Showing posts with label CBS. Show all posts
Showing posts with label CBS. Show all posts

Tuesday, April 18, 2023

Dominion v. Fox News evidences 'actual malice,' also shows how standard has fueled misinformation

(UPDATE, April 18, at 5:17 p.m.: NBC News reported a half hour ago that Dominion and Fox News reached a $787.5m settlement.)

CBS Sunday Morning did a nice piece this week on Dominion v. Fox News and the long heralded, but ever more evidently problematic, "actual malice" standard.

The piece explains the N.Y. Times v. Sullivan (U.S. 1964) "actual malice" standard in public-figure-plaintiff defamation cases such as Dominion, and how the standard is exceptionally provable upon the extraordinary evidence Dominion uncovered about Fox personalities' duplicity in knowingly professing misinformation.


Many a media pundit has made the observation on the seeming provability of actual malice in the case. CBS's voice for the point is that of Lee Levine, a highly regarded, now retired attorney who represented mass media companies in famous cases before the federal courts. In the Sunday segment, Levine says something along the lines of rarely if ever having seen an actual malice case he could believe in before now.

With Stephen Wermiel, Levine wrote a book, Progeny, about the "fight to preserve the legacy of ... Sullivan."  It's a good book on its merits. At the same time, its rhetoric and thesis well serve to bolster the social and economic power of the mass media business establishment.

As on CBS, Levine and lawyers like him often are held up as standard bearers for the First Amendment. But the corporations they represent are hardly freedom fighters in the romantic tradition of the lone pamphleteer.

I've long opposed Sullivan as a matter of constitutional fidelity or First Amendment imperative. It takes ill account of competing values, such as the right of personal reputation that has caused other western-democratic jurisdictions, such as Canada and Europe, to reject the standard as too stringent. As internet democratization has made it easier for ordinary people to be devastated by reputational harm, Sullivan has become ever more indefensible.

Dominion ought not be regarded as the rare exception that proves the rule. The plaintiff-company is able to make its case only because, to date, it has been sufficiently determined and well resourced to get over the many hurdles, such as anti-SLAPP statutes, that usually shield mass media from accountability. Most defamation plaintiffs, if they sue at all, see their cases dismissed without the benefit of discovery.

Dominion ought instead be taken as evidence in the mounting case that Sullivan has been a powerful cause of our misinformation crisis.

Saturday, August 13, 2022

NBC resists TV free market, overcharges U.S. viewers: PL football costs $20 in Canada, $70 in United States

Each year, I become freshly enraged at the cost of seeing Premier League football in the United States, a ready example of antitrust non-enforcement in the communication sector.

The Sporting News had the audacity, or stupidity?, to describe NBC carriage of PL matches in the United States as a "luxury." I guess it is, a luxury only the rich can afford. To follow one's team, one must, at minimum, subscribe to NBC partner FuboTV for $70 per month. Access via FuboTV costs just US$20 per month in Canada.

The tangled cross-ownerships of what used to be broadcast TV are indicative of the dearth of consumer protection in the area. NBC "competitor" CBS (Viacom) owns a stake in FuboTV. The legacy broadcasters are using their weight in contracting power to lock down content in channel consolidators that emulate the old cable TV business model, by which consumers were compelled to overpay for a sliver of content in a library they didn't want. Hardly the free market promise of streaming.

But the FCC long ago left the helm unmanned on consumer protection when broadcasting gave way to cable. And the FTC and DOJ have had little interest in expanding their purview in times of corporate-captured governance. As usual, the United States purports to model free market capitalism in an oligopolized market that is anything but.

FuboTV in Canada at left, United States at right.
The package in Canada has fewer channels,
but if PL is all you want, that's not an option.

Sunday, February 27, 2022

War forces news underground; Poles rally for refugees

Broadcast news continues from an underground parking garage, where Ukrainians take refuge from Russian attack, Western media have reported widely.

A worship leader at my church today highlighted a line from the Newsboys' "He Reigns" (2003):

It's all God's children singin'
"Glory, glory, hallelujah"
"He reigns, he reigns"

Let it rise above the four winds
Caught up in the heavenly sound
Let praises echo from the towers of cathedrals
To the faithful gathered underground

I cited the other day a link to fundraising for The Kyiv IndependentGQ two days ago wrote about other ways to give.  "Send Relief" is a Christian mission organization with a Ukraine crisis fund.

For anyone wanting a primer on Ukraine-Russian history, the multi-talented Mo Rocca published a superb piece this morning on CBS Sunday Morning, informed by an interview with Anne Applebaum, whose November Atlantic cover story has proven to be the gold standard of prescience in the present crisis.

Flight from Ukraine is creating a refugee crisis in Poland.  Men age 18-60 are not permitted to leave Ukraine, so families are separating with the hope of sparing children from the war.  With their usual quiet relentlessness, Poles are stepping up in big numbers. My friends there report taking in families. Poland will need our support, too.

Calling for prayer, my pastor this week quoted Jesus in John 16:33: "I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world."

Wednesday, September 15, 2021

Court affirms widow's $21m verdict vs. Big Tobacco, upholds punitive damages despite '98 settlement

Marlboro Red Open Box by Sarah Johnson (CC BY 2.0)
The Massachusetts Supreme Judicial Court today affirmed a $21m verdict against Philip Morris USA in favor of the widow of a smoker who died of lung cancer in 2016.

Fred R. Laramie started smoking in 1970, at age 13, when a store clerk gave him a free sample pack of Marlboros, the Supreme Judicial Court (SJC) recounted.  He became a pack-a-day smoker and remained loyal to the brand, unable to quit despite trying, until his diagnosis and death in 2016.

Laramie's wife, Pamela, sued under the Massachusetts wrongful death statute.  She alleged that Marlboros were dangerously defective for their engineered addictive properties, an excess of the risk of smoking known to consumers and indicated on cigarette labels since 1969.  The jury in the Superior Court awarded Pamela Laramie $11m in compensatory damages and $10m in punitive damages.

The bulk of the high court's 37-page, unanimous opinion analyzes the inventive defense argument that the large punitive award is precluded by the 1998 Master Settlement Agreement (MSA) of state claims against Big Tobacco.  As the court recalled in a footnote:

The [Big Tobacco] defendants agreed to pay approximately $240 billion to the settling States over twenty-five years, and to pay approximately $9 billion per year thereafter in perpetuity, subject to various adjustments. The agreement allocated approximately four percent of those payments to the Commonwealth. The defendants also agreed to restrict cigarette advertising and lobbying efforts, to permit public access to certain internal documents, and to fund youth education programs.

Punitive damages are not awarded in Massachusetts common law; they must be authorized by statute.  The wrongful death statute authorizes punitive damages when the defendant caused injury "by ... malicious, willful, wanton or reckless conduct ... or by ... gross negligence."

The plaintiff successfully relied on internal documents of Big Tobacco that demonstrate the artificial manipulation of the nicotine content in cigarettes.  In the 1990s, the revelation of such records marked the plaintiff breakthrough that precipitated the collapse of Big Tobacco's long-successful wall of defenses in product liability litigation.  The revelation represented, more or less, the information at issue in the case of whistleblower-scientist Jeffrey Wigand, reported in 1996 by Vanity Fair and 60 Minutes and subject of the 1999 feature film, The Insider.

The SJC rejected the defense argument of claim preclusion.  The court recognized a qualitative difference between the claims of the Attorney General that resulted in the MSA and the claim of Laramie that persuaded a jury.

The "wrong" the plaintiff sought to remedy was the loss she and her daughter sustained due to Laramie's death, caused by Philip Morris's malicious, willful, wanton, reckless, or grossly negligent conduct, see [wrongful death statute,] G. L. c. 229, § 2. The "wrong" the Attorney General sought to remedy, by contrast, was the Commonwealth's increased medical expenditures caused by Philip Morris's commission of unfair or deceptive acts or practices in violation of [consumer protection law,] G. L. c. 93A, § 2.

Product liability, like punitive damages, is not a function of common law in Massachusetts, at least formally.  The commonwealth imposes strict product liability through a wide-ranging consumer protection statute, "chapter 93A."  Product liability is effectuated formally as a warranty obligation by eliminating the requirement of contractual privity between plaintiff and defendant.  But from that point, functionally, the courts breathe life into the system with multistate common law norms.

Probably Philip Morris's best argument for claim preclusion arose in the theory that chapter 93A affords treble damages, which were incorporated, in theory, into the MSA, and therefore overlaps with chapter 229 in wrongful death.  But the court distinguished the two statutes.  While both afford punitive recovery, the tests and purposes differ.  Damages under 93A were predicated on commercial practices that caused injury to state interests, while 229 damages, which are not capped, arise from culpability in inflicting personal injury on a decedent in a wrongful death action, here, Fred Laramie.

The court rejected a range of other asserted errors, whether because not error or harmless error, in relation to evidentiary admissions, jury instructions, and closing arguments.  Philip Morris had prevailed in the trial court on plaintiff claims of negligence and civil conspiracy.

With regard to jury instructions, the SJC distinguished product liability in warning defect, which was not plaintiff's theory of liability, from the design defect the plaintiff did claim.  The jury was properly instructed, the court held, that 

congressionally mandated warnings were adequate as a matter of law to warn Mr. Laramie and other members of the public of the hazards associated with smoking. The law, however, does not permit a cigarette manufacturer through its statements or actions to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.

Philip Morris complained that the jury was thereby misled to test for liability in misrepresentation or warning defect.  The excerpted bit strikes me, too, as problematic.  Nevertheless, the SJC wrote that the jury was correctly instructed on the elements, so the instructions were "clear" when "viewed as a whole."

Interesting for torts pedagogy in product liability is the court's recitation of defense theories that were rejected at trial.

In its defense, Philip Morris introduced evidence that there was no adequate, safer alternative design for Marlboro cigarettes. An expert for Philip Morris testified that all cigarettes are dangerous, and that any proposed alternative design was not safer, not acceptable to consumers, or not technologically feasible. Philip Morris maintained that Marlboro cigarettes were not unreasonably dangerous to Laramie because Laramie understood the risks of smoking.

Reports linking smoking to cancer had been published in the 1950s and 1960s, and people had recognized that tobacco was addictive "going back almost [one hundred] years."  Moreover, there was testimony that every pack of Marlboro cigarettes sold between 1970 and 1984 contained a warning label from the Surgeon General that "cigarette smoking is dangerous to your health," and that every pack sold thereafter contained one of four warning labels that are still in use. Cigarette advertisements also were banned from television and radio beginning in January 1971, when Laramie was thirteen or fourteen years old. In addition, since January 1972, every print advertisement for cigarettes has been required to include a warning label similar to those on cigarette packs.

In sum, based on this evidence, Philip Morris argued that Laramie caused his own death because, despite being adequately informed of the health risks of smoking, Laramie chose to smoke, and then chose not to quit smoking.

(Paragraph breaks added.)  The plaintiff overcame the no-alternative-design defense by hypothesizing that Fred Laramie might not have become addicted to a low-nicotine cigarette.  Defense theories in assumption of risk, personal choice, and sufficiency of warning all fell short against the showing of nicotine manipulation.

The case is Laramie v. Philip Morris USA, Inc., No. SJC-13070 (Mass. Sept. 15, 2021) (oral argument at Suffolk Law).  Justice Dalila Argaez Wendlandt authored the opinion for the unanimous panel of six justices.  Disclosure: As an attorney in private practice, I worked on the Philip Morris defense team on tobacco litigation in the 1990s.

Sunday, January 10, 2021

What goes around comes around: U.S. election cycle, Capitol riot draw 'banana republic' gibes

Seth Doane has an excellent piece out today (Facebook, YouTube, and embed below) on foreign perspectives on the Capitol riot, insurrection, whatever: rebellion to be named later.  The story mentions the Kenyan headline, "Who's the banana republic now?"  I wish only to add that it's not the first time for such cheekiness, recalling Colombia's Publimetro cover from November 6 (Guardian).  I've no doubt that there are plenty of "s***hole" gibes going on in Africa, too.

Publimetro, Nov. 6, 2020, via Pressreader (Colombia); Nation, Jan. 8, 2021, via Internet Archive (Kenya).



 

"What They See," CBS Sunday Morning, Jan. 10, 2021, via YouTube.

Friday, May 29, 2020

Law prof joins 'Taps Across America,' honors Texas soldier, attorney, Justice Floyd A. Shumpert

My longtime colleague, mentor, and friend, Professor J. Thomas Sullivan, joined Monday's "Taps Across America" remembrance (Facebook), organized by CBS News correspondent Steve Hartman.



Justice Shumpert
Emphatically, if unnecessarily to my ear, asserting his amateur proficiency, Professor Sullivan played especially to honor his father-in-law, Floyd Allen Shumpert.  In 2008, Professor Sullivan dedicated a law review article to Justice Shumpert, writing:
This article honors my father-in-law, Floyd A. Shumpert of Terrell, Texas, who served as an Associate Justice on the Texas Court of Appeals for the Fifth Judicial District from his appointment in 1983 until his defeat in the 1984 general election. Judge Shumpert began his career in public service following his return to Kaufman County, Texas, after World War II. During the War, he served in the 8th Infantry Division, 28th Infantry Regiment, 2nd Battalion of the United States Army. He suffered a severe injury requiring amputation of his lower leg when he stepped on a land mine in the Huirtgen Forest in Germany only a few days before commencement of the German counter-offensive known today as the Battle of the Bulge. He was awarded the Silver Star and Purple Heart. Upon his return from Europe, he was elected County Clerk and later, after earning his law degree from Baylor University, County Judge. He left the bench for private practice for over fifty years in Kaufman County, interrupted only by his appointment to the court of appeals. He is the most courageous and the kindest man I have ever known.
J. Thomas Sullivan, Danforth, Retroactivity, and Federalism, 61 Okla. L. Rev. 425, 425 n.* (2008) (direct download).  The video is © 2020 J. Thomas Sullivan, used here with permission.

Tuesday, November 5, 2019

Oberlin case leaves no doubt, 'racist' accusation is capable of defamatory meaning; Koppel reports

An Ohio jury in June awarded $44m to a family-owned bakery that proved defamation by Oberlin College in a case of false accusations of racism by Oberlin students, supported by the college.  Now CBS Sunday Morning has excellent coverage from Ted Koppel.  How ever did Oberlin, a respected four-year institution of higher education committed to the liberal arts, jump on board with racism accusations without first checking the facts?  Unthinkable.


False accusations of racism or misogyny today are no less capable of defamatory meaning than accusations of child molestation or other crimes that shock the conscience.  There can no longer be any serious contention that such charges are immune from defamation liability because they are fair comment or because they do not necessarily expose a victim to hate, contempt, or ridicule in the community.

Forbes reported: "The jury initially assessed $11 million in compensatory damages and $33 million in punitive damages against Oberlin, for a total of $44 million, but the judge cut back the amount to $25 million because Ohio law has caps on damages. The judge then tacked on $6.5 million in attorney’s fees bringing the verdict back up to $31 million."

The case is Gibson Bros., Inc. v. Oberlin College, No. 17CV193761 (Ct. Common Pleas Lorain County, Ohio, Sept. 18. 2019).  The Ohio trial court publishes only the docket online.  Oberlin appealed (filed Oct. 8, 2019), and the Gibsons cross-appealed (filed Oct. 18, 2019).  CNN has the initial complaint (filed Nov. 17, 2017).

Saturday, September 23, 2017

Can ‘Star Trek’ put the U back in –topia?



This weekend will see the premiere of the newest entrant in the Star Trek franchise, CBS’s Star Trek: Discovery (trailer).  Notwithstanding CBS’s dubious bid to build a new model for content delivery in CBS All Access—creative initiatives crushed by commercial imperatives is a tradition in Star Trek history—Discovery marks a worthwhile moment to take stock of where we are now as a global village, 51 years after the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original Series.

Roddenberry’s vision was a utopian one.  It seems almost clich√© now to recount the novel “enterprise” of a multi-national crew spreading humanist idealism throughout the galaxy.  Despite its military trappings, Star Fleet was tasked with exploration of the final frontier on behalf of a United Federation of Planets (UFP).  Star Trek represented all the good parts of cultural imperialism and mitigated all the bad with deep, moral self-reflection.

Martin-Green
(CC 2.0 Gage Skidmore 2016 via flickr)

It looks like Discovery will resonate in the Roddenberry tradition.  The series, which might vary perspective and setting across seasonal sub-arcs, opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female captain of color in Michelle Yeoh (Crouching Tiger’s Yu).  Discovery takes place after humankind’s first forays into deep space, which were depicted a decade ago by Star Trek: Enterprise, but still before the adventures of James T. Kirk and crew in the 1960s Original Series and the current movie-reboot series.  The nascent UFP is in a cold war with the Klingon Empire.  This fictional era and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train to the stars.” 

But can that vision get traction in today’s world?

However much our multi-platform electronic environment has served up an embarrassing surfeit of science fiction, we remain awash in dystopian imaginings.  Disclaimer one, yes, I realize that dystopian fiction is not new; even 1984 dates to 1949.  Disclaimer two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The Handmaid’s Tale, having just finished the latter’s s1 yesterday.  (Nick is going to save her, right? right?!)  Yet many a commentator has observed the peculiar resonance of dystopian fiction today, in a world in which hunger and poverty persist, the wealth gap widens, and our standard of living and expectation of leisure seem after all not to have skyrocketed in consonance with technological ingenuity.

There was a time after the Berlin Wall fell, in the 1990s amid perestroika and glasnost, that it seemed like we might be on an upward trajectory.  The turn of the century brought with it a cautious optimism.  Maybe the era of world war and nuclear nightmare could be put to bed, and humankind would rise from those ashes and turn at last to the business of life on, and beyond, earth.

Then 9-11 happened.  The world went back to war, and we’re still in it.  Our American streets fill with protests fueled by racial division.  An unprecedented humanitarian crisis tears at the seams of European socio-economic union.  The septuagenarian United Nations—real-world analog of the thinly veiled UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere.  And oh yeah, the ice caps: they’re melting.

Inevitable dystopia seems the apt model to envision our future on earth.  Wherefore art thou, Discovery, into our world of social and political fracture?  Can we even recognize ourselves in utopian science fiction?

It bears remembering that the world to which Roddenberry first introduced Star Trek was itself no utopia.  The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black on the ‘right’ side” racism of Let That Be Your Last Battlefield, the futile primitive conflict of A Private Little War.  But that commentary was sophisticated and controversial in its time.  Star Trek’s very proffer of earthbound east and west in common pursuit of human survival and space exploration was a calculated critique of Jim Crow, the space race, Vietnam, and the Cold War.  Star Trek’s utopian vision was launched amid the civil rights fire that forged our second national reconstruction.

So maybe now is exactly the time for Star Trek.  Maybe we need utopia now more than ever, precisely because it is so unfamiliar.

As Star Trek turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500.  More’s Utopia was a social critique, not a social blueprint.  Critique always has been the raison d’√™tre of science fiction.  There is no utility in only imagining the future.  The endgame is to hold up that parallel world next to your own, to see how the two compare.

For Star Trek, the final frontier is not space.  The final frontier—the discovery—always has been us.

Monday, September 26, 2016

The NFL and the Dramatic Arts


Last week, in The Death of Civil Justice, I mentioned Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979), in which U.S. District Judge Matsch wrestled with the Tenth Circuit over the role of the courts in oversight of on-field sport misconduct (think cousin problem, Deflate-gate).  Hackbart involved a strike on the body of Dale Hackbart (later an advocate for male breast cancer awareness) by opponent Charles "Boobie" Clark (since deceased) in a Bengals-Broncos clash in the early 1970s.  Judge Matsch would have left the matter within regulation by the sport, but the Tenth Circuit thought that the common law of recklessness afforded a backstop in tort to ensure that the rules of civilized society do follow the players onto the field in some fashion, as an Illinois appellate court once put it.

Well just this weekend a similar, yet curiously different, after-the-whistle scenario unfolded in an American football game between Florida Gators (I know you were watching, Prof. Andrew McClurg)
wide receiver Brandon Powell and Tennessee Vols defensive back Rashaan Gaulden.  Sideline cameras were not on them at the time, but aerial footage shows what appears to be Powell throwing a punch at Gaulden and (intentionally?) not connecting, and Gaulden hitting the ground (show?).  The refs took the incident seriously enough that after much deliberation, they ejected Powell. 

CBS commentators were initially harsh on Powell, angry and forlorn as he walked to the locker room just before a commercial break.  But after the break, they had changed their tune and apologized to him, turning their venom on the refs.  One commentator took the opportunity to impugn soccer (really necessary?) with reference to Gaulden's dramatic performance, and another invoked Greg Louganis in an awkward metaphor for "taking a dive."  The commentary itself makes the clip worth watching, and at least at the time of this writing, it's available here: "Flop of the Year."

The case is easier than Hackbart's, as he suffered debilitating injury that contributed to the end of his athletic career.  The problem in Hackbart was one of consent: What exactly does an NFL player consent to?  It can't be that the consent analysis requires a player to consent to the precise nature of collision that might occur in every play.  But it can't be either that a player does not consent to a scope of possible violence, going even beyond the rules of the game but within the contemplation of penalty assessment.  Consent must be to some hard-to-define cloud of possible eventualities, not too specific, not too broad, and none too pleasant.

Consent could come in to play in arguable assault--causing apprehension in another without resulting contact--just as well as battery.  But assault, if even that was Gaulden's intent, does not seem so urgently to invite the courts to second-guess governance within the sport, as a policy matter.

Anyway that's just a thought experiment, as no one is suing anyone.  Players are at least that tough.  And concussion-gate notwithstanding, football self-regulation has come a long way since Billy "The Gun" Van Goff.