Former Blog

This is Round Two of Media Law Minnesota.  For ten months, I maintained a blog of the same name at Blogger but had to delete it when I began working in the federal courts system.  I am no longer with the courts, so the blog is back.

Round One had more than sixty posts in all.  Because I deleted the blog, I am not sure how to import the posts into the archives here.  So for history’s sake, the posts are pasted below.

Sunday, April 15, 2007

When News Hits Home

On Tuesday, the fairly large Minneapolis law firm where I work, Rider Bennett, announced it would be dissolving May 31, 2007. I am among the 91 attorneys whom the local media have identified as looking for jobs. The news hit home, rapidly. And for reasons discussed below, for a moment this morning the fallout had me thinking contrary to my free Internet speech instincts. But then I wised up.

First, a couple details. At around 8:30 a.m. Tuesday, the law firm’s partners voted to disband, and the rest of us learned the news during a firmwide meeting around 9. Forty-seven minutes after I returned to my office, I got my first call from a headhunter. [For the record, I did not return it.] In between the calls I made and the e-mails I sent to family and friends, I received a few calls and messages from lawyer friends who learned the news through word of mouth. And once the Strib and Pioneer Press posted the news, I was flooded from lawyers and nonlawyers alike. The response was awesome — both in terms of support, and in recognition of the split-second media landscape we now live in.

MSM was good to us — and, by extension, was fair to me — by pretty accurately explaining how and why Minnesota’s 10th largest law firm is going under. But then this morning I finally got around to reading the lone reader’s comment to the Pioneer Press’ story on The comment was in response to a quote from a former Rider Bennett lawyer who equated my firm to the New French Cafe. The reader’s response was:

After reading the article about the demise of poor old Rider Bennet [sic] I am reminded of a joke my father used to love to tell. “What do you call a 100 lawyers at the bottom of the ocean”? ANSWER = “a GOOD START” !!! I also loved the one “Cake Eaters” comment when he compared it to losing the New French Cafe. Given that analogy Pal did you ever think that might be one of the many reasons your firm is going out of business? How about a reality check. Their closing will have about as much affect [sic] as an ant laying on its back on a maple leaf floating down the river on a hot summer day bellowing “raise the Draw Bridges…another exercise in futility.

For a moment this morning, I thought about clicking on the “Report as Violation” link, and about other ways to get that comment taken down. But then I realized, hey, it’s free speech, and this clown can say whatever he wants. And so can I. So …

For me, the above-urged “reality check” is very real, and the effect affects me significantly. Rider Bennett was, and is, a superb place, filled with 91 lawyers but many more nonlawyers who soon will not work there anymore. This is not a joke, for them or for me. The nonlawyers include paralegals, assistants formerly known as secretaries, computer techies, marketing people, librarians, copy center contractors, and the hard-working folks who made the office sparkle. And, for the record, when a law firm partnership goes away, there is no health care available under COBRA.

There, I said it. Because I can.

Posted by Steven P. Aggergaard at 9:49 AM 3 comments    

Labels: Etc., Media Ethics, Minnesota Law, Minnesota Media

Saturday, April 07, 2007

Not Naming the Victim

Word comes this morning that three University of Minnesota football players were arrested Friday for allegedly raping an 18-year-old woman. As is the custom, the news media have named those accused, but not the accuser. The Star Tribune did it, and so did The latter online news outlet also published photographs of the three accused players — ages 20, 20, and 19 — side by side. All three are smiling; two are in suits, the other in a jersey. Ouch. And, once again, racial stereotypes risk being furthered.

When and whether to identify people charged with crimes is, I think, the most important issue that mainstream media faces. This is particularly and painfully true where, as here, (1) the accused are, for good or for bad, in the public limelight, and (2) the suspected crime is rape, which traditionally the news media have treated differently as to when and whether to name the victim. The months-old rape case involving Duke University lacrosse players was evidence of that.

While the media treat rape differently, the courts do not — or cannot. In 1989, in Florida v. B.J.F., the United States Supreme Court held that Florida violated the First Amendment by enforcing a law punishing the news media for publishing rape victims’ names. So nothing prevents the Strib and Pio Press from naming the victim. They choose not to.

That makes some sense, although not everyone agrees. In 1989, when I was cutting my teeth as a cub reporter at a small daily paper in Iowa, the editor of the state’s Big Paper, the Des Moines Register, wrote an editor urging women who are rape victims to come forward. One did. The Register wrote about her and won a Pulitzer Prize, and the victim was the subject of a made-for-TV movie. [Details here.]

As for naming the accused, when I was at the Pioneer Press, it was editor Walker Lundy’s policy that we would identify arrested people by name no matter what, no exceptions. I wasn’t overjoyed with the policy, but it was better than the Star Tribune’s at time time, which was to not name people arrested but not charged — except when they didn’t, i.e. when people in the public limelight were arrested.

I’m not advocating for any news outlet to identify rape victims by name. Nor am I suggesting it’s not news when people in the public eye commit crimes. What the media need to do is aggressively and immediately investigate stories like this on their own, without taking the cops’ and prosecutors’ comments hook, line, and sinker. A victim does not need to be named for this to happen, and her — or his — privacy needs to be protected at all costs. But once mainstream media opens the door by suggesting that three young men have broken the law in a very serious way, MSM has an obligation to follow through, carefully and thoroughly. Let’s see what happens.

Posted by Steven P. Aggergaard at 7:35 AM 0 comments    

Labels: Media Ethics, Media Law, Minnesota Media

Thursday, April 05, 2007

End of the Road for Photo Cop

Well, this afternoon the Minnesota Supreme Court resolved the Minneapolis “photo cop” controversy — 100 percent correctly, in my estimation. [Read the decision here.] The state’s highest court held that the Minneapolis ordinance that effectively required vehicle owners to prove they weren’t guilty of driving a car that was photographed running a red light cannot stand. It’s dead. I don’t see how it can be appealed to the United States Supreme Court. I’ve blogged about the case previously, here.

The crux of the court’s decision is that a city cannot trump state law when it comes to traffic laws. The theory is that a dad from Dilworth who brought a minivan full of kids to a Twins game should not be subjected to one traffic law in Minneapolis and another in Moorhead. Makes sense.

But in addition, as I’ve blogged about previously, there are serious constitutional concerns here becaues the Minneapolis ordinance effectively required a vehicle owner to prove that he was innocent. This was becuase the Minneapolis ordinance presumed that the owner of the vehicle that was photographed blowing a red light was its driver. Although the supreme court’s decision was not premised on the constitutional concerns, the unanimous decision suggested the concerns were relevant. As the court stated, the “problem with the presumption … is that it eliminates the presumption of innocence and shifts the burden of proof.” Exactly!

It is true that a photo cop violator was guilty only of a petty misdemeanor, and that you can’t go to a jail for a petty misdemeanor, and that therefore there is some doubt about whether a petty misdemeanor is a “crime” requiring the state to provide guilt beyond a reasonable doubt. But as the court observed, “the rules of criminal procedure specifically apply to petty misdemeanors.” Yup.

By the way, I think today’s decision implicity overrules the court of appeals decision I blogged about here where the court of appeals determined that it’s constitutional to presume that a vehicle owner is guilty for disobeying a school bus stop signal without holding a trial, even if the owner was not the one driving the car.

Posted by Steven P. Aggergaard at 1:35 PM 2 comments    

Friday, March 30, 2007

Absolutely Important

The Minnesota Supreme Court issued a highly important decision on defamation law yesterday, one in a series of decisions that Minnesota courts have issued in recent months related to “privileges” that shield speakers from being sued. In yesterday’s case, the court held that affidavits prepared as part of lawsuits are “absolutely privileged” communications that make the speaker immune from any defamation lawsuit. Although the court attempted to limit the decision to the specifics of the case, the decision likely will have significant ramifications outside the specific situation.

Here was the situation: A law firm secretary signed an affidavit — a written, signed, and notarized statement that often is equated with sworn testimony given from a witness stand — regarding allegedly “improper and possibly illegal conduct” at a law firm. The law firm sued her, alleging invasion of privacy as well as that she breached client and firm confidences and her fiduciary duty to the law firm. The court of appeals held that the statements in the affidavit were absolutely privileged, and cited a 1954 case involving in-court testimony for support.

The Minnesota Supreme Court agreed with the court of appeals, and not only breathed life into the 1954 case but extended its scope significantly. In the 53-year-old case, the court held that a witness could not be sued for making statements in court. That makes tons of sense, since witnesses wouldn’t tell the truth if they feared being sued. In yesterday’s case, though, the statements came outside the courtroom, and in fact the affidavit was drafted by a lawyer, not by the legal secretary who actually signed the document. In addition, even though the secretary was not being sued for defamation, the court concluded that the claims “are in essence defamation claims” protected by absolute privilege.

I had blogged here about another absolute privilege case where the speaker lost, and there have been several other cases in recent years addressing defamation privilege issues. But the question answered here had been lingering. And while it’s probably a much bigger deal for lawyers who every day rely on affidavits as part of their practice, it’s reasonable to conclude that the decision is a “win” for those who value free speech in general.

Posted by Steven P. Aggergaard at 7:55 AM 0 comments    

Labels: Defamation, Minnesota Law

Wednesday, March 21, 2007

Computers Aren’t Telephones

Today the Eighth Circuit Court of Appeals released an extremely important and much-awaited decision involving the State of Minnesota’s efforts to regulate VoIP, or Voice over Internet Protocol, which lets entities such as Vonage use the Internet for long-distance calling. Read the decision here.

The bottom line is that the court essentially agreed with the FCC that VoIP is not telecommunication — for purposes of state regulation, anyway. One consequence is that for good or for bad, Vonage and similar VoIP providers can’t be forced to find a way to pinpoint the geographic source of calls for emergency 911 purposes. A bad consequence? It remains to be seen.

The Eighth Circuit’s decision will have nationwide, and perhaps worldwide, effect. The State of Minnesota could appeal this to the United States Supreme Court, but given that court’s general deference to appeals courts in cases of this type, success in Washington seems unlikely. As it stands, government has failed yet again to regulate the Internet.

Posted by Steven P. Aggergaard at 3:30 PM 0 comments    

Labels: Federal Law, Internet Law, Minnesota Law

Sunday, March 18, 2007

Got Iowa Beef? Could Be Trouble With a Capital T, and That Rhymes with D, and That Stands for Defamation

Minnesota online communicators aiming critical comments south of the state border better be careful. A week ago, the Iowa Supreme Court did something Minnesota has not done to this degree — it recognized that a person my sue for defamation even if the printed words are true.

Generally, truth is the ultimate defense to defamation. Not so in Iowa. In the case, available here, the Iowa court adopted the concept of “defamation by implication,” which permits a plaintiff to allege that facts, while true, were “juxtaposed” in a way that would lead a reader to believe they were false, or to allege that key facts were left out of the communication. And what’s particularly irksome about this case is that the plaintiff was a newspaper columnist, who by definition is in the business of doling out criticism.

Here’s what happened: The columnist, a part-timer, was unhappy about how editors were handling a column. He resigned and asked to write a farewell piece, where he was critical of the newspaper. The sports editor published her own column alongside the part-timer’s, where she stated that the columnist rarely attended events described in his column. The part-timer admitted this, but sued while pointing out that “professional standards” did not require a columnist to attend such events. The Iowa Supreme Court held that the case can go forward, even though the statement about rarely attending events was “literally true.”

In its published decision, the Iowa court looked north to Minnesota, which the court acknowledged has not adopted such a sweeping view of defamation by implication. Of note for online communicators is a 2002 Minnesota Court of Appeals decision (which the Iowans did not cite) where the court rejected defamation by impliation regarding Internet postings. In that case, available here, the court characterized the postings as “part of a continuing on-line dialogue” about a matter of public concern, and further stated that “[d]iscussion of matters in the public interest and involving public persons justifies robust, and sometimes even caustic, debate. ” That makes sense.

Can the Iowa situation be distinguished because a part-time columnist’s doings are not matters of public concern? Sure. But the trouble is, he was a columnist, who voluntarily subjected himself to criticism. If you can’t stand the heat, well, you know.

As for the legal ramifications, Minnesotans will be wise to be cautious about sending criticial communications into the Hawkeye State. And if you’re looking to sue for defamation by implication, why not give Iowa a try?

Posted by Steven P. Aggergaard at 7:57 AM 0 comments    

Labels: Defamation, Minnesota Law

Saturday, March 17, 2007

Greed Bleeds

As someone who values free speech and loves vigorous debate, I think web discussion boards are great. is my favorite. It’s moderated, yes, but I’ve never had a post turned down. I don’t post to MNSpeak anonymously, but I admit that anonymity has its place because, let’s face it, lots of people will freely speak their mind only if their identities are not known. Besides, some people’s online handles are super-creative.

The First Amendment protects anonymous speech. But when does anonymous online speech cross the line? Consider the following exchange last Wednesday morning between “caditasamita” and “NoSuits,” cut and pasted from the Greedy Minnesota Associates web board where, you guessed it, greedy Minnesota associate attorneys ooze gossip, vent frustrations, say “I’ll show you my salary if you show me yours,” etc. [Note to nonlawyers: “in-house” refers to an attorney who works in and for a corporation who often hires law firms to litigate cases and do specialized projects.]

caditasamita [7:21 am]: after perusing this message board for a few minutes, i just want to comment on this “poor me” attitude. i have NO sympathy for you. i am a single parent (still such) who got out of law school before any “family friendly” incentives were even an issue, so i was forced to work on contract basis. now, i cannot get a “real” job. and don’t even respond that i am any less qualified than all of you. i am the one who gets called in to fix your mistakes, sometimes spending endless hours convincing you the RIGHT way to do something…then sit back and smile sweetly as you all take the credit. (HA, just like the partners do to you!) THE REAL PROBLEM is the pay rate for contract workers has not gone up at all. I lived in CA for a few years, only to return here and be cited with the SAME rate as before I left. This is while statistics recently cited that it is a multi-million dollar sub-industry to use contract workers because the firms bill us out at YOUR frickin rates! (par example, & only using simple round figues: if worker gets $25/hour, agency bills firm at $50/hour, firm bills client at $100/hr). BTW diversity? give me as break! It’s Minnesota, old white men rule the world here!

NoSuits [7:35 am]: Well, there’s always WalMart, if the legal biz is too tough or too unfair for you.

caditasamita [9:16 am]: you sound like one of those typical self-important nobheads (sans the nob, which is probably why you are such a jackass) that do such incompetent work in the first place that your firm then has to call in contract attorneys (like me) to fix.

NoSuits [9:35 am]: No, no sweetie. I’m in-house, so we rely on people like you to work weekends, late nights, etc. to do your job, so we can leave at a reasonable hour and take real vacations. The fact you can’t find a gig that pays more $25/hour is probably less a reflection of firm politics and biases than your own self-pity. Now, be a dear, and finish detailing my car.

caditasamita [9:59 am]: NoSuit: in-house…now it all makes sense. you feel the compulsion to criticize others who have a valid family situation, rather than lack of intellect to hold them back. HA HA HA! i never met an intelligent in-house attorney & thanks to you, that record is fully intact…corroborated by your inability to read & comprehend words properly. do you have hand to eye coordination issues to complement your eye to brain deficiencies? I used the $100/hour formula for simpletons (such as yourself) who cannot handle math. the $25/hr is not what i make…although it is apparently what new upstarts out of school (or retirees) make doing doc review. your car is the most important thing to you? HA HA HA! i could have guessed that one! of course, this ALSO sufficiently corroborates my “no nob” observation! go back to stroking your… all day.

Well, this makes for fun reading, until you stop and think that actual human beings put fingers to keyboard here. Other than realizing that lawyers are good at finding creative ways to attack each other [“there’s always WalMart,” “self-important nobheads (sans the nob, which is probably why you are such a jackass)”], what practical stuff have I learned about practicing law in Minnesota? Not much. Too bad. Plus, if the lawyers here had used their names, there might be some defamation going on.

Anonymous online exchanges have their places, but when posters type from the hip, who wins?

Posted by Steven P. Aggergaard at 7:56 AM 0 comments    

Labels: First Amendment, Internet Law, Media Ethics, Minnesota Media

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Saturday, March 10, 2007

Shooting From the Hip

The federal appeals court in Washington, D.C., which usually regarded as the second-most-influential court behind the United States Supreme Court, fired a constitutional law missile yesterday by ruling that the Second Amendment to the United States Constitution provides for an individual right to possess a handgun. In doing so, the court diverged from a majority of courts — including the Minnesota Supreme Court — that have ruled the other way.

The federal appeals court cited the Minnesota case in yesterday’s opinion. The case dates to 1980 when a law-abiding citizen challenged a state law requiring applicants who want to carry a pistol in public to demonstrate a “personal safety hazard.” The Minnesota Supreme Court rejected the challenge, and observed that while the denied applicant had not squarely presented the case as one involving the Second Amendment, the amendment nevertheless “protects not an individual right but a collective right, in the people as the group, to serve as militia.” Trouble is, the case most likely is a nullity because the permit law at issue was repealed in 2003, and the so-called Conceal-and-Carry law is now in effect.

Anyway, the case decided yesterday is huge. The key issue is whether the Second Amendment is geared only toward ensuring that a militia, i.e. the National Guard, is well-armed, or whether individuals have rights to bear arms too. Among the 13 federal appeals courts, only the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, has joined the D.C. Circuit in embracing the “individual rights” view. Among the state courts, nine others have joined the Minnesota Supreme Corut in adopting the “collective rights” view, and seven have gone the other way.

As Tony Mauro of the Legal Times writes on, the case most likely will end up in the United States Supreme Court. And well it should. I’ve done some reading on the issue, but not a lot, and personally I lean pretty heavily toward the “collective rights” interpretation.

But I have to admit, the D.C. ordinance struck down needed to be struck down because it prevented almost anyone from having a loaded gun in their home for self-defense purposes. From my perspective, though, there was a better way for this ordinance to be eradicated. The real issue is not guns, possession of which is not a fundamental right. The real issue is self-protection, which is not only a fundamental right but a natural right. This is particularly true inside the home, the person’s “castle.”

A better constitutional case would have been to tee this up as a matter involving equal protection, which would have required the District of Columbia to prove that the only way to eradicate gun violence in public was to ban people from having loaded guns in private. And on those grounds, D.C. would have failed and the ordinance would have been invalidated without need for the D.C. Circuit to issue the opinion that it did.

Posted by Steven P. Aggergaard at 7:40 AM 0 comments    

Labels: Constitutional Law, Minnesota Law

Saturday, March 03, 2007

If You Can’t Beat ‘Em, Join ‘Em

The Minnesota media-law news has been a little slow lately, so I went trolling through some Minnesota newspapers to see what’s up and stumbled across Jay Furst’s blog at the Rochester Post-Bulletin. Jay is managing editor at southeastern Minnesota’s largest newspaper. Has been for several years, I believe. I worked with him years ago at the Duluth News Tribune, and remember him to be a nice enough guy.

Anyway, Jay’s blog is an appealing hodgepodge of verbatim e-mails from newspaper readers, Jay’s own quips, his descriptions of inside-the-newsroom doings, his mea culpas over unfortunate ad placements and missed stories, and the like. I like it. I’ll be back. And I don’t live in Rochester, though I hear it’s beautiful this time of year.

Jay’s blog is precisely the sort of thing Mainstream Media needs to be doing to (re)gain readers, but also readers’ trust. The transparency is refreshing. Give-and-take is precisely what today’s news consumers expect, because today’s readers are also writers, and IM-ers, and podcasters, and cell-phone photographers. What a great time to be involved in the media!

As the media marketplace continues to evolve, I am quite sure that journalists who are willing to make their readers part of the public dialog will persevere, and will keep making a living wage. At least I hope so.

Posted by Steven P. Aggergaard at 6:58 PM 0 comments    

Labels: Minnesota Media

Friday, February 16, 2007

Mankato Paper Loses Round One

The Reporters Committee for Freedom of the Press web site is reporting that a district judge has ordered the Mankato Free Press to turn over notes from a telephone interview from a man who killed himself during a police standoff. I blogged about this case previously in the shield law context (below), and acknowledged that I’m among the few journalist types who aren’t gung-ho about shield laws.

That issue aside, this case could go bad.

I haven’t seen the judge’s order yet, but based on the RCFP’s report, the court’s ruling is troublesome. According to the judge: “It is both just and right to compel The Free Press and its reporters to divulge all information regarding the conversation(s) they had with Skjervold. Only then can the unfortunate and traumatic events leading up to the death of Skjervold by his own hand be fully understood.” Apparently, the judge stated that “it is safe to infer that the call exacerbated Skjervold’s mental state which in turn contributed to taking his own life.”

Holy mackeral! Could blame for the death of a man who initiated an armed standoff actually be placed on a newspaper? The Free Press’ lawyer, Mark Anfinson, identified the judge’s comment as “an ominous development” because it “could lead to criminal charges of a reporter.” I’m not sure what charge could be filed, but I’d add this: at the least, the judge’s comment suggests that a civil complaint could be filed alleging that the newspaper acted with negligence. And that would be a problem for the Free Press, and the free press, if you know what I mean.

Posted by Steven P. Aggergaard at 2:46 PM 0 comments    

Labels: Media Ethics, Media Law, Minnesota Media

Wednesday, February 07, 2007

What’s In A Name? A Lawsuit!

Here’s a word to remove from your vocabulary, online and otherwise: Pedophile.

Yesterday, the Minnesota Court of Appeals decided that referring to someone as a “pedophile” is “defamatory per se,” and is akin to falsely accusing someone of a crime, having a “loathsome disease,” being unchaste, or being incompetent at work. This is an extremely important decision for bloggers and other online communicators who risk shooting from the hip by hastily posting comments that they might later regret.

Under defamation law, when someone commits defamation per se, damages are presumed, and the plaintiff who was defamed need not prove that he actually was harmed. It is like being in a car accident that was so bad that you get money from the other driver even though you were not harmed and did not suffer any out-of-pocket expense.

In the case, the plaintiff was a Moose Lake, Minnesota police officer who, at age 34, began dating an 18-year-old woman. The defendant referred to the officer as “Pat the Pedophile” — not to the officer’ face, but to another person during a cell phone conversation. Apparently folks around town referred to the officer in this way, but judging from the court’s decision, the allegation was false. For the court of appeals, the cell phone comment was enough to constitute defamation per se, and the court reversed the trial court’s judgment in favor of the plaintiff. However, the court of appeals did send the case back so that the amount of damages — which approached a half million dollars — could be recalculated.

The lesson to be learned is this: “pedophile” is a powerful word, and should not be used carelessly or even in jest.

Posted by Steven P. Aggergaard at 8:09 AM 0 comments    

Labels: Defamation, Internet Law, Media Law

Sunday, February 04, 2007

Mankato Paper Refuses To Turn Over Notes

A county prosecutor is asking a judge to comepl the Mankato Free Press to surrender notes from three reporters who covered an armed standoff two days before Christmas last year. [Read the Free Press’ story here.] Apparently the prosecutor is most interested in notes from a telephone conversation a reporter had with the gunman a few hours before the gunman apparently committed suicide.

In resisting the request, the Free Press is citing Minnesota’s “shield law,” which generally permits the news media from turning over unpublished material including reporters’ notes and video outtakes. During a court hearing on Friday, the Free Press’ lawyer, Mark Anfinson, succinctly stated the rationale of the shield law’s protection for journalists: “If they become an arm of law enforcement, they’ll lose their ability to gather information.”

True enough. But shield laws are not cure-alls. I’ve blogged about shield laws here. In that post, I explained that even though journalists love both shield laws and the First Amendment, shield laws can mean trouble for the First Amendment becauase by exempting the news media from a law that the rest of us have to obey, government necessarily must define who is the news media, and that can — and does — mean trouble for bloggers. Josh Wolf, a video blogger, has been in jail for six months — six months! — for refusing to turn over a videotape from an “anarchists rally.” Wow.

Anyway, regarding the Mankato case, what’s interesting is that even though Minnesota’s shield law gives way when a prosecutor can prove that he really, really needs the information to investigate a gross misdemeanor or felony, the Mankato prosecutor has not filed any charges in the case. During Friday’s court hearing, he generally stated that “we have a criminal investigation involving a homicide,” but as the Free Press reported: “nowhere in documents filed in this case have authorities specified what crimes they are investigating, or who may be the subject of the investigation.”

But then the Free Press further reported: “Based on the information authorities have released on the case, the only possible targets of an investigation are the journalists or the authorities themselves.” I’m not sure what to make of that statement. Is there some suggestion that the Free Press and/or its reporters really are risking criminal culpability? Probably not, but this power play in southern Minnesota could get interesting. The judge’s decision is pending.

Posted by Steven P. Aggergaard at 7:52 AM 0 comments    

Labels: First Amendment, Media Law, Minnesota Media

Tuesday, January 23, 2007

Obscenity and Child Porn: Same Thing?

Today the Minnesota Court of Appeals decided that the First Amendment permits the state to convict a person for possessing child pornography as long as the state proves that the defendant had a “reason to know” that a child was pictured. In doing so, the court equated child porn with obscenity — a comparison that is apples and oranges in some ways, but that does make some sense in this context. [Read today’s decision here.]

The defendant was convicted for possessing compact discs with “reason to know” that they contained child pornography. [Read the statute under which he was convicted here.] He paid $515 to obtain and personally signed for delivery of the discs from a service that the feds shut down and then operated as part of a sting. The discs were marketed as containing images of girls aged 9 to 14. After being convicted, he claimed the statute violated the First Amendment because the state had to prove not that he knew the discs were of minors, but that he had “reason to know” that.

In its decision, the court acknowledged that the “reason to know” standard sometimes arises in the civil context, where the state does not need to prove elements of a crime beyond a reasonable doubt. But the court then said that statutes forbidding possession of materials that a person had “reason to know” were obscene had survived First Amendment scrutiny, and then correctly noted that child pornography has even less protection under the First Amendment than does obscenity.

So while the court of appeals may have plowed some new legal ground here, the decision was sensible. It will be interesting to see how the statute and case might apply in the Internet context because there still might be room for a constitutional challenge where the product or website at issue was not so clearly marketed as involving minors.

Posted by Steven P. Aggergaard at 3:42 PM 1 comments    

Labels: First Amendment, Internet Law, Minnesota Law

Saturday, January 20, 2007

Student Newspaper Censorship — How Awful

A student-newspaper censorship battle is brewing at St. Francis High School just north of the Twin Cities, where the school administration has refused to permit the newspaper to publish a photograph (at right) for fear it might offend “community standards.” While student censorship is nothing new and unfortunately is sometimes legal, based on the media reports thus far [here, and here] this instance of it is shameful and over-the-top unacceptable.


The image contains nothing even remotely obscene or degrading to any person or group. It is not a cell phone image depicting kids holding plastic cups at a kegger, or from the school locker room. It depicts a scene from the school’s fall play, The Children’s Story, where supposedly an American flag (actually, a piece of bunting) had been torn apart. [I think I found a link to what the play is about, here. In this story, students were struggling with why they Pledge Allegiance to the Flag, and a New Teacher remarked that if the flag was “so important, I think we should all have a piece of it. Don’t you?” And out came the scissors. Interesting …]


The school claims concern for “community standards,” and frets that veterans’ feelings might be hurt. As the school superintendent explained to the Pioneer Press: “That particular picture, although it’s a snapshot of what was in the fall play, standing in isolation, it could be taken in many different ways. It could be pretty offensive to veterans or people who serviced [sic] in the military. It’s kind of a community standards thing.”

What on earth is he talking about? The “community” whose standards are at issue would be the school community, and as of today’s date at least you had to be 18 to serve in the military. So unless lots of the school’s students have flunked several grades, it is highly unlikely that any student is a “veteran.” There’s no mention about whether even one teacher “served in the military,” but if one did, and if she or he was really offended by a photograph taken from the school play, that person should not be teaching any student anywhere.

Besides, in media law, “community standards” arise in the obscenity context, and have nothing to do with whether a school may censor the school newspaper. In the leading United States Supreme Court case on school censorship, Hazelwood School District v. Kuhlmeier, the newspaper was not an extra-curricular activity, but was published as part of a school class. The censored material did not depict scenes from a school play, but instead addressed students’ experiences with pregnancy and the impact of divorce on students at the school. Six Justices in the case distinguished the Hazelwood newspaper as not being a “public forum,” and said it was OK for a school to censor “so long as their actions are reasonably related to legitimate pedagogical concerns.” Three Justices, including St. Paul’s own Justice Blackmun, disagreed, and wrote that “[w]hen the young men and women of Hazelwood East High School registered for Journalism II, they expected a civics lesson, … but not the one the Court teaches them today.”

In St. Francis, according to the school’s web site, the student newspaper is not part of a journalism class. The newspaper’s web site states that “[t]he Crier is an open forum for student expression.” There’s a good argument that the Hazelwood case does not apply here.

If there were “pedagogical concerns” about this image, the play from which it was taken should not have been staged in the first place. If someone really would have been offended by the image, I bet the newspaper, as a “public forum,” would have permitted the offended person to tell her or his story in the very next issue.

The “civics lesson” that the St. Francis school has provided to its kids and community is appalling. But perhaps it’s not surprising, since the White House has been censoring images of coffins coming back from Iraq for many years now.

Posted by Steven P. Aggergaard at 7:41 AM 0 comments    

Labels: Constitutional Law, First Amendment, Media Law, Minnesota Media

Sunday, January 14, 2007

Signs of the Times

The New York Times is reporting this morning that the C.I.A. is issuing “national security letters” to get American companies’ financial records. Quoted in the story is St. Paul law professor John Radsan, who was a lawyer with the C.I.A. from 2002 to 2004. Said Rasdan: “The C.I.A. is not supposed to have any law enforcement powers, or internal security functions, so if they’ve been issuing their own national security letters, they better be able to explain how they don’t cross the line.”

Radsan, who teaches at William Mitchell College of Law and also worked in the United States Justice Department, is no stranger to being quoted on national security issues. And what a breath of fresh air! From the comfy confines of academia, he is free to tell it like it is, without the the government doublespeak.

Posted by Steven P. Aggergaard at 7:41 AM 0 comments    

Labels: Federal Law

Sunday, January 07, 2007

Pouring Onto Portland?

Offers of buyouts sent 30 Pioneer Press employees streaming onto Cedar Street in 2006, and a clause in the Star Tribune’s union contract with its newsroom employees could result in an even greater exodus onto Portland Avenue after the Strib’s sale to Avista Capital Partners is completed later this year. [The Pioneer Press contract, which expires in 2007, did not contain such a provision.]

According to the contract, if and when the Strib is “sold or leased to an outside interest,” each union employee has five days to decide “whether or not he wishes to continue as an employee of the said sold or leased publication.” Employees who want out must depart within those five days, and are entitled to “dismissal payment” of two weeks’ pay for every year worked up to a maximum of 40 weeks’ pay. The contractual language looks pretty clear to me, and thus most likely is legally enforceable as against the new owner.

Newspaper Guild office Pat Doyle, quoted on, said that the buyout clause “seemed to be of great interest to a lot of people” covered by the contract. That’s no surprise, but it’s terribly unfortunate. Buyouts based on years of service encourage journalists with the most institutional knowledge, i.e. those who know the difference between St. Paul’s West Side and West St. Paul, to leave the business, which results in less-sophisticated reporting on issues and more errors in the paper, which in turn helps feed the perception that Mainstream Media can’t be trusted.

Mainstream Media’s continued demise seems to elicit a “so what?” response from news consumers 35 and younger, and a “you deserve it” reaction from many “older” folk who were trained on newspapers but have grown tired of Mainstream Media’s perceived “bias.” I agree that the market ultimately will and must determine which sort of media will survive.

But a Minnesotan cannot consider herself well-informed by reading only bloggers’ opinions and press releases from the government, and by trolling YouTube for local content captured by cell-phone camera and otherwise. Someone needs to check the facts and put things in context, and those “someones” appear to be a dying breed.

Posted by Steven P. Aggergaard at 8:07 AM 0 comments    

Labels: Minnesota Media

Saturday, January 06, 2007

Mainstream Fallout

Right after writing the blog post below, “Star Tribune, Newspaper of the Twin Sales,” I spent a couple hours retooling it for submission to the Star Tribune, which published it on New Year’s Eve. Among the points I attempted to make was that “except for truly ‘breaking news’ of the visual kind, much if not most news (even on news blogs) still originates with newspapers, which largely set the public discourse agenda in Minnesota and other places.”

It’s been fun to see how my piece in Minnesota’s largest slice of Mainstream Media initiated discourse on a few blogs at least, and how a couple to interpret my piece:

* After quoting my column’s observation that MSM’s demise is welcomed by some, Kowabunga wrote: “What he is saying here is that it’s the bloggers fault that Main Stream Media is losing it’s credibility and market, not the fact that news papers and other elements of the MSM are failing to deliver high quality and accurate (and, most importantly, UNBIASED) reporting.” I’m saying no such thing. I believe MSM’s loss of credibility and market share is complex, and in some ways its own fault. The “demise” can be blamed on news consumers’ demand for instantaneous and visual news that confirms instead of challenges their own views, and also on MSM’s failed attempts to “please” their audience. For example, by failing to deliver high-quality and accurate information about why invading Iraq would be a horrible mistake, MSM messed up.

* I had a nice discourse with Garrick Van Buren, who interpreted my post as arguing that “we need to keep paper in newspaper – because that equals journalism and full-time jobs.” As I stated in a comment to his post, I argued no such thing. I completely agree with him that news ultimately must be market-driven. But the outright “theft” of news content cannot go on much longer.

A couple other blogs, Hart Up North and MPR, linked to my Strib piece with no commentary.

Posted by Steven P. Aggergaard at 8:55 AM 0 comments    

Wednesday, December 27, 2006

Star Tribune, Newspaper of the Twin Sales

Word has come out of the blue that McClatchy Co. is selling the Star Tribune to Avista Capital Partners. Surprising? Sure. Concerning? You bet. The sale should serve as a strong reminder that information — its acquisition, distillation, and dissemination — is, in the end, largely about Money, with a Capital M. And until news consumers take interest in where their news comes from, more surprises are ahead, and the public’s ability and “right” to know what’s going on risks taking a hit.

The Strib’s sale is unsettling news for the many talented folks who have committed themselves to journalism despite the terrible hours [i.e., working on Christmas Eve] that go with the career for many folks. The sale might be particularly unsettling for the several Strib folks who have left the recently sold Pioneer Press, only to see the same thing happen across the river. [The Pioneer Press, of course, was sold to McClatchy, which then unloaded it to MediaNews Group earlier in the year. Just a few weeks ago, 21 newsroom staff members (with a combined 502 years of experience) were among 30 PiPress employees taking buyouts amid uncertainty in the newspapering business.]

Are these sales just part of newspapering’s slow death? I wouldn’t characterize it as such. The sales are not part of an industry’s demise as much as they are embematic of the information industry’s rapid, often exciting, and sometimes painful evolution.

The pain is likely to increase as the market for information evens out. Many people — way too many — have no idea where their news comes from. Log on, type in a url, and boom! — there’s news and commentary, free and immediate. But how many people stop to realize that someone had to post those sports scores, that column, or that photograph from the fire, and that the “someone” has a need and a right to make a living, to have health insurance, and a 401(k). We need those “someones” not just to post information on the Internet, but to distill it, to fact-check it, to put it in context. Unfiltered information has its place, but we still need journalists, and their salaries cannot be paid only by proceeds from pop-up advertisers.

Without access to good salaries and the benefits that commonly are provided for hardworking and smart people, talented journalists will leave journalism for other careers. In the end, the news consumer is harmed. My big worry is that we won’t realize we’ve been harmed until we no longer have what we had. In other words, the professional journalist as we know her might have to go away until she is resurrected.

That resurrection, in the form of a a renewed demand for smart journalism, would be heartening. But as seen from the sales of the Strib and PioPress, the path to that point might be painful.

Posted by Steven P. Aggergaard at 7:27 AM 1 comments    

Labels: Minnesota Media

Saturday, December 16, 2006

Green Light for Red Light Appeal

The Minnesota Supreme Court said on Thursday that it will review the state court of appeals’ invalidation of Minneapolis’ so-called “photo-cop” ordinance, where motor vehicle owners were considered guilty until proven innocent when a camera took a picture of their cars running red lights. I’ve blogged about the case a couple of times, here and here.

I remain convinced that there are constitutional implications to this case, i.e. it’s unconstitutional to consider a vehicle owner “guilty” until proven innocent, even though I concede it’s questionable whether a vehicle owner who gets a ticket in the mail is guilty of a crime per se.

But the state supreme court might not reach the constitutional issues because the court of appeals’ holding was not based on key constitutional provisions. The court of appeals held that “Minnesota law does not permit individual cities to unilaterally regulate traffic in a way that would create a checkerboard of liability across the state.” In other words, if there is to be a law of this type, the court of appeals said the state legislature and not city of Minneapolis should enact it.

I’m eager to see how this is resolved.

Posted by Steven P. Aggergaard at 2:25 PM 0 comments    

Labels: Constitutional Law, Minnesota Law

Thursday, December 14, 2006

Bankruptcy Law, Meet First Amendment

Minnesota’s chief federal judge James Rosenbaum wielded the First Amendment last week to strike down a federal statute that requires “debt relief agencies” to make certain declarations in their advertisements. [I’ve posted the decision on my web site, here.] Specifically, the law requires the agencies to state: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.” Apparently, the government was trying to rein in advertisements that state that they make “debts disappear.”

Judge Rosenbaum was having none of it. He applied the First Amendment test that requires the government to prove that the restriction on speech directly advances a “substantial government interest,” and then ruled that the government had failed at every turn to prove the law’s constitutionality. Wrote the judge: “Setting aside the implausibility of anyone actually believing in a magic wand capable of making debt go away, it is most unlikely that the insertion of the statement ‘We are a debt relief agency, we help people file for bankruptcy relief under the Bankruptcy Code’ prevents consumer deception; it may well increase it.”

Reminds me of the saying, “We’re the government, and we’re here to help.”

Anyway, the judge continued: “This sweeping regulation goes beyond whateer problem it was designed to address.” He’s exactly right. And Judge Rosenbaum also struck down a provision of the law that bars debt relief agencies from advising clients “to incur more debt in contemplation” of a bankruptcy filing as a “content-based regulation of attorney speech.”

It’s pretty unusual for federal judges to strike down laws in such sweeping fashion with the First Amendment. The government doesn’t take losses like this lying down, so we’ll see what happens on appeal. A bankruptcy blogger at opined: “My guess is that the Department of Justice will appeal, and my guess is that they will lose at the appellate level.”

It would not be a big surprise to see this end up in the United States Supreme Court in a few years.

Posted by Steven P. Aggergaard at 8:04 PM 1 comments    

Labels: Advertising, Federal Law, First Amendment

Tuesday, December 12, 2006

In the Interests of National Security …

Finally, I’m making time to blog about an eyebrow-raising defamation case that the Minnesota Court of Appeals handed down last month. In a nutshell: you can’t get away with defamation in the name of national security. [Read the decision here.]

The plaintiff was turned away for a job as an “air-traffic control specialist,” and sued two former employers for defamation after he learned that they made negative comments about him to a Federal Aviation Administration investigator. One of the employers accused the would-be air-traffic controller of stealing, and stated that he “often noticed the smell of alcohol” on him and that he “has a drinking problem.” A jury found in favor of the plaintiff.

On appeal, the employer claimed that he had an “absolute privilege” to tell the feds about the alleged theft and drinking problem because he was “put in a special position of giving national security information to federal investigators to protect and defend the American public.” [When an “absolute privilege” applies, even defamatory statements made with malice are protected and cannot be sued over.] The court of appeals rejected the employer’s novel argument, accurately stating that absolute privileges are rarely found.

The outcome probably was proper, and offers one more reminder why past employers should avoid giving negative references — or any references at all, for that matter.

Posted by Steven P. Aggergaard at 7:56 PM 0 comments    

Labels: Defamation, Minnesota Law

Friday, November 17, 2006

You Have a Right To Bury Metatags

In August, I blogged about a Minneapolis photographer who appeared in federal court without a lawyer and won Round 1 in a copyright lawsuit alleging that an advertiser used a Minneapolis skyline photo he took without his permission. [Read my post here.] Now he has won Round 2 — again, without a lawyer. Besides being a great David vs. Goliath story, there is some important law flowing from the case: web page operators might have legal rights to bury metatags in web pages, even when they seek to criticize someone.

In the most recent battle, the advertiser accused the photographer of defaming the company, interfering with their employees and customers, and infringing trademarks, and asked the federal court to enjoin the activities. Specifically, the advertiser alleges that the photographer used the advertiser’s trademarks and names on his web site, and had “hidden them in the metatags of his web sites” so that when someone typed the company’s name into a search engine, the photographer’s web site that criticizes the advertiser would come up. Like, this web site.

In response to the court’s request, the photographer volutarily altered his web site by adding a disclaimer, editing the metatags, and removing “all comments that refer to a secretary or girlfriend” of the head of the company. The court then denied the advertiser’s request for an injunction, stating that “use of a trademark in metatags in a descriptive manner can constitute non-infringing fair use,” and that the photographer had a First Amendment right to post critical comments about the advertiser.

The case is fascinating and cutting-edge because it involves the four big facets of media law — defamation, trademarks, copyright, and the First Amendment — in the Internet setting. It stands for the proposition that using a company’s trademark in a metatag might be permissible if it somehow “describes” the company, and that this “unseen” text might even be protected speech under the First Amendment. And the court’s ruling states that even though the photographer-slash-web site operator has not run afoul of the law, “the Court will continue to closely monitor [the photographer’s] use of his web sites to ensure that he is not using them in an infringing manner.”

Here is the court’s ruling, if you’re interested.

Posted by Steven P. Aggergaard at 4:49 PM 0 comments    

Labels: Advertising, Copyright, Defamation, First Amendment, Internet Law, Media Law, Minnesota Law, Trademark Law

Friday, November 10, 2006

Searching for Privacy

Minneapolis is following Chicago and London in placing cameras in crime hotspots, with hopes of catching criminals and, ultimately of course, deterring crime. [Read about successful such efforts in Chicago, London, and other cities here.] According to a story in today’s Strib, Teresa Nelson over at the Minnesota Civil Liberties Union is raising concerns over invasion of privacy, racial profiling and voyeurism.

Says lawyer Nelson: “I would not rule out in a future court finding that video surveillance constitutes an illegal search. We have concerns that certain races are more likely to be followed. And studies show that the people who are focused upon, sometimes for no obvious reason, are women.”

Unfortunately, I cannot agree 100 percent. While Nelson makes good points about racial profiling and maybe voyeurism, I do not see how performing surveillance of people in public places is “invasion of privacy.” As I explain on my web site, privacy is invaded when (1) publicity is given to private facts, (2) one’s “seclusion” is intruded upon, or (3) one’s name or likeness is “appropriated.” A camera-based invasion of privacy case probably would be attempted under Type No. 2 — intrusion upon seclusion. Trouble is, one cannot be secluded on a city street. If you want seclusion, stay home.

I also disagree with Nelson that video surveillance might someday be considered a “search” under the law. The Fourth Amendment to the United States Constitution ensures people’s rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Obviously, when you’re on the street, you’re not in your house. Searches of “persons” typically involve police frisks and the like. Further, the constitution forbids only unreasonable searches. For good or for bad, even if public-place camera surveillance could be considered a search, it’s probably a reasonable one.

As a civil libertarian, I share Nelson’s general concerns about how these cameras will be used and abused. All new technologies bring concerns as well as benefits. The bottom line is that a person captured by camera — even an innocent person, unfortunately — should not plan on suing the city for invasion of privacy or illegal search anytime soon.

Posted by Steven P. Aggergaard at 7:38 PM 1 comments    

Labels: Constitutional Law, Minnesota Law, Privacy

Sunday, October 29, 2006

Go Figure

A state court judge in St. Cloud has dismissed a lawsuit where a former St. Cloud State University professor and dean sued the student newspaper for quoting a former student who said the professor was anti-Semitic and had used racial slurs. I have not had opportunity to locate the judge’s order, but based on reports available on the Internet [here and here], one basis for dismissal was that because the prof deemed to be a “public figure,” he had to prove that the newspaper acted maliciously, i.e. by publishing the quote knowing it was false, or in reckless disregard of its truth or falsity. The prof failed to prove malicious actions, even though the newspaper published a retraction.

Traditionally it has been more difficult for “public figures” to sue news organizations because public figures have easy access to the media [i.e., they can call a news conference to refute charges] and because the First Amendment encourages a free flow of ideas. What is interesting here is that a university prof and dean was considered a public figure. Had the Strib, Pio Press, or even St. Cloud newspaper published such a quote, undoubtedly the prof would not have been a public figure. But apparently he was deemed a public figure in the relevant community — the St. Cloud campus.

If this case survives an appellate court’s scrutiny, it will be a big, big win for student journalism because the decision would suggest that courts are to look at student press defamation actions from the on-campus perspective of a student journalist and an on-campus reader. Cases like this also might end up offering broader protections for bloggers and web site operators who opine on purely local issues. Stay tuned.

Posted by Steven P. Aggergaard at 9:58 AM 0 comments    

Labels: Defamation, Media Law, Minnesota Law

Saturday, October 21, 2006

Little Originality Required

Copyright law applies to pretty much everything on the Internet. A blogger owns a copyright in material he posts if it is “original” enough. On the other hand, a blogger infringes someone else’s copyright if his post lacks originiality. [See my web site,, for copyright info tailored to online communicators.]

But how much “originality” is required for a copyright infringement lawsuit to go forward? Not much, as evidenced by a Minnesota federal court decision issued earlier this month. [Read it here.] At issue was whether a Minnesota corporation’s fill-in-the-blank legal documents might be entitled to copyright protection. Another company copied substantial parts of the forms, and was sued. Judge Ann Montgomery ruled that the boilerplate legal documents were original enough to survive a motion to dismiss the lawsuit.

For Minnesota media communicators, the decision is a quiet reminder that cutting and pasting Internet text and posting it on a blog or web site without adding any “originality” often results in copyright infringement — particularly if the poster is out to make a buck.

Posted by Steven P. Aggergaard at 10:08 AM 0 comments    

Labels: Copyright Law

Friday, October 06, 2006

Another Miranda in the Making?

The Minnesota Supreme Court broke some legal ground on Thursday by requiring police and prosecutors to specifically inform criminal defendants that they have a right to cross-examine the analysts who through testing determine that a certain substance is an illegal drug. [Read the decision here.] The case may have broad implications because the court’s decision is not limited to drug reports, but seems to apply to any written reports used as court testimony.

The case arose from a suspected drug deal in Rochester. The substance was seized, a state Bureau of Criminal Apprehension analyst determined it to be cocaine, and the suspected drug dealer went on trial. A state statute requires criminal defendants to give 10 days’ notice if they want to cross-examine the analyst. But the statute says nothing about what happens when, as here, the defendant fails to speak up. The consequence in the Rochester case was that the lab report was admitted as evidence, and the defendant got no opportunity to cross-examine its author.

Trouble is, in 2004 the United States Supreme Court decided that a criminal defendant has a Sixth Amendment right to cross-examine persons who offer “testimonial” evidence, i.e. evidence likely to be used at a trial. In the Rochester case, because the drug-lab report was testimonial, and because the suspected drug dealer got no opportunity cross-examine the report’s author, he gets a new trial. Meanwhile, the Minnesota Supreme Court has put Minnesota prosecutors on notice that they need to inform criminal defendants about “the likely consequences” should they fail to say that they want to cross-examine the person who wrote the “testimonial report.” This would seem to include any report that prosecutors seek to put before a judge or jury.

The court’s decision requires police and prosecutors to actively inform criminal defendants about their rights. In this sense, it is similar to the case where the Miranda warning came from. The Minnesota decision will be controversial, evidenced by the fact that three of the Minnesota Supreme Court’s seven justices dissented from it. I would not be surprised if this ends up in the United States Supreme Court-should the state of Minnesota want to pay for such an appeal.

Posted by Steven P. Aggergaard at 11:11 AM 0 comments    

Labels: Constitutional Law, Minnesota Law

Tuesday, October 03, 2006

Super (Bad) Intentions

Let me get this straight. The St. Louis Park schools superintendent intentionally caused false news reports to be aired about a water main break when in fact school was being closed because of a supposed threat of violence? [Strib story here.] Wow.

In a letter posted on the school district’s web site, Superintendent Debra Bowers, Ph.D., explained:

Late Sunday night, we announced that all classes were canceled at our senior high school on Monday, Oct. 2, reportedly due to a broken water main. We were dealingwith a different situation and we decided to cancel school for the safety of our students. Student safety is our top priority and last night’s measures were taken, inpart, due to recent national events. We apologize for any concern or confusion this may have caused.

Then, to top it off, the superintendent closed the letter with instructions to “always, for up-to-the-minute school closing information, … watch WCCO, KSTP or KARE 11 TV. ” Um, OK. For what?

Deliberately lying to the news media does no one any good. Next time the superintendent calls WCCO Radio or Channel 11 for any reason, what are folks at the station to do, believe her? Of course not. Next time the superintendent tells her local newspaper why voters should pass a school levy, are voters to believe her? Of course not. Next time the superintendent tells a kindergartner that “honesty is the best policy,” is the kiddo to believe her? Enough said.

The last few days have seen a horrible string of school shootings, and the broadcast media’s insatiable appetite for easy-to-cover and visually dramatic stories like school shootings undeniably provides ammunition for attention-seeking wackos. Media professionals need to confront this reality, and critically analyze how and why they cover stories like this as they do.

Still, deliberately manipulating the news media is wrong, and only leads news professionals to distrust sources, and news consumers to distrust the media.

Posted by Steven P. Aggergaard at 7:25 AM 1 comments    

Labels: Media Ethics, Media Law, Minnesota Media

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Friday, September 22, 2006

No Green Light for Red Light Ordinance

Today the Minnesota Court of Appeals put the brakes on Minneapolis’ so-called “photo cop” program, where motor vehicle owners are considered guilty until proven innocent when a camera takes a picture of their car running a red light. I first blogged about the case here and highlighted its faults. Read today’s court’s decision here.

The court struck down photo cop because the state has primary authority to enact traffic laws, and the city of Minneapolis usurped that authority. Stated another way, it is against the law to have one traffic rule apply to owners of vehicles that travel Minneapolis streets, and another rule apply to everyone else. Said the court: “Minnesota law does not permit individual cities to unilaterally regulate traffic in a way that would create a checkerboard of liability across the state.”

The court also stated that the city misreprsented the ordinance’s actual operation because it is not proper to target vehicle owners when the real concern is red-light-running drivers.

The court was able to decide the case without addressing the key constitutional question: Is it OK to consider a vehicle owner guilty of running a red light until she or he is proven innocent? The court’s action was not surprising, since last month the court determined it was OK to consider vehicle owners guilty until proven innocent for running school bus stop arms. [I criticized that decision here.]

The city of Minneapolis is free to appeal the case to the state supreme court, but that court is not obligated to hear the case. So as of today, photo cop remains stalled, but the ultimate question of when it might be OK to be considered guilty until proven innocent is unresolved.

Posted by Steven P. Aggergaard at 4:53 PM 0 comments    

Labels: Constitutional Law, Minnesota Law

Thursday, September 21, 2006

Political Hack, or Not?

The Minnesota political blogosphere is going ga-ga because a blogger found a yet-to-be-released Mark Kennedy ad on the Internet and forwarded it to the Amy Klobuchar campaign. A Klobuchar staffer was fired, and according to a Star Tribune story posted this evening the FBI is involved “for investigation of possible lawbreaking.” Hmm.

The blogger, Noah Kunin, who runs, apologized on his blog for what he did, and has explained how he did it. You can read the specifics here. He explains: “At no point in this process did I circumvent or misrepresent myself. The website containing this ad can be accessed by anyone online. It is possible to directly go to this website. It is in no way secured.”

In other words, Noah says he did not hack into a private, password-protected site.

So is this worthy of the FBI’s scrutiny? Here’s what a federal law called the Stored Communications Act says:

Whoever intentionally accesses without authorization a facility through which an electronic communication service is provided or intentionally exceeds an authorization to access that facility and thereby obtains, alters, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished …
This would appear to criminalize hacking into e-mail because elsewhere in federal law “electronic communication service” is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” But Noah did not hack into e-mail. Does the law apply when somebody accesses a web site without permission?

Maybe not. In 2003, the 11th Circuit Court of Appeals held that a guy who hacked into another person’s computer, found child pornography, and forwarded the porn to the cops did not break the law described above. This was because the law “does not appear to apply to the source’s hacking into [the] computer to download images and identifying information stored on his hard-drive because there is no evidence to suggest that [the] computer maintained any ‘electronic communication service’ as defined in [federal law].” The United States Supreme Court declined to review the case.

The web site Noah accessed had to be stored on a computer hard drive somewhere. Therefore, there’s a good argument that Noah did not inappropriately access an “electronic communication service” under federal law. If he merely fooled around with the url of the Kennedy media consultant’s web page to obtain the yet-to-be-released ad, the federal law would seem not to apply. This is particularly true because what Noah did, arguably, is “political speech,” which is zealously protected by the First Amendment. In fact, the First Amendment was enacted first and foremost to protect political speech, and the Klobuchar-Kennedy race undeniably is politics.

But of course these issues ultimately would be for a judge or jury to decide.

Posted by Steven P. Aggergaard at 8:45 PM 3 comments    

Labels: Internet Law, Minnesota Politics

Wednesday, September 13, 2006

Where’s the Party?

Is it just me, or are most election lawn signs devoid of party affiliation this fall? I was taking a run through a residential section of Woodbury this morning, and couldn’t see the word “Democrat” or “Republican” on even one sign.

A sign of the times? Probably. For many candidates, the liabilities of party affiliation most undoubtedly outweigh the benefits in this politically charged atmosphere.

Posted by Steven P. Aggergaard at 12:58 PM 0 comments    

Labels: Advertising, Minnesota Politics

Monday, September 04, 2006

Bert Drops an FCC-Bomb

So apparently Minnesota Twins announcer Bert Blyleven dropped an f-bomb on live TV yesterday, and now Channel 29 (which broadcast the game) could face an FCC fine. [Strib story here.] Apparently Bert thought a pregame segment was being taped, when actually it was live. Bert was suspended and is apologizing up and down, and has even hinted that he thinks he might be fired.

Reminds me of a Wild game I was at last year where Gov. Tim Pawlenty, with microphone in hand in front of 17,000 fans (including lots of kids) and on live TV (Channel 45, I believe), was supposed to tell the ref to drop the puck, when he — the governor — dropped the f-bomb. He was supposed to say, “Let’s drop the puck.” It came out, “Let’s drop the fuck — puck.” [Read a blog entry about it here — scroll down. Watch the video here!] Haaa!

Where were the fines that time? Oh yeah, I forget, the FCC is controlled by the White House, whose chief resident has been known to have a potty mouth that, on occasion, has graced the airwaves with profanity.

This holier-than-thou attitude from the FCC is getting to be too much. C’mon, it’s not as if our tender-eared children will be scarred for life. Kids are just as likely to hearing swear words on HBO comedy specials — which is not under the FCC’s control — as they are to be watching the Twins.

I’m not a fan of using the f-bomb in public, but since the Janet Jackson “wardrobe malfuction,” where the FCC thought police fined CBS and its corporate-owned stations $550,000 for a stunt that was no more risque than an Abercrombie & Fitch catalog, the FCC has been eagerly rubbing its hands together for just such a slip. Earlier this summer, you might recall, the crew in Washington approved increasing FCC fines tenfold — tenfold! — for incidents of profanity.

Good thing the Pawlenty slip-up came before the fine increase was enacted.

Posted by Steven P. Aggergaard at 7:14 PM 1 comments    

Labels: Media Ethics, Media Law, Minnesota Media

Saturday, September 02, 2006

Duluth Sewing Shop Ducks the Copyright Cops — For Now

Can a sewing machine be a computer? You decide.

The owner of a Duluth sewing-supply center has fended off a copyright lawsuit for renting “memory cards” that enable sewing machines to embed designs on fabric. In a decision issued this week, the federal appeals court that oversees Minnesota held that Kelly Mattson, who runs Kelly J’s New Home Sewing Center up by the Miller Hill Mall in Duluth, can’t be dinged by the copyright cops — at least not yet.

The court held that Action Tapes, which developed the memory cards, could not sue Mattson for copyright infringement because the company failed to try to register its work with the United States Copyright Office. Action Tapes’ argument was that the memory cards are computer software, which, under federal law, cannot be rented without the creator’s permission. The law is an exception to the long-recognized “First Sale” doctrine, which generally permits someone who purchases a copyrighted work (i.e., a book) from using it however she wants (i.e., selling a book on eBay).

The appeals court did not decide the ultimate question: whether sewing machine memory cards are computer programs. That question is likely to resurface as the line between what is and is not computer software continues to blur.

Software developers, beware: register your copyrights, now.

And sewing-circle ladies, look out: the sewing machine copyright cops do not give up easily. A little Google sleuthing revealed that Action Tapes is a member of the Embroidery Software Protection Coalition, whose purpose is “to defend the integrity and quality of embroidery products by promoting copyright compliance.” The Coalition sends threatening letters and, on its FAQ web page, advises letter recipients to “follow the instructions exactly” to “call ONLY the Legal Department of the ESPC,” and warns that “if you fail to respond to the ESPC letter, your file will be transferred to the Litigation Department for a lawsuit to be filed against you. ”

Posted by Steven P. Aggergaard at 7:25 AM 0 comments    

Labels: Copyright Law

Thursday, August 31, 2006

Red River Wrongdoing

Today, a day after a jury in Fargo convicted Alfonso Rodriguez (who is Latino) of killing Dru Sjodin, the Minnesota Supreme Court issued a remarkable decision in which it reversed the aiding-and-abetting-of murder conviction of a man (who is African American) because the prosecutor committed an unprecedented amount of misconduct during the trial.

Now the defendant, who was convicted by a nearly all-white Clay County jury and sentenced to life without the possibility of parole, gets a new trial. What makes this all the more remarkable is that according to a news report, the prosecutor is now a Clay County judge who, according to the state courts’ web page, was a public defender earlier in her career.

“The scope of the misconduct in this case is unprecedented in this court’s memory,” Justice Helen Meyer wrote on behalf of the court. According to the written opinion, the prosecutor intentionally misstated witness’ testimony and other evidence, referred 13 times to an unreleated “shootout” involving the defendant, commented on the defendant’s failure to ask an alibi to testify at trial, referred to facts not in evidence, appealed to passions of the jury, aligned herself with the jury, improperly attacked the defendant’s character, commented on the defendant’s opportunity to tailor his testimony, and commented on the credibility of a witness.

The court reporter’s trial transcript contained 80 pages of the defendant’s cross examination. At least 20 pages contained misconduct, according to the court. Unbelievable.

At one point, the prosecutor said to the jury: “This is kind of foreign for all of us, I believe, because we’re not really accustomed to this drug world and drug dealing.” While the defendant was on the stand, she asked him about the “white girls that you were hanging around with in Fargo-Moorhead,” and asked him nearly 40 questions about his various girlfriends and “baby mamas.” She called the defendant “a habitual liar” and “an aggressive person who carried a gun and shot at people,” and at one point asked: “You wouldn’t know the truth if it hit you in the face, would you?” Absolutely remarkable.

Jack McCoy may get away with this on Law & Order, but in the real world, when a prosecutor acts this way, the defendant get a new trial, and the county taxpayers get the bill.

Posted by Steven P. Aggergaard at 5:47 PM 0 comments    

Labels: Minnesota Law

Tuesday, August 29, 2006

Guilty Till Proven Innocent

Today the Minnesota Court of Appeals determined that it’s constitutional to presume that a vehicle owner is guilty for disobeying a school bus stop signal without holding a trial — even if the owner was not the one driving the car! The court’s decision, available here, might be a harbinger of how the court will rule on the so-called Minneapolis “photo cop” case, where vehicle owners are presumed guilty for owning a car that a camera says ran a red light. [I blogged about photo cop in June, here.] A lower court judge had said photo cop was unconstitutional, and now that case is on appeal.

Anyway, the crux of today’s decision is that it’s OK to convict a vehicle owner without holding a trial because the law [read it here] imposes only a petty misdemeanor on the guilty owner’s criminal record, and petty misdemeanors are not punishable by jail time, so hence they are not crimes under Minnesota law. FYI, same holds true for the photo cop ordinance — violation of it is, or was, a petty misdemeanor.

The school bus law does state that the owner cannot be convicted if someone else is convicted — motivation, I imagine, for the owner to rat out the buddy to whom he lent his car, or to surrender 16-year-old daughter Krissy to the cops. Nor is an owner presumed guilty if the car was stolen. Still, the onus is on the owner to prove that someone else was driving, and that seems fundamentally wrong — particularly when the only evidence leading to the conviction is a single school bus driver’s good word and, let’s hope, good eyesight.

The constitution says no person shall be deprived of life, liberty, or property without due process of law, i.e. a trial. Even though the school bus law doesn’t deprive anyone of life or liberty, it does deprive people of property — namely, money. And it does it without due process of law.

Posted by Steven P. Aggergaard at 7:55 PM 2 comments    

Labels: Constitutional Law, Minnesota Law

Sunday, August 27, 2006

Open and Shut Case — Not

Last week the Strib ran a piece headlined “Open-and-shut case in killing? Ramsey County jury says otherwise” where reporter Paul Gustafson did a postmortem on a murder case that — in a prosecutor’s eyes, at least — went awry.

“The facts,” Gustafson wrote, “are undisputed: Tou Fue Moua killed his brother-in-law, Joshua Lee, with a hail of bullets in St. Paul on March 2. Moua’s attorney told a jury that his client was guilty of manslaughter, and the White Bear Lake man did not claim he was insane or that he acted in self-defense. Yet the 21-year-old Moua walked out of a Ramsey County courtroom Tuesday night a free man after the jury acquitted him of first- and second-degree murder and first-degree manslaughter.”

Can’t the state appeal that? Probably not. At work in the case, most likely, is a little-known but extremely powerful legal doctrine known as jury nullification. In a nutshell, jury nullification permits a jury to acquit a criminal defendant for absolutely any reason — because the law is unjust, because the cops behaved badly, because the prosecutor’s comb-over was annoying. [Jury nullification came up in a previous most of mine, where a New York jury hearing a libel case ignored the law that truth is not a defense.]

I’ll never forget the day we talked about jury nullification in criminal law class. I literally was drop-jawed. For fun, I dug out my class notes from Criminal Law class; here’s what I wrote: “Jury nullification: too harsh penalty, punished enough, etc., hate prosecutor, don’t like how police behaved? Power jury has to render not guilty even when all evidence points to guilt. … Race-based jury nullification: OK? African American jurors have moral claim to nullification. Also look to prosecutorial discretion.”

Even though juries generally are instructed about every last element of what a prosecutor must prove, a defense attorney is generally barred from telling jurors they have this power. I’ve struggled with that rule since learning about jury nullification in law school. I’m a general proponent of providing people with more information about stuff, not less. Why not tell juries about their power? If I ended up on a criminal jury someday, could I — or should I — tell my colleagues about our power?

Jury nullification most likely was at work in the Ramsey County case. When Gustafson asked a juror whether the the jury had been troubled by some of the prosecution’s claims and witnesses, he replied, “You could say that.” The defense attorney agreed, stating that jurors “decided to nullify this prosecution. They just said, ‘We don’t believe anything about this prosecution.’ ”

Posted by Steven P. Aggergaard at 1:43 PM 0 comments    

Labels: Minnesota Law, Minnesota Media

Friday, August 25, 2006

Net Results: Going It Alone in Federal Court

Two pro se parties [pro se = not hiring a lawyer] recently litigated their own interests in Minnesota’s federal court on two factually interesting and legally important cases involving the internet. One pro se party won (for now), and the other lost.

Yesterday, Judge Michael Davis permanently enjoined William S. Purdy Sr. from maintaining domain names identical or confusingly similar to the name of the Faegre & Benson law firm. [Read the decision here.] Mr. Purdy, who is against abortion, is no stranger to allegations that he has registered domain names identical or similar to protected trademarks–including the Washington Post, Pepsi, Coca-Cola and McDonald’s. Now, apparently, he has taken on one of the Twin Cities’ largest law firms. Among the domain names at issue is BEWARE: if you go there, you’re in for extremely graphic content.

Mr. Purdy represented himself, and lost. If he does not comply with the court’s order, he risks being fined $500 a day. According to Judge Davis’ opinion, “Purdy has stated that he will not pay these amounts,” and “requested that the Court exempt his house from collection efforts.”

In the other case, a professional photographer successfully fended off a motion to dismiss his lawsuit alleging that a business violated his copyright by publishing in the yellow pages a Minneapolis skyline photo he took and posted for sale on his website. Judge Ann Montgomery rejected, at least for now, a vareity of arguments, including that the photograph “qualifies for less protection because it was published on the World Wide Web,” and that the business committed “fair use” of the photo “because it as only intended to inform potential customers that [the business conducts] business in both Minneapolis and St. Paul.” [Read more about web copyright issues here on my website.]

The “less protection on the World Wide Web” argument might have some legs, albeit short ones. Should a photographer expect less copyright protection for an image he posts online in a format that allows a high-quality version to be downloaded when you click on a thumbnail? Might clicking on that thumbnail be, in an of itself, copyright infringement, since a version ends up in your computer’s internet cache, and probably hangs around for days or weeks or until you delete it? Interesting cases and issues; stay tuned.

Posted by Steven P. Aggergaard at 12:19 PM 0 comments    

Labels: Copyright Law, Internet Law

Monday, August 21, 2006

Law Criminalizing Speech Shot Down

For good or for bad, a lot of media law gets made and interpreted in cases involving media about sex. Such was the case again today when the federal appeals court that oversees Minnesota struck down a Missouri law that tried to make it a crime to post billboards for a “sexually oriented business” or “adult cabaret” within a mile of a highway. [Go here to read the decision, written by the retiring Judge Gerald Heaney of Duluth, who was appointed to the appeals court in 1966 — by President Johnson!] The law even sought to prevent businesses located within one mile of a highway from posting on their own property anyting other than the business’ name, address, telephone number, hours, and prohibition against minors.

Because the statute sought to regulate “commercial speech” [nonlegal definition: speech that’s all about making money], the Court of Appeals applied the good ol’ Central Hudson test. Generally, under that Supreme Court test, government can regulate commercial speech as long as the law directly advances a substantial governmental interest and the law restricts no more speech than necessary.

As for the Missoui law, the appeals court agreed that there are substantial intersts in government trying to keep roads safe, porn away from kids, prostitutes out of business, and the numbers of nudie shops at a minimum, but then held that the law “is not narrowly tailored to meet its asserted goals” and that the law “sacrifices an intolerable amount of truthful speech about lawful conduct.”

The fact that the statute criminalized speech was key. In addition, as for the prohibition against certain signs on a landowner’s own land, the court observed: “Should an affected business owner choose to post a sign with the price of gasoline, or a sign advertising a nationally-known soft drink on the exterior of the business, he or she would be subject to criminal prosecution.”

Makes sense to me. As the cliche says, ya gotta take the bad with the good, or the good with the bad, or however you say it.

Posted by Steven P. Aggergaard at 7:13 PM 0 comments    

Labels: Advertising, First Amendment

Friday, August 18, 2006

Hot Out of the Oven

Today the federal appeals court that oversees Minnesota resolved a tussle between the No. 1 and No. 2 producers of frozen pizza in the country, ruling that the term “Brick Oven” is not a term worthy of a trademark. The court held that both top-dog Kraft [maker of DiGiorno, Tombstone, California Pizza Kitchen and Jack’s] and next-to-top-dog Schwan’s [maker of Red Baron, Tony’s and Freschetta] can market “Brick Oven” pizzas to you, the busy and overworked consumer of fine frozen products.

Shortly before Kraft came out with Tombstone Brick Oven style pizza, Schwan’s sued Kraft for trademark infringement because Schwan’s had something yummy called Freschetta Brick Oven pizza. Minnesota’s federal court concluded that “Brick Oven” is a “generic term” that cannot be trademarked, and today the appeals court agreed, noting that Schwan’s longtime head of the Freschetta brand admitted that Brick oven pizza is “a pizza that is cooked in a brick oven.” Brilliant!

Further, said the court: “Commentators and retailers within the frozen pizza industry also use the term Brick Oven to identify pizza that is baked in a brick oven or the term Brick Oven style to identify pizza that appears to have been baked in a brick oven.” Why, yes! Gotta love legal reasoning.

Posted by Steven P. Aggergaard at 5:12 PM 0 comments    

Labels: Trademark Law

Wednesday, August 16, 2006

Interstate Headache?

The Alfonso Rodriguez trial is off and running in Fargo’s federal court, with the defense signaling that it will argue that the prosecution cannot prove beyond a reasonable doubt where Dru Sjodin was killed. In the opening statement, Rodriguez’s lawyer told that jury that federal prosecutors cannot prove “when Dru Sjodin died, nor will anyone tell you where she was when she died.”

This is important because one of the key statutes cited in the federal indictment makes it a federal crime to kidnap someone and transport that person, dead or alive, across state lines. [Read the statute here. Read the indictment here.]

Specifically, the statute applies “regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began.” In other words, if in fact Rodriguez killed Sjodin and drove her across state lines, the statute appears not to apply if she was dead before Rodriguez put his foot on the accelerator. And we must not forget that it is the prosecutor’s job to prove, beyond a reasonable doubt, when Sjodin died.

If federal jurisdiction does indeed rest solely on this kidnapping statute, I do not see how Rodriguez could be convicted in federal court if the time of death cannot be proven. If he is acquitted in federal court, could he be tried again in North Dakota state court? Twin Cities criminal defense attorney Anthony Torres was on MPR this morning, and he was not sure what might happen should Rodriguez be acquitted in federal court. Wow.

Wouldn’t that be something if the “thirst” for the death penalty — available in federal court, but not North Dakota state court — ultimately was what led to Rodriguez’s acuqittal?

Posted by Steven P. Aggergaard at 12:44 PM 0 comments    

Labels: Federal Law

Sunday, August 13, 2006

Identity Theft of a Tortious Kind

For centuries, Americans have enjoyed a general free-speech right to speak without divulging their identity. Of course, this right fits internet speech remarkably well. Anonymous bloggers and other web communicators generally can count on keeping their real names secret, although the law is developing as to when, for instance, an internet service provider can be forced to divulge a web communicator’s identity.

But does this right to anonymity translate into a right to pretend you are someone who you are not on the internet, whether for fun or for political gain? For instance, is there a First Amendment right to create fake profiles about, say, about Minnesota Gov. Tim Pawlenty? [See story in today’s Strib about just such a fake profile.]

I do not think there is such a right, and apparently shenanigans like this are on the rise. The Strib story explains that the North Carolina governor also had such a profile posted, which a governor’s spokesperson considered “libelous.”

I am not sure such a prank is “libelous” [i.e., defamatory] as much as it is an invasion of privacy under Minnesota law. Minnesota’s law on invasion of privacy is in its infancy; the tort has been recognized only since 1998, in a case where Wal-Mart employees in Dilworth, Minnesota, distributed nude photographs of two area residents around town and where the Minnesota Supreme Court essentially said “enough is enough” and joined the vast majority of states in recognizing invasion of privacy. [See my web site for more info on invasion of privacy.]

Anyway, among the brands of invasion of privacy that the court recognized was “appropriation” — when someone “appropriates to his own use or benefit the name or likeness of another.” The 1998 case was interesting because although the court recognized appropriation as a tort, appropriation was not at issue in the case, and I do not know of any appropriation lawsuit ever arising in Minnesota. [Please post a comment or send me e-mail if you know of one!] Appropriation is more of an issue in places like celebrity-rich L.A. and in media such as advertising, where a star’s picture might be “appropriated” without consent.

As I explain on my web site, it probably is mighty tough for a governor to sue for defamation. But could a governor sue for appropriation? Hmm …

Posted by Steven P. Aggergaard at 9:09 PM 1 comments    

Labels: First Amendment, Internet Law, Privacy

Friday, August 11, 2006

Another New Yorker Discovers Minnesota — The Mall, at least

Alex Kuczynski, the New York Times’ “Critical Shopper,” wrote a not-exactly-insightful piece in the Old Gray Lady’s ThursdayStyles section about, you guessed it, the Mall of America. His lead:

Ask people what comes to mind when you mention Minnesota, and you’ll get a pretty good idea of what’s on their mind. A brief poll among my acquaintances turned up the following answers: Lake Wobegon, rehab, the Mayo Clinic and the Mall of America.

Ugh. I like most things about the New York Times, but I believe it’s the nation’s last newspaper where travel funds are allotted for totally mindless pieces that do little more than confirm a coast-dweller’s stereotypes about flyover country. My favorite gaffe came a few years ago when the NYT identified the St. Paul Winter Carnival as taking place in Minneapolis.

So, with the MoA story, there was this infobox:

Shops New Yorkers Will Understand: Swatch, MAC, Urban Outfitters, Sephora.
Shops New Yorkers Won’t Understand: As Seen on TV, Archiver’s, the Photo Memory Store, Alamo Flags, Tall Girl.

C’mon, there must be at least one 5-foot-11, TV-watching, sentimental, scrapbooking woman who enjoys Texas history who lives in New York!

Anyway, the Critical Shopper brought his 8-year-old half sister along for the ride, to browse through stores, eat personal pan pizza, and of course to experience the watery Log Chute. But, as the Critical Shopper concedes, “After three hours, I had spent money on rides, food and games but nothing on actual merchandise.”

Now that’s critical shopping, Alex!

Posted by Steven P. Aggergaard at 8:36 AM 0 comments    

Labels: Etc.

Thursday, August 10, 2006

The Fear Factor

I awoke at 5:20 this morning to a WCCO radio announcer promising — and I must paraphrase the quote, given my then-drowsy condition — of a “live report from the Twin Cities airport related to this latest report.”

Uh boy, I thought, another thwarted terror plot?

Indeed, that was the news. As I continued to wake up, WCCO turned things over to a 5:31 a.m. CBS Radio “special report” about the foiled plot to blow up U.K-to-U.S. airliners with “liquid explosives.” Consistent with my morning ritual, I got up and turned on Minnesota Public Radio, and they, too, were talking of the plot, and how passengers were being allowed no liquid (except baby formula) on planes, and how carry-on luggage was being banned. MPR, too, promised a live report from Twin Cities International. Soon came reports of long lines at the airport. Imagine that!

My next stop was the BCC on the Internet. Indeed, they were airing a report from Heathrow about the foiled plot. But then it was over as soon as it began, and the announcer moved on to the next story — how British Petroleum’s shutdown in Alaska might affect not just the United States West Coast, but also the rest of the world as BP diverted resources to satisfy America’s thirst for $3.20-a-gallon gas.

I tuned back into the BBC at 6:50 a.m., after my morning run. Their coverage at that time? Football, not terrorist plots. MPR, meanwhile, couldn’t stop talking about the foiled “liquid explosives” plot.

Maybe British folks are more accustomed to living with terror — both accomplished plots, and thwarted ones. Maybe the BBC was underplaying the story. Maybe the U.S. media are getting it right this morning by trumpeting the news from overseas and knee-jerk reporting the totally predictable local angle about “long lines at the airport” without asking this important question: How, exactly, does someone blow up a plane with “liquid explosives”?

It’s hard to know …

Posted by Steven P. Aggergaard at 8:05 AM 1 comments    

Labels: Minnesota Media

Sunday, August 06, 2006

Quick News Hits Have Me Seeing Amber

It’s no secret that Minnesota’s Mainstream Media, and broadcasters in particular, tend to favor quick-hit crime news, whether serious, salacious, or silly. You know the story. North Minneapolis grieves over overnight killing (insert candlelight vigil video here). Suburban teen makes notebook drawings threatening to shoot up his school (insert grainy yearbook photo here). Small-town dad kills wife and kids, out where “things like this just don’t happen” (insert video of yellow police tape in front of mailbox by driveway here). Dumb criminal drops wallet containing ID while holding up convenience store (insert surveillance video here).

Some explain this as the “it bleeds, it leads” phenomenon — that MSM broadcasters are simply giving people what the want: crime news. I offer another explanation: this stuff is really, really easy (read: cheap) to report. The tools of the trade are a camera, a police scanner, some hairspray, and perhaps a satellite truck. Little thought required. Print media follow the pack because everybody ends up thinking it’s news, when in reality a Minnesotan is much more likely to die from inaccessibility to health care than from random gunfire on Block E.

But easy-to-produce, quick-hit stories that can make a difference are Amber Alerts — the bulletins about abducted children that are broadcast and placed on highway message signs. Minnesota issued an Amber Alert around noon Saturday for a 5-year-old Brooklyn Center boy whom his father reportedly had abducted and threatened to kill. I first learned about it at 2 p.m. Saturday not through MSM, but from a freeway message sign on Interstate 94, and I must admit, I started scanning eight lanes of freeway for Red Yukons with license number blah, blah, blah. Later in the afternoon, a Pennsylvania state trooper, armed with the Amber Alert info, pulled over dad’s SUV and found kiddo safe and sound.

Although “the media” — MSM, Internet-based, or freeway message board operators — perhaps cannot be credited with finding this Minnesota tyke, this sort of story is one of the rare ones that is easy (read: cheap) to produce, is human interest, is “news you can use,” and can even save a life. Said Kevin Smith of the state Department of Public Safety: “This is an example of how an Amber Alert is supposed to work.”

Yes, it is.

Posted by Steven P. Aggergaard at 7:53 AM 0 comments    

Labels: Minnesota Media

Friday, August 04, 2006

Strippers vs. Scriptures

Federal judge Michael Davis has struck down (for now) the Minnesota law that prevents “adult entertainment establishments” from operating within 500 feet of residences or within 2,800 feet of schools or places of worship. Last month I blogged about how issue was being felt in Duluth; the most recent post is here. Find the law here.

Anyway, according to the Duluth News Tribune, on Wednesday Judge Davis issued a temporary injunction against the law, as well as against a Duluth city ordinance specifying that adult establishments had to be at least 400 feet away from pedestrian plazas and 600 feet away from churches, parks, schools and residential zones. I cannot find a copy of Judge Davis’ written ruling online, and the newspaper story is short on details, but the bottom line seems to be that the state’s adult entertainment law is in trouble.

The timing is, um, interesting, given a piece in this morning’s Star Tribune that says the Minneapolis City Council might consider a downtown Christian concert venue — purportedly the “nation’s largest urban Christian nightclub — to be a “religious institution place of assembly,” such that a strip bar cannot open across the street and down the block from it. The strip bar would be 298 feet from the Christian concert venue; a Minneapolis city ordinance forbids strip clubs from opening within 500 feet of churches and other “religious institution places of assembly.”

Stay tuned, free speech fans.

Posted by Steven P. Aggergaard at 6:48 AM 2 comments    

Labels: First Amendment

Thursday, August 03, 2006

North Dakota Bags a Win Over Minnesota

North Dakota can keep on restricting Minnesotans and other out-of-staters from hunting during certain times and can charge them big bucks for hunting licenses, thanks to a pretty odd decision released by the Eighth U.S. Circuit Court of Appeals today.

Minnesota sued North Dakota over its super-tight hunting restrictions several years ago, arguing that its neighbor to the west was restricting commerce in violation of the United States Constitution. Specifically, North Dakota excludes nonresidents from hunting during certain times, and charges out-of-staters $85 for licenses that are either free for in-staters or cost 6 bucks.

The decision was odd not because it was poorly reasoned or written, but because of what the oddballs in Washington, D.C., did in 2005. Turns out that tucked inside the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Reief” was a section called the “Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005,” where Congress basically said that North Dakota can do exactly what it was doing.

How does Congress get away with that? Garbage in, garbage out.

Posted by Steven P. Aggergaard at 8:03 PM 0 comments    

Labels: Federal Law

Wednesday, August 02, 2006

Going, Going, Gone!

So the same week that Minnesota Twins standout and St. Paul hero Joe Mauer graces the cover of ol’ standby Sports Illustrated, word comes that the Twins are leaving another old standby, clear-channel WCCO-AM, in favor of KSTP-AM. Surprise, surprise: Ad revenue was the deciding factor.

The Twins’ Upper Midwest “radio network” appears to be due for an expansion, since KSTP’s signal is not as clear and strong as is WCCO’s. And Herb, John, and Dan will keep on broadcasting, it seems.

This might not be such a bad deal, from a Minnesota-centric standpoint. WCCO is owned by CBS, while KSTP is locally owned by Hubbard Broadcasting. Of course, the Twins are owned by Minnesotan Carl Pohlad. Wow! A locally owned radio station will broadcast the games of a locally owned baseball team, whose star is a locally produced product. Hail Minnesota!

Posted by Steven P. Aggergaard at 9:50 PM 0 comments    

Labels: Minnesota Media

Thursday, July 27, 2006

Winning the Battle, Losing the War

Earlier this week, Sen. Richard Lugar and Rep. Mike Pence, both Republicans from Indiana, told the National Press Club why their proposed federal “shield law” for journalists would be good. The NPR broadcast of the speech was part preaching to the choir and part head-scratching about why two Republicans from Indiana would sponsor such a press-friendly bill.

Here’s my take, which diverges significantly from most if not all of my journalist colleagues who literally have rallied in Minneapolis and elsewhere in favor of this legislation:

By passing a law that favors journalists, Congress gets to define who is a journalist. This in turn increases government control over the media, to the detriment of the First Amendment, which was enacted not to protect for-profit MSM, but to protect the pamphleteers of yesteryear and — yes! — the bloggers of today.

Shield laws” generally shield journalists from being forced to testify or otherwise reveal information they received under cloak of confidentiality. The theory is that by protecting journalists, we protect the free flow of information because sources will dry up if they risk being unmasked. Almost all states have shield laws, Minnesota included, but they apply only in state courts. Hence, the purported need for a federal shield law, to prevent more Judith Millers from going to jail.

Minnesota’s shield law generally protects people “directly engaged” in gathering, editing or publishing the news. Exceptions might arise when a crime has been committed or a defamation lawsuit is pending. While a blogger might be protected under Minnesota’s law, the Lugar-Pence bill defines a journalist as someone who “disseminates information” by publishing a periodical, running a news agency, or operating a radio or television station, cable system, or satellite carrier. Read: not bloggers.

By contrast, a version introduced by Senator Christopher Dodd, a Democrat from Connecticut, would protect someone whose function is “gathering of news or information” and who intends, at the time the news is gathered, to disseminate it through a wide range of media, including through any “electronic means.” Read: bloggers.

Dodd’s bill is stalled, Lugar and Pence continue to champion theirs, and my friends in MSM are blindly heaping praise on two seemingly friendly Hoosier Republicans. Trouble is, by winning this battle, MSM journalists risk losing the war for their blogging brethren.

Posted by Steven P. Aggergaard at 7:27 PM 1 comments    

Labels: Media Law, Minnesota Law

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Saturday, July 22, 2006

Missing (Brain) Link

The Fargo Forum has a story today that reveals once again (1) how do-it-yourself media is a teriffic tool for law enforcement, (2) how video images of crimes breed outrage, (3) how some online communicators ignorantly think only a few people will see what they post, (4) how exceptionally stupid some people are, and (5) how efforts to foment outrage by posting graphic video clips might backfire.

According to the story, an 18-year-old guy from northwestern Minnesota will appear in court Monday for dousing a turtle with gas and setting it on fire. Somebody videotaped the stunt, somehow it was posted online, and someone tipped off cops in Hawley, Minnesota as to the graphic display of animal cruelty. Two juveniles also are implicated.

Predicably, outrage has gone worldwide. Once again, people are signing petitions asking for the maximum penalty for these dumb Minnesotans. PETA’s website has an “Action Alert” about the incident, and has posted the video with hopes that people contact the police and prosecutor to thank them for their efforts.

I found and watched the disgusting video, but I’m not posting a link to it; go find it yourself if you must. I fear PETA’s effort does more harm than good. Wackos who delight in stunts like this are more are inclined to track down the video than are petition-signers, whose efforts make little difference.

Also, while animal cruelty is horrible, human-to-human cruelty is terrible too. From fights on city buses to incidents of child abuse, every day Minnesota courts are loaded with people abusing people, and sometimes the crimes are caputured on surveillance tape and by other video means. Where is the outrage at society’s failure to further nonviolene against not just turtles, but humans?

Posted by Steven P. Aggergaard at 1:25 PM 0 comments    

Labels: Internet Law, Minnesota Media

Thursday, July 20, 2006

Pawlenty Wants Feds to Ban Drug Ads, But How Many?

Minnesota Governor Tim Pawlenty uncorked somewhat of a First Amendment bombshell today by proposing that the federal government ban all consumer drug advertising for two years. Explains the guv:

The billions of dollars drug companies spend pushing the “purple pill” or promising you dreams of butterflies while you sleep at night continue to drive health care costs upward. We need to say “time out” when it comes to drug ads and examine how much this is costing each and every one of us.

I agree, those ads are not only annoying and misleading, they’re downright dangerous. But while the ads may contribute to addiction and higher prices, they’re also reflective of our take-a-pill-and-it’ll-be-all-better society. But so is banning speech! Restricting information is no cureall. Banning hate speech certainly would not eradicate hate.

Pawlenty, of course, has no official sway over Washington; all he can do and all he has done is write a letter to Congress. But his plan is terribly vague, and maybe overbroad. Does he want the feds to ban all advertising? Probably not, because a federal law banning all drug ads would be an unconstitutional prior restraint of the worst kind. Likely, Pawlenty wants to ban ads on TV, and maybe radio. The feds can do this because they control broadcasters’ licenses. But the drug companies would not go nighty-night for two years without a fight. Can you say mucho Internet pop-up ads with streaming video? Probably can’t ban those …

We all should worry when powerful people want to ban speech, even speech we despise. The antidote to problems like this almost always is more speech, not less. For example, media consumers need to get more information about where their ads come from — they need to wake up and not sit dazed and gullible while passively soaking up paid-for propaganda.

And there always is this solution, which is the closest thing we have to a cureall: Turning off the stupid TV.

Posted by Steven P. Aggergaard at 7:12 PM 2 comments    

Labels: Advertising, First Amendment

Wednesday, July 19, 2006

Remembering Flight 232

Seventeen years ago today, I covered the biggest story of my reporting career — a story that solidified my interest in the media, and spawned my interest in the law. On July 19, 1989, United Airlines Flight 232 crash-landed in a fireball in Sioux City, Iowa, killing 111 of the 296 souls aboard.

I was 22 at the time, a rookie reporter making $265 a week at the Fort Dodge Messenger, a daily paper in north central Iowa. I was working my 1-to-10 shift when Editor Larry Johnson and I simultaneously saw an Iowa map on CNN and the words “plane crash” on the screen. Larry pointed at me and at fellow reporter Russ Roberts and said, “Go!”

As we drove way too fast among the Iowa cornfields — passed only by emergency vehicles heading to the scene — radio reports suggested that the story was not to be death, but was to be survival. We were among the first reporters to arrive at the airport. As I entered the terminal, Twin Cities TV reporter Bernie Grace pulled up, in the back of a farmer’s pickup. Apparently he had flown into an airport nearby and hitched a ride.

I approached a 13-year-old girl and her grandmother who were seated in the Sioux City terminal. Turns out they had seen the crash while seated on a Northwest Airlines jet. For a while, my interview was “exclusive” and I got great stuff — until the TV cameras showed up with their lights, which caused the girl and grandma to clam up.

Survivors who wanted to talk were made available to the media in a hospital conference room. I’ll never forget interviewing the passenger who re-entered the burning plane to rescue his infant daughter who somehow had become lodged in an overhead baggage compartment.

As the months passed, I covered the cornfield recoveries of engine parts blamed for the crash. Two years later, the federal court lawsuits had been consolidated in Chicago — where I went for my master’s degree in journalism. I made Flight 232 a J-school project by investigating the damages awarded to survivors and victims’ families. But the courthouse experience made me think that someday it might be fun to write, and not just write about, those legal pleadings.

Posted by Steven P. Aggergaard at 7:08 AM 0 comments    

Labels: Etc.

Chief Dispute Ends

Judge Kathleen Gearin ruled Tuesday that Ramsey County sheriff candidate and former St. Paul Police Chief Bill Finney cannot be listed on the ballot as “Bill Chief Finney.” She cited the the law that I cited in my first blog entry on the brouhaha — that a candidate’s name must not appear on a ballot “in any way that gives the candidate an advantage over an opponent, including words descriptive of the candidate’s occupation.”

In her opinion, Judge Gearin gushed over both Finney and incumbent Bob Fletcher, stating that county citizens “have always had great affection and respect for our law enforcement officers.” But according to the judge, the fact that people refer to past public officials as “chief,” or as “governors, senators and judges” for that matter, does not mean they get to appear on the ballot that way.

MPR was reporting this morning that Finney will not appeal the ruling.

Posted by Steven P. Aggergaard at 6:41 AM 2 comments    

Labels: Minnesota Law, Minnesota Politics

Monday, July 17, 2006

Law and Order, for Real (Video)

The Pioneer Press has a dandy online package posted today explaining the merits of the requirement in Minnesota that police officers must videotape interrogations. Minnesota was at the forefront of requiring this, and several more states have followed. The online package includes some eye-opening “real video” of such interrogations, including the one where a suspect claiming to be blind starts reading when detectives leave the room.

The Pioneer Press story refers to a 1994 Minnesota Supreme Court case in which the requirement was enacted. In State v. Scales, the court stated in strong fashion:

[I]n the exercise of our supervisory power to insure the fair administration of justice, we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.

Posted by Steven P. Aggergaard at 6:30 PM 2 comments    

Labels: Minnesota Law

Saturday, July 15, 2006

Sheriff Supporter Sues, But Sheriff Also Sued

Issues involving races for Ramsey County Sheriff continue to intensify in court. On Thursday, MSM reported that Sheriff Bob Fletcher’s supporters have sued seeking to prevent challenger and former St. Paul police chief Bill Finney from having his name listed as “Bill Chief Finney” on the ballot. I blogged about the topic here.

But also on Thursday, federal judge Ann Montgomery ruled that John H. Moore, a prior Fletcher opponent, could sue Fletcher for violation of his First Amendmment rights. I do not see that this decision has been reported in MSM yet. According to the court’s opinion, Moore and a supporter in the sheriff’s department were essentially demoted for exercising their right to engage in politcal speech about Moore’s candidacy.

Fletcher argued that jobs in his department were subject to “political patronage,” such that political loyalty was a requirement. Judge Montgomery disagreed, in part because the employees were covered by collective bargaining agreements that clearly stated that such “discrimination” based on political beliefs was forbidden. Judge Montomery further held that both the county and Fletcher could be liable because Fletcher had the power to make the final call over such alleged demotions.

The decision is notable for media and communicators in general in this age when the law is still being developed as to when and where bloggers can (or cannot) blog about work.

Posted by Steven P. Aggergaard at 10:47 AM 0 comments    

Labels: First Amendment, Minnesota Law, Minnesota Politics

Friday, July 14, 2006

The Flags Fly Low

Sometimes it seems as if the American and Minnesota Flags are at half staff more often than not. We seem to be a state and nation in a perpetual state of mourning. Indeed, a state law passed in 2004 mandates that the flags be at half staff anytime a police officer or military person is killed, “for a period of time determined by the governor.”

That time seems to be sunrise to sunset, according to a page titled “Flags at Half Staff” on Gov. Pawlenty’s web site. So far this year, flags have been lowered for five Minnesotans who gave their lives in the ongoing military effort, but Pawlenty also has ordered them lowered for the deaths of Coretta Scott King and Eugene McCarthy, and for “Peace Officers Memorial Day.”

The year before, they were lowered for the deaths of 18 servicepeople, as well as for the deaths of Rosa Parks, William Rehnquist, Joseph Karth, Pope John Paul II, and for “Patriot Day,” Victims of Hurricane Katrina, Peace Officers Memorial Day, Memorial Day, and the Red Lake shooting victims.

As a kid, I remember looking at half-staff flags with awe and reverence because they were seen that way so rarely. Not anymore, unfortuately.

Posted by Steven P. Aggergaard at 6:13 PM 0 comments    

Labels: Etc.

Wednesday, July 12, 2006

Public Library Not So Public When Katie Is In Town

CBS News’ attempt to save its 5:30 network news broadcast from obsolescence rolled into Minnesota today as Katie Couric, the show’s new anchor, made the Minneapolis Public Library a stop on something called an “Eye on America” road show. The effort, apparently, was intended to get in touch with what Minnesotans are feeling — through an invitation-only, no-reporters-allowed system of exclusion at a public building.

Great. Get the state’s pulse by excluding Minneapolis residents from their public library. And MSM wonders why it’s increasingly seen as irrelevant? Wow.

Jane Kirtley over at the U summed it up perfectly on the Strib website: “It seems like something the president would pull. At a time when the news media is trying to gain the trust through transparency, to have a meeting closed to the media and the general public is unbelievable. … But what really offends me is, let’s not pretend for a minute this is going to get the pulse of Minnesota.”

It’s beyond me why anyone, non-CBS MSM and bloggers included, should care that Katie Couric is in town. But care we do, I guess.

Blogger Matt over at apparently was invited to the event by fellow blogger, frequent MNSpeak contributor, and oh yeah WCCO reporter Jason DeRusha, even though Matt could be classified as among the unwashed, unwelcomed “media.” Apparently, somebody at WCCO wanted Matt to leave or surrender his notebook, but took his pen instead. You can’t make this stuff up!

Predictably, a firestorm is brewing in Twin Cities-area blogland. Comments to MNSpeak at this hour include the inane [“so the question remains: is she hot? or creepy? or creepy hot…] to the insightful [“Folks, some perspective please. Is anyone really surprised that this is anything more than a promotional event?”].

CBS and WCCO have the same right as anybody else, I guess, to rent space at the the Minneapolis Public Library and close it off to the general public. But I wonder, did CBS and WCCO pay anything for the privilege of closing off access to a public building during this obvious attempt at self-promotion?

Posted by Steven P. Aggergaard at 7:33 PM 1 comments    

Labels: Minnesota Media

Tuesday, July 11, 2006

Contortionistic Constitutionality?, Part 2

The deal in Duluth where the contortionist got labeled as “adult entertainment” raises some simmering media-law issues to the surface. True, live performance isn’t really “media” in the traditional sense, but like it or not nude dancing is a form of communication, and any laws that purport to rein in communication deserve scrutiny.

Laws represent society’s attempt to prevent and punish wrongs, or some would say legislate morality. But we as a society are being rather two-faced about our morals when it comes to “adult” speech.

On the one hand, we try to run nude dancing, dirty bookstores, and peep shows, out of town. Traditional broadcaster CBS gets fined more than a half million bucks for a Super Bowl “wardrobe malfunction” that was barely as racy as a trip to a Miami beach. Congress backs a ten-fold increase in the fine levied for airing “indecent” or “profane” material during “family viewing hours.” And FOX News continues on a holier-than-thou tirade in the name of “family values.”

On the other hand, pornography is rampant on the unregulated Internet. Cable TV is more profane and nudie than ever. Abercrombie & Fitch catalogs use sex to market to the under-18 set. And while FOX News preaches purity, other FOX programming [Mad TV, The Family Guy, The Simpsons, Cops] puts the fun in dysfunction and oftentimes borders on the profane.

Posted by Steven P. Aggergaard at 7:54 PM 0 comments    

Labels: Media Law

Contortionistic Constitutionality?

Duluth officials have decided that a “live contortionist” fits the legal definition of an “adult” entertainer, such that her performance last week was sanctioned under a new Minnesota law. “She wasn’t stripping,” a Duluth adult-bookstore owner told the News Tribune. “I turned my back for a minute and I heard the officer say, ‘That’s it,’ and he started writing the ticket.” None of my customers saw anything sexually explicit. . . . She had clothes on.”

The contortionist, according to the bookstore owner, is ‘‘a really flexible person. She could touch her heel to her forehead.”

The new law generally forbids an “adult entertainment establishment” from operating within 500 feet of residences, or within 2,800 feet of schools or places of worship. Such an “entertainment establishment” is defined as a “business that is open only to adults and that presents live performances that are distinguished or characterized by an emphasis on the depiction of sexual conduct or nudity.” Minnesota’s attempt to define “sexual conduct” may be found here. The theory is that these “establishments” breed crime and “communicable diseases.”

The law permits Minnesota citites to enact their own versions of this law, as well. According to the News-Tribune story, Duluth intends to pass an ordinance permitting nude dancing to continue at the infamous Club Saratoga in touristy Canal Park, but not at the somewhat gritty venue where the contortionist did her contorting.

The law itself and Duluth’s stated intention to apply it selectively raise way too many constitutional issues for media and other communicators to state in a single blog entry. Here’s one random thought, though: Is there any public appetite for a law that bans “really flexible” males who wear too-tight tights and contort themselves before screaming and sometimes pot-smoking (law-breaking) or even violent “adults” at the Duluth Entertainment Convention Center or similar Minnesota “wrestling” venues?

Posted by Steven P. Aggergaard at 8:30 AM 0 comments    

Labels: First Amendment, Minnesota Law

Monday, July 10, 2006

Boy Soldier Wants Out; Guard Says “Come On!”

So the Strib reports that a 17-year-old South St. Paul boy’s immigrant parents who don’t read English signed a document letting the kid enlist with the National Guard, and now the teenager wants out but the Guard is playing hardball. “He is a soldier,” a Guard spokesman says. “The recruiter ensured that both parents concurred with Private Valle’s decision to enlist. … Both parents reviewed documents and allowed their son to join the military at the age of 17.”

(Newspaper reporter points out to Guard guy that parents can’t read English.)

“I can’t speak for the parents,” says the Guard spokesman. “It is incumbent that the parents seek counsel if they cannot read the contract. Come on. It would be a pretty important document to sign.”

Come on“???

What’s “incumbent” in this situation is that the Guard should be providing “counsel” (i.e. an interpreter) to immigrant parents of 17-year-olds who think they want to join the Guard.

Posted by Steven P. Aggergaard at 3:42 PM 0 comments    

Labels: Etc., Minnesota Media

Sunday, July 09, 2006

Here’s a Weird Really Story

Channel 5 in the Twin Cities ran a bizarre story a few days ago about the race for Ramsey County sheriff. Candidate Bill Finney, former St. Paul police chief, wants to be listed as “Bill Chief Finney” on the ballot. “Chief” is his nickname, he says. Current Sheriff Bob Fletcher returned fire. “My name will appear as Bob Sheriff Fletcher,” he says. “People refer to me as Sheriff. Many people don’t even know my first name.”

Channel 5 claims that “the law says a ballot can include the name by which the candidate is commonly known.” The TV station concludes that “Chief Bill Finney” is a no-go, but “Bill Chief Finney” might be OK.

Well, hmm. Here’s what “the law” says:

The name of a candidate shall not appear on a ballot in any way that gives the candidate an advantage over an opponent, including words descriptive of the candidate’s occupation, qualifications, principles, or opinions, except as otherwise provided by law.

In 1984, the Minnesota Supreme Court, which has ultimate say over all state election issues, shot down a congressional candidate’s attempt to get her name listed on the ballot as — I am not making this up — “Shelvie Prolife Rettmann.”

Undoubtedly, Prolife Shelvie Rettmann and Shelvie Rettmann Prolife would have run afoul as well. At least I hope so.

Posted by Steven P. Aggergaard at 6:38 PM 0 comments    

Saturday, July 08, 2006

Picture This: A Drive for Voters’ IDs

Polinaut has posted a provocative piece to ponder:

Rasmussen Reports came out with a poll saying 77% of those polled agree that states should require a photo id to vote. 7 states, including Georgia, passed laws requiring the photo id to vote. Minnesota Secretary of State Mary Kiffmeyer, a Republican, supports the photo id requirement.
I am far from being a voting rights expert, but you don’t have to be a lawyer to realize that a photo ID requirement raises important constitutional issues. The 15th Amendment to the United States Constitution says no state may deny or abridge the right to vote, the 19th Amendment says women get to vote [duh], the 24th Amendment prohibits poll taxes in elections for federal office, and the 26th Amendment says 18 year olds get to vote.

Four concerns: (1) ID cards are ridiculously easy to fake. Ask any college freshman with a laser printer and a light class load. (2) Photo IDs usually are synonymous with driver’s licenses. Poor people are less likely to drive. Hence, fewer poor people vote, which violates the 14th and 15th Amendments. (3) Are the IDs free? If not, this sounds like a poll tax under the 24th Amendment. (4) For religious reasons, some women do not reveal their faces for photographs. Conditioning their right to vote on doing so violates the 19th Amendment, as well as the First Amendment.

Posted by Steven P. Aggergaard at 7:45 AM 1 comments    

Friday, July 07, 2006

Parking Ticket Quota No Longer on the QT

Two story ideas never seem to die in newsrooms: (1) gas stations are in cahoots with each other in fixing prices, and (2) cops have ticket-writing quotas. Today the Pioneer Press proved No. 2 to be correct, sort of at least, and created quite a stir. Several, if not all, of the local TV stations followed the Pioneer Press and did the story on tonight’s evening news shows.

But it turns out, parking cops aren’t really cops. There was this explanation from the Pio Press:

It is against Minnesota law for agencies to set quotas for peace officers issuing traffic citations, but because St. Paul parking officers are civilians, the department’s policy is lawful, [Cmdr. Eric] Anderson said.

Indeed, this Minnesota statute was passed in 1990:

A law enforcement agency may not order, mandate, require, or suggest to a peace officer a quota for the issuance of traffic citations on a daily, weekly, monthly, quarterly, or yearly basis.

“Peace officer” is defined elsewhere to include persons who are licensed by the Board of Peace Officer Standards and Training. So apparently it’s against the law to set quotas for the women and men in blue who are sworn to protect and to serve, but not for the women and men to whom many swear words are served. Rational basis, or irrational statutory distinction?

Posted by Steven P. Aggergaard at 10:35 PM 0 comments    

Thursday, July 06, 2006

Border to Border Oddity

Yesterday Tim Pawlenty, governor of a northern border state, exercised his statutory right to send the state militia — the Minnesota National Guard — to a southern border state to fight “nearly out of control” illegal immigration. It’s true that few Canadians are canoeing across the Boundary Waters to clean offices in downtown Minneapolis and empty bedpans in West Duluth, but isn’t this more than a little odd?

The rationale, according to the governor, is this: “Our current level of border enforcement is embarrassing and this operation will help improve our nation’s security and prevent illegal immigration. Securing America’s borders is an urgent national priority and we must all do our part.”

No one has cited a legal rationale for what the governor has done. Here’s what a Minnesota statute says on the subject:

In case the United States is at war or in case of any other emergency declared by the president or the Congress of the United States or by the governor or the legislature of this state, any organization, unit, or detachment of the military forces of this state, by direction of the governor and upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionists, saboteurs, enemies, or enemy forces beyond the borders of this state into another state until they are apprehended or captured by such organization, unit, or detachment, or until the military or police forces of such other state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture the persons pursued, provided such other state shall have given authority by law for such pursuit by such forces of this state.
A permissible and appropriate deployment, or a political ploy? Hmm …

Posted by Steven P. Aggergaard at 8:06 AM 3 comments    

Tuesday, July 04, 2006

What’s Missing from This Picture?

It looks as if the Twin Cities MSM has teed up for some gavel-to-gavel coverage of the Dru Sjodin federal court murder trial, even though the locale of the crime (Grand Forks) is about as far away from the Minnesota State Capitol as is Milwaukee.

Don’t get me wrong, this was a horrible crime, where a 22-year-old woman apparently was abducted from a mall parking lot while talking to her boyfriend on a cell phone. The trial is big news for the Grand Forks area, and the outcome will be news region-wide amid the possibility that convicted sex offender Alfonso Rodriguez Jr. could be executed even though neither North Dakota (from where she was abducted) nor Minnesota (where her body was found) has the death penalty. This all has stirred some totally predictable media-created “debate” over whether Minnesota should resurrect the death penalty from its century-long slumber.

But is daily coverage and a special Dru Sjodin web page the right thing to do? Who remembers that a year before Sjodin’s abdudction, 19-year-old Russell Turcotte disappeared from a Grand Forks truck stop after talking with his mom, and that his remains were found three months later? And that around the time of Turcotte’s disappearance, 7-year-old Alexis Patterson went missing in Milwaukee, which is, like Grand Forks, about 325 miles from downtown St. Paul? At last check, both Turcotte’s murder and Patterson’s disappearance remain unsolved.

Turcotte was Native American. Patterson is African-American. Everyone reading this knows what Dru Sjodin looks like. This is a difficult situation.

Posted by Steven P. Aggergaard at 6:06 PM 0 comments    

Celebrate Your Independence

On Independence Day 2006, there is no better place than a blog to celebrate the independence of free expression — the independence to say whatever I want, with barely any restriction or fear of persecution or prosecution. What a gift.

Who is credited with giving it? The First Amendment’s “framers” come to mind. The First Amendment, as enacted in 1791, prevented the federal government from suppressing speech. In 1931, in Near v. Minnesota, the United States Supreme Court invalidated a Minnesota law that permitted the state to shut down newspapers as “nuisances,” and in so doing clearly held for the first time that the federal constitution also prevented state and local governments from suppressing speech. Until then, Article I, Section 3 of the Minnesota Constitution, enacted a year before statehood, protected Minnesotans’ free expression.

But much credit should go to John Peter Zenger, a printer in the colony of New York who printed many items critical of New York’s Royal Governor. Zenger was tried for seditious libel in 1735, and under the controlling English law truth was no defense. In other words, the law permitted Zenger to be imprisoned for printing the truth.

Accounts of the trial suggest that the judge instructed the jury that there was little they could do but convict Zenger. But the jury nullified the law, exonerated Zenger, declared independence from English tyranny, and established a key tenet of American free expression: that truth is the ultimate defense.

Happy Independence Day.

Posted by Steven P. Aggergaard at 9:03 AM 0 comments    

Monday, July 03, 2006

When Accusers Go Unnamed

There are perhaps few crimes more heinous than rape, and there is perhaps no dilemma more nettlesome for newspapers than deciding who gets named in a news story about an alleged sexual assault. According to a 1989 United States Supreme Court decision, the news media have a First Amendment right to report rape victims’ names, but for good reason they usually do not do so. But no policy is absolute.

The dilemma is being displayed in this morning’s Star Tribune, which reports about a delay in an Aitkin County trial in which a woman alleged that her mother, father and uncle repeatedly tortured and sexually assaulted her from age 3 until she was 23. Now, according to reporter Larry Oakes’ story, the trial has been delayed so the county attorney can present the case to a grand jury “for reconsideration of charges.”

The alleged abusers names, ages, and hometowns are contained in Oakes’ story. The accuser is not named. There is this explanation: “The woman, not identified in this story because of the Star Tribune’s policy against naming alleged sexual assault victims, did not attend the hearing and could not be reached for comment.”

The story also explains:

“The defendants say authorities charged them without looking into the young woman’s documented history of emotional breakdowns and unfounded rape allegations against others in North Dakota and Minnesota, or their documented alibis for the times of many of the alleged incidents.”

There is no easy solution to this situation. If true, a daughter’s 20 years of rape by her parents is news, no question. And people who go to prison deserve to be named in the news. If false, both investigators and journalists should examine with equal force “what went wrong,” must take affirmative steps to clear the innocent people’s names, and must investigate whether the accuser committed a crime by making false allegations.

Posted by Steven P. Aggergaard at 6:40 AM 0 comments    

Sunday, July 02, 2006

A Criminal Campaign

So what does a Minnesota county attorney do? Prosecute criminals, right? Sure, but county attorneys do much more than (delegate) that. Prosecuting comes third on the list of things that Minnesota law requires county attorneys to do, behind representing the county in civil cases and giving legal advice to the county board.

You wouldn’t know it from the way U.S. Senate candidate Amy Klobuchar is portrayed. On the right side of the Kennedy v. The Machine blog, the folks at Republican Rep. Mark Kennedy’s camp quote Democrat Klobuchar’s “mission” as “to protect the rights and safety of people in Hennepin County,” and then list “Minneapolis Crimes Year-to-Date” right underneath it.

Wayzata is in Hennepin County. Where are their crime stats?

Anyway, Kennedy’s site links to Klobuchar’s official web site, which does in fact contain her “mission,” but also explains her responsibilities other than prosecuting. But when you click from that site to the “Hennepin County Attorney website,” even Klobuchar’s own site focuses inordinately on criminal prosecution.

Klobuchar and Kennedy each is doing what she and he believe needs to be done to win, presumably by giving voters what they want or expect to hear. How about some talk about the candidiates’ management styles, or committee assignments that should be sought, or the Senate’s responsibility to serve as a check and balance on the White House? Now that would give voters insight into who should be elected.

Posted by Steven P. Aggergaard at 4:14 PM 0 comments    

Saturday, July 01, 2006

You Don’t Own Me … Or Do You?

This week, the newspaper company Knight Ridder went poof and its St. Paul and Duluth papers got new owners. The St. Paul deal has been significantly scrutinized over concerns that the Twin Citiets could become a one-newspaper town. But from a statewide perspective, the deal involving sale of the Duluth paper may prove much more important.

The Duluth News Tribune’s new owner, Forum Communications Co. of Fargo, owns the Fargo Forum and also bought from Knight Ridder the well-respected and Pulitzer Prize-winning Grand Forks Herald, as well as the the free-circulation Duluth Budgeteer and the Daily Telegram in Superior, Wis., right across the bay from Duluth.

The combined Sunday circulation of the Fargo, Duluth, and Grand Forks papers is about 169,000, compared with the Pioneer Press’ 245,000. Forum already owned eight weekly papers in the northern half of Minnesota, and it owns 10 daily and weekly papers in and close to the Twin Cities metro area including those in Farmington, Hastings, Red Wing, Stillwater, and Woodbury.

Consolidation like this can be good. Over the last several years, the St. Paul and Duluth papers capitalized on their Knight Ridder connection by sharing a fair amount of stories and photos between them, to the benefit of both cities’ readers. But amid consolidation, employees fear job losses and media consumers fret over too few owners in MSM. The Fargo-Grand Forks-Duluth deal is completely legal because the anti-antitrust “Newspaper Preservation Act” that Congress passed in 1970 is intended to “preserve the publication of newspapers in any city, community, or metropolitan area,” and not a region.

The Herald’s editor, Mike Jacobs, promises the new alignment will be “quite a lot of fun.” But he has his reservations: “Part of me says it would have been better if we had had a separate ownership for these two newspapers. … You’ve got to think that having separate business interests … would have sharpened the competition. But there can be competition within companies.”

Posted by Steven P. Aggergaard at 7:32 AM 0 comments    

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Friday, June 30, 2006

Squeaky Clean

So there’s been a bit of a dust-up this week over MN Publius claiming that Rep. Mark Kennedy has “scrubbed” (i.e., removed) mentions of President Bush from the congressman-turned-Senate candidate’s dot-gov web site. The GOP responded that there are 72 such mentions of the Commander-in-Chief. The Star Tribune reported that the tit-for-tat is making national blog news, and MPR’s Bob Collins observes on his Polinet blog that the whole thing provides a “good lesson in how stories get inflamed, often by attempts to minimize them.”

True enough, Bob. The guy named “Karl” who posted a response to your observation makes a good point, too–that journalists used to “take a hot tip and run with it” by investigating it, but now more often than not they just repeat it. As Karl says, “It’s particularly sad that ‘fact check’ or ‘reality check’ stories have to be labeled as such and given their own little corner in the new[s] hole.”

It is more than a tad ironic that this war–both over whether Bush is still on the Kennedy web site, and over the response to the reports–occurred on the the very medium that caused it: the Internet, the epitome of immediacy. Now there just isn’t time to figure out the truth anymore, and wrong stuff gets posted. And as a Milwaukee radio host-turned-blogger discovered, removing the post does not necessarily guard against a libel suit.

Posted by Steven P. Aggergaard at 1:29 PM 0 comments    

Thursday, June 29, 2006

Ungagged, Sort Of

Web sites including the Fargo Forum’s are reporting that the judge in the Dru Sjodin case ungagged lawyers and others involved in the case so they can talk about information that has been made public. But the judge ordered lawyers not to offer opinions or make personal comments. This sounds like a sensible way to balance the public’s right to know against the defendant’s right to a fair trial and the Sjodin family’s right to not be subjected to a media circus.

But it should be stressed that everyone else, including bloggers and the news media, are free to say whatever they please. Judges have power to gag lawyers because lawyers are officers of the court, but judges can’t gag the media.

But they can try. For example, judges can gag all witnesses in a case. And then if a journalist is subpoenaed to appear as a witness, the gag order arguably might apply. This is exactly what happened in the Michael Jackson case last year, but in the end the reporter was not held in contempt.

Posted by Steven P. Aggergaard at 4:38 PM 0 comments    

Wednesday, June 28, 2006

Say Cheese

Minneapolis’ so-called photo cop program was aired in the Minnesota Court of Appeals this week. This is the program where cameras capture Minneapolis motorists running red lights, and the vehicle owners are presumed guilty unless they can prove they were innocent, i.e. they can prove they sold the car, or they had reported the car stolen.

According to a Star Tribune story, the ALCU lawyer challenging the ordinance argued that it is invalid “because it impermissibly shifts responsibility from the driver to the owner of car.” OK, decent argument. But the real issue is that there is a shift of responsibility at all.

Look at the actual ordinance (sections 474.640 through 474.660.) Pictures and proof of ownership constitute “prima facie evidence” that a petty misdemeanor was committed, and create a “rebuttable presumption” that the owner committed it. This presumption is “rebutted” if (1) the owner “provides a sworn affidavit” in which he says he didn’t own the car and says who the operator was, or (2) had reported the vehicle stolen before the violantion and submits a copy of a police report.

This is unworkable for many reasons. Who besides lawyers have any idea how to “provide a sworn affidavit”? The ordinance gives no relief for those who own the vehicle in question but don’t know who was driving it, or who had the misfortune of (a) not realizing their car was stolen before it plowed through a red light, or (b) never got a police report about the theft.

As for the law, well, Minneapolis has melded civil law and criminal law. Prima facie evidence comes from the civil side, where a case is proven by a “preponderance of evidence,” i.e. guilt is “more likely than not.” Rebuttable presumptions generally arise only in the civil context as well. The case may turn on what is a petty misdemeanor. The definition for it appears in the Minnesota criminal code, but it is defined as not being a “crime” because there is no chance of imprisonment. In other words, presumed guilt might be OK when only money is at stake.

It will be interesting to see how the court of appeals resolves this one.

Posted by Steven P. Aggergaard at 7:36 PM 0 comments    

Who’s Your Daddy?

This week the Pioneer Press got a new owner and the Star Tribune got access to the former Knight Ridder Washington Bureau, n/k/a the McClatchy Washington Bureau. As the Star Tribune, pointed out, this is a coup for Minnesota’s largest newspaper.

The KR Washboro is, or was, among the best in D.C., even though their readers by and large were not among the major league power brokers in Washington and New York. This “outside the Beltway” mentality may have worked to the bureau’s benefit. During my days at the Pioneer Press and Duluth News Tribune, both formerly owned by the former Knight Ridder, I found the Washington Bureau to be receptive (most of the time, anyway) to ideas and feedback from those of us in flyover country.

The result for readers will be less “localized” D.C. news from the Pioneer Press. There will be more tag-on paragraphs written in St. Paul and tacked to the end of Associated Press stories. In fact, there is just such a tag-on on this morning — stating that Sen. Mark Dayton voted to support a constitutional amendment to ban flag burning, but offering no explanation as to why.

The Star Tribune, meanwhile, has this explanation in a story by Margaret Talev of its new Washington Bureau:

“Dayton has said that he was swayed by two 1999 trips to the American cemetery at Normandy Beach in France. In announcing his support for the amendment in March 2001, he said, ‘Surely, that supreme sacrifice should be sanctified, honored, respected and forever made inviolate.'”

Posted by Steven P. Aggergaard at 8:09 AM 0 comments    

Tuesday, June 27, 2006

Jail the Messenger, Part 2

Now the president has played the “disgrace” card on the financial snooping fiasco, and has singled the New York Times for “breaking a long tradition of keeping wartime secrets.”

Hmm. Apparently the president has forgotten about the Pentagon Papers case, argued in the United States Supreme Court exactly 25 years to the day that Bush made his comments. In that case, the New York Times published excerpts of leaked top-secret documents about the Vietnam War that Democrat Lyndon Johnson wanted to keep secret, and which the Supremes did not punish. As Wikipedia reports: “The Papers revealed, among other things, that the government had deliberately expanded its role in the war by conducting air strikes over Laos, raids along the coast of North Vietnam, and offensive actions taken by U.S. Marines well before the American public was told that such actions were necessary.”

Sound familiar?

Over time, The Times has blasted whoever in the White House deserves to be blasted, regardless of party. Threatened prosecution of the Times is a ridiculous proposition, particuarly since the Los Angeles Times and right-leaning Wall Street Journal published the same story. This is classic blame the messenger.

Posted by Steven P. Aggergaard at 12:39 PM 0 comments    

Labels: First Amendment, Media Law

Monday, June 26, 2006

Jai the Messenger

Fallout from recent reports that the White House has been secretly tracing financial records, as reported in this morning’s New York Times:

“Representative Peter T. King, Republican of New York, said he was outraged that such a sensitive method had been exposed and called for a criminal investigation into the The Times.

“‘I’m calling on the attorney general to begin a criminal investigation and prosecution of The New York Times, its reporters, the editors that worked on this and the publisher,'” Mr. King said on … Fox News. … ‘What they’ve done here is absolutely disgraceful.'”

Speaking of disgrace, it was 99 years ago that the Minnesota Supreme Court upheld the criminal conviction of the St. Paul Pioneer Press for reporting truthful details of a public execution.

Posted by Steven P. Aggergaard at 7:30 AM 0 comments    

Labels: Etc.

Sunday, June 25, 2006

Unfair and Balanced

I just returned from seeing Al Gore’s movie An Inconvenient Truth, a “movie” that is 80 percent about global warming and 20 percent about Al Gore.

It was playing on three screens at the Lagoon in Uptown at once. I find it amazing that so many people are willing to sacrifice 8 bucks apiece to sit inside on a beautiful summer day to be lectured on the sobering realities about global warming when the evidence has been all around us in the media for so long.

Or has it?

As David Edelstein of New York Magazine wrote in his review of the movie: “Perhaps the most amazing statistic in An Inconvenient Truth is that of 900-plus peer-reviewed studies in recognized journals, not one has challenged the idea of global warming, whereas more than 53 percent of articles in the mainstream media have presented it as a theory or been careful to include the demurrals of a tiny handful of bought-and-paid-for scientists or politicians.”

Journalists are trained to seek out and cite “both sides” of issues, in the name of objectivity and balance. But increasingly I fear that this “balance” is eclipsing commonsense as Mainstream Media struggles to stay relevant and to retain a certain readership and viewership that is quick to play the “liberal bias” card.

Posted by Steven P. Aggergaard at 7:42 PM 0 comments    

Labels: Etc.

Saturday, June 24, 2006

Funeral Protest Law: Solution in Search of a Problem?

As of May 10, 2006, a Minnesota statute makes it a misdemeanor to protest or picket within 500 feet of a funeral and/or at the decedent’s home. The new statute is a direct response to “the Rev.” Fred Phelps and his Westboro Baptist Church, which on Feb. 23 made an Anoka Army corporal’s funeral their latest stop on an idiotic and illogical crusade to equate United States military deaths in Iraq with God’s purported distaste for our nation’s tolerance of gays and lesbians.

According to the Star Tribune, a grand total of six — count ’em, six — protesters showed up at the funeral. Where is the news in that?

The new law is of questionable constitutional validity — particularly if, as is likely, only demonstrations “against” a fallen soldier would be banned while signs in support of a fallen soldier would be allowed. This is viewpoint discrimination under the First Amendment, and it is generally not permissible.

The best way to deal with these Westboro clowns is for the news media to exercise their First Amendment right to not cover these protests. What a shame it will be when the Phelpsians decide to protest a Minnesota funeral that they otherwise would have ignored so as to test the constitutionality of the law.

Posted by Steven P. Aggergaard at 3:46 PM 0 comments    

Labels: First Amendment, Minnesota Law

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