The "I (Heart) Boobies!" Bracelets Controversy Goes to Court: Why the Students Are Right and the Schools Are Wrong
FindLaw columnist, attorney, and author Julie Hilden comments on a controversy that has recently divided students, parents, and administrators in public schools in a number of states -- and that, in at least one state, has led to an ACLU lawsuit: Students are wearing bracelets, purchased from a public-interest foundation, that bear the message "I (Heart) Boobies!" The foundation is selling the bracelets to convey the point that although many people believe that breast cancer is a disease afflicting only women over 40, it is also the largest cause of cancer deaths in women under 40-- and can even affect young girls. Wearing the bracelets has become a popular trend among teens, but some school administrators have banned them, on the grounds that they are vulgar, lewd, and/or disruptive. Hilden argues that such bans should be held to violate the First Amendment -- but she also notes that some prior Supreme Court precedent may support the schools' decisions.
Monday, December 20, 2010
Can a High-School Cheerleader Be Required to Cheer For a Player She Says Assaulted Her? The U.S. Court of Appeals for the Fifth Circuit Says Yes
FindLaw columnist, attorney, and author Julie Hilden comments on a decision issued by a three-judge panel of the Fifth Circuit this Fall, rejecting a cheerleader's contention that she should have been allowed to stay silent rather than be required to cheer for a basketball player who she claims assaulted her. (She cheered for the team, but not for this player individually.) Hilden describes several Supreme Court cases regarding the right not to speak, and contends that the three-judge panel ought to have taken these precedents into account. Hilden also expresses doubt as to whether -- prior to fact discovery -- the panel correctly decided that the cheerleader's silence created "substantial interference with the work of the school," as it held that Supreme Court precedent required.
Monday, December 20, 2010
Should Juvenile Plaintiffs Who Fear Reprisals Be Able to Keep Their Identities Secret? The Question Divides the U.S. Court of Appeals for the Ninth Circuit
FindLaw columnist, attorney, and author Julie Hilden comments on the controversial issue of whether juvenile plaintiffs should be able to keep their identities hidden, on the ground that they fear retaliation based on the nature of the suits they and their parents have brought. As Hilden explains, this issue arose before the U.S. Court of Appeals for the Ninth Circuit this month -- in a case involving claims that the admissions practices of a unique set of private schools for Native Hawaiians violate race-discrimination laws. The appellate panel decided that the juveniles had to reveal their identities, but two of the Circuit's most respected judges dissented from the denial of a request that that the panel decision be reheard.
Tuesday, November 23, 2010
Litigating the Stolen Valor Act: Do False Claims of Heroism in Battle Harm Genuine Heroes?
FindLaw columnist, attorney, and author Julie Hilden comments on the recent cases involving the Stolen Valor Act (SVA), a federal statute that criminalizes false claims that one has received certain medals from the U.S. government. Hilden explains the state of the current litigation regarding the SVA, and explains why the controversy over the statute -- which is now being litigated in the U.S. Courts of Appeals for the Ninth and Tenth Circuits -- may well make its way to the Supreme Court. Defenders of the SVA say it is necessary in order to keep medals sacred. Opponents say that criminalizing lies alone -- even when they are not intended to secure any concrete benefit, and do not cause any concrete harm -- is dangerous from a First Amendment perspective.
Monday, November 22, 2010
The U.S. Court of Appeals for the Second Circuit Wrongly Holds that Public-School Officials Can Constitutionally Prohibit a Student's Attempt to Clear His Name
FindLaw columnist, attorney, and author Julie Hilden comments on a case before the U.S. Court of Appeals of the Second Circuit regarding a student at an East Hampton public high school. As she explains, a three-judge Second Circuit panel dismissed the case on the ground that it was not clearly unconstitutional, under current case law, for a public school's officials to refuse to allow a student to publicly respond to other students' claims that he is a racist, and to put him on home study because of the risk such claims raise for him. Hilden contends that even if the law on this point was not clear enough to impose liability on individual school officials, as the panel held, the panel still should have clarified for future cases that public-school students have a First Amendment right to reply to claims against them that will otherwise cause them to be barred from school due to a fear of disruption and/or violence.
Thursday, October 21, 2010
The French Criminal-Defamation Conviction of Google and Its CEO: Why It Wouldn't Happen in America
FindLaw columnist, attorney, and author Julie Hilden comments on the controversial French criminal-defamation action and damages award against Google and its CEO Eric Schmidt. As Hilden explains, the plaintiff in the action -- known as "Mr. X" -- argues that Google Suggest libelled him by suggesting that Google users who typed in his name complete their searches with words such as "rapist" that other users who searched on Mr. X had frequently used. Mr. X has been acquitted of rape, and convicted of corruption of a minor, but he is appealing his conviction. Hilden explains why, under United States libel law, which is heavily influenced by the First Amendment, Mr. X's libel case would have little to no chance of succeeding. She also comments on another U.S.-law protection Google could invoke, had this case been brought here: the statutory immunity for sites that host third-party content, but play no part in developing that content.
Tuesday, September 28, 2010
Is Powell's Bookstore a Criminal Pornographer? A Panel of the U.S. Court of Appeals for the Ninth Circuit Rightly Says No
FindLaw columnist, attorney, and author Julie Hilden comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, striking down two Oregon statutes that had criminalized the provision of sexually-explicit material to minors. Hilden argues that, especially since the statutes flouted clear Supreme Court First Amendment precedent, the Ninth Circuit was right to decline Oregon's invitation to the court to rewrite the statutes to put them in compliance with the First Amendment. She also explains why even the highly-respected Portland bookstore Powell's Books became a party in the suit.
Monday, September 27, 2010
Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns
In Part Two in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on how defamation disputes based on Facebook posts might differ from defamation cases based on statements made in print or online media. (Part One in the series addressed a claim of Facebook defamation that was dismissed by a New York state court). Hilden points to Facebook's brief character limits and its individually-identifiable audience members as factors that distinguish it from print and online media for libel-law purposes. She also suggests that Facebook might consider asking users to waive the right to sue for Facebook defamation, in exchange for the right to contact the very same Facebook audience that initially heard an allegedly defamatory statement, and to respond to that same audience with a rebuttal.
Tuesday, August 24, 2010
Defamation on Facebook: Why a New York Court Dismissed a Recent Suit, Part One in a Two-Part Series of Columns
In Part One in a two-part series of columns on defamation and Facebook, FindLaw columnist, attorney, and author Julie Hilden comments on the dismissal, by a New York state-court judge, of a defamation suit that was based on statements posted to a private group on Facebook (that is, a small group to which two member-administrators controlled access, where postings could only be read by group members). Hilden argues that the judge was right in dismissing the suit, but notes that certain aspects of this particular case made it especially easy for the judge to resolve, and that future defendants in Facebook-based defamation suits may not be as lucky.
Tuesday, August 17, 2010
Elena Kagan on the First Amendment: Evidence from Her Confirmation Hearings
FindLaw columnist, attorney, and author Julie Hilden comments on the First-Amendment-related views that Supreme Court nominee Elena Kagan voiced during her confirmation hearings. The topics ranged from cameras in the Court, to campaign-finance restrictions, to libel law, to the possible intersection between antitrust law and the First Amendment. Hilden contends that Kagan's answers, at times, suggested that she is not as pro-First Amendment as might be desirable in a Justice -- and in particular, that Kagan may be underestimating the free-speech influence of the Internet and of the rapid change in the nature of the media business.
Tuesday, July 6, 2010
Will the Internet End -- Or Simply Transform -- Libel Law?
FindLaw columnist, attorney, and author Julie Hilden comments on reports that the number of libel suits filed against media entities is dropping sharply -- and considers possible explanations as to why this is the case. Hilden also argues that libel law realities have long been unfair to defendants, and suggests why, in the age of the Internet, the longstanding law regarding libel may be outmoded in important ways. She argues for the federalization of libel law under uniform standards, and the abolition of local juries that give plaintiffs a home-state advantage. She also describes possible solutions such as a requirement that an allegedly libelous statement must always be conjoined, on the Internet, with a reply from the statement's target.
Monday, June 21, 2010
Can Public Schools Constitutionally Punish Students' Off-Campus Speech? The U.S. Court of Appeals for the Third Circuit Will Decide
FindLaw columnist, attorney, and author Julie Hilden comments on a recent New Jersey Supreme Court libel-law decision. In the decision, the court recognized a conditional privilege against libel claims based on news stories that report on plaintiffs' complaints after the complaints are filed at the courthouse. As Hilden explains, plaintiffs' filed complaints themselves have long enjoyed an absolute privilege from libel suits; the question here was whether news reports about those complaints also enjoy a privilege and if so, if that privilege is conditional or absolute. The New Jersey court held that there is a conditional privilege for such reports if they are "full, fair and accurate"; Hilden argues that a strong case can be made for going further and recognizing an absolute privilege here, especially since application of the "fair" prong may be highly subjective and possibly political.
Wednesday, June 9, 2010
The New Jersey Supreme Court Recognizes a Conditional Privilege to Report on Plaintiffs' Initial Pleadings Without Fear of a Libel Suit
FindLaw columnist, attorney, and author Julie Hilden comments on a recent New Jersey Supreme Court libel-law decision. In the decision, the court recognized a conditional privilege against libel claims based on news stories that report on plaintiffs' complaints after the complaints are filed at the courthouse. As Hilden explains, plaintiffs' filed complaints themselves have long enjoyed an absolute privilege from libel suits; the question here was whether news reports about those complaints also enjoy a privilege and if so, if that privilege is conditional or absolute. The New Jersey court held that there is a conditional privilege for such reports if they are "full, fair and accurate"; Hilden argues that a strong case can be made for going further and recognizing an absolute privilege here, especially since application of the "fair" prong may be highly subjective and possibly political.
Monday, May 24, 2010
The Supreme Court's "Violent" Video Games Case: The California Law Should Be Struck Down, But the Court May Well Uphold It
FindLaw columnist, attorney, and author Julie Hilden discusses a First Amendment case that the Supreme Court recently decided to review. The case concerns a California law that would restrict the sale of "violent" video games to minors, and would mandate the labeling of such games -- despite the fact that the industry already has its own labeling system, which is age-specific and content-specific. Hilden praises the decision in favor of the video-game makers and sellers by the U.S. Court of Appeals for the Ninth Circuit, but predicts that the Supreme Court is likely to rule the other way. She also argues that the implications of a ruling against the video game industry could not be cabined, and would set a precedent even for the banning of books depicting violence.
Monday, May 10, 2010
The Supreme Court Strikes Down a Law Prohibiting the Creation, Sale, or Possession of Videos of Animal Cruelty: The Decision and Justice Alito's Powerful Dissent
FindLaw columnist, attorney, and author Julie Hilden comments on the Supreme Court's recent decision in US v. Stevens striking down the federal law criminalizing the creation, sale or possession of videos of animal cruelty. Hilden argues that Justice Alito's lone dissent was more convincing than the Court's eight-Justice majority opinion. In particular, she focuses on strong parallels between a possible First Amendment exception that would have allowed the law to stand, and prior First Amendment exceptions that the Court has already carved out in other areas.
Monday, April 26, 2010
Constance McMillen and the Prom: A Discrimination Issue, But a Case Decided on First Amendment Grounds
FindLaw columnist, attorney, and author Julie Hilden discusses an interesting aspect of the Constance McMillen prom controversy: Although the case involved discrimination, the ACLU sued on a First Amendment theory. Hilden explains why a Mississippi public school's decision to forbid Constance from bringing her girlfriend to the prom raised First Amendment issues, under Supreme Court doctrine addressing speech mixed with conduct. Hilden also criticizes the judge in Constance's case from declining to grant a preliminary injunction -- even despite his findings that she was likely to win on the law, that she would be injured without such an injunction, and that the injury she would suffer would be greater than the burden the injunction would place on the school board. Hilden faults the judge for being too trusting, and for shifting government obligations onto private parties, by accepting the solution of a private prom, which was not equal-access as the judge had envisioned.
Monday, April 12, 2010
The U.S. Court Of Appeals for the Third Circuit Issues an Encouraging Ruling in a First Amendment Case About Teen "Sexting"
FindLaw columnist, attorney, and author Julie Hilden comments on a recent decision by the U.S. Court of Appeals for the Third Circuit that concerns teens' practice of "sexting" -- sending each other sexy and sometimes nude or partially-nude photos of themselves via cellphone. In the case before the court, a Pennsylvania District Attorney had threatened teens that if they did not take a course taught by the D.A.'s office, then they would be prosecuted for their sexting under anti-child pornography laws. As Hilden explains, the facts of the case were disturbing in several ways -- for instance, all but one of the photos at issue including no nudity at all, and the D.A.'s course encouraged sexist stereotypes and forced students to write essays that they did not believe in. Hilden contends that the court made the right decision in affirming the validity of the First Amendment theories upon which the case proceeded.
Monday, March 29, 2010
The Supreme Court Rejects a First Amendment Challenge to a Federal Statute Limiting the Advice That Attorneys Can Give to Clients Contemplating Bankruptcy
FindLaw columnist, attorney, and author Julie Hilden criticizes the Supreme Court for a recent decision that she argues curtails attorneys' and clients' First Amendment rights. As Hilden explains, the statute at issue bars attorneys from advising clients who anticipate filing for bankruptcy that additional debts they incur in the near future can also be discharged in the bankruptcy proceeding. Hilden argues that the First Amendment forbids such an intrusion into attorney/client privilege -- especially in light of the fact that there are other remedies for "abusive" bankruptcy and questionable pre-bankruptcy debts (which need not be discharged if the bankruptcy judge so chooses). She also notes that, given the recession, many people in financial distress may still want to incur debt for business suits or travel, in order to try to get a job and stave off bankruptcy -- but this statute may prevent attorneys from letting them know they are free to do so.
Wednesday, March 17, 2010
Should the Obscenity Standard for Internet Speech Be National, or Local?
FindLaw columnist, attorney, and author Julie Hilden discusses a recent criminal-law decision by the U.S. Court of Appeals for the Eleventh Circuit that raises the question whether Internet speech that is nationally and internationally available should still be vetted for possible obscenity by local juries applying local community standards. Hilden contends that the community standards of a local jury pool -- in a community that is typically hand-picked by prosecutors for its social conservatism -- should not be employed to determine whether Internet speech is obscene, and thus a crime.
Tuesday, March 2, 2010
A Landlord/Tenant Defamation Case Highlights the Risks of Twitter
FindLaw columnist and attorney Julie Hilden analyzes a case in which a Chicago realty company sued a tenant for comments she had made about the company on Twitter. Hilden explains why the judge in the case may have erred in dismissing it, and notes that the case raised the issue of what types of comments satisfy the libel-law requirement that a "statement" must be made in order for a valid libel claim to be brought. She also contrasts the case with another high-profile recent case based on a tweet -- the suit by a well-known diet doctor against reality star Kim Kardashian. Finally, Hilden considers a possible tactic that the judge might have used to keep the case on the docket, yet also ensure that this "David vs. Goliath" fight was fought more fairly.
Tuesday, February 2, 2010
Libel by Twitter? The Suit Against Kim Kardashian over the "Cookie Diet"
FindLaw columnist, attorney, and author Julie Hilden discusses the recent defamation lawsuit brought by COOKIE DIET® doctor Sanford Siegal and his company against reality-show celebrity Kim Kardashian, based on her calling the diet "unhealthy" on Twitter. Hilden considers whether Kardashian's comments would be categorized, under defamation law, as fact or opinion. She also notes that the necessary brevity of tweets -- that is, statements posted on Twitter -- means that it is difficult to invoke the powerful defense of "opinion based on disclosed fact" to defend a tweet that is alleged to be libelous.
Monday, January 4, 2010
A Federal Appeals Court Wrongly Allows A Public High School to Ban Message T-Shirts
FindLaw columnist, attorney, and author Julie Hilden comments on a First Amendment decision from the U.S. Court of Appeals for the Fifth Circuit. The case concerns a public high school student who was banned from wearing a "John Edwards for President" T-shirt under the school's dress code. Hilden explains why the Fifth Circuit ruled against the student, and argues that the Supreme Court should grant review of the case, as the student has requested. In particular, she contends that the Court should make clear that, despite a recent decision upholding restrictions on student speech, students still have the right to speak peaceably in school on political topics.
Wednesday, December 30, 2009
The Federal Media Shield Bill, Anonymity, and the Definition of a Journalist
FindLaw columnist, attorney, and author Julie Hilden comments on the proposed federal "media shield" bill, now under consideration by the full Senate. Hilden supports the current bill, but argues that it would be a grave mistake to revive the three exceptions that were proposed but rejected in the Senate Judiciary Committee -- which would have restricted the reporter's privilege to employees of media outlets (thus excluding many bloggers), and would have excluded those who write anonymously from invoking the privilege.
Wednesday, December 16, 2009
A Court Dismisses A Claim That Craigslist Facilitates Prostitution
FindLaw columnist, attorney, and author Julie Hilden applauds a decision by a judge on the U.S. District Court for the Northern District of Illinois, dismissing a suit by a local sheriff against the free online classifieds service Craigslist. The sheriff's suit was based on the fact that solicitations for prostitution appeared in Craigslist's then-"erotic services" (now "adult services") section. Hilden explains the federal statutory immunity that formed the basis for the judge's decision, and the reasons why that immunity was created. She also cautions websites that it is possible that, while they cannot be held liable for users' message board content, they may possibly be able to be held liable based on the way they caption the sections that organize user postings.
Monday, December 7, 2009
A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part Two
FindLaw columnist, attorney, and author Julie Hilden continues her two-part series of columns on a criminal appeal from the U.S. Court of Appeals for the Third Circuit. The defendants -- animal rights activists from Stop Huntingdon Animal Cruelty (SHAC)'s New Jersey and Seattle branches, and SHAC itself -- were prosecuted for conspiracy under the Animal Enterprise Protection Act (AEPA). As Hilden explains, the appeal split the panel 2-1, with the dissenting judge expressing serious concern about the First Amendment and due process issues that the application of the AEPA raised. Here, in Part Two of the series, Hilden argues that the dissenting judge was correct, and the defendants' constitutional challenge was meritorious.
Monday, November 23, 2009
A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part One
In a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden covers a criminal appeal from the U.S. Court of Appeals for the Third Circuit. The defendants -- animal rights activists from Stop Huntingdon Animal Cruelty (SHAC)'s New Jersey and Seattle branches -- were prosecuted for conspiracy under the Animal Enterprise Protection Act. As Hilden explains, the appeal split the panel 2-1, with the dissenting judge expressing serious concern about the First Amendment and due process issues that the case raised. Here, in Part One of the series, Hilden describes the evidence against the defendants, the text of the statute, and the basis for the constitutional challenge.
Wednesday, November 11, 2009
Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part Two
FindLaw columnist, attorney, and author Julie Hilden concludes a two-part series of columns on the pending Supreme Court case involving a First Amendment challenge to a federal statute that criminalizes depictions of illegal animal cruelty, such as occurs in "crush videos." In this column, Hilden explains why the statute's "serious value" exception could be seen as viewpoint discrimination. She also considers whether it might have been wiser for the statute’s drafters to draw from the law and precedent regarding the prohibition of child pornography -- rather than from the law and precedent regarding obscenity, which itself stands on shaky ground.
Monday, October 27, 2009
Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part One
FindLaw columnist, attorney, and author Julie Hilden begins a two-part series on the case, recently heard by the Supreme Court, involving a First Amendment challenge to a federal statute that criminalizes depictions of illegal animal cruelty. In this column, Part One, Hilden describes the statute; explains how it borrows a "serious value" exception from Court-approved anti-obscenity statutes; and considers whether that exception would cover animal rights groups that seek to use depictions of the cruel, illegal treatment of animals in order to stop such practices. Part Two in the series, appearing tomorrow, will consider why the statute's language could be seen as constitutionally problematic, and whether it might have been wiser for the statute’s drafters to draw from the law and precedent regarding the prohibition of child pornography -- rather than from the law and precedent regarding obscenity.
Monday, October 26, 2009
Why Dan Rather's Suit Against CBS Was Dismissed
FindLaw columnist, attorney, and author Julie Hilden analyzes the opinion from New York's Appellate Division (First Department) dismissing all of anchorman Dan Rather's claims against CBS. Rather had alleged that CBS broke its contract with him when it "warehoused" him -- declining to put him on the air for a period of fifteen months that began early in 2005, and followed the late 2004 scandal over the authenticity of what Rather and his producers had claimed to be Texas National Guard internal documents relating to George W. Bush's service with the Guard as a young man. Hilden explains some of the factors that caused the Appellate Division to side unanimously with CBS, and considers how New York's Court of Appeals -- the state's highest court -- may rule.
Monday, October 12, 2009
Should Lawyers Be Allowed to Blog Critically About Judges?
FindLaw columnist, attorney, and author Julie Hilden discusses a Florida case in which an attorney was reprimanded by the Florida Bar for blogging critically about a judge. As she explains, the Florida Supreme Court upheld the attorney's reprimand and fine -- despite arguments by the ACLU, an amicus in the case, that these punitive measures violated the First Amendment. Hilden contends that the ACLU was right, and that attorneys' criticisms of judges on blogs and elsewhere should be recognized as First Amendment-protected speech.
Monday, September 21, 2009
Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model
FindLaw columnist, attorney, and author Julie Hilden argues that a New York court was wrong to reveal the identity of the blogger who called model Liskula Cohen names such as "skank" and "ho." Hilden argues that New York should follow other states in adopting a more pro-First Amendment test for when bloggers' anonymity can be compromised, and that the names Cohen was called by the blogger do not fulfill the libel-law requirement of making a "statement of fact" about Cohen. Hilden also argues that Google -- the owner of Blogger.com -- should have taken a more active role in protecting the First Amendment rights of the blogger, rather than trying to fence-sit by raising only formal, not substantive, arguments in the case.
Tuesday, September 15, 2009
The Denial of the Times's Request for Emperor's Club Wiretap Applications
FindLaw columnist, attorney, and author Julie Hilden argues that a three-judge panel of the U.S. Court of Appeals for the Second Circuit made the wrong decision earlier this month, when it found that The New York Times had no statutory, common law, or First Amendment right to access sealed wiretap applications in the notorious "Emperor's Club" prostitution ring case. Given that customers' identities were protected, the investigations' four targets had already pled guilty, and only their early pleas had kept the applications under seal in the first place, Hilden deems the government's case for denying the Times access a weak one. She also notes that this important issue may soon find its way to the Supreme Court, and contends that the Court, unlike the panel, should find a First Amendment right to access here.
Tuesday, August 18, 2009
What Lawyers Can Learn from Screenwriters
FindLaw columnist, attorney and author Julie Hilden argues that some of the rules that screenwriters are advised to follow can also be of substantial use to attorneys. In particular, she focuses upon advice counseling screenwriters to stay with chronological order, avoid voiceovers, let viewers put two and two together, and thread a uniting theme through the story being told. Hilden contends that each of these precepts contains a truth that can assist attorneys, as well as screenwriters, in getting their messages across effectively to their intended audiences.
Monday, August 17, 2009
A Texas Case Asks Whether Bloggers Enjoy Journalists' Right to Early Appeals
FindLaw columnist, attorney, and author Julie Hilden discusses a recent Texas appellate case that held that an online journalist and defamation defendant could invoke a statute allowing journalists who raise free-speech-based claims and defenses to file interlocutory appeals if their summary judgments motions are denied. While Hilden argues that the appellate court's result was the right one, she takes strong issue with the court's test as to who counts as a journalist -- a test that, she contends, ignores Internet journalism realities and will disproportionately burden those breaking into journalism. She argues that instead, all defendants in cases involving free speech claims or defenses should be entitled to interlocutory appeals, in order to mitigate the constitutionally-disfavored "chilling effect" that occurs when speech triggers costly court proceedings.
Wednesday, August 5, 2009
Would a Law Requiring Consent to Link Violate the First Amendment?
FindLaw columnist, attorney, and author Julie Hilden discusses a proposal by Judge Richard Posner -- writing in his private capacity -- that would attempt to save the flagging journalism industry, and especially newspapers' websites. Posner suggests that the government should consider “[e]xpanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent….” But would the new federal statute required to accomplish that change be deemed to violate the First Amendment? Hilden explains the reasons why it might, or might not -- and contends that Posner's argument is much stronger with respect to linking than it is with respect to paraphrase.
Monday, July 20, 2009
Salinger Sues: His Challenge to an Unauthorized "Catcher in the Rye" Sequel
FindLaw columnist, attorney, and author Julie Hilden comments on a copyright suit that is ongoing in the U.S. District Court for the Southern District of New York. The suit pits "Catcher in the Rye" author J.D. Salinger against Swedish writer Fredrik Colting, who has written an unauthorized "Catcher in the Rye" sequel featuring a 76-year-old version of Holden Caulfield, and seeks to publish the book in the U.S. Hilden comments on Salinger's chances of prevailing in the suit, and on the underlying question whether the unauthorized sequel is likely to be protected as a parody or criticism of the original.
Monday, June 22, 2009
Can a Public School's Library Block Pro-Gay Websites? An ACLU Lawsuit Says No
FindLaw columnist, attorney, and author Julie Hilden discusses a recent suit filed by the ACLU challenging two Tennessee public school districts' use of filtering software. An "LGBT" checkoff within the software allowed the school districts to block high school students' access to pro-gay advocacy websites -- but not to anti-gay advocacy websites -- and the students sued. Hilden explains both why this lawsuit was a particularly strong one, and why other cases may raise additional complexities. In addition, she questions whether it is appropriate for public schools to buy software that offers the option of a check-off cutting off access to websites in a discriminatory fashion.
Friday, June 5, 2009
Why Sexting Should Not Be Prosecuted as "Contributing to the Delinquency of a Minor"
FindLaw columnist, attorney, and author Julie Hilden continues a series of columns on the legal aspects of "sexting" -- the practice, prevalent among teens, of sending nude and semi-nude photos of oneself or others via cellphone. In a prior column, Hilden contended that a Pennsylvania D.A. should not have sought to prosecute an instance of sexting under child pornography laws. In this column, Hilden argues, similarly, that an Ohio D.A. should not have sought to prosecute sexting under that state's contributing-to-the-delinquency-of-a-minor statute. She contends that such statutes not only raise serious constitutional issues based on their vagueness, but also are ill-suited for the unique context of teen sexting.
Wednesday, May 13, 2009
How Should Teens' "Sexting" – the Sending of Revealing Photos – Be Regulated?
FindLaw columnist, attorney, and author Julie Hilden discusses a Pennsylvania prosecutor's recent attempt to go after teens' "sexting" under child pornography laws, and the ACLU's suit to stop him from doing so, which resulted in a temporary injunction. Hilden contends that, in this particular case, the child pornography laws did not fit, since the photos were not of the teens' genitals or of sexual contact. However, she contends that before a future "sexting" case arises that does technically fit the laws, we should figure out how to legally (or extralegally) regulate "sexting" in a way that does not conflate it with child pornography, but instead addresses its true nature.
Tuesday, Apr. 28, 2009
Is It a Violation of Privacy Law to Reproduce a MySpace Posting in a Context Where the Very People It Targets Will See It? A California Court Says No, But Allows An Intentional Infliction of Emotional Distress Claim to Stand
FindLaw columnist, attorney, and author Julie Hilden discusses a recent California appellate decision that concerns the boundaries of privacy in the age of MySpace and similar sites. As Hilden explains, the case arose because a MySpace poster and her family claim that they suffered severe repercussions when their town's newspaper -- without the poster's permission -- published her MySpace attack on the town as a "Letter to the Editor." Hilden considers the validity and strength of the various claims that arose out of the publication of the letter, and of a possible copyright claim that was not brought.
Monday, Apr. 27, 2009
Can A True Statement Form the Basis for a Defamation Lawsuit? In a Controversial Ruling, the U.S. Court of Appeals for the First Circuit Says Yes
FindLaw columnist, attorney, and author Julie Hilden comments on a controversial First Circuit opinion interpreting Massachusetts law to allow even truthful statements to constitute libel if the defendant acted with "actual malice." Hilden points out that the Supreme Court's "actual malice" standard, applicable to public figures about whom untruths have been stated, had nothing to do with the private figure case at hand. Nonetheless, as Hilden explains, the First Circuit held that under Massachusetts law, libel against a private figure could be based on true statements made with "actual malevolent intent or ill will." Hilden argues that a defamation suit based on a truthful statement violates the First Amendment. She goes on to explain how the First Circuit, in its refusal to hear the case en banc, dodged this central First Amendment question.
Monday, Mar. 30, 2009
How Easily Should Defamation Plaintiffs Be Able to Find Out the Identities of Anonymous Online Speakers From Internet Service Providers? The Maryland Court of Appeals Offers an Answer, But Ultimately, A Federal Resolution Is Needed
FindLaw columnist, attorney, and author Julie Hilden comments on a significant recent decision relating to defamation law from Maryland's highest court. As Hilden explains, the Maryland decision summarizes four different possible standards regarding the point in a defamation suit when the plaintiff can force an Internet Service Provider (ISP) to reveal the identity of an anonymous defendant whose online post is challenged. Hilden praises the Maryland court for choosing a sensible solution that neither asks the impossible of the plaintiff, nor automatically reveals the anonymous defendant's identity. However, she also calls for this issue to be resolved nationwide via a federal statute, in light of the Internet's national character and accessibility, rather than being resolved state by state in a host of different ways.
Monday, Mar. 16, 2009
The Defamation Lawsuit Against One of the "Freakonomics" Authors: Analyzing the U.S. Court of Appeals for the Seventh Circuit's Decision
FindLaw columnist, attorney, and author Julie Hilden discusses the recent decision by a panel of the U.S. Court of Appeals for the Seventh Circuit regarding the defamation lawsuit that arose out of the best-selling book "Freakonomics," which introduced the public to innovative and counterintuitive theories within economics. The lawsuit was brought by economist John Lott against fellow economist and "Freakonomics" co-author Steven D. Levitt. As Hilden explains, the Seventh Circuit decision raises issues such as when a defamation case can be based on the defendant's mere repetition of others' allegations, and what, precisely, it means to say that one academic has tried to "replicate" another academic's results.
Monday, Mar. 2, 2009
Five Key Suggestions to Help Summer Associates Get Offers from Their Firms in a Difficult Economy
FindLaw columnist, attorney, and author Julie Hilden offers advice to the summer associates of 2009 on how to get offers from their firms, despite the ongoing recession and increasing competition. With summer associate offers now far from automatic, those seeking to receive them must stand out, Hilden argues. She suggests a number of strategies for doing so -- addressing topics ranging from how to find allies at the firm, to how to make a wise choice among legal subfields, to how to improve the quality of one's writing and research.
Monday, Feb. 2, 2009
The New York Times Is Sued for Insinuating that John McCain Recently Had a Mistress: How the Defamation Suit Is Likely to Play Out, and Why the Times Should Settle High
FindLaw columnist, attorney, and author Julie Hilden discusses a defamation suit that was recently brought by lobbyist Vicki Iseman against the New York Times, for a February 2008 article that many read to suggest that Iseman was having an affair with then-presidential candidate John McCain. Hilden explains the issues that may come up if the Iseman suit moves forward, including those relating to public-figure versus private-figure intent standards, defamation law's requirement of a "statement of fact," and the Times's use of confidential sources. She also suggests that problems with the case -- and with the article, as the Times's own public editor admitted -- should cause the Times to make a high settlement offer to Iseman.
Monday, Jan. 5, 2009
How the Ongoing Transitions in Journalism May Affect the First Amendment's "Marketplace of Ideas"
FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment costs of the financial troubles newspapers are currently undergoing, and the possibilities for the future. In particular, Hilden focuses on the likelihood that the worsening fortunes of newspapers will aggravate the impact of the "digital divide" between Internet "haves" and "have nots"; the free-speech costs of increasing media consolidation; and an interesting proposal by Joel Brinkley to craft an antitrust-law exception that would allow newspapers to together agree to charge for access to their websites.
Wednesday, Dec. 24, 2008
A Louisiana Law Firm Challenges, On First Amendment Grounds, State Bar Advertising Rules that May Affect Attorney Blogs: The Issues the Suit Raises, and Others that May Arise in the Future
FindLaw columnist, attorney, and author Julie Hilden discusses a Louisiana law firm's federal-court challenge to bar rules that it contends will inhibit both its attorneys' right to blog on legal topics and their right to advertise their professional services. Noting that the U.S. Supreme Court has recognized attorneys' First Amendment right to advertise, and that there surely is a First Amendment right to blog, Hilden argues that the firm has a strong case -- especially with regard to the bar rule that can be challenged as a "prior restraint." Hilden also advises bars nationwide to review their rules with an eye to Internet application, if they do not want to face meritorious First Amendment challenges like the one brought in Louisiana.
Monday, Dec. 08, 2008
The Supreme Court Opts to Decide Whether McCain-Feingold’s Campaign Finance Regulations Were roperly Applied to a Film Attacking Hillary Clinton, and to Ads for the Film
FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision, this month, to grant review of a lower-court ruling that concerns the intersection of campaign finance law and the First Amendment. The lower-court ruling approved the Federal Election Commission's decision to apply the McCain-Feingold campaign finance law to a film called "Hillary: The Movie" and to the ads for that film. As Hilden explains, however, the ruling may either be held to violate the Supreme Court's narrow definition of what counts as an "electioneering communication," or cause the Court to narrow that definition further.
Monday, Nov. 24, 2008
If Obama Has the Opportunity to Appoint Our Next New Supreme Court Justice, Is He Right that Empathy Should Be A Core Criterion?
FindLaw columnist, attorney, and author Julie Hilden discusses Barack Obama's comments on what qualities he will seek if he has the opportunity to nominate Justices to the Supreme Court. Obama emphasized that he will select nominees with a strong sense of empathy, developed through life experience, and suggested that he will not limit his search to law professors and judges. Recently, Senate Republican Jon Kyl threatened to block Obama's nominees if their empathy played too strong a role, compared to their respect for Court precedent. Hilden argues that Obama's search for empathetic judges is legitimate, giving examples of decisions in which both conservative and liberal justices have exhibited empathy. However, she expresses skepticism about Obama's going beyond law professors and judges, and emphasizing other life experience, in selecting his nominees.
Wednesday, Nov. 12, 2008
A Federal Judge Holds that Prohibiting Teachers In Public Schools From Wearing Partisan Political Buttons Does Not Violate the First Amendment: The Ruling's Reasoning and Why It's Wrong
FindLaw columnist, attorney, and author Julie Hilden discusses a recent ruling by a federal judge holding that New York City's Board of Education can, consistent with the First Amendment, ban public-school teachers from wearing partisan political buttons. Hilden argues that the ruling was wrong -- but in part because a Supreme Court decision on which it relied was misguided. She also contends that a simple disclaimer could have addressed one of the judge's main concerns: the possible confusion by students of the teacher's point of view with that of the Board of Education or the school as an institution.
Monday, Oct. 27, 2008
Do States Violate the First Amendment If Their Ban on Electioneering At or Near the Polls Extends to the Wearing of Partisan T-Shirts, Buttons, and Other Paraphernalia?
FindLaw columnist, attorney, and author Julie Hilden considers the First Amendment questions that are raised if states ban the wearing of partisan T-shirts and similar paraphernalia at voting sites. Currently, several states ban partisan gear on the ground that it constitutes "passive electioneering," while others permit it. Are states with a ban violating the First Amendment? Hilden suggests that the answer is yes, contending that the First Amendment harm to those who are forced to put away their gear or forfeit their right to vote is serious, while the harm to those who see fellow voters wearing partisan material is minimal.
Wenesday, Oct. 15, 2008
The Drudge Report, Free Speech, and the Election: Is the "Marketplace of Ideas" Working Efficiently?
FindLaw columnist, attorney, and author Julie Hilden discusses the question whether election coverage -- especially The Drudge Report's -- is satisfying the Supreme Court's ideal of providing a well-functioning "marketplace of ideas." Hilden contends that while The Drudge Report has often shown its subjectivity, other media entities may be equally to blame for hiding theirs. She argues that more of the media should follow Drudge in making it apparent when they are flagging certain stories for special attention, and that both Drudge and other media entities should consider including metadata on their websites or broadcast screens tracking their choices, over time, regarding which stories and candidates to feature more heavily.
Monday, Sept. 29, 2008
Should Oprah Winfrey Invite Sarah Palin on Her Show? Long After the Fairness Doctrine's Demise, An Informal Sense of Media Fairness Remains, But What Should Fairness Look Like?
FindLaw columnist, attorney, and author Julie Hilden discusses the controversy regarding Oprah Winfrey's decision not to have vice-presidential candidate Sarah Palin on her show prior to the election. Since Oprah twice had Barack Obama on her show (albeit before he announced he was running), some observers are questioning whether Oprah's decision is fair and evenhanded -- while others say she has a right to invite her own guests and define her own show. Hilden considers the issue of to what extent private entities should provide fairness in political coverage with reference to the now-abolished "fairness doctrine," by which the Federal Communications Commission once strove to make political debate on television fairer by mechanisms such as a right of reply.
Wednesday, Sept. 17, 2008
A Plea Is Entered in an Obscenity Prosecution Against a Sexual Abuse Victim Who Posted Her Writings About Abuse on the Internet: Should the Federal Government Be Prosecuting Words As Obscenity?
FindLaw columnist, attorney, and author Julie Hilden discusses the unusual -- and, she argues, disturbing -- case of Karen Fletcher, who posted her writings regarding child sexual abuse on the Internet, was charged with breaking federal obscenity laws, and now has entered a guilty plea. Fletcher says she is a survivor of abuse, and that the writings were therapeutic for her. Prosecutors, however, expressed fear that abusers might copy the acts Fletcher described. Hilden contends that this rare prosecution for written obscenity, as opposed to obscene images, fits into a general societal trend of bending or breaking the law in order to reach child abusers. In addition, Hilden argues that -- while the judge and prosecutors made comments suggesting they were proceeding on the theory that Fletcher's writings advocated or constituted a manual for abuse -- this case fell far short of the standard under which speech advocating or describing unlawful conduct can sometimes be suppressed.
Monday, Aug. 18, 2008
A Federal Appeals Court Invalidates the Federal Communications Commission's Massive Fine for the "Nipplegate" Super Bowl Incident: The Decision and Its Implications
FindLaw columnist, attorney, and author Julie Hilden analyzes the decision last month by the U.S Court of Appeals for the Third Circuit to strike down the $550,000 fine the FCC had imposed on CBS for the 2004 Super Bowl broadcast, during which Janet Jackson's breast was briefly exposed. Hilden explains why the decision -- which turned on whether CBS had notice of the new FCC "indecency" policy at the relevant time in 2004 -- won't assist today's broadcasters. She also explains why, after the ruling, speech on network television by independent contractors like Jackson and Timberlake may be more free than speech by network employees.
Monday, Aug. 04, 2008
Defamation and the Internet: How the Law Effectively Allows Bloggers to Take Risks Big Media Companies Can't, and How Companies Can Work to Level the Playing Field
FindLaw columnist, attorney, and author Julie Hilden comments on how the defamation law landscape is changing as newspapers increasingly find it hard to attract advertising dollars, newsrooms shrink, and major media companies' main presences become their websites. Hilden contends that, as major companies' news sites increasingly compete with smaller sites and even individual bloggers, there will be a gap in defamation exposure: Defamation suits that could yield large verdicts, if the defendant is a media company, will not be worth bringing against shallow-pocketed individuals and sites. As a result, blogs and smaller sites' coverage will predictably be edgier. Hilden suggests a way in which major media companies can level the playing field: use more independent contractors, whose writing will not be directly ascribed to the company for purposes of defamation law.
Wednesday, Jul. 23, 2008
Why A Federal Judge Was Right to Dismiss Former Congressman Gary Condit's Most Recent Defamation Suit Against Journalist Dominick Dunne For Comments Relating to Chandra Levy's Murder
FindLaw columnist, attorney, and author Julie Hilden discusses a federal district judge's decision this month to dismiss a defamation suit by former Congressman Gary Condit against veteran journalist Dominick Dunne. The suit was based on comments by Dunne in 2005 on "Larry King Live" suggesting that Condit knows more than he has ever said about the 2001 murder of D.C. intern Chandra Levy. Hilden argues that the judge was correct to dismiss the suit on the basis that Dunne's statements were opinion, not fact, and thus were First-Amendment-protected. However, she contends that Dunne has been walking a thin First Amendment line in his comments, over the years, regarding Condit and the Levy case.
Friday, Jul. 18, 2008
The Supreme Court's Recent Child Pornography Decision: Why Justices Souter and Ginsburg Dissented: Part Two in a Two-Part Series of Columns
In Part Two of a two-part series of columns on the Supreme Court's recent child pornography decision, FindLaw columnist, attorney, and author Julie Hilden contrasts the views of the Court majority, as expressed by Justice Scalia, and those of the dissenters, Justices Souter and Ginsburg. As Hilden explains, the scenario on which the majority and dissent differ occurs when a defendant believes and tells his customer that he is offering illegal child pornography, but actually is offering First Amendment-protected virtual child pornography (which, by definition, involves no real children) instead.
Monday, Jun. 23, 2008
The Supreme Court's Recent Child Pornography Decision, and the Problem with Narrowly Construing Statutes with First Amendment Implications: Part One in a Two-Part Series
In Part One in a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's recent 7-2 decision to uphold a federal statute that criminalizes offering or seeking child pornography. Hilden expresses qualms about the Court's decision to interpret the broad statute narrowly, rather than striking it down -- arguing that this kind of interpretation allows Congress to rely too heavily on the Court to do what Congress should have done in the first place. She also contends that, although it is a well-established rule that the Court may choose to construe a statute in a way that avoids constitutional issues, the specific context here -- of a criminal statute with First Amendment applications -- makes application of that rule especially problematic.
Monday, Jun. 9, 2008
Censorship at Yale: Why the University's Refusal to Exhibit Student Aliza Shvarts's Senior Art Project Violated Its Speech Code
FindLaw columnist, attorney, and author Julie Hilden contends that Yale University betrayed its own stated commitment to free speech when it recently denied senior Aliza Shvarts the ability to display her senior project in an end-of-year exhibit. Shvarts's controversial project stemmed from her decision to repeatedly inseminate herself and then use an abortifacient at a time when any embryo she might have carried would have existed for about two to three weeks. Hilden argues that Art Department faculty should have had the last word on whether Shvarts's project was high enough in quality to display, and that administrators' rationales for denying Shvarts access to the exhibit were post-hoc rationalizations that do not hold water, when they are more closely examined.
Tuesday, May. 27, 2008
J.K. Rowling's Suit Against Those Who Plan to Publish an Unauthorized Harry Potter Encyclopedia: Who Should Win?
FindLaw columnist, attorney, and author Julie Hilden comments on the suit by Harry Potter author J.K. Rowling and Warner Bros. against a small publisher that plans to bring out an unauthorized lexicon/encyclopedia relating to Rowling's books. Hilden analyzes the factors that courts typically apply in determining whether a challenged use of a copyrighted work constitutes a legal "fair use," and concludes that while Rowling's case may be strong, the damages to which she is entitled may be limited. In particular, Hilden is skeptical that an unauthorized encyclopedia could cut substantially into the market for an encyclopedia authorized by Rowling herself.
Monday, Apr. 28, 2008
The Case for Combining Law School with Business School: Five Key Reasons to Think Very Seriously About the Option
FindLaw columnist, attorney, and author Julie Hilden urges future law students to think very seriously about combining their JDs with MBAs. Hilden offers five reasons why the combination might not only open up new professional doors, but also benefit students in other ways as well -- from fostering their ability to think more creatively and entrepreneurially, to helping them better manage the law firms of which they become partners.
Monday, Apr. 14, 2008
The Fight Over "Fleeting Expletives": How A Grant of Supreme Court Review May Lead to Expanded FCC Power and Reduced First Amendment Rights for Broadcasters
FindLaw columnist, attorney, and author Julie Hilden discusses the legal battle between television broadcasters and the Federal Communications Commisssion (FCC) regarding "fleeting expletives" -- defined as expletives that are spoken during a live broadcast, used as intensifiers (not in a sexual or excretory sense), or spoken only once. The U.S. Court of Appeals for the Second Circuit previously invalidated the FCC's new policy cracking down on fleeting expletives. Now, the Supreme Court has granted review in the case. Hilden considers possible reasons why the Court may have chosen to hear the case, and how it may rule.
Monday, Mar. 31, 2008
Is the Wikileaks Case Really Like the Pentagon Papers Case? Part Two of a Two-Part Series on a Lawsuit Against a Controversial Site that Hosts Confidential Government and Corporate Documents
FindLaw columnist, attorney, and author Julie Hilden continues her two-part series of columns analyzing the pending federal district court case involving the website Wikileaks. Wikileaks aims to become "an uncensorable Wikipedia for untraceable mass document leaking and analysis." However, a bank is now challenging the site's right to host an employee's posting of confidential internal bank documents. Hilden evaluates the analogy between the First Amendment issues in this case, and those the Supreme Court faced when it allowed the New York Times to publish the "Pentagon Papers," a confidential government history of the Vietnam War.
Wednesday, Mar. 19, 2008
Wikileaks Is Spared a Shutdown As a Federal Judge Reverses Course: How Broadly Will the First Amendment Protect A Website Inviting Leaks of Confidential Documents?
FindLaw columnist, attorney, and author Julie Hilden comments on the case pending in federal district court in San Francisco against Wikileaks, a website with the mission of "developing an uncensorable Wikipedia for untraceable mass document leaking and analysis." The plaintiff is a Cayman Islands banks whose employee posted confidential documents on Wikileaks. Hilden explains why the judge, whose initial order seemed to side with the bank, later rescinded that order, so that the documents at issue now continue to be accesssible on Wikileaks.
Wednesday, Mar. 05, 2008
Can Websites' Reputational Rules and Rights of Reply Provide a Reputation-Protection System Superior To Libel Law?: Part Two in a Two-Part Series of Columns
In Part Two of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses the different ways reputation is protected online and in the real world. Hilden focuses on the problems online anonymity poses for the would-be plaintiff who would like to sue someone who has posted damaging content about him or her. In particular, she discusses a recent California appellate case that provides insight into how courts cope with the decision whether to unmask an anonymous online writer -- and illustrates how libel cases regarding online statements may be dismissed before the writer's identity is ever revealed.
Friday, Feb. 22, 2008
EBay's Decision to Take Away Sellers' Ability to Rate Buyers: With Libel Law Often Unenforceable Online, What Rules Can Be Used to Protect Reputation? Part One In a Two-Part Series of Columns
In Part One of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses both online and real-world ways in which we attempt to police and protect reputation without inhibiting free speech. Hilden begins her column by noting eBay's recent decision to tweak its feedback system, citing it as one example of many possible reforms to online reputation-based systems. She goes on to contend that while in the real world, libel law is slanted to favor plaintiffs, the situation regarding reputation online is very different -- favoring writers in certain ways, but also protecting non-public-figure targets of speech in some ways as well.
Monday, Feb. 11, 2008
The Organization for Transformative Works and Its Bid to Protect Fan Fiction: Are Its Proposed Changes to Copyright Law, Creating Immunity for Suits Against FanFic, a Good Idea?
FindLaw columnist, attorney, and author Julie Hilden considers a recent proposal by the Organization for Transformative Works. The proposal would change copyright law to fully protect fan fiction -- that is, works of fiction by fans of particular original works that employ those original works' characters, worlds, and potentially their plots -- from copyright infringement suits. Hilden suggests that a more moderate solution, such as a mandatory modest royalty, would benefit not only the original work's creator, but also fans. She suggests that, under a system with a mandatory modest royalty, fans would enjoy more original works from the same creator, and might even be able to act as patrons, banding together to sponsor a creator by pooling mandatory royalty fees to fund the creator's next work.
Monday, Jan. 21, 2008
Seinfeld Sued: Will "Sneaky Chef" Author Missy Chase Lapine Succeed In Her Suit Against Jerry and Jessica Seinfeld?
FindLaw columnist, attorney, and author Julie Hilden discusses the recent lawsuit against famous comedian Jerry Seinfeld and his wife, Jessica. The suit was brought by a cookbook author, Missy Chase Lapine, who, like Jessica Seinfeld, wrote a 2007 cookbook on how to sneak healthy vegetables into treats that children love. Lapine claims Jessica's cookbook, which was published second, infringed Lapine's copyright in her prior cookbook and trademarks in the images on its cover. Lapine also claims that, after the controversy arose relating to the similarity between the two cookbooks, Jerry Seinfeld defamed her by calling her a "wacko" and making various other derogatory statements about her in an interview with David Letterman. Hilden contends that despite some strong parallels between the two books, Lapine's legal case is not as strong as it might seem.
Tuesday, Jan. 15, 2008
The Ehrenfeld/Mahfouz Case: How "Libel Tourism" Undermines the First Amendment and, in the Internet Age, Compels An International Solution
FindLaw columnist, attorney, and author Julie Hilden discuss a little-discussed but, she contends, very significant New York case. As Hilden explains, the case involves what is arguably an instance of "libel tourism" -- the phenomenon of plaintiffs choosing to sue in the United Kingdom (U.K.), as opposed to the U.S., whenever possible, because law in the U.K. on defamation is dramatically more pro-plaintiff than law in the U.S. Hilden suggests that a treaty might resolve the problem, protect First Amendment interests, and honor the different privacy/free speech balances the U.K. and the U.S. each strike.
Monday, Dec. 24, 2007
Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services: The Sixth Circuit's Recent First Amendment Ruling Limiting the Scope of Federal Recordkeeping Requirements
FindLaw columnist, attorney, and author Julie Hilden discusses a recent decision by the U.S. Court of Appeals for the Sixth Circuit that struck down federal recordkeeping requirements aimed at preventing child pornography, but applying to sexual expression involving only consenting adults as well. Invoking the First Amendment overbreadth doctrine, which holds that a law violates the First Amendment if it sweeps within its scope too many unconstitutional applications, the Sixth Circuit panel held that the statute could not stand. The three-judge panel was divided, however, on whether the court could narrow the statute itself or whether Congress had to do so; a majority said that it was up to Congress to reenact a narrow, constitutional version of the statute, but the dissenter thought a commercial-use limitation might save the statute.
Wednesday, Dec. 12, 2007
The New Guidelines for User-Generated Content Services such as MySpace: Why Some Will Predictably Inhibit "Fair Use"
FindLaw columnist, attorney, and author Julie Hilden contends that while the newly-agreed-upon guidelines for User-Generated Content (UGC) services such as MySpace have some good points, they also will predictably cut down on the prompt availability of user-uploaded material that is covered by the "fair use" exception to copyright law. In particular, Hilden criticizes two features of the guidelines: their imposition of filters before uploads occur, and their use of a "sweep in" system, under which a copyright own must actively "white list" uses it considers to be "fair use," rather than a "black list" system.
Monday, Nov. 12, 2007
The Family Guy" Once Again Tests Parody's Limits: The Copyright Suit Challenging the Show's Use of "When You Wish Upon a Star"
Not only did the Fox animated show "The Family Guy" use the copyrighted song "When You Wish Upon a Star" without a license, but it did so in an episode, "When You Wish Upon a Weinstein," that some say is anti-Semitic. A copryight infringement lawsuit ensued, and here, FindLaw columnist, attorney, and author Julie Hilden examines whether "The Family Guy" should prevail. Hilden contends that while a claim of "fair use" based on the right to parody provided a strong defense in a prior copyright suit brought against the show by Carol Burnett, that defense is much weaker here.
Wednesday, Oct. 31, 2007
Are All Those Who Author Creative Works Created Equal? Part Two of a Two-Part Series on How Much Congress Can Constitutionally Revise Copyright Law
FindLaw columnist, attorney, and author Julie Hilden continues her two-part series on the extent to which the First Amendment and the Copyright Clause may prevent Congress from revising traditional copyright law protections. Here, in Part Two, Hilden considers whether Congress can act to sweep works that had previously fallen into the public domain back under the protective umbrella of copyright law. In addition, she considers the tension between the rights and interests of original authors and those of derivative users -- that is, persons who want to employ others' original works in their own creative enterprises.
Wednesday, Oct. 17, 2007
How Much Can the Government Revise Copyright, Without Running Afoul of the First Amendment and the Copyright Clause? Part One in a Two-Part Series
In Part One of a two-part series of columns regarding copyright and the First Amendment, FindLaw columnist, attorney, and author Julie Hilden comments on a 2007 case before the U.S. Court of Appeals for the Ninth Circuit. In that case, the plaintiffs, assisted by attorneys from Stanford's Center for Internet and Society, challenged statutes that changed the copyright system from an opt-in system requiring registration to protect copyrights, to an opt-out system in which even a napkin doodle is automatically copyrighted unless the author expressly waives copyright. They argued the shift from an opt-in to an opt-out system violated both the Copyright Clause and the First Amendment of the Constitution.
Friday, Oct. 05, 2007
The Attacks on "Violent" Video Games" and "Torture Porn" Films: Two Different Strategies to Try to Get Around First Amendment Protections
FindLaw columnist, attorney, and author Julie Hilden compares and contrasts the rationales behind attempts to carve out First Amendment exceptions for violent video games and sfor o-called "torture porn" films, respectively. Hilden focuses, in particular, on a recent California anti-violent-video-game statute, which created a test for "violent" video games whose three prongs directly paralleled the Supreme Court's classic test for obscenity. Although the statute was struck down on First Amendment grounds, Hilden contends that its borrowing of the classic obscenity test in the context of violence raises interesting questions about First Amendment doctrine.
Monday, Sep. 17, 2007
Should Readers Boycott O.J. Simpson's Book "If I Did It," When the Proceeds Are Going Directly to the Family of Victim Ron Goldman?
FindLaw columnist, attorney, and author Julie Hilden discusses issues raised by the publication of O.J. Simpson's "If I Did It," his supposedly hypothetical account (thought by many to be not hypothetical at all) of what would have occurred had he committed the murders of his wife, Nicole Brown Simpson, and Ron Goldman. Nicole's sister Denise has called for a boycott of the book, even though the rights are now owned by Ron Goldman's family, not by O.J. Hilden explains how it is possible that the Goldman family can hold the book rights, even though the Supreme Court struck down as unconstitutional "Son of Sam" laws shifting crime-book proceeds to victims. She also sets out factors readers might want to take into consideration in deciding whether to join the boycott.
Friday, Sep. 07, 2007
Satellite vs. Cable: How A Federal Appeals Court's Decision That DIRECTV Engaged in False Advertising Illustrates the Clash Between Courts' Review of Advertising and the First Amendment
FindLaw columnist, attorney, and author Julie Hilden discusses a recent decision by the U.S. Court of Appeals for the Second Circuit to uphold a district court's preliminary injunction against the further dissemination of TV ads on behalf of DIRECTV that attacked competitor Time Warner Cable (TWC)'s picture quality. The district court deemed the ads, which featured Jessica Simpson and William Shatner, either false or misleading, in violation of the Lanham Act's prohibition on false advertising. Hilden takes issue both with the level of deference the appellate court accorded to the district court's interpretation of the ads at issue, and with the appellate court's allowing a injunction to silence First-Amendment protected speech even before the merits of the case were litigated. In addition, she urges courts to take into account the ease of consumers' accessing accurate information on the Internet in cases like this one.
Tuesday, Aug. 21, 2007
Why The Reporter's Shield Law Pending Before Congress Should Be Approved, But Not Before the Blogger-as-Reporter Issue Is Expressly Addressed
FindLaw columnist, attorney, and author Julie Hilden discusses the law currently pending before Congress that would create a federal reporter's privilege, allowing reporters to shield confidential sources unless certain conditions are met. Hilden discusses the law's national security exception and how that exception may be applied. In addition, she argues that the law should be amended to more explicitly cover bloggers who are engaged in journalism.
Wednesday, Aug. 08, 2007
Free Speech and the Concept of "Torture Porn": Why are Critics So Hostile to "Hostel II"?
FindLaw columnist, attorney, and author Julie HIlden discusses the idea of "torture porn," frequently invoked in relation to recent movies such as "Hostel II" and "Captivity." Hilden argues that, from a free speech perspective, it's unfortunate that the recent tendency to equate depictions of sex and violence in movies -- as the phrase "torture porn" does -- has sparked a crackdown on depictions of violence, rather than relaxing the regulation of depictions of sex. She also contends that if one looks more carefully at movies like "Hostel" and "Hostel II," they are hardly promoting violence; indeed, their strong heroes and heroines fight against violence, and the villains who use violence are depicted as weak and pathetic. Finally, she questions whether the "clean" violence of shoot-'em-ups should be preferred over the more realistically gory violence of such films.
Monday, Jul. 16, 2007
The Supreme Court's "Bong Hits 4 Jesus" First Amendment Decision: How Its Betrayal of Free Speech Principles May Have Influenced A Recent Federal Appellate Decision
FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision in the now-famous case involving a public school student who held up a "Bong Hits 4 Jesus" banner at a rally on a town street that his class had been let out early to attend. The Supreme Court upheld his punishment by his school, despite First Amendment objections. Hilden argues that, though Justices Kennedy and Alito attempted to cabin the effects of the ruling in a joint concurrence, that won't be possible -- for the distinction they and the rest of the five-Justice majority made, claiming the banner fell outside "political debate," is untenable and unstable. Hilden also considers what effect the Supreme Court's decision may have upon decisions by the federal appellate courts -- focusing in particular on a recent Second Circuit decision.
Monday, Jul. 09, 2007
A Federal Appeals Court Strikes Down the FCC's "Fleeting Expletives" Policy on Administrative Law Grounds: Was It Right to Do So?
FindLaw columnist, attorney, and author Julie Hilden discusses a recent, 2-1 decision by a panel of the U.S. Court of Appeals for the Second Circuit, striking down the FCC's policy on "fleeting expletives" (that is, expletives used only very occasionally in the course of a lengthy program). Hilden explains why the panel's majority opted to strike down the policy under the Administrative Procedures Act, rather than the First Amendment. In addition, she considers why Judge Pierre Leval, though otherwise a strong defender of writers' and artists' rights, dissented.
Wednesday, Jun. 27, 2007
My Big Fat Weak Lawsuit? A Plaintiff's Suit Against IMDb for Failing to Credit Him for "My Big Fat Greek Wedding" Gets Tossed and He Must Pay IMDb's Attorneys' Fees
FindLaw columnist, attorney, and author Julie Hilden discusses a recent California appellate decision striking a plaintiff's complaint, and requiring the plaintiff to pay the defendant's attorneys' fees, pursuant to a California statute (the "Anti-SLAPP" statute) that allows courts to penalize meritless lawsuits targeting free speech. The plaintiff was a producer who sought to be credited as the producer of "My Big Fat Greek Wedding." The defendant, the Internet Movie Data Base, said it was only following the on-screen credits for the movie. Hilden discusses the case in the context of other California precedents and the guild system for awarding credits.
Tuesday, May. 22, 2007
Perez Hilton, Michelle Malkin, and the "Fair Use" Exception to Copyright Law: What Are the Rules When Bloggers Use Video Excerpts and Photographs Without Permission?
FindLaw columnist, attorney and author Julie Hilden discusses two high-profile recent disputes concerning the "fair use" exception to copyright law. In the first, music company UMG challenged pundit and blogger Michelle Malkin's unauthorized use of excerpts from videos by and of its rap-music artist, Akon, in a podcast critical of Akon's behavior. Ultimately, UMG withdrew its request that YouTube, pursuant to the Digital Millennium Copyright Act (DMCA), de-post the Malkin podcast. In the second, photo agency X17 challenged blogger Perez Hilton's unauthorized use of its photos. X17 has sued; Hilton defends his use of the photos -- which he marks up with comments and drawings in white pen -- as satire, but Hilden explains why this defense is unlikely to persuade a court.
Wednesday, May. 16, 2007
Should News Organizations Refuse to Host Video Manifestos by Criminals? Why Attacks On Media For Airing the Virginia Tech Killer's Video Are Ultimately Unpersuasive
FindLaw columnist, attorney and author Julie Hilden argues that it was right for NBC to release the video sent to it by Virginia Tech shooter Cho Seung-Hui, and is also defensible for individuals to choose to host the video on their sites or post it on YouTube. Drawing a parallel to First Amendment "secondary effects" doctrine, Hilden argues that -- since it seems that the hope of glory is rarely, if ever, the "last straw" for a shooter -- claims to this effect are really a proxy for justified moral outrage. This outrage, she contends, ought to be directed at the shooter, not at those among the public who seek to better understand his crime by examining all the evidence relevant to it.
Wednesday, May. 02, 2007
A Student Who Posted Profanities About Her School Principal on MySpace Wins Before The Indiana Court of Appeals: Why the State Constitution Protected Her, And How She Would Have Fared Under The First Amendment
FindLaw columnist, attorney, and author Julie Hilden discusses a recent case in which an Indiana appellate court removed a middle-school student's "juvenile delinquent" designation because it had been based upon an exercise of her right to free speech on MySpace. Though the girl's comments were profane, the court ruled that they also counted as political speech, because they took issue with her public school's anti-piercing policy. Though the case was decided solely under the Indiana Constitution, Hilden also analyzes how the student's First Amendment claims might have fared, in light of the issues raised in the pending "Bong Hits 4 Jesus" banner decision -- another case in which (arguably) anti-government speech resulted in a public school student's punishment.
Monday, Apr. 16, 2007
The Suit by Carol Burnett Against "The Family Guy": Why Burnett Should Withdraw the Suit
FindLaw columnist, attorney, and author Julie Hilden argues that Carol Burnett is threatening the rights of writers generally by suing Twentieth Century Fox for a brief parody, appearing in an episode of "The Family Guy," of Burnett and her "Charwoman" character. Hilden argues that even broad parodies like this one deserve full First Amendment and "fair use" protection. She also argues that, due to the muddiness in this area of law, writers should refrain from challenging other writers' right to parody except in the most clear-cut cases -- and, she says, this is not such a case.
Monday, Apr. 02, 2007
A New York Times Reporter's First Amendment Civil Disobedience Claim: The Case of the Secret Eli Lilly Zyprexa Documents
FindLaw columnist, attorney, and author Julie Hilden discusses a recent opinion by Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York in litigation over the alleged side effects of the drug Zyprexa. The opinion discusses the conduct of New York Times reporter Alex Berenson, who concocted a ruse -- also involving an out-of-state attorney, and an expert in the litigation -- to circumvent the protective order covering the Zyprexa litigation, in order to get the information about the alleged side effects out to the public immediately. Hilden argues that what Berenson did should count as valid civil disobedience -- but points out that he would be on far more solid ground had he sought an exemption from the protective order before (or even simultaneously with) violating it.
Monday, Mar. 19, 2007
Why are Women - and Generation X and Y Attorneys Generally -Leaving Large Law Firms? Some Possible Explanations, and Some Possible Remedies
FindLaw columnist, attorney, and author Julie Hilden discusses the phenomenon of Generation X and Y women associates disproportionately leaving large law firms, as reported in a recent "California Lawyer: article. Drawing on the experiences of some particular Generation Xers, Hilden considers why both female and male associates are choosing to leave, and suggests ways firms might effectively convince them to stay.
Wednesday, Mar. 07, 2007
Can the FBI Crack Down on Fictional Material About Law Enforcement Tactics? A Federal Appeals Court Finds First Amendment Issues, But Deems the Responsible FBI Agent and Attorney Immune From Damage Awards
FindLaw columnist, attorney and author Julie Hilden discusses a significant recent decision by the U.S. Court of Appeals for the Second Circuit. In the decision, the federal appeals panel reached two key holdings: First, the panel held that there was enough evidence to go to the jury on the question whether an FBI agent and a United States Attorney violated the First Amendment when they successfully intimidated a web host into de-posting a fictional video depicting a New Year's Eve military takeover of New York City relating to Y2K hysteria (and unsuccessfully tried to intimidate the filmmaker into doing the same). Second, the panel held that, despite the legitimate First Amendment issues raised, the agent and government attorney were immune from liability. Hilden questions the immunity holding in light of the factual circumstances of the case, and considers whether the post-9/11 context influenced the decision regarding these pre-9/11 facts.
Monday, Feb. 19, 2007
The Documentary "This Film Is Not Yet Rated" Raises an Interesting Question About the MPAA Film Ratings System:
Is It Better or Worse than a Government Ratings System Would Be?
FindLaw columnist, attorney, and author Julie Hilden discusses an interesting comparison raised by eminent First Amendment lawyer Martin Garbus in the documentary "This Film Is Not Yet Rated": Would a government film ratings system actually be better, from a free-speech perspective, than the MPAA's? In explaining why a government system might be deemed consistent with the First Amendment, Hilden examines the key Supreme Court precedent on film labeling, which allowed the federal government to label films foreign "propaganda," and considers whether the current Court would analyze the issue differently.
Monday, Feb. 05, 2007
Answering the Multi-Billion-Dollar Question: Important Lessons For Companies Seeking to Protect Creative Property Effectively in the Twenty-First Century
FindLaw columnist, attorney, and author Julie Hilden discusses some of the questions that have arisen as online or Internet-coordinated distribution has become possible in the "content industries" -- movies, music, and (to some extent) books. Hilden argues that the traditional first-sale doctrine, which holds that only the first purchaser in the chain pays the creator for content, needs to be revised in the age of the Internet. She also considers ways in which companies can better deter copyright infringement -- through business choices and modification of the first-sale doctrine, not by suing potential customers.
Monday, Jan. 08, 2007
Defamation on the Internet: With Courts Strongly Supporting Website Users' Immunity from Suit, Should Would-Be Plaintiffs Resort to ReputationDefender.com?
FindLaw columnist, attorney, and author Julie Hilden discusses the current factual and legal situation regarding claims of defamation on the Internet. Hilden covers a recent California Supreme Court decision holding that even those who intentionally republish defamatory material may fall under the federal statutory immunity for "users" of web services. She also discusses a new service, ReputationDefender.com, that promises to police customers' reputations online, protecting their job prospects, for a fee.
Monday, Dec. 11, 2006
Borat Sequel: Legal Proceedings Against Not Kazakh Journalist for Make Benefit Guileless Americans in Film:
Is There a Way Around the Releases Signed by Those Who Appeared in The Movie?
FindLaw columnist, attorney, and author Julie Hilden discusses the spate of suits challenging the releases signed by participants in the recent Borat movie -- and in particular, the California suit brought by two South Carolina fraternity brothers who claim that they made (or agreed with Borat's) racist comments in the movie only because the producers got them drunk first. One fraternity brother also says he was underage at the time. Hilden's analysis concludes, however, that the releases will likely be held valid despite the allegations of prior promises and underage drinking.
Wednesday, Nov. 29, 2006
Why It Was A Mistake for a California Judge To Dismiss Britney Spears's Defamation Lawsuit Against US Weekly
FindLaw columnist, attorney, and author Julie Hilden takes issue with a California judge's decision to throw Britney Spears's defamation suit against US Weekly out of court. Hilden concedes that it may not have been defamation for the magazine to say Spears and Federline privately made a sex video. But she argues that the judge was wrong to ignore their claim that it was defamation for the magazine to suggest the couple was so unconcerned about the possible unauthorized release of the video, that they were "acting goofy" in their lawyers' office while discussing it.
Monday, Nov. 13, 2006
The Lawsuits Against Google: Why Outdated Concepts of Copyright Law Don't Click With the Internet
FindLaw columnist, attorney, and author Julie Hilden discusses the copyright lawsuits against Google, and the federal statutory immunity that provides the company (as well as YouTube) with a strong defense against them. Hilden also considers, more broadly, how copyright might be reconceived to better fit the realities of the Internet, and avoid the unjust result of companies receiving valuable "eyeballs" for their ads when copyright-violating videos are posted, yet escaping liability or any obligation to compensate the copyright holder.
Monday, Oct. 30, 2006
Are Lawyers' Blogs Protected by the First Amendment? Why State Bar Regulation of Law Blogs As "Advertising" Would Be Elitist and Reductive
FindLaw columnist, attorney, and author Julie Hilden discusses proposals before state bars that define advertising broadly enough to arguably encompass lawyers' blog. Hilden argues that state bars' regulation of advertising is tainted by its elitist roots -- recognized in a Supreme Court opinion written by Justice Blackumn -- and should not be expanded. She also argues that it's inaccurate and reductive to claim a blog is merely advertising for the services of the lawyer who writes it.
Monday, Oct. 16, 2006
The "Bong Hits 4 Jesus" First Amendment Case, Part Two: Is the U.S. Court of Appeals for the Ninth Circuit Half-Baked When It Comes to Student Speech?
FindLaw columnist, attorney, and author Julie Hilden continues her two-part series on a recent decision by the U.S. Court of Appeals for the Ninth Circuit, find a clear First Amendment violation where a school principal crumpled a student "Bong Hits 4 Jesus" banner after the student tried to display the banner for TV cameras at a corporate-sponsored Olympic-torch-passing event that occurred on a public street. Hilden juxtaposes the ruling with two other Ninth Circuit school speech cases decided this year, and argues that -- despite its liberal reputation -- the Ninth Circuit has been, overall, moderate in its recent approach to school speech, adhering to established First Amendment law.
Monday, Oct. 02, 2006
The "Bong Hits 4 Jesus" Student Speech Case: With Kenneth Starr Seeking High Court Review Of The Ninth Circuit Decision, Is Someone Blowing Smoke?
In the first in a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses a First Amendment case that former Independent Counsel Kenneth Starr, now a lawyer in private practice, wants to take all the way to the Supreme Court. The cases arise from an incident where a public school principal grabbed and crumpled up a banner a student was holding at an off-campus, non-school-sponsored rally to celebrate the passing of the Olympic torch. (The banner said, "Bong Hits 4 Jesus.") Hilden argues that the decision of the U.S. Court of Appeals for the Ninth Circuit -- which held in favor of the student -- was clearly the right one, and that the Supreme Court should not step in.
Monday, Sep. 18, 2006
Examining Two Recent Rulings Allowing Suits Against the NSA's Warrantless Wiretapping To Proceed, Despite the State Secrets Privilege:
Part Two in a Series
In Part Two of a series, FindLaw columnist, attorney, and author Julie Hilden analyzes the most recent of two already-appealed rulings by federal district judges rejecting the government's argument that the state-secrets privilege ought to prevent challenges to the NSA's Presidentially-authorized warrantless wiretapping program from going forward. (One judge did hold, however, that the privilege protects an analogous Internet program that searches through email). Hilden cites reasons why the judges ruled as they did -- and considers whether, or not when the state-secrets claim reaches the Supreme Court, as it seems likely to, the Court will be receptive to the Administration's state-secrets claims.
Wednesday, Aug. 23, 2006
The Suit Challenging the NSA's Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call
FindLaw columnist, attorney, and author Julie Hilden analyzes the recent ruling by a federal district judge that a lawsuit challenging the NSA's Presidentially-authorized warrantless wiretapping program can go forward. In this Part One of a two-part series of columns, Hilden considers whether the Supreme Court is likely to agree with the district judge based on its recent "war on terror" rulings -- and concludes that these rulings, and a more longstanding precedent, indicate that the district judge's ruling has a good chance of being upheld.
Tuesday, Aug. 15, 2006
The Legality of Web "Blacklists": Should It Be Against the Law to List Malpracticing Doctors and Litigation-Happy Patients on the Internet?
FindLaw columnist, attorney, and author Julie Hilden discusses whether it should be legal for a website to post lists of medical malpractice plaintiffs and their attorneys -- exempting only those who won jury verdicts on all counts. Hilden concedes that such sites may be misleading, but argues that the solution is not a ban, but more posted information, more clearly explained, and a right to reply for those who are listed. She also argues that there should be sites identifying repeatedly malpracticing doctors so patients can protect themselves.
Tuesday, Aug. 01, 2006
The Supreme Court's End-of-Term Campaign Finance Decision: Following the Key Buckley Precedent, But Exposing Some Justices' Critiques of It, Too
FindLaw columnist, attorney, and author Julie Hilden discusses Randall v. Sorrell, the Supreme Court's end-of-Term decision on campaign finance law. Hilden explains that the decision itself simply held the line where the key precedent in the area of law, Buckley v. Valeo, had drawn it. But, she notes, the splintered opinions in the decision provided some key foreshadowing as to whether the Court might depart from Buckley in the future -- and whether it might move in the direction of allowing more, or less, regulation.
Tuesday, Jul. 25, 2006
A Supreme Court Majority Rejects Evidence of On-The-Scene Accuser Statements, But Justice Thomas Seeks More Protection for Domestic Violence Victims: Part Two
In the second in a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden discusses an important Supreme Court end-of-Term decision as to when -- in domestic violence cases and in criminal cases generally -- a witness' prior out-of-court statements can constitutionally be admitted into evidence even though she fails to appear in court to testify. Having focused in Part One on a case involving 911 call tapes, which the Court ruled could be used, Hilden now focuses on a case involving on-the-scene witness statements, which the Court ruled cannot be used -- and on why Justice Thomas dissented.
Friday, Jun. 23, 2006
A Supreme Court Majority Admits 911 Calls Into Evidence, But Justice Thomas Seeks More Protection for Domestic Violence Victims: Part One
In the first in a two-part series, FindLaw columnist, attorney, and author Julie Hilden discusses one of the Supreme Court's important June 2006 end-of-Term decisions. The decision addressed when -- in domestic violence cases and in criminal cases generally -- a witness' prior out-of-court statements can constitutionally be admitted as evidence even though she fails to appear in court to testify. Hilden discusses why this issue is particularly important in domestic violence cases, and explains the line the Court drew between "testimonial" and "nontestimonial" statements.
Tuesday, Jun. 20, 2006
Television and the Marketplace of Ideas, Part Three: The Possibility of Viewer-Financed "Cult" Shows
FindLaw columnist, attorney, and author Julie Hilden continues a series of columns applying the First Amendment concept of the "marketplace of ideas" to the world of television. In this column, Hilden asks how we can improve the match-up between viewer preferences and the content that is produced. She suggests that "cult" shows with viewership that is large, but not large enough to prevent cancellation, may be able to be saved with a change in the available technologies and business models.
Tuesday, Jun. 06, 2006
Television and the Marketplace of Ideas, Part Two: Will New Technologies Better Tailor Content to Viewers' True Preferences?
FindLaw columnist, attorney, and author Julie Hilden discusses how the First Amendment metaphor of the "marketplace of ideas" translates in the world of television, especially in light of new technologies that enable viewers to see TV shows on DVD, or on their cellphone or iPod screens. Hilden also considers the effects of aggressive product placement and the lessened emphasis on syndication.
Tuesday, May. 23, 2006
Did Stephen Colbert Cross a Free Speech Line at the White House Correspondents' Dinner? And If So, What Defined the Line?
FindLaw columnist, attorney, and author Julie Hilden draws on First Amendment doctrines to analyze why many commentators have argued that Stephen Colbert's speech at the White House Correspondents' dinner crossed the line between comedy and rude political attack. Hilden contends that there's a basis for the crossing-the-line intuition, but also argues that in the end, Colbert's choice to give the speech he did was fully justified.
Tuesday, May. 09, 2006
Four Major Television Networks Challenge the FCC's Regulation of Indecency: Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete
FindLaw columnist, attorney, and author Julie Hilden discusses the recent decision by four major TV networks to challenge a series of recent FCC "indecency" rulings. Hilden argues that the networks are right to challenge the rulings -- for indecency law, always problematic, is eroding at its foundations, thanks to modern technology. She focuses on particular episodes and words that have recently drawn FCC ire to make her case.
Tuesday, Apr. 25, 2006
Can a Prison Constitutionally Deprive Ill-behaved Prisoners of Access to Newspapers, Magazines, and Photographs? The Supreme Court Will Soon Decide
FindLaw columnist, attorney, and author Julie Hilden discusses a case that will soon be decided by the Supreme Court, regarding the First Amendment rights of prisoners. The case, she notes, is especially interesting since one of the Third Circuit judges who heard it is now-Justice Samuel Alito -- who dissented from the panel majority's holding, and would have held against the prisoners. Hilden argues that, though Alito's analysis is more persuasive than the panel's in several respects, he was wrong about the outcome: The prisoners should have prevailed.
Tuesday, Apr. 11, 2006
Is Don'tDateHimGirl.Com Legal?
The Site Where Women Post Photos and Information About Men They Claim Cheated on Them
FindLaw columnist, attorney, and author Julie Hilden considers possible legal remedies for men whose information appears on Dontdatehimgirl.com and similar websites. When sexual infidelity is claimed, can men sue for privacy if the postings are true, and for defamation if they are false -- thus winning either way? And what if men want to go after not only their potentially cash-poor exes, but also the potentially deep-pocketed website? Does the site enjoy immunity under a federal statute crafted to protect "family-values-friendly" editing of postings?
Tuesday, Mar. 28, 2006
Will Teachers' First Amendment Rights Be a Casualty of the War on Terror?
Why the Supreme Court Should Rethink the Rules that Apply to Public School Teachers
FindLaw columnist, attorney, and author Julie Hilden discusses the First Amendment rights of teachers in the public schools -- focusing on two high-profile controversies. One involves a Colorado teacher who paralleled Bush's rhetoric in his State of the Union with Hitler's; another concerns a New Jersey teacher who has held a trial of President Bush Bush for alleged war crimes -- with students arguing both sides of the issue. Hilden argues that teachers' speech should be highly protected -- more so than current Supreme Court precedent allows.
Tuesday, Mar. 14, 2006
The Cartoon Controversy, Part Two: The "Anti-Muslim" Cartoons; the Boycotts, the Reprints, and the Holocaust Cartoon Contest
In Part Two of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden focuses on the free speech implications of the controversy concerning the now-notorious twelve Danish newspaper cartoons depicting the Prophet Muhammad. In this column, Hilden focuses on various responses to the cartoons -- arguing that reprints may be misguided; that boycotts are a good idea but only if they are tightly focused; and that responses in the form of parodies of other religions' sacred figures may be acceptable, but only if they derive not from bias, but from a wish to show those of other faiths why Muslims found the twelve cartoons so offensive.
Tuesday, Feb. 28, 2006
The Cartoon Controversy, Part One: The "Anti-Soldier" Cartoon and Editorial, the "Anti-Muslim" Cartoons, and the Government's Position
In Part One of a two-part series of columns, FindLaw columnist, attorney, and author Julie Hilden focuses on the free speech implication of two instances this month in which the U.S. government has deemed newspaper cartoons offensive. First, the Joint Chiefs of Staff took strong issue with a Washington Post cartoon depicting a quadruple-amputee soldier deemed merely "battle-hardened" by "Doctor" Donald Rumsfeld. Second, the U.S. government joined many Muslims in condemning as offensive the highly controversial set of twelve Danish newspaper cartoons depicting the Prophet Muhammad.
Tuesday, Feb. 14, 2006
Donald Trump Sues for Defamation: Is His Net Worth a Fact, or a Matter of Opinion?
FindLaw columnist, attorney, and author Julie Hilden considers the likely fate of Donald Trump's defamation lawsuit against an author who, Trump alleges, assessed Trump's net worth as being much lower than he claims, and thus made Trump out to be a liar. Hilden points to facts that suggest Trump might even have evidence to satisfy the notoriously-hard-to-meet "actual malice" requirement, but also depicts his case as potentially falling upon the fault line between potentially defamatory fact, and constitutionally-protected opinion.
Tuesday, Jan. 31, 2006
The Slipperiness of Slander: The Suit Against Paris Hilton
FindLaw columnist, attorney, and author Julie Hilden discusses the ongoing slander case against Paris Hilton. Hilden argues that Hilton's case illustrates some of the First Amendment problems with slander lawsuit. She also contrasts the way slander litigation and libel litigation each tend to proceed in practice.
Tuesday, Jan. 17, 2006
Britney Spears's Suit Against US Weekly: Can She Be Libeled? You Bet.
With a New York Times piece suggesting that Britney Spears might be libel-proof on issues relating to sexuality, FindLaw columnist, attorney and author Julie Hilden explains why, legally, that isn't the case -- and why US Weekly may have good cause to worry about the libel suit Spears has filed against it. US Weekly reported that Spears and her husband, Kevin Federline, made an X-rated video of themselves; showed it to attorneys, concerned that an entourage member might release it; and "acted goofy." Spears say no such video was ever made.
Monday, Jan. 03, 2006
Television and the Marketplace of Ideas: What Role Will Developments Like TiVo and A La Carte Cable Play In Promoting Free Speech?
FindLaw columnist, attorney and author Julie Hilden discusses how the concept of the "marketplace of ideas," famously credited to a First Amendment case dissent by Supreme Court Justice Oliver Wendell Holmes, applies in the context of contemporary innovations in television. Arguing that not only news shows, but also television dramas and comedies communicate important ideas, Hilden suggests the FCC is right to support a la carte cable, and alternatives such as TiVo that allow viewers to skip television advertisements.
Tuesday, Dec. 20, 2005
Could Tom Cruise Sue "South Park" For Suggesting He is Gay? And Even If He Could, Should He?
FindLaw columnist, attorney, and author Julie Hilden discusses the legal issues raised by a recent, notorious South Park episode in which various animated characters call on an animated version of Tom Cruise to "come out of the closet." Hilden explains why -- despite the fact that the episode clearly claims Cruise is gay -- a defamation suit by Cruise would fail. She also considers the ethics and law related to Cruise's prior lawsuits challenging claims by other media that he is gay.
Tuesday, Dec. 06, 2005
The Suit Against KISS Rock Star Gene Simmons:
Is Suggesting That A Woman Is Unchaste Still Defamatory?
FindLaw columnist, attorney and author Julie Hilden discusses an ex-girlfriend's suit against Gene Simmons and Viacom, for alleging suggesting in a VH1 "rockumentary" that she was "unchaste." Hilden considers possible defenses to the suit, and also takes on the larger question of whether allegations of unchastity should still, in this day and age, be able to fuel litigation.
Tuesday, Nov. 22, 2005
How Judge Alito Applied the First Amendment on Campus: His Important Decision On a Public School's Anti-Harassment Policy
FindLaw columnist, attorney, and author Julie Hilden discusses a key federal appeals court decision penned by Supreme Court nominee Judge Samuel Alito. Hilden contends that there is a sharp contrast between Alito's thorough, precedent-focused approach, and now-Chief Justice John Roberts's more aggressive, showy decision style when he was a Court of Appeals judge. She also compliments Alito for not allowing his analysis to be affected by the identity of the particular plaintiffs in the case.
Wednesday, Nov. 09, 2005
Advancing The Right To Voice Dissent Within the Government:
The Supreme Court's Opportunity To Reinvigorate the First Amendment for Public Employees
FindLaw columnist, attorney, and author Julie Hilden discusses a recently-argued Supreme Court case involving a fight between an L.A. Deputy District Attorney and his bosses. The Deputy D.A. thought a defense attorney deserved to know more about his investigation of the basis for a problematic search warrant; his bosses disagreed, and, he says, penalized him for voicing his views. As Hilden explains, two key Supreme Court precedents still leave some ambiguity when it comes to First Amendment protections for job-related public employee speech -- and this case could give the Court a chance to clear up that ambiguity.
Tuesday, Oct. 25, 2005
If the President Is Libeled, Can He Sue? Should He?
FindLaw columnist, attorney, and author Julie Hilden considers a hypothetical: If the National Enquirer's report that President Bush is drinking again proves to be false, should the President sue? Hilden argues that such a case would be very hard to win, due to the demanding requirements of defamation law. She also contends that Presidents should be wary of bringing suits in their personal capacity while in office, lest their choice boomerang on them, and invite suits against them in their personal capacity.
Tuesday, Oct. 04, 2005
Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action
FindLaw columnist, attorney and author Julie Hilden discusses the lawsuit filed last week by three authors and the Authors' Guild challenging, as copyright infringement, Google's "Print for Libraries" project. The project would scan university libraries' book collections in, so that the books' content is searchable online. Hilden argues that making this a class action may end up actually benefiting both parties. She also argue that, on the merits, Google has the better argument. Google contends that because only a small part of each book will be shown as a result of a given search, its use of the material is "fair use" and thus falls under a well-established exception to the copyright law. Hilden also voices support for Google, and argues why other authors may want to support Google in this suit, as well.
Monday, Sep. 26, 2005
In the Face of a CNN Lawsuit, FEMA Agrees To Allow Media Coverage Of Katrina's Dead:
If the Case Had Proceeded, Who Would Have Won, and Why?
FindLaw columnist, attorney and author Julie Hilden discusses the First Amendment issues that were raised when FEMA, first, officially asked journalists not to photograph the Hurricane Katrina dead, and then adopted a "zero access" policy with respect such photographs. These FEMA actions led to a lawsuit by CNN, and then to the policy being reversed. But if the suit had gone forward, would CNN have won? Hilden argues that -- despite concerns for the privacy of the deceased and the sensibilities of families that might see the photos -- CNN's First Amendment argument would very probably have prevailed.
Tuesday, Sep. 13, 2005
Supreme Court Nominee John Roberts's Controversial Environmental Law Dissent:
It Reveals Him As An Extreme Proponent of "States' Rights" Federalism, To the Detriment Of Endangered Species
FindLaw columnist, attorney, and author Julie Hilden discusses one of the most controversial opinions penned by Supreme Court nominee John Roberts -- his dissent from the denial of rehearing in a case involving the intersection of the Endangered Species Act, and the U.S. Constitution's Commerce Clause. Hilden argues that Roberts's reading of the Commerce Clause is far too narrow, and that, despite his claims, it is not a necessary consequence of Supreme Court Commerce Clause decisions. She also notes that, with respect to this issue, Roberts's view was to the far right of even most of the Circuit's Republican-appointed judges.
Monday, Aug. 01, 2005
When Is Nonviolent Civil Disobedience Justified? The Case of Judith Miller
As New York Times reporter Judith Miller languishes in jail, refusing to comply with court orders to give up her confidential source, FindLaw columnist, attorney, and author Julie Hilden asks: Is Miller's civil disobedience justified? Hilden explains several factors that might convince us that Miller's civil disobedience is, indeed, justified under the circumstances.
Tuesday, Jul. 19, 2005
The Cases of Tom Cruise, Matt Lauer, Brooke Shields, and Jim Carrey: Hypocrisies as To When Celebrity Speech Is Welcomed and Shunned
FindLaw columnist, attorney, and author Julie Hilden argues that the hostile reaction Tom Cruise's recent comments on postpartum depression have received, is unwarranted. Hilden argues that the hostility is hypocritical in light of the way similar celebrity speech has been treated, and that it is based on a fallacy: that one must have either personal experience, or professional expertise, before one ought to speak on a particular topic. Hilden contends that Cruise, rather than being criticized, should be lauded for opening up the kind of robust, wide-open public debate the First Amendment was intended to encourage and protect.
Wednesday, Jul. 06, 2005
Are Accounts of Consensual Sex a Violation of Privacy Rights? The Lawsuit Against the Blogger "Washingtonienne"
FindLaw columnist, attorney, and author Julie Hilden discusses a lawsuit brought recently by an ex-boyfriend of the blogger who called herself "Washingtonienne" and was later revealed to be Senate staffer Jessica Cutler. The ex-boyfriend, Robert Steinbuch, claims that Cutler committed the tort of public disclosure of private facts when she discussed details of their sex life on her blog. But as Hilden explains, Steinbuch may have an uphill battle in trying to prove that the facts -- which had been the stuff of office gossip -- were still private at the time the blog, on which he was referred to only as "Robert" and "R.S.", was connected to him.
Tuesday, Jun. 21, 2005
Do Search Engines Compete with - or Simply Publicize -- Online News Outlets? Calculating Damages If Copyright Infringement Occurs
FindLaw columnist, attorney, and author Julie Hilden takes another look at the way copyright issues may play on out on the Internet in the future. In particular, Hilden asks what would happen if search engines could compose composite stories -- from traditional news sources, such as newspapers' online outlets, or from nontraditional sources such as blogs and other websites. She considers a number of questions about this hypothetical world: Would the composite stories violate copyright law? If not, could copyright law be extended by Congress so that they did? And even if there were copyright violations, would there be damages large enough to make it worthwhile to sue?
Monday, May. 30, 2005
Will the Future Bring Even More Important Copyright Issues Than The Ones Raised by Online File-Swapping?
The Thorny Question of How to Define Copyright for New Media
FindLaw columnist, attorney, and author Julie Hilden uses a daring futurist prediction by Robin Sloan and Matt Thompson as a jumping-off point to consider how copyright issues may morph over the next ten years or so, when aspect of the new media world are involved. In particular, Hilden considers whether composite news stories, based on facts stripped by Internet-roaming robots, would violate copyrights on the sources from which the facts were taken.
Tuesday, May. 24, 2005
Why the Runaway Bride Should Neither Be Prosecuted, Nor Fined
FindLaw columnist, attorney, and author Julie Hilden discusses possible punishments in the case of Jennifer Wilbanks -- the "runaway bride" who set off a manhunt, and falsely claimed to have been kidnapped (but quickly reversed her claim). Hilden argues that criminal prosecution of Wilbanks is not the right remedy -- nor is a large fine, or even mandated community service. Instead, Hilden argues that because Wilbanks's actions evidence serious psychological problems, it is psychological treatment that is the answer.
Tuesday, May. 10, 2005
Can Bloggers Invoke the Journalist's Privilege to Protect Confidential Sources Who Leak Trade Secrets?
A Suit Filed by Apple Computer Raises the Question
FindLaw columnist, attorney, and author Julie Hilden discusses the controversial issue of whether bloggers (those who post information online on weblogs, or "blogs") should benefit from the "journalist's privilege" -- which allows journalists to protect confidential sources in some instances. Hilden contends that bloggers should, indeed, benefit from the privilege, and points out that under the law, bloggers are on the hook just as journalists are if they defame someone, or publish trade secrets. Hilden also considers the situation in which the blogger and the source are the same.
Tuesday, Apr. 26, 2005
The Supreme Court Case Involving Johnnie Cochran:
Does The Controversy Survive His Death? And If So, Who Should Win?
FindLaw columnist, attorney, and author Julie Hilden comments on the First Amendment case before the Supreme Court involving a California court's broad injunction against speech by certain parties concerning (now-deceased) attorney Johnnie Cochran or his law firm. Hilden considers whether the case is now moot, as a result of Cochran's death. She also argues that if it is not moot, it is very likely the broad injunction will be either narrowed or invalidated by the Supreme Court
Tuesday, Apr. 12, 2005
Must the Government Protect Its Citizens If It Learns They Are in Danger? The Supreme Court Considers How Far Responsibility Reaches
FindLaw columnist, attorney, and author Julie Hilden discusses a case on which the U.S. Supreme Court recently heard oral argument, Gonzales v. City of Castle Rock. The allegations are horrifying: A woman's repeated calls to the police to report her estranged husband's violation of a TRO and his abduction of their three daughters were ignored -- while, meanwhile, the husband had murdered the three little girls. But can these allegations be the basis for a suit based on a violation of constitutional rights? Hilden comments on why the Court may well say the answer is no.
Tuesday, Mar. 29, 2005
Why the Michael Jackson Case Is Falling Apart, How the Prosecution Began Poorly , And What the Defense Ought to Do Next
FindLaw columnist, attorney, and author Julie Hilden discusses prosecution and defense tactics in the Michael Jackson case. Hilden argues that prosecutor Tom Sneddon erred in claiming, in his opening, that the accuser's mother is credible, and not after money, when the evidence suggests she probably is. She also contends that though Jackson attorney Tom Mesereau's cross-examinations have been adept, he probably should still put Jackson on the stand to testify -- although there are certainly disadvantages to doing so.
Tuesday, Mar. 15, 2005
The Controversy Over Politically-Motivated "Million Dollar Baby" Spoilers:
Do They Violate Copyright Law By Destroying Market Demand For the Movie?
FindLaw columnist, attorney, and author Julie Hilden discusses critics' use of aggressive spoilers to try to harm box office for the Oscar-nominated film "Million Dollar Baby." Hilden explain why, despite the fact that copyright law has the purpose of protecting the market for a creative work, copyright law does not prevent spoilers like these. But she also argues that using a spoiler without a "spoiler warning" is an anti-First Amendment tactic that fans of free speech ought not to use.
Tuesday, Feb. 22, 2005
The Supreme Court Finally Steps Into The Fray Between Online File Swappers And The Major Movie And Recording Studios:
The Case of MGM v. Grokster
FindLaw columnist, attorney, and author Julie Hilden discusses a closely-watched case that will be argued before the Supreme Court in March. The case pits record and music industry titans against distributors of peer-to-peer file sharing software -- and asks the Court to decide if the distributors are legally responsible if the software is used to infringe movie or music copyrights. Hilden argues that the case's outcome is extremely hard to predict, because the legal standards in the area are flexible, and the Court will likely feel torn as to which side is right -- and uncomfortable, in ways, with ruling for either.
Tuesday, Feb. 15, 2005
A Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds:
A Decision That, If Followed, Could Transform the Law
FindLaw columnist, attorney, and author Julie Hilden comments on a recent, potentially very important decision by a U.S. district judge in Pennsylvania. As Hilden explains, constitutional challenges to obscenity have, historical, always failed -- but in this opinion, a new type of challenge has succeeded. The new attack on obscenity law is grounded not just in First Amendment concerns, but also in the kind of privacy concerns that have motivated the Supreme Court to protect at-home reading, and, recently, at-home consensual sexual conduct between adults.
Monday, Jan. 31, 2005
In Defense of Sean Penn's Speaking Out:
How Celebrity Activists Can Serve as A Modern Bulwark of Our Constitutional System
FindLaw columnist, attorney, and author Julie Hilden takes issue with those who have derided Sean Penn for his activism with respect to the Iraq War. Hilden contends that not only do celebrities like Penn have a proper place in politics, their role might have pleased the Constitution's Framers -- who anticipated that independent institutions and persons might serve as crucial intermediating forces, between the goverment and the People
Tuesday, Jan. 18, 2005
The Supreme Court's Recent Decision on Trademark and Fair Use:
A Prudent Rebuff of Trademark Holders' Attempt to Gain An Advantage
FindLaw columnist, attorney, and author Julie Hilden discusses a recent, unananimous Supreme Court decision that makes clear the burdens both plaintiff and defendant carry in a trademark infringement case. Hilden explains why the Court, in an opinion penned by Justice Souter, unanimously rejected the contention that to prove a "fair use" defense, a defendant must show there is no likelihood that his use of a trademark will cause confusion on the part of consumers or other. The Court made clear, instead, that a use of a trademark that causes some degree of confusion can still be a fair use.
Sunday, Jan. 04, 2004
Could Scott Peterson Have Avoided The Death Penalty?
Why Mark Geragos Should Have Put Peterson on the Witness Stand
FindLaw columnist, attorney, and author Julie Hilden asks whethe Scott Peterson -- recently convicted of double murder -- might somehow have avoided the death penalty. Her answer is that Peterson's failure to testify at trial not only hurt his chances of avoiding conviction, but also hurt him at the trial's penalty phase, when the jury decided to recommend the death sentence. Hilden explains how testifying might have helped Peterson -- and why he may have paid such a high cost for not testifying.
Tuesday, Dec. 21, 2004
Sheryl Crow's "Suitor" and Other Celebrity Stalkers:
When Do They Legally Infringe Privacy?
FindLaw columnist, attorney, and author Julie Hilden focusing on the recent acquittal in New York of a man accused of stalking singer Sheryl Crow. Hilden uses the facts of this case as a window into a more general question: Putting paparazzi issues aside, when a nonjournalist tries to get close to a celebrity, when is the celebrity's privacy infringed? Hilden argues that Crow's next step should be to try to get a civil injunction against the acquitted criminal defendant -- and notes that when stalkers try to approach celebrities' relatives, they may become even more legally vulnerable than when they try to approach the celebrities themselves.
Tuesday, Dec. 07, 2004
Did the Defense In The Scott Peterson Case Violate Ethics Rules
By Putting a Boat Display Two Blocks From the Courthouse?
FindLaw columnist, attorney, and author Julie Hilden discusses a bar complaint recently filed by a Florida attorney, relating to the Scott Peterson murder trial. As Hilden explains, the complaint claims defense attorney Mark Geragos put a replica of Peterson's boat two blocks from the courthouse -- and contends that, by doing so, Geragos both violated the rule against communications with jurors, and violated the "gag order" the judge had imposed. Hilden argues that even if the facts are as the complaint states, Geragos still may not have violated the ethics rule -- and that if he did, it may still be defensible civil disobedience.
Tuesday, Nov. 23, 2004
The Law Plays Itself on Television:
How Top Shows Depict Lawyers and The Legal Process
Using examples drawn from the "CSI " shows, the "Law & Order" shows, and "Without a Trace," FindLaw columnist, attorney and author Julie Hilden contrasts television law with real-life law, and considers the effects -- good and bad -- that television law may be having on real-life lawyers and juries. Hilden discusses, for instance, the "CSI effect," due to which real-life juries have reportedly started requiring that cases be proven by ironclad physical and forensic evidence -- not witness testimony.
Tuesday, Nov. 09, 2004
Foreign Policy And The Election:
What Are the Candidates' Views on Pre-Emptive War? And When Should Such a War Be Waged?
FindLaw columnist, attorney, and author Julie Hilden discusses the Presidential candidates' respect positions on pre-emptive war -- which is illegal according to the U.N. Charter. She argues that five key lessons from the Iraq War lessons ought to make us more narrowly define the circumstances under which America would initiate a preemptive war.
Tuesday, Oct. 26, 2004
Controlling the Presidential Debates:
The First Amendment Issues Raised By Limiting the "Town Hall" To Uncommitted Voters
FindLaw columnist, attorney, and author Julie Hilden argues that the agreements reached by the President and the Vice-President with their opponents, Senators Kerry and Edwards, regarding their three debates can -- and should -- be the subject of First Amendment challenges. Hilden contends, in particular, that limiting "town hall" questions to uncommitted voters is antithetical to the First Amendment ideal of a "marketplace of ideas" that is robust and wide open.
Tuesday, Oct. 12, 2004
The Plame Scandal, the CBS/Guard Documents Scandal, and Confidential Sources:
When Can Journalists Justifiably Break Their Promises of Secrecy?
FindLaw columnist, attorney, and author Julie Hilden draws parallels between two recent scandals that involve both the "outing" of confidential sources -- purportedly with the sources' consent -- and the possible commission of crimes by sources, or those connected with them. One is the scandal over the illegal revelation of Valerie Plame's identity as a covert CIA agent -- which has resulted in a grand jury investigation. The other is the scandal over CBS's reliance on documents regarding the President's National Guard service that many have challenged as faked.
Tuesday, Oct. 05, 2004
Should The Government's Request to Close Court Proceedings Relating to Airline Anti-Terror List Criteria Be Granted?
An Argument for a More Moderate Solution
FindLaw columnist, attorney, and author Julie Hilden discusses an unusual recent request by the Department of Justice to close an appellate argument, barring the public -- and even to the attorneys on the other side. Hilden explains the case that will be argued, which involves a secret government security directive -- and which was brought by libertarian advocate John Gilmore, who objected to a request that he present identification before flying, or else submit to a more-intrusive-than-usual search. Hilden argues that more moderate solutions that could protect security, but still allow access to the argument, are available.
Tuesday, Sep. 14, 2004
Celebrity Justice:
Famous, Wealthy Criminal Defendants Can Hire High-Priced Lawyers, But Do They Also Face Disadvantages?
FindLaw columnist, attorney, and author Julie Hilden discusses the pitfalls of being a celebrity criminal defendant -- using examples from the recent spate of celebrity criminal trials. Although celebrity defendants can hire high-priced lawyers and defend themselves in the media, Hilden contends that there are some respects in which a criminal defendant can actually be worse off due to celebrity status.
Friday, Aug. 27, 2004
Should Reporters Go to Jail for Protecting Sources From the Valerie Plame Grand Jury?:
The Unfolding Scandal over Who Revealed the CIA Agent's Identity Raises First Amendment Issues
FindLaw columnist, attorney, and author Julie Hilden discusses the recent D.C. district court ruling that two well-known Time and NBC journalists must testify in response to grand jury subpoenas. The subpoenas were issued in connection with the Special Counsel investigation into the leak of the identity of CIA agent Valerie Plame. Now, a New York Times reporter has been subpoenaed too. Hilden explains that the court ruled as it did because of a key 1972 Supreme Court precedent-- and argues that to better protect First Amendment rights, the Court should overrule this precedent.
Friday, Aug. 20, 2004
Penning Protesters:
Are Police-Imposed "Free Speech Zones" and Cages at Conventions Constitutional?
FindLaw columnist, attorney and author Julie Hilden discusses the ongoing issue of how to accommodate protesters' First Amendment rights with security concerns about terrorism and other acts of violence. Hilden contends that the First Amendment was violated when protesters were relegated to a fenced-in area at the Democratic National Convention. She also argues that generalized bag searches at the Republican National Convention (which a New York federal judge recently forbade) are far preferable to First Amendment violations like those that occurred at the DNC.
Tuesday, Aug. 03, 2004
The Scott Peterson Trial:
Can Prosecutors Win the Case? And If So, How?
FindLaw columnist, attorney, and author Julie Hilden discusses the high-profile, ongoing trial of Scott Peterson -- accused of killing his wife, Laci, and unborn child. Hilden assesses the evidence in the case, with attention to specific items that may cut in favor of the prosecution or defense. She also considers whether, given weaknesses in the case, prosecutors can possibly win -- and suggests a scenario in which they might be able to.
Tuesday, Jul. 20, 2004
The Supreme Court's New Decision on Children and Internet Porn:
How Two Contrasting Views of the First Amendment Split the Court
FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's recent decision on COPA, the Child Online Protection Act. Hilden focuses on two interesting aspects of the decision. One is the odd split it caused on the Court, drawing a line separating liberal from liberal, and conservative from conservative. The other is the way each side of the Court's divide believed it was the one best vindicating the First Amendment.
Tuesday, Jul. 06, 2004
The Dismissed Juror in the Peterson Case:
Why He Should Have Been Kept on the Jury
FindLaw columnist, attorney and author Julie Hilden discusses a recent development in the high-profile California murder prosecution of Scott Peterson. Recently, the judge in the Peterson case decided to dismiss juror Justin Falconer, apparently on the ground that he had become a "distraction" due to media focus on a comment Falconer had made to a relative of the victim, Laci Peterson. Hilden argues that since the comment was found to have been relatively innocuous, the dismissal -- if it was based on media attention -- was an error.
Wednesday, Jun. 30, 2004
Did a Government Lawyer "Aid and Abet" Possible War Crimes By Writing a Crucial Memo?
The Controversy Surrounding Berkeley Law Professor John Yoo
FindLaw columnist, attorney and author Julie Hilden discusses the subject of the protest at the recent graduation at the University of California Berkeley's Boalt Hall School of Law. About a quarter of Boalt graduating students wore red armbands to protest a memo co-written by law professor John Yoo at a time when he was working for the Bush Administration as an attorney in the Office of Legal Counsel. The memo opines that the Geneva Conventions do not protect suspected Taliban or Al Qaeda members. Students have claimed that by writing the memo, Yoo aided and abetted possible abuse and even torture. Hilden evaluates their argument.
Tuesday, Jun. 08, 2004
Why You Can't Sue Google
The Reason Defamation Law Applies to News Sites, But Not News Search Sites, And What This May Mean For the Future
FindLaw columnist, attorney, and author Julie Hilden discusses why the risk of defamation liability is so much greater in the real world, than on the Internet. Citing both a federal statute relevant to the issue, and traditional defamation doctrine, Hilden notes that search sites such as Google, in particular, are immune from defamation liability despite the fact that they widely disseminate information and news. She considers what the liability difference may mean for the future.
Tuesday, May. 25, 2004
Another Reason For Donald Rumsfeld to Resign:
Nondisclosure of Crucial Information Harms the First Amendment
FindLaw columnist, attorney, and author Julie Hilden argues that there is an important First Amendment-related dimension to the Iraqi prisoner abuse scandal. She argues that, in context, the military's decision not to disclose any specifics of the reported abuse, and its effort to delay press disclosure of the abuse, harmed First Amendment values by effectively making the kind of press investigation and public debate the Amendment seeks to foster, impossible.
Friday, May. 14, 2004
The Kobe Bryant Case:
The Court May Have Been Right to Withhold His Accuser's Psychiatric History, But The Law on This Issue Is Wrong
FindLaw columnist, attorney, and author Julie Hilden discusses a recent ruling in the Kobe Bryant criminal case. The trial judge ruled, after a closed hearing on the issue, that Bryant's defense cannot present certain evidence relating to his accuser's psychiatric history -- including, reportedly, evidence of two suicide attemptly shortly prior to the evening on which she says he raped her. Hilden explains why the judge's ruling was a correct interpretation of the law, but argues that the law relevant to this issue should be changed, to make accusers' psychiatric history admissible when their testimony is as crucial as it is here.
Tuesday, Apr. 27, 2004
The FCC Tries To Silence Howard Stern:
Can the Radio Shock Jock Sue?
FindLaw columnist, attorney, and author Julie Hilden discusses the plight of radio shock jock Howard Stern from a legal perspective. Could Stern, who's losing airplay due to FCC pressure, bring a suit against the government based on the federal statute that allows suits to be brought for damages, based on violations of constitutional rights? Hilden explains why such a suit -- though worthy -- would be difficult under a number of current legal doctrines.
Tuesday, Apr. 13, 2004
The Dangers of Underestimating a Smart Jury:
Assessing The Defense In The Stewart Case, Part Two
In Part Two of a two-part series assessing the defense tactics in the Martha Stewart case, FindLaw columnist, attorney, and author Julie Hilden argues that Stewart's attorney, Robert Morvillo, made mistakes in two respects in his summation, and that he also erred in allowing Stewart to have her celebrity friends visit the courtroom. Hilden also contends that all three mistakes boil down to underestimating the jury -- which turned out to be interested exclusively in the evidence, and not in celebrity glamor or Stewart's "home arts" career.
Friday, Mar. 19, 2004
Should Martha Stewart's Lawyer Have Strongly Advised Her to Testify?
Assessing the Defense in the Stewart Case, Part One
In the first of a two-part series of columns on the Martha Stewart defense, FindLaw columnist, attorney and author Julie Hilden examines Stewart's decision not to testify, and the considerations that may have caused Stewart and her attorney, Robert Morvillo, to choose this option. Hilden offers a list of pros and cons of Stewart's taking the stand, and argues that the decision that she wouldn't testify was a reasonable -- and probably corrrect -- one.
Monday, Mar. 15, 2004
When Crime Pays, Who Should Get the Money?
The Suit To Freeze Scott Peterson's Profits From the Sale of His Story
FindLaw columnist, attorney, and author Julie Hilden discusses a ruling ruling in a civil suit related to the trial of Scott Peterson for the murder of his wife, Laci, and their unborn child. In the civil suit, Laci's mother, Sharon Rocha asked the court to put any book or movie proceeds Scott might receive into a trust, so that they would not be spent, pending the criminal trial verdict. In a tentative ruling, the judge refused, but said he will accept additional briefing on the issue. Hilden argues the judge's tentative ruling was correct, and should be made final.
Tuesday, Mar. 02, 2004
How the Janet Jackson "Nipplegate" Scandal Illustrates the Dangers of Chilling Free Speech
FindLaw columnist, attorney and author Julie Hilden discusses the subsequent ramifications of the Janet Jackson/Justin Timberlake Super Bowl stunt from a First Amendment perspective. Hilden argues that evidence of a chilling effect on broadcasts ranging from MTV's video rotation, to the drama E.R., is cause for concern. She also offers ways in which FCC Commissioner Powell's stances on the incident have aggravated the chilling effect, and suggests what Powell could do now to lessen it.
Tuesday, Feb. 17, 2004
Does The Guarantee of a "Prompt" Judicial Decision Apply to Adult Business Zoning Cases?
The Supreme Court Will Decide This Term
FindLaw columnist, attorney, and author Julie Hilden discusses an important First Amendment case in which the Supreme Court will hear oral argument this March. The case raises the issue of what procedures must, under the First Amendment, be afforded to those who are targeted by towns and cities under zoning laws that cover "adult" businesses. It also raises interesting issues as to how the Supreme Court ought to interpret its own precedents when the precedents represent a split among prior Justices.
Tuesday, Feb. 03, 2004
Barring Reporters From Jury Selection:
Why a Recent Ruling in the Martha Stewart Case Was In Error
FindLaw columnist, attorney and author Julie Hilden discusses a recent ruling in the Martha Stewart obstruction of justice/insider trading trial. Hilden contends that the judge overseeing Stewart's case was wrong to order that the courtroom be closed to the press and public during jury selection. Hilden argues that the judge's concerns -- that jurors' names might be revealed, and that they might be inhibited from giving full and frank answers -- can be addressed in other ways, and that the First Amendment press access right is too valuable to be sacrificed this way.
Tuesday, Jan. 20, 2004
Evidence of Prosecution Bias in the Kobe Bryant and Michael Jackson Cases
Why It's Troubling, and What Role It May Play at Trial
FindLaw columnist, attorney, and author Julie Hilden considers evidence of prosecutorial bias in two high-profile criminal cases. In the Kobe Bryant case, Hilden discusses evidence that staffers ordered, and a D.A. received and kept, T-shirts mocking Bryant's defense and depicting a hanged man, in the style of the game of Hangman. In the Jackson case, Hilden chronicles a number of what she argues are highly inappropriate comments by the D.A.. Hilden argues that, in each case, the jury ought to hear the evidence suggesting prosecutorial bias, since that evidence may undermine jurors' confidence as to whether exculpatory evidence has been properly given to the defense.
Friday, Jan. 02, 2004
Bono, Nicole Richie, and The F-Word
The Insanity of Broadcast Indecency Law
FindLaw columnist, attorney, and author Julie Hilden critiques a recent bill in Congress that would forbid the broadcast of eight "dirty words," no matter in what way they are used. Hilden parallels today's controversy over the bill with the controversy reflected in a twenty-five-year-old Supreme Court case involving a monologue by George Carlin. Carlin mentioned that there were seven words one could never say on the radio -- and then proceeded to say all seven on the radio.
Tuesday, Dec. 23, 2003
The Texas Supreme Court's Libel-By-Fiction Case
A Key First Amendment Controversy
FindLaw columnist, attorney, and author Julie Hilden discusses an important First Amendment case on which the Texas Supreme Court recently heard oral argument. The case pits a Texas judge and prosecutor against the Dallas Observer, and, as Hilden explains, involves several interesting issues, including: Can a fictitious article be the basis for a libel suit and if so, when? And, is it the nature of parody and satire to sometimes mimic the original so closely, they are mistaken for it (or for a sequel)?
Tuesday, Dec. 09, 2003
The Supreme Court Considers Whether a Privacy Act Plaintiff Can Recover $1000 Even Without Proof of Damages
FindLaw columnist, attorney, and author Julie Hilden discusses a case to be argued before the Supreme Court on December 3. The case concerns the federal Privacy Act, which prohibits unauthorized disclosures of individuals' private information by the government, and allows individuals adversely affected by such disclosures to sue. The question the Court will resolve is how the damages provision of the Act applies when no actual damages are held to have been proven.
Tuesday, Nov. 25, 2003
Matt Drudge Versus "K Street"
Does the Internet Maverick Have a Claim Against the Boundary-Testing Show?
FindLaw columnist, attorney, and author Julie Hilden considers whether Matt Drudge, of The Drudge Report, might be able to sue the television program "K Street" for using his name, the name of his website, and images of his website in one of its episodes. Hilden suggests that such a suit -- based on a copyright, trademark, or libel theory -- may be more viable than the lawyers for "K Street" seem to believe.
Tuesday, Nov. 11, 2003
Matt Drudge Versus "K Street"
Does the Internet Maverick Have a Claim against the Boundary-Testing Show?
FindLaw columnist, attorney, and author Julie Hilden considers whether Matt Drudge, of The Drudge Report, might be able to sue the television program "K Street" for using his name, the name of his website, and images of his website in one of its episodes. Hilden suggests that such a suit -- based on a copyright, trademark, or libel theory -- may be more viable than the lawyers for "K Street" seem to believe.
Tuesday, Nov. 11, 2003
Breaking the Law to Help Enforce It?
The Student Who Put Boxcutters on Planes
FindLaw columnist, attorney, and author Julie Hilden argues for leniency in the case of Nathaniel Heatwole, the college student who is charged with putting box cutters and other materials in two Southwest Airlines planes, apparently in an effort to call attention to still-lax airline security. Hilden offers three reasons why Heatwole's sentence should be modest, and contends that Heatwole's type of lawbreaking may deserve at least some encouragement, as well as punishment.
Tuesday, Oct. 28, 2003
The Line Between State And Federal Criminal Jurisdiction
Two Recent Murder-for-Hire Decisions Illustrate How Blurry It Can Be
FindLaw columnist, attorney, and author Julie Hilden comments on two recent cases involving the question of when murder-for-hire can be a federal crime. Hilden uses the cases as a lens into the more general question of how our government decides when a crime can be federal -- and critiques the current broad reach of federal criminal statutes.
Wednesday, Oct. 15, 2003
Anonymity Versus Law Enforcement:
The Fight Over Subpoenaing Alleged Downloaders' Names From Internet Service Providers
FindLaw columnist, attorney, and author Julie Hilden discusses the Recording Industry Association of America's fight to enforce a subpoena for the identity of a user alleged to have illegally downloaded over 600 songs in a single day. As Hilden, explains, Internet Service Provider Verizon objected to the subpoena on the ground that it was not authorized by statute, and on the groun that it violated the First Amendment. Hilden critiques the district court's First Amendment ruling.
Wednesday, Oct. 01, 2003
Can the RIAA Truly Give Illegal Distributors "Amnesty"?
And If So, Should They Accept?
FindLaw columnist, attorney, and author Julie Hilden discusses a controversial recent move by the Recording Industry Association of America (RIAA). The group has decided to sue 261 persons across the country whom it believes have allowed others, through the Internet, to access and illegally copy the music files on their computers. The RIAA has offered to settle for about $3,000 with those it has sued, and to grant "amnesty," on certain conditions, to those it might sue in the future. Are these deals attractive, from a legal and strategic point of view? Hilden discusses the considerations in opting for or against them.
Tuesday, Sep. 16, 2003
The California Supreme Court's Recent Decision On DeCSS, the DVD Encryption-Cracking Code:
Its Reasoning and Significance
FindLaw columnist, attorney, and author Julie Hilden discusses a recent, important decision by the California Supreme Court. The decision upheld a preliminary injunction (that is, an injunction for the duration of the case) requiring certain websites to de-post the DeCSS code -- which allows the user to decrypt encrypted DVD movies. The plaintiff alleges that posting the DeCSS code violates trade secret law; website owners argued unsuccessfully that the preliminary injunction violated the First Amendment.
Monday, Sep. 01, 2003
Expanding Discrimination Law To Protect Independent Contractors:
Why It's Crucial to Sex Equality
FindLaw columnist, attorney, and author Julie Hilden discusses a possible extension of discrimination law -- to cover not only employees, but also independent contractors. In particular, Hilden considers whether sex discrimination law should be extended to protect freelance writers, in light of evidence that freelancers for The New Yorker and other publications are predominantly male.
Tuesday, Aug. 26, 2003
Do Americans Have a First Amendment Right to Become "Human Shields" and to Criticize Their Government?
The Case of Faith Fippinger
FindLaw columnist, attorney and author Julie Hilden discusses the Bush Administration's much-publicized recent decision to go after a sixty-two-year-old retired schoolteacher who went to Iraq as a "human shield" and has been vocal in her criticism of the recent Iraq war. Hilden contends that the evidence suggests that the charges against Fippinger are motivated by her speech, not her actions, and thus that she should challenge them as violations of the First Amendment.
Thursday, Aug. 14, 2003
Does A Photographer's Attempt to Sell Cameron Diaz's Topless Photos Back to Her Constitute Extortion?
FindLaw columnist, attorney, and author Julie Hilden discusses an unusal area of criminal law: the law of extortion, which reaches some instances in which a threat is made to disclose information unless money is paid. Hilden considers, specifically, whether California extortion law covers the actions of a photographer who tried to convince Cameron Diaz to buy topless photos he'd taken of her, so that they would not be sold to another buyer.
Tuesday, Jul. 22, 2003
A Recent Supreme Court Decision Allowing the Government to Force Public Libraries to Filter Users' Internet Access Is Less Significant Than It Might At First Appear
FindLaw columnist, attorney, and author Julie Hilden argues the recent Supreme Court decision in American Library Ass'n is less destructive to free speech rights than it seems. She points out that, there, the Court relied heavily on users' option to ask libraries to promptly remove the filters that block them from accessing certain websites -- and that Justice Kennedy's concurrence even invites users to sue if compliance is not prompt.
Tuesday, Jul. 01, 2003
Fear Factor:
Is Art That Can Be Mistaken For Terrorism Protected by the First Amendment?
FindLaw columnist, attorney, and author Julie Hilden discusses an unusual instance of crime and punishment in New York City, and its First Amendment implications. Artist Clinton Boisvert placed dozens of black boxes marked "Fear" in a subway station without permission; the bomb squad was called; and Boisvert was charged with two crimes. Should he have been? Hilden discusses the issues his case raises.
Monday, Jun. 23, 2003
Spike Lee v. Spike TV:
Testing the Limits of Trademark And "Right Of Publicity" Claims
FindLaw columnist, attorney, and author Julie Hilden discusses Spike Lee's recently-filed New York state court suit against Viacom, MTV, and the President of the newly-christened "Spike TV."** Lee argues that the defendants -- who admitted that they chose the name "Spike TV" to connote the image of Lee, among others -- violated his trademark, as well as his right of publicity.* Hilden contends that the suit has more merit than those who've mocked it as megalomania might think.
Monday, Jun. 09, 2003
Murder and "The Matrix":
Has The Movie Caused Violence and If So, What Should We Do About It?
FindLaw columnist, attorney, and author Julie Hilden addresses the trend in which the movie "The Matrix" has been invoked in a surprising number of criminal cases in recent years.* The case range from the Beltway Sniper case, to the Columbine High School shootings, to several less high-profile cases in which insanity pleas have been accepted based on delusions relating to "The Matrix."* Hilden discusses such questions as: Why is the philosophy of "The Matrix" so powerful?* Is it original and unique?* And are the moviemakers in any way culpable for these crimes?
Monday, Jun. 02, 2003
To Make His Defense, Should Zacarias Moussaoui Have Access To Alleged Al Qaeda Members Detained by the Government?
FindLaw columnist, attorney and author Julie Hilden discusses the difficult decision that the judge in the Zacarias Moussaoui case must make, after closed-door hearings conducted last week:* Will Moussaoui, who is representing himself with the aid of standby counsel, be allowed to interview an Al Qaeda prisoner whom he says could aid in his defense, despite the risk to national security?* Hilden describes the legal backdrop, and comments on how the judge's predicament might be resolved.
Monday, May. 12, 2003
The Supreme Court Considers the Boundaries of Anti-Trespassing Laws:
If They are Too Broad, Do They Violate the First Amendment?
FindLaw columnist, attorney, and author Julie Hilden discusses a Supreme Court case to be argued on Wednesday, April 30, Virginia v. Hicks. The case is a First Amendment challenge to a Virginia public housing authority's policy of requiring approval from a housing manager before nonresidents may visit the housing project. Because the plaintiff did not seek to exercise his First Amendment rights, but rather to visit his son, the Court must consider whether he may challenge the policy, which was applied to exclude him from the project.
Monday, Apr. 28, 2003
When Nike Speaks, Is It Always "Commercial Speech"?
The Supreme Court Will Soon Be Asked To Decide
FindLaw columnist, attorney and author Julie Hilden discusses a case on which the Supreme Court will hear argument April 23. The case concerns the dividing line between "commercial speech" (comparatively easy to regulate) and "political speech" (difficult to regulate due to strong First Amendment protections). The specific statements at issue were made by Nike, and concern treatment of foreign workers.
Tuesday, Apr. 15, 2003
Can the Means by Which War Is Covered Be Changed to Be Less Biased?
FindLaw columnist, attorney and author Julie Hilden discusses the controversial topic of reportage on the Iraq war and its bias. She considers questions such as: Is "embedded" journalists' coverage inherently skewed? What is the influence of wartime blogs? What alternative methods of coverage are not now being employed, but might be? Has there been sufficient coverage of the anti-war movement?
Tuesday, Apr. 01, 2003
A Unanimous Supreme Court Decision Means Whistleblowers Can Go After Counties, Not Just Companies
FindLaw columnist, attorney, and author Julie Hilden discusses a recent Supreme Court decision that will make it easier for whistleblowers not only to expose illegality, but to be handsomely rewarded for doing so. The decision allows not only companies, but counties, who are claimed to have cheated the government out of money, to be sued by whistleblowers under the False Claims Act.
Tuesday, Mar. 18, 2003
Should Universities Crack Down on File Swapping?
Why They Should Resist Congress's Call And Fight for Students' Free Speech Rights
FindLaw columnist, attorney, and author Julie Hilden discusses federal legislators' recent requests that universities crack down on students' illegal file swapping. Hilden argues that the two main methods by which schools are likely to crack down would severely impede free speech and education. She also contends that as students' guardians, universities should be protecting them, not helping to prosecute them.
Tuesday, Mar. 04, 2003
If the Supreme Court Holds That Public Libraries Cannot Be Required to Use Software Filters, Are There Other Ways to Protect Children on the Web?
FindLaw columnist, attorney and author Julie Hilden previews some of the issues likely to be raised in an upcoming March 5 Supreme Court argument.* On that day, the Court will consider whether the federal Child Internet Protection Act (CIPA) violates the First Amendment.* CIPA says that public libraries will lose their federal funding if they fail to install software filters, designed to target obscenity and child pornography, on their publicly accessible Internet terminals.
Tuesday, Feb. 18, 2003
"Putin Has Come To Sue You, Dobby":
Does The Russian President Have A Case Against the Obsequious Harry Potter House-Elf?
FindLaw columnist, attorney and author Julie Hilden comments on reports that a major Russian law firm is preparing to sue the creators of the film version of Harry Potter's Dobby character, on the ground that the character too closely resembles Russian President Vladimir Putin. Do the Russians have a basis to sue? Hilden discusses why, surprisingly, they actually might.
Tuesday, Feb. 04, 2003
THE ACLU ON SURVEILLANCE:
DESPITE ITS OVERARCHING ASSESSMENT OF HOW MONITORING HARMS PRIVACY, A NEW REPORT FAILS TO OFFER CONSTRUCTIVE SOLUTIONS
FindLaw columnist, attorney, and author Julie Hilden discusses the report the ACLU issued this month entitled "Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society." Hilden praises the report's synthesis of legal and technological developments relating to privacy, security, and monitoring. However, she takes issues with its conclusions and recommendations.
Tuesday, Jan. 21, 2003
THE OVER-HYPING OF HUMAN CLONING:
WHY THE LEGAL AND ETHICAL ISSUES IT POSES ARE LIKELY TO BE RELATIVELY LIMITED
FindLaw columnist, attorney, and author Julie Hilden discusses the legal and ethical issues human cloning may raise, in the wake of last week's claim that the first cloned human has already been born. Hilden argues that the societal influence of cloning will be modest, and that the influence of a somewhat similar development -- genetic screening -- will be far greater.
Monday, Dec. 30, 2002
WHY OUTGOING CONGRESSMAN GARY CONDIT IS VERY UNWISE TO SUE AUTHOR DOMINICK DUNNE FOR LIBEL
FindLaw columnist, attorney, and author Julie Hilden analyzes the obstacles Gary Condit may face in pursuing his recently-filed libel case against author Dominick Dunne. Hilden contends that even assuming Condit is correct that Dunne falsely insinuated that Condit was connected with Chandra Levy's murder, Condit still, in all likelihood, has only a weak case against Dunne.
Tuesday, Dec. 24, 2002
SHOULD LINKING BE IMMUNE FROM LAWSUITS?
THE CASE IN FAVOR OF A FEDERAL STATUTORY IMMUNITY FOR LINKERS
FindLaw columnist, attorney and author Julie Hilden explains the legal risks that currently come along with a website's decision to link to particular material on another site. Hilden also proposes a broad Congressional immunity for linking, to eliminate these risks.
Tuesday, Dec. 10, 2002
WHEN SELF-CENSORSHIP IS WORSE THAN CENSORSHIP BY THE GOVERNMENT:
HEALTH GROUPS TRY TO CONTROL HOW MOVIES CAN DEPICT SMOKING
FindLaw columnist, attorney and author Julie Hilden assesses the free speech
impact of three new proposals relating to movies and smoking, recently put
forward by health groups. Most prominent among the proposals is this one:
If a movie includes smoking without sending an anti-smoking message, it gets
an "R" rating.
Tuesday, Nov. 26, 2002
THE SUPREME COURT CONFRONTS CROSS-BURNING AND THE FIRST AMENDMENT ONCE AGAIN, BECAUSE IT FAILED TO MAKE THIS KNOTTY AREA OF LAW CLEAR THE FIRST TIME
FindLaw columnist, attorney and author Julie Hilden explores a difficult
question the Supreme Court has so far avoided: Can a state or city prohibit
cross-burning without violating the First Amendment? As Hilden discusses,
ten years ago, the Supreme Court rejected St. Paul's anti-cross-burning
statute, and in a case soon to be argued, it may well reject Virginia's, as
well.
Friday, Nov. 15, 2002
A "COMPLETE INFORMATION BLACKOUT," PART TWO:
DISAGREEMENT BY COURTS ON THE CLOSURE OF IMMIGRATION
HEARINGS
MAKES SUPREME COURT REVIEW LIKELY
In Part Two of a two-part series, FindLaw columnist, attorney, and author
Julie Hilden discusses two recent, contradictory federal appeals court
opinions on this question: Can the government, through a blanket closure
order, deny media and public access to all 9/11-related deportation hearings?
Hilden explains the relevant Supreme Court-mandated First Amendment test,
and how each court applied it.
Tuesday, Oct. 29, 2002
A "COMPLETE INFORMATION BLACKOUT," PART ONE:
A FEDERAL COURT OF APPEALS DECISION DENIES MEDIA ACCESS
TO ALL
IMMIGRATION PROCEEDINGS RELATING TO 9/11 WITNESSES
In Part One of a two-part series, FindLaw columnist, attorney, and author
Julie Hilden discusses the recent, historic decision by the U.S. Court of
Appeals for the Third Circuit to uphold a government directive broadly
denying access to immigration proceedings. The proceedings concern aliens who
the government believes had a connection to, or knowledge of, the 9/11
attacks. Hilden argues that the decision was far more a creature of improper
judicial policymaking than of law.
Tuesday, Oct. 15, 2002
AN INTERVIEW WITH INTERNET LAW EXPERT LAUREN GELMAN
In this Q&A, FindLaw columnist Julie Hilden asked ten written questions to
attorney Lauren Gelman, who is the Assistant Director of the Center for
Internet and Society at Stanford Law School. In her detailed responses,
Gelman explains the issues in the Supreme Court case of Eldred v. Ashcroft,
which concerns copyright extension legislation, and will be argued today,
October 9. Gelman also discusses a creative form of protest against
copyright extension: a Bookmobile -- offering free, public domain e-book
Books such as Alice in Wonderland to children -- whose travels around the
country will culminate at the Court's doorstep.
Wednesday, Oct. 09, 2002
RETHINKING THE RIGHT TO REMAIN SILENT:
WHY THE GOVERNMENT IS AFRAID TO ADMIT THAT
AMERICAN CITIZEN JOSE PADILLA HAS CONSTITUTIONAL RIGHTS,
AND HOW ITS DILEMMA CAN BE SOLVED
FindLaw columnist, attorney, and author Julie Hilden offers a novel solution
to the controversy over the government's refusal to recognize the rights of
Jose Padilla -- an American citizen who was arrested in America, on suspicion
that he conspired with Al Qaeda members to plant a "dirty bomb" here. Is
there some way that the government can respect Padilla's rights as a citizen
without, as a result, losing the ability to force him to provide crucial
information? Hilden suggests the answer is yes.
Tuesday, Oct. 01, 2002
SHOULD POSSIBLE ANTHRAX SUSPECT
STEVEN HATFILL, WHO MAINTAINS HIS INNOCENCE,
USE LIBEL SUITS TO GET MORE INFORMATION
ABOUT THE CLAIMS AGAINST HIM?
FindLaw columnist, attorney and author Julie Hilden offers a new strategy for
Mark Hatfill, the government scientist who lost his research job after the
Justice Department named him as a "person of interest" in the anthrax letters
investigation. So far Hatfill's attorney has asked for an apology, and asked
for the government's help in finding Hatfill a new job. Hilden suggests,
however, that a more effective strategy might be for Hatfill to start filing
a series of libel suits, which could help him find out the substance of the
claims against him and, if he is innocent, rebut them.
Monday, Sep. 16, 2002
NINE MUST-READ LEGAL BOOKS AND ONE ESSENTIAL LEGAL BLOG
FindLaw book reviewer, attorney and author Julie Hilden recommends and
describes nine books on or related to the law, as well as a particularly
interesting legal blog. Hilden eschews classics like Democracy and Distrust
in favor of some less-noted but valuable works, and some she believes are
more contemporary, or more visionary.
Friday, Sep. 13, 2002
THE "CLEAN FLICKS" CASE:
IS IT ILLEGAL TO RENT OUT A COPYRIGHTED VIDEO
AFTER EDITING IT TO OMIT "OBJECTIONABLE" CONTENT?
FindLaw columnist, attorney, and author Julie Hilden discusses a recent
lawsuit against some of the country's most well-known directors -- from
Steven Spielberg to Steven Soderbergh. The plaintiff is a small video rental
chain called Clean Flicks, which is seeking a declaration that its editing
movies for sex, violence, and "bad" language before it rents them out is
legal. Hilden assesses the arguments for both sides -- including the
argument that Clean Flicks's editing falls within the "fair use" exception to
the copyright laws.
Tuesday, Sep. 03, 2002
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