Of and Concerning

Follow me on Twitter @mapjresq

2011-06-16T22:28:00.000-04:00

Blog's been a bit quiet lately, hasn't it? I've been using Twitter a lot to get out the word, short and to the point, on breaking news and developments concerning media, the First Amendment, and the Internet.

So if you are a Twitter follower (a Twitteree? Tweetee?) please check out my tweets and follow me @mapjresq

World Press Freedom Day: good news, bad news

2011-05-02T21:30:00.001-04:00

Image courtesy of WAN-IFRA.

The good news is that May 3 is World Press Freedom Day, established by the UN General Assembly in 1993.

This year's theme, as explained on the UNESCO WPF site, is "the potential of the Internet and digital platforms as well as the more established forms of journalism in contributing to freedom of expression, democratic governance, and sustainable development."

For additional information see the UNESCO site or the WPF page at the World Association of Newspapers and News Publishers (WAN-IFRA) website.

The bad news is that Freedom House released its 2011 Freedom of the Press Report, which shows that global media freedom has reached a new low point, with only one in every six people living in a county with a free press. The report notes that particularly troubling trends are in the Middle East and the Americas, with some improvements in sub-Saharan Africa.

Cartoon by Michel Cambon courtesy of WAN-IFRA.

Protective order trumps public records access rights

2011-04-15T15:57:00.000-04:00

In Commonwealth v. Fremont Investment & Loan, the Supreme Judicial Court of Massachusetts upheld a trial court's determination that the Massachusetts public records law, G. L. c. 66, sec. 10, does not render ineffective a trial court's protective order. In so doing, the SJC concluded that "the public records law does not abrogate judicial protective orders."

At issue were 5.5 million documents that Fremont had produced in an enforcement action brought against it by the Commonwealth, which alleged unfair and deceptive practices in Fremont's mortgage lending business. Fremont had designated those documents as confidential pursuant to a protective order entered by the trial judge in that case, which was settled with the entry of a consent decree in 2009.

Samuel J. Lieberman sought access to those documents under the state public records law, for use in connection with a potential class action case against Fremont. The Attorney General refused to produce documents designated by Fremont as confidential.

Lieberman argued that because the documents did not fall within one of the exemptions stated in the records law, they must be produced notwithstanding the trial court's protective order.

In rejecting his argument, the SJC acknowledged that while the subject documents might not be exempt from access under the records law, Lieberman's "conclusion that the records must therefore be disclosed is based on the mistaken premise that all documents in the hands of public officials must, absent an applicable exception, be made public notwithstanding a court order prohibiting their circulation. We do not agree that the public records law was intended to extend this far."

The SJC noted that the records action judge had not addressed all questions at issue in the case , such as "whether the order should be modified for other reasons, or whether certain documents designated confidential by Fremont are not validly protected by the order."

If at first you don't succeed?

2011-04-11T12:14:00.000-04:00

In 2006, when confronted with an anti-SLAPP defense motion, rabbi Mordechai Tendler withdrew subpoenas to Google, in which he sought the identity of anonymous bloggers who had commented on his dismissal from a New York synagogue over allegations of sexual relations with members of the congregation.

He's back ...

Public Citizen reports on its Consumer Law & Policy Blog that the "Randy Rabbi" is back, once again armed with a subpoena aimed at discovering the identity of the same anonymous bloggers.

Tendler obtained a liability judgment against the synagogue that dismissed him, and now claims that he needs to know the identity of the anonymous bloggers to gather evidence in support of his damages claim against the synagogue.

The Public Citizen blog piece has a link to a page it maintains about the subpoena efforts, including a link to the memo in support of a motion to quash the subpoena, which was filed recently in a New York trial court by the Public Citizen Litigation Group on behalf of the anonymous bloggers.

The bases of the motion to quash are that Tendler failed to comply with a New York state procedural requirement that he state the reasons why the disclosure he seeks is warranted, and because enforcement of the subpoena would violate the bloggers' First Amendment rights.

Invitation to a special Ford Hall Forum event

2011-04-06T10:07:00.000-04:00

On April 21 the Ford Hall Forum is presenting its 31st annual First Amendment award to retired New York Times columnist and two-time Pulitzer Prize winner Anthony Lewis.

As you may know, Lewis (who is the husband of recently-retired SJC Chief Justice Margaret Marshall) is the author of Gideon’s Trumpet, Make No Law, and Freedom for the Thought We Hate: A Biography of the First Amendment.

I am honored to have been asked by the Ford Hall Forum to serve on the First Amendment Award 2011 Event Committee, and I want to invite you to attend the award ceremony and forum (which is free and open to the public), as well as a private pre-ceremony reception.

The Ford Hall Forum’s Louis P. and Evelyn Smith First Amendment Award commends individuals and entities for extraordinary commitment to the thoughtful exercise of the freedom of expression. Previous First Amendment Award recipients include civil rights activist and Congressman John Lewis, Tiananmen Square rebel and astrophysicist Fang Lizhi, and NPR journalists Cokie Roberts, Nina Totenberg, and Linda Wertheimer. Honorees like these best exemplify the spirit of the Ford Hall Forum, which for over a century has given acclaimed experts a chance to disseminate controversial opinions on the issues of our time, while providing the public opportunities to openly challenge them.

The evening's events will start at 5:00 p.m. when the Forum will hold a reception with Anthony Lewis at the offices of Prince Lobel Glovsky & Tye in Boston. Reception tickets (which will include priority seating at the forum) are available for purchase here.

If you or your firm or business are interested in sponsoring this prestigious reception, please contact me. Sponsorship levels range from $500 to $5,000, and include tickets to the reception, an ad in the program booklet, and, depending on the level of sponsorship, your name or logo in various Forum email announcements or brochures, or on the Forum's Website, and, at the highest level, recognition as an event underwriter.

The Award Ceremony and forum begins at 6:30 p.m. at Suffolk University’s C. Walsh Theatre. Floyd Abrams, America’s leading First Amendment lawyer, will guide a fascinating conversation with Lewis on his life and career (including his time as a Nieman Scholar at Harvard, Editor-in-Chief for the London office of the Times, professor of journalism, and longtime “At Home Abroad” columnist for the Times), and his demonstrated passion for the First Amendment.

The Awards Ceremony and forum is free and open to the public, but you do need to register here for a free ticket.

I hope that you will be able to join us for an exciting evening.

Appealing music

2011-04-05T13:18:00.001-04:00

A three-judge panel of the U.S. Court of Appeals for the First Circuit heard oral argument yesterday in Sony BMG Music Entertainment v. Tenenbaum, the cases brought by the recording industry against Boston University grad student Joel Tenenbaum. Tenebaum is appealing the judgment against him for downloading 30 songs.

Concluding that the jury's damage award of $675,000 was so "unprecedented and oppressive" that it could not withstand scrutiny under the Due Process Clause of the U. S. Constitution, the trial judge, District Judge Nancy Gertner, had reduced the award to $67,500, an amount she described as still "severe, even harsh."

On appeal, Tenenbaum argues, among other things, that the award remains unconstitutionally excessive and that the Digital Theft Deterrence Act of 1999, which provided the basis for an increased range of statutory damages for copyright infringement (see 17 U.S.C. Sec. 504(c)), was not intended to apply to individual, non-commercial consumers.

The music companies appeal Judge Gertner's reduction of the award.

You can listen to an audio recording of the oral arguments here.

Tenenbaum is represented by a team of lawyers and law students led by Harvard Law School professor Charles Nesson, and on Monday HLS 3L Jason Harrow argued on behalf of Tenenbaum. A Web site, Joel Fights Back, is dedicated to the cause.

This is only the second case to go to trial against an individual accused of unlawful music dowloading/sharing.

In 2008 the music industry decided to no longer pursue individuals for allegedly unlawful music downloading or sharing (as reported in this Wall Street Journal article), but that it would continue with suits already in progress.

Now appearing in the ABA Journal Legal Blawg Directory

2011-03-25T13:16:00.000-04:00

I am happy to announce that this blog now appears in the ABA Journal Blawg Directory, where it is listed in a number of categories, including First Amendment, Constitutional Law, Media & Communications Law, and Internet Law. The directory is a good resource if you are looking for blogs on particular legal topics.

Love's pricey tweets

2011-03-04T14:18:00.002-05:00

The Hollywood Reporter broke the news yesterday on its always entertaining Hollywood, Esq. (the intersection of entertainment and law) Web page that Courtney Love has settled a defamation case against her for a reported $430,000. The case arose from a series of tweets that Love posted on Twitter about fashion designer Dawn Simorangkir, the self-described Boudoir Queen whose online, one-line bio states "eccentric living is what I do best."

As reported by THR, Simorangkir became embroiled in a dispute with Love over a $4,000 payment for clothing, and accused Love of ruining her business with a series of allegedly defamatory tweets (including referring to Simorangkir as an "asswipe nasty lying hosebag thief”) posted during a "20 minute rant" in 2009.

In its article, THR reports that Love had argued in her defense that her rants were merely an expression of opinion, and that Simorangkir could not prove how they damaged her. The designer, it is reported, pointed to Loves's influence as an entertainer and the power of social media to disseminate damaging comments.

While Love might have felt that it was "Awful" that she was "Hit So Hard" by Simorangkir's suit, which Love, perhaps having thicker "Celebrity Skin" might have thought was "Uncool," THR reports that her lawyer is pleased with the deal, which he views as a modest payout because it is extended over the next few years.

It is reported elsewhere that while Love wanted the settlement to remain confidential, Simorangkir insisted upon going public, perhaps as a show of vindication.

Simorangkir might even feel that the money she will receive and the publicity about the settlement is "Almost Golden."

Bonus First Amendment Trivia: Love was nominated for a Golden Globe for her performance in the 1996 film The People v. Larry Flynt, which is based in part on the legendary Supreme Court case Hustler Magazine, Inc. v. Falwell, and in which Love starred as Flynt's wife.

Speech We Hate, Speech We Protect

2011-03-03T13:58:00.001-05:00

If Anthony Lewis issues a revised edition of his excellent book Freedom for the Thought We Hate--A Biography of the First Amendment I have little doubt that he will include a discussion of yesterday's decision by the Supreme Court in Snyder V. Phelps.

There are few better examples of repugnant, hateful, and odious speech than that presented in Snyder, where a group of seemingly half-witted, delusional members of a so-called "church" protested--as is their habit--in the vicinity of a funeral service for a fallen American soldier.* As widely reported, the members of this so-called church have for many years picketed military soldiers to communicate their belief that God hates the United States for its tolerance of gays, particularly in the military. The picketing in Snyder involved the so-called pastor and six of members of his "church," all related to the "pastor." Among other things, their placards included one reading, "Thank God for Dead Soldiers."

As I said: repugnant, hateful, odious. Not to mention half-baked and delusional.

But as the Court held in its 8-1 decision(Justice Alito dissenting), they are protected from tort liability arising from that speech by the First Amendment. As the Court concluded:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The speech at issue here is speech most Americans hate, but the Court rightly decided it must be protected. The decision does indeed reflect freedom for the thought we hate.

The title of Lewis' book pays homage to a dissent by Justice Oliver Wendell Holmes Jr. in the 1929 case of U. S. v. Schwimmer. In that case, the Court ruled that citizenship could be denied a foreign-born applicant who refused, due to her strong pacifist beliefs, to take an oath to take up arms in defense of the United States. In his dissent, Holmes stated with regard to her beliefs:

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.

In his book, Lewis recalls the time he first read that passage, around 1960 when it was--literally--handed to him by Justice Felix Frankfurter, and how when he came to the end of the paragraph he felt the hair rise on the back of his neck. (Lewis 37) I am surprised that the spot-on wording by Justice Holmes did not find its way into the Snyder opinion.

______________________

* = Contrary to common lore--particularity on certain talk radio stations--the Court noted that the protests were peaceful and conducted about 1,000 feet away from the funeral service, in accordance with local requirements. The funeral procession itself came no closer than 200 to 300 feet from the protesters. And Albert Snyder, the plaintiff and father of the slain soldier, testified that he saw only the tops of the signs and could not read what they said when the procession passed by the protesters, learning only later that day the content of their speech.

Recipe for dismissal

2011-02-26T12:35:00.000-05:00

A New York state trial court this week tossed out a defamation claim brought by cookbook author Missy Chase Lapine against comedian Jerry Seinfeld, apparently concluding that Lapine's recipe for legal relief had the wrong ingredients.

The court's 24-page decision and order in Lapine v. Seinfeld also dismissed claims against Harper Collins, which passed on publishing Lapine's cookbook (later published by Running Press as The Sneaky Chef) and then published a cookbook by Seinfeld's wife, Jessica, Deceptively Delicious.

Both books offered ways to sneak veggies and other healthy foods into meals for kids.

Lapine alleged that Seinfeld used an appearance on the David Letterman show to launch an attack on Lapine due to mounting charges of plagiarism concerning Jessica Seinfeld's book. Lapine said in her complaint that on Letterman Seinfeld made outrageously false statements about her mental health. The allegedly defamatory statements included calling Lapine "a wacko" and "a nut," stating that she was "angry and hysterical," and "a mentally unhinged stalker" of the Seinfelds, and observing that "many of the three-name people do become assassins."

The court noted that expressions of opinion are constitutionally protected, and then found it "inconceivable" that a reasonable viewer would believe that Seinfeld's statements conveyed facts about Lapine.

Lapine argued in opposing Seinfled's motion to dismiss that Seinfeld defamed her by conveying the "unmistakable message" to the TV viewers that "Lapine had fabricated opportunistic allegations of plagiarism against his wife."

In rejecting that argument, the court explained that Seinfeld's are protected not because they were made in a comedic context or were themselves comedy, but because they were statements of opinion that are not actionable as a mater of law.

The court concluded by stating that to decide otherwise in this case would deny "protection of the First Amendment to persons who publicly defend themselves against what they believe to be baseless public charges or lawsuits."

No chance for LaChance

2011-02-24T22:41:00.005-05:00

In a to-the-point rescript opinion in Edward D. LaChance, Jr. v. Boston Herald et al.,the Appeals Court of Massachusetts this week affirmed a summary judgment dismissal of defamation and other claims brought by LaChance, an incarcerated prisoner, against the Boston Herald and one of its reporters.

In 2004, while serving a sentence for aggravated rape, LaChance placed a personal ad on a Web site known as “Inmate Connections” (in violation of prison rules barring maximum security inmates from Internet access).

In 2005, the Herald published three articles on the topic of online “dating" by incarcerated felons. The articles variously stated—incorrectly—that LaChance had been convicted of manslaughter, that he claimed in his ad to be in prison for manslaughter, and that he had committed a brutal sexual attack on an elderly woman.

The Herald and its reporter concede that those assertions were factually inaccurate, in that LaChance was not in prison for manslaughter, did not make such a claim in his ad, and did not commit a crime against an elderly victim.

The trial court ruled that the alleged defamatory statements were either privileged or substantially true, and granted the defendants' motion for summary judgment.

In affirming the dismissal, the Appeals Court concluded that the newspaper articles at issue addressed matters of public concern—the dangers of interacting with violent felons online—and that as a result of his own actions—whereby LaChance thrust himself into a particular public controversy—LaChance was a limited purpose public figure. In arriving at that conclusion, the court noted that LaChance’s ad was misleading and controversial, finding particularly deceptive his assertion that, “I’m not a bad man and I treat everyone the way I wish to be treated.”

The court then turned to whether the subject statements were false and made with actual malice.

Although the articles contained inaccuracies (even a literal falsehood), the court concluded that such statements did not rise to the level of actionable falsity or defamation. The gist of the articles was accurate: inmate ads should not be trusted in general, and LaChance’s ad in particular was dangerously deceptive in that he withheld details of his violent criminal history and portrayed himself in a light that might seem more innocuous to potential respondents on the match-making site.

As LaChance offered no proof of actual malice—that is, that the statements were published with knowledge of falsity or reckless disregard for whether they were false—LaChance failed to carry his burden of proving actual malice.

Finally, the court rejected LaChance’s contention that the fair reporting privilege did not apply to his case. The published article contained a fair and accurate report of a court docket entry as it existed at the time of publication. Even though the entry was in error, it was not corrected until months after the publication of the articles, and the paper had no way of knowing about the error at the time of publication. As such, the reference to a brutal sexual attack on an elderly woman was, although inaccurate, privileged and insulated from a claim of defamation.

And to answer your question ("Who would represent this guy in a defamation case?") ... yes, LaChance represented himself. The media defendants were represented by Liz Ritvo.

Post-Season Play?

2011-02-15T12:43:00.000-05:00

The Super Bowl is history, and pitchers and catchers have headed south for spring training, but for those of us keeping an eye on media and First Amendment issues, football is not yet out of the picture. At least not the off-field contest now being waged by Dan Snyder, principal owner of the Washington Redskins, against the Washington City Paper and related entities.

In his Complaint, Snyder alleges that the paper "has engaged in an ongoing campaign against [him] to smear his business and personal reputation through the publication of false and malicious articles ... ." Snyder's "ability to turn the other cheek" allegedly was exhausted by a November 18, 2010, cover story, which he alleges provided "an 'encyclopedic tour' of the 'heinous deeds' and 'various perfidies of Dan Snyder'."

Snyder's complaint--which includes as an exhibit a copy of a November 24, 2010, letter sent by David P. Donovan, Redskins' General Counsel, to individuals associated with the paper's ownership group--apparently refers to the piece by columnist Dave McKenna, "The Cranky Redskins Fan's Guide to Dan Snyder." An online copy of that piece is dated November 19, 2010, and now includes a link to a letter from Amy Austin, publisher of the paper, concerning the legal action and a defense fund.

The paper is represented by Seth Berlin at the prominent media and First Amendment law firm Levine Sullivan Koch & Schulz. The paper's ownership group is represented by First Amendment powerhouse Floyd Abrams from Cahill Gordon & Reindell.

Now that Snyder has kicked off, stay tuned for details about the return by the defense. Given the First Amendment values here, I expect we will see a Statue of Liberty play at some point, and a strong blitz if Snyder regains possession.

Stormy Weather

2011-02-14T13:26:00.002-05:00

Speaking of Sunshine Week, this is a great cartoon by Matt Wuerker, an editorial cartoonist for The Politico and 2010 winner of the Herblock Prize.

Used with permission.

Sunshine Week

2011-02-14T12:51:00.001-05:00

Sunshine Week is in one month, March 13-19.

As explained on the Sunshine Week Web site, "Sunshine Week is a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know."

For more information, check out the Web site.

No Sure Thing in Jersey

2011-02-11T15:53:00.003-05:00

Earlier this week the Supreme Court of New Jersey heard oral argument in a case concerning the application of New Jersey's shield law to statements posted online by an independent, investigative blogger. The case is Too Much Media, Inc. v. Shellee Hale.

TMM is a New Jersey software company that provides software for Internet businesses, reportedly including those in the online adult entertainment business.

Hale, a resident of Washington and former Microsoft employee, was investigating organized crime infiltration of the online porn industry, and had set up a Web site, Pornafia.com (which now forwards to shelleehale.com), to report on her investigative work.

Hale posted the remarks that are the subject of TMM's defamation action on a bulletin board of another site, Oprano.com, which describes itself as "the Wall Street Journal for the online adult entertainment industry." Hale allegedly accused TMM of engaging in fraudulent practices and of threatening the life of someone who divulged details of TMM's activities.

In response to plaintiff's discovery seeking the identity of Hale's confidential source, Hale invoked the protection of the New Jersey shield law. The trial court and the lower level appeals court ruled against her.

At issue is whether a blogger such as Hale, who operated a Web site she claimed was intended for investigative reporting on issues of public importance, and who posted allegedly defamatory information about TMM on another Web site’s bulletin board, is a journalist entitled to the protection of New Jersey’s shield law and the First Amendment? Also at issue is whether the trial court erred in subjecting Hale to a preliminary hearing to determine whether she qualified for the protection of the statute.

You can read here an amicus brief filed in support of Hale by the Reporters Committee for Freedom of the Press, Gannett, and the Society of Professional Journalists . As noted in that brief, the New Jersey shield law was enacted in 1933 and is considered one of the strongest in the country.

An archived Webcast of the oral argument should be available here soon.

Stay tuned for more on the situation in New Jersey.

Do the right thing

2009-11-03T11:10:00.008-05:00

Yesterday the Massachusetts Supreme Judicial Court heard argument in the case of Fustolo v. Hollander, SJC-10485. The underlying action involves a defamation claim brought by a real estate developer, Steven C. Fustolo, against Fredda Hollander, a reporter for a community newspaper, the Regional Review, and a neighborhood activist. Fustolo alleged that Hollander defamed him in five articles she wrote for the paper.

Hollander appealed from a denial by Superior Court Judge Geraldine Hines of her special motion to dismiss under the Massachusetts anti-SLAPP statute, G. L. c. 231, sec. 59H.

The Massachusetts ACLU, joined by the Citizen Media Law Project and the Lawyers' Committee for Civil Rights, submitted an amicus brief in support of Hollander's position.

Copies of the briefs submitted by the parties, and the amicus brief, can be found here.

Both Hollander's reply brief and the amicus brief, cite Joyce v. Slager, a case in which I successfully moved under the Anti-SLAPP statute for the dismissal of a defamation action against my clients, a newspaper and its publisher.

Click here for a link to the Webcast of the SJC argument.

Bottom line: Hollander should prevail in her appeal.

Nothing in the statue precludes its application to individuals or entities engaged in commerce. As Harvey S. Shapiro, counsel for Hollander, noted in his argument, the commercial context of Hollander's petitioning activity pales in comparison to the commercial nature of defendants in cases where the statue has been applied.

Second, nothing in the statute precludes the application of the statue to journalists or the media. If such a limitation is to be imposed--which I would argue it should not--it should be done by the legislature, not the courts.

Some of the questions from the bench seemed to suggest that if the Court acknowledged the application of the anti-SLAPP statue to journalists, then defamation law would be tossed aside.

Not so.

In arguing for a dismissal under the statute, a moving party first must establish that its conduct at issue in the defamation claim was petitioning activity. The opposing party then has the opportunity to show that the petitioning activity was devoid of any reasonable factual support or any arguable basis in law, and that the moving party’s acts caused actual injury to the opposing party. If the opposing party sustains that burden, then the special motion to dismiss will be denied, and the defamation case may continue.

Staples Nails Verdict

2009-10-13T14:27:00.006-04:00

The National Law Journal reports that last week a jury sitting in the Noonan v. Staples case in federal court in Boston found that when Staples sent a mass email about a former employee's violation of company travel and expense policies it did not do so with actual malice.

Earlier this year the First Circuit Court of Appeals rejected a dismissal of the case against Staples, holding that the plaintiff could seek to establish a libel claim based on the publication of truthful facts if they were published with "actual malevolent intent or ill will." In so doing, the Court relied on an old Massachusetts law, G. L. c. 231, sec. 92, which provides that truth is a justification for a publication alleged to be libellous, unless it was published with actual malice.

The jury in the Staples case evidently found that there was no such "actual malice" on the part of Staples.

It is important to note that the use of the term "actual malice" in the 1902 Massachusetts statute long-predates, and should not be confused with, the the term "actual malice" used by the Supreme Court of the United States in the seminal 1963 case of New York Times v. Sullivan. In that case, the Court laid out constitutional standards to protect the press from defamation claims brought by public officials. holding that a public official could not recover for libel unless the plaintiff could show that the defamatory statement was made with "actual malice," which the Court defined as making the defamatory statement with knowledge of its falsity or with reckless disregard of whether it was true or false.

The Noonan case, of course, involved a private plaintiff and defendant.

Barking up the wrong tree

2009-10-07T11:41:00.003-04:00

The Third Circuit Court of Appeals was right in striking down a federal law concerning depictions of animal cruelty. The statute, 18 U.S.C. 48, is both overly-broad and vague. The First Amendment rights at stake are far too valuable to rely upon prosecutorial restraint for their protection, as argued by the government.

The U. S. Supreme Court, which heard argument yesterday in the case, U. S. v. Stevens, should affirm the Third Circuit's decision.

Newspaper Wins Dismissal of Defamation SLAPP Suit

2009-07-23T11:57:00.021-04:00

Statute applies to commercial media entities.
A Massachusetts trial court judge recently dismissed a defamation case brought by a police chief against my clients, a local newspaper and its publisher. The court’s decision in the case, Thomas A. Joyce v. Robert Slager and The Wareham Observer, appears to be the first known decision in Massachusetts where a defamation case against a commercial media defendant has been dismissed under the Massachusetts anti-SLAPP statute.

The court determined that the statements at issue were protected petitioning activity, rejected plaintiff’s contention that prior Massachusetts case law barred commercial entities or commercial media entities from the statute’s protection, and concluded that the special motion to dismiss must be allowed because the plaintiff failed to meet his burdens under the statute.

Plaintiff Thomas Joyce has been chief of police in Wareham, Massachusetts, for many years. The Wareham Observer is a small, weekly newspaper, which seeks to encourage citizen participation in town government. Defendant Robert Slager is the publisher of the paper, and, at the time of the subject publications, its sole full-time employee.

In his complaint, Joyce cited as false and defamatory three specific items: a headline, a paragraph in an opinion column, and a sentence in a short blurb, asserting that each was published “with actual malice and actual knowledge of its falsity or a high degree of awareness of its probable falsity.”

We Said

Defendants argued that the anti-SLAPP statute applies to newspapers and other media entities, that each of the subject statements fell within the statute’s definition of petitioning activity, and that plaintiff’s defamation claims were based solely on that petitioning activity. The defendants emphasized that commercial media were not excluded from the statute’s protection either by the terms of the statute itself or by Massachusetts common law (and that nothing in the Paton decision limited the application of the statute to non-commercial media entities), and that the statute’s protection was not restricted to petitioning activity concerning matters under active consideration.

He Said

Joyce opposed the special motion on the grounds, essentially, that “commercial media enterprises” are not entitled to protection under the statute, and that even if they are, the subject statements were devoid of reasonable factual support. He argued that the statute only protected petitioning activity of a “private citizen,” that the statute did not apply to a commercial media entity (and that MacDonald v. Paton, a 2003 decision of the Massachusetts Appeals Court, acknowledged the statute’s protection only as to a non-commercial, individual Web site operator), and that petitioning activity must involve issues under active governmental consideration.

The Decision Read

The court rejected Joyce’s arguments that the subject statements do not qualify as petitioning activity because they were made in support of a commercial enterprise, that commercial entities are barred from enjoying the protection of the statute, that petitioning activity must be by someone acting as a private citizen in order to be protected, and that no media defendant can enjoy the protection of the statute. The court also stated that petitioning activity need not be motivated by a matter of public concern or be undertaken simultaneously with active governmental review in order to be subject to the statute’s protection.

The court then stated how each of the subject statements qualified as protected petitioning activity. In doing so, the court cited instances where one or another of the three subject statements had caused people to contact selectmen, or caused selectmen to investigate Joyce’s activities. The court concluded that the defendants had met the burden of showing that Joyce’s claims were based solely on defendants’ petitioning activity, and that they were entitled to invoke the statute’s protection.

In discussing why Joyce then failed to meet his burden of showing that the petitioning activity was devoid of any reasonable factual support, the court cited the factual bases advanced by the defendants, and also noted that any minor inaccuracies found in hindsight are protected under law if a statement was reasonably supported by fact at the time it was made. Implicitly acknowledging that the standard under a special motion to dismiss is not the same as that used in assessing a rule 12(b)(6) motion to dismiss for failure to state a claim, the court further noted that Joyce could not meet his burden simply by stating conflicting facts without any support because he is not here entitled to any inferences in his favor.

Noting that Joyce did not address whether the subject statements had any arguable basis in law (one of the standards stated in the statute), the court agreed with the defendants, and concluded that the statements had at least an arguable basis in law under New York Times v. Sullivan, and, further, that in Massachusetts commentary is a legally protected expression of opinion.

You're Dismissed!

2009-07-16T13:19:00.004-04:00

A new Jersey state superior court judge Wednesday dismissed the defamation case brought by Donald Trump against an author, Timothy L. O'Brien, who had stated in his book Trump Nation: The Art of Being the Donald that Trump was worth (only) $150 to $250 million. Trump asserted that at the time the book was published he was actually worth $4 or 5 billion.

The court concluded that Trump had failed to show by clear and convincing evidence that the author had acted with actual malice.

Trump, who sought $5 billion in damages, indicated he will appeal.

Court protects anonymous Internet speech

2009-07-15T15:36:00.006-04:00

In Brodie v. Independent Newspapers, the Maryland Court of Appeals recognized that the First Amendment requires certain procedural safeguards before the identity of anonymous bloggers and other Web site authors can be compelled. The Court joined the growing rank of courts in other states in applying a balancing test. The court refused to permit the disclosure of the identity of a number of individuals who anonymously posted comments on a Web site.

For a good overview of the decision, see Samantha Fredickson's article, A big win for anonymous Web speech, in the Spring issue of The News Media and the Law, published by The Reporters Committee for Freedom of the Press.

For additional details and commentary, and links to pertinent materials and other sites, see the discussion posted by Sam Bayard at the Citizen Media Law Project Web site.

A pre-July 4 sparkler

2009-07-06T15:55:00.010-04:00

In an illuminating pre-Independence Day display of judicial clarity, U.S. District Judge Patti Saris has disposed of former Massachusetts Superior Court judge Ernest Murphy's attempt to obtain $6.8 million dollars from Mutual Insurance Company Limited, an insurer for the Boston Herald.

Murphy's consumer protection law claim against the insurer arose out of his successful 2005 defamation trial against the Herald and one of its reporters. That case concerned reports in the Herald attributing certain comments to Murphy regarding cases before him.

The 2005 defamation trial resulted in an award to Murphy of more than $2 million. The Herald appealed the verdict, but it was upheld in a 2007 decision by the Massachusetts Supreme Judicial Court.

Within days of that SJC's decision, Mutual Insurance paid Murphy more than $3.4 million in satisfaction of the judgment, which amount included interest and costs. A month later, however, Murphy demanded an additional $6.8 million from the insurer, claiming that it had violated Massachusetts law concerning insurance claims practices and consumer protection. The amount demanded by Murphy was three times the amount of the jury verdict with interest.

Mutual Insurance subsequently commenced a declaratory judgment action against Murphy in federal court.

In that action, in which Murphy filed a counterclaim, Mutual Insurance ultimately moved for summary judgment seeking a declaration that it had no liability to Murphy under the pertinent insurance and consumer protection laws, and also seeking a dismissal of Murphy's counterclaim. Saris's July 1 decision did both.

In reaching her decision, Saris concluded that "because Mutual did not exercise exclusive control over the defense or settlement of the claim and the Herald never agreed to settle, Mutual did not have a duty to “effectuate prompt, fair, and equitable settlement” under Massachusetts law."

In the aftermath of the 2005 jury verdict in the defamation case, Murphy sent two letters on state court stationery to the Herald's publisher demanding a settlement. The letters ultimately resulted in an ethics investigation and reprimand of Murphy, who subsequently left the bench on a disability retirement.

Mutual Insurance was represented by Joseph Sano, a partner in the Boston firm Prince Lobel Glovsky & Tye.

Through a glass, darkly

2009-05-07T14:30:00.004-04:00

Walter Pincus, long-time reporter for The Washington Post, has a thought-provoking essay in the May/June issue of the Columbia Journalism Review. The premise of the piece, Newspaper Narcissism, which is available online, is that the problems facing newspapers today are in part the result of a pursuit of glory that led papers away from readers.

If you are a student or fan of journalism, or just a reader who cares about the daily local newspaper as an endangered species (a sensitive topic these days here in Boston), you should read the piece.

The $550,0000 blink

2009-05-06T21:01:00.006-04:00

Last summer the Third Circuit U. S. Court of Appeals vacated the FCC's $550,000 fine against CBS for the infamous Janet Jackson wardrobe malfunction during the 2004 Super Bowl halftime show, finding that the FCC had acted arbitrarily and capriciously.

The FCC petitioned for review, and this week, fast in the tracks of last week's "fleeting expletive" ruling, the Supreme Court vacated that judgment and remanded the case back to the Third Circuit for further consideration in light of FCC v. Fox decision.

A $550,000 fine? For this?

You be the judge.

Say what ... ?

2009-05-04T14:59:00.003-04:00

Last week in FCC v. Fox and NBC, the U. S. Supreme Court overturned by a vote of 5-4 a decision by the U. S. Second Circuit Court of Appeals, and upheld the FCC's "fleeting use" policy regarding vulgar expletives. Under that policy, the FCC sanctions broadcast television networks for the the single expression of an expletive during live prime-time television. The Court, answering only the narrow administrative law question before it, held that the policy was not arbitrary and capricious.

The Second Circuit had held that the policy, which has been in place since 2004, was unreasonable under administrative law standards.

The Court declined to address the issue of whether the policy violates the First Amendment, since it was not definitively addressed below.

In a lengthy dissent, Justice Breyer stated that the FCC had failed adequately to explain why it changed from its prior policy of not sanctioning a single, fleeting use of an expletive, and concluded that the FCC's decision was arbitrary, capricious, and an abuse of discretion.

Justice Breyer was joined in his dissent by Justices Stevens and Ginsburg--each of whom also authored a separate dissent--and Justice Souter.

IFC Media Project

2009-05-03T22:21:00.002-04:00

The second season of The IFC Media Project premieres tonight on IFC at 11:00 p.m. EDT.

According to the IFC Web site:

Season two will cover such controversial and timely media topics as:

The debate over whether Al Jazeera English should have a home on American television.
The story of a 26-year-old journalism school graduate who journeys to her hometown in North Ossetia to uncover the real story behind the 5-day war between Russia and Georgia.
Gideon Yago investigates the debate over clean coal.
A look from inside the White House press room on how the Obama administration is relating to journalists.
How the current financial crisis affects the health of today's news media and can the news as we know it even survive?

Not so good

2009-05-03T22:14:00.004-04:00

On Friday I noted that today, May 3, is World Press Freedom Day.

That's good news.

What's not so good is the new Freedom House report, Freedom of the Press 2009, which identifies the greatest threats to independent media in 195 countries and territories. The report shows a seventh straight year of decline in global media freedom, with twice as many losses than gains.

Well worth reading.

Sunday is World Press Freedom Day

2009-05-01T08:59:00.007-04:00

Good news.

Sunday, May 3, is World Press Freedom Day, which is organized by the World Association of Newspapers.

According to WAN, it "annually organises a World Press Freedom Day initiative to draw attention to the role of independent news and information in society, and how it is under attack."

WAN, which is based in Paris, describes itself as follows on its Web site:

Founded in 1948, the World Association of Newspapers groups 76 national newspaper associations, individual newspaper executives in 102 nations, 10 news agencies, and 10 regional press organisations. It is a non-profit, non-government organisation. In all, the Association represents more than 18,000 publications on the five continents.

The World Association of Newspapers has three major objectives:
Defending and promoting press freedom and the economic independence of newspapers as an essential condition for that freedom.
Contributing to the development of print and digital news publishing by encouraging contact and discussion between executives and editors from different regions and cultures.
Promoting co-operation between its member organisations, whether national, regional or worldwide.

Cartoon courtesy of World Association of Newspapers/Michel Cambon.

First Circuit pulls the plug on courtroom Webcast

2009-04-17T09:42:00.009-04:00

In what may be a technically correct, but philosophically disappointing, decision, the First Circuit has prohibited enforcement of an order by U. S. District Judge Nancy Gertner, which would have allowed a "gavel-to-gavel" Web cast of a hearing in a case against college students for alleged illegal downloading of music.

In In re: Sony BMG Music Entertainment et al. the court concluded that Judge Gertner's order--based on a request by one of the defendants, grad student Joel Tennenbaum, represented by Harvard Law School Professor Charles Nesson, was based on a "palpably incorrect" interpretation of a local court rule.

Nesson is a founder of Harvard's Berkman Center for Internet and Society.

In a concurring opinion, Judge Kermit Lipez stated that "there are no sound
policy reasons to prohibit the webcasting authorized by the district court," and that the issue "calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome." He went on to note the irony that an audio recording of the oral argument in the hearing before the First Circuit was available on the court's Web site immediately after the argument.

To hear a recording of the hearing and view background material, go to The Recording Industry vs. The People blog.

Another site that contains a link to an audio recording of the hearing, and other information about the case, is Joelfightsback.com, a site apparently run by a group of students--under the guidance of Professor Nesson--assisting in Tennenbaum's defense.

Clearwater officials hooked by cartoon

2009-04-15T14:57:00.007-04:00

In a show of political---if not piscatorial--support, another Clearwater business owner has erected a mural of a cartoon lampooning city officials for their actions regarding the fish mural and First Amendment banner.

According to a story in The Tampa Tribune, the balloon comments quote statements actually made by the depicted city officials.

Photo Credit: The Tampa Tribune and News Channel 8 photo by Todd Davis

Clearwater muddies constitutional waters

2009-04-15T14:24:00.009-04:00

Clearwater, Florida, city officials cited the owners of a bait and tackle shop for displaying a painted mural on the side of the building housing their business because the mural included some fish. City officials said it violated a city sign ordinance, levied a fine, and ordered it removed.

The owners paid the fine, but refused to strip the mural from the building. Instead, they covered it with a banner displaying the text of the First Amendment, followed by this statement:

“THE SUPREME COURT REQUIRES THE GOVERNMENT TO PROVIDE SUBSTANTIAL JUSTIFICATION FOR THE INTERFERENCE WITH THE RIGHT OF FREE SPEECH WHERE IT ATTEMPTS TO REGULATE THE CONTENT OF THE SPEECH.”

Nope. City officials want that removed as well.

The ACLU came to the rescue, and obtained a preliminary ruling barring the city from penalizing the owners while the case proceeds to a hearing on the merits.

The city previously lost a similar case when it tried to ban an Egyptian restaurant form displaying Egyptian-themed designs on its restaurant building.

Cast your line over to www.keepthefish.com for all of the details and links to the many sites that have covered or commented on this incident.

Photo Credit: ACLU of Florida, and Douglas Clifford

Federal reporter's privilege law this year?

2009-04-13T10:37:00.009-04:00

In late March the U. S. House passed the Free Flow of Information Act of 2009, H. R. 985, which is now before the Senate Judiciary Committee.

If enacted, the law would provide conditional protection against compelled testimony or production of documents related to information obtained or created by a covered person as part of engaging in journalism.

In order to obtain testimony or a document that would disclose the identity of a confidential source, a court must find that disclosing the identity of the source is necessary to:

prevent (or identify the perpetrator of) an act of terrorism or other harm to national security;
prevent imminent death or significant bodily harm; or,
identify a person who has, in violation of certain federal laws, disclosed information concerning trade secrets, individually identifiable health information, or nonpublic personal information.

The bill defines a "covered person" as someone who regularly reports and writes on matters that concern local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain.

‘Journalism’’is defined as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

Stay tuned.

First Circuit brings home the bacon for Fox media defendants

2009-04-07T10:35:00.005-04:00

In Levesque v. Doocy (No. 08-1814) the U.S. Court of Appeals for the First Circuit last month affirmed the district court's grant of summary judgment in behalf of the media defendants--Fox News Network and two individual anchors for the Fox & Friends program--in a defamation and false light case brought by a superintendent of schools in Maine.

In short, the case arose from an April 2007 incident at a Maine middle school, where a student placed a bag of ham on a cafeteria table where Somali Muslim students were sitting. A producer for Fox & Friends subsequently picked up an online story (published via Associated Content) about the incident and the reaction by school officials. That story included certain mischaracterizations and humorous references, which made it through the Fox producer's fact-checking process and found their way onto the air.

In affirming the district court decision, the court agreed with the district court's conclusion that even as to three statements (including the erroneous attribution to the plaintiff of a comment that "ham is not a toy") that were "materially false, reasonably susceptible of a defamatory meaning, and highly offensive for purposes of the false light claim," the plaintiff (a public official) failed to produce evidence that the defendants had acted with "constitutional malice" when making the statements.

The district court had determined that other statements were protected on multiple grounds, such as being substantially true or constituting protected rhetorical hyperbole.

The opinion by the First Circuit provides a good discussion of the Times v. Sullivan actual malice standard that applies to defamation claims by a public official.

Truth with consequences?

2009-03-18T20:27:00.007-04:00

In Noonan v. Staples, the U. S. First Circuit Court of Appeals today denied Staples' request for rehearing en banc. The court also stated that there is no need to certify the question at issue to the Supreme Judicial Court of Massachusetts.

Last month the court issued a controversial opinion in which the court held that, based upon an anachronistic Massachusetts statute, G. L. c. 231, sec. 92, a private figure plaintiff may recover for defamation based on truthful statements--yes, you read that correctly, truthful statements--made with "actual malevolent intent or ill will," as long as the subject statements relate to matters of purely private concern.

The case will now return to the trial court. Stay tuned.

A verdict, but questions remain.

2007-03-06T12:37:00.000-05:00

Lewis Libby--Vice President Cheney's former chief of staff--was found guilty today on four of five counts: obstruction of justice, false statements to the FBI regarding a conversation with NBC's Tim Russert, perjury before the grand jury regarding the Russert conversation, and perjury before the grand jury regarding a conversation with former Time magazine reporter Matthew Cooper.

Libby was found not guilty of making false statements to the FBI regarding a conversation with Cooper.

Reports on the testimony given at trial indicate that next to Libby's name, that of his former boss, Mr. Cheney, was heard most often. No surprise there, as Libby evidently has chosen to throw himself on his sword in an effort to insulate his former boss. As I indicated more than a year ago, all roads seemed to lead to an "undisclosed location," and that hasn't changed.

Libby's lawyer, Ted Wells, announced that he will move for a new trial, and if that is denied will appeal, and professed his belief that Libby ultimately will be vindicated and shown to be innocent.

Comments by jurors after the verdict was announced indicated that the jurors placed much weight on the alleged Russert conversation. At least one juror emphasized that the jurors felt sympathy for Libby, and wondered why he alone, and not others such as Karl Rove, were being charged with crimes.

A good question.

"Public criticism of public officials"

2007-02-08T10:36:00.000-05:00

That is how renowned media lawyer Bruce Sanford, from the Washington, D.C., office of Baker Hostetler, appearing on behalf of the Boston Herald before the Massachusetts Supreme Judicial Court this morning, characterized the subject matter of the reporting at issue in the Herald's appeal of the 2005 $2 milllion libel award to Superior Court Judge Ernest Murphy.

And that is exactly right.

While the judicial climate in the SJC courtroom was not as frigid as the weather outside, my impression is that the Herald's arguments were met with something cooler than a warm welcome.

Justice Cowin, in particular, focused repeatedly on the words "tell her," which she said changed the gist of the reported statements. Sanford, however, viewed those words as immaterial and insignificant, and commented that applicable law does not require reporters and sources to agree precisely. He also noted that none of the reporter's [district attorney] sources ever contacted the paper to say that he was misquoted.

While acknowledging that the reporter may have made one or two technical mistakes in his stories, Sanford emphasized that such mistakes do not equal substantial falsity.

Sanford also cautioned that under the standards of Times v. Sullivan, appellate judges are not charged with being "superannuated editors."

Arguing for Murphy, Suffolk Law School professor Michael Avery referred to what he called the reporter's knowing fabrications, and essentially argued that whatever the standard of review, there is overwhelming evidence to support the jury's decisions in favor of Murphy.

In posing questions to Avery, Chief Justice Margaret Marshall noted that her own research showed that on appeal few libel awards in favor of public officials, and judges in particular, are upheld on appeal.

Let's hope that is a harbinger of the Court's decision in this case.

0-7

2007-02-01T11:51:00.000-05:00

Matt Cooper testified yesterday. Make that 0 and 7.

Six and counting ...

2007-01-31T12:18:00.000-05:00

"Scooter" Libby is now 0-6.

In her testimony yesterday, Judith Miller was the sixth witness to testify that Libby discussed Valerie Plame's CIA status before the date given by Libby to the FBI and a grand jury. As noted in this Times article, Libby told the FBI and a grand jury that he first learned of the Plame-CIA connection on July 10, 2003, from NBC Washington Bureau Chief Tim Russert.

Ironic, Isn't It?

2007-01-23T09:51:00.000-05:00

Times.com reports that a defense lawyer for Anthony Pellicano, a private detective on trial for his alleged involvement in a wire-tapping scheme, is seeking subpoenas against two Times reporters to determine who allegedly leaked evidence, including taped conversations between Pellicano and a lawyer for mogul Kirk Kirkorian. Lawyers for co-defendant Terry Christenson recently filed a motion seeking an evidentiary hearing regarding leaks in the case.

Open Sesame

2007-01-18T12:32:00.000-05:00

While visiting Bob Ambrogi's site, check his post on another bill recently filed in Massachusetts seeking reforms in the state's open meeting law.

Maybe This Time?

2007-01-18T12:06:00.000-05:00

In Massachusetts, efforts are once again underway to establish a reporters' shield law. Bills are now on the dockets of the state house and senate to enact the Free Flow of Information Act. The law would prohibit compelled disclosure of sources of news or information procured by covered persons while providing services for the news media. It would also protect from disclosure notes and other material gathered by a covered person but not published in the news media. The text of the bills is not yet posted on the legislature's Web site, but you can find a copy of the text on the blog of fellow media lawyer Robert Ambrogi.

Dismiss Me Once ...

2007-01-18T12:01:00.000-05:00

On January 13, federal district judge Claude Hilton (E. D. Va.) again dismissed the defamation case brought by scientist Steven Hatfill against the Times and columnist Nicholas Kristoff. Hatfill claimed he was defamed by columns written by Kristoff about the government's anthrax investigations. A recent article in the Times provides the pertinent background.

As noted in that article, Judge Hilton previously dismissed the case on the grounds that there was no defamation. That dismissal was overturned by the federal court of appeals, and the Supreme Court declined to consider the case. Judge Hilton has not yet issued a memorandum, of decision, but I'll post a link as soon as it is available. Let's hope that this time the judge;s decision is bullet-proof, and that Hatfill decides to accept the second dismissal of his case.

I'm Back!

2007-01-18T11:47:00.000-05:00

Wow! Has it been almost a year since I last set fingers to keyboard on this page? I'm afraid I got caught up with other matters that consumed my time, and my media law blog fell by the wayside. Not quit gone, however, and definitely not forgotten.

It seems fitting to get rolling this week, with the Libby trial starting. And what better way to get started than by sharing some good news. Especially for the Times.

Everything Stops for Tea

2006-02-21T14:17:00.000-05:00

The Supreme Court did address one of the other cases I noted in my First Monday post, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, in which the government challenged the 10th Circuit ruling that upheld the right of a religious group to use a hallucinogenic tea during twice-monthly four-hour rituals.

In today's essentially unanimous opinion authored by Chief Justice Roberts (Justice Alito took no part in the decision, as argument was heard before he joined the Court), the Court affirmed the 10th Circuit decision upholding the district court's preliminary injunction barring the government from preventing the church's sacramental use of the tea.

A Hasty End to Hosty

2006-02-21T12:27:00.000-05:00

In my First Monday post back in October, I noted that Hosty v. Carter was one of the First Amendment cases that might be reviewed by the Supreme Court this term. Regretfully, the Court today denied cert, and will not hear the case. The Student Press Law Center issued a press release about the case, in which it had participated as an amicus, urging the Court to hear the case.

Half a Loaf ...

2006-02-09T11:28:00.000-05:00

Acting on a motion filed late last year by Dow Jones & Co., the U. S. Court of Appeals for the D. C. Circuit has released initially-redacted portions of the court's February 15,2005, opinion in the CIA leak investigation matter, regarding the contempt findings against now-former Times reporter Judith Miller and Time magazine reporter Matt Cooper. The court reissued the opinion on February 6, with the previously-redacted portions appearing in italics on pages 30 through 39.

The 2005 opinion redacted eight pages to preserve grand jury secrecy and to protect classified information. Unfortunately for those hoping to understand the court's reasoning (the court concluded that even if there is a qualified reporter's privilege, it is overcome in this case), those eight pages presumably set forth that aspect of the court's analysis.

In its February 3 opinion, the court notes that it is unsealing portions of the opinion containing grand jury matters that the special counsel confirmed in the indictment of Lewis Libby, or which are widely known. The court retained the redaction of certain portions of the opinion and one affidavit, on the grounds that the material would identify witnesses, reveal their testimony, or damage reputations of individuals who may never be charged with a crime.

While the unsealed portions provide some interesting details, much of it is, as the court notes, already known due to the indictment. Two relatively small redactions remain in the court's analysis of the need for Miller's testimony. We do get to read the court's analysis of testimony by NBC Washington Bureau Chief Tim Russert and White House Press Secretary Ari Fleischer, which was markedly contrary to Libby's own testimony on a number of points. In contrast, the entire analysis regarding the need for Cooper's testimony--approximately three pages--remains sealed.

Now that's the stuff I want to read!

We Should All Have Such Problems ...

2006-02-02T12:57:00.000-05:00

Donald Trump has sued the author (Times business reporter Timothy O'Brien) and the publisher (Time Warner Book Group and Warner Books, Inc.) of the book Trump Nation: The Art of Being the Donald for defamation. The suit was brought in the superior court in Camden, New Jersey.

The allegedly defamatory statements at issue? Among other things, the complaint alleges that the book defames Trump by claiming that he is not a billionaire, but, rather, has a net worth somewhere between $150 and $250 million.

For an interesting take on Trump's chances of succeeding, see Julie Hilden's column Donald Trump Sues for Defamation: Is His Net Worth a Fact, or a Matter of Opinion? at findlaw.com .

Onward and Upward

2006-01-20T09:48:00.000-05:00

The Boston Herald and the Boston Globe reported this morning that the trial judge yesterday denied the Herald's request to vacate the jury's $2.1 million award in the libel action brought by Superior Court judge Ernest Murphy against the Herald and one of its reporters.

The paper's motion was based, at least in part, on the outrageous post-verdict letters Murphy sent to Herald publisher Pat Purcell, some of which were on court stationery, in which Murphy, in effect, sought to bully the Herald into paying him more than the jury award, and dropping plans to appeal. The judge apparently felt that vacating the award was too extreme, and that an assessment of Murphy's conduct was better left to the appropriate commission.

The judge left open Murphy's motion to freeze the Herald's assets, which is reportedly based on Murphy's concerns over whether the Herald's media liability insurer will make good on the judgment if it is upheld on appeal.

Nationally-known media lawyer Bruce Sanford will represent the Herald in its appeal.

Subpoena Surfeit

2006-01-13T11:32:00.000-05:00

For a good overview of the status of reporter's privilege issues, check out Leaks and Lawyers, by CNN legal analyst Jeffrey Toobin, in the January 16 issue of The New Yorker. As Toobin aptly points out, the NSA leak investigation is certain to be the next chapter in this saga.

Veritas?

2006-01-13T11:12:00.000-05:00

There was no Crimson Triumph today when the Supreme Judicial Court of Massachusetts affirmed the trial court's dismissal of the Harvard Crimson's suit seeking certain records from the Harvard University Police Department.

The Court concluded that the records at issue were not--as the Crimson argued--"public records" subject to disclosure under the state's public records law. The Court rejected the Crimson's argument that the appointment of some of Harvard's police officers as special state police or deputy sheriffs--vesting them with powers unique to public law enforcement agencies--renders Harvard, a private entity, subject to the public records law.

Chief Justice Margaret Marshall, former General Counsel at Harvard, did not participate in the hearing or the decision.

From Alito's Lips to Elihu's Ears

2005-12-20T14:14:00.000-05:00

The Alito Project at Yale Law School has issued a report on opinions Judge Alito authored on the court of appeals. The report includes sections concerning free speech and religion.

Damned With Faint Praise?

2005-12-20T10:17:00.000-05:00

Back in October (Once More Into the Breach?, Oct. 6, 2005) I noted the ruling in USCFTC v. McGraw-Hill, where District Judge Royce Lambert, of the District for the District of Columbia, ordered McGraw-Hill to comply with an administrative subpoena issued by the Commodity Futures Trading Commission seeking documents and information from McGraw-Hill's Platts division. Although the court stated that Platts was within the scope of news gatherers entitled to the protection of the reporter's privilege, the court applied a balancing test and concluded that the privilege was abrogated in this case.

Earlier this month, the district court denied McGraw-Hill's motion to clarify and for a protective order, which the court treated as a motion for reconsideration. In essence, the decision states that McGraw-Hill merely reiterated arguments previously made, and that a request for a protective order should have been pursued earlier.

The court notes with approval negotiations in which the parties sought to "minimize the burden on McGraw-Hill without compromising the CFTCÂs investigation" and encouraged them to continue to "work together in good faith toward the common goal of protecting the public interest in truthful news reporting."

It Comes as No Surprise ...

2005-12-14T13:16:00.000-05:00

The News & Observer quotes Bob Novack as telling an audience at the John Locke Foundation in Raleigh, North Carolina, that he is confident that President Bush knows the identity of Novack's source for his Valerie Plame column, and quotes Novack as saying, "So I say, 'Don't bug me. Don't bug Bob Woodward. Bug the president as to whether he should reveal who the source is.' "

Hmmmm ... could it be that all roads lead to an undisclosed location?

No Mere Tempest in a T-Shirt

2005-12-07T11:13:00.000-05:00

Violent crime, including homicides, is up in Boston, as are fears of witness intimidation. The appearance of T-shirts bearing the slogan "Stop Snitchin'" understandably raised the ire of Mayor Thomas Menino and the police, as well as victims of crime, witnesses, and their families. They fear that such shirts, sported, presumably, by gang members or others on the wrong side of the law, will intimidate witnesses from coming forward or testifying at trial.

The mayor came out harshly against not just the shirts but the vendors selling them, stating at one point that he would send city officials into stores to remove the shirts from shelves. Later, police officers actually visited stores and "asked" merchants to stop selling the shirts. And what do you know ... They seem to have complied.

Such tactics of coercion and intimidation amount to nothing less than censorship, in clear violation of the First Amendment. The ACLU was right to come out swinging in a press release and letter to the mayor and the police commissioner.

As reprehensible as the message is, it is speech nonetheless, and is entitled to First Amendment protection, free from governmental censorship or restraint.

Perhaps the mayor would do well to remember that sunshine, not censorship, is the best disinfectant. More speech. Not less. Certainly the mayor is free to urge boycotts of merchants selling the shirts, and he should encourage members of the community to make their feelings known. (Indeed, now that the shirts have had some publicity, members of the community have spoken out against them and implored merchants not to sell them.) But threatening to pull shirts from shelves, and sending police officers or other city officials to visit stores to "suggest" that the shirts be pulled is over the line.

Might Makes Right?

2005-12-07T10:03:00.000-05:00

In Rumsfeld v. Forum for Academic and Institutional Rights, FAIR's attack on the Solomon Amendment (which would bar federal grants to a university if it, or any of its schools, precluded military recruiters from recruiting on campus) received a chilly reception from the Court at oral arguments on Tuesday.

The Solomon Amendment was in response to the policy of the American Association of Law Schools to require prospective employers, including the military, to pledge nondiscriminaiton on the basis of sexual orientation as a condition of on-campus recruiting. Over time, the denial of funding expanded from just Department of Defense funds to all federal funding.

The USDC for the District of New Jersey denied the govenrment's motions to dismiss as well as FAIR's motion for a preliminary injunction barring enforcement of the Solomon Amendment. On appeal, the Third Circuit found that FAIR had a likelihood of success on the merits of its First Amendment claims, and held that FAIR was entitled to the preliminary injunction. The government appealed to the Supreme Court.

For a good review of the issues and the arguments see Linda Greenhouse's article in the Times, and Tony Mauro's piece in the Legal Times. Copies of the briefs filed in the Supreme Court are available here.

KISS and Tell?

2005-11-30T16:47:00.000-05:00

A New York state court trial judge recently denied a motion to dismiss a defamation claim brought against KISS co-founder Gene Simmons, Viacom, and others, by Georgeann Walsh Ward, who alleges she had an "exclusive, monogamous romantic relationship" with Simmons back in the early 70s.

In 2004 a "rockumentary" entitled When KISS Ruled the World was aired on Viacom's VH1 network. Ward alleges, in essence, that she was defamed because she was portrayed as an unchaste woman when her photograph (she is never mentioned by name or otherwise identified) was shown a number of times, mostly during a segment highlighting Simmons's sexual proclivities.

The trial court determined that juxtaposition of Ward's photographs with commentary "recounting Simmons's repeated sexual encounters with female strangers is reasonable susceptible of a defamatory meaning."

See Julie Hinden's piece at FindLaw for her take on why the court is wrong.

Then This Week ...

2005-11-17T12:45:00.000-05:00

This week I attended a day-long Judges/Journalists Workshop sponsored by The Donald W. Reynolds National Center for Courts and Media in the National Judicial College, which was held at the Norton Woods Conference Center at the American Academy of Arts and Sciences in Cambridge.

The NCCM workshop was a great opportunity to see judges and reporters interact, and hear their respective concerns. The focus of the program was on access to judges, and, not surprisingly, the reporters want more access to judges, and the judges are, in general, reluctant to give it.

Video presentations showed real life examples of the opposite ends of the spectrum, with one judge dodging, then tossing a lunch tray at, a persistent reporter (after which the judge retreated to an elevator, elbow shielding his face in a manner that I am sure he later realized was all to similar to someone dodging a camera in a perp walk), to a calm, cool, and collected judge who spoke at length to a reporter all the while avoiding—appropriately—any comment on the substance of the case that had been before him.

As I recall, no one thought that the food flinging jurist comported himself properly, although there was much criticism of the “ambush” nature of the attempted interview.

While all of the media people, and media lawyers, seemed to like the way the other judge handled himself, a number of the judges were wary of his performance, even to the point of questioning whether his discussion with the reporter was a reportable (no pun intended, I assume) offense.

Later, one broadcast reporter noted that he was a bit uncomfortable with the obviously staged segment where the judge stood at his PC presumably scrolling through e-mail as the off-camera reporter talked about the volume of e-mail the judge received in response to what apparently was locally an unpopular decision.

The workshop was a good step in the direction of assessing, and ultimately improving, relations between the courts and the press, but it was obvious that there is quite a distance to go.

That Was the Week That Was

2005-11-17T12:34:00.000-05:00

Last week I was in New York for the Media Law Resource Center annual dinner, and the always excellent PLI Communications Law seminar.

The highlight of the MLRC dinner was a panel discussion moderated by ABC News reporter Terry Moran (pinch-hitting for Diane Sawyer), with local media hero Jim Taricani, Matt Cooper, Judith Miller, and Congressman Mike Pence, a sponsor of the federal reporter’s shield law bill. Not too long before the dinner, news broke that Miller resigned from The Times. Talk about a timely event.

Moran did a nice job of moderating. Taricani—in my mind—stood out as the real hero of the night. Jim has a guest commentary piece in the summer issue of The News Media and the Law, published by the Reporters Committee for Freedom of the Press, entitled Damned Proud To Be a Journalist. Read it.

Cooper came off as the nice guy he is, although some in the audience were troubled by his apparent resignation to the turning over of his notes and e-mail by his employer, Time magazine.

Miller—under the circumstances—comported herself affably. The fact that she was able to sit up on a stage and face a room full of media people and lawyers, just hours after the announcement of her departure from her journalistic home for almost three decades, offered, perhaps, some insight into why she has a reputation as a tenacious and tough reporter. Nothing wrong with that. She said she would be speaking further about the situation on her Web site.

Congressman Pence was, at least on the issue of a federal shield law, well-received by a crowd that was most likely blue state rather than red state.

The PLI seminar was once again the place to be for media lawyers seeking an annual dose of immersion in the subjects we all love, with speakers and panelists including some of the most respected media practitioners and academics, all shepherded along by former Times Vice Chairman James Goodale. Speakers included—in no particular order, and with no offense to those not listed here—media lawyers Floyd Abrams, Bruce Sanford, Boston’s own Joe Steinfield, and Lee Levine, Jane Kirtley (Silha Center), Lucy Dalglish (RCFP), Sandy Baron (MLRC), George Freeman (Times), Professor Burt Neuborne (NYU), and Judge Robert Sack. Topics included access, libel, newsgathering and privacy torts, commercial speech, the Internet, telecommunications, and, of course, prior restrain and reporter's privilege.

Bob Woodward Joins the Club

2005-11-16T23:34:00.000-05:00

The Washington Post reported today that Assistant Managing Editor Bob Woodward was deposed on Monday by Special Prosecutor Patrick Fitzgerald regarding conversations with three current or former Bush administration officials.

According to Woodward's own published statement, he testified that a current or former Bush administration official told him in June 2003 that Joseph Wilson's wife, Valerie Plame, was a CIA analyst working on weapons of mass destruction. Woodward testified after that official approached Fitzgerald and told him of the conversation with Woodward.

Each of the three officials (one of whom is Lewis Libby) had previously given a written waiver for reporters to testify, and Woodward states that each confirmed the waivers this month. Woodward has not been released to name his source publicly.

Libby Indicted on Five Counts

2005-10-28T11:59:00.000-04:00

Lewis Libby indicted for perjury, making false statements, and and obstruction of justice. All charges apparently linked to Libby's conduct during the course of the Special Counsel's investigation.

You'll Never Know

2005-10-27T10:57:00.000-04:00

While Harriet Miers's admiration for President Bush is now well known, we'll never know how she might have decided any of the First Amendment matters before the Court. Here, courtesy of The Times Web site, is a copy of her letter withdrawing herself as a nominee. No ... no puppy dogs this time.

The Secret Is Out

2005-10-27T10:49:00.000-04:00

The Eleventh Circut has ruled in U. S. v. Bergonzoli that secret docketing is unconstitutional, and also that courts cannot seal documents or proceedings without written explanation.

Coming to a Web Page Near You

2005-10-24T16:17:00.000-04:00

Presumably in anticipation of imminent announcements, Patrick Fitzgerald has set up a Web site. While he has managed to maintain a leak-proof office during the Plame-gate investigation, it appears he is prepared to release details--whether of indictments or merely a report--quicker than you can say "connected at the roots."

Reading List: Seth Mnookin's Hard News

2005-10-18T11:53:00.000-04:00

The Miller situation makes me think, of course, of the Jayson Blair ordeal The Times endured a couple of years ago. (A scandal largely responsible for Bill Keller becoming Executive Editor.) This in turn reminded me that I have been remiss in not posting about an excellent book I read late this summer: Seth Mnookin's Hard News: The Scandals at The New York Times and Their Meaning for American Media.

Read it. It's a great book. Five stars.

Hard News has three parts (Before, Spring 2003, and After), and provides a good overview of the history of The Times, the workings of the newsroom, Blair's quick rise as a reporter, details of the Blair fiasco, and how the Times dealt with it.

Mnookin concludes the book with a thoughtful Note on Sources, more than 250 source notes, and a good bibliography.

If this is a topic you followed, or you are a Times-ophile, this book is a must read.

I understand Seth currently is working on a book about baseball. What's next? Hmmm ... Plame-gate anyone? We should be so fortunate.

Curiouser and Curiouser Redux

2005-10-18T09:56:00.000-04:00

I haven't posted on the Judy Miller situation lately. Bottom line: I think that The Times (and its lawyers) did the right thing by sticking by the reporter, standing up for important First Amendment rights and principles, and fighting the good fight. That said, it now appears that this matter is devolving into a journalistic nightmare for The Times.

There is an increasing stream of coverage and opinion on the Judy Miller-Plame-Wilson-Rove-Libby-WHIG situation. By way of interesting backdrop, Josh Marshall's excellent blog, Talking Points Memo, has a link to a summer 2004 piece in New York magazine by Frank Foer, as well as a steady flow on news and comment on this matter. And The Judy Chronicles, The Judy War and Reporter, Times Are Criticized for Missteps by Howard Kurtz in his Washington Post Media Notes are all on my lunch-time reading list for today.

If you are reading this, you no doubt already have read the in-depth piece and Miller's personal account in the Sunday Times.

The lengthy piece by Adam Liptak, Don Van Natta, and Clifford Levy was a good effort, albeit one limited by a lack of cooperation by Miller. (The article states that in two interviews, Miller "generally would not discuss her interactions with editors, elaborate on the written account of her grand jury testimony or allow reporters to review her notes.") The Times also has posted related documents on its Web site. The article and the additional on-line material are a good start. Let's hope we see more from The Times.

Miller's personal account perhaps raised as many questions as it answered. She couldn't remember where she got the name "Valerie Flame"? She thought she discussed the Wilson-Plame matter with other sources, but could not recall any by name? She claims to have had a security clearance, but could not be sure whether she discussed classified information with the number one advisor to the vice president? Why were her notes so vague? Doesn't she keep track of the people she interviews?

One thing that struck me in reading Miller's account: she never mentions when she promised, or when Libby demanded, confidentiality as a source. OK, maybe it is implied, but isn't it a little surprising that she does not make a point of noting the promise of confidentiality in her account?
Speaking of confidentiality, while I'm not expecting that Miller needed to meet with Libby in a garage after seeing a flag in a planter, or whatever, how secret or confidential could their relationship be when they met for a two-hour breakfast at the St. Regis Hotel located perhaps 500 feet or so from the White House?

Miller did state that she was surprised at the statement in Scooter Libby's letter about public reports of testimony by other reporters indicating that they did not discuss Plame with him, as she felt it could be perceived as an effort by Libby to say that she, too, would say she had not discussed Plame with Libby. You think?

And what about those aspens turning in clusters because their roots are connected? What did she think of that statement in Libby's letter? She never really says. Instead, she relates an incident when, unrecognized by her, Libby--bedecked in jeans, cowboy hat, and sunglasses--approached her at a rodeo in Wyoming, shortly after Miller attended a national security conference in Aspen in August 2003.

Aspens? Connected roots? An incognito Scooter dressed in his dude ranch finest? This sounds more like code or overly-written excerpts from an in-the-works spy novel by Libby, rather than a letter he surely knew would be widely published. Last night on MSNBC's Hardball, Chris Matthews quite understandably could not stop asking his guests what they thought of that portion of Libby's letter.

Once More Into the Breach?

2005-10-06T13:33:00.000-04:00

Which do you want first, the good news or the bad? I try to be a glass half-full person, so let me start with the good news.

In USCFTC v. McGraw-Hill, District Judge Royce Lambert, of the District for the District of Columbia, was called upon by the Commodity Futures Trading Commission to order McGraw-Hill to comply with an administrative subpoena seeking documents and information from its Platts division. The commission sought the material as part of an investigation of an energy marketing company. McGraw-Hill objected on the grounds of reporter's privilege. The commission essentially responded that there is no privilege because Platts is not engaged in traditional news gathering.

In his October 4, 2005, memorandum opinion (you may need a Pacer account to access this--the docket number is Misc. No. 05-235) Judge Lamberth found that "Platts engages in journalistic analysis and judgment in addition to simply reporting data," and while Platts might not be involved in "what is most commonly considered traditional news gathering, the privilege applies to a broad range of news gatherers."

That's the good news.

The court then noted that the commission's investigation was neither "a criminal action nor a purely civil matter," and that such work did not reach the level of public interest afforded to a grand jury proceeding.

OK, still pretty good.

The court then stated, however, that the investigation was more akin to a criminal proceeding than to a purely civil mater.

Here we go . . .

After noting that the scope and authority of the CFTC is similar to a grand jury, the court stated that while the "strong preference for abrogation" of the privilege criminal cases does not apply here, the matter calls for a "more qualified view of the privilege than would be appropriate in a purely civil case."

Applying the requisite balancing test, the court found that Platts's information was essential to the CFTC investigation, and that there were no other "reasonably available" sources for the information. Thus, the court concluded that while Platts is entitled to claim the reporter's privilege, it is abrogated in this case by the public interest represented by the CFTC investigation, and the CFTC's showing of need and exhaustion of other sources.

No word yet on McGraw-Hill's next step.

Globe's Petition Denied

2005-10-04T09:46:00.000-04:00

One of the media cases that the Court will not substantively address this term is the Boston Globe's appeal of the $2.1 million libel judgment against it in the case of Lois Ayash v. Dana-Farber Cancer Inst. et al. The denial of the Globe's petition for a writ of certiorari was among the summary dispositions issued on the first day of the term. (Chief Justice Roberts did not take part in the decision.)

In Ayash, the Supreme Judicial Court of Massachusetts upheld the trial court's sanction imposed upon the Globe for refusing to reveal a confidential source. The trial court entered a liability judgment in favor of Ayash and against the Globe, thus turning the trial as to the Globe into what was in effect an assessment of damages.

While most of the confidential source cases receiving publicity of late have involved refusals of reporters to reveal confidential sources in the context of criminal investigations, Ayash demonstrates that claims of confidentiality can receive just as frosty a reception in civil cases.

First Monday ...

2005-10-03T11:22:00.000-04:00

Each day in my e-mail I receive a "word of the day." When I opened my e-mail this morning--this being the First Monday in October, and the inaugural session of the Roberts Court-- I saw that one of the words waiting for me from the folks at Merriam -Webster was tabula rasa. How apt, fresh on the heels of President Bush's announcement this morning that he is nominating Harriet Miers (current White House Counsel, and until late last year Deputy Chief of Staff under Karl Rove) as an Associate Justice of the Supreme Court

If Ms. Miers in confirmed by the Senate, we will have her completely blank slate close aside the relatively blank slate of Chief Justice Roberts. While it will be interesting to see what Chief Justice Roberts and Ms. Miers will scribe generally upon those slates in the terms to come, the new term itself will be a source of interest to those who follow developments in media and First Amendment law.

The Court's docket this term includes Rumsfeld v. FAIR, in which the government seeks to overturn the Third Circuit ruling holding the Solomon Amendment (requiring equal access to campuses for military recruiters as a condition of receiving federal funds) in violation of the First Amendment.

In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal the government challenges the 10th Circuit ruling that upheld the right of a religious group to use a hallucinogenic substance.

In Garcetti v. Ceballos, the government seeks to overturn the ruling by the 9th Circuit that upheld the First Amendment right of a public employee to speak out on matters of public concern.

In Hosty v. Carter, the Court is asked by the (former) student press plaintiffs to consider their challenge to the 7th Circuit ruling dismissing the case against the sole remaining defendant, Dean Carter. The district court, which was upheld by a three-judge panel, had reasoned that Hazelwood v. Kuhlmeier is limited to high school newspapers where students are working on the paper as part of their course-work. As such, the district court held, university officials had no right to cut off funding to a student newspaper based upon content (after the student editors rebuffed the university's demand to impose viewpoint-related prior restraint).

In reversing the three-judge panel after rehearing en banc, the 7th Circuit ultimately concluded, in a 7-4 decision (yes ... Judge Posner was with the majority), that the lone remaining defendant, Dean Carter, had qualified immunity from liability, because "[d]isputes about both law and fact make it inappropriate to say that any reasonable person in Dean Carter's position in November 2000 had to know that the demand for review before the University would pay the [paper's] printing bills violated the first amendment."

Chief Justice Roberts's confirmation hearing admission that he has "not dealt with a lot of First Amendment access cases" and that "this is not an area that I feel completely up to speed on the precedents" may soon be the subject of change.

He did refer to "sunlight being the best disinfectant," so let's hope Chief Justice Roberts keeps Justice Brandeis in mind in the coming months.

Free at Last ...

2005-09-29T23:07:00.000-04:00

The Times Web site reported tonight that Judith Miller was freed from jail today in exchange for her agreeing to testify before the federal grand jury investigating the Plame leak matter. The agreement follows Miller's direct receipt of a waiver from her source, Scooter Libby.

Not a Moment Too Soon

2005-08-26T11:33:00.000-04:00

Although this is not something that directly concerns the First Amendment and the media, I would be remiss not to note the return of Maureen Dowd to the Times's Op-Ed page (Wednesdays and Saturdays). My Private Idaho, from the August 24 edition, shows that she has returned from her book leave with her wit, insight, and keyboard as sharp as ever.

Blanket Gag Opposed by Groups

2005-08-16T14:48:00.000-04:00

A local rule proposed for the U. S. District Court for the District of Rhode Island, Proposed Local Rule 110, Disclosure of Non-Public Information, has drawn pointed opposition in comments jointly submitted on behalf of the Reporters Committee for Freedom of the Press, the New England Press Association, the Newspaper Association of America, the Radio-Television News Directors Association, and the E.W. Scripps Company. In an August 11, 2005, comment letter to the court clerk, the authors note that the proposed rule, which "would impose a gag order in every pending case on all trial participants and court employees," would limit the free flow of information and violate the free speech rights of those persons covered by the rule. Let's hope that the court--home, as you will recall of the contempt order that resulted in reporter Jim Taricani being sentenced to home confinement last year--heeds the well-taken points in the letter.

First the Special Prosecutors, ...

2005-08-11T17:06:00.000-04:00

Check out Mark Jurkowitz's Don't Quote Me column, Journalism's Next Big Battle, in the August 12 edition of The Boston Phoenix. Mark looks at the plight of the four reporters held in contempt for refusing to reveal sources during discovery in Wen Ho Lee's civil Privacy Act suit against various federal agencies (see below at August 2, "Worried?" and June 28, "More Than Disappointing Days"), and notes the concerns of First Amendment advocates that "this case will do more damage to investigative journalism than anything that comes out of the Plame probe."

Support for Judy Miller, at Home and Abroad

2005-08-11T09:45:00.000-04:00

Miami-based Inter-American Press Association and Paris-based Reporters Without Borders (Reporters sans frontieres) have voiced concern for the jailing of Times reporter Judith Miller. The IAPA held a press conference yesterday to protest pressure on US reporters to reveal sources, and to show solidarity for Ms. Miller. The IAPA delegation also met with Senator Richard Lugar, the proponent of the federal media shield law currently under consideration, and later met with Ms. Miller at the federal detention center in Virginia. RWB last month published an open letter to Senator Arlen Specter, chair of the Senate Judiciary Committee, citing Ms. Miller's imprisonment, and urging adoption of the Free Flow of Information Act of 2005. In reading through the Web sites of each organization it is interesting to see that the overwhelming focus of both groups usually is on lack of press freedom in other countries.

Reading List: Speaking Freely by Floyd Abrams

2005-08-10T11:30:00.000-04:00

If you read just one book on media law this year, make it Speaking Freely, by Floyd Abrams. In addition to being an entertaining and enlightening look inside some of the highest profile media and First Amendment cases of that past 35 years--including the Pentagon Papers, Wayne Newton's libel case against NBC, the Brooklyn Museum of Art case, and the case challenging McCain-Feingold-- this book, by the country's widely-acknowledged dean of First Amendment litigation, serves as a good primer for those not versed in First Amendment and media law, and as a refresher for those already familiar with the law.

Bad News or Bad Views?

2005-08-03T10:13:00.000-04:00

Did you read Judge Posner's Bad News piece on the "embattled" conventional media in the July 31 New York Times Book Review? If so--or even if you missed it--check out Slate's August 1 Press Box for a critique by Jack Shafer, Judge Posner's Incorrect Verdict .

Worried?

2005-08-02T11:05:00.000-04:00

I was just mulling over the past year or so. Let’s see … TV investigative reporter Jim Taricani under house arrest for refusing to disclose a source of a videotape. A harsh sanction imposed against the Boston Globe for refusing to disclose a reporter’s source during discovery in a defamation action was upheld by Massachusetts’s highest court, resulting in a seven-figure judgment against the paper. Times reporter Judith Miller sits in jail for refusing to disclose her source of information concerning the Valerie Plame leak—even though Miller never published a story on the topic. Time magazine reporter Matt Cooper got a last-minute get out of jail free card from his source, and Time bit the bottom-line-bullet and disclosed information sought by a special prosecutor rather than subject itself to likely substantial monetary sanctions. A federal appeals court upholds contempt findings against four prominent journalists (Jeff Gerth and James Risen of The Times, Josef Hebert of the AP, Bob Drogin of the Los Angeles Times, and former CNN reporter Pierre Thomas) for refusing to reveal their sources when questioned in depositions in Wen Ho Lee’s privacy act suit against the government. The Cleveland Plain Dealer sits on two stories, of “profound importance,” based upon illegally leaked (but presumably legally obtained) documents due to fear of Miller-like reprisals if it refuses to reveal its sources (one of which it then published after it was outed by another media outlet.) Oh, and let's toss in a prior restraint or two, and a few ill-fated FOIA requests.

Then I read something I’m excerpting here:

The Constitution states that freedom of speech and freedom of the press are fundamental rights to be enjoyed by all citizens; however, the Government tightly restricted these rights in practice. … The Government continued to threaten, arrest, and imprison many individuals for exercising free speech. … A wave of detentions late in the year appeared to signal a new campaign against writers. … Formal and informal guidelines continued to require journalists to avoid coverage of many politically sensitive topics. These public orders, guidelines, and statutes greatly restricted the freedom of broadcast journalists and newspapers to report the news and led to a high degree of self-censorship. … Journalists who reported on topics that met with the Government's or local authorities' disapproval continued to suffer harassment, detention, and imprisonment. … In September, [a] New York Times employee … was detained and later formally charged with leaking state secrets shortly after the newspaper published an article … . A wave of detentions late in the year appeared to signal a new campaign targeting writers, political commentators, and academics. … In addition to criminal prosecution of writers, some government officials used civil lawsuits to block controversial writings. ... During the year, journalists and editors who exposed corruption scandals frequently faced problems with the authorities, and the Government continued to close publications and punish journalists for printing material deemed too sensitive. … Some citizens continued to speak out and publish on controversial topics, despite the Government's restrictions on freedom of speech and the press.

Scary, isn’t it? For the full version, read the State Department's February 2005 Country Report on Human Rights. About ... China!

Yup ... me, too.

Agreed.

2005-08-02T09:44:00.000-04:00

Check out the op-ed piece Rovegate: 'curiouser and curiouser' by Lee Michael Katz at NorthJersey.com. Sounds right to me.

Prove it, Mr. President!

2005-07-14T13:10:00.000-04:00

Two points.

First, Karl Rove should resign or be fired. It's that simple. Regardless of whether he technically violated the letter of the law regarding disclosure of covert operatives, he likely violated its spirit. His subsequent denials and cover-up have compounded his wrongdoing. Shouldn't we expect those in the inner-most circles of the White House to meet, at a minimum, a standard of avoiding even the appearance of impropriety?

Second, President Bush should grant Judith Miller a full pardon. She is in jail as a direct result of Mr. Rove's shenanigans. Only a pardon can set things right, and attempt to undo some of the harm done to our First Amendment rights--and this has affected all of our rights, not just those of the press.

Mr. Rove should be out of the White House, and Ms. Miller should be out of jail.

President Bush recently told the board of the Radio-Television News Directors Association, "Look, I'm a First Amendment guy." I say prove it.

"A chilling conclusion to an utterly confounding case."

2005-07-06T16:17:00.000-04:00

Well put by Bill Keller, the Executive Editor of The Times. And it is a frigid and sad day indeed for the press--and the public who benefit from and depend upon a robust and vigorous press--that a reporter such as Judy Miller is carted off to jail for refusing to disclose her source. Remember, of course, that Miller never published a story about Valerie Plame. So in effect she is being jailed for ... what? For listening to a source? For thinking about what the source said? For not "cooperating" with the government in an investigation of ... well, I guess we don't know that, do we? Such a scenario seems to be getting eerily close to being hounded by the mind police.

Floyd Abrams was eloquent, as usual, in his post-hearing interview on MSNBC. Try to catch it in the repeats later if you missed it live.

"Curiouser and Curiouser" Indeed

2005-06-30T22:07:00.000-04:00

Time Inc. today announced it would comply with the court's order and produce the requested documents in its custody. (Apparently to the disappointment of its reporter, Matt Cooper. As well as to the Times, which issued a statement critical of Time Inc.'s move.) While the Special Prosecutor undoubtedly views this as merely complying with a court order, and Judge Hogan apparently thinks that lacing his remarks with phrases from Lewis Carroll (and not to be too pedantic here, but Alice thought things were "curiouser and curiouser" in Through the Looking Glass, where Alice entered Wonderland through a mirror, not after she went down a rabbit hole in Alice in Wonderland, as Judge Hogan stated) somehow softens the impact of this blow to the First Amendment, the press, and the public's right to know, the point is that the press should not be put in the position of having to chose. If there is a lack of clarity as to reporters' rights under federal law in this regard, then the Supreme Court should have taken this opportunity to clarify the post-Branzburg haze. Does anyone else feel a chill setting in? And is anyone else annoyed by Robert Novack's cryptic smugness about all of this?

Court Web Page

2005-06-29T20:08:00.000-04:00

The District Court for the District of Columbia has a Web page with links to pertinent recent materials filed in the Miller/Cooper case, In Re: Special Counsel Investigation. At a scheduling hearing on Wednesday, June 29, the court ordered Miller and Cooper to appear for a final hearing regarding their incarceration on Wednesday, July 6.

www.judithmiller.org

2005-06-29T19:41:00.000-04:00

Judith Miller has set up a Web site concerning the contempt proceeding against her. In addition to information about Miller, the news section of the site contains excerts and links to several articles, editorials, and commentary pieces from around the country.

Now You See It ...

2005-06-28T13:45:00.000-04:00

Better put, here you see them, there you don't. In a more or less--shall I say it--Solomon-like decision in McCreary County v. ACLU,the Supreme Court on Tuesday held that while a monument to the Ten Commandments may remain in place on the grounds of the Texas state capitol building, printed versions of the Ten Commandments hanging on the walls of two Kentucky courthouses did not pass muster under the First Amendment. In a decision that is sure to disappoint as many people as it will please, it is apparent that context is key. Whether this will clarify or muddy the waters remains to be seen.

Make That Disappointing Days

2005-06-28T13:28:00.000-04:00

Fast on the heels of the Supreme Court's rejection of the Miller and Cooper petitions for cert, the U. S. Court of Appeals for the District of Columbia Circuit today upheld contempt findings against four reporters (the AP's Josef Hebert, New York Times reporter James Risen, L. A. Times reporter Robert Drogin, and former CNN, now ABC, reporter Pierre Thomas) who refused to reveal sources for their stories regarding Wen Ho Lee in depositions taken by Lee in connection with his Privacy Act suit. The court also decided that there was insufficient evidence to uphold the contempt finding against a fifth reporter, Jeff Gerth (also of the New York Times).

Disappointing Day for Miller and Cooper

2005-06-28T12:52:00.000-04:00

The Supreme Court's denial yesterday of the petitions for cert filed in the Judith Miller (reporter for the New York Times) and Matthew Cooper (reporter for Time magazine) cases, in which they sought appeal of the contempt findings against them arising out of the grand jury investigation into the Valerie Plame matter strikes a blow not just to the rights of Miller and Cooper, but to the press at large, and to all of us who benefit from a free and vigorous press. Although the current make-up of the Court certainly does not reflect any reporter's dream bench, it is disappointing that the Court passed by this opportunity to address the reporter's privilege issues that have hung in the balance, at least at the federal level, since the Branzburg decision 30 years ago.

The Times issued a statement, in which Miller succintly expresses her reaction to the Court's decision.

The cases now return to the district court, where U. S. District Judge Hogan will hear arguments Wednesday regarding sentencing. Miller and Cooper each face up to 18 months imprisonment. Just for doing their jobs. And not breaking any law.

Welcome to my blog!

2005-06-14T13:54:00.000-04:00

Please bear with me while I get the hang of this!