Texas Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in Support

One of the things that I have been working on since finishing law school is supporting the effort to get Anti-SLAPP legislation passed in Texas.

On Monday the Texas House Committee on Judiciary & Civil Jurisprudence held a hearing on The Citizen Participation Act, a law designed to protect Texans from frivolous lawsuits that target their First Amendment rights. The Citizen Participation Act is a bi-partisan effort at aimed at supporting the rights of all Texans affected by frivolous SLAPP suits.

Every Texan, from a rural housewife, to an Austin taxicab driver, to the Better Business Bureau, is a potential target of a SLAPP suit. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits, called Strategic Lawsuits Against Public Participation or “SLAPP” suits. Twenty-seven states and D.C. have laws similar to the Texas Citizen Participation Act.

The Act is comprised of House Bill 2973, sponsored by Chairman Todd Hunter, R-Corpus Christi, and Senate Bill 1565, co-sponsored by Sen. Rodney Ellis, D-Houston and Sen. Kevin Eltife, R-Tyler.

Author Carla Main told the committee that after she wrote a book about eminent domain, a real estate developer filed half a dozen lawsuits, naming her, her publisher, the person who wrote a blurb on the back of the book and a Texas newspaper that wrote a review of the book as defendants. By including the newspaper, The Galveston County Daily News, in the suit, the developer prevented Main from removing the case to Federal Court “where we could have moved to dismiss the case immediately.”

The bill “creates a mechanism to get rid of meritless lawsuits at the outset of the proceeding and it provides for a means to help alleviate some of the burden on our court system,” said Laura Prather, a First Amendment attorney from Austin.

Shane Fitzgerald, Editor of the Corpus Christi Caller-Times told the committee how just last week the newspaper was threatened with a lawsuit for publishing a photo taken on a public beach during Spring Break. Refineries and other industries have threatened to sue newspapers over the publication of public records and safety reports from state agencies. Fitzgerald stated that the paper is threatened with such lawsuits several times a month. The effect of these suits is increased costs to the newspaper and fewer resources available for reporting.

Also testifying was Janet Ahmad, of San Antonio, and the president of Home Owners for Better Building. Ahmad shared details of how she was sued for racketeering by KB homes because she organized protests of the builder.

Can the Media be Restricted from Broadcasting High School Athletic Events in their entirety: Oral Arguments in the Seventh Circuit.

There were oral arguments on Friday in the United States Court of Appeals for the Seventh Circuit in the WIAA v. Gannett case. You may remember this case originated a couple of years ago when a Wisconsin newspaper webcast several high school football tournaments against the wishes of the tournament organizers, the Wisconsin Interscholastic Athletic Association. The WIAA sued, initially in state court, seeking a declaration that it had broad rights to own the descriptions and depictions of the games. The case was moved to federal court and the complaint was changed to involve fewer claims.

Currently the primary issue involves whether or not the WIAA can contract with a private company to exclusively license the rights to broadcast the entire game (beyond just highlights). WIAA is a “state actor” which means that in effect, they are like the government, and they cannot restrict speech any more than a city or state government could.

A panel of three judges began by peppering the newspaper’s attorney, Robert Dreps, with hypothetical questions about whether or not a school could restrict coverage related to school plays, or operas, which have copyright protections. Dreps explained how previous courts have ruled that there are no copyright protections in athletic competitions. The judges also raised questions about whether or not the case should ever have been moved to federal court. At one point one of the judges compared the broadcast of the games to a broadcast of the oral arguments themselves. In addition, the issue of whether a ruling in favor of the newspapers would affect broadcast agreements in college basketball games was raised.

These issues are not simple, and because of that, the debate is fascinating. If you have time, it lasts less than an hour. At play are cross-section of many issues, including First Amendment, copyright, and internet law. News organizations all over the country should be paying attention to this case and its outcome.

A recording of the oral arguments can be heard here and there is an article about the original case here.

(editor’s note: this is a cross-post with my NPPA Advocacy blog)

Ban on Photography of Animal Cruelty Struck Down

Two important pieces of legal news for photographers today.

U.S. v. Stevens

The Supreme Court today overturned a law that made photographs of animal cruelty illegal. The defendant, Stevens, was the first to be convicted under a federal law that banned the creation, sale, or possession of a depiction of animal cruelty.

Much like child pornography laws, the law was designed to target the market for videos of animal cruelty, because it is often difficult to determine the person who committed the underlying cruel acts. Designed to allow law enforcement to go after “crush” videos, which appeal to a disgusting fetish for the crushing of small animals, the law in this case was applied to a video of dog fights.

The problem with the law, as evidenced by the fact that it was used against a dog fight video (not that I am any fan of that either), was that it was way too broad, and could potentially impact journalists, as well as others exercising their First Amendment rights. There was an exception for any depiction that has “serious journalistic value,” but the term “serious” excluded too much, and there was no exception for entertainment. The NPPA joined the Reporters Committee for Freedom of the Press in filing an amicus brief.

The Supreme Court ruled that the law explicitly punished expression based on the content. Although speech restrictions based on content are allowed in a few exceptions, namely, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, and some specific narrowly tailored areas, this was not one of them, and the court declined to create a new category.

In attempting to bring videos of animal cruelty to the level of child pornography, the government proposed the following test for adding new areas of exception to the First Amendment : “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

Justice Roberts responded, “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.” The court declined to carve out a new exception to the First Amendment for animal cruelty.

Finding that the law was far too much of a limitation on the First Amendment, Roberts said, “We read §48 to create a criminal prohibition of alarming breadth.”

There are some great lines in the opinion, including, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

Animal rights fans, take heart. The court did “not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

You can read the entire opinion, and the dissent, here. There is also a good analysis of the ruling on the SCOTUS blog.

Ken Light v. Current TV

Also important for photographers is the ongoing case of Ken Light, a San Francisco photographer who took Current TV to small claims court for “unfair competition,” after they violated his copyright. Light originally won the case, but Current TV appealed it and the court threw the case out. The reason- it was basically a copyright violation and small claims courts do not have jurisdiction over copyright, only federal court does.

I am aware of some cases where a copyright violation was successfully taken to small claims court as a breach of contract or failure to pay an invoice, but it is always a risk as the federal courts have exclusive jurisdiction over copyright claims.

There is a wonderful story about the case, and the legal history of “in-line linking” on the NPPA website. I recommend it.

UPDATE: The New York Times calls the ruling a “major and muscular First Amendment ruling“

Is your Internship Illegal?

You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

Tea pickin' is probably not eligible for unpaid internships. Photo by Alicia Wagner Calzada

There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

I also found a useful evaluation at this link.

One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

According to the DOL, there are six factors used for determining if someone is an employee or trainee:

1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.

“If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

This does not affect non-profits using volunteers.

You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.

Newark Cameraman assaulted by police is suing.

In general, I don’t do cartwheels when I hear about lawsuits. But this one makes me happy. A TV photographer in New Jersey has filed a lawsuit against a police officer who arrested him while the photographer was filming a peaceful demonstration. Apparently the only thing violent about this demonstration was the officer’s clash with the photographer.

This video shows the original event. Can you say “settle now.”

Dear Police of America: Stop violating the constitutional rights of journalists. We are journalists and we will get really good evidence.

Magazines on Google

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

Reminder: this should not be considered legal advice. See disclaimer.

Magazine Death Pool

A magazine on the list at http://www.magazinedeathpool.com

Well, just to make us newspaper fans feel better, there is a blog called the Magazine Death Pool which is tracking the various magazine closings.

Some of these truly look like they deserved to go, but some are a bit of a surprise.

The blog itself seems to have lasted quite a while

Comparing the First Drafts of History

On any day that follows a moment in history like yesterday’s inauguration of Barack Obama, newspapers are at their best. And it is a great exercise to look at the different front pages to see what they all look like, which photos were used the most, etc.

For several years, the Newseum has made this easy, by showcasing the front pages of nearly every major newspaper in the country.

You can see how the Inauguration coverage looks at http://www.newseum.org/todaysfrontpages/default.asp

They do this every day, and archive the special days so you can also pick a day that has historical significance for you, such as the day Pope Benedict was chosen (or the day the Phillies won the world series).

A quick glance at the gallery view of today’s front pages shows that a photo taken by Chuck Kennedy of the McClatchy-Tribune Photo Service with a remote camera was one of the most popular. It is a great image, and there is an article about how the photo was made on the NPPA website.

State Legislators in CT get involved in trying to save local newspapers

I have quietly joked to myself that newspapers should be getting some of this bailout money. But of course it would not be a great idea to get the government involved in the management of newspapers. Apparently not everyone thinks so.

http://www.courant.com/community/news/nb/hc-papers1126.artnov26,0,5924974.story

In general I think it is healthier for newspapers to find a way to survive than to be under the thumb of government. But it is also critically important to a local community to have local news. It will be interesting to see how this develops and how the journalism industry responds to this.