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Panel Discussion: Protecting Confidential Sources - Protecting Confidential Sources

Published by Kathleen Conkey July 21st, 2008 in Uncategorized.    0 Comments

THE DRAMA BOOK SHOP PRESENTS . . .

Protecting Confidential Sources: A Reporter’s and a Lawyer’s Perspective

From Watergate and the Pentagon Papers to Iran-Contra and Abu Ghraib, journalists have used information from confidential sources to reveal illegal conduct by our government. It is vital to our democracy that we protect the people who are the sources for the exposes that are reported in newspapers, magazines and books and broadcast in news programs on television and radio. KATHLEEN M. CONKEY and NORMAN GREEN will discuss the importance of confidential sources to a free press.

Kathleen Conkey, a First Amendment and media lawyer, is Of Counsel to the media law boutique firm of Jacobs deBrauwere, LLP, in New York City. Prior to returning to private practice in 2007, she was Vice President and Senior Counsel in the Intellectual Property and Litigation department of MTV Networks, where she was primarily responsible for pre-broadcast review of the network’s many productions.

Norman Green won the NAACP Image Award for his hidden-camera investigation of racial profiling called “Driving While Black.” In 2006, he executive produced “New Year Baby,” about a family’s flight from the Khmer Rouge, which won the “Movies That Matter” Human Rights Watch Award and is currently airing on Independent Lens, as well as touring festivals around the world. Last year he directed “I’m From Rolling Stone,” a 10-part series for MTV Networks about aspiring journalists and in 2005 and 2006, he produced two documentaries for Viacom’s LGBTQ network, Logo: “The Elephant in the Room” following gay Republicans, and “Latino Beginnings” about gay Latinos.

TUESDAY, JULY 22, 2008
3:00 PM
DRAMA BOOK SHOP
250 WEST 40TH STREET
NEW YORK, NY 10018
(212) 944-0595

SPONSORED BY THE AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION
AND THE MLRC INSTITUTE

ABFFE is the bookseller’s voice in the fight against censorship. The MLRC Institute is a not-for-profit educational organization focused on the media and the First Amendment. This presentation is part of a larger initiative sponsored by the McCormick Tribune Foundation, which has funded the MLRC Institute to create a Speakers Bureau to educate the public on the reporter’s privilege. More information about the Speakers Bureau and the MLRC Institute is available at www.medialaw.org.

Download flyer here.

Contracting by e-mail

Published by Kathleen Conkey May 29th, 2008 in Contract.    0 Comments

A new New York State Appellate Division case drives home the point that our everyday exchanges of emails can constitute binding contracts, even for subject matter normally subject to the Statute of Frauds.

Stevens v. Publicis, S.A. et al., (2008 NY Slip Op 02880) involved a three-year employment contract, under which plaintiff’s duties were described as the “customary duties of a Chief Executive Officer.” Six months into the employment period, trouble arose and the plainitff CEO was given three options—leave the company; stay, but work only on new business not as a CEO; or come up with another bright idea for what to do with his time.

As is increasingly the case in modern business practice, the deposed CEO began an email exchange with his boss over the three options. After some time, the boss set out his understanding of the deal points the two had agreed upon—that the former CEO would stay on, but devote the vast majority of his time to new business development, with only 10% of his time to be spent on management and operations.

“Many business people are still unaware of the sweeping changes in contract creation brought about by electronic signatures.”

The plaintiff sent a reply email the next day saying, “I accept your proposal with total enthusiasm and excitement…” to which his boss replied the same day, “I am thrilled with your decision.”

And oh yes, each of the three emails bore the typed name of the sender at the foot of the message.

Under the Statute of Frauds, contracts to be performed in a period beyond one year must be evidenced by a “signed writing.” In addition, in this case, the plaintiff’s employment agreement itself required that any modifications be signed by all parties.

So, did the email exchange constitute a “signed writing?” Was it a modification “signed by all parties?”

Yes, on both counts according to the First Department.

Many business people are still unaware of the sweeping changes in contract creation that have been wrought by the 2000 Electronic Signatures in Global and National Commerce Act, 15 USCA Sec.70001 et seq. (the “ESign Act”) and recent case law interpreting the meaning of a signature. Essentially, under ESign, a signature or contract “may not be denied legal effect, validity or enforceability solely because it is in electronic form.” Further, even without citing ESign, another recent New York case held that a deal for the sale of real property (always subject to the Statute of Frauds) could be created and signed by the email sender’s “act of typing his name at the bottom of the email [which] manifested his intention to authenticate this transmission for Statute of Frauds purposes. “ Rosenfeld v. Zerneck, 4 Misc. 3d 193, 776 N.Y.S. 2d 458 (Sup. Ct. Kings Co., NY, May 4, 2004).

Stevens v. Publicis gives no clue as to whether the parties actually typed their own names at the bottom of each of their messages or if the names popped up as part of auto-signatures widely used on business emails. Either way, if the terms outlined in the email are specific enough to constitute a contract, the fact that the signature is electronic rather than hand signed will not preclude the formation of a contract. So, be careful what you automatically-e-sign!

Supreme Court Takes “Fleeting Expletives” Case

Published by Kathleen Conkey March 24th, 2008 in FCC and Indecency.    0 Comments

On March 17, the Supreme Court agreed to hear FCC v. Fox Television Stations, 07-582, the FCC’s appeal of the Second Circuit’s decision striking down the FCC’s new policy on fleeting expletives, as articulated in its findings against Fox and NBC for the fleeting expletives used by Bono, Cher and Nicole Richie on 2002 and 2003 award shows. Fox Television Inc. v. Federal Communications Commission, 489 F.3d 444 (2nd Cir. 2007). See also, “Next Stop, Supreme Court, in Controversy over the Indecency of Fleeting Expletives,” OnlinePublishingLaw.com Archive, September 2007.

Watchdogs on both sides of the issue, the Center for Creative Voices in Media, in the corner of the First Amendment, and Parent’s Television Counsel, representing the rights of parents to stamp out indecent television, had vastly different reactions the Supreme Court’s move. Andrew Schwartzman, representing the Center for Creative Voices, had predicted the Supreme Court would never take the case. Perhaps wishful thinking on Schwartzman’s part, given that Tim Winters of Parents Television Council was “delighted” that the Supreme Court would step in. See, “Court Will Examine Profanity Rules,” The Associated Press, March 17, 2008.

So, what does it mean that the Supreme Court has decided to wade into the muddy waters of FCC indecency rules for the first time in 30 years? Given the solid conservative bent of the current Court, and a number of other factors, television broadcasters and First Amendment warriors have much to worry about.

The Second Circuit called the FCC’s new policy that utterances of the F-word and the S-word are always indecent, no matter how fleeting, arbitrary and capricious, finding that unless the Commission could come up with a constitutionally well-grounded explanation for the policy, it must fall. The Second Circuit actually allowed the FCC a chance to explain the new policy. Instead, the FCC went straight to the Supreme Court. There’s some hope the Supreme Court could focus on the narrow issue of whether the Commission can justify its new policy. But if that was the Court’s intent, why take the case, when the FCC could have chosen do that under the Second Circuit ruling?

Television insiders also point out that these particular fleeting expletives might not make the best case for freedom of speech arguments. As one pointed out to me recently, Nicole Ritchie’s joke (”You try getting cow shit out of a Prada bag–it’s not so fucking simple.”) had the feel of being scripted, while Bono’s “fucking brilliant” was uttered on a show that didn’t have a five-second delay system in place. Critics will argue that with the use of readily available technology and some care, both expletives might have been prevented from reaching the viewing audience.

Given these facts, this could be the Justices’ chance to look at the FCC’s basic mandate—to regulate broadcast television in the context of today’s wide open communications field and vote it up or down. Should the Supreme Court uphold the FCC’s regulatory role and keep broadcast television a sea of relative G-rated calm, while the internet and cable run wild and free? Or should the FCC stand down, letting DVR technology, parents and self- regulation rule television, whether it is transmitted via airwaves, cable, or increasingly, the internet? One thing is certain, opening the can of worms that is the government’s right to censor anything inevitably leads to two questions: If the FCC can regulate broadcast, why can’t it regulate cable and internet? Or the flip side, if the FCC can’t regulate cable and internet, why should it be able to regulate broadcast? As each of these formerly separate and distinct delivery systems continues to converge, the reasons for treating them differently become less sustainable every day. If this conservative Supreme Court actually decides to tackle the issue of what is and is not acceptable for child viewers of mass media to hear and see, it won’t just be broadcasters who will need to fear the censor’s scythe.

Kathleen Conkey, Of Counsel, Jacobs deBrauwere, and Deborah Principe Lake, Esq., Vice President, Standards & Practices, MTV Networks, will present a 1.5 hour CLE on Indecency Law and Standards for Television, Internet and Wireless, April 16. The program is called “Viewer Discretion Advised” and is sponsored by the TV & Radio Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association. For more information or to register, click www.nysba.org/viewerdiscretion.

Next Stop, Supreme Court, in Controversy over the Indecency of Fleeting Expletives

Published by Kathleen Conkey September 28th, 2007 in FCC and Indecency.    0 Comments

It’s been a rough few weeks for the indecency police, with the F-word and bare breasts getting thrown around repeatedly in federal court, in administrative agencies and even in the halls of Congress.

The Third Circuit is currently mulling over the consequences of Janet Jackson’s wardrobe malfunction at the 2004 Superbowl, while the Second Circuit recently decided it’s not so bad to say “fuck,” fleetingly, at least, on TV. That decision has sent the FCC to the Supreme Court for review, while the House busied itself sponsoring bills declaring that the F-word is always indecent, no matter how fleeting.

A little background is in order:

Until a few years ago, lawyers for broadcast radio and TV networks could rest pretty well assured that the occasional expletive accidentally uttered on a live program, while never free from viewer complaints, could at least escape heavy scrutiny from the Federal Communications Commission. The FCC on a number of occasions had rejected fines for so- called “fleeting expletives,” such as the instance of a news announcer on a Paso Robles CA station who uttered “Oops, fucked that one up.” Lincoln Dellar, Renewal of License for Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582 (ASD, MMD 1993).

The FCC’s relaxed attitude toward such “accidents” was so much a part of its practice that in a rare policy statement issued by the agency in April 2001, it actually committed it to paper: “Repetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, EB-00-IH-0089 (April 6, 2001).

Thus, when Cher picked up an award at the “Billboard Music Awards” broadcast by Fox in December 2002 with a breezy, “People have been telling me I’m on the way out every year, right? So fuck ‘em,” or when Bono took the stage at the January 2003 “Golden Globe Awards” broadcast by NBC and bellowed, “This is really, really fucking brilliant,” there was relative silence from the FCC.

During the following five months, as the ABC program “NYPD Blue” used the word “bullshit” in six different episodes, the FCC murmured that the word was indecent, but declined to fine the broadcasters. And in December 2003, when Fox broadcast Nicole Ritchie at the “Billboard Awards” explaining, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple,” the FCC calmly explained that such isolated uses of profanity “did not warrant FCC action.”

Television watchdog groups begged to differ. In October 2003, the Parents Television Council, a conservative non-profit dedicated to “restoring decency to the entertainment industry,” asked the FCC to reverse its decision on Bono’s comments. In March 2004, the FCC did just that, declaring, “While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the “F-Word” such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.” In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 4975 (2004).

A coalition of broadcasters filed petitions asking the FCC to reconsider, but while those petitions languished at the FCC for two years, the agency went back and applied the “new law” to all those old cases, finding that the utterances of Cher and Nicole Richie, and the language used on “NYPD Blue” were actionable after all. In the Matter of Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 F.C.C.R. 2664 (2006).

Fox, et al., turned to the Second Circuit for review, resulting in the Court’s June 2007 decision throwing out the FCC’s new fleeting expletive policy. According to the Second Circuit, the FCC had failed to articulate a reasoned basis for its change in policy, calling it “arbitrary and capricious.” Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 (2nd Cir. 2007). Just this week, the Commission announced it would seek Supreme Court review of the decision.

Although the petitioners raised constitutional challenges to the FCC’s definition of indecency, the Second Circuit declined to reach those, remanding the case back to the FCC on procedural grounds. The indecency definition, first articulated in 1975 when the FCC found George Carlin’s “seven dirty words” monologue indecent, is: language or acts that describe or depict sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium at times of the day when there is a reasonable risk that children may be in the audience. In subsequent rulings, the FCC limited its jurisdiction over indecency to the hours of 6 am to 10 pm.

The Supreme Court narrowly upheld the FCCs definition in FCC v. Pacifica Foundation, et al., 438 U.S. 726 (1978), the case that came out of the Carlin monologue. Now, the Court will have a chance to review that decision and the definition of indecency in light of 35 years of massive changes in the television industry, the creeping naughtiness of mainstream communication and entertainment and the changing bedtime hours of children.

The case may prove to be irresistible to the high court. On the one side is the FCC and family groups who understandably wonder why, in this age of live-television delay technology, broadcasters can’t do a better job of keeping bad words and bare breasts off of daytime TV. On the other side are first amendment defenders who have long chafed at FCC’s role in determining television content. They believe the agency’s erratic crackdowns on indecency have chilled free speech and artistic freedom. They point to the very real example of Ken Burns’s documentary, “The War.” The original version contained four profanities (in a 14 ½ hour documentary). Concerned about the possibly of fines from the FCC, local PBS stations balked at airing the program, forcing the producers to issue two versions: one with soldiers talking like soldiers talk, and the other with all the bad words bleeped.

If the Supreme Court does accept cert, the most difficult issue they will have to face is to explain what benefit there is to having a government agency regulate broadcast speech in an age when broadcast is an ever-diminishing part of the mass media landscape. Stay tuned.

Kathleen Conkey and Deborah Principe-Lake, Esq. will be giving a CLE presentation on indecency law and television standards & practices in November, sponsored by the New York State Bar Association. Check this blog in coming weeks for more information on the CLE.

New York legislature mulls descendible right of publicity

Published by Kathleen Conkey June 13th, 2007 in Right of Publicity and New Legislation.    0 Comments

New York’s current law on misappropriation, New York Civil Rights Law §§ 50 and 51 (“50/51”), offers broad protection to writers, publishers, filmmakers and producers against right of publicity claims by celebrities. But now, in a sneak attack on those First Amendment rights, a lobby representing the estates of dead celebrities has convinced the New York legislature to fast track (it could pass in days!) an amendment to 50/51 that would create a descendible right of publicity in New York for the first time.

It’s clear that the celebrity lobby has been motivated to put their efforts into high gear at least in part by the May 2007 case of Shaw Family v. Marilyn Monroe in which the Southern District held that the company that thought it had inherited the rights to license Marilyn Monroe’s image through her will actually did not have those rights because 50/51 at the time of her death (and now) only covered living persons.

Under the proposed amendment, the right of publicity would be extended to dead people going back 70 years and with no cut off point in the future. In addition, violators would be guilty of a misdemeanor.

It may not be so bad to extend 50/51 to the dead, IF there could be some assurance that the law would apply, as intended, only to commercial uses of people’s images. Unfortunately, the case law in New York reveals that litigants constantly challenge the law’s definition of a “commercial use,” trying again and again (to no avail) to extend the law to editorial, newsworthy, and other expressive uses.

There is no question that opening 50/51 to the dead will bring more litigations against the media for their legitimate, non-commercial uses of the likenesses of both celebrities and private individuals.

A possible compromise has been proposed by some media organizations that would specifically exempt “expressive works” from the law. This seems a redundant solution since so many cases have already correctly interpreted the law to apply only to commercial works, such as advertisements and merchandise. Still, given the fact that plaintiffs continue, on a regular basis, to sue media companies for their editorial uses under the law, perhaps an exemption clarifying the real intent of the law could be in order, particularly if the zombie lobby is able to get the law expanded to cover the dead.

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