For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2017 Media Law Resource Center, Inc. 520 Eighth Avenue, North Tower, 20th Floor, New York, New York 10018 (212) 337-0200 MediaLawLetter Reporting Developments Through November 29, 2017 MLRC From the Executive Director’s Desk: MLRC Fall Events Round-Up ......................................................... 03 Dinner, Forum and Host of Meetings Make for a Busy New York Week MLRC Annual Dinner: Program Highlights ................................................................................................ 08 DCS Annual Meeting Reviews Accomplishments and Plans for 2018 ........................................................ 37 Ten Questions to a Media Lawyer: Jon Fleischaker .................................................................................... 48 LIBEL & PRIVACY Second Circuit Affirms Dismissal of Sheldon Adelson’s Suit Against National Jewish Democratic Council .............................................................................................................................................................. 13 Important Precedent for Application of Fair Report Privilege in the Internet Age Adelson v. Harris D.C. Cir.: “The Twists and Turns” of a Libel Case vs. Jim Risen’s “Pay Any Price” .............................. 17 Protected Opinion, Insufficient Showing of Falsity, and No Actual Malice Montgomery v. Risen and Houghton Mifflin Harcourt Publishing Co. MLRC’s 2017 Forum: “Is Libel Back?” ........................................................................................................ 21 Cal. App.: Court Affirms Dismissal of Defamation Suit Over Models’ Online “Blacklist” ..................... 23 Plaintiff Failed to Adequately Deny Accusations of Sexually Inappropriate Behavior Brenner v. Hill 1st Cir. / Cal. App. First Circuit Affirms Dismissal of Cosby Accuser Defamation Suit ......................... 24 California Court Allows Similar Suit to Go Forward McKee v. Cosby; Dickinson v. Cosby Michigan Court of Appeals Affirms Dismissal of Defamation Suit Brought by White Supremacist ...... 27 “A Man is Known by the Company He Keeps” Edwards v. Detroit News, Inc. For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2017 Media Law Resource Center, Inc. Page 2 November 2017 MLRC MediaLawLetter Sixth Circuit Affirms Dismissal of Publicity Claims Against Online Book Publishers ............................. 30 Plaintiffs Image Had No Commercial Value to Sustain Claim Under Ohio Law Roe v. Amazon ACCESS FISA Court Rules ACLU & Yale Information Clinic Have Standing to Seek Access to Redacted Opinions ............................................................................................................................................................ 32 Movants Asserted Sufficient Injury-in-Fact for Standing In Re Opinions & Orders Addressing Bulk Collection of Data Under FISA INTERNET PRIVACY District of Columbia Court Restricts Government Access To Website Used by Trump Protesters ....... 36 Government Alleged Website Was Used to Organize Protests In the Matter of the Search of www.disruptj20.org 15TH ANNUAL ENTERTAINMENT & MEDIA LAW CONFERENCE LOS ANGELES | JANUARY 18, 2018 EGO, CELEBRITY, DISCRIMINATION, AND SOCIAL MEDIA Entertainment & Media Law in the Trump Era Trump, Media & Entertainment: Coping with Chaos Rights of Publicity (or, How to Gaslight a Media Attorney) Entertainment, Discrimination, and the First Amendment Torts and Tastemakers: Adventures in Influencer Advertising For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2017 Media Law Resource Center, Inc. MLRC MediaLawLetter November 2017 Page 3 From the Executive Director’s Desk MLRC Fall Events Round-Up Dinner, Forum and Host of Meetings Make for a Busy New York Week It’s an old adage around the MLRC office that the second week of November is the busiest week of the year for us. That may well be true, but for me, more importantly, it’s the most interesting and gratifying, indeed, the best. This year, as in the past, six MLRC events and meetings were scheduled in the Wednesday-Friday of what was once called “PLI week” – now, appropriately, perhaps called “MLRC Annual Dinner week.” In addition to the PLI conference itself and meetings of other organizations – all of which bring media lawyers from all over the country to New York – this makes for a teeming schedule. But first a little history. Jim Goodale, then GC of the New York Times, started the PLI Conference in 1973. At that time, there was no MLRC or even LDRC. (The Libel Defense Resource Center, the forerunner to our present organization, was born in 1980.) Jim started it as a way to bring what was then a very small media bar together, both in the interests of collegiality and, more important, common strategies. As far back as I can remember, the PLI Conference was always on the Thursday and Friday of the second week of November. (I recall, as a young associate, what a status symbol it was just to be asked by my firm to attend the conference for a day.) Then, sometime in the 1980’s, the LDRC came up with the bright idea of scheduling its steering committee’s annual meeting and George Freeman later a fundraising dinner during that week, since so many members were in New York anyhow. In 1992 came the first Brennan award dinner – in the Starlight Room of the Waldorf Astoria – but soon we grew out of that space. Former Justice Brennan appeared at the 1992 dinner, and the award in his name and honor was unveiled. Some enmity grew between the principals of PLI and the LDRC, because PLI felt that the LDRC was free-riding on its successful conference. I was never sure whom that hurt, however; over time the synergy has clearly aided both organizations. And, indeed, now the MLRC Dinner draws about twice as many people as does the PLI Conference. But, in addition to making sense to have these two events on back-to-back days when lawyers congregate in New York, over time more and more meetings – both of the MLRC and other organizations, such as the ABA Forum on Communications Law – were scheduled for the same few days, leading to a cornucopia of meetings, meals and receptions. By Friday night, many attendees, fully sated by food and drink and exhausted by all the information fed into them at the various programs and meetings, stagger home. From the MLRC point-of-view, this year the festivities began with our open Annual Board Meeting Wednesday afternoon. This is our only Board meeting which is open to all members. A few interested souls came; interestingly, our newly-founded Insurance Committee – whose start -up has been very successful – held a welcome reception at the hotel bar at the same time. The (Continued on page 4) For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2017 Media Law Resource Center, Inc. Page 4 November 2017 MLRC MediaLawLetter Panelists and MLRC leadership at the Annual Dinner. Left to right: George Freeman, Katy Tur, Ari Fleischer, Mark McKinnon, Dana Perino, Joe Lockhart and Lynn Oberlander (Continued from page 3) Board meeting started with the election of Ted Lazarus of Google to the Board. MLRC staffers David Heller, Jeff Hermes, Michael Norwick and Jake Wunsch all reported on our conferences and activities. I noted that fiscally, this has been a tough year, and that I expected to end the year only slightly above break-even, but reminded the Board that that was the result we budgeted a year ago; in general, though, I concluded that the number of members had grown slightly and that the state of the MLRC is strong. Finally, we feted Debby Seiden, who is retiring after 17 wonderful years as chief Administrator of the MLRC. More than just ensure that our trains run on time and that we don’t spend any excess pennies, which she does, Debby has graced our office with dedication, loyalty, smarts and a lovely personality, and has been involved in every aspect of the MLRC’s activities, from office maintenance to suggesting and soliciting sponsors for conferences, and from setting agendas for our various board meetings to dunning late payers. Indeed, I noted that just with respect to the upcoming Annual Dinner, Debby took care of matters as varied as assigning everyone a table and getting gifts for our dinner panelists. Liz Zimmermann, who we are lucky to have found as Debby’s successor, was then introduced to the Board. Following the Board meeting came the Forum on the timely subject “Is Libel Back?” Although the MLRC tracks trials, and not filings, we certainly seem to feel an increase in the number of libel suits in the last year, and an even more pronounced increase in cases against the major media outlets, which, at least anecdotally, have had very few suits filed against them in (Continued on page 5) For exclusive use of MLRC members and other parties specifically authorized by MLRC. © 2017 Media Law Resource Center, Inc. MLRC MediaLawLetter November 2017 Page 5 Six hundred MLRC members and friends gathered at the Grand Hyatt for the Annual Dinner (Continued from page 4) the last decade. In addition, we were anxious to discuss the recent over $200 million settlement by ABC in the Pink Slime case, and what analysis supported such a huge payout. While, as moderator, I posited that much of this may well be due to the President’s daily bashing of the media and his undermining of its credibility and minimizing of its role at every turn, the panelists tended to disagree