At the first of the hearings, held Nov. 19, 2002, testimony against el-Atriss was compelling enough to convince Clark to double the 46-year-old's bail from $250,000 to $500,000, according to a June 25, 2003, report in The New York Times.

Clark's decision was in response to a motion by media companies to unseal the transcripts. The documents were released later in June, according to the New York Times report. The New York Times further reported that the transcripts contained testimony from Passaic County investigators indicating that a business partner of El-Atriss had been investigated by the FBI for links to terrorism and that El-Atriss might have had contact with two more September 11 hijackers, in addition to the two to whom he provided ID cards.

El-Atriss held a press conference to deny all of the charges and to threaten a lawsuit against the Passaic County for mistreatment he allegedly suffered during his six-month confinement, according to the New York Times report. Federal authorities also downplayed the importance of the testimony contained in the transcripts, saying that El-Atriss was not considered a threat to national security.

El-Atriss accepted a plea deal in February in which he pleaded guilty to one state count of selling simulated documents. He was sentenced to five years' probation and a $15,000 fine.

Initially, El-Atriss' attorney stated that releasing the transcripts could jeopardize national security but dropped their argument when no government agency opposed disclosure, according to a report by the Reporters Committee for Freedom of the Press (RCFP). Defense counsel then argued that releasing the transcripts could ruin El-Atriss' reputation by publicizing that what El-Atriss had stated was erroneous testimony, wrongly associating him with terrorism. The RCFP report is available online at http://www.rcfp.org/news/2003/0613inrere.html.

—Doug Peters
Silha Fellow

Under California law, substantive courtroom proceedings may not be closed and transcripts may not be sealed unless the court finds that an overriding interest exists supporting closure and/or sealing, and that failing to close the proceedings or seal documents would create a substantial likelihood of prejudice against the party claiming the interest. The court must also find that the closure or sealing directly serves the interest of the party seeking to seal the records, and that it could not protect the claimed interest while keeping the court proceedings open. (See "U.S. Court Rulings Affecting Access to Information: South Carolina District Court Bans Secret Settlements" in the Fall 2002 issue of the Silha Bulletin.)

In an opinion written by Presiding Judge Paul Turner, the court held that Universal's interest in keeping the settlement terms secret did not outweigh the public interest in having court proceedings open. In the absence of such an overriding interest, the court said, contractual language calling for secrecy was not enough to compel sealing of court documents.

—Doug Peters
Silha Fellow

The ruling in Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), raised concerns among some human-rights and civil-liberties groups that the government may avoid disclosing public information simply by invoking national security grounds, regardless of whether those grounds are legitimate.

The case began in late October 2001, when a coalition of public interest groups led by the Center for National Security Studies filed a FOIA request with the U.S. Department of Justice seeking records regarding more than 700 people taken into government custody following the attacks.

The vast majority of those in custody faced deportation for immigration violations. Some, like Zacarias Moussaoui, were criminally charged. At least a handful of others were held as material witnesses to the terrorist attacks. At the time the request was filed, nearly two months after the unprecedented roundup began, the federal government had not released the names of those it was holding. The government's subsequent denial of the FOIA request prompted the litigation in U.S. District Court for the District of Columbia. The district court ordered the government to disclose the names of individuals detained in the days and weeks following the Sept. 11, 2001, attacks. (See "Center for National Security Studies v. U.S. Department of Justice" in the Fall 2002 Silha Bulletin.)

The D.C. Circuit reversed the district court ruling, allowing the government to withhold detainees' names.  The panel majority held that FOIA exemptions allow the government to withhold the names of detainees and their attorneys, as well as other information that could identify the detainees. Judge David Sentelle, joined by Judge Karen Henderson, wrote that where issues of national security are concerned, courts should defer to the executive branch when considering whether to allow the government to withhold information.

Judge Tatel dissented, writing that the court's willingness to defer to the government "eviscerates both FOIA itself and the principles of openness in government that FOIA embodies." He asserted that the approach taken by his colleagues risked eliminating judicial review of any executive decisions to withhold information on national security grounds. Such a stance, he argued, endangers the public's ability to keep tabs on its government.  In this particular case, Tatel wrote, there was a strong public interest in knowing whether the government was violating the Constitutional rights of the hundreds of detainees whose identifying information was withheld.

Tatel's concerns have been echoed by human-rights and civil-liberties organizations, which have criticized the decision. In a release by Human Rights Watch on the day the court announced its decision, the organization's U.S. program director, Jamie Fellner, said the decision gave the government a potential end-run around the requirements of FOIA.

"The government," Fellner said, "shouldn't be able to justify secret arrests simply by invoking the words Ônational security.'"

Human Rights Watch's release on the decision is available online at: http://www.hrw.org/press/2003/06/us061703.htm.

At issue in the case were exemptions in FOIA that allow the government to withhold law enforcement records for selected purposes. In seeking to withhold the information, the government invoked four separate FOIA exemptions. The court, however, based its decision on only Exemption 7(A), which states that the government may withhold records if disclosure could "reasonably be expected to interfere" with law enforcement investigations.

The government contended, and the court agreed, that identifying those individuals swept up by government investigators in the weeks and months after the terrorist attacks could provide terrorists with a roadmap to the government's investigation. Providing further information sought by the plaintiffs, including date and location of arrest, could offer even more insight into how the government had organized and orchestrated its investigation, which in turn could allow terrorist organizations to adjust their methods and avoid detection, the government argued.

Attorney General John Ashcroft issued a statement calling the ruling "a victory for the Justice Department's careful measures to safeguard sensitive information about our terrorism investigations . . .."

"We are pleased the court agreed we should not give terrorists a virtual roadmap to our investigation that could allow terrorists to chart a potentially deadly detour around our efforts," Ashcroft said.

Ashcroft's statement can be found online at http://www.usdoj.gov/opa/pr/2003/June/03_ag_358.htm

The groups seeking the information contended that they had a common-law right of access to government records. The court panel agreed with earlier Supreme Court precedent that such a right exists, but held that in this case, any common law right was superseded by FOIA. The court also rejected the plaintiffs' argument that they had a First Amendment right to the information. The First Amendment, the panel stated, prevents the government from curtailing speech, but "does not expressly address the right of the public to receive information. Indeed, in contrast to FOIA's statutory presumption of disclosure, the First Amendment does not mandate a right of access to government information or sources of information within the government's control." (Internal quotation marks and citation omitted).

—Doug Peters
Silha Fellow

In 1948, Albert Palya, William H. Brauner and Robert Reynolds were civilian engineers working with the Air Force to develop secret navigation equipment. On October 6, they joined an Air Force flight crew in a B-29 bomber, flying from Robbins Air Force Base in Georgia to Orlando, Fla., to test the new equipment. However, on the return leg of the flight, the plane crashed in Waycross, Ga., and the three civilians were killed along with six others onboard the plane.

The widows of the three men filed suit under the Federal Tort Claims Act (FTCA). Passed in 1946, the law allows citizens to sue the government for harm caused by its negligence or misconduct. Their attorney was Charles Biddle, who had himself been a fighter pilot during World War I. According to The Washington Post, Biddle was familiar with B-29s and knew they were prone to accidents. In 1950, as part of his preparations for the trial, Biddle requested the Air Force's report of the investigation of the 1948 accident. His request was denied.

Biddle then went to Federal District Judge William Kirkpatrick of the Eastern District of Pennsylvania and informed him that the government had refused his request. Kirkpatrick ordered the government to produce the report. Thomas Finletter, then secretary of the Air Force, responded with a letter stating that it would not be in the "public interest" to do so.

Kirkpatrick scheduled a hearing so that the government could justify its position. At the hearing, a sworn statement from Maj. Gen. Reginald Harmon, the judge advocate general of the Air Force, was presented to the court. Harmon argued that the information contained in the Air Force's report on the 1948 accident would harm national security.  Kirkpatrick decided to review the report himself in camera, but the Air Force would not agree to the arrangement.  Kirkpatrick responded by simply entering judgment for the widows on their negligence claim.

The government appealed Kirkpatrick's ruling to the U.S. Supreme Court, arguing that it could withhold documents on the basis of "public interest." On March 9, 1953, the Supreme Court agreed in a 6-3 decision, and precedent was set.

Meanwhile, the widows' suit was remanded and they received smaller financial settlements than they originally sought. The women went on with their lives.

Nearly 50 years passed.

During the 1990s, the Air Force declassified its airplane accident reports spanning the years from 1918 to 1952.  Michael Stowe, a man with a fascination for old airplane crashes, obtained the reports and began offering copies of them for sale on the Internet at http://www.Accident-Report.com/. Judith Loether, Palya's now-grown daughter, discovered the Web site and ordered a copy of the report concerning the crash.

The report revealed that just prior to the crash that killed her father, the first of four engines caught fire. Rather than slowing the propellers to the first engine, Capt. Ralph R. Irwin, the plane's pilot, slowed the propellers to the fourth. Then, in another effort to avert disaster, he mistakenly shut off the fuel to the second engine when he should have done so with the first.

Additional findings disclosed that technical orders intended to correct problems with the plane's rivets had not implemented, making the plane unsafe for flying; that a collector ring on the first engine had failed; and that neither the flight crew nor the civilians onboard had been properly briefed in safety measures prior to takeoff. Nothing in the report mentioned the secret navigation equipment that had been the focus of the mission.

Family members of the deceased civilians returned to Drinker Biddle & Reath LLP, the law firm that handled their 1950 case, seeking to petition the Supreme Court for a writ of error coram nobis on the basis of these newly-discovered facts, and accusing the Air Force of fraud. In its brief to the high court, attorneys wrote, "United States v. Reynolds stands exposed as a classic Ôfraud on the court,' one that is most remarkable because it succeeded in tainting a decision of our nation's highest tribunal. The fraud is clearly established by the Air Force's recently declassified materials."

The brief claims that the Air Force wanted to keep the real causes behind the 1948 crash secret because it was a recently-established branch of the military services and also because the safety of the B-29 bomber was coming under question. To further complicate matters, the United States stood at the brink of the Cold War. But the Air Force's disclosure of the truth concerning the accident, the brief continues, "could not and would not have threatened any facet of secret military research, let alone our national security."

Attorneys for the family members asked the Supreme Court to vacate its 1953 decision and decide the case anew with the facts contained in the declassified documents. On the basis of the anticipated new decision, the attorneys also requested that their clients be compensated as provided by the Federal Tort Claims Act.

However, on June 23, 2003, the Supreme Court refused to hear the case without comment.

Secrecy News reported on the Supreme Court's decision not to rehear the case, characterizing the legal status of U.S. v. Reynolds as "unaffected," adding, "But for some attentive members of the public, the fifty-year-old decision nowcarries an asterisk, a taint of suspected fraud."

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

Defense attorneys appealed Girolami's earlier decision to open the preliminary hearing to the public. An appeals court upheld Girolami's decision on Aug. 27.

Peterson is accused of killing his wife, Laci, who was pregnant with the couple's first child, and dumping her body into the San Francisco Bay.

In denying media requests to televise or otherwise record the hearing, Girolami said he did not want to turn his courtroom into "Reality TV," according the San Francisco Chronicle.

"It involves the victims' families, who will be forced to relive their worst nightmare in a very public way, which unfortunately is necessary to the process. Televising these passionate proceedings is not, however, necessary to the process," Girolami wrote in a six-page ruling.

The ruling stemmed from media requests in July to open Peterson's preliminary hearing, in which evidence supporting the charge against Peterson likely will be discussed.

"At stake is public confidence in a judicial system that abhors taking evidence in secret and assumes that any member of the public may be present to observe its operation," attorneys representing a coalition of media outlets argued, according to Reuters.

The newspapers' requests were joined by requests from broadcasters. News outlets, including Court TV and CNN, had argued for cameras in the proceedings. Both the prosecution and defense, as well as Scott Peterson's family and Laci Peterson's family, opposed televising the proceedings. They cited concerns over the emotional impact on family members, as well as the fear that the presence of cameras would affect the conduct of the proceedings.

In arguing against allowing broadcast media in the courtroom, Peterson's attorneys stated that closing the preliminary hearing would help prevent prejudice against Peterson, CNN.com reported. They added that opening the hearing would defeat the purpose of a gag order the court imposed earlier to calm the widespread media attention paid to the case. CNN's report is available online at http://www.cnn.com/2003/LAW/08/11/Peterson.exam/index.html.

—Doug Peters
Silha Fellow

Court TV filed suit in September 2001, seeking a declaratory judgment that the section of New York's Civil Rights Law banning audio and visual broadcasting equipment from trial courts violated the First Amendment.  The network also asked the court to forbid further enforcement of the law.

Judge Shirley Werner Kornreich denied Court TV's request, ruling that nothing in the state law undermined citizens' right to attend trials and that "audio-visual coverage of trials is neither prohibited nor required under the First Amendment." Accordingly, Kornreich said, a court may impose reasonable restrictions on broadcast coverage of court proceedings.

Kornreich's opinion includes a detailed discussion of the history of New York's stance on broadcasting court proceedings, describing the state's 10-year experiment which allowed televised criminal trials in some situations.  The law expired under its own terms and was not reenacted.

Court TV, represented by David Boies, said it would appeal the July 15 ruling.

In her opinion, Kornreich states that it is difficult to pin down state-court policies in "what is essentially a national patchwork quilt of policies."

"Still," the judge wrote, "it is undisputed that today, a substantial majority of states permit audio visual coverage of trial court proceedings."

—Doug Peters
Silha Fellow

The DHS quickly scaled back its request after the Detroit News objected.

After the newspaper filed its challenge, the government asked to close only those portions of the hearing involving an FBI memo. Newberry granted the government's revised request Aug. 12, 2003, according to an Aug. 13, 2003, report in the Detroit News.

—Doug Peters
Silha Fellow

After more than a year of wrangling for access by both media outlets and the defendant himself, the answer appears to be no. The government's recent refusal, on national security grounds, to obey an order by U.S. District Court Judge Leonie Brinkema, creates a possibility that the case against Moussaoui will be dismissed.  That would likely result in the French national being labeled an enemy combatant and tried in a secret military tribunal. Moussaoui is the only person who faces charges in an American court in the Sept. 11, 2001, terrorist hijackings.

Brinkema had been concerned with the secrecy surrounding the case since early in the proceedings. In September 2002, she began removing some barriers to public access to the case, modifying an earlier order sealing Moussaoui's filings due to prosecutors' fears that the avowed member of al Qaeda might be trying to pass coded messages in his unorthodox, handwritten filings, according to a Sept. 28, 2002, article in The New York Times. Brinkema's modified order sealed Moussaoui's handwritten pleadings for 10 days, allowing the government to analyze the filings for potential secret messages before release. (See "Cameras Banned at Trial of Alleged Terrorist" in the Winter 2002 Silha Bulletin.)

Despite the shift, the record of the case remained largely secret. The secrecy intensified in October 2002, when Ramzi Binalshibh, an alleged Sept. 11 co-conspirator, was captured in Pakistan.

Between Brinkema's Sept. 27, 2002 order and the following April, however, only a handful of filings were unsealed, according to a Washington Post article by reporter Tom Jackman.

"Moussaoui and his standby lawyers . . . sought access to Binalshibh, who Moussaoui says will support his claims that he was not involved in the attacks," Jackman wrote in the April 4, 2003, edition of The Washington Post. "Briefs, oral arguments, even a ruling by Brinkema that the defense should have access to Binalshibh, all have been kept secret."

A group of media organizations, including the The New York Times and The Washington Post, challenged the continued secrecy on April 3. According to an April 4 article in The New York Times, the organizations filing the protest with Judge Brinkema were The New York Times, ABC News, The Associated Press, The Hearst Corporation, the Tribune Company and The Washington Post, as well as the Reporters Committee for Freedom of the Press.  The media organizations argued that holding the judicial records under seal violated First Amendment and common-law rights of access to judicial proceedings.

Moussaoui has insisted on acting as his own attorney, but one of his standby defense attorneys said he supported the media's request.

"We recognize that there are national security concerns, and we certainly don't believe in compromising national security," federal public defender Frank Dunham Jr., told The New York Times, "but I can't imagine that we would take any position other than that the trial – and all pretrial proceedings – should be public to the maximum extent possible."

The day after the media organizations' challenge, Brinkema said she was unsure whether the case against Moussaoui could go ahead amid such secrecy, according to an April 5, 2003, article by Minneapolis Star Tribune reporter Greg Gordon.

The judge's concerns were borne out soon thereafter.

On May 13, 2003, the U.S. Court of Appeals (4th Cir.) refused the government's request to overturn Brinkema's January 2003 decision granting Moussaoui access to Binalshibh as part of his defense. 

"The value of openness in judicial proceedings can hardly be overestimated," the court wrote, according to a May 14 report in The New York Times. "This value, of providing to the community at large a sense that justice has been done, is particularly relevant in the prosecution of Moussaoui."

Following the ruling, Brinkema pressured the government for a decision about whether it would comply with her ruling, setting a July 14 deadline for notification. Attorney General John Ashcroft notified Brinkema on the day of the deadline – immediately after the Fourth Circuit announced that it would not review the decision en banc – that the government would not comply with her ruling, according the Minneapolis Star Tribune. Ashcroft cited national security concerns.

According to the Star Tribune, Brinkema may be compelled to dismiss the charges against Moussaoui.  That decision, if upheld on appeal, would force the government to declare Moussaoui an enemy combatant and try him in a secret military tribunal. Among Brinkema's other options, the Star Tribune reported, are eliminating the possibility of the death penalty for Moussaoui; eliminating any mention by the prosecution of Binalshibh, who was mentioned in the government's indictment of Moussaoui; or informing the jury that the government refused to produce a requested witness. As the Bulletin went to press, Brinkema had not announced which course she would take.

—Doug Peters
Silha Fellow

OIC v. Favish (Docket no. 02-954), is a Freedom of Information Act lawsuit stemming from the efforts of Allan Favish, a private citizen who practices law in Los Angeles, to gain access to the death scene photographs of Vincent Foster, the White House deputy counsel to former President Clinton who was allegedly a victim of a suicide. A full story about the case appears on page 24 of this issue of the Silha Bulletin.

In response to a request for public input from the Department of Homeland Security, the Silha Center filed comments in June on the proposed rules governing the handling of critical infrastructure information, citing several flaws in the rules, such as unclear definitions and for restricts on information sharing between federal, state, and local government agencies.  The Comments were drafted by Kirtley and Corbett. A complete story about the proposed rules appears on page 39 of this issue of the Silha Bulletin.

On April 30, Kirtley, with the assistance of Silha Fellow Elaine Hargrove-Simon, filed comments on the Draft Recommendation on the Right to Reply in the On-Line Media for the Council of Europe. If adopted into law, individuals or corporations with Web sites could be compelled to post statements from those who disagree with the content of their site. In June, the Draft Recommendation was revised under the new caption, Draft Recommendation on the Right of Reply in the New Media Environment, which contained very few changes from the original. On September 14, the Silha Center responded with a summary reiterating its initial concerns.

In late August the Silha Center also joined more than two dozen media organizations in an amicus brief in McKevitt v. Pallasch, a case before the U.S. Court of Appeals (7th Cir.) concerning the scope of the federal qualified privilege protecting journalists' sources. This and other documents are posted on the Silha Center's Resource page at www.silha.umn.edu.

—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor

The evening’s opening speaker was Stephen Ward, acting director and associate professor of journalism ethics at the University of British Columbia’s Graduate School of Journalism. Ward is author of The Invention of Journalism Ethics: The Path to Objectivity and Beyond, which won the 2005-06 Harold Innis Prize from the Canadian Federation for the Humanities and Social Sciences for the best English-language scholarly book in the social sciences.

Local journalists on the panel were Thom Fladung, editor of the St. Paul Pioneer Press, Kristin Henning, associate publisher of Rake magazine and adjunct professor of journalism at the University of Minnesota, and Matt Thompson, deputy on-line editor at the (Minneapolis) Star Tribune. Kerri Miller, host of MPR’s Midmorning show, moderated.

Miller started the discussion by citing a promotional flier for the event, which she found to have been altered by an MPR staff member. The word “objectivity” had been crossed out and replaced by “fairness” on the flier. Miller asked Ward about the substitution of words, asking “are they interchangeable?”

Ward responded that this example “makes my point.” Ward argued in his book that many journalists have grown uncomfortable with the traditional concept of objectivity, finding it “too strong” and “impossible to live up to,” choosing instead to opt for terms like “accuracy” and “fairness.”

Fladung said that “a dictionary definition of objectivity is a myth for journalists,” and that he was more interested in journalists who were “skilled” and had “insatiable curiosity.”

With objectivity as a fulcrum for discussion, the panelists and members of audience of about 100 addressed some of the broader implications of Miller’s question: what values should journalists aspire to if not to objectivity, how should those values be achieved, and how does the public know whether they are being achieved?

Discussion often returned to problems presented as journalism seems to evolve away from straight news to the many forms of analysis and discussion consumers can find in newspapers, on television news programs and online.

Gary Gilson, a local broadcast and print reporter and former executive director of the Minnesota News Council, and Eric Black, a reporter for the Star Tribune and blogger, both said they believe that blogs have allowed reporters to tell “what they really know,” outside the restraints of objective news reporting.

Ward said that this move away from traditional objectivity has probably provided “richer” news coverage that includes more personal anecdotes and “back story,” but journalists and newsrooms need to consider all the ethical implications of that kind of reporting.

Other audience members, including Lynda McDonnell, who runs ThreeSixty, a youth journalism program at the University of St. Thomas and Justice Paul H. Anderson of the Minnesota Supreme Court, pointed out increasing problems with how the media are perceived by readers and consumers.

McDonnell cited the recent scandal involving Judith Miller, who “didn’t do her job as a journalist” in not verifying national security information she was given. Anderson pointed out Yale Law Professor Stephen Carter’s notion of an “insufficiency of honesty.” Anderson said readers might find some reporting to be objective but also lacking integrity.

Ward said he agreed, adding that consumers are often cynical because of a perceived lack of integrity in the media, for example when stories are overlooked because they are not “sexy enough” or when journalists “don’t own up to their mistakes.”

Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, said that she often hears complaints from news consumers who want “just the facts.”

Kirtley said that contemporary journalism has allowed a “cult of personality” to develop, where “it’s who’s telling you what they’re telling you that’s important.” The result, said Kirtley, is that the public who wants only factual news reporting feels alienated from the media.

Along with about 45 minutes of discussion, the forum featured a screening of EPIC 2015, an eight-minute Internet film co-produced by Matt Thompson that imagines a future in which The New York Times has been reduced to a newsletter for the elite and the media scene is dominated by technology-enabled content tailored to the interests and biases of individual consumers and then dispatched to them via the Internet.

Sponsors for the event included the Minnesota Professional Chapter of the Society of Professional Journalists, the Silha Center for the Study of Media Ethics and Law, the Minnesota Journalism Center, the Associated Press, the Minnesota News Council, the Minnesota Newspaper Association, the Northwest Broadcast News Association and the journalism school at the University of St. Thomas.

The forum was broadcast on MPR’s Midmorning show on February 28, and can be downloaded at http://minnesota.publicradio.org/display/web/2007/02/28/midmorning1/.

– Patrick File
Silha Research Assistant

As the Bulletin went to press, the ISP had not yet filed an answer to Gallucci’s complaint, but the case was being closely watched by free speech advocates around the nation and in New Jersey. The New Jersey Law Journal described the lawsuit as a “test case of a landmark ruling that [could] set standards for piercing Internet anonymity” across the nation.

The case may play a key role in the development of New Jersey law as well. In 2001, the state’s appellate court established procedures that ISPs should follow when third parties attempt to discover the identities of anonymous posters. Dendrite International Inc. v. Doe, 42 N.J. Super. 134 (App. Div. 2001). In Dendrite, a Morristown, N.J. company attempted to subpoena Yahoo!, Inc. to discover the identity of an anonymous poster that had used the company’s online bulletin board to post comments that the company believed to be defamatory. The trial court refused to issue the subpoena without further proof that the statements were defamatory or that the company was actually harmed.

The state appellate court in Dendrite found that, upon receiving a request for an anonymous user’s personal information, the ISP should inform the user of the request. Moreover, the court found, a third party must actually show proof of a valid cause of action before an Internet company can be compelled to reveal a user’s identity. The value of anonymous speech on the Internet, according to the Dendrite court, merited “higher standards” of protection.

The lawsuit filed by Gallucci in February is expected to address the issue of whether an ISP can be held liable for failing to follow the procedures established by Dendrite in 2001. “[T]he Gallucci case may be the first time an ISP—and a news organization, at that—has actually been in the dock,” New Jersey Lawyer reported on Feb. 26, 2007. “While Dendrite established the process plaintiffs must use to force an ISP to disclose a person’s identity, this case may show whether the courts will force an ISP to protect that identity until ordered to give it up.”

The lawsuit stems from comments that were posted to online message boards accessible through NJ.com’s Web site. At the time, the Web site featured news and events related to communities in New Jersey and offered community members an opportunity to voice their opinions anonymously on the site’s message boards.

According to the complaint, in the weeks before Dec. 15, 2005, a NJ.com message board devoted to Teaneck contained “numerous anonymous postings that were critical of both the Teaneck fire department and [firefighter William J.] Brennan.” Earlier in the year, the Fire Department had left the scene of an emergency call hours before the house erupted in flame. Although it was ultimately discovered that the circumstances leading to the call were attributable to a malfunctioning boiler, whereas the fire was caused by an overloaded circuit breaker, the fire department received heavy criticism for failing to prevent the fire.

Brennan, a former Teaneck firefighter, was also the subject of criticism for his frequent involvement in litigation against the township. By mid-December 2005, Brennan was involved in ten lawsuits against Teaneck and individual members of the Teaneck Council. According to the New Jersey Law Journal, Brennan has been locked in civil rights litigation against the township, receiving a $1 million verdict in one of the ten cases Brennan filed over the last decade. The verdict was later reduced to approximately $382,000. Brennan v. Norton, 350 F.3d 399 (3rd Cir. 2003).

From Dec. 16, 2005 to Dec. 21, 2005, Gallucci anonymously posted comments to NJ.com’s Web site using the moniker “AntiBrennan.” According to the complaint, the comments posted by Gallucci were “extremely critical” of Brennan, describing the firefighter as a “litigation terrorist,” “Billy the Baby,” a “pathetic psychopath,” and a “paranoid –delusional-over-paid-under-worked-sicko.” Several of Gallucci’s comments were directed at the Teaneck Fire Department as well.

Brennan then subpoenaed NJ.com, seeking the identity of “AntiBrennan” and other anonymous posters using the message boards hosted by NJ.com. According to the New Jersey Law Journal, Brennan’s attorney, Jonathan Nirenberg, filed the subpoena on Brennan’s behalf in order to discover if the identities of “AntiBrennan” or other online posters would support the firefighter’s claims in a pending lawsuit against Teaneck, its town council, and individual council members.

According to the same report, Nirenberg said NJ.com responded quickly to the subpoena, providing Brennan’s counsel with a list of e-mail addresses associated with monikers used by anonymous posters on the message boards. Brennan was provided with a list of e-mails associated with the pseudonyms but met resistance from NJ.com when he attempted to learn the identity of the individual using the e-mail addresses given to Brennan. Gallucci, however, was readily identifiable because the e-mail address associated with the online identity included his name.

Gallucci, who first discovered that his name had been disclosed after Brennan posted a message on the NJ.com Web site identifying Gallucci as “AntiBrennan,” apologized for his role in the online exchange later that day. Despite posting his apology, Teaneck Mayor Jacqueline Kates publicly requested Gallucci’s resignation. After weeks of pressure from the public and town officials, Gallucci resigned on Jan. 23.

Once unmasked, Gallucci states in the complaint, he was publicly humiliated and scorned. “[U]nable to conduct his day-to-day business or maintain social ties in Teaneck without being subject to harassment and ridicule,” Gallucci later moved from the town, selling his home at a loss, and allegedly suffered from anxiety and insomnia.

As a result, Gallucci is seeking damages against NJ.com for emotional distress, economic loss and “reputational harm,” claiming that the ISP failed to follow procedures established in Dendrite to protect his identity.

According to the complaint, NJ.com acted recklessly, failing to notify Gallucci that the company had been subpoenaed. As a result, Gallucci claims, he was denied an opportunity to challenge the subpoena and Brennan was able to obtain his identity without having to show proof of an actionable cause.

Moreover, Gallucci claims, NJ.com had an obligation under its “User Agreement” to disclose a customer’s confidential identifying information “only when it was in his [or her] best interest, unless it followed the procedures set forth in New Jersey law.”

– Christopher Gorman
Silha Research Assistant

Although Kirchner denied accusations that he had shared his password with reporters from the (Lancaster) Intelligencer Journal, Attorney General Tom Corbett charged Kirchner with distributing his username and password to at least five reporters after what the Lancaster New Era described in a Feb. 5, 2007 article as a “lengthy statewide investigative grand jury” was convened.

The grand jury investigated the matter after an online information-sharing system between county officials, police and the coroner was apparently breached in 2005, when articles in the Intelligencer Journal published information only available on the Web site. Investigators later gained access to the newspaper’s computers after Pennsylvania’s highest court upheld a February 2006 subpoena against the newspaper’s First Amendment challenges. Despite the newspaper’s need to protect its sources, the Pennsylvania Supreme Court wrote, investigators could seize the computer hard drives of named reporters and search them for relevant information. (See “Pennsylvania Supreme Court Rules Paper Does Not Have to Turn Over its Hard Drives” in the Fall 2006 issue of the Silha Bulletin and “Pennsylvania’s Intelligence Journal’s Hard Drives Seized” in the Summer 2006 issue.)

“Contrary to the assertions of Lancaster Newspapers in repeated legal challenges that the grand jury was seeking newspaper source information, it is clear that the evidence sought was solely forensic in nature,” Corbett said, reading from a prepared statement at a press conference in Lancaster on Feb. 5, 2007.

After the newspaper’s legal attempts to protect their computers failed, the grand jury investigation revealed that the newspaper’s computers had been used to gain access to the secure section of the county Web site using Kirchner’s password and username 57 times, and had also been used to attempt to gain access to the Web site 33 times after the county terminated Kirchner’s access to it.

Evidence obtained from the newspaper’s computers supported the grand jury testimony of five reporters who were subpoenaed to testify. Although all five reporters initially refused to answer the subpoena, asserting their Fifth Amendment rights against self-incrimination, the reporters later testified after being granted immunity from prosecution for crimes discussed in their testimony.

According to an article published by the Lancaster New Era on Feb. 5, 2007, a grand jury report released by the Attorney General’s office considered the testimony of reporter Brett Lovelace as less than credible because of inconsistencies between his sworn testimony and other evidence. The testimony of the remaining reporters, according to a Feb 6, 2007 article published in the New Era, indicated that Kirchner may have provided the reporters access to his username and password in 2004 so that reporters could “check the Web site instead of calling him.”

According to the New Era, Kirchner said that, “It could be a fluke, it could be anything. But I have no recollection of doing that in 2004, and it wouldn’t have happened in 2005.”

An attorney for Lancaster Newspapers Inc., George C. Werner, told reporters from the New Era that the charges brought against Kirchner confirmed the company’s stance that its employees had done nothing wrong. “Throughout this process, we have never believed there was any criminal conduct on the part of Lancaster Newspapers or any of the [Intelligencer Journal] reporters,” Werner said.

An editorial that appeared on the front page of the Intelligencer Journal on Feb. 6, 2007 stated that Kirchner “freely provided his password to the coroner’s section of the 911 Web site” to a staff member at the Intelligencer Journal. “He clearly was aware several staff members then accessed the site over a period of many months,” the newspaper said.

An article published by the New Era on the same day reported that Kirchner sent e-mails to colleagues, friends and the media, accusing the Intelligencer Journal reporters of violating “all journalistic ethics” in agreeing to testify against him.

The newspaper refuted such claims in its editorial. “There was no agreement of confidentiality with Kirchner in this matter and, indeed, the [Intelligencer Journal] had no knowledge whether Kirchner had provided the password to other news media,” the newspaper said. It denied any wrongdoing by the reporters, despite a grand jury finding that staff members violated the security of the Web site to gain a tactical advantage over competing newspapers.

– Christopher Gorman
Silha Research Assistant

Walker and her family were thrust into the national spotlight when media organizations from around the country reported on the 2003 abduction and murder of Sjodin by convicted sex offender Alfonso Rodriguez Jr. Since her daughter’s death, she has worked with other parents of missing, abducted or murdered children to pass federal laws directed at sex offenders, leading to the creation of the Dru Sjodin National Sex Offender Public Registry Website, a national, searchable online directory of convicted sex offenders.

Walker spoke to the audience of 60 about her experiences as the mother of an abducted child and the role the media played throughout the investigation into her daughter’s abduction and the prosecution of Sjodin’s killer. “When the media came into our lives, we were like most Americans,” Walker said. What followed was a “surrealistic experience,” a time when Walker felt the overwhelming glare of the camera.

“We finally realized that we had the ability to take our time and form the message we were trying to get across,” she said, adding later that “victims are in such a numb state” after a tragedy occurs that it is hard for them to respond to the overwhelming attention from the press. Too often, families, communities and the media fail to focus on the victims, Walker said.

She was joined by panelists Amy Forliti of the Associated Press, Molly Miron of The Bemidji Pioneer, and Sue Turner of WCCO-TV in Minneapolis. Nancy Sabin, executive director of the Jacob Wetterling Foundation, a national organization that works with the families of children who have disappeared or who have been sexually exploited, also took part.

Silha Director and Professor of Media Ethics and Law at the University of Minnesota Jane Kirtley moderated the discussion about the media’s role in reporting on tragedy. Kirtley reflected on the unfortunate timeliness of the event in light of the shooting at Virginia Tech that killed 32 people in Blacksburg, Va. on April 16, 2007. (See “Media Coverage of Virginia Tech Shootings Sparks Controversy and Scrutiny” on page 1 of this issue of the Silha Bulletin for more information on media coverage of the shootings.)

“Sadly,” Kirtley said, events like the Virginia Tech shootings are “part of our daily lives, our daily fare, and something that journalists deal with on a daily basis.”

The journalists, who have all had first-hand experience in reporting on high profile events such as the Red Lake school shooting in Red Lake, Minn., Hurricane Katrina and the 2003 nightclub fire in Rhode Island that killed more than 100 people, discussed the role and responsibilities of the media in covering tragic events.

As a reporter for The Bemidji Pioneer, Miron shared her experiences reporting on the close-knit communities of northern Minnesota. While covering the 2005 shooting at Red Lake High School and the disappearance of Tristan Anthony White and Avery Lee Stately in November 2006, Miron attended funerals and wakes alongside community members whom she had come to know personally. At times, she said, her relationships with victims, their families and sources required her to walk a fine line.

In the wake of the Red Lake High School shooting, for example, Miron made a difficult decision to publish the picture of two students consoling one another shortly after the incident. After the picture was published, tribal chairman Buck Jordain contacted the journalist and expressed his anger at her decision to publish the photograph. “I never want to see my people in grief,” Jordain told Miron. Although she depended on Jordain as a source, publishing was the “right decision,” she said.

Turner characterized conflicts such as Miron’s as inevitable in covering tragedies. Journalists have an obligation to report the story as well as to protect the community, she said, and defended the media coverage that follows many tragedies. Although it may have been difficult for victims or community members, she said, the aggressive role of the press in the hours after the Virginia Tech shooting brought awareness to issues that deserve coverage. Although she challenged MSNBC’s decision to repeatedly air footage sent to the media organization by shooter Seung Hui Cho, she said that coverage facilitated a national debate about gun safety, emergency response and other important issues to surface.

Others on the panel questioned whether the media’s role in Blacksburg, Va. helped to spur a national debate or simply sensationalized a senseless tragedy.

“He got exactly what he set out to do,” Sabin said, speaking of MSNBC’s decision to air Cho’s video-taped recordings. “There is a different story to tell: 32 amazing people lost their lives.”

Media organizations, Sabin said, are quick to focus on the perpetrator without considering the consequences of doing so. Some tragedies, especially those that involve minorities and the poor, are ignored altogether, Sabin contended.

Forliti emphasized that her primary responsibility “is to the public. But it is important to balance that with how what I report might affect the victims.” She added, “Nobody likes to make the call to a parent who lost a son in a car accident,” Forliti said. But reporters who do, she continued, serve the public by reporting the story in a way that helps put these tragedies in perspective.

Journalists should always consider what the victims are going through, Sabin added. “Do the families a favor by avoiding using the word closure,” she said. “They never have any.”

“A good [phrase] that you could use rather than ‘closure’ would be ‘[putting] this chapter behind [them],’” Walker said.

Silha Center activities are supported by a generous endowment from the late Otto Silha and his wife, Helen.

– Christopher Gorman
Silha Research Assistant

Par Ridder is the son of former Knight Ridder CEO Tony Ridder. Knight Ridder owned the Press from 1927 until 2006 when the McClatchy Company purchased it. Ridder began working as president and publisher of the Press in March 2004. He took over as CEO and publisher of the Tribune on March 5, and noted the irony of doing so in an article in the Tribune in which he stated, “Since 1927 my family has been trying to chase the Star Tribune out of St. Paul.”

After the initial surprise at Ridder’s decision to switch alliances wore off, the Press filed its suit seeking to enjoin Ridder and two other former employees of the Press from working for the Tribune for one year. The Press is also seeking an order prohibiting the Tribune from using any computer data taken by Ridder and those employees. The data allegedly taken included the Press’ budgets, profit and loss data, lists of advertisers, lists of the revenue derived from those advertisers, advertising rates, and reports on expenses for different departments. The complaint describes Ridder’s actions as “both devastating and irreparable.”

The Press claims that Ridder was subject to a non-compete agreement prohibiting him from competing with the Press or soliciting its employees after voluntary termination of his service to the Press. The suit further claims that Ridder stole the file containing his and others’ non-compete agreements. In an affidavit filed with the court, Ridder claims he was no longer subject to that agreement because a Knight Ridder executive gave Ridder permission to remove the non-compete agreement from the files of Press executives in the fall of 2005. An affidavit filed by Ridder’s former secretary, Barb Cartalucca, says she held the agreements at her desk for about a year before Ridder took them home with him on March 1. The Press counters that the purported release is ineffective and the agreements are still in effect.

The suit also alleges that Ridder had planned to leave the Press for the Tribune since September. The Press claims that Ridder prepared a speech on his company-supplied laptop announcing his acceptance of a position at the Tribune, and encrypted the document. The timing of Ridder’s decision is important because he had continuous access to the Press’ proprietary information from September until his eventual resignation in March. Also during this time, Ridder was involved with the Press’ plans for expanding readership in the suburban Twin Cities area, activities done in direct competition with the Tribune.

Further allegations in the Press’ complaint describe Ridder’s actions after he began working for the Tribune, specifically that he brought his laptop full of confidential information to the Tribune and began copying files to his new computer. A computer expert hired by the Press examined Ridder’s laptop and determined that almost all of its data were transferred to an external hard drive. The Press asked Ridder for that hard drive, but he claims it is lost. In addition to copying the information, the Press complains that Ridder has shared the information with executives at the Tribune. The complaint lists Ridder’s actions involving his use of the Press’ information in great detail, providing the dates and times Ridder allegedly distributed the Press’ confidential information.

Jane Kirtley, director of the Silha Center and Silha Professor of Media Ethics and Law at the University of Minnesota, commented on the Press’ claims in a Pioneer Press article stating that if the Press’ allegations are proven true, “a case could be made that this is very damaging.”

The parties have already had one day in court, with Ramsey County District Judge David Higgs temporarily enjoining one former Press employee from working for the Tribune, and ordering the Tribune to turn over many of its computers to the Press. The temporary restraining order requested by the Press is intended to avert the harms the Press anticipates being most damaging. Higgs ruled that Jennifer Parratt was subject to a confidentiality and non-compete agreement with the Press, and that the Press would suffer irreparable harm if she were to continue working for the Tribune. Higgs further found that the non-compete agreement appears valid and enforceable, so the Press would be likely to succeed on the merits of its claim against Parratt. Higgs ordered the Tribune to turn over to the Press’ computer forensic expert Ridder’s external hard drive, his three Tribune computers, and other computers where the Press’ information is located. Higgs had previously prohibited both papers from destroying any information relevant to the lawsuit. Higgs concluded by ordering expedited discovery for both parties. The full text of his order is available online at http://extras.twincities.com/pdfs/strib_decision.pdf.

The Press quoted Tribune spokesman Ben Taylor after Higgs’ order stating, “We understand the judge’s decision to preserve the status quo until all the evidence can be gathered and heard, and we will fully comply with the order.” Taylor continued, “We’re anxious to get a full hearing on the merits and look forward to presenting our case as soon as possible.”

A temporary injunction hearing is scheduled for June 18, by which time substantial discovery will have already taken place.

– Scott Schraut
Silha Research Assistant

Eichenwald’s original article was a 6500-word piece about Berry and his involvement with child pornography. It explained how Berry set up a webcam at age 13 to meet friends, but quickly began fulfilling the wishes of various Internet users by removing clothes or performing sexual acts in exchange for money or gifts. It discussed how he began meeting his admirers in real life, eventually getting molested and beaten, and later becoming addicted to different drugs. It suggested Berry’s father physically abused him, and accused the father of assisting Berry with his burgeoning Web site. It concluded with a discussion about Eichenwald’s contact with Berry, and how Berry began assisting the government in tracking down online pedophiles. After the article’s publication, Berry and Eichenwald appeared on “The Today Show,” “The Oprah Winfrey Show,” and at a congressional hearing.

When it originally published the article, The Times ran a sidebar next to it penned by Eichenwald explaining the sequence of events that led to his meeting with Berry. In the sidebar, Eichenwald said he did not follow the standard practice of telling Berry up front that he was a reporter. Instead, Eichenwald and Berry chatted online about Eichenwald’s hobbies, and Eichenwald eventually convinced Berry to meet him in real life in Los Angeles. It was at this meeting that Eichenwald disclosed he worked for The Times. A few days later, Berry called Eichenwald and was upset about a visit from a man Eichenwald believed molested Berry. After this call, editors for The Times flew Berry to Dallas to be interviewed by Eichenwald, and after these interviews Eichenwald examined Berry’s computer hard drives in California as a means of verifying his stories. The sidebar also described how Eichenwald connected Berry with an attorney and Berry’s work with the government as an informant.

Absent from Eichenwald’s sidebar is any mention of the $2000 he gave to Berry. In a letter posted on the Romenesko blog at the Poynter Institute’s Web site, Eichenwald explained that he sent Berry the check in June 2005 as a way of gathering more information about an individual Eichenwald knew only through online conversations. He further explained that he should have told his editors but the money “just slipped away amid the 18 hour days, seven days a week of turmoil and chaos.” He emphasized that “the money was not provided for information, and was not provided to be a source” and that there was “no financial relationship between us of any kind during my reporting.” Berry eventually repaid Eichenwald with borrowed money from his grandmother. The full text of Eichenwald’s letter is available online at http://poynter.org/forum/view_post.asp?id=12365.

The transaction first became public in March 2007 during the trial of a man accused of criminal sexual misconduct in Michigan. The Times subsequently published a note in the corrections section of the paper, and added that same note to the online version of Eichenwald’s sidebar. Included in the correction is a statement from The Times saying “[t]he check should have been disclosed to editors and readers, like the other actions on the youth’s behalf that Mr. Eichenwald, who left The Times last fall, described in his article and essay.”

Eichenwald left The Times in October 2006 to begin working for Portfolio magazine, a business magazine set to begin publication in April 2007. Eichenwald claims that his departure from The Times is unrelated to the controversy over his Berry story, according to another letter posted on Romenesko’s site, in which he states that working for Portfolio is “the most thrilling opportunity I could imagine -- the chance to conduct long-form journalism in a magazine that had the full backing of Conde Nast….”

The Times’ public editor Byron Calame wrote an article in response to the controversy surrounding the transaction’s disclosure. Calame acknowledged that mistakes were made but stressed that no facts within the story require correction, that the article has led to the prosecution of at least three men, and that Eichenwald received a 2006 Payne Award for Ethics in Journalism from the University of Oregon’s School of Journalism and Communications. Calame’s article also defended The Times’ editors.

Since news of his check emerged, Eichenwald has participated in numerous media interviews. In an interview with Jon Friedman of Marketwatch.com, Eichenwald further explained his failure to disclose this information to his editors. He stated, “There’s nothing that happened out of any malice. I was presented with circumstances beyond anything I had ever encountered. I was overwhelmed.” He also noted his regret for failing to disclose the check earlier stating, “I don’t think it’s an ethical

failing . . . it was failure . . . it was procedural. I should have informed my editors.”

Eichenwald has said that he intends to file a libel lawsuit against Debbie Nathan, a freelance journalist and board member of the National Center for Reason and Justice, a non-profit group that works to educate the public about the continuing problem of people falsely charged with abusing children. Eichenwald claims that Nathan defamed him on two separate occasions, once in an article on Salon.com about Eichenwald’s research of child pornography sites, and again in a New York magazine article about Eichenwald’s check to Berry. Eichenwald claims the piece in New York magazine accuses him of “bidding” on Berry. The Salon.com piece has been removed from the Web site and its archives. Eichenwald told the New York Post he will not be suing either Salon.com or New York magazine and is instead suing only Nathan.

He told the Post, “I’m fine with being criticized for what happened.” He continued, “What I’m not fine about is being criticized for what people want to fantasize, make up or snicker about.”

– Scott Schraut
Silha Research Assistant

Thanks to the Internet, what began as an internal discussion over conflicts of interest quickly spun into a public debate, played out online and in real time, about the separation of news and editorial sections and the quality of the Times’ leadership, leading to what The New York Times described as a “circular firing squad.”

The catalyst for Martinez’s resignation was L.A. Times publisher David Hiller’s decision to kill the March 25 edition of the Sunday opinion section, called “Current,” which was guest-edited by Hollywood producer Brian Grazer. At issue was Martinez’s romantic relationship with Kelly Mullen, a publicist who works for Grazer. Citing concerns that Martinez’s relationship with the publicist may appear to have influenced the choice of Grazer as guest editor, Hiller decided to kill the section four days before it was set to run.

According to The New York Times, when Martinez learned of Hiller’s decision March 22, he resigned, making an announcement on the L.A. Times’ Opinion L.A. blog. In the announcement, Martinez said, “I accept responsibility for creating this appearance problem, though I also maintain that the newspaper is overreacting.”

According to Martinez, the guest editor project began in May 2006 as an attempt to inject fresh perspectives into the L.A. Times’ opinion section. The names suggested included Jimmy Buffett, Steve Jobs and Donald Rumsfeld.

Martinez contacted Mullen’s boss, Alan Mayer of public relations firm 42West, to inquire whether Steven Spielberg would be interested in participating. Spielberg could not do the project, but Mayer suggested Grazer, and the editors agreed that he would be the first of a quarterly series of guest editors. Martinez, posting March 21 on the Opinion L.A. blog, said that at the time of the decision to make Grazer guest editor, he had no contact with Mullen.

According to The New York Times’ David Carr, Hiller was made aware of Martinez’s relationship with Mullen and the possible conflict of interest a few days before the section was to run. In fact, the L.A. Times was preparing a story on the relationship. Hiller still supported publishing Grazer’s “Current” section, which would include articles about fashion, psychotherapy and the paparazzi, along with a note disclosing the editor’s relationship.

On the morning of March 22, however, Hiller had apparently changed his mind.

“We believe that this relationship did not influence the selection of [Grazer] as guest editor,” Hiller said in a statement. “Nonetheless, in order to avoid even the appearance of conflict, we felt the best course of action was not to publish the section.”

In the resignation announcement on the Opinion L.A. blog, later e-mails to media blog LA Observed, and comments to The New York Times and The New York Observer, Martinez called Hiller’s reaction a “pathetic cave,” and blamed the decision on internal pressure from the newsroom.

“What changed between Wednesday morning and Wednesday evening was a couple of blog posts,” he said. “It was a weapon that the newsroom used to ratchet up the pressure on Hiller. It was fascinating in its transparency, but it was also very disruptive.”

Martinez also said in a post on LA Observed that the leadership at the L.A. Times, including former editor John Carroll, current editor James O’Shea, and Hiller, all demonstrated a casual attitude toward news coverage influencing the editorial sections, “behavior that would be deemed wildly inappropriate at newspapers like the Wall Street Journal or New York Times.”

“I accept my share of the responsibility for placing the Times in this predicament, but I will not be lectured on ethics by some ostensibly objective news reporters and editors who lobby for editorials to be written on certain subjects, or who have suggested that our editorial page coordinate more closely with the newsroom’s agenda,” Martinez said in his resignation announcement.

O’Shea later fired back in an e-mail sent to L.A. Times staff and LA Observed.

“It is true that we have journalists in the newsroom who don’t agree with [Martinez’s] views on the ethical problems that led to his resignation. I count myself among them,” said O’Shea. “But these are legitimate, genuine differences of opinion held by people with a passion for the news and this newspaper. To suggest otherwise is pitiful.”

O’Shea also defended news editors who had alerted editorial board members about stories the newsroom was covering, saying they “did nothing wrong.”

One of the reporters Martinez named as active in raising the specter of a conflict of interest and challenging the separation of news and editorial content was Tim Rutten, who writes a media column for the L.A. Times called “Regarding Media.”

In his March 24 column, Rutten responded. “I’ve never exchanged a word with Andrés Martinez nor even met him. Similarly, I don’t think I know a single editorial writer, nor could I name one. That seems fairly ‘separate’ to me.”

“Martinez’s difficulties were entirely volitional and had nothing whatsoever to do with the Times’ structural problems -- real or imagined,” said Rutten.

A number of journalists and media critics responded to the L.A. Times’ debacle. Most pointed out the extraordinary fact that it played out so publicly in the blogosphere; others suggested broader problems in the L.A. Times’ management.

According to The New York Times, the scandal over a special section was evocative to many of a previous controversy.

In 1999, the L.A. Times was criticized for a special Sunday magazine section on the new Staples Center arena. Unbeknownst to most readers and many of the newspaper’s staff, advertising revenue from the special section was shared with the Staples Center.

Both Rutten and Martinez suggested that editors and staff had worried that this more recent conflict of interest concern might remind L.A. Times readers of the Staples Center controversy.

Meanwhile, Nikki Finke, a columnist for L.A. Weekly, reported in her Deadline Hollywood blog on March 25 that Martinez might not be the only L.A. Times staff member with a conflict of interest in the “Current” guest editor series.

Former U.S. Secretary of Defense Donald Rumsfeld had been named by both Martinez and in an L.A. Times article as a likely candidate for being next in line to edit the section after Grazer.

According to Finke, Hiller has had a longstanding personal relationship with Rumsfeld, citing a 2001 Chicago Tribune article about then-Tribune Interactive Editor Hiller and then-Tribune Co. Board Member Rumsfeld, in which Hiller talked glowingly about playing squash with Rumsfeld.

Then in November 2006, as Rumsfeld resigned as U.S. Secretary of Defense, Finke said Hiller “used the occasion … to personally pen a worshipful Op-Ed piece for [the] L.A. Times rehashing those late 1990s squash games in Chicago.”

On March 26, Hiller announced the L.A. Times would abandon the guest editor program, saying in a statement, “although the [g]uest [e]ditor program for the Current section was an innovative concept to bring more voices and diversity to Times’ readers, we have concluded we will not be moving forward with the program.”

Travis Armstrong, editorial page editor of the Santa Barbara News-Press, said that amid the dust-up in Los Angeles, Martinez raised a fundamental newspaper ethics question.

Armstrong called the interjection of newsroom agendas into the editorial pages a “common problem in American newspapers,” and said former editors and reporters at his newspaper protested attempts by the publisher to limit bias and nepotism.

“Why are local papers and the newspaper industry in general afraid to address this head-on and make changes?” asked Armstrong.

(Links to Martinez and others’ comments can be found on the L.A. Times Opinion L.A. blog “scandal roundup” at http://opinion.latimes.com/opinionla/2007/03/scandal_roundup.html, and at the L.A. Observed blog, at http://www.laobserved.com/archive/2007/03/email_from_andres_martine.php)

– Patrick File
Silha Research Assistant

Many news organizations, including the Associated Press (AP) and Newsweek, attributed the public upheaval to the Internet’s ability to fan a “digital brush fire.” In particular, they cite Ryan Chiachiere, a Washington, D.C. researcher for the liberal nonprofit watchdog group Media Matters for America.

In the early morning of Wednesday, April 4, 2007, Chiachiere watched the MSNBC simulcast of “Imus in the Morning.” At about 6 a.m., Imus, producer Bernie McGuirk and a call-in guest made remarks including racial and sexual slurs about the Rutgers University women’s basketball team. Chiachiere clipped the segment, posted it to YouTube, and wrote a blog post for the Media Matters Web site, www.mediamatters.org, which appeared later that day.

On April 6, the National Association of Black Journalists (NABJ) condemned Imus’ remarks and called for his removal, as did the Reverend Al Sharpton. Rutgers President Richard L. McCormick and National Collegiate Athletic Association (NCAA) President Myles Brand, in a joint statement, called the comments “unconscionable.” That morning Imus apologized on his show.

By Monday, April 9, it was clear that the apologies issued by Imus, CBS (whose affiliates broadcast his radio show) and MSNBC (which simulcast the program on its cable television network), were not quieting the controversy.

Imus appeared on Sharpton’s radio show that morning. The interview, which was also televised, included more apologies, but also an awkward moment as Imus referred to Sharpton and African American Congresswoman Carolyn Cheeks Kilpatrick as “you people.”

Later that day, Imus was suspended for two weeks by CBS and MSNBC.

On Wednesday, however, MSNBC cancelled the show altogether. CBS followed suit on Thursday.

According to The Washington Post, although the controversy caught mainstream attention thanks to a blog posting, it was pressure from inside and outside the organizations of CBS and MSNBC that led executives from disassociation to suspension and finally dismissal.

CBS President and CEO Leslie Moonves said “meetings with concerned groups” from “all segments of society” weighed heavily in the decision to fire Imus.

The Washington Post and AP said NBC News President Steve Capus and MSNBC General Manager Dan Abrams held a two-hour meeting on April 11 at the network headquarters at Rockefeller Plaza in New York with two dozen black NBC employees.

NBC Today show weatherman Al Roker and News Correspondent Ron Allen had called for Imus to be fired in separate blog posts on the network’s website.

The decision by major advertisers to pull advertising also played a role in the eventual firing of Imus, according to the Los Angeles Times. Procter & Gamble, Staples, Inc., General Motors, and Sprint Nextel were among those companies that withdrew.

According to Fortune.com, Imus is planning to sue CBS for $40 million, the balance left on his contract, because he did not receive a warning before he was fired. Fortune.com reported that according to an anonymous source, language in Imus’ contract stipulated that he could not be fired without first receiving a warning.

Coverage of the fallout focused on introspection by well-known journalists associated with Imus and his edgy show.

Newsweek reporter Evan Thomas, in an interview for Newsweek, said he rationalized his regular appearances on “Imus in the Morning” by “pointing to other prominent journalists and politicians who did it, too. I was eager to sell books, and I liked being in the in crowd.”

Howard Kurtz, a Washington Post reporter and another frequent Imus guest, told Newsweek that he considered Imus’ antics, which at least once included calling Kurtz a “boner-nosed, beanie-wearing Jew boy,” part of the game. Kurtz also credits Imus with turning one of his books into a best seller.

NBC chief White House correspondent David Gregory, another Imus regular, said in Newsweek, “He was living in two worlds. There was the risqué, sexually offensive, sometimes racially offensive, satire, and then there was this political salon about politics and books. Some of us tuned in to one part and tuned out the other. Whether I was numb to the humor that offended people or in denial, I don’t know.”

Prior to the announcement of Imus’ firing, Ana Marie Cox, a former political blogger under the pseudonym “Wonkette” and now Washington Editor for “Time.com” announced in a column on that Web site that she would not return as a guest on “Imus in the Morning.”

“I’m embarrassed to admit that it took Imus’ saying something so devastatingly crass to make me realize that there just was no reason beyond ego to play along,” said Cox. “I did the show almost solely to earn my media-elite merit badge.”

In an April 10 New York Times Op-Ed, Gwen Ifill, a prominent black reporter and senior correspondent for PBS’ “The NewsHour With Jim Lehrer,” recalled Imus referring to her as “the cleaning lady” in her role as The Times’ White House correspondent in the early 1990s.

“Why do my journalistic colleagues appear on Mr. Imus’s program? That’s for them to defend, and others to argue about. I certainly don’t know any black journalists who will,” Ifill said.

On Sunday, April 15, Ifill appeared on NBC’s “Meet the Press,” and moderator Tim Russert asked her to comment on the Times Op-Ed. Ifill said that she was troubled that prominent journalists who had been frequent Imus guests, including Russert and fellow guest Times columnist David Brooks, had failed to speak out against the offensive remarks.

“There has been radio silence from a lot of people who have done this program who could have spoken up and said, ‘I find this offensive’ or ‘I didn’t know.’ These people didn’t speak up. Tim, we didn’t hear from you. David, we didn’t hear from you,” Ifill said. “A lot of people did know and a lot of people were listening and they just decided it was okay.”

– Patrick File
Silha Research Assistant

According to The New York Times, journalism graduate students at Columbia University contacted Forman in early February 2007, asking about the story and his admission that parts of it were fabricated. This prompted Forman to contact his former editor at Slate, admit the entire story was fabricated, and apologize.

Jack Shafer was then-deputy editor for Slate online magazine and is now the editor at large and media critic. On February 6, Shafer said in his Slate “Press Box” column that Forman had called and later sent him a note to confess that the story was “a complete lie.”

“In a note to me, Forman apologized for betraying Slate’s trust and for taking so long to come clean,” said Shafer. “I, in turn, apologize to Slate readers for publishing the story.”

The original story, which appeared on June 8, 2001, in Slate’s “Vice” section, recounted a 1996 boating excursion Forman took with a journalist friend to Lois Key, where, until 1999, rhesus monkeys were kept by a pharmaceutical company to be sold for medical research.

The story explained that a fisherman had taken the two reporters to the island to demonstrate the local practice of “monkeyfishing:” baiting hooked fishing lines with fruit, casting them into trees from the boat and pulling the monkeys down into the water before releasing them.

Skeptical Slate readers responded with postings to message boards, as well as other Web sites like TransparencyNow.com and Inside.com. On The Wall Street Journal’s OpinionJournal Web site, Editor James Taranto called the story “preposterous” and chided Slate’s editors for falling victim to “an obvious hoax.”

An article published on June 25, 2001 in The New York Times challenged key details of the story, and said that the hooking of monkeys and pulling them from trees never took place. Times reporter Alex Kuczynski quoted Fraser’s friend from the trip, Marc Caputo, a reporter for the Palm Beach Post, who said that although lines were baited and cast, no monkeys were actually hooked.

Kuczynski also spoke with the local fisherman who, speaking on condition of anonymity, said he remembered taking the reporters on the trip but described the trip to Lois Key as “a crazy one-time drunken thing,” not the local tradition Forman had described.

Slate editor Michael Kinsley wrote the same day as The Times article was published that, while the fishing trip had taken place, Kuczynski’s article “establishes beyond all reasonable challenge” that key details of the story were false.

That was where the scandal had been left until Forman broke his long silence in February, telling Shafer and the Columbia University graduate students that there had been no boating trip at all.

Asked about any lessons he learned from the episode, Shafer told The Times, “any publication can be duped by a writer who is prepared to lie in a suicidal fashion and commit career suicide.”

The original Forman story and the related editorial notes, discussion and links can be found at http://www.slate.com/ by conducting a search for the term “monkeyfishing.”

– Patrick File, Silha Research Assistant

The paper immediately published a retraction of the altered photograph and included copies of both the altered and unaltered versions for readers to compare. It noted, “The Blade’s policy is to never alter photographs, and the newspaper regrets the incident and apologizes to readers.”

The issue became national news, and the newspaper announced an investigation into Detrich’s previous work. The same day, Detrich wrote on his blog that the publication of the altered photo was an “accident.” He claimed he had been following the story of the Bluffton University baseball players for three weeks, ever since five of their players had died in a bus crash, and that he had an “emotional bond” with the story. Detrich wrote that he had created the altered version because he wanted to hang a blown-up version of the photo in his office.

“While transmitting on deadline, I sent the wrong photo, plain and simple,” Detrich wrote. “I made a huge mistake, and I have expressed my regrets to my editors at the Blade. It is something that will never happen again.”

He also wrote, “My friends know me and my ethics, and they have no doubt this was nothing more than a stupid mistake. I have been in the business since I was 17-years-old and learned by experience. I am not about to give up this hard work for an altered photograph.”

The next day, however, Detrich resigned, and a week later The Blade announced the results of its investigation in a column written by Vice President and Executive Editor Ron Royhab. Royhab apologized to readers and wrote, “It is impossible to make sense of why this happened, and we are embarrassed by it.”

The alterations ranged from removing utility poles and electrical wires and outlets from photos to adding a basketball and hockey puck to two sports photos, though neither of the sports photos was published.

Detrich joined The Blade in 1989 and had won many newspaper photography awards over the years. He was a Pulitzer finalist in 1998. Royhab said the paper had no reason to suspect Detrich was digitally altering photographs, but noted, “Journalism, whether by using words or pictures, must be an accurate representation of the truth.”

The baseball photograph had also been published in The Cincinnati Enquirer and The Atlanta Journal-Constitution, and it was not known how many of Detrich’s altered photos had been published elsewhere. Many had been available to the Associated Press (AP) wire service, though following the discovery of the alterations, both the AP and The Blade removed all of Detrich’s photos from their Web sites and services.

The incident was reminiscent of other recent photo alteration scandals. Last summer, bloggers discovered that Reuters photographer Adnan Hajj had used Photoshop to alter at least two photographs. Reuters immediately cut ties with Hajj. (See “Bloggers Uncover Altered Reuters Photos” in the Fall 2006 issue of the Silha Bulletin.) And in 2003, award-winning photographer Brian Walski was fired from the Los Angeles Times after the paper discovered he submitted a composite photo created from two separate pictures he had taken in Iraq. (See Los Angeles Times Photographer Loses Job over Manipulated Photo” in the Spring 2003 Silha Bulletin.)

– Ashley Ewald, Silha Fellow and Bulletin Editor

Allegations that Borges had lifted material from an article first published on Feb. 26, 2007 in The News Tribune, a Tacoma, Wash., daily, were first raised by the Web site www.coldhardfootballfacts.com. The Web site, which has criticized Borges’ journalistic credibility in the past, posted passages from Borges’ March 4 article and Mike Sando’s earlier article for The News Tribune and called on editors at the Globe to look into the matter.

After an investigation, the Globe discovered that Borges included material written by Sando in his weekly column featuring news and notes on the National Football League (NFL). Several passages of Borges’ column -- a commentary on the potential trade of Seattle Seahawks wide receiver Darrell Jackson to the New England Patriots -- were taken directly from Sando’s article. A comparison of the two articles can be found online at http://www1.poynter.org/column.asp?id=45&aid=119393.

On March 6, the Associated Press (AP) reported that Borges used the material, without attribution, after it was posted on an online notes exchange frequented by sportswriters. According to Globe sports editor Joe Sullivan, the notes exchange is subscribed to by NFL reporters who share information and statistics with one another in advance of Sunday “notebook” columns that are published by many newspapers during the football season. But, Sullivan said, the exchanges are typically used by reporters to find background materials, not to directly copy the work of other reporters.

Passages from Sando’s article were posted to the online notes exchange and accessible to subscribers. According to an article written on March 6, 2007 by Globe reporter Michael Paulson, Borges was not aware that the material had previously been published and copied Sando’s article largely verbatim.

Although Borges acknowledged in his column that “material from personal interviews, wire services, other beat writers, and league and team sources” were used in the report, Globe editor Martin Baron viewed Borges’ failure to properly attribute the material as plagiarism and suspended the reporter on March 5. News of the suspension appeared on the newspaper’s Web site, www.boston.com, later that day.

“The Globe does not tolerate plagiarism,” Baron said in the statement appearing on the newspaper’s Web site. “Extensive passages written by the Tacoma reporter were used verbatim in the column by Borges, and that is prohibited.”

Following the announcement, allegations arose that Borges may have plagiarized passages of a January 28 column from a column written by Alex Marvez of the South Florida Sun-Sentinel on January 21. The Globe dismissed the accusation, stating that the two articles were “substantially different.” In an e-mail to The Boston Herald reporter Jessica Heslam, Globe spokesman Alfred Larkin stated that the newspaper “believe[s] that the brief similarities between the two columns, much of which is comprised of quotes, is covered by the disclaimer that runs at the bottom of the notes column.”

Kelly McBride, an ethics group leader at the Poynter Institute, disagreed. “It’s another case of plagiarism because if you look at that passage in question, more than 75 percent of it is identical,” McBride told Heslam.

Although Borges declined to comment on the suspension when asked by AP reporters and has not responded to further allegations of plagiarism, the Boston Newspaper Guild’s president, Dan Totten, told reporters that the union would stand by Borges.

“Ron Borges is a talented veteran of The Boston Globe sports pages whose work is of the highest caliber. Ron’s work is widely appreciated and respected within the sports journalism world. The Boston Newspaper Guild stands with Ron and we will defend him and see that justice prevails,” Totten said.

Totten later told the Boston Phoenix, an alternative newsweekly, that the suspension “seems far in excess [of] anything that’s been levied in similar cases.” However, Totten gave no indication that Borges would be challenging the suspension.

According to the Phoenix, that may be because Totten is “overstating” Borges’ case, noting that Globe columnists Mike Barnicle and Jeff Jacoby were suspended after plagiarizing material in 1998 and 2000.

Unlike earlier cases, Borges’ suspension has prompted some media analysts and commentators to question the practice of notes exchanges among reporters. “At the heart of Ron Borges’ two month suspension from [The] Boston Globe for plagiarism is the shadowy world of the “notes exchange,” sports media blogger Dan Shanoff wrote on March 6 in response to the suspension.

“And shame on the reporters who can’t do their own research – and, perhaps even more, on the failure of leadership by sports editors whose inconsistent application of attribution in columns like these (and, more generally, whose lenient standards towards these ‘notes exchanges’) have allowed this system to reach its inevitable spot at the bottom of what has always been a slippery slope,” Shanoff concluded.

According to an article that appeared in the Phoenix on March 8, Sullivan told reporter Adam Reilly that, although it may not be prohibited, the use of notes-sharing systems at the Globe is being reassessed.

“We’re going to be discussing the whole idea of that, and we’re in the process,” Sullivan said. In light of Borges’ plagiarizing, Sullivan said, editors at the Globe are having “second thoughts about the way [they] do things.”

– Christopher Gorman, Silha Research Assistant

Couric discussed children’s fading interest in libraries in the Internet age in the April 4, 2007 segment, posted in the “Couric & Co.” section of the CBS News Web site and sent to CBS radio and television affiliates. “I still remember when I got my first library card,” began Couric in the minute-long commentary.

According to the Associated Press, an editor from The Wall Street Journal contacted CBS News about similarities between the April 4 “Notebook” segment and a Journal column by Jeffrey Zaslow from March 15, 2007.

Much of the segment’s script mimicked the Zaslow article. Both said of children, “The library is more removed from their lives. It’s a last-ditch place to go if they need to find something out.” Couric’s commentary said, “Sure, children still like libraries, but books aren’t the draw.” In March Zaslow wrote, “Sure, there are still library-loving children, but books aren’t necessarily the draw.”

Couric also cited the same statistics as Zaslow, and repeated some of the same quotes from the Zaslow article.

CBS News removed the video from the Web site and posted a correction on April 9. It described the April 4 “Notebook” segment as “based on” the Zaslow piece. “We should have acknowledged that at the top of our piece,” the note said. “We offer our sincere apologies for the omission.”

CBS News spokeswoman Sandy Genelius told The Washington Post that the producer who wrote the segment was fired, but declined to provide that person’s name.

On April 12, The New York Sun’s David Blum reported that sources at CBS News said the fired producer was Melissa McNamara, a CBS News Web producer and blogger. McNamara’s biographical information on the CBS News Web site says she has degrees from Wesleyan University and Columbia and writing credits from The New York Times, Oxygen.com and CNN.com.

According to The New York Times, CBS News announced that it was reviewing other commentaries the producer had written for Couric, as well as applying another level of editorial oversight to its Web site’s content.

Genelius told The Washington Post that Couric and others at CBS News were “horrified” to learn the April 4 piece had been copied. Genelius said that although Couric participates in weekly topic selection meetings for the “Notebook” segments, it is “very common” for the first-person commentaries to be written by producers.

Critics challenged CBS News’ response to the incident as well as the format for the commentaries.

Blum wrote in The New York Sun that for CBS News to call the response posted on the web site a correction was dishonest.

“Why wasn’t the network straight with its Web site readers in describing what happened? It should have admitted the deception rather than pretend -- by calling it a correction -- that it was a mistake,” said Blum.

Timothy Noah, in an article published by online magazine Slate’s “Chatterbox” section, said, “CBS News wronged visitors to its Web site by inviting them to think that the opinions Couric expressed in these commentaries were her own.”

Noah said that although news anchors have had commentaries written for them for many years, among them Dan Rather and Walter Cronkite, “the deception was a little more conspicuous in this instance” because the commentary began with Couric remembering her own experience getting a library card.

“That sentence was not lifted from the Zaslow column, but it’s actually more fake than anything else in the commentary because it purports to be a personal recollection,” Noah wrote.

This is not the first time Couric and CBS News have made headlines. In July 2006 Couric was criticized for a six-city “listening tour” of closed, invitation-only meetings. (See “Closed Meetings Precede Katie Couric’s Ascent to Anchor of CBS ‘Evening News’” in the Summer 2006 issue of the Silha Bulletin.)

– Patrick File, Silha research Assistant

The two newspapers involved, the (Kansas City) Pitch and The Kansas City Star, had each published articles on March 2, 2007, on their Web sites covering a confidential memo they had obtained through the mail from an anonymous source. The memo, written by attorney Stanley A. Reigel in 2004, was addressed to the BPU and contained a liability analysis of 73 repair and upgrade projects the Board had undertaken at its three power plants since 1980. Reigel determined that in light of Environmental Protection Agency (EPA) clean air standards, 41 of the projects were “probably defensible,” 15 were “questionable” and 15 were “probably not defensible.” He concluded that “the presence of a single ‘Questionable’ or ‘Probably Not Defensible’ project puts BPU at risk” of an enforcement action by the EPA or the state, or a complaint by a concerned citizens’ group, and could result in having to retrofit equipment or payment of penalties.

After learning that the newspapers obtained copies of the memo, BPU notified each on March 2 of their intent to bring a temporary restraining order against them preventing publication. The alternative weekly Pitch quickly published its first story about the memo that afternoon, before the judge had ruled, and The Star soon followed with its own story. By that evening, Jackson County Circuit Court Judge Kelly Moorhouse had ordered the stories be taken down and barred the papers from distributing the memo, saying the BPU would be “irreparably harmed” if the articles remained available to the public and that “monetary damages which might result from a publication of such information would be difficult or impossible to measure in money.” Kansas City Board of Public Utilities v. The Kansas City Star and The Pitch Newspaper, No. 0716CV04986 (Mo. Dist. Ct. 2007).

By Monday, March 5, attorneys for the two newspapers had filed an appeal arguing that “the order violated the most fundamental principle of constitutional law -- the prohibition against prior restraints against publication in any but the most extraordinary situations.” Among other precedent, they cited New York Times v. United States, 403 U.S. 713 (1971), also known as the “Pentagon Papers” case, Near v. Minnesota, 283 U.S. 697 (1931), and Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), three U.S. Supreme Court cases that held prior restraint on the press to be unconstitutional. In Nebraska Press Association, the Court said prior restraint is “the most serious and the least tolerable infringement on First Amendment rights.”

Reacting to the restraining order, Kansas City Press Club Vice President Jack “Miles” Ventimiglia told The Star, “How Moorhouse can look at the milestone Pentagon Papers case, then rule for prior restraint, is mind-boggling.”

Star attorney Sam Colville was quoted by the paper stating, “Every moment The Star is restrained constitutes further damage to the constitutional rights of each of us.”

The newspapers also argued to the Court of Appeals that “[t]he Circuit Court’s prior restraint and mandatory removal order was based on a total misunderstanding of constitutional law . . . .The order did not even serve its stated purpose because one cannot reconfidentialize information that has already been disclosed beyond the core group.”

Indeed, during the time period that the newspapers were censored, at least one blog, “BradBlog.com,” made both articles available online.

The newspapers further argued that the duty to maintain confidentiality rests with the owner of information and that “[w]here that information has been revealed to the news media, and its confidentiality lost, the prior restraint doctrine prohibits courts from reaching into newsrooms [and] taking back the information that has already lost its confidentiality and prohibiting journalists from publishing newsworthy articles.”

But BPU countered that “[t]he issue in this case is so important that one of the very essential instruments for the administration of justice is at stake; the ability of a client to communicate with her lawyer without fear of disclosure.” It said that the newspapers had “already damaged BPU by their short-term publication about the memorandum. BPU wants to stop any more harm or damage.”

Breckenridge and concurring Judge Paul Spinden sided with the newspapers and ordered Moorhouse to set aside her order. The newspapers then quickly republished their stories.

– Ashley Ewald, Silha Fellow and Bulletin Editor

Henry was photographing a line of about 600 people waiting outside the West Palm Beach, Fla. main election office, a designated early voting site, on Oct. 31, 2004 when a sheriff’s deputy grabbed for his camera, according to the newspaper. Henry then ran about 100 feet and fell, when, according to witnesses, he was tackled and handcuffed.

Sheriff’s officials told the Post that the deputy was enforcing the new rule from then-Elections Supervisor Theresa LePore that banned journalists from interviewing voters or photographing them from closer than 50 feet away.

Henry has told the newspaper that he was about 125 feet from the voter line when he took the two photographs leading to his arrest.

According to the Post, an arrest document said Henry took “unauthorized photos” that were “of a compromising matter of these elections.”

The disorderly conduct charge was dismissed on Feb. 5, 2007, and Henry waived his right to sue and agreed to serve 15 hours of community service as a condition of the state attorney dropping the two remaining charges, according to the Post.

Criminal defense attorney Richard Lubin had represented Henry for free, arguing that the unlawful solicitation of voters charge was unconstitutional under the First Amendment because Henry was standing in public taking photographs.

Lubin told the Post that he thought banning photography in a public place did little to advance the rule’s goal of protecting voters from harassment at voting precincts, especially when powerful telephoto lenses can capture images from great distances.

Henry told the newspaper, “I would have liked to have seen an outcome more supportive of the First Amendment as I understand it, but I’m delighted the case has been resolved.”

According to the Post, Henry was at the voting office doing research for a book on the state of U.S. elections.

Henry, according to a Web site he edits called Submerging Markets (found at http://www.submergingmarkets.com), is an investigative journalist, economist, and lawyer whose work has appeared in publications including The Nation, The New York Times, The Wall Street Journal, Newsweek, El Financiero, and Slate. He has written several books on international economy and banking.

– Patrick File, Silha Research Assistant

Henry was photographing a line of about 600 people waiting outside the West Palm Beach, Fla. main election office, a designated early voting site, on Oct. 31, 2004 when a sheriff’s deputy grabbed for his camera, according to the newspaper. Henry then ran about 100 feet and fell, when, according to witnesses, he was tackled and handcuffed.

Sheriff’s officials told the Post that the deputy was enforcing the new rule from then-Elections Supervisor Theresa LePore that banned journalists from interviewing voters or photographing them from closer than 50 feet away.

Henry has told the newspaper that he was about 125 feet from the voter line when he took the two photographs leading to his arrest.

According to the Post, an arrest document said Henry took “unauthorized photos” that were “of a compromising matter of these elections.”

The disorderly conduct charge was dismissed on Feb. 5, 2007, and Henry waived his right to sue and agreed to serve 15 hours of community service as a condition of the state attorney dropping the two remaining charges, according to the Post.

Criminal defense attorney Richard Lubin had represented Henry for free, arguing that the unlawful solicitation of voters charge was unconstitutional under the First Amendment because Henry was standing in public taking photographs.

Lubin told the Post that he thought banning photography in a public place did little to advance the rule’s goal of protecting voters from harassment at voting precincts, especially when powerful telephoto lenses can capture images from great distances.

Henry told the newspaper, “I would have liked to have seen an outcome more supportive of the First Amendment as I understand it, but I’m delighted the case has been resolved.”

According to the Post, Henry was at the voting office doing research for a book on the state of U.S. elections.

Henry, according to a Web site he edits called Submerging Markets (found at http://www.submergingmarkets.com), is an investigative journalist, economist, and lawyer whose work has appeared in publications including The Nation, The New York Times, The Wall Street Journal, Newsweek, El Financiero, and Slate. He has written several books on international economy and banking.

– Patrick File, Silha Research Assistant

The ruling came after The (North Andover, Mass.) Eagle-Tribune sought access to a show-cause hearing involving the corporate owner of a nightclub that served alcohol to a minor who was later stabbed and killed. The case attracted a significant amount of publicity, and the clerk-magistrate ordered that the hearing be closed.

The newspaper’s publisher, The Eagle-Tribune Publishing Company, filed a motion to open the hearing, which the magistrate denied. The magistrate later denied the Company’s motion for reconsideration. The Company then sought relief from a single justice of the state’s Supreme Judicial Court, which was opposed by the state’s Attorney General and later denied, and which it appealed to the full Court before being denied once again.

The show-cause hearing at issue is a mechanism in Massachusetts for prosecutors to seek criminal process against a person who is not under arrest. It provides the accused with “an opportunity to be heard personally or by counsel in opposition to the issuance of any process.” Mass. General Laws c. 218, § 35A. The hearing is held before a clerk-magistrate and is used to determine whether there is probable cause to issue criminal process against the accused.

The Supreme Judicial Court, which is Massachusetts’ highest court, limited its opinion to whether a First Amendment qualified right of access to the proceeding exists. It noted that the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II ) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I ) had ruled that a qualified right did exist to certain judicial proceedings that satisfied a two-part test of “experience” and “logic.”

According to Press Enterprise II, the type of proceeding must have (1) a historic tradition of openness, and (2) public access must “play . . . a significant positive role in the functioning of the particular process in question.” If both requirements are met, the proceeding may only be closed if it “is essential to preserve higher values and is narrowly tailored to serve that interest.”

The Massachusetts court found that the show-cause hearings fail the experience requirement because there was no history of public access to them. The Eagle-Tribune Company had argued that show-cause hearings were analogous to other preliminary criminal hearings allowed access by the Press Enterprise cases, but the Supreme Judicial Court ruled that the hearings are different because the hearings at issue in the Press Enterprise cases happen after a defendant has been charged with a crime and bear a much closer resemblance to a trial than the show-cause hearings.

The court also determined that the show-cause hearings fail to meet the logic test because it found that the hearings would not be aided by public access and would in fact be harmed. According to the court, a show-cause hearing “allows the clerk-magistrate to screen out baseless complaints with minimal harm to the accused’s reputation; this purpose would be frustrated by public access to the hearings. Furthermore, the ability of clerk-magistrates to resolve commonplace disputes without the need for criminal prosecution could be compromised by hearings open to the public, which may inflame the animosities involved.”

The court did observe that in some cases, public access may be appropriate, especially because “[w]here an incident has already attracted public attention prior to a show-cause hearing, the interest in shielding the participants from publicity is necessarily diminished, while the public’s legitimate interest in access is correspondingly stronger.” It cautioned clerk-magistrates to consider “not only the potential drawbacks of public access, but its considerable benefits” as well.

It also noted that “[t]he transparency that open proceedings afford may be especially important if a well-publicized show-cause hearing results in a decision not to bring criminal charges, thereby ending the matter. In such cases, the public may question whether justice has been done behind the closed doors of the hearing room.”

However, it found that in this instance, the need for public access did not outweigh the need to protect the accused’s privacy and therefore ordered the previous denials be upheld.

Peter Caruso, an attorney who represented the newspaper, was quoted in a Reporters Committee for Freedom of the Press article stating, “This will allow people of influence and affluence to argue their differences behind closed doors, which will further erode the public’s confidence in [the] judicial system.” The article is available online at http://www.rcfp.org/news/2007/0329-sct-highco.html.

– Ashley Ewald, Silha Fellow and Bulletin Editor

On January 10, an ongoing conflict between Finkbeiner and WSPD resulted in an incident at one of the mayor’s news conferences when Milliken and seven other individuals from WSPD tried to force their way into the event. Schwartz tried to keep the members of WSPD out of the news conference by holding a door closed, but eventually relented when the door began to break. According to the Toledo Blade, the day before the incident at this news conference, Schwartz had prohibited Milliken from attending a different event at the University of Toledo on the grounds that he was not an “objective reporter.”

Schwartz eventually canceled the news conference after his interactions with WSPD, but invited reporters to meet individually with the mayor, an invitation not extended to Milliken. The Toledo Blade quoted Schwartz’s reason for cancelling the conference as “the boorishness and unprofessional behavior exhibited by WSPD.”

The incidents in January were the latest in a series of events involving Finkbeiner’s office and WSPD. Last summer the mayor’s office removed the station from its list of media entities provided e-mail notification of news conferences. According to The Toledo Blade, Finkbeiner and WSPD employees have also been openly critical of each other in the past, with the WSPD program director Brian Wilson calling the mayor “a bold-faced unequivocal liar,” and Finkbeiner calling Milliken “a stand-up comedian.”

In its complaint, WSPD alleges that it is prohibited from attending public news conferences that other outlets are permitted to cover. It also alleges that the mayor’s policy of prohibiting their reporters from attending the mayor’s news conferences “chills the speech of all members of the press who disagree with the Mayor or his administration’s actions, denies the public access to information to which it is entitled, and opens the door for these Defendants or any public official to retaliate against any member of the media whose viewpoint differs from that of the government.” The full complaint is available online at http://wspd.com/pages/images/cccomplaint.pdf.

WSPD also sought legal fees from the city, claiming it provided no legal justification for barring the station from the news conferences.

Carr’s January 16 temporary order required Finkbeiner to allow Milliken to attend the mayor’s news conferences, and ordered Finkbeiner to notify WSPD about upcoming news conferences. On January 31, Carr issued his permanent injunction stating that, “[a] press conference is a public event. And to pick and choose who can attend seems to me clearly to violate the First Amendment.” Carr further explained that “the purpose of a restraining order is to make clear to a public official that you disregard the First Amendment at your risk and peril. That’s the whole point.” The full court opinion is available online at http://www.wspd.com/cc-common/mlib/1258/02/1258_1172073209.DOC.

This incident is not the first time an Ohio mayor’s office has been accused of violating the First Amendment in his relationship with local reporters. In June 2006, the U.S. Court of Appeals for the Sixth Circuit decided a suit brought against Youngstown Mayor George M. McKelvey when he prohibited city employees from speaking to newspaper reporters. (See “Ohio Mayor’s Restrictions on Employees’ Speech Does Not Violate Media’s First Amendment Rights” in the Summer 2006 Issue of the Silha Bulletin.)

Despite the injunction, tensions between Finkbeiner’s office and WSPD remain high. At a forum on the First Amendment prompted by the mayor’s banishment of WSPD, Schwartz and Wilson reportedly engaged in a shouting match. The Toledo Blade reported that Schwartz questioned Wilson’s reasons for repeatedly asking Schwartz questions from the back row, while Wilson said that Schwartz was “doing that mistruth, half-truth, and outright lie thing your boss is so famous for.”

– Scott Schraut, Silha Research Assistant

In an April 16 hearing, Judge T.S. Ellis III said that the government’s proposed use of the so-called “Silent Witness Rule,” which would allow lawyers, the jury and judge to see classified evidence, but not journalists or the public, would be unconstitutional, violating the defendants’ Sixth Amendment right and the public’s Fifth Amendment right to an open trial.

Ellis also said the system of codes the government suggested to discuss classified evidence in open court would probably confuse jurors and “shackle” the defendants’ ability to cross-examine witnesses.

“It’s always true that justice must not only be done, it must be seen to be done,” said Judge Ellis.

Steven J. Rosen and Keith Weismann, two former lobbyists for the American-Israeli Public Affairs Committee (AIPAC), have been accused under the 1917 Espionage Act of conspiring to obtain national defense information and passing it along to journalists and Israeli officials.

In its motion proposing that the court use the “Silent Witness Rule,” the government relied on the Classified Information Procedures Act, which allows unclassified substitutions to be disseminated to the public in the place of classified evidence raised in a trial.

Prosecutors had also suggested that, in lieu of using classified names of people and places during testimony, lawyers and witnesses could use codes such as “Foreign Person X” or “Country A.” The code would change periodically so journalists and members of the public in the courtroom could not decipher its meaning.

The defense responded that the proposal would render the ability to cross-examine government witnesses meaningless, and would “send a continuous message to the jury that the information at issue is [national defense information] deserving of protection -- the very issue that the jury must itself decide.”

Ellis said in the April 16 hearing that although some precedent exists for limited use of the “Silent Witness Rule,” the government’s broad and “novel” proposal would effectively wall off the public from evidence that is “the heart of the case.” Ellis further pointed out that the proposal even treated some news reports and other information already in the public domain as classified.

Rosen and Weisman are the first two civilians to ever be prosecuted under the Espionage Act, according to the Associated Press. Their indictment alleges that the two conspired to obtain and share classified reports on American policy issues, including the al-Qaeda network, the deadly Air Force dormitory bombing in Saudi Arabia, and U.S. policy in Iran. The trial is scheduled to begin June 4, 2007.

According to the New York Sun’s Josh Gerstein, the case has raised concern among press advocates, who contend that “there is little functional difference between what the lobbyists allegedly did and what many journalists do on a daily basis.”

On April 19, Judge Ellis gave government prosecutors until early May to decide how they would like to proceed. According to The Washington Post, they may wish to propose a different procedure for the discussion of classified information in open court, or they may drop the charges against Rosen and Weisman rather than allow the classified information to be revealed.

– Patrick File, Silha Research Assistant

On March 7, 2007, the Associated Press (AP) reported that Pentagon spokesman Bryan Whitman provided few details about the hearings when making the announcement, declining to comment on which of the 14 individuals would appear first before the hearing officers or how long the process would take. According to the AP, details of the hearings will be made public when the government releases an edited transcript of the proceedings. Portions of the transcript determined to be damaging to national security, including the name of the detainee, would be withheld.

The 14 men who faced tribunals beginning in March were alleged to have ties with al-Qaeda, and among them was the suspected mastermind of Sept. 11, 2001 attacks, Khalid Sheikh Mohammed.

If an individual is determined to be an “enemy combatant” after a hearing at which they are represented by military officials rather than their own lawyers, he or she is eligible to stand trial before a military tribunal at the direction of President George W. Bush. Similar hearings to determine detainees’ eligibility for military trial were held between July 2004 and March 2005, but were open to reporters.

Although the Pentagon imposed some restrictions on reporters at that time, Whitman told the AP that the March 2007 hearings were closed because of national security interests that could be compromised by publication of the detainee’s testimony.

“Because of the nature of their capture, the fact that they are high-value detainees and based on the information that they possess and are likely to present in a combatant status review tribunal …we’re going to need an opportunity to redact things for security purposes before providing that in a public forum,” Whitman said.

The Pentagon previously expelled reporters from the Guantanamo Bay detention facilities in the interest of national security last summer. In June 2006, reporters from the Miami Herald and the Los Angeles Times were removed from the base after three detainees committed suicide at the facility.

These reporters were scheduled to report on similar hearings before they were cancelled as a result of the suicides. The Defense Department also said it wanted to launch a formal inquiry into whether its officers allowed Michael Gordon of The Charlotte Observer to report on classified information exchanged during a staff meeting which Gordon attended the morning of the suicide. (See “Reporters Forced to Leave Guantanamo Bay” in the Summer 2006 issue of the Silha Bulletin for more details.)

A New York-based human rights group that represents one of the detainees who appeared before the hearing officers in March accused the Pentagon of designing sham tribunals and denying him access to his lawyers in the months leading up to the hearing, “solely to prevent his torture and abuse from becoming public,” the AP reported.

– Christopher Gorman, Silha Research Assistant

The petition, filed March 12, 2007, was signed by the Minnesota Joint Media Committee (MJMC), the Minnesota Newspaper Association, Minnesota Broadcasters Association, and the Minnesota Chapter of the Society of Professional Journalists. The MJMC is a nonprofit corporation whose members include representatives of most of the state’s major media organizations organized to encourage exchange among Minnesota’s news media and seek improvement in law and policy. The petition seeks a change in the state’s Code of Judicial Conduct that currently prohibits audio and video coverage of trials unless the judge and all parties approve such coverage. It was filed with the Minnesota Supreme Court, which promulgates general rules of decorum and regulates the administration of justice for each of the state’s courts.

Minnesota’s Supreme Court last addressed this issue in 1989 in In Re Modification of Canon 3A(7) of the Minnesota Code of Judicial Conduct, 441 N.W.2d 452 (Minn. 1989), which involved a similar petition. At the time, a four-year experimental period permitting audio and visual coverage of trial proceedings with the consent of all parties had lapsed. The Court denied the MJMC’s request, holding that the petitioners had failed to demonstrate that expanded audio and video coverage of trials would improve the administration of justice. The Court justified its denial of the petition by citing an assortment of negative effects that could result from increased access to trial courts such as reluctance of individuals to testify, invasion of privacy of witnesses, and distraction caused by the audio and visual equipment. Justice Alexander Keith concurred, noting that he would have granted authority to the district judges alone to allow audio and visual coverage of some trial proceedings.

Current rules permit audio and visual recording equipment in the Minnesota Supreme Court, provided notice is given to the Court 24 hours in advance and the individuals recording do not impair the dignity of the Court or distract from its proceedings.

In its 2007 petition, the MJMC notes the inadequacy of the current policy. It states that the stringent requirements will “rarely be satisfied,” and observes that “Minnesota’s trial courts have remained overwhelmingly closed to audio and visual coverage.”

This latest petition would modify the Minnesota Canon of Judicial Conduct 3A(11) and Minnesota General Rule of Practice 4 to presumptively permit audio and video recordings of trial proceedings. The proposed changes are designed to minimize the intrusiveness of equipment and personnel by limiting their number, placement, and movement about the courtroom. The proposal also grants the trial judge the authority to ban audio and video coverage from civil or criminal trials, but only in cases where the proceedings would be adversely affected “because of technological factors unique to the electronic media.”

The petition addresses the concerns raised by the Supreme Court in 1989 by stating that experiences in other jurisdictions permitting coverage in courts have shown those concerns to be unfounded and “largely lacking in substance.” It also points out that technological advances in recording equipment means that it is “almost undetectable in the courtroom.”

The petition further identifies for the Court the experiences of the multitude of other jurisdictions that allow greater electronic access for the media to courts. The Radio-Television News Directors Association (RTNDA) classifies Minnesota as a “Tier III” state, among the 16 most restrictive. Neighboring states Wisconsin and North Dakota fall within “Tier I,” with both states vesting broad authority in the trial judge to make determinations about extended media access to courts. The petition includes an appendix containing the RTNDA’s summary of each state’s access laws.

The petition concludes by noting the petitioners’ willingness to address any concerns of the Court in whatever way it desires. The petition, letter to the court, and proposed changes are available online at http://www.mnspj.org/2007/03/07/cameras-in-the-courts.

The MJMC’s petition has the support of some media experts in Minnesota, including Jane Kirtley, director of the Silha Center and Silha Professor of Media Ethics and Law at the University of Minnesota. Kirtley noted on a KARE-11 (Television) Extra segment that “[t]he best way for the public to know what’s going on in our courts…is to see and hear what’s going on in the courts.”

Mark Anfinson, the attorney of record for the petitioners, believes increased audio and visual access to Minnesota courts is essential to fully learn about courtroom proceedings. When asked about the petition for this article, he said that “a lot about the court system, especially what judges do, is misunderstood and underappreciated by the public.” He believes cameras in the courtroom can help remedy this problem.

Minnesota’s Chief Justice Russell Anderson declined to comment on the petition for a March 10 Associated Press article. However, the article quotes others who were in favor of and opposed to the petition. Hennepin County Judge Jack Nordby stated, “I think it’s a bad idea in that it would have some effect on lawyers and witnesses and judges tending to perform.” But other judges, like Norman Yackel of Superior, Wis. (the judge who presided over the highly publicized murder trial of Chai Vang, the man convicted of killing six hunters and wounding two others in Wisconsin), described media organizations in his courtroom as “very, very accommodating” and not at all disruptive.

– Scott Schraut, Silha Research Assistant

The case arises from an article written by Drs. David Corwin and Ema Olafson in May 1997 about the supposed spontaneous return of previously unrecallable memories by the plaintiff Nicole Taus. Corwin’s and Olafson’s article was published in Child Maltreatment magazine, a scientific journal published by the American Professional Society on the Abuse of Children. Corwin and Olafson claimed Taus was unable to remember alleging that her mother abused her as a child in 1984 while being treated by Corwin, until those memories returned to her in 1995 during additional discussions with Corwin. The magazine also contained five shorter articles reviewing Corwin and Olafson’s article, all of which praised their work. None of the articles identified Taus by name, and all other names and places were changed except for Dr. Corwin’s.

Despite the praise for Corwin and Olafson’s work by the other writers in Child Maltreatment magazine, Dr. Elizabeth Loftus and Dr. Melvin Guyer conducted their own research to determine the validity of the article. Loftus’ and Guyer’s article was published in two parts in the summer of 2002 in Skeptical Inquirer magazine and disputed many of Corwin’s claims about Taus’ allegations and supposedly “recovered” memories. While researching their article, Loftus and Guyer interviewed Taus’ biological mother, foster mother, and stepmother. Their article did not disclose Taus’ identity, but did include information about her history not included in the Child Maltreatment articles.

On Feb. 13, 2003, Taus filed her initial complaint in the Superior Court of Salerno County, Calif. against Loftus, Guyer, another individual who wrote an article for Skeptical Inquirer about Loftus and Guyer named Carol Tavris, the Skeptical Inquirer, Loftus’ employer the University of Washington, and an investigation company Loftus and Guyer hired. Taus amended her complaint approximately one month later to add the publisher of Skeptical Inquirer magazine and an affiliate of that publisher. The amended complaint included causes of action for negligent infliction of emotional distress, invasion of privacy, fraud, and defamation.

The defendants asked the district court to strike the complaint pursuant to California’s anti-SLAPP statute, a law designed to protect expressive activities in connection with a public issue from frivolous lawsuits. The district court denied the motion to strike the causes of action for negligent infliction of emotional distress for all defendants; granted the motion to strike the fraud claim against Loftus but denied it for the University of Washington; and granted the motion to strike the defamation action against Tavris but not for Loftus. All defendants whose motions to strike were denied by the district court appealed to the state court of appeals, except for the University of Washington.

The state Court of Appeals entered its order on April 1, 2005 affirming in part and reversing in part in Taus v. Loftus, 2005 Cal. App. LEXIS 3048 (Cal. Ct. App. 2005). This court struck additional causes of action, leaving only claims for invasion of privacy for public disclosure of private facts, invasion of privacy for intrusion, and defamation for review by the state Supreme Court. The remaining defendants appealed asking that all the remaining counts be struck.

The state Supreme Court considered the defendants’ appeal and then ruled on the claims left intact by the appellate court in Taus v. Loftus, 151 P.3d 1185 (Cal. 2007). The public disclosure of private facts claim was based on two separate incidents: statements by Loftus at a 2002 professional seminar that Taus’ has engaged in allegedly destructive behavior that affected her ability to serve in the Navy, and Loftus’ disclosure of Taus’ initials in a deposition unrelated to the present lawsuit. The defamation claim arises from Loftus’ same statements from the 2002 seminar. The intrusion into private matters claim arises from two separate incidents as well: the defendants’ collection of information from court records, and Loftus’ alleged misrepresentations to Taus’ foster mother that Loftus was a colleague or supervisor of Dr. Corwin as a way of acquiring personal information about Taus.

Chief Justice Ronald George’s opinion for the Court initially explained the two part process when a defendant moves to strike pursuant to California anti-SLAPP law, Cal. Civ. Pr. Code § 425.16 (2006). A defendant must make a threshold showing that the challenged cause of action arises from protected expressive activity, and then the burden shifts back to the plaintiff to demonstrate a possibility of prevailing on the claim. The Court found the defendants’ activities to be protected activity related to a substantial controversy in the mental health field, making it a newsworthy and public issue. Therefore, the burden then shifted to the plaintiff to establish a probability of success on the claims.

The Court first considered Loftus’ statements at the 2002 seminar and held those statements did not constitute either a public disclosure of private facts or defamation. The Court expressed doubts that these disclosures were sensitive or intimate private facts offensive to a reasonable person, but found that irrelevant because the facts were nonetheless newsworthy, precluding a public disclosure action. It also ruled those statements could not give rise to a defamation action, as they were protected by Cal. Civ. Code § 47(c)(1) (2006), which grants a common-interest privilege to statements such as these, as they were made by a psychology professor at a conference of other mental health professionals that related to the conference.

The Court summarily dismissed the disclosure of private facts action related to disclosure of Taus’ initials at a deposition unrelated to this lawsuit because that deposition took place after Taus filed her complaint in this lawsuit, revealing her full name.

The Court also found that the private investigation company Loftus hired demonstrated that all the records were open to the public without any being confidential, and therefore could not be subject to an intrusion claim.

But the Court permitted one claim to go forward: an additional intrusion claim related to Loftus obtaining personal information from Taus’ former foster mother Maggie Cantrell. In a declaration filed as part of the record for this lawsuit, Cantrell claimed that Loftus told her that Loftus was working with Dr. Corwin as his supervisor, whom Cantrell knew had a prior relationship with Taus. Cantrell says she relied on this representation in disclosing extensive information about Taus. Loftus denies ever making any such representations.

The Court acknowledged that a person generally cannot maintain an action for intrusion against an individual who speaks to a relative or friend of the plaintiff that reveals personal information about that plaintiff, but permitted the lawsuit to proceed in this case because a person’s preservation of privacy could be substantially undermined if investigators could use any means to extract that information from the plaintiff’s friends and family. The Court believed a jury could find the plaintiff reasonably expected an investigator would not obtain access to personal information from a friend or relative by posing as a supervisor of a professional with whom the plaintiff had confided. The Court further noted the information obtained about Taus from Cantrell was deeply personal, relating to Taus’ drug use and sexual relationships.

The Court addressed an amicus brief filed by several media organizations concerned about implications the case may have on journalists and their relationship with sources. The brief urged the Court to strike this cause of action because a source unhappy with a reporter’s final article that involved the source may claim the reporter was not forthright with that source. The brief further explained that permitting causes of action for intrusion based on alleged misrepresentations by a journalist would have a chilling effect on the gathering and publication of news.

The Court conceded the the concerns of the amicus parties were reasonable, but found that some misrepresentations, such as those alleged in this case where a person feigns a relationship with an individual’s therapist, are so egregious and offensive that causes of action based on those misrepresentations should be allowed to proceed to a jury. It used an example of an investigator posing as an emergency room physician and contacting an individual’s family member to determine if that person has a certain medical condition as something a reasonable person could find highly offensive. The Court reasoned that cases involving such offensive misrepresentations will not have an impact on journalists because they are well beyond normal newsgathering techniques of shading or withholding information about one’s motives while speaking with a source.

Justice Carlos Moreno, joined by Justice Marvin Baxter, dissented in part, stating his belief that the Court should strike the intrusion action. In Moreno’s view, Taus had no reasonable expectation that Cantrell’s observations would remain private.

Attorneys for both the plaintiff and defendants reacted to the Court’s opinion. A February 2007 Associated Press article quoted both of them, with Taus’ attorney saying he will fight for the “vindication of [Taus’] right of privacy,” while Loftus’ attorney, Thomas Burke, said his client never misrepresented herself. Burke also stated his belief that the case will not have a broad impact on journalists, as he believes “the vast majority of working journalists don’t do the sort of things that Dr. Loftus is accused of.”

– Scott Schraut, Silha Research Assistant

The case arises from an incident in 2002 involving the resignation of Iowa State University’s associate athletic director Elaine Hieber. The Tribune published a column about Hieber’s resignation by its reporter Susan Harman that Stevens believed was too complimentary of Hieber. Stevens wrote a rebuttal column expressing this view. At the time, Stevens had been a freelance journalist who submitted columns to The Tribune for three years. The paper refused to publish Stevens’ original column because it considered the column’s tone too critical of its reporting of Hieber’s resignation. Stevens revised that column and read it on a local radio station. Stevens then chose to stop writing for The Tribune, and his “farewell” column was published alongside a response written by Harman.

Stevens brought his libel action in August 2002 in an Iowa District Court alleging three statements in Harman’s response column were defamatory. Harman’s column states that Stevens “rarely attended events upon which he wrote columns,” that his original column about Hieber’s resignation “contained numerous factual errors and unsubstantiated claims,” and that the revised column “continued to include fatal factual errors and near libelous characterizations.” The district court granted The Tribune’s motion for summary judgment after a hearing in March 2004. The appellate court affirmed in part and reversed in part in January 2006, granting summary judgment to dismiss the libel claims for the second and third statements, but ruling a trial was appropriate to determine whether the first statement was in fact defamatory. Stevens then appealed to the state Supreme Court.

The Court found that Stevens himself admitted he was a public figure, and therefore had the burden to show by clear and convincing evidence that the challenged statements were false and made with “actual malice.” Actual malice requires a showing that the defendant made the statements knowing they were false, or with reckless disregard for the truth.

The Court then observed that the three statements Stevens alleged were defamatory were all essentially true. Stevens did attend only about 18% of the games about which he wrote, and there were factual errors in his columns. However, the Court cited to an authoritative treatise, Prosser & Keeton on the Law of Torts §§ 116 and 117, which states that a cause of action arises when a series of facts are juxtaposed to imply a defamatory connection between them, or if omitted facts create a defamatory implication. This cause of action had not previously been recognized in Iowa, but the Court interpreted statements from prior state case law as sufficient to justify expanding state law to include defamation-by-implication. The Court said this was necessary because, “[o]therwise, by a careful choice of words in juxtaposition of statements in a publication, a potential defendant may make statements that are true yet just as damaging as if they were actually false.”

The Court also ruled that public figures and officials could bring a defamation-by-implication action. After weighing various authorities, the Court concluded it would be unfair to limit the cause of action only to private individuals. In making this conclusion, the Court cited a law review article that argued the contrary result would create a loophole that media defendants could exploit to defame high profile individuals by using facially neutral statements with a defamatory insinuation. The Court cited further authority from federal circuit opinions recognizing defamation-by-implication actions by public figures.

Finally, the Court applied the legal principles to facts of this case, affirming the Court of Appeals’ decision to permit the action to continue for the first statement. Stevens claims that Harman’s assertion about his lack of attendance implied that he fabricated his columns, and therefore was defamatory. The Court observed that Harman knew attendance at these games was unnecessary for Stevens to write his columns and found Harman’s failure to acknowledge this in her column could lead a reasonable juror to find an implied defamatory falsehood made with actual malice. The Court affirmed the Court of Appeal’s decision to uphold summary judgment for the other two statements and remanded the case for trial.

In an Associated Press article, The Tribune’s editor, Joseph Craig, said, “We’re pretty happy that the court ruled in our favor on two of the three counts and disappointed in the third.” He said they would have discussions with their attorney before taking any further action.

– Scott Schraut, Silha Research Assistant

The case centered upon University of Northern Colorado (UNC) student Thomas Mink’s Internet-based, student-run journal, The Howling Pig, and Mink’s parody columns in the journal about UNC Professor Junius Peake. In the fall of 2003, Mink began writing columns under the pseudonym “Junius Puke.” The columns featured a photograph of Peake with a Photoshopped Hitler-style mustache and dark sunglasses. In court filings, Mink said the purpose of the column was to “spoof[] and parod[y] Professor Peake by addressing subjects on which the real professor would be unlikely to write, or through the assertion of views diametrically opposed to those of Professor Peake.”

Upon learning of the columns, Peake contacted a local District Attorney and filed a complaint alleging that he was the victim of criminal libel. Colorado’s criminal libel statute makes it “criminal libel” to knowingly publish any statement tending to “impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.” Colo. Rev. Stat. § 18-13-105.

After receiving the complaint, the Greeley (Colo.) Police Department began an investigation, during which they sought a search warrant for Mink’s residence and property, including his computer. Deputy District Attorney Susan Knox read and approved the Police Department’s search warrant affidavit, and the warrant was later approved by a magistrate judge.

On Dec. 12, 2003, Mink’s home was searched and his computer and some of his writings were confiscated. He also claims police told him he was in “big trouble” and warned him that resuming publication of the Howling Pig would “only make things worse” for him.

Mink obtained counsel, and on Dec. 23, 2003, his lawyer was told a criminal libel charge would be filed against Mink. His counsel immediately sent the District Attorney a letter arguing the libel law could not be constitutionally applied against Mink and demanded return of Mink’s possessions. When the letter went unanswered, Mink filed suit in federal district court on Jan. 8, 2004, seeking a declaration that the law be declared unconstitutional. He also sought damages for the search and seizure and requested a temporary restraining order.

The next day, the district court ordered Mink’s possessions returned to him immediately. It later convened a conference with the District Attorney, who informed the court that the office had decided it could not constitutionally prosecute Mink under the libel statute and planned to close the file.

On Feb. 19, 2004, Mink filed an amended complaint, realleging that the Colorado criminal libel statute was unconstitutional and adding the Colorado Attorney General, the local District Attorney, and Deputy District Attorney Knox as defendants.

On Oct. 26, 2004, the District Court dismissed Mink’s suit in its entirety, finding that he lacked standing to challenge the constitutionality of the statute and that his claims against Knox were barred by the doctrine of absolute prosecutorial immunity.

Mink appealed to the Tenth Circuit, and numerous media advocates, including the Silha Center and the Student Press Law Center, among others, filed amicus briefs. The Silha Center and Student Press law Center’s joint brief urged the court to strike the criminal libel law as unconstitutional and inconsistent with the First Amendment, contending that civil defamation laws can adequately protect plaintiffs without causing as much harm to free speech.

“If this court does not find that a student arrested solely for his speech has standing to challenge the unconstitutionality of the underlying statute he supposedly violated, it will be giving a green light to police and prosecutors who use these statutes to intimidate speakers who are young and politically powerless but who have exercised their constitutional right to criticize government employees,” the Centers argued. “By the expedient of dropping a matter before a person is charged, prosecutors can perpetuate the use of criminal libel statutes as tools to harass and intimidate speakers into silence even when the statutes themselves are unconstitutional.” (The Centers’ brief in its entirety can be viewed at http://www.silha.umn.edu/resources.htm. For further information, see “Silha Center Joins Student Press Law Center in Amicus Brief” in the Winter 2005 issue of the Silha Bulletin).

The case was argued in January 2006. Thirteen months later, the Tenth Circuit declined to rule on the constitutionality of Mink’s claims, instead finding that because the District Attorney had decided not to prosecute Mink and had closed the file, Mink no longer had standing to sue.

Judge Timothy M. Tymkovich, writing for the three-judge panel of the court, wrote, “Without a live, concrete controversy, we lack jurisdiction to consider claims no matter how meritorious.” He continued, “Because we conclude Mink faces ‘no credible threat of prosecution’ under the criminal libel statute, he lacks standing to pursue his claims for prospective relief.” For the same reasons, he also found Mink’s claims to be moot and thus the court could not reach the merits of Mink’s constitutional claim.

The court also held that Mink’s damages claims under the Privacy Protection Act, 42 U.S.C. § 1983, against Knox failed because the Act makes it unlawful to search for or seize any work product materials made by a person with intent to disseminate the information to the public. It held that in this case, Knox only approved the search warrant; she did not herself do any searching or seizing.

The court did overturn the district court in one aspect of the case. It found that Mink’s damages claims against Knox based on her review of the search warrant could not be denied on the basis of prosecutorial immunity. The court ruled that prosecutors do receive absolute immunity when working in their role as advocates; however, they could not receive immunity in their role as administrators or investigative officers. Because the court found Knox was acting in the latter capacity when she approved the search warrant, the court remanded the case to the district court with instructions to consider Knox’s qualified immunity claims under their elaborated framework.

As the Bulletin went to press, there was no word on whether either party would appeal.

– Ashley Ewald, Silha Fellow and Bulletin Editor

Under existing standards, international legal disputes between citizens of member states are governed by the law of the country in which an individual incurs damages, not necessarily where the event giving rise to the litigation took place. Therefore, under current regulations, a car accident which causes personal injuries would require courts to apply the law of the victim’s country of citizenship, where a victim would presumably incur costs related to medical expenses, rather than the country where the accident took place.

The regulations were first proposed on July 22, 2003 by the European Commission of Ministers, the executive body of the European Union. The initiative, commonly referred to as the “Rome II” agreements, focused on the question of civil liability for transnational damages caused by citizens of the EU’s 27 member states. Although a Jan. 18, 2007 press release from the European Parliament reported that car accidents represent the majority of cross-border disputes, the European Commission’s initial proposal also governed legal claims arising from violations of privacy or defamation.

On June 27, 2005, the European Parliament issued the Draft European Parliament Legislative Resolution on the Commission’s earlier proposals in a report issued by Rapporteur Diana Wallis, a member of the European Parliament serving on the Committee on Legal Affairs. Included in its amendments to the Commission’s proposal, the report changed the proposed regulation’s treatment of legal disputes related to invasion of privacy and defamation.

After the Commission’s proposal was introduced in the European Parliament in July 2003, the parliamentary body of the European Union amended the Commission’s proposal to read:

“As regards the law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality, the law of the country in which the most significant element or elements of the loss or damage occur or are likely to occur shall be applicable, but a manifestly closer connection with a particular country may be deemed to exist.”

Under the proposed parliamentary regulations, a court would be required to consider whether a publication or broadcast is principally directed at a country other than the country in which the damage occurred or whether the language of a publication or broadcast is a language spoken by an audience in a given country. If a “manifestly closer connection exists” with another country and its laws conflict with the law of the country in which the elements of damage occurred, the law of the country to which the publication or broadcast is directed, rather than where the harm occurs, would apply.

Following public hearings on the matter, the Commission adopted a modified proposal in light of the parliamentary report on Feb. 21, 2006. The amended proposals did not include the changes to the specific rules governing privacy and rights related to the individual but instead excluded the application of Rome II from such disputes altogether.

“It is incredibly disappointing that the Commission has decided to withdraw the provision relating to defamation from Rome II,” Wallis wrote on her Web site in 2006. “It is inconceivable that we should regulate Private International Law at European level without including the media because this is an area which is so much cross border.”

A second reading of the Rome II regulations was presented to the European Parliament on Jan. 18, 2007, and Wallis insisted on reinserting the provisions on defamation and privacy. According to a Jan. 19, 2007 article published by the European Report, European Union Justice, Freedom and Security Commissioner Franco Frattini told deputies that the Council would never agree to such terms.

The European Report also reported that members of the media had contacted members of the European Parliament before the second reading and demanded that the Rome II regulation exclude any reference to violations of privacy or defamation.

“[I]t has been recognised by academics and lawyers than an absence of a rule in the Rome II Regulation does not seem to present difficulties for practitioners,” European Publishers Council (“EPC”) Executive Director Angela Mills Wade said, referring to a letter cosigned by the EPC, the European Newspaper Publishers Association, and the European Federation of Journalists. “Indeed, in practice, media and journalists are quite familiar with their national law, which provides legal certainty for their daily work.”

Despite the media’s pleas and concerns that the inclusion of the provisions would “open the floodgates for lawsuits” across the EU, the European Parliament voted on Jan. 18, 2007 to reinsert the clause.

Under European Union procedures, because the European Parliament’s second reading of the regulation’s text differs substantially from the revised position proposed by the Council of Ministers, a conciliation committee will be convened to forge an agreement.

– Christopher Gorman, Silha Research Assistant

The cartoons were part of Charlie Hebodo’s report on the controversy surrounding the cartoons published in the Danish newspaper Jyllands-Posten in late 2005. (See “Controversial Cartoons Lead to Worldwide Concern for Speech, Press Freedom, and Religious Values,” in the Winter 2006 issue of the Silha Bulletin). Charlie Hebodo printed two cartoons from the Jyllands-Posten and another by a French artist that depicted Mohammed with his head in his hands, saying, “It is hard to be loved by fools,” alongside cartoons poking fun at other religions.

Other French papers, including Le Monde, France Soir, and Liberation also published some or all of the original cartoons published by Jyllands-Posten. The editor of France Soir was dismissed two days after he chose to publish the cartoons. Liberation reprinted them again when the lawsuit against Charlie Hebodo was announced.

The plaintiffs in the lawsuit alleged that the images were printed as part of a “considered plan of provocation aimed against the Islamic community,” motivated by “Islamophobia and purely commercial interests.” In court, the plaintiffs’ counsel compared the cartoons to those drawn of Jews during the Holocaust and of black Africans during the civil war in Algeria in the 1990s, saying they were “in the traditional hateful vein of blacks with big lips and Jews with hooked noses.” They sought damages of 30,000 euros from the newspaper.

According to AFP, the court ruled that two of the cartoons were “absolutely not offensive,” and that “acceptable limits of freedom of the press had not been crossed” with them. The AFP further reported that the court called the third cartoon, an infamous depiction of Mohammed with a bomb nested in his turban, “potentially insulting” but explained that “the context of its publication” in Charlie Hebodo “made it clear that there was no intention to offend.” The Union of Islamic Organizations in France announced that it would appeal the verdict, but the Paris Grande Mosque accepted it as “balanced.”

The Charlie Hebodo case became a political issue in France, as it went to trial during the French Presidential campaign. Then-French president Jacques Chirac criticized the paper for publishing the cartoons, saying “freedom of expression must be exercised in a spirit of responsibility.” But Francis Bayrou, the centrist Presidential candidate, testified in court on the paper’s behalf, stating that all religions should tolerate criticism. The center-right Presidential candidate, Nicolas Sarkozy, embraced the paper’s cause and the issue of free speech in a move that The Irish Times called an effort to “distance himself from Chirac and ingratiate himself with left-wing voters.”

The French public took an interest in the trial as well. Crowds gathered outside the courthouse and cheered and booed attorneys as they came and went from their arguments. A group of 50 French intellectuals wrote an open letter in support of Charlie Hebodo at the beginning of the trial, which was subsequently published in Liberation. The group included many prominent French Muslims and described the case against the paper as “a test case for free speech” in France. In the letter, the group wrote that “democrats all over the world and especially Muslims hope to see in Europe, and above all in France, a secular haven where their words are not blocked by dictators or fundamentalists.” As Val exited the courthouse on the day the verdict was announced, the crowds outside greeted him with cheers.

Carsten Juste, publisher of the Jyllands-Posten, praised the trial’s outcome, saying “anything less than a total acquittal would have been a catastrophe for free debate and the entire foundation of our democratic society.” The Jyllands-Posten won a similar case in a Danish court in 2006 (See “Danish Court Rules Mohammed Cartoons Are “Not Offensive,” in the Fall 2006 issue of the Silha Bulletin). Flemming Rose, editor of the Jyllands-Posten, won an award in March 2007 for his commitment to free press during the controversy and violence that followed his paper’s publication of the Mohammed cartoons. (See “Danish Editor Wins Free Press Award” on page 10 of this issue of the Silha Bulletin.)

– Sara Cannon, Silha Center Staff

In 2005, Rose invited 25 newspaper cartoonists to submit drawings of the prophet Mohammed “as they saw him.” Only 12 agreed, and all of the cartoons submitted to Jyllands-Posten were subsequently published. As Rose told the London Telegraph, the cartoons were run as a “test of self-censorship in Denmark.”

Though objections to the cartoons arose immediately in Denmark, it was not until early 2006 that outrage over the cartoons broke out worldwide. A group of Muslim clerics, angered by the initial publication of the cartoons and the refusal of the Danish government to penalize Jyllands-Posten, publicized the cartoons during a tour of predominantly Muslim nations, and they were subsequently republished in newspapers throughout the Middle East, Europe and the rest of the world. Boycotts of Danish products, riots and violence that claimed over a dozen lives, and the trashing and burning of Danish and other European Embassies in Muslim nations followed.

Rose and the Jyllands-Posten refused to apologize for the publication. The paper issued a statement apologizing for any “offense,” but not for the cartoons themselves. Rose also responded by writing a piece entitled “Why I Chose to Publish Those Cartoons.”

He was placed on leave by the paper, a move that some members of the Muslim community in Denmark applauded. The Jyllands-Posten and Rose characterized the leave as a “chance to recover” during a “crisis.” The Danish Prime Minister defended the paper in a public statement.

Rose was subsequently reinstated as editor. The Danish Free Press Society, established in 2004 to respond to threats to free expression “by religious and ideological interests and international pressure groups,” awarded Rose the Sappho Prize in a ceremony on March 27. Rose received a prize of 20,000 Danish Kroner, along with a statue of the poet Sappho, which the Free Press Society considers “a symbol of unconventionality, the love of freedom and human equality.” The Free Press Society says it awards the prize to persons who “combine journalistic skill with courage and a refusal to compromise.”

The Jyllands-Posten won a lawsuit levied against it because of the cartoons in Danish court in late 2006. (See “Danish Court Rules Mohammed Cartoons Are “Not Offensive,” in the Fall 2006 issue of the Silha Bulletin.) In March 2007, a French newspaper won a similar lawsuit. (See “French Editor Wins Lawsuit Over Publication of Cartoons,” on page 11 of this issue of the Silha Bulletin.)

For complete background on this story, see “Controversial Cartoons Lead to Worldwide Concern for Speech, Press Freedom, and Religious Values,” in the Winter 2006 issue of the Silha Bulletin.

– Sara Cannon, Silha Center Staff

The Egyptian government has refused to comment on the case, which marked the first time that an individual had been formally prosecuted in the country for posting opinions online. But, according to an article published by The (London) Independent on Feb. 23, 2007, many people in the mostly conservative, Muslim society believe that Abdel Kareem Nabil Suleiman “went too far” in expressing his beliefs.

“This is a dark day for all who are interested in freedom of expression and belief in Egypt,” Gamal Eid, an attorney for Suleiman, told reporters from The Independent.

Suleiman, who published articles and commentary on his weblog under the pseudonym Kareem Amer, was arrested in November 2006 after the university where he studied, al-Azhar University in Alexandria, Egypt, filed a complaint against him. According to the prosecutors, Suleiman had referred to companions of the Prophet Mohamed as “terrorists,” to the university as a “university of terrorism” and to President Mubarak as the “symbol of dictatorship” in eight articles he had posted to his weblog.

Suleiman also wrote of his interest in becoming a human rights lawyer and helping women in Arabic societies, and posted criticism of attacks by Muslims on the nation’s Christian populations.

On March 3, 2007, The (Ontario, Canada) Hamilton Spectator reported that Egyptian prosecutor Mohammed Dawoud told reporters from the Associated Press that Suleiman’s postings had injured Muslims across the world. “I want him to get the toughest punishment. I am on a jihad here … If we leave the likes of him without punishment, it will be like a fire that consumes everything,” Dawoud said.

The sentence drew condemnation from the international human rights organization Amnesty International, which called for the immediate and unconditional release of Suleiman after the sentence was handed down on Feb. 22, 2007.

“This sentence is yet another slap in the face of freedom of expression in Egypt,” Hassiba Hadj Sahroui, Amnesty International’s deputy program director for the Middle East and North Africa, said. “The Egyptian authorities must protect the peaceful exercise of freedom and expression, even if the views expressed might be perceived by some as offensive.”

A press release published by Amnesty International and available online at http://news.amnesty.org/index/ENGMDE120062007, called for Egyptian authorities to repeal legislation that permits Egyptian courts to imprison individuals for acts “which constitute nothing more than the peaceful exercise of the rights of freedom of expression, thought, conscience and religion.”

The U.S. State Department also expressed its concern over the four-year sentence, condemning the Egyptian court for infringing on Suleiman’s right to express his opinion. “While we have great respect for all religions, including certainly Islam, the role of freedom of expression is critical for the development of a democratic and prosperous society,” State Department spokesperson Tom Casey said on February 22.

On February 23, The Independent reported that Suleiman’s lawyers were preparing his appeal. Muslims who were personally offended by Suleiman’s weblog postings but contend that Suleiman had a right to express his opinion have established a Web site, FreeKareem.org, to campaign for his release.

Deadly Decade for Journalists, Survey Finds

A survey conducted by the Brussels-based International News Safety Institute (INSI) found that more than 1,000 journalists were killed while reporting the news over the past 10 years, averaging almost two deaths every week.

The survey was conducted by INSI, a coalition of international media organizations and human rights advocates, between January 1996 and June 2006, and provides “the world’s most comprehensive inquiry into the deaths of journalists and other news media professionals,” according to the organization’s Web site. BBC global news director Richard Sambrook chaired the special inquiry.

The results of the study were reported on March 6, 2007, and detailed the deaths of journalists, media personnel, and other individuals who work with reporters to cover the news, such as interpreters.

The report found that casualties among journalists have reached record levels each year since 2004 and have increased steadily since 2000. It attributed the rising death toll to the increasingly popular tactic of silencing reporters by killing them.

“The figures show that killing a journalist is virtually risk-free,” Sambrook said. “Ongoing impunity for the killers of journalists, who put themselves in harm’s way to keep world society informed, shames not only the governments who are responsible but also the democracies that stand aside in silence.

Although Iraq was found to be the deadliest country for journalists to work during the past decade, the INSI found that “most media workers killed in recent years died in their own countries,” often as a result of circumstances other than war or political strife. According to the report, reporters who lost their lives in peacetime were typically working on articles about corruption, drug trafficking and other criminal activities.

Over the last decade, the INSI estimates that 657 journalists were killed during peacetime, with the death tolls in Russia and Columbia being surpassed only by the death toll in Iraq.

A copy of the report is available online at the organization’s Web site, www.newssafety.com.

During March 2007, other international media organizations and advocacy groups, including Reporters Sans Frontieres (Reporters Without Borders) and the Committee to Protect Journalists (CPJ), released studies covering the risks faced by reporters across the globe.

While the INSI found that the majority of victims over the last decade had been men, other news organizations and advocacy groups voiced concern for women journalists. On March 6, 2007, Reporters Sans Frontieres (Reporters Without Borders) said that more and more women journalists are falling victim to violence. “Women journalists are the victims of murder, arrest, threats or intimidation,” a press release on the organization’s Web site said. “This increase is due to the fact that more and more women are working as journalists, holding riskier jobs in the media and doing investigative reporting likely to upset someone.”

On March 15, 2007, the CPJ issued a press release that coincided with the fourth anniversary of the U.S.-led invasion of Iraq. Research by the CPJ showed that 134 media workers were killed since the start of the war, making it the deadliest conflict in the organization’s 25-year history.

Finding that 80 percent of the journalists killed in Iraq since 2003 have been Iraqi citizens, CPJ Executive Director Joel Simon called the statistics “a reminder of the enormous dangers our colleagues face in trying to report one of the biggest stories of our time.”

The press releases issued by Reporters Without Borders and the Committee to Protect Journalists can be found on the organizations’ Web sites, www.rsf.org and www.cpj.org.

BBC Reporter Alive Despite Extremists’ Claims

On April 20, 2007, The Times (London) reported that BBC reporter Alan Johnston, who was kidnapped in Gaza on March 12, 2007, was alive despite an extremist group’s claims that it was responsible for the journalist’s death. Johnston was the only Western reporter permanently based in Palestinian territory.

Palestinian President Mahmoud Abbas announced on April 19, 2007 that Johnston was alive and that efforts to secure his release were ongoing. The announcement contradicted statements made by Kataeb al-Jihad al-Tawheed, or the Brigades of Holy War and Unity, in a statement sent by the group to international news organizations claiming to have killed Johnston to support demands for the release of Palestinian prisoners in Israeli captivity.

After the claims surfaced, Palestinian interior minister Hani Kawasmeh held a press conference to question the claims made by the group. “This party that issued the statement about the so-called killing is unknown to the security services,” Kawasmeh told reporters.

According to an article published by the Irish News on April 16, 2007, however, the group’s name has been used elsewhere by organizations linked to al-Qaeda. Nevertheless, Kawasmeh told reporters that same day, “There is no information to confirm the killing of Johnston until now.”

Following the statement claiming Johnston had been killed, the BBC expressed concern over the e-mail message it received from the group claiming responsibility. According to reports on the Al-Jazeera news network, later reported by the BBC on April 16, the BBC and Palestinian officials could not verify the authenticity of the reports at that time.

Later that day, approximately 200 reporters and journalists attempted to enter the parliament building in Gaza, demanding that lawmakers release any information that the government possessed about Johnston.

The following day, on April 17, the London-based Al-Sharq al-Awsat reported that kidnappers claiming to have taken Johnston were demanding a $5 million dollar ransom for the journalist’s return. At the time the Silha Bulletin went to press, neither the BBC nor the family of Johnston had responded to the demand for ransom.

President Abbas, speaking during a visit to Sweden on April 19, claimed to know which extremist group was responsible for the kidnapping. “I believe he is still alive. Our intelligence services have confirmed to me that he’s alive,” Abbas said. But Abbas declined to provide any additional details.

Days later, a multi-faith service was held in London, at which BBC deputy director general Mark Byford told the congregation that “[f]or the last 75 years the BBC has relied on an extraordinary group of people who go into the world’s trouble spots, often just as everyone else is getting out.” He continued, “ No one is braver or has faced more hardship than Alan Johnston.” A similar vigil was also held in Pakistan and attended by both local journalists and foreign correspondents.

Meanwhile London Mayor Ken Livingstone appeared on Arab TV to appeal for information. He called Johnston’s abduction, “a catastrophe” according to a BBC report.

Russian Reporter’s Fall Leads to Demands for Investigation

The Kommersant, a Russian daily, reported on March 6, 2007 that a military affairs reporter working for the newspaper was reporting on a highly-sensitive story about Russia’s plan to sell missiles to Syria and Iran in the days and weeks before falling to his death on March 2, 2007.

The reporter, Ivan Safronov, had told his editors shortly before his death of Russian plans to sell sophisticated missile technology to Iran and Syria through Belarus, straining Russian relations with the United States and Israel. The Kommersant also reported that Safronov had told colleagues that he could face criminal investigations for releasing state secrets if he continued his reporting.

Safronov was later found dead outside his apartment building, after the reporter fell from a fifth-floor stairwell window. On March 7, the Voice of America news service reported that Russian police had ruled out any criminal activity, declaring the death either an accident or suicide.

Although prosecutors have demanded an inquest into the circumstances surrounding Safronov’s death, Russian officials have yet to respond.

The International Press Institute (IPI) expressed concern over Safronov’s death and called on Russia to conduct a thorough investigation into the reporter’s death, the third high-profile death of a Russian journalist in the last year. An editorial which appeared in The Globe and Mail (Canada) also expressed doubts over the police investigator’s claims, “particularly as he lived on the second floor and was returning from a shopping trip with a bag of groceries at the time [of his death].”

Voice of America reported that Johann Fritz, the IPI’s director, expressed concern over “the deaths of many other Russian journalists and the impunity which accompanies these deaths,” referring to several highly-publicized deaths of Russian journalists, including internationally-renowned human rights reporter Anna Politkovskaya and American-born Forbes Russia editor Paul Klebnikov. (See “Russian Spy May Have Been Poisoned for Investigating Journalist’s Death” in the Winter 2007 issue of the Silha Bulletin; “Famed Russian Reporter Murdered in Contract Killing” and “Russia’s Supreme Court Overturns Acquittals in Klebnikov Case” in the Fall 2006 issue).

– Christopher Gorman, Silha Research Assistant

The conflict between Skjervold and the police took place on Dec. 23, 2006, in Amboy, Minn., and the exact nature of it is in dispute. According to the Minneapolis Star-Tribune, Skjervold spoke with family members and Nienaber, claiming that two policemen entered his home around 4:00 p.m. while he was quarreling with his wife. Skjervold further contended he did not know the men entering his home were police officers, and they exchanged gunfire before the police tasered him in the stomach. Mark Peterson, a spokesman for the Minnesota Department of Public Safety, disputed Skjervold’s account, and said that the two officers retreated and called back-up after realizing Skjervold was armed. A tactical-response unit then entered the home and exchanged fire, and Skjervold shot two officers in the head before they retreated. Both officers survived the shooting. It is undisputed that the situation ended when Skjervold took his own life by shooting himself.

Skjervold’s contact with Nienaber began after Nienaber began calling homes around the area surrounded by the police to report on the standoff with Skjervold. At the time of the call, Nienaber was unaware of the reason for the police activity. According to a Community Newspapers Holdings, Inc. (CNHI) story, Skjervold answered Nienaber’s call, and the two spoke for a few minutes approximately three hours into the seven-hour standoff. During that conversation, Skjervold described the standoff to Nienaber, including information about the shootout with the officers, and then hung up. Nienaber reported the conversation the following day in the print and Web version of The Free Press.

The Blue Earth County Attorney sought Nienaber’s notes as part of its investigation into the death of Skjervold. The attorney subpoenaed Nienaber’s notes about his conversation with Skjervold to determine whether Skjervold said anything that was not reported in Nienaber’s story. The Free Press moved to quash the subpoena, and Judge Smith denied the paper’s motion after a February 2 hearing. The Press argued it was protected under the Minnesota Free Flow of Information Act, Minn. Stat. §§ 595.021-595.025, which prohibits any court from compelling a person who was gathering information for the purpose of disseminating that information to disclose unpublished information to the court. There is an exception to the shield law if the material is clearly relevant to the prosecution of a gross misdemeanor or felony, but Skjervold’s death precludes the county attorney from bringing any charges against him. At the time the subpoena was issued, no crime was being prosecuted or potentially prosecuted by the Blue Earth County Attorney’s office, but rather an investigation into Skjervold’s death. The county attorney has not disclosed specifics about whom he is investigating or why he wants to see all of Nienaber’s notes.

Smith rejected the paper’s argument that the shield law’s exception can only apply when a crime is being prosecuted, and ruled that there was probable cause to believe the information being sought is clearly relevant to a gross misdemeanor or felony, despite the lack of prosecution of one. Smith continued, stating, “[f]reedom of the press is not quite as sacrosanct or absolute as the Free Press would like it to be. That is especially true where the actions of a reporter interfere with the efforts of police negotiators to entice a distraught man out of his barricaded house while he is still alive. The right claimed by the Free Press to seek the truth must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life.” Also in his opinion, Smith said it is “safe to infer that the call exacerbated Skjervold’s mental state, which in turn contributed to his taking his own life.”

Mark Anfinson, attorney for The Press, expressed concern that Smith’s ruling represents a flawed interpretation of how the shield law is supposed to work. Anfinson continued that under this ruling, the protections granted by the shield law would be dramatically reduced as subpoenas could be used in a much broader range of situations than just prosecutions for felonies or gross misdemeanors.

The Associated Press reported on February 23 that The Free Press has decided to appeal Smith’s ruling. Managing Editor of The Press Joe Spear said that the paper is “asking that prosecutors follow the law in requesting our notes. We’re asking the appeals court to require that of the prosecutors.”

– Scott Schraut, Silha Research Assistant

In an opinion filed on Feb. 13, 2007, Weinstein wrote that the court wanted to “allow [the reporter] to appear and confront the evidence of conspiracy offered against him” at a hearing held by District Judge Brian M. Cogan on Dec. 19, 2006. At the initial hearing, Cogan was presented with evidence that Berenson and two other individuals plotted to disseminate internal documents from Eli Lilly & Co. that were sealed by court order on Aug. 9, 2004 as part of ongoing discovery in litigation against the pharmaceutical manufacturer. In re Zyprexa Prods. Liab. Litg., No. 04-MD-1596, 2006 WL 3877528 (E.D.N.Y. Dec. 19, 2006). In order to consider whether to issue a permanent injunction, Weinstein wrote, the court wanted to afford the reporter an opportunity to present evidence that the allegations of conspiracy were unfounded.

The Times responded by letter on Feb. 5, 2007, thanking the court for the opportunity but stating that it would be “inappropriate for any of [the newspaper’s] journalists voluntarily to testify about news gathering at The Times.”

“We guard quite zealously our role as a member of a free and independent press and believe quite passionately that, consistent with the principles embodied in the First Amendment, it is not the role of the newspaper or its reporters to submit to cross-examination about such matters even where it may otherwise serve our particular interests in a particular case to do so,” The Times’ Assistant General Counsel George Freeman wrote to the court.

On Feb. 13, 2007 Weinstein ordered the return of any remaining documents that individuals, government officials, and others had received and to refrain from further disseminating the materials. Berenson, The New York Times and five Web sites that were originally bound by Cogan’s temporary order were not a party to the injunction.

However, Weinstein scolded Berenson for his role in the series of events that led to the widespread publication of the sealed documents, conduct that the judge claimed ran afoul of even The Times’ own code of ethical conduct. “Staff members must obey the law in pursuit of news. They may not break into buildings, homes, apartments, or offices. They may not purloin data, documents or other property. … In short, they may not commit illegal acts of any sort,” Weinsten wrote, quoting The Times’ editorial policy.

According to Weinstein’s opinion, Berenson, a medical expert and an Alaska attorney devised a plan to circumvent the court’s original decision to seal the documents that Eli Lilly disclosed to the Lanier Law Firm during discovery.

Lanier, which represented individuals in a lawsuit against Eli Lilly for failing to disclose health risks associated with the antipsychotic Zyprexa, retained David Egilman as a medical expert in October 2006. On Nov. 10, 2006, Egilman agreed to the terms of the protective order issued in 2004 and gained access to internal documents that had been turned over to the Lanier Law Firm by Eli Lilly during discovery.

According to the court, at about that time, Egilman began discussing publicizing the Zyprexa documents with Berenson. The men later discovered that the terms of the protective order allowed an individual in possession of the sealed documents to be subpoenaed by any court or administrative agency so long as Eli Lilly or the opposing parties were notified in writing of a subpoena seeking confidential information. “In no event shall confidential documents be produced prior to receipt of written notice by the designating party and a reasonable opportunity to object,” the order read.

Unaware of any pending cases that offered an opportunity to subpoena the documents, Berenson suggested that Egilman contact Alaska attorney James Gottstein, director of the Law Project for Psychiatric Rights. Gottstein agreed to subpoena the documents and assist Egilman in distributing the sealed documents to government officials, a number of Web sites, and the media. Although he was not involved in any litigation that would require Gottstein to issue a subpoena, Gottstein persuaded an Alaska superior court to issue a deposition subpoena in a challenge to a state guardianship proceeding. The guardianship, according to Weinstein, involved the public guardian’s power to approve administration of psychotropic medication to the individual, although the administration of Zyprexa was not at issue.

The Alaska court issued a subpoena to Egilman on Dec. 5, 2006, ordering the expert to participate in deposition over the phone. Egilman forwarded the subpoena to Eli Lilly’s general counsel. However, after Gottstein amended the subpoena to require that Egilman deliver documents to Gottstein prior to the telephone conversation on Dec. 11, 2006, Egilman failed to alert Eli Lilly of the change. Attorneys at Lanier were not notified of either subpoena.

On Dec. 13, 2006, Eli Lilly contacted Lanier to discuss the subpoena issued by the Alaska court. After discovering that Eli Lily planned to file a motion in the Alaska court to quash the first subpoena, attorneys at Lanier instructed Egilman to delay answering the subpoena. Although Egilman agreed to delay his response, he had already begun transferring the files on Dec. 12, 2006.

Learning that Egilman had transferred the documents to Gottstein, Eli Lilly contacted the attorney, demanding that he identify the protected material or individuals to whom he sent the documents, return the documents and refrain from disseminating the documents further.

Lanier later discharged Egilman as an expert and requested the return of any sealed documents still in his possession. However, Gottstein had already distributed the documents to Berenson, The Times, government officials, and a number of Web sites. At Berenson’s request, Gottstein had not distributed the documents to other media organizations, allowing The Times to scoop the story. The newspaper began publishing front page articles about information contained in the confidential Lilly documents on Dec. 17, 2006.

On December 19, Cogan issued the temporary injunction, requiring some of the individuals to whom Gottstein had provided the documents return them. On December 29, Lilly learned that some of the recipients refused to comply with the order and continued their attempts to distribute the documents.

When the matter later came before Weinstein, the judge defended the importance of protective orders issued during complex litigation. Protective orders sealing certain documents during discovery under Federal Rule of Civil Procedure 26, Weinstein wrote, are “not the kind of classic prior restraint that require exacting First Amendment scrutiny,” as the parties against which the injunction was being sought argued. Under Seattle Times Co. v. Rhinehart, 467 U.S. 20, 25 (1984), a litigant does not necessarily have the right to disseminate information that is obtained by discovery because it falls within a class of speech that is typically not protected under the First Amendment. In a unanimous decision, the Supreme Court decided in Seattle Times Co. that information obtained by a litigant through discovery was made available only for purposes of trying the litigant’s suit. A litigant has no First Amendment right of access to information made available only for these purposes, Weinstein wrote. A right of public access did not attach to the documents once produced by Eli Lilly in discovery.

Because the court order sealing the documents provided procedures for parties and non-parties to submit motions to amend the order and provided a practicable means of restricting access during discovery, the court held that the protective orders imposed only a “minimal burden on speech.” By restricting access to the documents through the discovery process, the court is able to protect the “privacy and property rights of litigants appearing before it.”

In balancing the harm to the public, Eli Lilly and others involved, the court held that the documents should be returned and the protective order upheld against individuals and organizations possessing the documents. The Times, Snighdha Prakash of National Public Radio, and others, including Berenson, were not included in the injunction. The five Web sites listed in Cogan’s temporary injunction and against which a permanent injunction was sought were also not included in Weinstein’s order.

“Prohibiting five of the Internet’s millions of websites from posting the documents will not substantially lower the risk of harm posed to Lilly,” Weinstein wrote. “Websites are primarily fora for speech. Limiting the fora available to would-be disseminators by such an infinitesimal percentage [of the millions of Web sites on the World Wide Web] would be a fruitless exercise of the court’s equitable power.”

– Christopher Gorman, Silha Research Assistant

The votes came one year after the House passed a similar measure that never reached the full Senate floor. Washington has had no shield law until now, although courts had interpreted a qualified First Amendment privilege for journalists in case law.

As amended, the law provides an absolute shield for reporters wanting to protect a confidential source’s identity, similar to existing privileges for clergy, doctors and spouses. The privilege is more limited for “news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised.”

The law allows a court to compel disclosure of that information if it finds by clear and convincing evidence that the party seeking the information has exhausted all other alternative means to obtain it, there is a compelling interest in public disclosure, the information is critical to the maintenance of the claim, and there are reasonable grounds to believe a crime has occurred in criminal cases or that there appears to be a cause of action in civil cases.

The Associated Press (AP) reported that during debate in the Senate, Sen. Mike Carrell (R-Lakewood), tried to amend the measure to give courts the power to compel disclosure of a source’s identity under certain circumstances, but failed.

The AP quoted the bill’s main Senate sponsor, Sen. Adam Kline (D-Seattle), who said the bill was “for the benefit of voters.” He said it would give the public “greater opportunity to know what’s going on in this world, because somebody out there who may have some very sensitive information is now going to be more willing to come forward with it.”

House sponsor and Majority Leader Lynn Kessler (D- Hoquiam) told the AP, “It is really important in a democratic society that we have a free press, that we as citizens know what is going on in our society, that the people in power who have an interest in keeping information from us shouldn’t be allowed to bury that information.”

The law grants a privilege to “members of the news media,” which it defines as any entity engaged “in the regular business of news gathering and disseminating news or information to the public by any means.” Analysis of the statute by several state newspapers seemed to concur that the bill would probably not protect bloggers.

Shield Laws on Agendas in Other States and at the Federal Level

Thirty-two states and the District of Columbia already have shield laws, and Washington is one of several states considering a shield law this year. In April, the Texas Senate Jurisprudence Committee unanimously moved a shield law out of committee. On April 20, the bill fell two votes short of the requisite 2/3 needed to bring it to a full floor vote, but after being reintroduced on April 27 with an amendment added, it passed. The amendment alleviated some of the Senators’ concerns that the bill would hinder criminal prosecutions by creating additional exceptions which could require journalists to testify.

In introducing the bill, S. 966, sponsor Sen. Rodney Ellis (D-Houston) said, “The press plays a vitally important role in our democracy and must be protected from government intimidation. With the face of journalism and law enforcement rapidly changing in the 21st century, it is time for Texas to pass the Free Flow of Information Act to ensure journalists and their sources are protected in their jobs of keeping the public informed.”

Unlike Washington’s bill, the Texas measure provides only a qualified privilege against compelled disclosure, meaning reporters’ testimony could be compelled under certain circumstances, including when a judge finds nondisclosure contrary to the public interest and all reasonable efforts to obtain the information by other means have been exhausted. The bill does provide protection for both sources of information and unpublished information itself.

The Texas bill defines a journalist as “a person who for financial gain, for a substantial portion of the person’s livelihood, or for subscription purposes gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider”

Missouri is also currently considering a state shield law, and there has been some movement on the issue in Utah and Massachusetts as well.

In February 2007, the San Francisco Chronicle reported that Democrats in the United States House of Representatives were prepared to “fast-track” federal shield legislation which has long stagnated in committee every time it has been introduced in recent years. (See “Congress Hears More Testimony on Federal Shield Law” in the Fall 2006 issue of the Silha Bulletin; “New Federal Shield Bill Introduced” in the Spring 2006 issue; “Shield Law Update” in the Fall 2005 issue; “Federal Shield Law Debated in Hearings Before Senate” in the Summer 2005 issue; and “Federal Shield Law Introduced in 109th Congress” in the Winter 2005 issue.)

On May 2, the “Free Flow of Information Act of 2007” was introduced in the U.S. House of Representatives. In introducing the measure, co-sponsor Rep. Mike Pence (R.-Ind.) told the members, “Unfortunately, last year almost a dozen reporters were served or threatened with jail sentences in at least three different federal jurisdictions for refusing to reveal confidential sources.”

Rep. Rick Boucher (D-Va.) was the bill’s other sponsor.

– Ashley Ewald, Silha Fellow and Bulletin Editor

Freelance journalist Joshua Wolf was released from prison April 3, 2007, after spending 226 days incarcerated for refusing to comply with a grand jury subpoena. In August 2005, the government subpoenaed Wolf and the raw videotape he filmed at a G-8 protest the month before, and he was held in civil contempt after he refused to comply with the subpoena. Wolf was released after he posted all of his footage on his personal Web site and signed an affidavit swearing he did not see the individuals who committed the underlying crimes being investigated by the grand jury. Under the terms of his agreement with prosecutors, Wolf will not have to testify in front of the grand jury or identify any of the individuals on the videotape.

In July 2005, Wolf published portions of the videotape almost immediately after the G-8 protest on his personal Web site, www.joshwolf.net, a collective Web site indaybay.org, and sold segments to a San Francisco television station. The government subpoenaed the unaired footage from the videotape, and Wolf asked U.S. District Judge William Alsup to quash the subpoena but was denied. Wolf appealed to the U.S. Court of Appeals for the Ninth Circuit, but was denied relief there as well. Following the appellate court’s ruling, the government moved to revoke Wolf’s bail, and he entered the Dublin Federal Correctional Institute in California on Sept. 22, 2006. (See “Wolf Sets Jail Time Record for Refusing to Comply with Grand Jury Subpoena” in the Winter 2007 issue of the Silha Bulletin; “Blogger Ordered Back to Jail for Refusal to Disclose Videotapes” in the Fall 2006 issue; and “Court of Appeals Orders Freelance Journalist To Hand Over Videotape” in the Summer 2006 issue.)

According to a statement by Wolf posted on his Web site, he reached the agreement with the government securing his release after two “rather strenuous sessions of mediation.” Addressing why he chose to release the tape after spending more than seven months in jail for refusing to do so, Wolf stated his primary objection to the subpoena was that it required him to testify in front of the grand jury in addition to disclosing the videotape. Once an agreement was reached that did not require him to testify, he complied in releasing the tape. He also said that his legal team told him that releasing the videotape three months after he lost his legal appeals would indicate the time in jail was having a coercive effect on him and imply he would be willing to testify when he was not. Wolf claims that this agreement is the same as one he proposed to the government in November, but the government rejected it at that time.

On National Public Radio’s “Talk of the Nation,” Wolf said that although he still believes his refusal to disclose the tape was a battle worth fighting, he should not have been sent to jail. However, once his appeals had been exhausted and he realized he was not going to receive any legal protection for the videotape, he decided there was no further reason to stay in jail when the government was no longer requiring him to testify to the grand jury.

Alsup’s order states that after Wolf published the outtakes online, the government now had “all the materials sought in the subpoena.” Had he not been released, Wolf could have been imprisoned until the grand jury term expires in July 2007.

Because he is an independent blogger, Wolf’s status as a journalist has been called into question throughout his imprisonment. Wolf firmly asserts that he is a journalist deserving the full protection of the First Amendment, which he also contends should have shielded him from imprisonment. In his “Talk of the Nation” interview, Wolf stated “that protection should be afforded to me under the constitution as a journalist.” He also said that “bloggers that are engaging in journalist activities are today’s lowly [sic] pamphleteers” that, in his opinion, the First Amendment was written to protect.

However, some commentators such as San Francisco Chronicle columnist Debra Saunders describe him as a “blogger with an agenda and a camera,” and question why anyone refers to him as a journalist. Saunders opined in her column that “a camera and a Web site do not a journalist make, any more than shooting a criminal makes a vigilante a cop.”

In a footnote to its opinion affirming the district court’s contempt order, the Ninth Circuit concluded that the California shield law did not apply to Wolf because he produced no evidence he was connected or employed by a newspaper, magazine, periodical publication, press association, or wire service as required by the statute. However, a decision from California Court of Appeals, O’Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. App. 2006), interpreted California’s shield law as granting protection to bloggers. (See “Appeals Court Finds that Bloggers Have Same Protection as Journalists, Newsgatherers” in the Summer 2006 issue of the Silha Bulletin.)

Wolf is also controversial because he has described himself as an “artist, an activist, an anarchist and an archivist.” In an interview with Kevin Sites of Yahoo! News in March while still in prison, Wolf stated his belief that “advocacy has a firm role within the realm of journalism” and that his number one goal is to “uncover the truth to deliver to the public.” However, Saunders refuted this contention as well, stating, “When you’re an activist cavorting with the people you’re chronicling, then you are not a journalist.”

But Wolf’s decision has gained the respect of some in the journalism community. The Los Angeles Times quoted media attorney Kelli Sager saying, “I give him a lot of credit.” Sager continued, “Without the backing of a major news organization, he went to jail to stand up for a principle that should be important for all reporters.”

In interviews given following his release, Wolf said that he plans to lobby Congress for federal shield legislation granting bloggers protection and work with other online projects.

– Scott Schraut, Silha Research Assistant

The network received the package in the mail two days after the shooting, on Wednesday, April 18. It contained 29 digital photos, text and a 10-minute video DVD from Cho, some of which the network aired that evening on its “NBC Nightly News with Brian Williams.” According to the Associated Press (AP), other networks quickly followed by taping the video from NBC and replaying it later in their own news broadcasts that night.

By the next day, however, a growing public backlash caused most television networks to stop running the video. Family members of victims cancelled scheduled appearances on NBC’s “Today” show, and Virginia State Police Col. Steve Flaherty was quoted by the AP saying, “‘I just hate that a lot of people not used to seeing that type of image had to see it.”

By late Thursday morning FOX announced it would no longer air clips from the Cho videos, saying on air, “sometimes you change your mind.” A memo sent to staffers from the channel’s Senior Vice President John Moody read, “We believe that 18 hours after they were first broadcast and distributed via the Internet, our news viewers have had the opportunity to see the images and draw their own conclusions about them. We see no reason to continue assaulting the public with these disturbing and demented images.” It continued, however, “We reserve the right to resume airing them as news warrants.”

Also on Thursday, NBC and ABC said they would severely restrict their use of the videos, and CBS and CNN said producers would need to get permission from their bosses before running more of the clips.

As the AP noted, however, those decisions came over 12 hours after the images were first widely broadcast, and they would have been “used less anyway” as time went on.

NBC defended its decision to air portions of the tapes, images and text, saying in a statement, “The decision to run this video was reached by virtually every news organization in the world, as evidenced by coverage on television, on Web sites and in newspapers. We have covered this story -- and our unique role in it -- with extreme sensitivity, underscored by our devoted efforts to remember and honor the victims and heroes of this tragic incident.”

The AP quoted ABC News spokesman Jeffrey Schneider saying, “It has value as breaking news but then becomes practically pornographic as it is just repeated ad nauseam.”

The wire service also quoted Jon Klein, president of CNN U.S., saying, “As breaking news, it’s pertinent to our understanding of why this was done. Then, once the public has seen the material and digested it, then it’s fair to say, ‘How much should we be showing it?’ I think it’s to the credit of news organizations that they are dialing back.”

Members of the public left messages alternately criticizing and supporting NBC for airing the material on Brian Williams’ NBC blog, TheDailyNightly. One person wrote, “I am totally appalled that NBC News has chosen to broadcast the videos of a psychopath according to his wishes and thereby possibly encourage other disturbed individuals to attempt to gain infamy through similar or copycat acts. I find this to be irresponsible and particularly disrespectful to the families of the victims.”

But others agreed with NBC’s decision. Someone identifying him or herself as “Chris” wrote, “As a news organization NBC was obligated to present the information to the public. They showed restraint in not showing more than they did. This material answers the question, ‘Why?’ NBC would have abdicated its responsibility if it had not discolsed [sic] this information.”

Slate writer Jack Shafer was similarly inclined in his April 19 column. He wrote, “NBC News needn’t apologize to anybody for originally airing the Cho videos and pictures. The Virginia Tech slaughter is an ugly story, but the five W’s of journalism—who, what, where, when, and why—demand that journalists ask the question ‘why?’ even if they can’t adequately answer it.” He continued, “If you’re interested in knowing why Cho did what he did, you want to see the videos and photos and read from the transcripts. If you’re not interested, you should feel free to avert your eyes.”

Canadian Broadcasting Corporation’s (CBC) Editor in Chief of News Tony Burman was critical of NBC and other stations which aired the footage. In a column at cbc.ca, he wrote, “At the CBC, we debated the issue throughout the evening and made the decision that we would not broadcast any video or audio of this bizarre collection. On CBC Television, Radio and CBC.ca, we would report the essence of what the killer was saying, but not do what he so clearly hoped all media would do. To decide otherwise - in our view - would be to risk copycat killings.”

Burman continued, “I think [NBC’s] handling of these tapes was a mistake. As I watched them last night, sickened as I’m sure most viewers were, I imagined what kind of impact this broadcast would have on similarly deranged people. In horrific but real ways, this is their 15 seconds of fame. I had this awful and sad feeling that there were parents watching these excerpts on NBC who were unaware that they will lose their children in some future copycat killing triggered by these broadcasts.”

The full text of his column is available online at http://www.cbc.ca/news/about/burman/letters/2007/04/a_story_of_victims_and_issues.html.

NBC News President Steve Capus and Brian Williams appeared on “The Oprah Winfrey Show” on April 24 to defend their decision to air the material. “Sometimes good journalism is bad public relations,” Capus said. “These are very difficult decisions.”

And on April 30, The Washington Post’s Howard Kurtz quoted Capus saying, “I’m stunned that people bang down our door at one moment, demanding we release it uninterrupted and without filter – then question whether it should have been released in the first place …I’m just stunned at the depths of absurdity and hypocrisy.”

Silha Director and Professor of Media Ethics and Law at the University of Minnesota Jane Kirtley was quoted in the April 27 edition of UMNnews, stating, “I think the shooter’s video is news. People had an intense interest in knowing about this individual, and the tape was his vision of himself.” She also said, “The media should always treat victims and families with respect, but victims’ families shouldn’t have veto power over whether something like this is aired. Where do we stop in accommodating people who object to this? I say turn off the TV or hit the mute button.”

The same article also quoted Chair of the University of Minnesota’s Communication Studies Department Edward Schiappa discussing concerns that media coverage might encourage other people to model their behavior after Cho’s. “A number of empirical studies have proven that media coverage serves as a ‘priming effect’ for aggressive individuals and increases the probability of subsequent violent behavior.” But he added, “Let me be clear that we cannot avoid any and all stories that might lead to copycat behavior.”

Kirtley concluded, “Telling tough stories is part of what the media are about. You have to make a judgment about the public interest. Concern about people who might copy can’t be the driving factor.”

NBC was also criticized for the way it distributed the contents of the package to competitors. It affixed its logo prominently to all clips of the images and on the video and sent out a list of rules, which included, “No Internet use. No archival use. Do not resell,” and “Mandatory credit, NBC News.”

An April 20 New York Times article noted that Paul Friedman, the vice president of CBS News, “said NBC had not done enterprise reporting to come into possession of this material, but had ‘picked it up in its mailroom.’” It continued, “And while the rules about usage were fairly standard for the television news business, Mr. Friedman said that ‘in this instance it seemed inappropriate’ for NBC to be so proprietary about material of such sensitive nature.”

Scrutiny of the media went beyond the decision to air Cho’s video and photos and extended to the media’s coverage of the event as a whole.

Advertising Age’s Simon Dumenco compared the various networks’ graphic icons displayed in the corner of the screen during coverage of the event, writing in a column that the “insta-branding was out of control.”

He noted that during CNN’s “Anderson Cooper 360,” “CNN’s animated MASSACRE AT VIRGINIA TECH logo throbbed and twirled with all the subtlety of an “American Idol” bumper. … A gaudy, twitchy animation effect caused the MASSACRE type to briefly explode outside of its red box, as did the AT VIRGINA TECH type a moment later. It took me a couple of rewind passes on my DVR to realize that the grainy gray background behind the twitching type showed a gun sight’s crosshairs floating in slow motion across the screen.”

Dumenco also discussed FOX and CBS’ graphics, before noting that “ABC, in a minimalist mood, tagged its on-site reporting for ‘Good Morning America’ with the words BLACKSBURG, VIRGINIA, and, in the lower left-hand corner, appallingly, a stand-alone graphic of a gun sight’s crosshairs in white against a blood-red background.”

He concluded his column by stating, “We’ve come to the point at which murderous psychopaths and TV news executives are of the same mind when it comes to human tragedy: It’s a branding opportunity.” The full text is available online at http://adage.com/print?article_id=116190.

But (Louisville, Ky.) Courier-Journal columnist Tom Dorsey wrote, “It’s not about ratings, though. The people reporting the stories are doing their best with a difficult topic, inching along day by day, grasping for the next journalistic foothold.” He continued, “There is an unintended benefit to this kind of continuous coverage. It provides a place where people can go to feel a part of a national sense of sorrow and puzzlement.”

In a separate column published April 17, Slate’s Jack Shafer noted that NBC and ABC had both left condolence messages on Virginia Tech students’ profile pages at the social networking Web site Facebook and added that if anyone knew Cho “we have anchors and producers on campus that would love to meet with you” (ABC), and “We have producers and camera crews nearby ready to talk to anyone who can supply information about him and his movements leading up to the tragedy” (NBC).

Shafer concluded, “There’s a thin line between responsible journalism and outrageous sensationalism, and bloodfests like the one in Blacksburg tend to erase it. If the networks weren’t pinging Facebook for leads, if the New York Times weren’t compiling a “Portraits of Grief” for the Blacksburg kids right now—as I bet they are— [Bulletin Editor’s note: The Times did eventually run obituaries of each of the victims, similar to the “Portraits of Grief” it ran after 9/11] and if the story came to a close tonight on Anderson Cooper’s show, readers and viewers would riot. As reporters intrude into the lives of the grieving to mine the story, they should be guided more by a sense of etiquette than ethics. If they don’t risk going too far, they’ll never go far enough.”

For a further discussion of the media coverage, see “Silha Forum Examines Media Coverage of Tragedies” on page 38 of this issue of the Silha Bulletin.

– Ashley Ewald, Silha Fellow and Bulletin Editor

The split 4 to 1 to 4 en banc decision in Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007), affirmed a March 28, 2006 ruling by a three-judge panel, but on different grounds. (See “Federal Appeals Court Finds McDermott in Violation of Wiretap Law” in the Winter 2006 issue of the Silha Bulletin.)

The case began in December 1996 when a Florida couple, John and Alice Martin, used a police scanner to intercept and record a conference call involving several Republican leaders including Rep. John Boehner (R-Ohio), who participated by cell phone, and then-House Speaker Newt Gingrich (R-Ga.), court documents said. In the recording, the officials discussed strategy for dealing with allegations of ethics violations against Gingrich. McDermott, then-ranking Democrat on the House Ethics Committee, acquired the tape from the Martins and shared it with reporters at The Atlanta Journal-Constitution, Roll Call, and The New York Times. Both The Times and The Journal-Constitution published stories based on the recording in January 1997, but neither named McDermott or the Martins.

After the newspaper stories ran, the Martins held a press conference and identified McDermott as the congressman to whom they gave the tape, court documents said. The Martins pleaded guilty to illegally intercepting the telephone conversation under the federal wiretap law, 18 U.S.C. § 2511(1)(a), and were fined $500. McDermott turned the tape over to the House Ethics Committee and resigned from his position on the committee. Shortly after McDermott’s resignation from the ethics committee, Boehner filed a civil suit in Federal District Court in Washington D.C. seeking damages for McDermott’s disclosure of the illegally intercepted communications.

Federal law, 18 U.S.C. § 2511(1)(c), prohibits intentional disclosure of any communication a person knows or has reason to know was illegally recorded. It also provides for civil liability under 18 U.S.C. § 2520.

In the 2006 ruling on Boehner’s suit, a three-judge panel of the D.C. Circuit Court affirmed the lower court ruling that McDermott had illegally disseminated the tape because he knew it was unlawfully obtained. Judge A. Raymond Randolph, writing for the majority of the panel held that “[b]ecause there was no genuine dispute that Representative McDermott knew the Martins had illegally intercepted the conversation, he did not lawfully obtain the tape from them.”

The court affirmed the $10,000 damage award along with $50,000 in punitive damages and attorney fees. According to published reports, the total award amounts to more than $600,000.

On June 23, 2006 the court vacated the ruling and agreed to rehear the case en banc. (See “Boehner v. McDermott Reheard Before Full D.C. Court of Appeals” in the Fall 2006 issue of the Silha Bulletin.) After rehearing the case, the full court issued its split decision.

In an opinion written by Randolph, four judges agreed with the majority in the 2006 case that McDermott had illegally disclosed an unlawfully obtained tape. Because the tape was unlawfully obtained, they reasoned, its disclosure was not protected by the First Amendment. Judge Thomas B. Griffith concurred in the result, but on narrower grounds. He wrote in a separate opinion that had McDermott’s conduct not been a violation of the U.S. House’s ethics rules, he would have agreed with the four dissenters that disclosure of the tapes was protected under Bartnicki v. Vopper, 532 U.S. 514 (2001).

In Bartnicki, a radio talk show host was sued after broadcasting portions of an illegally recorded cell phone conversation. The U.S. Supreme Court held in 2001 that the First Amendment protected the radio host because the information on the tape was in the public interest and he had played no part in the illegal interception of the conversation.

[Lee Levine, the attorney who represented the media defendants in Bartnicki, delivered the Annual Silha Lecture in October 2001. For more on the case see “U.S. Supreme Court Rules In Historic Bartnicki Case” in the summer 2001 issue of the Silha Bulletin.]

In the 2006 Boehner ruling, the three-judge panel had distinguished Bartnicki by holding that McDermott knew, or should have known, that the conversation had been illegally intercepted. In Bartnicki, the tape in question was left anonymously in the radio host’s mailbox, whereas McDermott received the tape with a letter detailing how it was recorded.

After rehearing the case en banc, only four judges agreed Bartnicki could be distinguished on that point. A majority of the court agreed that Bartnicki controlled and the government may not punish a person for disclosing illegally intercepted communication so long as that person did not participate in the illegal interception. “There is no distinction of legal, let alone constitutional, significance between our facts and those before the Court in Bartnicki,” Judge David B. Sentelle wrote for the court.

But Randolph, also writing for a majority on a separate issue, held that Bartnicki did not apply to the facts before the court because McDermott had voluntarily accepted a duty not to disclose the communication and waived his First Amendment protections when he took an oath to comply with House Rules. House Ethics Committee Rule 9 imposes a duty not to “disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.”

Randolph cited confidentiality rules for lawyers and grand jurors as examples of similar prohibitions on disclosure of lawfully acquired communication that do not violate the constitution.

The court further relied on United States v. Aguilar, 515 U.S. 593 (1995), where the U.S. Supreme Court held that certain government officials “may have special duties of non-disclosure.” In Aguilar, a federal judge learned of an investigative wiretap from another judge and told the subject of the wiretap of its existence. He challenged his conviction for violating 18 U.S.C. 2232(c) on First Amendment grounds but lost.

Like Aguilar, the court held, McDermott had a “special duty” of confidentiality based on the House Ethics Committee rule. “If the First Amendment does not protect Representative McDermott from House disciplinary proceedings, it is hard to see why it should protect him from liability in this civil suit. Either he had a First Amendment right to disclose the tape to the media or he did not,” Randolph wrote.

The Martins delivered the tape to McDermott because of his position on the House Ethics Committee, so his conduct regarding the tape was bound by House rules. “When Representative McDermott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins’ illegal recording. He therefore had no First Amendment right to disclose the tape to the media,” the court held.

In a short concurring opinion, Griffith emphasized the limits of the court’s holding. “I believe it is worth noting that a majority of the members of the Court – those who join Part I of Judge Sentelle’s dissent – would have found [McDermott’s] actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph’s opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment,” he wrote.

Judge David B. Sentelle and three other judges dissented. Sentelle argued that Aguilar and other cases cited by the court were not helpful and that determination of the Bartnicki issue should settle the matter.

The dissent recognized that the cases cited by the majority might be persuasive had the court considered the validity of the congressional rules as applied to McDermott’s conduct. But the court sat to decide whether a statute imposed civil liability, not whether congressional rules apply. “We are reviewing a case governed by Bartnicki, and Bartnicki’s holding should prevail,” Sentelle wrote.

According to a May 2, 2007 story by Adam Liptak in The New York Times, news organizations greeted the ruling with relief. Theodore J. Boutrous Jr., a lawyer for the news organizations, was quoted as saying “[i]t’s a huge win in terms of the free speech and free press interests.” Had the opinion of the three-judge panel been upheld, the newspapers that printed the stories could have been liable as well as McDermott, he said.

The Associated Press (AP) reported on July 9, 2007 that McDermott will seek an appeal before the U.S. Supreme Court. “With all due respect to the Court of Appeals, the constitutional issues involved here are much too important to be confused by a split decision,” McDermott said in a July 6 statement to the AP. The case reached the Supreme Court once before in 2001, but the high court remanded for reconsideration in light of the then-recently decided Bartnicki case.

The Seattle Post-Intelligencer reported on May 28, 2007 that if the ruling stands, it could cost McDermott more than $1 million in damages and legal fees. Boehner offered to settle the case early on for $10,000 donated to charity and an apology, but McDermott refused, the Post-Intelligencer reported.

The May 2, 2007 New York Times story also quoted a statement from Boehner following the ruling. “When you break the law in pursuit of a political opponent, you’ve gone too far. Members of Congress have a responsibility not only to obey the laws of our country and the rules of our institution, but also to defend the integrity of those laws and rules when they are violated,” Boehner said.

– Michael Schoepf, Silha Research Assistant

The Spokesman-Review had been broadly criticized for its coverage of Spokane’s River Park Square (RPS) redevelopment project. The newspaper’s publisher, Cowles Publishing Company (Cowles), was also owner of the RPS property, the downtown shopping mall that was the target of the project. According to the report, critics claimed that the paper had overlooked or ignored the project’s financial problems while urging public support for its success. Meanwhile, the report said, the RPS controversy and the resulting lawsuits “tore apart the city’s political structure and pulled down its bond rating.”

Spokesman-Review Editor Steve Smith, who joined the newspaper in 2002, formally asked the Washington News Council (WNC) in February 2006 to independently investigate the claims of unethical journalism, according to the report. The investigation cost $30,000, split between the WNC and the Spokesman-Review, included a freelance investigation by former Washington Post and Wall Street Journal reporter Bill Richards, and took more than a year to complete. The 29-page document is available at the WNC Web site, www.wanewscouncil.org, and at the Spokesman-Review’s Web site, www.spokesmanreview.com. It was published in full in the print edition of the Sunday, May 6, 2007 Spokesman-Review.

News organizations have subjected controversial coverage to outside reviews in the past. For example, in 2004, CBS News asked a former U.S. Attorney General and a retired Associated Press president chief executive to form an independent panel to review its controversial reporting on President George W. Bush’s National Guard Service. (See “Panel Publishes Findings Following Review of CBS ‘60 Minutes’ Broadcast” in the Fall 2004 issue of the Silha Bulletin.) However, according to The Seattle Times, it is unusual for a newspaper to request a totally autonomous critique of coverage of its own company.

The report sided with the newspaper’s critics. Its findings said that coverage of the RPS project and its legal fallout from 1994 to 2005 lacked thoroughness, balance and transparency. The newspaper self-censored and suppressed important financial information in the interest of Cowles and to the detriment of the public good, the report said. It also found that coverage was negatively affected by an inappropriate “no surprises” arrangement which allowed owner Cowles to control content about the company, as well as by the fact that one attorney, Duane Swinton, was simultaneously advising the Spokesman-Review newsroom and the Cowles boardroom on the issue. The report also criticized then-editor Chris Peck for simultaneously overseeing coverage of the RPS project while advocating a particular outcome in his columns.

The news council made recommendations along with its findings. Among them, it suggested an independent outside editor be assigned to oversee coverage of Cowles operations, and treat the company exactly the same as it does any other source for a story, allowing no more or less influence over content. The WNC also recommended that the Spokesman-Review find a separate law firm for advice on legal issues in order to avoid conflicts of interest.

Editor Smith apologized to readers and to the Spokane community in a column published the same day as the report, May 6, 2007. “In the newsroom, we accept the findings. And we sincerely apologize for not adequately living up to our journalistic standards,” Smith said.

In a column responding to the WNC’s recommendations published a week later, Smith said that because he oversaw both the newsroom and the editorial board as editor, he was aware of the appearance that Spokesman-Review news decisions might be influenced by editorial positions. “The News Council report tells me that at this time, in this community and with the RPS controversy still percolating, it might be best if I stepped away from the editorial board. So that’s what I will do,” said Smith.

He also reminded readers that newsroom meetings are now open to the public and “webcast” online, but declined to accept the suggestion to hire a new lawyer, pointing out that the conflict of interest was resolved by other lawyers at Swinton’s firm handling Cowles business.

Others were less willing to accept the news council’s report. Publisher W. Stacy Cowles said he “reject[s] substantially” the report’s findings that he or members of the Cowles family directed Spokesman-Review coverage. In a column published the same day as the report and Smith’s column, Cowles wrote, “the Editor and the newsroom made and continue to make their own decisions about RPS and all other news coverage.”

Peck, who was the paper’s editor throughout the controversy and now is editor of the Memphis, Tenn. Commercial Appeal,challenged the findings as well as Smith’s apology in a May 12 Spokesman-Review column. “I must take exception to implications that the Spokesman-Review newsroom in the 1990s was somehow orchestrated to turn a blind eye to the problems with River Park Square,” Peck wrote. “Not true.”

Peck also said the report “inflates” the significance of the RPS controversy, ignoring that there were other major stories editors and reporters were covering, as well as suggesting that Peck did little to respond to critics at the time.

Peck claimed that he brought in Joann Byrd, former Washington Post ombudsman, and Bob Steele, an ethicist at the Poynter Institute for Media Studies and member of the Silha Advisory Board, to meet with Spokesman-Review staff and talk about ethical journalism, as well as encouraged the staff to draft a new code of ethics, which was finished by the time he left in 2002.

A July 10, 2007 report by Camas Magazine said the WNC report “committed major errors and appears to have violated standard journalism ethics and practices.” Camas is an online publication that reports on RPS issues and Cowles business.

The Camas report, which can be found under the title “The Verdict” at www.camasmagazine.com, said that the WNC report downplayed the nature of attorney Swinton’s conflict of interest and misrepresented a closing agreement in a 2006 tax case.

The WNC report concluded, “Swinton is probably correct that he did not have a formal conflict of interest since throughout the whole project he was only representing one client – Cowles Co.” According to Camas, however, Swinton never made this assertion; the term “formal conflict of interest” came from WNC Executive Director John Hamer, and the “one client” explanation came from Richards, the WNC report’s author.

Richards defended the assertion in a July 31 e-mail to the Silha Bulletin, however, saying the WNC report made clear that although Swinton would probably not have a legal conflict of interest because he was not working for two separate clients in adversarial positions, the perception among reporters and editors in the Spokesman-Review newsroom was that Swinton was “serving two masters.”

The Camas Senior Editor who wrote the magazine’s report, Tim Connor, filed a grievance against Swinton with the Washington State Bar Association, according to a July 23 Editor & Publisher (E&P) magazine story. Swinton told E&P that he thought the grievance was unusual because Connor chose to make it public and because Connor had never been one of his clients. Connor said if the Spokesman-Review had chosen to follow the WNC recommendation to find a different lawyer, he probably would not have filed the grievance. “The conflict has been long-standing,” Connor said in the E&P story. “It’s been there and it’s been publicized – but it’s never been resolved.”

The WNC report’s “other major lapse,” according to Camas, was in reporting that an Internal Revenue Service (IRS) closing agreement in a 2006 tax case involving the sale of a parking garage in the RPS Complex was a “reversal” of a 2004 IRS determination that the sale was exempt from federal taxes.

Camas reported that an IRS spokesman and a tax attorney who negotiated the closing agreement both said the document did not constitute a “reversal” and said only that the disagreement was resolved.

Camas also reported that the information for the section of the WNC report on the IRS closing agreement came from a redacted version of the agreement. Richards would not disclose who gave him the agreement or who might have redacted it, but Camas reported that its research “strongly indicate[d]” that it came from a law firm, K&L Gates. That law firm, according to Camas, was a defendant in the RPS litigation and is now a major donor to the WNC; two of K&L Gates’ founding partners were also founding members of the news council.

Camas says this raises a question as to whether “a major News Council donor (and a major player in the River Park Square securities fraud fiasco) was able to surreptitiously influence Richards’s reporting through the back door of the WNC’s project team.”

Richards defended his decision not to disclose his source for the IRS document. “This was not a public document and its release could be problematic for the source,” Richards wrote in the July 31 e-mail. “I knew the source, as did my editors on this project, and I am comfortable with the validity of the document.”

Richards said Camas’ question of whether his report was influenced from within the WNC is problematic.

“[Camas’] critique seems to rely on carefully selected bits and pieces of information, plus [their] own intuition – adding up to a vague conclusion of conspiracy,” Richards said.

Stephen Silha, a member of the WNC board of directors and son of Helen and the late Otto Silha, who endowed the Silha Center, said in a July 30 e-mail that the organization decided not to respond to the Camas report. “We found [Camas’] premise utterly without merit,” Silha said.

Silha said the WNC believes the report is “a groundbreaking and important contribution to journalism ethics which will be useful to journalism schools and media organizations for decades to come.”

– Patrick File, Silha Fellow and Bulletin Editor

According to the BBC Web site, the report resulted from “a project first commissioned by the BBC Board of Governors in conjunction with BBC management in November 2005 to identify the challenges and risks to impartiality.” The report has been endorsed by the BBC Executive Board and the BBC Journalism Board, along with the BBC Trust, an oversight and governing body.

According to the BBC Web site, the BBC Trust “is the sovereign body of the BBC, its independent trustees acting in the public interest.” It works to ensure “that the BBC remains independent, resisting pressure and influence from any source.” Trustees are appointed by the Queen.

According to The (London) Observer, critics of the network have praised the report as an acknowledgement of the BBC’s “deep seated liberalism.” BBC Trustee and former BBC reporter Robin Aitken accused it of “widespread liberal bias.” In an article responding to the report, Aitken wrote “the BBC is biased, and it is a bias that seriously distorts public debate.”

Among the programming addressed in the report are coverage of the Make Poverty History campaign, the Live8 concert, and the Drop the Debt special, all of which aired in 2007. Dawn French, an actress and writer for two BBC sitcoms, was also cited for her enthusiastic endorsement of the Make Poverty History campaign by a fictional character on the sitcom, “The Vicar of Dibley.” A promotional video for the campaign was shown on the sitcom as part of a story line.

The BBC is taking steps to revise its programming and address what the report called its “culture of bias.” According to the BBC, the guiding principles published in the report will be used to create an “extensive programme of training, seminars and debates through the BBC’s College of Journalism and in conjunction with Editorial Policy.” The BBC also announced that it will “liaise closely with PACT – the independent programme-makers professional body – to raise awareness [about impartiality] amongst those who contribute from outside the BBC.”

The network will also release regular reports on impartiality to the BBC Trust, and will rely on the trust to make sure the BBC is “avoiding conflict of interest situations by not commissioning from independent production companies who have a direct commercial interest in the programme content” and “encouraging a closer working relationship between independent companies and BBC Editorial Policy earlier in the process.” The trust will also appoint a “senior BBC editorial figure to oversee themed seasons” and keep staff aware of “editorial guidelines surrounding campaigns, user-generated content and conflict of interest around outside interests.”

Two separate incidents that took place days before the report was released, along with another that emerged shortly after, brought the problems the BBC was attempting to address into relief.

On June 15, the BBC Trust expressed its concern over two episodes of the BBC investigative journalism program “Panorama.” According to The Guardian of London, viewers contacted the BBC in large numbers regarding an episode that focused on the Church of Scientology, and another on the health affects of wireless technology. A video clip showing “Panorama” reporter John Sweeney screaming in frustration at a Scientology church representative was posted on YouTube in May, prompting bad press for the network throughout the UK and in media outlets in Europe and the United States.        

On July 12, the BBC issued an official apology to Queen Elizabeth II for a trailer it produced for the special “A Year With the Queen,” scheduled to air in the fall of 2007. According to statements by the BBC, the trailer gave the impression that the Queen had walked out of a portrait sitting with photographer Annie Leibovitz when she was asked to remove her crown.

On the trailer, Leibovitz is shown saying, “I think it will look better without the crown because the garter robe is so ...” and being subsequently cut off by the Queen, who said, “Less dressy? What do you think this is?” gesturing at her formal “Order of the Garter” robes. The trailer then cut to footage of the Queen walking with a lady in waiting, saying, “I’m not changing anything. I’ve had enough dressing like this, thank you very much.” The footage of the Queen making this comment was taken when she was arriving for the photo shoot, but the BBC trailer was rearranged to give the impression that she was leaving angrily.

English tabloids and Web sites in Europe and the United States reported on the trailer as if it was a factual representation of the Queen’s behavior. After the trailer was broadcast, the Associated Press (AP) newswire released a story with the headline, “Queen Storms Out of Celeb Photo Shoot.”

On June 13, BBC Executives announced that the trailer had been edited incorrectly. According to The Independent of London, “palace officials reacted swiftly to the inaccuracy and the BBC was forced to clarify and apologise, saying the trailer was not meant to be shown.” The AP reported that in the official statement on the matter, the BBC said, “In this trailer there is a sequence that implies the Queen left a sitting prematurely. This was not the case and the actual sequence of events was misrepresented.” According to The Independent, BBC1 controller Peter Fincham called the mistake “human error,” and that though it was “regrettable,” “things like this can happen.” In its statement, the BBC officially apologized to both the Queen and to Leibovitz for “any upset this may have caused.”

On August 12, The (London) Telegraph reported that Farrer & Co., the Queen’s attorneys, had written a letter to the BBC and RDF Media Group, the film company that made the trailer for the BBC, warning them that the misrepresentation in the trailer may have constituted a breach of contract. According to The Telegraph, officials at Buckingham Palace have called the entire “A Year With the Queen” program “tainted” in light of the problems with the trailer, and are pressuring the BBC to “scrap it.” Mark Stephens, senior media lawyer with Finers Stephens Innocent, told The Telegraph, “The Queen agreed to appear in a programme subject to standard editorial guidelines and controls. The editorial standards of the BBC require them not to present a false picture. If they do portray someone in a false light, they have breached their contract.” The Telegraph reported that the BBC does plan to air the documentary once “it has been properly edited.”

On June 19, it was announced that the BBC would face fines of up to 300,000 pounds from the British Office of Communications for faked phone-in competitions. The (London) Times reported that fraudulent competitions had been discovered on three shows: “Comic Relief,” “Sport Relief,” and “Children in Need.” Less than a week prior to that, the BBC was fined 50,000 pounds for falsely reporting the results of a phone-in competition on its children’s program “Blue Peter,” according to BBC News. The AP reported that, on the other shows, members of BBC production staff had posed as competition winners on several occasions as members of the public called in hoping to win. Participants in the phone-in competitions were being charged for the calls.

BBC Director General Mark Thompson countered rumors that he might resign over the scandal, telling BBC News that he planned to keep his post and that the incidents were “totally unacceptable.” He also said that if there was a way of “recompensing” callers who had participated in the fraudulent competitions, “then we will do it.” “We are utterly determined to do everything we can to fix this problem,” Thompson said.

The British Office of Communications is conducting preliminary investigations, and as of press time a full inquiry into the matter is expected, according to BBC News and The Times. According to BBC News, the BBC has suspended all phone competitions until the matter is resolved. The Times also reported that the BBC has suspended a small number of staff members in connection with the faked phone-ins.

Despite the recent scandals, Guardian columnist Simon Jenkins said reports of widespread bias and calls for reform might be overblown.

“The BBC obviously weakens its claim to public support when it makes mistakes, but it would be far worse if it never ran a risk because its running had passed to state regulators, like most such corporations abroad. There is no danger of the BBC running short of critics, from right or left. But there is a danger of it losing support for its core journalistic function, oppositionalism,” wrote Jenkins in a July 20 column.

The BBC adopted a set of new editorial guidelines in 2005, in response to a critical report on the organization released in 2003. These guidelines were reviewed on January 1, 2007, at the start of the most recent BBC Charter. (See “New Editorial Guidelines, Other Changes at the BBC,” in the Summer 2005 issue of the Silha Bulletin.)

– Sara Cannon, Silha Center Staff

Amy Jacobsen, a reporter for Chicago NBC affiliate WMAQ-Channel 5, was fired on July 10, 2007, after a rival station broadcast a video showing Jacobsen at the backyard pool at the home of Craig Stebic, whose wife has been missing since April 30, 2007. Jacobsen was covering the Stebic story for WMAQ, according to the Chicago Sun-Times.

The video was shot from a nearby neighbor’s house on Friday, July 6, and shows a bathing suit-clad Jacobsen, her two children, Stebic, and his sister Jill. The video was broadcast by WBBM-Channel 2, a Chicago CBS affiliate, on the morning of Tuesday, July 10. Stories about the existence of the tape had run that morning in the Sun-Times and Chicago Tribune. The video can be seen on the WBBM website at http://cbs2chicago.com/topstories/local_story_191075534.html.

Carol Fowler, vice president of news at WBBM, told Sun-Times columnist Robert Feder that the station had waited to broadcast the video “because it wasn’t germane to anything in the [Stebic] case.” Once existence of the tape was public knowledge, Fowler said, the station felt compelled to air it and post it on their Web site. Feder reported that Fowler would not say who shot the video or how it came into the station’s possession, saying the tape “fell into our lap.”

According to the Chicago Tribune’s Phil Rosenthal, sources at WMAQ said a number of factors contributed to Jacobsen’s dismissal, including the incriminating video, the fact that she had been briefing police on her contact with Stebic without informing her bosses, and that this was the latest in a number of incidents that caused them to lose faith in her judgment.

In Los Angeles, reporter Mirthala Salinas was suspended Aug. 3, 2007 for two months without pay from KVEA-Channel 52, part of the NBC-owned Telemundo network, for covering Mayor Antonio Villaraigosa while they were romantically involved, according to Los Angeles Times. Villaraigosa’s marriage was rumored to be in trouble for months, and on July 12 his wife filed for divorce.

According to the Times, it is unclear when the relationship between Salinas and Villaraigosa began, but Telemundo President Don Browne said in a statement released on Aug. 2, 2007 that KVEA management agreed to reassign Salinas away from political reporting in late 2006 so she would not be covering the mayor, because “a friendship… had developed between the reporter and the mayor.”

In April 2007, said Browne, Salinas was made a temporary anchor for the station, occasionally reading lead-ins to stories involving the mayor, including copy on June 8 and June 11 regarding the mayor’s separation from his wife. Browne said this was “a flagrant violation” of the network’s news policy guidelines on conflict of interest.

The Los Angeles Times reported that three of Salinas’ superiors also were disciplined in response to the scandal – KVEA General Manager Manuel Abud was reassigned to another position and News Director Al Corral was suspended for two months without pay. Ibra Morales, President of Telemundo’s 16 Spanish-language stations, was reprimanded.

Browne’s statement said that Telemundo officials arrived at a course of action after several weeks of investigation, during which they consulted the Poynter Institute, a journalism ethics think tank based in St. Petersburg, Fla.

In a July 20 Associated Press (AP) story, Kelly McBride, ethics group leader at the Poynter Institute, said Telemundo had to balance responsibilities to the reporter and to the public.

“There’s what they have to do legally. But then the other issue is what they owe their audience to recover their credibility. That’s a completely different question,” said McBride.

Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, said in the same AP story that reporters walk a fine line in trying to get close, but not too close, to the subjects of their reporting.

“You have to have [the] ability to get inside the situation, but you have to maintain that detachment.” Kirtley said.

According to Chicago Sun-Times columnist Feder, Jacobsen said she “can’t believe” WMAQ fired her for a “lapse in judgment.” Jacobsen said Stebic had never made any advances toward her or acted inappropriately. She said she was taking her children to a different pool on a day off when Stebic’s sister called asking if she wanted to come over to discuss the case, so she decided to take her children to Stebic’s house to swim instead.

Jacobsen said there were other mothers and children present, Feder reported. “I never would have gone there by myself if [Stebic] were there alone…. And I certainly wouldn’t have brought my children there if there weren’t other kids around too.”

How the scandals will affect the reporters’ careers is unclear. According to the Los Angeles Times, employees at the headquarters of KVEA and KNBC-Channel 4 criticized the network for letting Salinas off too easy. The Times reported that Salinas has been linked romantically to local politicians before, dating State Assembly Speaker Fabian Nuñez (D-Los Angeles) before he remarried his former wife, as well as former Los Angeles City Council President Alex Padilla, who is now a state senator.

In a July 29 story titled “Romancing the Source,” the Los Angeles Times cited journalists in similar situations who “haven’t just survived. They’ve thrived.”

For example, Matt Cooper was a Newsweek deputy Washington bureau chief when, in 1997, he married Mandy Grunwald, a longtime media advisor for Bill and Hillary Rodham Clinton, the Times reported. Today, Cooper is the Washington editor for Portfolio magazine, and Grunwald is chief ad strategist for Sen. Clinton’s presidential campaign.

Christiane Amanpour, chief international correspondent for CNN, dated and later married James Rubin, assistant secretary of state for public affairs, in 1998.

The Times also reported that Atlanta Mayor Bill Campbell and local television news reporter and anchor Marion Brooks had a four-year relationship during the mid-1990s. Brooks is now an anchor for an NBC affiliate in Chicago, while Campbell was convicted of tax evasion in 2006 and sentenced to 30 months in prison. According to the Times, The Atlanta Journal-Constitution reported that some of Brooks’ co-workers avoided her when working on stories about City Hall, fearing she would tip off Mayor Campbell.

Although such scandals as Jacobsen’s and Salinas’ may not ruin journalists’ careers, Kirtley said the public may have trouble taking them seriously in the future.

“It could be an enhancement – in certain segments of the media, notoriety of any kind is a good thing,” Kirtley said in the July 20 AP story. “A future as a serious journalist? Probably not, at least not in the short term.”

– Patrick File, Silha Fellow and Bulletin Editor

Bosley was removed from her position overseeing the Viking News of Ocean County College in Toms River, N. J. at the end of the spring term in 2005 and was reassigned to teach English classes, according to the Student Press Law Center (SPLC). Bosley, a 35-year veteran adviser, filed suit in the U.S. District Court for the District of New Jersey on June 19, 2006, alleging that Ocean County College President Jon Larson and several other upper-level college administrators violated her First Amendment rights and discriminated against her on the basis of her age, according to the SPLC. Three student editors filed a separate lawsuit in May 2006 opposing Bosley’s removal and claiming unconstitutional censorship.

According to the SPLC, Ocean County College spokeswoman Tara Kelly said in December 2006 that the reassignment was based on adviser competence, but Bosley alleged that her reassignment was retaliation for the Viking News’ criticism of school officials.

In 2005, under Bosley’s guidance, the Viking News published stories criticizing Larson. According to the SPLC, the Viking News reported on Larson’s lavish inauguration ceremony and reception, which cost the college $78,000. The Viking News also ran stories and editorials on Larson’s payments to a consultant who redesigned the school logo and his decision to reschedule student activities without student input.

Editor & Publisher magazine reported that College Media Advisers, the organization of advisers of student-run media, formally censured Ocean County College in 2006, and a Society of Professional Journalists (SPJ) task force criticized both Bosley and the administration, calling the dispute “a case study in suspicion, frustration, escalation and the hardening of positions on all sides.” Despite that criticism, the SPJ also called for Bosley’s reinstatement, according to the SPLC.

In July 2006, Judge Stanley R. Chesler of the U. S. District Court in Trenton, N.J. issued a preliminary injunction against Bosley’s removal, ruling that it violated the students’ First Amendment rights and would have a “chilling effect” on future reporting. Ocean County College trustees voted unanimously to reinstate Bosley as newspaper adviser on Aug. 28, 2006. (See “Scholastic Journalism Roundup: New Jersey Newspaper Adviser Reinstated” in the Fall 2006 issue of the Silha Bulletin.)

The New Jersey Collegiate Press Association (NJCPA) reported that the June 2007 settlement “resulted in an ideal situation for [the Viking News] adviser and future editors of the paper.”

The NJCPA reported that although Bosley was not reinstated to two communications classes she previously had taught, according to the agreement she was permanently reinstated as the newspaper’s adviser, returned to teaching journalism, and awarded a financial settlement. According to the SPLC, Bosley reported in an e-mail that the financial settlement amount was $90,000.

The NJCPA wrote that the settlement “could be a model for other public college newspapers whose administrators attempt to control the content of the newspaper or attempt to dismiss a faculty adviser because of what the newspaper publishes.”

– Sara Cannon, Silha Center Staff

Andrew W. Smith filed suit against the Novato Unified School District in 2002, after two of his editorials for the school paper, The Buzz, caused a stir at Novato High School. Smith’s column titled “Immigration” criticized U.S. immigration policy and made several derogatory remarks about Hispanics. When students and parents complained about the column, the school principal held meetings with them and later issued an apology, saying, “this article should not have been printed in our student newspaper, as it violates our District’s Board Policy regarding student publications.” The district superintendent ordered remaining issues of the paper to be removed from distribution.

A later column by Smith, “Reverse Racism” was published after being delayed for one issue in order to produce a counter-point column at the principal’s suggestion.

Smith’s lawsuit alleged violations of his rights to free speech under the U.S. and California Constitutions and California Education Code section 48907, a statute which guarantees student free speech rights in public high schools, and challenged the school district’s speech code as facially invalid. Novato Unified School District Board Policy 5145.2, the “Freedom of Speech/Expression: Publications Code” provides that “students’ rights of expression shall be limited only as allowed by law,” and prohibits “expressions or materials which constitute harassment, threats or intimidation based on race, national origin, religion, gender, ancestry, disability, sexual preference or the perception that a group or person has those characteristics.” Smith sought an injunction prohibiting further abridgements of free speech, as well as damages of $1.

In August 2005, the Marin County Superior Court ruled that the column contained “fighting words,” which are not protected under the California Education Code, and ordered Smith to pay the district’s legal fees. The May 21, 2007 ruling by the California Court of Appeals for the First Appellate District in San Francisco, in Smith v. Novato Unified School District, 150 Cal. App. 4th 1439, (2007), reversed the trial court’s ruling. According to the Associated Press, Smith will be refunded nearly $21,000 in legal fees.

The California appeals court found that the state’s education code provides students with broad protections of free speech in student newspapers. The court noted that the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” However, the court said California courts have ruled that, under the state’s education code, “[t]he broad power to censor expression in school sponsored publications for pedagogical purposes recognized in Kuhlmeier is not available to this state’s educators.”

The court rejected Smith’s challenge to the school’s speech code, however, because it found the list of prohibited “expressions or materials which constitute harassment, threats or intimidation” incorporated a state education code prohibition on “hate violence.”

“[The speech code] does not violate [California Education Code] section 48907 because speech amounting to hate violence would present a clear and present danger of inciting the commission of unlawful acts on school premises,” the opinion said.

The court ruled that although the district did not expressly discipline Smith for his columns, the attempt to disassociate itself from his speech in the “Immigration” column violated the California education code and his constitutional rights to free speech.

“The District sent the clear message that no further speech similar to ‘Immigration’ would be tolerated,” the opinion said. “In the aftermath of ‘Immigration’ the District succumbed to the fear of disruption and discontent. While understandable, this was not permissible.”

States take steps to protect student journalists

Illinois and Oregon lawmakers have passed bills aimed at protecting student journalists.

On July 13, 2007, Oregon Governor Ted Kulongoski signed into law a bill that guarantees free speech and press rights to students in school-sponsored publications in public high schools and universities in that state. The law, which went into effect upon signing, says “student journalists are responsible for determining the … content of school-sponsored media.”

The law says that school-sponsored expression may be restricted by high school, community college or university officials only when it is libelous or slanderous, “constitutes an unwarranted invasion of privacy,” violates an existing federal or state statute, or “so incites students as to create a clear and present danger of the commission of unlawful acts on or off school premises, the violation of school policies, or the material and substantial disruption of the orderly operation of the school.”

According to the law, school officials who restrict publications based on a “forecast of material and substantial disruption” must provide specific facts in support of the restriction and must not base it on “undifferentiated fear or apprehension.”

Student plaintiffs who bring civil suits under the law may be awarded damages and injunctive and declaratory relief. According to the Student Press Law Center, an earlier version of the bill also allowed successful student plaintiffs in civil suits to be awarded attorneys fees and court costs, but that provision was later removed. According to the Student Press Law Center the bill passed by a vote of 16 to 14 in the state Senate and 29 to 16 in the House of Representatives.

In Illinois, Governor Rod R. Blagojevich has until early September to sign a similar measure aimed at protecting the free press rights of student journalists for school-sponsored publications in the state’s public universities and community colleges.

The College Campus Press Act passed in the Illinois House of Representatives 112 to 2 and was unanimously passed in the state Senate.

The bill will bolster support for college student journalists following a federal court ruling that said administrators at public institutions of higher learning may have the same authority to censor school-sponsored publications as officials at public high schools. In 2005, the Seventh Circuit U.S. Court of Appeals, which has jurisdiction over Illinois, Wisconsin and Indiana, ruled in Hosty v. Carter, 412 F.3d 731, that a dean at Governor’s State University did not violate student editors’ First Amendment rights by practicing prior review over the student newspaper because it was not clearly a “designated public forum.” (See “Supreme Court will not Hear Hosty Case” in the Spring 2006 issue of the Silha Bulletin, and “Hosty Ruling Could Result in Fewer Freedoms for University Newspapers, Students” in the Summer 2005 issue.)

Section 10 of the Illinois bill states, “All campus media produced primarily by students at a State-sponsored institution of higher learning is a public forum for expression by the student journalists and editors at the particular institution. Campus media, whether campus-sponsored or non campus-sponsored, is not subject to prior review by public officials of a State-sponsored institution of higher learning.”

The Student Press Law Center reported June 7 that amendments later made to the bill insulate administrators from being held liable for student produced content and allow them to discipline students for use of unprotected speech. Section 25 of the bill states, “[e]xpression made by a collegiate student journalist, collegiate student editor, or other contributor in campus media is neither an expression of campus policy nor speech attributable to a State-sponsored institution of higher learning.” Section 30 says, “Nothing in this Act prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected, or for speech that is not constitutionally protected, including obscenity or incitement.”

– Patrick File, Silha Fellow and Bulletin Editor

The Court’s 5 to 4 ruling in Morse v. Frederick, No. 06-278, reversed an earlier decision in the Ninth Circuit U.S. Court of Appeals and said that public high school principal Deborah Morse did not violate 18-year-old Joseph Frederick’s First Amendment rights when she reprimanded and suspended him for unfurling a banner reading “BONG HiTS 4 JESUS” across the street from the school during a televised sporting event, because the banner appeared to promote the use of illegal drugs.

Some commentators have said the Court’s decision erodes student free speech by creating a “drug exception” to the First Amendment in public schools, but others have focused on the narrow scope of the court’s majority and concurring opinions.

Chief Justice John Roberts wrote the majority opinion,which was joined by Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas. Justice Stephen Breyer concurred in part and dissented in part. Justices Ruth Bader Ginsburg and David Souter joined a dissent by Justice John Paul Stevens.

In January 2002, during a parade marking the passing of the Olympic Torch through Juneau, Alaska, Frederick and some fellow students who were standing across the street from Juneau-Douglas High School unfurled the 14-foot long banner. Principal Morse crossed the street and pulled the banner down. Frederick resisted, and Morse responded with a ten-day suspension for violating a school policy against displaying offensive material, including that which advertises or promotes use of illegal drugs.

Frederick appealed the suspension, first to the school district superintendent, and then through a suit in the U.S. District Court for the District of Alaska under 42 U.S.C. § 1983, alleging the school board and Morse violated his First Amendment rights. Both the superintendent and the district court upheld Frederick’s suspension.

In March 2006, the Ninth Circuit U.S. Court of Appeals vacated and remanded the district court’s ruling, based on the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which held that student speech could be restricted only if school officials reasonably “forecast substantial disruption of or material interference with school activities.”

The U.S. Supreme Court granted certiorari and heard oral arguments in Morse v. Frederick on March 19, 2007.

Chief Justice Roberts’ majority opinion begins with a brief discussion of Supreme Court precedent on student speech. “Our cases make clear that students do not ‘shed their constitutional rights to free speech or expression at the schoolhouse gate,’” said Roberts’ opinion, quoting the Tinker decision. However, the majority observed that subsequent cases Bethel School District No. 43 v. Fraser, 478 U.S. 675 (1986) and Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) have said that students’ rights while in public schools are not necessarily “coextensive” with those of adults, particularly “in light of the special characteristics of the school environment.”

The majority opinion rejected Frederick’s arguments that because he stood on a public street after students had been released to attend the event the case was not “a school speech case,” and that the phrase “BONG HiTS 4 JESUS” was “just nonsense meant to attract television cameras.”

Because the event happened during “normal school hours” and “was sanctioned by … Morse ‘as an approved social event or class trip,’” the majority ruled that the case involved school speech. The court noted that this was also the finding of “every other authority to address the question.”

Despite calling the message on Frederick’s banner “cryptic,” the majority said that the phrase may reasonably be interpreted as promoting or celebrating drug use: “[Take] bong hits…”, “Bong hits [are a good thing]…” or “[We take] bong hits…” For this reason, the majority said Morse reasonably believed the banner’s message violated the school’s policy on material which advertises or promotes use of illegal drugs.

“Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs,” Roberts wrote.

Returning to precedent, Roberts’ opinion said that the decision in Fraser was the most appropriate for determining whether Frederick’s punishment violated the First Amendment, relying on “two basic principles” of the Fraser decision: that public school students’ constitutional rights are not the same as adults or even as students outside of school, and that “the mode of analysis set forth in Tinker is not absolute.”

The majority also said that previous Supreme Court rulings, recent studies and the 1994 Safe and Drug-Free Schools and Communities Act, 20 U.S.C. § 7114(d)(6) (2000 ed., Supp. IV), all highlight the “important – indeed, compelling interest” of deterring drug use by schoolchildren. New Jersey v. T.L.O., 469 U.S. 325 (1985), Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and Board of Ed. of Independent School Dist No. 92 of Pottawattamie Cty. v. Earls, 536 U.S. 822 (2002) all held that students’ Fourth Amendment rights against unreasonable searches and seizures were subject to “schools’ custodial and tutelary responsibility for children.” The opinion also cited a National Institute on Drug Abuse survey which found that “[a]bout half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and one-fifth of 8th graders.”

“It was reasonable for [Morse] to conclude that the banner promoted illegal drug use –- in violation of established school policy –- and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use,” concluded the majority. “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”

Justice Kennedy joined a concurrence written by Justice Alito which sought to emphasize the limited nature of the ruling: that it meant to restrict only “speech that a reasonable observer would interpret as advocating illegal drug use” and that it “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”

The concurrence warned against an argument put forward by the petitioners as well as the United States government that the First Amendment allows censorship of any student speech that conflicts with a public school’s “educational mission.”

“This argument can easily be manipulated in dangerous ways, and I would reject it before such dangerous abuse occurs,” Alito wrote.

Justice Thomas concurred with the majority, but argued the standard set forth in Tinker “is without basis in the constitution.” Thomas wrote that historically, teachers’ authority and discipline has been absolute and the legal theory of in loco parentis supported teachers’ rights “to enforce rules, and to maintain order.” Thomas argued that the standard established in Tinker deviated from this long-held precedent, and “given the opportunity,” he would “dispense with Tinker altogether.”

Justice Breyer concurred in part and dissented in part, saying that the court “need not and should not decide this difficult First Amendment issue on the merits.”

Instead, Breyer said the court should hold that Morse had qualified immunity – that she could not know at the time she pulled down the banner that she was violating Frederick’s civil rights. For that reason, the court should rule that the student’s claim for monetary damages is barred and “say no more.”

Breyer said that the majority’s holding that schools may “restrict student expression that they reasonably regard as promoting illegal drug use” was a matter quite different from the issue raised by the specific facts in the case, and that it raised concerns because it was “based…on…viewpoint restrictions.”

Justice Stevens’ dissent, joined by Justices Souter and Ginsburg, argued that the phrase on Frederick’s banner, contrary to the majority’s interpretation, did not represent a violation of “a permissible rule” or “expressly advocate[] conduct that is illegal and harmful to students.”

Stevens said that the court opinion in Tinker as well as Justice Harlan’s dissent in that case highlighted two fundamental First Amendment principles: first that censorship of speech based on the speaker’s viewpoint is “subject to the most rigorous burden of justification,” and second that “punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid.”

Stevens said the majority opinion in Morse v. Frederick “trivializes” these two “cardinal principles” of the Tinker decision, by inviting administrators like Morse to discipline students with whose pro-drug speech they disagree, and by refusing to demand that the school “show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.”

“Instead,” wrote Stevens, “the court punts,” by both deferring to the principal’s “reasonable” judgment that the banner constituted drug advocacy and by using its own reasoning to say that the message was express advocacy.

“To the extent the Court independently finds that ‘BONG HiTS 4 JESUS’ objectively amounts to the advocacy of illegal drug use…that conclusion practically refutes itself,” wrote Stevens.

Stevens’ dissent said, “… the Court does serious violence to the First Amendment in upholding – indeed lauding – a school’s decision to punish Frederick for a view with which it disagreed…. [Its] ham-handed, categorical approach is deaf to the constitutional imperative to promote unfettered debate, even among high-school students….”

Steven R. Shapiro, national legal director for the American Civil Liberties Union, which represented Frederick, was critical of the court’s ruling.

“It is difficult to know what its impact will be in other cases involving unpopular speech,” said Shapiro in a June 25 story by the Associated Press (AP). According to the Knight-Ridder Washington Bureau, Shapiro said the ruling “creates a drug exception to the First Amendment.”

Mark Goodman, executive director of the Student Press Law Center, said in an article posted June 25 on that organization’s Web site that although he is disappointed in the decision, he sees it as a narrow ruling that only allows school officials to limit student speech that promotes illegal drug use and not speech relating to discussion of political and social issues.

Kenneth Starr, a former independent counsel known for his role investigating the Clinton-Lewinsky scandal, represented Morse. The June 25 AP story said Starr called the court’s decision a narrow ruling that “should not be read more broadly.”

The Student Press Law Center reported July 10 that the Journalism Education Association, an organization of journalism teachers, released a statement criticizing the decision in Morse, recommending that schools use caution in applying it to avoid excessive censorship. The group called the decision “potentially damaging to robust discussion of a whole range of important issues.”

According to the AP, three museums, Washington D.C.’s Newseum, which is set to open later this year, the Juneau-Douglas City Museum, and the Alaska State Museum have expressed interest in acquiring Frederick’s butcher paper and duct tape banner. Officials from the Newseum have said that they would like to display the banner next to the black armband a then-13-year-old Mary Beth Tinker was suspended for wearing to school in 1965 in protest of the Vietnam War.

– Patrick File, Silha Fellow and Bulletin Editor

Section 203 of the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act, makes any broadcast of “electioneering communications” paid for by a corporation’s general treasury a federal crime. The law defines “electioneering communications” as any broadcast within 60 days before a primary election or 30 days before a general election that refers to a clearly identified candidate for federal office and targets the electorate.

In Federal Election Commission v. Wisconsin Right To Life, Inc., 127 S. Ct. 2652 (2007), the Court upheld the Wisconsin group’s as-applied challenge to Section 203 of the McCain-Feingold Act. The act prohibited the group from broadcasting advertisements in the days leading up to Wisconsin’s 2004 primary election that named incumbent Senator Russ Feingold, who was seeking re-election, and urged him not to filibuster President George W. Bush’s federal judicial nominees.

The right-to-life group filed a motion for declaratory relief in Federal District Court for the District of Columbia on July 28, 2004, arguing that as applied to its ads, the statute violated the First Amendment. The District Court denied the motion for injunctive relief and the group did not run its ads during the blackout period. The court held that McConnell v. Federal Election Commission, 540 U.S. 93 (2003), a U.S. Supreme Court decision that rejected a facial challenge to the statue, was broad enough to foreclose as-applied challenges. (See “U.S. Supreme Court Rules on Constitutionality of Bipartisan Campaign Reform Act” in the Fall 2003 issue of the Silha Bulletin.)

In 2006 the U.S. Supreme Court vacated the lower court decision and remanded, holding that McConnell did not resolve as-applied challenges. On remand, the District Court ruled the ads were “genuine issue ads” protected by the First Amendment. The Federal Elections Commission (FEC) appealed, and the case bypassed the Federal Appeals Court and went directly to the Supreme Court.

In his opinion for the court, Chief Justice John Roberts ruled that the case was not moot, even though the election was over, because of the short duration of the controversy and the likelihood that a similar situation would arise in the future.

Moving to the merits, Roberts, joined by Justice Samuel Alito, held that the ads the Wisconsin group wished to broadcast in the days and weeks before the 2004 election were issue ads. Relying on McConnell, Roberts held that express campaign advocacy, or its functional equivalent, could be regulated in accordance with the Constitution, but restrictions on genuine issue advocacy could not survive strict scrutiny. When applied to bar issue ads, section 203 of the McCain-Feingold Act violated the First Amendment.

In his opinion, Roberts articulated a new test for deciding whether an advertisement constituted issue advocacy or express advocacy.

“[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. [The Wisconsin group’s] three ads are plainly not the functional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad . . . . Second, their content lacks indicia of express advocacy . . ..”

The right-to-life group’s ads named Wisconsin Senators Feingold and Herb Kohl, who was not up for re-election, but they did not address the impending primary or urge Wisconsin voters to vote for or against any candidate. The ads also did not address Feingold’s political affiliation, challenger, “character, qualifications, or fitness for office.”

The two radio ads and one television ad feature characters waiting for important events, like a decision on a loan application and a wedding. Other characters interrupt the events with stories about fishing trips and hanging drywall, and then a voice-over implies those interruptions are like the Senate filibuster of President Bush’s judicial nominees. The ads are available on Wisconsin Right to Life’s Web site at www.wisconsinrighttolife.org/befair.htm.

Roberts explained that the question in this case fell outside the scope of the McConnell opinion because the Wisconsin group’s ads could reasonably be interpreted as issue ads and not the functional equivalent of express advocacy. The McCain-Feingold Act can only be applied to bar the Wisconsin group’s ads if the government can show the regulation “is narrowly tailored to further a compelling interest.” Roberts found no compelling interest to justify banning issue ads.

Justice Antonin Scalia, in an opinion joined by Justices Clarence Thomas and Anthony Kennedy, went further than Roberts, arguing McConnell should be reconsidered. According to Scalia, no test can adequately distinguish between genuine issue ads and the functional equivalent of express advocacy.

Scalia argued that every articulated test to determine whether speech is express advocacy or issue advocacy is impermissibly vague, leaving potential advertisers unsure of whether their ads are prohibited or not. This confusion will chill protected speech until McConnell is overruled, Scalia wrote.

Even if there is a compelling interest in limiting corruption and the appearance that large corporations are buying elections with political advertising, section 203 is over-inclusive because it chills protected political speech. The Supreme Court has “rejected the principle that protected speech may be banned because it is difficult to distinguish from unprotected speech,” Scalia wrote.

Justice David Souter wrote in dissent; he was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

Souter began with an overview of the history of the campaign finance reform movement dating back to the start of the 20th century. He explained in great detail the corrupting influence that money has, or at least is perceived to have, on national elections, and the great lengths corporations have taken to get around past attempts at campaign finance reform.

The dissent also listed modes of political speech not restricted by the McCain-Feingold Act including newspapers, Web sites, and political action committees. Furthermore, the statute only applied to corporations, unions, and non-profits funded by corporate donations – the statute did not apply to non-profit organizations that are not funded by businesses or labor unions.

Souter argued that the right-to-life group, along with other organizations and candidates, made the senate filibusterers an issue in the campaign. The ad tied Feingold’s name to support for the filibusters, and urged criticism of his support. In the dissent’s view, the criticism functioned as express advocacy to vote against Feingold in the upcoming election. The ads’ “content and context” made their “electioneering purpose” clear.

The new test adopted by the majority to distinguish between genuine issue ads and those that are the functional equivalent of express advocacy constructively overrules McConnell, the dissent argued. Nearly every add prohibited by section 203 could be “reasonabl[y] interpret[ed]” as an issue ad.

“After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear,” Souter wrote.

The New York Times reported June 26, 2007 that some election law experts agree with Souter that the 2003 McConnell decision was effectively overruled. “Corporations received the victory that they did not achieve in 2003,’’ said Edward B. Foley, a professor at the Moritz College of Law at Ohio State University.

The case had united unlikely allies in support of the Wisconsin group, including the American Federation of Labor (AFL-CIO), the National Rifle Association (NRA), and the National Association of Realtors (NAR). The law restricts those groups from naming specific candidates in their advertisements because the AFL-CIO is a labor union, specifically targeted by the statute, and the NRA and NAR are non-profits receiving some of their funding from corporate donations or dues payments.

“[A] majority of the court has finally and emphatically embraced the simple truth, that the First Amendment abides no law that suppresses independent speech about legislators and candidates, at least absent an explicit call for their election or defeat,” said AFL-CIO President John J. Sweeney in a June 26, 2007 Washington Post story.

But other organizations, like the League of Women Voters, filed briefs in support of the McCain-Feingold Act. The league, a non-profit organization that does not support or endorse specific candidates, argued the exception adopted by the court “swallows” section 203 and permits “sham” issue advocacy that functions as express advocacy.

“This is a big win for big money,” League of Women Voters President Mary G. Wilson said in a statement, according to the Washington Post story. “Chief Justice Roberts has reopened the door to corruption.”

– Michael Schoepf, Silha Research Assistant

Shi Tao, a former editor with the Dandai Shang Bao (Contemporary Business News), was convicted April 30, 2005 for sharing online an internal government message that warned of civil unrest during the 15th anniversary of the 1989 Tiananmen Square protests and massacre and that recommended media restrictions. (See “Endangered Journalists: Yahoo! Assists China in Arresting Journalists” in the Fall 2005 issue of the Silha Bulletin, and “Chinese Journalists Battle Censorship, Yahoo!” in the Winter 2006 issue of the Silha Bulletin.)

On May 29, Shi added his name to the two other named plaintiffs in the suit, Wang Xiaoning and his wife Yu Ling. Wang has been incarcerated since 2003 on a charge of “incitement to subvert state power” because he allegedly distributed pro-democracy articles through a Yahoo! e-mail account and subscriber list.

The suit claims that Yahoo! Inc., along with subsidiary Yahoo! Hong Kong and partner Alibaba.com, Inc., have voluntarily provided e-mail content, e-mail addresses, and user account information to Chinese authorities, thus “knowingly and willfully aid[ing] and abet[ting]…the commission of torture and other major abuses violating international law that caused Plaintiffs’ severe physical and mental suffering.”

According to the Associated Press, Yahoo! has acknowledged turning over information on Shi, citing a policy that requires employees to operate within the guidelines of local laws. The company has denied any involvement of Yahoo! Hong Kong in Shi’s case.

The suit was originally filed April 18, 2007 by the Washington D.C.-based World Organization for Human Rights U.S.A. on behalf of Wang and Yu. It was filed in the U.S. District Court for the Northern District of California under several statutes, including 28 U.S.C. § 1350, the Alien Tort Claims Act of 1789, which allows non-U.S. citizens to file civil suits in U.S. district courts for “violation of the law of nations or a treaty of the United States;” 28 U.S.C. § 1350, the Torture Victims Protection Act of 1991; and 18 U.S.C. § 2701 et seq., the Electronic Communications Privacy Act.

The suit asks for relief in the form of compensatory, punitive and exemplary damages, “affirmative action” by Yahoo! in attempting to secure the release of the imprisoned plaintiffs, and “injunctive relief to prevent similar actions to be taken in the future.”

Morton Sklar, Executive Director of the World Organization for Human Rights U.S.A. who filed the suit on the plaintiffs’ behalf, told Inside US-China Trade that the addition of Shi to the suit may delay or postpone the case’s progress, including a procedural hearing set for August 7.

Shi was recently awarded the “Golden Pen of Freedom,” an annual press freedom prize from the World Association of Newspapers. Shi’s mother, Gao Qinsheng, accepted the award on her son’s behalf on June 4, 2007, at the opening ceremonies of the World Newspaper Congress and World Editors Forum in Cape Town, South Africa, according to an event press release.

On accepting the award, his Shi’s mother said “he has only done what a courageous journalist should do.”

– Patrick File, Silha Fellow and Bulletin Editor

Niyazova was sentenced to seven years in prison in May 2007 by authorities in Tashkent, but the sentence was suspended after she apologized to the state and condemned the human rights organizations she reported for. Another journalist and human rights activist, Turayeva, was sentenced to six years in prison in April 2007, but she also received a suspended sentence when she confessed to all charges and apologized in court in June 2007.

On May 1, 2007 Niyazova was officially charged with illegally crossing the border to neighboring Kyrgystan, smuggling, and fostering unrest with the help of foreign funding. She had been in jail since January 22, when she was arrested by Uzbek authorities as she reentered Uzbekistan from Kyrgystan. According to Agence France-Presse, the United States denounced her arrest as “politically motivated.” Amnesty International called Niyazova a “prisoner of conscience.”

Niyazova had been working for the Central Asian news website Oasis, a project of the Moscow-based Center for Journalism in Extreme Situations. According to the Committee to Protect Journalists (CPJ), she also wrote and worked as a translator for Human Rights Watch and worked with Freedom House and Internews Network.

Niyazova also reported on the Andijan massacre in May 2005, where, according to the Associated Press (AP), hundreds of civilians gathered to protest against the government of President Islam Karimov. Karimov has ruled Uzbekistan since before the 1991 collapse of the Soviet Union, and his government has become notorious for suppressing opposition and silencing dissent. Survivors of the massacre and human rights groups have reported that hundreds of people were killed when government troops opened fire on the crowd of mostly unarmed protesters. The Uzbek government claimed Islamic militants fomented the Andijan uprising, and reported to various media outlets, including the AP, that the death toll was 187.

On May 8, Niyazova’s sentence was suspended by a judge when she confessed to all charges, apologized, and publicly rejected the organizations she had worked for, saying to Human Rights Watch representatives present at her hearing, “The work that you and I did was tendentious and potentially damaging to my country” according to Agence France-Presse. At her original trial on May 1, she pleaded not guilty. But on May 7, she stated before the court, “I plead guilty and deeply regret what I unwittingly did. I am deeply disappointed with some international organizations.”

According to BBC News, the Moscow-based news agency Web site Fegana.ru reported the court ruling as read by the judge: “The verdict of the Sirgali District Court is to be overturned and the punishment is to be replaced with a seven year suspended sentence.” Niyazova will now serve three years of probation, during which she must regularly report to the police and observe a 10 p.m. to 6 a.m. curfew.

German journalist Marcus Bensman told Radio Free Europethat he was happy that Niyazova was free, but that her arrest and trial demonstrated that “Uzbekistan has no justice” and that its government would jail or free people as it wished for political purposes.

U.S. State Department deputy spokesman Tom Caseycalled Niyazova’s trial “hasty” in a statement to the AP in May. The Uzbek government gave Niyazova’s attorney only 30 minutes to prepare for her original hearing, and her appeal was heard just seven days later. Since Niyazova’s sentence, the European Union has considered renewing sanctions it imposed after the 2005 Andijan massacre. In his official statement to the Uzbek government, Casey wrote, “The United States calls again upon Uzbekistan to uphold its commitments to internationally protected human rights.”

On June 12, 2007 Gulbakhor Turayeva’s original sentence was replaced by a three-year suspended term after she too confessed to all charges and apologized, according to Reporters Sans Frontieres.

According to the AP, she received a six-year prison sentence on April 24, 2007 for “defamation, distributing documents liable to disturb the peace and trying to overthrow constitutional rule” under article 159 of the Uzbek criminal code, and on May 7 was also fined the equivalent of $648.

When her suspended sentence was handed down, Turayeva made a statement criticizing other journalists and international human rights organizations. The AP reported that the formerly outspoken critic of the Uzbek government said in her statement, “I thank the court for its clemency, its humanity and the respect it has shown me. I will now look for a new job and I will probably work for the government. I promise never to break the law again.”

According to the CPJ, Turayeva is an Andijan native who gave interviews to foreign media after the 2005 massacre at Andijan, claiming she saw 500 bodies piled up in a schoolyard, which directly contradicts the official government report. She also worked with rights organizations and local underground media to provide information to international media regarding the activities of the Uzbek government.

Turayeva had been in government custody for months before receiving a sentence. According to reports on the Global News Wire, Turayeva was returning from Kyrgystan on Jan. 14, 2007 with the youngest of her four children when she was stopped by Uzbek border police and searched. When she was found to have materials relating to her human rights activities along with books written by people who oppose the Uzbek government, she was arrested and taken into custody on the spot.

– Sara Cannon, Silha Center Staff

“The last 16 weeks were by far the worst days of my life. It was like being buried alive, removed from the world. It was occasionally terrifying,” Johnston told reporters gathered in former Palestinian Prime Minister Ismail Haniyeh’s office shortly after his release. “And now it really is over, and it really is indescribably good.”

When he was kidnapped, Johnston was the only western journalist reporting permanently from Gaza. Reports say he was widely respected for his intelligent and fair reporting on the region. A group called Jaish al-Islam, or Army of Islam, kidnapped Johnston March 12, 2007 in Gaza City. Jaish al-Islam’s power stems from Gaza’s Dagmoush clan. The group claims to act in the “spirit” of al-Qaida, but consists of hired guns motivated as much by money as ideological beliefs, the Washington Post reported July 4.

During the first half of Johnston’s captivity no group publicly claimed responsibility for the kidnapping or made any demands, prompting speculation that he had been killed. Although kidnappings are not uncommon in Gaza, most are quickly followed by demands for ransom money or the release of prisoners, and end within hours or days, the Post reported. Observers compared Johnston’s kidnapping with those perpetrated by al-Qaida-linked groups in Iraq that have ended in the death of the victim.

On April 20, al-Jihad al-Tawheed, or the Brigades of Holy War and Unity, further raised concerns by claiming Johnston was dead. (See “BBC Reporter Alive Despite Extremists’ Claims” in the Spring 2007 issue of the Silha Bulletin.) Though the report was quickly discredited by Palestinian officials, they offered no evidence that Johnston remained alive. More than 200 Palestinian journalists converged on the parliament building in Gaza to call on Palestinian officials to turn over any information they had.

The Guardian of London reported July 5 that Johnston had been pleased and surprised when he learned of the protest at the parliament building while listening to the BBC World Service on a radio provided by his captors.

On June 1 Jaish al-Islam released a video of Johnston on an Islamist Web site. The video showed Johnston criticizing Israel, as well as U.S. and British policy in the region. It also provided the first evidence that Johnston remained alive and well.

Later in June, after Hamas had defeated rival group Fatah in a battle for control of Gaza, Hamas issued a 48-hour ultimatum for Johnston’s release. The deadline passed without action, but Johnston later credited the group for increasing security in Gaza and pushing for his release. “The whole mood began to change,” Johnston said in a July 5 Financial Times story. “Hamas is a controversial organization . . . but I’m pretty sure if Hamas hadn’t come and stuck the heat on in a big way I would still be in that room.”

On June 25 as Hamas increased the pressure for Johnston’s release, Jaish al-Islam released a second video. This one showed Johnston wearing a belt filled with explosives and warned that any attempt to rescue him by force would lead to his death.

Ignoring the threat, 6,000 Hamas fighters surrounded the area where Johnston was being held in the days before his July 4 release. Hamas captured 10 members of Jaish al-Islam before arranging for Johnston’s release.

Time magazine reported July 16 that Johnston’s release served as a way for Haniyeh and other Hamas leaders to showcase their control over Gaza and attempt to find more support in the international community. The United States and Israel consider Hamas a terrorist organization for its involvement in suicide bombings and other armed conflicts with Israel. The United States does not recognize the Hamas-led government in Palestine.

“This liberation of Alan Johnston is first of all a message for all Palestinians that Hamas will support their rights and support their security and a message for all Arab and Islamic and world nations that we are Hamas . . . our enemy is only Israeli occupation,” Fawzy Barhoom, a Hamas spokesman, said in the Financial Times story.

The Independent of London reported on July 5 that Johnston planned to leave Gaza after three years there and return to his native Scotland. Despite his ordeal, he said he would leave with fond memories of the Palestinian people. “I know very well what Palestinian culture is, and the extraordinary warmth and hospitality - especially of Gaza,” he said.

– Michael Schoepf, Silha Research Assistant

In a June 4, 2007 order, the court refused to reconsider a unanimous ruling in Murphy v. Boston Herald, Inc., 865 N.E.2d 746 (Mass. 2007), upholding the $2.01 million award for Massachusetts Superior Court Judge Ernest B. Murphy. The court corrected three factual errors in its opinion, but affirmed that the “substantial factual and legal premises underpinning” the opinion remained correct.

The case, originally decided May 7, 2007 arose from a series of stories published by the Boston Herald in 2002 that were critical of Massachusetts Superior Court Judge Ernest B. Murphy for “coddling” criminals and “heartlessly demean[ing]” victims. It is one of a number of successful libel suits filed recently by judges against newspapers. (See “Judges Sue Newspapers for Libel” in the Winter 2007 issue of the Silha Bulletin.)

David Yas, publisher of Massachusetts Lawyers Weekly, was quoted in a May 8 Boston Herald story, saying that he hoped the ruling would not “chill” reporting. Massachusetts reporters should continue to aggressively cover judges because they are not elected by the public, he said.

The most controversial statement first appeared in a Feb. 13, 2002 story headlined “Murphy’s Law.” Reporter David Wedge, citing anonymous sources, quoted Murphy as saying of a 14-year-old rape victim, “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.” The sources were later revealed to be prosecutors with second-hand knowledge of Murphy’s alleged statement whom the jury disbelieved “with absolute certainty,” according to the court order denying a rehearing. Murphy actually said “[s]he’s got to get on with her life. She’s got to get over it,” and suggested counseling for the victim, the court found. The ruling said the actual remarks demonstrate Murphy’s compassion for the victim rather than the callous disregard portrayed in the story.

The court further held that Murphy had shown by “clear and convincing” evidence that the statements were published with “actual malice.” Actual malice requires that the reporter, Wedge, knew the statements were false or acted with “reckless disregard” as to their probable falsity. The court relied on a variety of factors in upholding the jury’s finding of actual malice, including Wedge’s willingness to accept second-hand information from anonymous sources, inconsistencies in his testimony, destruction of his notes, and statements he made during a March 7, 2002 appearance on “The O’Reilly Factor.”

The court also noted that Patrick J. Purcell, publisher of the Herald, admitted that he knew the “[t]ell her to get over it” quote would create a media frenzy. “[A] ‘media frenzy’ was, in fact, exactly what the defendants intended,” Justice John M. Greaney wrote in his opinion for the court.

In its petition for rehearing, the Herald alleged that the court had misquoted the testimony of David Crowley, a prosecutor who claimed to have heard Murphy’s controversial statement. Crowley later shared the information with two senior lawyers in the district attorney’s office who became the sources for the Feb. 13, 2002 story.

The Herald argued that the opinion portrayed Crowley’s testimony in a light sympathetic to the judge, when in fact Crowley testified that he believed Murphy’s comments were insensitive. “Thus, when the [r]uling states that the ‘get over it’ comment in the Herald was false because it would lead one to believe that Murphy was ‘indifferent’ and perhaps ‘even callous’ to crime victims, [citation omitted] it errs because indifference is precisely Crowley’s point,” the petition said. The Herald called the factual error “fundamental to the outcome” of the case in its petition, but the court dismissed the mistake, stating the “substantial factual and legal premises underpinning” the decision remain correct.

The newspaper also suggested in the petition that Greaney, the justice who wrote the opinion for the court, was biased against judicial reporters prior to considering the case. He and an appeals court judge wrote an Op-Ed piece for the Herald that appeared on July 16, 1997 suggesting that judicial reporters should take a more careful approach to criticizing judges because of their importance to the criminal justice system.

The opinion piece responded to a then-recent article assailing the leniency of a district judge who had released an accused rapist on $1,000 bail. In it, Greaney also praised the importance of judges as “referees between the government and persons accused.” As a solution, he suggested “[t]he press could start by examining judicial performance with a lens rather than a hand grenade.”

The court rejected the allegation of bias. “This accusation is not unexpected, but it is completely unsupported,” the court wrote in its order denying a rehearing. “It, undoubtedly, will become an argument in the defendants’ petition for certiorari to the Supreme Court of the United States.”

The Herald declined to comment on whether it would appeal to the U.S. Supreme Court in a May 8 Boston Globe article. The Globe reported on June 12 that the Herald had paid Murphy $3.4 million – the $2.01 million judgment plus interest.

Following the court’s ruling in May, Murphy expressed satisfaction with the outcome of the case. “We’re not in a position as judges to really do much when we’re assailed and I think it kind of sent a message . . . that the independence of the judiciary is a very important consideration for any media in connection with any reporting on a judge,” Murphy said in a May 8 Boston Herald story.

Purcell, the Herald publisher, said he continued to stand behind Wedge’s reporting. “We are disappointed with the Supreme Judicial Court’s relentlessly one-sided view of Dave Wedge’s reporting on a public controversy within the judicial system, and are unwavering in our complete confidence in Wedge’s journalistic skills,” he said in the Herald story.

The Associated Press (AP) reported July 10 that the Massachusetts Commission on Judicial Conduct filed ethics charges against Murphy related to settlement talks conducted with the Herald. According to the story, Murphy sent a note, hand-written on court stationery, to Purcell demanding a meeting and a check for $3.4 million. A single page postscript warned Purcell that disclosing the letter would be “a BIG mistake.”

The Herald also filed an ethics complaint. If disciplined, Murphy could face a variety of sanctions including a public or private reprimand, a fine, limitations on his judge’s duties, discipline as an attorney, and retirement.

In a statement quoted by the AP Purcell said, “[i]f the publisher of one of the region’s major newspapers can be threatened by a member of the judiciary in this way, then who is safe?”

Murphy, apparently upset that the Herald published excerpts of the letters, also issued a written statement calling their release by the newspaper “a breach of a personal agreement” between Purcell and him. He called his use of official letterhead an “inadvertent use of judicial stationery in a private, privileged and confidential communication,” the AP reported.

– Michael Schoepf, Silha Research Assistant

According to a press release from the plaintiffs’ lawyers, the suit was brought June 12, 2007 in the U.S. District Court for the Northern District of Illinois in Chicago under 42 U.S.C. § 1983, which allows citizens to sue government officials for violations of their civil rights. The suit names Illinois Supreme Court Chief Justice Robert Thomas along with the six other state Supreme Court justices, three appellate judges and a trial judge who presided over the case.

Thomas sued the Kane County (Ill.) Chronicle and then-columnist Bill Page for libel per se and false light invasion of privacy in March 2004. In a series of columns in 2003, Page wrote that, according to confidential sources, Thomas had been lenient in a disciplinary action against a state’s attorney in return for political favors. Thomas argued that the statements put him in a false light before the public, injured his reputation as an officer of the court and did harm to his chances to be appointed to higher courts or hired at a prestigious law firm.

In the November 2006 trial, Thomas produced state Supreme Court justices and appeals court judges as witnesses on his behalf. None of Page’s confidential sources were called to testify in support of the allegedly defamatory statements. The jury awarded Thomas $7 million in damages, but that figure was dropped to $4 million on appeal. (See “Illinois State Supreme Court Justice Awarded $7 Million Libel Judgment Against Newspaper” in the Winter 2007 issue of the Silha Bulletin for more details.)

The federal case is Shaw Suburban Media Group Inc., et al. v. Chief Justice Robert R. Thomas, et al., No. 07 C 3289, (N. Dist. Ill., 2007). Shaw Suburban Media Group Inc. owns the 14,000 circulation Chronicle. The other judges named in the suit are Supreme Court Justices Charles E. Freeman, Thomas R. Fitzgerald, Thomas L. Kilbride, Rita B. Garman, Lloyd A. Karmeier, and Anne M. Burke. Three First District appellate justices, designated to hear the case when the Second District recused itself, are named: Thomas E. Hoffman, Sheila M. O’Brien, and Robert Cahill, along with Donald O’Brien, the trial judge.

Plaintiffs Shaw Inc. and Page, according to their complaint, are asking the federal district court to “permanently enjoin the judiciary of Illinois from taking any further action in the state defamation case (including consideration of the appeal or enforcement of the judgment) until Chief Justice Thomas and all the non-party justices are no longer serving as Illinois state court judges.” The complaint also asks the court to throw out the libel verdict and its $4 million award of damages, and to stay the 9 percent daily interest that is accruing on the award while the newspaper appeals.

The underlying suit is one of several cases in recent years that have gained national attention because they involve judges suing media organizations. In 2006 and 2007, high court judges in separate cases in Massachusetts and Pennsylvania were both handed libel awards in the millions of dollars. (See “Judges Sue Newspapers for Libel” in the Winter 2007 issue of the Silha Bulletin for more on these stories). A June 26, 2007 article in The New York Times cited a Media Law Resource Center survey showing that libel suits filed by judicial officers represented fewer than 1 percent of all such suits in 1998. In 2005, according to the survey, they represented 6 percent. The New York Times said these data demonstrate a “real enough” trend in judges suing the media who cover their courts.

Despite the apparent trend, the argument put forward by the plaintiffs Shaw Inc. and Page is unusual, according to some commentators and the attorney representing them.

Stephen Gillers, a law professor and expert in legal ethics at New York University, told the Chicago Tribune that he had never heard of a case in which a plaintiff tried to avoid the appellate process by suing the appeal system.

“One way of looking at it is to say that this is a desperation move on the part of the newspaper and Mr. Page,” Gillers said. “But another way is they have no alternative for protecting what they allege is ... fundamental constitutional rights that are being violated every day the case remains in court.”

In the 50-page complaint filed with the court, Bruce W. Sanford, a media law attorney from Washington, D.C. who is representing the plaintiffs, underlined the unique significance of the case.

“In a broader sense, the complaint is precedent-setting because this suit is the first in the nation to challenge the fairness of a personal lawsuit brought by a judge controlling a state court system,” wrote Sanford.

Joseph A. Power Jr., a personal injury attorney who represented Chief Justice Thomas, called the suit “frivolous” and an “abuse of process” in an article appearing in the Chicago Tribune on June 13.

“I don’t think the losing of a case constitutes a violation of one’s civil rights,” Power said.

Power said the state’s attorney general’s office will be defending the judges in the federal suit.

The suit asks the court to rule that the case may only be retried once Thomas is a private citizen. According to the Chicago Tribune, Thomas’ court term expires in 2010, but he could seek retention for another 10-year term. Supreme Court justices in Illinois are elected from their judicial districts. The other justices named in the suit have served on the court a shorter time and could still be in place beyond 2020.

U.S. District Judge Blanche M. Manning of the Northern District of Illinois was assigned the federal case, but according to the Chicago Tribune, Manning recused herself on June 15.

Manning said that she had served on the state appeals court with three of the judges named in the suit.

“Given the complainant’s allegations of judicial collusion, it is possible that these prior relationships could cause a reasonable person to question the court’s impartiality,” wrote Manning in the June 15 order.

Sanford praised the judge’s decision, according to the Chicago Tribune, saying the case is about public confidence in a fair system.

“She got the message,” he said.

– Patrick File, Silha Fellow and Bulletin Editor

DoD Directive 5122.5

DoD Directive 5122.5 requires that embedded photographers and reporters obtain “prior written consent” to include “[n]ames, video, identifiable written/oral descriptions or identifiable photographs” of wounded soldiers in their reports. The DoD added the language last year to an agreement journalists must sign before they are embedded with U.S. troops in Iraq. The agreement also prohibits release of any image depicting a dead soldier. The new version of the directive dated May 5, 2006 is available at http://www.iraqslogger.com/downloads/mnf_i_media_ground_rules5may06_1.pdf.

Military spokeswoman Lt. Col. Josslyn L. Aberle told David Carr of The New York Times that the new restrictions arose from a desire to increase privacy for military personnel and their families, not to curtail the flow of negative war images back to the states. Carr wrote about the new restrictions in his “Media Equation” column published May 28, 2007.

“The last thing that we want to do is to contribute to the grief and the anguish of the family members,” Aberle said. “We don’t want the last image that the family has of their soldier to be a photo of him dying on a battlefield. You have to ask how much value is added.”

But some journalists say that the requirement of prior consent functions as a complete ban on depictions of wounded service members.

“They are basically asking me to stand in front of a unit before I go out with them and say that in the event that they are wounded, I would like their consent,” veteran photographer Ashley Gilbertson said in The Times column. “We are already viewed by some as bloodsucking vultures, and making that kind of announcement would make you an immediate bad luck charm.”

Gilbertson also told The Times that the ban seems more like a political effort to hide “the reality of war” from the public than a humanitarian effort to protect soldiers and their families. Prior to the change in Directive 5122.5, images of a wounded soldier could be released only after the soldier’s family had been informed of the incident.

In a May 29, 2007 posting on the “Public Eye” blog at cbsnews.com, Brian Montopoli argued that the public’s right to information should be balanced against the soldier’s right to privacy. But even if the new policy is justified, it makes the job of an embedded journalist more difficult.

“Journalists have a responsibility to be sensitive to the privacy and personal concerns of soldiers and their families, but they have an obligation to tell the story of a war that has become increasingly difficult to cover. The military’s guidelines limit journalists’ ability to weigh these two considerations on a case by case basis, making it harder for them to generate the kinds of powerful and enduring images that can become icons of a conflict” Montopoli wrote. The posting is available at http://www.cbsnews.com/blogs/2007/05/29/publiceye/entry2863489.shtml.

The tighter regulations for embedded journalists comes at a time when their numbers are steadily decreasing. Carr reported in the May 28 column that there were 92 embedded journalists in Iraq in May 2007, compared with 126 the previous month.

New Iraqi government regulation

On May 13, 2007 the Iraqi government banned photographers and reporters from bombing scenes for a one-hour period following explosions.

Iraqi officials say the ban is necessary to preserve evidence at bomb sites, but journalists worry that the ban is an attempt to prevent dissemination of violent images around the world.

“We do not want evidence to be disturbed before the arrival of detectives, the [I]nterior [M]inistry must respect human rights and does not want to expose victims and does not want to give terrorists information that they achieved their goals,” said Brig. Gen. Abdel Karim Khalaf, the director of Iraq’s Interior Ministry, according to a May 14 Agence France-Presse report. “The decision does not imply a curtailment of press freedom, it is a measure followed all over the world.” The report does not indicate whether Khalaf substantiated his claim that similar practices occur “all over the world.”

Reporters sans Frontieres (RSF or Reporters Without Borders), an international free-press advocacy group, said in a May 16 statement that the increasing restrictions imposed by the Iraqi authorities would eventually lead to a complete press blackout.

“It is vital that journalists can report on the security situation throughout the country without it being seen as incitement to violence. When the streets become impassable and the authorities provide no information about the attacks in real time, the role of the reporter becomes essential. Coverage of these attacks allows people to evaluate the security risk and to avoid dangerous areas,” RSF said in the statement.

Photo District News (PDN) reported May 16 that the ban may be related to Iraqi government suspicions that journalists have advance knowledge of bomb attacks. According to the PDN story, photographs of bomb sites are one reason photojournalist Bilal Hussein has been detained by the U.S. military for more than a year. (See “CPJ Urges Defense Department to Release or Charge” in the Winter 2007 issue of the Silha Bulletin.)

Iraqi police enforced the ban on May 15 after a bomb in Baghdad’s Tayaran Square killed seven people and wounded an additional 17. The Associated Press reported in a story printed in the International Herald Tribune that the police officers fired warning shots into the air to disperse reporters and photographers who arrived to cover the incident.

The ban, along with the unusual enforcement method, prompted the Committee to Protect Journalists (CPJ) to issue a protest letter addressed to Prime Minister Nouri Kamal al-Maliki on May 21.

“While we recognize security concerns at scenes of violence, the Interior Ministry’s ban appears to be an attempt to limit press coverage of unwelcome news. Journalists, not governments, should determine whether a story is too dangerous to cover. The ministry’s assertion that perpetrators rely on the media for confirmation of an attack is not supported by any factual evidence and, in any case, is no justification for obstructing the news reporting. Neither does the Interior Ministry offer any evidence supporting its insinuation that journalists tamper with evidence at crime scenes,” Joel Simon, CPJ executive director, wrote in the letter.

– Michael Schoepf, Silha Research Assistant

In Bd. of Trustees, Cut Bank Public Schools v. Cut Bank Pioneer Press, 160 P.3d 482 (Mont. 2007), a unanimous court held that the Cut Bank Pioneer Press had a “personal interest” in the records that reached beyond the common interest of all citizens, and that neither federal law nor the state constitution prevented disclosure of the records.

“This ruling is a victory for the public’s right to examine what government agencies are doing in its name,” said Jim Clarke, the Associated Press (AP) bureau chief for Montana, in a May 9 AP story. “It helps roll back a dark trend toward secrecy in government.”

According to the state Supreme Court’s opinion, on Sept. 25, 2005 the School District’s Board of Trustees closed a portion of its public meeting to determine the appropriate discipline for two students found shooting other students with plastic BBs on school property. LeAnne Kavanagh, an editor at the Cut Bank Pioneer Press, asked for records describing the board’s disciplinary action. She specifically requested that the disciplined students be identified only by a number and not by name. On the advice of its attorney, the board refused and instead filed a petition in state District Court for the Ninth Judicial District asking for an in camera inspection of the records and a ruling as to whether they should be disclosed.

The newspaper filed a petition in the same court seeking records outlining the disciplinary action taken by the board. In a combined hearing on both petitions, the district court concluded that the federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232(g) (2006), applied to the student records and prevented the board from releasing them without the consent of the students and their parents. The FERPA conditions the receipt of federal funding by state educational institutions on the availability of student “education records” to parents, and the withholding of those records from most other people or institutions.

While the newspaper’s appeal was pending, the Montana Supreme Court decided Fleenor v. Darby School District, 2006 MT 31, 128 P.3d 1048 (Mont. Sup. Ct. 2006). In Fleenor, the court held that a resident suing to enforce her right to participate in the hiring of a new school superintendent lacked standing because she failed to allege an actual or threatened injury. “While the allegation of membership within the school district is a good start toward establishing standing, it is not, on its own, enough,” the court held.

News organizations responded with concern that the ruling would leave them unable to enforce article II, sections 8 and 9 of the Montana Constitution, which guarantee citizen access to government meetings and records. “The problem with this is that it appears to let officials who flaunt [sic] open meeting requirements off the hook big time,” argued a March 9, 2006 editorial in the Helena Independent Record.

Relying on Fleenor, the Cut Bank School Board asserted for the first time on appeal that the Cut Bank Pioneer Press lacked standing. The board argued that the paper could not show an injury distinguishable from the injury to the general public. But the Montana Supreme Court disagreed. “The interest was personal to [the Cut Bank Pioneer Press] because the records were necessary for [the newspaper’s] work,” the court held. “[The Cut Bank Pioneer Press] clearly stated an interest in the redacted student disciplinary records which extended beyond the ‘common interest of all citizens.’” The court agreed with amici – the Montana Newspaper Association, Montana Broadcasters Association, and The Associated Press – the board had prevented the Pioneer Press from “doing its job” and that constituted a specific injury for the purposes of standing.

In a separate concurrence, Justice James C. Nelson further clarified the Fleenor holding. “While denominated as standing problem, Fleenor, more accurately, involved a pleading problem. Fleenor’s complaint and amended complaint were so poorly drafted that she failed to allege any personal injury or stake in the litigation – the fundamental requirement to begin any lawsuit,” he wrote. Justice Patricia Cotter, the author of the Fleenor decision, joined in the concurrence.

Moving to the statutory issue, the court ruled that the FERPA does not protect the Cut Bank School District’s disciplinary records because they are not “education records” within the meaning of the statute. Education records are those that (1) directly relate to a student, and (2) are maintained by the educational institution. The Cut Bank Pioneer Press asked for records with the names redacted or replaced by numbers that do not identify the students. Since the records would not personally identify any student, they do not directly relate to any student and are not protected as “education records” by the FERPA, the court held.

Turning finally to the Montana Constitution, the court examined article II, section 9. Section 9 limits the right to inspect public documents “in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” The court held that even if the students or their parents had a subjective expectation of privacy, it is not one the public is willing to recognize as reasonable because the records do not disclose the identity of the students. The privacy interest does not outweigh “the merits of public disclosure.”

“This ruling is significant for Montana citizens who care about open government,” Mike Meloy, an attorney for the Cut Bank Pioneer Press said in a May 16 Pioneer Press story. “First, it affirms the proposition that people who disseminate news have standing to challenge government secrecy in court. Second, the court rejected the recent trends of school boards to close meetings and documents for frivolous reasons . . .. The Cut Bank Pioneer Press should be commended for pursuing the case. It vindicated constitutional rights for all Montana citizens.”

Despite losing the case, Cut Bank Superintendent of Schools Wade Johnson expressed satisfaction with the continuing relationship between the schools and the newspaper. “The legal advice we received did not work out as planned, but we are thankful that the relationship between the Cut Bank Schools and the Cut Bank Pioneer Press has remained positive throughout the process,” he said in a May 16 Pioneer Press story.

According to The Guardian of London, the Freedom of Information (Amendment) Bill, which passed the House of Commons May 18 and now sits in the House of Lords, would make the spending records and communications of Members of Parliament (MPs) confidential and inaccessible to the public.

The bill was introduced by Conservative MP David Maclean, a chief Tory whip from Scotland, in April 2007. According to The Guardian, because Maclean is a “backbencher,” and not a party leader, the success of his bill so far is unusual. The (London) Times reported that Maclean first introduced the measure on the premise that it would protect the privacy of MPs’ constituents in their communications with their representatives.

According to The Times, The Campaign for Freedom of Information called the broad exemption “unnecessary,” since letters between MPs and constituents are already protected by two separate exemptions under the current Freedom of Information Act 2000: one for “disclosures which infringe the Data Protection Act” and another for “those constituting a breach of confidence.” According to its Web site at http://www.cfoi.org.uk/, The Campaign for Freedom of Information is a non-partisan, non-profit group “working to improve public access to official information and ensure that the Freedom of Information Act is implemented effectively.”

When the bill was first introduced in the House of Commons in April, it received intense criticism from the British press. The bill was not expected to pass the House of Commons because it was unpopular with the British public and highly controversial among MPs.

According to the rules of Parliament, a bill must be brought to the House of Commons for three “readings” before it can be voted on. In addition to the MP introducing it, a bill needs a co-sponsor to be eligible for a vote. When the Freedom of Information (Amendment) Bill was brought to the house for its “first reading,” no one agreed to co-sponsor it. However, according to The Birmingham Post, the bill received adequate sponsorship when it was reintroduced eight days later for its “second reading,” and when the “third reading” of the bill took place in the House of Commons on May 18, the measure passed by a broad majority of 71 votes.

The day after the House of Commons approved the measure, Labour Party MP David Winnick told The Guardian, “[The bill] will be the height of hypocrisy if Parliament, having passed the freedom of information legislation, decided that we should be exempt from it.”

Opponents of the bill tried to block it before the final vote in the House of Commons by “talking it out,” a practice similar to that of the filibuster used in the U.S. Congress. If opponents had been able to keep the vote from being made before 2:30 p.m., May 18, the measure would have been ineligible for a vote, according to The Birmingham Post. The Post reported that MPs working to block the bill brought up everything from petitions from their constituents about building noise to a bucket placed in the Commons building hallways, which was called a “substantial trip hazard” by Liberal Democrat David Heath. During his speech on the topic, Heath called for an investigation into the matter of the bucket.

Despite these efforts, Maclean and other proponents of the exemption bill managed to stop the delaying tactics by demanding a vote according to established rules of order. The Birmingham Post reported that, during the debate on the bill itself, “arguments in the House of Commons were heated and intense.” Maclean accused his opponents of “going all out” to destroy his bill, and when Constitutional Affairs Minister Bridget Prentice announced that the government’s position with regard to the bill was neutral, the response in the House of Commons was a wave of derisive laughter, according to The Post.

Reports in numerous British media including The Guardian, The Times, and The Birmingham Post reflected a widespread suspicion that Maclean has had covert help from the government in passing the exemption. The Birmingham Post reported that many MPs had chosen to support it out of fear that if they did not, they would be “forced to reveal details about mortgages on London homes which in some cases are subsidised by the taxpayer.” According to The Post, the majority vote in the House of Commons suggests that most MPs would rather not be exposed to scrutiny over how they spend public money. Matthew Elliott, chief executive of the Taxpayers’ Alliance, a grassroots organization which opposes tax increases, told The Guardian that the bill’s passage showed that Parliament members “don’t think taxpayers have a right to know how their hard-earned money is spent, and in some cases wasted.”

MPs opposing the measure have been outspoken. According to The Birmingham Post, MP Winnick stated at the final vote on the bill that there have been no complaints about the release of private information about MPs or their constituents. Tory MP Richard Shepherd concurred, calling the bill “dreadful” and stating that if it was really meant to protect correspondence, the bill was not necessary. Labour MP Mark Fisher said after the vote, “it is inevitable that [the exemption bill] would bring this House into complete contempt and into the ridicule of the public.” According to The Guardian, Liberal Democrat MP Simon Hughes commented after the vote that “this has been a shameful day for the House of Commons. MPs should set an example of open government, not apply it to everybody but ourselves.” The Guardian reported that Hughes appealed to the House of Lords to “deliver us from this terrible mistake.”

A group of British Non-Governmental Organizations (NGOs) that support freedom of expression worldwide, including English PEN, Index on Censorship, and Article 19,