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By Brian Lynch

The Hispanic Leadership Fund (HLF) had plans to release multiple advertisements that it characterizes as “address[ing] substantive policy issues facing the federal government on a daily and regular basis.”  The ads do not name a specific political candidate, but HLF is concerned the ads will fall under the Federal Election Commission’s (FEC) regulatory authority via the Federal Election Campaign Act (FECA).  Ads that clearly identify political candidates during election periods require disclosures and disclaimers, which includes reporting the advertiser’s donors to the FEC.

HSL claims compliance with electioneering disclosure rules could hamper its fundraising efforts, but without the proper disclosures HLF could be subject to criminal and civil liability.   The HLF has filed pre-enforcement actions seeking declaratory and injunctive relief in Federal Court in Iowa and Virginia claiming the potential penalties prevent it from engaging freely in constitutionally protected speech and association.

The ads have been called attack ads against President Obama, but the ads do not name Mr. Obama.  In lieu  criticizing him by name the ads criticize “the administration”, “the White House”, and “the Government”.  If the use of the terms meets the clearly identifiable candidate criteria set forth in statute and judicial opinion, the ads would fall under the purview of the FEC.

HSL points to Buckely v. Valeo, 424 U.S. 1, 43 (1976) which defined how ads clearly identify candidates.

Section 608(e)(2) defines “clearly identified” to require that the candidate’s name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate’s initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his office (e.g., the President or the Governor of Iowa), or his status as a candidate (e.g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).

HSL’s claim may turn on whether the Buckely court’s list of unambiguous references is complete or if the proposed terms could be deemed equivalent and added to the list.  Reading the scripts for the ads makes it clear HSL is dissatisfied with President Obama’s policies and include calls to action for viewers to voice similar dissatisfaction.  One ad goes so far as including an audio clip of Mr. Obama.  In the context of the ad, it is hard to argue the terms do not clearly identify the President.

Brian graduated from Suffolk University Law School in May of 2012 and served as president of Suffolk Media Law in his last year of school.

By Brian Lynch

April 29th, 1992, there was a riot on the streets,
tell me where were you?”

On that date Timothy Goldman was on the corner of Florence and Normandie in South Central Los Angeles, with a video camera.  That intersection was the epicenter of the Rodney King Riots that occurred twenty years ago.  That is where trucker Reginald Denny was pulled from his truck and nearly beaten to death.  That incident and another two hours of violence, destruction and chaos were captured on Mr. Goldman’s videotapes.

The riot footage and the video of the Rodney King beating, filmed by George Holiday, ushered in a new era of citizen journalism.   Mr. Goldman chose to publicize the footage and licensed it to several media outlets.  With that decision, his life turned upside down.   In interviews, he has chronicled how he was forced to move from his home due to constant threats on his life from members of his community.  His own brother deemed him a rat and a snitch for publicizing the acts of his neighbors.      

In addition to the personal upheaval, some other consequences followed.  Mr. Goldman became the key witness to several of the acts of violence that occurred on the tapes.   The LA Police Department tapped him to identify suspects from the videos.  Additionally he was subpoenaed to appear as a witness in several criminal proceedings and civil trials.  Mr. Goldman was also required to turnover footage that was not broadcast, failing to qualify as a reporter under California Shield laws.

Would he fair any differently today?

It would be a mistake to compare Mr. Goldman’s act of citizen journalism to most others, as his footage captured a monumental event in our history that few professional journalist could match.  But has the concept of citizen journalism gained more legal standing?

Recent court decisions indicate the answer is no.  One Oregon blogger was denied protection from a defamation claim because the judge ruled (in part) the blogger did not meet the statutory definition of a journalist.  In an Illinois case a website was denied protection under the state’s shield law because the site did not qualify as a news medium.  Some progress has been made, as California extended shield law protection to online news sites in O’Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006).

A guide to shield laws as applied to citizen journalists can be found here.

Photo LA Burns: From Nichols Canyon courtesy of Flickr user Dark Sevier under Creative Common License CC BY-NC 2.0.

By Brian Lynch

Phillip Datz, a professional photojournalist, was working as an independent news stringer in the state of New York.   In July of 2011 he was covering a Suffolk County police chase through Bohemia, NY for a local news station.  The police chase ended on a public street and Mr. Datz began filming the police investigation from across the street on a public sidewalk.  Within seconds of beginning filming, an officer approached Mr. Datz and instructed him to “go away” despite the press credentials Mr. Datz had displayed.   Mr. Datz sought another location to film but was intercepted by the same police officer and arrested.  See the altercation below.

Mr. Datz was handcuffed, taken into custody and charged with misdemeanor obstruction of governmental administration.  The charges were later dropped by the Suffolk County District Attorney.  Mr. Datz has since filed a civil suit against the arresting officer and Suffolk County for obstructing the First Amendment right of the press and the public to record and gather news about police activity in public places.  The complaint seeks injunctive relief barring Suffolk County police officers from further interfering with the First Amendment rights of the public and press.

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By Brian Lynch

Mark Miller took to Twitter to voice his opposition of a Cincinnati streetcar project, supporters of the project took Mr. Miller to the Ohio Elections Commission.  The streetcar supporters claimed Mr. Miller’s tweets violated a state law prohibiting false statements in political campaigns and they filed a complaint with the OEC.  The streetcar project passed public vote and the complaint was dropped. 

Mr. Miller’s coalition against the streetcar project has since sued the OEC (COAST v. Ohio Elections Commission), claiming the law is unconstitutional due to its chilling effect on free speech.  The OEC is represented by the Ohio Attorney General’s office and has moved to dismiss on procedural grounds.  In an interesting twist, Ohio’s attorney general Michael DeWine has filed a friend of the court brief suggesting the law is unconstitutional.  Mr. DeWine noted:

“[B]y its express terms the law applies to an individual blogger, to a person posting a comment on Facebook or other social media, or to a  homemade sign or pamphlet made by a single individual….

[A]n Ohio citizen who chooses to exercise his or her civic responsibilities by speaking out on the issues of the day may face the issuance of government subpoenas, targeting by a government-appointed investigative attorney  (even absent a finding of probable cause) and a Commission determination labeling her speech “false” just before the election, all with the threat of criminal prosecution in the background…

The idea that Ohio’s citizens must hire an attorney or even engage in extensive investigation before communication on Facebook or Twitter, however, undercuts the most basic norms of political participation and free speech…”

The motion to dismiss is currently under consideration by Judge Michael R. Barrett of Federal District Court in Cincinnati. 

Photo Courtesy of the Library of Congress Flickr Photostream.

By Brian Lynch

What happens when fair and balanced gets in the way of telling the real story?  Journalist and law scholar Linda Greenhouse will be the featured speaker for a luncheon addressing the topic.  Ms. Greenhouse covered the United States Supreme Court for the New York Times for nearly three decades and was awarded the Pulitzer Prize in 1998.  She is currently the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School. 

The symposium is hosted by The Masterman Institute, an organization focused on providing a forum to debate and exchange ideas about freedom of the press and its attended responsibilities.  The event also features a panel of speakers including media critic and Northeastern University professor Dan Kennedy, curator of the Neiman Foundation Ann Marie Lipinksi, and Pulitzer Prize winning journalist and Brandeis University professor Eileen McNamara

The free event will be held Thursday March 8th from 12:00 to 2:00 at Suffolk University Law School.   For more information and to register, go here.

By Brian Lynch

The Copyright Society of the U.S.A. is holding a free networking event and reception on Wednesday, February 29, from 5:30 to 7:30.   Both lawyers and law students interested in copyright or intellectual property are invited to meet Boston area copyright attorneys.  CSUSA is dedicated to advancing the study of copyright law and related rights in literature, music, art, theater, motion pictures, television, software, architecture and other works distributed through both traditional and new media.

UPDATE:  The event is near or at capacity.

By Brian Lynch

Do you regret purchasing that LMFAO jam on iTunes?  One company may have a solution for you.  ReDigi is an online service that provides a secondary market for digital music files.  The concept seems simple, sell your legally purchased music files to another person and in the process the music file is removed from your device or devices.  

ReDigi purports to be a legal alternative to pirate file sharing services, but Capital Records begs to differ.  Capital is suing for copyright infringement, claiming the ReDigi service merely allows digital copies of the original music file to be sold and not the original file itself.  ReDigi maintains its service falls under the First Sale Doctrine, claiming no copies are made in the process.  It compares its service to reselling a used CD. 

ReDigi passed it first legal hurdle this week and avoided a preliminary injunction to shut down its service, but the outlook doesn’t look good as the judge also noted Capital is likely to prevail in the case.  Capital insists the only way to technically move files around in the cloud is to make copies, violating copyright law. 

The case is probably a winner for Capital, but it does raise good issue.  What should be considered a copy in the digital world?  Not allowing copies in the transfer process precludes transferring any digital work from one party to another without actually handing over the device or storage medium that contains the file too.  That’s a pretty tough barrier for consumers who want to dispose of personal property.

Find links to the complaint here and to the defendant’s answer here.

By Brian Lynch

Janet Jackson’s relevance in pop culture has likely faded, but her 2004 Super Bowl performance has had a lasting impact on broadcasting.  That performance of course featured the infamous wardrobe malfunction in which Miss Jackson barred her breast on live television.  The incident resulted in more than 500,000 complaints to the Federal Communications Commission and led to the stepped up enforcement of the FCC’s policy against fleeting expletives and images.

On Tuesday the United States Supreme Court heard oral arguments concerning the enforcement of the policy in FCC v. Fox Television Stations, Inc.  The question before the Court: Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.  More specifically, do the rules have a chilling effect on free speech and are rules unconstitutionally vague?

The commission’s power to restrict speech stems from the FCC v. Pacifica Foundation decision in 1978.  In Pacifica the Court ruled against the radio broadcast of George Carlin’s infamous seven filthy words comedy bit and gave the commission the power to restrict profane language from broadcast television and radio.  The reasoning behind the decision was to protect children from the intrusion of profanity into a home via radio and television.  The Court noted:

“Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”

Does that reasoning still fly today? 

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By Brian Lynch

Within the Communication Decency Act lies the best friend of many websites, the §230 safe harbor which immunizes websites from liability for content posted by the site’s users.  Plaintiffs harmed by online messages are often left to either track down anonymous posters or attempt to get around §230 and go after the website host.  Not surprisingly the broad immunity granted to websites by §230 is controversial and has proponents on the both sides of the immunity spectrum.  One thing is clear though, plaintiffs will continue to try and beat the safe harbor with workarounds.

In the recent lawsuit Levitt v. Yelp!, several advertising clients of the review site Yelp! claimed Yelp! removed user reviews to create fraudulent star ratings of the businesses.  The plaintiffs accused Yelp! of using the lower ratings to extort higher advertising rates in exchange for a higher user rating.  Although the allegations were deemed speculative, the court held the action of removing user reviews was an acceptable editorial function that would not preclude the safe harbor, regardless if done in bad faith

In another recent case, Hopkins v. Doe #1, the plaintiff argued a similar angle claiming fraud by the defendant should trump the safe harbor.  The plaintiff brought a defamation lawsuit against several anonymous posters and the website where the messages were posted.  The plaintiff attempted to get around §230 by claiming the host site fraudulently violated its promise of policing content in a timely manner.  The court rejected the assertion of a violation noting the defendant’s terms of use also “expressly disclaimed liability for any content that is provided or posted by [users] or others and has stated that it is not responsible for any failure or delay in removing any content.”

Nice try, but no dice.

Image “Keyboard in Action” courtesy of Flickr user “lapideo” licensed under Creative Commons BY-NC-ND 2.0 license.

By Brian Lynch

The Supreme Court of the United States recently announced it would hear oral arguments in three cases involving the Patient Protection and Affordable Care Act, also known as Obamacare.  Likely in recognition of the fierce debate over the law, the Court has allotted five and one-half hours for the arguments.  Citizens for Responsibility and Ethics in Washington is urging Chief Justice Roberts to allow televising of the arguments due to the importance of these cases.  Suffolk Media Law has joined the call to grant citizens access to the process and signed on to the letter.

Dear Chief Justice Roberts:

As organizations and individuals dedicated to transparency in government, we write to urge you to allow televising of oral arguments in the three cases before the Court addressing the Patient Protection and Affordable Care Act, Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393, Florida v. U.S. Dep’t of Health & Human Serv., No. 11, 400, and U.S. Dep’t of Health & Human Serv. v. Florida, No. 11-398. These cases present some of the most significant issues to come before this Court in modern times, and the Court’s resolution of these matters will have an enormous impact on our entire country.

The importance of these cases to the American public cannot be denied. Indeed, the Court at least implicitly recognized their gravity by scheduling five and one-half hours for oral argument. The issue of access to affordable health care strikes at the core of our relationship with our government, especially in this time of great economic turmoil. Further, the cases involve weighty questions regarding the right of the federal government to mandate both state and individual action.

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