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Legal news from Sunday, August 28, 2011




Missouri judge blocks law banning teachers from using social media with students
Aman Kakar on August 28, 2011 3:58 PM ET

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[JURIST] Cole County Circuit Court of Missouri [official website] issued a preliminary injunction [order, PDF] on Wednesday enjoining the State of Missouri [official website] from implementing Missouri Revised Statutes § 162.069.4 [text, PDF], which prevents students and teachers from communicating through social networking sites that cannot be accessed by school administrators or parents. Circuit Judge Jon Beetem ruled that the statute implicated the First Amendment rights of teachers and described the breadth of prohibition as "staggering." The Court found that social networking is used extensively by teachers, and often is the primary if not the sole medium of communication between teachers and students or parents. The Court concluded that the chilling effect the statute would have on speech and that public interest is best served by allowing a trial and ruling on the merits before the statute is implemented. The Missouri State Teachers Association (MTSA) [official website] expressed their approval of the injunction citing that the injunction "gives everyone time to debate and discuss the issue to come to a proper resolution rather than rushing to piece together language that doesn't resolve the concerns of educators or allow time for teacher input." Meanwhile, Governor Jay Nixon [official website] announced [press release] plans on Friday to ask the General Assembly to repeal statute 162.069, sections 1 through 4, due to substantial confusion among teachers, students and families. The injunction is set to expire on February 20, 2012.

The social media law is a part of Senate Bill 54, also known as Amy Hestir Student Protection Act [materials]. The bill passed both the House of Representatives and the Senate during the regular legislative session. MTSA filed an action on August 19 opposing the prohibition of social media because it would inhibit the ability of the teachers to communicate with students through social media sites such as Facebook and through text messaging.




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China grants immunity to foreign nations in Hong Kong courts
Dan Taglioli on August 28, 2011 3:00 PM ET

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[JURIST] China's National People's Congress (NPC) [official website] on Friday adopted an interpretation of certain articles of the Basic Law [text] of the Hong Kong Special Administrative Region [official website], removing lawsuits against sovereign nations from the jurisdiction of Hong Kong courts. The Standing Committee [official website] of the NPC adopted an interpretation that "stipulates that Hong's Kong's laws concerning rules on state immunity must be 'consistent with the rules or policies on state immunity that the central government has adopted.'" Unlike much of the world's nations, China recognizes absolute sovereign immunity [Xinhua report] in its courts, even in cases purely involved with business dealings. The official interpretation passed on the last day of the three-day bi-monthly session of the NPC Standing Committee, and was derived from a 2008 lawsuit filed in a Hong Kong high court. US-registered FG Hemisphere Associates LLC had named the Democratic Republic of the Congo as a defendant in its legal proceedings in the court, and the country claimed that Hong Kong courts do not have jurisdiction over Congo as a sovereign nation. In June 2011, the Hong Kong Court of Final Appeals [official website] made a provisional judgment, stating that Hong Kong should follow the rules on state immunity that the central government has adopted, granting Congo its claimed immunity from jurisdiction. However, because the central government has the final say on Hong Kong issues relating to foreign affairs, the Court of Final Appeals believed it needed to seek an interpretation from the legislature [WP report] before issuing its final judgment. The NPC Standing Committee Legislative Affairs Commission largely adopted the court's ruling, and the court will now make its final judgment on the basis of its decision.

FG Hemisphere Associates has sued Congo and certain corporations in courts in several nations around the world. The company is attempting to recover over $100 million owed for a series of power stations built in the 1980s. The US does not recognize sovereign immunity for foreign nations in all cases involving business transactions. In March, the US Court of Appeals for the District of Columbia Circuit ruled [opinion, PDF] on Congo's appeal from a district court decision in FG Hemisphere Associates' favor, which the appellate court affirmed. US courts often deny sovereign immunity. In February, a federal judge ruled that former Somali prime minister and defense minister Mohamed Ali Samantar was not entitled to immunity from civil lawsuits [JURIST report]. Samantar, who had lived in the greater Washington, DC, area for more than 15 years, was sued in 2004 by two Somali men who alleged he spearheaded a campaign of ethnic repression against the northern Somali Isaaq clan during his tenure in office. Immunity was also denied in a clergy abuse case against the Vatican [JURIST report] in January.




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First Circuit upholds right to record public police action
Aman Kakar on August 28, 2011 2:55 PM ET

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[JURIST] The United States Court of Appeals for the First Circuit [official website] Friday ruled [opinion, PDF] that there is a clearly-established First Amendment [Cornell LII backgrounder] right to film police officers performing their duties in a public space. The case stems from a 2007 incident, when police officers arrested Simon Gilk after he openly recorded three police officers arresting a suspect on the Boston Common. Circuit Judge Kermit Lipez, speaking for the unanimous three-judge panel, rejected the officers claim that they had qualified immunity since the law regarding recordings of police action is not well-settled. The opinion recognized that the undoubted right to gather news from any source, by means within the law, is an important corollary to the First Amendment saying:
The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information. ... The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs.
Lipez cited well established case law and stressed that the right to gather news is not one that inures solely to the benefit of the news media but also extends to a private individual. The Court recognized that the right to record is not without limitations and is subject to reasonable time, place, and manner restrictions. The Center for Constitutional Rights [advocacy website] filed an amicus brief [PDF] arguing that concerned individuals and Copwatch groups have a right to record the activity of police in the public.

The police officers arrested Gilk and charged him with violating of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The Commonwealth dropped the last charge recognizing that they did not have probable cause. The other two charges against Gilk were also dismissed by a Boston Municipal Court. In February 2010, Gilk filed a complaint under 42 USC § 1983 [text] for violation of Gilk's First Amendment and Fourth Amendment rights. The officers appealed to the First Circuit court after the district court denied the officers motion to dismiss the case because the officers had qualified immunity.




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Federal judge rules punitive damages available against BP in claims over oil spill
Dan Taglioli on August 28, 2011 10:20 AM ET

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[JURIST] The US District Court for the Eastern District of Louisiana [official website] Friday ruled on motions to dismiss made by British Petroleum (BP) [corporate website] and other defendants in litigation [materials] over the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. Among other issues, Judge Carl Barbier ruled [order, PDF] that all state law claims in the case are preempted by federal maritime law and should be dismissed, but that the same general maritime law makes punitive damages available. Since admiralty jurisdiction is present is the case, it requires application of substantive maritime law. BP and the other companies claimed the US Oil Pollution Act (OPA) [EPA backgrounder] intervenes, and its silence on punitive damages should prevent plaintiffs from any such collection. Judge Barbier disagreed:
OPA does not mention punitive damages; thus, while punitive damages are not available under OPA, the Court does not read OPA’s silence as meaning that punitive damages are precluded under general maritime law. Congress knows how to proscribe punitive damages when it intends to... Thus, OPA does not displace general maritime law claims for those Plaintiffs who would have been able to bring such claims prior to OPA's enactment. These Plaintiffs assert plausible claims for punitive damages against Responsible and non-Responsible parties.
Judge Barbier also ruled that owners of boats damaged during cleanup efforts may proceed under federal oil pollution law, as may corporate claims over lost revenue due to the subsequent government moratorium on deep-water drilling in the Gulf of Mexico. Dismissed claims for economic loss brought by individuals and businesses under state law still may be pursued under federal maritime and environmental laws.

Last month Judge Barbier dismissed [JURIST report] consolidated racketeering claims against BP in connection with the spill brought under the US Racketeer Influenced Corrupt Organizations (RICO) [text]. In February, Mississippi Attorney General Jim Hood [official website] asked the district court to order the Gulf Coast Claims Facility (GCCF) [official website] to fulfill its legal obligations to aid victims of the spill and to remedy inadequate claims mechanisms [JURIST report]. The GCCF began processing claims in August following the completion of negotiations [JURIST reports] between BP and the US Department of Justice (DOJ) [official website]. Former Alabama Attorney General Troy King filed a lawsuit [JURIST report] in August of last year against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July 2010, a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. One month prior, US Attorney General Eric Holder [official website] announced that the DOJ would review whether any criminal or civil laws were violated [JURIST report] by BP.




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