A new name for our legal-affairs podcast

Our weekly legal-affairs podcast has a new name. The podcast formerly known as Coast to Coast is now called Lawyer2Lawyer. As our producers at the Legal Talk Network explain in a programming note this week, we wanted to acknowledge our expanding and global audience of listeners beyond the coasts. Nothing else has changed. If you subscribe to the RSS feed or receive the show via iTunes, no changes are required. And my cohost J. Craig Williams and I will continue to interview lawyers from all over the world about timely topics in law.

Mass. bill would shield reporters' sources

House and Senate bills to protect against compelled disclosure of news sources have been filed in Massachusetts by Rep. Alice H. Peisch and Sen. Cynthia S. Creem. The identical bills were originally drafted by an ad hoc committee of media and legal professionals. (I serve on that committee on behalf of the Massachusetts Newspaper Publishers Association, which has endorsed the bill, and I helped draft the bill.)

Other legislators who signed on as co-sponsors are: Sen. Joan M. Menard (D-Somerset), Sen. Scott P. Brown(R- Wrentham), Sen. Mark C. Montigny (D-New Bedford), Sen. Stephen M. Brewer (Barre-Worcester County), Sen. James E. Timilty (Norfolk-Bristol), Rep. Garrett J. Bradley (Hingham) and Rep. James M. Murphy (Weymouth). (Additional sponsors may be added until Jan. 22.)

The text of the bills is not yet available on the legislature's Web site. The House bill has been docketed as HD 1130. The Senate bill has been docketed as SD 00847. The bills read as follows:

AN ACT to establish protections against compelled disclosure of sources, and news or information, by persons providing services for the news media.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. SHORT TITLE.

This Act may be cited as the `Free Flow of Information Act'.

SEC. 2. DEFINITIONS.

In this Act:

(1) COVERED PERSON- The term `covered person' means a person who--
(A) engages in the gathering of news or information; and
(B) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.
(2) NEWS OR INFORMATION- The term `news or information' means written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national, or worldwide events, or other matters.
(3) NEWS MEDIA- The term `the news media' means--
(A) a newspaper;
(B) a magazine;
(C) a journal or other periodical;
(D) radio;
(E) television;
(F) any means of disseminating news or information gathered by press associations, news agencies, or wire services (including dissemination to the news media described in subparagraphs (A) through (E)); or
(G) any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.

SEC. 3. COMPELLED DISCLOSURE PROHIBITED.

(a) IN GENERAL- Except as provided in section 4, no entity of the judicial, legislative, or executive branch of the Commonwealth with the power to issue a subpoena or provide other compulsory process shall compel any covered person who is providing or has provided services for the news media to disclose--
(1) the source of any news or information procured by the person, or any information that would tend to identify the source, while providing services for the news media, whether or not the source has been promised confidentiality; or
(2) any news or information procured by the person, while providing services for the news media, that is not itself communicated in the news media, including any--
(A) notes;
(B) outtakes;
(C) photographs or photographic negatives;
(D) video or sound tapes;
(E) film; or
(F) other data, irrespective of its nature, that is not itself communicated in the news media.
(b) SUPERVISORS, EMPLOYERS, AND PERSONS ASSISTING A COVERED PERSON- The protection from compelled disclosure described in subsection (a) shall apply to a supervisor, employer, or any person assisting a person covered by subsection (a).
(c) RESULT- Any news or information obtained in violation of the provisions of this section shall be inadmissible in any action, proceeding, or hearing before any entity of the judicial, legislative, or executive branch of the Commonwealth.

SEC.4. COMPELLED DISCLOSURE TO PROTECT PUBLIC SECURITY AGAINST TERRORIST ACTS

(1) A state entity may not 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) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to public security from acts of terrorism; (b) compelled disclosure of the identity of such a source would prevent such harm; and (c) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.

SEC. 5. COMPELLED DISCLOSURE PERMITTED.

(a) NEWS OR INFORMATION- A court may compel disclosure of news or information described in section 3(a)(2) and protected from disclosure under section 3 if the court finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information established by clear and convincing evidence that--
(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Commonwealth that has the power to issue a subpoena;
(2) the news or information could not be obtained by any alternative means; and
(3) there is an overriding public interest in the disclosure.
(b) SOURCE- A court may not compel disclosure of the source of any news or information described in section 3(a)(1) and protected from disclosure under section 3.

SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.

The publication by the news media, or the dissemination by a person while providing services for the news media, of a source of news or information, or a portion of the news or information, procured in the course of pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is described in section 3.

Mass. publishers file open meeting reform bill

Rep. Stephen Kulik of South Deerfield, Mass., has filed a bill drafted by the Massachusetts Newspaper Publishers Association to strengthen the enforcement provisions of the state's open meeting laws. The bill, which has been docketed as HD 2937, would authorize courts to impose civil fines of $500 on government officials who violate the law and to award attorneys' fees to citizens who bring actions to enforce the law. (Note that I am MNPA executive director.) Other legislators who have so far signed on as co-sponsors are: Rep. Peter V. Kocot of Northampton, Rep. John W. Scibak of South Hadley, Rep. William M. Strauss of Mattapoisett, Sen. Stephen M. Brewer of Barre, Rep. Jay Barrows of Mansfield, and Rep. David P. Linsky of Natick.

The text of the bill as filed provides:

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 23B of Chapter 39 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking the 14th paragraph and inserting in its place the following paragraph:—

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court finds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the court finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.

SECTION 2. Section 11A ½ of Chapter 30A, of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding thereto as the last paragraph reading as follows:

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court holds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the count finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.