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.

Federal shield bill heads for hearings

The House Judiciary Committee is holding a hearing May 12 on a bill that would create a federal shield law, AP reports. The bill would prohibit federal judges from forcing journalists to reveal their confidential sources.

Bloggers should have same legal rights as mainstream media, survey says

Most Americans believe bloggers should enjoy the same Constitutional protection as traditional journalists, but a majority said they still prefer to get their information from the mainstream media, according to a recent survey reported at InternetNews.com.

Fifty-two percent of those surveyed in a poll conducted by Web hosting company Hostway said bloggers should have the same protection under the First Amendment of the Bill of Rights as the mainstream media, while 27 percent expressed no opinion on the subject.

But the survey suggests that bloggers are not taken as seriously as the traditional media. Thirty-nine percent said they found blogs less credible than newspaper articles, and 38 percent said blogs were less credible than television news. Nearly one-fourth found magazine advertising to be more credible.

Maine paper seeks release of brain-donation records

The Portland Press Herald has filed a lawsuit under Maine's Freedom of Access Act seeking state medical examiner forms that identify deceased brain donors and their next-of-kin, but the Maine attorney general is fighting their release, saying they reveal private information, the newspaper reports.

Rhode Island AG sues town for 'willful' violations of public records law

Rhode Island Attorney General Patrick Lynch has filed suit against the Town of Barrington for "willfully and knowingly" violating the state's Access to Public Records Act and Open Meetings Act, the Barrington Times reports. The suit claims the town violated open government laws approximately 200 times.

An ominous climate for freedom of the press

So says Nicholas D. Kristof writing for the op-ed page of The New York Times. A major reason, he says in this thoughtful piece, is that the "media are widely perceived as arrogant, out of touch and untrustworthy." He concludes:

"If one word can capture the public attitude toward American journalists, I'm afraid it's 'arrogant.' Not surprisingly, I think that charge is grossly unfair. But it's imperative that we respond to that charge - not by dismissing it, but by working far more diligently to reconnect with the public.

"Unless we can recover the public trust, our protests about reporters' going to jail will come across as self-serving whining. And we'll wake up one day to find ourselves on the wrong side of history."

Federal judge imposes gag order on reporter

A federal judge in Massachusetts last week imposed a gag order against The Standard-Times in New Bedford, barring it from publishing what reporter Ray Henry heard on March 31 at a court hearing on a motion by an accused drug trafficker.

The gag order expired this morning when federal prosecutors failed to file an appeal.

During the March 31 hearing before U.S. District Judge Robert E. Keeton, federal prosecutors disclosed what the court determined was privileged information without first determining who was in the courtroom. The session was not closed to the public and the reporter and others were permitted by a U.S. marshal to enter.

The gag order was set to expire at 11 a.m. today, unless prosecutors or defense lawyers asked the Court of Appeals to intervene. The newspaper called the gag order prior restraint of its First Amendment rights.

See the Standard-Times report: S-T challenges gag order in drug case.

Teen loses defamation suit against Boston Magazine

A teenager whose photograph appeared in a Boston Magazine story entitled "The Mating Habits of the Suburban High School Teenager" has lost her defamation suit against the magazine, according to Media Law Prof Blog.

Round-up of Sunshine Week coverage in Mass. papers

With Sunshine Week now over, I offer my round-up of coverage from Massachusetts newspapers. Most certainly, this is incomplete, compiled primarily from what I found online and what others pointed out to me. If you know of other pieces, please let me know.

Particularly impressive was the coverage by the Metrowest Daily News, with multiple reports every day of the week.

March 13

• Metrowest Daily News: Publishers Propose Legislation
• Metrowest Daily News: It's not too hard to get the scoop on neighbors
• Metrowest Daily News: What have they got to hide?
• Metrowest Daily News: Rules shed light on government
• Metrowest Daily News: Seeking out the truth
• Metrowest Daily News: Open meeting law sanctions
• Metrowest Daily News: Spitz: Shopping a trial
• Metrowest Daily News: Editorial: Let sunshine cleanse our governments
• Metrowest Daily News: Lodge: Let the sun shine in
• The Republican: Larry McDermott: Focusing on the Public's Right to Know
• Worcester Telegram: Making Government More 'Open': Bills Promote the Public's Right to Know
• Worcester Telegram: Sunshine Governance
• Worcester Telegram: Poll: Seven out of 10 Americans Worry About Government Secrecy
• Worcester Telegram: T&G Appeals Blackout of Information in Complaints
• Sun Chronicle: Editorial: Let Sun Shine on Government
• Eagle Tribune: Bill Ketter: The Press, the Public and the Challenges to Open Government
• Cape Cod Times: Review Sees Government Tightening Information Loop
• Cape Cod Times: Privacy Act Creates Confusion
  

March 14

• Metrowest Daily News: Information valuable to a suburban homebuyer
• Metrowest Daily News: Local governments sometimes go out of their way to avoid explaining decisions
• Metrowest Daily News: Dwinell: Schools learn about public records law
• Fitchburg Sentinel: Let the sun shine in
• Milford Daily News: Challenges to local meetings have yielded few violations, say DAs
  

March 15

• Metrowest Daily News: Clerks speak up on your right to records
• Metrowest Daily News: Federal government releasing less information since '98

March 16

• Metrowest Daily News: Find out where your town's sex offenders live
• Metrowest Daily News: Open Meeting does not apply to lawmakers
  

March 17

• Metrowest Daily News: From the FOIA files
• Metrowest Daily News: Keeping Track of FOIA requests
• Metrowest Daily News: Celebrating our freedoms
• Cambridge Chronicle: Sun shines on public records
• Somerville Journal: Public records laws get use by activists in Somerville
• Needham Times: Public records available to everyone
• Wayland Town Crier: Clerks promote right to records
• Wellesley Townsman: Editorial: Consistency in access to records
• Wellesley Townsman: Getting meeting minutes can take time
• Beverly Citizen: Editorial: Sunny side up
• West Roxbury & Roslindale Transcript: Publishers propose legislation
• West Roxbury & Roslindale Transcript: Law keeps meetings open for all
• The Beacon: E-mail is a boon and a crutch
  

March 18

• Metrowest Daily News: Public records laws a mixed bag in R.I.
• Metrowest Daily News: Survey yields consistent results: Little difficulty found in retrieving arrest logs
• Daily News Transcript: Access to project data unimpaired
• Shirley Oracle: National Sunshine Week: Shedding light on the public's right to know
• The Cape Codder: In the public view
• The Republican: Six bills seek overhaul of state law

Bills seek overhaul of state law

The Springfield Republican today reported on the bills filed by the Massachusetts Newspaper Publishers Association to toughen the enforcement provisions of the state's open meetings laws. I am among the sources interviewed for the story, which was written by reporters Dan Ring and Buffy Spencer.

Here is an excerpt:

"State and municipal officials would face fines if they intentionally violate the state's Open Meeting Law, according to legislation pending on Beacon Hill.

"Opponents said the legislation would discourage people from serving in government and would clog the courts with more lawsuits. Supporters said the bills are needed to toughen enforcement of the law.

"Six bills to overhaul the law were filed by Rep. Arthur J. Broadhurst, D-Methuen, at the request of the Massachusetts Newspaper Publishers Association."

Read more.

New England newspaper group announces First Amendment awards

I attended the annual meeting today of the New England Newspaper Association, where NENA announced the winners of the first Morley L. Piper First Amendment Award, named for NENA's longtime executive director. The winners were The Republican of Springfield and The Providence Journal. NENA's awards committee decided last year to establish the annual award to highlight the work that newspapers do in educating and upholding the First Amendment.

For more on the awards, read this AP report.

Blogshine Sunday: support access to government information

This Sunday, news organizations across America will participate in Sunshine Sunday -- kick off to Sunshine Week -- by running stories supporting access to government information. Not wanting bloggers to be excluded, FreeCulture.org is organizing Blogshine Sunday, to encourgage bloggers across the U.S. and beyond to write about the need for open government in the digital age.

You can join Blogshine Sunday by writing in your blog about open government and how it relates to you. The Blogshine Sunday blog will aggregate and link to the postings. (Go to the site for instructions on how to link your posting.)

Cape Cod Times wins access to sheriff's records

The Supreme Judicial Court yesterday ruled that Barnstable County Sheriff James Cummings must provide to the Cape Cod Times the identities of his reserve deputy sheriffs, whose names he has concealed for two years.

The SJC said that the names are public records under G.L. c. 66, s. 10, and must be made available for examination and inspection.

The sheriff had contended that the records were private because the reserve deputies have no law enforcement duties and also that the records belonged to the private Barnstable County Sheriffs Association.

• Cape Cod Times report: Sheriff Must Give Times Names of Reserves.
• Another: Ruling Seen as Key to Public Access.
• AP: Cape Cod Times Scores Ruling in Sheriff's Records Case
• Here is the SJC's decision: Cape Cod Times v. Sheriff of Barnstable County.

Judge says bloggers can be forced to reveal sources

In a case with implications for the freedom to blog, a San Jose judge tentatively ruled yesterday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products, reports The Mercury News.

Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites protection either under California's shield law or under the First Amendment.

Kleinberg offered no explanation for the preliminary ruling. He will hear arguments today from Apple's attorneys and the Electronic Frontier Foundation, a San Francisco digital rights group representing two of the three Web sites Apple subpoenaed -- Apple Insider and PowerPage.

EFF has more information about the case here.

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.

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.

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)."

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.

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.

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.]

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."

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:

• Text of bill.
• Section-by-section analysis.
• RCFP report.

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.

Civic group in rift over closed meetings

In Great Barrington, Mass., discord within the ranks of the grassroots, nonprofit group Housatonic the Beautiful over its meeting policy has led to confusion and friction within and without the organization, the Berkshire Eagle reports.

"Questions have arisen over whether the board of directors of the nonprofit group, which is leading an effort to revitalize the village, should open its meetings to the public after a reporter was told at the Jan. 13 meeting that the meetings are closed.

"A testy exchange followed, and the Berkshire Record reporter left, according to board members.

"President Benjamin Koldys said Monday that a meeting set for tomorrow evening at 5 at the Housatonic fire station also will be closed. But some board members and residents say it will be open, and a request has reportedly been made to open the meeting to public participation."

Microsoft, Massachusetts agree to keep public records accessible

In a Center for Digital Government Web conference this afternoon, Massachusetts CIO Peter Quinn said that the commonwealth and Microsoft have reached agreement on making public records created with Microsoft Office 2003 readable by any reader, including open-source or GPL-based software, according to Public CIO Magazine.

The heart of the agreement, the magazine said, concerns opening access to Office 2003's patented XML extensions. "That was a great concern to us," Quinn told the magazine. "We were going to create things that would only be accessed by a specific vendor's reader. We've actually worked through that ... Microsoft was very amenable to the conversation, we're very excited about where we hope this is going to take us all as we go forward, yet at the same time it preserved their intellectual property and rights."

Tune in today to Harvard conference on blogging, journalism and ethics

Harvard Law School's Berkman Center for Internet and Society is host today and tomorrow to Blogging, Journalism & Credibility, an invitation-only conference of bloggers, reporters and academics focusing on ethics and credibility in blogging. The program is being webcast, supposedly, although it is not working for me just now. Alternatively, you can follow a transcription via IRC. Here are the schedule and a list of participants. And here is what the Wall Street Journal has to say about the conference.

Newspaper appeals to state records chief

The Providence Journal reported yesterday that it filed an appeal with the Massachusetts public records supervisor, arguing that officials in Seekonk, Mass., cannot withhold the details of a settlement agreement that paved the way for the departure of the town's former administrator. The town contends that the agreement cannot be disclosed because both parties agreed to keep it secret.

The Massachusetts public records supervisor, Alan N. Cote, declined the newspaper's request to discuss the case until he had reviewed it, but told a reporter that, in general a public official does not have the power to seal a public document by making an agreement to keep the information secret.

Jury selection starts in Herald case

In Boston, jury selection began yesterday in Superior Court Judge Ernest B. Murphy's high-profile libel suit against the Boston Herald in Suffolk Superior Court, the Boston Globe reports.

Murphy sued the Herald over a series of reports that began with a Feb. 13, 2002, front-page story describing his sentencing practices as overly lenient. The Herald maintains that its lead reporter worked hard to check the accuracy of the information he was given, and the paper says it stands behind his reporting.

Opening statements heard in editor's trial

In Cambridge, Mass., yesterday, a lawyer for a Stoneham attorney told a Middlesex County jury that a 1999 Boston Globe story libeled his client by falsely suggesting that the man used political connections to get a house built for him for free by vocational high school students, the Boston Globe reports. The report continues:

"Stephen H. Columbus's lawyer said in his opening statement that the front-page Sunday story by Walter V. Robinson, now the editor of the Globe's Spotlight Team, represented a 'big myth' and 'twisted facts.' ... But a lawyer defending the Globe in the lawsuit, Jonathan M. Albano, denied that the article defamed Columbus, 43, and said the substance of the story was true."

New rule eases access to Tenn. court records

A rule adopted by the Tennessee Supreme Court Jan. 6 will make it harder for parties to shroud civil case records in secrecy, even in certain cases that are settled out of court, according to The Reporters Committee for Freedom of the Press.

New Rule 1A of the Tennessee Rules of Civil Procedure says courts records are presumed open and may be sealed only in limited circumstances. Under the rule, the person seeking to block access to court records must show "a specific, serious and substantial interest" that clearly outweighs both the presumption of openness, and any likely adverse impact that sealing will have on public health or safety. In addition, there must be no less restrictive method besides sealing that will "adequately and effectively protect" the interest asserted.

According to the court's announcement, the rule says that it is "the public policy of this state that the public interests are best served by open courts and an independent judiciary."

DA finds town committee again violated meetings law

For the second time, the Norfolk County district attorney has found that a Norton, Mass., subcommittee negotiating to open a YMCA has broken the state Open Meeting Law by going into closed session, the Daily News Transcript reports. Norfolk Assistant District Attorney James Reidy ruled that the YMCA Negotiating Subcommittee violated the law by meeting in secret Dec. 9.

Reidy said the committee must release its meeting minutes immediately, adding, "This office is prepared to initiate action in Superior Court to remedy any further violations of the Open Meeting Law by the Negotiating Subcommittee or the Rink/Due Diligence Committee." This is the DA's second ruling against the subcommittee, the Daily News Transcript says. On Nov. 9, the DA ruled that the subcommittee broke the Open Meeting Law by entering into closed sessions on July 21, Aug. 12, Sept. 14 and Sept. 28.

DA: Williamstown board violated open meeting law

In Williamstown, Mass., Berkshire District Attorney David F. Capeless has found that four members of the Williamstown Planning Board violated the Massachusetts open meeting law by issuing a press release last November, the North Adams Transcript reports. The four members drafted the press release, in which they took a position on a public issue, through a series of phone calls and e-mails.

The district attorney "strongly admonished the board members not to conduct public business in private" and encouraged them to attend open meeting law training sessions hosted by his office this year "so they may better serve the interests of the community."

New Orleans paper calls for shield law

"The public is ill served if the press is hampered in its role as government watchdog, and most Americans clearly understand that," says this editorial in today's Times-Picayune. "Unfortunately, not everyone in government does."

Apple suit tests First Amendment

Apple Computer's lawsuit against a Web site that published details of forthcoming Mac products raises troubling First Amendment questions, media experts say.

DA won't appeal lifting of ban on naming priest's alleged victims

In Cambridge, Mass., Middlesex District Attorney Martha Coakley said today she will not appeal a judge's ruling that freed the media to identify alleged victims in the child rape case against defrocked priest Paul Shanley, Associated Press reports. Coakley said in a statement that the next week would be better spent preparing for Shanley's criminal trial, scheduled to begin Jan. 18.

Acting on a request from Coakley's office, a judge last week ordered the media not to identify Shanley's accusers. Prosecutors said they feared continuing to name the alleged victims would make them unwilling to testify. The Associated Press, the Boston Herald and The Boston Globe challenged the order, and on Friday, Judge Stephen Neel overturned it, agreeing it was an unconstitutional "prior restraint."

Media distrust may be critical factor in libel case

In Sunday's Boston Globe, media writer Mark Jurkowitz offers a preview of the upcoming libel trial pitting Massachusetts Superior Court Judge Ernest B. Murphy against the Boston Herald. Jurkowitz focuses on how public distrust of the media may be a key factor in the trial's outcome. He writes:

In a trial expected to take several weeks, jurors will hear arguments about disputed quotations, confidential sources, and reporting techniques. Yet Murphy's case could also hinge on something more basic: how ordinary citizens on the jury feel about the motives and methods of journalists in an era of widespread public skepticism about the news media.

Arizona supreme court to rule on lawsuit against newspaper over Iraq letter

The Associated Press reports that the Arizona Supreme Court said today it will decide whether a newspaper can be sued for publishing a letter that suggested American soldiers in Iraq respond to attacks on them by killing Muslims at nearby mosques. "The Supreme Court agreed without comment to hear the Tucson Citizen's appeal of a Pima County Superior Court judge's decision to hold a trial in a lawsuit that alleges the newspaper caused distress to local residents by its decision to print the letter," the report says. [via How Appealing, which includes a link to the court's order.]

Judge bars media from disclosing names of priest's alleged victims

A judge in Boston yesterday issued an order barring the news media from disseminating the names of the alleged victims in the upcoming child rape trial of defrocked priest Paul Shanley, the Associated Press reports via the Worcester Telegram & Gazette.

Superior Court Judge Charles Spurlock's order bars the publication of the names of Shanley's accusers, one of whom is expected to testify at his trial on child rape charges later this month and has spoken publicly in the past about his allegations. The AP report says that the man's name has been published repeatedly by news organizations since 2002, when he filed a civil lawsuit against Shanley and gave numerous newspaper and television interviews.

Town will seek to exempt job interviews from open meeting law

The town of Arlington, Mass., will file legislation to exempt municipal job interviews from the Massachusetts' open meeting law, the Boston Globe reports. The move follows a recent rulingby the Middelex district attorney that Arlington selectmen violated the open meeting law when they interviewed semifinalists for the town manager job behind closed doors.

Indiana paper calls for enforcement of open-records law

In an editorial today, the Indianapolis Star says, It's time to enforce the state's open records law.

Tennessee legislature exempt from open records law

Tennessee's Public Records Law does not apply to the state legislature, a court has ruled.

Ex-HealthSouth CEO subpoenas Mike Wallace

Set to go on trial in Birmingham, Ala., this week on a 58-count indictment, Richard Scrushy, former CEO of HealthSouth Corp., has subpoenaed Mike Wallace and CBS producer Robert Anderson as witnesses to discuss their "60 Minutes" segment about the HealthSouth debacle, AP reports. Wallace and Anderson have asked U.S. District Judge Karon O. Bowdre to throw out the subpoena, citing the First Amendment.

Sen. Dodd makes case for shield law

Writing in the Washington Post, U.S. Sen. Christopher J. Dodd (D-Conn.) makes the case for a federal reporters' shield law.

"The possibility of reporters being sent to jail for refusing to reveal confidential sources is not merely an issue of concern to journalists. It should send shivers down the spine of every American."

Newspaper violated HIPAA, federal complaint alleges

A group of physicians and community leaders have filed a complaint with the U.S. Department of Health and Human Services’ Office of Civil Rights in San Francisco alleging that the Los Angeles Times and the county health department violated the Health Insurance Portability and Accountability Act, also known as HIPAA, by revealing confidential patient information in stories about alleged lapses in care at a hospital, according to an AP report at the First Amendment Center. The Times’ five-part series, published last month, profiled dozens of patients and their family members who alleged mistreatment and lapses in patient care at the Martin Luther King Jr./Drew Medical Center in South Los Angeles.

Chicago Tribune moves closer to unsealing Pritzker records

An Illinois appeals court last week ruled that a Cook County circuit judge abused his discretion when he sealed all records of a case involving the Pritzker family's plan to break up its $15 billion business empire, the Chicago Tribune reports. The ruling is a victory for the Tribune in its legal efforts to open the records. Finding little confidential material in the court records, the First District Appellate Court directed a new judge to review the records and determine if any documents should remain sealed. The Pritzkers are heirs to a fortune that includes the Hyatt Hotel chain, casinos, the TransUnion credit-checking company and the Marmon Group, a global association of manufacturing and service companies.

Navy SEALS sue AP over photos

Six members of a Navy special forces unit and two Navy wives sued the Associated Press yesterday, saying the news agency endangered the servicemen's lives and invaded their privacy by publishing photos showing the men interacting with Iraqi prisoners, AP reports. [via First Amendment Center.]

Mass. selectman alleges board violated open meeting law

A closed-door meeting last month of selectmen in Tewskbury, Mass., regarding a police labor issue has created a wedge within the Board of Selectmen, causing one member to file a complaint with the Middlesex District Attorney's office alleging that the board violated the state's open meeting law, the Boston Globe reported Dec. 19.

Reporter resigns over blog

St. Louis Post-Dispatch writer Daniel P. Finney has resigned from the newspaper following the discovery of his blog, the Riverfront Times reports. Post management had suspended Finney Dec. 16 and seized his hard drive after learning of the blog through a report in the Riverfront Times. The blog, which Finney wrote under a pseudonym, contained unflattering remarks about Finney's employer and story subjects.

In Arizona, one-fourth of agencies flunk public records audit

In an audit of public records compliance in Arizona, roughly half the agencies delayed release of the requested records, and nearly one in four failed to turn them over within a week or never provided them, the Arizona Republic reports. News organizations sent journalists to 119 local government agencies across the state on Sept. 14-16 to audit compliance with the state's Public Records Law. Auditors were instructed to identify themselves by name but not to volunteer the names of their employers or why they wanted the documents. The aim was to discern how an ordinary citizen seeking public records would be treated by the agencies. Nearly three in four police agencies and school offices - 69 percent and 68 percent, respectively - passed the test, compared with an 86 percent compliance rate for city and county managers offices.

Proposed AP ethics policy would limit anonymous sources

Editor & Publisher reports on AP's proposed ethics policy, which it says is drawing concern from union leaders. The policy would put limits on the use of anonymous sources; define "on the record," "off the record" and "background"; and require approval of all freelance work.

Is TV talk evidence of reporter's malice?

A libel lawsuit in Massachusetts raises the question of whether statements a reporter makes on a TV talk show can provide evidence of malice in a libel suit against that reporter, the Washington Post reports. State Superior Court Judge Ernest B. Murphy is suing the Boston Herald and four of its writers about a series of reports that questioned his treatment of crime victims. One alledged that Murphy had dismissed the trauma of a 14-year-old rape victim by saying, "Tell her to get over it."

The case, set for trial next month in Suffolk Superior Court, is significant, the Washington Post says, because it uses the rambunctious exchange on a talk show to try to prove the malicious intent of a newspaper reporter. The brief cites statements made by a Herald writer not just in the pages of the tabloid but also on Fox News's "The O'Reilly Factor." The Post reports:

The case "reflects the perils of this new media culture" in which reporters go on the air to promote their stories, said Tom Rosenstiel, director of the Project for Excellence in Journalism. While editors scrutinize and sanitize reporters' words before they appear in print, no one performs that function in live TV interviews.

"When reporters who write stories, then go on the air to discuss" them, said Lucy Dalglish, executive director for the Reporters Committee for Freedom of the Press, "things tend to escalate. . . . If their appearances are going to be used to craft evidence of malice and reckless disregard for the truth in a print story, we're in very dangerous territory. I think this will have very serious implications for journalists."

Boston Phoenix article libeled prosecutor, jury says

A U.S. District Court jury in Boston last week found that a January 2003 Boston Phoenix story libeled a Maryland prosecutor, who was involved in a custody dispute that included charges of child abuse, and awarded him $950,000, the Boston Globe reports. The story -- which focused on the inadequacies of the family court system in dealing iwth claims of child abuse -- described allegations that the plaintiff, Marc Mandel, had sexually abused children from two marriages. Mandel denied the accusations and sued for libel. Peter Kadzis, editor of the Phoenix, said that the paper will appeal.

Hatfill subpoenas at least a dozen news organizations

At least a dozen news organizations are being targeted with subpoenas by the attorney representing former U.S. Army researcher Steven Hatfill, who is suing the federal government under the Privacy Act for trying to link him to the 2001 anthrax attacks, Editor & Publisher reports. Tom Connolly, Hatfill's lawyer in his lawsuit against U.S. Attorney General John Ashcroft and other government officials, had subpoenas served last week on The Associated Press, National Public Radio, The Washington Post, ABC News, and CBS' "60 Minutes." He did tell E&P who else would receive a subpoena, but expected at least 12 to 15 to be served in total. Several weeks ago, a libel lawsuit Hatfill had filed against The New York Times and columnist Nicholas Kristof was dismissed by a federal judge. [Another report: Los Angeles Times.]

Mass. publishers file bill to toughen open meeting laws

In a bid to encourage public officials' compliance with the state's open meeting laws, the Massachusetts Newspaper Publishers Association has filed legislation that would toughen the penalties for violators and award court costs and attorneys' fees to individuals who bring enforcement actions.

Sponsored by Rep. Arthur Broadhurst (D-Methuen), the bill would impose civil fines of $1,000 on any government body that violates the law and $500 on each government official who violates the law. Officials who "knowingly and intentionally" violate the law would be guilty of a criminal misdemeanor punishable by a fine of up to $1,000 for a first offense and up to $2,500 for subsequent offenses.

If enacted, the bill would also make government entities liable for the attorneys' fees and court costs of individuals who sue to enforce the open meeting laws. Plaintiffs would be entitled to recover their costs and attorneys' fees even if the entity corrects its violation after the lawsuit is filed, if the plaintiff, before filing suit, had requested in writing that the meeting be opened and the entity had refused.

Existing Massachusetts law allows a fine of up to $1,000 against a local government entity that violates the open meeting law, but not against state government entities. It has no civil or criminal penalties for individual state or local officials who violate the law. The law allows three or more registered voters to file lawsuits to enforce its provisions, but it does not allow them to recover their costs or attorneys' fees.

In October, the MNPA concluded a 50-state survey of opening meeting law enforcement provisions, finding that Massachusetts was among the most lenient of any state in allowing government officials to violate the law without fear of consequences.

Among the findings of the MNPA's survey:

• Civil penalties. Forty states authorize some sort of penalty – either civil or criminal or both – for violations of their open meeting laws. Of these, 23 expressly authorize civil penalties. Although Massachusetts law authorizes penalties against local – but not state – government bodies, many states go further, imposing civil penalties directly against the government officials who violate the law.

• Criminal sanctions. Twenty-one states make it a misdemeanor criminal offense for a public official to violate the open meetings law. These states provide fines for a first offense of as much as $1,500. Some states also include imprisonment as a potential sanction, in some cases for up to one year. States often increase the penalties for repeat offenders.

• Voiding. The majority of states give their courts discretion to declare void any action taken in violation of the law. Some states take away the discretion, requiring that actions taken in violation of the law be considered null and void as a matter of law.

• Private right of action. While most laws provide for enforcement by the state attorney general or local district attorney, many also give private individuals the right to sue to enforce the law. In Massachusetts, the law requires at least three registered voters to file such a suit. Other states require only one plaintiff. While some require that the plaintiff be a citizen, a taxpayer or someone aggrieved by the violation, most allow any person to file. Many states further require that courts hear and decide these cases within strict timetables.

• Attorneys' fees and costs. Without a provision for recovery of costs and attorneys' fees, private individuals are less likely to seek enforcement of the law, even if the law gives them the right. Forty states that provide a private right of action also allow the prevailing plaintiff to recover costs, and 37 authorize attorneys' fees. In most cases, these are to be paid by the government entity, but some states also require payment by officials who intentionally violate the law.

The bill has not yet been assigned a number. If you would like more information about the bill, please feel free to contact me.

Reporter sentenced to six months' home confinement

Providence, R.I., television reporter Jim Taricani was sentenced today to six months' home confinement for refusing to tell a special prosecutor who gave him a secret FBI videotape from the Operation Plunder Dome investigation into corruption at Providence City Hall, the Providence Journal reports.

U.S. District Chief Judge Ernest C. Torres ordered the sentence to begin immediately. He also set several restrictions on Taricani while serving his sentence, including a ban on giving interviews or doing any reporting. Torres also said Taricani could petition for "early termination" of the sentence after four months. Martin Murphy, Taricani's lawyer, said he did not know if his client would appeal.

According to another report, Torres, in sentencing Taricani, called it a "myth" that journalists' sources would dry up if they could not be promised confidentiality.

The Reporters Committee for Freedom of the Press issued a press release saying it will join other news organizations in coming months to advocate for a federal shield law in the aftermath of today's sentencing.

Reporters try to avoid jail in leak case

Federal prosecutors today argued journalists have limited legal protection while a lawyer for two reporters who could go to jail for refusing to divulge their sources argued for a broader interpretation of the Constitution, the Associated Press reports. "There is a level of legal protection," lawyer Floyd Abrams told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Abrams represents Time magazine's Matthew Cooper and Judith Miller of The New York Times, who have been subpoenaed in the grand jury investigation into the leak of an undercover CIA officer's name.

Is the First Amendment shield enough?

This is the question debated today at the Legal Affairs Debate Club by Paul McMasters, First Amendment Ombudsman at the First Amendment Center, and Geoffrey R. Stone, Harry Kalven Jr. Distinguished Service Professor of Law at the University of Chicago.

Media law news round-up

In Atlanta, a federal judge has issued what AP calls a split decision in a dispute between the city and three major newspapers over fees the city-run airport charges for news racks. The case involves a 1996 city policy removing all news racks at Hartsfield-Jackson Atlanta International Airport and requiring publishers to lease city-owned boxes.

The Atlanta Journal-Constitution, USA TODAY and The New York Times sued on First Amendment grounds. A federal judge issued an injunction blocking the policy, but an appeals court overturned a part of that decision and remanded the case to the lower court. In a ruling Dec. 2, U.S. District Judge Richard W. Story ordered the three newspapers to pay the city nearly $350,000 in back rent and interest for news racks. However, he also ordered the city to pay the three newspapers $1.35 million in attorneys’ fees and expenses.

Near Denver, an Army appeals court stopped the investigative hearing into three soldiers charged with murdering an Iraqi general until the judges can determine whether The Denver Post's request to open the hearing is valid.

The newspaper last Friday filed a motion to stop the Article 32 hearing into the death of Maj. Gen. Abed Mowhoush at the Qaim detention facility last year. Steven Zansberg, an attorney for The Post, said the appellate court's halting of the proceedings - and previous military court cases - makes this an important ruling.

In Virginia, a libel lawsuit brought by Steven Hatfill against The New York Times and columnist Nicholas Kristof concerning the 2001 anthrax attacks was dismissed by U.S. District Judge Claude Hilton. The judge ruled that Kristof's columns, in which Hatfill was referred to as "a person of interest" in the investigation by Attorney General John Ashcroft, did not defame him, the Associated Press reported.

"It is evident that the Op-Ed pieces highlighting the perceived shortcomings of the FBI are not reasonably read as accusing Hatfill of actually being the anthrax mailer," Hilton wrote. "The principle that an accurate report of ongoing investigation or an allegation of wrongdoing does not carry the implication of guilt has long been recognized . . . and it is mandated by the First Amendment."

Jurkowitz: Is 1st Amendment under attack?

With the trials of reporters Matthew Cooper of Time and Judith Miller of The New York Times set to begin tomorrow and the sentencing of Providence TV reporter Jim Taricani Thursday, Boston Globe media writer Mark Jurkowitz asks, Is the First Amendment under attack?

Move on for shield law in Mass.

Charles Kravetz, station manager and vice president of news at New England Cable News, and Jeffrey Newman, a Boston lawyer, are spearheading a movement to pass a reporter's shield law in Massachusetts, prompted by cases across the country of reporters being held in contempt and jailed for refusing to reveal their confidential sources. They are seeking to form a committee of journalists to help draft a reporter's shield law. Kravetz told me today that he plans to send out a letter tomorrow to all major news outlets in the state inviting their support.

Media news from Denver

Reading the Denver Post en route back to Boston, two interesting items:

First: A decision by officials at Sheppard Air Force Base in Texas to drop criminal charges against an airman accused of participating in a gang rape last year of another service member, Leah Kaelin, means that a subpoena issued by Sheppard officials, seeking reporter notes from unpublished conversations with Kaelin, has been dropped.

Kaelin, who alleged she had been assaulted by Matthew Monroe and three other airmen at a hotel last year, decided "not to go forward with a criminal proceeding," according to a news release issued by Sheppard officials.

Kaelin's story appeared in the Denver Post last March, detailing her account of being drugged by the airmen and how commanders later downplayed her allegations, kicked her out of the service and took eight months to process the DNA evidence.

Second: Denver Post editor Gregory Moore, formerly managing editor of The Boston Globe, has been elected to the Pulitzer Prize Board.

I'm back ...

from Vail, where I was attending a meeting the last few days.

Red Sox CEO a media lawyer?

Speaking today at the annual meeting of the Massachusetts Newspaper Publishers Association, Boston Red Sox President and CEO Larry Lucchino noted that earlier in his career, when he was practicing as a lawyer, he represented the Washington Post on occasion and defended the paper in a libel case.



Lucchino did not come to the meeting empty handed -- he brought the World Series trophy. And, posing in the photo above with Boston Herald Publisher Patrick Purcell (right), Lucchino announced he had converted lifelong Yankees fan Purcell to the Red Sox nation.