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About Paul Alan Levy

Attorney with the Public Citizen Litigation Group, a public interest law firm that is the litigating division of Public Citizen, a public interest advocacy group that was founded by Ralph Nader in 1971. Among the issues on which the group litigates are federal health and safety regulation, consumer litigation, open government, union democracy, separation of powers, and the First Amendment. PCLG litigates cases at all levels of the federal and state judiciaries.

I have argued scores of cases in United States Court of Appeals (three en banc), and four cases in Supreme Court of the United States, as well as writing briefs for parties in seven other cases. One odd aspect of my Supreme Court practice is that each of these eleven cases has been decided 9-0 — win or lose.

Posted on Techdirt - 5 November 2015 @ 11:46am

Is The 'Stomp On Jesus' Case Really A Good Example Of 'Extreme Political Bias' On College Campuses?

from the ben-carson-should-look-elsewhere dept

Presidential candidate Ben Carson said last month that he wants to keep the United States Department of Education in business, rather than dismantling it as many conservatives would like, because he wants to use it to receive and then investigate reports of "extreme political bias" on college campuses. The example he has given of the need to which this proposal responds, most notably in an interview for Meet the Press, but also in a radio interview, is that a college student was supposedly threatened with discipline for refusing to comply with a professor's instruction to "stomp on Jesus." The notion of a federal inquisition into speech on college campuses trying to stomp out "political bias" is bad enough, but looking back at the facts of that incident, it appears to me as if Carson's excuse for the inquisition is based on an apocryphal account.

The Student's Claims and the Ensuing Media Storm

The incident arose after Ryan Rotela, a student at Florida Atlantic University, claimed that an adjunct professor had demanded during a class that the student "stomp on Jesus," that several students had objected to the lesson, and that when Rotela was the only one to speak up about his objections, he was threatened with discipline. Fox News ran a story that included two brief excerpts of Rotela speaking on camera, and showed three smirking commentators putting their spin on the story. These accusations fit well with a standard narrative that universities show hostility to "traditional values," with the added benefit that the adjunct professor was active in the local Democratic party; thus the contention supported a general attack on Democrats as well. The story exploded across the conservative blogosphere. Florida's governor Rick Scott and its junior Senator, Marco Rubio, each promptly weighed in as well, siding with the student. The governor's letter to the chancellor of the state university system said that he was "disappointed in the recent actions of . . . FAU faculty that raises significant questions over students' rights and the lessons being taught in our classrooms," and castigated the "professor's poor judgement" in teaching a lesson that "was offensive, and even intolerant, to Christians." The governor demanded a "report of the incident" and the adoption of university policies "to ensure that this type of 'lesson' will not occur again." Considering that the university system is run by a board of governors that is largely appointed by the governor, FAU moved promptly to defuse the controversy, apologizing to the student, issuing a groveling public apology through a series of videos, and suspending the professor from his position and having his courses taught by a different professor.

A more sober voice weighed in as well -- Greg Lukianoff, president of FIRE, who published a column at that expressed strong disagreement with the "idea of students at a public institution being required to stomp on the word Jesus," as well as with "charging the student with an offense for complaining about the assignment." Lukianoff said that the incident "highlights disturbing trends" involving a "double standard" in which putting Christian students on the defensive is par for the course while criticizing Muslims is condemned. And although many of my friends express misgivings about FIRE, charging it with attacks on academic freedom, my own experience with the group, including its treatment of some campus situations with which I am closely familiar, has been that its staff offer balanced and sober-minded approaches to the problems of free speech on campus. So the fact that Lukianoff supported the student's complaint weighed strongly in my initial analysis.

The Other Side of the Story Emerges

But as I looked more closely at the Fox News report, and at the media stories that came after the Lukianoff column, I noticed some red flags. Poole said that he never told students to "stomp on Jesus." Rather, he was following an exercise, recommended by the standard textbook used in his course, that had students write the word "J-E-S-U-S" on a piece of paper, put it on the floor and think about it for a moment, then step on the piece of paper. After many students hesitated to do so, students were invited to think about why they had hesitated, and Poole then led a discussion about the power of symbols. He stoutly denied having compelled any student to put his foot on the paper bearing the handwritten word "Jesus"; to the contrary, he said that he had specifically told the students that they were free not to do so. He also denied having punished the student for having refused to put his foot on the paper; to the contrary, he said that the student had threatened to hit him and that his only response was to file a report about that; the university issued a notice of intended discipline based on the student's physical threat. And, he added, he himself was a devout Christian and had neither intended to disrespect strong Christian views nor punish any student for standing up for such views.

And looking at the one clip that I could find in which Rotela himself was speaking – as opposed to his lawyer and his various advocates – he never exactly said that the professor had, in so many words, told him to "stomp on Jesus." The Fox News discussants all claimed Rotela himself has made that accusation, but Rotela himself only said this, in two tiny snippets edited together to make the network's point: "if you were to stomp on the word Jesus it says that the word has no value . . . I'm not going to be sitting in a class having my religious rights desecrated." The difference between telling students to "step" on a piece of paper, and telling them to "stomp on Jesus," carries very different emotional connotations, and I began to wonder whether the story had been overly sensationalized and whether Lukianoff himself had been caught up in an unfair portrayal of the situation.

When I contacted Lukianoff to raise this possibility, he stood by his account of the situation, and indeed stressed his view that the lesson violated the principles of West Virginia State Board of Education v. Barnette, where the Supreme Court held that the First Amendment rights of public school students who belonged to the Jehovah's Witnesses had been violated when the state required them, on pain of expulsion, to recite the pledge of allegiance. But Lukianoff also pointed me to a series of statements on FIRE's web site that took a much more dispassionate view of the facts. Indeed, I was struck by the difference between the one-sided account that Lukianoff had given in his Forbes column and the evenhanded approach that FIRE had taken.

In particular, FIRE's most complete statement about the case is headlined "Florida Atlantic 'Jesus Stomp' Case: A Screwup from Start to Finish." It suggests on the one hand that the lesson in question raises serious questions under Barnette but at the same time that statements by FAU's administration purporting to dictate that the lesson never be used again improperly trenched on academic freedom (but why? if the lesson violates the First Amendment, can the university not forbid its faculty from doing that?). As for the conflicting stories from Poole and Rotela, FIRE's final statement notes that both sides had self-interested reasons for their own versions, but the organization is ultimately agnostic about what happened:

We're unlikely to ever know for sure what actually happened in the encounter between Rotela and Poole. But there is one party that we can be virtually certain did the wrong thing, and that party is FAU.
If Rotela's story is accurate, FAU charged him with a campus crime merely for vehemently complaining about a classroom assignment. For FAU to do so would be indefensible.

If Poole's story is accurate, but FAU did not believe that Rotela's conduct constituted a true threat, FAU should not have charged Rotela with threatening anyone. To do so would be indefensible.

If Poole's story is accurate, and if FAU really believed that Rotela was making a true threat to hit Poole, FAU should not have dropped the threat charge against Rotela simply for public relations reasons. To do so would be indefensible.
FAU's mishandling of the threat charge against Rotela can't be defended. The only real dispute is over which indefensible action FAU took.
What Really Happened in the "Stomp on Jesus" Incident?

But if this incident is to be Ben Carson's stump-speech example of the need for federal administrators to go on a hunt for cases of "extreme political bias," it is worth going back to figure out what really happened back in the spring of 2013. I am especially grateful to DeAndre Poole; Hiram Sasser, the Liberty Institute lawyer who represented Rotela; Scott Jaschik, who reported on the incident for Inside Higher Education; and at least initially FIRE President Greg Lukianoff, for the time they took to answer my questions. I spoke to others whose names I am not free to mention.

In sum, although I can agree with FIRE that we cannot know "for sure" what happened, my investigation led me to conclude that this was not a case of bias against traditional Christian values, and not a case in which a student was punished for standing up for his religion. Rather, it is a case in which a professor was unfairly railroaded by media outlets, bloggers and elected officials who rushed to speak when they heard only one side of the story, and who was then thrown under the bus by the university. The case should not be any excuse for a conservative politician to start sending federal administrators out on a witch-hunt for "political bias" on campus.

First, for several reasons, I think it is quite unlikely that Poole punished Rotela for refusing to participate in the lesson. The most important reason for this conclusion is that punishing the student for objecting to stepping on the paper would have made no sense in the context of the purpose of the lesson. The written lesson plan stated:
This exercise is a bit sensitive, but really drives home the point that even though symbols are arbitrary, they take on very strong and emotional meanings. Have the students write the name JESUS in big letters on a piece of paper. Ask the students to stand up and put the paper on the floor in front of them with the name facing up. Ask the students to think about it for a moment. After a brief period of silence, instruct them to step on the paper. Most will hesitate. Ask why they can't step on the paper. Discuss the importance of symbols in culture.
This lesson cannot succeed if all the students docilely step on the paper, if none of them object to the instruction. So what reason would Poole have had to punish non-participants? Moreover, Poole has characterized himself as a committed Christian (indeed the lesson's author, Jim Neuliep, has a B.A. from a Methodist-affiliated university and teaches at a Catholic college). Would a religious Christian punish a student for refusing to step on Jesus?

For somewhat similar reasons, I am inclined to credit Poole's assertion that he did not use the word "stomp" in speaking with the students. It is the word "step," not "stomp," that is recommended by the lesson plan, and Poole was plainly following this lesson plan. His own religious feeling could well have led him to use the less forceful word; Poole denied using the word "stomp"; and I have not found anyplace where Rotela himself said that the professor used that word; from what I have seen, Rotela only used that word in characterizing what he had been asked to do. Indeed, one of the original media reports from 2013 characterized Rotela himself as saying that Poole had told him to "step on" the piece of paper, but also quoted him as having proceeded to talk about what it means to "stomp on something." (Unfortunately, there is no working link from this article to Rotela's actual interview.) Similarly, both the letter from Governor Scott and the letter from Senator Rubio use the word "step" rather than "stomp" to describe the lesson to which Rotela objected. I asked Rotela's former attorney whether Rotela said that Poole used the word "stomp" rather than "step," and he did not remember specifically.

I also conclude from my investigation that Poole expressly told students that it was up to them whether they stepped on the paper or not -- they were not coerced into doing so. Poole said he had issued this disclaimer, and I could not find any contemporary statement by Rotela disputing that claim. Moreover, during my investigation I was able to identify a student who was in the class that day (at his request, I am withholding his name) and he remembered Dr. Poole specifically making clear the voluntary nature of the "stepping on" act. (This student did not recall whether Poole said "step" or "stomp.") Rotela's former counsel Hiram Sasser told me that my conversation with him was the first time he had heard about Poole's claim that he gave this sort of express disclaimer, but at the same time Sasser made clear that, after the University complied with Rotela's demand to have his record cleared, he felt that battle had been won, and he stopped playing close attention to the ensuing controversy.

It is harder to form a clear judgment about one other fact -- whether Rotela in fact made threatening statements and gestures. According to an interview with an education blog, Poole's account was as follows:
[Rotela] said repeatedly, "How dare you disrespect someone's religion?""

After class, the student came up to [Poole], and made that statement again, this time hitting his balled fist into his other hand and saying that "he wanted to hit me." While the student did not do so, Poole said he was alarmed and notified campus security and filed a report on the student.
Similar statements appear in the summary of Poole's interview with the faculty Academic Freedom Committee. I have not found any contemporaneous accounts of Rotela personally disputing Poole's reports about his actions, but it appears that one of the students in the class was taken aback by whatever Rotela may have said to Poole after class, in that he sent Poole a note that took pains to distance himself from whatever it was that Rotela said and/or did: "I am at loss for words regarding what happened tonight. I just want to make clear I do not share the same views as my colleague . . .."

Moreover, although the Liberty Institute claimed, on Rotela's behalf, that the threat assertion was just an after-the-fact excuse and that Rotela never "threatened" anyone, Rotela's counsel was unable to comment specifically on either the gestures or the specific statements that Poole attributed to Rotela; he did remember that Rotela was angry. And the Liberty Institute's account of the case was misstated in other respects. Liberty Institute's website states, for example, "While several other students in the class were also upset by the 'lesson,' only one was brave enough to say 'no.'" The student whom I located told me that many of the students were unwilling to step on the paper; thus Rotela was not the "only one brave enough to say 'no,'" But Rotela does appear to be the only one who thought Dr. Poole had done anything wrong by conducting that lesson: when a representative of the faculty's Academic Freedom Committee visited the class (by then being taught by a different professor), during Dr. Poole's suspension to ascertain how students felt about the controversy, she reported that every student who spoke about the subject expressed support for Dr. Poole, that a petition supporting him was circulated and so far as she could tell, "all students in attendance signed the petition." The petition, in turn, stated that nobody else in the class was "offended" by the lesson. The report includes a detailed account of what Poole told the committee in an interview; Poole told me that this account basically reflects his recollections of the incident. I am told by a source close to the committee that the University barred the committee from meeting with Rotela as part of its investigation. That is too bad, from my perspective, because it means we lack any detailed report of his contemporary recollections.

Although I have not yet obtained a copy of the actual report that Poole submitted after the confrontation with Rotela, Poole told me that he submitted it the very night of the class. Because Rotela did not complain to anybody at FAU about Poole until a couple of days after that, Poole’s complaint could not possibly have been a post-hoc invention, made up out of whole cloth to defend himself against Rotela's already-made complaint. And I have also been told that the FAU authorities investigated what Poole had charged against Rotela, including by meeting with Rotela and explaining the complaint. Thus, although the disciplinary letter issued to Rotela did cite a provision in the code of student conduct which, as Lukianoff points out in his Forbes column, was facially overbroad, Rotela could have been under no illusions about whether the gist of the complaint against him was that he had threatened Poole physically.

But why, assuming that Rotela had actually threatened an instructor, would FAU's top administrators back down on possible discipline of a student? One of the things Rotela's counsel Hiram Sasser told me is a possible explanation. His most vivid memory of the case was how quickly the administration had caved into his demands on behalf of Rotela; he kept coming back to the point that it had been only 48 hours after they entered the case (which was after Rotela had initially gone to the press) that he met with university officials and received an oral apology. He mentioned as well that FAU might have been especially susceptible to public pressure because it was going through some other public relations disasters at the time. Certainly it is the strong impression of a senior faculty leader to whom I spoke that Poole had been "railroaded." So it is quite possible that the university administration, having been hammered in the press and pressured by high elected officials, simply followed the path of least resistance by excusing the student and ignoring the interests of its adjunct professor. From a callous university administrator's perspective, that's the beauty of using adjuncts: they are so easily expendable!

In sum, however, it seems to me that there is no support for Ben Carson's current claim, or for the contention back in 2013 by Fox News and Greg Lukianoff, that a student was threatened with suspension for "refusing to stomp on Jesus."

Does the Mere Offering of the Lesson Pose Serious Concerns Under West Virginia v. Barnette?

When I first approached Lukianoff about his column, he stood solidly behind his reference to Barnette, but when I followed up with some detailed questions about his legal analysis, I found his responses oddly lacking. I pointed out that Barnette involved a command to schoolchildren, and I asked whether he could point to any situation where Barnette's approach to the pledge of allegiance had ever been applied to college students. Teaching this lesson at the elementary school level might raise more serious concerns, but at the college level we expect students to be able to handle classroom activities that might challenge their faith as an initial gambit in a lesson. Indeed, the bewildered response of the textbook's author to the media storm about the lesson is worth noting: Jim Neuliep said that in his thirty years of doing this lesson in his classes, the usual outcome is that the exercise leads students to reaffirm their faith, while at the same time learning about the power of symbols.

In any event, Lukianoff's response to my question was that the "principles of Barnette," such as granting First Amendment protection against compelled speech, had been applied beyond young students. At that level of generality Lukianoff's response is surely accurate; but it does not speak to whether a request to participate in a ritual that poses challenges to religious belief can lawfully be given to college students.

And more to the point, I asked him to consider whether it was unlawful to give an instruction and depend on a student to assert his right not to participate. Barnette itself involved a statute that provided for the expulsion of any student who did not participate in the pledge, and criminal punishment for parents whose children did not attend school. But there are a variety of public events in which the audience is called upon to participate in the ritual of the pledge -- or the singing of the national anthem -- and it strikes me as highly unlikely that a member of the public could sue on compelled speech grounds. Indeed, there are cases involving the pledge of allegiance -- the Newdow case comes to mind -- where the free speech Barnette was distinguished on the ground that in those cases, the law does not require expulsion or other punishment of the student who objects to the ritual. As the Supreme Court held in Newdow's case, "Consistent with our case law, the School District permits students who object on religious grounds to abstain from the recitation." (I should be clear that when the pledge of allegiance includes the words "under God" it implicates Establishment Clause issues that are different from the compelled speech issues in Barnette.)

Certainly, when I was growing up on Long Island in the 1960's, students who did not want to participate in the pledge of allegiance ritual had to speak up for themselves, even in high school; nobody suggested that we could sue the school district just because the homeroom teacher said, every morning, that it was time to stand for the pledge of allegiance.

Moreover here the instructor apparently expressly told the students that they were free not to participate. It is hard to see any non-frivolous argument for compelled speech in those circumstances. Lukianoff did not answer my questions about this problem with his Barnette argument; instead, he started to complain that my asking questions was imposing on his busy schedule.

But perhaps the best indication that the reference to Barnette in Lukianoff's column was a bit of a makeweight is the fact that despite his passionate defense of the point, FIRE has not brought a single test case on this issue. The lesson is offered by a textbook that is widely assigned in courses across the country -- when I did a Google search for "Neuliep syllabus" I found many courses, most of them at public universities, where the book is central to the class. I imagine that if FIRE really thought that merely offering this lesson posed a serious threat to free speech values, it would have no trouble lining up a test case. But FIRE told me this week that, to its knowledge, "we have not seen a comparable situation before or since."

Investigating Extreme Political Bias on Campus

Even if Carson had found a good example of "extreme political bias" on a college campus, civil liberties advocates might shudder about the prospect of a president assigning federal officials to solicit complaints from students about political expression, then sending out apparatchiks to investigate the speakers and holding out the threat of pulling financial aid, research grants, and other forms of funding from the errant universities. A recent editorial on Reason's website drew an analogy between efforts at the Education Department's Civil Rights Division "putting unconstitutional limits on students' free speech rights in the name of stopping sexual harassment" (a concern that I share) and Ben Carson's call for inquisitions into offenses against his own sort of political correctness. It seems to me that promising witch hunts seeking to suppress political speech that is at odds with the viewpoint of a presidential candidate would be even more worrisome than regulations aimed at hate speech and the overbroad speech codes against which FIRE has been campaigning.

I should like to think that FIRE will also share this concern. I urge it to speak out on the subject.

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Posted on Techdirt - 13 May 2010 @ 5:46am

Investment Bank Fails In Attempt To Quash Discussion Of Its Telemarketing Efforts

from the calling-streisand dept

As courts across the country have endorsed the rule that, under section 230 of the Telecommunications Act of 1996, 47 U.S.C. § 230, the hosts of blogs and message boards are immune from suit for content that others post to their sites, companies that want an easy way to suppress such criticisms have struggled to find ways to bring suit anyway.  Especially among commercial litigators with limited exposure to intellectual property law, the trendy way to evade section 230 is to allege that criticism using the name of a company “tarnishes” its trademark, or that criticism using the name of an individual violates the right of publicity.  Another popular way to evade section 230 is to charge the web host with being an “information content provider.”

In its recent attempt to enjoin Julia Forte, the operator of and, from carrying posts that criticized its telemarketing techniques as well as it s business model, Houlihan Smith & Company tried both tacks — it claimed tarnishment and right of publicity violations, and it pointed to Google search results that included negative statements about it in the search snippets for the two web sites and alleged that Forte must be putting its name, and derogatory words such as “fraud” and “scam,” into her title tags and description meta tags.  Houlihan actually got a temporary restraining order (TRO) at first, by coming into court without any notice and bamboozling the state court judge with a long sworn complaint and supporting affidavits.  But when Forte found a lawyer (me) and removed to federal court, the judge quickly saw through Houlihan’s bluster and refused to give an injunction.  But how it lost is of particular interest.    (I discuss the oral opinion and the plaintiffs’ arguments in greater detail on the Consumer Law and Policy Blog, with links to the relevant documents from both sides)

In part, Houlihan lost because the federal judge, Virginia Kendall, could actually read the HTML code and could see that the complaint was based on lies.  (Not one of those judges who “don’t know technology” as Mike recently discussed).   As she remarked at the outset of the preliminary injunction hearing, one of her specialties as federal prosecutor was child pornography, and because porn purveyors are champions at manipulating code, she had to learn about it.  So, although Forte had supplied an affidavit explaining how to read the HTML code, Judge Kendall just pulled up the code herself and read it, told plaintiffs’ counsel that she couldn’t see any trademarks or defamatory words in the code that was before her, and asked if they had any other proof.  They didn’t.

On the trademark claims, Judge Kendall also rejected the motion for a preliminary injunction, but interestingly she did it without mentioning the First Amendment or the doctrine of prior restraint.  She first noted that under trademark law, just as a trademark may be used by a reseller to truthfully identify the name of the product that is being sold, so a critic may use the name of the trademark holder to truthfully identify the name of the company being criticized.  And as defined by the federal trademark “dilution” statute, dilution law only forbids uses of trademarks that injure the reputation of the trademark; it does not apply to uses that injure the reputation of the business.  Otherwise, any plaintiff could evade section 230 immunity just by changing the label of a defamation claim and calling it a trademark claim.

Representing Forte, we were sorry not to have won on First Amendment and prior restraint grounds, but Judge Kendall’s ruling may actually have a broader impact, protecting other hosts of interactive discussion sites, for her discussion of trademark law.  At this point, Judge Kendall has only given an opinion from the bench, explaining why she was not granting a preliminary injunction (we have ordered the transcript).  But she indicated that she would be issuing a written opinion.  It could be worth waiting for.

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Posted on Techdirt - 30 April 2010 @ 2:48pm

Did Video Professor Spend Too Much On Lawyers And Not Enough On Its Product?

from the try-my-product... dept

Video Professor, a company well-known in these pages for its penchant for suing both its critics and message boards that hosted its critics, not to speak of trying to suppress competition by misusing trademark law, has apparently hit hard times, a TV station in Denver is reporting:

A person with knowledge of the situation told the 9Wants to Know investigators that Video Professor's approximately 50 employees were called to a meeting Monday and told they were being placed on unpaid furlough.

Phones at Video Professor's corporate office and customer service center were answered Thursday by an automated message notifying callers the offices were closed for the day and to call back at a later time.

A call to Video Professor's CEO and pitchman, John Scherer, drew a return call from a company spokesman who would not answer questions or elaborate beyond a one-sentence statement: "The company is going through a reorganization that involves some temporary furloughs."
Of course, every time it filed one of these cases it just drew more attention to consumer complaints about its sales practices, and stimulated journalists to look into the company. Video Professor rarely found such attention flattering, even in his hometown media.

Is there a lesson here? Did Video Professor spend so much on legal fees that it couldn't improve its product sufficiently to satisfy the market?

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Posted on Techdirt - 16 April 2010 @ 12:12am

Has the New York Times Run Afoul of the FTC's Endorsement Guides?

from the ethics,-ethics dept

Terry Heaton and Jeff Jarvis have commented recently on the conflicts of interest implicated by the adulatory coverage of the iPad in the New York Times and other media companies. They point first to the expectation that widespread adoption of the iPad will foster consumer adoption of a platform where media giants can show their content for a fee — thus enabling them to move more easily to a paywall revenue model.

Dan Gillmor shares these concerns, but notes an even more concrete conflict of interest — Apple’s advertising of the iPad consistently features a screenshot of the New York Times app, including of course the Times’ logo. Although Apple no doubt hopes to show that its device can be used to read the Times, surely attractive content to many of its target consumers, the image is also terrific advertising for the New York Times. Gillmor indicates that he has no doubt that Times’ reviewers truly believe the contents of their swooning coverage of the iPad, but argues that the benefit that the Times is receiving is a conflict of interest that ought to be overtly acknowledged and discussed by Times management. Yet, he reports, nobody from the Times has been willing to respond to his questions about the issue, such as whether the Times has received any compensation for the display of its logo on the iPad as shown in the ads. Gillmor raised these concerns a week ago, and the Times has yet to address publicly the possible conflict.

One may well wonder whether Apple or the Times has violated the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. The placement of the Times’ logo in Apple’s ads is surely a thing of great value, and readers of the Times’ reviews might well want to take the provision of free advertising to the Times into account in deciding whether to give full credence to the objectivity of the Times’ news reports and reviews of the product. The benefit of having such advertising could well be a “material connection” that has to be disclosed both by Apple and by the Times under section 255.5 of the FTC Guides, as illustrated by Example 7.

Surely, what’s good for bloggers who praise products ought to be good for the New York Times and professional journalists.

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