Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

April 13, 2014

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion


Law Enforcement Priorities

April 13, 2014

I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”

We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.

The reaction?

“We just don’t have the resources to go after every one of these guys.”

Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?

But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?

We aren’t.

When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”

Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.

You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)


Press Prosecutions Relating to Occupy Movement Live On

December 2, 2012

By J. DeVoy

Around this time last year, large bands of police descended upon “Occupy” encampments from coast to coast, seeking to decamp the rebelling hipsters once and for all.  What you may not know, though, is that the Los Angeles Police Department radically changed their press policy immediately before its efforts to disperse the movement: only members of the “official” press pool were allowed to report on the raid. (Source)  Rogue journalists, as defined by the LAPD, would be arrested on sight.

Surely there was some kind of previous, quiet announcement of how to become a member of the official press pool so that bloggers, citizen journalists, and other non-traditional news sources wouldn’t (theoretically) be prejudiced, right? Apparently not:

[T]he day before [the raid], the LAPD had selected a handful of local news organizations and given them permission to report on the action from an embedded position. If you weren’t on the list, you weren’t a journalist. It was that simple.

NSFWCorp’s article (which is, by most standards, safe for work) draws the important parallel between the modern police state and prior repressive regimes around the globe.  Political activists are detained with painful zipcord handcuffs, held for hours and even days, and even forced to sit in their own excrement.  While Levine is not unbiased, his account requires little imagination to believe.

A year later, Levine is still being prosecuted for his crimes as not being a member of the official press pool.  While California and Los Angeles fiscally burn, the LAPD seem content to play their fiddle for one man possessing the temerity to document their actions.


Nevada Supreme Court expands open records law to include e-mails

January 13, 2012

The public and the media won another battle recently in Nevada, when the state’s Supreme Court ruled that the Nevada open records law should be expanded to allow the public access to logs of e-mails.

The Nevada Supreme Court ruled in favor of the Reno Gazette-Journal, which previously had been denied a request pursuant to the Nevada Public Records Act that asked for former Nevada Gov. Jim Gibbons to turn over 100 e-mails that spanned a six-month period during his tenure in office. The e-mails were sent from a state-issued account. The opinion overturned a U.S. District Court opinion that had granted the newspaper access to just six of the e-mails.

Chief Justice Nancy Saitta, who wrote the opinion, stated that under NPRA, the requester is at the very least entitled to a log that should contain “a general factual description of each withheld record and a specific explanation for nondisclosure.” The Nevada Supreme Court concluded that the log was required and that the district court judge erred in denying the request for the log.

The Nevada Legislature enacted the NPRA in order to ensure that all public books and records would remain open unless specifically declared by law to be confidential. Judge Saitta explained that the Legislature amended NRPA in 2007 to “provide that its provisions must be liberally construed to maximize the public’s right of access,” and “conversely, any limitations or restrictions on the public’s right of access must be narrowly construed.” Additionally, the burden fell on Gibbons to show that the records were confidential.

Nevada’s defining open records law case, Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990), established a “balancing test” for analyzing claims of confidentiality. The balancing test measures the public’s right to know against the individual’s right to privacy.

The test has been both a boon and a burden to Nevada media. Although the courts generally have applied the test liberally and overturned many denials for requests, some public entities employ the balancing test in an effort to push media outlets to litigate (and spend significant financial resources doing so) rather than give up the information without a fight.

This recent opinion is just one more victory for those seeking more transparent government in Nevada. This year the Nevada Legislature created an Open Meeting Law Task Force to make changes to the state’s Open Meeting Law.  In addition to creating steeper penalties for those who violate the Open Meeting Law, the task force also sought to expand the definite of “reporter” to include citizen journalists and bloggers.

Read the Nevada Supreme Court’s complete opinion here.


Nevada keeps meetings open to the public

November 5, 2011

Those lobbying for more transparent government scored big victories this year in the Nevada Legislature. Nevada Senate Bill AB59 created an Open Meeting Law Task Force to make changes to the law, which previously had been cobbled together by a collection of statutes and case law and was difficult for government entities to follow.

The changes include a monetary penalty for officials who have violated the open meeting law and increased public awareness when those violations occur. The language also expands the open meeting law to apply to quasi-judicial bodies, with the exception of parole boards.

If a public body is believed to have violated the opening meeting law, someone can complain to the attorney general’s office, which will send a letter to the council in violation. The entity must then post on the agenda that a violation has been reported, and include the letter reporting the violation at the end of the agenda. The AG was also given subpoena power when investigating alleged violations. Repeated violations come with a $500 fine.

The law also requires that if a public body holds a meeting to consider the “character, alleged misconduct, professional competence, or physical or mental health of a person,” it must provide written notice of that meeting, and must allow in certain individuals if that meeting is closed. Public notice includes publication in a newspaper of record and on the Internet.

The task force also fought to make sure that the definition of “reporter” was as expansive as possible, including citizen journalists and bloggers in the mix. In related action, the Nevada Supreme Court recently altered the camera rules for court proceedings. Reporters are now able to live tweet or send news flashes during open hearings and trials from laptops or cell phones, provided those devices do not make noise or cause disturbances. The NV Supreme Court also changed the requirement of 72 hours’ notice for requests for camera use in courts to 24 hours’ notice. In addition, judges can waive the notice for good cause.

The complete language of the bill can be found here.

In Texas, government officials recently have challenged the validity of the state’s open meeting law, claiming that the law violates government employee’s First Amendment rights. Even though Texas’ $500 fine and six months in jail penalty rarely is levied, officials filed suit challenging the constitutionality of the penalty attached to violating the law. Texas’ penalty is more severe than Nevada’s, which only attached a civil penalty for “willful violation” of the Open Meetings Act.

Texas officials brought the first suit after four Alpine City Council members exchanged emails about an upcoming meeting. According to Texas’ open meeting law, a quorum of public officials must be present to discuss public business. The officials claim it was a violation of their First Amendment rights.

Reporters in Texas fear the Fifth Circuit may strike down the Texas Open Meeting Law, leading to similar actions throughout the rest of the country. Every state has some sort of open meeting law. Supporters of the Texas law argue that the framers did not intend to protect government officials’ ability to congregate in secret.

Public officials are held to a different standard than the average citizen. Courts have consistently struck down First Amendment challenges to open meeting laws by public officials. Open meeting laws ensure that government dealings subject to public scrutiny remain public in order to protect the citizens they govern. While such laws should not prohibit public officials meeting for a friendly drink where the subject of public business is never broached, the laws should hold public officials accountable for their conduct.


IOC Uses DMCA to Suppress Luge Accident Video

February 17, 2010

by Jason Fischer

The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:

  • Shut down the luge track to prevent any more deaths… check.
  • Conduct an internal investigation… check.
  • Let an “independent” authority do its own investigation… check.
  • Make immediate modifications to the luge track to stop future accidents… check.
  • Make a press release, expressing regret, but denying all responsibility… check.

resized_Nodar_Kumaritashvili_luger_olympic_death1All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

van_2010_logoEven where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.


The article was originally published on The Tactical IP Blog


Massachusetts libel case upholds Fair Report privilege

January 30, 2010

By J. DeVoy

The trial court’s opinion in Howell v. Enterprise was affirmed by Massachusetts’ Supreme Judicial Court earlier this month, reaffirming the special protection journalists have when reporting on difficult cases.  The Media Law blog offered its analysis of the case and its significance when the decision was released:

The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, “[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation,” and that courts should take “an expansive but not unlimited view” of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

The SJC goes on to conclude that the bulk of the reports met both prongs — that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

The Supreme Judicial Court tacitly supports a lenient standard in determining what constitutes an official action, but still applies a two-prong test to the speech. Namely, mistakes made in reports are examined for their accuracy — the factual relation of what happened — and their fairness, the event’s reported character.

This decision seems to back away from Murphy v. Boston Herald, previously discussed by Marc.  In that case, a judge’s alleged statements about a rape victim in criminal litigation were at issue, though, whereas here there’s merely the claim that a state employee viewed pornography on government computers.  While no less damaging for the individual here, the public effects of extreme statements about a judge have greater consequence than those about a generic state employee.  Murphy may even be a special case because of the importance of the public’s trust in the judiciary and the recklessness displayed by the journalist in gathering his facts — or, more accurately, failing to do so.

Still, the Fair Report privilege lives on, and may have received a new vigor from Howell.  Though the doctrine sounds like it was ripped off from Fox News, journalists everywhere are fortunate to have it.


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