Archive for the 'Minnesota Media' Category

MPR: Minnesotans are part of the copyright controversy over lawsuits alleging illegal porn downloads

May 20, 2013

Minnesota Public Radio’s Martin Moylan has a nicely done piece involving tactics that porn companies and their lawyers are using to combat what they see as copyright violations involving downloads.

Similar efforts exist involving owners of stock photos who, for example, sue mom-and-pop businesspeople over photographs that web-site builders used without the owner’s consent.  I’ve represented one such Minnesota business, and there are many more who need help.

The statutes authorizing lawsuits over such alleged illegalities typically have attorneys’ fees provisions in them, so such litigation can be attractive to lawyers.  The potential defendants in a tough spot:  pay up a settlement, or pay a lawyer to try to defend the case.


$1 million defamation verdict against KSTP called state’s largest ever

November 8, 2011

The Star Tribune reported today that a a Dakota County jury has returned a $1 million defamation verdict against KSTP-TV for stories it aired about a holistic healer.  The newspaper reports that the jury found the broadcaster had acted with “actual malice.”  Actual malice is generally synonymous with recklessly disregarding the truth.

It is believed to be the largest defamation verdict in Minnesota.  The largest of which I had been aware was a $676,000 verdict against the Duluth News-Tribune, which was upheld on appeal in 1994.

Says the Strib: Pay up

October 31, 2011

With the end of October comes the end of free online access to the Star Tribune.  Tomorrow begins a test of whether Minnesotans are in the mood to pay news contained in the state’s largest newspaper.

Well, that’s a bit of a misnomer.  No one can be asked “pay for news” because no one “owns” the news.  Copyright law protects only the way the news is written and otherwise presented.  No one can own facts.  Still, the Strib most certainly owns the way it writes about and presents the facts.

It will be interesting to see what, if any, effect the subscription arrangement has on websites such as, which provides hyperlinks to full stories in media across Minnesota.  Also, bloggers who cut and paste Strib content word-for-word into their blogs could face increased scrutiny and potential legal liability.

But arguably, it’s time for a generation of news consumers who have grown up assuming news is “free” to learn a hard reality:  gathering and presenting the news takes time, and effort, and talent.  And people who work in the news biz deserve and need to be compensated for their efforts.

Chris Cook’s name was mud from the start

October 26, 2011

Vikings cornerback Chris Cook has now been charged with felony domestic assault.  Without question, the charges are chilling and disturbing.  But they are just that, of course.  Charges.  Cook has yet to be tried, and on paper he’s innocent until proven guilty.

But in the paper — in the newspaper — innocence is lost when the suspect happens to be famous.

For example, over the weekend, a Star Tribune blog readily identified Cook by name as he sat in jail, waiting to be charged with assaulting his girlfriend.  Yet in a story from May, the Star Tribune did not identify two men arrested and accused of randomly robbing and beating pedestrians in Minneapolis’ Uptown neighborhood.  Here was the newspaper’s explanation:  “The Star Tribune generally does not name suspects until they are charged.”

Wow.  The “general” rule, of course, does not apply when the arrested prisoner is famous.  As for the not-so-famous, even those accused of random attacks, well, um, they deserve, ah …

To be fair, the Star Tribune was far from alone in muddying Cook’s name over the weekend.  The facts of his arrest and jailing were true.  Of course the facts were news.  And unquestionably the media had a right to do exactly what they did.  In the 1989 case of Florida Star v. B.J.F., the United States Supreme Court made it clear that when the news media obtain truthful news (in that case, the name of a rape victim), they have a First Amendment right to publish it free from governmental interference.

I’m the first to support the rights of journalists to make news decisions and to exercise discretion about when to name criminal suspects and when not to do so.  It’s their job.  But the over-the-weekend Cook stories are just the latest chapter in what is a difficult, inconsistent area for the news media to navigate.

A shoot-to-kill “good Samaritan”?

October 23, 2011

The Pioneer Press is citing Minnesota’s “good Samaritan law” in its story about the still-unnamed guy who chased down an apparent armed robber and shot him dead in south Minneapolis Friday night.  The Strib also is  describing the shooter as a “good Samaritan” and is quoting a source who says the fatal shooting likely was legally justified.

Not so fast.

As the Minnesota Court of Appeals explained in a 2002 decision, the purpose of Minnesota’s good Samaritan law “is to encourage laypersons to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of an attempt to assist a person in peril.”

Is an armed robber’s victim “in peril” when — as here — the mugger flees the scene?  Likely, no.  Plus, the law does not shield a gunman from criminal liability.  Further, Minnesota’s good Sam law, like all others, is intended to protect us against getting sued for not giving CPR properly or getting in an accident while driving an injured child to the hospital.  I’m not aware of anything to suggest it was intended to shield a gunman from liability for chasing down and killing an apparent armed robber who was fleeing the scene of the crime.

The newspapers suggest that because the “good Samaritan” had a handgun permit, different rules apply.  They don’t.  The Minnesota “Personal Protection Act”  is not a license to use deadly force to protect or recover personal property such as a purse—let alone someone else’s. The Star Tribune quotes a firearms trainer and vice president of the Gun Owners Civil Rights Alliance who claims Minnesotans are “completely justified in shooting” if they give chase and the confrontation turned violent.  But arguably, such a “good Samaritan” who chases an armed robber knows the confrontation could turn violent and knowingly and voluntarily put himself in a situation where self-defense might very well be necessary.

All this being said, judging from commenters to the newspapers’ stories, many Minnesotans would find the killing justified, and as is typical a grand jury probably will decide whether the “good Samaritan” should be charged.   He very well might not be, and even if he is he might very well be acquitted.  But despite the newspaper reports, the gunman does not really fit the legal definition of “good Samaritan.”

Ely newspaper benefiting from judge’s “clear material error”

October 22, 2011

The Timberjay, a scrappy newspaper in Ely, is tussling to obtain documents related to school-construction projects in environmentally-aware northeastern Minnesota.  The paper’s target is Johnson Controls, a conglomerate that contracted to build two schools in the far-flung St. Louis County school district, Minnesota’s largest (geographically speaking).

The newspaper seeks a copy of a subcontract Johnson Controls made with Architectural Resources, Inc., a northeastern Minnesota architectural and engineering firm.  State documents suggest the Timberjay wants information about how much it will cost to operate water towers and water treatment facilities related to the new schools.

Johnson Controls refused to turn over the documents, claiming  Minnesota’s open-records law did not require disclosure.  Last month, an administrative law judge agreed and dismissed the Timberjay’s lawsuit.  But earlier this month, a chief administrative law judge reversed the ruling, characterizing it as a “clear material error” on the judge’s part.

The key issue is whether Johnson Controls performed a “government function” for the school district.  If so, it needs to turn over the documents so the newspaper can write about what it will cost taxpayers to operate the schools.

The latest ruling went the newspaper’s way, and the Duluth News Tribune reported today that a hearing is forthcoming because the  chief judge rejected an appeal.  Timberjay publisher and editor Marshall Helmberger said he fears Johnson Controls is trying to run up legal bills, while Johnson Controls told the newspaper it is simply trying to protect its subcontractor’s “confidential and propriety information.”

Both sides have good arguments, but it’s hard to argue that citizens don’t have a right to know what it will cost to operate their schools.

“Press” vs. Public: Does It Matter? Yes, In The Minnesota House

March 18, 2009

A showdown is brewing between the Minnesota House of Representatives and nontraditional media regarding who gets to record House proceedings.  And if this goes to court, the case could be groundbreaking for helping to determine who is the “press” and who is the “public,” and does it (or should it) really matter anymore?

Here’s the deal.  The House is assigning authority to its “Sergeant At Arms” to determine who gets to make audio and video recordings anywhere our elected House members do “business.”  This would include not only the House chamber, but also committee rooms, and arguably, I would think, “press conferences” and anyplace an elected House member shows her or his face.

A copy of the “application” is here.  Predicably, it requires applicants to identify their employer, whether they’re a member of a recognized journalism group or association, and the “long-term nature of your assignment.”  In other words, it licenses existing and largely “mainstream” media.  Also, stunningly, it imposes a prior restraint by banning applicants from “videotaping audience members.”

The reason behind all this?  For the “safety and security of all.”  Really?  How in the world does restricting audio and video recordings in a publicly accessible place affect safety and security?

The current and evolving generation of citizens journalists are understandably going nuts over this.  My buddy Jason Barnett at The UpTake is helping to lead the charge.  He talked about it on Channel 4 recently, but at a time when most Minnesotans are either in church, at brunch, or sleeping in.  (Channel 4 video here.)

Consume The UpTake’s coverage and read their take on the issue here.  They’re right on point.

So what precisely are our elected representatives scared of?  It is not at all clear, and the purported concerns over “safety” and “security” are wholly speculative.  Warning: Time and time again, courts have invalidated laws based on speculative fears when, as here, freedom of expression is at issue.

This appears to be yet another attempt by Minnesota officials to restrain expression in the name of keeping order and upholding morals.  These were the reasons behind our Legislature’s nineteenth century ban on newspapers publishing true details of public executions, its World War I-era laws targeted at anti-war protesters, and the horrible Public Nuisance Law of 1925 that authorized the state to shut down “nuisance” newspapers.  Amazingly, it was the Public Nuisance Law and the Minnesota Supreme Court’s refusal to invalidate it that finally led the United States Supreme Court to say in Near v. Minnesota that enough was enough, that the First Amendment applied not only to the federal government but also to the states.

Think our state is a place where everyone is above average when it comes to free expression?  Think again.  Near v. Minnesota is the reason why we have freedom of expression (not just freedom of the press) from coast to coast.  In the words of a Lutheran confirmation student, this is most certainly true.

Is Minnesota on the cusp of another legal revolution, one that would be expensive for state taxpayers?  Stay tuned.

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.

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.

Expect To See Exit Pollsters

October 31, 2008

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.