Administration Attempts to Prohibit the Commercial Use of Barack Obama

(c) 2006 Associated Press
(photo by Mannie Garcia)

By Alex Suskind

White House lawyers are currently in the process of trying to limit the commercial use of President Barack Obama’s picture. According to Bloomberg.com, the lawyers for the administration are attempting to accomplish this in a way that does not trample free speech or violate the First Amendment.

Some examples of recent marketing techniques by companies include Ikea's "Embrace Change" advertising campaign and Southwest Airlines "Yes You Can" sale. In addition, Obama's face has been on countless retail items such as tee-shirts, coffee mugs and basketball jerseys.

The rest of the Obama family has not been spared either. Recently, Ty Inc. released the Sweet Sasha and Marvelous Malia dolls, and claimed that they were not designed after the first daughters.

Jonathan Band, an intellectual property lawyer in Washington D.C., told Bloomberg.com that the Obama administration might have to examine the illegal use of the Obama brand on a case by case basis.

“Because he is the president of the United States...I think the First Amendment will be applied much more broadly with respect to people wanting to use an image of the president than it would be with typical entertainment figures or sports figures,” added Band in his comments to Bloomberg.com.

• Some courts have recognized a property-like right when the name of a celebrity is used to market another product without prior authorization. Johnny Carson, the former host of The Tonight Show, successfully sued a company, which was advertising their toilets with Carson’s famous catchphrase: “Here’s Johnny.” What argument could you make, both for and against, regarding the President's ability to sue a company using his catchphrase, "Yes We Can" for an advertising campaign?
  

• Would the same standard apply to Sasha and Malia Obama?
  

Limiting Cyber-Bullying

(c) 2007 Associated Press
(photo by Mel Evans)

By Alex Suskind

According to the Free Expression Network, New Jersey State Attorney General Anne Milgram (shown left) recently sent a letter to all universities and colleges in the state of New Jersey, requesting that each school now include cyber-bullying into the schools code of conduct.

The Free Expression network defined cyber-bullying as “stalking, bullying, and/or sexual exploitation" via the Internet. Milgram referred to websites such as Juicy Campus, which have become forums for harassment by students. The website allows users to anonymously post gossip related messages about people or organizations on their respective campuses.

In her letter, Milgram further requests that the school issue a statement regarding its policy on cyber-bullying and make the necessary resources available for students who have been the victims of cyber-bullying.

According to the Free Expression Network, the request by Milgram is a first for the United States. Currently, only grade schools have been known to punish students due to cyber-bullying.

In response to Milgram's letter, three free speech organizations, the Student Press Law Center, the Foundation for Individual Rights in Education, and the New Jersey chapter of Society of Professional Journalists, sent a responding letter, warning colleges and universities that limiting speech under the term "bullying" could violate the First Amendment.

• According to Chaplinsky v. New Hampshire, speech is not protected when "by [its] very utterance [it] inflict[s] injury or tend[s] to incite an immediate breach of the peace."* According to this definition, would speech on Juicy Campus be protected under the First Amendment?
  

• What arguments can Milgram make, in which the prevention of cyber-bullying would not be a violation of the First Amendment?

*Quoted from Communication and the Law by W. Wat Hopkins

Judge Blocks Email Request by Reno Gazette-Journal

(c) 2003 Associated Press
(photo by Joe Cavaretta)

By Alex Suskind

The Reno Gazette-Journal was recently denied access in a lawsuit that was seeking the release of Nevada Governor Jim Gibbons' (shown right) emails, according to an article from the First Amendment Center.

The article went on to state that the Gazette was originally seeking the email records due to a previous FBI investigation. The FBI was looking into allegations that Gibbons received money and lavish gifts from businessman Warren Trepp, in exchange for the governor's help in securing lucrative military contracts in Congress. Gibbons was eventually cleared by the FBI of any criminal wrongdoing.

The First Amendment Center added that the Reno Gazette had originally filed a public-records request with the governor's office, requesting the release of six months of email correspondence between Gibbons and ten individuals. When the newspaper asked for the emails, officials in the Gibbons administration told the Gazette to "take their word for it," that the emails were privileged and not allowed for public use.

Lawyers representing the Governor's office contended that the emails were not public records or did not exist. The state lawyers also stated that there were no emails between five of the ten individuals and Gibbons, during the requested time period.

Although Carson City Circuit Judge Todd Russell called for the release of six of the 104 emails requested, (all 104 were reviewed by a court master), Russell also contended that the rest of the emails were "personal, of a non-public 'transitory nature' or privileged," holding that most of the mail was confidential under Nevada law.

• What are some of the legal reasons that give the governor the right to withhold this type of information?
• Currently, all states have laws that require that local government records be open to the public. However, most of these laws were passed in a time before electronic records. Many states have found that there are physical complications when technology is included into these types of laws. What are some complications that prevent technology from being included in government access laws?
• Since most states do not explicitly include email in government access laws, what arguments can you make, for and against, for including email in these laws?
  

Judge Explains His Tech Savvy Ways

Feride Yalav

ABA’s Journal’s Debra Cassens Weiss wrote a blog about Judge Mark Bennett of Sioux City, Iowa who explains why he allowed a reporter to write a live blog during one of his federal criminal trials.

According to the blog, Bennett always prided himself on being up to date with technology. While practicing as a lawyer in a small law firm, he paid a large sum of money to be the first to have desktop computers in the office. Apart from this he was probably the first federal judge to ever have an e-mail address and he continues to read blogs on a daily basis.

Thus, with such a background, when Bennett received an e-mail from a reporter asking permission to use her computer during a tax fraud trial to post live courtroom updates online, he agreed. The reporter, Trish Mehaffey, was advised to sit in the back of the room so that her typing would not disturb the proceedings.

“I thought the public’s right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant,” Bennett said to the ABA Journal. 

Mehaffey used a website called Twitter, a blog site based entirely on short status updates, which enabled readers to comment to the updates and for Mehaffey to answer their questions.

“Times are changing, and it’s all about the digital industry…It’s a way for us to meet the demands of our readers,” Mehaffey said to the ABA Journal. 

• Is Mehaffey’s argument about the demands of the digital industry enough to account for a person’s right to a fair trial?

Judge Allows Blogs Updates in Courtroom

Feride Yalav

The Daily Camera—a Boulder, CO newspaper—reported that Judge Lael Montgomery, a Boulder district judge, ruled that cell phones and computers will not be banned during the trial of Alex Midyette. Midyette is suspected of causing the death of his 11-week-old son Jason.

Lawyers on both sides of the case argued against the ruling saying that information released through blogging and text messaging could alert witnesses of what other witnesses were testifying to inside the courtroom. Such information, according to them, infringes Midyette’s right to a fair trial by altering testimonies due to the loose availability of information.

Montgomery responded to the arguments against her ruling by stating that she would instruct the jury to refrain from reading or viewing any of the information dispersed in media outlets as well as expecting the lawyers to tell their witnesses not to talk to one another or read any of the information posted about the trial, according to the Daily Camera. 

Those in defense of Montgomery’s ruling perceive this move as a reconciliation between the first amendment and a person’s right to a fair trial. There is also a long tradition present in the courts of instructing jurors and witnesses to avoid information given by the media during proceedings which gives more credit to Montgomery’s move toward providing information freely to the public about the trial, according to the Daily Camera. 


• Can the competing interests of the first amendment and a person’s right to a fair trial work together?
• Even if witnesses and jury members are instructed to ignore the media outlet information, how can the judge be sure that they do and that their judgments and testimonies are unbiased?

DA: Freeze Info To The Media In Maxwell Case

by Caroline Trudeau

Oswego County District Attorney Donald Dodd is asking the court to block the lawyer of accused murder Alan Jones from releasing information to the media, according to The Post-Standard. Dodd is arguing that it could taint a potential jury. 

Salvatore Lanza, who's representing Erin Maxwell's step-brother, has provided the media a forensics autopsy summary sheet, copies of potential witness statements, and of the investigation report.

Dodd told The Post-Standard that "any criminal case is not to be tried in the press." On the other hand, Lanza thinks the district attorney is trying to "stop the flow of information." He also thinks that, no matter what, it will be practically impossible to find any potential juror who won't have seen or read any information on this case.

• The conflict in this situation is between the freedom of the press, and the right to a fair trial. Is there any danger to Jones' trial if the information was released in the media?
• Should the media have access to all the information on this trial? under which considerations?
• Is the DA's demand fair, considering that the "Supreme Court has made it clear that jurors need not be 'totally ignorant of the facts and issues involved' in a case to be considered impartial." Hopkins, W. (2009) Communication and the Law, Northport, Ala,: Vision Press, p. 344

Trial to be Broadcast Online

Feride Yalav

A judge in Boston agreed to have a case against a Boston University graduate student accused of illegal music downloading to be broadcast to the Internet via webcam. 

The live online coverage is the first of such a ruling in the federal judiciary because the Judicial Conference—which is responsible for the policies of the federal judiciary—has long banned recording devices in the courtroom, according to the Boston Globe. 

US District Judge Nancy Gertner has agreed to allow the Courtroom View Network—which broadcasts live state trials on the Internet—to show one of the key hearings against the student, Joel Tenenbaum, by a group  representing the US recording industry. Gertner argues that because the case is of such high interest, especially to young people, the usual ban on recording equipment in the courtroom should be set aside, according to the Boston Globe. 

“In many ways, this case is about the so-called Internet generation, the generation that has grown up with computer technology in general and the Internet in particular, as commonplace," Gertner wrote in an order published by the Boston Globe. “It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet.”

Tenenbaum faces potential damages of about $1million for downloading music illegally.

• Does a judge have the authority to allow cameras in the courtroom?
  
• Does live coverage eschew the citizen’s right to a fair trial?
  
• Is the withholding of live coverage of a trial equal to withholding information from the readers of a newspaper? Do the people have a right to see the trial?
  
• How does the coverage of a trial benefit/negatively affect the whole process?

DA's Office Bringing State Fair Protester In Appeal Court

© 2009 The Associated Press (Photo: Michael Okoniewski)

by Caroline Trudeau

Last week, the district attorney's office decided to ask for an appeal in the case against peace activist Ed Kinane, according to the Post-Standard. 

Kinane was arrested last year at the Great New York State Fair for trespassing after "walking around the fairgrounds in a hodded orange jumpsuit with his legs shackled, wrists handcuffed and carrying a sign protesting the U.S. prison camp at Guantanamo Bay."  He has been acquitted by Geddes Town Judge John Kinsella who rejected the charges saying Kinane had a First Amendment right to protest because he was on public property.

However, Assistant District Attorney Shawn Weed is arguing that the state fair is private because people have to pay a ticket to get in. 

• Was Kinane is his right and under which considerations? 
• What distinguishes free speech from fighting words, considering that soldiers were present on the fairgrounds?

Mafioso On Facebook

© 2009 Associated Press (Photo: Labruzzo)

by Caroline Trudeau

This week, The New York Times has revealed that many Facebook pages have been created in honor of Mafioso, including a page named “Fans of Toto Riina, a Misunderstood Man” dedicated to Salvatore Riina, the boss of bosses, arrested in 1993 and now serving multiple life sentences.

Those pages have raised a lot of indignation in Italy, where anti-mafia groups were created on Facebook, asking the network website to remove all pro-mafia pages. Some people have even compared those pages to sites honoring Hitler or Nazism. Senator Gianpiero D’Alia, senator of an anti-mafia commission, also asked Facebook to remove the pages, arguing in a phone interview with The New York Times that “we can’t accept in virtual reality what we don’t accept in real reality.” 

Facebook has already taken down some pages based on the fact that they were violating the site’s terms of use. Those rules ban any content deemed as “harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnical or otherwise objectionable.”

In Italy, an investigation is ongoing to determine if those pages might be a new way to send coded messages between the members of the Mafia, or only unthreatening messages from fans.

• What should be the standard or "test" used by Facebook about those kind of groups?
• Like discussed in the Google's article, where is the limit between free speech and hate speech?
• If authorities demonstrate those pages can be dangerous for the security of Italy, should Facebook take down the pages?

Preps Made If Reporters Arrested at Inauguration

(c) 2008 Associated Press

(Photo by Matt Rourke)

Police arrest protestors at Republican National Convention in September, 2008

by Barbara Fought
Because police arrested reporters covering protests at the Republican National Convention last summer, a journalism organization is offering a hotline and help to any reporters who might be swept up in any large-scale arrests of protestors next week at the inauguration.

The Reporters Committee for Freedom of the Press offers a tip sheet for reporters and will have attorneys standing by to help them.

• What would you do if you got swept up in a big police action during a demonstration and police asked you to give up your camera, disc or notebook? Do you know what the law requires?
• What if you're not arrested, but you have pictures or video that would help identify persons who threw rocks or committed other criminal offenses. Would you give your recording or disc to the police?
• Is Feiner still good law today -- what is the line between lawful protest and endangering the public or inciting a riot?
  

Suit Filed over Marketing of Vitaminwater

by Barbara Fought
A public interest group is coordinating a class action lawsuit against Coca-Cola, saying its claims about Vitaminwater are deceptive. Plus, The Center for Science in the Public Interest charges, all the sugar in the VitaminWater promotes obesity and diabetes. The Coca-Cola Company denies its marketing is deceptive.

In a US News and World Report column, "On Fitness," Kathryn Hobson writes that the label includes terms such as "acai-blueberry-pomegranatel," "power of triple antioxidants to help keep you healthy and fight free radicals," and " it is definitely au naturel." Thus, she says, consumers might assume VitaminWater has vitamins, few calories, contains some superfoods and is natural. Little of that is true, she says.

• Where is the edge between a corporation's free speech rights and the responsibility of the government to protect its people?
• If the antidote for "bad" or disfavored speech is more speech, then is the better course for such public interest groups to speak out about this and counter it with more speech, rather than to use the courts to try to punish Coca-Cola's speech?
  
• The law outlines a 4-part test for deception: 1) likely to mislead, 2) a reasonable consumer, 3) about a material statement, and 4) causes harm. Do you think the plaintiffs can prove this?

Obama Taps Former FCC Attorney for FCC Chair

by Barbara Fought

The president-elect has selected a Harvard classmate and former FCC attorney, Julius Genachowski, as the new FCC Chair, according to the New York Times and Wall Street Journal. His appointment must be approved by the Senate. The Times reports that Genachowski helped draft telecom and technology policies for the Obama campaign.

Genachowski worked as a top advisor to the FCC head during the Clinton administration, and earlier clerked for U.S. Supreme Court Justices Brennan and Souter.

Two key issues that the new FCC will deal with is whether to support "network neutrality," a policy allowing all traffic to flow on the Internet at equal speeds (rather than allow heavy users to pay more to get faster service) and the enforcement of indecency.

• How does politics affect administrative law (one of the 6 types of law)?


• Thousands of people in recent years complained to the FCC about increasing sexual content on over-the-air TV and the FCC responded by enforcing fleeting expletives and raising fines for indecency to $325,000 per instance. Do you think this is good public policy? How does US law on sexual content compare to other countries' laws?