Archive for the 'Uncategorized' Category

Facebook sends a Minneapolis reminder that it’s not a forum for free speech

June 16, 2013

The Associated Press’ recent story that a former Nazi commander has been living in Northeast Minneapolis has had a surprising and perhaps ironic consequence:  a reminder that Facebook is not a forum for free speech.

The Facebook page in question is Old Minneapolis, which features photographs of, well, old Minneapolis.  Its operator, Jesse Jamison, reports Facebook shut him down for 12 hours this weekend after he reposted information including a photograph from WCCO-TV identifying the location of the alleged Nazi commander’s Northeast Minneapolis home.

In Jamison’s words, complaints to Facebook were “flooding in,” and Facebook responded by banning the page for a half-day and sending this message referring him to Facebook’s “Community Standards”:


Here are the Community Standards.  It’s unclear which could have been violated. Was the reposting from mainstream media somehow a “threat” as defined by Facebook, or maybe a publication of “personal information of others without their consent”?  Could Facebook really characterize publication of information regarding an alleged Nazi’s home as “hate speech”?

The incident is a graphic reminder that while Facebook comes free of charge, it is not a public forum for freedom-of-speech purposes.  Because Facebook is privately owned, it is not a “state actor” for First Amendment purposes and the operators can ban whomever they want for whatever reason they want.


Indeed, Jamison also writes a Facebook user “was also blocked just for defending the page, and he didn’t use strong or threatening language.  The person that reported him has been banned permanently, and so have a few others that were using threatening language.”


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.

10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

Don’t plan to sue your computer consultant

September 13, 2012

If a computer consultant messes up your website, can you sue him or her?  It will be difficult to do so in Minnesota, it appears.

In a case that hasn’t gotten much attention, a federal judge in Minnesota ruled this month that state law does not provide a cause of action for computer-consultant “malpractice.”  The judge’s reasoning was that computer consultants are not “professionals” on par with lawyers, doctors, and others who have a “heightened standard of care” and therefore can get sued for malpractice.

The case involved a Michigan law firm that hired Thompson-Reuters’ Minnesota-based West Publishing arm to develop and design a website.  Something went wrong, and hundreds of emails did not end up getting forwarded.  The law firm claimed that negligence caused hundreds of thousands of dollars in lost business.

But Judge John Tunheim ruled that even if that was true, Minnesota—like Wisconsin and a few others states—did not provide a cause of action for computer-consultant “malpractice.”

I am not sure I agree with such rulings.  People hire web designers and other computer consultants because they do not know how to work the web themselves.  Such “consultants” do, in fact, have specialized knowledge, and arguably should be held to heightened standards.  Stay tuned as the law evolves on this one …

Shakopee bar owner prevails in bout against UFC

August 17, 2012

A federal judge ruled this week that a Shakopee bar owner could not be personally liable for allegedly showing an Ultimate Fighting Championship bout in his establishment.

The fight, between Quinton “Rampage” Jackson and Keith Jardine, took place back in 2009, but it took until this past Tuesday for the personal-liability issue to work its way through federal court.

Judge Richard H. Kyle ruled that the pay-per-view broadcast’s owner, Joe Hand Promotions, Inc., had not demonstrated that there was “no distinction” between the corporate entity of Kelley’s Bar and the entity’s owner.

Score one for the little guy.  And it’s no small thing.  As Bloomberg News explains, hundreds of such lawsuits are filed each year:

The companies send investigators into bars and restaurants the night of an event to gather photographic or video evidence that the establishment showed it without paying the fee.

The price for watching a pay-per-view boxing event at home might be $50, while businesses typically pay $1,500 to $3,000 or more depending on the size of the venue, said Joseph Gagliardi, president of J&J Sports Productions Inc., which promotes boxing matches.

Showing a boxing match, soccer game or mixed martial arts event without paying the commercial fee could potentially result in a bar or restaurant owner getting hit with a $260,000 bill.

Town with 39 people can ban all businesses, including “adult” ones

August 6, 2012

The latest installment in Minnesota governmental attempts to ban “adult” businesses brings us to the tiny hamlet of Florence, Minnesota, population 39, which has successfully banned all businesses — including adult ones — from its two-tenths of a square mile.

At issue was an establishment called the “Juice Bar,” which shut down after the owner was threatened with criminal prosecution.  The owner sued and claimed the the city could not ban all businesses consistent with the First Amendment.  The theory was that banning businsses left no room for constitutionally protected “adult” communication.

The city contended that the effort to maintain “entirely residential” property was valid because of its interest in staying small and not having much infrastructure.  Last week, federal judge Donovan Frank agreed, stating:

The City has the power to enact its own ordinances and its decision to be zoned entirely residential is unrelated to the suppression of free expression; the incidental restriction on any First Amendment freedoms resulting from the zoning ordinances is no greater than necessary to the furtherance of those interests.

Federal judge says “no go” to East Grand Forks’ attempt to regulate adult media

August 1, 2012

Much of the law that protects the media comes from the world of adult media, and a dispute over an “adult” business ordinance in East Grand Forks, Minn., provides the latest chapter.

Last week, a federal judge took the fairly unusual step of enjoining the city from enforcing an ordinance against “Fantasysrus” because the ordinance potentially infringes on First Amendment rights. 

Judge John Tunheim ruled that the ordinance was too vague to be enforced because it did not define “adult uses” and permitted arbitrary enforcement.  As the judge explained:

The East Grand Forks city ordinance does not define “sexually oriented” and provides no guidance as to how much of the merchandise or activity must be sexually explicit or an “adult use” to trigger the ordinance. Consequently, an art gallery with some paintings of nudes, a dance studio that teaches belly dancing, a sauna that allowed nudity at certain times, or a bookstore selling Fifty Shades of Gray could be “sexually oriented” or not, depending on the discretion of the city official.

Judge Tunheim also ruled that because the ordinance provided no framework for differentiating between a “sexually oriented store” and a “sexually oriented bookshop,” the city got too much discretion over who could operate a business and who could not.

The decision is yet another reminder that the government has limited power to restrict not only the freedom of expression, but the freedom to purchase others’ expression—even when the expression has more to do with what goes on behind closed doors.

Minnesota Election Law, Meet First Amendment

September 30, 2008

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

August 23, 2008

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.