Wednesday, November 30, 2005

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."

Tuesday, November 29, 2005

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.

Monday, November 28, 2005

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."

Sunday, November 27, 2005

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?

Tuesday, November 22, 2005

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.

Friday, November 18, 2005

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:

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

Thursday, November 17, 2005

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.

Wednesday, November 16, 2005

Secret dockets in Florida federal courts

Via 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.

Tuesday, November 15, 2005

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.

Monday, November 14, 2005

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.

Thursday, November 10, 2005

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.

Tuesday, November 08, 2005

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."

Monday, November 07, 2005

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."

Tuesday, November 01, 2005

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