Posts Tagged ‘Defamation’

Of Poetry, Punditry and Purported Put-Ons

In addition to my work here at 95years, I also write for a literary blog called We Who Are About to Die. Yesterday at WWAATD, I wrote about a poet, Kent Johnson, who has written a book of criticism making the strange claim that the famous poet Kenneth Koch wrote one of his friend Frank O’Hara’s most famous poems. Koch’s estate was not amused and sent Johnson’s publisher an oblique letter calling the book’s thesis a “malicious hoax” and threatening a lawsuit. If you’re interested, read my post analyzing the legal issues potentially raised in the letter here. Hopefully I’ll have another chance to comment upon the situation once new facts come to light.

 

Friday Afternoon Link Roundup

I’d like to apologize to our faithful readers for the relative dearth of content lately. I’ve been busy studying for yet another bar exam as part of my quest to become licensed in every state in the lower 48* and Joe is currently off in some Caribbean fantasyland sipping rum from a coconut. We’ll be back with guns blazing over the weekend. In the interim, here are some highlights of the past week in our corner of the legal world.

*To be fair, I have also thought about sitting for the Alaska bar exam, despite the fact that it’s three days long.

Strategic lawsuits against public participation” (SLAPPs) are lawsuits filed to restrain the speech of an opponent or punish an opponent for past speech. Often involving questionable defamation claims, SLAPPs can cause significant expense and anxiety. Public policy on SLAPPs varies; some states like California have strong anti-SLAPP laws, but others don’t. Now a federal anti-SLAPP statute, called the Citizen Participation Act, is on the table. The Legal Satyricon has the details. If you’re the victim of a SLAPP, the First Amendment Project offers tools for fighting back.

Jalopnik calls this opinion from the Delaware Court of Chancery ”The Greatest Legal Document of All Time,” which may be accurate if you really like auto racing and/or Will Ferrell movies. Thanks to William Bray for the link.

Is the Copyright Royalty Board, which determines webcasting copyright royalty rates, constitutional? Live365 has been arguing that it isn’t. Although Live365 failed to obtain injunctive relief on that ground, the issue remains undecided. Story courtesy CommLawBlog.

Cornell Law’s decision to promote itself by way of reference to fictional Cornellian Andy Bernard from “The Office” comes under fire for a number of reasons. Story courtesy Above the Law.

Cat-SLAPP photo courtesy australianshepherds (http://www.flickr.com/photos/australianshepherds/ / CC BY 2.0).

 

Issue Spotter!

This post is for all of the law students and recent law graduates out there. I came across the following paragraph in a Daily Beast article entitled “The Hipster Thief,” about literary enfant terrible and fellow NYU grad Tao Lin, author of Shoplifting From American Apparel, and the legal fallout from his arrest for, well, shoplifting from American Apparel:

After agreeing to publish a chapbook called today the sky is blue and white with bright blue spots and small pale moon and i will destroy our relationship todaywith respected indie publisher Kevin Sampsell, Tao chafed so much at Sampsell’s editing suggestions that Sampsell canceled the book. Then, in a long, hypnotic blog post, Tao published all of Sampsell’s personal emails along with a detailed “philosophical justification” for doing so. (He claimed that making private information public “decreases pain and suffering in the world.”) Later, after his shoplifting arrest, Tao emailed lawyer and short-story writer Richard Grayson for legal advice. Grayson then published those emails on Lulu.com without Tao’s permission as a book called The Tao Shoplifting Crisis.

This paragraph is right out of a law school issue spotter essay exam. How many legal issues can you spot? I see at least five:

DISCLAIMER: I’m not saying any of these wrongs were actually committed by any party or that such claims would stand up if brought, just that the issues are there, and that after reading that paragraph I had to keep myself from launching Electronic BlueBook on my laptop.

Did I miss any other potential claims against any party? If they’d only included a few more facts about Lin’s arrest, we’d have criminal law and criminal procedure issues too!

Some samples of Tao Lin’s work are available here.

Adult Swim fans might also enjoy “Issue Spotting Metalocalypse” over at the Legal Satyricon.

 

Citizens United v. FEC: Eight Unanswered Questions

The country is abuzz about the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, soon to be known as “the case that launched a thousand law review articles.” The implications of Citizens United are enormous, and commentators are bitterly divided. Did the Supreme Court untangle a vexatious doctrinal knot and strike a necessary blow for the First Amendment, or did the Court remove the last significant barrier between corporate monetary influence and the political process?

(For cheers, visit the Volokh Conspiracy; for jeers, visit the Huffington Post; for a sampling of positive and negative opinions, visit the New York Times; for useful analysis of underlying issues, visit SCOTUSblog here and here.)

While I can’t answer the many questions the opinion raises, I have outlined some questions of my own, and I am eager to hear other people’s opinions and predictions regarding these issues. (I note that moneyed interests, particularly PACs and wealthy individuals, already exert significant influence on the political process. The following questions are predicated on the assumption that Citizens United will result in a significant increase in the volume of spending on political advertising, and that such spending by corporations will be subject to less regulation than spending by PACs.)

Question One. Justice Kennedy certainly puts a lot of faith in the accuracy of corporate political speech. He takes for granted in his hypotheticals (“[t]he Sierra Club runs an ad . . . that exhorts the public to disapprove of a Congressman who favors logging in national forests”) that the corporations in question are basing their opinions on proven facts. Kennedy’s opinion states that the burden of regulation chills speech in advance of an election and that corporations should be able in essence to speak first and worry later about whether their speech accords with a given regulatory scheme. But what about situations where corporations spread half-truths or even outright falsehoods about candidates? Will candidates be able to get to court in time to stop the corporations before a given election? The law of defamation is not on the side of candidates in such a situation, and neither is the clock. Political candidates are considered “public figures,” and, as such, they must plead and prove additional facts to win a defamation suit: knowledge of the statement’s falsehood and/or knowing disregard for the truth, also known as “actual malice.” This is, of course, a difficult standard to meet. Will an aggrieved candidate be able to do so before such a corporate-sponsored falsehood undermines an entire campaign? Will courts do anything to make it easier, at least procedurally, for candidates to obtain injunctive relief quickly?

Question Two. In Section 3 of the opinion, Justice Kennedy dismisses the issue of whether the government has an interest in protecting dissenting shareholders from being compelled to fund corporate political speech, stating, “[a]ssume . . . that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. . . . Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.” Kennedy’s hypothetical, however, focuses on a publicly held media corporation, despite the fact that both law and tradition have treated the political speech of media corporations differently from that of non-media corporations. Wouldn’t a shareholder in a media corporation, before purchasing his or her shares, understand that expressing political opinion, through an editorial board or similar means, is part of the traditional business of that corporation in a way that it isn’t for, say, a plastics company?

Question Three. Kennedy proceeds, “[t]here is, furthermore, little evidence of abuse that cannot be corrected by shareholders ‘through the procedures of corporate democracy.’” He further states that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” Despite Kennedy’s faith in the power of the Internet, will it really be possible for shareholders to express disagreement with corporate political speech through corporate democratic measures quickly enough to protect their own interests, especially if the mere production of the ad exposes the corporation to suit or harms its reputation?

Question Four. Further, if shareholders can’t quickly make their views known through traditional measures of corporate democracy, won’t they find new ways to voice their disagreement? For example: if a corporate-sponsored political ad leads to a defamation lawsuit against the corporation, will that suit lead to an accompanying shareholder derivative suit against the corporate directors who approved the advertisement that exposed the corporation to liability? What if an advertising campaign is factually accurate but takes a wildly unpopular stance that ultimately hurts the corporation’s bottom line?

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