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Society Files Friend-of-Court Briefs Against Cases That Threaten Newsgathering Process, Public's Right to Know


Contacts: Bruce Brown, SPJ First Amendment legal counsel, 202/861-1500; Ray Marcano, SPJ president, 937/225-2323

INDIANAPOLIS - The Society of Professional Journalists will present arguments in two cases that threaten the newsgathering process and now are before the courts.

The Society filed friend-of-court briefs in a federal case that involves how wiretapping laws apply to the press and in an Ohio case involving the empanelling of anonymous juries.

“These cases affect newsgathering and publishing rights in different ways,” said Bruce Brown, First Amendment legal counsel for the Society and an attorney for Baker & Hostetler LLP in Washington, D.C. “But both will make the jobs of journalists more difficult and less rewarding for the public if the courts don't come out the right way.”

In the wiretapping case, the Society and a coalition of more than 20 media organizations asked the U.S. Supreme Court to uphold an appeals court decision on the federal wiretapping statute. The U.S. Court of Appeals for the Third Circuit, based in Philadelphia, ruled that news media be free of any liability in cases where the contents of an intercepted communication are made public but the media does not participate in the interception.

The Society became involved in the case to ensure that news organizations can publish truthful information as long as they do not obtain it unlawfully themselves.

“Reporters often will not know the precise origins of information they receive from witnesses and other sources, nor whether the information stems from a lawful source,” the appeals court wrote. “Such uncertainty could lead a cautious reporter not to disclose information of public concern for fear of violating the Wiretapping Acts. … The government's significant interest in protecting privacy is not sufficient to justify the serious burdens the damages provisions of the Wiretapping Acts place on free speech.”

The case, Bartnicki vs. Vopper, involves a radio talk show host who repeatedly aired segments of an illegally recorded cellular phone conversation between a teacher's union president and a union negotiator. The radio show host was himself not implicated in the illegal recording of the conversation, and the identity of the person who recorded the conversation still is not known publicly. The case, which promises to be the most important First Amendment-related matter before the Supreme Court this term, will be argued Dec. 5 before the Supreme Court.

In the case involving anonymous juries, the Society joined a brief written by the Reporters Committee for Freedom of the Press that argues that presumptive secrecy in the court system violates the First Amendment rights of the public and the press. The case, State vs. Hill, involves a murder defendant who has challenged a Fairfield County rule that makes juries presumptively anonymous. The appeal has been sent to the Ohio Supreme Court.

The Society is concerned about the increasing use of anonymous juries, a trend that diminishes the ability of the news media to cover the criminal justice system.

“The court's action, without cause or justification, to keep juries secret clearly circumvents the public's right to know,” said Ray Marcano, SPJ president and regional editor at the Dayton Daily News. “The public, and the press, should have access to court proceedings, including the identity of jurors, in an effort to ensure criminal proceedings are open and fair. It's awfully hard to do that if you don't know who's passing judgment.”

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