Posted On: July 31, 2008

First Amendment and Copyright Fair Use Give (Michael) Savage Treatment to Lawsuit

Does the First Amendment protect someone’s use of another’s copyright or trademark to make fun of them?

That question has been at the forefront of several cases involving so-called “parody” of intellectual property. Many cases have found parody of copyrighted works or trademarks protected under the “fair use” doctrine or the First Amendment or both. One of the best-known examples was a parody of the song “Pretty Woman” which the U.S. Supreme Court held was protected. Another case held that a 29-second song “When Sonny Sniffs Glue” which parodied the original “When Sunny Gets Blue” was a fair use.

A U. S. District Judge in San Francisco, Susan Illston, recently applied “fair use” principles in a lawsuit brought by radio talk show host Michael Savage. Savage went on a tirade (“Take your religion and shove it”) about Muslims and the Council on American-Islamic Relations. The Council posted his virulent remarks on its website, and Savage sued it for copyright infringement. Judge Illston gave the lawsuit savage treatment, dismissing it based upon the “fair use” doctrine and the “Oh Pretty Woman” case. See Savage v. Council on American Relations et al. She noted that the Copyright Act “expressly permits fair use for the purposes of criticism and commentary.” The same First Amendment which allows Michael Savage to rant about Muslims enables them to criticize him.

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Posted On: July 31, 2008

The First Amendment and Judicial Independence: an Uneasy Coexistence

The First Amendment and judicial independence – both prized pieces of American democracy – have an uneasy coexistence these days.

Many states elect their trial judges and the justices of their highest courts, and in some states, like West Virginia, big-money corporate interests have waged expensive campaigns to elect or defeat Supreme Court justices. John Grisham’s “The Appeal” offers a gripping tale about a fictional – but plausible – attempt to “buy” a seat on the Mississippi Supreme Court and swing the outcome of a pending case. In California this year, opponents of the California Supreme Court’s gay marriage ruling are likely to accuse the court of “judicial activism” in a multi-million dollar attempt to reverse its ruling.

The First Amendment protects these attacks on the courts, and it protects judges’ attempts to defend themselves. That much is clear from a U.S. Supreme Court case called Republican Party of Minnesota v. White. But there’s something unseemly, and deeply disturbing, about politicizing the courts. Judges and appellate court justices are supposed to be like umpires, calling balls and strikes, not playing for one team or the other. If they are dragged into political fights and have to raise and spend millions of dollars from the very people who have cases before them to defend themselves, the quality of justice suffers, the impartiality of the courts is imperiled, and public confidence in the courts takes a hit.

Posted On: July 31, 2008

Media's Coverage of Election Won't Make Everyone Happy

The media will inevitably come under intense criticism this year for its coverage of the Presidential election. Supporters of John McCain have criticized the media for favoring Barack Obama. Hillary Clinton’s backers considered some in the media sexist, and Obama backers have complained of what they consider racist comments by members of the media.

‘Twas ever thus. The media – like politicians – can make some of the people happy all of the time, and all of the people happy some of the time, but can’t – and shouldn’t try to – make all of the people happy all of the time.

This election’s “media” coverage is complicated by the full emergence of the Internet and the blogershere and the cacophonous coverage produced by such a multitude of voices. Ironically, though, the Internet’s allowance of a greater number of voices may bring us back closer to where we were at the birth of our nation, when a panoply of pamphleteers peddled their wares and when one journalist – who was said to have been paid by Thomas Jefferson – called George Washington “a traitor, a robber and a perjuror,” and another accused President John Adams of “selfish avarice.”

Next time your candidate gets pilloried, or his or her words are taken out of context, think of those unfair and scurrilous attacks on George Washington more than 200 years ago – and think of how lucky we are to have the First Amendment’s protection for free speech and a free press – whatever “the press” is these days – instead of the enforced censorship that reigns in places like China.

Posted On: July 14, 2008

A First Amendment shield for bloggers?

Congress is debating whether there should be a federal “shield law” for reporters, modeled after state reporter’s privilege laws which exist in 35 states and which help protect vital First Amendment rights.. Of the 15 states which don’t have statutory protections for reporters, all but one have some form of protection for reporters against compelled disclosure of their sources.

A key issue is whether such reporter’s privilege laws should apply only to reporters from traditional media such as newspapers and television stations, or whether online journalists and bloggers should have protection. One federal case warned against extending a federal common law privilege to “bloggers in pajamas.”

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A California Court of Appeal, in the well-reasoned decision of O'Grady v. Superior Court, http://www.courtinfo.ca.gov/opinions/archive/H028579M.PDF, held that on-line journalists are “reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”

This reasoning is persuasive. If sources need a promise of confidentiality to blow the whistle on corporate and government wrongdoing – and they do – and if journalists need to offer confidentiality on occasion, it shouldn’t matter whether the journalist’s story is delivered in a truck or over the Internet. Either way, the reporter’s privilege is protecting important speech and enabling vital stories to be told. Congress should pass a shield law, and it should extend to on-line journalists.

Posted On: July 14, 2008

San Bernardino County Assessor Bill Postmus Fights Public Records Disclosure

Postmus gives public the mushroom treatment


Some government officials view members of the public as mushrooms, to be kept in the dark and covered with manure.

San Bernardino County Assessor Bill Postmus is surely one of those officials. Postmus waged a pitched battle, at county expense, last year to resist turning over calendars and e-mails from his time on the San Bernardino County Board of Supervisors in 2006. Now, in a stunning development, his aide Adam Aleman has been criminally charged with destruction of public records. The District Attorney’s office says Aleman deep-sixed the hard-drive of a laptop computer which belonged to his boss Postmus when Postmus was on the Board of Supervisors. Postmus has not been charged with a crime.

Aleman’s alleged criminality isn’t the only questionable conduct to take place on Postmus’ watch. The same day Aleman was arrested, June 30, the county Grand Jury issued a scathing report saying that the Assessor’s office had been widely used for political purposes, with staffers engaging in Republican party activities at county expense.

The Grand Jury found that when Postmus took office in January 2007 he hired an “executive support staff” which “lacked experience or training directly associated with assessor work.” Most of the “executive support staff” had been with Postmus when he was on the Board of Supervisors and/or was Republican Central Committee Chairman. While dedicated career employees who’d been on the job before Postmus was elected did the day-to-day work, Postmus’ people did “public image” work and “engaged in political activities for various national, state, and local political candidates during normal working hours.” In other words, Bill Postmus harnessed your tax dollars to the service of his own large political ambitions, whether you liked it or not. That’s called taxation without representation, or maybe even Tammany Hall corruption.

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Posted On: July 9, 2008

Public Records Act: government officials should not destroy public records

Playing Hide and Seek With Public Records

It’s not unusual for newspapers, or lawyers in Public Records Act or Freedom of Information Act cases, to accuse the government of trying to “hide” things. Now a San Bernardino County case has revealed what may be a criminal attempt at hiding public records, just in time for a Fourth of July reminder about the importance of access to information about government.

San Bernardino County officials June 30 arrested Adam Aleman, a 25-year-old assistant assessor in that county. Aleman was charged with six felony counts – among them a count for destruction of public records. That count alleges that he destroyed the hard drive of a laptop computer that had been issued by the county to Assessor Bill Postmus during Postmus’ tenure on the Board of Supervisors.

The link to Postmus is significant. He was the central figure in a Public Records Act lawsuit brought by the California First Amendment Coalition and the San Bernardino Sun claiming that Postmus should have disclosed calendars and e-mails relating to a two-week period in the summer of 2006 when fires raged in San Bernardino County and Postmus, then the chairman of the Board of Supervisors, was mysteriously absent.

A San Bernardino County judge ordered a few calendar entries and e-mails released but upheld the county’s decision to withhold many calendar entries based upon the county’s claim of “deliberative process.” But during the case, the judge ordered the county to prepare a “privilege log,” an inventory of withheld records and the county’s reasons for withholding them. The log revealed a gap in the summer of 2006 during which Postmus seemed to have been cut off from e-mail. His spokesmen offered conflicting accounts about where Postmus was and whether he had email access.

The DA’s office has not linked Aleman’s indictment to the mysterious events surrounding Postmus (and Postmus himself has not been charged with any crime). However, the hard drive may have been destroyed in June or July of 2006 – the same summer Postmus was absent during the raging fires in his home county.

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