More of Sunshine Week coverage in Mass.

More Sunshine Week coverage from Massachusetts newspapers:

• The Republican: The hard fight for freedom of information
• Metrowest Daily News: Open Meeting Law changes eyed
• Boston Herald: State public records chief vents 'frustration' with AG
• Berkshire Eagle: Records keeper opens up
• Metrowest Daily News: Public records czar wants more power
• The Republican: Police finalist list kept secret
• The Recorder: Newspapers want to put teeth into Massachusetts’ open meeting law
• Standard-Times: Our View: Sunshine Needed in Marion
• Cape Cod Times: Open Documents Force Government to Come Clean
• Cape Cod Times: Bill would fine individuals for violating open meeting law
• Cape Cod Times: Government Slows Actions on Public Records Requests
• Lowell Sun: Creeping Secrecy
• Eagle-Tribune: Everyone has a stake in fight for open meetings and records
• Eagle-Tribune (corrected link): Democracy works best when the sun shines on machinery of government

See also: Sunshine Week coverage in Mass.

Texas tries again for shield law

From AP via the Laredo Morning Times:

"AUSTIN - Texas media organizations are planning to again work for passage of a law protecting news reporters from having to disclose secret sources and other information in court.

"That legislation, known as a shield law, failed in the state's 2005 legislative session amid opposition from district attorneys. But news industry groups will push a similar measure in the 2007 session."

Sunshine Week coverage in Mass.

Today marks the start of Sunshine Week and several Massachusetts newspapers marked the day with reporting and opinion:

• Berkshire Eagle: Openness begins at local level
• The Patriot Ledger: Local Violations: Not so open meetings
• Sentinel & Enterprise: Open Meeting Law may get a modern makeover
• Patriot Ledger: Sh-sh-sh: Towns keeping secrets from you
• Metrowest Daily News: Reporters seek shield law
• The Republican: Public access falters
• The Republican: Sunlight continues to be the best disinfectant
• Telegram & Gazette: Open Meeting Law Challenged by New Technologies
• Eagle-Tribune: Democracy Works Best When Sun Shines on Machinery of Government
• Cape Cod Times: Requesting public records?
• Cape Cod Times: Study: Secrecy Trend Sweeps Nation
• Cape Cod Times: Q&A with Tom Curley, AP president
• Lowell Sun: We know more about Bart than about our rights. Is that right?
• Lowell Sun: Let the Sunshine In.

Shield laws uncertain in Mass., Conn.

Associated Press reporter Brooke Donald provides an update on shield law efforts in Massachusetts and Connecticut. She writes:

"An effort to pass a reporter shield law in Massachusetts is gaining steam, but may end up being set aside while the Legislature deals with other issues, such as expanding health care for thousands of uninsured residents.

"A similar effort is underway in Connecticut, where a bill that died last year has been tweaked and brought up again."

Court OKs search of paper's hard drives

The Pennsylvania Supreme Court has ruled that prosecutors may search a newspaper's hard drives to seek evidence in a grand jury investigation into whether reporters were improperly given access to a restricted law enforcement Web site, AP reports. The court issued a one-page order that allows the Attorney General's Office to examine four Lancaster Newspapers Inc. computers.

Analysis: States steadily restricting info

As Sunshine Week kicks off, an Associated Press 50-state survey finds that states have steadily limited the public's access to government information since the Sept. 11, 2001, terrorist attacks. State legislatures have passed more than 1,000 laws changing access to information, approving more than twice as many measures that restrict information as laws that open government books, the survey finds.

Overall, the AP found that states passed 616 laws that restricted access to government records, databases, meetings and more, and 284 laws that loosened access. Another 123 laws had either a neutral or mixed effect, the AP found.

(Note: I provided assistance to the Massachusetts AP bureau in researching laws here.)

Florida court dismisses Web defamation suit

A Florida trial court has dismissed for lack of jurisdiction a builder's defamation lawsuit against the owner of a Web site critical of its work. The owner, Peter Siskind, created the site, bad-lexingtonhomesinc.net, after his relationship deteriorated with the builder he had hired to construct a Florida home. The site -- which the court labels a "gripe site" -- describes itself as dedicated to "all the consumers who have had bad experiences using Lexington Builders (west coast of Florida)." Siskind spells out his complaints with Lexington and invites others to add their stories.

The builder, Lexington Homes Inc., sued Siskind in Florida's Sixth Judicial Circuit. Siskind, not a Florida resident, asked the court to dismiss the case for lack of personal jurisdiction. The court granted the request, finding that the nature and quality of Siskind's activity in maintaining the site did not support the minimum contacts required for the exercise of personal jurisdiction. It said:

"Under these facts, this court cannot find that the defendant 'purposefully directed' its activities at residents of the forum state. Mere maintenance of a website accessible in Florida is not enough to create jurisdiction, and the contacts that tie the defendant to Florida must be particular and specific and not merely contacts that link the defendant with equal strength to all states. … Websites accessibIe in the state of Florida do not create jurisdiction absent some sort of active solicitation of activity in the State of Florida."

This is not an appellate case, but it is noteworthy. The court declined to find jurisdiction even though the Web site grew out of deal gone bad in Florida and targeted a Florida company's business practices. The court made the right call, in my opinion.

The decision, issued Nov. 2, 2005, is not available at the court's Web site, as far as I could determine, so I have posted the PDF version here.

Thanks for bringing this to my attention to Marc John Randazza of Weston, Garrou, DeWitt & Walters, Altamonte Springs, Fla.

Podcast examines soaring law firm salaries

This week on the legal news podcast Coast to Coast, we discuss soaring associate salaries. After a few years of relative stagnation, salaries for first year law associates suddenly are exploding. Starting pay is an incredible $145,000 at some large firms and I heard today of one that hit $150,000. What is going on here? Joining us to discuss this are Carey Bertolet, managing director of BCG Attorney Search in New York City, Melissa Lennon, senior director of the Temple Law School Office of Career Planning, and Michel J. Ayer, a law student at the University of Iowa College of Law.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me and produced by the Legal Talk Network. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Federal appeals court slams 'secret opinions'

The 7th U.S. Circuit Court of Appeals issued a stern warning last week against federal judges issuing secret opinions. I wrote about it on my LawSites blog.

AP wins release of Guantanamo names

A federal judge yesterday ordered the Pentagon to release the identities of hundreds of detainees at Guantanamo Bay to The Associated Press, a move which would force the government to break its secrecy and reveal the most comprehensive list yet of those who have been imprisoned there, AP reports.

U.S. District Judge Jed S. Rakoff in New York ordered the Defense Department by March 3 to release uncensored transcripts of detainee hearings, which contain the names of detainees in custody and those who have been held and later released. Previously released documents have had identities and other details blacked out.

1st Circuit reinstates libel suit over photo

The 1st U.S. Circuit Court of Appeals yesterday reinstated a New Hampshire woman's lawsuit alleging that Boston magazine libeled her by running a photo of her and others with an article headlined, "The Mating Habits of the Suburban High School Teenager," AP reports. The 1st Circuit reversed U.S. District Judge F. Dennis Saylor's March 2005 dismissal of Stacey Stanton's lawsuit against Metro Corp., the magazine's publisher.

AP reports:

"Saylor had found that Stanton failed to demonstrate that the photo's publication in the May 2003 issue of the magazine could be considered defamatory under Massachusetts law.

"But the three-judge panel ordered the lower court to reconsider the Manchester woman's complaint.

"The appeals court ruled that Stanton's allegations 'sufficiently state a defamation claim based on the theory that Metro negligently used Stanton's photograph to illustrate a story describing teenagers as sexually promiscuous without realizing that the publication might therefore be reasonably understood to mean that she was sexually promiscuous."

The full text of the opinion is available here.

Podcast: The trial of Saddam Hussein

On Coast to Coast this week we discuss The Trial of Saddam Hussein. We are honored to have as our guest Simone Monasebian, chief of the U.N. Office of Drugs and Crime. She formerly served as principal defender of the Special Court for Sierra Leone and as a trial attorney with the U.N. International Criminal Tribunal for Rwanda, Office of the Prosecutor.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me and produced by the Legal Talk Network. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Fair use under fire

Worth reading is Fair Use Under Fire, an Online Journalism Review interview with Marjorie Heins, founder and coordinator of the Free Expression Policy Project at the Brennan Center for Justice at NYU's School of Law. Heins is co-author with Tricia Beckles of a new report, Will Fair Use Survive? Free Expression in the Age of Copyright Control. In the interview, Heins discusses the uncertain state of fair use. She concludes:

"To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow. And in the area of journalism, it's especially important that that happen."

Shield laws advance in two states

Bills to enact journalist shield laws are moving forward in two states.

• In Washington, the House of Representatives Feb. 13 voted 87-11 in favor of a bill (HB 2452)that would grant reporters an absolute privilege on protecting confidential sources, the Seattle Post-Intelligencer reports. The bill, which now goes to the Senate, would provide a more limited privilege on unpublished notes and tapes.
  

• In Missouri, the Senate Judiciary and Civil and Criminal Jurisprudence Committee held a hearing Monday on a bipartisan measure that would create a qualified privilege for journalists, the Springfield News-Leader reports. "The bill would require anyone seeking confidential information from a reporter to detail for a circuit court judge the information sought, its relevancy to a case or investigation and the necessity of the information's release," the report says. It appears from the state legislature's calendar that it heard two versions of shield bills: SB 786 and SB 1013.

Supreme Court denies cert. in student paper case

The Supreme Court yesterday declined to hear the appeal of former college journalists at Governors State University in Illinois, AP reports. The students sued after a dean blocked the paper's printing in 2000 until she could review its stories. The students earlier lost in the 7th U.S. Circuit Court of Appeals.

Read more:

• Chronicle of Higher Education.
• Student Press Law Center.

Link to Perfect 10 ruling

Here is the full text of the 47-page opinion: Perfect 10 v. Google Inc..

And here is another good article on the case from The Recorder in San Francisco: Perfect 10 Racks Up Preliminary Injunction Against Google.

Google likely infringed magazine's copyright

A federal judge in Los Angeles said yesterday that Google's image search likely infringed the copyright of adult magazine Perfect 10 by displaying thumbnails of images for which the magazine charges, the Los Angeles Times reports.

In ruling on Perfect 10's request for a preliminary injunction, U.S. District Judge A. Howard Matz said that Google would likely lose at least part of the copyright infringement case when it is heard on its merits. The judge told the parties that he plans to grant Perfect 10 a preliminary injunction and asked the two companies to negotiate an agreement by March 8.

The Los Angeles Times story goes on:

"If upheld, the judge's preliminary ruling could throw a kink into the way Mountain View, Calif.-based Google collects and displays photographs in the image portion of its search engine. Lawyers not involved with the case said it would have little effect on Google's overall business, which generated $6.1 billion in revenue last year."

Blog defamation lawsuit lacks jurisdiction

Eric Goldman reports at Technology & Marketing Law Blog on a important federal court ruling involving jurisdiction over an out-of-state blogger. In TrafficPower.com v. Seobook.com, the U.S. District Court in Nevada dismissed a defamation lawsuit against a Pennsylvania blogger for lack of personal jurisdiction.

In Internet cases, courts often look to a Web site's degree of interactivity to determine personal jurisdiction. Applying this precedent, the Nevada court concluded that the defendant's blog, "while interactive in the sense that it allows individuals to read an dpost comments on a forum, does not rise to the level of interactivity to tip the 'sliding scale' in favor of personal jurisdiction."

Can you copyright a headline?

Not a chance, says The Patry Copyright Blog. At issue is a case pending in federal court in Chicago, Agence France Presse v. Google Inc., in which AFP says use of its headlines by Google News infringes its copyright. Baloney, says Patry, a copyright lawyer with Thelen Reid & Priest in New York. Copyright regulations expressly exclude short phrases and titles and "hundreds of opinions" back this up, he says.

Podcast: The business of law

Coast to Coast this week looks at the business of law with special guest Reid Trautz, lawyer, blogger, director of the D.C. Bar Practice Management Advisory Service, and nationally recognized author and speaker on law practice management topics.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me and produced by the Legal Talk Network. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Podcast looks at diversity in law practice

Our legal news podcast Coast to Coast this week looks at Diversity in Law, discussing whether progress has been made since 1999, when the chief legal officers of 500 large corporations agreed to push their outside law firms to hire more minorities and women. Joining us to discuss this topic are Veta Richardson, executive director of the Minority Corporate Counsel Association, and Ron S. Jordan, founding principal of Carter-White & Shaw.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me and produced by the Legal Talk Network. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Careless NYT links should raise libel alarms

[Update at 3 p.m. ET: The hyperlinks discussed below have been removed.]

This story on the New York Times Web site, A Detective to the Stars Is Accused of Wiretaps, includes prosecutors' allegations that a Hollywood private detective paid a Pacific Bell worker named Teresa Wright to provide telephone records and help him secretly install wiretaps and that the detective bribed a Beverly Hills police officer, Craig Stevens, 45, to check confidential law enforcement databases. Oddly, the story hyperlinks the names of Wright and Stevens to bios of different people with the same names. The Teresa Wright of the bio is an actress born in 1918 -- unlikely she is now working for Pacific Bell. The Craig Stevens of the bio also was an actor born in 1918 -- meaning he is not a 45-year-old police officer. Is this careless editing or is the NYT using an automated process to link names in stories to names in a database? In either case, careless linking of crime suspects to archived bios should set off newsroom libel alarms.

Podcast: Tort reform in 2006

Our legal news podcast Coast to Coast this week takes on the topic of tort reform in 2006. Joining us to discuss some of the critical issues in tort reform this year are Laurie Beacham, communications director for the Center for Justice and Democracy, and Tiger Joyce, president of the American Tort Reform Assocation.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me and produced by the Legal Talk Network. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Podcast examines DNA evidence and wrongful convictions

This week, an Illinois man who spent nearly two decades in prison for sexual assault was released after DNA evidence exonerated him. A week earlier, DNA evidence freed a Florida man after more than 24 years in prison for crimes he did not commit. Earlier this month, the Supreme Court heard arguments in a case in which DNA evidence calls into question a conviction.

On our weekly legal news podcast Coast to Coast this week, we discuss the issues surrounding the use of DNA evidence. Our guests are Robert N. Feldman, a founder of the New England Innocence Project and an attorney in Boston, and Joshua Marquis, district attorney of Clatsop County, Oregon, and vice president of the National District Attorneys Association.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Article: Bloggers and the First Amendment

Are bloggers journalists? Should anonymous bloggers be unmasked? David L. Hudson Jr., research attorney with the First Amendment Center, explores these and other questions in his recently posted article on blogging and the press.

Journos' group favors one of two Wash. shield bills

As the Washington state legislature prepares to take up two competing bills that would protect journalists' sources, the local chapter of the Society of Professional Journalists has thrown its support behind one version of the bill, saying it would prefer no law at all to the other, Associated Press reports.

Both bills -- one filed by Republican Attorney General Rob McKenna and the other by Rep. Brendan Williams (D-Olympia) -- would generally protect reporters from revealing their sources. But the Williams bill would go farther, protecting unpublished notes, out-takes, tapes and photographs.

According to AP, the SPJ chapter would rather have no change than have McKenna's bill become law. "We would be perfectly happy to leave things as they are if you can't get the right bill," chapter treasurer Marcus Donner told AP.

Schools' secret session notes under wraps

In Schools' Secret Session Notes Under Wraps, Sentinel and Enterprise reporter Kyle Alspach writes about the failure of the Fitchburg, Mass., school committee to release executive session minutes. (I am among the sources interviewed for the story.)

Sarbanes-Oxley vs. the free press

In Reason, journalist and Competitive Enterprise Institute fellow John Berlau has written a thought-provoking piece, Sarbanes-Oxley vs. the Free Press, on how the law enacted to promote corporate accountability could be used by federal prosecutors to bring media executives to their knees.

Enacted in the wake of the Enron scandal, the law broadly prohibits corporations from obstructing federal investigations and altering, destroying or concealing documents. It would not be a stretch, Berlau argues, for a zealous prosecutor to extend the law to a media company protecting a source or a reporter's notes. In fact, he suggests, this may have been at least part of the impetus for Time Inc. to have turned over Matthew Cooper's notes to Plamegate prosecutor Patrick Fitzgerald.

Berlau concludes:

"Reporters and commentators in the establishment media need to rethink their cheerleading for Sarbanes-Oxley and so-called corporate reform. From their privileged perch, journalists frequently have advocated giving prosecutors and grand juries more power over their fellow citizens, especially those who work for big corporations. But prosecutors like Fitzgerald see a media company as just another corporation. Now that the media are under the government’s thumb, they may be a bit more skeptical in covering the crusade against corporate crime."

Calif. court affirms access to divorce records

A California appeals court last week determined a state law used by billionaire investor Ron Burkle to seal records in his divorce case is unconstitutional, ruling the First Amendment allows public access to divorce proceedings, The Associated Press reports.

A three-judge panel of the 2nd District Court of Appeal on Jan. 20 said that the state law, which was intended to improve privacy and confidentiality, placed an “undue burden” on the public’s ability to review court records in divorce cases.

Law Firm's Defamation Claim Trumps Internet Anonymity

A state judge in Pennsylvania has ruled that a law firm's defamation claim trumps any First Amendment right to speak anonymously on the Internet, The Legal Intelligencer reports.

In a case brought by the law firm Klehr Harrison Harvey Branzburg & Ellers, Common Pleas Judge Albert W. Sheppard Jr. ordered the operator of two now-defunct Web sites to turn over the identities of the anonymous authors of allegedly defamatory comments on the sites.

According to The Legal Intelligencer, the judge found that free speech "is not absolute" and that "defamatory and libelous speech enjoys no constitutional protection."

Here is a link to the full text of the opinion.

Sirius shuts down Stern stream

Two unauthorized Web sites that were rebroadcasting Howard Stern's Sirius satellite radio show via a Web audio stream shut down over the weekend. HearHoward.org posted a notice saying that it has shut down due to the cease and desist letter it received from Sirius. The domain name of the second site, HearHoward100.com, is now for sale on eBay. The Boston Herald reported Friday that Sirius considered the audio streams "online piracy." The Herald said an unidentified Boston man was an administrator of the site. A blogger named Brad Beckett also claimed to be behind the site.

Carrying the cross of the First Amendment

I just came across this article from Boston's Weekly Dig: When the First Amendment Ain't Enough, about campaigns in Massachusetts and in Congress to enact reporters' shield laws. Not sure when the article ran, because the Web page is not dated, but it offers a good overview of the issue here in Massachusetts. I am quoted with regard to my involvement in drafting the bill. But the best quote comes from Bill Ketter, Eagle-Tribune VP of news, who opposes a shield law:

"I think pleading with Congress or a legislature -- institutions we'’re supposed to cover and not ask favors of for quickie redress of this latest flurry of troublesome subpoenas --— is not the right approach. We'’ve got to continue to rely on that old rugged cross -- the First Amendment -- and carry it up a hill every once in a while. And if that means going to jail, then we need to be prepared to do so."

Harvard paper loses bid for police records

I finally had an opportunity today to read last week's disappointing decision from the Supreme Judicial Court of Massachusetts, The Harvard Crimson Inc. v. President and Fellows of Harvard College, denying a request by Harvard's student newspaper to obtain incident reports and other records from the Harvard University police department.

Under Massachusetts law, some Harvard police officers have been designated "special state police officers," an appointment made by the colonel of the State Police. Some officers also serve as deputy sheriffs for the county. In light of these designations, the Crimson argued that records of the Harvard police were public under the state's public records law.

Saying that it would construe strictly the scope of the public records law, the SJC rejected the Crimson's argument.

"The public records law, and its implementing regulations, are applicable to documents held by public entities, not private ones. Simply put, Harvard University is a private institution, a fact not challenged by the Crimson. ... It follows, therefore, that records in the custody of the HUPD, a department within Harvard University, are not "public records" that fall within the ambit of [the law]."

The decision is disappointing for its strict interpretation of the law. Other states, most notably Florida, have stated that they will liberally apply their open government laws. The SJC could easily have done so here. The court, itself, notes the somewhat anomalous fact that Massachusetts law expressly provides that Harvard's police logs are to be maintained as public records.

The Crimson may still find recourse in the state legislature. A bill has been filed that would make these records public. HB 3449 provides:

"All records, reports or other documentary materials or data made or received by such employees so appointed as special state police officers shall be public records kept and maintained in the custody of such college, university, other educational institution or hospital, except as otherwise provided by law."

In October, the bill was reported favorably by the legislature's Joint Committee on Public Safety and Homeland Security and is now with the House Committee on Ways and Means.

DA says e-mail falls under meetings law

In Massachusetts, the district attorney's office for Middlesex County has dismissed a complaint that a town conservation commission member violated the state's open meetings law by sending an e-mail to other board members complaining about the board's chair, the MetroWest Daily News reports today.

Assistant DA Loretta Lillios dismissed the complaint because the alleged violation was later remedied by making the e-mail part of the public record. In so doing, however, she cautioned that the law clearly applies to e-mails:

"As you know, this office has long held that private communications, including e-mail communications, that occur among a quorum of a governmental body, and that concern substantive matters within the jurisdiction of the governmental body, violate the Open Meeting Law. Like private conversations held in person or over the telephone, such e-mail conversations deprive the public of the opportunity to attend and monitor these e-mail ’meetings’ and are a serious violation of the Open Meeting Law."

Score one for the media

Not only did a Texas judge refuse a district attorney's request to force a Houston TV station to turn over unaired video footage, but in so doing he lamented the erosion of constitutional protections for the news media, the Houston Chronicle reports.

"Ever since the Constitution was issued, it's been chipped away at," District Judge Mark Kent Ellis said at Tuesday's hearing on television station KPRC's motion to quash a grand jury subpoena for the video. "I'm sympathetic with the needs of a press to be free."

Technology is testing open-government laws

Good article on an issue of increasing concern: State: Technology is testing open-government laws.

'Coast to Coast' commits legal prognostication

This week on the legal news podcast Coast to Coast, my cohost J. Craig Williams and I host a panel of esteemed pundits for Legal Predictions for 2006. Our guest prognosticators on the program are:

• Carolyn Elefant, a Washington, D.C., lawyer and author of the popular blog MyShingle.
• Stephen L. Kaplan, partner with the Los Angeles firm Hicks, Mims & Kaplan and author of an annual set of predictions about law, politics, economics and international affairs.
• Norman A. Pattis, a leading Connecticut criminal defense lawyer and coauthor of the blog Crime & Federalism.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Toobin on courts and journalists

In his New Yorker piece, Name That Source: Why Are the Courts Leaning on Journalists?, Jeffrey Toobin has one of the best overviews of the issue I've read. He steers clear of the debate over shield statutes, focusing instead on the courts' increasing propensity to subpoena reporters. If there is hope for reporters in the courts, Toobin suggests, it may lie in D.C. Circuit Judge David S. Tatel's recognition, in Judith Miller's appeal, that courts have broad latitude to develop an evidentiary privilege if not one based on the First Amendment. Still, concludes Toobin, "reporters have little reason to be optimistic."

Newspapers lose bid to open tribal meetings

A judge in Portland, Maine, has denied a bid by two Maine newspapers to gain access to meetings of the Passamaquoddy Tribal Council, AP reports. The judge ruled that the tribal council is not violating state law by holding closed-door negotiations with an Oklahoma company that hopes to build a liquefied natural gas terminal on tribal land.

Thomas E. Humphrey, chief justice of Maine's Superior Court, concluded that because the Pleasant Point reservation is acting as a corporation and not a municipality, the Tribal Council is not violating the Freedom of Access Act by keeping tribal members and the press out the meetings.

• Another report: Judge rules open meetings not required for LNG project.

First publication starts clock on defamation action

Media Law Prof Blog reports that the Michigan Supreme Court has ruled that the statute of limitations for defamation begins tolling when the statement was first published, not when it was republished.

NH court opens financial records in divorce cases

In an important ruling in favor of public access to court records, the Supreme Court of New Hampshire has struck down as unconstitutional a state law that restricted access to financial affidavits filed in divorce cases. The challenge to the law was brought by the Associated Press and other news organizations. A report on the ruling is available from The Reporters Committee for Freedom of the Press. The full text of the decision, The Associated Press v. The State of New Hampshire, is available here.

Judge shields deputies' online Identities

A Florida sheriff's attempt to subpoena the identities of deputies who posted anonymously on the law enforcement Web site LEOaffairs.com has been denied by a judge in Tampa, the Tampa Tribune reports. The sheriff's office filed a lawsuit in August alleging that several "John Doe" deputies were posting sexist and racist messages anonymously on the site. The judge said that she would not prevent the deputies from posting messages but she ordered the Web site owners to remove racist and sexist messages, which they did. The suit also sought to compel the site's owners to reveal the identities of the posters, but the judge ruled that the First Amendment protects the owners from having to reveal their names.

Minnesota political blogger sued for defamation

A Democratic public relations consultant plans to sue a Republican blogger for defamation in a case that could offer a key test of the First Amendment rights of bloggers, Associated Press reports. AP says that Blois Olson, president of PR firm New School Communications and a Democratic political commentator, plans to file suit against Michael Brodkorb, a Republican who publishes the blog Minnesota Democrats Exposed.

According to the AP report, Olson disputes a recent series of postings by Brodkorb about criticisms Olson made of the congressional campaign of fellow Democrat Coleen Rowley. Brodkorb wrote that an anonymous source told him that the Rowley campaign refused to hire New School Communications for consulting work, prompting Brodkorb to ask why Olson did not disclose that when he criticized Rowley in several news stories. Olson denies that New School tried to get consulting work with the Rowley campaign.

Officials who discuss litigation in private infringe public's rights

Open meeting laws often exempt from public view meetings of a legislative body held to discuss pending legislation. But, as Peter Scheer, executive director of the California First Amendment Coalition, points out in The Mercury News, resolving litigation often involves decisions that go well beyond whether to write a check. Scheer explains:

"This means that, under the protective veil of settling litigation, a city council can -- in the secrecy of a closed session -- make all manner of policy decisions that both tie the hands of future councils and commit to decisions that otherwise would require public input and debate. And because the most important and thorniest issues facing a community are commonly the subject of litigation, the public will be bypassed on the very issues in which its interest is greatest."

Two Missouri bills would shield reporters

The Columbia Tribune has the details.

Washington shield law gains bipartisan support

A bipartisan group of Washington state representatives has agreed to sponsor legislation to protect the confidential sources of news reporters, the Yakima Herald-Republic reports. The legislation, proposed by state Attorney General Rob McKenna, would provide an absolute privilege against compelled disclosure of confidential sources.

• Further reading: McKenna's news release.

Opinions clarify access to officials' e-mail

For journalists and others interested in open access to government records and proceedings, e-mail poses unique obstacles. Two recent developments, one in New Jersey and another in Massachusetts, help clarify this sometimes muddy issue.

In New Jersey, the state's Government Records Council, the agency that oversees the New Jersey Open Public Records Act, has ruled that e-mail messages that discuss government business are public records open to public review -- even if they are on an official's personal computer, the Courier-Post reports. "The definition of a government record is not restricted by the location of the record," the council concluded in a decision earlier this month. The ruling requires the mayor of the borough of Fair Lawn to turn over all borough-related e-mails stored on his personal computer to a citizen who requested them.

In Massachusetts, the district attorney for Middlesex County issued a warning to local officials that careless use of e-mail to discuss town business runs the risk of violating the state Open Meeting Law, according to the Metrowest Daily News. In response to a complaint filed by the Daily News against the school committee for the town of Wayland, the DA cautioned that "members should limit e-mail communications to matters of a purely housekeeping or administrative nature, and should maintain copies of all e-mail communications in a central file."

Web host not liable in defamation case

The operator of a Bali-based travel business cannot use Arizona courts to sue another Bali business for posting allegedly defamatory information on a Web site hosted by a Phoenix company, the Arizona Court of Appeals ruled last week, according to a report in The Arizona Republic.

The court said that the defendant's use of an Arizona company's Web hosting services was not sufficient to establish jurisdiction in Arizona over the dispute between the two Bali competitors. The court also said that the federal Communications Decency Act of 1996 immunized the Web hosting company from damage claims resulting from material posted on the Internet by another party.

The decision is Austin v. CrystalTech Web Hosting, Case No. CA-CV 04-0823 (Dec. 22, 2005).

Gannett GC wraps up key media cases

Gannett Vice President and Associate General Counsel Barbara W. Wall has published a year-end wrap up of public-records and prior-restraint cases involving the company's newspapers. A second installment, due this week, will review cases that involved libel, privacy and reporter's privilege issues.

Best legal blogs of 2005

The folks at Blawg Review have handed out their 2005 Blawg Review Awards. I am proud to say that Coast to Coast, the weekly legal news podcast I cohost with J. Craig Williams, won the award for Best Legal Podcast.

Wishing you the best for the holidays

To all those who read this blog, I wish you peace, happiness and prosperity this holiday season and for all to come.

Two podcasts: Blackberry battles and holiday music for lawyers

Two new installments of our legal news podcast, Coast to Coast, are now available:

• Legal Battle Over the Blackberry. Our guest is Eric J. Sinrod, a partner in the San Francisco office of Duane Morris LLP, a technology and IP lawyer and columnist who has followed and written about the patent battle between NTP and Research in Motion.

• Holidays with Lawyers. Our guest is Lawrence Savell, the lawyer, songwriter and performer who joins us for our holiday podcast. Savell has recorded three humorous holiday albums for lawyers, all available at Lawtunes.com. We listen to samples of Savell's music and learn how he uses music and humor to bring balance to his professional life.

Coast to Coast is the weekly legal news podcast cohosted by California blogger J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Audiocast: Law Firms Going Global -- What It Takes

As part of its special section, Far East, Close to Home, Law.com features a free webcast of a panel discussion, Going Global: What Does It Take? I participated on the panel, along with fellow bloggers Rees Morrison, senior director of Hildebrandt International, and Bruce MacEwen, law firm consultant. Law.com editor Scott Martin moderates.

As the promo says:

"Find out what it takes for small and midsize firms to open offices overseas, and learn what in-house counsel need to know when working across borders."

Indiana ruling strengthens records law

In Indiana, a ruling by the state Court of Appeals this week in favor of a small-town weekly newspaper has bolstered public access to government records, according to a report by The Indianapolis Star. The court ruled that the paper, the Knightstown Banner, had a right to see details of a settlement that the town had reached with a former employee.

Town officials had kept secret most details of the settlement, contending that the town's insurance carrier, not the town itself, was party to the settlement, thereby excluding it from the public records law. A lower court had agreed with the town.

The Court of Appeals said:

"Knightstown focuses on the argument that the definition of public record does not include documents created by private individuals acting on behalf of a public agency. This distinction is without merit. There is no doubt that although Retained Town Counsel is a private individual, and not itself a public authority under [the law], he created, maintained, and retained custody of the settlement agreement as attorney for Knightstown, which is a public authority."

The full text of the decision is here.

Bush wins praise for FOIA order

President Bush today signed an executive order calling on federal agencies to streamline their handling of Freedom of Information Act requests and to appoint senior officials to monitor FOIA compliance. The order won praise from media organizations including The Reporters Committee for Freedom of the Press, the National Newspaper Association and the Newspaper Association of America.

The order, titled Improving Agency Disclosure of Information, directs agencies receiving FOIA requests to "respond courteously and appropriately" and to provide "citizen-centered ways to learn about the FOIA process."

It directs each agency to appoint a senior official -- at the assistant secretary or equivalent level -- to serve as chief FOIA officer. The officer will be responsible for FOIA compliance and monitoring.

The order also requires each agency to establish an FOIA requester service center which is to be "the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response."

Under the order, each agency will be required within six months to review its FOIA operations and develop a plan for ensuring compliance with the law and the executive order. The order directs the attorney general to compile these agency plans and submit a report to the president within 10 months on implementation of the executive order.

RCFP issued a statement today calling the order a good start to making the government more accountable and open. The NNA and NAA jointly issued a statement commending the president for opening the door for better service to the public in dealing with FOIA requests.

U.S. ranks sixth in jailing journalists

The United States ranked sixth among the world's leading jailers of journalists in 2005, the Committee to Protect Journalists said in a report issued yesterday. China, Cuba, Eritrea and Ethiopia were the worst offenders, the report said, together accounting for two-thirds of the 125 editors, writers and photojournalists imprisoned around the world.

The U.S. is holding four Iraqi journalists in detention in Iraq and one Sudanese national, an assistant cameraman for Al-Jazeera, in Guantanamo.

For the seventh consecutive year, China was the world's leading jailer of journalists, with 32 imprisoned, the report said. Fifteen of the cases in China involved Internet journalists. Cuba was second, with 24 journalists behind bars.

Do dogs have right of free speech?

In what may be a case of canine versus the constitution, a lawyer in El Paso, Texas, is contending that a dog's barking is speech protected by the First Amendment.

According to a report Sunday in the El Paso Times, the novel notion is being raised in defense of a lawsuit brought by an El Paso man over his neighbor's dog's alleged nonstop barking. The neighbor denies the barking, but his lawyer says that, if the dog was barking, it has a constitutional right to do so.

The newspaper quotes the lawyer as promising to fight the issue to the Supreme Court, if necessary. "I can honestly state that if the dog did bark at all, the dog was simply exercising his first amendment right to freedom of speech."

My two cents: He's barking up the wrong tree.

The ironies of source protection

A thoughtful piece in The Miami Herald by columnist Edward Wasserman, journalism professor at Washington and Lee University (and one-time colleague of mine at ALM), probes the ironies of source protection. Says he:

"The fact is that source protection is miles from being a paramount concern for journalists. Forget confidential informants for the moment. Apart from them, obligation to sources is a miserably neglected area of journalism ethics. The well-being of informants, and the ways that the reporting they contribute to may rebound on their lives, are things that journalists worry about rarely, if ever."

Colorado bans blogging on state computers

After learning that anonymous postings to a Colorado political blog, ColoradoPols.com, originated from a computer in the office of Gov. Bill Owens, the governor issued a directive banning state employees from posting to blogs using government computers, the Rocky Mountain News reports.

The governor's directive, issued through his chief of staff, said:

"It has become apparent that Executive and Legislative computers have been used to post commentary on political web logs (blogs).

"Today, the governor ordered that we develop new policy prohibiting the use of government computers from being used to post to any such sites. Please make certain that all members of your respective staffs are notified that this policy is effective immediately."

Feds' failure to name names violates FOIA, suit says

A lawsuit filed in federal court in New York this week alleges that the U.S. government is unlawfully withholding information it normally provides the public about some 900,000 of its civilian employees, including employees working for the Environmental Protection Agency, the Occupational Safety and Health Administration and the Federal Emergency Management Agency.

Brought by Public Citizen on behalf of the Transactional Records Access Clearinghouse, a research group at Syracuse University, against the Office of Personnel Management, the lawsuit charges that the agency violated the Freedom of Information Act by failing to provide the information or explain its refusal.

Since 1989, TRAC has posted a database on the Internet with the name, work location, salary and job category of all federal civilian workers except those in some law enforcement agencies. The data are often used by reporters and government watchdog groups to monitor policies and detect waste or abuse.

The government first began providing the public with detailed information about all its employees in a register published almost 200 years ago. The first name in the first register, authorized by Congress in 1816, was President James Madison.

Further reading:

• Joint TRAC/Public Citizen press release.
• Text of complaint filed in U.S. District Court.
• TRAC correspondence with OPM.
• AP report on the lawsuit.

Podcast: Military recruiting at law schools

Coast to Coast this week looks at military recruiting at law schools and the case argued earlier this week before the Supreme Court, Rumsfeld v. FAIR. Our guest today was Lara Schwartz, chief legislative counsel for Human Rights Campaign, an organization devoted to promoting lesbian, gay bisexual and transgender equal rights.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Mass. lawyer's jab at judge not protected speech

Massachusetts' highest court ruled today that the First Amendment does not protect a lawyer from discipline or disbarment for criticizing a judge in a pending case unless the lawyer has "an objectively reasonable basis" for the criticism.

In so ruling, the Supreme Judicial Court for the first time set out the standard to be applied in Massachusetts lawyer disciplinary proceedings when the lawyer invokes the First Amendment in defending against charges that he impugned the integrity of a judge without basis during a pending case.

The standard it adopted, the court said, is the one applied in the majority of states that have considered the issue. The SJC rejected the standard adopted by a minority of states, the "actual malice" defamation standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Writing for the court, Justice Francis X. Spina explained:

"Judges are not above criticism or immune from review of their court room conduct. ... Under the objective knowledge standard, an attorney does not lose his right to free speech. He may make statements critical of a judge in a pending case in which the attorney is a participant. He may even be mistaken. What is required by the rules of professional conduct is that he have a reasonable factual basis for making such statements before he makes them."

The case before the court involved lawyer Matthew Cobb, who had been ordered disbarred for multiple ethical violations. Among the claims against him was that he filed papers with the state Appeals Court alleging that a trial judge had been improperly influenced by the opposing counsel. In an affidavit he filed with the Appeals Court, he alleged that the opposing counsel "must have some particular power or influence with the trial court judge." A single justice of the Appeals Court found that his allegation was "scandalous" and "devoid of any rational or supportable basis in fact or law."

After Cobb was ordered disbarred for this and other infranctions, he appealed to the SJC, arguing that his statements about the judge, even if unfounded, were protected by the First Amendment. The SJC disagreed:

"The respondent has demonstrated rather convincingly by his quick and ready disparagement of judges, his disdain for his fellow attorneys, and his lack of concern for and betrayal of his clients, that he is utterly unfit to practice law. The only appropriate sanction is disbarment."

The case is: In the Matter of Cobb, SJC-09333 (Dec. 8, 2005).

Podkey creator denies he hijacked' feed

As George Lambert, creator of Podkey, points out in his comment to my post yesterday about an eWeek story regarding the "hijacking" of Erik Marcus' podcast feed, eWeek later followed up with Lambert's version of the story.

Lambert told eWeek that Marcus had registered with his service to begin with and the "ransom" represented fees that would be required to do the custom coding the podcaster has demanded. eWeek quotes Lambert:

"He wanted me to make sure no other directory services got the information from me, but I can't tell who are directory services, because we're not submitting anything. People are coming to look at our list. I have a choice: I remove it from anywhere or I [don't] remove it. You can't restrict who comes to look at your podcast. So his request wasn't technically practical.

"If you want me to come up with a solution, I can try, but that's consulting. That doesn't fall within the bounds of a free service—one that's there to make people's lives better. Is that extortion? I met his [original] request immediately and without reservation. I said I'd reinstate it for free if he met my terms. If you're asking me to do something custom, you have to pay me to do [it]. That's not unreasonable, and that's not extortion."

See Lambert's blog for more on this, including e-mails between him and Marcus.

FOIA exemptions help U.S. step up secrecy

The U.S. government released less information under the Freedom of Information Act in 2004 than in 2000, according to a newly released study by the Coalition of Journalists in Open Government. Even though FOIA requests to federal agencies dropped by 13 percent, their overall use of exemptions to screen information rose by 22 percent, the report says.

Forming the basis for this greater level of secrecy are three exemptions promoted by the Bush administration, CJOG contends. The exemptions allow withholding of information regarding intra- and interagency memoranda, internal personnel policies and proprietary information or trade secrets.

The report concludes:

"The findings make clear that the controversial 2001 memorandum from then-Attorney General John Ashcroft did in fact alter agency response to requests for public records. AshcroftÂ’s memo reshaped the guidelines agencies use when considering FOIA requests."

Notably, the study found that agencies denied FOIA requests less frequently in 2004 than in 2000. Nevertheless, requesters received significantly less information. Full grants -- where the requester received all information asked for -- fell from 55 percent in 2000 to 45 percent in 2004.

The hijacking of a podcast's RSS feed

eWeek has the story of how a cyber-squatter hijacked the RSS feed for "Erik's Diner," a podcast produced by Erik Marcus, publisher of Vegan.com.

It all started when Marcus discovered that the Yahoo podcast directory listed not his RSS feed, but one belonging to a site named Podkeyword.com. When his efforts failed to get Yahoo to correct the listing, he went to Podkeyword, which agreed to drop the duplicate feed. It was then that Marcus discovered that Apple's iTunes service also had the Podkeyword RSS feed. When Podkeyword dropped the feed, he suddenly lost roughly 1,000 iTunes subscribers.

This sent him back to Podkeyword asking to reinstate his listing. But, according to eWeek, Podkeyword reportedly responded that the listing would be reinstated only if Marcus provided an unspecified payment or agreed permanently to its terms.

The moral of the story, says eWeek writer Lisa Vaas, is that RSS feeds are far more vulnerable to squatters than Web site domains, because hijacking an RSS feed requires no stolen passwords or other overtly illegal tactics. She explains:

"Rather, it merely involves finding a target Podcast and creating a unique URL for it on a Web site that the hijacker can control. The hijacker then points his URL to the RSS feed of the target Podcast.

"Next, the hijacker does whatever it takes to ensure that, as new Podcast engines come to market, the page each engine creates for the target Podcast points to the hijacker's URL instead of to the Podcast creator's official URL."

In her blog, Marcus' lawyer, Colette Vogele, tells how to protect yourself against RSS hijacking.

Column: 2005 -- Year of the Podcast

Law.com today features my latest Law Technology News column, "2005: Year of the Podcast," in which I review a cross-section of law-related podcasts.

Podcast: Abortion and the Supreme Court

Shortly after the Supreme Court heard oral arguments yesterday in Ayotte v. Planned Parenthood, we recorded the Coast to Coast program, Supreme Court and the Abortion Issue. Our guests to discuss the case and its implications were Neil S. Siegel, associate professor of law at Duke Law and former law clerk to Associate Justice Ruth Bader Ginsburg, and Mathew D. Staver, president and general counsel of the anti-abortion group Liberty Counsel.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Do online postings violate open-meeting laws?

Can a government official violate the open meeting law by posting to an online forum? That is the question being debated by officials in the town of Westford, Mass., according to a report in The Lowell Sun. Selectman Jim Silva's postings to the privately run site Westford Web have sparked a debate over whether he is in violation of the open meeting law.

The law requires all government meetings to be open to the public and prohibits a quorum of any government body from meeting in private for the purpose of deciding or deliberating on a matter. A spokesperson for the local district attorney's office explained the potential violation: "If you have all members of the board on a forum, you run a risk of having a situation where there is an online meeting that there is no public notice."

But Silva says the First Amendment protects his right to continue to post. "If they stretched the Open Meeting Law to the point that a single selectman can't post on an online forum," he told the Lowell Sun, "that would be a civil rights violation."

College must open its meetings, court rules

By way of the Student Press Law Center comes news that New York’s highest court has ruled that decision-making bodies at public colleges are required to abide by the state’s open meetings and open records laws. The ruling means that students at public colleges in New York have the right to attend meetings of college senates, faculty councils and similar decision-making bodies.

The case arose when two students at Hostos Community College -- part of the City University of New York -- were denied admission to meetings of the College Senate, a body composed of faculty, students and administrators. In concluding that the senate's meetings must be open, the court found that it performs a "quintessentially governmental function."

• Opinion text: Matter of Perez v. City University of New York.

Two more states seek laws to shield sources

I wrote last month about the filing of a Massachusetts bill to shield reporters. Now, similar laws are being sought in two other states.

In Utah, a conservative state senator and the state attorney general are joining forces to back a bill that would allow reporters to keep the names of their confidential sources secret, even from criminal prosecutors, The Salt Lake Tribune reports. The bill would be filed before the 2006 legislative session begins in January.

And in Washington, state Attorney General Rob McKenna says he plans to request legislation in January to protect reporters' confidential sources, according to The Yakima Herald.

Shield law statutes are on the books in 31 states and the District of Columbia, according to The Reporters Committee for Freedom of the Press.

More on Corante's hubs

Corante founder and editor Hylton Jolliffe offered his thoughts today on the launch of Corante hubs and the Corante Network. Here's a key quote:

"The goal of the hubs: to marry human intelligence and editorial voice with useful technologies to become a trusted and useful tool - one that helps you find and sift through what's worth reading, one that provides valuable context and perspective on the critical issues impacting your industry and interests, and one that engages in and extends the conversations that make social media such a rich and enlightening experience."

Libel lawsuits against bloggers

Eric P. Robinson, a lawyer with the Media Law Resource Center, has put together an interesting compilation of libel and related lawsuits against bloggers. He lists and describes 14 cases that cover the gamut from defamation to trade secrets to national security. Three so far have resulted in published decisions, two in favor of the bloggers -- Doe v. Cahill, in which the Delaware Supreme Court reversed a lower court's decision ordering an ISP to reveal the identity of anonymous posters to a blog, and Penn Warranty Corp. v. DiGiovanni, in which a New York trial court dismissed a libel suit brought against a man for his 45-page Web site detailing his gripes against a car insurer -- and one, Sollami v. Sheppard, in which New York's Appellate Division allowed a defamation case against a blogger to proceed to trial.

This blog joins launch of Corante Media Hub

I am proud to announce that this blog today becomes a member of the newly launched Corante Media Hub, part of a new direction from Corante that has it partnering with independent bloggers on specific topics and aggregating, distilling and synthesizing their writings in topic-specific sections, or "hubs." Other hubs Corante has launched so far are Web and Marketing.

Corante founder and editor Hylton Jolliffe describes it this way:

"The goal of this page: to become a trusted and useful tool for you - one that helps you find and sift through what's worth reading, one that provides valuable context and perspective, and one that engages in and extends the conversations so essential to the rise of social media."

I have long respected the innovative work of Corante, which describes itself as "the world's first blog media company." Many in the legal community are already familiar with its hosted blogs, such as Between Lawyers and Copyfight. As part of the Media Hub, I have the added privilege of becoming affiliated with a distinguished group of independent bloggers who form the Media Hub's contributors. Stay tuned as this continues to evolve.

Eagle-Tribune: Open meeting law needs teeth

Massachusetts needs a stronger open meeting law, says Eagle-Tribune Editor-in-Chief William Ketter in an opinion piece published yesterday, Strengthen the Public's Right to Know About Local Government. Wrote Ketter:

"It makes sense ... to take action against those officials who deliberately disregard your right to know. And 40 states do impose civil or criminal penalties for violating open meeting laws.

"Not in Massachusetts. Here, there's hardly any punishment for meeting unlawfully in secret, away from the people and the press."

(The piece includes a quote from me speaking to a recent gathering of state legislators.)

Union Leader says 'no' to shield law

An editorial today in New Hampshire's Union Leader opposes a federal shield law for journalists. It says:

"Prosecutors must have the ability to investigate leaks, even if that means subpoenaing journalists, who are not above the law. Putting journalists off limits does not further the cause of justice, it impedes it."

Pentagon FOI logs show little media interest

When blogger Michael Petrelis made an FOIA request to the Pentagon for a list of all FOIA requests it received since 2000, he was hoping to find out whether former New York Times reporter Judith Miller or other Times' reporters had sought Pentagon records. He found no requests from Miller, but the more surprising result was the overall dearth of FOIA requests from the media. Petrelis made his findings available to The Raw Story, which published them as Freedom of Information logs shed light on media's military curiosity. The article includes a partial list of the results, with Raw Story promising the complete list this week.

As Raw Story reports:

"The Pentagon’s records reveal that the law is broadly used—more than 10,000 requests have been made since 2000. But they also illuminate a seeming dearth of curiosity by news organizations about the internal files of the U.S. military establishment.

"This lack of curiosity appears particularly evident among the nation’s three largest newspapers."

The three largest U.S. newspapers -- USA Today, the Wall Street Journal and the New York Times -- together made just 36 requests between 2000 and February 2005. The Associated Press made 73. The newspaper that made the most requests was the Los Angeles Times, with 42. Next was the Washington Post, with 34. Of television networks, CBS News led in number of requests, with 32, followed by Fox News with 22.

The report prompted Editor & Publisher to ask, Are Media Using the FOIA Enough to Get Military Info?

Calif. paper's Web site does not confer jurisdiction in Illinois

An Illinois federal court ruled Oct. 27 that courts in that state do not have jurisdiction over a defamation suit against a California newspaper that operates a Web site because the site's interactivity with non-California residents is minimal, according to Mealey's intellectual property news. Another report on the case is available at Federal Civil Practice Bulletin.

Court applies reporter's shield to energy newsletters

A U.S. District Court judge in New York City ruled this week that the reporter's privilege protects two energy industry newsletters from revealing information subpoenaed in litigation under the Commodity Exchange Act. More on the ruling:

• Report from The Reporters Committee for Freedom of the Press.

• Text of the opinion.

C2C this week: The Patriot Act and national security letters

With key provisions of the Patriot Act due to sunset Dec. 31 and in the wake of a frightening report by The Washington Post about the FBI's excessive use of national security letters, this week's Coast to Coast podcast focuses on The Patriot Act. Joining cohost J. Craig Williams and me to discuss this are:

• Jameel Jaffer, an attorney for the American Civil Liberties Union who has litigated several significant cases involving government secrecy and national security.
• Coleen Rowley, the former FBI agent who exposed lapses in the investigation of suspected Al Qaeda operative Zacarias Moussaoui and who is now a Democratic candidate for Congress from Minnesota.

You can find the complete library of Coast to Coast programs here. The program is produced by the Legal Talk Network and sponsored by Law.com.

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.