The free press and freedom of information blog of the Reporters Committee for Freedom of the Press
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The Reporters Committee has provided free assistance to any and all journalists (there is no membership requirement) with legal questions since 1970.
This blog is intended to keep journalists up to date on legal developments in the media law field, and to supplement our regular news stories and quarterly magazine.
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MAY 9, 2008 |
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Appeals court questions Locy contempt finding · Reporter's privilege · Feature · Anthrax investigation · Hatfill A three-judge panel of the U.S. Court of Appeals in Washington D.C. questioned whether it ought to uphold the potentially crippling fines assessed against former USA Today reporter Toni Locy for her refusal to identify the confidential sources she used while reporting on terrorism issues. Locy became embroiled in the dispute when former Army scientist Steven Hatfill subpoenaed Locy in his Privacy Act lawsuit against the federal government. Hatfill contends that the government violated the act by identifying him as a “person of interest” in their investigation into the 2001 anthrax attacks that killed five people and left 17 others injured. Hatfill has already identified three sources – including two of Locy’s – during the discovery period of his civil suit. Nevertheless, he has maintained his dogged pursuit of the additional sources Locy relied on in her stories covering the investigation. Locy has testified in depositions that she does not remember who provided her with the information specifically on Hatfill. Rather, she can only recall a universe of approximately a dozen sources she used while reporting on bioterrorism issues. In February, U.S. District Court Judge Reggie Walton found Locy in contempt of court for refusing to identify all of those sources, even though some, or even all, of them may not have provided Locy information about Hatfill. Locy faces fines of up to $5,000 a day if the court of appeals upholds the contempt finding. At the hearing on Friday, Judge Douglas H. Ginsburg questioned whether Hatfill could meet the minimum requirements demanded by the circuit’s First Amendment test which allows for subpoenas only when the information sought is crucial and goes to the heart of the claim, largely based on his own statements that they are already prepared for trial. “You’ve said that you’ve got enough to go to trial. You think you can win,” Ginsburg said to Chris Wright, Hatfill’s attorney. “So why is more evidence critical to the case? That seems to be a contradiction.” Judge Brett M. Kavanaugh questioned both attorneys as to whether there ought to be even stronger protections for journalists than the qualified privilege already recognized in the circuit. Instead, Kavanaugh suggested that the time may be ripe for an absolute common law privilege for journalists, similar to the one afforded to psychotherapists by the Supreme Court. Kavanaugh contended that leaving the existence of the privilege up to the “vagaries of a balancing test” applied by a “random district court judge” would do little to encourage and protect the communications between sources and journalists. He added that there has been a material change from the time the Supreme Court rejected an absolute common law privilege in the early 1970s: 49 states have established either legislative or judicial rules protecting reporters from subpoenas. Given that the court looks to the states for guidance when establishing common law evidentiary privileges, that change could indicate that the current landscape demands an absolute privilege. Responding to questioning from the third judge on the panel, Judith W. Rogers, Locy’s attorney Robert Bernius said that Walton’s proposed solution of issuing a protective order would raise serious logistical and policy questions. Bernius was most troubled that at least some of Locy’s sources continue to work at the Department of Justice, a named party in the underlying suit. Bernius noted that, if identified, those sources would need to seek outside legal representation for their subsequent deposition and could arise suspicions if they needed to ask for time off to testify. He added that representatives from the Department of Justice – the exact people that the sources would need protection from – would be present at the deposition. In sum, Bernius said, a protective order would contradict the stated goals of the privilege. “This privilege was adopted to protect the flow of information to the public and to encourage sources to come forward,” Bernius told the panel. Leaving the courthouse, Locy said that she was “encouraged” by the morning’s hearing. “I just wanted to get my day in court,” Locy, now a journalism professor at West Virginia University, said, adding that she thought the judges asked good questions during the oral argument. — Posted by Matthew Pollack, 4:12 pm [link] · No reader comments · Comment on this item |
MAY 8, 2008 |
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Court of appeals to hear Locy arguments tomorrow · Reporter's privilege · Feature · Anthrax investigation · Contempt On Friday, the U.S. Court of Appeals in Washington, D.C., will hear Toni Locy’s appeal of a contempt finding that could impose crippling fines on the former USA Today reporter. Former Army scientist Steven Hatfill first subpoenaed Locy as a witness in his Privacy Act suit against the government for naming him as a “person of interest” in its investigation into the 2001 anthrax mailings that killed five people and left 17 others injured. U.S. District Judge Reggie Walton informed Hatfill that he could not succeed on his claim without pinpointing specific sources within the government who released such information. Hatfill subsequently subpoenaed five reporters to ascertain the identities of the anonymous sources that named him in news stories about the investigation. His efforts turned up three sources – including two of Locy’s – who voluntarily released the reporters from their promises of confidentiality. Locy cannot recall which other confidential sources, if any, provided additional information that specifically referred to Hatfill. Despite having three sources already come forward and claiming that they are already prepared to go to trial, Hatfill’s attorneys continued to doggedly pursue any additional sources Locy may have used in her reporting. In February, they succeeded in convincing Walton to find Locy in contempt for refusing to identify all of the confidential sources she used while reporting about terrorism-related stories, including those who did not mention Hatfill at all. Walton ordered Locy to pay escalating fines of up to $5,000 a day for her refusal to identify her sources. The contempt order also prohibited Locy from receiving assistance in paying those fines from any outside source, including her former employer. In March, the appeals court granted an emergency stay of the contempt order pending her appeal. In her appeal, Locy argues that the contempt order was overbroad in that it required the disclosure of confidential sources who were unrelated to Hatfill and that Hatfill’s attorneys have already conceded that her sources were not crucial to his case. Her attorneys further argue that a common law reporter’s privilege should have served as a basis to quash the subpoena Locy faced in the first place. Hatfill’s attorneys contend that Walton properly exercised his discretion in issuing the contempt finding to compel Locy to testify and that the reporter’s privilege recognized in federal courts should not prevent Locy from identifying her sources. The Reporters Committee joined 18 news organizations and 14 professional and trade organizations in submitting a friend-of-the-court brief in support of Locy. Specifically, the brief argues that the information that Hatfill seeks is not of the type that the Privacy Act protects and that Hatfill is simply hoping to add to already collected proof of the allegedly offending disclosures to pad his damages claim against the government. The brief further contends that the public’s interest in protecting a reporter’s sources and maintaining the free flow of information far outweighs any private benefit that Hatfill might enjoy by identifying Locy's full slate of terrorism-related sources. The court will hear arguments starting at 9:30 a.m. — Posted by Matthew Pollack, 3:55 pm [link] · No reader comments · Comment on this item |
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Navy releases McCain's military records · Freedom of information · Quicklink Following a Freedom of Information Act request by the Associated Press, the Navy on Wednesday released GOP presidential hopeful John McCain's military records. For his part, the Arizona senator has yet to release his medical records. During his previous run for the White House in 2000, he voluntarily released his full medical history — nearly 1,500 pages of documents. This time around, he has continued to delay disclosing his recent medical reports. The records were originally scheduled for release in April. The campaign now says it plans to make public the documents at the end of May.
— Posted by Jennifer Koons, 10:26 am [link] · No reader comments · Comment on this item |
MAY 7, 2008 |
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Defender of whistle-blowers accused of retaliation · Freedom of information · Quicklink It's always a bad sign when the U.S. Special Counsel, whose job it is to protect whistleblowers, is under investigation for destroying evidence related to charges he retaliated against his own employees. The Associated Press reported that at least 20 federal agents were involved in the search of the offices of U.S. Special Counsel Scott Bloch, and others searched his home. In 2005, a group of current and former employees filed a complaint accusing him of retaliation against those who opposed his policies. The charges are under investigation by the Office of Personnel Management. — Posted by Gregg Leslie, 5:36 pm [link] · No reader comments · Comment on this item |
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ACLU launches pre-emptive strike in Denver · Newsgathering · Reaction If history is any precedent, there will be many restrictions placed on protesters and the journalists who try to cover them during the Democratic National Convention in Denver at the end of the summer. In recent years, the trend has been to try to limit protesting to penned-in areas, preferably (by police standards) a few blocks away from anything relevant. To head off such efforts, the Colorado office of the ACLU has sued the city and county to get them to release their plans for protesters now, rather than just before the convention when it's too late to do anything about it. Such plans will be meaningful for journalists too. Every four years, someone gets arrested while trying to cover the story. The Reporters Committee provides special convention hotlines for journalists who get swept up in mass arrests, or are otherwise interfered with while covering the news. How the police plan to handle protesters will say a lot about how they interact with journalists as well.
— Posted by Gregg Leslie, 5:11 pm [link] · No reader comments · Comment on this item |
MAY 6, 2008 |
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Wikipedia case may test Section 230 again · Internet regulation · Reaction Section 230 of the Communications Decency Act, which provides protection from liability for Internet service providers for content posted by third parties, is more necessary than ever these days. It took a beating in a suit brought against Roommates.com recently, but then again, the content on that site was generated by third parties who were answering questions and filling in a template provided by the housing site itself. It also didn't stop a bank from dragging a domain name registrar into court and making them block access to the wikileaks.org Web site under threat of liability for the postings on that leaks site, but then again, the registrar didn't seem to be aware that section 230 should have applied. But now comes another case that could test the limits of the safe harbor. A literary agent has sued Wikipedia over an entry that she says labeled her agency "the dumbest of the 20 worst" literary agencies and suggested she was collecting fees from writers without being able to show any literary sales. (Wikipedia says that claim was made about the agencies on the list, and its entry only pointed out that another organization had put her agency on such a list.) Wikipedia is relying on 230 to avoid liability, and the case could be interesting. The online encyclopedia should prevail, but the Roommates.com case has shown that judges are loathe to extend the protections of 230 too far, mainly because the protection is so complete. Wikipedia may prove to be another entity that annoys judges, if only because the third-party contributions are more in the form of edits and changes to contents, where the original and subsequent authors are unknown (except by conducting a near-forensic analysis of the editing logs). But however this turns out, the outcome here and in the Roommates.com case do not spell doom for Section 230 protection for true news sites that allow readers to post comments. Such free-form commenting is exactly what the law was designed to protect, and the more difficult cases along the margins should not affect that. — Posted by Gregg Leslie, 5:16 pm [link] · View reader comments (2) · Comment on this item |
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Mo. governor's office is overcharging for e-mails, lawsuit claims · Freedom of information · Quicklink A special investigative team set up by Missouri Attorney General Jay Nixon is suing to force Gov. Matt Blunt and the state's custodian of records to release state government e-mails for free after the governor's office attempted to charge $540,940 for them, according to a St. Louis Post-Dispatch report. The lawsuit also claims that Gov. Blunt's then-chief of staff and other high-ranking state officials ordered that backup tapes of the e-mails be illegally destroyed, but that two supervisors defied that order and maintained the tapes. By now attempting to charge for the release of the e-mails, the governor's office claims the dollar figure attached reflects the 14,620 hours of staff time needed to accommodate the document request. — Posted by Scott Albright, 5:11 pm [link] · No reader comments · Comment on this item |
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Ill. high court denies request to unseal R. Kelly documents · Secret courts · Quicklink The Illinois Supreme Court on Monday denied without comment a motion to unseal documents in the child pornography case against R&B singer R. Kelly. The Chicago Sun-Times, the Chicago Tribune and the Associated Press filed an emergency motion in Cook County court last week, arguing a First Amendment right to the pretrial records and proceedings, but Judge Vincent Gaughan said this was not an emergency and instead scheduled a hearing on the matter for May 8. — Posted by Jennifer Koons, 2:39 pm [link] · No reader comments · Comment on this item |
MAY 5, 2008 |
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Judge sues columnist over allegation of conflict · Libel · Reaction · Judges · Lawsuits Libel suits brought by judges are always a serious concern for journalists because of the deferential treatment judges are often given in the legal system, as two recent cases have taught us. A recent libel case filed by a New York state judge makes the point just as directly -- the judge is suing because a New York Daily News columnist said he should have recused himself from a case being litigated by someone the columnist said was the judge's "personal counsel." Regardless of whether the lawyer's representation was less substantial than that, or whether he should have recused himself in any case, it seems clear that a judge should not resort to litigation over criticism of his public duties. If reporters cannot freely report on the courts without fearing multimillion-dollar lawsuits, the protections of the First Amendment mean very little. — Posted by Gregg Leslie, 5:02 pm [link] · No reader comments · Comment on this item |
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Court: Forest Service can redact employee names · Freedom of information · Reaction · Privacy The U.S. Court of Appeals in San Francisco (9th Cir.) reached an unsettling conclusion last week when it allowed the names of 23 federal employees to be withheld after they were investigated following the death of two U.S. Forest Service firefighters in July 2003. Following the blaze in the Salmon-Challis National Forest in Idaho that killed firefighters Shane Heath and Jeff Allen, the Forest Service was investigated and criticized by both the Occupational Safety and Health Administration and the agency's inspector general. Federal prosecutors filed criminal charges against the firefighting team's leader, Cmdr. Alan Hackett, who was convicted and agreed to have his name released after being sentenced to probation. When the watchdog group Forest Service Employees for Environmental Ethics attempted to obtain more information about the deaths and the Forest Service's investigation that followed through a Freedom of Information Act request, the agency blacked out the names of 23 of its employees who had been investigated. Ultimately, a three-judge panel on the Ninth Circuit ruled that releasing the names would have caused unjustified embarrassment to the employees and otherwise constituted a "clearly unwarranted invasion" of the employees' privacy. It is puzzling that the Ninth Circuit would think that the public's interest in further scrutinizing both the Forest Service's internal operations as well as the external investigations that ensued after the tragedy would be outweighed by the privacy of federal agency employees who allegedly had some part, however small, in the deaths of two firefighters. The FSEEE rightly argued that releasing the employees' names would help reveal where the Forest Service assigned the unnamed employees, who were not ultimately charged criminally, after the investigation, and to also verify whether the Forest Service's official report was accurate. But in redacting the employees' names, the Ninth Circuit allowed the agency to hide behind FOIA exemption 6 and its overused privacy exemptions. While it is certainly fair to consider the reputations of the agency employees involved in a case like this, the priority within such a review should be on agency performance, accountability and preventing future tragedies. The Ninth Circuit's decision obstructs rather than aids this important process. — Posted by Scott Albright, 12:28 pm [link] · No reader comments · Comment on this item |
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Students charged with criminal defamation · Libel · Analysis · Criminal Libel Two Wisconsin high school students were charged with criminal defamation after assembling and posting a nude photo collage of a female classmate. After the unnamed classmate accused him of throwing a bowling ball through the front door of her home, Tyler Schultz, who previously dated the student, composed the montage using 11 photographs that she had sent to him and other students at the school via cell phone. Michael Meyer-Senty, another of her former boyfriends, later posted five copies of the collage throughout one of the school’s locker rooms. Under Wisconsin law, criminal defamation is a Class A misdemeanor, defining defamatory matter as “anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.” Criminal defamation statutes, which when used are often targeted at the news media, hearken back to a legal legacy that stands in stark contrast to the free speech principles embodied in the First Amendment. As a result, those that remain on the books rarely serve as the basis for criminal charges. Under the U.S. Supreme Court’s decision in Garrison v. Louisiana, a criminal defamation statute must meet the same Constitutional requirements as civil defamation, namely, falsity and fault. Falsity in particular seems like it would be a major stumbling block for the county district attorney to overcome in these circumstances as the collage does not appear to communicate any fact that is provably incorrect. — Posted by Matthew Pollack, 12:23 pm [link] · No reader comments · Comment on this item |
MAY 2, 2008 |
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New York enacts Libel Terrorism Protection Act · Libel · Quicklink · Libel tourism Gov. David Paterson signed the Libel Terrorism Protection Act on Thursday, helping New York set the pace in protecting American journalists from foreign libel verdicts. The bill was first proposed in response to a ruling from New York’s highest court that the state could not exercise jurisdiction over Khalid Salim a Bin Mahfouz, a Saudi Arabian businessman and banker who obtained a default judgment in a defamation suit against American author Rachel Ehrenfeld in a British court. Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. The law combats such international forum shopping on two fronts. It prevents litigants from enforcing foreign libel judgments in the state unless a New York court finds that the jurisdiction issuing the judgment provides the same free speech protections guaranteed under the U.S. and New York state constitutions. Secondly, it grants New York courts jurisdiction over litigants who obtain a foreign defamation judgment against New York state citizens, allowing Ehrenfeld and others like her to petition a state court for a declaratory judgment rendering the foreign decision unenforceable on New York soil. In signing the bill, Paterson recognized that New York has blazed a trail that other states and the federal government must follow. “Although New York State has now done all it can to protect our authors while they live in New York, they remain vulnerable if they move to other states, or if they have assets in other states,” Paterson said in a statement. “We really need Congress and the President to work together and enact federal legislation that will protect authors throughout the country against the threat of foreign libel judgments.” Picking up on the tone set by his state, U.S. Rep. Peter King (R-N.Y.) took the first step towards establishing similar protections on a national scale when he introduced the Freedom of Speech Protection Act (H.R. 5814), in the House of Representatives. — Posted by Matthew Pollack, 2:00 pm [link] · No reader comments · Comment on this item |