First Amendment Lets Search Sites Reject Ads

From CNET's Yahoo Blog:

"A federal court has ruled that search engines have a First Amendment right to reject ads as part of their protected right to speak or not speak. The U.S. District Court in Delaware has effectively shut down a lawsuit filed by Christopher Langdon, who had attempted unsuccessfully to sell ads on Google, Yahoo and Microsoft's search Web sites.

"Langdon has several Web sites that purport to expose fraud among North Carolina state officials and to discuss atrocities committed by the Chinese government, according to the court filings. Allegedly, Google rejected Langdon's ads because they attacked individuals, MSN ignored the request and Yahoo denied the request saying it only takes ads from sites it hosts. So Langdon sued them on claims of fraud."

Read the full decision.

Podcast: Libby Trial and Freedom of the Press

The First Amendment and freedom of the press are front and center in the trial of Scooter Libby. This week on the legal affairs podcast Lawyer2Lawyer (formerly Coast to Coast), we discuss the trial, shield laws and judicial attitutes towards free speech and a free press. My cohost J. Craig Williams and I welcome guests Ed Carter, a lawyer and assistant professor of communications at Brigham Young University who recently completed a study of Supreme Court free speech rulings, and Mark Obbie, director of the Carnegie Legal Reporting Program at the Newhouse School.

• Download the MP3 file.
• Listen to Windows Media stream.

SJC hears appeal in judge's libel case

From Associated Press via the Worcester Telegram & Gazette:

"The Boston Herald on Thursday asked the state's highest court to toss out a $2.1 million verdict won by a Superior Court judge who said the newspaper libeled him by reporting he made insensitive comments about a 14-year-old rape victim.

"In February 2005, a jury found the newspaper had libeled Judge Ernest Murphy in a series of articles. Murphy maintained a Herald reporter misquoted him as telling lawyers involved in a case about the rape victim: 'Tell her to get over it.' Murphy denied ever making the statement.

"An attorney for the Herald and its reporter, David Wedge, said Thursday that Wedge did everything he could to ensure the stories were accurate, including twice trying to get comment from the judge himself. The attorney, Bruce Sanford, said Wedge had several sources who attributed the comment to Murphy."

The video of the oral argument will be posted here.

Worcester Magazine on open meetings

In the cover story in the current issue of Worcester Magazine, Behind Closed Doors: How Politicians Work Around the Public's Right to Know, writer Scott Zoback does a great job of laying out politicians' increasing disregard of the state's open meeting law. He writes:

"While the days of making political decisions with a suitcase of cash and a pack of Cubans in the back of a bar may be behind us, the truth is that a large number of the decisions, negotiations and conversations that move forward political agendas in Central Massachusetts are done in private, behind closed doors."

I was among those interviewed for the article and Zoback talks about the open meeting reform bill filed by the Massachusetts Newspaper Publishers Association, of which I am executive director.

SJC hears arguments in access case

The Massachusetts Supreme Judicial Court heard arguments Monday in Eagle-Tribune Publishing Company v. Abascal, a case involving media access to clerk-magistrate hearings in the state District Court. Streaming video of the oral argument is available at this link. (I filed an amicus brief in this case on behalf of the Mass. Newspaper Publishers Association.)

A new name for our legal-affairs podcast

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

Mass. bill would shield reporters' sources

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

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

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

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

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

SECTION 1. SHORT TITLE.

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

SEC. 2. DEFINITIONS.

In this Act:

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

SEC. 3. COMPELLED DISCLOSURE PROHIBITED.

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

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

(1) A state entity may not compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under state law unless ... (a) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to public security from acts of terrorism; (b) compelled disclosure of the identity of such a source would prevent such harm; and (c) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.

SEC. 5. COMPELLED DISCLOSURE PERMITTED.

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

SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.

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

Mass. publishers file open meeting reform bill

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

The text of the bill as filed provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

Meeting closed to discuss open meetings

This is priceless: As the Worcester Telegram reports, when selectmen in Lunenburg, Mass., met to discuss a complaint alleging that several of them had violated the state Open Meeting Law, they did so in closed session. After meeting in executive session for 1.5 hours, they announced they had "come to no conclusion."

In fairness, the Open Meeting Law does permit closed meetings to discuss litigation strategy, but only when an open meeting would have a detrimental effect on the board's litigating position. A lawsuit is pending in this matter, filed by one Lunenburg selectman against three others. But boards tend to use the litigation exception broadly to close their doors whenever lawyers are involved. Given that the complainant here could have attended the meeting (but chose not to), and given that the reason for maintaining secrecy about one's litigation strategy is to keep it from your opponent, what possible justification did the selectmen have for closing this meeting? The only answer, of course, is to keep it out of the eyes of the public.

N.H. court eases access to police records

The New Hampshire Supreme Court has issued a ruling that eases access to police investigatory records under the state's Right-to-Know Law. In the Dec. 20 opinion, Murray v. New Hampshire Division of State Police, Special Investigation Unit, the court held that the state police force had failed to meet its burden of showing that release of the requested records would interfere with an ongoing investigation.

The records request came from a Massachusetts man, Frederick J. Murray, whose daughter disappeared three years ago after her car was involved in a one-car accident in New Hampshire. Murray requested numerous records pertaining to the state's investigation of her disappearance, all of which were denied, save for a single, minor exception.

The Supreme Court said that the Right-to-Know Law should be interpreted "with a view to providing the utmost information." The law does not explicitly address police investigative files, so the court said that access should be decided using the six-prong test applied under the federal Freedom of Information Act. The trial court relied on the first prong of this test -- that production of the records "could reasonably be expected to interfere with enforcement proceedings" -- but the Supreme Court found that the state had failed to show this. It therefore remanded the case to the trial court with instructions that the state present more specific information on how disclosure of each record would meet this test.

Foster's Online has this report on the decision.

Newspapers adopt Creative Commons licenses

The Town Online group of Massachusetts newspapers, purchased earlier this year by GateHouse Media, recently rolled out redesigned, more blog-like Web pages, and with them, Creative Commons licenses allowing sharing of content for non-commercial uses.

In an article posted at PressThink, Lisa Williams, editor of H20town.info, writes that this is the first newspaper chain or major newspaper to release content under Creative Commons, a more flexible alternative to traditional copyright. She quotes media critic and blogger Dan Kennedy:

"For newspapers to give up copyright is a remarkable step," says Dan Kennedy, who teaches journalism at Northeastern University and is a longtime watcher of the Boston media scene. "We all understand that it's okay to link to them, but this seems to say that it’s also okay to copy and paste entire articles. Is that what they want?"

Williams seems to think so. She writes:

"Sharing content, letting non-professionals submit content, and connecting with a global network of open-source tinkerers reveal a picture of a firm that’s open to the wide world of the web. That doesn’t sound like your average media company."

Our interview with JAG officer in Iraq

We have a particularly special edition this week of our legal-affairs podcast, Coast to Coast: We interview JAG Major John A. Engels, who speaks to us from his station in Iraq. Major Engels is serving in Iraq as command judge advocate of the 1st Brigade Combat Team, 34th Infantry Division. He supervises an office of five attorneys, 12 paralegals and an interpreter. He is also partner in the Minnesota law firm Petersen & Engels. Engels discusses his work as a lawyer in Iraq and the impact of his tour of duty on his practice back home.

• Download the MP3 file.
• Stream in Windows Media Player.
• Subscribe to the show's feed.

Lawyers' magazine features 'Coast to Coast'

In the December ABA Journal article, Top Ten in Tech, writer Jason Krause surveys "the trends, programs and gadgets that add punch to your practice." As an example of Web 2.0's impact on law practice, he features Coast to Coast, the legal-affairs podcast I co-host with California lawyer J. Craig Williams. Krause writes:

Robert Ambrogi from Rockport, Mass., and J. Craig Williams from Newport Beach, Calif., have become nationally known legal experts through their Web logs and Coast to Coast, a free podcast (an audio program the attorneys post on the Internet).

Krause's complete article is here.

Shield bill filed in Texas

A bill filed today in Texas would protect reporters against being forced to reveal confidential sources. The bill, HB 382, was filed by Rep. Aaron Pena of Edinburg. The text of the so-called Free Flow of Information Act is not yet available on the Texas legislature's Web site, but Associated Press reports that it would allow judges to require reporters to reveal privileged information only in certain circumstances. The Texas House Judiciary Committee has scheduled a hearing on the bill for tomorrow, AP says.

More on Patrick and shield law

As I noted here yesterday, Massachusetts Gov.-elect Deval Patrick, in a speech to the Massachusetts Newspaper Publishers Association (of which I serve as executive director), expressed his support for a shield law in the state. Today, the Boston Herald has an editorial on the news, Let the Honeymoon Begin:

Trying his best not to make real news, Gov.-elect Deval Patrick still managed to offer an encouraging word to the state’s newspaper publishers on the future of a shield law for journalists.
"I think a shield law is very important," Patrick told a meeting of the Massachusetts Newspaper Publishers’ Association. "I’m very concerned about the jailing of reporters ."

[Read more.]

Gov-elect Patrick supports shield bill

Massachusetts Gov.-elect Deval Patrick, speaking today at the annual luncheon of the Massachusetts Newspaper Publishers Association, expressed support for a law to protect reporters from disclosing their sources. But he said such a law would impose a concomitant responsibility on news organizations not to abuse the privilege. A bill to create a Massachusetts shield law is pending in the state legislature, but is unlikely to see action before the current session ends this month.

Patrick also expressed support for openness in government, while emphasizing his belief that some government business needs to take place behind closed doors.

Calif. Court Issues Broad Libel Protection

The California Supreme Court today issue a decision affirming sweeping protection against online defamation under the Communications Decency Act of 1996. In today's decision, Barrett v. Rosenthal, the court said that the common law distinction between "publishers" and "distributors" makes no difference under the CDA -- both have broad immunity against liability for defamatory materials published online. The court further held that the CDA protects providers and users of online computer services equally, without regard to whether the user is "active" or "passive."

"We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement."

The ruling overturns a decision of the California Court of Appeal, which held that the CDA did not protect a "distributor" who republished an allegedly defamatory statement with notice of its defamatory character.

The case pitted the operator of a Web site devoted to exposing health frauds, Dr. Stephen J. Barrett, against the operator of an Internet discussion group, Ilena Rosenthal. Rosenthal received a copy of an article that made various allegations concerning Barrett's character and competence. When she posted the article to two news groups, Barrett sued. The trial court ruled that her republication of the article was protected under the CDA, but the Court of Appeal reversed -- a move the Supreme Court characterized as "swimming against the jurisprudential tide."

The case had drawn friend-of-the-court briefs from the Electronic Frontier Foundation, the American Civil Liberties Union and a who's who of technology and media companies.

1st Amendment protects boxing, but not smoking

Could the protection lines of the First Amendment be any blurrier? Consider these two examples:

• In Albuquerque, N.M., a federal judge has ruled that five police officers and one firefighter have a First Amendment right to fight in a charity boxing tournament that will include excessive drinking and "scantily clad ring girls," Associated Press reports via the First Amendment Center. Although the fight may offend some city officials, the judge said, "the fundamental right of all citizens to form their own sensibilities is really the essence of the First Amendment."

• In Denver, Colo., a judge held that actors have no First Amendment right to smoke on stage despite a statewide smoking ban, the Daily Camera reports. "[P]laintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct," the judge said. The theater's artistic director maintained that smoking was "fundamental to the audience's understanding."

Clear now? You have a constitutional right to box and cavort on stage, just don't light up afterwards.

Judge orders town to open lawyer search

Finding that the town of Westborough, Mass., violated the open meeting law when it brought forth only one candidate from a field of 24 to be the new town attorney, a judge ordered the town to consider three finalists in an open meeting.

Reporter Sarah Menesale writes in the MetroWest Daily News that Worcester Superior Court Judge Jeffrey A. Locke ruled that selectman must consider the three finalist candidates in an open meeting and make public the minutes of a Sept. 7 meeting at which the candidates were discussed.

The open meeting law exempts meetings for preliminary screening of job applicants. In winnowing the pool from 24 candidates to one finalist, Judge Locke found, the town went to far. "Preliminary implies there will be a final selection process among those who have survived the earlier review," he concluded, according to Menesale's report.

Worcester District Attorney John Conte filed the lawsuit Sept. 29 after receiving a complaint filed by MetroWest Daily News Editor Richard Lodge.

Web site, blog, cover legal-affairs reporting

A program designed to prepare future journalists to cover legal affairs has launched a Web site and companion blog. The Carnegie Legal Reporting Program @ Newhouse is a program launched this year with a grant from the Carnegie Journalism Initiative. The program is based at Syracuse University's S.I. Newhouse School of Public Communications.

Companion to the new Web site is a blog, LawBeat, written by Mark Obbie, director of the program and former executive editor of The American Lawyer. The blog, Obbie says, "watches the journalists who watch the law. It is meant to start a conversation — here and in the classroom — about the quality of journalism focusing on the justice system, lawyers and the law."