Andy on the Road

6 October 2010

The Dido and the Astronaut

Filed under: knowyourrights,thecommonlaw — Andy @ 2:40 pm

When the Hollywood Reporter broke this story, they started their article with this:

Look closely at Dido’s album cover for “Safe Trip Home.” Spot the lawsuit?

Dido

The astronaut in that photograph is Captain Bruce McCandless II. This is him here:

(Image courtesy Wikimedia, and I’m going to go ahead and add that that Captain McCandless doesn’t endorse my blog.)

Capt. McCandless is a true hero of the NASA program, serving as CAPCOM during the Apollo 11 mission and logging more than 300 hours in space himself.  He is most famous for making the first untethered space flight in the NASA MMU.  NASA has a collection of photos from the flight, including this one:

(Courtesy NASA)

It doesn’t take too long to see how Dido took this shot and made the album cover above.  The thing is, Capt. McCandless feels as though he, the astronaut so portrayed in the photograph, is entitled to some form of remuneration (along with an injunction) by virtue of being portrayed therein.  And so, he sued.  Here’s the complaint (PDF).

It’s important to note that this is not a copyright claim.  NASA took the photograph, and under ordinary circumstances that’s enough to put the photograph in the public domain as a government work.  McCandless makes no claim to the contrary.  This is a question of personality rights.

I’m still learning about trademark and rights of publicity, so I don’t feel comfortable going into the legal weeds on this one, but I can’t help but think that all of the major personality rights cases – Waits v. Frito-Lay, Haelan Laboratories v. Topps Chewing Gum, Martin Luther King Jr. Center for Social Change v. American Heritage Products, even the often controversial Zacchini v. Scripps-Howard Broadcasting Co. – all dealt with portrayals of celebrities where you could actually tell who was being portrayed.  It was Tom Waits’s voice, the baseball players’ portraits, a sculpture of Dr. King, or a video of Zacchini, and in all of those cases it was easy to see or hear who it was.  There was no mistake about it. Until I started writing this article, I had no idea that who the astronaut was in the photograph there.  It’s just an astronaut.

And even if I did know that this is a picture from the first MMU flight, and that McCandless was the person portrayed, how can I tell that it’s him?  He’s a speck on that photograph. (I think that’s why that photograph is so powerful.)  When we talk about personality rights, we talk in reference to using someone’s name or likeness without their permission.  On Safe Trip Home you don’t know the astronauts name and you can’t see the astronaut’s face.  It is technically him, but the only way you know who this is would be if you are schooled enough to know the background significance of the picture.  I don’t even think the question fairly debatable – at best it’s a very serious uphill battle to prove it.

The complaint sees it differently:

29. The EVAtion Photograph [the photo used on Dido's album] includes the images of McCandless, and McCandless is further identified in part by distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system. NASA used such markings to visually distinguish McCandless from other crew members.

30. In the EVAtion Photograph, McCandless is further identified by and pictured with a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle missions.

With all due respect to the drafters of the complaint: really?  You really think you can see all of these things in this photograph?  Can you make out the mission patch on the chest of Capt. McCandless’s life support system?  Even if you saw it close up, would your mind go to Capt. McCandless when you saw that patch?

The complaint also notes that the photograph appeared in news media, including this piece in Time magazine, identifying Capt. McCandless.  But again, unfair use of publicity rights more or less presumes that a consumer will see the celebrity portrayed and believe the celebrity to have supported, endorsed, or otherwise lent their goodwill to the product.  To put it in the words of the California Civil Code (under which McCandless makes one of his five claims) a photograph of a celebrity must be clearly depicted so that “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”  I don’t think this should be enough:

(McCandless, zoomed in as far as the original photo will allow.)

Now, the Complaint alleges that Dido did, in fact, mention in the liner notes that the photograph depicts McCandless.  In so doing they have used his name, and thus he at least gets in the door with a personality rights claim.  But that’s inside the liner notes of the album, and thus not used to sell or advertise the product.  In short, I don’t think that should count either.

I leave more analysis to those more suited, but I do want to note in closing that the complaint embraces what I consider a wholly separate action against Getty Images for publicity claims as well as some form of breach of contract claim for a personality license Getty entered into regarding this picture.  Why Getty is allegedly commercially licensing a public domain picture, and paying McCandless for the personality rights therein, remains a complete mystery to me.

28 June 2010

The Calm Before the Storm

Filed under: nerdingout,thecommonlaw — Andy @ 8:35 am

At 10AM the Supreme Court will issue the final four opinions of the term, and they’re all very big: the patenting of business methods; the constitutionality of Sarbanes-Oxley and the Public Company Accounting Oversight Board; whether citizens have Second Amendment rights against actions of states; and whether public universities can fund some student groups, but not certain religious organizations which require certain faiths and beliefs, consistent with the First Amendment.

Mr. Tom Goldstein over at SCOTUSBlog has put in his predictions: the scope of method patents will be narrowed, the PCAOB will be held unconstitutional, the Second Amendment will apply against the states, and the school’s actions will narrowly be upheld. We’ll see how these hold up in half an hour.

Update 1: SCOTUSBlog will have the live results here, but get ready for a lot of traffic. With gun rights on the list Drudge has taken interest and has linked over there.  The uptick in hit counts are surely going to lag the SCOTUSBlog site.

Update 2: all cases are down, and it looks like Mr. Goldstein was right on all counts.  Both Bilski and the PCAOB opinion sound far narrower than initially suggested here.  More on Bilski in the future.

22 June 2010

Citizen Media Law Project, EFF, and Public Citizen file amicus brief in “hot news misappropriation” case

Filed under: Berkman,intellectual property,knowyourrights,thecommonlaw — Andy @ 1:26 pm

I hope to add some color commentary to this when I catch a break, but for now here’s the Berkman press release:

Cambridge, Mass. – The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF) and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc. The coalition worked with Harvard Law School’s Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com (“Fly”) that reports on equity research from Wall Street investment firms. Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation. The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day. The injunction applies even when Fly obtains information about the recommendations from published news reports. Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern. The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment. The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment. “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard. “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief. Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School. CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf

6 May 2010

New Hampshire Supreme Court applies free speech rights to online newsgathering

It’s a good day for the First Amendment – or, in this case, the New Hampshire constitutional analogue.

The New Hampshire Supreme Court issued an opinion this morning (PDF) vacating, reversing, and remanding the case of Mortgage Specialists Inc. v. Implode-Explode Heavy Industries, Inc. I worked on an amicus brief in this case with the Citizen Media Law Project and the Reporter’s Committee for Freedom of the Press, advocating for this outcome.

The case surrounds the Mortgage Lender Implode-O-Meter, a website dedicated to chronicling the collapse of the mortgage industry with insider reporting and primary sources (a bit like a Gawker or Smoking Gun for mortgage lenders). In 2008 the website obtained a confidential filing submitted by The Mortgage Specialists, Inc. (“MSI”) to the New Hampshire Banking Department. The chart contained detailed information on lending activity, and was submitted pursuant to an investigation on MSI’s lending activity. After the website posted this material, an anonymous commentator made statements which MSI interpreted as libelous of the company and its president. MSI responded to this publication by filing a complaint in New Hampshire court. Without discussing the First Amendment issues at stake, a New Hampshire Superior Court ordered that the Loan Chart be removed from the website, the source of the Chart be disclosed, and the identity of the anonymous commentator be revealed for possible libel charges.

As I noted in two earlier pieces, the CMLP and RCFP argued that this order violated both state and federal constitutions, as well as a the New Hampshire common law reporters’ privilege. (The amicus brief is here as a PDF.) We argued that the injunction removing content from a website works a prior restraint on speech, as even those who could have accessed the information prior to the court order would no longer be able to do so. As a prior restraint, the court had to demonstrate a government interest of the highest order to overcome the free speech issue at stake. Cases like the famed Pentagon Papers Case demonstrate just how high this burden is. We further argued, even assuming this is not a prior restraint, the government cannot punish this speech consistent with the United States Supreme Court case of Bartnicki v. Vopper and the First Circuit’s Jean v. Massachusetts State Police. (Constitutional scholar Eugene Volokh of the Volokh Conspiracy took interest in the case too, and gave our brief some very kind words.)

The New Hampshire Supreme Court echoed these concerns in their opinion this morning. The court rejected MSI’s argument that the website was not entitled to a reporter’s privilege, noting that “[t]he fact that Implode operates a website makes it no less a member of the press.” In addressing the alleged crime committed by the source of the Chart, the court adopted the disclosure requirements of the First Circuit case Bruno & Stillman v. Globe Newspaper Co: MSI must demonstrate that the information sought is critical to their claim, cannot be obtained from other sources, and persuade the court that their interest in obtaining the information outweighs Implode-O-Meter’s interest in confidentiality.

Turning to the anonymous commentator’s allegedly libelous comments, the court adopted the test of the New Jersey Superior Court of Appeals in Dendrite International, Inc. v. Does, requiring a plaintiff to render efforts to inform the anonymous commentator, identify the particular allegedly libelous speech, make out a prima facie case for libel, and persuade the court on a balance of the equities.

For me, the most exciting part of this opinion is the Court’s approach to the prior restraint question. After a lengthy section discussing the extreme disfavor of prior restraints on publication, the court said the following:

Although the injunction here prohibits republication of the Loan Chart and postings, rather than their publication in the first instance, the injunction is nevertheless a restriction on what Implode may publish in the future. Accordingly, we conclude that the injunction effectively functions as a prior restraint that “freezes” speech at least for a time.

Once this was found to be a prior restraint, the Court seemed to have no problem dismissing the interest here as far below that needed to issue an injunction. The court accordingly reversed on the injunction and remanded to consider the qualified reporter’s privilege and the Dendrite test for anonymous commentators.

Finding a reporters’ privilege for online journalists is wonderful news (especially in light of the question coming up in the whole Gizmodo/iPhone situation), but I think the real gold here is in the Court’s approach to prior restraint. The Court adopts congruent but discrete reasoning compared to the CMLP/RCFP amicus brief. Our brief focused a good deal on the constitutional right to make the same speech as that which is enjoined: even those who previously read the content could no longer access that information, so for purposes of public debate it’s as if the speech was never there. The court seems to focus on how the injunction impacts future speech: the injunction prevents new commentary and discussion surrounding the same information. These are complimentary arguments, but embrace an interesting nuance to the prior restraint question. Either way, the First Amendment risk of removing content from the Internet is brought into sharp focus, and receives appropriately high protection. Here’s hoping other states follow New Hampshire’s lead in this area.

(While I worked with a number of folks on the brief, the opinions of this post and blog in general are mine and mine alone.)

11 February 2010

Litigation Roundup

Filed under: intellectual property,lawsandsausages,thecommonlaw — Andy @ 9:07 pm

I’ve been taking advantage of the week-long Hoth-ian situation down in DC to catch up on copyright and music industry news. A lot of my time on this was spent doing the who’s-suing-who IP and entertainment litigation roundup. There aren’t a lot of crazy legal theories here, so I don’t have much in the way of commentary or insight (or better still, links to those with insight). This is a little more gossip based. Enjoy:

  • The White Stripes are alleging that the US Air Force Reserves ripped on “Fell In Love With A Girl” on a Super Bowl ad. (THR, Esq.)  The Air Force ad can be found courtesy of Huffington Post. The composer responsible for the Air Force ad has since apologized. (Paste)
  • Up in Boston, Pizzeria Regina is suing South Weymouth pizza shop Capone’s under trademark theories. (Universal Hub)
  • Sly Stone is suing his former manager for a whole lot of money. A whole lot of money. (Billboard)
  • Slowly working up the courts since October is a lawsuit between Domino Records and A&M Records over whether Guns ‘N’ Roses ripped on Ulrich Schnauss on Chinese Democracy. (Billboard | Justia)
  • Two artists are suing the Black Eyed Peas over the “Boom Boom Pow” song. (THR, Esq.)
  • And last, but certainly not least, the first of many predicted lawsuits against that “Pants on the Ground” song. (This one’s called “Pockets on the Floor!”) (Techdirt)

On a closing note, social video website Veoh is going out of business. Veoh has been in court with Universal Music Group over whether the website qualified for DMCA safe harbor protection. The case is frequently cited as the tracer shot for the much heftier Viacom/YouTube case presently in discovery. While Veoh won summary judgment in September, UMG was planning an appeal. Commentators are now wondering if the UMG lawsuit drove Veoh into closure.  Billboard found a Veoh board member tweeting exactly that, but Ben Sheffner casts some doubt on that claim, noting the prior case Veoh has against adult entertainment company  iO Group running coterminous with the UMG case. In any event, Veoh is going away, and I would guess any appellate-level review of the Veoh/UMG case is probably going with it.

Update: Techdirt opens up the question of what’s to happen with the litigation in light of this news.

Update 2 (2/15): Eriq Gardner over at THR, Esq. (one of my new favorite blogs) offers his prediction for the Veoh case:

If Veoh declares Chapter 7, a bankruptcy judge would issue an automatic stay in the case. UMG would likely file a motion with the bankruptcy court seeking relief from the stay to perfect its appeal. The trustee would engage legal counsel and make financial arrangements to cover the costs of defending the case before the 9th Circuit.

We’re betting that all of this happens. The requiem on Veoh is now being written, but the company could continue to play a significant role in helping shape copyright liability for tech companies. (We wouldn’t even be surprised to see Google acquire Veoh just so it could share in the fun of the action.)

The Chapter 7 declaration has already happened. We’ll see how the rest pans out.

21 January 2010

Citizens United v. FEC is in

Filed under: oyez,politics,thecommonlaw — Andy @ 10:31 am

The Supreme Court has issued an opinion on one of the most important campaign finance and First Amendment cases to come to the Court in a good long while: Citizens United v. FEC. A PDF of the opinion is here, but in short it appears to be a 5-4 jumble of opinions (Kennedy for the majority, Stevens for the dissent, with Thomas dissenting in part and Roberts and Scalia with concurring opinions) partial overruling of Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which according to SCOTUSBlog eliminates the distinctions between corporate and personal campaign expenditures, and (from my perspective) will probably eliminate the connected PAC structure.

What this all means outside of the finer points of campaign finance law, of course, remains to be seen. But those worried about overexertion of political influence by corporations are likely taking this as new reason to worry this morning.

Also, this opinion was announced less than half an hour ago. You have to love technology’s ability to disseminate information.

3 November 2009

Shepard Fairey recruits Fisher, Palfrey and Stewart

Filed under: Berkman,intellectual property,thecommonlaw,theroad — Andy @ 10:57 pm

Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.

I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.

After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here  (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.

Specifically, the books Promises to Keep and Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys.  From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.

Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.

Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.

13 July 2009

Sen. Specter’s comments at Sotomayor hearing

Filed under: Berkman,lawsandsausages,politics,thecommonlaw,theroad — Andy @ 9:03 pm

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

24 June 2009

Citizen Media Law Project and Reporter’s Committee for Freedom of the Press file amicus brief in New Hampshire Supreme Court Case

Filed under: Berkman,oyez,seriesoftubes,thecommonlaw — Andy @ 7:48 am

I don’t typically cross over my work with this blog, but I wanted to share this press release regarding an amicus brief I drafted with the CMLP and RCFP. I’ve added a few links to ease navigation.

Cambridge, MA – June 23, 2009 – The Citizen Media Law Project (CMLP), assisted by Harvard Law School’s Cyberlaw Clinic, urged the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers mortgage industry news.

The CMLP, in conjunction with the Reporters Committee for Freedom of the Press (RCFP) and with the assistance of local counsel Paul Apple of Drummond Woodsum & MacMahon in Portsmouth, NH, submitted an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. The case involves Implode-Explode Heavy Industries, Inc., which runs a mortgage industry website that posted a New Hampshire Banking Department document, obtained from an anonymous source.  That document described certain business practices of the Mortgage Specialists, Inc., a lending company under investigation in New Hampshire and Massachusetts.  After the mortgage company discovered the disclosure, it sued the website, demanding that the document be removed and that the anonymous source be identified.  The Rockingham County Superior Court granted these requests (PDF), and the case is presently on appeal.

In their brief, the amici focused on a series of cases in which courts permitted the publication of confidential or controversial documents – from the U.S. Supreme Court in the famed Pentagon Papers case through recent cases involving recorded cell phone conversations and videos of police searches posted onlineAmici also provided extensive caselaw support for the proposition that anonymous news sources should be protected.

The amici urged the New Hampshire Supreme Court to carefully consider the harm the Superior Court’s ruling would have on freedom of the press, noting in their brief that the publication of this document “is not unlawful in New Hampshire, and, even if it were, would nevertheless be fully protected speech under the First Amendment.”  In addition, amici asked the Supreme Court to apply New Hampshire’s qualified reporter’s privilege to protect the identity of its source, noting “[i]t is the function of an organization, not the medium of publication, which defines it as worthy of a journalist’s privilege.”

The CMLP was represented on the brief by the Cyberlaw Clinic.  The CMLP and the Cyberlaw Clinic are both based at Harvard University’s Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace.  Andy Sellars, a Cyberlaw Clinic summer intern and student at The George Washington University Law School in Washington, DC, drafted the brief alongside CMLP Assistant Director Sam Bayard, Cyberlaw Clinical Fellow Christopher Bavitz, and RCFP Legal Fellow Samantha Fredrickson.

“It was a great privilege to work with the CMLP and RCFP on this important issue,” Sellars said.  “We hope the New Hampshire Supreme Court will carefully weigh the First Amendment rights at stake in this case.”

For more, see the CMLP and RCFP press releases on the subject, as well as Sam Bayard’s blog post from April.

26 May 2009

Sotomayor on the law

Filed under: thecommonlaw,theroad — Andy @ 9:04 am

The changing nature of the law and the conduct of lawyers give the public understandable pause. We must not, however, fall prey to the public’s cynicism. We must instead expect more of our profession. There is a limit to how far an individual lawyer can elevate the bar as a whole. What a lawyer can do, as argued above, is educate the public–at the very least in the person of his or her clients–and personally raise standards by living up to a code of conduct beyond what is “enforceable.” This responsibility is not confined to attorneys in private practice. The others who operate in or around the legal framework–judges, prosecutors, juries, witnesses, public officials, and the press–must also educate themselves, and others, and apply higher standards of conduct to their own behavior.

Soon-to-be-announced Supreme Court nominee Hon. Sonia Sotomayor (with Nicole Gordon), Returning Majesty to Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 49 (1996).
This is going to be an interesting couple of weeks. SCOTUSblog has a nice outline of what we have in store, and what the plans of attack will be.

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