Tag Archive: Bloggers

Breitbart: Defense After Death

The conservative blogger, Andrew Breitbart, passed away due to natural causes outside of his Los Angeles home.  Breitbart gained notoriety by being the first to post semi-nude photographs of Anthony Weiner.  The postings lead to Weiner’s resignation from his position as a congressman. More recently, Breitbart has been the lead defendant in a closely-watched defamation lawsuit in Washington. Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart and Larry O’Connor, accusing them of making defamatory claims of racism against her by posting a edited clip of a speech she gave to a NAACP group.  O’Connor, Editor-in-Chief of Breitbart.tv and Breitbart denied the alleged wrongdoing, claiming the posted clip was protected under the First Amendment.

In house counsel for Breitbart’s Big Journalism Joel Pollack suggests in an interview that even though Breitbart has passed away, he believes this will not have much of an effect on the defense against the suit brought by Sherrod. Michael Rothberg of  the firm Dow Lohnes said, “If the defendant had a very good story to tell, and would be a very good witness, then not being able to tell that story to a jury is going to be harmful.” It is clear that the death of Andrew Breitbart will have an impact on the defense against Sherrod’s defamation suit, but since there is a co-defendant that might be able to tell Breitbart’s story, it is unclear what the impact will be.

Standing on the Shoulders of Giants

The Defenders is a new series on CBS about two defense attorneys in Las Vegas, Nick Morelli (Jim Belushi) and Pete Kaczmarek (Jerry O-Connell). In the most recent episode, “Whitten v Fenlee,” airing Wednesday, November 17, 2010, Pete defends a well-known blogger, Aaron Ayles. Ayles’ blog, The Truth Hurts More, exposed how a famous illusionist in Las Vegas, Collin Pettigrew, performed the final act in his magic show. Pettigrew sues Ayles for violation of the Nevada Uniform Trade Secrets Act. The court subpoenas Ayles for the name of the source who revealed Pettigrew’s secret, so Ayles comes to Pete for help.

Nevada’s Journalism Shield Law, NRS 49.275 does not apply to internet media by its text.

NRS 49.275 News media. No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner’s inquest, jury or any officer thereof.
2. Before the Legislature or any committee thereof.
3. Before any department, agency or commission of the State.
4. Before any local governing body or committee thereof, or any officer of a local government.
(Added to NRS by 1971, 786; A 1975, 502)

First, Pete files a motion to quash the subpoena and argues that the journalism protection provided by NRS 49.275 should be extended to bloggers. Pete tries to convince the Judge by asserting that bloggers are now granted  White House press credentials, and also receive major media awards for their work. The Judge denies the motion to quash the subpoena, stating that while he is sympathetic to the intent of the law, he is bound by the text of the statute, which clearly does not extend to internet media.

Pete then seeks out other magicians in Las Vegas to find out if Pettigrew’s illusion is truly original. The magicians tell him that almost all magic tricks are borrowed and modified. However, they claim that Pettigrew’s final act is original, because no one knows of an antecedent trick.

Feeling defeated, Pete tries to get Ayles to reveal his source, but Ayles is determined to improve the journalistic credibility of bloggers, and refuses to give up his source. Then Ayles’ source comes forward on his own accord. A magic shop owner and magic historian, Reuben Charters (Penn Jillette), agrees to testify on Ayles’ behalf.

At trial, Charters reveals that Pettigrew was once his student. Pettigrew bought an extremely rare book from Charters that contained the secret to an exceptional illusion, Pettigrew’s final act. Charters’ revelation showed that there was no violation of the Nevada Uniform Trade Secrets Act, because there was no trade secret to begin with. Pettigrew’s illusion was just a modified derivation of another brilliant magician’s illusion. The case is dismissed on these grounds, as Charters tells the Judge that Pettigrew had no secret of his own, but was “standing on the shoulders of giants.”

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