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Annual Report to SPJ Board of Directors and Sigma Delta Chi Foundation
Presented Aug. 23, 2006 by Baker & Hostetler LLP at the SPJ Convention in Chicago
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I. Introduction

A year ago, Judith Miller sat in a Virginia jail for refusing to comply with a grand jury subpoena in the Valerie Plame investigation. Now internet journalist Josh Wolf sits in an Oakland prison for refusing to surrender unaired videotape to a grand jury investigating vandalism at a 2005 protest, and San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams are likely headed to jail if they do not divulge their sources of information about the BALCO investigation. From coast to coast, the existence and scope of the reporter’s privilege remains the most visible issue facing journalists in 2006. The past year we made some progress toward — and encountered some obstacles to — passage of a federal shield law that would provide a qualified privilege to journalists seeking to protect confidential sources and information. Pushing legislation through Congress can be a years-long process, and we are committed to keeping this important issue in the sights of our lawmakers.

In addition to the shield law efforts, the Society has been active in opposing the newly introduced “Official Secrets Act,” as well as in calling attention to government agencies’ attempts to broaden the reach of the Freedom of Information Act. Finally, the Society has represented the interests of its constituency in friend-of-the-court briefs on a variety of issues, from the reporter’s privilege to the rights of the student press, and from FOIA to public officials’ discrimination against journalists and media entities. This memorandum addresses all of these activities.

II. Federal Shield Law

Efforts to enact a federal shield law hit some snags in the past few months, and with Congress winding down in anticipation of the November elections, passage of a shield law appears doubtful this year. Of course, important legislation like this often takes years to become law, and enough progress was made during this Congress to ensure that issue will remain very much alive in 2007. Just last week, the House Judiciary Committee staff announced that the Subcommittee on the Court, the Internet and Intellectual Property will hold a hearing on H.R. 3323, the bill sponsored by Reps. Mike Pence (R-IN) and Rick Boucher (D-WV), that is tentatively scheduled for September 6, 2006. We have spoken with Rep. Pence’s legislative assistant for Judiciary Committee matters and indicated our interest in having a representative from the Society testify at the hearing.

As we reported to you in the spring, Senate Judiciary Committee Chairman Arlen Specter (R-PA) released a draft version of an alternative shield law bill in April 2006. Specter's decision to craft his own legislation was sparked primarily by the lack of support among Judiciary Committee members of the bill that was introduced last year by Pence and Sen. Richard Lugar (R-IN). The overwhelming sentiment of Committee members was that the Pence-Lugar bill was too broad and did not provide enough exceptions. This new legislation (S. 2831) was months in the making and involved a good deal of back and forth between Specter's staff and a small committee of the media coalition of which SPJ is a strong, active participant. The current bill is a dramatic improvement over Specter’s initial version, though still less formidable than the Pence-Lugar bill. The primary change is that the new legislation speaks only about a privilege for confidential sources and information, and says nothing about a privilege for non-confidential sources and information. There is no absolute privilege for anything, though we had already resigned ourselves last year that such a provision was not politically feasible.

The new bill provides a qualified privilege for confidential sources and information in both the criminal and civil contexts, and provides varying standards that must be met before the party seeking the information can overcome the privilege. It provides a balancing test that is similar to that in many state shield laws and court decisions interpreting a First Amendment-based and common law-based privilege. Generally speaking, a party seeking confidential sources and information must demonstrate that (1) they have exhausted alternative sources for the information; (2) nondisclosure of the information would be contrary to the public interest after balancing the public interest in compelling disclosure and the public interest in newsgathering; and (3) the information sought is directly relevant or critical to the criminal or civil matter being litigated.

The exceptions are threefold: Section 7 provides that there would no privilege for a journalist’s eyewitness observations of criminal or tortious activity, but this exception would not apply where the alleged criminal or tortious conduct is the act of communicating the documents or information at issue; in other words, if you witness a shooting while standing on the street, you may have to testify, but if someone illegally leaks you information, you still have a qualified privilege not to testify. Section 8 provides for an exception where compelling disclosure would be necessary to prevent death or substantial bodily harm; we see no problem with this. Section 9 provides for an exception on grounds of national security. We need to ensure that the legislative history makes it clear that the government bears a high burden in establishing a substantial and imminent threat to national security before this exception would apply.

While some members of the media coalition raised concerns about Specter’s bill, the general consensus was that the new legislation was agreeable. In our view, this is “three-quarters of a loaf.” It is not everything we wanted, but it would provide more protection than what many courts have been willing to do, especially recently. In fact, we consider the draft Specter legislation a victory, as we had feared that any tinkering with the earlier shield law legislation would lead to language that was so watered down as to potentially cause more harm than good.

As anticipated, Specter’s legislation drew opposition from the U.S. Department of Justice, which similarly had objected to the original legislation introduced by Sen. Christopher Dodd (D-CT). As DOJ said in a nine-page letter to Sen. Specter in June, “The Department opposes this legislation because it would subordinate the constitutional and law enforcement responsibilities of the Executive branch — as well as the constitutional rights of criminal defendants — to a privilege favoring selected segments of the media that is not constitutionally required.” Justice Department officials have also said that the legislation is unnecessary because it already must follow its own internal guidelines regarding the issuance of subpoenas to members of the media, and that DOJ rarely pursues subpoenas against reporters (of course, this last argument ignores the fact that many subpoenas are issued in federal civil cases of which DOJ is not a party — the Wen Ho Lee and Steven Hatfill Privacy Act cases are just two examples).

In addition to DOJ, the U.S. Chamber of Commerce and other business interests have expressed their own concerns about the legislation in recent months. Chief among these concerns is that a company’s trade secrets and intellectual property could be leaked to the media by a disgruntled employee whose identity would be very difficult if not impossible to unmask. Our media coalition has responded to these concerns by highlighting the balancing tests set forth in the legislation and noting that there is no absolute privilege for refusing to identify a confidential source.

The Senate Judiciary Committee was poised to take up the shield law legislation in late June, but did not because a quorum was not present. The most recent straw poll indicated that approximately eight senators on the committee were leaning in favor of the legislation, two were leaning against it, and eight were undecided. While it appears that there are enough votes to move the bill out of committee, Sen. Specter has said he wants a wider margin of support with at least 12-14 senators. It may be that the legislation will be tweaked anew to garner this additional support. The eight “undecided” senators, as of the most recent straw poll on June 22, 2006, are Orrin Hatch (R-UT), John Cornyn (R-TX), Sam Brownback (R-KS), Tom Coburn (R-OK), Joseph Biden (D-DE), Herb Kohl (D-WI), Dianne Feinstein (D-CA), and Richard Durbin (D-IL).

Other events also have slowed the progress of the shield law legislation. Among the most prominent was the reaction to the publication in June by The New York Times and other newspapers of details of the Bush Administration’s secret program to track terrorist financing. These revelations prompted the Republican-controlled House of Representatives to pass a “Sense of the Congress” resolution on June 29 condemning the media organizations for potentially having “placed the lives of Americans in danger” by revealing details of the classified information. The resolution went on to say that Congress “expects the cooperation of all news media organizations” in keeping classified programs secret. President Bush, of course, has lashed out against the media for revealing classified information. As he said at one recent fundraiser, “There can be no excuse for anyone entrusted with vital intelligence to leak it, and no excuse for any newspaper to print it.”

In other words, these are not particularly friendly times for the media on Capitol Hill. The press itself is not united; as the Wall Street Journal said in an editorial on August 17, 2006:

We realize that few of our readers have much sympathy for the press these days, and with ample cause. As we recently wrote after the Swift terror financing disclosure by the New York Times, we think the press sometimes has an obligation not to publish everything it knows. By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps.

Another impediment to support for the shield law legislation came earlier this month when the equivalent of an Official Secrets Act — a bill that would criminalize the unauthorized disclosure of classified information — was filed by Sen. Kit Bond (R-MO). It is identical in wording to the legislation approved by Congress in 2000 and then pocket-vetoed by President Clinton after a strong lobbying effort by the media and others. A further description of this legislation is provided below.

A key task ahead is for us to demonstrate the chilling effect that subpoenas have on getting important information to the public. With Judith Miller now out of jail, there is no “poster child” that shield law supporters can point to to help demonstrate how imperative this legislation is. As with much other legislation, Congress often acts only if there is a crisis. Reporters and editors and their Washington representatives must explain the severity of the situation in order to win over new supporters. The Society’s leadership should consider a forceful lobbying trip to Washington within the next six months to press the case for a shield law with key legislators from “home states.” This strategy and leadership from the Society has been effective in the past and can be again.

III. Official Secrets Act

As noted above, on August 2, 2006 Sen. Kit Bond (R-MO) introduced S. 3774, legislation that is intended to “prohibit the unauthorized disclosure of classified information.” This legislation is akin to England’s “Official Secrets Act,” and is identical to legislation that was passed by Congress in 2000 but vetoed by President Clinton.

Bond’s legislation has 11 co-sponsors, all Republican: Trent Lott (MS), Saxby Chambliss (GA), Ted Stevens (AK), Orrin Hatch (UT), Rick Santorum (PA), John Cornyn (TX), Pete Domenici (NM), Robert Bennett (UT), and Lamar Alexander (TN). Particularly disappointing among this group is Sen. Cornyn, who otherwise has been a supporter of greater open government. This legislation would shut down any semblance of a free flow of information in Washington. It is certain to create an icy chill, if not a freeze, among sources and potential sources other than those engaged in official, sanctioned leaking. It will further tilt the playing field in favor of executive branch control of information. It is also likely to bring whistleblowing to a screeching halt. The National Security Whistleblowers Coalition has already come out strongly against it. While the bill does not directly criminalize the receipt of classified information — indeed Sen. Bond made a point of proclaiming the bill does not directly affect the media, businesses, or private citizens — it is evident from recent events that federal prosecutors would move quickly with subpoenas for reporters and their phone records in any prosecution of a government employee under the bill. And even if we had a federal shield law — at least the one under consideration — it would not protect a reporter in a national security/classified information case. Moreover, the bill is overly broad in its definition of classified information — “information or material properly classified and clearly marked or represented, or that the person knows or has reason to believe has been properly classified.” In the past year, we have attempted to raise awareness of the problems that can result from broad legislation to address unauthorized disclosures of classified information. In April 2006, the Society joined eight other journalism organizations in submitting letters to Senators Pat Roberts (R-KS) and John D. Rockefeller IV (D-WV) and Representatives Peter Hoekstra (R-MI) and Jane Harman (D-CA) — the chairmen and ranking members of the Senate and House Select Committee on Intelligence, respectively — that set out our views on the issue. Now that this legislation has been resurrected, we will be active in highlighting its perils just as we did six years ago.

IV. Other Legislative and Access Activities

The Freedom of Information Act’s 40th birthday this summer unfortunately didn’t bring much progress on the open government front. Efforts to reform FOIA through legislation have stagnated thanks to a crowded calendar and the upcoming mid-term elections. In addition, a December 2005 Executive Order by President Bush that called for agencies to submit plans this summer for improving FOIA compliance has led lawmakers to take a wait-and-see-what-the-order-brings attitude toward the proposed legislation. Nevertheless, the Society continues to work on its own and with allies in the Coalition of Journalists for Open Government (CJOG) and the Sunshine in Government Initiative (SGI) to effect improvements in FOIA and generally to protect public access to government information. Below are some highlights of the Society’s efforts in the past 12 months.

• In September 2005, in response to comments submitted by the Society and others concerning the Department of Homeland Security’s Critical Infrastructure Information (CII) regulations in 2004, the Government Accounting Office contacted the coalition to discuss the issues we raised and seek our input for a report on the agency’s implementation of the CII regulations. The GAO’s report, issued in April 2006, can be found at http://www.gao.gov/new.items/d06383.pdf.

• In November 2005, the Society joined with the National Press Photographers Association, the Reporters Committee for Freedom of the Press, and the Radio-Television News Directors Association to submit a letter opposing a proposed ban of photography on New Jersey public transportation and property of the New Jersey Transit Corporation. In response to “an unusual number of public comments” and complaints, the New Jersey Transit Corporation withdrew the proposed rule in January 2006.

• CJOG and SGI, working closely with other open government advocates, mounted strong opposition to a proposed law that would entirely exempt from FOIA a new agency entitled the Biomedical Advanced Research and Development Agency (BARDA). The exemption was included in S. 1873, the Biodefense and Pandemic Vaccine and Drug Development Act of 2005, which was introduced in October 2005. As a result of the coalitions’ hard work as well as extensive media coverage, the Senate Subcommittee on Bioterrorism redrafted the bill in January with somewhat improved language. The coalitions will continue to urge the drafters to replace the FOIA exemption with a classification procedure for any bioterrorism information that is considered truly sensitive and whose release would pose a danger.

• In November 2005, CJOG sent comments to the Department of Defense, NASA, and the General Services Administration concerning their incredibly overbroad proposed definition of sensitive but unclassified information. A GAO report issued in April 2006 notes that federal agencies report using 56 different sensitive but unclassified designations.

• In December 2005, the Society joined a letter to President Bush urging him to require that copies of every contract, requisition, task/delivery order, agreement or other authorization for spending on Hurricane Katrina relief and reconstruction be posted on the Internet. The letter discussed the many benefits of public disclosure of the spending documents.

• The Society in January 2006 joined a statement in support of the Society of Environmental Journalists’ petition to the Environmental Protection Agency to abandon its proposal to cut back on how much data the agency collects and publishes on toxic emissions. In May, the Society signed on to a letter to House Members urging them to vote on an amendment to the appropriations bill that would block the Toxic Release Inventory “burden reduction.” The amendment was approved, 231-187.

• The Society and several journalism organizations in May 2005 sent a letter to the Senate Environment and Public Works Committee expressing concern that provisions of S. 2781, the Wastewater Treatment Works Security Act of 2006, would create a new B(3) exemption to FOIA.

• In May 2006, the Society co-signed a letter to Arkansas Governor Mike Huckabee expressing dismay at his recent actions in selectively excluding certain media from those who are sent timely notice of his press conferences and public appearances.

• On July 4, 2006, the 40th anniversary of FOIA, OpentheGovernment.org, in collaboration with CJOG, SGI, and others, issued a report examining the plans submitted by federal agencies in response to President Bush’s December 2005 Executive Order, No. 13392. The report notes how many of the suggested improvement areas were either not addressed or poorly addressed by many agencies.

• On July 26, 2006, Tonda Rush, director of public policy for the National Newspaper Association, testified on behalf of SGI at a hearing to discuss ways to improve the federal government’s implementation of FOIA and Executive Order 13392. The hearing, conducted by the Subcommittee on Government Management, Finance, and Accountability, was not tied to any current legislation. Ms. Rush, the only media representative to testify, expressed SGI’s support for the OPEN Government Act, H.R. 867 and S. 394.

V. Amicus Activities

A) Decisions within the past 12 months

Wen Ho Lee v. Department of Justice, reh’g en banc denied, 428 F.3d 299 (D.C. Cir. Nov. 2, 2005), case dismissed, 2006 U.S. App. LEXIS 15208 (D.C. Cir. June 16, 2006), cert. denied sub nom. Thomas v. Wen Ho Lee, 126 S. Ct. 2373 (U.S. June 5, 2006), and Drogin v. Wen Ho Lee, 126 S. Ct. 2351 (U.S. June 5, 2006)

The Supreme Court left intact a troubling reporter’s privilege decision when it declined to review the contempt citations of several reporters who refused to disclose their confidential sources in a civil lawsuit brought by a former nuclear scientist at Los Alamos National Laboratory. In August 2004, Judge Thomas Penfield Jackson of the United States District Court for the District of Columbia found five reporters — James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, Pierre Thomas, formerly of CNN and now with ABC News, and H. Josef Hebert of the Associated Press — in contempt and ordered them to pay fines of $500 per day, but the fines were stayed pending appeal. In June 2005, a panel of the United States Court of Appeals of the District of Columbia Circuit upheld the citations against four of the reporters and vacated the citation against Gerth because he had testified under oath that he had no confidential sources. In November 2005, a divided panel of the D.C. Circuit rejected the reporters’ petition for rehearing by the full court, and the reporters subsequently filed for review by the Supreme Court. Before the high court had decided whether to take the case, Lee settled with the government in June 2006, and in a highly unusual twist, the news media parties involved — ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post — contributed $750,000 to the settlement, which ended the contempt citations. Though the case was over, four days later the Supreme Court denied certiorari rather than simply dismissing the appeals — a decision apparently intended to show that the Court approved of the D.C. Circuit’s analysis of the reporter’s privilege in the case. The Society joined amicus briefs in support of the petition for rehearing and the petition for certiorari.

Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, et al., 433 F.3d 1199 (9th Cir. January 12, 2006), cert. denied, 126 S. Ct. 2332 (U.S. May 30, 2006)

Yahoo!’s battle against enforcement in the United States of a fine rendered by a French tribunal for a violation of a French anti-hate law has finally ended — at least for now. Six of eleven judges on a full-court panel of the United States Court of Appeals for the Ninth Circuit held that Yahoo!’s suit should be dismissed, though the judges were divided as to the reason for the dismissal. Yahoo! had been fined in 2000 under the French anti-hate law because it allowed certain pieces of Nazi propaganda to be purchased on its website by French internet users. Yahoo! then sought a declaratory judgment in the United States District Court for the Northern District of California that domestic enforcement of the French order would be unconstitutional. The District Court ruled in favor of Yahoo!, finding that a chill of First Amendment rights would result if parties could obtain judgments against U.S. publishers in foreign countries — under more restrictive foreign laws — and then collect on those judgments in the United States. See 169 F. Supp. 2d 1181 (N.D. Cal. 2001). In August 2004, a three-judge panel of the Ninth Circuit reversed that decision, holding that the District Court should have abstained from hearing the case because the court lacked jurisdiction over the French parties who brought suit against Yahoo! in France. However, the Ninth Circuit noted that jurisdiction may be obtained, and the First Amendment claim heard, when the French parties ask a United States court to enforce the French judgment. 379 F.3d 1120 (9th Cir. 2004). In February 2005, the Ninth Circuit agreed to a rehearing en banc. 399 F.3d 1010 (9th Cir. 2005). On reconsideration, eight of the eleven judges ruled that the District Court did have jurisdiction over the French parties; however, three of those eight judges held that the case should be dismissed on the grounds that the case was not ripe for decision. Following the en banc decision, the French parties filed a petition for review by the Supreme Court, but the Supreme Court denied it in May 2006, effectively ending the case unless the French parties decide to enforce the judgment against Yahoo!. The Society joined a brief in support of Yahoo! in the rehearing.

New York Times Co. v. Hatfill, cert. denied, 126 S. Ct. 1619 (U.S. March 27, 2006)

The Supreme Court declined to stop a defamation lawsuit against The New York Times by Dr. Steven Hatfill, the scientist labeled as a “person of interest” in the 2001 investigation into who sent anthrax-laced letters that killed five people. Hatfill, a former bioweapons researcher for the United States Army, sued the Times in 2002, asserting that columns by Nicholas Kristof were defamatory because they implicitly accused Hatfill of being the anthrax mailer. Judge Claude Hilton of the United States District Court for the Eastern District of Virginia originally dismissed the case in November 2004, holding that the stories “are not reasonably read as accusing Hatfill of actually being the anthrax mailer.” However, in July 2005, a divided panel of the United States Court of Appeals for the Fourth Circuit reinstated Hatfill’s suit, ruling that dismissal is improper “unless it appears beyond doubt that [Hatfill] can prove no set of facts in support of his claim which would entitle him to relief.” In February 2006, the Society joined dozens of journalism organizations and media companies in submitting an amicus brief in support of the New York Times Company’s petition for certiorari.

Hosty v. Carter, cert. denied, 126 S. Ct. 1330 (U.S. Feb. 21, 2006)

The Supreme Court refused to grant review in Hosty, thus declining to set a standard for free speech on the nation’s college campuses. The case involved the now-defunct student-run newspaper (the Innovator) at Governors State University in Illinois. In response to the Innovator’s investigation into illegal hiring practices and the misappropriation of funds at the university, the Dean instructed the independent publisher of the paper not to print any more issues without prior approval by a university official. The student editors sued the university and several university officials including the Dean, arguing that the Dean’s phone calls to the publisher constituted a prior restraint in violation of the First Amendment. The Dean argued in response that the Supreme Court case of Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which limits the First Amendment rights of public high-school journalists, should apply to college-level publications as well. The United States District Court for the Northern District of Illinois denied the Dean’s summary judgment motion, and the Dean appealed. The Society joined an amicus brief filed in this matter in August 2002 before the United States Court of Appeals for the Seventh Circuit. On April 10, 2003, the Court issued a unanimous opinion upholding the trial court’s action and squarely rejecting the Dean’s Hazelwood argument. See 325 F.3d 945 (7th Cir. 2003). However, the full Seventh Circuit, acting en banc, vacated the panel decision in June 2003, reheard the case in January 2004, and reversed the trial court’s decision this past summer, holding that Hazelwood was the “starting point” for analyzing college censorship cases. See 412 F.3d 731 (7th Cir. June 20, 2005). In October 2005, in support of the student editors’ petition for certiorari, the Society joined an amicus brief focusing on the dangers the extension of Hazelwood would create for student media and the future of journalism.

Edmonds v. United States Department of Justice, 161 Fed. Appx. 6 (D.C. Cir. May 6, 2005), cert. denied, 126 S. Ct. 734 (U.S. Nov. 28, 2005)

The United States Supreme Court rejected a petition to review the United States Court of Appeals for the District of Columbia Circuit’s dismissal of a whistleblower case on national security grounds, and the issue of whether the D.C. Circuit improperly closed oral arguments to the public. The Society had joined ten other media entities and journalism organizations in submitting an amicus brief on the access issue. Amici asked the Supreme Court to hold that closure of oral arguments is permissible only when it protects a compelling government interest. In the underlying case, Sibel Edmonds, a former FBI translator, sued the government when she was fired after alleging misconduct in the FBI linguistics office. Her suit was dismissed when the Justice Department invoked the “state secrets” privilege, asserting that everything about the case implicated national security. The D.C. Circuit unilaterally ordered the closure of oral arguments on Edmonds’ appeal, rejecting with no explanation a request by the American Civil Liberties Union and motions by a media coalition and several public interest groups for access to the proceedings.

Youngstown Publishing Co., et al. v. McKelvey, et al., No. 05-3842, 2006 U.S. App. LEXIS 6586 (6th Cir. June 27, 2006)

The United States Court of Appeals for the Sixth Circuit in an unpublished decision dismissed as moot the Youngstown Business Journal’s appeal in its First Amendment retaliation claim against the city of Youngstown, Ohio, and its former mayor, George McKelvey. The Business Journal had appealed the United States District Court for the Northern District of Ohio’s dismissal of its claim, which was filed after McKelvey, in retaliation for articles criticizing a land purchase and for the newspaper’s victory over him in a public records battle, ordered all local government officials not to comment to the Business Journal on any subject. The Society joined other media organizations on an amicus brief in support of the Business Journal on appeal. The Sixth Circuit panel held that because a new mayor had taken office and revoked McKelvey’s directive, the case was now moot. The court considered and rejected the newspaper’s arguments that the “capable of repetition evading review” and “voluntary cessation” doctrines warranted a ruling on the merits.

Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. Feb. 15, 2006)

A panel of the United States Court of Appeals for the Fourth Circuit upheld a ruling by a judge in the United States District Court for the District of Maryland that Maryland Governor Bob Ehrlich did not violate the First Amendment when he prohibited state employees from speaking to two Sun reporters. The Society joined an amicus brief in support of The Sun and its two reporters on the appeal, and had earlier joined an amicus brief as the parties sought a preliminary injunction against enforcement of Ehrlich’s order on the grounds that the governor’s act constituted illegal retaliation. The District Court in February 2005 dismissed the case, holding that, with regard to information “not available to the public generally,” the government may grant access to some reporters and deny it to others. The Fourth Circuit affirmed, ruling that though Ehrlich’s order may have inconvenienced the Sun reporters, it did not chill their First Amendment rights. Furthermore, the Fourth Circuit held that “[h]aving access to relatively less information than other reporters on account of one's reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would ‘plant the seed of a constitutional case’ in ‘virtually every’ interchange between public official and press.” The Sun and its reporters elected not to appeal the decision to the Supreme Court.

Karedes v. Ackerley Group, Inc., et al., No. 04-2376, (2d Cir. Jan. 18, 2006)

Despite a persuasive amicus brief joined by the Society, the United States Court of Appeals for the Second Circuit rejected the Binghamton (N.Y.) Press’ petition for rehearing by the full court. The plaintiff, manager of a municipal golf course in upstate New York, was fired after a Village audit concluded he directed to the Village some invoices for improvements to the golf course that were billed to and addressed to a private charity group that had agreed to pay for many of the upgrades. The article at issue reported the conclusions of the audit and the newspaper’s own review of the bills. The plaintiff alleged that some of the wording of the article made it look as if auditors had conclusively established that the Village was directed to pay debts owed by — and not merely addressed to — the charity group. The plaintiff asserted that the bills were actually misaddressed, and the auditor concluded only that the bills were addressed to the charity, not that the Village should not have paid them. The United States District Court for the Northern District of New York dismissed the claim against the newspaper, finding that the coverage was true, not defamatory, and protected by the fair report privilege. Karedes v. Endicott, et al., 254 F. Supp. 2d 276 (N.D.N.Y. 2003). However, a Second Circuit reversed the district court’s decision, finding that a reader might conclude that the auditor determined that the bills were actual debts of the charity, that such an impression is arguably false, would be defamatory if false, and would not necessarily be privileged. Karedes v. Ackerley Group, Inc., et al., 423 F.3d 107 (2d Cir. 2005). Amici argued that the Second Circuit did not read the article in context as the law requires, and that even under the plaintiff’s rendition, the “gist” or “sting” of the audit was accurately conveyed by the article. The court permitted the amicus brief over the objection of the plaintiff, who filed a motion to strike it.

American Civil Liberties Union, et al., v. United States Department of Defense, et al. (United States Court of Appeals for the Second Circuit)

After the submission of an amicus brief by the Society and eighteen other media organizations and companies, the United States Department of Defense withdrew its appeal of an order requiring the release of images of alleged prisoner abuse at Abu Ghraib prison. The ACLU and others initially sought the photographs and videos under the Freedom of Information Act in 2004. When the government refused to release the images, the ACLU filed a lawsuit in the United States District Court for the Southern District of New York. In the summer and fall of 2005, Judge Alvin K. Hellerstein twice ordered the Department of Defense to release 87 photographs and four videos, calling the disclosure “the very purposes that FOIA is intended to advance.” 389 F. Supp. 2d 547 (S.D.N.Y. 2005). Amici filed a brief in early March urging the United States Court of Appeals for the Second Circuit to uphold the district court’s ruling.

In re Grand Jury Subpoenas to Mark Fainaru-Wada and Lance Williams, Case No. CR- 06-90225, slip opinion (N.D. Cal. Aug. 15, 2006)

A federal judge in San Francisco ordered two San Francisco Chronicle reporters to comply with a grand jury subpoena and testify about their sources of confidential transcripts and information from an earlier grand jury probe of the Bay Area Laboratory Co-Operative (BALCO). Mark Fainaru-Wada and Lance Williams face jail time if an appeals court does not reverse the ruling. On May 26, 2006, the Society and two dozen other media companies and journalism organizations submitted an amicus brief in support of the Chronicle’s motions to quash. Amici argued that a reporter’s privilege is vital to the free flow of information to the public, and that the lessons of history strongly support the recognition of a reporter’s privilege under the circumstances of this case. Judge Jeffrey White of the United States District Court for the Northern District of California was not persuaded. Judge White held that the Supreme Court’s decision in Branzburg v. Hayes was controlling and required the Court to reject the reporters’ assertion of a First Amendment reporter’s privilege. Further, he held that even if a common law reporter’s privilege exists, the government has satisfied its burden to overcome the assertion of any such privilege. Hearst, the owner of the Chronicle, has stated that it will appeal the ruling.

Advanced Micro Devices, Inc., et al. v. Intel Corp., et al., No. 05-441-JJF (United States District Court for the District of Delaware)

In December 2005, the Society joined a group of media organizations and open government groups in submitting a letter to Judge Joseph J. Farnan urging that he ensure any protective order negotiated by the parties does not improperly shield from public scrutiny many discovery documents that should rightfully be disclosed. In the underlying antitrust action, Intel is accused of coercing customers in order to create and protect an unlawful monopoly on microprocessors. Because of the immense public interest in knowing what transpired, the letter-signers asked the Judge to reject any proposed Protective Order that seeks to seal documents based merely on grounds of “embarrassment” or that is unacceptably founded on unsubstantiated claims to trade secrets or competitive harm through disclosure. Ultimately, the parties agreed to a protective order with a catch-all provision that requires the producing party to show that disclosure would cause it “serious and specific harm.”

Harvard Crimson Inc. v. Presidents and Fellows of Harvard College, 840 N.E.2d 518 (Mass. Jan. 13, 2006)

The Supreme Judicial Court of Massachusetts, taking the case of its own accord directly from the trial court, affirmed the lower court’s ruling that records of the Harvard University Police Department are not subject to the state’s open records laws. The court held that the documents did not become public records just because some university officers have been appointed “special” state police officers or deputy sheriffs. In October 2004, the Society had joined several other groups, including the Student Press Law Center and the Associated Collegiate Press, to submit an amicus brief supporting the Crimson’s appeal. The Crimson and amici argued that the officers should be considered officers or employees of a governmental entity because they were authorized to perform certain functions by State and local police departments.

O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Cal. App. Ct. 2006), modified, 2006 Cal. App. LEXIS 934 (Cal. App. Ct. June 23, 2006)

In the first case of its kind, the California Court of Appeal, reversing the decision of the trial court, held that the First Amendment and the California shield law allowed website publishers to protect the identities of their sources, and the shield law barred discovery of their unpublished information. In April 2005, the Society had joined a dozen media organizations and media companies in submitting an amicus brief in support of the petitioners, three internet website publishers who sought to avoid releasing confidential sources and unpublished information pursuant to non-party discovery subpoenas. In the underlying lawsuit, Apple Computer alleged misappropriation of trade secrets against several unknown defendants. Apple simultaneously sought subpoenas to the three on-line news sites at which the petitioners are employed. In February 2005, the petitioners filed a motion for a protective order, seeking to withhold their confidential sources and unpublished information under California’s shield law and the reporter’s privilege provided by the United States and California constitutions. On March 11, 2005, a trial court judge denied the motion, declining to address the issue of whether the internet journalists were “journalists” and instead broadly ruling that the publication of trade secrets is not protected by the First Amendment. However, the Court of Appeal reversed and ordered the trial court to issue the protective order.

B) Cases still pending

Wolf v. United States, Case No. 06-16403 (United States Court of Appeals for the Ninth Circuit)

The Society joined the Reporters Committee for Freedom of the Press and the WIW Freedom to Write Fund to submit an amicus brief in support of Josh Wolf, an independent journalist who has been imprisoned since August 1, 2006, for refusing to provide to a grand jury unedited video footage of a 2005 protest rally in San Francisco. Prosecutors assert that Wolf’s footage may provide information about the vandalism of a police car during the protest. If the grand jury investigating the protest had been impaneled in state court, the California shield law likely would protect Wolf; however, federal prosecutors assert that the vandalism of the police car constitutes a federal crime because the San Francisco Police Department receives money from the federal government. Amici argue that Supreme Court precedent compels the recognition of a common-law reporter’s privilege that should protect Wolf in this case. The Legal Defense Fund has also contributed $1,000 to Wolf’s defense.

Prison Legal News v. McDonough, et al., Case No. 05-14738-X (United States Court of Appeals for the Eleventh Circuit)

In February 2006, the Society joined the Southern Poverty Law Center and the Southern Center for Human Rights in submitting an amicus brief on behalf of publisher Prison Legal News (PLN) in its suit against the Florida Department of Corrections. PLN claims that the Department of Corrections violates its First Amendment rights by prohibiting even nominal payments to inmates who write articles for PLN’s monthly newsletter — thereby discouraging the submission of articles — and by precluding delivery of publications, including PLN’s newsletter, that contain incidental advertising for products or services prohibited to Florida inmates. Amici argue that the Florida’s prohibition on the conduct by prisoners of a business or profession is unconstitutional because it impedes First Amendment rights and does not advance any legitimate penological interest. In addition, amici assert that the First Amendment prohibits prison officials from censoring publications solely because they contain incidental advertisements for products or services that are forbidden to inmates. Oral argument is scheduled for August 31, 2006.

Lane, et al. v. Simon, et al., Case Nos. 05-3266 and 05-3284 (United States Court of Appeals for the Tenth Circuit)

In December 2005, the Student Press Law Center led an group of nine journalism organizations, including the Society, in urging the United States Court of Appeals for the Tenth Circuit to reverse a lower court ruling that upheld the Kansas State University’s dismissal of the student newspaper adviser after a “content analysis” of the publication. In an amicus brief, the group says that a June 2005 decision by the United States District Court for the District of Kansas will have a dangerous chilling effect on college journalists and “goes to the very heart of the First Amendment rights of student journalists on public college and university campuses.” The editors of the Kansas State Collegian, Katie Lane and Sarah Rice, sued university officials in 2004 after they removed Ron Johnson, long-time adviser of the newspaper, based on a “content analysis” of the publication by the chairman of the journalism department. The content analysis concluded that the paper’s news coverage was lacking as it related to “diversity” issues. However, the university neither alleged nor presented evidence that Johnson had any control over the content of the publication or played any role in discouraging coverage of such issues. District Court Judge Julie A. Robinson noted in her decision that courts have recognized that the First Amendment does not permit public colleges and universities to take punitive action against student newspapers based on their content. However, Judge Robinson held that the students’ First Amendment rights were not violated because the university’s “content analysis” focused only on the newspaper’s “overall quality,” which was somehow distinct from its content. Amici assert that this rationale defies logic. Oral argument has not yet been set.

American Historical Association, et al. v. National Archives and Records Administration, et al., No. 1:01CV02447 (United States District Court for the District of Columbia)

In November 2001, President Bush issued Executive Order No. 13,233, which purported to establish procedures for implementing the Presidential Records Act of 1978 (“PRA”) but in reality permits both former and incumbent presidents to prevent or infinitely delay the release of many presidential and vice-presidential records. The American Historical Association and several other groups, including the Reporters Committee for Freedom of the Press, sued to challenge the Executive Order on the grounds that it is an illegal attempt to circumvent the PRA, which was passed in the wake of Watergate and is designed to open the records of former presidents to the public 12 years after the ends of their administrations. The Society in February 2002 joined several media organizations to submit an amicus brief supporting the plaintiffs’ motion for summary judgment. After a somewhat complicated procedural history, the legality of the Executive Order was briefed again at the end of 2005 in the context of an amended complaint, and on November 30, 2005, the Society and several media organizations submitted an amicus brief almost identical to the one filed in 2002. The brief argues that the Executive Order reverses the policies in favor of public release that are embodied in the PRA by giving incumbent and former presidents, former vice-presidents, and their representatives nearly unlimited powers to prevent the release of their records by means of even unfounded assertions of privilege. The brief also explains the profound potential harm to the interests of the amici and the public in being able to study the performance of the executive branch. The motions are currently pending.

National Security Archive v. Central Intelligence Agency, No. 1:06-cv-01080 (United States District Court for the District of Columbia)

The Society has agreed to join an amicus brief in support of the National Security Archive in a Freedom of Information Act dispute with the CIA. The dispute concerns the CIA’s decision to charge the Archive search fees based on the CIA’s unilateral determination that the Archive’s request was not newsworthy and thus not entitled to a fee waiver. The brief, to be drafted by the Reporters Committee for Freedom of the Press, will focus on the burdens likely to be faced by the media if federal agencies are routinely allowed to determine the newsworthiness of public information requests when granting or denying a search fee waiver. The brief will also urge the court to find that the CIA’s regulation regarding fee waivers is arbitrary and unlawful. As of press time, the Archive was expected to file a motion for summary judgment shortly after the government responded with its answer, which was due on August 16, 2006. The amicus brief would be filed in support of the motion for summary judgment.

Taus v. Loftus, et al., No. S133805 (Supreme Court of California)

The Society in February 2006 joined two dozen media companies and organizations to submit an amicus brief in support of several psychologists in a defamation and invasion of privacy suit. The plaintiff was the subject of a case study published more than 20 years ago relating to allegations that she was abused as a young child. The defendants published scientific articles criticizing the case study, and the plaintiff sued on the premise that they had breached the confidentiality that protected her during the study (though the defendants’ articles did not name the plaintiff) and that they wrongfully used information about her private life to publicly challenge the theories and conclusions advocated by the author of her case study. The defendants filed special motions to strike the complaint pursuant to California’s anti-SLAPP statute, and the trial court struck the defamation claim as to one defendant and a fraud claim as to another, but upheld the claims for invasion of privacy and negligent infliction of emotional distress. The Court of Appeal dismissed more of the plaintiff’s claims, but upheld an invasion of privacy claim against one defendant and a defamation claim against another. In their brief to the Supreme Court of California, Amici argue that the Court of Appeal’s refusal to strike the plaintiff’s invasion of privacy claim ignores the broad legal protections for publishing facts that are true, available in the public record, and newsworthy. Amici also assert that plaintiff’s defamation claim must fail, and that the decision as a whole is inconsistent with the goal of California’s anti-SLAPP statute to weed out meritless claims early in the litigation process. Oral argument has not yet been set in the case.