Winners

Paul Meierant (B.A. 1994)
A graduate of the College of Liberal Arts, Paul Meierant has been a dedicated volunteer for both the college's Alumni Society board, and the Alumni Association.

Recognizing how his own liberal arts background taught him to think across disciplines to find innovative solutions, Meierant has become a champion for career services for students. In addition to serving as the president of the CLA Alumni Society, he has participated in many student recruitment and mentoring activities, and has guided several career development initiatives for undergraduates.

For the broader University, Meierant has been a driving force behind the Alumni Association' efforts to engage recent graduates, and its initiatives with Target Corporation to build community among University and other Big 10 alumni, and to recruit them as mentors. In doing so, he has given countless students a broad view of their education and the opportunities available to them for work and service.

Stephen Litton (B.A. 1965; B.S. with Distinction, 1965; D.D.S. 1967; Ph.D. 1972)
An alumnus with four degrees from the College of Liberal Arts, the Graduate School, and the School of Dentistry, Stephen Litton continues to demonstrate why he was the Alumni Association's 2006 Volunteer of the Year.

Despite a busy orthodontic practice and service in his professional community, Litton has served two terms on the Alumni Association's National Board, founded and continues to coordinate the Orthodontic Alumni Association, and is now president of the School of Dentistry Alumni Society.

He has been a driving force on two major campaigns, giving dental students one of the world's premier clinical laboratories; and created the Orthodontic Residents Endowment Fund to give students the opportunity to travel and interact with future colleagues.

Most importantly, Litton has passed along his own generosity and enthusiasm to hundreds of alumni, encouraging them to reconnect with the University for the benefit of the student experience.

Tom LaSalle
A graduate of the College of Liberal Arts, and founder and president of the LaSalle Group, which helped to develop many campus building projects, Thomas LaSalle has long had an impact on the University's physical presence.

Moreover, the care and commitment he exhibited when guiding development of McNamara Alumni Center, the Gateway Plaza, and the Alumni Wall of Honor led him to nurture the University's alumni spirit as well.

Since first being elected as an at-large representative to the Alumni Association; through his service as treasurer, chair of the finance committee, vice president, president-elect, and national president; and beyond in helping to make TCF Bank Stadium a reality, LaSalle has worked tirelessly to encourage fellow alumni to share their talents and join him in being ambassadors for the University of Minnesota, its students, and its mission of education, research, and outreach.

Company site visits provide students a chance to see different work environments, to meet and network with CLA alumni, and to hear from hiring managers and recruiters within an organization.

In the past year, about 100 CLA students participated in company site visits. We have taken groups of CLA students to visit the Minnesota Timberwolves/Lynx, C.H. Robinson Worldwide, ShopNBC, and Target. The students met alumni, managers and executives within these organizations. All of these visits were a huge success and not only gave the students a valuable experience, but also connected employers with potential interns and future employees.

A Typical Site Visit
A typical company site visit usually consists of an office tour, a company overview, a panel discussion with employees, and additional time for networking. Employees might also talk about the value of a liberal arts degree and opportunities for liberal arts students and graduates within their organization.

Hosting a Site Visit for Your Company
We are looking for organizations that would like to hold a site visit for CLA students. If your organization would like to participate or if you would like to suggest an organization, contact Meaghan VanderSanden at 612-626-4482.

Learn more about how companies and organizations can connect with CLA students.

From our company partners
"Over the last several years C.H. Robinson Worldwide, Inc. has built a strong partnership with the College of Liberal Arts that has included several student/staff visits to our corporate and sales offices in Eden Prairie. It appears we peak their interest based on CLA students' enthusiasm and attentiveness during these visits. Most recently, we hosted a freshman class visit and many of these CLA students interacted greatly by asking excellent questions regarding C.H. Robinson's business plan in this economy, our corporate culture and career opportunities--very impressive for first-year students!"
Cathy Anderson at C.H. Robinson

"The CLA Site Visit Program is a great opportunity to introduce liberal arts students to the Target Company. Students are able to gain knowledge not only about our opportunities, but also our company and culture by actually being on site for presentations, meetings, and tours."
Amy Capes, Target Stores

Ms. Hargrove-Simon is enrolled in the Master of Liberal Studies program at the University, with a concentration in Slavic area studies. She also has an interest in theater and film, and was the recipient of the Danny Arnold Writing Scholarship for a screenplay while studying at the University of Wisconsin-Superior.

Ms. Hargrove-Simon replaces Kathleen Paul, who was the Silha Center administrative assistant for nine years. Ms. Paul has retired to start her own business. Both Ms. Paul and Ms. Hargrove-Simon see the programs and missions of the Center as vital to the Center's continued growth. Ms. Hargrove-Simon says, "As a consumer and student of the news, I feel very fortunate to be so closely involved with the journalism world, particularly at this point, where it intersects with academia and research."

Silha Bulletin (SB): When did you first hear of thi term, "Civic journalism," can you remember?

Davis Merritt (DM): Well, I call it public journalism...And I heard it when Jay Rosen and I made it up and that was about '92, I guess. We'd been talking about this idea for some time and realized that we needed to give it a name though we didn't want to give it a name, but needed to have something to call it because it's about as much about public life as it is about journalism, we decided to call it public journalism.

SB: How would you define public journalism?

DM: I'm struggling here because I couldn't give you a two-sentence paragraph definition of journalism itself. Public journalism is journalism that seeks to help public life go better by engaging people in it at a deeper level. You go far beyond that, but that's the nut of it.

SB: Now, do you see public journalism as blurring the lines between news and business or....

DM: Oh, no!

SB: How so?

DM: Well, how do you see it as blurring? I mean, it doesn't even arise. I'm a journalist. That question doesn't even arise.

SB: And so, you would not see any conflicts between trying to increase circulation through this or anything? It's purely from a civic, public point of view?

DM: Well, all journalism aims at increasing circulation. Investigative journalism has one of its aims increasing circulation, right? Newspapers have to sell in order to be read. But that's not what drives this. What drives this is the dilemma in public life and the fact that journalism is in trouble and public journalism is our response, to those dilemmas.

SB: How would you say journalism is in trouble?

DM: Take a look at any survey you want. Penetration is going down, circulation on almost every newspaper in the country is going down. Any surveys you see of credibility of journalists, any surveys you see about believability, every measure I've ever seen in the last 10 years (shows) journalism has been in sharp decline. I believe that one of the reasons journalism is in trouble in things like credibility and authority is that the way we have told the news in the last 10 or 15 years has relentlessly sent the message to people, "This isn't about you and your concerns, this is something that is going on that you are helpless to affect, the political system, the things going on in public life are far beyond you, you're not involved, you're spectators, if not victims." And you know, that's not the only way to do good journalism. There are ways to do good journalism that don't create that gap, and that's what we're trying to figure out how to do.

SB: How is public journalism different from good old-fashioned reporting by journalists who have routinely questioned people about issues and their priorities?

DM: Oh, in that sense, it may not be any different, but I don't know many journalists who have done much listening to people. If they do, it is not reflected in what I see in newspapers...Conflict is the heart of democracy, and we do need to address it, but we write about conflict, for instance, in very narrow ways that exclude most people from the discussion. We write about it using experts and absolutists on quote, the two sides, unquote, instead of also including that vast middle ground where most peoples' views are held. I mean, have you read E.J. Dionne, Jr.'s book, Why Americans Hate Politics? Well, he makes the point very well about politicians framing issues at the extremes for their own purposes, and that this is the major reason, he says, that Americans are disenchanted and cynical about politics is because they're not part of the discussion. They don't hear their views in the discussions, and you know, the question that I have is, where do most of these Americans who hate politics learn most of what they know about politics? From journalists. Because we frame stories in exactly the same way. And it's that kind of habit of mind that we're seeking to change. We're not saying that a lot of the journalism that is going on and has been going on is bad. There's a lot of quite good journalism that is going on. But it's insufficient, a lot of it, in that it, rather than engaging people, in the journalism and in the process of public life, it repels them. Well, it doesn't have to be that way. By changing some of the habits and some of the conventions that we have fallen into such as the way we deal with conflict, I believe that we can do good journalism, continue to do good journalism, but also draw people back into both journalism and public life. I can't prove this, but again, this is our response to the twin dilemmas of public life and journalism. If somebody's got a better response, let's hear it. But this is our response.

SB: Now you say one of the weaknesses of journalism today is that journalists don't listen. What are some of the other weaknesses?

DM: This kind of adversarial attitude toward all institutions, including the institution of the public. Journalism is in a defensive crouch all the time and there are some reasons for that, and I understand it. I've been a working newspaperman for 42 years and I know about all there is to know about it, from that point of view. But, you know, we need a healthy skepticism. My observation is that what used to be healthy skepticism has just turned into just this snarly adversarialism about everything. And I think that's reflected in our newspapers, and I think that's one of the habits we have to recognize. Another one is we have to recognize that we frame stories - that's what journalists do. And that the way we frame stories needs to be a more reflective and thoughtful process, when it can be, than the way we do it now. That's another habit we need to develop. We need to understand the distinction between objectivity and detachment and understand that journalistic objectivity is a good thing if it exists, and I contend it does, that there is such a thing as journalistic objectivity, having it meaning fairness and balance and accuracy and a clear, cool-headed look at the facts. Journalistic objectivity is an important thing and we must maintain it, but detachment, this sort of "we're not part of anything notion, uh, doesn't work well for us." It separates us from our sources, it separates us from our audiences, it separates us from the whole rest of the world. It's mandatory that journalists care about the implications of their work, and so often when we're doing stories, the way the frames we choose to do stories are frames that say "you're not involved here." Well, whether we like it or not, or whether we're comfortable with it or not, the way we do journalism affects the way public life goes. That is inescapable. What we choose to put in the story, what we choose to leave out, how we choose to emphasize things within a story, all of those things affect what happens. And so, we are kidding ourselves if we say, "Oh, no, we're just good observers, sitting off here on a mountain and neither responsible nor accountable for the outcome of what we do." That's an unethical and immoral position. There's a difference between journalistic objectivity and detachment. Definitely.

SB: If you met a reader who knew nothing about this concept and was complaining to you about the lack of civic pride, or apathy, how would you tell him that this might benefit his community and perhaps get some of that civic pride back?

DM: Well, because, and I don't know whether civic pride is the right word, I assume that if people are more engaged in civic life, they would have some pride about it. Here's the thing. Journalism is totally dependent upon democracy working well. And democracy is totally dependent upon journalism. There's a total interdependence there. And we as journalists have a stake, whether we like it or not, and whether democracy works well and whether people are engaged. If people are not engaged in public life, they have no need for journalists. Because what we do is about public life for the most part. And if people continue to withdraw from concerns about public life and engagement in public life, our downward trends are going to continue and accelerate. We have a vested interest as journalists as well as democratic citizens and people being engaged in public life. And I make no apology for the notion that democracy works best when people are fully engaged in it. That's sort of the essence of the idea.

"If Jay and I knew we were starting 'a movement' we might have gone about this quite differently," Merritt explains. "We thought that it was possible to engage a profession like journalism in a useful conversation about change. We found out it wasn't. There is a total unwillingness on the part of many, many people in journalism...They say, 'We just don't need to change. I've had a number of people say, 'There's nothing wrong with journalism today.' Well, I wonder where these people live."

Merritt will deliver the 1997 Silha Lecture at 12:15 p.m., Tuesday, November 4, at the Humphrey Center's Cowles Auditorium on the West Bank of the University of Minnesota's Twin Cities Campus. In his lecture, "Disconnecting from Detachment" Merritt will explore the inextricable connection between journalism and democracy threatened by journalistic detachment. Sponsored by the Silha Center for the Study of Media Ethics and Law, the lecture and reception following are free and open to the public.

In the ensuing debate there has even been disagreement over the concept's proper name. Some call it public journalism, others use the term "civic journalism."

"I call it public journalism," Merritt says. "I heard it when Jay Rosen and I made it up, and that was about '92. We had been talking about this idea for some time and realized that we needed to give it a name, even though we didn't want to give it a name. But we needed to have something to call it. And because it's as much about journalism as it is about public life, we decided to call it public journalism."

The senior editor of the Wichita Eagle in Wichita (KA), where he has been for 22 years, Merritt, 61, is also a consultant to Knight-Ridder Newspapers on public/civic journalism. After graduating from the University of North Carolina, Chapel Hill, he began his journalism career at The Charlotte Observer (NC) where he spent 12 years in several reporting and editing positions, before moving to Washington, D.C., as the newspaper's Washington correspondent. Merritt also worked for The Boca Raton News (FL) and Knight-Ridder newspapers, then joined the Wichita Eagle in 1975. He is also a Morehead Scholar and a member of the Kappa Tau Alpha honorary society.

Included among his numerous awards for local government writing is the 1997 Bart Richards Award for Media Criticism for his article "Public Journalism and Public Life." He is the co-author of Public Journalism: Theory and Practice, now in its second edition, and author of Public Journalism and the Public: Why Telling the Truth Is Not Enough, also in its second edition.

In his Silha lecture on journalistic detachment, Merritt will discuss six arguments for "an ethic of journalistic purposefulness." Those include:

• Detachment is not the fount of journalism's credibility.
• There's way too much truth out there.
• An announced bias is just as good as no bias at all.
• Detachment presents impossible human and moral dilemmas.
• Self interest demands a disconnection from detachment.
• Walter Lippman doesn't work here anymore.

JACK BRESLIN

Bulletin Editor

"Can News Councils Help Newspapers Regain Public Trust?"

By Genelle Belmas, Jennifer Lambe, and William Babcock.

The American public is becoming increasingly dissatisfied with the media. Many such people - those either annoyed with or hostile toward newspapers - have for the past few decades railed against the media, urging the creation of news councils as a means of controlling or "getting back" at the press. While the public's wrath is not directed against newspapers alone, it is clear that, amid steadily declining readership, newspapers must have a stake in trying not only to manage their credibility, but also to be more accessible and responsive to public needs and desires.

News councils are one possible mechanism for increasing understanding between the press and public. The Minnesota News Council is the nation's longest-running statewide non-legal media dispute resolution body. This paper examines the determinations of the Council in which newspapers are respondents. Given the media's increasing lack of credibility with the public, our findings indicate that newspapers would be well-served to examine their long-standing distrust of news councils and instead see such councils as a means of helping the news industry regain the public's trust.

The Conference is co-sponsored by the American Bar Association's Media Law and Defamation Torts Committee, and we have made application with the State Board of Continuing Legal Education so that lawyers may be able to receive CLE credit for attending. The Minnesota Journalism Center also is a Conference co-sponsor.

New Technology and the Law

While the Conference begins with a Friday evening reception on April 17, the panels will be on Saturday and Sunday. Saturday's 9:30-11:30 a.m. panel focuses on New Technology and the Law. Moderated by Prof Everette E. Dennis of Fordham University's Graduate School, Session I will examine:

• Whether technological advances enhance or threaten the First Amendment.
• If the U.S. Supreme Court's medium-specific approach to the First Amendment is becoming outdated and unworkable.
• How the global nature of the communications industry affects freedom of speech issues.
• The viability of technological solutions (such as the V-chip and blocking software) on the Internet.

Included on the Session I panel are Prof. Jerome A. Barron of George Washington University, Ann Kappler of Jenner & Block, Prof. Donald Pember of the University of Washington, and Prof. Robert Trager of the University of Colorado.

Convergence of Legal and Ethical Issues

Saturday's 2-4 p.m. panel addresses the Convergence of Legal and Ethical Issues, focusing on such issues as:

• Whether ethics and law collisions in a case such as Cohen v. Cowles Media are inevitable.
• Given the increasing intrusiveness of both stablished and new media technologies, whether "turning off' the media should be our only recourse.
• How it might be possible to balance the public's need to know with individuals' concerns with an ever-intrusive media.
• Whether ombudsmen, ethics codes, and news councils are viable alternatives to litigation.

Chaired by Prof Theodore Glasser of Stanford University, Session II's panelists include Prof. Clifford G. Christians of the University of Illinois, Prof. Deni Elliott of the University of Montana, Dean Timothy Gleason of the University of Oregon, and Prof. Louis W. Hodges of Washington & Lee University.

Newsgathering

Sunday's 9:30-11:30 a.m. panel on Newsgathering is moderated by James Goodale of Debevoise and Plimpton. Focusing on Newsgathering, Session III examines:

• The legacy of Food Lion.
• Whether we might expect future litigation to skirt the First Amendment, focusing instead on issues such as trespass.
• What should be the appropriate level of First Amendment protection.
• To what extent shield laws can be expected in the future to provide journalists with adequate newsgathering protection.

Session III panelists include John Borger of Faegre & Benson, Joanne Byrd of the

Seattle Post- Intelligencer, James Naughton of the Poynter Institute for Media Studies, and John J. Walsh of Cadwalader, Wickersham & Taft.

General Information

A question and answer session will follow each panel. In all three sessions, panelists' formal papers will be collected and published in a book to be given to each participant attending the National Media Ethics and Law Conference. Additional books may be ordered at a cost of $60 each.

A banquet (black tie optional) dedicated to the contributions of Donald M. Gillmor, Silha Professor of Media Ethics and Law will be given Saturday night, April 18, at 6:30. A blue-colored Conference information and registration form is included with this Bulletin. If your form is missing, please contact the Silha Center at (612) 625-3421 or by email at silha@tc.umn.edu. -WILLIAM A. BABCOCK

Director, Silha Center

On Dec. 4, Gillmor's two-hour First Amendment lecture theory to 25 graduates and undergraduate students in his "Contemporary Problems in Freedom of Speech and Press" course marked the final time this internationally respected media law scholar would stand in front of a class as a college professor.

While lecturing from with his yellowed note cards, which showed signs of constant updating over the years, Gillmor couldn't miss the crowd of staff and faculty gathering outside the classroom door. On behalf of thousands of grateful students and fellow scholars, they had gathered to honor the award-winning Silha Professor of Media Ethics and Law - even if he would be "embarrassed" by the party.

"I'm always embarrassed in situations like that," Gillmor, who will be 72 in April, admitted later. "And as I analyze myself, in answering the question why I don't like farewells, I think it's because I grew up as a fairly shy person, and I don't like to make friends and colleagues feel obligated to attend something like that. That's as difficult for me [to handle] as the last day of class was."

Yet there was also "a certain amount of relief' involved with that final lecture. The constantly changing area of media law can be "challenging," even for the co-author (with Jerome Barron and Todd Simon) of the field's classic textbook, Mass Communication Law: Cases and Comment, just published in its sixth edition.

"I do think I feel a certain amount of relief since I'm at the age where normal wear and tear begins to show," he said. "And it gets more challenging to keep up in a field that is as fluid as the media law and ethics area - it never, never stands still."

His writing and lectures might be completed, but that doesn't mean Gillmor's scholarly mind will rest. In retirement he intends to cultivate his interests in art, music and architecture under the tutelage of his two younger brothers, a musicologist and an architect, both active Canadian university professors. He also intends to travel with Sophie, his wife of 46 years, seeking out art museums, cathedrals and concerts. While home in the Twin Cities, he will spend "a lot more time" with his two young grandsons.

"I have never had time to do these things before because I have been very much wrapped up in my work," Gillmor explained. "I have been very single minded about my teaching and my research, and so it's a bittersweet feeling to be sure. But there's something to be said for it. It's not as if I'm being denied a future. I have a future to explore."

A native of Fort Francis, Ontario, Gillmor began his journalism career in 1950, at the Winnipeg Free Press, after earning his bachelor's degree at the University of Manitoba. Prior to that, he joined the Royal Canadian Air Force at age 17, but wound up with the army infantry due to heavy Canadian losses in Europe. Gillmor's mother was a registered nurse and his father was "a mechanical genius of sorts," credited with several inventions.

Lured by an offer of double his reporter salary, Gillmor left his native Canada in 1953 for a teaching job at the University of North Dakota in 1953, where he eventually became a full professor and started the All-University Honors Program. Receiving both his master's and doctoral degrees at the University of Minnesota, he joined the faculty in 1965. During his distinguished tenure, he also helped established the Silha Center for the Study of Media Ethics and Law, thanks to his fellow Canadian and best friend, Jerry Kline, then SIMC director, and benefactors Otto and Helen Silha.

Gillmor credited his original interest in media law to former Minnesota professor J. Edward Gerald, to whom he dedicated his first book, Free Press and Fair Trial, based on his doctoral dissertation. Since then, Gillmor has authored or co-authored a library shelf worth of books, articles, essays, reviews and legal briefs, and has lectured nationally and internationally.

When asked what accomplishments he was most proud of, Gillmor mentioned his four teaching awards - one from the University of North Dakota; the first Horace T. Morse Distinguished Teaching Professor, awarded by the Minnesota Alumni Association; and two from the Minnesota Press Club - along with his first published book, and the respected textbook he co-authored with Jerome Barron.

"There's only one thing in the world more exciting than your first book, and that's your first child," he remarked. "That is something I cherish. After that, you tend to take the publication of books for granted...So I am very, very satisfied. I couldn't ask for anything more."

How does the veteran professor feel when former students thank him for the wisdom and knowledge he passed along?

"Oh, I feel grateful," he answered humbly. "I just feel very, very grateful."

And judging from that loyal group gathered for that "last class" party - many, many feel the same way.

JACK BRESLIN

Bulletin Editor

The editors are quite clear in the Preface about what they chose to include. While they do not include ethics codes (because they are only useful for the "easy" cases), media-bashing, or conclusions ("No one has yet written the conclusive chapter to the ethical dilemmas of the media..."), they have set out a neatly divided set of case studies and essays that address many of the "big" ethical dilemmas facing today's mass media. There are the fairly common dilemmas of keeping promises and seeking truth. Additionally, there are also sections on persuasion ethics - an area too often overlooked in general journalism ethics texts - and on cyber-ethics - an area that will undoubtedly become more and more important.

The book contains "a diverse, up-to-date, and classroom-tested compilation of cases in media ethics." There is an introductory chapter that includes brief descriptions of some of the classic ethical decision-making models (Aristotle, Kant, Mill), and the chapters following include a number of case studies grouped into broad categories such as "Loyalty" and "Privacy." In general, the case studies are followed by issues for discussion labeled "Micro," "Middle-Range," and "Macro" (with questions ranging from case- specific to big-picture). Cases include questions about the media's handling of Richard Jewell after the Olympic Park bombing and the New Orleans Times-Picayune's coverage of David Duke, a controversial gubernatorial candidate. However, the cases are not uniformly structured or of similar length or complexity. A case on coverage of the Oklahoma City bombing, for example, is an excerpt of a book about the experience without questions for reflection at the end.

The elimination of ethics codes is unfortunate; many organizations have such codes, and a student who did not know about them or how to use them would be ill-prepared. However, this is a minor criticism. The timeliness of the case studies coupled with a readable tone will make this book a welcome addition to any media ethics library.

GENELLE BELMAS

1997-98 Silha Research Fellow

When I think of the Silha Center for the Study of Media Ethics and Law, and the unflagging support and genuine interest shown it by the Silhas (Otto, Helen, Steve, and Alice), what first comes to mind are all of those marvelous graduate students - Silha Fellows we call them. It began with Patricia Dooley and today comes down to Jenny Lambe and Genelle Belmas, and everyone in between - Dave Allen, Beth Blanks Hindman, Bob Jensen, Sandra Braman, Sherrie Wilson, Victoria Smith Holden, Anne Jett, Patricia Bastian and Erik Ugland. They have been the heart and soul of the Center. Those with Ph.D.s in hand now occupy major academic positions around the country.

I also think of exciting Silha Forums that grappled with the urgent everyday issues of law and ethics; Silha Lectures presented by world-class people; our success in getting the National News Council archive; the internationally distributed journal, Media Ethics, that we co-founded with Emerson College in Boston; the newsletter, Bulletin, brought to life by Bill Babcock, my successor as director. Bill has also brought to life the study of media ethics in the classroom and seminar. I think of our first conference, co-sponsored with the Gannett Center for Media Studies at Columbia University, and masterminded by our former student and faculty member, Ev Dennis, founding father of what would become the Freedom Forum. I think also of the intellectually provocative Ted Glasser, my founding partner, gone to Stanford, and the remarkable Kathleen Paul, the administrator who gave the Center its sense of community. Not to be forgotten, our publications; my works on media law and, with Ted and Ev, our work on media accountability and, now, continuing along those lines, Bill's study of media ethics as reflected in the work of the Minnesota News Council. And thanks to two School of Journalism and Mass Communication (SJMC) directors who span the period of the Center's growth: Jerry Kline, who created it, and Dan Wackman, who sustained it.

SJMC is on the edge of a new era. In April its financial, building and faculty goals were realized by the Minnesota Legislature after a remarkable public relations campaign by its students and faculty engineered and coordinated with incredible skill by the School's interim director Al Tims. The Center will be one of the many beneficiaries of this long-delayed largesse. A new faculty will enrich the School's tradition of constitutional and media law studies, and ethics studies will proliferate.

Wall Street has been kind to the original gift of the Silhas. More can be done and will be done to establish the Center as an even more distinguished resource for scholarship and professional outreach.

What will I do for excitement after June 15 - the excitement of students, colleagues, ideas, papers, books, articles, projects, panels, conferences, speeches, invitations, and yes, even meetings where facts and opinions were exchanged, defended, and debated? New eras will require new people. I will remain at a distance. In fact I will disappear into a world of music, art, and literature too long neglected, at least after my final graduate student has earned his or her degree. The Silha Center now has a momentum that will propel it into the new century. Of that I have no doubt.

DONALD GILLMOR

Silha Professor

That's what retiring University of Minnesota Professor Donald M. Gillmor found out during a memory-filled, black-tie banquet "roasf' in his honor during the National Media Ethics and Law Conference, on Saturday, April 19, in Minneapolis. About 150 family, friends, attorneys, colleagues, journalists, alumni, and former students gathered to honor the award-winning Silha Professor of Media and Ethics and Law, who is retiring in June after 45 years of teaching, primarily at the University's School of Journalism and Mass Communication.

A native of Fort Frances, Ontario, Dr. Gillmor began his journalism career in 1950, at the Winnipeg Free Press, after earning his bachelor's degree at the University of Manitoba. He later completed his masters and doctoral degrees at Minnesota, before joining the faculty in 1965, after teaching at the University of North Dakota. His book, Mass Communication Law: Cases and Comment, which he co-authored with Jerome Barron and Todd Simon, recently published in sixth edition, is considered the field's classic textbook.

But instead of something from his bookshelf full of scholarly work, a surprised Prof. Gillmor saw his feature story from the October 18, 1951, edition of the Winnipeg Free-Press appear on an overhead screen. The banquet's roastmaster, William A. Babcock, director of the Silha Center for the Study of Media Ethics and Law, began the evening's fun by inviting Gillmor's students to edit their former professor's copy. There were redundancies, cliches, even a bad lead paragraph, Dr. Babcock joked, wielding his red pen over the copy.

"But I was only 23 then!" Prof. Gillmor cried out, rising in mock protest to the lighthearted destruction of his early journalistic prose. The scholar later admitted that the best part of the story about a Ukrainian Canadian's dream about Coronation Day was the "terrific" photograph that didn't get printed.

Also displayed near the front of the room was a blow-up poster of a 1973 Esquire parody of the National Enquirer, which named Prof. Gillmor as one of the nation's sexiest college professors.

More than 20 speakers accepted Prot Babcock's invitation to honor Dr. Gillmor with touching, sometimes emotional remembrances of his dedicated teaching, remarkable scholarship, and devoted friendship.

Prof. Gillmor's final master's degree student, Russian native Irina Dmitrieva, shared how Prof. Gillmor would often mix touching personal stories with his scholarly lessons. She and her husband, SMJC graduate student Gregory Borchard, met last fall in a Gillmor class.

"He would tell stories about how he and [his wife] Sophie met," Ms. Dmitrieva said. "On his desk there was this beautiful photograph of her. Behind this wise and clever man there has been this wise and clever woman all these years."

Unable to attend the banquet, Dr. Gillmor's youngest brother, Alan, a professor of music at Carleton University, sent a touching letter read by Stuart Adam, a Carlton vice-president. In remembering his brother in "this warm and bittersweet moment," the younger Gillmor praised his brother's constant encouragement, even though he admitted "losing many arguments over the years."

"You were there for me, refreshing my spirit by word and deed and giving me the permission to excel," the letter stated. "In this warm and bittersweet moment, you are surrounded by people whose lives you have touched."

Among the many stories shared was one from Herb Terry, Prof. Gillmor's one-time student and later co-author with Jerome Barron and Todd Simon. As a graduate student, Prof. Terry once "boldly corrected" Dr. Gillmor after a lecture that John Marshall was not the first chief justice of the United States.

A few years later, when Prof. Barron was arguing the case of Miami Herald Publishing v. Tornillo before the Supreme Court, he could not even get a chamber seat ticket for his wife to attend the oral arguments. The enterprising Dr. Terry wrote to fellow Minnesotan Chief Justice Warren Burger and obtained two tickets. The former student was "so proud" to take Prof. Gillmor to the court, especially since the ticket envelope was marked "Herbert Terry and guest."

Witchita State University Professor Vernon Keel stated he "would have paid for a copy of the Winnipeg Free Press" as a Gillmor student at the University of North Dakota, then a graduate student at Minnesota, nearly four decades ago.

Fellow School of Journalism and Mass Communication (SJMC) faculty member Daniel Wackman thanked Prof. Gillmor for welcoming him and his wife, Kathy, into the community some 27 years ago.

"Kathy and I are in a sense Don's kids," remarked Wackman, who was once "his boss" as SJMC's director. "Don and Sophie took us in and made us a part of the community."

Always having his door open for students, fellow faculty and media professionals, Dr. Gillmor was "amazing" in his passion and dedication. And as a student in Prof. Gillmor's final class wrote, "The only thing to do with Don Gillmor would be to clone him," Wackman said.

Steven Rosenstone, dean of the College of Liberal Arts, agreed that "the idea of cloning seems like a good idea," since Prof. Gillmor is "one of the few giants" among the college's 500 professors. In announcing the beginning of a national search for a new Silha Professor, Dean Rosenstone also praised Prof. Gillmor's recent leadership in the SJMC's crusade for state funding for new media technology.

"The sense of camaraderie in the Journalism School created by Don over the past eight months made a new chapter possible in the life of the Journalism School," Rosenstone stated.

Joining other media scholars present, Prof. Barron, Dr. Gillmor's longtime co-author, extolled his colleague's stature in First Amendment scholarship. They first met when Dr. Gillmor sat in on Prof. Barron's class at the University of North Dakota in 1969. When West Publishing asked Prof. Gillmor to write a textbook on mass communication law, he insisted that Prof. Barron be his co-author. At the banquet, attorney James Goodale admitted that he "stole" the book's table of contents for the "principle basis" for law seminars at the American Practising Law Institute.

"His views on the First Amendment differ from mine at times," Prof. Barron noted. "He believes these problems are resolved by relying on the ethical standards of working journalists. I didn't always agree, but I respected him as a scholar. He's contributed to the education of students, journalists, and my own.

"It's amazing that two people with such diverse views on the press would get along. That shows his tolerance and mine too. It gives our work a tension but a good one. Even though I think he sometimes lives in error, I believe in his passion. He's a great scholar, a great colleague and a great friend - a pleasure to celebrate."

Otto Silha, principal benefactor of the Silha Center with his wife, Helen, recalled first meeting Prof. Gillmor and being impressed with "his optimistic idea" for establishing such a center for the study of media ethics and law.

"Almost everyone I meet here today is either a student, a disciple or a mentoree of Don Gillmor," Mr. Silha said. "He told me at breakfast this morning that he was going to keep his gradebooks because he wants to remember the names."

In his humorous roast, Sanford University Professor Ted Glasser, former Silha Center associate director, used an impressive slide collection of Gillmor memos, clippings, and photographs to reflect on his remarkable career. Prof. Glasser also recounted Dr. Gillmor's unusual "fetish" for trapping squirrels on his property, then setting them free elsewhere.

As a final token of appreciation, the Gillmors were presented with several gifts, including a framed map of their beloved Rainy Lake in Northern Minnesota.

In thanking those gathered and those who could not attend for their many wishes, Prof. Gillmor first made "just a few corrections" about some of the stories told, then particularly expressed his gratitude to his wife, his family, his co-authors, students, and others.

"This is probably the last time I'll see my friends, my students, my family, all in one place. That's a sad thought, but it makes a wonderful occasion. I just want to say how much I owe to all of you...

"I just want to say how much Sophie and I appreciate you being here tonight. This is a very memorable evening for me. We love you all. We thank you so very much.

"And Bill [Babcock], this was your idea. I damned you for it, but I love you for it."

JACK BRESLIN

SJMC Graduate Student and Bulletin Editor

Prof. Jerome Barron of George Washington University opened the first session on new technology and law with a question heard in all sessions: What standard of review should courts apply to Internet regulation? A longtime advocate of public access to media, Prof. Barron cautioned that the much-favored print media standard "subordinates all other First Amendment interests to the interest of the owner" of the communications medium.

Attorney Ann Kappler of Jenner and Block's Washington, D.C., office responded that even the print media standard would be seen as "a comedown" to many of her Internet clients, who take the words "Congress shall make no law" literally. "I spend a lot of my time advising my clients that that's not really what the First Amendment means in practice," Ms. Kappler said. She was the first to issue a warning that many would echo: Unless the industry develops a voluntary response to such issues as regulating sexually oriented speech, government would impose regulation. Both Ms. Kappler and Robert Trager of the University of Colorado pointed to challenges posed by cross-border regulation. Concentrating on Australia as an example, Prof. Trager said that the Internet is making nations that lack constitutional protection of free expression reexamine their traditions.

Claiming that he was "not a '90s kind of guy, unless you mean a 1790s kind of guy," Donald Pember of the University of Washington said that he refused to use e-mail, calling it an "insecure" and "dysfunctional" mode of communication. Nonetheless, Prof. Pember argued that the Internet raises the possibility that for the first time, ordinary citizens may be able to exercise their First Amendment rights with the same protections that journalists enjoy - as, he argued, the framers of the First Amendment intended.

University of Minnesota President Mark Yudof, a law professor himself, opened discussion with a hypothetical that highlighted the confusion and challenges of media-specific approaches: a reporter who defamed others in several media might face different sanctions in each.

The luncheon speaker on Saturday was Michael Wilens, a founding member of the Whole Earth 'Lectronic Link (WELL) who is now executive vice president and chief technology officer for the West Group. Mr. Wilens elaborated themes of the earlier session, adding that the cost of being a global publisher was now only the $30 per month required for an Internet account that could support web pages. Mr. Wilens expressed concern about the trend toward narrowcasting, stating that though customized content is designed to help the customer, "I'm becoming a narrower and narrower person as a result of narrowcasting." Mr. Wilens wondered if the Internet was an ungovernable system. He seemed sanguine about the possibilities of generating revenues from database services in cyberspace, saying that West views the Internet as offering low-volume, high-profit opportunities in addition to the high-volume, low-profit opportunities that most commentators have identified.

The Saturday afternoon session, moderated by Theodore Glasser of Stanford University, was on "Convergence of Legal and Ethical Issues." Drawing on the works of Charles Taylor and Michael Walzer, Clifford Christians of the University of Illinois distinguished two liberalisms. "Liberalism one," most often upheld by U.S. courts, is a "procedural liberalism" of autonomous individuals and individual rights. "Liberalism two" is "committed to the flourishing of particular cultures and beliefs." Prof. Christians suggested that Americans must face up to the charge that a liberalism of rights is not neutral but expresses politically only one range of cultures."

Timothy Gleason, dean of the University of Oregon's School of Journalism and Communication, warned of what he and others have called the "ideology of free speech" that precludes debate on its assumptions, and reminded listeners that celebrated media defense was "big business." Prof. Gleason suggested that two conflicting principles were at stake in many difficult media ethics cases: First Amendment protections of journalistic process clashed with "a view of the First Amendment as a license to act, regardless of the consequences to the democratic process." Deni Elliott, director of the University of Montana's Practical Ethics Center, suggested that media acknowledge their roles as players in their stories and reexamine their own visions of press roles when facing such difficult decisions.

Louis Hodges, Knight Professor of Journalism Ethics at Washington & Lee University, sounded themes that shaped debate for the remainder of the conference, asserting that "ethics always trumps law" and expressing concern that too many "accept the absurd and destructive notion that 'if it's not illegal, it's okay to do it." Prof. Hodges raised the question of whether punitive damages should be assessed against media defendants and asserted that they should not.

Discussion at Sunday's concluding session on newsgathering, moderated by James Goodale of Debevoise and Plimpton, returned again to the ongoing Food Lion v. Capital Cities/ABC litigation. In a 1996 decision now on appeal, the Food Lion grocery chain obtained punitive damages against ABC for a PrimeTime Live newscast using hidden camera footage filmed by ABC producers who falsified employment applications to get jobs at Food Lion.

John Borger of the Minneapolis law firm Faegre & Benson framed the issues at stake in such cases - whether "non-content-based" torts such as trespass and fraud should, like the "content-based" tort of libel, be scrutinized more carefully when perpetrated by media defendants. He said there are three possible approaches: a strict approach to the elements of the tort regardless of the defendant, a balancing approach, and his preferred approach - not assessing damages against media defendants.

Joann Byrd, editorial page editor of the Seattle Post-Intelligencer, advocated that journalists themselves use a balancing approach - a balancing of two criteria when deciding when to break the law. She suggested that journalists consider both "whether the value of the information excuses ignoring the law" and "whether we have made a good-faith effort to get the information in the lawful way first."

John Walsh of Cadwalader, Wickersham and Taft, a plaintiff's lawyer in many First Amendment cases, observed that "First Amendment protection is not absolute," and pointed to many cases that showed the limits of those protections. Despite many clear differences with others on the panel and in the audience, Mr. Walsh agreed with others when he said, "In the last analysis, observation of ethical guidelines and compliance with traditional journalism standards may provide the media with more protection than the First Amendment." After donning a magician's hat and divining that El Nino was to blame for "overheated" news coverage, James Naughton, president of the Poynter Institute for Media Studies, stated a similar theme: If journalists constantly privileged news judgment, even under the heaviest deadline pressure and in the heat of sweeps, fewer cases would end up in court.

Prof Gillmor was present at all the conference sessions, and several panelists acknowledged their debt to his thinking and writing. Prof. Gillmor had promised himself to resist asking questions at the conference sessions, and he only broke that promise once, issuing Prof. Hodges a challenge familiar to any student of Prof. Gillmor's: to be Lon Fuller to his H.L.A. Hart. As any student of Dr. Gillmor's might attest, it was perhaps the vigorous engagement of hard cases at the conference sessions that honored the retiring Silha professor as well as any tribute.

MARK CENITE

SIMC Graduate Student

An immediate objection to this statement is the case of Reno v. ACLU, 117 S. Ct. 2329 (1997), where the Supreme Court declared unconstitutional the government's attempt to regulate indecent speech online. However, many free-speech battles are fought in other legal arenas, such as copyright, privacy, and cases involving the liability of Internet service providers. There, courts often use a balancing approach, which is, by definition, very subjective. Moreover, copyright litigation is not content-neutral. This creates the possibility that judges who preside over cases involving online pornography may feel that the material at issue does not deserve protection. As copyright expert Niva Elkin-Koren noted, "Providing a forum for exchanging sexually explicit materials... may be perceived by some as worthless." Thus, subjective decisions in particular cases may create a line of judicial precedents unfavorable to the principle of the online freedom of speech.

Judicial alarm bells first rang when it turned out that the principle of "community standards" did not apply in the world of the Internet. This principle helped courts avoid uniformity in their definition of "obscenity" by considering the standards of local communities. However, in the landmark case of United States v. Thomas, 74 F.3d 701 (6^th Cir. 1996), the federal district court in Tennessee obtained jurisdiction over California residents who operated an adult computer bulletin board from their home. A San Francisco couple was brought to trial in Memphis on obscenity charges and subsequently convicted. This case illustrates how communities with stricter speech regulation can dictate what is allowable on computers in other jurisdictions.

On an international scale, a similar case occurred in 1995 in Munich, Germany, where Bavarian police raided a local CompuServe office and forced the network to shut down online access to more than 200 allegedly pornographic sites. Among the closed sites were ones devoted to the culture of sexual minorities - sites not deemed illegal by many countries. This incident prompted Floyd Abrams, former counsel to the New York Times in the Pentagon Papers case, to conclude that in the future countries that afford less protection to the freedom of speech may be "the ones that really rule in terms of what is ultimately posted or carried at all by other forms of media." This rationale may apply not only to online pornography, but to hate speech and political debates as well.

For many citizens of totalitarian regimes, the only way to express their beliefs in political discussions is to seek privacy in the online forum. Many political dissidents, abuse victims, and recovering alcoholics turn to the services of anonymous remailers. These services strip all identification from e-mail messages and forward them to their intended destinations anonymously. However, anonymity is also sought by people with much less laudable motives - namely, online pornographers.

Consequently, law enforcement agencies seek to curb services of anonymous remailers in an effort to expose child pornographers on the Internet. For example, in the fall of 1996, Penet, a popular free-of-charge remailer service maintained by a Finnish volunteer, closed after the London Observer accused it of facilitating online communication among pornographers. The Internet community termed the service's demise "a sad day for the Net," because it took away "a certain free-wheeling spirit." Online privacy helps to ensure free online discussions.

Cyber-freedoms depend largely on entities that provide users with online access - namely, Internet service providers (ISPs) and operators of bulletin board services (BBSs). Companies such as Netscape and Microsoft take on "the color of the state" by monopolizing Internet access service and regulating online activities. If courts hold ISPs and BBS operators directly responsible for illegal activities of their users, the latter may start censoring online speech in fear of costly litigation.

However, when it comes to cases involving explicit adult-oriented material, the heavy aura of moral wrongdoing that is often present around them could sway the opinion of any reasonable person, including a judge. Just put yourself in the shoes of a Texas federal judge presiding over the case Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F. Supp. 1171 (N.D.Tex. 1997). Playboy sued operators of the adult-oriented "Neptics" site for reproduction, distribution and display of its copyrighted images. However, just weeks prior to the trial, all "Neptics" equipment was seized by police on charges of child pornography. Knowing this fact, which has little to do with the copyright litigation at issue, could you stay completely impartial? The Texas court found the site operators directly and vicariously liable for unauthorized use of Playboy images.

In its decision, the Webbworld court relied on another case involving display of adult-oriented images, Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fla. 1993). The Frena case was one of the first cases involving liability of BES operators for illegal activities of their users. It dealt with the unauthorized display of nearly 170 adult images from Playboy and Playmate publications by a private BBS. The federal district court in Florida found the BBS operator, George Frena, directly responsible for the acts of his subscribers despite the fact that Frena claimed he was unaware of any illegal conduct on his network.

This case had two major consequences. First, it set a troublesome precedent: ISPs can be held directly liable for illegal acts of their users. Since then, the Frena decision has been cited by most of the courts dealing with the issue of ISP liability. Among those cases are Central Point Software v. Nugent, 903 F.Supp. 1057 (E.D. Tex. 1995), Sega Enterprises v. Sabella, US Dist. LEXIS 20470 (N.D.Cal. 1996) and Marobie-FL, Inc. v. NAFED, US Dist. LEXIS 18764 (N.D. Illinois 1997). Thus, the Frena rationale extended to other materials, such as computer clip art and electronic video games.

Second, George Frena set the example for ISPs when, upon Playboy's notification, he voluntarily took from the network all allegedly infringing images. Soon thereafter, courts developed a standard holding ISPs liable for activities of their users if they "know or have reason to know" about infringing acts. Usually; this requirement can be satisfied by notifying the online providers of allegedly infringing conduct on their network. However, what appears to be a copyright infringement may very well be a fair use. Determining what are fair and unfair uses of someone's work is a complex process involving careful balancing of multiple factors. ISPs may not be reasonably expected to know the nuances of copyright law, and come to a sound conclusion in each case whether a certain use qualifies for a fair-use exemption. As a result, another limitation on the freedom of communication has emerged - only now by private online service companies and not by government.

When defending speech "extremes," such as pornography on the Internet, we should remember that there is much at stake. The judicial precedents from cases involving pornography will apply in the future to other materials, more "worthy" of First Amendment protection.

IRINA DMITRIEVA

SJMC Masters Student

Silha Bulletin (SB): Good News, Bad News - that's an interesting title. What's the good news in today's journalism, especially about ethics, and what's the bad news?

Jeremy Iggers (JI): That's a good question. Part of what it's saying is that sometimes the good news is the bad news. Sometimes the emphasis on good news, or on giving people the kind of news they want to hear, is bad news, because it's failing to give people what they need to know. On another level, good news is news that is presented to people in a way that's useful for them - news that they act on. And bad news is sort of the news that sensationalizes or panders.

SB: In your book, you mention that sometimes today's media are a little too passive in getting people to become good citizens. What can we do to fix that?

JI: The first thing that the media can do to fix that is to recognize that the world has changed. Newspapers always operated as part of a system where you first read the newspaper, and then you'd go to the local cafe and talk about what you'd read with your neighbors. People's lives have changed and so newspapers have to respond to that by creating environments where people can talk about the newspaper, and creating new kinds of forums. They may be electronic forums where people can process the information. Putting out the information is only one part of the process. The next part is people sharing information and talking about what needs to be done. That's where there aren't as many opportunities as there once were.

SB: You talk about providing information and the conflict between serving the customer and serving the readers. Is there a happy medium?

JI: Oh, sure. Journalists have always had to strike the balance between telling people what they need to know and telling people what they want to hear. Again, especially in broadcast, we still do a surprisingly good job a lot of the time, at least at this newspaper [Star Tribune]. In broadcast especially that balance has been totally lost. It has kept shifting, sort of like a seesaw, a little bit more year after year. Lately, the balance has gotten almost completely lost.

SB: You mention the social responsibility theory, which deals with journalism's role in fostering democracy. How can you get journalists, particularly management, concerned about social responsibility and issues such as quality, giving more access, or corporate ownership changes?

JI: It's hard because people have to believe that it's in their bottom-line interest. It's very clear that quality journalism is in the long-term, bottom-line interest of newspaper and maintaining a loyal readership to cultivate the next generation of newspaper readers. The long-term [interest] is more important than grabbing them today. What's unfortunate is that a lot of owners, especially in television, feel that they can't think about the long term. Unless they keep ratings up this quarter, this sweeps period, they're not going to be around next year to worry about next year or the next generation.

SB: What has to be done to get this generation to become newspaper readers? Or are newspapers going to so radically change in the next 20 years that the newspaper as we know it now may no longer exist?

JI: The real future of the newspaper depends on whether people perceive it as something that's useful in their lives, that improves their quality of life, not just by entertaining them, but by helping them to achieve their goals. The other part is that newspapers have a particular niche. A newspaper is a mass medium, and unless it addresses its readers as members of a large community, it can't compete against the publication which addresses them as members of a small community.

SB: Are you saying that traditional journalism dying? If it is, what can we do to revive it?

JI: There are still a lot of people out there who are very interested in creating lines of communication between people in a community. Unfortunately, they're not often the owners of broadcast licenses or of large metropolitan newspapers. They're often people who own community newspapers. That's where some of the best journalism is going on. If journalism is in trouble, it's because people no longer think of themselves as citizens. The media has had a lot to do with that because they no longer address their audience as citizens; they address them as consumers. The way to reinvigorate journalism is to use the media to reinvigorate people - give them sense of themselves as citizens. That sounds like really dry, boring civics class stuff. But there are lots of things which newspapers can do that are innovative, creative and fun, which can revive a sense of citizenship.

SB: Is public/civic journalism part of the answer?

JI: I think so. That term gets used in so many different ways. It's misused, abused, and defined in so many different ways that it's tricky to say that. One definition of public journalism, I think [New York University professor] Jay Rosen's definition is that it's journalism that is motivated by a concern for the vitality of public life. That's a good definition of public journalism. All journalists should be motivated by that concern and see that they have a role to play in insuring that vitality.

The most important change comes in section 595.023. This section was amended to protect unpublished information "whether or not" it would identify a source, although exceptions are allowed if that information is clearly relevant and cannot be obtained elsewhere, and if there exists a compelling and overriding interest requiring disclosure. This addendum is intended to protect journalists from subpoenas for unpublished material.

So how might this change affect working journalists in Minnesota? Bob Franklin, reporter for the Minneapolis Star Tribune and SPJ Freedom of Information Act director, said that the new shield law will actually help reporters avoid having to make sweeping modifications in the way they do their jobs. The change to the shield law "will avoid prompting journalists to make large changes in the way they do their day-to-day work," Mr. Franklin said. "And it will prevent some of the non-day-to-day experiences of being hauled into court to testify."

However, Kate Parry, senior editor for Enterprise, Investigations and Politics at the St. Paul Pioneer Press, said that the shield law alteration will result in changes in newsrooms precisely because subpoenas will be reduced. She noted that subpoenas for journalists' unpublished information occur with increasing frequency and are a serious drain on newsroom resources. This law will help reduce the number of subpoenas and thus prevent the huge diversion of staff time and money. And although journalists try to source on the record as often as possible, "the law protects our ability to do that digging-deep journalism that's got risks associated with it - we need to assure sources that we can keep their anonymity shielded within the scope of the law," Ms. Parry said. This change will help journalists do that when necessary and reduce the amount of time and resources needed to answer subpoenas, she added.

From a legal perspective, media attorney Paul Hannah claimed that the change will reduce the number of subpoenas in civil cases. (Journalists might still have to answer subpoenas in criminal cases if the relevance issue is met). "First, journalists covering contentious issues won't be dragged into the middle of them because of what they've written," Mr. Hannah said, "Second, the law will benefit small and large community newspapers because there will be a marked decrease in the number of lawyers trying to use journalists to provide elements of their cases."

In her 1996 masters' thesis, former Minnesota Daily editor-in-chief Michele Ames wrote about the dangers associated with the courts' interpretations of Minnesota's shield law: "If the trend toward increasing news media involvement as information providers in the court system is not halted...news organizations may find themselves more tentative in covering events likely to place them in the line of fire for subpoenas." The protection of unpublished materials made explicit in the Minnesota Free Flow of Information Act is one step closer to the goal of ensuring that journalists can conduct investigations without fear of courts requiring them to act as an arm of law enforcement through the subpoena process.

GENELLE BELMAS

Silha Research Fellow

*See Bulletin articles "Point" and "Counterpoint," Spring 1996, for two points of view on editor-in-chief Michele Ames' refusal to turn over subpoenaed unpublished photographs in this case.

In 1996, Minnesota's Supreme Court inflicted the coup de grace on protections for unpublished information formerly thought to exist under the state's shield law. The decision left no doubt that little help could be expected from the courts. If the journalist's privilege were ever going to be vigorous again, that meant the Legislature was the only option. This article describes - and, to the extent possible, explains - how Minnesota journalists and news organizations persuaded the Legislature to make Minnesota's shield law one of the strongest in the country.

Background.
In its 1996 decision State v. Turner the Minnesota Supreme Court conclusively determined that the state's shield law statute (officially known as the Minnesota Free Flow of Information Act) afforded no protection whatsoever for unpublished materials, but covered only confidential sources. This capped a three-year slide toward the precipice that had begun with a 1993 Minnesota Court of Appeals decision, which had also read the statutory language narrowly. Before that time, no case directly dealing with the application of the shield law to unpublished information - notes, outtakes, a reporter's knowledge or memory of events - had ever reached the Minnesota appellate courts, even though the statute had been passed in 1973. But over the years, several state trial court judges had concluded that unpublished materials were protected, and so for two decades the privilege in Minnesota was relatively robust. That is why the Supreme Court's Turner decision was a shock to Minnesota journalists.

The campaign.
The prospect of an ever-increasing number of subpoenas from civil and criminal attorneys was chilling. In response, news organizations and individual journalists from across the state came together, coordinated by the Minnesota Joint Media Committee, and sketched out a legislative campaign. Its goal would be to amend the shield law. Two major obstacles loomed: money, and the Legislature's perceived coolness toward journalists. The two were closely related because the more difficult and controversial a bill, the more it costs lobbyists and lawyers.

The first obstacle was overcome easily when the Minnesota Newspaper Association, the Star Tribune, and the Minnesota Broadcasters' Association pledged more that $20,000. The Society of Professional Journalists contributed another $2,000. Attention then turned to hiring a professional lobbyist, as well as deciding on the exact language of amendments to be proposed. The latter issue was tricky. There was concern that asking for too much could cause the whole effort to fail.

Early in the fall of 1997, the Joint Media Committee (JMC) chose Bob Hentges to lead the lobbying effort. Mr. Hentges had many years of experience at the Capitol, was widely respected, and had once been a reporter himself. Through the fall, the JMC met regularly to coordinate the campaign. Sen. Dick Cohen and Rep. Matt Entenza (both DFL-ST. Paul) agreed to sign on as chief authors of the legislation. Rep. Entenza replaced Rep. Bill Macklin (R-Lakeville), who had introduced a preliminary version of the bill very late in the 1997 session, mainly to call attention to the problem. Rep. Macklin graciously agreed to Rep. Entenza's substitution, recognizing that the chances for success would increase greatly if the principal House author were a member of the majority party.

Approach
Although early in the discussion about the bill, it had seemed best to use the "half a loaf" approach, out of concern that an extreme position would diminish the prospects for passage, the JMC eventually decided that the principle represented by the shield law was too important to be compromised voluntarily. As a result, the amendments introduced in the 1998 session were very aggressive, stating clearly that the privilege covered all unpublished information, and that it could be defeated only if the party seeking the information demonstrated compelling reasons.

Through the fall of 1997, a group of journalists, lobbyists, and media attorneys met with as many leading legislators as possible, attempting to explain the reasons why a strong shield law was good not only for news organizations but for the public as well. At these meetings, the regular media representatives were Bob Hentges, SPJ president Rick Kupchella, and MNA attorney Mark Anfinson. A number of others also helped periodically, including media attorney John Borger and Star Tribune reporter Bob Franklin.

"An unexpected pattern"
As one meeting after another concluded, an unexpected and almost remarkable pattern began to emerge. Nearly all of the legislators listened to the media representatives and agreed to support the bill. In fact, many were enthusiastic. At first, this caused skepticism - media representatives thought they might be missing something. However, as the number of legislative supporters continued to grow, far outnumbering the opponents, the prospects for the bill started to appear much stronger than originally predicted. By the time the 1998 session began in February, a great deal of groundwork had been laid through the meetings with legislators. Sen. Cohen and Rep. Entenza also worked at persuading their colleagues of the value of the bill.

On the second day of the session, the Senate Judiciary Committee held a hearing on the bill - its first public test. For nearly two hours the Committee debated the legislation. Several objections were raised, and the critics tried to amend the bill. But Sen. Allen Spear (DFL- Minneapolis) offered an eloquent explanation of its importance. With that the opposition evaporated, and the Committee approved the bill unanimously. A few days later, it reached the Senate floor. As he had done in the Judiciary committee, Sen. Cohen ably presented the reasons supporting it, and on a vote of 67-0, the Senate approved the bill - a result that had been completely unimaginable only a few months earlier.

Over the next several weeks, efforts focused in the House. Unexpectedly, Speaker Carruthers, who in previous sessions had been a stalwart media supporter, raised concerns that the bill went too far. He may have been influenced by his service in private life as a prosecutor, whose subpoenas the bill was in part aimed at thwarting. However, Rep. Entenza persisted, and eventually the Speaker accepted a few minor changes and agreed the bill could move forward.

All along, supporters said that the House would present the biggest challenge, and media representatives made intense efforts to get the bill through the House Judiciary Committee, which approved it in late March. By this stage of the session, Sandy Neren, long-time chief lobbyist for MNA, had also become part of the campaign. In early April, the bill finally reached the House floor, and although there was some suspense as amendments were attempted, when the vote was taken it favored the bill 123-6.

Then the legislation went to Gov. Ame Carlson's desk. The Governor's dislike for many members of the media was well known, and a veto was definitely a possibility. But after sitting on the bill for three days of building anxiety, Gov. Carlson allowed it to become law on April 6. He issued a petulant statement denouncing media irresponsibility, but the result was the same. The overwhelming House and Senate majorities had been too great to give a veto credibility. Minnesota again had one of the strongest shield laws in the nation.

How did this happen?
The answer is not entirely clear. To a far greater degree than anticipated, however, the legislators accepted the argument that a weak reporter's privilege can greatly diminish the amount of important information the public receives. Legislators also appreciated the fact that working reporters had showed up to make their case. And money was a big factor - the total cost to media organizations exceeded $40,000. The experience shows how the media can achieve good results on major items brought before legislative bodies.

Mass communication law professors often share the dilemma of persuading students that their course is relevant. Even before they walk into the first class, most advertising and public relations majors have concluded that First Amendment issues concern only their print and broadcast journalism counterparts. Only after nearly libeling a client's competitor in their first professional press release or ad copy do beginning practitioners realize the need for an understanding of media law.

By exploring particularly relevant areas of mass communication law, the authors of Advertisng Public Relations Law have succeeded in addressing crucial issues and concerns for both students and practitioners. While this pioneering effort to offer a specific legal textbook for public relations and advertising offers comprehensive legal history and analysis, the work suffers from a lack of practical examples and case studies.

The authors present lengthy, sometimes exhaustive treatments of such critical areas as commercial speech doctrine, government regulation, and intellectual property. They consider several relevant concerns, such as product liability, trade secrets or publicity rights - often ignored in general media law texts. But their scholarly analysis often fails to provide specific public relations/advertising examples and practical advice.

Future editions should be more carefully edited for style consistency, needless repetition and readability. Practitioners, professors, and students often appreciate discussion questions and case examples to help relate the law to hypothetical or actual professional situations. This book, which is supposedly intended for classroom use, lacks both.

While the authors have undertaken the laudable challenge of creating a legal text focused on advertising and public relations law, they should have decided who their audience is, rather than trying to cover everyone and everything.

JACK BRESLIN

Bulletin Editor

We performed a content analysis on 111 MNC determinations, which are the official records of the council's hearings in particular cases.

Much of the work in media ethics characterizes the complaints about media behavior only in terms of the broad issues involved. However, we developed a four-part model to more fully characterize the nature of the complaints - for each complaint, we coded the type, subject, element, and issue involved. In A New Tool for the Assessment of News Councils, presented at the Association for Practical and Professional Ethics annual meeting in the spring of 1997, we suggest that this model might be adopted by ombudsmen or other newsroom personnel to more accurately track patterns of public concern.

An analysis of the determinations belies the persistent perception that news councils are out to get the media. In Can News Councils Help Newspapers Regain Public Trust? presented at the Southeast Colloquium of the Association for Education in Journalism and Mass Communication (AEJMC) in the spring of 1998, we report that approximately one-half of the complaints against newspapers were rejected. This statistic holds true for complaints against the electronic media as well. The MNC is also addressing the concerns often echoed by the public, such as fairness, accuracy, and access.

Finally, in analyzing individual voting records of MNC members, we found no evidence that either media members or public members were more or less likely to vote for or against media organizations. In Answering the Critics: Are News Councils Out to Get the Media? presented at the AEJMC annual convention this summer, we show evidence that predictors such as length of time on the council also did not affect voting patterns.

Our results suggest that the MNC, in more than a quarter-century of operation, has been neither a forum for lay members to bash newspapers nor a body hostile toward the press. The formation of state, regional, or national news councils modeled after Minnesota's may be a useful means of helping the news media regain public trust.

JENNIFER LAMBE

Former Silha Research Fellow

Note: Copies of the papers mentioned above are available through the Silha Center.

Silha Bulletin (SB): What has USA TODAY contributed to American journalism in your estimation?

Allen Neuharth (AN): Well, it depends on who you ask. I think it's fair to say that the advent of USA TODAY has changed both the appearance and the content of most daily newspapers, and that's either good or bad, depending on your point of view.

SB: What's your opinion of USA TODAY now? Why is it imitated by so many newspapers for style and graphics and marketing?

AN: I think it's because in the years since the launching of USA TODAY, more and more print journalists have come to realize that readers, particularly younger readers, are not going to keep fighting their way through dull gray newspapers. Some of them have even come to agree that a good newspaper doesn't necessarily have to be dull. They haven't all agreed to that yet. But some grudgingly have agreed to that. Some of that imitation is good for other newspapers and some is not. It depends on whether it is straight imitation or adaptation. Some newspapers have adapted some USA TODAY things to serve their local readers very, very effectively. Some other newspapers have done straight imitations of USA TODAY and I think in most cases that's not as effective because it doesn't give it the local appeal that the adaptation gives it.

SB: Why is the paper so popular?

AN: It has found its niche with the audience that it was aimed at. We used to say we'd be glad to let The New York Times have the top one or two percent of the intellectuals in the country or in the northeast and we'd take the next two to 10 percent. So it's aimed at an audience that is upscale, affluent, influential, well-educated, and mobile, people who have moved around and who have interests beyond their backyard. And I think it has found that niche with that segment of the society.

SB: Critics say the paper's impact has been more negative than positive, that it contains more glitz than content, that it lacks depth and analysis; it features graphics over substance. How do you answer these criticisms?

AN: Well, I've never really answered them. I used to laugh at them because I was amused by the fact that what they really were saying was that USA TODAY was so different that it pissed them off. And journalists, particularly editors and publishers who sometimes pretend that they're very creative and love to explore new ideas and new things, are in fact basically conservative. And that's why a lot of newspapers have died. It's mainly been the fault of editors or publishers who weren't about to change.

SB: Why are we seeing so many embarrassing media lapses - the Boston Globe columnists, the Times, the CNN nerve gas stories, Cincinnati Enquirer Chiquita tapes? Is it a lack of standards, ethics, over-emphasis on sensationalistic stories?

AN: Well, I think some of it is the fact that primarily because of the Internet the pressure is greater to get it first and fastest than it used to be. Traditionally journalists were taught to believe in accuracy above all else. And that changed. I think it changed with Watergate, and I think the anonymous source is the most evil thing that newspapers and the media have adopted or adapted in the last 25 years. It started with Watergate, (when) journalists coming off college campuses (were) determined to be (Bob) Woodward or (Carl) Bernstein. They believed that because of Watergate's successes there was dirt under every mat in front of every office. They came out as young cynics. The journalists of my generation were taught to be skeptics. And there's a hell of a difference between a skeptic and a cynic. All you need to do is be accurate and fair.

SB: A recent poll revealed that 71 percent of the American public believed the media to be frequently inaccurate in reporting. How can we restore the public's confidence?

AN: Instead of being inaccurate, be accurate. You can fix it simply by being both accurate and fair, and I think that has to happen first of all in the classroom. It has to be taught, and then it has to happen in each individual newsroom.

SB: Is there a way for the American media to get away from the use of confidential sources?

AN: Sure. Ban 'em. I believe that Woodward and Bernstein could have done their job as effectively. It might have taken a little longer if they had named sources. I don't think there was a Deep Throat at all. I think Deep Throat was a combination of Ben Bradlee and Woodward and Bernstein and the people at the Post talking to each other and comparing things they got from anonymous sources. When we started USA TODAY we absolutely banned anonymous sources.

SB: What do you see as your legacy to American journalism?

AN: I'm the wrong person to answer that question. First of all, it's too early to tell. Hell, I'm just a kid. And secondly, I'll leave that entirely to journalism historians to decide. I have certain things I hope my family remembers me for - that's very important. I hope there are some things in journalism that might be remembered for better or worse, but I don't sit around worrying about that. I think about today, and I don't worry about legacies.

In his lecture "Can the Press Be Both Free and Fair?" Mr. Neuharth will discuss the reasons behind recent notable media lapses, such as Boston Globe columnists Patricia Smith and Mike Barnicle, the Time/CNN nerve gas story, free-lancer Stephen Glass' fabricated articles in The New Republic, and The Cincinnati Enquirer Chiquita tapes. Among the controversial issues Mr. Neuharth will address are whether these lapses are caused by a lack of standards or ethics, or by overemphasis on sensational stories.

A native of Eureka, SD, Mr. Neuharth, 74, a selfmade multi-millionaire, is best known for successfully starting the national newspaper USA TODAY in 1982, despite initial widespread skepticism within the media community. At that time, he was chairman and CEO of Gannett Company, Inc., the nation's largest newspaper company. While Mr. Neuharth was Gannett's president, chairman and CEO for 19 years, the company's annual revenues increased from $200 million to $3.1 billion. He also founded The Freedom Forum, one of the nation's largest private foundations, which funds programs and grants for projects regarding free speech and free press.

As detailed in his internationally best-selling 1989 autobiography, Confessions of an S. O. B., Neuharth began his newspaper career as an Associated Press reporter in his native state, then worked his way into management at newspapers in South Dakota, Florida, Michigan, and New York, including The Miami Herald and the Detroit Free Press. Three years after joining Gannett in 1963, Mr. Neuharth became president of Gannett Florida, and started TODAY, later renamed FLORIDA TODAY. He was appointed Gannett's president and chief operating officer in 1970.

In addition to being chairman and president of the Newspaper Association of America, Mr. Neuharth was named the most influential person in print media for the 1980s by Washington Journalism Review. The many honors and awards he has received includes the 1975 Horatio Alger Award.

Since his "retirement" in 1989 at age 65, Mr. Neuharth has spoken on the international lecture circuit, appearing on national TV and radio talk shows. He has written seven books. He also writes a weekly column "Plain Talk," which appears in USA TODAY and other Gannett newspapers.

Mr. Neuharth resides in Cocoa Beach, FL, with his wife, Rachel Fornes, and their four adopted children. He also has two children by his first marriage, Dan, 45, a former journalist and university teacher, and Jan, 43, president/owner of Paper Chase Farms in Middleburg, VA.

JACK BRESLIN

Bulletin Editor

CDA provided for criminal and civil penalties to anyone who "by means of a telecommunications device knowingly makes, creates or solicits and initiates the transmission" of anything "obscene, lewd, lascivious, filthy or indecent" to a minor. This language was so broad that even an e-mail from a mother to her 17-year-old college son telling him to buy condoms would have been a violation.

The Supreme Court overturned CDA in 1997 in Reno v. the American Civil Liberties Union. In that case, the Court said that CDA was overly broad and included speech that might well be protected by the First Amendment. The Court added that there are other options for parents to control what their kids see, such as filtering software.

The Child Online Protection Act (COPA) is the latest congressional attempt to control online sexual content. It provides criminal and civil penalties for "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." COPA differs from CDA in that it includes only commercial sites and requires operators of those sites to put in place age verification systems.

The act also provides a so-called "affirmative defense" for commercial sites that use age verification to attempt to screen out minors. The definition of "material that is harmful to minors" is a modification to the legal definition of obscenity that the Supreme Court set out in 1973.

So will "CDA II" pass constitutional muster? At least one judge thinks it will not. The ACLU requested a temporary restraining order against COPA's enforcement from a federal district judge right after the act was passed. On Nov. 20, 1998, the judge granted the temporary restraining order based on his assessment that the plaintiffs had shown to his satisfaction that they would win a case against the new law. The ACLU website reports that the temporary restraining order has been extended until Feb. 1, 1999 with hearings scheduled Jan. 20-22.

The language of COPA strongly resembles the infamous obscenity definition found in the 1973 Supreme Court case Miller v. California. In Miller, the Court used terminology that defies common-sense understanding; to be deemed obscene (and thus unworthy of First Amendment protection), material must "appeal to the prurient interest" of the average person applying "contemporary community standards;" describe sexual conduct "in a patently offensive way;" and lack "serious literary, artistic, political or scientific value." COPA adopts this languages and adds to it phrases intended to narrow the scope to minors.

Because the Court has been using the Miller test for over two decades, some commentators believe that COPA has a better chance than CDA of surviving a constitutional examination. Proponents add that COPA is not intended to censor sexual material but only make it difficult for children to stumble across it while surfing the Web.

The ACLU is not convinced. Nor is the Justice Department, which had voiced serious concerns about COPA's constitutionality before its passage and is now in the position of having to defend it.

Legislatures and courts have been struggling for years to determine what is truly obscene and therefore not deserving of First Amendment protection. Common sense suggests that what might be acceptable in New York, San Francisco or Chicago might not be acceptable in Duluth, Minn., Eau Claire, Wis. or Grand Forks, N.D. Further, something acceptable in Paris, Brussels or London may face objections anywhere in America. And, while government might have an interest in helping parents control what their children see online, most probably would prefer to make that decision for themselves and their children.

Most important, laws that put in place government censorship of any kind are dangerous. On its face, COPA looks like a law designed with the best interests of parents in mind. It looks reasonable -- it even provides a defense if the purveyor of the sexual material is acting in good faith to screen out minors.

Even if one grants the good intentions of Rep. Michael Oxley, R-Ohio, author of COPA, and others, COPA is still dangerous, say opponents, because it puts control of Internet content into the hands of the government. And that provides a basis from which other governmental controls of online expression could spring. COPA has potentially far-reaching consequences for online expression of all kinds.

Although the furor over COPA has died down, the thorny problem of online sexual content will not go away so readily. Whether COPA survives or not, the debate will continue. Watch for a new round in the next few months.

GENELLE BELMAS

Former Silha Fellow

One of the most legislatively active and controversial areas in media law today is Internet pornography. Parents are concerned about what their children are seeing online and might be feeling helpless to control the sexual imagery that is fairly easy to find with just a few clicks of the mouse. Repeated calls for a control mechanism have resulted in proposals by Congress and software developers.

After the Supreme Court of the United States declared the Communications Decency Act unconstitutionally overbroad last year in Reno v. ACLU (American Civil Liberties Union), Congress tried again with the Childrens Online Protection Act of 1998. The ACLU immediately sought to enjoin the act's enforcement, arguing that the effect of the law was to chill speech that was probably protected by the First Amendment, and received a 10-day injunction (which ended December 4, 1998). The judge said that the plaintiffs had demonstrated that they would succeed on the merits in court.

While Congress has been struggling with legislative solutions, software developers have not been idle. A number of companies have come out with filtering packages by which parents can ostensibly control what sites their children are able to see when they surf the Web. While a good idea in principle (recommended, in fact, by the Court in Reno), parents may not realize that they might be buying a political ideology when they buy a filtering package. Some packages have been alleged to block not only sexual content but also content that the company finds politically or socially objectionable (such as information about gay and lesbian lifestyles or about abortion options for pregnant teens).

My paper looks at the online pornography issue and the attempted solutions to kids gaining access to sexual materials online. I propose an alternative that bypasses both constitutional overbreadth and ideological problems. This alternative is an application of established property zoning principles to online sexual content. The Court has already approved such zoning in the "real world," so an application of similar principles to the online environment should pass constitutional muster.

GENELLE BELMAS

Former Silha Fellow

Among those struggling to keep abreast of these developments are media lawyers, many of whom were in attendance at the most recent Communications Law conference in November in New York City. The Conference, sponsored by the Practising Law Institute, is the largest annual gathering of media lawyers in the country.

While there were no media-related U.S. Supreme Court cases to discuss this year, there were several other court battles to dissect, the most significant being the government's antitrust lawsuit against Microsoft. While this case does not directly involve the news media, attorney James Goodale insisted that journalists pay attention to the case, because the internet will eventually become the dominant conduit for all communication, and because those companies who control access to the net can potentially control its content.

In terms of industry structure, most panelists conceded that the post-Telecom Act convergence of media will continue for several more years. Attorney Richard Wiley argued that we are headed unavoidably toward a world in which most media are controlled by a handful of major conglomerates, but he added that even in that environment there will still be room for smaller, niche providers.

Among the issues directly affecting journalists, the most widely discussed involved newsgathering. Courts are showing increasing intolerance for a variety of newsgathering tactics, as evidenced most prominently by the fraud and trespass judgment against ABC for its investigation of Food Lion. That decision may have also affected the Cincinnati Inquirer's recent decision to settle a lawsuit brought last year by Chiquita Brands, Inc. against the Inquirer for its investigation of the company. While one Inquirer reporter did admit to illegally accessing Chiquita's corporate voice mail, some panelists wondered whether the paper was getting gun shy in the wake of Food Lion.

The courts' growing impatience with newsgathering tactics were also revealed in a series of cases this past year involving police ride-alongs. Several courts have refused to provide legal protections for journalists involved in ride-alongs, and nearly all of the conference participants indicated that in the current legal climate, they would advise their media clients against participating.

ERIK UGLAND

Silha Fellow

In beginning his historical study of journalistic objectivity, author David Mindich discusses whether the term should be put inside quotation marks or not - in other words, is objectivity an achievable ideal or an unattainable myth? After reading this informative 19th century history of "journalism's most celebrated goal and least understood practice," one at least comes away with a better understanding of how objectivity has evolved in American journalism. Whether it is possible today is left for another book.

From the start, the author admits that the "slippery nature" of objectivity makes it difficult to adequately define, which makes writing its history even more difficult. Using his background as both a historian and journalist, Mr. Mindich, a former CNN assignment editor, offers a comprehensive historical treatise on objectivity by researching the origins and founders of its principle elements, namely detachment, nonpartisanship, the inverted pyramid, facticity and balance. The book's main focus ranges from the end of the partisan press in the 1830s to the emergence of objectivity as a goal for magazines and newspapers of the 1890s.

Instead of rehashing other journalism histories about more famous editors, Mr. Mindich focuses on some overlooked tales, such as New York Herald editor James Gordon Bennett's three severe beatings by his rival, James Watson Webb of the Morning Courier and New York Enquirer. That same innovative style carries into "three shades" of nonpartisanship by analyzing the political journalism of Bennett (centrist nonpartisan), William Lloyd Garrison (antipartisan) and Frederick Douglass (activist nonpartisan), as well as the influences of the social sciences and medicine on journalistic objectivity.

The author convincingly argues that the inventor of the inverted pyramid structure was not the Civil War battlefield correspondent writing for telegraph transmission. Instead, it was President Lincoln's public relations official who censored the reporter's copy, Secretary of War Edwin M. Stanton, who was trying to keep a "tight rein on discourse" in his official news dispatches, such as in his reporting of Lincoln's assassination. In discussing balance, Mr. Mindich, a New York University doctoral graduate, describes the anti-lynching advocacy journalism of Ida B. Wells as a precursor to today's public journalism, pioneered by NYU Professor Jay Rosen.

Mr. Mindich's book would serve as excellent supplemental reading for graduate level journalism ethics and history courses, however, one finishes the book wanting more about the current objectivity controversy. But that was not his objective here. Perhaps, the author should have concluded with the 19th Century press, rather than attempt a limited comparative discussion of today's objectivity debate featuring CBS News anchor Dan Rather and others in the introduction and conclusion. A possible future study could include more insightful journalism scholars and practitioners in examining the rise and fall of objectivity in the 20th Century American media. That would be a worthwhile project for Mr. Mindich's continued historical contributions on objectivity.

JACK BRESLIN

Silha Fellow

These journalists, in the course of long and barely structured interviews, talked often about the widespread practice of taking bribes for printing information, or for withholding it. Some called this the AC\DC journalistic approach. "Attack and Collect, or Defend and Collect." When I returned to Asia as a Fulbright scholar in the 1990s, I found that such practices were not isolated in the Philippines.

The more I questioned these provincial journalists, the more I observed a very sophisticated professional understanding, and a degree of practical tolerance for journalistic practices such as accepting bribes, gifts, "grease money", and for "going on the take."

The focus of my study on the press and social change was for the most part diverted by the hard realities of the journalists' social, economic, and political existence. How could they be "objective" when the world in which they lived and worked was one of intense political, social and economic uncertainty?

It was easy to get journalists to describe their daily work, and to speculate on the provincial press as a tool for national development. The 54 I interviewed tended to be highly educated, including many with law degrees. They expressed a high regard for unfettered and objective press systems where journalists can report the truth and challenge the economic, social, and political status quo in an effective manner.

Such abstract and theoretical discussions were a welcome diversion from the everyday pressures of publishing a newspaper containing little advertising and realizing little legitimate profit.

I was rarely able to establish the intimacy necessary to ask these journalists if they were personally involved in taking grease money, envelopes, or other under-the-table rewards. Some strongly hinted that they or their colleagues were on the take in some way, but pursuing that line of inquiry was risky with regard to maintaining the confidence of the subjects and to pursuing other lines of inquiry.

What I was able to accomplish was establishing strong evidence of the widespread practice of what was commonly known as "envelope journalism". Generally this means payment for either printing or withholding information. Most such exchanges appeared to be so informal and so routine, that there was little or no negotiation involved. The journalist might write something legitimately positive about a local government official or business leader, and later receive an unsolicited envelope of money or a gift.

One young and obviously idealistic reporter told me how he had written a news story about a local politician and received an envelope containing the equivalent of about $20 U.S. dollars. He said he was stunned and shamed. When he tried to return the money, he said the politician also appeared stunned and shamed. Returning the "gift" was perceived as an insult to the giver and a serious deviation from established journalistic convention.

A report by the Asian Institute of Journalism presented a sympathetic but critical view of the problem of envelope journalism. It said that for both journalists and editors, economic difficulties contributed to competitive behavior and to a struggle for economic survival. Several respondents in the study admitted having compromised "objectivity" owing to low salary and poor incentives.

It was obvious that journalists were generally inadequately compensated for their legitimate reporting practices. One obviously talented and locally esteemed journalist told me he earned the equivalent of $160 a month in salary. Many reporters resort to selling, advertising, or working at other jobs, including as public relations officers and speech writers for government agencies.

I found that by its nature, provincial journalism in such nations lends to attempts by those with power and money to influence it to their own ends. (These attempts, apparently successful in many cases, fall into categories ranging from outright bribery and fixed retainer payments to lesser abuses such as an occasional free lunch, or gifts of cigarettes or liquor.)

Otherwise ethical journalists, many of whom risked their lives to take adversarial positions against local and national government, told me they were forced to condone varying forms of envelope journalism. The economic and social realities of the environment they lived and worked in made it necessary to sanction such practices or to leave the profession altogether.

I concluded from the initial study of Philippine provincial journalists that envelope journalism was widely practiced. There is little to suggest that in 1999 it has diminished.

Certainly, attempting to apply imported codes of journalism ethics and practices barely applicable in Western nations, where journalists are more apt to earn a middle class wage, is likely to have negligible results.

In further pursuing the topic of corruption among journalists in underdeveloped nations, researchers should avoid a condemnation of these practices, before they have assessed the economic, political, and social barriers that foster them. Rather, an empathetic approach is needed which incorporates situational ethics and assumes that most any journalist would act in a like manner given similar economic and political insecurities.

My findings with regard to envelope journalism are admittedly methodologically suspect. The approach in the interviews was too casual and indirect. Still they have proven useful in that they were incorporated into ethics workshops for journalists that have begun the conversation on how to move toward more ethical journalistic practices. I am, however, convinced reasonably ethical practices will emerge only when these journalists are reasonably paid for what they accomplish as accurate and fair reporters and editors.

Richard Shafer
Associate Professor of Journalism
UND School of Communication
Grand Forks, North Dakota
tel. 701-777-4815\ e-mail: rshafer@prairie.nodak.edu
from Dec. 19th to Jan. 4th, contact in Salt Lake City at: tel. 801-485-5333

Ugland, who was previously a Fellow while working for his master's degree, has earned his law degree and his master's from the University of Minnesota. He then worked as a research associate for the Freedom Forum in New York and Washington, D.C.

Breslin received his bachelor's degree in philosophy. He studied for his master's degree at Southern Illinois University and the University of Georgia, where his thesis focused on media coverage of terrorism and how coverage affects police-press relations and First Amendment issues. He has worked professionally for Fox Network as a publicist for America's Most Wanted and for NBC with Late Night with David Letterman.

The Silha Professor will be an integral part of a major new initiative that will use an infusion of new legislative funds, private funds, and redirected college resources to revitalize this highly respected school. Over the next four years, we anticipate that ten new faculty will be hired, the school's facilities will be completely remodeled and updated with state-of-the-art equipment, and an Institute for New Media Studies will be opened. The Silha Professor will be an important voice in setting the new direction for the school.

The successful candidate must have a record of outstanding scholarship in media law and teaching, and/or substantial professional experience and national prominence in the field of media law. The holder of the Silha Professorship will be expected to lead a program of research, teach undergraduate and graduate courses, advise graduate and undergraduate students, maintain ties to the professional community, and serve on appropriate committees. Candidates must show evidence of teaching effectiveness or strong promise of excellence in teaching. Earned doctorate or law degree required.

This professorship carries affiliation with the Silha Center for the Study of Media Ethics and Law.

To apply, send letter of application, current resume or curriculum vitae, and samples of research and/or a narrative statement on research goals and plans. In addition, please provide names and addresses of three references who would be willing to write letters of recommendation.

Applications will be reviewed beginning February 1, 1999. Position is open until filled.

Submit application to:

Mary Achartz, staff to SJMC Search Committee
School of Journalism and Mass Communication
University of Minnesota
111 Murphy Hall
206 Church St. SE
Minneapolis, MN 55455

The University of Minnesota is committed to the policy that all persons shall have access to its programs, facilities, and employment without regard to race, color, creed, religion, national origin, sex, age, marital status, disability, public assistance status, veteran status or sexual orientation.

By 8 a.m. the next morning, I had received e-mail messages from colleagues in South Africa, California, Chicago, Florida, Boston, and New York. Everyone asked the same questions: "Jesse Ventura?" "Governor? "How could this happen in, of all places, Minnesota?" I've thought many times during the past two months about their questions, and the reasons why nearly 40 percent of my state's voting public went with Mr. Ventura. And I'm hard-pressed not to blame - at least in part - the messenger.

Clearly, the reasons that he is now our governor are varied and complex. Most political pundits agree that the public was fed up with politics as usual, neither the IR or DFL parties fielded their best candidates, Mr. Ventura was invited to participate in state-wide debates, Mssrs. Coleman and Humphrey were decidedly lackluster as campaigners, and Mr. Ventura was successful at luring first-time voters with catchy, one-liner responses to complex questions and issues. Still, I propose that the Twin Cities media dropped the political ball by giving Mr. Ventura insufficient coverage and scrutiny, thus helping to pave his way to the governorship.

Before Mr. Ventura surged in the polls a few weeks before the election, the broadcast and print media viewed him as it would an amusing sideshow at the State Fair. Once he reached 20 percent in the polls, however, and he was seen as a "viable" candidate, he received similar coverage to that given to the two major party candidates, even though he was still depicted in some stories to be little more than a political freak with no real chance of winning the election.

By covering him in the run-up to the election as they did Mr. Humphrey and Mr. Coleman, the Twin Cities media gave Mr. Ventura's candidacy a huge boost. Mr. Humphrey, as the State's attorney general and the person who masterminded the state's high-profile battle with the tobacco companies for the past few years, had received extensive media coverage for some 16 years. No one in Minnesota had to be reminded who his parents were. Mr. Coleman, for his part, had received extensive coverage for most of the 90s as St. Paul's flamboyant, let's-make-a-deal mayor - a man who was elected as a Democrat, became a Republican, and was reelected.

I would propose that the local media had a responsibility to cover Mr. Ventura so thoroughly that by election eve voters would know him as well as they did his two challengers. In other words, once his candidacy was seen as "viable," they should have covered him much more than they did Messrs. Humphrey and Coleman. By deciding not to cover him so extensively, they did a real disservice - and, indeed, were unfair - to the IR and DFL candidates, by giving Mr. Ventura what amounted to a "free ride."

Mr. Ventura was the first serious statewide candidate that had been fielded by Ross Perot's Reform Party; something that made Mr. Ventura's candidacy newsworthy. And, indeed, the media have a responsibility to examine in detail any serious political candidate. The more unknown or unusual that candidate is, the more serious that responsibility is if that candidate has a viable chance of winning.

There is clear precedence for the media deciding to cover a person or an issue extensively. A few years ago The New Orleans Times-Picayune decided to cover former Klan leader David Duke's race for governor of Louisiana as a hurricane, considering that his election would be detrimental to both the state and the nation. By most accounts, the paper's extensive news coverage was balanced and fair. The editorials were pointedly against Mr. Duke.

And the Twin Cities two major newspapers covered the tobacco industry from 1994 to the tobacco litigation in 1998 as it would a pernicious pestilence, without any semblance of balance or objectivity. In particular, both the Star-Tribune and the Pioneer Press displayed an anti-tobacco bias in their news stories. All of which begs the question: Why do the local media consider it appropriate to cover an industry in a non-objective fashion, but to cover in run-of-the-mill fashion a former professional wrestler who is surging in the polls and whose only political experience is as a part-time suburban mayor?

Clearly, when the media have determined that something or someone is a perceived evil or a potential problem, the rules change. The question is whether the local media should have considered it potentially dangerous - or, at the very least, quite worrisome -- that an entertaining political neophyte could become governor. During the fall campaign Mr. Ventura said he favored legalizing prostitution, deferred to his running mate on most complex issues of education, and frequently admitted to having no idea of what to do about the state's economy. It's not an elitist stretch to suggest that such an "agenda" could be detrimental to the wellbeing of a state.

What might the media have done? In addition to covering Mr. Ventura much more extensively than they did his two challengers, they might have:

• Doggedly questioned him about his ideas on economics.
• Not taken "I don't know" answers, but probed to find out why he didn't know, whether he thought he should know, when he expected to know, etc.
• Created investigative teams of top reporters to find out more of Mr. Ventura's past, to interview his many past associates over the years, and to create a truly comprehensive profile of the candidate.
• Repeatedly reported on his lack of education policies.
• Much more extensively written about him in their editorial and opinion pages.

The Twin Cities are fortunate to have some excellent journalists, a number of whom have won acclaim for investigative journalism ranging from the local Premack Award to the Pulitzer Prize. Clearly, the local media could have done a spectacular job of covering Mr. Ventura had that been its decision.

Would the outcome have been any different had the local media strenuously covered Mr. Ventura? Would such coverage have mattered to the 37 percent of voters who voted for "Ventura" on election night? Possibly not, but having given Mr. Ventura only "softball" coverage, we'll never really know for sure whether serious, prolonged coverage would have made a difference. And that a Ventura governorship may eventually be better than many predicted is hardly justification for having avoided tough, pointed coverage of candidate Ventura.

I've noticed that the coverage of Mr. Ventura has become more serious and investigative in nature since his election. I can't help wondering what the point is of now exploring his views, instead of examining them before the election. A colleague of mine who worked at the Times-Picayune during the time when Mr. Duke was elected a state legislator, compares such after-the-win coverage to learning to drive after you've already crashed.

Don't get me wrong. I'm not equating Mr. Ventura's political ignorance with Mr. Duke's racist past. I am saying, though, that when a person who has made a living faking athleticism suddenly becomes a political contender, it's time for the media to carefully examine the person to let the voters know who he is, what his policies might be, and what the consequences might be were he elected.

The media might respond that it would be unfair to Mr. Ventura to cover him more strenuously in the last few weeks before the election than it did his two major challengers. But by not covering his candidacy more strenuously, the media were unfair to the voters of the state, who deserved to know more about the person for whom many of them ultimately voted.

WILLIAM A. BABCOCK

Director, Silha Center

You are invited to respond to this essay by e-mailing the Silha Center at Silha@umn.edu.

In Reno III, the Court upheld a district court injunction preventing enforcement of the Child Online Protection Act. Congress passed COPA after an earlier attempt to restrict minors' access to certain Internet content - the Communications Decency Act - was struck down by the U.S. Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997) (Reno II). The Supreme Court held that the CDA's imposition of criminal penalties for the distribution of "indecent" and "patently offensive" content was vague and overbroad. Congress sought to remedy the deficiencies of the CDA by linking the penalties under COPA to Internet content that is "harmful to minors" as judged by "community standards."

Congress' attempt to create a more definitive standard was rejected by the Third Circuit. It held that COPA is a content-based regulation of speech, which under the First Amendment can only be upheld when narrowly tailored to serve a compelling government interest. Although conceding the government's interest in preventing harm to minors, the court said that by relying on community standards to determine what is harmful, the law was overbroad and burdened more speech than necessary.

The court held that community standards cannot be determined in the Internet context, because speech in that medium is not bound by geography. In order to comply with COPA, communication on the Internet would have to conform to the standards of the least tolerant segments of society. That imposes too great a burden on expression, the Court held.

By rejecting the applicability of community standards to the Internet, the Third Circuit has created a substantial roadblock to all future attempts to regulate Internet obscenity. The Supreme Court outlines its test for defining obscenity in Miller v. California, 413 U.S. 15 (1973). Miller requires that obscenity be determined by considering the view of "the average person applying contemporary community standards." If community standards for Internet communication cannot be defined, as the Third Circuit says, then the Miller test cannot be applied and obscenity cannot be defined. What cannot be defined cannot be regulated.

The Third Circuit Court made clear that its rejection of the community standards test was limited to the Internet context and should not be read as an assault on Miller or on the need to define and regulate obscenity in other contexts. However, if regulation of obscenity is prohibited in what is certain to become the most dominant communications medium, it may create pressure to lift restrictions in other contexts. Even if restrictions on obscenity survive in other areas, they may be of little practical effect if the expression they target can simply be channeled - whether as text, audio or video - through the Internet.

Ultimately, the Supreme Court will need to decide whether to end its long struggle to define obscenity, or to create an Internet-specific Miller test that accounts for the boundless geographic reach of online communication.

Erik Ugland

The Minnesota Legislature is no exception. It considered several privacy proposals in the 1999-2000 session. The proposals came from all directions - from Attorney General Mike Hatch, from the DFL Senate and House caucuses, and from House Republicans under their "Privacy Bill of Rights" banner. Although none of these proposals was passed last session, most are sure to reappear in the next session beginning in January 2001.

The U.S. Congress also passed several laws limiting public access to information in the name of privacy protection. A new federal law requires web sites collecting information on customers under age 13 to first obtain parental permission. More privacy legislation can be expected soon from Congress. Senate Democrats recently formed a Privacy Task Force to design measures to close off access to "personal information," and a bi-partisan Congressional Privacy Caucus was also formed to consider additional privacy legislation.

The White House has been working with the Federal Trade Commission to devise a regulatory scheme to govern the handling of personal information by commercial Web sites. And in March 1999, President Clinton appointed law professor Peter Swire to be the new White House "privacy czar."

The courts have for the most part endorsed these mounting restraints.

In its 1999-2000 term, the U.S. Supreme Court became the venue for two access-privacy battles. The Court decided Los Angeles Police Dept. v. United Reporting Publishing Corp., 120 S.Ct. 483 (1999) and Reno v. Condon, 120 S.Ct. 666 (2000), both of which rejected constitutional challenges to access restrictions.

In LAPD, the Court considered whether a California law prohibiting the release of police blotter information to those using the information for a "commercial" purpose violates the First Amendment. The law permits access to this information only when used for a "scholarly, journalistic, political or governmental purpose."

The Court ruled (7-2) that because the government is not constitutionally compelled to provide access to its records, the limitations imposed do not raise a First Amendment problem. In fact, the Court said the government could deny access to arrest information altogether without violating the First Amendment. The Court also sanctioned a system of discriminatory access. Although journalists were included in the favored class of requestors under California law, they might not be in other legislation. Many journalists reject laws giving them a special status because they require the government to determine who is and who is not a journalist.

In Reno, Congressional authority to dictate state records policy was the issue before the Court. The Driver's Privacy Protection Act, passed by Congress in 1994, regulates the release of driver information collected by states through their licensing and registration processes. South Carolina challenged the law as an infringement of states' rights under the 10th Amendment.

The Supreme Court unanimously ruled that because the DPPA regulates the sale of data, the Commerce Clause enables Congress to regulate its dissemination. The Court rejected the states' rights argument, saying the DPPA regulates states only as owners of databases; it does not intrude on their "sovereign capacity to regulate their own citizens."

Reno affirmed the federal government's dominion over the sale of all government records, raising concern that access-friendly state laws are now at risk of being overrideen by federal restrictions.

While the DPPA case was pending before the Supreme Court, Congress passed an amendment to the law, which provides specific penalties for states that grant access to individuals' motor vehicle records without their consent. Commonly referred to as the Shelby amendment, this legislation changed the law from an "opt-out" to an "opt-in" system. "Opt-out" means records are presumptively open to the public, unless the individual record subject objects. "Opt-in" means records are closed, unless the subject affirmatively consents to their release. The Shelby amendment provides that states will be fined up to $5,000 for each day they are in violation of the law.

In January 2000, Minnesota Sen. Leo Foley introduced a bill to require state government compliance with the Shelby amendment. But after considering the policy issues involved, the extent to which the law intrudes on the state's autonomy, and the fact that the state makes more than $10,000 a day by selling motor vehicle records, the Senate Data Practices subcommittee amended its bill to require compliance only if the federal government begins imposing fines. The amended bill was never considered by the full Senate before the end of the session in May 2000.

Nevertheless, on July 6, 2000, Minnesota Commissioner of Public Safety Mike Weaver took what appears to be an unprecedented step by ignoring the sentiments of the Legislature and unilaterally mandating Shelby compliance as of August 1, 2000. The impact of implementation of this policy on journalists may be insignificant, however. In practice, Minnesota journalists have been treated as exempt from the DPPA under a "catch all" exemption that allows access for those whose use of motor vehicle information promotes highway safety. Because the Department of Public Safety has said in the past that journalists qualify under that exemption, Weaver's action may have little practical effect on them, although it will largely shut out access by the general public.

More than a dozen privacy initiatives were introduced by legislators in the last session. Among the most comprehensive was the Attorney General's proposal that would have restricted the release of customer data by banks, phone companies, telemarketers and medical companies absent customer consent.

Broad bi-partisan support for additional privacy legislation, acquiescence by the courts and public support sugget that the government's movement to reshape the balance between privacy and access may have only just begun.

Erik Ugland

In Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), cert. granted, 112 S.Ct. 2716 (2000), the U.S. Court of Appeals for the Third Circuit held that the Pennsylvania and federal wiretap statutes, which prohibit the "use" or "disclosure" of illegally intercepted communications, are unconstitutional as applied to parties who did not participate in or encourage the illegal interceptions.

The case could have significant implications for journalists, who are often presented with newsworthy information that was gathered - sometimes illegally - by those outside of their organization. The Supreme Court's ruling in the case is also important because it will determine the application of similar statutes on the books in 43 states and the District of Columbia. Minnesota is among these states. See Minn. Stat. §626A (1969). Bartnicki is the only free press case on the Supreme Court's docket for next term.

Bartnicki arose after an unknown party intercepted and taped a May 1993 cellular telephone call between Pennsylvania high school teacher Anthony Kane and Gail Bartnicki, chief negotiator of the local teachers' union. During the conversation, Bartnicki, discussing the school board's consideration of a proposed teacher pay raise, said, "If they're not going to move for three percent, we're gonna have to go to their, their homes ... to blow off their front porches, we'll have to do some work on some of those guys."

A tape of the conversation was forwarded to Jack Yocum, president of the local taxpayers' association, who sent a copy to radio talk show host Frederick Vopper. Vopper broadcast excerpts of the taped conversation on his show.

Bartnicki and Kane filed suit in the U.S. District Court for the Middle District of Pennsylvania against Vopper, Yocum and the radio station under both state and federal wiretapping laws. See 18 Pa. Cons. Stat. §5701 et seq., and 18 U.S.C. §2510 et seq. Both statutes provide civil and criminal penalties for those who illegally intercept private communications, as well as for those who use or disclose the contents of those conversations "knowing or having reason to know" the information was obtained illegally.

The defendants argued that the statutes, as applied to their actions, infringed on their First Amendment free expression rights. After denying both plaintiff and defendant motions for summaryjudgment, Bartnicki v. Vopper, No. 94-1201 (M.D. Pa. June 14, 1996), the District Court certified this constitutional question to the Court of Appeals for the Third Circuit, which accepted review on Feb. 26, 1998. The Third Circuit found the relevant portions of the state and federal statutes to be unconstitutional as applied.

Attorneys for the federal government intervened in the case to defend the federal statute. They argued that the law serves the government's substantial interest in protecting the privacy of personal communications, and that by permitting these suits, the government was "eliminating the demand for intercepted materials on the part of third parties."

The court acknowledged the government's interest in protecting privacy, but said both the state and federal laws were "substantially broader than necessary" and would deter the media from disclosing even some legally obtained information. The government's interest in protecting the privacy of communications was outweighed by the speech interests of the defendants, the court held, and the government's interests could still be achieved through less restrictive means - specifically, by reserving penalties for those who intentionally intercept messages.

The court concluded that the wiretapping statutes could not constitutionally be applied against those who use or disclose illegally intercepted information without evidence that the defendants participated in or encouraged the interception.

On Dec. 24, 1999, two months before the Third Circuit's Bartnicki ruling, the Court of Appeals for the D.C. Circuit upheld the constitutionality of the federal wiretapping act in similar circumstances in Boehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999). Conflicts between the Bartnicki and Boehner rulings led to the Supreme Court's decision to review.

In Boehner, the D.C. Circuit Court held that U.S. Rep. James McDermott, D-Wash., could be found liable under the federal wiretapping act for distributing to news organizations tapes of an illegally intercepted conference call between U.S. Rep. John Boehner, R-Ohio, and several of his Republican colleagues, including former House Speaker Newt Gingrich. At the time, Gingrich was under investigation by the House Ethics Committee, which was chaired by McDermott. The Dec. 21, 1996, phone conversation was illegally intercepted and taped by a Florida couple. They eventually delivered the tape to McDermott's office, along with a letter explaining how they had accessed the conversation.

On March 9, 1998, Boehner sued McDermott for civil damages, but the U.S. District Court for the District of Columbia dismissed the claim, holding that application of the statute to McDermott violated the First Amendment by punishing the dissemination of truthful information. Boehner v. McDermott, No. CIV. 98-594 TFH., 1998 WL 436897 (D. D.C. July 28, 1998). The D.C. Circuit reversed and sent the case back to the District Court for trial. There was no First Amendment problem in this case, the D.C. Circuit Court held, because McDermott's distribution of the tape to the news media did not constitute "speech."

There are a few key distinctions between Boehner and Bartnicki that the Supreme Court will be likely to address:

• One of the defendants in Bartnicki is a news organization, and another is, by most definitions, a journalist. The Court will need to consider whether the constitutional standard should be different for media defendants, than for non-journalists like Rep. McDermott.
• In Bartnicki, the defendants did not know that the conversation had been illegally intercepted; in Boehner, the defendant apparently did. (McDermott has not yet conceded this fact, but the D.C. Circuit assumed it to be the case.) Whether that distinction is of constitutional significance is something the Supreme Court will have to resolve.

The Court's discussion may resolve a constitutional question that has been debated since the Pentagon Papers case three decades ago. See New York Times v. U.S., 403 U.S. 713 (1971). The Court never decided whether the Washington Post and New York Times could be punished for publishing the illegally procured Pentagon Papers. The Court's per curiam opinion dealt only with the constitutionality of prior restraints. Bartnicki may finally settle this question, and also provide some clearer guidelines for testing the constitutionality of restrictions on the dissemination of truthful information by both the press and the public.

Erik Ugland

As Silha Center Director Jane Kirtley reminded the audience, Minneapolis Star Tribune Editorial page editor Susan Albright has said, "Cartoons represent, sometimes all at once and sometimes by turns, biting opinions, gentle ribbing, excruciating truths, shared grief, a belly laugh of recognition, a societal relief valve, a Mr. Hyde to our Dr. Jekyll, our outrageous cousin - the one we love, but whose audacity scares us." Chip Bok's cartoons embody all those elements.

Bok defines his work as "a six-days-a-week, 52-weeks-a-year negative ad campaign," and a form of "rough justice for politicians." He says that if a political cartoon causes anger, laughter, or, best of all, thought, it has accomplished its goal. Political cartooning, he said, requires the cartoonist to find something that's happening, draw it to make a point, and then hope the reader "gets it" within seven seconds.

Bok displayed a collection of some of his most provocative cartoons, including one of a photographer claiming not to be the paparazzi, but the media. Bok drew the cartoon soon after the death of Princess Diana, with the goal of showing that if a photojournalist wanted to take a picture, he should be able to take that picture, and it shouldn't matter who the subject is. Another cartoon, drawn in reaction to the trademark dispute over the word "Ohio" between Ohio State University and Ohio University, depicted a police car pulling up to a football field to arrest a marching band as it formed the word "Ohio." Another cartoon - depicting a man waiting for execution in an electric chair, the results of a poll regarding his guilt posted behind him - was drawn in reaction to the 2000 Presidential campaign's focus on both poll results and the death penalty.

Has Bok ever been ashamed of any of his political cartoons? Not ashamed, he said, but he admitted that there are some that he has not been proud of. For example, immediately after the Russian submarine Kursk disaster, Bok thought the plight of the submarine paralleled the plight of the Gore campaign. He drew a cartoon of Gore tapping out his acceptance speech from a sunken submarine labeled "Democrats." The cartoon was drawn before the enormity of the Kursk tragedy was fully known, but appeared after the extent of the tragedy hit the news.

Another cartoon depicted a nun smacking a student with a ruler, spinning him head over heels and knocking his AK 47 automatic weapon out of his hand. Bok titled the cartoon, "Why there's no gun violence in parochial schools." He received letters of complaint about the cartoon, but had difficulty understanding why some people would find the cartoon offensive. "I even thought it was favorable to the nuns, who are fully capable [of maintaining discipline]," he said. Bok posits that he is able to do his job well because there is something inside of him, which will remain perpetually 12 years old. He feels this is a necessary trait for all political cartoonists and humorists, and illustrated his point with a story about the time he and several fellow cartoonists crashed a party at the Democratic National Convention by posing as the security detail for Los Angeles mayor, complete with phone cords from their hotel phones stuck in their ears.

Bok was asked why political cartoonists no longer "dehumanize" their subjects as they did in the 1930s and 40s, such as drawing Hitler as a rat. Bok replied that dehumanizing the subject reflects a lack of creativity. A cartoonist should seek to capture the person's personality, to see how a "victim," moves and how he behaves, he said. In illustrating his point, Bok turned to his easel and drew former President George Bush. He depicted Bush with a bony face, and with all the accoutrements of a frantic, manic life. Bok's caricature gradually assumed the demeanor of Daffy Duck. "See?" Bok asked his audience. "Why do I have to dehumanize something like that?" Then, stepping back thoughtfully from his easel, he studied his work a moment, then commented, "Oh. Maybe I have."

Political cartoons, Jane Kirtley concluded, greatly enrich the conversations that take place in a democracy. She quoted Supreme Court Chief Justice William Rehnquist who wrote in Hustler Magazine v. Falwell, "Despite their sometimes caustic nature, graphic depictions and satirical cartoons have played a prominent role in public and political debate. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them."

In addition to the Silha Lecture, Bok also gave a presentation to students and faculty of the School of Journalism and Mass Communication, appeared on Minnesota Public Radio's Midmorning with Katherine Lanpher, WCCO radio, KMSP television and KSTP television. He also spoke at a pre-Lecture dinner hosted by Mrs. Otto Silha, attended by members of the Twin Cities media and law community as well as members of the Silha family.

Stephen Silha, the son of the late Otto Silha and Mrs. Silha, presented Silha Center Director Jane Kirtley with a framed original editorial cartoon, drawn in 1964 by Roy Justus of the Minneapolis Star, to be displayed in the Silha Center.

By Elaine Hargrove-Simon

This "steady stream of sexually explicit, undeniably pornographic images" has, according to the complaint, created an unsafe and hostile working environment, subjecting the librarians to sexual harassment. The complaint, filed by attorney Bob Halagan, further claims that the library has failed to address the issue, even after being made aware of the problems. Instead of fulfilling its statutory obligations to protect its employees, Halagan argues, the library administration has chosen "to rely on ill-founded notions of 'free speech' and misapprehensions as to the true scope and breadth of the First Amendment."

In the past, library director Mary Lawson has objected to Internet filters, citing First Amendment concerns. Although the librarians have not explicitly requested the installation of filtering software, this conflict is part of a larger national debate concerning restricting online access to pornographic materials in publicly-funded libraries and schools by means of blocking software.

The crux of this issue has been whether minors should be 'protected' from obscene materials. In its 1997 ruling in Reno v. ACLU, the Supreme Court struck down the Communications Decency Act that would have required libraries to install filtering software, finding that restrictive and overreaching programs might also restrict access to socially valuable speech. Courts have not yet been presented with the question of how to balance free speech with the right to a "safe work environment" in this context.

If the library board and the librarians can find a resolution for this conflict, the courts might not have to do so in this case, either. After a complaint is filed with the EEOC, the plaintiff cannot file a lawsuit for six months, a period during which mediation can take place. Mediation meetings were held in July and November, 2000, but were not successful. No lawsuit has yet been filed, nor has the complaint been withdrawn.

On May 17, the library board adopted guidelines for Internet use at the library. Since then, the situation at the MPL has "greatly improved," according to Wendy Adamson, one of the plaintiffs, but some issues still remain unresolved. According to Halagan, the issues are not limited to addressing the librarians current situation, but also how to compensate the librarians who have had to work for a number of years in an "unsafe working environment."

Meanwhile, on December 15, right before going into recess, Congress approved a mandate that would require libraries and schools to use filtering software in order to receive federal funding. The ACLU plans to challenge the law in court because it is a "mandated censorship system by the federal government." Critics also argue that filtering software is still not refined enough. They cite a recent study by free speech group Peacefire that found that several popular Internet filters block websites of human rights organizations.

By Bastiaan Vanacker

On July 24, 2000, following a search of more than two weeks that had captivated the nation, the body of eight-year-old Sarah Payne from Brighton was found. The child had been sexually assaulted. In the wake of these events, News of the World began its "Name and Shame" campaign: the weekly publication of released sex offenders' names, addresses, phone numbers and photographs. The first 96 names appeared one week after Payne's body was found. The Sunday tabloid claimed that it wanted to galvanize public opinion, develop a debate on an important issue, and support the victim's family in their lobbying efforts to adopt what was dubbed as "Sarah's Law" in Britain. "Sarah's Law" would have been modeled on the American "Megan's Law." "Megan's Law," signed in 1996 by President Clinton, requires law enforcement agencies to notify the public when a sex offender moves into the community. It followed a national campaign spearheaded by the parents of Megan Kanka, a seven year old who was murdered and raped by a released sex offender who had been living anonymously in her neighborhood.

Since 1997 there has been a sex offenders register in the United Kingdom, but it is closed to the public. Only head teachers, doctors, youth leaders, sports club managers, and other community leaders are informed, on a confidential basis, of the existence of a sex offender in their community.

Though the situation in the United Kingdom was superficially similar to the one in the United States after Megan's death, the outcome has been different. Not only was the Rupert Murdoch-owned newspaper subjected to an onslaught of criticism by the mainstream media, it also lacked the support of important organizations like The National Society for the Prevention of Cruelty to Children and The Association of Chief Police Officers. Rather than a "galvanized public debate," a chain of violent incidents followed the publication. Two men who had been "outed" by the paper committed suicide, and a number of innocent people, mistaken for sex offenders, were chased out of their homes, harassed and suffered property damage by an aggressive mob. After two weeks and the publication of only 84 of the 110,000 names the paper had pledged to publish, the campaign ended. Despite these setbacks, the newspaper vowed to keep pushing for "Sarah's Law."

On September 16, 2000, however, home secretary Jack Straw rejected "Sarah's Law," despite a 700,000-strong petition backing it. Information on released sex offenders will remain closed to the general public in the United Kingdom. Instead, the Blair government adopted a package of measures aimed at providing safeguards for children, including informing communities about the number of sex offenders in their area, and of the measures being taken to protect children. These policies comport with the recommendations of police and child protection organizations that had spoken out against a UK version of Megan's law, contending it might drive pedophiles underground. Some lawyers also had argued that such a law could be challenged as a breach of the right to privacy guaranteed by the European Convention on Human Rights.

The whole episode might have a bitter ending for the newspaper. Rebekah Wade, the tabloid's editor, was expected to be called before a Home Affairs Select Committee to justify the campaign, much to the dismay of press freedom campaigners. The newspaper may also be facing some defamation suits.

One man is already considering suing the paper. His troubles began when his name, telephone number and address erroneously appeared on the tabloid's list. Even though the accompanying picture was of an actual pedophile with the same name, his lawyer said that it was unclear that his client was not same person as the pedophile in the publication.

According to Amber Melville-Brown, a leading British libel lawyer, the newspaper should have been more careful in identifying the actual pedophiles so there could be no confusion between them and the innocent individuals. People who have been "shunned" by the public as a result of the publication, even if the newspaper did not make any factual mistakes in its list, may file suit for defamation, because in the United Kingdom, the effect on the injured party, and not the intention of the speaker, is the legal standard.

By contrast, in the United States, the qualified privilege for accurate reports of official documents as well as opinions, acts as a defense against libel suits. An American journalist can be sued for printing false information with reckless disregard for the truth, but harm resulting from the publication of information that is in the public interest is not actionable.

On September 11, 2000, the constitutionality of Megan's Law was upheld by U.S. Court of Appeals (3d Cir.) in New Jersey, Paul P. v. Farmer , 227 F. 3d 98 (3d. Circ. 2000). A released sex offender, referred to as "Paul P." in court documents, contended that community notification of a released sex offender's address violated his right to privacy. The court disagreed, finding that there are sufficient safeguards to prevent unauthorized disclosure of information. Information about a sex offender's residence is given only to people who sign a "Megan's Law Rules of Conduct," which bars them from sharing this information with others not authorized to receive it. Because the information is given only to people who have a particular need for it, the court argued, the plaintiff's privacy right is trumped by the state's interest in disclosure.

By Bastiaan Vanacker

Transatlantic discussion began shortly before October 1998, the effective date for the EU Directive 95/46/ED on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Some countries have yet to incorporate aspects of the Directive in their national law. The Directive was designed to harmonize the differences in existing privacy laws between the EU member countries, and to create a smooth transborder flow of information within the common market.

In Europe, privacy is considered a human right. It is mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms. This Directive reflects this profound concern for privacy.

The Directive is very broad in scope, and requires each of the member states to enact laws governing the processing of personal data: "information relating to an identified natural person ('data subject')." Processing of data is defined expansively as "any operation or set of operations which is performed upon personal data, whether or not by automatic means such as collection, recording, organization, storage, adaptations or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction." However, the Directive does provide a qualified exemption for data collected for journalistic purposes.

The Directive applies to public agencies as well as to private entities. It states that data collectors can use personal data only for the purpose for which they were originally collected, and may be kept no longer than necessary for that purpose. The data have to be kept up to date, accurate and must be accessible to the data subject. Furthermore, data can only be "processed" with the consent of the data subject. The processing of sensitive information such as race, ethnicity, political opinions or sexual orientation is subject to even more restrictions. The Directive sets a very high standard for data protection, and forbids the transfer of personal data to countries that do not provide an adequate level of protection.

The United States, with its "patchwork quilt" of data protection legislation consisting of federal and state statutes that primarily regulate government use of personal data, does not meet this standard of "adequate" protection. But more than two years of transatlantic negotiating has led to an agreement that allows individual American companies to engage in data transfer activities as long as they join the voluntary, self-regulatory Safe Harbor regime. The Safe Harbor mechanism is a compromise between the strict rules of the EU and the self-regulatory approach favored by the United States. Organizations that want to invoke the Safe Harbor must follow seven principles:

• NOTICE: An organization must notify a data subject of the intended use of his data, and must provide him with information on how the organization can be contacted, what types of third parties the data will be shared with, and how the data subject can gain access to his data.
• CHOICE: An individual must be given the opportunity to "opt out" from having her information disclosed to a third party or from having the organization use her information for a different purpose that it was collected for originally (secondary use). In order to disclose or use sensitive information for a secondary purpose, an organization must obtain the explicit consent from the data subject by providing her with a "opt in" form.
• ONWARD TRANSFER: An organization that wishes to share personal information transferred from the EU with third parties must abide by the notice and choice principles, and may do so only if this third party organization also subscribes to the Safe Harbor principles.
• SECURITY/DATA INTEGRITY: Organizations creating, maintaining, using or disseminating personal information must take reasonable precautions to protect it from loss, misuse and unauthorized access, disclosure, alteration and destruction.
• ACCESS: Individuals must have access to personal information about them, and be able to correct, amend or delete information where it is inaccurate.
• ENFORCEMENT: Organizations can choose to create their own privacy policy or to join an industry-funded, self-regulatory privacy seal program such as TRUSTe or BBBOnline.

The enforcement principle has been the primary source of disagreement between the EU and the United States. The EU did not have confidence that privacy seal programs and privacy policies would carry enough weight to ensure that businesses would abide by the data protection principles. The United States, however, was reluctant to monitor private businesses, continuing to favor the self-regulatory approach. Ultimately, an agreement was reached in which the Federal Trade Commission has stepped up as the privacy enforcer in the United States.

The solution that was reached is a mixture of the American and European approach: self-regulation with teeth. This approach tries to bridge the huge gap between the American system of self-regulation and the European legal privacy framework.

Organizations voluntarily sign up for the Safe Harbor. A list of all organizations which have joined will be maintained by the Department of Commerce. Enforcement will primarily be through alternative dispute resolution mechanisms such as TRUSTe or BBBOnline. If "harborites" fail to comply with the rulings of these bodies, the FTC will be notified. The commission can then take further steps against them under section 5 of the Federal Trade Commission Act. This act declares "unfair or deceptive acts or practices in or affecting commerce" to be illegal. In a number of letters to the EU, FTC chairman Robert Pitofsky convinced the EU that the agency had jurisdiction in this matter.

From the EU perspective, this agreement has been welcomed by Internal Market Commissioner Frits Bolkenstein as a package that "will facilitate trans-Atlantic information flows by providing legal certainty for operators and the safeguards consumers demand to protect their privacy." On this side of the Atlantic, however, the national Business Coalition on E-commerce and Privacy, a consortium of companies and associations representing diverse economic sectors, has expressed its concern that American businesses are forced to adopt costly European data protection principles, though no such laws exist in the United States.

Others have pointed out that the EU system is simply not a good model to follow because it was drafted in a time when centralized mainframe computers ruled, and data collection was time consuming and expensive. Whether this legal framework will be workable in the information age, where personal data can be collected much more easily and surreptitiously is unclear.

Privacy advocates, on the other hand, have seen in the Safe Harbor agreement a powerful rhetorical device to push for more legislation in the United States. Junkbuster's president, Dr. Jason Catlett, asked the National Governors' Association in the summer of 2000 why the United States government is "supporting privacy rights for foreigners and opposing those same privacy rights for its own people?"

The Safe Harbor became effective on November 1. It remains to be seen how this mixture of self-regulation and enforcement will work in reality. For American business, however, the immediate threat of having data transfer from Europe curtailed is suspended, at least for the time being. The EU has declared it will not "freeze" any data transfer at least until the middle of 2001. By Bastiaan Vanacker

The AASFE code encourages media organizations to put policies into place that guarantee editorial independence from outside influences. The code's essence is that news organizations should not let their journalistic decisions be guided by any kind of threat or promise concerning access. The AASFE encourages its members to enforce policies against accepting free meals, trips or products offered by organizations seeking coverage. The code that was passed unanimously in New York on September 27, 2000, also labels "fan-like" behavior, such as asking for autographs, as contrary to the highest standards of newsgathering.

The RTNDA's revised code, adopted in Minneapolis on September 14, 2000, is based on six principles: Public Trust, Truth, Fairness, Independence, Integrity and Accountability. Compared to its 1987 version, the new code addresses more issues, and addresses them in more detail. Whereas in the old code, truth and accuracy were the only issues that were elaborated upon, the new code addresses a broader range of ethical issues in a more balanced and exhaustive way. Some of the new guidelines in the code include children's privacy, editorial independence from management control and other outside influences (e.g. self-interest, peer pressure), surreptitious news gathering, use of confidential sources, ethical use of new technologies, and diversity and stereotyping. Unlike its predecessor, the new code also explicitly articulates an obligation to serve the public interest, stating that journalists should "fight to ensure that the public's business is conducted in public." The new code also states that journalists should resist any professional or governmental licensing initiatives. The RTNDA has members in over 30 countries, some from countries which have licensing systems for journalists.

By Bastiaan Vanacker

The Bartnicki v. Vopper case has been one of the most closely monitored cases by media groups in recent history. (For an in-depth look at the case, see the Silha Center Fall 2000 Bulletin. The issue can be found on the Silha Center's website at www.silha.umn.edu). A cellular telephone call between two union activists was intercepted, and subsequently broadcast during Fred Vopper's radio talk show. Although no allegation was made that the radio show host had anything to do with the interception, he was sued based on language in state and federal wiretapping laws (see 18 Pa. Cons. Stat. §5701 et seq., and 18 U.S.C. §2510 et seq.) making it illegal to disseminate, as well as to tape, cell phone conversations without the consent of the parties. The high court's resolution of the case is likely to consider not only how the tape recording was obtained, but the newsworthiness of the conversation, as well as the potential impact on journalists' ability to collect and report news.

Levine is a founding partner of the Washington, D.C. law firm Levine Sullivan & Koch, LLP and is an adjunct professor of law at Georgetown University Law Center. He is a past chair of the American Bar Association's Forum on Communications Law, the principal national association of attorneys practicing in the fields of media and communications law, and is recognized in The Best Lawyers in America as a leading expert in media law.

In addition to Bartnicki v. Vopper, Levine also argued Harte-Hanks Communications, Inc. v. Connaughton before the United States Supreme Court. He has litigated in the courts of more than 20 states and the District of Columbia and has appeared in most federal courts of appeal and in the highest courts of ten states. He is one of the authors of the textbook, Newsgathering and the Law, and has written several articles, among them, "Branzburg Revisted: Confidential Sources and First Amendment Values" and "The Myth of Pre-Trial Publicity."

Levine is a past chair of the Editorial Board of The Communications Lawyer, a quarterly publication of the American Bar Association, and is a member of the Advisory Board of the Media Law Reporter. He is a member of the American Bar Association and received his law degree from Yale University, where he was the managing editor of the Yale Law Journal. He received his B.A. and M.A. degrees from the University of Pennsylvania.

The Silha Lecture is free and open to the public. For additional information, please contact Elaine Hargrove-Simon by e-mail at silha@tc.umn.edu or by phone at (612) 625-3421.

While Singer and the police were congratulating one another for the successful containment of a potentially explosive situation, others expressed concern about the ethical boundaries crossed by KKTV. Critics said that the television station should not have become an active participant in the event. According to Joanne Ostrow of The Denver Post, Singer's involvement "undermines his journalistic credibility and that of the media generally." Others claimed that in situations like this, where human lives are at stake, journalism ethics are trumped by the greater good for society. This argument was also used to justify the fact that media succumbed to the pressure from criminals to provide them with a forum. A similar rationale contributed to the decision of The Washington Post and the The New York Times to publish the Unabomber's manifesto in 1995. Critics, such as Marvin Kalb, then-director of the Joan Shorenstein Center on the Press, Politics, and Public Policy at Harvard University, maintain that the media should not yield to any of these pressures, even if human lives are at stake.

Similar issues arose over an interview published January 24 in the Phoenix New Times. The source, who had contacted the alternative weekly, was member of an environmentalist group claiming to be responsible for setting fire to eleven house construction sites in the Phoenix Preserve areas during the last three years. The group's actions are in protest of housing development and an attempt to influence public opinion in favor of growth restrictions. The self-proclaimed arsonist concealed his identity during the interview. After the interview, the Phoenix New Times was criticized for providing a forum to a confessed criminal, rather than turning him over to the police . Scores of angry letters from citizens accusing the newspaper of letting its community down arrived on the editor's desk: " The New Times had the opportunity to assist the public in solving and stopping these crimes, and intentionally chose not to do so. That does not bode well for New Times portraying itself as being an asset or watchdog to the community" one person wrote. Other journalists in the Phoenix area criticized the interview. In an editorial, Steve Wilson of The Arizona Republic called upon the Phoenix New Times to identify its source: "The best journalists I know don't share the tunnel vision at New Times about protecting sources no matter what. They feel a responsibility to weigh what's in the best interest of their profession against what's in the best interest of their community.....There are some instances when doing what's right requires placing civic duty ahead of journalistic duty."

The newspaper defended its actions by stressing the role of journalists as independent reporters of facts, the importance of keeping promises to sources and the necessity of keeping a healthy distance between media and law enforcement. It called its colleagues who had condemned its actions "reactionaries [who] bend to the prevailing breezes of popular sentiment, to the detriment of their profession." Adding insult to injury, the newspaper was also subpoenaed by the County Attorney, demanding reporter James Hibberd's notes and other information that might help identify the arsonist. Hibberd had already cooperated with detectives by providing them with some information, such as parts of the interview that did not appear in print, but was not willing to turn over his notes or to work with a sketch artist.

Judge Galati, of the Superior Court of Maricopa County sided with the newspaper, ruling that the arsonist was a confidential source and that under the well established Arizona shield law (A.R.S. §12-2237) the newspaper could not be forced to reveal information that might help identify him. Although Galati made clear that his ruling did not constitute endorsement of the newspaper's actions, he also added a caveat in his opinion, stating that "a free press in a free society properly exercises its prerogatives without regard to whether any official in any branch of government 'approves.'"

Another question is whether or not Hibberd should have helped the authorities in the first place. Prosecutors argued that by doing so Hibberd waived his right to protect his source. Silha Professor Jane Kirtley is skeptical of Hibberd's cooperation with the detectives: "...you're either a journalist or an investigator; you can't be both and maintain your integrity."

These two recent cases and the debates they have sparked are a clear illustration of the lack of consensus regarding exactly what task the media ought to fulfill in society. On the one hand, a communitarian argument states that journalists are part of society and should serve its greater good. The libertarian perspective, on the other hand, considers the media to be a distinct pillar in society, whose principles and loyalties can not always be the same as those of law enforcement or civil society.

FAIR collected some examples of these kinds of pressures and their influence on the news of the year 2000 and presented them in a report released on February 14, 2001. The report is by no means an exhaustive overview, nor a scientific study of the phenomenon, but it provides the reader with an idea of the "behind the scenes" pressures exerted on journalists. The report is divided into five sections: pressures from advertisers, how power players and their influential PR machines try to steer the news, the sometimes less than critical coverage local sports teams receive, corporate ownership of the media and official and government pressures on the media.

While the report is a laudable initiative, the anecdotal evidence only scratches the surface of what is a very complex, but understudied issue. The report by FAIR, which can be found at the organization's website, might be a first step in to a more in depth study of the true scope of an important problem facing American journalism in the 21st century.

Paris Judge Jean-Jacques Gomez's ruling on November 20 stated that Yahoo! must put a filtering system in place that would prevent French users to gain access to Nazi-related goods on its auction site. The decision confirmed an earlier ruling dating from May 3, 2000, in which the judge ruled that Yahoo! violated the strict French anti-racism laws by allowing "the viewing of sites making an apology for Nazism and/or exhibiting journalism, insignia or emblems resembling those worn or displayed by the Nazi's, or offering for sale objects or works whose sale is strictly prohibited in France...." Judge Gomez dismissed First Amendment concerns, arguing that the sale of human organs, cigarettes, pedophilia related objects, living animals and drugs is forbidden as well, and that these actions do not receive First Amendment protection.

The November 20 judgment focused primarily on the technical feasibility of denying French citizens access to the auction site. A panel of three experts stated that it would be technically possible to block 70 to 90% of the French surfers from the specified websites. Earlier, Judge Gomez had also noted that it could not be that difficult for Yahoo! to identify French users, because it already provided them with French language banner ads. The judge gave the California based company three months to do so, warning that it would be fined 100,000 Francs per day for each day exceeding the deadline.

While the French anti-racism groups who brought the claim were enjoying their victory, some saw the judgment as yet another step in the direction of a government-controlled World Wide Web. Alan Davidson, Staff Counsel with the Center for Democracy & Technology in Washington D.C., said that this approach "would lead to a lowest common denominator world where the most restrictive rules of any country would govern all speech on the Internet."

This statement may have seemed exaggerated at the time, since the French court ruling had direct implications only for French users, but on January 3, 2001 Yahoo! decided to change its policy and ban all hate materials from its website. The new policy forbids the sale of: "Any item that is directly associated with or promotes or glorifies groups, such as Nazis or the Ku Klux Klan, that are known principally for hateful and violent positions directed at others based on race or similar factors. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by Yahoo! in its sole discretion." Yahoo! has stressed that the decision to change its policy was unrelated to the French ruling. It remains unclear whether the new policy fully complies with the court order, but it is expected that it will render the ruling moot.

In the meantime, Yahoo! is seeking a declaratory judgement in a Federal District Court in San Jose, California, claiming that the French decision is not enforceable in the United States and maintaining that it is technologically impossible to block access to the French netizens. It is not clear if Yahoo! would change its policy again if the California court were to rule in its favor.

In response to concerns raised by privacy advocates, the Judicial Conference's Committee on Court Administration and Case Management formed the Subcommittee on Privacy and Electronic Access to Court Files to address problems posed by electronic access, to solicit public comments and to draft a set of policies for the federal court system. The Judicial Conference, headed by the Chief Justice of the United States, William Rehnquist, is an administrative body that establishes rules and standards for the federal courts.

Silha Center director Jane Kirtley and SJMC graduate student Erik Ugland drafted comments to highlight for the subcommittee the constitutional problems posed by restricting access, and the practical benefits of broadening the means of access. The percentage of all judicial records produced or stored in electronic formats continues to increase, and some courts have begun making those records available through computer databases, some of which are accessible via the Internet. The federal courts have been moving rapidly to implement a new case management system that allows attorneys to file court documents electronically, and plans are underway to provide public access to those documents over the Internet. Those plans are on hold, however, while the Judicial Conference weighs the privacy problems raised by such expanded access.

The Silha Center's comments argue, however, that the issues raised by privacy advocates are more illusory than real, and that to the extent that any legitimate privacy interests are put at risk, they can be easily protected through existing safeguards. Parties can always file motions with the court to conceal records that might intrude on their privacy.

Under one of the proposals under consideration by the subcommittee, however, the Judicial Conference would create certain categories of records, which would be presumptively closed to public examination. The Silha Center comments contend that this is inconsistent with court precedents, which suggest that judicial records are presumptively open.

"It is important for the courts and this Subcommittee to recognize that people's rights or interests in privacy are theirs to assert or waive," the comments state. "It is neither the responsibility nor the role of judges to assert these rights and interests on behalf of others, even though judges must ultimately decide which records are to be sealed and which are to be kept public."

The Silha Center comments add that access proponents are not seeking to expand the types of records available to the public; they are merely seeking broader and more efficient access to records that are already publicly available at federal courthouses. Doing this would not only increase the efficiency of the judicial process, it would substantially democratize the records system, allowing people and groups to conduct research and investigations and to monitor the fairness of the judiciary. Electronic access would simplify this task for public interest groups, and it would make it possible for those who lack the time and resources, or who do not live near federal courthouses, to participate in that process.

"In an open society in which people are charged with monitoring the performance of their government ... it would be a mistake to impose a new regime of court secrecy in which categorical and preemptive determinations are made on these matters," the comments state. "These decisions are best made on a case-by-case basis, upon a motion by the party seeking to seal the records."

For the most part, in the public records context, the courts and legislatures have adapted well to changes in technology. Most courts, for example, have interpreted the term "record" under freedom of information laws to include electronic files. "It would be particularly ironic," according to the authors of the Silha comments, "if the strengths of our new technology were used as a pretext for denying expanded access - taking the tools of accountability out of the hands of citizens, and forcing them to rely on surrogates who may or may not share their interests."

The Silha comments conclude that all of the evidence weighs heavily against any limitation on electronic access to records that are already publicly accessible, and the Court is sufficiently equipped to protect legitimate privacy interests when they arise.

How the Judicial Conference ultimately decides to handle these issues could establish an influential model for the state courts. The Maryland courts, for example, are already engaged in a similar fact-finding inquiry regarding electronic court records. No similar initiative has yet been undertaken in Minnesota, but it is probably only a matter of time. Although each county is different, most judicial records in Minnesota are not accessible online. In Hennepin County, case histories are available on the Internet, but no actual court documents can be accessed.

For more information about the Judicial Conference's inquiry, visit http://www.privacy.uscourts.gov. The Subcommittee conducted hearings on the proposals March 16, 2001. The comments submitted by the Silha Center can be accessed at http://www.silha.umn.edu/resources.htm.

The Forum was presented by Barry Allen, Executive Director of Broadcast Services for Paramount Studios in Hollywood, whose work involves the rescue and restoration of film. According to Allen, an estimated ninety percent of the films made before 1920 have been lost, and fifty percent of the films made between 1920 and 1950 are gone. Losses are attributed to many things, such as studios going out of business, lack of concern for the artistic value in the films, simple carelessness, film deterioration, changes in film ownership, ignorance, and a lack of ownership trails with the result that a current owner's name is unknown. But there are other losses as well - some films have been purposely destroyed because the film had been based on a book or some other work, and the rights had expired. It was easier in some cases to destroy the film than to deal with the resulting liability. Parts of film can be lost as well, when segments are edited to shorten running time, or when the edges of pictures are cut so that wide screen frames can fit the smaller ratio of a television screen.

According to Allen, the film industry began from a need to tell stories, and stories were told out of a need to explain the mysteries of the world around us. In the beginning of time, such stories were not written down, but were passed from one to another orally. Today there are no new stories, Allen says, but the best of them are retold, especially when they reflect something eternal and universal.

Directors are concerned that alterations, such as editing for language content or nudity, can alter or dilute their work when films move from the theater to network broadcast. It was especially problematic in the early days of television when there were so many more taboo areas than there are today. One film from this era, Secret Ceremony, starred Elizabeth Taylor as a prostitute. Before the film was aired on television, her occupation was changed. The director protested and finally demanded that his name be removed from the credits. Losses such as this and others diminish the director's message, as well as the efforts of the artists who participated in the making of the film.

In television's early days, the demand for programming was so great that many films that might have been lost found a new life on the air, and thereby were saved from obscurity. Even so, many of them needed to be preserved, or even restored. Allen's work at Paramount currently focuses on evaluating the assets of the recently acquired Republic film library; on evaluating the condition of its contents and determining which properties should have priority treatment based on the value of a title and its urgency for preservation. He further coordinates the task of gathering master film elements from archives worldwide, and he is also working with the UCLA Film and Television Archive, where the bulk of the nitrate negatives of the Republic library are on deposit.

Allen concluded his presentation with a challenge to the audience. "If you do not like where popular entertainment is going," he said, "you have the opportunity to influence change. Those of you who go into the real world to be writers, teachers, and parents have the power to influence your children, your readers, and your students....It will happen if enough of you care to make it happen."

In addition to leading the Silha Forum, Allen was interviewed by Minnesota Public Radio in a conversation about protecting and preserving film and home videos. In an event co-sponsored by the Minnesota Film Board, Allen presented the first public screening of a newly restored print of The Red Pony on February 9 at the Heights Theater in Northeast Minneapolis, itself a restoration-in-progress. The following evening, Allen presented a newly restored version of Johnny Guitar, also at the Heights. All three Silha events received detailed coverage in the Twin Cities' City Pages, and each event was open to the public.

As a member of The Cornerstone Project's Advisory Council, the Silha Center will offer advice and counsel to the group.

For additional information on The Cornerstone Project, visit their website at www.mediainst.org or link to it through the Silha Center's website at www.silha.umn.edu.

Catherine Zeta-Jones and Michael Douglas had arranged an exclusive deal with OK! magazine to take and publish photos of their wedding ceremony at New York's Plaza Hotel on November 18, 2000. When they heard that rival magazine Hello! was about to publish wedding photos, days before the OK! issue would hit the shelves, the newlyweds and OK! went to court. The photographs Hello! was about to publish were taken without the knowledge or consent of the Hollywood stars, presumably by a guest or hotel worker at the ceremony. On November 21 they won an injunction from the High Court, prohibiting distribution of 755,900 copies of the magazine, but too late to retrieve 15,750 copies already on sale. The injunction was overturned on November 23, 2000 by the British Court of Appeal, stating that it would give its reasons in due course. It issued its opinion on December 21, in which it also stated that there is a "powerfully arguable case" that Douglas and Zeta-Jones "have a right to privacy that the English law will today recognize and protect." Accordingly, the couple's suit will be allowed to go forward to trial.

Prior to this ruling, unlike most other Western European countries, the United Kingdom had not yet established a right to privacy. When the Duchess of York tried , in August 1992, to block publication of pictures in English tabloids in which she could be seen topless and having her toes nibbled by her financial adviser, she was told that there was no right to privacy that could help her. In France, on the other hand, a publication which ran the compromising photos not only had to pay damages for infringing her right to privacy, but was also fined in criminal court. The newly-established right to privacy in Britain might give the celebrities in the United Kingdom a powerful weapon with which to defend themselves against intrusive journalism on British soil or to stop legitimate reporting about events of public interest.

The British right to privacy is derived from the Human Rights Act, passed in Britain in October of last year. The Human Rights Act incorporates into national law the European Convention on Human Rights, as required of all member states in the European Union. Article 8 of the ECHR states that "everyone has the right to respect for his private and family life," though the ECHR also recognizes the freedom of expression and of the press in Article 10. Lord Justice Sedley remarked, however, that the ECHR and the European Court of Human Rights do not give this freedom of the press, "the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts." The courts will have to decide on a case by case basis, on considerations of proportionality, in which direction the balance will tilt.

The Douglas and Zeta-Jones case, which is expected to be heard later this year, might be an important indicator of how the courts will balance freedom of the press with the newly-established right to privacy. Given that the couple sold the rights to publish their wedding photographs for 1 million pounds to a mass circulation magazine, Douglas and Zeta-Jones may not be the most credible claimants. The argument advanced by the court, however, states that the privacy violation resides in the fact that Douglas and Zeta-Jones had no veto power over which pictures would be published, a right they had negotiated in their contract with OK!. In effect, this ruling would mean that every picture that ran and was not selected by Zeta-Jones and Douglas invaded their privacy, irrespective of its actual content. Following this interpretation, Hello! and OK! could have published two identical photographs, one of which would have invaded the couple's privacy, while the other would not.

Media professionals in Britain have expressed concern about how the Human Rights Act and its subsequent interpretation in British courts might influence their ability to do their job. The BBC's senior editorial policy executive called for a carefully drafted privacy law that would respect individuals' privacy, but would also enable media to hold public figures accountable. He cited the Zeta-Jones case as an example where privacy is used as an excuse to safeguard pecuniary interests.

The brief was filed Jan. 25, 2001 in the U.S. Court of Appeals for the Second Circuit in support of the defendants-appellants in the appeal of the Federal District Court's ruling in Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000). Reimerdes is a closely watched case whose outcome could substantially limit the ability of online journalists and other World Wide Web communicators to use hyperlinks to connect their audiences to Web content.

The issue in Reimerdes is whether courts may, consistent with the First Amendment, enjoin Web site operators who either post programs capable of decrypting copyrighted digital versatile disks (DVDs), or who provide hyperlinks to sites containing such programs. Universal and seven other studios joined forces to seek injunctions against Eric Corley, publisher of 2600: The Hacker Quarterly, whose Web site contained the DVD decryption program known as DeCSS, and also against Shawn Reimerdes and Roman Kazan, operators of other Web sites containing the decryption program. DeCSS is a program that decrypts CSS, the encryption program used to protect DVDs from being unlawfully copied.

The Digital Millennium Copyright Act empowers judges to issue injunctions against those who "offer to the public" or "otherwise traffick" in decryption programs designed to circumvent copyright protections. 17 U.S.C. §1201 (a)(2). District Court Judge Lewis A. Kaplan held that by posting DeCSS on their Web sites, the defendants were offering the software to the public. Moreover, Judge Kaplan held, "posting ... and linking amount to very much the same thing." Reimerdes, 114 F.Supp. 339. As a result, injunctions can be issued against those who provide hyperlinks to sites containing DeCSS, provided: the person creating the link knows DeCSS is available on the linked-to site, knows DeCSS is illegal, and created the link for the purpose of disseminating DeCSS. Id. at 341. This language seems to provide some protection for certain kinds of links, but it remains unclear whether, for example, an online journalist doing a story about DeCSS could be enjoined or held liable for posting a link to a site containing the program.

The appellants contend that the District Court's interpretation and application of the DMCA is unconstitutional because it sanctions prior restraints of expression, punishes the communication of truthful information, disallows the "fair use" defense to copyright violations, and restricts expression without any evidence that an actual violation of protected copyrights occurred. The District Court's ruling equating linking with posting would leave journalists and others vulnerable to injunctions or civil liability for merely pointing their audiences to sources containing decryption programs, even if those programs were not used for an illicit purpose.

The Silha Center's amicus brief focused on this latter aspect of the case, and the possibility that the District Court's ruling, if upheld, would create a chilling effect on Internet expression, particularly for online journalists who use hyperlinks to augment their stories, and to provide readers with access to original source materials and useful supplemental information available elsewhere on the Web.

The amicus brief was authored by Silha Center Director Jane Kirtley and SJMC graduate student Erik Ugland, together with David Greene of the First Amendment Project in Oakland, Calif., and Milton Thurm of Thurm & Heller law firm in New York City. It was written on behalf of the Silha Center and several other journalism and free-press organizations, including the Newspaper Association of America, the Online News Association, the Reporters Committee for Freedom of the Press, the Student Press Law Center, Wired News, the Pew Center on the States and the College of Communications at California State University, Fullerton. All of these organizations are concerned about the prospect of online journalists and others being punished or shut down for providing links to information over which they exercise no editorial control.

The amicus brief addressed three broad concerns. The first was the importance of the Court's ruling in establishing not only the legal boundaries of linking, but also the extent of the judiciary's respect for online journalism and the growth of the Web as a source of news and information. An affirmation of the District Court's ruling not only would substantially limit the rights of online journalists and other Web communicators, but would also inhibit the use of links - the defining feature of the Web - at a time when their value as journalistic tools is just beginning to be tapped.

As the brief notes, "When Judge Starr issued his report on allegations against President Clinton, and when the Florida Supreme Court issued its recent election rulings, online accounts were accompanied by links to the actual documents." These are the kinds of uses that are now commonplace. But what about linking to information that was confidential or that was obtained illegally? The brief notes that "if the Web had been available in 1971, journalists for the Washington Post and New York Times may have linked to the Pentagon Papers in addition to publishing their own interpretations of those controversial documents." Although the Pentagon Papers would not be covered by the DMCA, upholding the District Court's framework would provide support for the adoption of parallel legislation targeting this kind of information, even if the information is true and in the public interest.

The second area addressed by the brief was the District Court's test for linking liability and its consistency with existing First Amendment standards. The authors argue that the District Court creates a double standard, treating Web publishers more harshly than those using other media in the face of the U.S. Supreme Court's insistence that publication on the Web be afforded the highest level of First Amendment protection. Reno v. ACLU, 521 U.S. 844, 870 (1997). The District Court relies on the notion that the speech in question in Reimerdes is "functional" - that it can be used to perform some operation or to complete some task. But, as the authors of the brief note, this is "no different from the pre-Web practice of identifying reference material that a reader could then retrieve from a library." The fact that someone might later use that information for an illegal purpose should not be the responsibility of the Web publisher. No one would contend, the authors argue, that a newspaper should be liable because its publication of details of a robbery was later used by a reader in committing a similar crime.

The brief's authors also contend that the District Court's ruling treats Web publishers more harshly by permitting prior restraints, which are nearly always found unconstitutional as applied to other media. Furthermore, it does so without any evidence that the linked-to information was actually used or that anyone was actually harmed.

"Banned from publication are links to a Web site containing DeCSS in a report on permissible efforts to reverse engineer CSS, or in a report on the way a film professor compiles film clips for exhibition in class, or in a report on the District Court's decision. Banned are links that inform the reader exactly what DeCSS is, even if the reader is advised not to 'use' DeCSS."

The brief concludes with the argument that the District Court erred by interpreting the publication of a link to another website to be "offering to the public" or "trafficking" in decryption technology. As the brief states, "The First Amendment requires that 'trafficking' be more than merely directing a reader to another source of information. Although a hyperlink may be evidence of actionable conduct, it cannot be the basis for liability in and of itself."

A decision in Reimerdes is probably still months away. But the briefs of the parties have been filed and oral arguments are scheduled for May 1. Whatever the outcome, Reimerdes will serve as a significant precedent in the still unsettled terrain of Internet law, and an appeal to the U.S. Supreme Court should be anticipated.

A copy of the Silha Center brief is available at http://www.silha.umn.edu/resources.htm. Briefs of the parties in the case can be found at http://www.eff.org.

The Bartnicki v. Vopper case has been one of the most closely monitored cases in recent history. The Supreme Court's decision holds that the First Amendment protects journalists who disclose the contents of an illegally intercepted telephone call involving an issue of public importance as long as they did not participate in the interception. This relieves journalists of the legal requirement of proving that their source obtained information legally, but raises a variety of ethical issues.

In addition to Bartnicki v. Vopper, Levine also argued Harte-Hanks Communications, Inc. v. Connaughton (1989) before the United States Supreme Court. He has litigated in the courts of more than 20 states and the District of Columbia, and has appeared in most federal courts of appeal and in the highest courts of ten states. Levine is one of the authors of the textbook, Newsgathering and the Law, and has written several articles, among them, "Branzburg Revisited: Confidential Sources and First Amendment Values" and "The Myth of Pre-Trial Publicity."

Levine is a founding partner of the Washington, D.C. law firm Levine Sullivan & Koch, LLP and is an adjunct professor of law at Georgetown University Law Center. He is a past chair of the American Bar Association's Forum on Communications Law, the principal national association of attorneys practicing in the fields of media and communications law, and is recognized in The Best Lawyers in America as a leading expert in media law.

Levine is also a past chair of the Editorial Board of The Communications Lawyer, a quarterly publication of the American Bar Association, and is a member of the Advisory Board of the Media Law Reporter. He received his law degree from Yale University, where he was the managing editor of the Yale Law Journal. He received his B.A. and M.A. degrees from the University of Pennsylvania.

The Silha Lecture is free and open to the public. The sixteenth annual lecture is sponsored by the Silha Center for the Study of Media Ethics and Law, which was established in 1984 with an endowment from former publisher of the Minneapolis Star and the Minneapolis Tribune, Otto Silha and his wife Helen.

Housed in Murphy Hall on the East Bank of the Minneapolis campus of the University of Minnesota, the Center's mission has been to analyze the intersection of media ethics and law as well as the ethical responsibilities and legal rights of the mass media in a democratic society. For additional information about the 2001 Silha Lecture or the Silha Center itself, please contact Elaine Hargrove-Simon by e-mail at silha@tc.umn.edu or by phone at (612) 625-3421.

According to stories appearing in the Miami Daily Business Review, the Broward Daily Business Review, the Palm Beach Daily Business Review, as well as the Associated Press, the chain of events began with Eric "Rick" Sisser, a lobbyist who had been involved in a Miami-Dade School Board land purchase in Carol City. The deal soured when Native American remains were found on the property.

WPLG-TV reporter Unruh, seeking an interview with Sisser about the deal, reportedly visited Sisser in his hospital room at Mount Sinai Medical Center where he was awaiting treatment for congestive heart failure. Sisser alleges that on May 8, Unruh came to his private room in an area of the hospital designated for "executives." Assuming she was a nurse, Sisser allowed her to come into his room. According to Sisser, Unruh immediately began asking questions specific to the land purchase deal. Sisser then asked her to leave, requesting she fax her questions to his lawyer. Sisser said that Unruh persisted in her line of questioning for a time, and eventually left. Sisser subsequently required treatment with a nitroglycerine drip to bring his blood pressure under control.

Unruh claims that she came to Sisser's hospital room after seeking an interview with him for weeks before, which Sisser denies. When Unruh arrived at Sisser's room, she was alone, without a camera, tape recorder or even a notebook. Unruh said that she identified herself to Sisser as a reporter, and he invited her in. After what has been called a few "cordial questions," the interview turned to the land deal. When Sisser became agitated and asked her to leave, she did as he asked.

Bill Pohovey, WPLG-TV's station manager, said that Unruh was professional and respectful towards Sisser during the hospital interview.

Sisser filed suit against the station, asking for a restraining order against WPLG-TV and against Unruh. Miami-Dade Circuit Court Judge Norman Gerstein signed the order on May 15, which states that neither Unruh nor any other WPLG-TV employees may approach or attempt to interview Sisser for 30 days.

WLPG-TV attorney Karen Kammer agreed to the restraint on behalf of her clients, but added that her clients make no admission of liability and do not waive any defenses they may have to the claims Sisser raised in his lawsuit. Pohovey said that the station would not challenge the order, saying that Sisser had made it clear he did not want to talk, and therefore the station's reporters would not pursue him.

Sisser interpreted the station's lack of formal response as a sign of fear: that Unruh and other station officials knew that the interview clearly invaded his privacy. He called Unruh's conduct "reprehensible."

Although such celebrated cases as Food Lion, Inc. v. Capital Cities/ABC Inc. (194 F. 3d. 505 (4th Cir. 1999)) and Charter Behavioral Systems v. CBS (No. 3:99 CV-150-MV (W.D.N.C. 1999)) deal with situations where reporters gain access to private areas and situations by concealing their true identities or purpose, Sisser never claimed that Unruh portrayed herself as a nurse, only that he mistook her for one. For her part, Unruh states that she did identify herself as a reporter before beginning the interview.

However, courts have recognized that patients do have an expectation of privacy when receiving medical treatment. (See Shulman v. Group W Productions, (955 P.2d 469 (Cal. 1998)). Voluntary codes of ethics, such as those adopted by the Society of Professional Journalists and Radio-Television News Directors Association, often do not specifically address privacy, but do exhort journalists to treat news subjects with respect, dignity and sensitivity.

Much attention has been given to Vladimir Gusinsky, a former theater director and now media mogul who made his money by founding a bank that handled government deposits. As his fortune grew, he launched Segodnya (also spelled Sevodnya), a daily newspaper in 1993. In January 1994, he started a television station, NTV. In its beginning, NTV was primarily a news outlet. The station made its mark with its coverage of the Chechnya war from 1994 to 1996 and later became Russia's only nation-wide independent television station. When Gusinsky's dreams for his company, Media Most, were larger than his pocketbook, he turned to Gazprom, a partially state-owned Russian gas company, for financial help. Gazprom loaned Gusinsky the funds he needed.

During the 1996 Russian presidential election, Gusinsky openly supported Boris Yeltsin, giving Yeltsin's successful campaign much more airtime than that of his opponent, Gennady Zyuganov. But on December 31, 1999, Yeltsin resigned from the presidency and former Prime Minister and former KGB colonel Vladimir Putin took his place.

In November 1999, just prior to Yeltsin's resignation, Russian courts froze NTV's bank accounts when Gusinsky was unable to repay his debts. Putin was officially elected President in March, and in June 2000, Gusinsky was arrested on suspicion of embezzlement while working to acquire a television company in St. Petersburg. According to the International Press Institute's 2000 World Press Freedom Review on Russia, Gusinsky supposedly negotiated a deal with Gazprom, Media Most's main creditor. The deal specified that in return for giving Gazprom Media Most's holdings, Gusinsky would receive cash, the forgiveness of his debts, and the state would drop criminal charges against him. Later, Gusinsky left Russia for Spain.

Afterwards, Gusinsky stated that deal was void, claiming he had been forced to sign it under pressure. The Kremlin denied any involvement in the affair. The deal with Gazprom was renegotiated, with Gazprom retaining temporary control over Media Most. But the Media Most shares given Gazprom as part of the loan agreement either had no assets behind them or were entirely bankrupt. Gusinsky meanwhile maintained that he was seeking a foreign supporter for his company in order to avoid potential governmental restrictions.

Russian officials sought Gusinsky's extradition on charges of fraud. In December 2000, Spanish officials arrested Gusinsky, but Interpol asked Russian authorities for assurance that the charges against Gusinsky were not strictly political in nature.

On April 3, 2001, Gazprom replaced members of NTV's management with its own personnel. Early on the morning of April 14, security forces established control of NTV, and NTV journalists were barred from entering their offices. NTV reporters crossed the street to a smaller cable television station, TNT, also owned by Gusinsky. There the journalists set up operations and began broadcasting news again by 8 o'clock that morning, although they were reaching a much smaller audience than previously.

Two days later, Gazprom, together with Media Most's publishing house, Sem Dnei, announced that Segodnya would no longer be published. The following day, the staff of Itogi, a weekly magazine founded by Gusinsky and which published in conjunction with Newsweek, was fired.

Gusinsky is reportedly negotiating with media giants such as Ted Turner and Rupert Murdoch to regain control of Media Most, Segodnya and NTV. Although this scheme may circumvent governmental control, it is not without risk. Putting too much control into the hands of foreign investors can also affect content. Foreign investors may not understand cultural or societal differences, and may thereby - knowingly or unknowingly - exert inappropriate influence on their news organizations.

The idea of a free and unfettered press is foreign to the citizens of the former Soviet Union. Oppression has been the rule rather than the exception. Enduring a thousand years of Mongol rule, following by the Romanovs, and most recently the Communists, the majority of Russians have never experienced a press based on the Western model. In his article, "Russian's Dysfunctional Media Culture," which appeared in the August 2000 issue of Policy Review, Herman J. Obermayer writes that without Western-type businesses to serve as advertisers, Russian newspapers lack the finances that would help them be independent.

Without money or independence and still bound by a journalistic tradition which dictates that more be concealed than revealed, Russian journalists are discovering that attaining the democratic media ideal is no easy task.

News media cameras were banned from McVeigh's execution. But it is conceivable that some day American television may be permitted to air public executions live. Would such a broadcast also be ethical?

McVeigh, convicted of bombing the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, was executed by lethal injection on June 11, 2001. Media cameras were banned from the execution chamber.

The Entertainment Network, Inc., a private Florida-based company, sued for the right to webcast McVeigh's execution. ENI is perhaps best known for its adults-only Internet subscription sites, such as live webcasts from college women's dorm rooms, and a live on-line chat with O.J. Simpson.

ENI stated that execution viewers would be charged $1.95 by credit card, which, combined with parental blocking software, would prevent those under age 18 from accessing the site. The proceeds would be donated to a charity established for the bombing victims. ENI proposed to cover the execution using a handheld video camera, or, alternatively, by picking up the closed-circuit feed to bombing victims and their families in Oklahoma City as approved by Attorney General John Ashcroft.

Challenging the Federal Bureau of Prisons policies restricting broadcast coverage as unconstitutional, ENI's David Marshlack argued, "The government is sponsoring the killing of a human being who was responsible for this horrendous act. And we believe the people have an absolute right to witness the action."

On April 18, U.S. District Judge John Tinder denied the request, saying that webcasting the execution would not be ". . . form of news to which the public is entitled but an act of sensationalism." Three days before the execution, a federal appeals court overturned a judge's order that the event be videotaped for use in an unrelated Eighth Amendment case in Pennsylvania.

McVeigh's execution would not have been the first or most gruesome depiction of violent death via the electronic media. Los Angeles viewers witnessed helicopter camera coverage of a motorist's shotgun suicide on a freeway overpass. Millions of Americans gasped when Jack Ruby shot Lee Harvey Oswald. Documentaries have featured slow motion of the Zapruder film's record of President Kennedy's assassination. Unsuspecting morning TV viewers watched as the Challenger spacecraft exploded and its crew plunged to their deaths.

At one point, McVeigh himself argued that everyone, not just a select on-site or closed-circuit audience, should be allowed to watch his last moments. "Hold a true public execution," he argued in a February letter to the Daily Oklahoman.

"Allow a public broadcast." Twenty-four witnesses, including 10 survivors or victims' relatives, as well as eight media representatives, were selected by lottery to watch the execution at the federal penitentiary in Terre Haute, Indiana. Some 230 survivors and family members watched on the closed-circuit feed in Oklahoma City. About 1,400 print and electronic journalists reported from the prison. Eight TV networks broadcast live from the location and featured extensive execution day programming from early morning to prime-time hours.

In April, Ashcroft urged the media to exercise "self restraint" in their coverage of McVeigh's execution. In the days prior to the execution, the Attorney General barred on-site, video and voice-recorded interviews, permitting only 15-minute telephone contacts with the condemned man. He insisted that the restrictions were imposed out of sympathy for the victims, the survivors and the nation. Members of the news media characterized the restrictions as censorship.

"I would ask that the news media not become Timothy McVeigh's co-conspirator in his assault on America's public safety and upon America itself," Ashcroft said. "Please do not help him inject more poison into our culture. He's caused enough senseless damage already."

But in a letter to Ashcroft, Barbara Cochran, President of the Radio-Television News Directors Association, countered that "the federal government has no appropriate role in determining who or what has access to the 'public podium' that is our nation's press."

Ashcroft's concerns appear to raise three key ethical issues: how to avoid inflicting further harm to the victims of the bombing, validating McVeigh's delusions of martyrdom, and endangering national security. How do those concerns weigh against the resulting restrictions on newsgathering and publication/broadcast? And what about McVeigh's right of free speech? Should law enforcement officials decide that he has already said enough?

McVeigh had enjoyed a global podium for the last six years, highlighted by recent books and high-profile interviews. He displayed no remorse, particularly over the death of 19 children, whom he characterized as "collateral damage." Officials also feared that McVeigh's last podium would encourage other anti-government forces, such as militias and survivalists, to commit further violent acts.

By contrast, critics accused Ashcroft of unconstitutionally preventing access to a notorious death row prisoner, and to a significant newsworthy event. However, an Associated Press poll found that a majority of those surveyed supported the Attorney General's limitations on access, and that only one in five would watch the execution live if they could. Until about 65 years ago, public executions were commonplace. An estimated crowd of 20,000 witnessed the nation's last public government execution, the 1936 hanging in Owensboro, Kentucky, of 19-year-old Rainey Bethea, a black man convicted of the rape and murder of his employer, a 70-year-old white woman.

Public proceedings give Americans the opportunity to see their criminal justice system in action. Although cameras are banned from federal criminal trials, most states allow some camera coverage in the courtroom for trial and sentencing. Why not execution of the sentence? Cameras go inside prisons for interviews. Why not for a live execution - justice in action? The government executed McVeigh in the name of all citizens. Why shouldn't everyone who chooses to do so be able to witness the act?

Once, we gathered in the town square to see justice done. Today, we should be able to gather in the electronic global town square as witnesses. Nobody would be forced to watch. One could watch, listen or look away.

But it should be the individual's choice. Not the government's.

However, Dale Earnhardt's widow, Teresa, reacted to the Sentinel's request by filing suit in Volusia County Circuit Court on February 22, seeking an injunction to prevent the Sentinel's examination of the photographs. Mrs. Earnhardt's lawyer, Thom Rumberger, said that the release of the photos violated the Earnhardt family's privacy. Circuit Court Judge Joseph Will granted a temporary injunction, saying that the family's privacy interest outweighed the public interest in seeing the photographs.

On March 16, Teresa Earnhardt and the Sentinel arrived at a settlement, in which an independent medical expert would be allowed to examine Earnhardt's autopsy photos, after which the Sentinel could pose three questions relating to Earnhardt's death to the medical expert. Then, the photos would be permanently sealed.

While the case was playing out in Volusia County Circuit Court, Mrs. Earnhardt was simultaneously working in Tallahassee to pass a bill exempting photographs, video and audio recordings of autopsies from release under the state public records law. The bill, drafted by Senate Majority Leader Jim King (R-Jacksonville), was introduced in the Florida Senate on March 8, 2001. Riding a tide of public support that included phone calls and e-mails from Earnhardt's fans and others, the bill was signed into law by Governor Jeb Bush on March 29.

Included in the bill is the following: "The Legislature finds that photographs or video or audio recordings of an autopsy depict or describe the deceased in graphic and often disturbing fashion....As such, photographs or video or audio recordings of an autopsy are highly sensitive depictions or descriptions of the deceased which, if heard, copied or publicized, could result in trauma, sorrow, humiliation, or emotional injury to the immediate family of the deceased, as well as injury to the memory of the deceased. The Legislature notes that the existence of the World Wide Web and the proliferation of personal computers....promotes and encourages the wide dissemination of photographs and video and audio recordings 24 hours a day and that widespread unauthorized dissemination of autopsy [materials] would subject the immediate family of the deceased to continuous injury. The Legislature further notes that there continue to be other types of available information, such as the autopsy report, which are less intrusive and injurious....and which continue to provide for the public oversight."

The bill, known as the Earnhardt Family Protection Act, SB 1356, allows autopsy photographs or recordings of the autopsy to be examined only by a surviving spouse, parent or child; anyone else must obtain a court order and examine the materials under the "direct supervision of the custodian." There are exemptions for administrative service providers such as the medical examiner and state or federal agencies which are performing official duties. In carrying out these duties, the identity of the deceased must remain confidential.

The Act also states that when issuing a court order permitting an outsider to examine the records, the court must consider whether such disclosure "is necessary for the public evaluation of governmental performance" and bear in mind "...the family's right to privacy." The family is to be notified when there is a petition to view the autopsy records of one of its members.

Violation of the statute constitutes a third-degree felony.

The new law restricts access to information by journalists and others who might wish to investigate a death for any number of reasons. It is particularly troublesome when the door is closed on information that previously had been available as an open and public record. Ironically, the Orlando Sentinel stated from the outset of the Earnhardt tragedy that it never had any intention of publishing the photographs; it simply wanted an independent expert to examine them in order to determine an unbiased cause of death so the Sentinel could follow up on its series on NASCAR safety.

Several organizations challenged the constitutionality of the Earnhardt Family Protection Act. In addition, the Independent Florida Alligator, a student newspaper located at the University of Florida, together with Michael Uribe, who runs Websitecity.com, a site that has already posted other autopsy photos, have sought access to the photos under the new law. However, on June 13, Volusia Circuit Court Judge Will ruled that the statute is constitutional and that the photos will remain sealed.

Other news organizations, including the Orlando Sentinel, The Miami Herald, Chicago Tribune, Los Angeles Times, Tampa Tribune, WFLA-TV, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the Florida First Amendment Foundation, and the American Society of Newspaper Editors have stated that they oppose the law.

However, there are precedents for the sentiments expressed in the Earnhardt Family Protection Act. In 1997, designer Gianni Versace was murdered outside his home by Andrew Cunanan, who had led police on a multi-state manhunt. Unlike the Earnhardt incident, this was a crime and not merely an accident. Cunanan had previously killed others, and the manhunt for him had generated weeks of news coverage. Nevertheless, Versace's family won a court order to permanently seal his autopsy photos.

The public reaction to the debate surrounding Earnhardt's autopsy photos has been profound. There have been numerous phone calls and e-mails to media outlets as well as the Florida State Legislature, and a web site has been established for people to add their signatures to a petition requesting the autopsy photos be sealed. Subscriptions to the Sentinel have been cancelled and some of both the Sentinel's and the Independent Florida Alligator's advertisers have withdrawn their accounts. The Independent Florida Alligator has also reported that its office and newspaper boxes have been vandalized and death threats have been made to its editors, resulting in an increase in security at their Gainesville headquarters.

What seems to be lost in the public's reaction, however, is the fact that most media outlets do not publish autopsy photographs. Despite the fact that there have always been gruesome photos - such as those of Princess Diana following her car crash in a Paris tunnel and of JonBenet Ramsey following her murder - mainstream newspapers and magazines generally do not publish them, neither do the tabloids. Although the Earnhardt family's reactions are understandable, restrictions such as those in the Earnhardt Family Protection Act will prevent journalists from investigating events that affect the greater public interest.

The case, Bartnicki v. Vopper, began in May 1993 during negotiations between a Pennsylvania school board and a teachers' union. Gloria Bartnicki, a negotiator in the contract dispute, and Anthony Kane, president of the teachers' union, were speaking to one another by cellular phone about the dispute when their call was intercepted and recorded by an unknown person. In the recording, Bartnicki can be heard saying, "If they're not going to move for three percent [referring to a pay raise], we're gonna have to go to their, their homes...to blow off their front porches, we'll have to do some work on some of those guys."
Jack Yocum, president of a group formed to oppose the teachers' union during the negotiation, found the tape of Bartnicki and Kane's conversation in his mailbox. He gave it to Frederick Vopper, the host of a local radio talk show. Vopper played the tape on his show after the union and the school board had come to agreement. Afterwards, Bartnicki and Kane sued in the U.S. District Court for the Middle District of Pennsylvania, citing Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2511, 2520, and the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Con. Stat. Ann. § 5701 et seq. These acts impose criminal and civil penalties on anyone who intentionally intercepts a private conversation, or who discloses the contents of a conversation knowing that it was illegally intercepted. Attorneys for Vopper and Yocum argued that their clients did not violate the electronic surveillance acts because they did not intercept the phone call, nor did they know that the recording had been illegally obtained.
In June 1996, Judge Edwin Kosik denied both parties' motions for summary judgement, and granted an interlocutory appeal to the Third Circuit. Two questions needed to be addressed: first, whether holding the media liable for broadcasting a newsworthy tape violates the First Amendment when the tape was illegally obtained and recorded by an unknown source, and second, whether holding Yocum liable for providing the anonymously intercepted and recorded tape to the media would be a violation of his First Amendment rights.
Sloviter, writing for the majority of the appeals court, cited Smith v. Daily Mail Publishing Co. (443 U.S. 97, 61 L. Ed. 2d 399, 99 S. Ct. 2667 (1979)). In Smith, the Supreme Court concluded that punishing a publication for printing truthful information dealing with matters of public concern violates constitutional standards.
Although acknowledging that the Federal and Pennsylvania wiretapping acts are generally applicable and content-neutral laws focusing on how information is intercepted, rather than on what kinds of information can or cannot be intercepted, Sloviter opined that forcing reporters to track each piece of information to its source would be time consuming, and could have a chilling effect, especially when journalists often have no way of knowing whether the information came from a lawful source, or whether the information has already been made public.
Bartnicki v. Vopper came before the Supreme Court in December 2000. During his oral argument for the media defendants, attorney Lee Levine analogized the interception of the Bartnicki telephone conversation to someone who breaks into a house and steals a diary from the homeowner. "[T]he physical diary is property. Taking that, regardless of what's inside it, is not the function of the First Amendment to speak to. If you're talking about the contents of the diary, the information, and you're then penalizing someone for now knowing that information, having it in his brain and then disseminating it to other people, that is something that the First Amendment is concerned about, especially when you're talking about speech that is the truth and a matter of public concern." Levine's example drives home the main conflict in the Bartnicki case: the right to disseminate truthful information, particularly when it is a matter of public interest, versus the right of privacy and an individual's freedom of speech.
Justice John Paul Stevens wrote the opinion for the majority of the court. He reiterated that neither Yocum nor Vopper had participated in the interception of Bartnicki's phone conversation -- that they had obtained the recording lawfully -- and that the information disclosed during the Bartnicki conversation was of public concern and had a bearing on public safety. Stevens analogized the delivery of the tape to Yocum to a person giving a handbill to another. Although it may appear to be conduct, it is an action that really involves speech, and as such is protected by the First Amendment. Punishing such an act, Stevens wrote, "....seldom can satisfy constitutional standards."
Acknowledging that the Court's ruling might have an effect on privacy, specifically the chilling of personal speech, Stevens focused on Bartnicki's threat to "blow off their porches." He wrote, "....privacy concerns give way when balanced against the interest in publishing matters of public importance."
A concurring opinion by Justice Breyer, joined by Justice O'Connor, observed that Bartnicki and Kane were limited purpose public figures and that the conversation in question did not contain "mundane facts about a person's life," but included a threat of harm to others. Breyer further stated that people who use cellular phones on the street are normally not concerned with the possibility of passersby overhearing their conversations, and that the freedom that comes with using a cellular phone often brings with it a lack privacy.
Chief Justice Rehnquist, joined by Justices Scalia and Thomas dissented, viewing the majority's opinion as a violation of individual privacy. Even those who have stepped into public arena, Rehnquist wrote, "...have not abandoned their right to have a private conversation without fear of it being intentionally intercepted and...disclosed."
The Bartnicki ruling has affected two other pending cases, Boehner v. McDermott and Peavy v. WFAA. Both involved tapes of intercepted telephone conversations that were later used in news reports. However, unlike Bartnicki, Peavy involved a news organization that was aware that unlawful activity had led to the recording of the tapes; in Boehner, the source who passed the tape to the media was aware of the circumstances of its interception. On May 29, 2001, the Supreme Court ordered the U.S. Court of Appeals (D.C. Circuit) decision in the Boehner case to be vacated and remanded, and denied review of the Peavy case.
The ruling in Bartnicki is very narrowly drawn, turning on the fact that neither Vopper nor Yocum participated in the interception of the Bartnicki phone call, nor did they know that it had been illegally recorded. Although the Bartnicki decision relieves the journalist of the legal obligation to establish a "pedigree" for his or her sources of information, it leaves open the question of whether a journalist has an ethical obligation to determine the source of a tape before publishing its contents, or to eschew the use of such tapes entirely.

Levine, who successfully represented the media defendants in front of the Supreme Court, delivered the 16th Annual Silha Lecture on October 2, 2001, in the Cowles Auditorium of the Humphrey Center on the West Bank of the University of Minnesota Twin Cities campus. Despite his victory, Levine warned that the media should not expect the same level of First Amendment protection if they engage in illegal conduct while gathering this information. Levine expects that future claims against the media will focus on newsgathering rather than on publication of information, especially if in the process of gathering information, the press violated someone's personal privacy. The Bartnicki case was the first major media case to reach the Supreme Court since Cohen v. Cowles Media ten years ago, and has been closely monitored by media groups across the country. Silha Center Director, Jane Kirtley, in her introduction of the lecturer, called the case "seminal" and put it in the line of classic First Amendment cases: Near v. Minnesota, New York Times v. Sullivan, United States v. New York Times (Pentagon papers) - cases that define the First Amendment framework within which all journalists operate.

The Bartnicki case began in 1993 in Pennsylvania when a cellular telephone call between two teachers' union activists involved in a labor dispute was intercepted, passed on and subsequently broadcast numerous times on Fred Vopper's radio talk show. In the call, one of the union activists stated that if the school board did not agree with the proposed pay raise they were "gonna have to go to their, their homes...to blow off their front porches." Although no allegation was made that the radio show host had anything to do with the interception, he was sued based on language in state and federal wiretapping laws (see 18 Pa. Con. Stat. Ann. § 5701 et seq., and 18 U.S.C. §§ 2510, 2520) making it illegal to disseminate, as well as to tape, cell phone conversations without the consent of the parties. When the case reached the Supreme Court, Levine and his law firm became involved in the case. On May 21, 2001 the Court ruled 6-3 in favor of the defendant. Levine explained to the audience how he built his defense before the high court around the Daily Mail principle, named after Smith v. Daily Mail Publishing Co (443 U.S. 97 (1979)) in which it was first formulated. The principle holds that the First Amendment protects the publication of truthful information about matters of public concern, at least in the absence of a demonstrated need to vindicate a competing government interest of the very highest order. The Solicitor General, who had intervened because the defendants challenged the constitutionality of the federal wiretap statute, argued that the Daily Mail principle did not apply to the wiretap act because the act is "content neutral;" it serves to regulate conduct and not content. Even if the Daily Mail principle did apply, the wiretap act serves government interests of the highest order, the government contended.

The Court rejected the claims of the solicitor general, stating that the wiretap act is not content neutral since it not only regulates the interception of conversations, but also the act of disseminating this information further, even if one has not taken part in the interception. According to the statute, a person having heard the tape played on Vopper's show could be in violation of the wiretap act if he told somebody else about the content of the tape. Therefore, Levine had argued that the statute was too broad. The Court agreed and made clear that it was unwilling to limit the right of the press to publish information, even if that information was collected from a source that broke the law when acquiring it. The Solicitor General's other claim, that the wiretap act serves a government interest of the highest order and hence cannot be overridden by the First Amendment, was based on two contentions: first, that the government has an interest in drying up the market for illegally intercepted conversations, and second, that the government has an interest in protecting the privacy of people using cell phones. Levine explained that the high court found the that government interest served by the wiretap act was not of the highest order to justify overriding the First Amendment right to publish or broadcast truthful information about a matter of public concern. However, the Court was not insensitive to the right of privacy involved in this case, and some Justices expressed great concern about the state of privacy in today's society. The fact that the Supreme Court decided that the Daily Mail principle continues to provide the appropriate model for constitutional analysis in press cases like these is, Levine said, an important victory for everyone cherishing the First Amendment. But Levine pointed out some other, possibly troublesome, implications for the press reflected in the other opinions, especially in the concurring opinion written by Justice Breyer (joined by Justice O'Connor). Above all, this opinion reconfirmed the Supreme Court's strong commitment to privacy. Justice Breyer argued that in cases like these, there are speech interests on both sides of the equation. Justice Breyer stressed that privacy interests are implicated, and that the First Amendment does not automatically trump them. In this case, Justice Breyer agreed that the First Amendment concerns outweighed the privacy interest of the plaintiffs. Levine acknowledged that Justice Breyer suggested that the government should have a greater role striking the balance, especially in the context of new technology, and to regulate accordingly. Levine mentioned that although this case (re)established that the media have great First Amendment protection when publishing or broadcasting truthful information of public concern, and even untruthful information in the case of public figures, this protection might not be available when the press breaks the law in the process of gathering the news. As a consequence, he foresees that future claims against the press will focus on the gathering rather than on the publication of information. He expects these claims to be increasingly technology-driven.

Levine showed how early depositions of the plaintiffs leave little doubt that their true motive for suing Vopper was to seek damages for defamation, yet they sued under the wiretap statute, betting that a privacy claim would be more likely to prevail. These types of claims, Levine concluded, were the ones most likely to face media organizations in the coming years.

In addition to the lecture, Levine gave a presentation to the School of Journalism and Mass Communication's faculty and graduate students, and was interviewed by Don Shelby on WCCO Radio the afternoon of October 2. Levine is a founding partner of the Washington, D.C. law firm Levine Sullivan & Koch, LLP and adjunct professor of law at the Georgetown University Law Center.

Members of the panel included: Eric Black, a reporter on the nation/world desk of the Minneapolis Star Tribune; Vicki Gowler, the managing editor of the St. Paul Pioneer Press; Scott Libin, news director for KSTP television; Tim McGuire, editor and senior vice president of the Star Tribune, and Jane Kirtley, Silha Professor and Director of the Silha Center. The event was moderated by Duchesne Drew, the president of the Minnesota Pro Chapter of the Society of Professional Journalists who is assistant Metro Team Leader at the Star Tribune. Much of the discussion centered on the need of the public to be given context and background on the issues that led to the attacks. What had recently been an international story has now become local. Gowler commented that more news outlets will now be sending their own correspondents overseas, relying less on the major international news providers, such as wire services and the New York Times. This development would mean a greater depth and breadth of international coverage than Americans now receive. There was a growing concern among the forum's panelists with regard to government censorship, however. McGuire said that things have gotten "trickier;" that there is no tolerance for dissent and open discussion. He cited Attorney General Ashcroft, who issued a directive saying that the government's response to Freedom of Information Act requests would be limited in the light of the current war. "Sunshine makes the truth grow...some people from the government are forgetting that," McGuire said. Kirtley agreed, citing the government's concern that the rhetoric in Bin Laden's interviews would serve as propaganda to the American public, while during World War II, Movie-Tone newsreels of Hitler's speeches were shown to American filmgoers in theaters nationwide with no ill effects. Kirtley also reminded the audience that the only branch of the government that has not yet taken a position on censorship is the judicial branch, which has traditionally been a strong supporter of the news media's First Amendment rights. In addition to the Silha Center, other co-sponsors of the event included: The Society of Professional Journalists Minnesota Pro Chapter, the Minnesota News Council, and the Minnesota Journalism Center at the University of Minnesota School of Journalism and Mass Communication. Judicial Conference Casts Vote on Accessibility of Electronic Files By Elaine Hargrove-Simon O n September 19, 2001, the Judicial Conference of the United States adopted a report with recommendations regarding policies that govern the electronic availability of federal court case file information. Earlier this summer, the Silha Center had filed Comments on the Privacy and Public Access to Electronic Case Files before the Judicial Conference and advocated continued access to court documents converted to electronic form. The comments may be viewed at http://www.silha.umn.edu/privacy.pdf. The report was unanimously endorsed by the Committee. The Committee's recommendations as adopted include:

• Documents in civil cases should be made available electronically to the same extent that they are available at the courthouse, but with one change in policy - that "personal data identifiers" should be modified or partially redacted by the litigants. "Personal data identifiers" include: Social Security numbers, dates of birth, financial account numbers and names of minor children.
• Public remote electronic access to documents in criminal cases should not be available at this time. This policy will be re-examined within two years of adoption by the Judicial Conference.
• Documents in bankruptcy case files should be made generally available electronically to the same extent that they are available at the courthouse, with a similar policy change for personal identifiers as in civil cases. The Bankruptcy Code should be amended to establish privacy and security concerns as a basis for sealing a document, and the Bankruptcy Code and Rules should be amended as necessary to allow the court to collect only the last four digits of a debtor's Social Security number.
• Access to appellate case files should be treated at the appellate level the same way they are treated at the lower level, which could vary depending on whether they were appealed from a U.S. district court or a federal agency.

The Judicial Conference adopted the above policies in a mail ballot of its 27 members.

The Chief Justice of the United States originally convened the 141st session of the Judicial Conference at 9:30 am on September 11, 2001. Preliminary business was being conducted when, at 10:15, Chief Justice Rehnquist announced that the Supreme Court building would be evacuated immediately. The Conference was expected to continue the following day and conclude its business at that time. However, as the day went on, it became obvious that this would not be the case. Later, the Chief Justice sent a memo to Conference members suggesting that time-sensitive issues be resolved by mail ballot, and the Conference would reconvene in March 2002. It was the first time in its history that a Judicial Conference had been cancelled. The Judicial Conference of the United States is the principal policy-making body for the federal court system. It consists of the Chief Justice, who serves as the presiding officer of the Conference, and the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system and to make recommendations to Congress concerning legislation involving the Judicial Branch. Guidelines Issued For Coverage of Suicides By Bastiaan Vanacker

A panel of experts in behavioral sciences, suicide and media studies issued a set of guidelines for news outlets' coverage of suicides on August 9, 2001. The guidelines, crafted by the Pennsylvania-based Annenberg Public Policy Center, in association with representatives from the Centers for Disease Control and Prevention, the National Institute of Mental Health, the Office of the Surgeon General, the Substance Abuse and Mental Health Services Administration, the American Association of Suicidology and the American Foundation for Suicide Prevention are aimed at reducing the "copy-cat" effect that some studies have observed and linked to suicide coverage in the media. According to these studies, sensational coverage of suicides might stimulate other suicides. The guidelines are designed to help news organizations better inform the public about suicide, and to find a balance between telling the truth and reducing future harm. The experts urge news organizations not to romanticize suicide as a heroic act and to avoid detailed accounts of suicide methods, as this might encourage identification with the victim and facilitate imitation. Particularly in the case of celebrity suicides, news organizations should apply special care not to glamorize the event, but instead focus on underlying problems such as mental health problems or substance abuse as important factors in many suicides. According to the recommendations, both media and public should be aware that suicide is usually not caused by a specific event or personal tragedy, but is the result of long-lasting underlying mental problems. The guidelines also contain some recommendations about "appropriate" terms and language to be used in suicide coverage (for example using "died by suicide" instead of "committed suicide," "non-fatal suicide attempt" instead of "unsuccessful attempt.") The panel of specialists also warns that giving excessive exposure to grieving family members and friends or giving young adults a forum to talk about unsuccessful, "non-fatal" attempts only makes suicide more appealing for some. A partnership of public and private organizations will distribute the guidelines to editors, reporters and producers throughout the country. The guidelines can be downloaded from the Annenberg Public Policy Center Web site at http://www.appcpenn.org.

No proof has been discovered, however, that anything Dalton wrote in his diary was related to actual events. His parents have questioned their nieces, Dalton's cousins, who were portrayed in the book, and neither of them reported that Dalton has ever molested them. Police investigations have turned up no additional evidence to support the claims that anything in Dalton's diary is factual.

Dalton initially pled guilty in order to obtain a dismissal on a second pandering charge and in hopes of receiving a lighter sentence. Reportedly, Dalton was also concerned that if the diary were entered into evidence at trial, its contents would become public and further embarrass him and his family. But alarmed that the charges against Dalton violated First Amendment rights, the American Civil Liberties Union (ACLU) offered to challenge them on Dalton's behalf. However, a motion filed by Dalton's attorney, Isabella Dixon, to withdraw Dalton's guilty plea was denied by Franklin County Judge Nodine Miller. According to the Associated Press, the judge said that Dalton had not demonstrated that "manifest injustice" had taken place. Further, Dalton had failed at the time he pled guilty to question the constitutionality of the law, and competent attorneys had represented him. In a memorandum, prosecutors argued, "The record contains no indication that the defendant was confused about the nature of the plea, the rights being waived or the possible sentences.... If the defendant was primarily concerned about receiving treatment, then he failed to demonstrate that while on probation, because he repeatedly failed to properly seek, obtain, and participate in their sexual-offender treatment plan." The memorandum further stated that a defendant cannot withdraw a plea "merely because he changed his mind." Because Dalton has not been allowed to change his plea, the case seems to be concluded. However, those concerned with freedom of speech rights have raised their voices against the charges facing Dalton. There are calls to declare the Ohio law under which Dalton has been convicted unconstitutional. Passed in 1989, the law bans possession of obscene material that involves children. However, the law was challenged before the Supreme Court in 1990, and the high court upheld it. But in a story appearing in the July 25, 2001 Washington Post, Raymond Vasvari, legal director of the ACLU in Ohio, says that the Ohio law is a throwback to the "bad tendency" theory, which the Supreme Court abandoned 30 years ago. The "bad tendency" theory holds that the mere possession of pornography incites its possessor to commit illegal sexual acts. But that standard was supplanted in 1969 in the Stanley v. Georgia case. That case led to a legal test requiring that the obscene material present a clear and imminent danger to children. The Washington Post story quoted Vasvari as saying, "For 30 years the bad-tendency theory has been dead, and this [the Dalton case] is an attempt to resuscitate it. They want to punish people for what might happen and not what happened. They are criminalizing a man's thoughts just because he got caught putting those thoughts into his private diary."

According to civil libertarians, two key constitutional issues regarding obscenity law could come into question if Dalton is allowed to reverse his plea. First, there is the question of whether child pornography is limited to images. According to Ohio's pandering laws, child pornography includes "any obscene material that has a minor as one of its participants or portrayed observers." Generally, laws against child pornography are enacted primarily to protect children. Gary Daniels, spokesman for the National Coalition Against Censorship, also quoted in the July 25 Washington Post article, said that images of children engaged in sexual acts are seen as proof of actual abuse.

The second question asks whether child pornography is illegal if it is simply possessed and not disseminated. In earlier cases, the Supreme Court has consistently ruled that protecting children from pedophiles is more important than First Amendment rights. Bruce Taylor, president of the National Law Center for Children and Families, has handled more than 600 obscenity cases. Quoted in the July 25 Washington Post article, he said that some privately held written material incites pedophiles to molest and seduce children. "Child pornography doesn't stay in your sock drawer. It gets a life of its own and is acted out eventually. Kids get hurt by its mere existence." But in Stanley v. Georgia (394 U.S. 557; 89 S.Ct.1243;22 L.Ed. 2d 542; 1969 U.S. Lexis 1972 [1969]), Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means the state has no business telling a man, sitting alone in his own home, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

Although it may appear that the Dalton case is over, concern for the implications on freedom of speech and First Amendment rights continues. An Internet search on the case revealed only one article in support of the Ohio court's decision. All others, including George Will, various arms of the ACLU, writers of commentaries in newspapers ranging from the New York Times to the Los Angeles Times, from the Village Voice to the Washington Post, have expressed their fears that this case will become a watershed event leading to restrictions on speech and thought, and to severe restrictions on personal privacy. Leonard Pitts, Jr., in his article, "Should a Man be Put in Jail for What He's Thinking?" on the Jewish World Review Web site, pointed out a disturbing paradox of the Dalton case: "The guy got probation after being convicted of possessing pornographic photos of real children. He's looking at almost nine years for writing private thoughts about fictitious ones." (Found at www.jewishworldreview.com/0801/pitts1.asp on 10/5/01)

Secret Police Files Center of Privacy Debate in Former East Germany By Elaine Hargrove-Simon Two important rights - the right to privacy and the public's right to know - are struggling to find a balance in the former German Democratic Republic. The current balancing efforts involve files the East German State Security kept on its country's citizens.

In July 2001, a Berlin court ruled that secret police files on former German chancellor Helmut Kohl will remain closed. Investigators had hoped the files would augment their investigation of a financial scandal involving Kohl's Christian Democrat (CDU) party and allegations of bribery. Kohl has admitted to accepting $900,000 in illegal donations, but when he agreed to pay a fine, the charges against him were dropped. He has not named the others who had been involved in the scandal. Investigators had hoped that the file, which supposedly contains transcripts of Kohl's telephone conversations, would reveal others involved in the scandal. Marianne Birthler is the head administrator of the East German State Security (Staatsicherheit) files, otherwise known as the Stasi files. The BBC reported that Birthler said that the Stasi Records Act states that files may be released so long as the person is not a victim of the secret police's activities. But Kohl's attorney, Stephan Holthoff-Pfoerner argued that Kohl did fit into this category. "Files about any victim, including historically significant figures, with personal information gathered by crude, illegal means cannot be read without their permission."

Deutsche Welle reported that the Stasi closely monitored the entire population of East Germany during the Cold War. The information collected included the speech or actions of anyone who did not follow the Communist party line. At the time of German reunification, the Gauck agency was established to expose former Stasi agents and informers, and to allow victims to see the files the Stasi had gathered about them. The agency's aim was also to give historians and journalists an opportunity to gain insights into the workings of the failed Communist system in East Germany.

The Stasi records act (available online at http://www.bstu.de/englisch/01.htm), enacted in 1991, regulates the custody, preparation, administration and use of the records. The act provides individuals the opportunity to access personal data so that they may clarify "what influence the state security service has had on his personal destiny...[and] protect...the individual from impairment of his right to privacy being caused by use of the personal data stored by the State Security Service...to ensure and promote the historical, political, and juridical reappraisal of the activities of the State Security Service." The Act further "provide[s] public and private bodies with access to the information required to achieve the purposes stated in this Act." The Act is applicable to "the records of the State Security Service which can be found in possession of public bodies of the Federation...of private individuals, or of other private bodies." The Act further provides for the "depersonalization and erasure of personal data" except in cases when that information may be used as evidence, if the information is "necessary for research related to the political and historical reappraisal." If depersonalization is not possible and if the information is not necessary for the provided research, the records shall be destroyed or, in the case of electronic data, erased. Deutsche Welle has reported that German Interior Minister Otto Schily has demanded that Birthler stop releasing files on all public figures. Birthler, however, does not wish to block access to documents despite the Kohl decision, and has said she will fight the Kohl ruling in appeals courts. Only a small portion of the Stasi files have been examined to date, and gaps remain in twentieth-century German history. Much research still needs to be done, and restrictions on access to the files would hamper that research. The right of privacy of well-known figures is at odds with the public's - both Germany's and the world's - right to know.

• The White House asked news outlets to stop airing tapes produced

  by Osama bin Laden and his supporters, speculating that the Al-Qaeda

  terrorist network might be using the footage to send coded messages

  to other terrorists. ABC, CBS, CNN, NBC and Fox networks agreed that

  they would not broadcast Al-Qaeda's transmissions without first screening

  and possibly editing them. However, many American cable companies carry

  overseas networks, such as the BBC and Deutsche Welle, which are not

  bound by such restrictions. In addition, satellite television is available

  nationwide, and provides access to foreign programming.

• Some government organizations and non-government organizations have

  pulled "sensitive" information from their Web sites. Entities which

  modified or deleted material from their sites include the Nuclear Regulatory

  Commission (which contained coordinates of the nation's 103 commercial

  nuclear reactors); the Environmental Protection Agency (which pulled

  reports on chemical plants); the Centers for Disease Control and Prevention

  (which removed a report about security at chemical plants); the Federation

  of American Scientists (which had posted diagrams and photos of U.S.

  intelligence facilities); the U.S. Office of Pipeline Safety (which

  provided mapping software and pipeline data; it is now restricted to

  use by industry and government officials); Irish Republican Activist

  Radio (which suspended operations out of fear that its assets would

  be seized if it was accused of supporting terrorism). Twenty-one journalism

  organizations, including the Society of Professional Journalists, the

  Radio-Television News Directors Association and the Poynter Institute

  have criticized the action to pull information from Web sites, many

  of which were unannounced.

• Knight Ridder agreed to delay publication of a story reporting that

  special operations units had secretly entered Afghanistan, at the request

  of the Pentagon.

• President Bush warned Congress that if its members leak sensitive

  war information to the press, only a handful would be allowed access

  to such information. Subsequently, he closed briefings to all but eight

  members of Congress. The president later revised his position when Rep.

  Tom Lantos (D-Calif.) reminded him that the State Department is required

  by law to keep House and Senate committees on foreign relations "fully

  and currently informed."

• The Pentagon has requested that defense contractors not release information

  about the weapons they make.

• The State Department attempted to block the Voice of America from

  broadcasting an interview with a Taliban official, saying that VOA should

  not be "broadcasting the voice of the Taliban." The interview was finally

  aired, with minor revisions. The Washington Post wrote in an editorial

  on September 25 that the broadcast had occurred, "following an outcry

  from VOA journalists and others, who pointed out that the credibility,

  not propaganda, is the real strength of [its] broadcast service...."

• Bill Maher, host of television's "Politically Incorrect" talk show,

  was publicly scolded by White House spokesman Ari Fleisher for his controversial

  comments during a broadcast. Maher had said: "We have been the cowards,

  lobbing Cruise missiles from 2,000 miles away. That's cowardly. Staying

  in the airplane when it hits the building, say what you want about it,

  it's not cowardly." Fleischer's comment following Maher's broadcast

  was: "There are reminders to all Americans that they need to watch what

  they say, watch what they do. This is not a time for remarks like that.

  There never is." Maher later apologized for his remarks.

• FBI agents turned to the main Internet providers - Hotmail, AOL, Earthlink,

  etc. - asking for information on possible e-mail exchanges between the

  terrorists. The Freedom Forum's Web site reported that the Paris-based

  Reporters sans Frontieres stated that the Internet providers "fully

  collaborated with the American secret services."

• Helicopters and other news aircraft were grounded nationwide. The

  ban limited news organizations' ability to gather information about

  their local communities at a time when the public was particularly concerned

  about safety. Additionally, the ban was specific to news operations,

  allowing other aircraft to fly without restriction, and did not distinguish

  between sensitive and non-sensitive geographic areas. Thus far in American

  law, restrictions of general applicability are not seen to be in violation

  of the First Amendment. These restrictions, however, do single out the

  press, and for that reason are problematic.

• The Bush administration has declined to release examples of evidence

  proving that Osama bin Laden was behind the September 11 attacks on

  the World Trade Center and the Pentagon. A White House spokesman said

  that the evidence must be kept confidential as it will be going to a

  grand jury, which operates in secret. In addition, the information was

  derived from classified intelligence material.

Attorney General John Ashcroft asked congressional leaders to enact laws that would give U.S. law enforcement agencies permission to conduct "roving wiretaps," tap phones on the basis of the person who is using them. Existing laws grant surveillance to a particular phone but require permission to be sought anew for each line that tapped. The Department of Defense has posted on its Web site (see http://ww.defenselink.mil/news/Sep2001/t09302001_t0928asd.html) the transcript of a meeting held by the Assistant Secretary of Defense Public Affairs with presenter Victoria Clarke and Media Pool Bureau Chiefs. The transcript reflects both the media concerns for reporting the truth to the public and the vital importance of keeping American and allied troops and their families out of harm's way, as well as maintaining the secrecy of military operations in order to ensure their success. Topics included:

• The possibility of "embedding media" - assigning a small number of

  reporters to different military divisions in order to follow operations.

  Concerns over this include the enemy's ability to build a "mosaic" in

  which reports from the media confirm troop presence in one place, then

  another, until the enemy has a complete picture of U.S. forces' locations

  within the territory.

• The reality that other countries broadcast information that is classified

  under U.S. government guidelines, and that these broadcasts are readily

  available by satellite dish and the Internet.

• Whether the government would lie in order to keep some military operations

  secret. · Government performing "security reviews" on stories before

  they may be disseminated, affecting not only content, but also the timeliness

  with which they are released.

• The track record of the military, which has been to err on the side

  of extreme secrecy.

• The new concern that in interviewing an individual soldier and including

  that person's last name and home town, that terrorist attacks might

  be perpetrated on that person's family members. (This was rescinded

  on October 17 after Susanne Schafer, who covers the Pentagon for the

  Associated Press, questioned the decision, saying "When [the media are]

  out there with the military in the field, they want you there. You are

  a boost to their morale.")

• The use of media pools as a means to centralize the transmission

  of text, photos and videos exerts a tremendous amount of control on

  the information that is released.

• The need for journalists to keep confidential - even to the point

  of not telling family members - about their own movements while on assignment.