Media Law

DA says Rockland Selectmen Violated Open Meeting Law

noreply@blogger.com (Robert Ambrogi) — Sat, 20 Mar 2010 02:10:00 +0000

The Plymouth County district attorney's office has found that selectmen in Rockland, Mass., violated the open meeting law in the process of hiring a full-time accountant, The Patriot Ledger reports. A town accountant search committee also violated the law.

Under the Open Meeting Law, e-mail can be a double-edged sword

noreply@blogger.com (Robert Ambrogi) — Fri, 19 Mar 2010 00:56:00 +0000

On Beacon Hill and in municipal buildings across the state, government officials are getting the message that e-mail can be a double-edged sword, writes State House reporter Dan Ring in The Republican of Springfield.

Towns prepare for substantial changes in Open Meeting Law

noreply@blogger.com (Robert Ambrogi) — Fri, 19 Mar 2010 00:41:00 +0000

"The state's Open Meeting Law requires that meetings of governmental boards and committees be conducted in sessions open to the public, with few exceptions which are strictly limited. The goal of the law is to eliminate as much of the secrecy around discussions and decisions of public policy, by requiring that discussion to be done in a public meeting.

"Amendments to the Open Meeting Law have been made many times since it was first adopted in 1958, most recently last July when Gov. Deval Patrick signed the ethics, lobbying and campaign finance reform bill that included changes to the Open Meeting Law. The changes, some of which are substantial, are scheduled to go into effect July 1."

Read more: Towns prepare for substantial changes in Open Meeting Law | SouthCoastToday.com.

Boston Lawyer Wins Libel Case for Former V.I. Judge

noreply@blogger.com (Robert Ambrogi) — Wed, 17 Mar 2010 23:51:00 +0000

A former Superior Court judge in the U.S. Virgin Islands won a $240,000 libel verdict this week against the Virgin Islands Daily News. The former judge, Leon Kendall, was represented in the lawsuit by Howard Cooper, the Boston lawyer who in 2005 won a $2.1 million verdict against The Boston Herald for former Massachusetts Superior Court Judge Ernest Murphy.

According to a report today in The Daily News, the jury on St. Thomas returned the verdict Tuesday. Jurors found that the newspaper and one of its reporters damaged Kendall's reputation through a series of 16 news stories and an editorial published from 2005 to 2009.

The stories related to Kendall's work as a judge and bail rulings he made. The editorial called for his resignation. Kendall retired from the bench last year.

The Daily News says it will appeal the verdict.

Legislature to Hold Hearing on Reporters' Shield Bill

noreply@blogger.com (Robert Ambrogi) — Thu, 18 Feb 2010 17:58:00 +0000

Massachusetts remains one of the minority of states without a shield law to protect journalists' confidential sources. That could change if a bill to be heard by the legislature next week becomes law. The bill, House Bill 1650, would prohibit courts and government agencies from forcing members of the news media to reveal their news sources. The bill would also protect reporters against the compelled disclosure of notes, outtakes, photographs and recordings.

The bill is under review by the legislature's Joint Committee on the Judiciary, which has scheduled it for a public hearing on Tuesday, Feb. 23, at 1 p.m. in State House Room B1. If you have any interest in supporting this bill, you should show up and make your position known to the members of the committee.

Notably, the bill as drafted would cover some bloggers as well as traditional print and broadcast journalists. Coverage is not based on a journalist's employment, but on the journalist's engagement in "bona fide news gathering" for any form of news media. "News media" is defined as "any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution."

Thus, a blogger who is engaged in news gathering and who regularly gathers and disseminates news would be covered by the bill if it became law.

This bill is derived from one that was filed in the previous session of the legislature and that I helped draft as part of an ad hoc coalition of journalists, news organizations and media lawyers. That bill died without ever being reported out of the Judiciary Committee.

SJC Affirms Public's Right to View Jury Selection

noreply@blogger.com (Robert Ambrogi) — Wed, 17 Feb 2010 16:16:00 +0000

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

Survey of Media Access to Mass. Courts

noreply@blogger.com (Robert Ambrogi) — Mon, 08 Feb 2010 16:22:00 +0000

The Judiciary/Media Committee of the Supreme Judicial Court is considering revisions to the Guidelines on the Public's Right of Access to Judicial Proceedings and Records. In order to evaluate whether the guidelines should be amended or expanded and what other initiatives the committee might wish to pursue, the committee is asking members of the news media to complete a survey on media access to the courts.

As a member of the Judiciary/Media Committee and in my capacity as executive director of the Massachusetts Newspaper Publishers Association, I am helping to disseminate the survey and compile its results. If you are a journalist who covers the Massachusetts courts, please take a moment to complete the survey and return it to me.

You can download the survey here, in Microsoft Word format: Survey of Media Access to Courts.

Scott Brown's Short-lived Bill for a Reporters' Shield

noreply@blogger.com (Robert Ambrogi) — Fri, 29 Jan 2010 01:58:00 +0000

Although various groups have lobbied for a reporters' shield law in Massachusetts, the state remains without one. But in 2005, just a year after he was elected to the state Senate, U.S. Sen.-elect Scott Brown made an aborted attempt to change that.

As the Senate took up debate on the state budget on May 23, 2005, Brown and former Sen. Brian P. Lees, then the Senate's Republican leader, proposed a reporters' shield law as a budget amendment. But by the end of the first day of budget debate, they had withdrawn the proposed law. No explanation was ever given for why they filed the bill so suddenly or why they withdrew it just as quickly.

Titled the "Free Flow of Information Act," the bill would have prevented the state from compelling a reporter to testify except in narrow circumstances. It would have absolutely prohibited the state from forcing reporters to disclose confidential sources.

Brown never refiled the bill, but he did sign on as a sponsor of a shield bill drafted by a coalition of media representatives and filed in 2007. That bill died in committee. Two Senate shield bills have been filed in the current session of the legislature, SB 1673 and SB 1574. Brown did not sign on as a cosponsor of either.

When last I counted, Massachusetts was one of 16 states without a shield law.

Implications of SJC's Open Meeting Ruling

noreply@blogger.com (Robert Ambrogi) — Tue, 19 Jan 2010 02:07:00 +0000

Reporter Kendall Hatch has a piece in The Metrowest Daily News considering the long-term implications of the Supreme Judicial Court's recent ruling in the open meeting law case, District Attorney for the Northern District v. School Committee of Wayland, which I previously blogged about here. I am among the sources Hatch interviewed for his article.

Mass. High Court Affirms Fair Report Privilege

noreply@blogger.com (Robert Ambrogi) — Thu, 07 Jan 2010 17:34:00 +0000

The Supreme Judicial Court today issued a major ruling for members of the news media, affirming a broad immunity from libel for journalists who report fairly and accurately on official government actions and statements. The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, "[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation," and that courts should take "an expansive but not unlimited view" of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

"[W]e conclude that the articles appearing in the Enterprise reported on official actions, proceedings, and statements. The May 11 article reported that Howell had been placed on administrative leave. This was official action. When the Enterprise published articles on the sewer commission hearing (July 20 article), Howell's termination after a sewer commission vote (August 3 article), and the board hearing (August 24 article, August 25 article, September 17 article, September 19 article), it reported on official actions and proceedings. The statements and actions reported plainly implicated official duties and powers, either in the context of the official hearings or in the exercise of official powers as a result of the evidence adduced at those hearings. The Enterprise's reliance on anonymous sources did not destroy the privilege because the sources described official action. Similarly, that some of the actions were not public is not problematic: the actions were 'governmental' and 'formal.'"

Having decided that the news reports covered official matters, the SJC next considered whether the reports were fair and accurate. In making this determination, Justice Cordy wrote, the court must be:

"on alert for two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair). We examine both through the lens of the reasonable recipient of the report to gauge the substantiality of the report's accuracy and fairness. This is, for lack of a better formulation, best described as a fairness overlay to the fair and accurate inquiries: is the report sufficiently factually incorrect or sufficiently mischaracterized that the impression on the reader is so unfair to the plaintiff as to warrant placing it outside the privilege? We note this because our task in the present case involves a combination of errors of 'accuracy' and 'fairness.'"

The SJC goes on to conclude that the bulk of the reports met both prongs -- that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

In another notable aspect of today's opinion, the SJC reversed the Appeals Court and said that Howell could not sue for intentional infliction of emotional distress. The Appeals Court had said that he could sue for such damages, even if the news reports were true.

Justice Francis X. Spina dissented to one aspect of today's opinion, saying he would not apply the fair report privilege to a story that provided details of a closed-door town meeting. "The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. ... A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role."

SJC Rules in Key Open Meeting Case

noreply@blogger.com (Robert Ambrogi) — Thu, 31 Dec 2009 17:59:00 +0000

The Massachusetts Supreme Judicial Court today issued its ruling in a key open meeting law case, District Attorney for the Northern District v. School Committee of Wayland. The SJC ruled that the School Committee violated the law when it met in a closed session to discuss the performance evaluation of Wayland's superintendent of schools and when it exchanged private e-mails regarding the evaluation in advance of the meeting.

In so ruling, the SJC sides with the position taken by the district attorney and by the Massachusetts Newspaper Publishers Association in an amicus brief which I co-authored together with Peter J. Caruso.

The ruling is significant for three reasons:

It affirms that discussions of a government employee's "professional competence" must be conducted in public.

It affirms that an exchange of e-mails among the members of a public body can constitute "deliberation" and therefore violate the open meeting law.

It clarifies a seeming conflict between the open meeting law and the public records law. While the discussion of an employee's performance evaluation must take place in an open meeting, once the evaluation is reduced to a written evaluation document, that document need not be made public.

The School Committee had argued that the evaluation was a prelude to contract negotiations with the superintendent and therefore was exempt as a strategy session in preparation for negotiations. But the SJC said that there was no evidence that the committee discussed strategy.

This is an important ruling for affirming the right of the public to know how their local officials are performing in their jobs. The public has a right to know when a local official is performing well or performing poorly.

State Orders Release of Parking Scofflaws' Names

noreply@blogger.com (Robert Ambrogi) — Wed, 30 Dec 2009 01:24:00 +0000

The Massachusetts Secretary of State's office has ruled that the public has a right to know the names, addresses and amounts owed of the top 10 parking scofflaws in the town of Watertown. In a Dec. 24 letter published by the Wicked Local Watertown Blog, state Supervisor of Public Records Alan N. Cote ordered the town to release the information, which the Watertown TAB had requested last May.

The town had refused to comply with the newspaper's public records request, citing both the federal Drivers Privacy Protection Act and the fact that the records are maintained for the town by an outside contractor. Cote ruled that the federal law does not apply to the records in question and that the town's use of an outside contractor does not relieve it of its obligation to comply with the public records law.

[Hat tip to Media Nation.]

SJC Gives Judges More Leeway to Explain Themselves

noreply@blogger.com (Robert Ambrogi) — Tue, 08 Dec 2009 23:01:00 +0000

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics.

The changes to Section 3B(9) of the Code of Judicial Conduct, which take effect Jan. 1, 2010, also allow judges to make public comment about issues relating to the judge's conduct, as opposed to substantive legal rulings, and to discuss pending appellate cases in educational settings.

Official commentary to the revised rule says that "restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." A new appendix to the rule provides guidance for judges on when and under what circumstances they might issue explanatory memoranda.

"We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing," the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the appendix says, the judge should carefully consider four factors:

The importance of avoiding or alleviating the parties' or the public's misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision.
The amount of time that has elapsed since the order was issued and the extent to which the judge's reasons for the decision remain fresh in his or her mind.
The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.
The danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence and impartiality of judges.

In no case should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." Nor should a judge issue such a memorandum "if the court no longer has the authority to alter or amend the underlying order."

Following are the texts of the new and old rules:

New Section 3B(9) (effective Jan. 1, 2010):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending proceeding in any Massachusetts court, and shall require similar abstention on the part of court personnel.

(a) This section does not apply to any oral or written statement made by a judge in the course of his or her adjudicative duties.

(b) A judge is permitted to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(c) A judge is permitted to speak, write, or teach about cases and issues pending in appellate courts when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals and bar publications. This educational exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(d) A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge's impartiality and do not address the merits of any pending or impending judicial decision.

(e) This section does not apply to proceedings in which a judge is a litigant in a personal capacity.

Former Section 3B(9):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel.

(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

Podcast: The Right to Counsel in Civil Cases

noreply@blogger.com (Robert Ambrogi) — Wed, 18 Nov 2009 13:07:00 +0000

The Supreme Court's 1963 decision, Gideon v. Wainwright, guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in certain types of civil cases that involve basic human needs, such as when a person faces eviction from a home or the loss of parental rights? California recently made history by enacting a pilot program to appoint lawyers in certain civil cases and other pilot programs are underway elsewhere in the country.

This week on the legal-affairs podcast Lawyer2Lawyer, we look at the Civil Gideon movement. Joining us as guests to discuss this topic are two lawyers who have been deeply involved in promoting Civil Gideon: Robert L. Rothman, partner of the Atlanta firm Arnall Golden Gregory and former chair of the Section of Litigation of the American Bar Association, and James J. Brosnahan, senior partner with Morrison & Foerster and member of the California Commission on Access to Justice.

Listen to or download the program from the Legal Talk Network.
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Standard-Times Asks DA to Probe Wareham Meetings

noreply@blogger.com (Robert Ambrogi) — Thu, 12 Nov 2009 02:07:00 +0000

From the Standard-Times:

The Standard-Times has asked the Plymouth County district attorney to investigate the Board of Selectmen's heavy use of executive sessions in the hiring of a new town administrator.

In response, Assistant District Attorney Mary Lee on Wednesday sent a letter to the town's legal counsel, asking for explanations and for minutes of all meetings involved with the search, both public and private.

Help Support the Bar Foundation's 45th Anniversary

noreply@blogger.com (Robert Ambrogi) — Wed, 11 Nov 2009 14:59:00 +0000

The Massachusetts Bar Foundation is celebrating its 45th anniversary this year. I am honored to serve as a trustee of this important charitable organization, which is dedicated to ensuring equal access to justice and to enhancing the administration of justice and understanding of the law.

I urge companies, law firms, lawyers and other members of the legal community to support this 45th anniversary. Here are four ways you can do that:

Become an anniversary sponsor. Anniversary activities will culminate with a celebration dinner and fundraiser on Jan. 14, 2010, at the Colonnade Hotel, Boston. Sponsors will be featured at the dinner and in publicity and other materials throughout the year. CLICK HERE to download a PDF of the MBF's sponsorship opportunity guide.
Donate items to the online silent auction. As part of the anniversary initiatives, the MBF will host an online silent auction of fun and unique items. This is an ideal opportunity for vendors to donate a product. CLICK HERE to donate an item for the silent auction.
Purchase an ad in the dinner program. The sponsorship guide includes information on program ads.
Attend the dinner. Tickets are not yet on sale, but save the date of Jan. 14. I will post a notice when ticket sales open.

I believe deeply in the importance of this organization and the charitable work it supports throughout Massachusetts. I hope you will join me in adding your support.

Podcast: E-mail and the 4th Amendment

noreply@blogger.com (Robert Ambrogi) — Thu, 05 Nov 2009 18:54:00 +0000

Does the Fourth Amendment's protection against unreasonable searches and seizures extend to e-mail and data stored in "the cloud"? Surprisingly, the question remains unsettled in the courts. On this week's legal-affairs podcast Lawyer2Lawyer, we discuss the extent to which e-mail and other online data are protected in both the criminal and civil contexts. Joining us are two experts on the topic:

Orin S. Kerr, professor of criminal law at the George Washington University Law School and author of a number of law review articles on the application of the Fourth Amendment to Internet and computer data.
Jason Paroff, director of computer forensics operations with the ESI Consulting practice at Kroll Ontrack.

Listen to or download the half-hour program from the Legal Talk Network.

SJC To Hear Key Open Meeting Case

noreply@blogger.com (Robert Ambrogi) — Wed, 28 Oct 2009 15:41:00 +0000

An important case interpreting the Massachusetts open meeting law comes up for argument before the Supreme Judicial Court on Monday. The case, District Attorney v. Wayland School Committee, presents the question of whether a school committee violated the law when it met in closed session to discuss the performance evaluation of the school superintendent.

(Note: I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.)

The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private "to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual." That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.

Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."

The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.

The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge's reasoning.

Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC's site and watch Monday's oral arguments via webcam.

Anti-SLAPP Case Comes Before SJC Monday

noreply@blogger.com (Robert Ambrogi) — Wed, 28 Oct 2009 15:14:00 +0000

A case that could decide whether the Massachusetts anti-SLAPP statute applies to journalists comes up for argument Monday before the Supreme Judicial Court. The case, Fustolo v. Hollander, involves a libel lawsuit filed by real estate developer Steven C. Fustolo against Fredda Hollander, a reporter for a community newspaper in Boston's North End and a long-time community activist.

Hollander sought to have the lawsuit dismissed under the anti-SLAPP statute, which is designed to protect against the use of litigation to silence a person's "exercise of its right of petition." The right of petition refers to an individual's First Amendment right to address the government with regard to issues of public concern.

A Superior Court judge denied the motion. The judge concluded that Hollander had written the news stories at issue in the lawsuit not "on her own behalf as a citizen" but "in the role of a reporter paid and employed by the publisher of a newspaper." The ruling is at odds with another Superior Court case, Joyce v. Slager, which allowed a newspaper's motion to dismiss a libel case under the anti-SLAPP law.

Those interested in the case can watch the webcast of the arguments before the SJC. You can read the briefs filed by the parties here.

Debt to Town No Reason to Deny Records Request

noreply@blogger.com (Robert Ambrogi) — Mon, 19 Oct 2009 16:46:00 +0000

Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?

No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.

"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.

The Week's Open Meeting Law News

noreply@blogger.com (Robert Ambrogi) — Sun, 18 Oct 2009 22:14:00 +0000

Some items in the news this week regarding the Massachusetts open meeting law:

A Cape Cod Times editorial calls for the state legislature to put teeth in the open meeting and public records laws. "Pick up the phone and call your state senator and representative. Let them know that you demand good government that is answerable directly to the people and that you support real sanctions against those public officials who deliberately break the law."

The Worcester Telegram & Gazette files a complaint alleging that the Charlton Board of Selectman violated the open meeting law in its performance evaluation of the town administrator.

The Brockton Enterprise reports that the Rockland town counsel denies there is any validity to a selectman's complaint that a screening committee violated the open meeting law when it recommended a final candidate at its first public meeting.

Podcast: The FTC’s Blogger Guidelines

noreply@blogger.com (Robert Ambrogi) — Fri, 16 Oct 2009 13:07:00 +0000

This week on the legal-affairs podcast Lawyer2Lawyer, we try to sort fact from fiction regarding the Federal Trade Commission's new guidelines on product endorsements and reviews by bloggers. The FTC wants bloggers to disclose free products or payments they receive from companies for reviewing their products. How far do the guidelines reach, what sorts of disclaimers do they require, and how will the FTC enforce them?

To help us sort through these questions, we are joined by two guests with expertise in this area: Eric P. Robinson, staff attorney at the Media Law Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy and related fields; and Barry J. Reingold, head of the marketing and advertising practice for the law firm Perkins Coie.

Listen to or download the show from the Legal Talk Network.

Jury Verdict in Noonan v. Staples

noreply@blogger.com (Robert Ambrogi) — Tue, 13 Oct 2009 02:28:00 +0000

Remember Noonan v. Staples? That was the 1st Circuit decision I described as the most dangerous libel decision in decades. In it, the court upended the bedrock principle of libel law that truth is an absolute defense. It said that even a true statement can be subject to a libel lawsuit if it was said with actual malice.

At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.

The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.

I learned this from National Law Journal reporter Tresa Baldas, who posted a report on the verdict this afternoon.

Under Pressure, Selectmen Meet in Public -- Sort Of

noreply@blogger.com (Robert Ambrogi) — Thu, 08 Oct 2009 00:21:00 +0000

The board of selectmen in Charlton, Mass., should be commended for conducting its evaluation of the town administrator in an open meeting. It did not have a lot of choice, as the Telegram & Gazette reports. Complaints filed by the newspaper against the town last year resulted in a ruling by the Worcester County district attorney that the selectmen violated the open meeting law in 2007 and 2008 when it conducted the administrator's evaluations behind closed doors.

One member of the board, however, was not comfortable with the idea of speaking in public about her unsatisfactory evaluation of the administrator. Selectman Kathleen Walker got clearance from the town counsel to meet privately with the administrator to discuss her evaluation.

One step forward, one step back.

Legislation Would Help Save the Paper Boy (and Girl)

noreply@blogger.com (Robert Ambrogi) — Wed, 07 Oct 2009 01:05:00 +0000

Massachusetts state Sen. Stanley C. Rosenberg of Northampton said today he would file a bill to help save the jobs of newspaper carriers. His statement followed the announcement earlier in the day that Northampton's newspaper, the Daily Hampshire Gazette, and its sibling paper, the Greenfield Recorder, would end their long-standing custom of having boys and girls deliver the newspaper to neighborhood homes.

Rosenberg's announcement said that he began working on the bill after learning that state employment officials had begun classifying newspaper carriers as employees, instead of as independent contractors, thereby requiring newspaper companies to pay their unemployment insurance fees.

Rosenberg’s bill, which has yet to be filed, would more clearly define the role of news carriers within a newspaper company and exempt the companies from state unemployment fees, his announcement said.

"Newspapers are absolutely critical to the advancement of our democracy, and news boys and girls are a part of Americana that I, personally, can’t stand the thought of losing. How many of us first learned the value of work delivering newspapers? These jobs are important for our local young people, and adults alike, and I’m not willing to see them go to big corporations without a fight."

Legislation to address this issue is badly needed. A 2004 change to Massachusetts law eliminated the traditional "right to control" test used to determine whether someone is an employee or an independent contractor. It was replaced with a new standard which required, among other things, that an independent contractor be providing a service that is "outside the usual course of the business of the employer." This makes virtually any freelancer an employee under the law if the freelancer's work has any relation to the business.

Today's announcement from the Gazette said it would shift home newspaper delivery to a national distribution company effective Oct. 26.

"Massachusetts, in a couple of areas, is taking a hard look at independent contractors," Gazette Publisher Jim Foudy said in the article. "They've been making some statements, taking some actions. We believe they're going to say these people need to be employees."

"This is a business decision. We just realized we needed to move on this before we end up finding ourselves with enormous additional costs," Foudy said.