Archive for the 'Media Law' Category

10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

Minnesota Court of Appeals protects a blogger’s right to tell the truth

August 20, 2012

This morning, the Minnesota Court of Appeals released a decision that wisely protects bloggers’ rights to tell the truth, particularly on matters of public concern.

The case, Moore v. Hoff, involved a long-simmering Minneapolis dispute between John Hoff, who writes a blog titled “The Adventures of Johnny Northside,” and Jerry L. Moore, who worked in the University of Minnesota’s Urban Research and Outreach-Engagement Center.

Hoff made a blog post that Moore claimed were defamatory, and in turn Moore claimed that his termination from the university was linked to the allegedly false post.  Moore sued Hoff for defamation but also for interfering with his business relations.  A jury found that the posts were not false but nevertheless found interference with business relations.

But the Minnesota Court of Appeals reversed the jury verdict, ruling that a claim based on interference with business relations must involve a falsity, not a truth.  The court further explained that the communication involved matters of public concern in North Minneapolis.

Minnesota online communicators should be heartened by this holding, which affirms bloggers’ places in the media marketplace.

Recent Minnesota Supreme Court decisions are unfriendly to free speech

August 20, 2012

Summer has delivered two sizzling First Amendment decisions from the Minnesota Supreme Court, neither of which is good for online communicators.

The most recent decision came earlier this month.  State v. Crawley involved a Minnesota statute that makes it a crime to knowingly file a false police report.  In a 4-3 decision, the court held that even though the statute criminalizes expression based on its content–something the First Amendment abhors–the law was OK because it could be read to criminalize only defamatory speech, which is not protected by the First Amendment. 

In other words, the Minnesota Supreme Court wrote language into a statute that doesn’t exist.  In a dissent, Justice Stras called the court to the carpet and said the justices should not get in the business of writing statutes.  It is hard to disagree.

The other decision, Tatro v. University of Minnesota, which was released in June, received more mainstream media play than Crawley.  In fact, I talked about it when I was interviewed on Channel 9 last week.

In that case, the court ruled unanimously that the university could discipline a student in its morturary sciences program for making Facebook posts that most people would find to be, quite frankly, tasteless.  The court acknowledged that the university was abridging freedom of speech but justified the ruling because the university had a policy prohibiting certain online communication.

From a free-speech perspective, Tatro is much less problematic than the recent Crawley case.  At least the university had a policy.  As for Crawley, all communicators, online and otherwise, should be concerned that the state’s highest court would rewrite a speech-restrictive statute as they did.

I would not be at all surprised to see the case end up in the United States Supreme Court, as a Minnesota case did 20 years ago.  That case was R.A.V. v. City of St. Paul, where the nation’s high court disagreed with the Minnesota Supreme Court over a St. Paul ordinance that criminalized the messages that cross burnings are intended to convey.  Interestingly, the Minnesota Supreme Court based its Crawley decison on R.A.V.

Interesting stuff.  Stay tuned.

Court of appeals orders for blog to be shut down

December 21, 2011

The Minnesota Court of Appeals has ruled that blogging can constitute harassment, and has ordered a Minnesota man to remove his blog from the internet.

As the decision released last week explains, the blog at issue chronicled the blogger’s ongoing issues with a former girlfriend.  Writing in the third person, the blogger wrote about his former girlfriend’s alleged sexually and physically abusive relationships, and questioned the woman’s mental health.  He publicized and promoted the blog by sending electronic messages to his former girlfriend’s relatives and friends, and also set up fake Facebook identities to post the blog to other Facebook users.

The woman already had a no-harassment order in place, and after the blogging she went to court to successfully obtain another one—one that specifically prohibited “[a]ny email or other electronic message contact with third-parties that contains any material concerning [the former girlfriend] that affects or intends to adversely affect [her] safety, security, or privacy.”  The court’s order also directed the blogger to remove the blog form the internet.

On appeal, the blogger claimed blogging is “comparable to publishing pamphlets and leaving them on your front doorstep for the public,” and that the First Amendment protected his blogging.  The Minnesota Court of Appeals disagreed.  The court acknowledged that “material published on the Internet receives the same level of protection as information published in other media.”  However, the court  held that “the constitution does not protect harassing words” and likened the blog to “fighting words” that that First Amendment does not protect.

The outcome makes sense, but the court’s reasoning could have been clearer.  Its blanket statement that “harassing words” cannot receive First Amendment protection is not entirely correct.  As the United States Supreme Court made case in the landmark case of R.A.V. v. City of St. Paul, when government seeks to ban words instead of conduct, there might be an unconstitutional—and for many, an unfortunate—result.  (In the case of R.A.V., an invalidated criminal conviction for cross-burning.)

But on balance, what I think the  court of appeals was attempting to articulate was that the act of blogging can, under certain circumstances, constitute harassment.  And here, apparently, the blogger went beyond merely posting his content and took affirmative acts to make sure people who knew his former girlfriend saw his blog—efforts that, according to the court opinion, caused the former girlfriend distress.

And that, in the eyes of the law, is not protected conduct under the First Amendment or otherwise.

“Sealed” absentee ballots from 2008 Senate election shielded from public view

November 23, 2011

The Minnesota Supreme Court has rejected a request from several television stations to make public “sealed” absentee ballots  that were never counted during the 2008 Senate election.

KSTP-TV (Channel 5) in the Twin Cities, WDIO-TV (Channel 10) in Duluth, and other Hubbard Broadcasting-owned stations sent letters to each Minnesota county to try to get access to the ballots from the election, which Al Franken won 312 votes.

Ramsey County refused, so the TV stations sued.  The case eventually found its way to the Minnesota Supreme Court, which ruled last week that the ballots are to remain sealed from public view.

To reach the ruling, the court took a highly literal interpretation of the Minnesota Government Data Practices Act, a law that presumes government data are public subject to numerous exceptions.  Among those exceptions are “sealed absentee ballots prior to opening by an election judge.”

The TV stations argued that such a ruling would constitute a “simplistically literal” interpretation of the Data Practices Act, which is aimed toward making data public and not private.  However, as frequently occurs in cases of this type, the supreme court essentially threw the issue toward the legislature, which enacted the law in the first place.  If the legislature wants to change the law, it can.

Had the ballots been made public, it certainly is possible that Norm Coleman and not Al Franken could have emerged as the “real” winner.  As it stands, Minnesotans are left to guess.

 

Iowa leaves Minnesota in the dust with protections afforded to student newspapers

November 10, 2011

Neighboring Iowa and its appellate courts have led the way on issuing courageous, well-reasoned decisions that protect important rights.  First came gay marriage.  Now it’s students’ free expression.

On Wednesday, the Iowa Court of Appeals issued a decision that unambiguously protects the rights of high school students to learn journalism by doing, and also affirms the right of faculty advisers to let that learning happen.

At issue was the Iowa Student Free Expression Law, which the Iowa Legislature passed in 1989 in response to the United States Supreme Court’s decision in Hazelwood v. KuhlmeierHazelwood generally gave school administrators broad discretion to censor student newspapers, despite the Frist Amendment.  In response, Iowa and eight other states (not Minnesota) passed laws protecting students’ rights “to exercise freedom of speech, including the right of expression in official school publications.”  Exceptions arise when expression is obscene, libelous, encourages law- or rule-breaking, or encourages “substantial disruption of the orderly operation of the school.”

The law also expressly forbids “prior restraint of material prepared for official school publications,” specificies that student editors have the final say, and limits advisers’ roles to supervising “production” and maintaining “professional standards of English and journalism.”

The case that led to Wednesday’s decision arose in Waukon, Iowa, where the newspaper’s faculty adviser was reprimanded for an April Fools’ parody editon of the paper as well as a non-parody story about students who chew tobacco, which the school’s adminsitration contended had caused “material disruption” of the school.  The 25-page court decision recites some of the complained-of conduct, including the students’ “derogatory twist” of a rival school’s mascot name “Kee Hawks” into “Keysucks.” 

The appeals court explained that there was no evidence that the newspaper content had encouraged breaking the law or rules.  For example, with respect to the Keysucks name, the school district’s attorney “was unable to explain” how the twist had caused any disruption.  Rather, the school administration’s concerns were entirely speculative.  The court also held the content was not libelous and did not violate the “professional standards of journalism.”  The judges also took the remarkable step of ordering the school district to remove the advier’s reprimands from his employment file, explaining:

The purpose of section 280.22 is to allow students broader free expression. If a school district is entitled to sanction a journalism advisor for student publications that comply with section 280.22, the statutory protections will be eroded and student speech will be chilled. Removing the reprimands from Lange‟s personnel file is necessary to protect the free speech rights of Iowa students as contemplated by Iowa Code section 280.22.

On a day when when Facebook is alive with chatter about how poorly Penn State students have behaved after a football coach’s firing, it is somewhat incongruous to trumpet a win for the rights of students.  But in the end, students need to be trusted to do the right thing, and to learn by doing, and to recognize parody on the Daily Show, in The Onion, or in their school newspaper.

And … Occupy Minnesota’s signs are still there

November 5, 2011

New Occupy Minnesota signs were tacked to county property on Friday, the day they were to come down. (Photo by Steve Aggergaard)

Hours after Occupy Minnesota signs were supposed to come down pursuant to Hennepin County’s “winterization” policy, they were still there.  In fact, the banner pictured above appears to be a new sign, taped to county-owned light posts.

What gives?

The Uptake, a treasured citizen-journalism website, has a great video explaining what appears to have happened.  Apparently the county removed the signs Friday morning, which prompted Occupy adherents to put them back up, which resulted in security officials again taking them down and putting them in a pile. But seven or eight adherents locked arms and blocked access to the signs, which—according to the video—prompted security officials to confer with county board.  And …

There were no arrests.  And the signs went up.  And, as of last evening at least, they have stayed.

Pamphlets and signs are the purest form of protest media, and it will be interesting to see how the various First Amendment issues are resolved.  The Uptake’s video suggests the American Civil Liberties Union of Minnesota is considering a “class-action lawsuit” on behalf of the adherents.  There’s no such mention on the ACLU’s website, so we’ll see how that shakes out.  Class actions are not easy to maintain, particularly on an “emergency” basis.

If there is legal action, a hurdle for Occupy might be who, exactly, has the legal right—the “standing”—to litigate the issue.  Ironically, if Occupy Minnesota were to incorporate as a nonprofit corporation, it would be a lot easier for Occupy as a corporate “person” to assert that its adherents’ constitutional rights are in jeopardy.

But of course, as the photo above demonstrates, corporate personhood tops the list of Occupy adherents’ concerns.  The opposition will make it more difficult for Occupy to go to court to obtain a “declaration” that the Hennepin County policy violates the First Amendment.  Rather, individual persons might need to actually be arrested and then argue, essentially from jail, that their individual arrests were unconstitutional.

Judging from Friday’s events, Occupy adherents appear poised to go that route if need be.

Iowa Democrats liable for defamation

November 4, 2011

The Omaha World-Herald reports that an Iowa jury has found the state’s Democratic Party liable for defamation for sending a pamphlet containing an erroneous report that a Republican challenger had bailed out a convicted sex offender.  The jury awarded $50,000 in damages.

The defamation plaintiff’s lawyer said his client had been charged but never convicted of a sexual-related offense.

The state’s Democratic Party told the newspaper:  “The Iowa Democratic Party relied on research, which was obtained and vetted by an independent firm. Unfortunately, the firm provided inaccurate information concerning the type of criminal conviction. We are currently seeking compensation from this research firm to cover the costs of this case.”

Wisconsin photographer’s arrest sends a reminder: journalists enjoy no special rules

November 3, 2011

A Milwaukee newspaper reporter’s arrest at an Occupy protest is the latest reminder that even though most working journalists carry press passes and other credentials, in the end they enjoy no special privileges in Minnesota or anywhere else.

And arguably, they shouldn’t.

The First Amendment is rooted in the idea that a free “press” must be free from governmental control.   As this month’s newsletter from the National Communication Association explains in an article titled “Celebrating the First Amendment, Thank you, James Madison!”:

The English kings and queens had tried to enforce prior restraint through their system of licensing printers; in other words, if a printer did not have a license from the Crown, he could not print anything at all. Printers who defied the Crown could be have their ears cut off or their noses split; they could be branded with a hot iron, or they could be drawn and quartered.

 A core problem with government awarding privileges to journalists is that it is the government that gets to decide who is and who is not a journalist.  There is a good argument that entrusting government to make such decisions is as troublesome as the British Crown’s licensing scheme.

That being said, if a journalist is targeted for arrest because he or she is a journalists (or a blogger, or an iPhone photographer, etc.), that raises a whole other set of problems.  It’s not clear whether that set of facts was present in the Wisconsin arrest.

DIRECTV sues operators of Princeton business

November 1, 2011

DIRECTV filed a federal lawsuit in Duluth on Monday alleging that the operators of the Hi-Way Inn in Princeton, Minn. used a satellite-TV account for commercial purposes even though the account was intended only for residential use.

The lawsuit seeks statutory damages up to $100,000.  The lawsuit also asks that the federal court enjoin the alleged illegal use of the TV programming at the motel.

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