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[khaosworks]

From AMERICAblog:

Thursday, November 09, 2006
CNN tells YouTube to pull down video outing GOP party head Ken Mehlman
by John in DC - 11/09/2006 02:24:00 PM

I just got a cease-and-desist letter from YouTube, see below, regarding my CNN footage I posted. The footage, you'll recall, was from Larry King Live last night in which Bill Maher outed Republican Party chair Ken Mehlman as gay. It seems that CNN has suddenly decided that it no longer wants bloggers, or YouTube, posting any of its video, which is kind of surprising since I always thought we were doing a CNN a favor by constantly touting their network. Apparently I was wrong.

NOTE: You can still see the entire video on Huff Post.

CNN has also now edited the official transcript of Larry King Live, so that no one will ever know what really happened. Here is CNN's transcript:

    MAHER: A lot of the chiefs of staff, the people who really run the 
underpinnings of the Republican Party are gay. I don't want to
mention names, but I will on Friday night.

    KING: You will Friday night?

    MAHER: Well, there's a couple of big people who I think everyone 
in Washington knows who run the Republican...

    KING: You will name them?

    MAHER: Well, I wouldn't be the first. I'd get sued if I was the first. 
(A PORTION OF THIS TRANSCRIPT HAS BEEN REMOVED)

    KING: Great way to close out this segment. It's poignant.

CNN didn't just edit out the naming of Mehlman as gay, they even edited out Larry's question, and Maher's answer, about why gay people sometimes work against their own people. Now why is that question being censored by CNN?

More...

To be fair on CNN, the reason they probably pulled the piece isn't because of censorship but because it's defamatory, and they can get sued as a republisher. Now, I'm not sure whether there's been any case law for a situation where a republisher takes their stuff off the stands, but someone steals the content and puts it up anyway (fair use or no), and liability can still be established, but I don't think CNN would want to take the risk and the cost of litigation over a throwaway remark by Maher.

Comments

[kungfoogirl.livejournal.com]

Hee. My first thought is that truth is an absolute defense to libel. ;)

Maher was guest on the show, not a CNN employee, that should shield them from any liability.

And I think that because the subject of the alleged libel is a public figure, the plaintiff would need to prove malice. They'd have to show that CNN knew that this wasn't true and published it anyways OR that they published it with a reckless disregard for the truth. Under the circumstances, I think that would be hard to prove, right?

Maher, on the other hand, is the one that's really at risk here.

Perhaps I, of all people, shouldn't be saying a WORD about this. But it's too interesting of an issue to not talk about! Legal concerns at CNN because someone called someone else gay. I'm trying to think of a more relevant case, but I can't think of it.

[khaosworks.livejournal.com]

New York Times v. Sullivan does establish the public figure defence, but I don't believe it's been tested with a third party republisher (my US defamation case law is rusty... I have this vague memory of the Prodigy and Compuserve lawsuits in the early 90s, but can't recall off-hand the results).

That Maher is not a CNN employee is a separate issue; he made a libellous statement, and if CNN continues to "publish" it, it might be liable. Letting it on air "live" once might be permissible, but to continue airing it and publishing it may qualify for "reckless disregard".

[kungfoogirl.livejournal.com]

My business law text is really light on the subject of publication. =(

But it seems that if CNN is not the one continuing to publish it, then one of the key elements is missing. Wouldn't that mean that they're not responsible? I could perhaps see someone arguing that CNN is still responsible since the subsequent publications wouldn't have been possible had CNN not first aired the segment.

[khaosworks.livejournal.com]

Yes, which is why I suggested in the original post that CNN probably doesn't want to risk time and money on potential litigation.

[shannachie.livejournal.com]

Hmmm... sometimes difficult to understand for an outsider. The Lord Mayer of Berlin is gay. Our formost oppsition leader is gay. It's no secret. They are quite open about it. Nobody cares a bit.

[tnatj.livejournal.com]

*sigh*

At any given time, for any given situation, between 40% to 60% of the US Population believes that being gay or having a gay life-style curtails or circumscribes one's autonomy as a human being. That includes holding public office, being in positions of (governmental) influence, or even the right to enter into contracts afforded to those who grew up to be heterosexual.

It is a different cultural milieu: to these folks, the European experience is irrelevant. And, when put to it, they take it as an affront to their sensibilities.

re: these guys

[etherial.livejournal.com]

Are these guys trying to ban gay marriage?

[madfilkentist]

This sounds like a severe case of post hoc barn door locking. If CNN is trying to conceal the fact that they ran the piece, it's hopeless. Or perhaps they think they can be held liable if they don't aggressively hunt down every copy of the video on the Web? (That's not entirely a rhetorical question, as law can be strange.)

[tnatj.livejournal.com]

And of course, the well-publicized cease-and-desist letter will only pique the interest of the folks who consider this sort of thing important.