Cultivated Compendium

Courthouse News reported on a Media Law Resource Center study led by Staff Attorney Michael Norwick and on which I assisted:  "Libel and privacy cases against the media continue to drop, and cases against print outlets that lead to verdict-ending trials are also declining steadily, a nonprofit dedicated to press rights reported.

The Media Law Resource Center's 2014 Report on Trials and Damages says that 12 new cases against media defendants went to trial during the last study period - seven in 2012 and five in 2013.

This is a 37 percent drop from the 19 cases reported during 2010-11, and a reduction by more than half in the average of number of cases per year from 2000 to 2010.

'This continues a long-term trend of reduced numbers of trials over the decades,' [according to ]the report.

Interestingly, half of the 12 recent cases originated in Virginia. Although this may be an anomaly, the report sees a possible explanation in the fact that the availability of summary judgment in Virginia state courts is very limited. Summary judgment can be granted only on the basis of the pleadings there, as no affidavits are permitted to support such a motion.

It is particularly difficult to win summary judgment in defamation cases in Virginia because the commonwealth's Supreme Court has said that 'only if a plaintiff unequivocally has admitted the truth of an allegedly defamatory statement, including the fair inferences, implications, and insinuations that can be drawn from that statement, may the trial judge award summary judgment to the defendant on the basis that the statement is true.'"

After Politico reported that Washington Post reporter Barton Gellman says he's been told his telephone records were obtained by a national security letter, Julian Sanchez posted on Just Security that there at least two ways in which a national security letter would appear to strain the limits of the authority from the only NSL statute allowing for access to telecommunications records.

"First, §2709 may only be used in connection with an 'authorized investigation to protect against international terrorism or clandestine intelligence activities,'" Sanchez writes. "Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of 'clandestine intelligence activities.'"

Second, Sanchez writes, "a clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation 'provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.' The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities."

As the U.S. Supreme Court takes up the fraud-on-the-market theory underpinning most securities fraud class actions, the Wall Street Journal asks if this sort of class action will become an endangered species and if the "balance of power between companies and the lawyers who sue them" will be rebalanced.

Under the fraud-on-the-market theory, shareholders don't have to show a direct connection between the alleged fraud and their losses, WSJ reports. Instead, the theory is that stock proices reflect all relevant information, including fraudulent information.

Analysts predict that there may very well be five votes on the court to overturn 1988 precedent that approved the theory, WSJ also reports.

The National Security Agency needs to keep phone-call metadata longer than the five-year limit in order to preserve evidence for the civil lawsuits challenging the legality of surveillance, the Justice Department said in a court filing Wednesday, The Hill reports. "'The United States must ensure that all potentially relevant evidence is retained,'" government lawyers said, according to The Hill. The government does say the records would be kept for "non-analytical purposes."

Arizona Governor Jan Brewer, a Republican, vetoed legislation that would have allowed conservative religious business owners to refuse to provide services to same-sex couples regarding their marriages, such as wedding photography, wedding cakes and flowers, The Washington Post reports. In deciding to veto the legislation, Brewer said, "'I have not heard of one example in Arizona where business owners' religious liberty has been violated. The bill is broadly worded, and could result in unintended and negative consequences,'" The Post reports.

The legislation was created "in response to a ruling by the New Mexico state Supreme Court against a wedding photographer who declined to work for a couple's same-sex wedding," The Post further reports.

A federal judge has issued a preliminary injunction of Texas' state constitutional ban on same-sex marriage, the Associated Press reports.

It appears that Judge Orlando Garcia may have applied the lowest level of constitutional scrutiny, rational basis, in reaching the decison. According to the AP, Garcia opined: "'Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. These Texas laws deny plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex.'"

That means that Garcia didn't even have to find that being LGBT is a classification that would trigger a higher, more protective standard of review.

The Supreme Court did not grant certiorari in appeals over allegedly defective washing machines that accumulated mold, The Wall Street Journal reports. "The court's decision to stay out of the dispute marks a breather for justices who in recent years have issued a string of rulings disallowing class-action cases," WSJ notes. The Seventh Circuit and Sixth Circuit held that the lawsuits could be certified as class actions because they involved a uniform design defect.

Two Supreme Court watchers got into a bit of a tit-for-tat this week on the eighth anniversary since Justice Clarence Thomas last asked a question from the bench.

Jeffrey Toobin opined that Thomas' famous habit of not asking questions during oral arguments is "disgraceful" because "they are, in fact, the public's only windows onto the Justices' thought processes, and they offer the litigants and their lawyers their only chance to look thse arbiters in the eye and make their case."

Then Adam Liptak wrote that "the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision."

Most interesting to me in all of this is Liptak's analysis of how Thomas might treat stare decisis in a case that could shape the future of securities class actions. At issue is the viability of the "fraud on the market" theory and the presumption that a company's stock price reflects all important publicly available information. If the case gets overturned, then securities class actions will likely be extinct.

The defendants argue the precedent in the case deserves less adherence because it involves "'largely a procedural and evidentiary construct.'" Liptak closes his piece with the comment that "we will have to wait until the court decides the case, probably in June, to see how just how weak [Thomas'] 'affinity for stare decisis' is."