Wednesday, December 29, 2004

Navy SEALS sue AP over photos

Six members of a Navy special forces unit and two Navy wives sued the Associated Press yesterday, saying the news agency endangered the servicemen's lives and invaded their privacy by publishing photos showing the men interacting with Iraqi prisoners, AP reports. [via First Amendment Center.]

Mass. selectman alleges board violated open meeting law

A closed-door meeting last month of selectmen in Tewskbury, Mass., regarding a police labor issue has created a wedge within the Board of Selectmen, causing one member to file a complaint with the Middlesex District Attorney's office alleging that the board violated the state's open meeting law, the Boston Globe reported Dec. 19.

Reporter resigns over blog

St. Louis Post-Dispatch writer Daniel P. Finney has resigned from the newspaper following the discovery of his blog, the Riverfront Times reports. Post management had suspended Finney Dec. 16 and seized his hard drive after learning of the blog through a report in the Riverfront Times. The blog, which Finney wrote under a pseudonym, contained unflattering remarks about Finney's employer and story subjects.

Tuesday, December 21, 2004

In Arizona, one-fourth of agencies flunk public records audit

In an audit of public records compliance in Arizona, roughly half the agencies delayed release of the requested records, and nearly one in four failed to turn them over within a week or never provided them, the Arizona Republic reports. News organizations sent journalists to 119 local government agencies across the state on Sept. 14-16 to audit compliance with the state's Public Records Law. Auditors were instructed to identify themselves by name but not to volunteer the names of their employers or why they wanted the documents. The aim was to discern how an ordinary citizen seeking public records would be treated by the agencies. Nearly three in four police agencies and school offices - 69 percent and 68 percent, respectively - passed the test, compared with an 86 percent compliance rate for city and county managers offices.

Proposed AP ethics policy would limit anonymous sources

Editor & Publisher reports on AP's proposed ethics policy, which it says is drawing concern from union leaders. The policy would put limits on the use of anonymous sources; define "on the record," "off the record" and "background"; and require approval of all freelance work.

Monday, December 20, 2004

Is TV talk evidence of reporter's malice?

A libel lawsuit in Massachusetts raises the question of whether statements a reporter makes on a TV talk show can provide evidence of malice in a libel suit against that reporter, the Washington Post reports. State Superior Court Judge Ernest B. Murphy is suing the Boston Herald and four of its writers about a series of reports that questioned his treatment of crime victims. One alledged that Murphy had dismissed the trauma of a 14-year-old rape victim by saying, "Tell her to get over it."

The case, set for trial next month in Suffolk Superior Court, is significant, the Washington Post says, because it uses the rambunctious exchange on a talk show to try to prove the malicious intent of a newspaper reporter. The brief cites statements made by a Herald writer not just in the pages of the tabloid but also on Fox News's "The O'Reilly Factor." The Post reports:
The case "reflects the perils of this new media culture" in which reporters go on the air to promote their stories, said Tom Rosenstiel, director of the Project for Excellence in Journalism. While editors scrutinize and sanitize reporters' words before they appear in print, no one performs that function in live TV interviews.

"When reporters who write stories, then go on the air to discuss" them, said Lucy Dalglish, executive director for the Reporters Committee for Freedom of the Press, "things tend to escalate. . . . If their appearances are going to be used to craft evidence of malice and reckless disregard for the truth in a print story, we're in very dangerous territory. I think this will have very serious implications for journalists."

Boston Phoenix article libeled prosecutor, jury says

A U.S. District Court jury in Boston last week found that a January 2003 Boston Phoenix story libeled a Maryland prosecutor, who was involved in a custody dispute that included charges of child abuse, and awarded him $950,000, the Boston Globe reports. The story -- which focused on the inadequacies of the family court system in dealing iwth claims of child abuse -- described allegations that the plaintiff, Marc Mandel, had sexually abused children from two marriages. Mandel denied the accusations and sued for libel. Peter Kadzis, editor of the Phoenix, said that the paper will appeal.

Hatfill subpoenas at least a dozen news organizations

At least a dozen news organizations are being targeted with subpoenas by the attorney representing former U.S. Army researcher Steven Hatfill, who is suing the federal government under the Privacy Act for trying to link him to the 2001 anthrax attacks, Editor & Publisher reports. Tom Connolly, Hatfill's lawyer in his lawsuit against U.S. Attorney General John Ashcroft and other government officials, had subpoenas served last week on The Associated Press, National Public Radio, The Washington Post, ABC News, and CBS' "60 Minutes." He did tell E&P who else would receive a subpoena, but expected at least 12 to 15 to be served in total. Several weeks ago, a libel lawsuit Hatfill had filed against The New York Times and columnist Nicholas Kristof was dismissed by a federal judge. [Another report: Los Angeles Times.]

Wednesday, December 15, 2004

Mass. publishers file bill to toughen open meeting laws

In a bid to encourage public officials' compliance with the state's open meeting laws, the Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and attorneys' fees to individuals who bring enforcement actions.

Sponsored by Rep. Arthur Broadhurst (D-Methuen), the bill would impose civil fines of $1,000 on any government body that violates the law and $500 on each government official who violates the law. Officials who "knowingly and intentionally" violate the law would be guilty of a criminal misdemeanor punishable by a fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses.

If enacted, the bill would also make government entities liable for the attorneys' fees and court costs of individuals who sue to enforce the open meeting laws. Plaintiffs would be entitled to recover their costs and attorneys' fees even if the entity corrects its violation after the lawsuit is filed, if the plaintiff, before filing suit, had requested in writing that the meeting be opened and the entity had refused.

Existing Massachusetts law allows a fine of up to $1,000 against a local government entity that violates the open meeting law, but not against state government entities. It has no civil or criminal penalties for individual state or local officials who violate the law. The law allows three or more registered voters to file lawsuits to enforce its provisions, but it does not allow them to recover their costs or attorneys' fees.

In October, the MNPA concluded a 50-state survey of opening meeting law enforcement provisions, finding that Massachusetts was among the most lenient of any state in allowing government officials to violate the law without fear of consequences.

Among the findings of the MNPA's survey:
  • Civil penalties. Forty states authorize some sort of penalty – either civil or criminal or both – for violations of their open meeting laws. Of these, 23 expressly authorize civil penalties. Although Massachusetts law authorizes penalties against local – but not state – government bodies, many states go further, imposing civil penalties directly against the government officials who violate the law.
  • Criminal sanctions. Twenty-one states make it a misdemeanor criminal offense for a public official to violate the open meetings law. These states provide fines for a first offense of as much as $1,500. Some states also include imprisonment as a potential sanction, in some cases for up to one year. States often increase the penalties for repeat offenders.
  • Voiding. The majority of states give their courts discretion to declare void any action taken in violation of the law. Some states take away the discretion, requiring that actions taken in violation of the law be considered null and void as a matter of law.
  • Private right of action. While most laws provide for enforcement by the state attorney general or local district attorney, many also give private individuals the right to sue to enforce the law. In Massachusetts, the law requires at least three registered voters to file such a suit. Other states require only one plaintiff. While some require that the plaintiff be a citizen, a taxpayer or someone aggrieved by the violation, most allow any person to file. Many states further require that courts hear and decide these cases within strict timetables.
  • Attorneys' fees and costs. Without a provision for recovery of costs and attorneys' fees, private individuals are less likely to seek enforcement of the law, even if the law gives them the right. Forty states that provide a private right of action also allow the prevailing plaintiff to recover costs, and 37 authorize attorneys' fees. In most cases, these are to be paid by the government entity, but some states also require payment by officials who intentionally violate the law.
The bill has not yet been assigned a number. If you would like more information about the bill, please feel free to contact me.

Thursday, December 09, 2004

Reporter sentenced to six months' home confinement

Providence, R.I., television reporter Jim Taricani was sentenced today to six months' home confinement for refusing to tell a special prosecutor who gave him a secret FBI videotape from the Operation Plunder Dome investigation into corruption at Providence City Hall, the Providence Journal reports.

U.S. District Chief Judge Ernest C. Torres ordered the sentence to begin immediately. He also set several restrictions on Taricani while serving his sentence, including a ban on giving interviews or doing any reporting. Torres also said Taricani could petition for "early termination" of the sentence after four months. Martin Murphy, Taricani's lawyer, said he did not know if his client would appeal.

According to another report, Torres, in sentencing Taricani, called it a "myth" that journalists' sources would dry up if they could not be promised confidentiality.

The Reporters Committee for Freedom of the Press issued a press release saying it will join other news organizations in coming months to advocate for a federal shield law in the aftermath of today's sentencing.

Wednesday, December 08, 2004

Reporters try to avoid jail in leak case

Federal prosecutors today argued journalists have limited legal protection while a lawyer for two reporters who could go to jail for refusing to divulge their sources argued for a broader interpretation of the Constitution, the Associated Press reports. "There is a level of legal protection," lawyer Floyd Abrams told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Abrams represents Time magazine's Matthew Cooper and Judith Miller of The New York Times, who have been subpoenaed in the grand jury investigation into the leak of an undercover CIA officer's name.

Is the First Amendment shield enough?

This is the question debated today at the Legal Affairs Debate Club by Paul McMasters, First Amendment Ombudsman at the First Amendment Center, and Geoffrey R. Stone, Harry Kalven Jr. Distinguished Service Professor of Law at the University of Chicago.

Media law news round-up

  • In Atlanta, a federal judge has issued what AP calls a split decision in a dispute between the city and three major newspapers over fees the city-run airport charges for news racks. The case involves a 1996 city policy removing all news racks at Hartsfield-Jackson Atlanta International Airport and requiring publishers to lease city-owned boxes.

  • The Atlanta Journal-Constitution, USA TODAY and The New York Times sued on First Amendment grounds. A federal judge issued an injunction blocking the policy, but an appeals court overturned a part of that decision and remanded the case to the lower court. In a ruling Dec. 2, U.S. District Judge Richard W. Story ordered the three newspapers to pay the city nearly $350,000 in back rent and interest for news racks. However, he also ordered the city to pay the three newspapers $1.35 million in attorneys’ fees and expenses.

  • Near Denver, an Army appeals court stopped the investigative hearing into three soldiers charged with murdering an Iraqi general until the judges can determine whether The Denver Post's request to open the hearing is valid.

  • The newspaper last Friday filed a motion to stop the Article 32 hearing into the death of Maj. Gen. Abed Mowhoush at the Qaim detention facility last year. Steven Zansberg, an attorney for The Post, said the appellate court's halting of the proceedings - and previous military court cases - makes this an important ruling.

  • In Virginia, a libel lawsuit brought by Steven Hatfill against The New York Times and columnist Nicholas Kristof concerning the 2001 anthrax attacks was dismissed by U.S. District Judge Claude Hilton. The judge ruled that Kristof's columns, in which Hatfill was referred to as "a person of interest" in the investigation by Attorney General John Ashcroft, did not defame him, the Associated Press reported.

  • "It is evident that the Op-Ed pieces highlighting the perceived shortcomings of the FBI are not reasonably read as accusing Hatfill of actually being the anthrax mailer," Hilton wrote. "The principle that an accurate report of ongoing investigation or an allegation of wrongdoing does not carry the implication of guilt has long been recognized . . . and it is mandated by the First Amendment."

    Tuesday, December 07, 2004

    Jurkowitz: Is 1st Amendment under attack?

    With the trials of reporters Matthew Cooper of Time and Judith Miller of The New York Times set to begin tomorrow and the sentencing of Providence TV reporter Jim Taricani Thursday, Boston Globe media writer Mark Jurkowitz asks, Is the First Amendment under attack?

    Monday, December 06, 2004

    Move on for shield law in Mass.

    Charles Kravetz, station manager and vice president of news at New England Cable News, and Jeffrey Newman, a Boston lawyer, are spearheading a movement to pass a reporter's shield law in Massachusetts, prompted by cases across the country of reporters being held in contempt and jailed for refusing to reveal their confidential sources. They are seeking to form a committee of journalists to help draft a reporter's shield law. Kravetz told me today that he plans to send out a letter tomorrow to all major news outlets in the state inviting their support.

    Media news from Denver

    Reading the Denver Post en route back to Boston, two interesting items:

    First: A decision by officials at Sheppard Air Force Base in Texas to drop criminal charges against an airman accused of participating in a gang rape last year of another service member, Leah Kaelin, means that a subpoena issued by Sheppard officials, seeking reporter notes from unpublished conversations with Kaelin, has been dropped.

    Kaelin, who alleged she had been assaulted by Matthew Monroe and three other airmen at a hotel last year, decided "not to go forward with a criminal proceeding," according to a news release issued by Sheppard officials.

    Kaelin's story appeared in the Denver Post last March, detailing her account of being drugged by the airmen and how commanders later downplayed her allegations, kicked her out of the service and took eight months to process the DNA evidence.

    Second: Denver Post editor Gregory Moore, formerly managing editor of The Boston Globe, has been elected to the Pulitzer Prize Board.

    I'm back ...

    from Vail, where I was attending a meeting the last few days.

    Wednesday, December 01, 2004

    Red Sox CEO a media lawyer?

    Speaking today at the annual meeting of the Massachusetts Newspaper Publishers Association, Boston Red Sox President and CEO Larry Lucchino noted that earlier in his career, when he was practicing as a lawyer, he represented the Washington Post on occasion and defended the paper in a libel case.

    Lucchino did not come to the meeting empty handed -- he brought the World Series trophy. And, posing in the photo above with Boston Herald Publisher Patrick Purcell (right), Lucchino announced he had converted lifelong Yankees fan Purcell to the Red Sox nation.