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Federal district court orders Web site material taken down, again

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  1. Prior Restraint

    News Media Update         OHIO         Prior Restraints    

Federal district court orders Web site material taken down, again

  • A U.S. district court judge in Cleveland ordered a Web site management company to take down popular pictures of a former newswoman performing nude at a Spring Break party.

March 31, 2004 — Judge James Gwin of U.S. District Court in Cleveland, Ohio, today ordered a Web site operator to remove photographs of Catherine Bosley, a former TV newswoman dancing naked while competing in a wet T-shirt contest, from its Web site.

In granting the preliminary injunction, Gwin seems to have rendered moot the March 25 stay — issued by the U.S. Court of Appeals in Cincinnati (6th Cir.) — of a temporary restraining order Gwin issued on March 8. The injunction prevents Web sites from publishing any nude photographs of Bosley, 37.

Gwin held that the speech was purely commercial, and that Bosley’s “right of publicity” in her name and likeness barred the companies from using her image to sell videos and access to Web sites.

More than 20 Web sites have already published the photos. Bosley resigned from WKBN-TV in Youngstown, Ohio, in January, when the pictures first appeared online. She was competing in a wet T-shirt contest during a vacation in Florida when the photos were taken.

According to the Lycos.com newswire, “Catherine Bosley” was the most searched name on the Internet for the week ending Jan. 24, 2004, surpassing socialite Paris Hilton.

The federal appeals court had ruled that the temporary restraining order was “improperly issued,” and cited “serious constitutional issues.” In 1976, in Nebraska Press Association v. Stuart , the U.S. Supreme Court called prior restraints “the most serious and least tolerable infringement on First Amendment rights.” Prior restraints on speech are rarely granted, even in cases involving national security.

Ronald S. Kopp, attorney for Marvad, said he is concerned about Gwin’s most recent order.

“This is a troubling decision for the First Amendment,” Kopp said. “If one reads this decision, they would have to assume that if President Bush did something embarrassing, and a newspaper or magazine caught it on tape, they couldn’t publish it because there is no First Amendment protection to commercial advantage. It is a very damaging decision for the news and entertainment industry.”

Marvad, owner of Sexbrat.com, the Web sites that originally purchased the photos, has asked the federal appellate court to overturn the injunction. Sexbrat.com recently made headlines by purchasing and distributing a homemade video of Hilton engaging in sexual intercourse with a boyfriend.

LH


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