Wednesday, November 19, 2003

Libel Slander Defamation and Blogs


Libel Slander Defamation and Blogs

Stuart Levine in his Tax & Business Law Commentary has an October 30, 2003 posting entitled: " Don't Say I Didn't Warn Ya' ", referring to a potential libel case involving two blogs.

Libel, slander and defamation are always possible problems when we exercise our first amendment right to free speech and freedom of the press, both of which are not without limit. There are and must be bounds for everything in law.

Definitions of Libel Slander and Defamation

Essentially, defamation is an "attack" on the reputation of a person. It is called libel if it is in writing and is known as slander if it is spoken.

Explanations of Libel Slander and Defamation

See the following pages for more general orientation, definitions and explanation of the above-mentioned and associated terms:

Libel Defense Resource Center - includes an online 50-State survey of libel law

The First Amendment Handbook by The Reporters Committee for Freedom of the Press - it treats libel in depth as it affects the media

What is Libel? - short description from writing-world.com

Puerto Rico Criminal Libel Law Struck Down as violating the 1st Amendment (February 4, 2003)

Terms associated with libel cases

Defenses to claims of libel

Privilege and claims of libel

Libel laws generally in some countries other than the US: the UK, Canada, Australia, New Zealand, France, Germany

Liability Insurance for Defamation

If you are a blogger, make sure you have the right liability insurance,

as discussed by Attorney Ivan Hoffman,

and watch your words.

Online Liability for Defamation

Links to the fledgling law of "online liability" are found at:

The First Amendment Center

in an article by Jarrod F. Reich, "Internet & First Amendment: Online Libel" (Reich is still a law student at Vanderbilt)

There seems to be no question that every blogger is liable for what he or she writes on a blog.

Who May be Excluded from Liability

A the same time, the operating website, e.g. blogger.com, typepad.com, or radiouserland.com are seemingly thus far NOT liable for what YOU post online to your blog on those sites, at least based on the following commentary:

In a November 7, 2003 article by Douglas Lee, an Illinois attorney, entitled, "Obscure Internet libel provision hits the big time", Lee discusses Section 230(c) of the Communications Decency Act of 1996 as interpreted by the 9th Circuit in Batzel v. Smith where a 2-1 court decision provides virtual libel immunity to website operators (as opposed to those who have actually written the materials).

What about bloggers who post 3rd-party materials to their blog, i.e. materials they have not written themselves, but which are libelous. Can they be held liable for this material?

As written by the Associated Press at "Bloggers win Libel Protection", Eric Brown, who represented the winning defendent in the suit at Batzel v. Smith, stated:

"It clarifies the existing law..... It expands it in the sense that no court had really addressed bloggers, list serve operators and those people yet, certainly not on the level of the 9th Circuit Court."

No Blogger Immunity - Bloggers CAN Be Sued For Libel

But there should be no blogger euphoria over Batzel v. Smith, nor does the case grant bloggers immunity,

according to the postings of Balkinization ("Can Bloggers be Sued for libel? - Of course they can"), Inter Alia and Unintended Consequences.

Read particularly what Balkin writes. I often do not agree with him on his political postings, but in his legal analysis he is simply superb.

22 Points on Blawgs


Law Weblogs - Elefant and Lawson

Via George M. Wallace and Declarations and Exclusions we were directed to Carolyn Elefant with Jerry Lawson and their MSBA Solo Conference blog (presentation for the Maryland State Bar Association Solo Day Conference) entitled "What Blogs Can Do for Solo & Small Firm Lawyers".(11/15/03)

To Blawg or Not to Blawg? - 22 postings by Carolyn Elefant & Jerry Lawson

There are 22 separate postings - all of value for anyone thinking of starting a blawg - or even for someone who already has a blawg. I cite them in full here because blawging is a wave of the future and this presentation is simply too good to pass up without referring to it in detail - indeed, the fact that a special blawg was created for this presentation shows still another aspect of what blogs can do by specializing on a subject. Here are the links to the 22 postings:

1. So, What Can Blogs Do for You?

2. Overview

3. What's a Blog and What Makes It Different?

4. Why Do Blogs Have Marketing Potential?

5. A Baker's Dozen Great Things You Can Do With A Blog

6. Blogs As Knowledge Management Tools

7. Blogs As the New CLE

8. Blogs As A Source for Research and Expertise

9. Blogs As A Way to Improve Legal Writing and Analytical Skills

10. Blogs As A Tool to Combat Isolation of Solo/Small Firm Practice

11. Will Blogs Replace Power Point?

12. Blogs for Marketing - New Tool, but Old Rules

13. Blogs As Websites

14. Blogs for FAQs and Advice

15. Blogs as a Newsletter Alternative

16. Blogs As A Public Service

17. Blogs For Establishing Expertise and Credibility

18. Search Engine Visibility

19. Blogs Can Make You A Star

20. So Should I Start A Blog - What to Consider

21. Getting Started

22. Final Comments

What Elefant and Lawson need to add to this presentation are the technical but necessary aspects of blogging such as Permalinks, RSS, etc.

Then it will be perfect.

Legal Realism and Judicial Decisionmaking


DO JUDGES DO THE BEST THEY CAN?

Stuart Buck at The Buck Stops Here in his posting on the "Legal Realism" of Brian Leiter writes:

"Judges are doing what they perceive themselves to be doing most of the time, viz., applying the law as best as they can."

DO JUDGES DECIDE CASES ON THE BASIS OF NON-LEGAL NORMS?

Actually, I find myself in accord on that point, although my agreement on a judge perceiving himself or herself as doing "as best as they can" does not totally exclude the relevance of Brian Leiter's opinion that "what really explains [a judicial decision] is the judge's commitment to non-legal norms (moral, political, economic)." (emphasis added)

Buck admits that the concept of "legal realism" applies to some degree in appellate decision-making since "cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable."

I would not necessarily agree with that entirely, since it supports Leiter too strongly on an issue where he should not necessarily be supported in full.

Indeed, where I disagree with Leiter is on his judgment that "non-legal" norms DO decide judicial opinions, rather than "legal norms", as should be the case under the rule of law.

PERSONALITY, CHARACTER, BACKGROUND, INTELLIGENCE

Surely no one would disagree with the statement that our views of legal norms are guided by the variables of our personality, character, background, and intelligence, and that our views on morality, politics and economics are additional variables for decisionmaking which - to my way of thinking, however - are merely products of the former, more important "personal" variables.

Put differently, we are what we are. A Supreme Court Justice is thus not necessarily applying non-legal political, moral or economic norms to hard cases but, as I see it, is quite clearly applying his personality to the seamless web of the law - but that is a different issue.

THE PERSONALITY AND CHARACTER OF JUDGES IS THE MAIN VARIABLE

Some time after graduating from Stanford Law School and inbetween stints in the corporate department of Paul, Weiss et al., I and several others worked together with the late Professor James Lake (the linked .pdf has a picture of Lake, a Harvard Law grad) of the University of Nebraska Law School on a project to alleviate appellate delay.

The project worked together with the Justices of the Nebraska Supreme Court (I note in passing that the current - not then - Chief Justice John V. Hendry was a former Kaulins family lawyer as a practitioner - a very good man, if I may offer this biased comment). The aim of our project then was to reduce the caseload of the Justices by having qualified personnel write drafts of opinions for them in "easy" cases, i.e. this was work similar to clerks. However, the main difference was that we worked for no particular Justice and were assigned cases at random. We also had no direct contact with the Justices on cases - for ethical reasons. There was to be no influence exerted in either direction. The legal norms were to decide.

The whole idea of the project was of course based on the idea that "legal norms" DO decide cases and my experience in fact indicated that this was generally so. In many of the appealed cases, the law was so clear that there was really no real question about the judicial outcome so that judicial decisionmaking proceeded along the legal norms found in our draft opinions, although each Justice always wrote their OWN opinion, even if it relied on our drafts. In cases which were not clear, however, the Justices were far more likely to take the complete writing of an opinion into their own hands, and it seemed to me that it was the personality and character of the judges which then surfaced predominantly in their decisionmaking and opinions, not necessarily their moral, political or economic views, which seemed quite similar. During this time I saw very little evidence that "non-legal" norms decided cases.

WHAT IS THE ORIGIN OF LEGAL NORMS?

Legal norms are derived from lessons learned and experience gained from events which occur in day-to-day society over the timeframe of millennia so that events and legal norms form a symbiotic partnership. But this does not mean that the non-legal norms are DETERMINATIVE of judicial decisionmaking. Rather, legal norms are INFLUENCED by the prevailing morality, politics and economics of the times, and the prevailing legal norms are thus similarly subject to change to accord with those changing times. Still, it would seem to me that judges nevertheless apply the law as they see it and that most of them surely would describe their work as serving "the rule of law".

THE CONTINUITY OF LAW OVER TIME SPEAKS FOR THE JUDGES

Indeed, if judges ONLY applied non-legal norms, then law would be valid only for the short-term, guided by the serendipity of the present. The fact that law sustains itself over the long term and the fact that legal norms have developed and grown over thousands of years suggests that in fact, judges do prevailingly decide by applying "legal norms" and NOT by falling back on non-legal popular norms of the moment, at least in our Western society, where the "rule of law" is seen as the governing force.

The situation may be different in societies where the rule of law is not the basis of government and where men rule by fiat, religious conviction and the whim of the moment. Indeed, it would seem that THESE societies are the ones that are currently the enemies of the Western world.

Corporate Governance - New SRO Standards



TheCorporateCounsel.net Blog aka known as Broc Romanek's Blog has been posting on corporate governance and has a November 19, 2003 posting entitled: "What to Disclose under the New SRO Standards".

For an informative October 27, 2003 discussion of SRO's (self-regulatory organizations) by Rachel McTague and the Securities Regulation & Law Report at BNA's Corporate Law & Business Professional Information Center see her article here.

The background for the new standards can be read at the March 26, 2003 statement by SEC Chairman William H. Donaldson entitled "Letter to Exchange Officers Regarding SRO Corporate Governance", where Donaldson writes:

Self-regulatory organizations play a critical role as standard setters for issuing companies, operators of trading markets, and front-line regulators of securities firms. At the urging of the SEC, two of the self-regulatory organizations, the New York Stock Exchange and NASDAQ have both proposed new corporate governance listing standards for publicly traded companies, and the SEC continues to help them harmonize their proposals to the extent possible.

As Broc notes, Donaldson then also has delivered a later speech concerning corporate governance.

Particularly of interest to corporate lawyers are the future corporate governance webcasts which are discussed at Broc Romanek's Blog. The links to GreatGovernance.com are also useful.


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