the court said, "if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court’s First Amendment cases to the criminal libel statute was not clearly established under the circumstances here." 482 F.3d at 1263. The U.S. Supreme Court declined to review this ruling. Mink v. Knox, No. 07-516, 128 S.Ct. 1122, 169 L.Ed.2d 949 (U.S. Jan 22, 2008) (denying certorari).

On remand, the district court dismissed the remaining claims, holding that "a reasonable official in Knox’s position could believe that the statements in The Howling Pig were not protected statements under the First Amendment," and that "it was not clearly established that Ms. Knox’s authorization of the search warrant affidavit lacking particularity violated the Fourth Amendment."

Mink again appealed to the 10th Circuit, which reversed. The court found that Mink has sufficiently alleged that Knox was sufficiently involved in the search to warrant a trial on his Fourth Amendment claims. The court also held that Knox's approval of the search was improper because it could not have been based on a reasonable belief that The Howling Pig constituted a crime, because of the broad protection that U.S. Supreme Court decisions have given to satire of public figures under the First Amendment, and application of these decisions by the 10th and 1st circuits to non-public individuals.

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink’s property.

Mink v. Knox, No. 08-1250 (10th Cir. July 19, 2010), slip. op. at 26.

The appeals court also held that warrant used to search Mink's home and seize his computer was improperly vague, because it did not specify the alleged crime for which the search was conducted. Id. at 28.

While the 10th Circuit decision was not a fatal blow to Colorado's criminal libel statute, since it did not hold the law to be unconstitutional on its face. But by holding that it was improper to apply the statute to satire, it has limited how the statute can be applied. And it points towards a view that criminal defamation is an archaic concept that should not be sustained under the modern view of the First Amendment.