Thursday, February 24, 2005

Shield laws offer illusory protection, columnist says

Writing in the Chicago Tribune, public editor Don Wycliff says he is opposed to a federal shield law:
"You see, if the government gives journalists the right to be exempt from the normal obligations of citizenship, the government, ultimately, will get to decide who is a journalist. Of course nobody will admit that this is the case. They'll contrive some body of journalistic wise men and women, a college of cardinals, who will set standards and thresholds and regulations and such. But somebody will have to appoint those cardinals and, in the end, it will be the government that's in charge."

Judge: First Amendment protects newspaper's source

In Manhattan today, U.S. District Judge Robert W. Sweet ruled that the New York Times has a First Amendment right to protect the confidentiality of its sources by denying the government phone records in certain instances, AP reports.

Saying that secrecy in government appears to be on the increase, Sweet refused to dismiss a lawsuit the newspaper filed last year to stop the Department of Justice from getting records of phone calls between two veteran journalists and sources, according to AP. The calls between journalists Judith Miller and Philip Shenon and their sources were made in the aftermath of the Sept. 11 attacks.

Friday, February 18, 2005

Jury finds Boston Herald libeled judge

The Boston Herald was ordered today to pay $2.1 million for libeling a Superior Court judge in articles that portrayed him as lenient toward defendants and quoted him making insensitive comments about a 14-year-old rape victim, AP reports.

In a case closely watched by the media and legal communities, a jury deliberated for more than 20 hours over five days before finding that the newspaper and reporter David Wedge had libeled Superior Court Judge Ernest B. Murphy. Another reporter was cleared.

Thursday, February 17, 2005

ASNE counsel concurs on OPEN Government Act

In response to my post yesterday, OPEN Government Act appears to protect bloggers as members of media, I received the following note from Kevin M. Goldberg, a partner with Cohn and Marks LLP and counsel to the American Society of Newspaper Editors:
"Although I cannot speak for the intent of Senator Cornyn as to the meaning of this section, the addition of the final sentence in that section would appear to cover bloggers as it directly speaks to new journalists without much prior publication history. It may be instructive to note that the final sentence was not in the first draft of the bill because this language does what the first two sentences do not -- it creates a 'functional' definition of a member of the news media, looking beyond the requestor's affiliation or publication history to his or her intent to disseminate news or information at the time of the request. It also avoids content review by the government's FOIA officers. These seem to level the playing field for freelancers who are worthy of this fee waiver (and I for one, would classify bloggers as a subcategory of 'freelancers' in many ways)."

Wednesday, February 16, 2005

OPEN Government Act appears to protect bloggers as members of media

The bipartisan OPEN Government Act filed today by U.S. senators John Cornyn (R-Texas) and Patrick Leahy (D-Vermont) would appear to protect bloggers from excessive fees under the federal Freedom of Information Act.

Present law provides that for representatives of the news media, "fees shall be limited to reasonable standard charges for document duplication."

The bill filed today expands the definition of news media as follows:
"In making a determination of a representative of the news media ..., an agency may not deny that status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester. Prior publication history shall include books, magazine and newspaper articles, newsletters, television and radio broadcasts, and Internet publications. If the requestor has no prior publication history or current affiliation, the agency shall consider the requester's stated intent at the time the request is made to distribute information to a reasonably broad audience."
Under this language, one would need not be affiliated with an "institutional" news outlet to be considered a member of the news media, particularly if the person could show a history of publishing, including publishing on the Internet. Even in the absence of a publishing history, one could be considered a member of the news media if the information were sought with the intent of distributing it "to a reasonably broad audience."

A reasonable reading of this language would be that it would apply to bloggers, since they can demonstrate a history of publishing and of distribution to a reasonably broad audience.

The bill, S. 394, is aimed at substantially enhancing and expanding the accessibility, accountability and openness of the federal government. Its full name is the Openness Promotes Effectiveness in our National Government Act of 2005.

Among the groups supporting it are the Reporters Committee for Freedom of the Press and the ACLU.

Web site aims to foster freedom of information

A new Web site has been launched as a companion to the first Sunshine Week, a March 13-19 national event aimed at promoting awareness of the importance of open government and freedom of information laws. Sunshine Week is spearheaded by the American Society of Newspaper Editors and supported by the Newspaper Association of America, The Associated Press and other media companies, newspapers, magazines, academia and journalism organizations.

The site serves as a central clearinghouse for participants, with links to background reports, open-government organizations, and other material available for publication such as op-ed columns.

Tuesday, February 15, 2005

Reporters Committee calls for shield law

The Reporters Committee for Freedom of the Press today issued a statement calling for a coordinated effort to support a federal shield law in the wake of the decision by the U.S. Court of Appeals in the District of Columbia Circuit today that two prominent journalists do not have a privilege to keep sources of information from a federal grand jury.

"The decision in this case underscores that these are perilous times for journalists and the public's right to know," said Reporters Committee Executive Director Lucy Dalglish. "There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy."

The shield bills current under consideration in Congress were introduced in early February by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) in the House (H.R. 581), and by Sen. Richard Lugar (R-Ind.) in the Senate (S. 3440). A similar bill was introduced late in the last congress by Sen. Chris Dodd (D-Conn.), but no action was taken.

Judge dismisses Baltimore Sun suit against governor's ban

A federal judge ruled yesterday that Maryland Gov. Robert Ehrlich can freeze out two reporters from The Baltimore Sun by barring all state employees from talking to the journalists, AP reports.

U.S. District Judge William Quarles dismissed the newspaper's lawsuit, saying the paper wrongly asserted a greater right to access to government officials than private citizens have.

"The right to publish news is expansive. However, the right does not carry with it the unrestrained right to gather information," the judge ruled.

Sun editor Tim Franklin called the ruling "scary" and said the newspaper would seek an expedited hearing from the 4th Circuit Court of Appeals.

Appeals court says reporters must testify or go to jail

Two reporters who have refused to name their sources to a grand jury investigating the disclosure of the identity of a covert C.I.A. agent should be jailed for contempt, a three-judge panel of the federal appeals court in Washington unanimously ruled today, The New York Times reports.

Citing a 1972 decision of the United States Supreme Court, the panel held that the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, have no First Amendment protection from grand jury subpoenas seeking the names of their sources. It can be a crime for government officials to divulge the identities of covert agents.

For the full text of the court's opinion, go here.

Thursday, February 10, 2005

Bankruptcy judge orders release of company report

A federal bankruptcy judge in Massachusetts yesterday reversed an earlier decision and ruled that an examiner's report on the Gitto/Global Corporation should be released, the Sentinel & Enterprise reports.

Judge Joel B. Rosenthal had ruled on Jan. 5 that a court-appointed examiner's report on the Lunenburg, Mass., company, which filed for Chapter 11 bankruptcy in September 2003, should be sealed.

The reversal means the full report will be made available to the public on Feb. 23. The Sentinel & Enterprise had filed a motion with the court seeking the release of the report.

Rehnquist as 'Deep Throat'?

Editor & Publisher magazine polled its readers to guess the identity of Watergate legend Deep Throat. The surprise winner: Chief Justice William Rehnquist.

In affirming libel award, SJC strikes blow to protection of confidential sources

The Supreme Judicial Court yesterday issued its decision in Ayash v. Dana-Farber Cancer Institute, and the outcome was a blow to the news media. The SJC upheld the trial judge's entry of default judgment against the Boston Globe because of the Globe's refusal to reveal the identities of confidential sources. Based on that default judgment, a jury awarded damages against the Globe of $2.1 million -- $300,000 for economic damages and $1.8 million for emotional distress – which the SJC also upheld.

The lawsuit followed from the discovery that two patients in an experimental breast cancer treatment study at Dana-Farber had mistakenly been given an overdose of a toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died. The plaintiff, Dr. Lois J. Ayash, an investigator in the study, sued Dana-Farmer, Dr. David M. Livingston, the Boston Globe and Globe reporter Richard A. Knox. She accused the Globe of libel and defamation, and sued Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress.

During discovery, Ayash sought to compel the Globe to reveal the identities of its sources. Concluding that the sources' identities were central to the plaintiff's claims, the judge ordered their disclosure. When the Globe continued to protect their identities, the judge imposed a series of escalating fines. After an interim appeal and remand, Ayash again sought to compel the Globe to disclose its sources. When the Globe continued to refuse, Ayash asked for sanctions. As a sanction, the judge ordered that judgments of liability enter in favor of Ayash against the Globe and Knox. Because his earlier monetary sanctions had not succeeded in securing the Globe's compliance, the judge reasoned, the alternative sanction of default judgment was warranted. With liability determined by default, the case was submitted to a jury for assessment of damages. The jury came back with an award against the Globe of $2.1 million.

On appeal, the SJC concluded that the judge had not abused his discretion in entering the default judgment.
"At the time of the judge's ruling, the overdose incidents had occurred over six years previously. There is nothing in the record to suggest that Knox continued to receive or collect information pertaining to the overdoses from these sources that would justify the continued concealment of their identities. The judge concluded that their identities, and information that they potentially could reveal, bore directly on the plaintiff's claims against Knox and Dana-Farber. …

"Over a period of years, the judge had ordered the Globe defendants to comply with the plaintiff's requests for discovery of this information, to no avail. The Globe defendants made a deliberate choice to protect Knox's sources and to forgo their (potentially meritorious) defenses to the claims asserted against them rather than obey the judge's orders. The judge was not trying to punish the Globe defendants. He clearly felt that he had no alternative method of enabling the plaintiff to obtain the information she needed, and he left open to the Globe the option to remove the default by complying. The question for our review is whether the judge's order constituted an abuse of the "broad measure of discretion" afforded him. See Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585, cert. denied, 488 U.S. 980 (1988). We conclude that it did not."
Having affirmed the entry of default judgment against the Globe, the SJC turned to the jury's award of damages.
"A plaintiff in a successful defamation case is entitled only to fair compensation for actual damages, including emotional distress and harm to reputation (and any special damages which have been pleaded and proved). ... Although the damages awarded the plaintiff for the defaulted claims against the Globe defendants may appear high, they were based on evidence that the Globe articles impugning the plaintiff affected her career and caused her a great deal of emotional and psychological anguish. … The judge found no basis on which to overturn the awards as excessive, and neither do we."
[Note: The Massachusetts Newspaper Publishers Association, of which I am executive director, participated in this case as amicus.]

Tuesday, February 08, 2005

Not all grand jury information is confidential under FOI Act

Partial calendar information relating to the Justice Department's participation in a grand jury investigation that does not reveal juror or witness names must be released under the Freedom of Information Act, the U.S. Court of Appeals in Washington, D.C., has ruled.

A convicted drug dealer representing himself in court won the right to see the dates on which federal prosecutors interviewed potential witnesses in a grand jury investigation of alleged money laundering by his lawyer.

In Lopez v. Department of Justice, decided Jan. 11, Circuit Judge David B. Sentelle, writing for a unanimous three-judge panel, ruled that grand jury confidentiality was not meant to draw an impenetrable "veil of secrecy" around all grand jury-related information, only such information as would "tend to reveal some secret aspect of the grand jury's investigation."

Iowa university foundations' records open, court says

The Iowa Supreme Court has ruled that the fund-raising arms of Ohio's three universities must open their records to the public, Associated Press reports.

The court ruled in Gannon v. Board of Regents that the Iowa State University Foundation "is performing a government function, and therefore its records are subject to disclosure."

HIPAA restricts public access to records

Designed to give people privacy in an electronic age, the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, has lessened the public's access to public records across the nation, according to this Associated Press report.
"Police departments have cited it as a reason to withhold information. Nursing homes have cited it as a reason not to inform residents about registered sex offenders living in their midst. And health departments have cited it for not reporting diseases.

"As interpreted in 2003 by the U.S. Department of Health and Human Services, which that year developed privacy rules, it has prevented the release of public records across the nation, said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press."

Monday, February 07, 2005

Reporter's shield bill introduced in House

A bill to provide reporters with an absolute privilege against compelled disclosure of their sources was introduced in the House last week by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.).

The Free Flow of Information Act (H.R. 581) would keep journalists from being subpoenaed to testify or reveal any other information unless all other sources for the information had been exhausted and the material was essential to the underlying court case or investigation.

"Reporters rely on the ability to assure confidentiality to sources in order to deliver news to the public, and the ability of news reporters to assure confidentiality to sources is fundamental to their ability to deliver news on highly contentious matters of broad public interest," Boucher said in a press release. "Without the promise of confidentiality, many sources would not provide information to reporters and the public would suffer from the resulting lack of information."

Sen. Chris Dodd (D-Conn.) introduced a similar bill in the Senate last year, and is expected to reintroduce it in this session.

The bill provides that the federal government may not compel a "covered person" to testify or produce any document in any proceeding or in connection with any issue arising under federal law unless a court determines by clear and convincing evidence that the entity has unsuccessfully attempted to obtain the testimony or document "from all persons from which such testimony or document could reasonably be obtained."

In criminal cases, the government also must show that it has reasonable grounds to believe a crime has occurred and that the testimony or document is essential to the investigation, prosecution or defense.

In non-criminal matters, the government must show that the testimony or document is essential to a dispositive issue of substantial importance.

The law would prohibit the federal government from compelling a reporter to disclose the identify of a confidential source or of any information that could be expected to lead to the identity of a confidential source.

The bill defines "covered person" as "an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic or other means." The entity must also do one of the following:
  • Publish a newspaper, book, magazine or other periodical.
  • Operate a radio or television broadcast station, cable system, or satellite carrier.
  • Operate a news agency or wire service.
The term also covers an employee, contractor or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

More information:

Jury clears Globe in lawyer libel case

In Cambridge, Mass., a Superior Court jury last week concluded that The Boston Globe did not libel Stoneham lawyer Stephen H. Columbus when it reported in 1999 that he used political connections to have a house built for him by vocational high school students, the Boston Globe reports.

The jury said Columbus had failed to prove that the front-page Sunday story about favoritism in house-building programs run by two vocational schools had made false statements about him, directly or by innuendo.