FEC rules that a blog is 'the press'

The Federal Election Commission today unanimously approved Advisory Opinion 2005-16 finding that the Fired Up! network of blogs qualifies for the so-called press exception to federal campaign finance law.

That exception says that political contributions and expenditures do not include "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station ... , newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate."

In explaining its opinion, the FEC said:

"An examination of Fired Up’s websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up’s commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities’ websites and through Fired Up’s original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up’s websites are similar to letters to the editor and do not alter the basic function of Fired Up."

Reporter held in contempt in civil suit

The Washington Post reported today that a federal judge found one of its reporters in contempt of court yesterday for refusing to reveal who gave him information about an investigation of nuclear scientist Wen Ho Lee.

U.S. District Judge Rosemary M. Collyer ruled that Lee is entitled to know reporter Walter Pincus's sources because his lawsuit against the government for alleged violations of federal privacy law cannot go forward otherwise, and because he has exhausted all other possibilities for getting the information, the report said.

The order carried no jail time, but the judge imposed a fine of $500 a day until Pincus agrees to testify. The judge suspended the fine for at least 30 days to allow time for Pincus to appeal.

Secret dockets in Florida federal courts

Via Law.com comes this report on federal judges in Florida "completely hiding cases from public view by placing the cases on a secret court docket." One judge's explanation: "Judges are not gods. Like any human being, we make mistakes."

House passes bill allowing cameras in federal courts

Federal district court trials and appellate arguments could be televised at the discretion of the presiding judge under an amendment passed on a 375-45 vote in the House of Representatives last week, according to a report from The Reporters Committee for Freedom of the Press.

The amendment to the "Secure Access to Justice and Court Protection Act" includes provisions of the "Sunshine in the Courtroom Act," a bill that would allow camera and recording devices into federal courts on a three-year trial basis.

U.S. Rep. Steve Chabot (R-Ohio), a sponsor of the bill along with U.S. Rep. John Conyers (D-Mich.), said:

"Allowing television cameras in federal courts will open up the judiciary and allow the American people to see how their justice system operates. This is a good public policy if you are a believer in open and accountable government."

The bill now goes to the Senate, where Sens. Chuck Grassley (R- Iowa) and Ted Stevens (R-Alaska) have already introduced similar legislation.

But at an American Bar Association seminar last week, three Supreme Court justices urged caution and study before allowing cameras into the courts.

The bill is H.R. 1751.

Middlesex DA posts open meeting guidelines

The page is dated 2003, but I just came across it and am pleased to see that Middlesex District Attorney Martha Coakley has devoted a page of her Web site to the state Open Meeting Law, including a downloadable set of open meeting guidelines.

Judges, journalists and openness

I attended a conference today of about 50 judges and 50 journalists from Massachusetts, New Hampshire and Rhode Island. Among the judges were chief justices, appellate judges and trial judges. The journalists represented print, TV, radio and wire service organizations. Topics focused on ethics and access, from both sides of the coin.

The conference, organized by the National Center for Courts and Media, was very good. But as a lawyer and journalist, I found it disheartening. Here is why.

I take it as a fundamental precept of our democratic system that government should be open and accessible to the public. Openness should be the status quo, with exceptions made only when the presumption of openness is outweighed by considerations of security or privacy.

What I heard from a majority of the judges in attendance today was just the opposite. For them, the status quo is never to talk to the media. Time and again today, I heard judges say that they would not accept a phone call from a reporter or would decline comment if approached in person.

One reason, of course, is that judges comment on the cases that come before them through their written opinions and orders. They consider it inappropriate to attempt to explain or elaborate on those opinions.

But of even greater concern to the judges were the canons of judicial ethics that govern them. In Massachusetts, the Code of Judicial Conduct prohibits a judge from commenting on a case. It says, in Canon 3B.(9):

"Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel."

The Canon provides three exceptions:

"(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.
"(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.
"(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity."

At today's conference, we watched a videotape in which a judge sat with a reporter and, in response to a question about a case, gave a scholarly, mannered and informative overview of the process of judging. He studiously avoided commenting directly on the case. Instead, he explained that, as a judge, he looks to sources of law such as the constitution and case law and then applies that law to the record. He offered no specifics whatsoever about the case the reporter asked about, except to point to the voluminous pile of documents by his desk that formed the case record. Most of the journalists in the room thought this clearly fell within exception (a), "to explain for public information the procedures of the court." Most of the judges, however, considered the judge to have overstepped the bounds of appropriate conduct and possibly to warrant investigation by the judicial conduct commission.

If judges are relying on these rules to shut the door on reporters in circumstances such as this, then the rules need to be changed. (Not to mention the question of whether so broad a ban on judicial speech is constitutional. See, Republican Party of Minnesota v. White.) Rather than have rules that create a presumption in favor of silence, why not craft rules that do the reverse – that create a presumption in favor of judicial openness with certain exceptions to protect personal privacy and judicial impartiality. Our government should be modeled on openness – whichever in the executive, legislative or judicial branches. The rules should encourage this and judges should be taught this.

There is much misunderstanding among judges and journalists. Conferences such as this help to bridge the gap. But common sense goes a long way too. Judges and journalists must be able to talk to each other in the normal course, in order to illuminate the courts in the eyes of the public.

Judith Miller: The Web site

Judith Miller, the former New York Times reporter who spent 85 days in jail for refusing to disclose her source in the Plamegate controversy, has a Web site. It includes her letter bidding farewell to the Times, various articles about her jailing, articles about the reporter's privilege, her biography and information on her book about the Middle East.

C2C this week: What's next for Vioxx cases?

This week's Coast to Coast -- the legal news audiocast hosted by J. Craig Williams and me -- looks at the future of Vioxx litigation in the wake of Merck's recent win in New Jersey. Our guests this week are:

• Thomas V. Girardi of Girardi Keese, Los Angeles, the lawyer whose case against Pacific Gas & Electric became the storyline for the movie Erin Brockovich and who now serves on the liaison committee for Vioxx multi-district litigation in the federal courts.
• Dawn M. Barrios, partner with Barrios, Kingsdorf & Casteix, New Orleans, La. She also serves on the Vioxx liaison committee and her firm represents some 2,000 Vioxx plaintiffs.
• Lisa Brennan, staff reporter for the New Jersey Law Journal who covered the Vioxx trial there.

The audiocast is available for download or in streaming form. The complete library of Coast to Coast programs is available through the Legal Talk Network.

Pence speech offers hope on shield bill

U.S. Rep. Mike Pence (R-Ind.), principal sponsor of a bill (H.R. 3323) that would create a federal shield law, said today he is hopeful the House Judiciary Committee will hold a hearing on the bill before year end and that he believes it is possible a final bill will emerge from the current Congress.

Addressing a conference of newspaper association managers, lobbyists and lawyers in Washington, D.C., Pence cited progress in gaining support for the bill in both the House and the Senate and said that he continues to have a dialogue with Justice Department officials over their objections to the bill. He considers it noteworthy that the Senate Judiciary Committee has held two hearings on the bill already at a time when it has had to consider multiple Supreme Court nominations.

"It is possible in this Congress to achieve some reinvigoration within the U.S. Code of the First Amendment freedom of the press," he said.

The success of the bill will turn, Pence believes, on what happens in the Senate, where U.S. Sen. Richard G. Lugar (R-Ind.) has filed a bill (S. 1419) that mirrors the Pence bill. If it moves through the Senate, Pence said, he expects it will receive full consideration in the House.

Pence, who describes himself as "a Christian, a conservative and a Republican, in that order," made clear that he sees his support for journalists as consistent with his conservative values. "For someone who believes in limited government, the only check on government power in real time is a free and independent press," he said.

But he emphasized that he sees the shield bill as protecting the public more than the press. "This is about the public's right to know, this is not about protecting reporters."

The public's right to know faces its greatest threat ever, he believes, in the wake of the indictment of I. Lewis "Scooter" Libby. The prospect of four reporters testifying under oath against Libby "will send a tremendous chilling message across the fabric of American government."

Asked about the bill's perceived lack of protection for bloggers, Pence -- himself a blogger -- acknowledged that the bill takes a traditional approach to defining who is a reporter, but he said that the definition will take in some bloggers. He named Matt Drudge as an example of a blogger who likely would be covered, but he said the courts would likely have to address the issue "on a blogger-by-blogger basis."

Cornyn on open government

I am in Washington, D.C., at a conference of newspaper association lawyers, lobbyists and directors, where we heard today from U.S. Sen. John Cornyn (R-Texas), co-sponsor with U.S. Sen. Patrick Leahy (D-Vt.) of several bills aimed at strengthening public access to government information. A strong advocate of open government, Cornyn's efforts as former Texas attorney general to promote open government earned him the 2001 James Madison Award from the Freedom of Information Foundation of Texas. In his comments today, he reported nothing new about the FOIA bills, which you can find covered in some detail on his OPEN Government Act Web page. One quote among his comments that stood out for me was this: "Government too often regards [FOIA compliance] as a burden. My attitude is that it is a government's first obligation."

Alito on the First Amendment

Declan McCullagh offers an excerpt of Saxe v. State College Area School District.

'Coast to Coast' takes on the Alito nomination

Our weekly legal news podcast Coast to Coast this week considers the nomination of Judge Samuel Alito to the Supreme Court. Joining J. Craig Williams and me to discuss the nominee and his likely impact on the court are:

• Drucilla Stender Ramey, executive director of the National Association of Women Judges as well as a civil rights attorney and former executive director of the Bar Association of San Francisco.
• Carl W. Tobias, Williams Professor of Law at the University of Richmond School of Law.
• Matt Margolis, founder of Blogs for Bush and GOP Bloggers.

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

Woodward: Secrecy greater threat than terrorism

Bob Woodward told a Yale Law School class reporters need to keep digging to "get to the bottom of things," the New Haven Register reports. Otherwise, "We're on the path of a secret government." Government secrecy, Woodward said, is a bigger threat to America than terrorism or economic collapse.

Bill to shield reporters filed in Mass.

Massachusetts Senate President Robert Travaglini today filed a bill that would shield reporters from revealing their sources. The bill would prevent state courts and government entities from compelling a reporter to disclose the source of any news or information. It would also prohibit the required disclosure of a reporter's notes, outtakes, photographs, film, recordings and other data.

Note: I served on a committee of news professionals that drafted this bill and chaired the subcommittee that developed the committee's initial draft.

The bill is broad in its definition of who it covers, in order to include bloggers and freelance reporters. It defines coverage to include any person who "engages in the gathering of news or information" and "has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public."

I do not yet have the official bill number or text, but I have the text of the bill we drafted, which is the same as that filed today. If you would like a copy in Word format, send me a note at ambrogi-at-gmail.com.

Miller testifies on shield law

New York Times reporter Judith Miller appeared today before the Senate Judiciary Committee to testify on a proposed federal shield law. "Even flawed reporters should not be jailed for protecting even flawed sources," she testified, according to CNN. Meanwhile, CNN analyst Jeff Greenfield cites a long-ago Supreme Court justice in commenting on the Miller case, "The more you explain it, the less I understand it."

Miller to testify in Senate tomorrow

The Senate Judiciary Committee will hold a hearing tomorrow on reporters' privilege legislation. Among those scheduled to testify are New York Times reporter Judith Miller, ABC News President David Westin and Philadelphia Inquirer Managing Editor Anne Gordon.

A blog for Sunshine Week

I attended a conference this weekend where I heard Debra Gersh Hernandez, national coordinator of Sunshine Week, talk about plans for Sunshine Week 2006. Like the first event this year, the week will be devoted to raising public understanding of the importance of open government.

In the course of her talk, Hernandez announced that she has launched a Sunshine Week blog. It will provide news and commentary about open government and freedom of information issues, with particular focus on planning for the March 12-18, 2006, event.

I previously wrote about the Sunshine Week Web site here and provided a round-up of Massachusetts papers' participation in this year's Sunshine Week here.

Delaware Supreme Court protects anonymous blog postings

The Delaware Supreme Court yesterday handed down an important ruling that protects anonymous bloggers from attempts to unnmask them through libel lawsuits. This is the first ruling by a state supreme court on this matter. The court said that, if an elected official claims he has been defamed by an anonymous posting on a blog, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to support his claim.

Read more:

• Report by the New York Times.
• Text of the opinion: John Doe No. 1 v. Cahill.
• Further details in an EFF news release.

Supreme Court Turns Down Boston Globe Appeal

The Supreme Court turned down an appeal today from The Boston Globe and a former reporter in a $2 million defamation judgment stemming from the paper's refusal to reveal a confidential source, AP reports. Justices had been told that the case was important for protecting news sources, a subject of special interest with the summer jailing of New York Times reporter Judith Miller in a CIA leak case and court fights over civil contempt findings against other journalists.

The Globe had been sued by a doctor who argued news articles wrongly blamed her for the death of a patient. The patient, Betsy Lehman, was the newspaper's health columnist, who died in 1994 from an overdose of experimental cancer drugs.

The newspaper, relying on confidential sources, reported in 1995 that Dr. Lois Ayash was the leader of a team of doctors caring for Lehman at the Dana-Farber Cancer Institute in Boston and that she countersigned a medical order that resulted in Lehman's death.

The Globe later published a correction saying Ayash had not countersigned the order, while standing by the claim that she was the head of the treatment team.

I wrote previously about this case here.

In Miller case, history repeats itself

Writing in today's Washington Post, media lawyer Nathan Siegel says that the Judith Miller scenario has repeated itself in almost every generation since the beginning of modern American journalism, but each time with new protections for the subsequent generation of journalists. He writes:

"This pattern is not mere coincidence. Rather, I think, it reflects a fundamental conflict between the judiciary and the press that tends to recur whenever a new generation of judges and prosecutors uninfluenced by the memory and lessons of prior conflicts emerges. This time either Congress or the Supreme Court should take the lessons of history to heart and put this recurring controversy to rest."

Times reporter released from jail

Judith Miller, the New York Times reporter who has been jailed since July 6 for refusing to testify in the C.I.A. leak case, was released from a Virginia detention center this afternoon after she and her lawyers reached an agreement with a federal prosecutor to testify before a grand jury investigating the matter, the New York Times reports.

Reporters Without Borders publishes blogging handbook

Reporters Without Borders has published a Handbook for bloggers and cyber-dissidents, which is available as a PDF download. The handbook is intended as a guide both to creating a blog and to maintaining anonymity as a blogger. As the handbook explains:

"Bloggers are often the only real journalists in countries where the mainstream media is censored or under pressure. Only they provide independent news, at the risk of displeasing the government and sometimes courting arrest.

"Reporters Without Borders has produced this handbook to help them, with handy tips and technical advice on how to to remain anonymous and to get round censorship, by choosing the most suitable method for each situation."

More than a legal guide, the handbook is a how-to for new bloggers, with chapters on setting up blogs, gettting blogs recognized by search engines, and the ethics of blogging. These in addition to chapters on how to blog anonymously, technical ways to get around censorship, and ensuring e-mail is private.

Bloggers as journalists: making new rules

This week's Coast to Coast podcast looks at the issue Bloggers as Journalists: Making New Rules. My cohost J. Craig Williams and I discuss this with four guests:

• Bill Felling, long-time broadcast journalist and CBS News national editor.
• Wendy Seltzer, visiting assistant professor of law at Brooklyn Law School and founder of Chilling Effects Clearinghouse.
• Jeff Lewis, partner at Enterprise Counsel Group in Irvine, Calif., who also writes the SoCalLawBlog.
• Kurt Opsahl, staff attorney with the Electronic Frontier Foundation focusing on civil liberties, free speech and privacy law.
  

It is a vibrant discussion about bloggers and journalists and free speech. The podcast is available in streaming Windows Media format or as an MP3 download. Listen to it here or go here for the full library of previous Coast to Coast programs.

Round-up of useful sites for media lawyers

Law Technology News has posted my latest Web Watch column, Support for Media Lawyers: With Journalists Under Fire, Websites Offer Help. (LTN's site requires free registration to view articles.)

FOIA compliance deteriorating, report says

Government compliance with the Freedom of Information Act appears to be deteriorating in the aftermath of the Sept. 11, 2001, terrorist attacks, according to a Society of Environmental Journalists report released today, A Flawed Tool - Environmental Reporters' Experiences with the Freedom of Information Act.

The SEJ interviewed 55 reporters, finding that excessive delays in releasing information are common - with some FOIA requests taking more than a year to fulfill. Even when documents are turned over, agencies frequently black out huge amounts of information, the report found.

Among the report's findings:

• Three-quarters of the reporters interviewed who use FOIA on an occasional or frequent basis encountered significant delays in getting information from federal agencies. In some cases, those delays exceeded a year.
• The federal agencies most cited for failing to respond promptly and fully were the Department of Energy, Department of Defense, Food and Drug Administration and the Mine Safety and Health Administration.
• Some agencies decline to answer routine inquiries for documents such as Superfund reports and underground mine inspection reports, forcing reporters to file time-consuming FOIA requests for the information.
  

"This report clearly shows that Congress needs to take action to make sure agencies are complying with the Freedom of Information Act, and should set up a system to punish those that aren't," said SEJ President Perry Beeman, who covers environment for The Des Moines Register.

Delaware court hears blog libel case

From newszap.com:

"DOVER - The Delaware Supreme Court waded chest-deep Wednesday into an Internet free-speech case, seeking to strike a balance between one person's right to free speech against another's claims of libel.

"Smyrna Town Councilman Patrick J. Cahill and his wife Julie filed the suit last year in Superior Court alleging they were defamed by four anonymous posters to a community issues Web log - or blog - on the Internet."

Podcast on Rehnquist, Roberts and the Supreme Court

The latest installment of Coast to Coast, the weekly legal news podcast cohosted by J. Craig Williams and I, is now available. Recorded earlier today, the program, titled Roberts' Rocky Road, brings together a formidable panel of guests to discuss the Roberts nomination and the future of the Supreme Court. Joining Craig and I were:

• Craig Bradley, Indiana University School of Law professor and former law clerk for Justice Rehnquist.
• Elliot Mincberg, vice president, general counsel and legal director, People for the American Way.
• Lyle Denniston, veteran Supreme Court reporter for newspapers including the Baltimore Sun and now a contributor to SCOTUSblog.
• Gail Heriot, University of San Diego School of Law professor and contributor to the blawg, The Right Coast.

You can find all the Coast to Coast programs on the Legal Talk Network. We welcome your feedback on the program and your suggestions for topics to cover in future shows.

Papers win bid for bankruptcy report

An investigative report compiled by a court-appointed bankruptcy examiner is a public record and must be made available to the news media, the 1st U.S. Circuit Court of Appeals ruled yesterday in Gitto v. Worcester Telegram & Gazette.

Two media organizations, the Worcester Telegram & Gazette Corp. and MediaNews Group Inc., sought release of the report. They prevailed in their request in both the bankruptcy court and the district court before the case reached the 1st Circuit.

The case arose after Gitto Global Corp., a Massachusetts plastics manufacturer, filed for Chapter 11 bankruptcy and the bankruptcy court appointed an examiner to investigate allegations of accounting irregularities.

Two former executives of the company argued that the resulting examiner's report should be impounded under 11 U.S.C. section 107(b)(2), which provides an exception to public access for documents that contain material that is scandalous and defamatory.

But the 1st Circuit rejected their argument that any material tending to harm a person's reputation triggers the exception. In so doing, the court affirmed that there is a long-standing common law presumption of public access to judicial records.

"To qualify for protection under the § 107(b)(2) exception for defamatory material," the court said, "an interested party must show (1) that the material at issue would alter his reputation in the eyes of a reasonable person, and (2) that the material is untrue or that it is potentially untrue and irrelevant or included for an improper end."

Calif. Assembly urges federal shield law

By a unanimous 70-0 vote, the California state Assembly urged the U.S. Congress to enact a shield law to protect journalists, Editor & Publisher reports. The resolution is sponsored by the California Newspaper Publishers Association, and supported by the American Civil Liberties Union, the California First Amendment Coalition, Californians Aware, and the Planning and Conservation League.

DA says school board broke the law

The Middlesex district attorney's office says that the Wayland School Committee violated the state open meetings law last year when it kept the public out of its closed-door review of the superintendent of schools, according to the MetroWest Daily News.

According to the report, the DA concluded that the School Committee violated the open meeting law when it used a pair of executive-session meetings to discuss the job review of the superintendent last year.

The committee also violated the law when it did not provide public access to individual reviews of Burton written by committee members and copies of his 2004 job evaluation, the DA found.

Bob Dole endorses federal shield law

Writing in the op-ed page of today's New York Times, Bob Dole expresses support for a federal shield law and concern over the jailing of Judith Miller.

"As someone with a long record of government service, I must admit that I did not always appreciate the inquisitive nature of the press. But I do understand that the purpose of a reporter's privilege is not to somehow elevate journalists above other segments of society. Instead, it is designed to help guarantee that the public continues to be well informed."

Shield law would make media vulnerable to being legislated

So says columnist E. Thomas McClanahan in the Kansas City Star:

"That’s because a federal shield law would invite Congress to begin parsing the First Amendment. Lawmakers would inevitably decide where key lines should be drawn, such as who should be included in a shield law. Such a debate ought to make First Amendment supporters more than queasy."

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.