After Gawker was forced to remove excerpts of Sarah Palin's new book (in stores tomorrow), legal bloggers are looking at the blog's argument that posting over a dozen scanned pages of the books was fair use. The former vice presidential candidate and Alaska governor complained about the leak (questioning the legality), and publisher Harpers Collins sued Gawker, eventually getting a judge to order the site to take them down. Politico's Ben Smith rounded up a few legal bloggers' thoughts...and they seem to back Palin:
Writes Eric Johnson
: "[M]y initial, very strong, reaction is no, it’s not fair use. There is actually a U.S. Supreme Court opinion remarkably close on the facts. In Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the high court held that Nation magazine’s unauthorized advance publication of excerpts of Gerald Ford’s soon-to-be-released A Time to Heal: The Autobiography of Gerald R. Ford, did not qualify as fair use."
William McGeveran: "Palin was right."
Garry Wise: "Unfortunately for Gawker, they're very likely in the wrong."
And Cornell's William A. Jacobson sees it as an avenue for Palin to go after some of the bloggers who dislike her: "It's called discovery. In a litigation your lawyers are entitled to e-mails, and all Gawker's internal documents regarding not only this theft, but you. Because you will want to prove that their intent was to harm you and damage you, so everything they ever have written off-the-record, everyone with whom they ever have communicated about you, every strategy they have employed to take you down, now is fair game."
Jacobson also advises Palin, "Gawker has given you an opening large enough to drive a truck through. Please go there, if not for yourself, then for all the conservative women who have been targeted by Gawker and the other Gawkers out there."
The Media Law Resource Center's Sandra Baron did tell Smith that forcing Gawker to take down the excerpts before the hearing was unfortunate, "It is a very troubling aspect of the case where in an instance where theoretically what they’re really seeking is to keep someone from eating their lunch, in fact what they’re getting is a pre-trial prior restraint," which could be used by other figures to prevent stories from being run.
Over at The Awl, Eric Spiegelman writes:
Exploiting the headline value of something is kind of central to the Gawker business model. Gawker is regularly accused of all manner of ethical breaches, whether it’s because they post a photo of Brett Favre’s alleged penis or an alleged encounter with Christine O’Donnell’s vagina, or whether it’s because they practice checkbook journalism as a matter of course. But regardless of your feelings about this, if you believe in the sanctity of the First Amendment, that at its heart it commands the government to keep its hands off the press, the Court’s reasoning in the Harper & Row case should give you pause. They’re saying that the Freedom of the Press is reserved for journalists who are polite. You may think that journalism should have a code of conduct, but I bet you’re not terribly comfortable with idea of the government setting that code. And there’s no better test for that than Nick Denton saying as much to the Supreme Court.