June 16, 2011

Follow me on Twitter @mapjresq

Blog's been a bit quiet lately, hasn't it? I've been using Twitter a lot to get out the word, short and to the point, on breaking news and developments concerning media, the First Amendment, and the Internet.

So if you are a Twitter follower (a Twitteree? Tweetee?) please check out my tweets and follow me @mapjresq

May 2, 2011

World Press Freedom Day: good news, bad news

Image courtesy of WAN-IFRA.
The good news is that May 3 is World Press Freedom Day, established by the UN General Assembly in 1993. 

This year's theme, as explained on the UNESCO WPF site, is "the potential of the Internet and digital platforms as well as the more established forms of journalism in contributing to freedom of expression, democratic governance, and sustainable development." 

For additional information see the UNESCO site or the WPF page at the World Association of Newspapers and News Publishers (WAN-IFRA) website.

The bad news is that Freedom House released its 2011 Freedom of the Press Report, which shows that global media freedom has reached a new low point, with only one in every six people living in a county with a free press. The report notes that particularly troubling trends are in the Middle East and the Americas, with some improvements in sub-Saharan Africa. 

Cartoon by Michel Cambon courtesy of WAN-IFRA.

April 15, 2011

Protective order trumps public records access rights

In Commonwealth v. Fremont Investment & Loan, the Supreme Judicial Court of Massachusetts upheld a trial court's determination that the Massachusetts public records law, G. L. c. 66, sec. 10, does not render ineffective a trial court's protective order. In so doing, the SJC concluded that "the public records law does not abrogate judicial protective orders."

At issue were 5.5 million documents that Fremont had produced in an enforcement action brought against it by the Commonwealth, which alleged unfair and deceptive practices in Fremont's  mortgage lending business. Fremont had designated those documents as confidential  pursuant to a protective order entered by the trial judge in that case, which was settled with the entry of a consent decree in 2009.

Samuel J. Lieberman sought access to those documents under the state public records law, for use in connection with a potential class action case against Fremont. The Attorney General refused to produce documents designated by Fremont as confidential.

Lieberman argued that because the documents did not fall within one of the exemptions stated in the records law, they must be produced notwithstanding the trial court's protective order. 

In rejecting his argument, the SJC acknowledged that while the subject documents might not be exempt from access under the records law, Lieberman's "conclusion that the records must therefore be disclosed is based on the mistaken premise that all documents in the hands of public officials must, absent an applicable exception, be made public notwithstanding a court order prohibiting their circulation. We do not agree that the public records law was intended to extend this far."

The SJC noted that the records action judge had not addressed all questions at issue in the case , such as "whether the order should be modified for other reasons, or whether certain documents designated confidential by Fremont are not validly protected by the order." 

April 11, 2011

If at first you don't succeed?

In 2006, when confronted with an anti-SLAPP defense motion, rabbi Mordechai Tendler withdrew subpoenas to Google, in which he sought the identity of anonymous bloggers who had commented on his dismissal from a New York synagogue over allegations of sexual relations with members of the congregation.

He's back ...

Public Citizen reports on its Consumer Law & Policy Blog that the "Randy Rabbi" is back, once again armed with a subpoena aimed at discovering the identity of the same anonymous bloggers.  

Tendler obtained a liability judgment against the synagogue that dismissed him, and now claims that he needs to know the identity of the anonymous bloggers to gather evidence in support of his damages claim against the synagogue.

The Public Citizen blog piece has a link to a page it maintains about the subpoena efforts, including a link to the memo in support of a motion to quash the subpoena, which was filed recently in a New York trial court by the Public Citizen Litigation Group on behalf of the anonymous bloggers.

The bases of the motion to quash are that Tendler failed to comply with a New York state procedural requirement that he state the reasons why the disclosure he seeks is warranted, and because enforcement of the subpoena would violate the bloggers' First Amendment rights.

April 6, 2011

Invitation to a special Ford Hall Forum event

On April 21 the Ford Hall Forum is presenting its 31st annual First Amendment award to retired New York Times columnist and two-time Pulitzer Prize winner Anthony Lewis.  

As you may know, Lewis (who is the husband of recently-retired SJC Chief Justice Margaret Marshall) is the author of Gideon’s Trumpet, Make No Law, and Freedom for the Thought We Hate: A Biography of the First Amendment.

I am honored to have been asked by the Ford Hall Forum to serve on the First Amendment Award 2011 Event Committee, and I want to invite you to attend the award ceremony and forum (which is free and open to the public), as well as a private pre-ceremony reception.

The Ford Hall Forum’s Louis P. and Evelyn Smith First Amendment Award commends individuals and entities for extraordinary commitment to the thoughtful exercise of the freedom of expression. Previous First Amendment Award recipients include civil rights activist and Congressman John Lewis, Tiananmen Square rebel and astrophysicist Fang Lizhi, and NPR journalists Cokie Roberts, Nina Totenberg, and Linda Wertheimer. Honorees like these best exemplify the spirit of the Ford Hall Forum, which for over a century has given acclaimed experts a chance to disseminate controversial opinions on the issues of our time, while providing the public opportunities to openly challenge them.

The evening's events will start at 5:00 p.m. when the Forum will hold a reception with Anthony Lewis at the offices of Prince Lobel Glovsky & Tye in Boston. Reception tickets (which will include priority seating at the forum) are available for purchase here.

If you or your firm or business are interested in sponsoring this prestigious reception, please contact me. Sponsorship levels range from $500 to $5,000, and include tickets to the reception, an ad in the program booklet, and, depending on the level of sponsorship, your name or logo in various Forum email announcements or brochures, or on the Forum's Website, and, at the highest level, recognition as an event underwriter.

The Award Ceremony and forum begins at 6:30 p.m. at Suffolk University’s C. Walsh Theatre. Floyd Abrams, America’s leading First Amendment lawyer, will guide a fascinating conversation with Lewis on his life and career (including his time as a Nieman Scholar at Harvard, Editor-in-Chief for the London office of the Times, professor of journalism, and longtime “At Home Abroad” columnist for the Times), and his demonstrated passion for the First Amendment.

The Awards Ceremony and forum is free and open to the public, but you do need to register here for a free ticket.

I hope that you will be able to join us for an exciting evening.

April 5, 2011

Appealing music

A three-judge panel of the U.S. Court of Appeals for the First Circuit heard oral argument yesterday in Sony BMG Music Entertainment v. Tenenbaum, the cases brought by the recording industry against Boston University grad student Joel TenenbaumTenebaum is appealing the judgment against him for downloading 30 songs. 

Concluding that the jury's damage award of $675,000 was so "unprecedented and oppressive" that it could not withstand scrutiny under the Due Process Clause of the U. S. Constitution, the trial judge, District Judge Nancy Gertner, had reduced the award to $67,500, an amount she described as still "severe, even harsh."  

On appeal, Tenenbaum argues, among other things, that the award remains unconstitutionally excessive and that the Digital Theft Deterrence Act of 1999, which provided the basis for an increased range of statutory damages for copyright infringement (see 17 U.S.C. Sec. 504(c)), was not intended to apply to individual, non-commercial consumers.

The music companies appeal Judge Gertner's reduction of the award.

You can listen to an audio recording of the oral arguments here.

Tenenbaum is represented by a team of lawyers and law students led by Harvard Law School professor Charles Nesson, and on Monday HLS 3L Jason Harrow argued on behalf of Tenenbaum. A Web site, Joel Fights Back, is dedicated to the cause. 

This is only the second case to go to trial against an individual accused of unlawful music dowloading/sharing.  

In 2008 the music industry decided to no longer pursue individuals for allegedly unlawful music downloading or sharing (as reported in this Wall Street Journal article), but that it would continue with suits already in progress.