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Wednesday, May 27, 2009

President Obama Announces Supreme Court Nominee

The Wall Street Journal - WASHINGTON -- Judge Sonia Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees.

Among the cases she has heard during her 15 years on the federal bench -- and one that will be examined closely through her confirmation process -- is one now pending before the Supreme Court.

U.S. Appeals Court Judge Sonia Sotomayor was announced Tuesday as President Obama's pick to replace retiring Supreme Court Justice David H. Souter on the Supreme Court. See other notable Supreme Court firsts.

Judge Sotomayor was on a three-judge panel at the Second U.S. Circuit Court of Appeals that upheld a decision by the city of New Haven, Conn., to invalidate a firefighter promotional exam after no black applicants scored high enough to qualify. Those who aced the exam said it was unfair to penalize them because others didn't do as well.

"We are not unsympathetic to the plaintiffs' expression of frustration," the panel said in an unsigned opinion, referring to white firefighters who accused the city of reverse discrimination. "But it simply does not follow" that they have a claim under the 1964 Civil Rights Act.

In recent Supreme Court arguments, liberals expressed sympathy for the Second Circuit's ruling, while conservatives questioned it. A ruling is expected soon.

Judge Sotomayor would be succeeding Justice David Souter, generally a liberal vote on social issues, and her selection isn't likely to change the outcome on cases where the Supreme Court typically splits 5-4.

The question is whether Judge Sotomayor would, like Justice Souter, be a solid judicial craftsman, or emerge as a leader who can mold majorities. Liberals have long sought such a jurist since the departures of William Brennan and Thurgood Marshall nearly two decades ago.

Monday, May 25, 2009

New Yorker Under Siege - Sued for $10 million

The story has everything: murder, tribal warfare, a famous writer, and a lawsuit involving him and one of the world’s most prestigious magazines. So why are so few media watchers paying attention to the suit recently brought against Pulitzer winner Jared Diamond and the New Yorker? At the very least, it raises questions about how this particular article was cleared by the magazine’s venerable fact-checking department.

First, some background. The $10-million defamation suit was filed in April on behalf of two men in New Guinea, Henep Isum Mandingo and Hup Daniel Wemp. They were the focus of an April 2008 New Yorker article entitled “Annals of Anthropology: Vengeance Is Ours: What can tribal societies tell us about our need to get even?” It was written by UCLA geography professor Jared Diamond, who won the Pulitzer for his book, Guns, Germs, and Steel. The story was removed from the free section of the magazine’s Web site months before the suit was filed, but here’s a relevant passage:

In 1992, when Daniel Wemp was about twenty-two years old, his beloved paternal uncle Soll was killed in a battle against the neighboring Ombal clan… And Soll had been very good to Daniel, who recalled him as a tall and handsome man, destined to become a leader. Soll’s death demanded vengeance… As it turned out, it took three years, twenty-nine more killings, and the sacrifice of three hundred pigs before Daniel succeeded in discharging this responsibility.

Aside from its claims of mass murder, the story also reported that Mandingo, the main target of Wemp’s vengeance, was confined to a wheelchair as a result of an attack. The story was based on Diamond’s detailed notes of a conversation between him and Wemp. The two met years ago in New Guinea when Wemp worked as Diamond’s driver during a bird research trip.

When the lawsuit was filed late last month, the Associated Press and New York Post picked up the story, but since then it has generated little interest among media reporters. However, one press watchdog dedicated time and resources to untangle the allegations.

The Art Science Research Laboratory, which is run by Rhonda Roland Shearer, operates It published a lengthy and detailed examination of the New Yorker story around the same time the lawsuit was filed. (Disclosure: Shearer’s site interviewed me when my book, Regret The Error, came out in 2007 and she hosted a reception for me at her offices. We have kept in touch since then but have never worked together.)

But let’s set aside the lawsuit for a moment and rewind to when the magazine was checking the story. It had what was basically a single-source story, and it wasn’t able to check the article with the source, Daniel Wemp. The story itself also contained some very serious criminal allegations against the source in question. The dilemma is obvious: should you publish without getting some level of confirmation from the source or another party with specific knowledge of the events in question?

Thursday, May 14, 2009

TV reporter ordered to hand over tapes of war protests

A reporter for a cable-access show in Chicago was ordered by a federal magistrate judge last week to hand over every video recording he made documenting anti-war protests from 2003 to 2005.

The reporter, Martin Conlisk, was subpoenaed by the city of Chicago during the course of its defense of a civil rights lawsuit filed by a local man who was arrested during a March 2005 anti-war protest. The protester, Andy Thayer, sued the city in 2007, alleging that his constitutional rights were violated by the arrest and claiming that the city’s policy of sending cops in riot gear to protests was a means to suppress speech.

Conlisk had been on the street corner filming the day Thayer was arrested and had testified in the man's disorderly conduct criminal trial.

But in the lawsuit, the city’s subpoena requested much more than the video from the day of Thayer’s arrest. It ordered Conlisk to hand over all tapes and material that documented the planning and implementation of all anti-war protests in the city from March 2003 to the present, including everything on his computer hard drive. It also ordered him to testify about those videos.

In the April 30 ruling, the magistrate judge, Arlander Keys, refused to apply a reporter’s privilege, holding that courts in the Seventh Circuit have “rejected the notion of a federal reporter’s privilege.”

Court reinstates Yahoo lawsuit over fake profiles

LOS ANGELES (Reuters) - A U.S. appeals court on Friday reinstated a breach of contract claim against Yahoo Inc by an Oregon woman who said the company failed to remove nude photos and fake profiles posted by her estranged boyfriend after promising to do so.

The Ninth U.S. Circuit Court of Appeals ruled on Thursday that Cynthia Barnes could sue Yahoo for agreeing, then failing to stop the "dangerous, cruel, and highly indecent" use of its site by the ex-boyfriend.

"Contract liability here would come not from Yahoo's publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something, which happens to be removal of material from publication," the opinion said.

The appeals court remanded the case to the district court for further action on the state law claim for breach of contract but did not rule on whether the claim was viable.

The appellate decision also affirmed the lower court's dismissal of a claim for negligent undertaking.

Yahoo said in a statement that it was pleased that part of the dismissal stood, and "evaluating the opinion on the remaining claim and looking forward to swift resolution in the district court."

Barnes' attorney Thomas Rask of Kell, Alterman & Runstein LLP in Portland, Oregon, said his client sued only after repeatedly asking Yahoo to remove the profiles, then relying on a promise by a Yahoo employee that they would be taken down.

"What an (Internet service provider) has to understand is this is not the wild wild West," Rask said. "There has to be some rational logic to it. Don't promise to do something and then not do it."


The ruling could have a "big implications" for Internet companies that enjoy immunity from lawsuits involving user-posted content under the Communications Decency Act (CDA), said attorney Jeff Neuburger, co-chair of the Technology, Media and Communications practice group at Proskauer Rose LLP.

Google Book-Search Pact Draws Antitrust Scrutiny

The Department of Justice is looking into whether Google Inc.'s proposed book-search settlement with authors and publishers violates antitrust laws, according to people familiar with the matter.

In recent weeks, the DOJ has contacted Google and some of its critics to ask about the settlement, which is designed to give Google the right to include millions of additional works in its searchable archive of digitized books, known as the Google Book Search service, these people say.

A spokeswoman for the Department of Justice declined to comment. Representatives for the Association of American Publishers and the Authors Guild did not return requests for comment.

Whether the Justice Department would seek to block the settlement, which is pending court approval, remains unclear. The investigation is Google's second tangle with the Justice Department in the past year. Last year, Google was forced to abandon an advertising agreement with Yahoo Inc., after regulators said it would sue to stop the deal on the grounds that it would give Google too much control over the online advertising market.

The settlement, unveiled in October, seeks to resolve a class-action lawsuit that stems from cases filed by the Authors Guild and the Association of American Publishers in 2005 to stop Google from scanning books and making them searchable online. The lawsuit, filed in the U.S. District Court for the Southern District of New York, alleged that Google's book search project violated copyrights.

Monday, May 11, 2009

TV Audiences Falling Faster Than Newspapers

Newspapers sell fewer copies than they used to, and network television news draws fewer viewers. But as that trend unfolded, newspapers and television gave starkly different accounts, a University of Pennsylvania study released last week shows.

Papers found a lot to report about declining news audiences, while national television news shows had little to say. And though the problems of print and broadcast have been similar in scope, both media dwelled primarily on what was happening to newspapers.

“The television networks have basically not been very interested in talking about television’s problems,” said Michael X. Delli Carpini, dean of the university’s Annenberg School of Communication and one of the study’s authors. The authors combed through reports from 2000 through early 2009 from 26 major newspapers, the evening news broadcasts of ABC, CBS, NBC and PBS, and the prime-time lineups of CNN, CNBC, Fox News and MSNBC.

In the newspapers, they found 900 articles about the drop in newspaper circulation and 95 about the shrinking audience for the broadcast networks’ newscasts. The TV news shows had 38 reports on falling newspaper readership and only 6 about the falling audience for national news broadcasts.

(The broadcast networks’ evening news shows have lost audience more rapidly than printed newspapers, to about 23 million people each night now from 32 million in 2000. At the same time, the audience for prime-time cable news has roughly tripled, to about four million. Newspaper sales have dropped to about 47 million a day from 56 million in 2000. And all media have new — but not very lucrative — audiences online.)

Of the 26 newspapers studied, three — The New York Times, The Wall Street Journal and The Washington Post — accounted for almost half the articles about either newspaper circulation or broadcast national news ratings. On television, about half the reports came from two cable networks — CNBC and Fox.

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