Friday, April 30, 2010

In My Opinion-Shaun Gallagher-Is GQ Magazine Article Defamatory?


In My Opinion-Shaun Gallagher
So as I'm sure you're well aware...and if you're not...Marvin Harrison has had ties to trouble in Philadelphia. He grew up in a bad neighborhood he ran with a rough crowd but he fought adversity to become one of the top wide receivers in the history of the NFL. So when news of a shooting at his car wash surfaced, many were shocked that this quiet, "do good" player was rumored to be involved. While it may be tough to know what exactly happened the day of the shooting, one thing that is known is that Philadelphia District Attorney Lynne Abraham has publicly stated that there are no charges against Marvin Harrison and she came to this conclusion because there are “nine or so various versions” of witness accounts (http://www.usatoday.com/sports/football/nfl/colts/2009-01-06-harrison_N.htm).
That being said, any reasonable reporter would not put together a story about what happened that day and you especially would not make Marvin Harrison guilty within an article about the topic. But Jason Fagone of GQ Magazine wrote an entire re-enactment of what happened that day. It starts out with the sentence “It was a scene* to make anybody stop and watch.” The asterisk leads to a note at the very bottom of the page, that says the story is "Re-created from interviews, court filings, and police reports, and told through the eyes of Robert Nixon." There is no need for this note to be at the bottom of the article unless you are trying to make Harrison look guilty. Fagone could have easily had the first sentence say "This story re-creation is generated from the words of Robert Nixon, interviews, court filings and police reports," then it could go into the story. But Fagone acted in a reckless manner by using the asterisk that the average reader would probably miss.
The article goes on to make Harrison seem like Denzel Washington in Training Day with guns a blazing. After reading Condit v. Dunne, 225 F.R.D. 100, (2004), I immediately thought of this article and that Harrison would have a good chance if he were to bring a case against Fagone. The only difference is that Harrison wasn’t really hurt by the article. He had retired from the league months before, he’s settled with his life as it is and he is known to be quiet to the media. Therefore, to not do anything about the article is atypical of Harrison because he doesn’t want to be in the public eye about the subject.
If this were to go to trial I believe that Harrison would win because he is a public figure and he would have to prove actual malice. After reviewing the Condit V. Dunne in clss, we know that if he could prove that he was hurt by the article, Harrison and company could win the case.
Fagone of GQ Magazine and Dominick Dunne wrote in a very similar medium. They both are in an area of the media that is not really considered “hard news” so they may feel they can get away with more. The only problem is they are defaming these public figures. Whether it is an athlete or public official these people are still humans who have to live with what these writers are saying about them. Dunne and Fagone are both making enormous accusations about both Condit and Harrison being murders or at the very least being a part of the murders.

In My Opinion-Jenine Pilla-Campus Free Speech in Action



I'm sure everyone has seen these signs in various areas around campus because it's pretty hard to miss. While walking by the bell tower on Monday morning, you could hear the screams resonating from all around. People asking how they (the anti-abortion protestors) have the right to litter our campus with'garbage like that.' Well, thank you America for granting us the First Amendment.

Freedom of speech is a wonderful thing and America wouldn't be half the country it is today without it. But when does freedom of speech get stretched too thin? When does the concept not hold up? Like we discussed in class, the limitations of speech on a college campus are similar to those in other public arenas--not many. Unfortuately for those students disturbed by the anti-abortion protestor's graphic signs, the only possible restriction I can see on these protests would be in terms of time, place and manner.

On Monday, every class I entered was hustling and bustling with the flooding emotions that were carried in with students like the mud on their shoes.
"How could they do this?"
"Who in Temple allows this?"
"Why do they think this is a good idea?! Do they want to start a riot?"

My question is, how far would this student outrage have to go before this is this could be a situation of "material and substantial disruption of the educational process?" This is the standard outlined by the U.S Supreme Court in TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731; 1969 -Jenine Pilla

Thursday, April 29, 2010

Justice Department Targets Online Piracy



U.S. DEPARTMENT OF JUSTICE;

Father and Son Plead Guilty to Selling Counterfeit Software Worth $1 Million


This case on copyright infringement is very recent and sentencing has been scheduled for June 18th 2010. In this case, four men have been convicted for operating web sites that are engaged with the sale of pirated software. Father and son, Robert and Todd Cook pleaded guilty to criminal copyright infringement and conspiracy to commit criminal copyright infringement. According to documents from July 2006 to May 2008 the Cooks operated several websites that sold large amounts of counterfeit software with a combined retail value of $1 million. They admitted that they were selling unauthorized software without permission from the copyright owners. Both defendants face up to five years in prison and a fine of $250,000 and three years of supervised release.

This case is part of the U.S Department of Justice’s extended initiative to combat online auction piracy. Including the men that have already plead guilty in this case, the department has gained 46 convictions in similar cases.

This case highlights the importance of copyrighting one’s property and how it is common place to steal or ‘borrow’ another person’s property. It is a major issue and reading this case showed me the importance of finding these people involved with piracy and charging them criminally for their theft, especially online.


Full Story:
http://www.justice.gov/criminal/cybercrime/cookPlea.pdf

Tuesday, April 27, 2010

Can Public Schools Punish Student Speech on the Web?

I am a Facebook user as many of you are. It is becoming normal to see someone posting derogatory comments about a friend or an ex on their Facebook status. And more and more cases are cropping up in the media regarding high school students and Facebook comments. Just how much is student speech protected? Can the school intervene, even if the action in question was posted off-campus?

In this article, an Oak Grove High School student, Megan Wisemore from Missouri, went to her Facebook status to complain about another student. She posted a comment that said, “You’re a skank and I hate you with a [expletive] passion.” Now, she claims this was only meant for her and her friends to see, however, the next day in school the two girls got into a altercation. Wisemore, who wrote the comment did not throw a punch, but both girls ended up being suspended. Wisemore's mother said the school should not intervene and it was her daughters First Amendment right to say what she said. Student speech is protected somewhat under the case, TTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) which stated, “It is established that public school students have First Amendment rights unless there is a real threat of violence or a substantial disruption to the educational environment.” In J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the court affirmed that school officials had the authority to discipline a student for an off-campus website containing derogatory and threatening when they amounted to an actual or substantial disruption of education.

Since the rise of social-networking this is getting harder to define. State courts seem to be all over the place on this issue.? For example, the Layshock v. Hermitage Sch. Dist., No. 06-116 (July 10, 2007) , a student made a fake MySpace page, citing the principal as a “big whore” who smoked a “big blunt.” The court said it was within the student’s free speech rights. While in another case in Pennsylvania, J.S. v. Blue Mt. Sch. Dist., 2010 U.S. App. LEXIS 7342 (3d Cir., Apr. 9, 2010) which also concerned a student who made a fake MySpace page of their principal, calling him a “tight ass” who liked “hitting on students and their parents.” J.S. v. Blue Mountain said the student’s speech was not protected and upheld her suspension from school.

The Oak Grove High School upheld the students suspension stating, "The Missouri Association of School Boards said schools may discipline off-campus behavior, if a connection is shown between the behavior and something happening in school." The Missouri Association of School Boards also said, "the courts go back and forth on the issue." Missouri lawmakers are currently considering a provision to specifically include cyberbullying in school safety legislation.

Because of the growing popularity of social-networking sites like Facebook and MySpace, the courts are going to be dealing with more and more cases like these everyday.

June Fredericks on Copyright Infringement in Cyberspace

Universal Music Sues MySpace for Copyright Infringement (2006)
http://www.nytimes.com/2006/11/18/technology/18myspace.html
I found an interesting article about a copyright infringement case dealing with Universal Music Group and Myspace. UMG attempted to sue Myspace for copyright infringement due to music from the label’s various artists being available for downloading and sharing through Myspace. Interestingly, UMG made sure to file the case in the state of California which at the time was just making provisions to its safe harbor act, which required sites to remove all material at the copyrighter’s request. In the case, UMG argued that Myspace enabled downloader’s to infringe on the company’s copyright holdings; whereas Myspace argued that they did not condone any unlawful copyright violations and made music available while still respecting creator rights.
Assessment
The case could deal with contributory infringement –being that Myspace profited from advertisements on its site, which accumulated numerous viewers from the listeners/ downloaders that accessed the pages.
Myspace may have prohibited UMG and is corresponding artists from making money on unreleased music, which was subsequently being released, shared and downloaded on myspace for free.

Questions for Discussion for class:

How could Myspace defend UMG's claims?
Is there a definite way to stop copyright infringement from downloads on the internet or are copyrighters fighting a losing battle in regards to the net?
From the surface, what do you think would be the outcome of this case?
Could this case be classified as purely copyright infringement of contributory infringement?

Wednesday, April 21, 2010

Cory Victorella's Blog Post

According to inclusion upon seclusion i believe the school is at fault. Lets look at the facts, the students did not know they were being monitored. The pictures were taking in the privacy of their homes while on the lap tops. The school paid for a specific program so they can take photos and track down stolen laptops. I think that since the school not only took pictures from the stolen laptops but also took pictures from random students laptops in a manner of 55,000 pictures they will get charged with invasion of privacy and get a huge fine. I think that they should have made the students aware of this program and only taken pictures from the stolen laptops. It also would have been better if the police monitored this program not the school district, The problem is that they invaded the privacy by using a program and took advantage of the fact that the laptops had web cams

A lot of attention has been given to the Lower Merion School District with the recent scandal of the laptop computers. Students are given laptops to work on both on campus and off campus. Lower Merion's attorney says the tracking program, lanrev, took screen grab images and webcam photos every 15 minutes to help find computers. The school says that most of the pictures came from the stolen laptops and none of the pictures seemed to be inappropriate. But some of the pictures came from students chatting online with friends and there is currently a lawsuit against the school district saying what they did was an invasion of privacy and they shouldn’t be allowed to monitor students when they are off-campus. Also they shouldn’t be taken over 56,000 photos for a few stolen computers that just doesn’t make sense. Also students that didn’t have their laptops stolen reported that they have had their pictures taken chatting online. This definitely violates the privacy of the students at home. Mark Haltzman the attorney representing the student suing the school said, "I am not surprised," Haltzman said. "And remember, that number, 56,000, is only what they've been able to recover. We know that there are many, many more pictures that we believe of even Blake Robbins alone, there's at least another 300 to 400 screenshots and webcam pictures that they haven't been able to recover – or say that they haven't been able to recover." So for the school to be taking these photos of students when they are at the privacy of their own homes is wrong. Haltzman is calling for the computer running the monitoring program to be investigated but the school has yet to turn it over to the police.

Plaintiffs Michael and Holly Robbins think that pictures were being taken while students were attempting to change and during their showers. They also compared this recent scandal with the George Orwell book 1984 calling their school district big brother. .http://www.myfoxphilly.com/dpp/news/local_news/042010_Lower_Merion_Webcam_Spying_Case

Thursday, April 15, 2010

Can Testifying on a work matter get you promoted, demoted, or fired?

"It is equally well-settled that refusing to renew an employee's contract for public employment as a result of the employee's exercise of First Amendment rights, even where the employee does not have a right to such renewal, constitutes a form of retaliation prohibited by the First Amendment." See e.g. Newsom v. Norris, 888 F. 2d.371. 376 (6th Cir. 1989)" (Quote from Tammy v. CVSD case)


The decision in the case 2:09cv1086, 2010 U.S. Dist. LEXIS 31605, Tammy Whitfield, Plaintiff vs. Chartiers Valley School District(CVSD) and Chartiers Valley School Board, Defendants was issued on Aug. 17, 2009 and decided on March 31, 2010 in the United States District Court for the Western District of Pennsylvania. Whitfield, an assistant superintendant at CVSD, filed this suit against her employer because she didn't think testifying at a school board hearing would hinder the renewal of her contract with CVSD. This request for an injunction was sought to stop the defendants from retaliating against the plaintiff for using her rights granted under the First Amendment.
Whitfield has been employed with CVSD for the past twenty-one years and in Oct. 2004 she obtained the assistant superintendent position. Her contract started on Nov. 1, 2004 and was for a period of five years(until Nov. 1, 2009). Two years into serving as assistant superintendent, a matter came to light about one of CVSD's employees, Tim McConnell. In 2006 McConnell was the basketball coach and dean of students at a middle school. As the dean of students, the Pennsylvania public school regulations require h/she to have a PA Public School Certificate or a emergency permit, which McConnell needed in order to renew his contract. He showed no interest in enrolling at a university to obtain the certification and in consequence he was suspended for twenty days without pay in 2006.
Anthony Skender, the new superintendent, asked the plaintiff to investigate enrollment policies at local universities, in order to determine the opportunities that have been available. McConnell appealed his suspension and a public hearing was held on Nov. 1, 2006, where the plaintiff was asked to testify under oath regarding background facts and events leading to his suspension. During her testimony there was a lot of disapproval being expressed, mainly by two other members on the school board. Also during her testimony, McConnell's attorney attempted to show that there was some bias expressed against his client during a board meeting when his suspension was discussed. Over all McConnell, in Feb. 2008 settled the appeal and his suspension was reduced to ten days with back pay and elimination of requiring him to return to college.
In March 2009 the plaintiff received a letter stating that her contract is set to expire in Oct. 2009, which gave her 210 days in advance notice, but Whitfield states that her actual contract required 365 days of notice. In May 2009 she worked with the director of human resources to form a purposed contract with some stipulations that she wanted to include in her new contract. May 12, 2009 a committee was put together in order to discuss he renewal of the plaintiff's contract. Because there were differences in her contract with CVSD, the plaintiff hired counsel and afterward no one was allowed to speak to the plaintiff about her contract only through her attorney. On Aug. 11, 2009 the committee was suppose to discuss her contract once again but several disagreed. "Board member Galluze responded: 'she hired an attorney so I wash my hands with her.' Board member Kelly agreed and further commented that plaintiff's hiring attorney did not how good faith, so she had no interest further pursuing the matter." Whitfield filed the suit on Aug. 17, 2009. In order for Whitfield to gain injunctive relief she has to prove that her contract was not renewed(retaliation from the board members) because she exercised her first amendment right by testifying against a CVSD employee and that a showing of an imminent irreparable injury has taken place.
The defendants claim that Whitfield's testimony was given as "official duties" as assistant superintendent based upon the case Garcetti v. Ceballos, therefore her speech is not protected; "the court reasoned that limiting an employee's speech that arises only as part of his "professional responsibilities" does not encroach on the freedoms the employee enjoys as a citizen" (Quote within case). However the courts says that she spoke as a citizen at the appeal hearing and that her speech enjoys first amendment protection. Because of the disapproval from other board members, the defendants had to show justification for treating Whitfield differently after her testimony, but they didn't have enough proof. Therefore it shows that certain board members didn't want to discuss her contract in retaliation for the testimony. In other words, her testimony played a huge role in determining her current state of employment. Finally, the plaintiff proved imminent irreparable injury/damage because there is already distrust and a lack of corporation between Whitfield and other board members so restoring her to assistant superintendent with a new contract is unthinkable.
For many other reasons that were detailed in the case "the plaintiff's motion for injunctive relief will be granted. "


Wednesday, April 7, 2010

Headmistress Lawsuit Against Winfrey; Defamation

I read this article last week and was glad it came up in class since it deals directly with defamation.

Oprah Winfrey is involved in a defamation lawsuit with one of her headmistresses at her girls school in South Africa, Nomvuyo Mzamane, who said that Winfrey defamed her when she stated to the press that she was “performing poorly” at her [Winfrey’s] South African school. The remarks were reflected on how Mzamane supposedly ignored the students sex abuse complaints. Mzamane claims Winfrey defamed her back in 2007 when the sex-abuse scandal started. Mzamane had a difficult time finding a job after Winfrey said she “lost confidence” in Mzamane and was “cleaning house from top to bottom”.

Winfrey and Mzamane decided to settle differences one on one, without lawyers present. Perhaps this was done to avoid widespread media attention that could have lost Winfrey a lot of her fans. U.S. District Judge Eduardo Robreno did not dismiss the lawsuit though and says Mzamane had enough evidence to make her defamation case go to trial.

Winfrey defended herself by stating that Mzamane neglected the upkeep and safety for the girls at the school, after being warned about her lacking performance as headmistress of the school. Winfrey said she was just expressing her opinions based on what she knew about the schools ongoings. Mzamane said she did not know about dorm matron Tiny Virginia Makopo’s sexual abuse towards the six students at the school.

Mzamane wouldn’t have to prove that the defamation was “of and concerning her” since Winfrey stated her name and title in her comments to the press. She would have to prove that Winfrey’s statements were false and since she ejected herself into the public scene by bringing the lawsuit, she would fall under limited public figure. Winfrey, treated as a public figure, made these statements to the press/public, and the court judge ruled it as “potentially defamatory as they ascribed ‘conduct which would render Mzamane unfit for her profession as an educator’.”

Were Winfrey’s comments an act of reckless disregard for the truth (malice)? Arguments could be made that Winfrey comments can be backed up with the prior knowledge of Mzamane’s bad performance as an educator/head mistress. For example, in the article, Winfrey had planned to hire over 150 nurses to be dorm matrons for the students but Mzamane employed only eight females from an “unqualified” company.

Article:

http://news.findlaw.com/ap/e/1401/03-24-2010/20100324042005_02.html

(Amy Fuhrmeister)

Tuesday, April 6, 2010

Defamation and Online Anonymous Sources

Many of us find ourselves responding to articles, opinion makers and all kinds of material on-line. Who among us hasn't been tempted to write a nasty little response under our "on-line identity"? What if I end up defaming the writer, subject of the story to which I'm responding to on-line? Can an anonymous person be sued for defamation? How does the plaintiff know who to sue?

There are several state cases explaining how plaintiffs successfully uncovered the identity of the alleged defamers and proceeded to sue for defamation. One such caseThe Swartz v. Doe case can be used as an example of how this can be done.

Swartz v. Doe took place at a trial court in the state of Tennessee.

The Plaintiffs in this case, Donald and Terry Swartz, from Tennessee, worked with real estate sales and operations of recovery facilities for substance abusers. They sued the anonymous blogger who is obviously referenced as John Doe, for defamatory statements made on his blog titled, “Stop Swartz” that called Swartz an arsonist and said he was exploiting the recovering addicts.

Judge Brothers was the presiding Judge who used the standard court case, Dendrite International v. Doe (as most judges do in anonymous online defamation cases) as a precedent for his decision. Under this standard, there are four things the Plaintiff must do. 1) The Plaintiff must notify the unidentified blogger that he or she is the subject of a discovery procedure 2) and give the blogger a reasonable amount of time to oppose the discovery 3) The Plaintiff must identify the specific statement or statements made by the blogger that gives rights to the Plaintiffs claim 4) make a “prima facia” or substantial showing for each element of each cause of action (prima facia is a Latin expression that means “on its first appearance” and therefore is used to signify that on the first examination, something appears to be self evident from the facts)

If the Plaintiff can provide meet the burden noted above, the court then must balance the defendant's “right of anonymous free speech against the strength of the plaintiff's case and the legal necessity for the disclosure.” (www.law.com) In this case, the court decided that the Plaintiff made substantial legal and factual showing and was entitled to the blogger’s identity.

One important thing to remember is that anonymous speech on the Internet is not absolutely protected and just because it is an opinion, it does not mean you cannot be held accountable for defamation.

Swartz gave adequate notice by serving a subpoena to Google and Google had given a notice to Doe and Doe filed a motion to quash and because the Plaintiffs had not taken any more action toward Doe for a few months, the court determined that the Defendant had “ample time to respond.” The Plaintiffs had also identified the specific statements that they believed were defamatory and supplied an affidavit stating that the defamatory statements were false and had damaged them and therefore, they were granted permission to know the identity of the blogger.

Sources: http://www.digitalmedialawyerblog.com/2009/11/swartz_v_doe_tennessee_ruling.html



Ashley Huber

Monday, April 5, 2010

University of Chicago censors facebook

http://www.firstamendmentcoalition.org/2010/03/university-of-chicago-censors-student-facebook-post/

A student at the University of Chicago posted a dream he had about killing on of his professors, who wrote a controversial book, on his facebook page. The University began to question this students political viewpoints, saying they would look into comments he has made on his radio show, and demanding he take the post down. The student contacted FIRE (Foundation for Individual Rights in Education). FIRE said the post was clearly a joke. If the student really was part of a secret organization set on killing this professor why would he announce it on facebook? The University took the post as a death threat however. The campus police contacted the student and said if the post was taken down in 30 minutes he would not get in trouble and his teacher would not be notified. The student asked for 2 hours, which he was granted and removed the post. This is the second time the University of Chicago has censored a students facebook. The school continues to monitor students off campus Internet use. Since no one threatened legal action the school refused to talk to FIRE anymore.