Ernie The Attorney

Fired for blogging - what's the legal angle?

There's been much discussion for the past few years about the dangers of blogging, especially the dangers of getting fired for blogging. As more lawyers became familiar with blogging, we've started to see discussions—and lately even some lengthy seminars—about the legal issues related to blogging by employees. Corporations have been advised by these lawyers, many of whom are not bloggers, to create a manual that specifies what is expected and prohibited with respect to blogging.

CNN apparently had an employee manual that may have addressed blogging, although a producer who was recently fired suggests that the manual was not so clear. And he was apparently not given a copy of the manual. But, admittedly, that's his view. We don't know what CNN's position is.

And that brings me to my point.

CNN is in the business of reporting news, which is to say: distributing information. They fired someone who is highly adept at writing and reporting. This former employee has learned how to distribute information on the Internet. And the story that he's now most interested writing about is his own dismissal. I don't know if his account is accurate, but I know this. It's very well-written and seems entirely plausible. He writes about his shortcomings and his rebellious tendencies, which makes his version seem even more plausible.

CNN, of course, is hamstrung. It can write nothing, and is no doubt being advised not to by its lawyers. If it does manage to write its version of events that story will lack any human resonance. It will be nothing more than a press release. Do you see the irony yet?

Even assuming that CNN's employee policy specifically applies to blogging (and therefore provides legal justification for firing the blogger/producer), it still has to deal with the negative fallout from someone who has inside knowledge of how it operates. Rarely do we get to see the inner-workings of a news show. What news company is going to point the cameras at itself?

But now CNN's actions have resulted in precisely that. Except that they have no control over the story. And they have little meaningful control over the response to the story. I think this may be a case of applying the law to exacerbate a problem, rather than to control (which is often impossible) or diminish the problem. I guess what I'm saying is that maybe the legal angle to this story is a big part of CNN's problem.

And perhaps CNN will find that having an employee handbook (which may have been tweaked after consultation with high-priced lawyers) isn't turning out to be the great weapon that they had hoped it would be. But, just as news companies rarely point the camera at themselves, lawyers rarely advise clients to consider the negative fallout from using the law to solve a big problem. Lawyers, like journalists, have self-interests that sometimes override their supposed allegiance to the people they serve.

Shocking, isn't it?

Provocative blog posts - sometimes they offend.

My friend Brian Privor apparently caught some flak for his post on the state of our local criminal justice system.  He also received a lot of praise for his passionate account; but some people thought he was too provocative.  I had linked to the post, but I took the link down because I got a call from someone who said that some people might view it as 'unprofessional' (because of the use of a metaphor).

Brian and I talked about the situation yesterday, and I told him that this kind of situation is not uncommon.  There are lots of things that I would love to blog about, or things that I would love to write about in a certain way, but I don't.  Why? Because I've become aware that, on the Internet, you have to imagine your audience as being the entire world (because it is).  The judge I used to clerk for was a skilled politician, and when I was clerking for him he offered this advice: "never say anything that you wouldn't want to see on the front page of the Times Picayune."

With a blog you are speaking to a potentially much larger audience than the Times Picayune, and also you have to remember that your post will not disappear after one day (unless you delete it, and even then it's not necessarily going to vanish from the web).  Many people would take my judge's sage advice and conclude that you should avoid all possibility of controversy. Just stick to the safe areas, and dont' say anything that's too provocative.  That's what many people would do.

Of course, that's kind of antithetical to the foundations of this country, since if our early leaders had shied away from giving offense we'd possibly not be an independent nation.  And we'd possibly not have created a document that gives people the right to free speech.  We all like to celebrate democracy and free speech, but we seldom like to acknowledge how messy and complicated democracy is.  Transparency is also hard to manage.  But, in my view it's worth it. 

I liked Brian's original post, and I liked his recent apology/explanation too.  I don't think his original post was unprofessional, but it was critical.  Was it overly critical?  Apparently some reasonable people might disagree.  I can appreciate that, and so can Brian.  Unreasonable people, however, would not just disagree, but would also try to find a way to silence what they regard as offensive commentary.   But, enough about our society's insidious struggle to endure the kind of free speech that our Constitution has enabled; what about the point of Brian's original post? What about the state of the criminal justice system in New Orleans right now?

In the post-Katrina world there are a lot of things that need to be fixed, and it's easy to feel overwhelmed and thereby become numb.  I feel like I've been numb to the problem that Brian describes.  I linked to Brian's post because it stirred me from my torpor, and made me feel like it was something that needed more attention.

I took the link down because I want to try to respect the feelings of those who were offended, even if I disagree that Brian's post was too strong.  Brian has explained it was never his intent to offend anyone.  It's clear --to me at least-- that Brian is passionate about making this city better and that was the dominant motive for his post.

Hey, we all get passionate.  If you were initially offended by Brian's post perhaps it's time to look past the provocative metaphor and consider the significant personal sacrifices he made to come to this city to help us rebuild a critical resource.   Granted, many of us here in New Orleans are making sacrifices.  So let's not get bogged down in criticizing people who are acting with good intentions.  If some of us are impatient it's because we want things to get better faster.

Impatience and brashness are sometimes a good qualities.  A lot of people thought our founding fathers were impatient and brash.  Not so much anymore, though.

Grassroots legal defense for bloggers

The blogosphere has been abuzz with talk about the legal turmoil that Jason Kottke has recently gotten into with Sony.   Jeff Jarvis, well-known in the blogosphere as a voice of insight with respect to the influence of blogs on mainstream media, has called for the creating of a Weblog Legal Defense Fund.  My friend Mike Pusateri has taken what appears to be the first step (although I really don't know because I'm not tuned into the blogosphere as much as usual due to some personal problems I'm dealing with right now) in getting the WLDF going.  Once my grey clouds of personal misfortune scatter, I hope to focus on this very worthwhile idea.  But if you have time and energy now's a good time to check into this project and see if it appeals to you.

Taking a photo in a public place?

First, if you are going to use a tripod, the authorities would like to see your papers. Unless, you have a problem with that. But why would you? It's not like the 'authorities' ever make rules that are overbroad or unfairly limit people's rights.

Update: Reader Keith Ganey emailed to tell me about a more egregious example from his home town, Seattle. The Police and Homeland Security (thank god they're willing to surveil the parks for suspicious photography) descended upon a man taking pictures in a park - after he had already obtained permission from the proper authorities.

Our Noble Press

Glenn Reynolds has a great post about when it's appropriate for the press to claim it doesn't have to disclose information used in a story. Here's the money quote:

what's revealing -- and troubling -- is that these media organizations think that they're exempt from the obligations faced by ordinary citizens. And, in fact, I think that rather than the First Amendment, another provision from the U.S. Constitution is relevant here: 'No Title of Nobility shall be granted by the United States.'

Yep.

Sex, Blogs, Politics & the First Amendment

By now many people should know about the Senate intern/aide who anonymously blogged under the name 'The Washintonienne' about her personal life, including some salacious sexual trysts. She was fired. Apparently, many people are wondering if this a First Amendment problem. The answer is "probably not" for the reasons set out by UCLA law professor and constitutional scholar Eugene Volokh.

If you haven't kept up on this scandal then read Wonkette's interview with the woman. I think the Washintonienne site is down, and I wouldn't be surprised if it gets pulled permanently.

The Press' motto is KISS - 'keep it simplistic & stupid'

In a world where just about everyone can get sued for professional malpractice, it's nice to know that the press is immune from making mistakes demonstrating collosal incompetence. What sort of incompetence am I talking about? Well, read this post by Bill Dyer about the Houston Chronicle's discussion of the U.S. 5th Circuit's supposed attempt to take up an abortion case.

And if you want to read my rant about the press, click the link below.

The press loves to fan the flames of fury about abortion, and so it has little incentive to give the average person real information about the legal landscape of the abortion issue. For example, whenever a conservative lawyer is contemplated for the 5th Circuit (or any other federal Circuit Court), the press makes a big deal about that person's likely stance on the abortion issue. This gives a distorted view, which the average non-lawyer (and frankly, even some lawyers) fails to grasp --namely, that the federal appellate courts do not decide very many abortion issues. And in the few cases that come up there is no guarantee that a particular judge of the court will hear that case (because of panel allotments).

So any real analysis about a judicial nominee's qualifications are inevitably lost in a simplistic, grade-school level discussion about one hot-button social issue. It's like saying: let's pick someone to be on a medical panel that is charged with dealing with major infectious disease issues, but let's only concentrate on their views on one type of infectious disease (say, AIDS) and then make all of our analysis contingent on the person's political views regarding that one disease.

The bottom line is that the press can't deal with a story that has any level of complexity that takes it beyond a cartoon plot line. The TV stations and newspapers are the worst of the lot, but news magazines like Newsweek and Time aren't much better. They spend too much money on being 'cute' and having catchy pictures and punchy headlines, as opposed to plain old sober analysis. Ever since I started subscribing to the Economist I've become more frustrated with poor reporting. I'm not saying that the problem is confined to reporting in the U.S. (it isn't), but at least with the Economist I get the sense that many of the problems out there are 'world problems.' Our news coverage in the U.S. mostly reaffirms our sense that the only news that is worth hearing about is the stuff that directly affects Americans.

But hey, I don't have my finger on the pulse of America. Maybe that's what we, as a whole, want. As for me, I spent four years living in a foreign country when I was in high school and I became keenly aware that the United States, while definitely the best country in which to live and grow up, is filled with people who have no conception of how the rest of the world thinks. For example, most people in Europe have to constantly encounter people from other close-by countries who have different political systems or who speak different languages. They become attuned to the idea that there are many types of government, and many political viewpoints. In the United States, we think we are being open-minded if we consider the views of both democrats and republicans.

Everything is so neatly polarized for us in the United States. It's like we are living in a Disney movie where all of the characters are either purely good or purely evil. And the press loves this sort of simple life. It makes everything so nice and easy. Anybody who relies on the mainstream press for their complete view of the news is making a big mistake (See this for yet more examples of incompetence) . You might as well let Colonel Sanders babysit your chickens while you're at it.

Gregg Easterbrook is gone from ESPN, and so are his words

Prior to his summary dismissal, Gregg Easterbrook wrote a column for ESPN entitled "TMQ" which stood for "Tuesday Morning Quarterback." Well, for those of you just now learning about some guy named Easterbrook who wrote a TMQ column for ESPN, and who want to read a few of those old columns to see what those columns were like, I have some bad news: they are gone. ESPN/Disney decided that Easterbrook's recent blog comments were so odious that not only did he deserve to be fired, but also that all of his posts at ESPN's website should be permanently expunged. Even though those prior TMQ articles were in no way offensive.

So they are now gone. Out of here. Hasta la vista, baby.

Boo yeah!

Well, you might say to yourself, so what? Easterbrook has copies of what he wrote; if he wants the world to see those old articles let him publish them himself. On his own weblog. The one that he used to publish the ill-advised comments that got him in trouble to begin with. Yeah, that's right. Let him do that and see if anyone cares to read his stuff.

Only one problem with that, though. Disney, er, ESPN owns the rights to those words that he wrote because he wrote them for them as part of his job. That is, ESPN/Disney owns the "copyright" to those works, and they can not only yank them from their site, but also prevent anyone else, including the author, from publishing those words on any website. Boo yeah!

So we'll not be reading Gregg Easterbrook's TMQ column, even the old ones, anytime soon. Unless ESPN/Disney somehow decides to either publish the columns or to let Easterbrook publish them, which seems highly unlikely. And God forbid that Easterbrook decides to publish new stuff under the name "Tuesday Morning Quarterback" at his website. I'll betcha ESPN has a trademark right to that name. Boo yeah!

So basically ESPN/Disney is saying: Take that Easterbrook! We own you bro! You and your words. So go sit in your corner of the web while we erase all evidence of what you wrote because we are the Content Kings and our job is "controlling content." We harvest content from people that we employ and then we use it as we see fit. If we don't want to make money off of your content because we deem you to be a person unworthy of future employment at ESPN then we aren't going to allow you to exploit your own works either. How long can we keep your works out of circulation? Oh, about 95 years or so.

Man, it's good to be a Content King.

Anybody want to tell ESPN what they think about their decision? Assuming, of course, that you disagree with their decision, and that you have the temerity to voice it to them directly.

Update: Apparently Easterbrook is planning to return. That's good news.

Gregg Easterbrook fired by ESPN - which raises the question: are weblogs unsafe?

For the few people who don't know, Gregg Easterbrook (brother of well-known and well-respected federal judge Frank Easterbrook) was fired by ESPN for the supposedly anti-semitic remarks he made on his New Republic blog. Easterbrook was lamenting the gratuitous violence exhibited by Quentin Tarantino in his recent movie: Kill Bill. Easterbrook took issue with Tarantino's supposed skill as a script writer and movie director, saying that the relentless display of graphic violence is the only skill that Tarantino possesses. He then questioned why Disney, which owns ESPN, would back a violent movie like this, especially since Michael Eisner is Jewish. The implication of Easterbrook's post was that a Jewish person might be less likely to want to glorify gratuitous violence. Why would Eisner and studio executives at Miramax want to give his backing to a violent Tarantino film? It's so obvious that it doesn't merit discussion.

Anyway, most of you already know what Easterbrook said. If you don't then go read Bill Dyer's post which has all of the important links relevant to this story. Incidentally, I agree with Bill Dyer. But I'll add this: Easterbrook is being fired for speaking his mind. He admits that he should have made his point about violence in Hollywood films (which was clearly not anti-semitic) more explicitly. He screwed up, and he apologized for not making his point clearer.

I always find it interesting when a large media congolmorate, which never fails to make full and extensive use of its First Amendment rights (e.g. to make grotesquely violent movies with little artistic merit), fires an employee for exercising their 1st Amendment rights. Rush Limbaugh made some goofy off-the-wall comments recently and had 3 days to pack his bags, and then he resigned. Easterbrook clumsily discussed the connection between profits and violence in movie-making and was gone like a puff of smoke. Gone as in fired, not resigned. And Easterbrook didn't even make his comments in his ESPN column; he made them in his own private space.

Coincidentally, I have been reading William Goldman's book Which Lie Did I Tell? which, while mostly about the craft of script writing, is also an excellent --and depressing-- description of the movie industry. I wonder what William Goldman --whom I have to believe would agree with the claim that Tarantino's skill is completely false-- would think of this flap? He certainly doesn't think highly of most Hollywood moviemakers.

Frankly, I don't either. But the Hollywood elite have a lot of power and it doesn't matter much what I --or even William Goldman-- think. Their power, and arrogance, will reign on. Jim Croce, whom Bill Dyer aptly quoted, said it best: "You don't tug on Superman's cape..."

Lastly, there is another lesson here that I hate to mention. Blogs are dangerous. I didn't used to think that, but now I'm not sure. After all, if professional writers are getting in trouble for what they say on their weblogs, then what are the implications for amatuers?

Are you a young professional, excited that your blog gives you the freedom to speak out to a large audience? Well consider what a smaller and more powerful audience (i.e. your employer) might think about what you say, and how well you say it. And of course remember that while you blogging your innermost thoughts you are also creating the world's most accessible databank of "stuff that can be used against you later." By whom? By your opponent in an election; and --of course-- by the press who will gladly publish anything sensational that your opponent happens to pass on to them. Your weblog will save your opponents so much time when they start doing their "negative research" that they will be giddy with joy.

I don't plan on seeking a federal judgeship or running for political office, but if I thought I might then I wouldn't blog. In fact, I'm not sure it is such a good idea even though I don't plan to do those things. I've seen how words get twisted and used against people. Hell, even E-mail is dangerous. Weblogs? I don't know anymore. Maybe they are --to use Ralph Nader's term-- "unsafe at any speed."

Update: Micky Kaus discusses the Easterbrook matter and the case against editors. And TalkLeft has a worthwhile post with some nice comments.

More Update Easterbrook is going to return. Good news!

FCC list of "Seven Dirty Words" now down to Six

George Carlin got in trouble back in the 1970s for saying the seven dirty words. But now LawMeme reports that the FCC has allowed U2's Bono to say ****, which is word #3 on Carlin's list. I find it hard to believe that #7 is still taboo.