Washington shield law gains bipartisan support

A bipartisan group of Washington state representatives has agreed to sponsor legislation to protect the confidential sources of news reporters, the Yakima Herald-Republic reports. The legislation, proposed by state Attorney General Rob McKenna, would provide an absolute privilege against compelled disclosure of confidential sources.

• Further reading: McKenna's news release.

Opinions clarify access to officials' e-mail

For journalists and others interested in open access to government records and proceedings, e-mail poses unique obstacles. Two recent developments, one in New Jersey and another in Massachusetts, help clarify this sometimes muddy issue.

In New Jersey, the state's Government Records Council, the agency that oversees the New Jersey Open Public Records Act, has ruled that e-mail messages that discuss government business are public records open to public review -- even if they are on an official's personal computer, the Courier-Post reports. "The definition of a government record is not restricted by the location of the record," the council concluded in a decision earlier this month. The ruling requires the mayor of the borough of Fair Lawn to turn over all borough-related e-mails stored on his personal computer to a citizen who requested them.

In Massachusetts, the district attorney for Middlesex County issued a warning to local officials that careless use of e-mail to discuss town business runs the risk of violating the state Open Meeting Law, according to the Metrowest Daily News. In response to a complaint filed by the Daily News against the school committee for the town of Wayland, the DA cautioned that "members should limit e-mail communications to matters of a purely housekeeping or administrative nature, and should maintain copies of all e-mail communications in a central file."

Web host not liable in defamation case

The operator of a Bali-based travel business cannot use Arizona courts to sue another Bali business for posting allegedly defamatory information on a Web site hosted by a Phoenix company, the Arizona Court of Appeals ruled last week, according to a report in The Arizona Republic.

The court said that the defendant's use of an Arizona company's Web hosting services was not sufficient to establish jurisdiction in Arizona over the dispute between the two Bali competitors. The court also said that the federal Communications Decency Act of 1996 immunized the Web hosting company from damage claims resulting from material posted on the Internet by another party.

The decision is Austin v. CrystalTech Web Hosting, Case No. CA-CV 04-0823 (Dec. 22, 2005).

Gannett GC wraps up key media cases

Gannett Vice President and Associate General Counsel Barbara W. Wall has published a year-end wrap up of public-records and prior-restraint cases involving the company's newspapers. A second installment, due this week, will review cases that involved libel, privacy and reporter's privilege issues.

Best legal blogs of 2005

The folks at Blawg Review have handed out their 2005 Blawg Review Awards. I am proud to say that Coast to Coast, the weekly legal news podcast I cohost with J. Craig Williams, won the award for Best Legal Podcast.

Wishing you the best for the holidays

To all those who read this blog, I wish you peace, happiness and prosperity this holiday season and for all to come.

Two podcasts: Blackberry battles and holiday music for lawyers

Two new installments of our legal news podcast, Coast to Coast, are now available:

• Legal Battle Over the Blackberry. Our guest is Eric J. Sinrod, a partner in the San Francisco office of Duane Morris LLP, a technology and IP lawyer and columnist who has followed and written about the patent battle between NTP and Research in Motion.

• Holidays with Lawyers. Our guest is Lawrence Savell, the lawyer, songwriter and performer who joins us for our holiday podcast. Savell has recorded three humorous holiday albums for lawyers, all available at Lawtunes.com. We listen to samples of Savell's music and learn how he uses music and humor to bring balance to his professional life.

Coast to Coast is the weekly legal news podcast cohosted by California blogger J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Audiocast: Law Firms Going Global -- What It Takes

As part of its special section, Far East, Close to Home, Law.com features a free webcast of a panel discussion, Going Global: What Does It Take? I participated on the panel, along with fellow bloggers Rees Morrison, senior director of Hildebrandt International, and Bruce MacEwen, law firm consultant. Law.com editor Scott Martin moderates.

As the promo says:

"Find out what it takes for small and midsize firms to open offices overseas, and learn what in-house counsel need to know when working across borders."

Indiana ruling strengthens records law

In Indiana, a ruling by the state Court of Appeals this week in favor of a small-town weekly newspaper has bolstered public access to government records, according to a report by The Indianapolis Star. The court ruled that the paper, the Knightstown Banner, had a right to see details of a settlement that the town had reached with a former employee.

Town officials had kept secret most details of the settlement, contending that the town's insurance carrier, not the town itself, was party to the settlement, thereby excluding it from the public records law. A lower court had agreed with the town.

The Court of Appeals said:

"Knightstown focuses on the argument that the definition of public record does not include documents created by private individuals acting on behalf of a public agency. This distinction is without merit. There is no doubt that although Retained Town Counsel is a private individual, and not itself a public authority under [the law], he created, maintained, and retained custody of the settlement agreement as attorney for Knightstown, which is a public authority."

The full text of the decision is here.

Bush wins praise for FOIA order

President Bush today signed an executive order calling on federal agencies to streamline their handling of Freedom of Information Act requests and to appoint senior officials to monitor FOIA compliance. The order won praise from media organizations including The Reporters Committee for Freedom of the Press, the National Newspaper Association and the Newspaper Association of America.

The order, titled Improving Agency Disclosure of Information, directs agencies receiving FOIA requests to "respond courteously and appropriately" and to provide "citizen-centered ways to learn about the FOIA process."

It directs each agency to appoint a senior official -- at the assistant secretary or equivalent level -- to serve as chief FOIA officer. The officer will be responsible for FOIA compliance and monitoring.

The order also requires each agency to establish an FOIA requester service center which is to be "the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response."

Under the order, each agency will be required within six months to review its FOIA operations and develop a plan for ensuring compliance with the law and the executive order. The order directs the attorney general to compile these agency plans and submit a report to the president within 10 months on implementation of the executive order.

RCFP issued a statement today calling the order a good start to making the government more accountable and open. The NNA and NAA jointly issued a statement commending the president for opening the door for better service to the public in dealing with FOIA requests.

U.S. ranks sixth in jailing journalists

The United States ranked sixth among the world's leading jailers of journalists in 2005, the Committee to Protect Journalists said in a report issued yesterday. China, Cuba, Eritrea and Ethiopia were the worst offenders, the report said, together accounting for two-thirds of the 125 editors, writers and photojournalists imprisoned around the world.

The U.S. is holding four Iraqi journalists in detention in Iraq and one Sudanese national, an assistant cameraman for Al-Jazeera, in Guantanamo.

For the seventh consecutive year, China was the world's leading jailer of journalists, with 32 imprisoned, the report said. Fifteen of the cases in China involved Internet journalists. Cuba was second, with 24 journalists behind bars.

Do dogs have right of free speech?

In what may be a case of canine versus the constitution, a lawyer in El Paso, Texas, is contending that a dog's barking is speech protected by the First Amendment.

According to a report Sunday in the El Paso Times, the novel notion is being raised in defense of a lawsuit brought by an El Paso man over his neighbor's dog's alleged nonstop barking. The neighbor denies the barking, but his lawyer says that, if the dog was barking, it has a constitutional right to do so.

The newspaper quotes the lawyer as promising to fight the issue to the Supreme Court, if necessary. "I can honestly state that if the dog did bark at all, the dog was simply exercising his first amendment right to freedom of speech."

My two cents: He's barking up the wrong tree.

The ironies of source protection

A thoughtful piece in The Miami Herald by columnist Edward Wasserman, journalism professor at Washington and Lee University (and one-time colleague of mine at ALM), probes the ironies of source protection. Says he:

"The fact is that source protection is miles from being a paramount concern for journalists. Forget confidential informants for the moment. Apart from them, obligation to sources is a miserably neglected area of journalism ethics. The well-being of informants, and the ways that the reporting they contribute to may rebound on their lives, are things that journalists worry about rarely, if ever."

Colorado bans blogging on state computers

After learning that anonymous postings to a Colorado political blog, ColoradoPols.com, originated from a computer in the office of Gov. Bill Owens, the governor issued a directive banning state employees from posting to blogs using government computers, the Rocky Mountain News reports.

The governor's directive, issued through his chief of staff, said:

"It has become apparent that Executive and Legislative computers have been used to post commentary on political web logs (blogs).

"Today, the governor ordered that we develop new policy prohibiting the use of government computers from being used to post to any such sites. Please make certain that all members of your respective staffs are notified that this policy is effective immediately."

Feds' failure to name names violates FOIA, suit says

A lawsuit filed in federal court in New York this week alleges that the U.S. government is unlawfully withholding information it normally provides the public about some 900,000 of its civilian employees, including employees working for the Environmental Protection Agency, the Occupational Safety and Health Administration and the Federal Emergency Management Agency.

Brought by Public Citizen on behalf of the Transactional Records Access Clearinghouse, a research group at Syracuse University, against the Office of Personnel Management, the lawsuit charges that the agency violated the Freedom of Information Act by failing to provide the information or explain its refusal.

Since 1989, TRAC has posted a database on the Internet with the name, work location, salary and job category of all federal civilian workers except those in some law enforcement agencies. The data are often used by reporters and government watchdog groups to monitor policies and detect waste or abuse.

The government first began providing the public with detailed information about all its employees in a register published almost 200 years ago. The first name in the first register, authorized by Congress in 1816, was President James Madison.

Further reading:

• Joint TRAC/Public Citizen press release.
• Text of complaint filed in U.S. District Court.
• TRAC correspondence with OPM.
• AP report on the lawsuit.

Podcast: Military recruiting at law schools

Coast to Coast this week looks at military recruiting at law schools and the case argued earlier this week before the Supreme Court, Rumsfeld v. FAIR. Our guest today was Lara Schwartz, chief legislative counsel for Human Rights Campaign, an organization devoted to promoting lesbian, gay bisexual and transgender equal rights.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Mass. lawyer's jab at judge not protected speech

Massachusetts' highest court ruled today that the First Amendment does not protect a lawyer from discipline or disbarment for criticizing a judge in a pending case unless the lawyer has "an objectively reasonable basis" for the criticism.

In so ruling, the Supreme Judicial Court for the first time set out the standard to be applied in Massachusetts lawyer disciplinary proceedings when the lawyer invokes the First Amendment in defending against charges that he impugned the integrity of a judge without basis during a pending case.

The standard it adopted, the court said, is the one applied in the majority of states that have considered the issue. The SJC rejected the standard adopted by a minority of states, the "actual malice" defamation standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Writing for the court, Justice Francis X. Spina explained:

"Judges are not above criticism or immune from review of their court room conduct. ... Under the objective knowledge standard, an attorney does not lose his right to free speech. He may make statements critical of a judge in a pending case in which the attorney is a participant. He may even be mistaken. What is required by the rules of professional conduct is that he have a reasonable factual basis for making such statements before he makes them."

The case before the court involved lawyer Matthew Cobb, who had been ordered disbarred for multiple ethical violations. Among the claims against him was that he filed papers with the state Appeals Court alleging that a trial judge had been improperly influenced by the opposing counsel. In an affidavit he filed with the Appeals Court, he alleged that the opposing counsel "must have some particular power or influence with the trial court judge." A single justice of the Appeals Court found that his allegation was "scandalous" and "devoid of any rational or supportable basis in fact or law."

After Cobb was ordered disbarred for this and other infranctions, he appealed to the SJC, arguing that his statements about the judge, even if unfounded, were protected by the First Amendment. The SJC disagreed:

"The respondent has demonstrated rather convincingly by his quick and ready disparagement of judges, his disdain for his fellow attorneys, and his lack of concern for and betrayal of his clients, that he is utterly unfit to practice law. The only appropriate sanction is disbarment."

The case is: In the Matter of Cobb, SJC-09333 (Dec. 8, 2005).

Podkey creator denies he hijacked' feed

As George Lambert, creator of Podkey, points out in his comment to my post yesterday about an eWeek story regarding the "hijacking" of Erik Marcus' podcast feed, eWeek later followed up with Lambert's version of the story.

Lambert told eWeek that Marcus had registered with his service to begin with and the "ransom" represented fees that would be required to do the custom coding the podcaster has demanded. eWeek quotes Lambert:

"He wanted me to make sure no other directory services got the information from me, but I can't tell who are directory services, because we're not submitting anything. People are coming to look at our list. I have a choice: I remove it from anywhere or I [don't] remove it. You can't restrict who comes to look at your podcast. So his request wasn't technically practical.

"If you want me to come up with a solution, I can try, but that's consulting. That doesn't fall within the bounds of a free service—one that's there to make people's lives better. Is that extortion? I met his [original] request immediately and without reservation. I said I'd reinstate it for free if he met my terms. If you're asking me to do something custom, you have to pay me to do [it]. That's not unreasonable, and that's not extortion."

See Lambert's blog for more on this, including e-mails between him and Marcus.

FOIA exemptions help U.S. step up secrecy

The U.S. government released less information under the Freedom of Information Act in 2004 than in 2000, according to a newly released study by the Coalition of Journalists in Open Government. Even though FOIA requests to federal agencies dropped by 13 percent, their overall use of exemptions to screen information rose by 22 percent, the report says.

Forming the basis for this greater level of secrecy are three exemptions promoted by the Bush administration, CJOG contends. The exemptions allow withholding of information regarding intra- and interagency memoranda, internal personnel policies and proprietary information or trade secrets.

The report concludes:

"The findings make clear that the controversial 2001 memorandum from then-Attorney General John Ashcroft did in fact alter agency response to requests for public records. AshcroftÂ’s memo reshaped the guidelines agencies use when considering FOIA requests."

Notably, the study found that agencies denied FOIA requests less frequently in 2004 than in 2000. Nevertheless, requesters received significantly less information. Full grants -- where the requester received all information asked for -- fell from 55 percent in 2000 to 45 percent in 2004.

The hijacking of a podcast's RSS feed

eWeek has the story of how a cyber-squatter hijacked the RSS feed for "Erik's Diner," a podcast produced by Erik Marcus, publisher of Vegan.com.

It all started when Marcus discovered that the Yahoo podcast directory listed not his RSS feed, but one belonging to a site named Podkeyword.com. When his efforts failed to get Yahoo to correct the listing, he went to Podkeyword, which agreed to drop the duplicate feed. It was then that Marcus discovered that Apple's iTunes service also had the Podkeyword RSS feed. When Podkeyword dropped the feed, he suddenly lost roughly 1,000 iTunes subscribers.

This sent him back to Podkeyword asking to reinstate his listing. But, according to eWeek, Podkeyword reportedly responded that the listing would be reinstated only if Marcus provided an unspecified payment or agreed permanently to its terms.

The moral of the story, says eWeek writer Lisa Vaas, is that RSS feeds are far more vulnerable to squatters than Web site domains, because hijacking an RSS feed requires no stolen passwords or other overtly illegal tactics. She explains:

"Rather, it merely involves finding a target Podcast and creating a unique URL for it on a Web site that the hijacker can control. The hijacker then points his URL to the RSS feed of the target Podcast.

"Next, the hijacker does whatever it takes to ensure that, as new Podcast engines come to market, the page each engine creates for the target Podcast points to the hijacker's URL instead of to the Podcast creator's official URL."

In her blog, Marcus' lawyer, Colette Vogele, tells how to protect yourself against RSS hijacking.

Column: 2005 -- Year of the Podcast

Law.com today features my latest Law Technology News column, "2005: Year of the Podcast," in which I review a cross-section of law-related podcasts.

Podcast: Abortion and the Supreme Court

Shortly after the Supreme Court heard oral arguments yesterday in Ayotte v. Planned Parenthood, we recorded the Coast to Coast program, Supreme Court and the Abortion Issue. Our guests to discuss the case and its implications were Neil S. Siegel, associate professor of law at Duke Law and former law clerk to Associate Justice Ruth Bader Ginsburg, and Mathew D. Staver, president and general counsel of the anti-abortion group Liberty Counsel.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Do online postings violate open-meeting laws?

Can a government official violate the open meeting law by posting to an online forum? That is the question being debated by officials in the town of Westford, Mass., according to a report in The Lowell Sun. Selectman Jim Silva's postings to the privately run site Westford Web have sparked a debate over whether he is in violation of the open meeting law.

The law requires all government meetings to be open to the public and prohibits a quorum of any government body from meeting in private for the purpose of deciding or deliberating on a matter. A spokesperson for the local district attorney's office explained the potential violation: "If you have all members of the board on a forum, you run a risk of having a situation where there is an online meeting that there is no public notice."

But Silva says the First Amendment protects his right to continue to post. "If they stretched the Open Meeting Law to the point that a single selectman can't post on an online forum," he told the Lowell Sun, "that would be a civil rights violation."

College must open its meetings, court rules

By way of the Student Press Law Center comes news that New York’s highest court has ruled that decision-making bodies at public colleges are required to abide by the state’s open meetings and open records laws. The ruling means that students at public colleges in New York have the right to attend meetings of college senates, faculty councils and similar decision-making bodies.

The case arose when two students at Hostos Community College -- part of the City University of New York -- were denied admission to meetings of the College Senate, a body composed of faculty, students and administrators. In concluding that the senate's meetings must be open, the court found that it performs a "quintessentially governmental function."

• Opinion text: Matter of Perez v. City University of New York.

Two more states seek laws to shield sources

I wrote last month about the filing of a Massachusetts bill to shield reporters. Now, similar laws are being sought in two other states.

In Utah, a conservative state senator and the state attorney general are joining forces to back a bill that would allow reporters to keep the names of their confidential sources secret, even from criminal prosecutors, The Salt Lake Tribune reports. The bill would be filed before the 2006 legislative session begins in January.

And in Washington, state Attorney General Rob McKenna says he plans to request legislation in January to protect reporters' confidential sources, according to The Yakima Herald.

Shield law statutes are on the books in 31 states and the District of Columbia, according to The Reporters Committee for Freedom of the Press.

More on Corante's hubs

Corante founder and editor Hylton Jolliffe offered his thoughts today on the launch of Corante hubs and the Corante Network. Here's a key quote:

"The goal of the hubs: to marry human intelligence and editorial voice with useful technologies to become a trusted and useful tool - one that helps you find and sift through what's worth reading, one that provides valuable context and perspective on the critical issues impacting your industry and interests, and one that engages in and extends the conversations that make social media such a rich and enlightening experience."

Libel lawsuits against bloggers

Eric P. Robinson, a lawyer with the Media Law Resource Center, has put together an interesting compilation of libel and related lawsuits against bloggers. He lists and describes 14 cases that cover the gamut from defamation to trade secrets to national security. Three so far have resulted in published decisions, two in favor of the bloggers -- Doe v. Cahill, in which the Delaware Supreme Court reversed a lower court's decision ordering an ISP to reveal the identity of anonymous posters to a blog, and Penn Warranty Corp. v. DiGiovanni, in which a New York trial court dismissed a libel suit brought against a man for his 45-page Web site detailing his gripes against a car insurer -- and one, Sollami v. Sheppard, in which New York's Appellate Division allowed a defamation case against a blogger to proceed to trial.

This blog joins launch of Corante Media Hub

I am proud to announce that this blog today becomes a member of the newly launched Corante Media Hub, part of a new direction from Corante that has it partnering with independent bloggers on specific topics and aggregating, distilling and synthesizing their writings in topic-specific sections, or "hubs." Other hubs Corante has launched so far are Web and Marketing.

Corante founder and editor Hylton Jolliffe describes it this way:

"The goal of this page: to become a trusted and useful tool for you - one that helps you find and sift through what's worth reading, one that provides valuable context and perspective, and one that engages in and extends the conversations so essential to the rise of social media."

I have long respected the innovative work of Corante, which describes itself as "the world's first blog media company." Many in the legal community are already familiar with its hosted blogs, such as Between Lawyers and Copyfight. As part of the Media Hub, I have the added privilege of becoming affiliated with a distinguished group of independent bloggers who form the Media Hub's contributors. Stay tuned as this continues to evolve.

Eagle-Tribune: Open meeting law needs teeth

Massachusetts needs a stronger open meeting law, says Eagle-Tribune Editor-in-Chief William Ketter in an opinion piece published yesterday, Strengthen the Public's Right to Know About Local Government. Wrote Ketter:

"It makes sense ... to take action against those officials who deliberately disregard your right to know. And 40 states do impose civil or criminal penalties for violating open meeting laws.

"Not in Massachusetts. Here, there's hardly any punishment for meeting unlawfully in secret, away from the people and the press."

(The piece includes a quote from me speaking to a recent gathering of state legislators.)

Union Leader says 'no' to shield law

An editorial today in New Hampshire's Union Leader opposes a federal shield law for journalists. It says:

"Prosecutors must have the ability to investigate leaks, even if that means subpoenaing journalists, who are not above the law. Putting journalists off limits does not further the cause of justice, it impedes it."

Pentagon FOI logs show little media interest

When blogger Michael Petrelis made an FOIA request to the Pentagon for a list of all FOIA requests it received since 2000, he was hoping to find out whether former New York Times reporter Judith Miller or other Times' reporters had sought Pentagon records. He found no requests from Miller, but the more surprising result was the overall dearth of FOIA requests from the media. Petrelis made his findings available to The Raw Story, which published them as Freedom of Information logs shed light on media's military curiosity. The article includes a partial list of the results, with Raw Story promising the complete list this week.

As Raw Story reports:

"The Pentagon’s records reveal that the law is broadly used—more than 10,000 requests have been made since 2000. But they also illuminate a seeming dearth of curiosity by news organizations about the internal files of the U.S. military establishment.

"This lack of curiosity appears particularly evident among the nation’s three largest newspapers."

The three largest U.S. newspapers -- USA Today, the Wall Street Journal and the New York Times -- together made just 36 requests between 2000 and February 2005. The Associated Press made 73. The newspaper that made the most requests was the Los Angeles Times, with 42. Next was the Washington Post, with 34. Of television networks, CBS News led in number of requests, with 32, followed by Fox News with 22.

The report prompted Editor & Publisher to ask, Are Media Using the FOIA Enough to Get Military Info?

Calif. paper's Web site does not confer jurisdiction in Illinois

An Illinois federal court ruled Oct. 27 that courts in that state do not have jurisdiction over a defamation suit against a California newspaper that operates a Web site because the site's interactivity with non-California residents is minimal, according to Mealey's intellectual property news. Another report on the case is available at Federal Civil Practice Bulletin.

Court applies reporter's shield to energy newsletters

A U.S. District Court judge in New York City ruled this week that the reporter's privilege protects two energy industry newsletters from revealing information subpoenaed in litigation under the Commodity Exchange Act. More on the ruling:

• Report from The Reporters Committee for Freedom of the Press.

• Text of the opinion.

C2C this week: The Patriot Act and national security letters

With key provisions of the Patriot Act due to sunset Dec. 31 and in the wake of a frightening report by The Washington Post about the FBI's excessive use of national security letters, this week's Coast to Coast podcast focuses on The Patriot Act. Joining cohost J. Craig Williams and me to discuss this are:

• Jameel Jaffer, an attorney for the American Civil Liberties Union who has litigated several significant cases involving government secrecy and national security.
• Coleen Rowley, the former FBI agent who exposed lapses in the investigation of suspected Al Qaeda operative Zacarias Moussaoui and who is now a Democratic candidate for Congress from Minnesota.

You can find the complete library of Coast to Coast programs here. The program is produced by the Legal Talk Network and sponsored by Law.com.

FEC rules that a blog is 'the press'

The Federal Election Commission today unanimously approved Advisory Opinion 2005-16 finding that the Fired Up! network of blogs qualifies for the so-called press exception to federal campaign finance law.

That exception says that political contributions and expenditures do not include "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station ... , newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate."

In explaining its opinion, the FEC said:

"An examination of Fired Up’s websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up’s commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities’ websites and through Fired Up’s original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up’s websites are similar to letters to the editor and do not alter the basic function of Fired Up."

Reporter held in contempt in civil suit

The Washington Post reported today that a federal judge found one of its reporters in contempt of court yesterday for refusing to reveal who gave him information about an investigation of nuclear scientist Wen Ho Lee.

U.S. District Judge Rosemary M. Collyer ruled that Lee is entitled to know reporter Walter Pincus's sources because his lawsuit against the government for alleged violations of federal privacy law cannot go forward otherwise, and because he has exhausted all other possibilities for getting the information, the report said.

The order carried no jail time, but the judge imposed a fine of $500 a day until Pincus agrees to testify. The judge suspended the fine for at least 30 days to allow time for Pincus to appeal.

Secret dockets in Florida federal courts

Via Law.com comes this report on federal judges in Florida "completely hiding cases from public view by placing the cases on a secret court docket." One judge's explanation: "Judges are not gods. Like any human being, we make mistakes."

House passes bill allowing cameras in federal courts

Federal district court trials and appellate arguments could be televised at the discretion of the presiding judge under an amendment passed on a 375-45 vote in the House of Representatives last week, according to a report from The Reporters Committee for Freedom of the Press.

The amendment to the "Secure Access to Justice and Court Protection Act" includes provisions of the "Sunshine in the Courtroom Act," a bill that would allow camera and recording devices into federal courts on a three-year trial basis.

U.S. Rep. Steve Chabot (R-Ohio), a sponsor of the bill along with U.S. Rep. John Conyers (D-Mich.), said:

"Allowing television cameras in federal courts will open up the judiciary and allow the American people to see how their justice system operates. This is a good public policy if you are a believer in open and accountable government."

The bill now goes to the Senate, where Sens. Chuck Grassley (R- Iowa) and Ted Stevens (R-Alaska) have already introduced similar legislation.

But at an American Bar Association seminar last week, three Supreme Court justices urged caution and study before allowing cameras into the courts.

The bill is H.R. 1751.

Middlesex DA posts open meeting guidelines

The page is dated 2003, but I just came across it and am pleased to see that Middlesex District Attorney Martha Coakley has devoted a page of her Web site to the state Open Meeting Law, including a downloadable set of open meeting guidelines.

Judges, journalists and openness

I attended a conference today of about 50 judges and 50 journalists from Massachusetts, New Hampshire and Rhode Island. Among the judges were chief justices, appellate judges and trial judges. The journalists represented print, TV, radio and wire service organizations. Topics focused on ethics and access, from both sides of the coin.

The conference, organized by the National Center for Courts and Media, was very good. But as a lawyer and journalist, I found it disheartening. Here is why.

I take it as a fundamental precept of our democratic system that government should be open and accessible to the public. Openness should be the status quo, with exceptions made only when the presumption of openness is outweighed by considerations of security or privacy.

What I heard from a majority of the judges in attendance today was just the opposite. For them, the status quo is never to talk to the media. Time and again today, I heard judges say that they would not accept a phone call from a reporter or would decline comment if approached in person.

One reason, of course, is that judges comment on the cases that come before them through their written opinions and orders. They consider it inappropriate to attempt to explain or elaborate on those opinions.

But of even greater concern to the judges were the canons of judicial ethics that govern them. In Massachusetts, the Code of Judicial Conduct prohibits a judge from commenting on a case. It says, in Canon 3B.(9):

"Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel."

The Canon provides three exceptions:

"(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.
"(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.
"(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity."

At today's conference, we watched a videotape in which a judge sat with a reporter and, in response to a question about a case, gave a scholarly, mannered and informative overview of the process of judging. He studiously avoided commenting directly on the case. Instead, he explained that, as a judge, he looks to sources of law such as the constitution and case law and then applies that law to the record. He offered no specifics whatsoever about the case the reporter asked about, except to point to the voluminous pile of documents by his desk that formed the case record. Most of the journalists in the room thought this clearly fell within exception (a), "to explain for public information the procedures of the court." Most of the judges, however, considered the judge to have overstepped the bounds of appropriate conduct and possibly to warrant investigation by the judicial conduct commission.

If judges are relying on these rules to shut the door on reporters in circumstances such as this, then the rules need to be changed. (Not to mention the question of whether so broad a ban on judicial speech is constitutional. See, Republican Party of Minnesota v. White.) Rather than have rules that create a presumption in favor of silence, why not craft rules that do the reverse – that create a presumption in favor of judicial openness with certain exceptions to protect personal privacy and judicial impartiality. Our government should be modeled on openness – whichever in the executive, legislative or judicial branches. The rules should encourage this and judges should be taught this.

There is much misunderstanding among judges and journalists. Conferences such as this help to bridge the gap. But common sense goes a long way too. Judges and journalists must be able to talk to each other in the normal course, in order to illuminate the courts in the eyes of the public.

Judith Miller: The Web site

Judith Miller, the former New York Times reporter who spent 85 days in jail for refusing to disclose her source in the Plamegate controversy, has a Web site. It includes her letter bidding farewell to the Times, various articles about her jailing, articles about the reporter's privilege, her biography and information on her book about the Middle East.

C2C this week: What's next for Vioxx cases?

This week's Coast to Coast -- the legal news audiocast hosted by J. Craig Williams and me -- looks at the future of Vioxx litigation in the wake of Merck's recent win in New Jersey. Our guests this week are:

• Thomas V. Girardi of Girardi Keese, Los Angeles, the lawyer whose case against Pacific Gas & Electric became the storyline for the movie Erin Brockovich and who now serves on the liaison committee for Vioxx multi-district litigation in the federal courts.
• Dawn M. Barrios, partner with Barrios, Kingsdorf & Casteix, New Orleans, La. She also serves on the Vioxx liaison committee and her firm represents some 2,000 Vioxx plaintiffs.
• Lisa Brennan, staff reporter for the New Jersey Law Journal who covered the Vioxx trial there.

The audiocast is available for download or in streaming form. The complete library of Coast to Coast programs is available through the Legal Talk Network.

Pence speech offers hope on shield bill

U.S. Rep. Mike Pence (R-Ind.), principal sponsor of a bill (H.R. 3323) that would create a federal shield law, said today he is hopeful the House Judiciary Committee will hold a hearing on the bill before year end and that he believes it is possible a final bill will emerge from the current Congress.

Addressing a conference of newspaper association managers, lobbyists and lawyers in Washington, D.C., Pence cited progress in gaining support for the bill in both the House and the Senate and said that he continues to have a dialogue with Justice Department officials over their objections to the bill. He considers it noteworthy that the Senate Judiciary Committee has held two hearings on the bill already at a time when it has had to consider multiple Supreme Court nominations.

"It is possible in this Congress to achieve some reinvigoration within the U.S. Code of the First Amendment freedom of the press," he said.

The success of the bill will turn, Pence believes, on what happens in the Senate, where U.S. Sen. Richard G. Lugar (R-Ind.) has filed a bill (S. 1419) that mirrors the Pence bill. If it moves through the Senate, Pence said, he expects it will receive full consideration in the House.

Pence, who describes himself as "a Christian, a conservative and a Republican, in that order," made clear that he sees his support for journalists as consistent with his conservative values. "For someone who believes in limited government, the only check on government power in real time is a free and independent press," he said.

But he emphasized that he sees the shield bill as protecting the public more than the press. "This is about the public's right to know, this is not about protecting reporters."

The public's right to know faces its greatest threat ever, he believes, in the wake of the indictment of I. Lewis "Scooter" Libby. The prospect of four reporters testifying under oath against Libby "will send a tremendous chilling message across the fabric of American government."

Asked about the bill's perceived lack of protection for bloggers, Pence -- himself a blogger -- acknowledged that the bill takes a traditional approach to defining who is a reporter, but he said that the definition will take in some bloggers. He named Matt Drudge as an example of a blogger who likely would be covered, but he said the courts would likely have to address the issue "on a blogger-by-blogger basis."

Cornyn on open government

I am in Washington, D.C., at a conference of newspaper association lawyers, lobbyists and directors, where we heard today from U.S. Sen. John Cornyn (R-Texas), co-sponsor with U.S. Sen. Patrick Leahy (D-Vt.) of several bills aimed at strengthening public access to government information. A strong advocate of open government, Cornyn's efforts as former Texas attorney general to promote open government earned him the 2001 James Madison Award from the Freedom of Information Foundation of Texas. In his comments today, he reported nothing new about the FOIA bills, which you can find covered in some detail on his OPEN Government Act Web page. One quote among his comments that stood out for me was this: "Government too often regards [FOIA compliance] as a burden. My attitude is that it is a government's first obligation."

Alito on the First Amendment

Declan McCullagh offers an excerpt of Saxe v. State College Area School District.

'Coast to Coast' takes on the Alito nomination

Our weekly legal news podcast Coast to Coast this week considers the nomination of Judge Samuel Alito to the Supreme Court. Joining J. Craig Williams and me to discuss the nominee and his likely impact on the court are:

• Drucilla Stender Ramey, executive director of the National Association of Women Judges as well as a civil rights attorney and former executive director of the Bar Association of San Francisco.
• Carl W. Tobias, Williams Professor of Law at the University of Richmond School of Law.
• Matt Margolis, founder of Blogs for Bush and GOP Bloggers.

You can listen to and find descriptions of all of our programs here. The program is produced by the Legal Talk Network.

Woodward: Secrecy greater threat than terrorism

Bob Woodward told a Yale Law School class reporters need to keep digging to "get to the bottom of things," the New Haven Register reports. Otherwise, "We're on the path of a secret government." Government secrecy, Woodward said, is a bigger threat to America than terrorism or economic collapse.

Bill to shield reporters filed in Mass.

Massachusetts Senate President Robert Travaglini today filed a bill that would shield reporters from revealing their sources. The bill would prevent state courts and government entities from compelling a reporter to disclose the source of any news or information. It would also prohibit the required disclosure of a reporter's notes, outtakes, photographs, film, recordings and other data.

Note: I served on a committee of news professionals that drafted this bill and chaired the subcommittee that developed the committee's initial draft.

The bill is broad in its definition of who it covers, in order to include bloggers and freelance reporters. It defines coverage to include any person who "engages in the gathering of news or information" and "has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public."

I do not yet have the official bill number or text, but I have the text of the bill we drafted, which is the same as that filed today. If you would like a copy in Word format, send me a note at ambrogi-at-gmail.com.

Miller testifies on shield law

New York Times reporter Judith Miller appeared today before the Senate Judiciary Committee to testify on a proposed federal shield law. "Even flawed reporters should not be jailed for protecting even flawed sources," she testified, according to CNN. Meanwhile, CNN analyst Jeff Greenfield cites a long-ago Supreme Court justice in commenting on the Miller case, "The more you explain it, the less I understand it."

Miller to testify in Senate tomorrow

The Senate Judiciary Committee will hold a hearing tomorrow on reporters' privilege legislation. Among those scheduled to testify are New York Times reporter Judith Miller, ABC News President David Westin and Philadelphia Inquirer Managing Editor Anne Gordon.

A blog for Sunshine Week

I attended a conference this weekend where I heard Debra Gersh Hernandez, national coordinator of Sunshine Week, talk about plans for Sunshine Week 2006. Like the first event this year, the week will be devoted to raising public understanding of the importance of open government.

In the course of her talk, Hernandez announced that she has launched a Sunshine Week blog. It will provide news and commentary about open government and freedom of information issues, with particular focus on planning for the March 12-18, 2006, event.

I previously wrote about the Sunshine Week Web site here and provided a round-up of Massachusetts papers' participation in this year's Sunshine Week here.

Delaware Supreme Court protects anonymous blog postings

The Delaware Supreme Court yesterday handed down an important ruling that protects anonymous bloggers from attempts to unnmask them through libel lawsuits. This is the first ruling by a state supreme court on this matter. The court said that, if an elected official claims he has been defamed by an anonymous posting on a blog, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to support his claim.

Read more:

• Report by the New York Times.
• Text of the opinion: John Doe No. 1 v. Cahill.
• Further details in an EFF news release.

Supreme Court Turns Down Boston Globe Appeal

The Supreme Court turned down an appeal today from The Boston Globe and a former reporter in a $2 million defamation judgment stemming from the paper's refusal to reveal a confidential source, AP reports. Justices had been told that the case was important for protecting news sources, a subject of special interest with the summer jailing of New York Times reporter Judith Miller in a CIA leak case and court fights over civil contempt findings against other journalists.

The Globe had been sued by a doctor who argued news articles wrongly blamed her for the death of a patient. The patient, Betsy Lehman, was the newspaper's health columnist, who died in 1994 from an overdose of experimental cancer drugs.

The newspaper, relying on confidential sources, reported in 1995 that Dr. Lois Ayash was the leader of a team of doctors caring for Lehman at the Dana-Farber Cancer Institute in Boston and that she countersigned a medical order that resulted in Lehman's death.

The Globe later published a correction saying Ayash had not countersigned the order, while standing by the claim that she was the head of the treatment team.

I wrote previously about this case here.

In Miller case, history repeats itself

Writing in today's Washington Post, media lawyer Nathan Siegel says that the Judith Miller scenario has repeated itself in almost every generation since the beginning of modern American journalism, but each time with new protections for the subsequent generation of journalists. He writes:

"This pattern is not mere coincidence. Rather, I think, it reflects a fundamental conflict between the judiciary and the press that tends to recur whenever a new generation of judges and prosecutors uninfluenced by the memory and lessons of prior conflicts emerges. This time either Congress or the Supreme Court should take the lessons of history to heart and put this recurring controversy to rest."

Times reporter released from jail

Judith Miller, the New York Times reporter who has been jailed since July 6 for refusing to testify in the C.I.A. leak case, was released from a Virginia detention center this afternoon after she and her lawyers reached an agreement with a federal prosecutor to testify before a grand jury investigating the matter, the New York Times reports.

Reporters Without Borders publishes blogging handbook

Reporters Without Borders has published a Handbook for bloggers and cyber-dissidents, which is available as a PDF download. The handbook is intended as a guide both to creating a blog and to maintaining anonymity as a blogger. As the handbook explains:

"Bloggers are often the only real journalists in countries where the mainstream media is censored or under pressure. Only they provide independent news, at the risk of displeasing the government and sometimes courting arrest.

"Reporters Without Borders has produced this handbook to help them, with handy tips and technical advice on how to to remain anonymous and to get round censorship, by choosing the most suitable method for each situation."

More than a legal guide, the handbook is a how-to for new bloggers, with chapters on setting up blogs, gettting blogs recognized by search engines, and the ethics of blogging. These in addition to chapters on how to blog anonymously, technical ways to get around censorship, and ensuring e-mail is private.

Bloggers as journalists: making new rules

This week's Coast to Coast podcast looks at the issue Bloggers as Journalists: Making New Rules. My cohost J. Craig Williams and I discuss this with four guests:

• Bill Felling, long-time broadcast journalist and CBS News national editor.
• Wendy Seltzer, visiting assistant professor of law at Brooklyn Law School and founder of Chilling Effects Clearinghouse.
• Jeff Lewis, partner at Enterprise Counsel Group in Irvine, Calif., who also writes the SoCalLawBlog.
• Kurt Opsahl, staff attorney with the Electronic Frontier Foundation focusing on civil liberties, free speech and privacy law.
  

It is a vibrant discussion about bloggers and journalists and free speech. The podcast is available in streaming Windows Media format or as an MP3 download. Listen to it here or go here for the full library of previous Coast to Coast programs.

Round-up of useful sites for media lawyers

Law Technology News has posted my latest Web Watch column, Support for Media Lawyers: With Journalists Under Fire, Websites Offer Help. (LTN's site requires free registration to view articles.)

FOIA compliance deteriorating, report says

Government compliance with the Freedom of Information Act appears to be deteriorating in the aftermath of the Sept. 11, 2001, terrorist attacks, according to a Society of Environmental Journalists report released today, A Flawed Tool - Environmental Reporters' Experiences with the Freedom of Information Act.

The SEJ interviewed 55 reporters, finding that excessive delays in releasing information are common - with some FOIA requests taking more than a year to fulfill. Even when documents are turned over, agencies frequently black out huge amounts of information, the report found.

Among the report's findings:

• Three-quarters of the reporters interviewed who use FOIA on an occasional or frequent basis encountered significant delays in getting information from federal agencies. In some cases, those delays exceeded a year.
• The federal agencies most cited for failing to respond promptly and fully were the Department of Energy, Department of Defense, Food and Drug Administration and the Mine Safety and Health Administration.
• Some agencies decline to answer routine inquiries for documents such as Superfund reports and underground mine inspection reports, forcing reporters to file time-consuming FOIA requests for the information.
  

"This report clearly shows that Congress needs to take action to make sure agencies are complying with the Freedom of Information Act, and should set up a system to punish those that aren't," said SEJ President Perry Beeman, who covers environment for The Des Moines Register.

Delaware court hears blog libel case

From newszap.com:

"DOVER - The Delaware Supreme Court waded chest-deep Wednesday into an Internet free-speech case, seeking to strike a balance between one person's right to free speech against another's claims of libel.

"Smyrna Town Councilman Patrick J. Cahill and his wife Julie filed the suit last year in Superior Court alleging they were defamed by four anonymous posters to a community issues Web log - or blog - on the Internet."

Podcast on Rehnquist, Roberts and the Supreme Court

The latest installment of Coast to Coast, the weekly legal news podcast cohosted by J. Craig Williams and I, is now available. Recorded earlier today, the program, titled Roberts' Rocky Road, brings together a formidable panel of guests to discuss the Roberts nomination and the future of the Supreme Court. Joining Craig and I were:

• Craig Bradley, Indiana University School of Law professor and former law clerk for Justice Rehnquist.
• Elliot Mincberg, vice president, general counsel and legal director, People for the American Way.
• Lyle Denniston, veteran Supreme Court reporter for newspapers including the Baltimore Sun and now a contributor to SCOTUSblog.
• Gail Heriot, University of San Diego School of Law professor and contributor to the blawg, The Right Coast.

You can find all the Coast to Coast programs on the Legal Talk Network. We welcome your feedback on the program and your suggestions for topics to cover in future shows.

Papers win bid for bankruptcy report

An investigative report compiled by a court-appointed bankruptcy examiner is a public record and must be made available to the news media, the 1st U.S. Circuit Court of Appeals ruled yesterday in Gitto v. Worcester Telegram & Gazette.

Two media organizations, the Worcester Telegram & Gazette Corp. and MediaNews Group Inc., sought release of the report. They prevailed in their request in both the bankruptcy court and the district court before the case reached the 1st Circuit.

The case arose after Gitto Global Corp., a Massachusetts plastics manufacturer, filed for Chapter 11 bankruptcy and the bankruptcy court appointed an examiner to investigate allegations of accounting irregularities.

Two former executives of the company argued that the resulting examiner's report should be impounded under 11 U.S.C. section 107(b)(2), which provides an exception to public access for documents that contain material that is scandalous and defamatory.

But the 1st Circuit rejected their argument that any material tending to harm a person's reputation triggers the exception. In so doing, the court affirmed that there is a long-standing common law presumption of public access to judicial records.

"To qualify for protection under the § 107(b)(2) exception for defamatory material," the court said, "an interested party must show (1) that the material at issue would alter his reputation in the eyes of a reasonable person, and (2) that the material is untrue or that it is potentially untrue and irrelevant or included for an improper end."

Calif. Assembly urges federal shield law

By a unanimous 70-0 vote, the California state Assembly urged the U.S. Congress to enact a shield law to protect journalists, Editor & Publisher reports. The resolution is sponsored by the California Newspaper Publishers Association, and supported by the American Civil Liberties Union, the California First Amendment Coalition, Californians Aware, and the Planning and Conservation League.

DA says school board broke the law

The Middlesex district attorney's office says that the Wayland School Committee violated the state open meetings law last year when it kept the public out of its closed-door review of the superintendent of schools, according to the MetroWest Daily News.

According to the report, the DA concluded that the School Committee violated the open meeting law when it used a pair of executive-session meetings to discuss the job review of the superintendent last year.

The committee also violated the law when it did not provide public access to individual reviews of Burton written by committee members and copies of his 2004 job evaluation, the DA found.

Bob Dole endorses federal shield law

Writing in the op-ed page of today's New York Times, Bob Dole expresses support for a federal shield law and concern over the jailing of Judith Miller.

"As someone with a long record of government service, I must admit that I did not always appreciate the inquisitive nature of the press. But I do understand that the purpose of a reporter's privilege is not to somehow elevate journalists above other segments of society. Instead, it is designed to help guarantee that the public continues to be well informed."

Shield law would make media vulnerable to being legislated

So says columnist E. Thomas McClanahan in the Kansas City Star:

"That’s because a federal shield law would invite Congress to begin parsing the First Amendment. Lawmakers would inevitably decide where key lines should be drawn, such as who should be included in a shield law. Such a debate ought to make First Amendment supporters more than queasy."

Reporter-source confidentiality still viable

While legal skirmishes over confidential sources are of concern to journalists, businesspeople should not be overly concerned when a reporter calls for information, two Cincinnati lawyers say in an article in the Business Courier.

"First, the events that sent [Judith ]Miller to jail are the result of a narrow set of circumstances that rarely occur. ... Second, the vast majority of interactions between sources and reporters do not involve a source who has committed a crime. ... Third, sources who want to keep their identities secret should be clear about their expectations to a journalist. ... Finally, the relationship between a reporter and a source is ultimately one of trust, built on the common goal of providing information to the public."

Journalism ed group endorses shield law

The Association for Education in Journalism and Mass Communications, meeting in San Antonio this week, endorsed a pending federal shield law, the Express-News reports. But a panel discussion on the topic brought out the pros and cons of such a law, according to the report.

Dallas attorney Robert Latham argued that shield laws are needed, because while the press is mentioned in the First Amendment, the Constitution is open for interpretation, the report said. But Roy Moore, an attorney and journalism professor at the University of Kentucky, said that while he thinks a federal shield law will ultimately be passed, reporters need to be careful about its implications.

ABA votes to support federal shield law

The American Bar Association House of Delegates today voted to support a federal reporters’ shield law. Michael S. Greco of Boston, who became ABA president today, said:

"Our action today acknowledges the important role of journalists and the media in providing the public with significant information to ensure an informed democracy, and reporters’ need to be able to protect sources in order to get that information."

The ABA would allow the shield to be lifted upon three conditions:

• The information sought from a journalist is essential to a critical issue.
• All reasonable alternative sources for the information have been exhausted.
• The need for the reporter’s information clearly outweighs the public interest in free flow of information.

Senate panel voices support for shield law

The Senate Judiciary Committee last week gave "a generally positive reception" to a federal shield law, the New York Times reports. Reporter Lorne Manly writes:

"The Senate Judiciary Committee gave a generally positive reception on Wednesday to proposed legislation that would protect journalists from having to divulge confidential sources in most cases. But a harshly worded dissent from the Justice Department, which called the bill 'bad public policy' that would hamper its ability to enforce the law and fight terrorism, underscored the difficult road the legislation faces in becoming law."

Senate judiciary committee takes up shield law tomorrow

The U.S. Senate Committee on the Judiciary is scheduled to meet tomorrow to hear testimony on a federal reporters' shield law. According to the notice of hearing, scheduled witnesses include Time Magazine correspondent Matthew Cooper, Time Editor-in-Chief Norman Pearlstine, New York Times political columnist William Safire, Deputy Attorney General James Comey, University of Chicago Law Professor Geoffrey Stone and Washington, D.C., lawyer Lee Levine.

More on Friday's shield law ruling

Two more reports on Friday's shield law ruling from the 11th Circuit:

• Wall St. Journal: Sports Illustrated Loses a Key Ruling
• Law.com: 'Sports Illustrated' Ruling Pressures Media Attorneys

11th Circuit says First Amendment protects reporter's source

In an opinion issued today, Price v. Time Inc., the 11th U.S. Circuit Court of Appeals held that the First Amendment protects a Sports Illustrated reporter from having to reveal his confidential source. Applying a balancing test, the court found that the plaintiff failed to prove that he made reasonable efforts to discover the information from alternative sources. The ruling came in a libel case brought by former University of Alabama football head coach Mike Price against SI and reporter Don Yaeger.

Boston Herald calls for shield law

The Boston Herald, in an editorial published yesterday, Only a shield law can thaw the chill, says this isn't just about the press. "It's about granting all journalists the protections that allow us to do our jobs - in the interest of keeping the public better informed."

Newspapers ask stiffer penalties for violations of open meeting law

Today's MetroWest Daily News reports on yesterday's legislative hearing:

"Hoping to thwart local and state boards from illegally deciding public matters in secret meetings, newspaper advocates asked lawmakers yesterday to add teeth to the state's Open Meeting Law."

Follow the link above to read reporter Emelie Rutherford's complete story.

Legislative committee takes up open meetings bills

The Massachusetts legislature's Joint Committee on State Administration and Regulatory Oversight heard testimony today on six bills filed by the Massachusetts Newspaper Publishers Association to toughen the enforcement provisions of the state's open meetings laws.

The committee, chaired by Sen. Dianne Wilkerson (D-Boston) and Rep. Antonio F.D. Cabral (D-New Bedford), heard testimony by me, as MNPA executive director, and by media lawyer Peter J. Caruso of North Andover, who serves as counsel to the MNPA.

Several members of the committee expressed support for the bills. Rep. Cabral said his position on open meeting law reform may be even stricter -- he would like to see elimination of some of the statutory exceptions. Rep. Michael E. Festa (D-Melrose), House vice chair of the committee, said that as a former school committee member in Melrose, he had seen officials skirt the law. "I think the legislation makes perfect sense," he said. Rep. Marie J. Parente (D-Milford), said that she supports these bills because the open meeting law cannot be effective if there are no penalties for its violation.

The six bills -- H. 3517, H. 3518, H. 3519, H.3619, H. 3620 and H. 3621 -- would amend the open meeting laws to:

• Make it a misdemeanor for an official to knowingly and intentionally violate the law, punishable by a fine of not more than $1,000 for a first offense and not more than $2,500 for subsequent offenses.
• Authorize courts to impose a $500 civil fine against officials who attend meetings in violation of the law.
• Authorize courts to award attorneys' fees and costs in actions to enforce the law.
• Authorize courts to impose a $1,000 civil fine against state bodies that violate the law, in the same way that the law now authorizes fines against local bodies.

The committee is not expected to act on the bills until September.

The single-best resource on shield laws

Yesterday's jailing of New York Times reporter Judith Miller for refusing to disclose her sources heightens national attention on reporters' shield laws. For anyone wanting to learn more about reporters, subpoenas and shield laws, there is no better resource on the Web than The Reporters Committee for Freedom of the Press. Its special section, Reporters and Federal Subpoenas, provides in-depth and frequently updated coverage of efforts to enact a federal shield law as well as of ongoing legal controversies involving reporters' subpoenas. A separate section, The Reporter's Privilege, is a detailed examination, written in 2002, of the law regarding the reporter's privilege in every state and federal circuit. It provides statutes and cases and discusses both substantive and procedural issues.

Pearlstine: Editors not above the law

Norman Pearlstine, editor-in-chief of Time, tells CNN that editors are not above the law.

Media lax as feds go on free press attack

Chicago Sun-Times columnist Carol Marin asks why her colleague Robert Novak is not also headed to jail and why the media have not done more "to trumpet what I think should be our profound outrage at what's going on."

Meanwhile, Novak tells CNN he will reveal all once the case is closed.

High court declines to hear Miller, Cooper appeals

The Supreme Court issued an order today denying to hear the appeals of reporters Judith Miller and Matthew Cooper. The order stated:

"The petitions for writs of certiorari are denied. Justice Breyer took no part in the consideration or decision of these petitions."

Supreme Court to consider confidential sources

At its private conference tomorrow, the U.S. Supreme Court will consider whether to hear the appeal of reporters Judith Miller and Matthew Cooper, who face possible imprisonment for refusing to divulge their sources, Legal Times reports.

Freelancers should file claims under Tasini

If you published articles on a freelance basis since 1978, you may be eligible to receive additional payment for your work. A Web site devoted to the class action provides claim forms and complete details. I've posted more information at my LawSites blog.

Judge creates exception to state's absolute shield law

Even though Pennsylvania law provides unqualified protection against journalists being forced to disclose their confidential sources, a Pennsylvania trial judge has carved out an exception and ordered a former newspaper reporter to reveal her confidential source, The Reporters Committee for Freedom of the Press reports. The judge ruled that the shield law must yield to the need to enforce grand jury secrecy in a defamation lawsuit filed against the jointly owned newspapers The Scranton Times and The Scranton Tribune and the former reporter Jennifer Henn. The ruling is being appealed, RCFP says.

The Pennsylvania Shield Law, 42 Pa. C.S.A. § 5942(a), provides:

"No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit."

McDermott: Public's right to know needs a safeguard

Citing The Washington Post and Deep Throat as standard bearers for the bond between reporters and confidential sources, Larry McDermott, publisher of The Republican in Springfield, Mass., writes today in support of federal and state legislation that would protect reporters from being forced to disclose confidential sources. He says:

"The long-standing tradition of protecting confidential sources has come under sustained attack with an unprecedented number of journalists cited for contempt of court. This threatens the independence of journalism and unfettered newsgathering in this country. Ultimately at risk is the public's knowledge about its government."

McDermott's column includes a quote from me, in my capacity as executive director of the Massachusetts Newspaper Publishers Assocation:

"Recent legal developments threaten to take away reporters' ability to promise confidentiality. A shiled law in Massachusetts would help ensure that inside sources continue to come forward to expose wrongdoing, without fear of reprisal."

No bill is pending in Massachusetts. Representatives of news media in the state have formed a committee, chaired by Charles Kravetz, vice president of news at New England Cable News, to push for a law here. (I am a member of that committee.)

Sponsors withdraw shield law rider

The sponsors of the shield law rider I reported yesterday have withdrawn the proposal from consideration as part of the state budget process. Whether it will emerge again during this legislative session remains to be seen.

Budget rider would create Mass. shield law

As the Massachusetts Senate takes up debate this week on the state budget, two Republican lawmakers have proposed an amendment that would create a shield law for reporters in the state. Senate Republican Leader Brian P. Lees and Sen. Scott P. Brown filed the rider, which would provide qualified protection against reporters being compelled to testify.

Following is the text:

Clerk Number: 603

BROWN- REPORTER SHIELD LAW

Messrs. Brown and Lees moved that the bill be amended by inserting, after Section ___, the following new Section:-

“SECTION ____. Notwithstanding and special or general law to the contrary the following will be known as the “Free Flow of Information Act.”

Section 1. Definitions: the following words used in this chapter shall have the following meanings, unless a different meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intention of the legislature:

Covered Person: (A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that (i) publishes a newpaper, book, magazine, or other periodical; (ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or (iii)_ operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) and employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

Document: The term “document” means writings, recordings, and photographs, records, prepares, or disseminates news or information for such an entity.

State Entity: shall mean an entity or employee of the judicial, legislative, or executive branch of the Federal Government with the power to issue a subpoena or provide other compulsory process.

Third Party: a person other than a covered person.

Section 2. Conditions for Compelled Disclosure.

(a) No state entity may compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under State Law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to covered person:

(1) that the entity has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person; and

(2) that

(A) in a criminal investigation or prosecution, based on information obtained from a person other that a covered person (i) there are reasonable grounds to believe that a crime has occurred; and (ii) the testimony or document sought is essential to the investigation, prosecution or defense; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter.

(b) Limitations on Content of Information. The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible

(1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and

(2) be narrowly tailored in subject matter and period of time covered.

Section 3. Commercial or Financial Information. The provisions of Section 2 do not apply to a request by a State entity for any testimonial or document that consists of only commercial or financial information unrelated to newsgathering or news and information dissemination by a covered person.

Section 4. Commercial or Financial Information. The provisions of section 2 do not apply to a request by a State entity for any testimony or document that consists of only commercial or financial information unrelated to newsgathering or news and information dissemination by a covered person.

Section 5. Compelled Disclosure Prohibited. Notwithstanding any provision of section 2, in any proceeding or in connection with any issue arising under State Law, no State entity may compel a covered person to disclose-

the identity of a source of information-

from whom the covered person obtained the information; and

who the covered person believes to be a confidential source; or

any information that could reasonably be expected to lead to the discovery of the identity of such a source.

Section 5. Compelled Disclosure from Third Parties.

(a) Conditions for Compelled Disclosure.- The provisions of sections 2, 3, and 4 shall apply to any testimony or document that a State entity seeks from a third party if such testimony or document consists of any record, information, or other communication tat relates to a business transaction between such third party and a covered person. Such record, information, or other communication includes any telephone record or other record held by a telecommunications service provider, Internet service provider, or operator of an interactive computer service for a business purpose.

(b) Notice and Opportunity Provided to Covered Persons. A court may compel the testimony or disclosure of a document under this section only after the party seeking such a document provides the covered person who is a party to the business transaction described in subsection (a)-

(1) notice of the subpoena or other compulsory request for such testimony of disclosure from the third party not later than the time at which such subpoena or request is issued to the third party; and

(2) an opportunity to be heard before the court before the time at which the testimony or disclosure is compelled.

Section 6. Activities not Constituting a Waiver. The publication or dissemination of any testimony or document (or portion of such testimony or document) sought under section 2 shall not waive the requirements of such section. The publication or dissemination of any testimony or document (or portion of such testimony or document), identity, or information described in section 4 shall not waive the prohibition described in such section.

Greenfield judge OKs photos in court

In Greenfield, Mass., yesterday, a Superior Court judge allowed news photographers to take courtroom photographs of a suspect in a murder. The judge ruled that the press has a clear constitutional right to be present during routine court proceedings.

The question of press rights to photograph the suspect arose earlier in the week at his arraignment on misdemeanor larceny charges. He has not been charged in the murder, but prosecutors have identified him as a "person of interest" in the slaying.

A report on the ruling is available via the Massachusetts Newspaper Publishers Association.

Survey: Press, public differ on 1st Amendment

Only 14 percent of Americans and 57 percent of newspaper and TV journalists can name “freedom of the press” as a right that is guaranteed by the First Amendment, according to a University of Connecticut study released today.

When asked to identify the specific rights guaranteed by the First Amendment, “freedom of speech” is cited most frequently (58 percent) by Americans, followed by freedom of religion (16 percent). The right to peaceably assemble (10 percent), and the right to petition government for a redress of grievances (1 percent) are even less identifiable than free press.

Since UConn last conducted this survey in 1997,there has been an increase in the perceived importance of First Amendment rights. Eighty percent of Americans now say that freedom of speech is an essential right, up from 72 percent in 1997. The perceived importance of freedom of the press also spiked from 60 percent in 1997 to 70 percent today.

Other key findings:

• Forty-three percent of Americans think the press has too much freedom in our society, while only 3 percent of journalists think so.
• While only 14 percent of journalists think that a news story relying on unnamed sources should not be published, 53 percent of American adults think that way.
• The majority of both journalists (74 percent) and the public (89 percent) agree that one should question the accuracy of news stories that rely on unnamed sources.
• Majorities of both journalists (89 percent) and the public (59 percent) say that reporters should keep secret the identity of a source even when ordered by a court to disclose the source.
• Shield laws are favored by 87 percent of journalists.
• On a somewhat scary note, 22 percent of Americans believe the government should be able to censor newspapers.
• Eighty-five percent of journalists think that bloggers should have the same First Amendment protections as those afforded to newspapers and books.
• In somewhat contradictory findings, journalists report having low regard for news coverage provided in blogs -- only 11 percent rate blogs' news as excellent or good -- yet 83 percent of journalists report having used blogs themselves, with 40 percent saying they use them at least once a week.
  

According to this announcement, the survey is being released today as part of a forum on the future of the First Amendment sponsored by UConn and the Connecticut Daily Newspaper Association.

Read more: Mark Jurkowitz, Boston Globe.

Did letter to editor violate open meeting law?

That was the question raised after two Sharon, Mass., selectmen co-signed a letter to the editor of the Sharon Advocate, according to this report in that paper. Town resident Richard Kramer filed a complaint with the Norfolk County district attorney's office, questioning whether, by co-signing the letter, the selectmen had held an illegal meeting. "It seems clear that [they] must have deliberated in private over their letter, which I believe would be a direct violation of our open meeting laws," Kramer wrote. But Selectman William Heitin said no meeting was held, according to the Advocate. "I wrote the letter and asked the other two selectmen if they would like to sign it. One did and one didn't."

Shield law fails to protect Montana reporter

When Chery Sabol, a reporter for the Kalispell, Mont., Daily Inter Lake, was subpoenaed to testify in a sex-crimes case she has been covering, Montana's shield law failed to protect her, according to a report by New West. Although the state has a strong shield law, the judge in the case refused to quash the subpoena, saying that because Sabol was named as an "informant" in the case by the Kalispell Police Department, the shield law does not apply.

High court urged to hear CIA leak case

The Supreme Court has been asked to throw out contempt orders against two journalists who refused to reveal sources in the leak of an undercover CIA officer’s identity, according to a report published by the First Amendment Center. Lawyers for Time magazine’s Matthew Cooper and The New York Times’ Judith Miller want the justices to clarify protections reporters have in keeping sources confidential, the report said. Cooper’s appeal was filed yesterday; Miller’s was made on May 9.

Texas shield law attempt dies in Senate

A proposed Texas shield law for journalists fizzled yesterday in the state Senate, AP reports. The sponsor backed off the measure after it ran into hostility from other lawmakers opposed to special protections for reporters and their sources. Texas newspapers and broadcasters had joined forces to push for the bill.

U.S. courts publish journalist's guide

The Administrative Office of the U.S. Courts published a new resource on its Web site Monday created to assist news reporters assigned to cover court proceedings. A Journalist's Guide to the Federal Courts contains chapters on U.S. district, bankruptcy and appellate courts. It provides an overview of the judicial process and key players, and discusses types and sources of court information.

Attorney who leaked tape to Taricani charged with contempt

From AP via law.com: "A defense attorney was charged Monday in Providence, R.I., with leaking an FBI surveillance video to a TV reporter, who nearly went to prison for refusing to identify his source."

Public records case scheduled for SJC arguments today

As I noted Sunday on my LawSites blog, the Supreme Judicial Court of Massachusetts yesterday officially launched webcasts of oral arguments. I note from the court's docket today that it is scheduled to hear arguments in Harvard Crimson Inc. v. President & Fellows of Harvard College, dealing with the question of whether incident reports of the Harvard University Policy Department are subject to the Public Records Act. So tune in and watch.