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Showing posts with label Defamation. Show all posts
Showing posts with label Defamation. Show all posts

Feb 22, 2021

New Administration Means Changes on Press Issues

 My latest SC Press Association column: 

https://scpress.org/new-administration-means-changes-on-press-issues/

New Administration Means Changes on Press Issues

Any change in presidential administrations, especially when it involves a change of party affiliation, means changes in a lot of federal government personnel, stances on issues and policy changes. This is especially true as the Biden Administration takes over from Donald Trump. And many of the changes will likely be in the new administration’s policies and attitudes regarding the press.

The Biden White House has already re-instituted the daily briefing by the White House press secretary, a ritual that dates back to the Herbert Hoover administration in the 1920s that had been all but abandoned during the Trump presidency. While there’s debate on the value of the briefings, they do offer an opportunity for the press to get answers—or, perhaps, evasions—to questions on various issues.

But there are also numerous policy issues that affect the news media—and newspapers in particular—on which the Biden Administration is likely to have different approaches than the Trump presidency did.

Access to Government Information: The Trump administration took extraordinary, unprecedented measures to limit access to information, such as requiring campaign and administration employees to sign legally dubious non-disclosure agreements, and unsuccessfully going to court to enforce them by trying to stop publication of books by ex-administration officials. The President and others in his administration also routinely destroyed documents despite legal mandates that they be preserved. The Trump administration also stopped releasing White House visitor logs, a practice that the Biden White House has already revived.

The Trump Administration denied a record number of requests under the Freedom of Information Act. In a November 2019 speech Attorney General William P. Barr directly criticized the Act, saying that “[the process of government] cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.” This attitude led to policies allowing political appointees to vet agencies’ FOIA responses.

While President Biden has not issued a formal policy on access to government information as quickly as President Obama did (even if his administration failed to live up to it), he has issued a memo pledging “a recommitment to the highest standards of transparency.” And his nominee for attorney general, Merrick Garland, has a judicial record of supporting public access to government information. The Society of Professional Journalists has urged the Biden administration to rescind policies restricting government employees from speaking to the press.

Internet and Social Media: It appears likely that Biden will repeal or at least substantially alter President Trump’s executive order aimed at preventing social media’s alleged censorship of conservative opinion. And the Federal Communications Commission is likely to reinstitute Obama-era “net neutrality” requirements that bar internet access providers from favoring some online content—usually content in which the providers have some economic interest—over others. Without net neutrality rules in place, the accessibility of individual newspapers’ websites and cellphone apps could depend on the specific circumstances in their markets, and their relationships with local internet access providers. Chain-owned newspapers may, for example, be able to afford prioritization from ISPs. And dominant newspapers may have enough customer support so that customers will object if an ISP blocked or limited access, while smaller and independent newspapers may not.

But the big question is what will happen to “section 230,” the federal law that gives social media platforms immunity from most liability for content posted by users. There is bipartisan support for changing the law, albeit for different reasons and in different ways. Perhaps seeing it as inevitable, social media companies such as Facebook have publicly called for change as well.

Anti-trust actions filed against the large social media companies by the Federal Trade Commission during the Trump years, which echo some claims made by traditional media companies, are likely to continue. The social media giants, for their part, are trying to blunt this litigation in several ways, including suggesting—and in the case of News Corp., agreeing on Feb. 17—that they can pay traditional media companies for the display of their news items on social media platforms. Another approach is a bill in Congress that would relax anti-trust laws to allow news media to negotiate a collective agreement for such payments.

Media Ownership: The FCC’s efforts to loosen limitations on media ownership have been tied up in court, and on January 19 the U.S. Supreme Court heard argument on the repeal of the rule barring common ownership of newspapers and television stations in the same market. That rule was created for a different era, when newspapers and broadcast media were dominant and did not face competition from online organizations. Allowing them to unite could end up strengthening them both.

Libel: Through his campaign and presidency, Trump would regularly bemoan American libel law, which he claimed allowed the media to “write purposefully negative and horrible and false articles” without real consequence, and said that these laws should be changed. But the president has little power over such laws, which are established by the states and the courts, and nothing actually changed. Supreme Court Justice Clarence Thomas did in 2019 call for a rethinking of the New York Times v. Sullivan precedent, but doing so would require an appropriate case coming to the Court and a majority of justices agreeing to change the law. Still, many media lawyers worry about what may happen if the “right” case were to make it to the Supreme Court.

Online Privacy: As California’s sweeping new privacy law and regulations go into effect, and other states enact their own laws, there is growing sentiment that Congress should act to establish a national standard of privacy protections for the collection, storage and sale of personal data. These laws could have profound effects on how your website and mobile apps work, and the notices you must give to users.

But perhaps the most fundamental change will likely be in the new administration’s attitude towards the press. Trump, of course, reveled in labelling the press as “the enemy of the people,” which had domestic and international consequences. So far, the Biden administration has treated the press with wary respect, and the honeymoon between the new administration and the press will eventually end. But the end of Trump administration will end an enmity towards the press that had implications way beyond the White House grounds. The question is whether the press and the White House can reestablish the healthy tension between their roles that recognizes the importance of the press in democratic governance.

 

Apr 15, 2020

Is There a Legal Remedy for Coronavirus “Fake News”?

A lawsuit claims that Fox News Channel violated Washington state’s consumer protection laws by “willfully and maliciously engag[ing] in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus, COVID-19.” Can such a lawsuit succeed?

https://scpress.org/coronavirus-fake-news-legality/

Nov 15, 2019

South Carolina Appeals Court Ruling Outlines Libel Law Principles

My November column for the South Carolina Press Association:

On Nov. 6, a three-judge panel of the South Carolina Court of Appeals affirmed the grant of summary judgment to the former owner of the Charleston City Paper in a defamation lawsuit against the newspaper over two editorial columns about a football team’s pre-game ritual that some considered racist. While the appellate court’s decision is not too surprising, it does illuminate several well-established principles of libel law in South Carolina that should be known by writers, journalists and editors here.

Nov 11, 2019

On the Radio About My Book


This morning I was a guest on Talk Louisiana with Jim Engster, speaking about libel in politics and my book, and previewing the Nov. 13 "How Far is Too Far? Libel Law in Political Campaigns"
event at Louisiana State University.  The conversation is archived at https://www.wrkf.org/post/monday-november-11th-gene-mills-eric-robinson-jessica-kemp.

Feb 20, 2019

Is New York Times v. Sullivan in danger?

The basis of modern American media law is the 1964 ruling in New York Times v. Sullivan, in which a unanimous U.S. Supreme Court recognized that the First Amendment required that limitations be placed on defamation law. But the Sullivan decision has been the subject of criticism in some circles ever since it was decided, the latest being a concurring opinion by Justice Clarence Thomas.

Aug 15, 2018

Rhetoric aside, libel and media law haven't changed that much

My August column for the South Carolina Press Association:
In an initiative fostered by the Boston Globe, newspapers and other news organizations are publishing editorials this week—primarily this Thursday, Aug. 16—denouncing President Trump’s frequent attacks on the news media, including his assertion that the media are “the enemy of the people.”

Jan 26, 2018

Should the Courts More Frequently Use Public Opinion Polls in Defamation Cases?

A press release from the National Communications Association on my article that has just been published in the journal First Amendment Studies:

Jan 17, 2018

Washington woes, a Charleston charade and some hope

My January column for the South Carolina Press Association...
 
When I was a legal fellow at the Reporters Committee for Freedom of the Press we had an “outrage meter” drawn on one of the whiteboards in the reception area. The “needle” on the meter would be redrawn frequently, either towards the left or right, depending on the latest developments in media law and the perceived threats to freedom of speech and the press.

During most of my tenure, the outrage needle mainly fluctuated in the middle range. But if the Reporters Committee still has such a meter, recent developments on the national level and here in South Carolina would be pushing the needle into the red danger zone, and perhaps beyond. But there are also reminders of the importance of the First Amendment, and the role of robust media in the democratic process.

Aug 17, 2017

Only one star, but several legal issues

My August column for the South Carolina Press Association:

A lawsuit by a Charleston psychiatrist over a single star review on Google raises several legal issues regarding standards for the social media era, including issues that apply equally to traditional media.

Apr 19, 2017

The Dilemma of Group Libel: How big is it?

My latest column for the South Carolina Press Association:

Nov 16, 2016

Oct 19, 2016

Donald Trump and Libel

This is my first column for the South Carolina Press Association's newsletter:

Whatever you think of Donald Trump, it is clear that he does not have much regard for the media.

Sep 6, 2016

Court Finds No Actual Malice in Communist Claim

I've written before how courts in California, Minnesota and Washington have held that calling someone a Communist can be the basis of a valid libel claim when the audience is the Vietnamese-American community. One of these cases ended with a $4.5 million jury verdict, which led to the takeover of the newspaper defendant in that case.

Now a Texas appeals court has affirmed the dismissal of a suit by an Assembly candidate against a the editor of a Vietnamese language magazine for accusing the candidate of sympathizing with the communist regime in Vietnam.

Apr 19, 2016

Alabama Bills Would Revive Criminal Libel Law

Two bills (HB529 and SB404) prefiled in the Alabama legislature before the start of its current regular session would revive the state's criminal defamation statute, 15 years after the Alabama Supreme Court held that law unconstitutional.

Feb 26, 2016

Trump and Libel: More of the Same

Presidential candidate Donald Trump's latest policy pronouncement is that if he is elected he will "open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money."

Trump's statement has already gotten a fair amount of reaction (or maybe it's just that I'm well plugged in to the media law cognoscenti). But his statement of what he thinks the law should be is actually a statement of what the law currently is. 

Feb 5, 2016

Blogger Loses Libel Case, Owes $600,000

If bloggers and other social media posters need a reminder that they can be held accountable for their online musings, a $600,000 jury verdict against an online poster in Georgia is such an example.

Feb 1, 2016

Court Affirms Love's Win in "Twibel" Case

A California appeals court has affirmed singer Courtney Love's victory in a libel case brought by her former attorney over tweets sent by the singer.

Dec 15, 2015

Appeals Court Considers Love's Win in Twibel Case

On Dec. 14 the California Court of Appeals, Second District, heard an appeal by attorney Rhonda J. Holmes of her loss in a jury trial in January 2014 to singer Courtney Love over comments posted to Twitter.