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The sponsors of the shield law rider I reported yesterday have withdrawn the proposal from consideration as part of the state budget process.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.