Archive for November, 2008

What’s In A Name?

November 26, 2008

It’s a story that no news editor can resist.

Two Iowans were caught having sex in a Metrodome restroom on Saturday as an intoxicated crowd egged them on and –gasp! — as their significant others stayed in the stands to watch football.  At least, those were the accusations, according to newspaper reports.  Name a better story in the last week!

Speaking of names …

The Star Tribune’s version of the story identified by name the Iowans who had been charged — but not convicted — of a misdemeanor.  The Pioneer Press’ story did not.  Funny, during my earlier years at the Pioneer Press, it was the other way around.  It was our newspaper that had a policy of publishing arrestees’ names, except when we didn’t.  And it was the newspaper across the river that had a policy of not publishing arrestees’ names, except when they did.

Mainstream Media always has struggled with this issue and has never been consistent.  The law is clear:  As long as a newspaper, TV station, or blog for that matter obtains information lawfully, it may publish it.  But should they?  And should there be policies — consistently followed policies — that guide whether to identify people who are arrested but who have not yet been convicted of a crime?

The problem is, even with a rule, there is always an exception.  For example, if a newspaper has credible information that identifying an arrested person in print would put someone’s life in danger, obviously the newspaper will not publish it.  Conversely, if, oh, I don’t know, an Idaho senator is charged but not yet convicted of a crime, obviously a newspaper will publish the name.  And it should.

There is no easy solution, but all media can help address this problem by making it absolutely clear in crime stories what it means to be charged with a crime (i.e., “indicted”) and what it means to be convicted of a crime (i.e., found guilty beyond a reasonable doubt).  And then, in an ideal world, reporters and editors should follow up on stories when an arrested person is exonerated.

For what it’s worth, the Metrodome story is now “moving on the wires” — in other words, is being distributed by the Associated Press.  The Des Moines Register, for one, published that version of the story, which has elicited nearly 100 reader comments.

Don’t Bank On Defamation Law To Help

November 9, 2008

This week the Eighth Circuit Court of Appeals released a decision demonstrating how tough it can be to invoke defamation law when the person alleging defamation was the one who asked for the allegedly false information in the first place.

The federal case from Minnesota involved a loan dispute between a small business and one of Minnesota’s largest banks.  Court cases were pending in both Hennepin and Ramsey County courts, one involving an alleged $35,000 loan default and the other involved alleged bank overdraft charges.  The business defended against and settled the first lawsuit involving the loan.  But the business did not defend against the second suit involving the overdraft charges, which prompted the bank to seek a default judgment and to begin garnishing the business’ other bank accounts.

Then, in reponse to the business owner’s request, the bank sent a fax suggesting that the $35,000 loan was unpaid.  The business owner filed a defamation case containing a variety of allegations, including that the fax contained false information that was communicated to potential investors and caused the business to lose $4.2 million in profits

The Eighth Circuit rejected the defamation claims one by one.  Most importantly, the court concluded that the fax was “absolutely privileged”–in other words, it could not provide a basis for a defamation claim even if the information was false–because the business owner had consented to it being sent.

Judging From Campaign, Little To Worry About

November 3, 2008

Nonlawyer friends in Ramsey County have been asking me about what to look for in the unusual race for a county judgeship.  The race is unusual because judges usually step down in a way that permits the governor to fill vacancies, and then the appointee then gets to stand for election as an incumbent (usually unopposed).  That did not happen this year, so Gail Chang Bohr and Howard Orenstein are squaring off for a single seat on the Ramsey County bench.

I have read some profiles and examined the candidates’ campaign materials, and from my perspective we cannot go wrong.  Bohr’s web site and Orenstein’s web site make it clear that while the candidates come from vastly different legal backgrounds, both are qualified and would bring much (but different things) to the judiciary.

Last week, the Pioneer Press published a nicely done profile on the candidates, and what struck me in the piece and in the candidates’ campaign materials is the degree to which both have taken the high road, a welcome respite from the nastiness that has permeated the U.S. Senate race and some of the presidential race.

In my mind, this race has alleviated fears from the fallout of the decision in Republican Party v. White, where in 2002 the United States Supreme Court wielded the First Amendment to invalidate a Minnesota rule that kept judicial candidates from stating their views.  As Justice Scalia made clear in his classic, hard-to-disagree-with style, Minnesota is free to keep electing judges, but it may not keep candidates “from discussing what the elections are about.”

Things could get nasty in the future, of course, and an attempt is under way to get rid of judicial elections as we know them.  For now, let’s hope that others follow the lead of (Judge?) Bohr and (Judge?) Orenstein.

Free Elections and (Sort Of) Free Speech

November 2, 2008

Think free elections leave room for absolute freedom of speech in Minnesota?  Think again.

Yesterday I mentioned Chapter 211B of Minnesota Statutes and encouraged anyone who cares about free speech to take a look.  A look will reveal that the statutes, most of which date to 1988, impose a variety of restrictions on who can say what in various “campaign materials.”  Dear blog reader, the statutes are in dire need of a tuneup.  Read on.

The very first section of Chapter 211B contains a definition that is oh so, well, 1988.  The section defines “campaign material” as “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by the news media.”  So the restrictions apply to yard signs, brochures, direct mailings, podcasts, and probably my blog and others with a thousand times more readers, but not the Duluth News Tribune or KARE-TV.

Another stale exception is in section 211B.06, which makes it a crime to intentionally prepare or disseminate campaign materials known to be false unless you happen to be a “person or organization whose sole act is, in the normal course of their business, the printing, manufacturing, or dissemination of the false information.”  Printing?  Really?

And then there’s this one, in section 211B.11: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”  My guess is that the violators will number in the thousands on Tuesday.  Maybe the tens of thousands.  Break out the bread and water, because according to section 211B.16:  “A county attorney may prosecute any violation of this chapter.”

Just last year the Minnesota Court of Appeals upheld parts of Chapter 211B under the First Amendment on the theory that, in the court’s words, “the liberty of speech is not an absolute right” and that “a state’s police power permits a state to punish an abuse of the freedom of speech.”  The authority for those statements was the landmark case of Near v. Minnesota, one of the most important free-speech cases from all time.  Trouble is, the case is a landmark because it marked the first time ever that the United States Supreme Court struck down a state law — a Minnesota law — that restricted speech.

Near v. Minnesota does not provide support for a law that makes it a crime to wear a button at a polling place.  Anything but.  And it is time for the Minnesota Legislature to recognize that voters are not reliant on Big Media anymore.

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election.  But after that, the City of St. Paul could order that the come down.  (Photo by Steven P. Aggergaard)

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election. But after that, the City of St. Paul could order that they come down. (Photo by Steven P. Aggergaard)

Strib In The Middle

November 1, 2008

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.