Strib In The Middle

The proverbial fan blades have been encrusted with a nasty substance in the U.S. Senate race between Norm Coleman, Al Franken, and don’t forget Dean Barkley.  And the state’s largest newspaper is in the middle of it.

First, the latest.  The Star Tribune is reporting this morning that there are now two lawsuits alleging that a close friend of Coleman’s has “used a marine company in Texas” to pay money to the senator through a Minneapolis insurance company where Coleman’s wife works.  There also are signs that Franken, or at least his party, are using the revelations for political gain.  Says a note on the Strib web site:

The Democratic Senate Campaign Committee is running TV ads featuring a Star Tribune reporter questioning Sen. Norm Coleman about a lawsuit noted in this report. The video in the ad was filmed without the knowledge or consent of the Star Tribune.

Says Coleman, in a statement: “Each and every allegation in this lawsuit relating to me and my wife is false and defamatory.”  A spokeswoman further stats that the Strib “is actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Speaking of false and defamatory, Coleman also has filed a complaint with the Minnesota Office of Administrative Hearings alleging that Franken is to be blamed for ads claiming that Coleman is the fourth most corrupt senator in the country and gets too good of a deal on a Capitol Hill apartment.  I cannot find the petition online, but it must have been filed pursuant to Chapter 211B of Minnesota Stautes.  Take a read.

OK, some quick analysis from this journalist turned lawyer, with more to come later as developments warrant.    First, Coleman has an uphill battle if he wants to sue over a lawsuit.  Generally, a litigant can say whatever he wants in a lawsuit.  It is, in legalese, subject to an absolute privilege.  But of course, there are limits to everything, and someday a court might confront this precise issue.

Second, it’s ironic that the Star Tribune is concerned about video of its reporters taken without its “knowledge and consent.”  Newspapers take pictures of persons without their knowledge and consent all the time.  As long as the photos or video are taken on public property and are not used in a way that invades the subject’s privacy, it’s all fair game.

Third, Coleman’s claims.  I could start a blog just to discuss Chapter 211B of Minnesota Statutes and similar federal requirements.  Anyone who values free speech should scrutinize these laws.   And if you do, an intriguing revelation emerges. Chapter 211B makes it a crime –a gross misdemeanor — to actively “participate” in disseminating false campaign information.  Coleman’s spokeswoman says the Strib is “actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Umm.  Stay tuned.

Expect To See Exit Pollsters

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

Minnesota Election Law, Meet First Amendment

Big Media filed a big federal lawsuit against the State of Minnesota yesterday challenging a Minnesota law that prohibits anyone other than voters and election officials from being within 100 feet of a building where voting is taking place.  The law was changed in April so that the 100-foot buffer zone is to be measured from the building’s door, not from the room where the balloting is actually taking place.

The change, according to ABC News, the Associated Presss, CNN, CBS, FOX, and NBC, violates the First Amendment because it prevents Big Media from exercising its constitutional right to perform exit polls by asking Minnesotans who they just voted for and then reporting the results before the votes are actually counted.

Hmm.  This is a tough one for me.  I agree that anyone, Big Media included, should generally have the right to ask questions and then tell someone the answers.  I also agree that elections are a Big Deal, particularly THIS YEAR, and that any act that might dissuade any voter from casting any ballot is to be forbidden.

The State of Minnesota has not had opportunity to file a response, but when it does, I wonder whether the Attorney General’s Office will dig up recollections of 2000, when famously inaccurate exit polls led some in the media to call the State of Florida for Gore, then for Bush, then for “too close to call.”

As luck would have it, I was on the Big Media front lines that night, squirming through my shift as front-page news editor at the St. Paul Pioneer Press.  The AP had called the presidential race for Bush, and we had a page ready to go with “BUSH WINS” streamed across the top.  Then, at the last second, around 1:15 in the morning as I recall, the AP sent a bulletin stating that the exit polls had been wrong, and that the race was too close to call. 

So I changed our headline on the fly and averted disaster.  The Star Tribune, though, did not, and alas, a few thousand papers escaped the building with “BUSH WINS” across the top.  One of them landed on my doorstep!

I do not pretend to have the right answer to this one.  Thankfully, a federal judge will, and soon.

Be Patient and Read the Fine Print

Invasion of privacy cases rarely succeed in Minnesota.  A decision from the state Court of Appeals this week underscored that fact.

The case, Anderson v. Mayo Clinic, involved a patient who sued Minnesota’s most-famous medical facility as well as a television station owned by Fargo-based Forum Communications.  Apparently, Mayo videotaped the patient’s surgical procedure and the videotape aired on the news.  Perhaps understandably, Ms. Anderson sued for invasion of privacy.  Problem was, she had signed a one-page form giving the clinic permission to release “photographs, audiotapes, and/or films” of her procedure to any news outlet so Mayo could “disseminate health information to the general public.”

A trial court in Moorhead let the case go forward, but on Tuesday the Court of Appeals ordered its dismissal and rejected the idea that Mayo acted with any fraud.  Wrote the court:  “Consent is an absolute defense to an invasion-of-privacy claim.”

Invasion of privacy is something easy to feel but nearly impossible to sue over.  This is particularly true in Minnesota, where for decades the Supreme Court refused to even recognize invasion of privacy as a cause of action.  Eventually, in 1998, after photos of two young women showering together during their Mexico vacation somehow made their way from a Wal-Mart photo lab into the northwestern Minnesota populace, the Minnesota Supreme Court made Minnesota the 48th state to recognize the cause of action.  (Case here.)

So read the fine print.  And get a digital camera.