KTHV sports reporter sues broadcast group alleging racism in hiring and promotion

Earlier this year, an Arkansas sports reporter/weekend anchor sued his current employer, Gannett-owned KTHV alleging, among other things, violations of Title VII and the Arkansas Civil Rights Act, as well as sundry other contract causes of action. All of the separate claims derive from allegations of racial discrimination, even the contract claims.

You can read the Complaint here. The Plaintiff attached a copy of his EEOC charge, as well as a 1999 suit filed against Gannett by another ostensibly aggrieved former reporter which appears to have been settled.  (Note:  Arkansas is a part of the 8th Circuit Court of Appeals.  This case was filed in federal court in Little Rock, Arkansas).  Also, while originally filed as a class action, the suit has been amended to name only the individual plaintiff.

arkcase

To thumbnail: Plaintiff is an African-American male who was hired in 2003 as a producer/reporter and alleges that management promised that he would be promoted, over time, to the number one sports position. I gather from the pleadings that there is no writing that confirms this. Plaintiff claims Station continued to make promises to him, throughout his employment, that he would be promoted. Plaintiff claims that, while at KTHV, he was offered more lucrative opportunities on two separate occasions in larger markets, by WEWS (Cleveland) and KPNX (Phoenix); in the first instance, he claims he turned the position down in reliance on KTHV’s promises to promote him, and in the second instance, he claims KPNX elected not to hire him because of adverse remarks made by Station management to KPNX management.

Needless to say, he was never promoted to the number one sports position at KTHV.

As part of his case, Plaintiff alleges a number of different things about Gannett. He alleges that Gannett has an all-white corporate board, generally all-white management, favors all-white anchors on its newscasts and, most importantly, justifies the appointment of all white anchors through the use of “subjective criteria” like focus groups and “corporate restructuring reasoning”, etc. He further alleges that there is no documentation indicating a “standardization” of the appointment and promotion process.

I do not know anything about the merit of his claims or the composition of Gannett’s corporate structure or whether there is a pattern or practice of discrimination in favor of white employees. This is not a commentary on the merits of this lawsuit.

I am posting about it here because the following points are interesting to me and are worth noting:

  1. The employee filed his EEOC charge and filed suit while he was STILL employed at the station. As of the time of posting, his bio is not featured on the station web site.  I have no information as to why he is off the site or whether he is still employed with KTHV. In the broadcast industry though, it is unusual for employees to sue their employers during the course of their employment. The industry is small and journalists worry about alienating themselves.  On the other hand, if they terminated him after his filing of an EEOC charge, they would be exposed to liability for retaliation under Title VII.
  2. The language of the Complaint itself seems to weave between wanting to accuse the station and wanting to accuse the ownership group.  This vacillation highlights important strategic questions associated with these suits.  Who do we sue?  The station or the whole company?  Although Gannett is the named Defendant, the allegations seem generally focused on management at the Little Rock station.  Ultimately, this is a suit against Gannett and Gannett will have to participate in discovery. Keep in mind that the question of whether Gannett discriminates may be different if you look at the station in isolation, as opposed to looking at how Gannett does business at all of its properties. Obviously, each side may feel differently – and may argue differently – about the proper scope of the litigation.
  3. Finally, the issue of how a television station hires and promotes is still a sticky one, in the eighth circuit, AND beyond.  This case really highlights that, and is the reason I chose to feature it here.

Unless you have “disparate treatment” (open express statements or incidences of discrimination), a plaintiff in one of these cases has to try to prove what is called “disparate impact.”  Essentially, this means that while an employer’s policies may be racially neutral on their face, those policies or the conduct of management may have a discriminatory effect.  These cases are obviously harder to prove, and are typically reliant on circumstantial evidence (like, for example, the fact that most or all of a station’s anchors happen to be white).

To bring one of these cases, an employee has to be able to prove certain basic facts.  That gets the employee in the door.  The burden then shifts to the employer.  If an employer can show that its decision to not promote a particular individual is supported by a “legitimate, non-discriminatory business purpose” and the employee cannot disprove that, usually, the employer can prevail.

But how does a TV station prove that its decision was not discriminatory?  Usually, that station’s lawyers provide the employee’s personnel file which, ideally, is rife with documented policy violations.  In this case, Plaintiff seems to believe that Gannett is going to say that it did not promote him because of focus group data, but that this data is really a “pretext” for racial animus.  Pretext is a legal term of art.  In essence, the Plaintiff needs to show that the station’s explanations for not giving him the job he wanted are bogus.

The problem in television is that management decisions to put people on the air are often based on ratings, research and focus group data.  More than many other industries, these ostensibly “objective” measurements really do have “subjective” values at their core.

The leading case on television discrimination happens to be an 8th Circuit case called Craft v. Metromedia, Inc.  Although not entirely on point, the Craft case shows that courts seem to understand the subjective nature of television staffing. Among other things, the Craft court was considering a sex-related discrimination claim, wherein Christine Craft alleged the station’s “standards” (dress, make-up, hair, etc.) for on-air personnel were stricter and more strictly enforced as to females than as to males. The 8th Circuit gave stations some wiggle-room in its opinion on this “grooming” issue:

 Courts have recognized that the appearance of a company’s employees may contribute greatly to the company’s image and success with the public and thus that a reasonable dress or grooming code is a proper management prerogative. Evidence showed a particular concern with appearance in television; the district court stated that reasonable appearance requirements were “obviously critical” to KMBC’s economic well-being; and even Craft admitted she recognized that television was a visual medium and that on-air personnel would need to wear appropriate clothes and makeup. While we believe the record shows an overemphasis by KMBC on appearance, we are not the proper forum in which to debate the relationship between newsgathering and dissemination and considerations of appearance and presentation—i.e., questions of substance versus image—in television journalism. The record does not leave us with the “definite and firm conviction” that the district court erred or adopted an impermissible view of the evidence when it concluded that KMBC’s appearance standards were shaped only by neutral professional and technical considerations and not by any stereotypical notions of female roles and images.

Craft v. Metromedia, Inc., 766 F.2d 1205, 1215-16 (8th Cir. 1985)(internal citation omitted).

So, on the issue of “grooming,” the 8th Circuit seems to acknowledge that stations need to accommodate their viewers’ differing tastes, but stops just short of affirmatively allowing different rules for the different sexes.

In fact, it is a fairly well-recognized rule in the area of employment discrimination, that “customer preference” is not a defense to a claim of discrimination. The Craft case acknowledges this:

 Craft’s argument is that these differing standards as to females reflect customer preferences, which a number of cases have held cannot justify discriminatory practices.

Craft v. Metromedia, Inc.. 766 F.2d at 1214-15.

Think about what that means in this context. A television station can probably not blame its viewers for discriminatory staffing decisions (i.e., “we are a business and our viewers do not like to get their news from African-Americans.”).

Here’s another 8th Circuit analysis of the use of “customer preference” as a defense:

 Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388–89 (5th Cir.) (customer preference may only be taken into account when it goes to a matter affecting the company’s ability to perform the primary necessary function or service it offers, rather than a tangential aspect of that service or function), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982) (holding that customer preference for slim female flight attendants did not justify a discriminatory policy where weight was unrelated to job performance), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983). The existence of a beard on the face of a delivery man does not affect in any manner Domino’s ability to make or deliver pizzas to their customers. Customer preference, which is at best weakly shown by Domino’s survey, is clearly not a colorable business justification defense in this case. Significantly, the survey makes no showing that customers would order less pizza in the absence of a strictly enforced no-beard rule.

Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993).

 So, what does this all mean?

First, you should be able to tell that the law is still a little wobbly on what a station can use as a viable defense to a discrimination claim.  The best defense is always going to be that a decision was race-neutral, that it was performance-based and that the employee had multiple opportunities to improve his or her position but suffered an adverse employment action as a result of progressive discipline.

It will not help if, as Plaintiff here alleges, Gannett’s corporate and station management structures are dominated by white employees and if most of Gannett’s anchors across the country are white.  If this case is not settled, then discovery will likely focus on Gannett’s composition across the company.

Second, if, in this case, Gannett does in fact intend to rely on focus group data and on “corporate restructuring reasoning”, as Plaintiff seems to believe, the Court will have to drill down on the focus group testing to determine if the sampling and the questions are themselves in some way discriminatory.  Because “customer preference” is not a defense, the Court will have to determine if the customer testing, the focus groups, are inherently racist or discriminatory.  To win on what appears to be his primary theory, Plaintiff will have to show that Station’s focus group testing was not race-neutral, but that the sampling and the questions were tainted with racial animus.  Moreover, he will have to show that Gannett consistently deployed this animus at its stations across the company.

Again, I reference this case because it is current and broadcast-related, and because it gives me an opportunity to discuss some of the nuances of the law in this area.  I cannot, and would not, speak to the merits of an individual pending case, other than to point out that these cases create significant challenges for both sides.

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Analysis of Comcast lobbying expenditures taints merger hearing

Brian Stelter of CNN’s Reliable Sources did an excellent segment today, reviewing the congressional hearings this week involving the proposed merger between Time Warner Cable and Comcast.

You can watch the segment here.

Stelter

The segment concludes with an interview with Al Franken, but I think the highlight of the segment is the packaged content, wherein Stelter reveals that “every one of the 18 members of the committee has gotten cash donations from Comcast at some point during the last decade.”

Arstechnica has a piece on this too:

But just how many politicians have accepted money from Comcast’s political arm? In the case of the Senate Judiciary Committee, which held the first congressional hearing on the Comcast/TWC merger yesterday, the answer is all of them.

Sen. Chuck Schumer (D-NY) led the way with $35,000 from the Comcast federal political action committee (PAC) between 2009 and 2014, Sen. Patrick Leahy (D-VT) received $32,500, and Sen. Orrin Hatch (R-UT) received $30,000. These figures are the combined contributions from Comcast to the senators’ campaign and leadership committees. (Schumer has recused himself from the merger hearings because his brother, a lawyer, worked on the deal.)

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Houston News Director adopts “no knock” policy for reporters chasing criminal suspects

A Houston news director took a fantastic and progressive position last week that directly impacts the dynamic between reporter and producer/news manager.  Not only is it a fundamentally sound newsroom policy, but it resolves the ambiguity that I have seen manifest itself in newsrooms so many times.  In short, this particular news director has banned reporters from knocking on the doors of individuals who have been identified as criminal suspects.  More interestingly to me, he has prohibited producers and other newsroom managers from instructing reporters to take this action.

I first read about this on Newsblues.com yesterday (Monday).  That site is membership driven; I am a member.  Because the content is behind a paywall however, I have sourced the background and substance elsewhere.

Earlier this year, one of KTRK‘s reporters was investigating an individual suspected in an alleged sexual assault.  The man pulled a gun on the reporter (Demond Fernandez) and threatened to shoot him.   Last week, in an unrelated incident, a woman randomly opened fire at the station from its parking lot.  No one was injured in either incident.

This week, KTRK News Director David Strickland sent the following memo to staff:

I know this will come off as opportunistic in the wake of today but I’ll allow my vanity to take the hit.

Since the Demond “knock on the door gun incident” from earlier this year, Don Kobos and I have been discussing the merits of knocking on doors of crime suspects. In short, we just don’t see the need to do it as the risk to reward ratio does not justify it. It’s just a sound-bite.

From this point forward reporters are not to go to a suspect’s house and knock on the door seeking comment. Producers and Managers are prohibited from ordering reporters and photographers from this type of news gathering.

As for other stories not involving a suspect, if the reporter or photographer thinks there is an editorial need to cold call knock on someone’s door they must get a manager’s permission first.

I know there are always circumstances that will frustrate this rule. In those cases, please discuss this with a manager and we will figure it all out.

It’s just not worth getting someone hurt over a sound-bite.

I’m sorry for not sending this out quicker.

This is a clear, unequivocal policy that directly addresses the exposure KTRK’s people in the field face on a regular basis.  I am told that the station places a premium on staff safety and participates in other safety training exercises on a regular basis.

I was particularly intrigued by this story, and the memo, because it is commonplace for reporters, photographers and meteorologists to be dispatched into “harm’s way” to cover a story.  In fact, news crews who do this are routinely praised for their “courage.”  Sometimes that means doing live shots in dangerous neighborhoods where homicides have occurred.  Sometimes it means driving a satellite truck toward a hurricane, instead of in the opposite direction.  The field crew often fears for its safety but worries about resisting the direction from the producer (and “getting in trouble”).  This tension between reporter and producer (or manager) pops up from time to time in every newsroom in the country.

At least at KTRK, reporters now know that they may refuse these particular assignments without fear of adverse employment consequences.  What I particularly like about the memo is its carve-out, or acknowledgement, that there will always be exceptions to the rule, but that they will be agreed-upon exceptions.

This may seem insignificant to those who have not been in these situations; it is anything but.  Non-contract employees work at the will of their employer and, with few exceptions, may be terminated for any reason at all.  Even contract employees working in newsrooms have often agreed to contract language that requires them to generally comply with the directions given them by their employers.

In Kentucky, a district court relied on similar language when it found that an at-will employee who failed to post a web story had violated a newsroom policy requiring employees to “[p]romptly and in good faith comply with all directions, requests, requirements, rules and regulations made by Employer in the conduct of its business” and to “perform such services as Employer, in its exclusive discretion, shall designate….” Jerry Sander v. Gray Television Group, Inc., 2010 WL 3781639 (E.D.Ky. 2010).

Although this Kentucky case relies on facts that are only remotely analogous, it should illustrate the conflict that must arise between every newsroom employee and his or her immediate manager.  Because one’s perception of danger is ultimately a subjective thing, newsroom employees risk discipline when they refuse assignments, no matter the reason.

As an aside, this sort of a policy is not likely solely designed to limit a station’s legal liability; it is more humane than that.  After all, many states have workman’s compensation statutes that limit an employer’s civil liability for on-the-job injuries.  The effect of these statutes?  No matter how badly a newsroom employee is injured on the job, his recovery against his employer is capped at the state maximum.  In Tennessee, where private employers are required to carry WC insurance for example, you may be limited to recovering your medical expenses and “temporary disability benefits.” (2/3 of average weekly earnings during 52 weeks prior to injury).  In Texas, WC is optional, but for those private employers who participate, their liability is also effectively “capped”.

In other words, this message to KTRK’s staff does more than just limit the station’s liability exposure.  It empowers field crews to be safe without fear of reprisal and it sends a message to staff that their safety is more important than the soundbyte.

 

ricketts15n-3-web

Photo source: NY Daily News

 

 

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Fox’s Geraldo Rivera wins contract dispute with former talent agency

A New York City Supreme Court judge granted Geraldo Rivera’s Motion to Dismiss a complaint filed against him by William Morris Endeavor Entertainment, LLC, a national talent agency.  According to the Complaint, which you can read here, Rivera stopped paying his ten percent (10%) commissions to William Morris in 2010.  The agency sued for breach of contract, unjust enrichment and quantum meruit.

Rivera originally hired William Morris by letter agreement.  You can read that here.

According to the pleadings, a series of renewals occurred, also by letter agreement, and were accompanied by boilerplate AFTRA agreements.  You can read the most recent one of those here.  Rivera claims he stopped paying because he believed his agreement was with a particular agent and that he did not need to pay the agency once that particular agent was no longer there.

The dispute centered around the existence of memorialized agreements and their express language.

Among the reasons for granting the dismissal is New York’s Statute of Frauds, which requires that agreements contemplating performance over a time period exceeding a year must be in writing.  You may read the Order here.  It explains the factual and procedural background of the case and is an interesting read.

According to the NY Daily News:

“This is a body blow to how Hollywood does business,” Rivera said. “It deals a blow to evil agents who wanted money for work they never did.”

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Florida news org wins suit over duplication fees

The Florida news organization that sued a county clerk over excessive duplication fees has evidently prevailed.

Excerpts from the Watchdog City Press:

Brock had argued in court filings that as Clerk of Courts he is subject to Florida statute 28.24 and that he is allowed to charge up to $1 per page for records in his possession.

Judge Hardt wrote: “Under the facts in this case there is no conflict between Chapter 28 which governs the Clerk and Chapter 119 which governs access to public records. For documents stored in an electronic format, the Legislature has mandated that the authorized fee which may be charged by the Clerk for downloading the data on a computer disk may not exceed the cost of the disk. The cost of a computer disk does not exceed $1.00.

After Edwards published critical stories on Feb. 11, Brock charged $556, for 556 pages for electronic records on 2 CDs, saying as Clerk he is allowed to charge $1 per page for all records in his possession. Edwards filed the lawsuit challenging the fees on Feb. 25.

 

Read the entire article here.

 

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Federal reporter’s shield law raises hopes, also criticism

Multiple media have noted Senator Chuck Schumer’s confidence that a federal shield law (the first of its kind), the “Free Flow of Information Act of 2013”, will see enactment this year.

You can read the text of the bill here.

From Politico:

“It’s very, very likely the Senate will pass a bill this year,” Schumer said. “Just about every Democrat is for the bill. … We have five Republicans on record being for it, three of them are co-sponsors.”

Brad Greenberg, a law fellow at Columbia U., has evidently written an article in the Washington University Law Review about the bill, which he summarizes on the Concurring Opinions blog.
From the CO blog post:
But there are at least three substantial challenges to the bill’s efficacy. The first, a broad national security exemption, has received the most attention; it also might be an unavoidable feature of any politically palatable media shield. The second is that the bill normalizes the process of subpoenaing reporter records and, worse, displaces accountability from within the Executive across the Judiciary, Congress, and a Fourth Estate that has enthusiastically endorsed judicial review of subpoenas. This cost, identified by Dave Pozen, suggests that reporters might be better off with no shield at all. The third challenge is the massive loophole the bill leaves for acquiring reporter records via third-party service providers.
Read more about the article and the issue here.
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Moderating your readers’ comments does not make your news organization “liable” for those comments

News organizations around the country have different approaches to handling comments on their web sites.  One question that has long plagued news managers, and which still informs corporate policy-making, is whether moderating the comments posted on your site by third-parties increases your organization’s civil liability for the damage caused by those comments.  The short answer is that it usually does not.

Techdirt posted a strongly worded reminder today about the broad immunity granted to web site owners and the fact that modifying comments does not remove that immunity.  You can read the Techdirt piece here and link internally to their own excellent coverage and analysis of this issue in general.

Simply put, Section 230 of the Communications Decency Act creates broad immunity for a web publisher for the comments posted by third parties.  The entire statue appears here, but here is the relevant language from subsection (c):

(c) Protection for “good samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The bottom line is that the removal of offensive comments or the organization of third-party content on your site probably does not take your immunity away.  Techdirt gets to the heart of it, but I thought I would add some case law to flesh out the reasoning and to highlight some parameters that are still being shaped:

First, here is the Fourth Circuit on the reason Section 230 was enacted:

Congress enacted § 230 to remove the disincentives to self regulation created by the Stratton Oakmont decision. Under that court’s holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230’s broad immunity “to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.” 47 U.S.C. § 230(b)(4). In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)

Now, some food for thought:

A District Court in Kentucky, recognizing that the Sixth Circuit has not yet weighed in on this, held that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content.”  Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1010-11 (E.D. Ky. 2012).

This case is currently on appeal at the Sixth Circuit.

The reasoning of the District Court judge though is interesting.  This Kentucky federal court identified a number of examples where the immunity ostensibly goes away.  In one example, a web host lost its immunity because it “required subscribers to the site as prospective landlords or tenants to include information that was illegal under the Fair Housing Act.”  In another example, “the operator of a web site that sold various personal data, including telephone records was violating certain federal confidentiality regulations.”  The most interesting part of this opinion is the analysis of the case itself, which involved allegedly defamatory remarks about a female high school teacher posted on a web site called thedirty.com.

This Court holds that, under the principles of Roommates.com and Accusearch, the defendants here, through the activities of defendant Richie, “specifically encourage development of what is offensive about the content” of “the dirty.com” web site.

  First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy. Richie’s activities as described in his deposition also require the conclusion that he “specifically develops what is offensive” about the content of the site.

Richie acts as editor of the site and selects a small percentage of submissions to be posted. He adds a “tagline.”  He reviews the postings but does not verify their accuracy.  If someone objects to a posting, he decides if it should be removed.  It is undisputed that Richie refused to remove the postings about plaintiff that are alleged to be defamatory or an invasion of privacy.

  Most significantly, Richie adds his own comments to many postings, including several of those concerning the plaintiff. In these comments, he refers to “the fans of the site” as “the Dirty Army.”   He also adds his own opinions as to what he thinks of postings.  Richie’s goal in establishing the site was to bring reality TV to the Internet.   He wants everybody to log on to “the dirty.com” and check it out. In his opinion, “you can say whatever you want on the internet.”  One of Richie’s comments posted concerning the plaintiff was “Why are all high school teachers freaks in the sack,” which a jury could certainly interpret as adopting the preceding allegedly defamatory comments concerning her alleged sexual activities. When asked about this comment, he stated: “[i]t was my opinion, you know, watching the news and seeing all these teachers sleeping with their students and, you know, just my opinion on all teachers just from, like, what I see in the media.” 

Richie also posted his own comment addressed directly to the plaintiff, stating in part: “If you know the truth, then why do you care? With all the media attention this is only going to get worse for you … You dug your own grave here, Sarah.”   He further posted: “I think they all need to be kicked off [the Bengals’ cheerleading squad] and the Cincinnati Bengals should start over. Note to self. Never try to battle the Dirty Army. Nik.”  And, perhaps most significantly: “I love how the Dirty Army has war mentality. Why go after one ugly cheerleader when you can go after all the brown baggers.”

This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”

Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1012-13 (E.D. Ky. 2012)

Remember, this case is on appeal and a number of stakeholders have filed briefs to the Court. It is being closely watched.

What is the takeaway if you manage a news site?  The general rule still controls:  you are probably safe from liability even if you manage or modify the comments posted by your users, readers or viewers.  This case presents a warning though, that at least one court has tried to remove that immunity when the web site “in some way specifically encourages the development of what is offensive about the content.”

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Online commenters as sources? Maybe so… if done right

A recent New York Times blog post (article) discusses the valuable reporting contributions made by online commenters and how these “contributors” have become critical “sources” to modern reporting.  The NYT piece is excellent and is linked here.  As it happens, this classification of “commenters” as “sources” is of particular interest to me;  in fact, there is an unpublished law review note on this very topic at the bottom of a drawer somewhere in my house.  Sources, of course, have “legal” status under many state shield laws.

In other words, the term “source” is not just a colloquialism.  It is a legal term of art.  A journalist, in many states, is “privileged” to protect the identity of his “source.”

But why should such a privilege exist when the journalist writing the story (or reporting it for TV or radio) does not actually know the identity of this “source?”

Increasingly, around the country, lawyers are arguing that online commenters are sources and that their media clients should not be compelled to disclose their identities (I.P. addresses, email addresses, etc.).

Here are a couple of [hopefully] illustrative examples (describing real cases):

1.  During the widely-reported criminal trials of two men charged in the shooting death of a Tennessee state trooper in 2007, defense attorneys sought to identify a series of anonymous commenters who had been posting on the web site of a local newspaper.  The paper had been reporting on the proceedings and enabling its readers to opine just  below the online version of its report.  The defense, seeking a change of venue out of “concern” that some of these unnamed commenters might end up on their jury, sought to subpoena the newspaper to compel disclosure of the users’ identities.  The newspaper’s lawyers successfully quashed the subpoena by arguing that these anonymous posters were “sources” and that the newspaper was privileged from disclosing their identities.

2.  In Montana, an individual sued a newspaper seeking the identifying information about three anonymous commenters who that individual claims defamed him in a series of online comments.  These allegedly snarky comments were posted by the unknown commenters below the article and after it was published.  Here, the newspaper’s lawyers again defeated a subpoena for this information by arguing that these unknown commenters were “sources” as contemplated by Montana’s shield statute.

3.  A Kentucky paper reported a story about a 20-year old university student who was reportedly evicted from an area shopping mall because her dress was too short.  Beneath the article on the newspaper’s web site, an anonymous commenter alleged that the student had, on a prior occasion, intentionally exposed herself to a woman and two children.  The student filed a “John Doe” suit and subpoenaed the newspaper to reveal identifying information about the anonymous commenter because the student had allegedly been damaged by this anonymous remark.  Again, the media lawyer argued (among other things) that the commenters were “sources” under the Kentucky shield statute and that the newspaper should not have to reveal the identifying information.

Of those states with a reporter’s shield or a journalist’s privilege, many have statutes using different language; they are not all created equally.  In many of these statutes, the definition that is most hotly debated is that of the “journalist”, i.e., is a blogger a journalist, etc.?  Very few statutes define “source” and, as a result, courts with limited knowledge of the journalistic process, do not know what to do with the argument that online commenters are statutory sources.

Here’s another twist:  There is a federal statute that protects web publishers from liability for the content posted by third parties on their web sites.  I have a “primer” on that elsewhere on this site.

So imagine this:  Your hometown paper writes an article about a recent charity drive you organized.  The story is all positive.  In the comments however, user “hater12834” posts a series of false remarks about you, alleging infidelity and drug abuse.  Imagine that you are damaged in a measurable way by these remarks (your wife files for divorce, you lose your job, etc.).  How can you be made whole?  You cannot sue the newspaper, because of that federal statute I mentioned;  the newspaper is not liable for the comments published on its site by third-parties.  You do not know who “hater1234” is.  The increasingly common strategy is to sue “John Doe” and then issue a subpoena to the newspaper for any identifying information regarding user “hater1286.”  Then, you would replace John Doe with the true identity of the unknown defamer.  Whoa!  “Stop right there,” protests the newspaper.  User “hater1234” is a “source” and under this state’s shield law, the newspaper argues, we do not have to divulge or unmask the identity of our sources!

Now what?  In a number of cases, the damaged plaintiff is just out of luck because courts have, increasingly in recent years, allowed media organizations to point to online commenters and call them sources, when the journalist writing or reporting the story does not actually know who “hater1234” really is, never made a deal to protect his identity and did not actually use the comments as part of his reporting.

I should mention that in my example #3 above, the reporter who wrote the original story actually used the allegedly defamatory comments as the basis for a follow-up report.  The lawyer in that case made that point in his “motion to quash” the subpoena and, in my opinion, that does tend to strengthen the argument that the online commenter provided “source” material for some journalism.

All that said, the number of cases that I have identified where this issue arises are primarily state court disputes and the law is generally unsettled in this area. Most reporter shield statutes do not define “source” and, unfortunately, I think this often results in abuse and the misapplication of the various state shield laws.

The NYT piece is titled, “For Some, Reader Contributions Become a New Reporting Tool.”   It is a great piece about how some reporters are actually using online comments as part of their reportage.  For what it’s worth, I think this kind of reporting reflects the upside in allowing and inviting online commentary.  In my opinion, these NYT examples typify source-driven reporting.  The headline though (“For Some”) implicitly acknowledges the downside, that there are others who are not using reader contributions as part of their reporting.   Should these reporters and news organizations still be able to benefit from these shield laws?

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Misconceptions: Why “right-to-work” may not apply to you

Having worked at three different television stations (none of which was unionized), I frequently heard how non-compete provisions (restrictive covenants) should not be enforceable in specific instances, because “this is a right-to-work state.”  I still hear the expression from media-employed friends who perceive themselves to be aggrieved by their employers; they lean on their state’s “right to work” statute as a source of perceived bargaining strength.  Employees in myriad industries believe that these statutes protect them from being kept out of the market by their employers after separation.  In fact, this phrase is widely and woefully misused by many, particularly those in the media.

The phrase “right-to-work” is linked to labor laws that have changed, by state, as the specter of the “closed” union shop has faded.  More plainly put, it is a union concept.  If you do not work for a company that has union agreements, “right-to-work” does nothing for you.

For those interested in the meaning of the phrase, and for the many print journalists who are somewhat more commonly unionized, there was a time (pre-1947) when employers and unions were allowed to require union membership as a condition of employment.  When employers established these requirements, they were called “closed” shops.  The Taft Hartley Act did away with the closed shop in 1947.  The Act freed the states however, to permit less restrictive versions of these shops, like the agency shop, where employees have to pay union dues even when they do not join the union, simply as a condition of employment.

Generally speaking, a right-to-work law allows employees to work for a company without having to have anything to do with its affiliated unions.  More than two dozen states have right-to-work laws, including Tennessee, Mississippi and Arkansas.  By way of example, here are a few of Tennessee’s right-to-work statutes.  Tennessee makes it a Class A misdemeanor to violate these statutes.

§ 50-1-201. Denial of employment because of affiliation or nonaffiliation with labor union.

It is unlawful for any person, firm, corporation or association of any kind to deny or attempt to deny employment to any person by reason of such person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind. (Enacted 1947.)

§ 50-1-202. Contracting for exclusion from employment because of affiliation or nonaffiliation with labor union.

It is unlawful for any person, firm, corporation or association of any kind to enter into any contract, combination or agreement, written or oral, providing for exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind. (Enacted 1947.)

§ 50-1-203. Exclusion from employment for payment of or failure to pay union dues.

It is unlawful for any person, firm, corporation or association of any kind to exclude from employment any person by reason of such person’s payment of or failure to pay dues, fees, assessments, or other charges to any labor union or employee organization of any kind. (Enacted 1947.)

In other words, in Tennessee, it is unlawful for an employer to not employ you because you are not affiliated with a union.  They also cannot require you to pay union fees as a condition of employment (agency shop).

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FCC proposal may herald end of JSAs as we know them

According to at least one outlet, the current FCC Chairman is going to propose a ban on Joint Service Agreements (“JSA”) and Shared Service Agreements (“SSA”), unless they serve a public interest.  Current JSA and SSA agreements will be given a two-year sunset, under the proposal.

TVNEWSCHECK has the full story here:

The FCC order, assuming it’s approved March 31, will adopt “a rebuttable presumption that the costs of joint negotiation by non-Top 4 station combinations in the same market outweigh the benefits, and that joint negotiation among these combinations constitutes a failure to negotiate in good faith,” the FCC said in a background paper.

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