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Poynter at SXSW: The ins and outs of Twibel

Editor’s Note: Poynter will be at South by Southwest, the annual music, movie and interactive festival, March 7-16, in Austin, Texas. Look for our Poynter faculty members, Roy Peter Clark, Ellyn Angelotti and Kelly McBride, and digital media reporter Sam Kirkland. Here is the second in a series of posts on what we’ll be doing at SXSW.

Tweets can form the basis of a defamation lawsuit the same as if they were published in another form. However, though Twitter has been around since March 2006, the first defamation trial involving the service wasn’t decided until earlier this year — almost eight years after Twitter’s debut. 

Does that mean the Twittersphere has been immune from libelous content? Unfortunately, no.

The informal nature of social-media conversations makes Twitter a ripe environment for spreading potential falsehoods, resulting in plenty of opportunities for defamation claims.

Defamation is divided into libel (print) and slander (non-fixed medium), but both have essentially the same elements:

1. The statement is published.

2. The statement is false.

3. A reasonable person would have known it was false.

4. The statement caused harm (depending on the jurisdiction, harm may be presumed).

Because a proper defamation claim must involve a false statement, truth is always a defense against any defamation action.

It’s true that many defamation claims have resulted in lawsuits and been settled out of court, a path familiar to traditional defamation law. But when everyone is a publisher, is litigation still the best remedy? 

In a core conversation at SXSW, “Twibel: Fight Bad Speech with More Speech,” I’ll join Stetson University law professor Catherine Cameron to discuss the basics of defamation law and the issues with applying defamation law to Twitter. Then we’ll collaborate with the group to develop prospective (non-legal based) remedies that might achieve the same goals that defamation law has sought to balance: encouraging free speech while helping protect the reputations of others.

We will explain some of the exceptions to defamation, including hyperbole, parody and opinion — and discuss how the norms of Twitter might be relevant to these exceptions. For example, when a false statement is made as part of an obvious parody or joke, no reasonable observer would consider it to be a factual statement, and so the publisher wouldn’t be liable. Given the informal nature of Twitter, would most tweets fall under these exceptions?

Another legal distinction exists for public figures, who generally need to prove a publisher acted with actual malice — meaning that the author knew the statement was false (or should have known) but published it anyway. Celebrities and public officials are clearly public figures. Others involved in high-profile crimes could be considered involuntary public figures, and those who create a public controversy could be considered limited public figures. Would an otherwise private person who has a following of 100,000 Twitter followers be considered a public figure?

We now need to consider classifying online users and their speech in new ways that have yet to be clarified.

Twibel needs an adaptable remedy that encourages civil discourse among users and deters defamatory speech on Twitter. Given the complexities of the changing media landscape, are there existing remedies that are more in line with the values of the social-media environment by being fast, flexible and free?

And what better place than SXSW Interactive to dream up potential remedies to Twibel, taking advantage of the most-creative minds in technology?

We’ll bring the law; you bring some ideas! 

Please join us on Monday, March 10, at 4:30 pm ET (3:30 pm CT), at SXSW in Austin, Texas, or by following the hashtag #twibel on Twitter, of course.

Related: Poynter at SXSW: Welcome back to the WED dance Read more

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Some wooden cubes forming the word law, in front of a gavel. Digital illustration. (Depositphotos)

Who’s a journalist and other digital issues: media lawyers weigh in on #wjchat

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How to overcome your fear of FOIAs

For many journalists, FOIA is a scary four-letter acronym, sometimes stifling investigations before they even begin. This guide aims to demystify Freedom of Information Act processes, giving you the tools and confidence to ask for the information you need to write your next investigative story.

Why FOIA requests are so helpful

FOIA is both a federal and state-based law granting individuals and organizations the right to access most governmental agency records. As such, it’s a critical tool that helps journalists in their reporting and writing. Public-records requests are essential to supporting the journalistic values of holding the government accountable and ensuring openness.

Via FOIA, the government provides the information you need; however, the research and analysis associated with the information obtained is left up to you.

What information is available via FOIA

FOIA promises public access to government public meetings and records, which generally includes all documents, files and records made or received in connection with the transaction of official business.

How to file a FOIA request

Some information is available on government agency websites without the need for a request. Before you file a request, it’s a good idea to check online.

1. Identify the source of the information

You need to first identify the office or agency that holds the information you seek. If you aren’t sure which office has that information, do some preliminary research or contact an agency’s public liaison (see the government’s “Where to Make a FOIA Request” guide) to see if they can help.

2. Write a letter describing the information you would like the government to provide you.

In a FOIA request, which is usually written, you will need to describe — with as much detail as possible — the government records you want and the format in which you want to receive the information. You don’t need to reveal why you need the records.

The Reporters Committee for Freedom of the Press offers a FOIA Letter Generator that guides you through crafting a request to both federal and state governments. While each state is different, you may need to supplement your basic letters with additional information if you are contacting local officials. The RCFP’s Open Government guide also provides detailed information for connecting with a variety of agencies.

Include your contact information and specify whether you prefer the agency to mail you the records or transfer them by email. In some cases you’ll need to go to the physical location of the office to review and copy the records.

4. Arrange to pay any necessary fees.

Most agencies require the requester to pay a nominal fee to cover administrative costs. Typically, there’s no charge for small amounts of search time or for only a few copies, but again, this is different depending which organization you’re requesting records from.

When writing your letter, you can specifically state the amount of fees you’re willing to pay. You may also get the fees waived if you can show your request is in the public interest, rather than primarily to serve a commercial or personal interest.

4. File your request.

After you’ve filed your request and paid any fees, expect to hear from the agency within 20 business days. In its response, the agency will notify you that your request was fully granted, partially granted, or denied. A fully granted response will include all requested documents — success! The agency may partially grant your response, providing some of the information you requested and indicating if any information has been withheld or redacted because of exemptions or exclusions. If the agency denies your request, it must explain why.

Additional tips

The Florida First Amendment Foundation, located in a state known for Sunshine Laws that allow a great deal of public access to most government records, shares Ten Practical Tips for requesting public records, including making practice requests, agreeing in advance to pay any nominal fees required, and asking for written explanations of any denials. The Berkman Center’s Digital Media Law Project also offers practical tips for getting government records.

Submitting a FOIA request is deceptively simple. It’s what you do once you have the information that’s the more important part.

Challenge: What information isn’t available through a FOIA request?

Generally, records are exempt from public-records requests if they contain personal information such as Social Security numbers, information about family members of specified officials, and information concerning ongoing legal proceedings.

A record is public unless it falls into one of the nine exemptions protected from public disclosure or one of the three special law-enforcement record exclusions.

The nine exemptions include information that:

1. Is properly classified under an executive order to protect national security.

2. Is related solely to the internal personnel rules and practices of an agency.

3. Is prohibited from disclosure by another federal law (see the Department of Justice FOIA Resources page)

4. Concerns business trade secrets or other confidential commercial or financial information.

5. Concerns communications within or between agencies that are protected by legal privileges, such as attorney-client privileges, protected internal processes related to the executive branch, or presidential communications.

6. If disclosed, would invade another individual’s personal privacy.

7. Is compiled for law-enforcement purposes and could possibly cause specific harms, such as interfering with enforcement proceedings, depriving someone of a right to a fair trial or an impartial adjudication, constituting an unwarranted invasion of personal privacy, disclosing the identity of a confidential source, revealing techniques and procedures for law-enforcement investigations or prosecutions, or endangering the life or physical safety of any individual.

8. Concerns the supervision of financial institutions.

9. Includes geological information about wells.

The three exclusions cover public records that:

1. Protect the existence of an ongoing criminal law-enforcement investigation when the subject is unaware of that investigation and disclosure could reasonably be expected to interfere with enforcement proceedings.
2. Protect the existence of informant records when the informant’s status hasn’t been officially confirmed (limited to criminal law-enforcement agencies).
3. Protect the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified (limited to the Federal Bureau of Investigation).

Challenge: What happens if your request is denied?

Last year, the U.S. government said it received 651,254 public-records requests. It fulfilled 50.33 percent of those requests completely; partially fulfilled 43.06 percent, and denied 6.61 percent.

If your request is denied, the Berkman Center’s Digital Media Law project explains many of the remedies available to you. The easiest path is to revise and resubmit your request to provide more detail, or specify the information you’re requesting. You may also appeal the denial, request that classified information be declassified, or — if all else fails — file a lawsuit.

Challenge: How quickly will the agency process my request?

One common challenge for journalists is a delay in getting a response from an agency or in receiving the documents. FOIA instructs agencies to handle requests as quickly and efficiently as possible, usually within 20 business days. However, sometimes an agency may require an extension if the request is complex, or if it has a backlog of requests. The agency may also ask you to revise your request if the amount of information you’re requesting is too broad.

In rare situations, the government may grant an expedited review of a request if the person requesting the records has clearly explained a compelling reason for the urgency. Specifically, the government may expedite your request if someone’s life, physical safety or due-process rights are in jeopardy.

Additional FOIA resources

Many organizations, including the government, have created guides for navigating FOIA:

How can you be most efficient in navigating the public-records process? Being diligent about following up helps. So does developing relationships with key people in the records or communications departments of government offices — especially at the local level or with organizations you work with often. By contacting a specific person rather than a general department, you can more directly communicate what information you need, and they can more quickly connect you with this information.

Yes, these individuals are employed by the agency you’re seeking information from. But they can sometimes help you cut through unnecessary bureaucracy, giving you more information and time for writing your story.

We talked more about FOIAs in a live chat with Tom Nash, news editor of MuckRock, a public records request service. You can replay the chat here:

While Ellyn Angelotti is an attorney, this article is for informational purposes only and is not to be considered legal advice. Read more

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Disputes over crime maps highlight challenge of outsourcing public data

Colin Drane is an unlikely warrior in the fight for open government.

An inventor and TV infomercial producer, Drane spent much of his career marketing products like the Trunkanizer  for organizing car trunks, a toy called Bendaroos, and Invisi-lift self-adhesive breast enhancement pads.

Six years ago, Drane started a different kind of business – a company called ReportSee, which operates the website SpotCrime.com. The site obtains publicly available crime records from police agencies and graphically displays them on colorful maps.

Drane says the site attracts a million views a month from people curious about the burglaries, shootings, and other bedlam in their towns. The site makes money through advertising and from partnerships with television stations and other media organizations.

“Its primary appeal is folks involved in neighborhood watches and people who want to know what’s going on their communities,” Drane said in a phone interview. He said the information on SpotCrime, which typically is culled from police department logs and incident reports, can make communities safer.

“If an unusual van is in the neighborhood, and everybody knows there’s been a rash of burglaries, maybe somebody takes time to call the police, where maybe in the past it would have been brushed off,” he said.

More than 300 law-enforcement agencies around the country cooperate with Drane and provide him electronic access to their crime reports. But he’s had conflicts with dozens of other agencies, which either deny him access entirely or provide information that’s dated or incomplete.

Often, he finds that agencies already have struck deals with one of his larger competitors. The owners of sites such as CrimeReports.com, CrimeMapping.com, and RAIDS online compile and publish similar maps.

“Police departments contract with a vendor and give them preferential access to very important public data,” Drane said. “If you’ve got agencies controlling the information through a vendor, that’s not full transparency, and it limits accountability.”

Public data: profitable and contentious

Drane’s situation isn’t unique. As private companies have discovered there’s profit to be made from some kinds of government records, public agencies increasingly are outsourcing parts of their recordkeeping. That’s led to disputes over whether private firms can receive exclusive or preferential access to public data, copyright it, or withhold it from business competitors and other parties who request it.

“Conflicts are becoming more common,” said Peter Scheer of the First Amendment Coalition, a nonprofit California group that advocates for open government. “The demand for data and the perceived value in data has been rising exponentially, and that’s raising thorny legal-access questions.”

California, Connecticut and Wisconsin are among the states that have seen lawsuits over GIS data — the mapping technology local governments use to track property records. Scheer’s group successfully sued to access Santa Clara County’s GIS database, which the county claimed was a copyrighted “trade secret.” In the Wisconsin case, courts ruled that municipalities’ land records are in the public domain and forced a private contractor to release records to its competitors.

Drane has been sued, too. In 2010, the owner of CrimeReports.com – a company called Public Engines — discovered SpotCrime was robotically “scraping” CrimeReports.com for police data. Though Drane claimed he was entitled to scrape his competitors’ sites because the original police reports are public records, he agreed to stop the practice as part of a legal settlement. (Nieman Lab summarized the issues raised by the lawsuit in this 2011 analysis.)

Indeed, Drane is at the center of much of the tension in the crime-mapping industry, not surprising for an unconventional and sometimes brash entrepreneur who describes himself as a “disrupter.” SpotCrime is a relatively low-budget operation that Drane said he started because “moving data seemed a lot easier than moving Trunkanizers.”

In many ways, his business couldn’t be more different than that of his competitors, such as Public Engines, the Omega Group — owner of CrimeMapping.com, and Bair Analytics — owner of the RAIDS online site. Those companies are larger firms that develop and market technology for law-enforcement agencies. They sell software that not only powers public crime mapping websites but also provides an array of tools the agencies use internally to compile and analyze data.  (Think of an electronic equivalent to those big maps with pushpins that used to hang in police stations.)

“People look at our website and see that obviously as a public-facing manifestation of the law-enforcement data,” Public Engines CEO William Kilmer said in a phone interview. “But our primary mission is really to help law-enforcement agencies unlock the power of their own data for their own analysis.”

Those computerized crime mapping systems have become important tools for law-enforcement agencies over the past two decades. For a relatively small investment, the software allows police to identify crime patterns and “hot spots” in their communities and make decisions about staffing and resources.

Kilmer said his company is aware it’s dealing with records that belong to the public. While Public Engines doesn’t allow competitors to scrape its website, he said there’s nothing in its contracts that prohibits police agencies from releasing crime data to anybody else who requests it.

That point was echoed by the Omega Group, which provides software and mapping tools for more than 600 law-enforcement agencies.

“The agency has the right to give whatever data they want to give,” said Omega spokeswoman Gabriela Coverdale.

Police agencies try to control information

Still, some police departments appear to treat their contracts with Public Engines or Omega as exclusive or at least preferential.

When Drane’s company requested access to Las Vegas police records under the Nevada public-records law, he said the police department’s public information office wrote him in an email that “we have no need to join with more of these kinds of services such as yours than we already have in place.” Las Vegas contracts with Omega and its crime reports are posted online via CrimeMapping.com.

Likewise, the Omaha, Neb., police department contracts with Omega and won’t release electronic records to Drane.

“The reason we signed a contract with CrimeMapping.com is so we have control over the information released,” Lt. Darci Tierney told me in an email. “There is no legal obligation for our department to provide additional information beyond access to records that we provide to the general public upon request in hard copy format for a nominal fee.“

But that policy — which allows CrimeMapping.com to access police records electronically, but restricts other requestors to “hard copy format” — likely violates Nebraska’s open-records law, according to several legal scholars.

“Since some company is getting these records in electronic form, you can also get them in electronic form,” said Nebraska Press Association attorney Shawn Renner. It doesn’t matter that one company has a contractual relationship with the city, that SpotCrime is small and not well-known, or that Drane’s motive in requesting the records is to profit from them.

“The records are open to all for any purpose,” said Mark Caramanica of the Reporters Committee for the Freedom of the Press. “We define journalism quite broadly, so an online outfit that’s in the business of taking data and presenting it in an informative way is engaging in a journalistic activity.”

Caramanica worries that if police agencies are allowed to withhold crime data from for-profit websites that compete with their preferred vendor, they may start denying information to mainstream media organizations (most of which, of course, also are in business to make money), bloggers, advocacy groups, or individuals.

It’s not a big jump. Part of the reason police departments contract with the crime mapping services in the first place is to ease the workload on their often overburdened staffs. Public Engines boasts on its website that CrimeReports.com helps “free up time for employees who used to try and answer [citizen] questions by phone.”

“Some of it is just administrative ease,” said University of Missouri Journalism Prof. Charles Davis, co-author of two books on public records. “They can kind of wash their hands of the whole issue, and say ‘if you want that stuff, it’s on the website.’ ”

Likewise, some agencies may see their relationship with a crime mapping vendor as a way to bypass the traditional media.

Public Engines’ website highlights the experience of the Boca Raton, Fla., police department, which stopped sending press releases to local media. The site says that when police agencies partner with CrimeReports.com,“[t]he power to interpret crime data has now moved out of the hands of the traditional media gatekeepers and into the hands of citizens themselves.”

Computerized data, ‘manila envelope’ laws

In and of itself, direct public access to information isn’t a bad thing. Police reporting in the mainstream media can be simplistic or sensationalistic and lack context about the actual risk of crime in various communities. An accurate online crime map can offer information that’s more complete, more local, and easier to access than a newspaper police blotter or the murder-and-mayhem stories that are nightly staples of many TV newscasts.

But in order for online crime mapping to live up to its promise, police agencies need to see it as a way to broaden access to information, not narrow it. The raw data generated from modern crime analysis tools — such as those marketed by Public Engines or the Omega Group — should be considered public information and made available to the public, the media, and even those companies’ competitors. That will allow such data to be disseminated more widely and analyzed in more ways.

And because police generally include in crime mapping databases only a portion of what they know about each particular incident — for instance, names of victims or suspects are usually deleted — the standard long-form police reports and daily crime logs must remain easily available, too.

Davis expects more disputes and litigation as governments increasingly entrust public data to private companies, especially in states where public-records laws fail to clarify contractors’ obligation to share information. He said only a handful of state laws even contemplate the possibility that public recordkeeping may be outsourced.

“These are laws written in the age of manila envelopes and the typewriter,” Davis said. “This is one of a dozen different issues where technology has raced in front of the law.” Read more

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Twitter users face libel claims for spreading false accusation

The Economist | Guardian | New York Times
The BBC falsely accused retired British politician Alistair McAlpine of child sexual abuse, and paid a hefty £185,000 fine to settle the matter earlier this month. But now McAlpine is also pressing for compensation from thousands of people who tweeted about the BBC story at the time.

In the United States, such a charge would be unlikely to stick. Our laws, for instance, may protect claims made with an honest and reasonable belief that they were true at the time. British law is notoriously friendly to claimants, such that foreigners sometimes try to get British jurisdiction for their libel suits even when the case has little connection to the country.

About 1,000 tweeters implicated McAlpine, and another 9,000 retweeted their messages, The Economist reports. McAlpine’s lawyers have told those with fewer than 500 followers they can make amends with an online apology and a donation to charity.

But they are pursuing compensation from the more high-profile tweeters. Read more

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Latest Supreme court leak was unusual, though not unprecedented:

We don’t usually get an account of how the court reached its decision so soon after the decision is reached. Those types of leaks tend to come years later to the enterprising reporter who is working on a book, not an evening deadline.

Whether the Roberts leak is accurate, of course, we have no idea. But it’s important to recognize that it’s not in a category of its own. Supreme Court leaks are rare, but they are hardly unprecedented. The court, just like our other public institutions, is made up of political animals. We shouldn’t be shocked when they act that way.

Related: SCOTUSblog details in 7,000 words how CNN, Fox got Health Care ruling wrong

Jonathan Peters, Slate

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Why journalists call Trayvon Martin death a shooting, but not a murder

News organizations have used a variety of words and phrases to describe Trayvon Martin’s death: Fatal shooting. Shooting. Murder.

We used the word “murder” in the headline of a story I wrote about journalists’ coverage of Martin and George Zimmerman, who shot him. Some readers pointed out, though, that it’s premature to say Martin was the victim of murder. Even though Zimmerman admitted to the shooting, he has not been charged. Read more

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Practical tips, resources for entrepreneurial journalists with legal questions

Entrepreneurs leading new journalism ventures confront numerous legal questions. How and when should I determine the appropriate legal structure for my business? What contracts should I use with partners, employees and investors? What legal issues should I be prepared for and, as a journopreneur, who can I turn to for low-cost or pro bono guidance?

I’m not a lawyer, and this post isn’t intended to offer specific legal advice or replace the professional insight of a lawyer. The resources below are offered simply as a starting point for anyone launching a project who anticipates having to grapple with legal questions as the project develops.

Seeking pro bono help

One of the best places to begin, if you’re starting up a media-related project, is the Online Media Legal Network at Harvard’s Berkman Center. The center describes itself as “a network of law firms, law school clinics, in-house counsel, and individual lawyers throughout the United States willing to provide pro bono (free) and reduced fee legal assistance to qualifying online journalism ventures and other digital media creators.”

Not every journalism or media startup will qualify for OMLN’s free legal assistance, but you can quickly assess your eligibility with this FAQ. OMLN considers a number of factors, including your available resources. If paying legal fees would significantly deplete your organization’s resources, you could still be eligible for pro bono help if you’re a for-profit with under $75,000 in annual gross revenue or a nonprofit with an annual budget of $250,000 or less. (More details here.)

Law for journopreneurs 101

If you’re looking for information first, rather than professional legal guidance, the Citizen Media Law Project, also sponsored by the Berkman Center, has outstanding resources. The online legal guide has clear, well-written sections on everything from forming a business to dealing with online legal risks and securing your intellectual property.

The section on choosing a business form for your new organization is particularly helpful if you’re not clear on the relative benefits of, say, a sole proprietorship versus an LLC or some other legal structure. Download the Citizen Media Law Project’s one-page overview summarizing the characteristics, tax implications and various pros and cons for legal structures journalism entities might consider.

To keep up with new resources, tools and information, follow this Quora discussion about legal resources for startup companies.

Free contracts and templates

If you’re more focused on contracts than on sorting out your legal structure, check out Paperlex — a new startup that helps you manage common contracts. Though the full service is still in beta, micro.paperlex.com offers free freelancer contracts, talent releases and non-disclosure agreements.

Founder and CEO Alison Anthoine says she plans to add additional contracts for photographers, videographers, designers and developers. She describes Paperlex as a Web-based contract management platform for news organizations.

“My goal is to empower small businesses and entrepreneurial journalists not to have to rely on lawyers to do all of their legal work,” Anthoine said by phone. “There will always be things you need lawyers for, but a routine agreement isn’t something you should have to call your lawyer about.” Contractual.ly is an alternative platform aiming to take the pain out of managing contracts.

The incubator YCombinator has an excellent startup library of documents and tip sheets. For those considering early-stage Angel funding, YCombinator also provides free equity financing documents, so you know what you’re signing away when you bring in investors.

The term sheets were developed in partnership with Wilson Sonsini Goodrich & Rosati, a firm specializing in startup law, among other things. The firm teaches a live legal issues course at General Assembly, a New York coworking and education hub, and has a term sheet generator that will assemble a venture financing term sheet based on questions you answer online.

Additional resources:

  • Docracy.com provides a range of other free legal documents, including consulting contracts. If you want to make sure a name you’re considering is not already in wide use, try Markify.com, which searches existing trademarks and domains.

  • If you’re wondering about the kinds of contracts you’ll face if you seek out venture capital funding, check out the National Venture Capital Association’s free model legal agreements. The NVCA.org site also includes a good overview of venture capital, as well as stats and research.
  • Chris Cameron’s ReadWriteWeb collection of useful legal resources for startups includes some relevant blogs, articles and tip sheets.

Join Jeremy Caplan, Mark Briggs, Bill Mitchell and Wendy Wallace for Poynter’s Revenue Camp for Journalism Entrepreneurs, May 18-19. You can join by webcast or in person for the workshop in St. Petersburg, Fla., with additional coaching available. Read more

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As Supreme Court begins new term, how to explain justices’ silences, interruptions, and ‘aggressive’ questions

As journalists, we focus first on getting the facts right. We pay less attention, though, to the way we describe people. Descriptions help us understand people, but they can also lead to misinterpretation if they’re not supported with context.

This is especially true in coverage of politicians and the Supreme Court justices, whose 2011-2012 term begins today. Because these leaders make influential decisions, we describe how they speak, how they interact with others, and how they come across when making decisions.

But how fair and accurate are the descriptions we use?

“When we’re describing someone, we can pass judgement on that person without even knowing it … It’s just automatic,” said Deborah Tannen, a linguistics professor at Georgetown University and author of “You Just Don’t Understand: Women and Men in Conversation.”

In a phone interview, Tannen addressed some words that journalists have used when describing the justices: Aggressive. Outspoken. Direct. Blunt. Detail-oriented. Reticent. Smart. Rhetorically-gifted. These descriptions tell us something about the justices, but they mean more in context.

Timothy Johnson, political science professor at the University of Minnesota, has been tracking the Supreme Court’s oral arguments since 1998. His research shows that Stephen Breyer is the most talkative justice, followed by Antonin Scalia. Sonia Sotomayor ranks fourth on the list, while Elana Kagan ranks fifth. (Interestingly, Breyer and Scalia also get the most laughs during oral arguments.)

In this Oct. 8, 2010 file photo, members of the Supreme Court gather for a group portrait at the Supreme Court in Washington. Seated from left are: Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left are: Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.

Many (though not all) of the stories I’ve read about Kagan and Sotomayor refer to them as “aggressive” and “outspoken.” But when I searched for stories describing Breyer and Scalia the same way, I found very few results. This is anecdotal, of course, but it did make me wonder: How does gender play into the way we describe people?

While researching the language used to describe men and women, Tannen said she’s noticed that the media are more inclined to describe women as “aggressive.”

“It’s definitely the case that a women might be described as aggressive, while a man might be described as assertive,” Tannen said. “The difference is that aggressive is bad. It rubs people the wrong way.”

It’s common, she said, “to comment on anything unexpected.” Some people don’t expect women to disagree or ask a lot of tough questions, so there’s a tendency to use words like “aggressive” or “outspoken” when describing them.

Similarly, Tannen said it’s much more common for women to be called “feisty,” just as it’s more common to say a woman “fainted” and that a man “passed out.” It’s also more surprising, she said, when a women swears than when a man swears. Tannen recently took several calls from journalists who wanted to interview her about former Yahoo CEO Carol Bartz’s use of profanity. (Bartz called the board members who fired her a bunch of “doofuses” who “f—– me over.”)

“Why are people writing articles about her that make reference to her salty language? Would it be noticed if a man used similar language?” Tannen asked. “You don’t expect women to curse, so everyone noticed that she was doing it.”

The language people use, Tannen said, has a lot to do with where they’re from. Sotomayor and Kagan are both from New York City, so it makes sense that they might be more “outspoken.”

“The manner of speaking for both women and men in New York City would come across as combative in many other parts of the United States,” Tannen said, noting that people from New York City tend to show involvement by talking. “You show you’re a good person by showing your involvement rather than backing off. ‘Aggressive’ and ‘outspoken’ are often words that are applied to people in that part of the country.”

This handout photo provided by the Supreme Court shows, from left: Retired Justice Sandra Day O’Connor, Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg and Justice Elena Kagan in the Justices’ Conference Room prior to Justice Kagan’s Investiture, Friday, Oct. 1, 2010, at the court in Washington. (Steve Petteway/Supreme Court, AP)

Geographical differences also affect the way people interact with each other. Tannen remembers reading about Sandra Day O’Connor getting upset because Ginsburg had interrupted her. It would be easy to frame this kind of exchange as a cat fight and miss an important piece of context about language.

“It probably had to do with how long a pause each one thought was appropriate. That length of pause is shorter in New York City than in Texas,” Tannen said, referring to the places Ginsburg and O’Connor grew up. “They probably had a different sense of how long a pause is normal.”

An understanding of how geography affects language could help journalists put the justices’ interruptions into context. So could Johnson’s research on interruptions, which shows that, on average, 5.5 percent of O’Connor’s utterances were interrupted. It also shows that Ginsburg interrupts people fewer times than most of the justices.

Johnson’s research on interruptions is based on oral arguments from 1998 to 2007, so it doesn’t yet include Kagan and Sotomayor. Some stories have suggested that Sotomayor is “adept at interruption” and that when Chief Justice John Roberts shuts down justices, “Sotomayor seems to be a frequent target.”

When Sotomayor was nominated, many referred to her as “a bully” and a “terror on the bench.” Others wondered if she really was a bully or if the description was sexist.

Nina Totenberg, legal affairs correspondent at NPR, said she thinks there was “plenty of sexist coverage” when Sotomayor, Kagan, Ginsberg and O’Connor were nominated. But that seemed to change once the justices were sworn in. “Once they put on that black robe,” she said, “they become unisex.”

When it comes to oral arguments, Totenberg doesn’t think journalists or the justices focus on gender.

“All the women justices are quick to say that they don’t think their gender has anything to do with the outcome of the case and I think it’s probably true. But I do think there is a desire to say there’s no difference when there sometimes is,” Totenberg said. “Speaking as a woman and watching the way women operate in the workplace, I would say there’s a difference, but I can’t prove it.” (In a 2009 New York Times interview, Ginsberg said she believes having female justices does make a difference, especially in discrimination cases.)

Johnson agrees that there’s not a difference in the way journalists cover the male and female justices during oral arguments. Sotomayor and Kagan are often verbose, he said, so “aggressive” and “outspoken” seem like fitting descriptions. “I think it’s pretty clear from watching the proceedings that they’re pretty tough questioners and they speak quite a bit more in comparison to a Roberts, Alito or a John Paul Stevens.”

Clarence Thomas, meanwhile, has gone five years without speaking during a court argument. According to Johnson’s research, he’s spoken an average of 91 words per oral argument since 1998, compared with Breyer, who’s talked an average of 738 times.

Tannen suggests that journalists pay closer attention to the words they — and others — use to describe the justices. If journalists hear someone call a justice “aggressive,” she said, they should try to figure out what behavior is being described rather than reporting the description as fact.

It’s worth asking: How else could that behavior be described? Would it be described differently if the speaker was a male instead of a female, or vice versa? What if the justice were a veteran of the court rather than a newbie? If something about a woman surprises you, ask: Would I be surprised by this behavior if this person were a man?

Conversational style can reveal a lot about power on the court, Tannen said: “Simply getting the floor and keeping the floor cannot take place without the interplay of conversational style — how long a pause one expects relative to others, whether or not one senses another is winding down and it’s OK to overlap, or whether one feels one has to wait for a nice perceptible silence to be sure the other is done, by which time someone else may have sensed the winding down and jumped in.”

She went on to say that conversational style isn’t just a matter of where a justice (or anyone) was born, raised or educated, or what their ethnic, class, or cultural background is. Individuals have many influences, such as their parents’ conversational styles or their place in the sibling order, or just plain personality, and they don’t always conform to expectations.

“So should journalists describe justices’ backgrounds? Not necessarily, though this could be one of several factors to take into account,” Tannen said. “But should they look more closely at the interactions underlying evaluations? Yes.” Read more

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What journalists need to know about libelous tweets

Rumors that CNN had suspended Piers Morgan due to the News of the World phone hacking scandal spread on Twitter earlier this month, sparking an important discussion about whether journalists need to verify information before tweeting.

The incident, which we wrote about on Poynter.org, prompted commenter S.J. Dahlman to wonder: Can tweets be libelous?

It turns out they can be.

“Statements on Twitter can form the basis of a defamation lawsuit just as much as any form of publication,” explained David Ardia, an assistant professor of law at the University of North Carolina. “It’s just sometimes with new technology, it takes a little longer for people to start to take what they read seriously enough — and more importantly for lawyers — to pay enough attention to start to bring lawsuits based on it.”

There are a lot of misconceptions about whether tweets are libelous. It’s easy to think, for instance, that Twitter is ephemeral and that libel laws wouldn’t apply. This is similar to what happened when blogs first came out, Ardia said. Many bloggers, he explained, thought they could post whatever they wanted without any legal ramifications. (We now know that’s far from true.)

There aren’t many “twibel cases” as they’re sometimes called, but Ardia said he expects more to arise as the number of Twitter users increases. Perhaps the most notable case involves Courtney Love, who was sued for tweeting defamatory remarks about a fashion designer.

Ardia and other lawyers I spoke with for this story knew of only one Twitter libel case involving a media company. Earlier this year, NBA referee Bill Spooner sued the AP after sportswriter Jon Krawczynski tweeted that Spooner was calling fouls to compensate for bad calls. Spooner, who considered the tweet defamatory, asked the court for more than $75,000 in damages and requested a court order to delete the tweet. AP Spokesman Paul Colford said only, the “case is in litigation.”

Ardia said as far as he can tell, none of the cases involving libelous tweets have gone to trial. That’s not surprising, as most libel cases get dismissed and those that don’t are typically settled.

“They’re notoriously difficult to win,” said Ardia, who co-founded the Citizen Media Law Project. “Some juries grant a lot of money as a result of reputational harm, but it’s hard for a defendant to handicap what their likely damages are. That uncertainty pushes defendants to settle.”

So how can news organizations guard against libelous tweets? It’s important, Ardia said, for staffers to have a basic understanding of the legal implications of tweeting.

Under section 230 of the Communications Decency Act, news organizations are protected from defamation liability for content that’s created by a third party. The law protects YouTube from libel lawsuits, and it protects bloggers and news organizations from defamatory comments that users may post. The law also protects retweets. So if a journalist or news organization were to retweet a defamatory statement, they would not be held accountable. If, however, they added a defamatory remark as part of the retweet, they could be.

Generally speaking, Ardia said, a news organization would only be responsible for an employee’s defamatory tweets if the employee’s use of Twitter was part of their job or otherwise related to their line of work. If the defamatory tweet wasn’t work-related, the employee would be the only one responsible for it.

Having social media guidelines that lay out the legal pitfalls can help. A few months after the AP was sued, the organization updated its social media guidelines. (When asked whether the lawsuit Spooner filed prompted the AP to update its social media guidelines, AP Deputy Managing Editor for Standards and Production Tom Kent said, “Not that I recall.”)

The new guidelines, which were issued a week after the AP warned staffers about expressing opinions, didn’t specifically mention the legal implications of tweeting.

Some organizations, such as ASNE, have been criticized for creating “strict” social media guidelines that limit journalists’ ability to develop their voice and skills on social networking sites. I tend to favor guidelines that encourage experimentation rather than those that limit it. But given that tweets can be libelous, I can see the value in setting stricter parameters.

When updating its guidelines recently, the BBC instituted a rule saying “two pairs of eyes” need to look over news updates for Twitter and Facebook. The extra set of eyes could prevent the BBC from tweeting something potentially defamatory, but that’s not why the BBC made the update. Kevin Marsh, a longtime BBC editor who played an advisory role in creating the guidelines, explained that the update is an extension of the more general rules and practices that the BBC follows.

“Recorded content has to go through a lengthy and comprehensive process of compliance,” said Marsh, who recently left the BBC after working there for 33 years. “Live content [anything published on social networks] has to go through a different process, for obvious reasons, with the warranty from the editor in charge of the output that there are at least ‘two pairs of eyes or ears’ across the content, one more senior to the other, able to take action — apology, taking down, correction — if necessary.”

At The Guardian, journalists who identify themselves as Guardian employees in their Twitter bios are advised to include a disclaimer such as, “These are my personal views and not those of my employer.”

This can be helpful, Ardia said, but it’s not a complete shield to liability.

The Guardian’s guidelines mention the legal implications of tweeting information from their personal accounts. “Reputation damage to the Guardian brand would be our main concern,” Gillian Phillips, director of editorial legal services, said by email. “If someone tweeted in a way that linked too closely to the Guardian, we might be at risk of being sued.”

Reuters’ Handbook for Journalists, which includes its social media guidelines, says that libel issues pertain to wire stories and “almost all methods of communication, including email, Internet, chatrooms, broadcasts and radio casts.”

“We encourage our journalists to use social media aggressively in listening mode — to find sources, ferret out angles, get to know the experts on their beats, etc. — but to be as careful in transmission mode as they would be if they were publishing on a newspaper’s front page,” said Jim Gaines, editor of ethics, standards and innovation. “Given all the guidance we provide, not only in the Code [of Conduct] and Handbook but also in our aggressive continuous-training programs, I’d be quite surprised if a legitimate defamation charge came up.”

That said, he acknowledged that missteps are always possible.

To avoid missteps, NPR is updating its code of ethics, which will be replaced by a set of ethics guidelines and a handbook. The guidelines and handbook won’t specifically address libelous tweets, but they’ll offer ethical guidance that staffers can apply to all publishing platforms.

“We very intentionally framed our guidance to our staff in an encouraging way,” said Mark Stencel, NPR’s managing editor for digital news. “I think it’s really easy to stand up and say, ‘Here are all the dont’s of social media that will discourage people from doing all the do’s.”

NPR has several staffers who are active on Twitter, including David Folkenflik and Andy Carvin. Earlier this year, Folkenflik was one of many journalists who incorrectly tweeted that Gabrielle Giffords had died, citing NPR’s report. Ashley Messenger, NPR’s associate general counsel, said that while the tweet was false, it couldn’t be deemed libelous.

“Saying Giffords was killed isn’t defamatory, so it doesn’t create a libel problem,” Messenger said by phone. “It’s an accuracy and ethics problem, and obviously it was a very serious mistake that we regret deeply.”

It’s not enough to have social media guidelines and ethics codes. Newsroom leaders need to have regular discussions about them to keep them top of mind.

“How are you managing the legal risks beyond the policies?” Ardia said. “Policies only go so far when a reporter is actually sitting down at their computer about to tweet. What resources do they have? Where can they go for help? What sort of training do they have?”

To avoid libelous tweets, news organizations need to have regular conversations about ethics and a basic understanding of how they want to use Twitter. Do they want to tweet information and confirm it after the fact, or do they want to wait and verify all information before tweeting it? Individual journalists may answer this question differently from their news organizations, and the answer may change as journalists find new ways of using Twitter.

“How different news organizations approach that question is going to have an impact on the way the public — those of us who rely on Twitter as a source of information — come to assess their credibility and reliability,” Ardia said.

While ethics and law are two different things, they often overlap, and one informs the other.

“Adhering to good ethical principles substantially minimizes the risk of any legal issues,” Messenger said. She noted that journalists have to think about all mediums of communication from the same standpoint.

“The fact that it’s a tweet doesn’t make a difference,” Messenger said. “You always have to take into consideration what you’re saying, what you know, what you don’t know, and be thoughtful about not making libelous comments whatever the medium.” Read more

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