Deadline Hollywood
Commentary
August 31, 2010
By Nikki Finke

The California Assembly today passed AB 2479 by a margin of 43-13 to impose penalties of up to $5,000, with the possibility of jail time, for paparazzi who drive recklessly and endanger celebrities and the general public.

The legislation passed on the anniversary of the 1997 death of Princess Diana, who was killed in a Paris car crash as she and her boyfriend and their security were fleeing the stalkarazzi.

Depending on your POV, this law which now goes to Governor Arnold Schwarzenegger to sign is either badly needed legislation to control a public menace or an unnecessary restriction on press freedom.

I’ve said it before, and I’ll say it again: I believe the only way to stop outrageous behavior by the photogs is to hold responsible the editors of those magazines and websites willing to pay outrageous prices for celebrity pictures. None of this would be happening if the photos weren’t worth big bucks in newsstand sales or online traffic.

Of course, the public is at fault for wanting to see the snaps or videos in the first place. But I say that if a stalkarazzi is getting too rough and tumble, then the mag or web editor who assigns or publishes those photos and footage is as much morally and legally at fault as the picture taker.

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Online Media Daily
September 1, 2010
By Wendy Davis

A federal court has dismissed news anchor Toni Miles’ claim that her former employer, Raycom Media’s WLOX-TV, committed “cyber libel” by allowing readers to post unfiltered comments about her. U.S. District Court Judge Louis Guirola, Jr. in the Southern District of Mississippi ruled that the federal Communications Decency Act immunized the news station from liability for readers’ posts.

“Persons who claim that they were harmed by a website’s publication of user-generated content may sue the third-party user who generated that content, but they may not sue the interactive computer service that enabled the third-party user to publish the content online,” Guirola wrote. “Thus, an interactive computer service is entitled to immunity as long as it did not create or author the particular information at issue.”

The defamation claims stem from an article WLOX ran on its Web site in October of 2008 stating that Miles was arrested for cocaine possession. The arrest occurred at a home Miles was visiting; a grand jury reportedly voted not to indict the news anchor.

Miles alleged that the news station defamed her both by posting an article about her arrest and by hosting readers’ comments. Her court papers don’t specify which comments by users she believed were defamatory.

In dismissing the libel claim, Guirola noted that Miles did not allege that the article was false — which is necessary to prove defamation. “The article did not state that she had actually committed any crime, but correctly noted that she had been arrested and charged with possessing drugs,” he wrote. Santa Clara University law professor Eric Goldman, who first publicized the case on his blog, calls the lawsuit “a super-easy case” in light of other decisions saying that Web publishers are immune from defamation liability for users’ comments.

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Secrecy News
Commentary
September 2, 2010
By Steven Aftergood

The question of whether or not to disclose the number of nuclear weapons in the U.S. arsenal “goes to the very heart of our democratic system of government,” said Senator Brien McMahon (D-CT) in a newly rediscovered 1949 speech (pdf) on secrecy in nuclear weapons policy.

“Do we possess five bombs, or fifty bombs, or five hundred bombs? Are we strong or weak in the field of atomic weapons? Only the Atomic Energy Commissioners, high-ranking military men, and a few others know the correct answer to these vital questions,” Sen. McMahon said.

Sen. McMahon (1903-1952) was the principal author of the Atomic Energy Act of 1946, which established the Atomic Energy Commission and placed control of nuclear weapons in civilian hands.

“Though I have been a member of the Joint Congressional Committee on Atomic Energy since its inception, and though I have just been elected its chairman, I do not myself know how many bombs we possess or how rapidly we are making new ones,” he said.

“It is interesting to note that concealment of atomic production rates is secrecy of a scope which has never been attempted before during peacetime in the United States,” Sen. McMahon said. He indicated that he had not reached a definite conclusion as to whether the size of the stockpile size should be made public.

The text of Senator McMahon’s January 31, 1949 address to the Economic Club of Detroit was entered into his rather voluminous FBI file, which was obtained by researcher Michael Ravnitzky.

Illustrating the often glacial pace of secrecy reform, it was not until May 3 of this year that the current size of the nuclear arsenal was officially revealed for the first time.

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Citizen Media Law Center
Press Release
August 30, 2010
By Kimberley Isbell

As anyone who has been following the debate regarding the “future of journalism” knows, there have been a lot of ink (and bytes) spilled arguing over the role news aggregators are playing in the “decline” of traditional journalistic models. Rupert Murdoch has labeled the practice of news aggregation by entities like Google News “theft,” and a professor from the Wharton Business School recently called on lawmakers to amend the copyright laws to prevent aggregators from posting any portion of news stories for a full 24 hours after their initial publication.

Even the FTC has gotten in on the act, listing “Additional Intellectual Property Rights to Support Claims against News Aggregators” as the first policy proposal in the Staff Discussion Draft recently released in connection with its workshop series on “How Will Journalism Survive the Internet Age?” (To which Google had a thoughtful reply.)

But for all of the heated rhetoric blaming news aggregators for the decline of journalism, the fall of civilization and male pattern baldness, many are still left asking the question: are news aggregators violating current law?

Today, CMLP releases a white paper entitled “The Rise of the News Aggregator: Legal Implications and Best Practices” that attempts to answer that question by examining the hot news misappropriation and copyright infringement claims that are often asserted against aggregators, and to provide news aggregators with some “best practices” for making use of third-party content.

A hearty thanks goes out to the people that helped make this paper possible: Justin Silverman, for invaluable research assistance; David Ardia and Sam Bayard, for reading and critiquing numerous drafts; and the speakers from the “Saving Journalism from Itself? Hot News, Copyright Fair Use and News Aggregation” panel at our spring conference, for helping to frame and crystalize many of the issues.

You can download the white paper here.

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The Detroit News
September 2, 2010
By Candice Williams

MOUNT CLEMONS, Mich. — A woman who was removed from a jury for announcing a guilty verdict on Facebook will have to pay a $250 fine and write a five-page essay on the constitutional right to a fair trial.

Hadley Jons, 20, of Warren told Macomb County Circuit Court Judge Diane Druzinski this morning that she was “very sorry.”

Jons, a premed student at Macomb Community College, was a juror in a resisting-arrest case last month. On a day off from the trial, Aug. 11, Jons wrote on Facebook that it was “gonna be fun to tell the defendant they’re GUILTY.”

The defense attorney’s son found the post while researching jurors. Druzinski removed Jons from the jury the next day.

Druzinski told Jons that she violated her oath to be fair and impartial. The fine and essay are due Oct. 1.

“I believe it’s an appropriate resolution under the circumstances,” said Jons’ attorney, John Giancotti. Since the matter was a civil one, he said Jons will have no record “other than the spotlight she’s been under.”

Associated Press contributed.

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The New York Times
August 31, 2010
By Jeremy W. Peters

Jeff Greene, a Florida real estate developer who lost one of the year’s most bitter and closely watched primary elections, is preparing to sue The St. Petersburg Times and The Miami Herald for libel, claiming that articles they published cost him his bid for the United States Senate.

Mr. Greene lost the Democratic primary last week to Kendrick B. Meek, who will face Gov. Charlie Crist, an independent, and Marco Rubio, a Republican, in November.

A libel suit is a rare step for a political figure. While many candidates complain about unfair news coverage, few go as far as making their complaints a legal case. But Mr. Greene, who has deep pockets and apparently the wherewithal to pursue the case all the way to trial, has proved he is no ordinary politician.

Dogged by rumors about wild parties aboard his 145-foot yacht and about fraudulent real estate deals, Mr. Greene will seek at least $500 million in damages in part, he said, to teach the news media a lesson. “I want to send a message to every newspaper in the country: Do your homework,” he said Tuesday in a telephone interview. “I deserve to have the record corrected, and they deserve to be punished.”

He has hired L. Lin Wood, a prominent libel lawyer who has won settlements for other public figures who claimed they were defamed by the news media, including Richard A. Jewell, the security guard cleared as a suspect in the 1996 Olympics bombing in Atlanta. Mr. Wood said he expected to file a formal complaint in state court in Miami-Dade County on Wednesday.

At issue are two news articles written by St. Petersburg Times reporters that were printed in both The Times and The Herald, and a Times editorial urging a federal investigation into Mr. Greene’s business activities.

Neil Brown, the editor of The Times, defended the paper’s articles. “The Times’ coverage of Mr. Greene and his business transactions has been thorough and fair, and the reporting is well-documented in public records,” he wrote in an e-mail.

Anders Gyllenhaal, executive editor of The Herald, declined to comment.

In one article, The Times reported that Mr. Greene was party to a real estate deal that left 300 California families homeless and a partner of his in jail. The other left the impression that the boxer Mike Tyson, who was the best man at Mr. Greene’s wedding, used drugs while on Mr. Greene’s yacht. The paper later ran a front-page correction clarifying that Mr. Tyson said he had not used drugs on the yacht.

Even with an admission of error, a libel case can be hard to prove. Sandra S. Baron, executive director of the Media Law Resource Center, said, “Jeff Greene is going to have to prove that the articles were published with actual malice.”

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Turlock Journal
August 31, 2010
By Maegan Martens

After eight months of chaos in the small Valley town of Hughson, a sense of victory was evident at Monday’s City Council meeting as three new council members were sworn into office.

“I am ready to get down to city business,” said Jill Silva, new council member who took the place of resigned council member Ben Manley.

Silva joined new council members George Carr, who replaced Thom Crowder, and Jeramy Young, who replaced Doug Humphreys, as they all asked to take their oaths of office together making Monday their very first council meeting.

Cheers, standing ovations and shouts of “hear, hear” were voiced by the over 30 community members as they celebrated the replacements of three council members who were recalled on Aug. 24 after the Stanislaus County Civil Grand Jury found them in violation of the Brown Act, the Hughson Municipal Code and the Fair Political Practices Regulations and Code in December 2009.

A moment was given to reflect on the circumstances which led to the need of a recall election.

“It was a sad day for the City of Hughson,” said Mayor Ramon Bawanan. “We had to remove three council members for breaking the law.”

Apart from the community’s embarrassment from the actions of the three council members and a $23,000 cost to the city to recall Manley, Humphreys and Crowder, Bawanan experienced one of his proudest moments.

“There is no prouder mayor in the county, and for that matter, the United States, than I am today,” he said.

Despite the long and difficult hurdle the City of Hughson has overcome with the recall election, two new hurdles still need to be jumped — the budget and the hiring of a new city manager.

The council will hold a budget study workshop at 6 p.m. on Sept. 7 to go over the 2010-2011 budget that was supposed to be passed in June.

Also, city manager final interviews are expected to be done either Sept. 6 or Sept. 20, depending on the availability of the last two candidates and the council.

As the small town of Hughson slowly starts to gain momentum on their new beginning, the chaos that ran the city for months at a time did have one positive outcome — a renewed sense of community involvement.

“This ignites a whole Renaissance of community involvement,” said Hughson Council member Matt Beekman, trying to hold back tears of joy. “There was a time when the city wanted a pool and people would grab a shovel and dig a hole. We need to get back to that.”

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Contra Costa Times
August 31, 2010
By Monica Rodriguez

A San Dimas resident contends the Pomona Unified School District board violated the state’s open-meeting law during closed-door sessions that led to placing a parcel tax on the November ballot.

Gil Aguirre told school board members in a letter dated Aug. 16 that they violated the Brown Act when they discussed and made decisions to pursue a parcel tax in closed session on several occasions between May and August.

But Pomona Unified’s attorney, Kasey Haws, said the board has not acted inappropriately.

Discussions along with “any and all action was taken in full open session,” Haws said.

Aguirre is calling for the board to take formal action and publicly announce it committed errors by going behind closed doors on six occasions in relation to the parcel tax.

He is also calling for the disclosure of discussions and actions taken along with the release to the public of meeting minutes, records and agreements related to the hiring of consultants involved in polling for the parcel tax.

“They seem to be under the false impression that they can go into closed session to discuss politically sensitive or embarrassing matters, and that’s just not the case,” Aguirre said. “Those are the very things they should be conducting in public.”

Discussion of a matter such as a parcel tax needs to take place in public in order to give residents the opportunity to provide their opinions and contribute to the public debate on such a matter, Aguirre said.

Aguirre, who describes himself as “a little bit of an open-government advocate,” said he and his family own property in various places in the region, including Pomona, and that he tries to remain abreast of what is taking place in the area.

Aguirre said he was involved in a lawsuit against Glendora about two years ago over records not being made available to the public. The suit led to changes in the handling and improvement of access to public documents, he said.

In this case, Aguirre said he would prefer to have the school board take the necessary corrective actions but is prepared to take the matter to court if it fails to do so.

“I’m keeping my fingers crossed that they do the right thing,” he said.

The matters Aguirre is highlighting are valid points, said Terry Francke, general counsel for Californians Aware.

CalAware, as the nonprofit is also known, works to support and defend open government in order for California residents to hold government and other institutions accountable.

Francke said the state’s open-meeting law doesn’t allow government bodies such as school boards to meet behind closed doors for discussions “with an attorney or anyone else on elections.”

If the school board fails to take corrective action Aguirre would have grounds for a lawsuit, he said.

Haws said a response was being e-mailed to Aguirre.

Aguirre’s letter will be on the school board’s agenda tonight. The open portion of the meeting begins at 7:30 p.m. in the district’s offices, 800 S. Garey Ave.

“We’ll go over his request point by point by point,” Haws said.

A major concern in Aguirre’s letter is “that somehow (board members) were strategizing or colluding how they were going to vote” on the parcel tax, he said.

Those in attendance at the Aug. 5 meeting saw “it was crystal clear the board was completely unscripted” in how votes were cast, Haws said. “Any and all action was taken in full open session.”

He added the information presented in open session prior to the vote was extensive.

Action related to using the services of consultants and lawyers connected to the parcel tax measure were carried out in open session as part of the Aug. 5 meeting actions, he said.

The school board is aware of the critical nature of complying with the Brown Act, Haws said, adding he is prepared to stop board members from taking any action that would be out of line with the act.

“I understand the public relies on us to be transparent,” Haws said.

As a result of Aguirre’s letter, changes will be made to school board agendas.

“I think there are going to be some improvements,” he said.

“The way we do certain agenda postings could be worded better,” Haws said. “I think we can improve the actual description of agenda items.”

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By The Associated Press
CONCORD, N.H. —U.S. District Chief Judge Steven McAuliffe ruled against Albert Kuperman, saying prison officials’ concerns about hygiene and security trump inmates’ free-expression and religious rights.

McAuliffe acknowledged that Kuperman’s religion “requires men to refrain from trimming their beards.” But, he ruled, prison officials have valid reasons for requiring that beards be kept to a maximum length of a quarter-inch.

“That length allows correctional officers to identify inmates easily, prevents inmates from hiding contraband and weapons in beards and minimizes the risk that an escaped inmate could quickly change his appearance after an escape,” McAuliffe wrote in the Aug. 27 ruling, Kuperman v. Wrenn.

“A grooming policy that allowed full beards, on the other hand, would strain prison resources and/or relations between inmates and staff by requiring the issuance of multiple identification cards and by requiring more frequent inmate searches,” the judge wrote.

Kuperman also argued the prison policy violated his equal-protection rights because inmates in high-security housing often have beards exceeding the quarter-inch length. The court dismissed this claim, noting that the high-security inmates are not allowed to have razors and are shaved by prison barbers every week or two, as prison resources permit.

Kuperman, 25, lost a court challenge last year over kosher diets. He claimed his constitutional rights were violated when he was removed from a kosher diet plan after twice being caught eating non-kosher foods. Corrections spokesman Jeff Lyons said prison policy has since been changed to permit an inmate three lapses before being threatened with removal from diets related to religion.

Kuperman is serving 3½ to 7 years behind bars for sexually molesting a minor in 2002. He is eligible for parole in January.

Copyright 2010 The Associated Press

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The Associated Press

September 1, 2010

By Matthew Perrone 

WASHINGTON —The Justice Department and the company said Wednesday in a statement it will plead guilty to one misdemeanor charge of “misbranding,” in which the company’s marketing led physicians to use Botox for unapproved uses. Those included the treatment of headache, pain, spasticity and cerebral palsy in children.

Companies are prohibited from promoting drugs for unapproved, or “off-label,” uses.

Allergan said it will pay $375 million in connection with the plea, which includes the forfeiture of $25 million in assets. Additionally, the company will pay $225 million in civil fines — $210 million to the federal governments and the rest to several states — related to the investigation, although the company denies liability for the civil claims.

Allergan, based in Irvine, Calif., also struck an agreement with the Department of Health and Human Services’ Office of the Inspector General that requires the company to submit compliance reports, and to post on its website any payments to doctors, such as honoraria, travel or lodging.

Allergan “paid kickbacks to induce physicals to inject Botox for off-label uses and Allergan also taught doctors how to bill for off-label uses, including coaching doctors how to miscode Botox claims leading to millions of dollars of false claims being to submitted to federal and state programs,” Assistant Attorney General Tony West said.

Allergan officials will make their first appearance in federal court on Thursday. The settlement is not official until approved by a federal judge.

“The FDA had approved therapeutic uses of Botox for only four rare conditions, yet Allergan made it a top corporate priority to maximize sales of far more lucrative off-label uses that were not approved by the FDA,” said Sally Yates, U.S. Attorney for the Northern District of Georgia. “Allergan further demanded tremendous growth in these off-label sales year after year, even when there was little clinical evidence that these uses were effective.”

The investigation was sparked by a whistleblower complaint, officials said, and five whistleblowers will split $37.8 million of the government’s share of the settlement.

Allergan’s product sales topped $4.4 billion in 2009, with Botox accounting for more than $1.3 billion of that total.

The Justice Department’s investigation covered Allergan’s marketing of Botox from 2001 through at least 2008.

Wells Fargo analyst Larry Biegelsen said the settlement is a positive for the company’s stock because it removes uncertainty.

“We view the settlement as a positive for Allergan as it provides cost certainty … and eliminates additional related litigation cost,” Biegelsen wrote in a note to investors.

In recent years, federal investigators have reached multibillion dollar settlements with Pfizer, Eli Lilly and other drug companies over their marketing practices.

Botox is most famous for its ability to smooth frown lines on aging foreheads, but the drug — introduced in 1989 — is also approved to treat neck spasms, eye muscle disorders and excessive underarm sweating.

Last year the drug won approval to treat spasms in the elbows, wrists and fingers. The drug is also widely used off-label to treat cerebral palsy in children as well as in adults, and Allergan says it is in discussions with U.S. health regulators to approve the use of Botox for children with the neuromuscular disorder.

In guidelines published earlier this year, the American Academy of Neurology endorsed Botox as an “effective and generally safe treatment” for children with cerebral palsy. While the use is not approved by the Food and Drug Administration, the guidelines stated that there are more studies supporting Botox than other movement-disorder drugs.

Botox works by blocking the connections between nerves and muscle, temporarily paralyzing muscles that cause wrinkles as well as certain types of spasms. The drug is a purified form of botulinum, one of the most toxic substances in the world.

As part of the settlement, Allergan agreed to drop a lawsuit against the FDA in which the company pressed for greater leeway to discuss off-label uses with doctors.

The company argued it had a First Amendment right to educate doctors about how to safely use Botox, even for uses that are not currently approved. FDA’s rules are designed to stop companies from promoting drugs for uses that haven’t been federally confirmed as safe and effective.

Some legal experts speculated that Allergan’s lawsuit against FDA was primarily aimed at gaining leverage in its negotiations with the Justice Department, which was a separate matter.

Shares of Allergan rose $1.44, or 2.3 percent, to $62.86 in afternoon trading.

Associated Press Writer Jesse J. Holland contributed to this report.

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