During the June 2, 2018, broadcast of the WNYW Fox 5 "10 O'Clock News" the following exchange took place on the handoff between weatherman Nick Gregory and anchors Ernie Anastos and Dari Alexander:

 

Anastos: "It takes a tough man to make a tender forecast, Nick." 

Gregory: "I guess that's me."

Anastos: "Keep f*cking that chicken, Nick."

[Laughs]

 

Immediately following the broadcast, viewers complained to Fox 5 New York.  Two viewers filed formal complaints with the Federal Communications Commission arguing that the broadcast statement violated FCC standards under 18 U.S. C. §1464 which forbids the broadcasting of "obscene, indecent or profane language."

This is the narrative from the complaints:  "My 16-year-old son and I were watching the 10 O'Clock News on our computer via Teleeo.com, an online subscription service and anchor Ernie Anastos used one of the most offensive curse words in the English language.  I am offended and hope the FCC takes sufficient, appropriate and punitive action against this filth.  Sincerely, Mrs. H. Croft, Willowick, Ohio."

The second complainant, Tom Ott, Jr., wrote, "I was watching the 10 O'Clock news on my tv and heard the most offensive and obscene utterance I've ever heard relating to both weather and poultry.  I am disgusted."

A month after the broadcast, weatherman Nick Gregory lost his outside endorsement deal as the pitchman for Roger's Chicken House, a small chain of fried chicken restaurants in New York City.  He had been paid $10,000 a year to endorse the restaurants. His contract with WNYW was also not renewed for another five-year term. He had been one of New York's most popular weathermen for 15 years. In a press release, he denied the allegations.

On June 1, 2019, Gregory filed a complaint against Ernie Anastos, Dari Alexander and Fox 5 News and The New York Post seeking $30 million in damages. He also filed a motion asking the court to seal all filings and close the courtroom to the press "in order for the plaintiff to secure a fair trial." 

The New York Post newspaper seized upon the story and on August 1, 2018, a story under the headline: "Weatherman Abuses Poultry," drawing most facts from the complaint.  The newspaper and its website also published the following quote: "That weatherman has a long history of engaging in animal abuse.  'He's choked more than his fair share of chickens,' said a source close to the investigation." 

NY Post reporter Joanie Keener wrote the story and did not identify her source or sources.

The next day, Gregory amended his complaint to include the New York Post.

The New York State Department of Agriculture (NYSDAG) opened an investigation into Weatherman Nick Gregory to determine if any food safety or animal cruelty violations occurred at the Roger's Chicken House in New York City. Prior to a public hearing on the matter, the NYSDAG subpoenaed Joanie Keener "to appear and testify before the Department about Gregory's history of animal abuse and to produce all notes relating to her story about Gregory."  The newspaper filed a motion to quash the subpoena.

 

 

Robert J. Stevens, the successful petitioner in Stevens v. U.S. (2009), seized upon the controversial broadcast and began publishing his own website featuring reviews, news and videos.  His website, www.KFC.net.ru also features a fictional sci-fi erotic adventure series, "KFC and Beyond," with the central character, Col. Harlan Sanders, the founder and iconic image behind KFC.  An additional feature on the website includes, "Spice Number 12," which premium subscribers can pay $14 per month to access a range of pornographic videos and images.  Stevens also plans to pitch his erotic adventure series to Netflix. He also sells merchandise. KFC sues.

Following the broadcast, Harry Croft, Mrs. H. Croft's 16-year-old son, suffered permanent blindness in his right eye after a chicken he attempted to choke poked out his eye.  He and his family filed an action against Fox 5 New York, Ernie Anastos and Nick Gregory to recover damages.  

The cases have been consolidated and assigned Judge Joseph Wopper, U.S. District Court for the Southern District of New York. For the following questions, you are law clerk to the Hon. Joseph Wopper, USDC. Write a memo explaining the issues and recommend who should win and why? You do not need to address the procedural, jurisdictional or evidentiary issues unless they are critical to your analysis.

 

1. In In re subpoena of Joanie Keener, assess the merits of the subpoena and the newspaper's motion to quash the subpoena. You are the law clerk to the judge. Who should win and why?

Answer rating: 100% (QA)

Write a memo explaining the issues and recommend who should win and why You do not need to address the procedural jurisdictional or evidentiary issues unless they are critical to your analysis MEMORAN... View the full answer