A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2020

A Message from the Director

The Silha Center for the Study of Media Ethics and Law has produced a special report and analysis of media law issues arising from the extraordinary assault on the U.S. Capitol in Washington, D.C. on Jan. 6, 2021. We recount attacks on and detention of working journalists, discuss the First Amendment implications of social media platforms’ decisions to ban President Donald Trump, and consider whether statements by President Trump calling on his supporters to march to the Capitol violate federal laws against incitement to violence, rioting, or advocating overthrow of the government — extremely serious offenses that must meet a high bar prior to prosecution. Future issues of the Bulletin will continue covering these and related events. I would like to thank Postdoctoral Associate and former Bulletin editor Scott Memmel, as well as Program Assistant Elaine Hargrove, for their quick work in preparing this special report.

Jane E. Kirtley, Director Silha Center for the Study of Media Ethics and Law

Events Surrounding the U.S. Capitol Insurrection Raise Significant Media Law Issues and Questions n Jan. 6, 2021, President Donald Trump spoke at stole laptops, correspondence and personal items from the “March to Save America” rally in Washington, offices, forcing the emergency evacuation of lawmakers and D.C. The rally was held to protest Congress’ staff.” imminent certification of the 2020 Electoral Additionally, at least five individuals died as a result of the College results, in which President-elect Joe Capitol attack, including U.S. Capitol Police (USCP) officer OBiden and Vice President-elect Kamala Harris were elected as Brian D. Sicknick. CNN reported on Jan. 7, 2021 that Sicknick the next president and vice president of the United States. In “was injured while physically engaging with the rioters and his speech, President Trump urged his supporters to march collapsed after returning to his division office.” According to the U.S. Capitol building (Capitol) to protest the Electoral to a USCP statement, Sicknick “was taken to a local hospital College vote count. where he succumbed to his injuries.” The statement added, Later the same day, protests around the Capitol erupted “The entire USCP Department expresses its deepest into chaos as hundreds of President Trump’s supporters sympathies to Officer Sicknick’s family and friends on their forced their way into the Capitol. The insurrectionists, as loss, and mourns the loss of a friend and colleague.” CNN they were referred to by several media outlets around the also noted that several additional USCP officers were injured United States, caused significant property damage and during the Capitol attack. forced members of Congress — who were set to confirm the Air Force veteran Ashli Babbitt was fatally shot by a election results despite opposition from some Republican “sworn USCP employee” as rioters sought to enter the U.S. representatives and senators — to retreat to safety elsewhere House of Representatives Chamber where members of in the Capitol. The Washington Post described in a Jan. Congress were sheltering in place, according to a January 7 8, 2021 article how “[m]embers of the mob scaled walls, USCP press release. The press release read, “As protesters smashed doors and windows, vandalized works of art, and Insurrection, continued on page 3 Inside This Issue Fall 2020: Volume 26, No. 1

1 Events Surrounding the U.S. Capitol Insurrection Raise 31 National and Local News Outlets Face and Address Ethical Significant Media Law Issues and Questions Questions and Dilemmas

Cover Story Ethics

10 Ongoing Protests and Confrontations Between the Press 36 Courts Reject Efforts to Block or Impede Publication of and Police Prompt Legal Action, Ethical Debates, and Media Books about President Donald Trump Advocacy Prior Restraint Protests 41 Developments in Two Defamation Lawsuits Against 18 Court Access and Medical Privacy Issues Arise in Wake of Minnesota News Media George Floyd Killing Defamation Access 45 Courts Rule on Defamation Lawsuits Against The New York 22 Justice Ginsburg Passes Away; Authored and Joined Key Times, Fox News, President Donald Trump First and Fourth Amendment Majority and Dissenting Defamation Opinions Supreme Court 51 Ninth Circuit Rules NSA Surveillance Program Violated FISA and Potentially Fourth Amendment 25 Associate Justice Amy Coney Barrett Has "Relatively Light" Privacy Record on First Amendment and Press Law, Legal Experts Say 53 35th Annual Silha Lecture Addresses the Importance of Supreme Court Documentaries and the Need for U.S. Law to Protect Them Silha Center Events 27 Misinformation Concerns Precede and Follow Presidential Election Misinformation

Silha Center Staff

Jane E. Kirtley Silha Center Director and Silha Professor of Media Ethics and Law

Jonathan Anderson Scott Memmel Silha Bulletin Editor Postdoctoral Associate

Sarah Wiley Elaine Hargrove Silha Research Assistant Silha Center Staff

2 Insurrection, continued from page 1 and reporters, as characterized by The Washington Post on May 12. President Trump also tweeted on May 15, 2020, were forcing their way toward the House Chamber where “FAKE NEWS IS NOT ESSENTIAL,” quoting a Commack, Members of Congress were sheltering in place, a sworn USCP N.Y. protester filmed by News 12 Long Island reporter Kevin employee discharged their service weapon, striking an adult Vesey during a demonstration criticizing the exemption for female. Medical assistance was rendered immediately, and journalists from New York’s “stay-at-home” order. (For more the female was transported to the hospital where she later information on President Trump’s anti-press rhetoric amidst succumbed to her injuries.” The full press release is available the COVID-19 pandemic, see “Special Report: COVID-19 online at: https://www.uscp.gov/media-center/press-releases/ Pandemic Raises Media Law and Ethics Issues, Challenges, statement-steven-sund-chief-police. and Opportunities” in the Winter/Spring 2020 issue of the Silha Three additional individuals at the protests died of Bulletin.) “medical emergencies,” as reported by CNN. Metropolitan Observers have argued that President Trump’s anti-press Police Department (MPD) Chief Robert Contee told CNN rhetoric has led to violence against journalists. For example, that “[o]ne adult female and two adult males appear to have on Feb. 11, 2019, BBC cameraman Ron Skeans was attacked suffered from separate medical emergencies, which resulted at a rally for President Trump in El Paso, Texas. The BBC in their deaths.” He added, “Any loss of life in the District is reported the next day that Skeans was unharmed, despite the tragic and our thoughts are with anyone “incredibly violent attack,” which BBC Washington producer impacted by their loss.” Eleanor Montague suggested was prompted by the president’s COVER STORY Several important First Amendment references to “fake news” and how the media misrepresented and media law issues and questions him in his remarks prior to the assault. (For more information came to the forefront during the course of the Capitol attack. on the attack of Skeans, see BBC Cameraman Attacked at First, President Trump’s speech at the January 6 “March to Trump Rally in El Paso in “Journalists in the U.S. and Abroad Save America” rally included multiple instances of anti-press Continue to Face Violence and Imprisonment; U.S. Court rhetoric, continuing a trend from throughout his presidency. Holds Syria Liable for Role in Journalist’s 2012 Death” in the First Amendment experts also debated whether the speech Winter/Spring 2019 issue of the Silha Bulletin.) constituted “incitement” of violence, a category of speech that (For more information on President Trump’s anti-press would not receive First Amendment protection under U.S. rhetoric and actions more generally, see “Special Report: Supreme Court precedent. COVID-19 Pandemic Raises Media Law and Ethics Issues, Second, during the attack on the Capitol and surrounding Challenges, and Opportunities” in the Winter/Spring 2020 protests, journalists faced arrests by law enforcement, as issue of the Silha Bulletin, “Federal Judge Orders White well as violence, threats, and equipment damage by President House to Reinstate Reporter’s Press Credential” in the Fall Trump’s supporters. Press advocacy organizations denounced 2019 issue, “White House Revokes and Suspends Hard the attacks on the news media, citing President Trump’s anti- Press Passes Under New Rules” in the Summer 2019 issue, press rhetoric as a contributing factor. “President Trump Continues Anti-Press Rhetoric and Actions” Also on January 6, Twitter and Facebook, among other and “Journalists in the United States and Abroad Face Threats social media platforms, temporarily suspended President of Violence and Incarceration” in the Fall 2018 issue, Five Trump’s accounts, citing posts that violated their rules and Newspaper Staff Members Killed, Two Injured in Shooting guidelines against inciting or promoting violence and/or at Local Maryland Newsroom in “Journalists Face Physical spreading misinformation. Within two days, Twitter had Violence, Other Dangers in the United States and Abroad,” permanently banned President Trump from the platform, and Federal Prosecutors Seize Phone and Email Records of while Facebook extended the suspension of his account New York Times Reporter in Leak Investigation in “Trump through at least the end of his term as president. The moves Administration Targets Journalist, Leaker of Government promoted praise from some observers, though several Information, and Former Government Employees Who Took noted that the actions came too late. Other observers raised Classified Documents,” in the Summer 2018 issue, “Reporters concerns about the precedent set by social media companies and Leakers of Classified Documents Targeted by President in suspending or banning President Trump from their Trump and the DOJ” in the Summer 2017 issue, “Media Face platforms. Several Challenges During President Trump’s First Months in Office” in the Winter/Spring 2017 issue, and “2016 Presidential President Trump Continues Anti-Press Rhetoric; Some Candidates Present Challenges for Free Expression” in the View His Speech as Incitement Summer 2016 issue.) On Jan. 6, 2021, President Donald Trump spoke at the In multiple instances throughout his Jan. 6, 2021 speech, “March to Save America” rally at the Ellipse in President’s President Trump referred to the press as the “fake news Park located in Washington, D.C. The rally, which was based media.” He began his remarks by suggesting that the media on President Trump’s statement, “We will never concede [the would “not show the magnitude of th[e] crowd” attending the 2020 Presidential Election],” included several instances of rally and added, “The media is the biggest problem we have as anti-press rhetoric, continuing a trend throughout President far as I’m concerned, single biggest problem.” Trump’s tenure in the White House. President Trump later argued, as he had falsely repeated As a candidate and as president, Trump repeatedly since the 2020 election, that the “election victory stolen by verbally attacked the news media, including frequently emboldened radical left Democrats, which is what they’re referring to journalists and news outlets as the “fake news doing and stolen by the fake news media.” He added, “That’s media” and “enemies of the people.” Furthermore, during the what they’ve done and what they’re doing. We will never give COVID-19 pandemic, President Trump’s daily press briefings included “tense back-and-forth[s]” between the president Insurrection, continued on page 4 3 Insurrection, continued from page 3 violence. For example, The New York imprudent, rash, offensive, and Times Editorial Board argued in a even repugnant,” it would be “more up. We will never concede, it doesn’t January 6 editorial, titled “Trump Is difficult to determine whether Trump’s happen. You don’t concede when there’s to Blame for Capitol Attack,” that comments constitute incitement to theft involved.” President Trump had “incited his imminent lawless action.” Sixteen minutes into his speech, followers to violence.” The piece He cited Brandenburg v. Ohio, President Trump attacked the news added, “President Trump and his 395 U.S. 444 (1969), in which the media once more. “Our media is not Republican enablers in Congress U.S. Supreme Court established the free. It’s not fair,” he said. “It suppresses incited a violent attack Wednesday “incitement test,” which includes two thought. It suppresses speech, and it’s against the government they lead and steps for speech to fall under this become the enemy of the people. It’s the nation they profess to love. This category of unprotected speech. First, become the enemy of the people. It’s the cannot be allowed to stand. Mr. Trump’s the speech needs to be “directed to biggest problem we have in this country. seditious rhetoric prompted a mob of inciting or producing imminent lawless No third world countries would even thousands of people to storm the U.S. action.” Second, the speech must be attempt to do what we caught them Capitol building[.]” The full editorial is “likely to incite or produce such action.” doing and you’ll hear about that in just available online at: https://www.nytimes. Hudson also cited Hess v. Indiana, a few minutes.” Later, President Trump com/2021/01/06/opinion/trump-capitol- 414 U.S. 105 (1973), in which the Court added, “No, we have a corrupt media. dc-protests.html. clarified that for speech to constitute They’ve gone silent. They’ve gone dead.” Similarly, The Washington Post incitement, it must advocate for illegal The full transcript of President Editorial Board published an opinion action immediately to take place. Trump’s speech is available online at: piece titled, “Trump caused the Hudson also cited Nwanguma v. https://www.rev.com/blog/transcripts/ assault on the Capitol. He must be Trump, 903 F.3d 604 (6th Cir. 2018), donald-trump-speech-save-america- removed.” In the piece, the Post wrote, in which the U.S. Court of Appeals rally-transcript-january-6. “Responsibility for this act of sedition for the Sixth Circuit held that then- In his speech, President Trump also lies squarely with the president, who Republican presidential candidate included calls to action geared towards has shown that his continued tenure Trump did not “incite a riot” when he his supporters. At one point, he said, in office poses a grave threat to U.S. called for security to remove protestors “We’re going to have to fight much democracy.. . . The president is unfit to at a March 2016 rally, which led to an harder and Mike Pence is going to have remain in office for the next 14 days.. altercation between the protesters to come through for us. If he doesn’t, . . Every second he retains the vast and some of Trump’s supporters.” that will be a sad day for our country powers of the presidency is a threat to The Sixth Circuit held that the United because you’re sworn to uphold our public order and national security.” The States has “chosen to protect unrefined, constitution. Now it is up to Congress full piece is available online at: https:// disagreeable, and even hurtful speech to confront this egregious assault on www.washingtonpost.com/opinions/ to ensure that we do not stifle public our democracy. After this, we’re going remove-trump-incitement-sedition-25th- debate.” to walk down and I’ll be there with you. amendment/2021/01/06/b22c6ad4-506d- The court added that the case We’re going to walk down. We’re going 11eb-b96e-0e54447b23a1_story.html. law derived from the Brandenburg to walk down any one you want, but I On January 7, The Guardian posted test “makes clear . . . that, even think right here. We’re going walk down “a timeline of Trump's inflammatory if plaintiffs’ allegations could be to the Capitol, and we’re going to cheer rhetoric before the Capitol riot,” calling deemed to make out a plausible on our brave senators, and congressmen the rhetoric “incitement.” The full claim for incitement to riot under and women. We’re probably not going timeline is available online at: https:// Kentucky law, the First Amendment to be cheering so much for some of www.theguardian.com/us-news/2021/ would not permit prosecution of them because you’ll never take back jan/07/trump-incitement-inflammatory- the claim.. . . [The] speaker’s intent our country with weakness. You have rhetoric-capitol-riot. to encourage violence . . . and the to show strength, and you have to be First Amendment and media law tendency of his statement to result in strong.” experts debated whether President violence . . . are not enough to forfeit At the end of his speech, President Trump’s comments led to the ensuing First Amendment protection unless the Trump told those at the rally, violence and storming of the Capitol, words used specifically advocated the “[W]e’re going to, we’re going to walk thereby constituting “incitement,” use of violence, whether explicitly or down Pennsylvania Avenue, I love “incitement to riot,” and/or “incitement implicitly.” (For more information on Pennsylvania Avenue, and we’re going to insurrection.” Nwanguma v. Trump, see Sixth Circuit to the Capitol and we’re going to try and On Jan. 8, 2021, David L. Hudson, Holds that Presidential Candidate give” before trailing off and stating, “The Jr., an assistant professor of law at Trump Did Not Incite a Riot at 2016 Democrats are hopeless.” President Belmont University, wrote a piece for Rally in “President Trump Prevails in Trump repeated, “So let’s walk down First Amendment Watch, an online Two Federal Courts’ First Amendment Pennsylvania Avenue. I want to thank news and educational resource based Rulings, Faces New First Amendment you all.” at New York University (NYU), in which Lawsuit” in the Fall 2018 issue of the Following President Trump’s speech he grappled with the question: “Does Silha Bulletin.) and the ensuing protests and storming the First Amendment Protect Trump Hudson quoted several First of the U.S. Capitol building (Capitol), on Incitement to Riot?” Hudson argued Amendment experts, including some some news outlets contended that that although there was “no doubt that who argued that President Trump’s Jan. President Trump had incited the Trump’s speech was inappropriate, 6, 2021 remarks constituted incitement 4 and other experts who argued that they “[w]hoever, with intent that another therein, by force or violence, or by the did not. person engage in conduct constituting assassination of any officer of any such Kevin Francis O’Neill, a law professor a felony that has as an element the government . . . [s]hall be fined under at Cleveland Marshall College of Law, use, attempted use, or threatened use this title or imprisoned not more than contended that “Trump’s remarks were of physical force against property twenty years, or both, and shall be an incitement within the unprotected or against the person of another in ineligible for employment by the United boundaries of Brandenburg — because violation of the laws of the United States or any department or agency he dispatched his followers directly States . . . shall be imprisoned not more thereof, for the five years next following and immediately to the Capitol, and he than one-half the maximum term of his conviction.” did so for a specific unlawful purpose: imprisonment or . . . fined not more The statute includes the same to interrupt the counting of electoral than one-half of the maximum fine penalties for an individual who has votes” (emphasis in original). “intent to cause Conversely, Clay Calvert, a media law “Like members of Congress, their staffs the overthrow or professor and director of the Marion and others who work in the Capitol destruction of any B. Brechner First Amendment Project such government, at the University of Florida, contended complex, these reporters work daily in prints, publishes, that it would be difficult to establish those buildings, and an assault on the edits, issues, incitement under the Brandenburg-Hess Capitol is an assault on them, too.. . . circulates, sells, framework. He told Hudson, “Focusing distributes,” only on Trump’s rally speech, proving We are deeply disturbed at the attacks, as well as who the intent element — the requirement threats and rhetoric that we saw “organizes or that the words Trump used were targeting reporters yesterday.” helps or attempts directed to cause imminent violence — to organize any society, group, would be the toughest hurdle.” Calvert — Bruce Brown, noted that Trump “never explicitly or assembly of Reporters Committee for Freedom of the Press called for violence during his rally, persons who executive director never used a command like ‘go down teach, advocate, there and attack them.’” or encourage Calvert added, “It would be a very the overthrow or tough case — there’s a difference prescribed for the punishment of the destruction of any such government by between heated political rhetoric and crime solicited, or both[.]” The provision force or violence; or becomes or is a actually directing one’s followers to states that “if the crime solicited is member of, or affiliates with, any such commit violence.. . . Trump sent them punishable by life imprisonment or society, group, or assembly of persons, off down the street, for sure, with his death, shall be imprisoned for not more knowing the purposes thereof.” The full words, but did he send them off to than twenty years.” text of the statute is available online at: commit violence? That’s the trickier part 18 U.S.C. § 2101 specifically governs https://www.law.cornell.edu/uscode/ to prove.” “Riots” and provides, in part, that text/18/2385. In a Jan. 8, 2021 piece for The “[w]hoever travels in interstate or On Jan. 13, 2021, the U.S. House Washington Post, former federal foreign commerce . . with intent to of Representatives voted to impeach prosecutor Randall Eliason contended (1) to incite a riot; or (2) to organize, President Trump for incitement of that “[w]e want to avoid the risk of promote, encourage, participate in, or insurrection, marking the first time in criminalizing political differences. But carry on a riot; or (3) to commit any act American history that a president was that understanding has nothing to do of violence in furtherance of a riot; or impeached twice. As the Bulletin went with what happened at the Capitol. (4) to aid or abet any person in inciting to press, the U.S. Senate had not voted It’s impossible to characterize Trump’s or participating in or carrying on a riot to convict President Trump. incitement of the riot as having anything or committing any act of violence in to do with the legitimate exercise of his furtherance of a riot . . . Shall be fined Journalists Face Arrests, Violence executive power — just the opposite.” under this title, or imprisoned not more During Capitol Chaos Eliason contended that President than five years, or both.” The full text During the course of the Jan. 6, Trump may have violated several federal of the statute is available online at: 2021 protests and storming of the laws, including 18 U.S.C. § 2383, which https://www.law.cornell.edu/uscode/ U.S. Capitol building (Capitol), two governs “Rebellion and insurrection.” text/18/2101. Washington Post photojournalists, The statute provides that “[w]hoever Finally, 18 U.S.C. § 2385, titled as well as a freelance journalist, incites, sets on foot, assists, or engages “Advocating overthrow of Government,” were detained by law enforcement. in any rebellion or insurrection against provides, in part, that “[w]hoever Additionally, members of the press the authority of the United States or the knowingly or willfully advocates, were subjected to violence, threats, and laws thereof, or gives aid or comfort abets, advises, or teaches the duty, equipment damage by President Donald thereto, shall be fined under this title or necessity, desirability, or propriety Trump’s supporters in Washington, imprisoned not more than ten years, or of overthrowing or destroying the D.C. and around the United States, both; and shall be incapable of holding government of the United States or prompting some observers to argue that any office under the United States.” the government of any State, Territory, the violence was a result of President Also potentially relevant is District or Possession thereof, or the Donald Trump’s anti-press rhetoric. 18 U.S.C. § 373, which provides that government of any political subdivision Insurrection, continued on page 6 5 Insurrection, continued from page 5 spokesperson declined to comment on he wasn’t injured.. . . [Minchillo] was the case and wrote, “When we detain labeled as an [anti-protester], even On January 8, the U.S. Press Freedom any reporters, it’s to maintain order and though he kept flashing his press Tracker (Tracker), a database of press safety.” credentials, and one person can be freedom violations in the United States According to the U.S. Press Freedom heard threatening to kill him. This is an and around the world managed by Tracker, independent journalist Talia unedited, real life situation of a member the Freedom of the Press Foundation, Jane was also briefly detained by law of the press keeping his cool even tweeted that it was “currently enforcement amidst the ongoing riots. though he was being attacked. A true investigating 5 arrests/detainments; In an interview with the database, professional and a great teammate, I’m 9 assaults, 2 with equipment damage; Jane said, “MPD made three warnings glad we were able to get away.” [e]quipment damage of multiple outlets’ for people to leave within the space Also on January 6, several gear, [including CNN, MSNBC, The of a minute or two, then started “protestors charg[ed] the media,” Washington Post, the Associated Press moving people back.” She continued, according to Bloomberg reporter (AP), and other news outlets]; and “Eventually they formed a big circle, William Turton in a January 6 tweet. multiple threats and harassment of told me because I was press I could He posted a video of the incident, journalists across the [United States].” leave any time but didn’t answer which depicted several men breaking The full tweet thread is available online questions about non-press people still journalists’ equipment, including at: https://twitter.com/uspresstracker/ there.” Law enforcement summarily cameras, lights, and more. Several status/1347633655204687875. released Jane after several officers individuals can be heard shouting, “Get For example, the U.S. Press Freedom examined her press credentials. out of here!” while advancing towards a Tracker — which has an advisory On Jan. 9, 2021, The Washington group of journalists. Others yelled “CNN committee chaired by the Committee Post reported that there were “several sucks.” The full video is available online to Protect Journalists (CPJ) and also instances of violence [by protesters and at: https://twitter.com/WilliamTurton/ includes the Reporters Committee for rioters] against journalists covering the status/1346940440935870472?s=20. Freedom of the Press (RCFP), among deadly takeover of the Capitol.” One The Washington Post reported other organizations — reported on incident took place when a crowd of that several journalists had said they Jan. 6, 2021 that Washington Post President Trump’s supporters pushed felt “shaken” following the acts of video journalist Zoeann Murphy “was towards a police barricade. As they did violence. For example, on January 6, detained alongside a colleague while so, AP photographer John Minchillo was The Independent journalist Richard documenting the ongoing riots” in documenting what was taking place. Hall retweeted a photo of his destroyed Washington, D.C. In a live video with the However, according to the Post, camera equipment posted by BuzzFeed Post, Murphy described how she and “[s]everal men grabbed Minchillo News Capitol Hill reporter Paul McLeod fellow video photojournalist Whitney by his backpack, pulling him down and wrote, “This is why I stopped doing Leaming were held by Metropolitan a flight of stairs. Others grasped the interviews after a certain point. Today Police Department (MPD) officers using lanyard that identified him as media, was the first day I’ve felt uncomfortable a technique known as “kettling,” a term dragging him through” a large crowd of identifying myself as a journalist in that refers to police “surround[ing] a President Trump’s supporters. Fellow America.” group from all sides to prevent exit.” AP photographer Julio Cortez filmed the McLeod also later shared a photo In the video, Murphy can be attack and later posted it on Instagram depicting a noose fashioned by rioters heard saying, “I have a credential: a and other social media platforms. In the using a camera cord hanging from Washington Post credential press badge video footage, someone could be heard a tree. The photo is available online that I wear. And then I actually have yelling, “We’ll f---ing kill you” as a man at: https://twitter.com/pdmcleod/ my Washington Post fleece on today pushed Minchillo over a ledge. Another status/1346942367543091200?s=20. as well.” While still live with the Post, man could be heard calling Minchillo Journalists also faced violence and Murphy said, “They’ve just told us that “antifa,” a putative left-wing extremist sought shelter inside the Capitol as they’re letting the press go and have told group described by CBS News on Oct. insurrectionists burst their way in, us that we can go.” 16, 2021 as “short for “anti-fascist” and according to The New York Times on The full video of the incident, which referring to a “loose affiliation of local January 6. For example, NBC News was filmed by Leaming, is available activists scattered across the United producer Haley Talbot called into a online at: https://www.washingtonpost. States and a few other countries.” After live MSNBC broadcast and said, “We com/video/politics/washington-post- being pushed over the wall, another were told to get under our chairs, we reporters-momentarily-arrested-outside- individual is heard questioning whether were all sheltering.” She added that she the-capitol/2021/01/06/da04479d- Minchillo was “antifa.” Two protesters and others grabbed gas masks during cdb7-4870-b354-9333e4712c74_video. then helped Minchillo get out of the the “dire situation,” as reported by the html?tid=ptv_ch. crowd. Times, which noted that someone had In a statement to The Wrap, the Post In a Twitter Post, Minchillo wrote carved “MURDER THE MEDIA” into a stated, “Our journalists were just doing that he was “banged up” but “kept at Capitol door. their jobs and should never have been it the rest of the day.” The full video On January 7, Erin Schaff, a staff arrested in the first place. However, of the incident is available online photographer at The New York Times, we’re pleased that police quickly at: https://www.instagram.com/tv/ detailed a similar run-in with rioters. released them.” CJxKMArpN0_/?utm_source=ig_embed. She wrote, “Grabbing my press pass, In a short emailed statement to the In a caption accompanying the video they saw that my ID said The New York U.S. Press Freedom Tracker, an MPD on Instagram, Cortez wrote, “Thankfully, Times and became really angry.” She 6 continued, “They threw me to the floor, events as they unfolded.” Brown who are simply trying to do their job of trying to take my cameras. I started continued, “Like members of Congress, keeping the public informed.” screaming for help as loudly as I could. their staffs and others who work in CPJ noted that legislators were No one came. People just watched. At the Capitol complex, these reporters ‘planning a “minute-by-minute’ this point, I thought I could be killed work daily in those buildings, and an investigation into the failure of law and no one would stop them. They assault on the Capitol is an assault on enforcement to curb the assault on the ripped one of my cameras away from them, too.. . . We are deeply disturbed Capitol,” as reported by BuzzFeed News me, broke a lens on the other and ran at the attacks, threats and rhetoric that on Jan. 7, 2021. CPJ’s full statement away.” we saw targeting reporters yesterday. is available online at: https://cpj. Schaff was later found by police, but Rioters at the Capitol called for violence org/2021/01/cpj-calls-for-accountability- they questioned her account. She wrote, against members of the news media, for-attacks-on-media-during-us-capitol- “I told them [police officers] that I was destroyed news equipment and verbally assault/. a photojournalist and that my pass had harassed journalists as the ‘enemy of the As the Bulletin went to press, been stolen, but they didn’t believe me. people’ — actions that not only pose a charges against protesters and rioters They drew their guns, pointed them dire threat to those working tirelessly to who targeted journalists and their and yelled at me to get down on my bring information to our communities, equipment had not been announced. hands and knees. As I lay on the ground, but also to the press freedom that is a In light of the events surrounding two other photojournalists came into bedrock value of our nation.” the Capitol attack, The Washington the hall and started shouting ‘She’s a Brown cited President Trump’s Post argued on January 8 that the journalist!’” Schaff’s full account is anti-press rhetoric as directly leading “brief takeover of the U.S. Capitol by available online at: https://www.nytimes. to the violence. He wrote, “These pro-Trump extremists . . . was . . . a com/2021/01/07/us/politics/capitol- actions are the direct result of years profound failure of policing.” The Post lockdown.html. of this language stoking fear and hate continued, “Despite the presence of The Post also noted that other for one of our most vital institutions. both Vice President Pence and House journalists had stopped identifying Our free press is crucial to democracy, Speaker Nancy Pelosi — second themselves amidst the chaos. The and indeed, one of the pillars that and third in the presidential line of New York Times reported on the will help keep it standing beyond this succession — and despite the hundreds same day that MSNBC anchor Yasmin moment.” Brown concluded by stating, of members of Congress gathered in Vossoughian, who was accompanied “In the days, weeks, months and years joint session, angry Trump supporters by two security officers, said on air ahead, we are committed to vigorously were able to breach perimeter after that she and several of her colleagues defending the press and the public’s perimeter, at times simply walking past intentionally avoided clothing with the First Amendment rights to freely report [U.S. Capitol Police (USCP)] officers station’s branding, expecting hostility and receive the news, and to ensuring who made no apparent effort to stop because “the president is continuously journalists have the legal support to them.” talking about the fake news media.” fulfill their constitutional responsibility.” The Post added that “[i]t was the The Times also noted that the The full statement is available online largest assault on the Capitol since the “threats and attacks were not limited at: https://www.rcfp.org/rcfp-us-capitol- British attack during the War of 1812.” to Washington” on January 6. The attack-statement/. The Post contended that the failure by Times provided the example of Sara The Committee to Protect Journalists the USCP was “a direct consequence of Gentzler, a reporter with The Olympian (CPJ) released a statement on January the way the police agency that protects in Washington State, who tweeted she 8 in which it called on “U.S. authorities the legislative branch is organized, with and a colleague were approached by [to] thoroughly investigate the many far too little accountability or diversity, an armed man who told them that the attacks on journalists during the violent jumbled oversight, and too many news media were not welcome at the takeover of the U.S. Capitol this week, opportunities for politics to creep into rally of President Trump supporters and hold the perpetrators to account.” its mission.” The full report is available that was taking place. Similarly, the In its statement, CPJ Program Director online at: https://www.washingtonpost. Times reported that “Rick Egan, a Carlos Martinez de la Serna was quoted com/outlook/capitol-police-failure- photographer who has worked for as saying, “The violence displayed oversight/2021/01/08/d7ea1c5c-5136- The Salt Lake Tribune for more than toward the media during the assault 11eb-bda4-615aaefd0555_story.html. 36 years, was documenting a mostly on the United States Capitol has no peaceful gathering outside Utah’s State place in a democracy. Individuals who Social Media Companies Suspend Capitol when he was shoved, verbally threatened and assaulted journalists President Trump’s Accounts attacked and pepper-sprayed in the eyes must be held accountable for their On Jan. 6, 2021, Facebook, Twitter, by protesters unhappy with the results actions.” and other social media platforms of the presidential election.” Martinez de la Serna also cited temporarily suspended President Following the arrests and violence President Trump’s anti-press rhetoric, Donald Trump’s accounts, citing posts against journalists, Reporters stating, “For the past four years, the that violated their rules and guidelines Committee for Freedom of the Press Trump administration has lobbed prohibiting inciting violence and (RCFP) executive director Bruce attacks against individual and spreading misinformation. Within the Brown released a statement in which institutional news media. As the world next two days, Facebook announced he praised “professional and brave has now witnessed, this rhetoric is that it was suspending President journalists and photographers who not just a political diversion — it can risked their safety to document the embolden mobs to attack reporters Insurrection, continued on page 8 7 Insurrection, continued from page 7 calls for violence on our platform. We very course of action.. . . [W]e [also] are actively reviewing and removing made it clear going back years that Trump’s account through at least any content that breaks these rules.” these accounts are not above our rules the Presidential Inauguration on YouTube said in a separate statement entirely and cannot use Twitter to incite January 20, while Twitter announced that President Trump’s video violated violence, among other things. We will a permanent ban of President Trump’s “policies regarding content that alleges continue to be transparent around our account @realDonaldTrump. The widespread fraud or errors changed the policies and their enforcement.” moves prompted praise from some outcome” of the election. The blog post then detailed each observers, who argued that such actions The following day, Facebook CEO of President Trump’s tweets that had should have been taken sooner. Other Mark Zuckerberg wrote in a blog post violated Twitter’s rules and guidelines, observers raised concerns about the that Facebook and Instagram were warranting the permanent suspension. precedent set by Facebook, Twitter, “ban[ning] President Donald Trump’s In particular, one tweet read, “The and other social media platforms in account from posting for at least 75,000,000 great American Patriots suspending or banning President Trump. who voted for On January 6, several media outlets me, AMERICA reported that Facebook and Twitter “It's very clear to [President Trump's] FIRST, and MAKE had both temporarily locked President followers that he is with them and AMERICA GREAT Trump’s accounts. The moves came supports them, and that his comments AGAIN, will have a after President Trump posted a video GIANT VOICE long telling the rioters at the U.S. Capitol about 'go home,' 'be peaceful,' and so into the future. building (Capitol) to “Go home,” forth are seen as being conveyed with a They will not be but also calling them “special” and wink and a nod.” disrespected or added, “We love you.” In a Jan. 7, 2021 treated unfairly in interview with KSTP-TV, the Twin Cities’ — Jane Kirtley, any way, shape or ABC affiliate, Silha Center Director and form!!!” A second Silha Professor of Media Ethics and Silha Center Director and Silha Professor of tweet read, “To all Law Jane Kirtley asserted that “It’s very Media Ethics and Law of those who have clear to [President Trump’s] followers asked, I will not that he is with them and supports them, the remainder of his term in office be going to the Inauguration on January and that his comments about ‘go home,’ and perhaps “indefinitely.” The blog 20th.” ‘be peaceful,’ and so forth are seen as post read, “We believe the risks of Twitter concluded that “[d]ue to the being conveyed with sort of a wink and allowing the President to continue to ongoing tensions in the United States, a nod.” KSTP’s full report is available use our service during this period are and an uptick in the global conversation online at: https://kstp.com/politics/ simply too great.. . . Therefore, we are in regards to the people who violently twitter-facebook-temporarily-block- extending the block we have placed on stormed the Capitol, . . . these two trump-after-dc-violence/5970727/. his Facebook and Instagram accounts Tweets must be read in the context Twitter removed three of President indefinitely and for at least the next two of broader events in the country and Trump’s tweets, including the tweet weeks until the peaceful transition of the ways in which the President’s posting his video, and suspended his power is complete.” statements can be mobilized by account for 12 hours. Twitter also Zuckerberg added that Facebook different audiences, including to incite warned that further violations would had determined that President violence, as well as in the context of the result in a “permanent suspension,” Trump’s latest posts had been pattern of behavior from this account according to CNN. Twitter’s “Twitter “likely” to only further escalate the in recent weeks. After assessing the Safety” account also tweeted that if violence occurring at the Capitol. language in these Tweets, . . . we have President Trump removed the three The full blog post is available online determined that these Tweets are in tweets, his account would be unlocked. at: https://www.facebook.com/zuck/ violation of the Glorification of Violence NBC News noted that before taking it posts/10112681480907401. Policy and the user @realDonaldTrump down, Twitter had added a tag line to On January 8, Twitter released a blog should be immediately permanently President Trump’s video reading, “This post in which it wrote that President suspended from the service.” The policy claim of election fraud is disputed, Trump’s account had been permanently provides that Twitter users “may not and this Tweet can’t be replied to, suspended. The blog post read, “After threaten violence against an individual [r]etweeted, or liked due to a risk of close review of recent Tweets from the or a group of people. We also prohibit violence.” Twitter had also blocked @realDonaldTrump account and the the glorification of violence.” retweets and replies to the video. context around them — specifically how The full blog post is available online Facebook and YouTube also removed they are being received and interpreted at: https://blog.twitter.com/en_us/ the video from President Trump’s on and off Twitter — we have topics/company/2020/suspension.html. accounts, as reported by NBC News. permanently suspended the account Twitter’s full Glorification of Violence Facebook also announced that it was due to the risk of further incitement Policy is available online at: https:// blocking the president’s account from of violence.” The blog post continued, help.twitter.com/en/rules-and-policies/ posting for 24 hours. The social media “In the context of horrific events this glorification-of-violence. company said in a statement, “[t]he week, we made it clear on Wednesday According to the Associated Press violent protests in the Capitol today are that additional violations of the Twitter (AP) on January 9, Twitch and Snapchat a disgrace. We prohibit incitement and Rules would potentially result in this had also disabled President Trump’s 8 accounts, among other examples of silence different voices. “For months, decision-block-president-trumps- social media platforms and websites President Trump has been using accounts. removing content related to President social media platforms to seed doubt Following the permanent bans Trump. about the results of the election and by Facebook and Twitter, President Following the actions by the to undermine the will of voters,” the Trump sought alternative social media social media companies, several statement read. “We understand the options. The AP reported on Jan. 9, 2021 media law experts explained that the desire to permanently suspend him that Parler, a far-right friendly social social media platforms’ decisions to now, but it should concern everyone media platform, could be “a leading suspend President Trump’s accounts when companies like Facebook and candidate.” However, the AP noted that did not violate the First Amendment. Twitter wield the unchecked power to Google and Apple had both removed Experts pointed to the “State Action remove people from platforms that have Parler from their app stores. Doctrine,” which provides that the become indispensable for the speech Additionally, on January 9, several First Amendment only applies to of billions — especially when political media outlets reported that Amazon had government suppression of speech and realities make those decisions easier.” removed Parler from its web hosting expression, not private companies. For In an interview with The New York service, Amazon Web Services (AWS), example, in a January 7 tweet, Jared Times, Gregory P. Magarian, a law citing numerous examples of posts Schroeder, an associate professor at the professor at Washington University, “encourag[ing] and incit[ing] violence.” Southern Methodist University (SMU) said, “I want a wide range of ideas, even In an email obtained by BuzzFeed Meadows School of the Arts tweeted, those I loathe, to be heard, and I think News, an AWS Trust and Safety team “To clarify — again: Social media firms Twitter especially holds a concerning told Parler Chief Policy Officer Amy blocking/suspending Trump's accounts degree of power over public discourse.” Peikoff that the calls for violence on does not violate the First Amendment. In a January 7 statement, the the social media platform violated Forcing social media firms to leave his Electronic Frontier Foundation (EFF) AWS’s terms of service. The email read, accounts up would violate the First wrote that “[t]he decisions by Twitter, “Recently, we’ve seen a steady increase Amendment.” Facebook, Instagram, Snapchat, in this violent content on your website, Other observers argued that and others to suspend and/or block all of which violates our terms.. . . It’s Facebook’s and Twitter’s actions came President Trump’s communications via clear that Parler does not have an too late. In a Jan. 9, 2021 interview with their platforms is a simple exercise of effective process to comply with the Bloomberg, Jessica González, co-chief their rights, under the First Amendment AWS terms of service.” According executive officer of Free Press, a media and Section 230 [of the Communications to BuzzFeed News on January 9, advocacy group, praised the move by Decency Act], to curate their sites. We Amazon said that the company “was Twitter and Facebook, but noted that it support those rights.” However, EFF unconvinced that the [platform’s] plan was “a day late and a dollar short.” also wrote that the organization was to use volunteers to moderate calls Sen. Mark Warner (D-Va.) tweeted “always concerned when platforms take for violence and hate speech would be on January 8 that Twitter’s move was on the role of censors, which is why effective.” The full email is available “[a]n overdue step,” but added that we continue to call on them to apply online at: buzzfeednews.com/article/ “it’s important to remember, this is a human rights framework to those johnpaczkowski/amazon-parler-aws. much bigger than one person. It’s decisions. We also note that those same In a January 9 post, Parler CEO John about an entire ecosystem that allows platforms have chosen, for years, to Matze said that Amazon’s move could misinformation and hate to spread and privilege some speakers — particularly mean the platform would be offline and fester unchecked.” governmental officials — over others, unavailable for up to a week. He added, Laura Gomez, a former Twitter not just in the U.S., but in other “This was a coordinated attack by the employee and founder of Proyecto countries as well. A platform should tech giants to kill competition in the Solace, an online platform providing not apply one set of rules to most of its market place.. . . We were too successful “safe spaces” for Latinx peoples, said users, and then apply a more permissive too fast.” on Bloomberg Television on January set of rules to politicians and world The AP also suggested the possibility 8, “Many people of color and women leaders who are already immensely that President Trump “may launch his who worked at [Twitter] and used this powerful. Instead, they should be own platform,” but added that it “won’t platform warned about the dangers precisely as judicious about removing happen overnight.” In a statement of Trump and all of his supporters the content of ordinary users as they on January 8, President Trump said, and these extremists using this have been to date regarding heads of “We have been negotiating with platform.. . . But unfortunately no one state.” various other sites, and will have a big listened.” EFF added, “Going forward, we announcement soon, while we also look However, other experts raised call once again on the platforms to at the possibilities of building out our concerns about social media platforms be more transparent and consistent own platform in the near future.” temporarily or permanently suspending in how they apply their rules — and As the Bulletin went to press, President Trump. On January 8, Kate we call on policymakers to find ways President Trump had not joined another Ruane, a senior legislative counsel at to foster competition so that users social media platform, nor had he the American Civil Liberties Union have numerous editorial options and announced the creation of his own. (ACLU) said in a statement that social policies from which to choose.” The media platforms’ decision to suspend full statement is available online at: — Scott Memmel President Trump could set a dangerous https://www.eff.org/deeplinks/2021/01/ Postdoctoral Associate precedent allowing the companies to eff-response-social-media-companies-

9 Ongoing Protests and Confrontations Between the Press and Police Prompt Legal Action, Ethical Debates, and Media Advocacy n the second half of 2020, protests that her office had filed misdemeanor the protests, numerous journalists in and riots stemming from calls charges against Duane Waldriff, the Minneapolis and around the country for racial equality following man accused of punching a WCCO-TV faced arrests, attacks, and threats by police killings of Black men and photojournalist’s smartphone out of his law enforcement. For example, on May women continued across the hands near President Donald Trump’s 29, 2020, CNN correspondent Omar IUnited States. Amidst the protests, campaign rally. Jimenez, photojournalist Leonel Mendez, journalists faced arrests, attacks, and Meanwhile, on Oct. 10, 2020, several and producer Bill Kirkos were arrested threats by police. According to the U.S. media outlets reported that a security by Minnesota State Patrol officers while Press Freedom Tracker, a database of guard hired by KUSA-TV, the NBC reporting live from protests in south press freedom affiliate in Denver, Colo., had shot Minneapolis. The arrests prompted violations in the and killed a protester amidst political significant criticism from observers, PROTESTS United States rallies in Denver. The incident raised including the Silha Center for the Study and around the ethical questions about journalists using of Ethics and Media Law. On May 30, world managed by the Freedom of the armed security guards at protests, with Tom Aviles, a veteran photographer at Press Foundation, between May 26, 2020 observers acknowledging on one hand WCCO, the Twin Cities’ CBS affiliate, and December 2020, there were over that such security could be necessary was arrested while also covering the 800 reported incidents of journalists to keep journalists safe, while on the ongoing protests. being “assaulted, arrested or otherwise other hand arguing that utilizing it can Some journalists covering the fallout prevented from documenting history” undermine the independence of the of Floyd’s death filed federal lawsuits by police or demonstrators amidst the press. against city governments and law protests across the country for racial Finally, on October 30, the Society enforcement, arguing that arrests and/ justice. The incidents took place across of Professional Journalists (SPJ) and or attacks by police violated their First at least 79 cities and included at least 25 other journalism groups sent a letter and Fourth Amendment rights, among 255 physical attacks of journalists by to 28 law enforcement organizations other claims. For example, on June 2, police or protestors and 115 arrests, across the United States emphasizing 2020, the American Civil Liberties Union among other incidents. The U.S. Press that journalists have a right under the (ACLU) of Minnesota filed a class-action Freedom Tracker’s full report is available First Amendment to cover protests and lawsuit in the U.S. District Court for online at: https://pressfreedomtracker.us/ public events without fear of arrests, the District of Minnesota on behalf of george-floyd-protests/. attacks, threats, or “harassment” by law freelance journalist Jared Goyette and The ongoing protests for racial justice enforcement. several additional journalists who faced across the United States, as well as On May 25, 2020, Floyd, a 46-year- arrests, rubber bullets, pepper bullets, continuing cases of conflict between the old Black man, was arrested in south tear gas, physical attacks, and more by press and police, prompted numerous Minneapolis after he allegedly used a law enforcement. legal actions, debates over media ethics, counterfeit $20 bill. After Floyd was The complaint made several and a letter by media advocates to pulled out of his vehicle, Minneapolis claims, including that the police several law enforcement organizations. Police Department (MPD) Officer J.A. actions created a chilling effect on On Sept. 21, 2020, the Seattle Police Kueng held Floyd’s back and Officer constitutionally-protected activity, Department (SPD) dropped a subpoena Thomas Lane held his legs. Officer Tou namely journalists’ ability “to observe requiring five Seattle, Wash. news Thoa, who arrived at the scene with and record some events of public organizations to turn over unpublished MPD Officer Derek Chauvin, blocked interest, including constitutionally videos and photos in relation to several witnesses from interfering. Chauvin “dug protected demonstrations and the cases of arson and theft during racial his knee into [Floyd’s] neck” for nearly conduct of law enforcement officers on justice protests on May 30. nine minutes despite Floyd pleading that duty in a public place.” As the Bulletin On October 9, the U.S. Court of he was in pain and could not breathe. went to press, the plaintiffs had filed Appeals for the Ninth Circuit denied Floyd was transported to the Hennepin a second amended complaint in the a motion by federal law enforcement County Medical Center where he was District of Minnesota. agencies seeking a stay on a preliminary pronounced dead at approximately 9:25 For a full list of the incidents at injunction prohibiting federal agents p.m. racial justice protests between the from targeting journalists and “legal In the days, weeks, and months press and police, as well as the press observers” with arrests and assaults in following Floyd’s death, peaceful and and demonstrators, around the United Portland, Ore. Protesters assembled violent protests erupted in Minneapolis States, see the U.S. Press Freedom in the city — and elsewhere around and across the country, including Tracker’s ongoing coverage titled the country — after George Floyd, an following the deaths of other Black “Press Freedom in Crisis: Journalists unarmed Black man, was killed by police men and women at the hands of Impeded While Documenting National in Minneapolis, Minn. on May 25. police. Local and national journalists Protests,” available online at: https:// Also on October 9, Duluth, Minn. City provided live coverage of the protests pressfreedomtracker.us/george-floyd- Attorney Rebecca St. George announced each night that they took place. Amid protests/. (For more information on the 10 protests around the death of George vast amounts of unaired news footage Finally, the brief further argued Floyd, the incidents between the press and unpublished news photographs. that SPD’s subpoena “violates the and police, incidents between the The demand is not limited to evidence constitutional and statutory privileges press and demonstrators, and resulting of the single unsolved crime alleged in against compelled disclosure of lawsuits, see “Journalists Covering its supporting affidavit; instead, it seeks journalistic work product, particularly Fallout from George Floyd Death all images from 90 minutes of protests unpublished material” under the Take Legal Action; Misinformation across four city blocks.” The brief Washington Shield Law and the First Underscores Lessons from 2020 Silha therefore argued that the subpoena was Amendment. The brief cited Shoen v. Spring Ethics Forum” in the Summer “unduly burdensome and overly broad.” Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993), 2020 issue of the Silha Bulletin and Second, the brief asserted that “SPD’s in which the U.S. Court of Appeals for “Special Report: Journalists Face fishing expedition disregards procedural the Ninth Circuit held that “[C]ompelled Arrests, Attacks, and Threats by Police safeguards that must be followed when disclosure of non-confidential Amidst Protests Over the Death of seeking evidence from news outlets.” information harms the press’ ability to George Floyd” in the Winter/Spring 2020 The brief cited the Washington state gather information by . . . ‘converting issue). Shield Law, RCW 5.68.010, which the press in the public’s mind into an provides that “no judicial, legislative, investigative arm of prosecutors and the Seattle Withdraws Subpoena for administrative, or other body with the courts.. . . If perceived as an adjunct of Unpublished Photos and Videos of power to issue a subpoena or other the police or of the courts, journalists Protests compulsory process may compel the might well be shunned by persons who On Sept. 21, 2020, the Seattle news media to testify, produce, or might otherwise give them information Times reported that the Seattle Police otherwise disclose: (a) The identity of a without a promise of confidentiality, Department (SPD) was dropping source of any news or information . . .; or barred from meetings which they would a subpoena requiring five news (b) Any news or information obtained otherwise be free to attend and to organizations to turn over unpublished or prepared by the news media in its describe, or even physically harassed if, videos and photos taken during racial capacity in gathering, receiving, or for example, observed taking notes or justice protests on May 30. The SPD had processing news or information for photographs at a public rally.’” claimed that such footage would help potential communication to the public, The full brief is available online investigators solve several arson and including, but not limited to, any notes, at: https://www.documentcloud.org/ theft cases. outtakes, photographs, video or sound documents/6979686-Objections-to- On May 30, 2020, protests continued tapes, film, or other data of whatever Subpoena-for-Protected.html. in Seattle, Wash. following the May 25 sort in any medium now known or On the same day, the Reporters death of George Floyd in police custody hereafter devised. This does not include Committee for Freedom of the Press in Minneapolis, Minn. According to physical evidence of a crime.” (RCFP) filed anamicus curiae brief in police and media accounts, a number of However, the statute also contains support of the news media. The brief individuals vandalized and lit on fire six a provision providing that a “court echoed several of the arguments made SPD vehicles, as well as stole five loaded may compel disclosure of the news or by the Seattle news media, and also firearms from those vehicles. Three of information . . . if the court finds that the contended that “Washington courts have the firearms were later recovered, but party seeking such news or information long recognized the importance of a two were not. established by clear and convincing journalist’s privilege” and that the “First On June 18, 2020, SPD applied for a evidence . . . that there are reasonable Amendment also affords a qualified subpoena in King County Superior Court grounds to believe that a crime has privilege against compelling disclosure against the Seattle Times and four local occurred.” The party seeking disclosure of “facts acquired by a journalist in the television stations: KIRO, KING, KOMO must demonstrate that: course of gathering the news,” citing and KCPQ (news media). Judge Patrick (i) The news or information is highly Shoen. Oishi approved and signed the subpoena, material and relevant; The brief added, “Requiring which sought raw video footage and (ii) The news or information is critical members of the news media to assist photographs in order to help identify or necessary to the maintenance of a law enforcement officers in an ongoing the perpetrators of the vandalism, fires, party's claim, defense, or proof of an investigation by turning over their and thefts. The full subpoena is available issue material thereto; journalistic work product increases the online at: https://www.documentcloud. (iii) The party seeking such news or likelihood that members of the public org/documents/6979683-Subpoena- information has exhausted all reasonable will incorrectly perceive journalists to be Duces-Tecum-Seattle-Times-Company- and available means to obtain it from an extension of law enforcement, rather Et-Al.html. alternative sources; and than independent press,” citing a series On June 29, the news media filed (iv) There is a compelling public of cases, including Gonzales v. National a brief objecting to the subpoena interest in the disclosure. A court may Broad. Co., 194 F.3d 29, 35 (2nd Cir. and asking the court to quash it. The consider whether or not the news 1999). brief argued that the subpoena was or information was obtained from a The brief added that concerns a “procedurally irregular, overbroad confidential source in evaluating the over the risk of violence against the and impermissible assault on the public interest in disclosure. press were “well-founded” because independence of the press.” The brief The full statute is available online “[p]rotests have consistently been the first contended that the subpoena at: https://apps.leg.wa.gov/rcw/default. most dangerous place for working “targeted Seattle’s five largest news aspx?cite=5.68.010. outlets with an expansive demand for Protests, continued on page 12 11 Protests, continued from page 11 would not now get to see any relevant complaint against the City of Portland, evidence the News Media may possess alleging that the crowd control measures journalists in the United States in recent now until sometime in 2021 or later, used by law enforcement violated their years.. . . Amidst the wave of physical even if it wins on appeal.” The motion First and Fourth Amendment rights. The assaults on journalists covering the continued, “Given that likely delay in plaintiffs claimed that local authorities recent nationwide protests sparked by getting further evidence regarding the shot them with less-lethal munitions, the killings of George Floyd, Breonna crimes committed on May 30, given including pepper balls, tear gas Taylor, and other Black Americans, the decreasing value of such evidence canisters, and more, as well as pepper some assailants have made clear that as time goes on, given the recent sprayed and shoved them. The complaint they view journalists as an unwelcome developments in the investigation into alleged that such actions prevented the extension of law enforcement.’” RCFP the theft of the [SPD firearm], and in plaintiffs from recording and reporting therefore contended that “[a]s these light of its many other priorities, SPD on the protests and the law enforcement recent examples show, journalists has decided to withdraw the subpoena response. covering protests are already at and not seek enforcement of the Order.” Four days later, on July 2, the heightened risk. Compelling them to turn The motion argued that the case was U.S. District Court for the District of over to the police unaired video footage therefore “moot.” Oregon entered a temporary restraining and photographs gathered to report the The full motion is available online order (TRO) against the City of news will sharply increase that risk.” at: https://www.documentcloud.org/ Portland, regulating the local police’s The full brief is available online documents/7214851-SPD-Motion-to- use of crowd-control tactics against at: https://www.documentcloud.org/ Dismiss-Subpoena-Case-as-Moot.html. journalists and legal observers. Index documents/6979675-Amicus-Brief-of- In a September 21 statement, Seattle Newspapers LLC v. City of Portland, Reporters-Committee-for-Freedom.html. City Attorney Pete Holmes said that the No. 3:20-cv-1035-SI (D. Or. July 2, 2020). On July 30, King County Judge Nelson subpoena “was about trying to recover On July 16, the City of Portland and the Lee ordered the news media to produce dangerous weapons. The urgency of plaintiffs reached an agreement in a the requested evidence for an in camera getting this evidence collided with stipulation to a preliminary injunction, review, meaning a judge would privately the more ponderous processes of our in which the city agreed not to enforce look at the information. In the review, judicial system, and the process won orders to disperse against journalists and the court would determine whether out.” legal observers, not to use violence or SPD had shown “clear and convincing In a separate statement, attorney Eric the threat of violence and arrest against evidence” required to compel disclosure Stahl, who represented the five news them, and promised not to seize their of the footage and photographs under media outlets, said that what Holmes photographic equipment or press passes, the Washington Shield Law. was “calling a ‘process’ is actually an as had happened to several plaintiffs in In his ruling, Lee held the SPD important protection for journalism, free the case,” as reported by Courthouse had “shown by clear and convincing speech and the public’s right to know.” News on July 23. evidence that the material requested He added, “And fortunately in this case, Meanwhile, protests continued in is highly material and relevant to the the process worked.” Portland, including around the Mark investigation,” as well as “‘critical or O. Hatfield Federal Courthouse. In necessary’ to its investigation.” He Ninth Circuit Rules Federal Agents response, the U.S. Department of further held that SPD had “shown by Can’t Target Journalists and Legal Homeland Security (DHS), the U.S. clear and convincing evidence that Observers at Portland Protests Marshals Service (USMS), and later the it has exhausted all reasonable and On Oct. 9, 2020, the U.S. Court of U.S. Customs and Border Protection available means to identify the suspects’ Appeals for the Ninth Circuit ruled that (CBP) (federal defendants) deployed identity from alternative sources” federal agents cannot target journalists agents to protect the building and and demonstrated that there was a and “legal observers” with arrests and enforce crowd control. compelling interest in the disclosure. assaults in Portland, Ore. amidst the On July 23, District Judge Michael Lee’s full ruling is available online ongoing protests over the May 25 death Simon granted the plaintiffs’ motion to at: https://www.documentcloud.org/ of George Floyd while in police custody. add the federal agencies as defendants documents/7011712-Judge-Lee-s-Order. Index Newspapers LLC v. United in the case, and also entered a TRO html. States Marshals Service, 977 F.3d 817 against the federal defendants. Index However, on August 20, a Washington (9th Cir. 2020). The ruling was limited, Newspapers LLC v. City of Portland, State Supreme Court commissioner however, in that the court denied a No. 3:20-cv-1035-SI, 2020 WL 4220820 granted a stay in the case, meaning the motion by federal law enforcement (D. Or. July 23, 2020). Judge Michael media would not be required to produce agencies seeking a stay on a preliminary Simon acknowledged that the federal any evidence for the review until mid- injunction while the government’s appeal defendants had engaged in “violence, 2021, at which point the value of the of the injunction was still pending. threats, or intimidation” towards evidence might be diminished, according The case arose following protests in journalists, including the Plaintiffs, to court records. Additionally, on Sept. Portland in May and June 2020, in which which can lead to a “real and immediate 4, 2020, federal authorities arrested the some demonstrations became violent, threat of repeated injury” to the man suspected of stealing one of the leading to vandalism, destruction of plaintiffs’ First Amendment rights. unrecovered SPD firearms. property, looting, arson, and assault. He wrote, “An open government On September 21, SPD filed a On June 28, several newspaper has been a hallmark of our democracy “motion to dismiss appeal [as] moot,” organizations and individual journalists since our nation’s founding.. . . When in which it wrote, “[R]ealistically, SPD and legal observers filed a class-action wrongdoing is underway, officials have 12 great incentive to blindfold the watchful by them and by the administration, On Oct. 9, 2020, the Ninth Circuit took eyes of the fourth estate. The free press that’s sufficient for good cause to up the issue once more after reviewing is the guardian of the public’s interests extend this TRO for one more 14-day the parties’ complete briefings and and the independent judiciary is the period.. . . Whether or not that changes holding oral arguments, and denied the guardian of the free press,” citing Leigh in the next few weeks, we’ll see what federal defendants’ motion for a stay. v. Salazar, 677 F.3d 892, 897 (9th Cir. happens.” Judge Johnnie B. Rawlinson, who was 2012). The full ruling is available online On August 20, Simon granted the joined by Judge Morgan Christen, wrote at: https://www.courthousenews.com/ plaintiffs’ motion for a preliminary the 2-1 majority opinion in which she wp-content/uploads/2020/07/Feds-TRO. injunction, which had terms largely explained that the court, in deciding pdf. identical to the July 23 TRO. Index whether to grant a stay, must consider: On Aug. 5, 2020, the Reporters Newspapers LLC v. City of Portland, “(1) whether the Federal Defendants Committee for Freedom of the Press No. 3:20-cv-1035-SI, 2020 WL 4883017 have made a strong showing that they (RCFP), along with several other (D. Or. Aug. 20, 2020). He wrote that are likely to succeed on the merits; media advocacy organizations, filed the general police power is reserved (2) whether the Federal Defendants will an amici curiae brief on behalf of the to the states, and that the federal be irreparably injured absent a stay; plaintiffs. The brief responded to a July defendants had not argued that they (3) whether issuance of the stay will 31 hearing in which Simon “invited had the authority to issue general substantially injure the other parties briefing on whether it should,inter alia, dispersal orders on Portland’s public interested in the proceeding; and restrict the definition of ‘Journalist’ to streets and sidewalks. He also noted (4) where the public interest lies.” a ‘professional or authorized journalist’ that he had “serious concerns” that the Regarding the first prong, Rawlinson who has been given a vest” by the federal defendants had not complied held that the federal defendants had “not American Civil Liberties Union (ACLU) with the July 23 TRO. According to the made the strong showing . . . that they of Oregon. The brief argued that the Ninth Circuit, in a separate preliminary are likely to succeed on the merits of district court “cannot and should not injunction, the City of Portland agreed plaintiffs’ First Amendment retaliation adopt such a restriction. A regime that that it would not require journalists and claim.” She explained that the plaintiffs outsources registration or licensing to a legal observers to disperse from streets needed “to show that they were engaged non-governmental entity like the ACLU, and sidewalks after issuing general in a constitutionally protected activity, pursuant to an order of this Court, would dispersal orders. the Federal Defendants’ actions would pose the same constitutional concerns The federal defendants summarily chill a person of ordinary firmness from as any direct governmental licensing appealed the preliminary injunction to continuing to engage in the protected regime, one of the primary constraints the Ninth Circuit. On August 25, Simon activity, and the protected activity was on an independent press that the First denied the federal defendants’ motion a substantial or motivating factor in the Amendment was ratified to prohibit” for a stay of the preliminary injunction Federal Defendants’ conduct,” citing (emphasis in original). The brief added pending its appeal. Two days later, a Pinard v. Clatskanie School District 6J, that journalists “are defined by the divided three-judge motions panel of 467 F.3d 755, 770 (9th Cir. 2006). function they perform, not governmental the Ninth Circuit granted the Federal According to Rawlinson, the federal registration or licensing.” Defendants’ motion for an administrative defendants did “not contest the first The brief continued, “Not only would stay of the injunction pending resolution or second elements of the retaliation such a regime itself be injurious to the of their emergency motion for a stay claim, nor does there appear to be a First Amendment and journalists’ ability pending appeal. good faith basis for doing so.” In terms to engage in newsgathering, but it would On September 2, RCFP and several of the final portion, she held that “[t]he not solve the practical issues complained media organizations filed a newamici district court’s extensive and thorough of by the Federal Defendants; indeed, curiae brief in the Ninth Circuit. The factual findings provide robust support it could exacerbate them by creating brief argued that the preliminary for its conclusion that plaintiffs’ exercise a single indicator of one’s status as a injunction “properly protects the right of their First Amendment rights was journalist.” The brief contended that the of the press and public to document the a substantial or motivating factor in court should “[i]nstead, to the extent the actions of law enforcement in public the Federal Defendants’ conduct.” Court believes clarification of the TRO is places — a right this Court has expressly Rawlinson provided several examples of necessary, it should evaluate the Federal recognized,” citing Fordyce v. City of journalists facing arrests, attacks, and Defendants’ compliance according to Seattle, 55 F.3d 436 (9th Cir. 1995). threats by federal agents in Portland whether a reasonable officer, under The brief continued, “[T]he in July 2020, which she found were the totality of the circumstances, knew preliminary injunction is necessary to “retaliatory in nature and did not reflect or should have known that they were ensure that people throughout state of appropriate crowd-control tactics,” interacting with a member of the press.” Oregon, and the United States, are fully including because the journalists were The full amici brief is available and accurately informed as to what is “nowhere near the protesters.” She online at: https://www.courthousenews. occurring on the ground. Accordingly, called such conduct a “shocking pattern com/wp-content/uploads/2020/08/ amici respectfully request that the Court of misconduct.” PortlandProtestPress-Amicus.pdf. deny Defendants-Appellants’ motion Rawlinson therefore held that On Aug. 6, 2020, Simon extended the for an emergency stay.” The full brief the “many instances . . . provide TRO by 14 days in an oral ruling from the is available online at: https://www.rcfp. exceptionally strong evidentiary bench. He said, according to Courthouse org/wp-content/uploads/2020/09/2020- support for the district court’s finding News, “Given that we still have federal 09-02-RCFP-Ninght-Circuit-amicus-brief- officers here and what has been said in-Index-Newspapers-v.-U.S.-Marshals- Protests, continued on page 14 Service.pdf. 13 Protests, continued from page 13 and legal observers from protesters.” Press v. Otter, 682 F.3d 821, 826 (9th Cir. The federal defendants argued that this 2012), in which the Ninth Circuit held that some of the Federal Defendants would “constitute irreparable injury that courts have “consistently recognized were motivated to target journalists in absent a stay pending appeal because the the significant public interest in retaliation for plaintiffs’ exercise of their preliminary injunction will hinder their upholding First Amendment principles.” First Amendment rights.” ability to safely protect federal property Rawlinson added, “The Federal Furthermore, Rawlinson held that the and people on federal property, and will Defendants assert a very important federal defendants had “not shown that generally place them in the untenable public interest, but the record fully they are likely to succeed on the merits position of having to choose between supports the district court’s conclusion of plaintiffs’ First Amendment right- risking their safety and violating the that the Federal Defendants’ interest of-access claim.” She agreed with the preliminary injunction.” does not require dispersing plaintiffs. plaintiffs “that the press is entitled to a Rawlinson provided several reasons They have not threatened federal right of access at least coextensive with why she disagreed with the defendants, property, and the journalists, in the right enjoyed by the public at large; including that “the preliminary injunction particular, provide a vitally important the press is certainly not disfavored,” unambiguously provides that the Federal service to the public.” citing Pell v. Procunier, 417 U.S. 817, Defendants will not be held liable for Rawlinson therefore denied the 833–34 (1974), Richmond Newspapers, violating the preliminary injunction by federal defendants’ emergency motion Inc. v. Virginia, 448 U.S. 555, 572–73 incidentally exposing journalists or legal for a stay pending appeal, which (1980); and Cox Broadcasting Corp. observers to otherwise lawful crowd- meant that the Ninth Circuit put the v. Cohn, 420 U.S. 469, 492 (1975). control measures.” She also noted that enforcement against federal agents Rawlinson also reasoned that “[p]ublic the City of Portland had agreed to similar back in place while the agencies’ demonstrations and protests are clearly requirements without arguing that they appeal remains pending, according to protected by the First Amendment, and a were intrusive, unworkable, or vague. Courthouse News, the Associated Press protest not open to the press and general She further held that the federal (AP), and First Amendment Watch, a public is not a public demonstration,” defendants had “not made the required media advocacy organization at New citing Snyder v. Phelps, 562 U.S. 443, showing that they will suffer irreparable York University (NYU). (2011), among other cases. harm if the preliminary injunction is Judge Diarmuid O’Scannlain filed a Additionally, she held that the federal not stayed pending a decision on the dissenting opinion in which he wrote defendants had “not shown the general merits of the appeal” because Judge that he would have granted the motion dispersal orders they issued were Simon “took care to address the Federal for stay. He provided several reasons, lawful, much less essential or narrowly Defendants’ concerns regarding the including that he disagreed with the tailored” as required by Press-Enterprise workability of the injunction. The majority “transform[ing] . . . the First Co. v. Superior Court of California, terms of the injunction itself adequately Amendment-based ‘right of public 478 U.S. 1, 9 (1986). Rawlinson added, address their concerns, and the Federal access’ to governmental proceedings into “We do not condone any form of Defendants’ continued objection that the a special privilege for self-proclaimed violence, nor did the district court, but injunction is unworkable is undermined journalists and “legal observers” to the court found no evidence that any of by the City’s agreement to operate disregard crowd dispersal orders issued the named plaintiffs engaged in unlawful pursuant to a substantially similar order” by federal law enforcement officers.” conduct. The many peaceful protesters, and expert opinion calling the injunction He further contended that the district journalists, and members of the general “safe and workable.” court’s finding of numerous incidents public cannot be punished for the violent In terms of the third prong, of federal agents “retaliating” against acts of others.” Rawlinson concluded that the City of the plaintiffs “cannot justify granting Rawlinson also suggested that Simon Portland would not “suffer substantial journalists and ‘legal observers’ a consider detailing where federal agents injury[, which] supports denial of the unique exemption from lawful dispersal have authority to disperse protesters, emergency motion for a stay pending orders — orders that were neither found, writing, “We need not precisely define appeal.” Conversely, the plaintiffs faced nor alleged, to be retaliatory.” the limits of the Federal Defendants’ substantial injury if the motion were Additionally, O’Scannlain argued the authority in order to resolve their granted “because the district court found preliminary injunction “erroneously emergency motion, but it cannot that the Federal Defendants’ conduct curtails an important law enforcement be debated that the United States chilled the exercise of their First tool for responding to protest events that Constitution reserves the general police Amendment rights.” threaten federal property and personnel, power to the states, and the district Finally, Rawlinson weighed the public thereby limiting options available for court found that the Federal Defendants interests in the case. On one hand, federal officers precisely when they are ‘routinely have left federal property and the federal defendants argued for the most needed.” engaged in crowd control and other interest in protecting federal agents The Ninth Circuit’s full ruling enforcement on the streets, sidewalks, and property. On the other hand, the is available online at: https://www. and parks of the City of Portland.’” plaintiffs “assert[ed] a strong public courthousenews.com/wp-content/ Regarding the second prong, interest: ‘It is always in the public uploads/2020/10/Ruling.pdf. As the Rawlinson wrote that the court was “not interest to prevent the violation of a Bulletin went to press, the Ninth Circuit persuaded” by the federal defendants’ party’s constitutional rights,’” citing had not ruled on the federal defendants’ argument that “the injunction will Padilla v. Immigration & Customs appeal of the preliminary injunction. force federal officers to make snap Enforcement, 953 F.3d 1134, 1147–48 In a statement following the ruling, judgments to distinguish journalists (9th Cir. 2020). She also cited Associated attorney Matthew Borden, who 14 represented the members of the news On October 2, the Duluth Police suspect “was acting in a professional media, said, “This is a crucial victory Department announced that it had capacity as an armed security guard for for civil liberties and the freedom identified Waldriff as the man who a local media outlet and [was] . . . not a of the press, which are critical to attacked Chhoun. On October 6, the protest participant.” the functioning of our democracy. Star Tribune reported that Chhoun was The security guard was later The court’s opinion affirms that the seeking charges against Waldriff. In a identified as Matthew Dolloff. KUSA, government cannot use violence to statement, the Duluth Police Department which is referred to as 9NEWS locally, control the narrative about what is stated, “The victim expressed the claimed that it thought it had hired happening at these historic protests.” desire to move forward with seeking a guard from the Pinkerton security charges.. . . We are forwarding the case company. However, the company Duluth, Minn. City Attorney Files to the City Attorney’s Office for review asserted in a statement that Dolloff was Charges Against Man Who Knocked of misdemeanor charges of Disorderly subcontracted from another company. WCCO Photojournalist’s Phone Out Conduct.” Additionally, Dolloff did not have a of His Hands On October 9, St. George announced security license, according to the Denver On Oct. 9, 2020, the Minneapolis that the city had filed misdemeanor Post. Star Tribune and Duluth News Tribune assault and disorderly conduct charges On October 10, the Post reported that reported that Duluth, Minn. City against Waldriff, who claimed in an photographs and video footage taken Attorney Rebecca St. George had filed interview with the Star Tribune that at the scene appeared to show Keltner misdemeanor charges against Duane Chhoun “violated his space” and that he in a dispute with Dolloff and a 9NEWS Waldriff, a 70-year-old man who allegedly did not know it was legal to film people producer, whom Dolloff was guarding. knocked a WCCO-TV photojournalist’s in public spaces without their consent. The altercation reportedly escalated phone out of his hands near a rally by He added, “I’ve got nothing against him when Keltner slapped Dolloff on the side President Donald Trump a week earlier. personally but he wasn’t assaulted.. . . He of the head and sprayed mace at Dolloff. On Sept. 30, 2020, President Trump was aggressively coming after me, and I According to Post, Dolloff shot Keltner held a campaign rally in Duluth, which defended myself.” in the head and was immediately taken Waldriff attended. According to WCCO, In a statement, St. George said, “Our into police custody. the Twin Cities’ CBS affiliate, Dymanh office looked at all currently available On October 15, Denver District Chhoun was on assignment “to get evidence and asked the Duluth Police Attorney Beth McCann announced that reaction before President Donald Department to issue a citation based she was filing second-degree murder Trump’s rally.” As Chhoun was gathering on our review.. . . We take all criminal charges against Dolloff, which carries video in a public space, he began matters very seriously, and will a maximum sentence of 48 years in recording one of President Trump’s prosecute this case accordingly.” prison. The Denver Post noted, however, supporters when the man turned around As the Bulletin went to press, the that Dolloff was claiming he acted in and said: “You guys want to be peaceful? charges against Waldriff, which carried a self-defense. The Post also stated that Be peaceful! You want to be violent? maximum sentence of 90 days in jail and Denver officials said Dolloff could face Come to me!” The man then punched a $1,000 fine, remained pending. additional criminal or civil action for Chhoun’s smartphone out of his hands, working in Denver without the city’s despite the photojournalist identifying Incident During Ongoing Protests required municipal security guard himself as a member of the press. in Denver Prompt Ethical license. Chhoun was not hurt, nor was his device Considerations, Advice for Following the incident, 9NEWS damaged. Journalists general manager Mark Cornetta released WCCO aired the footage of the attack On Oct. 10, 2020, several media a statement in which he said, “9NEWS is on October 1. The full video is available outlets reported that a security guard deeply saddened by this loss of life. We online at: https://minnesota.cbslocal. hired by KUSA-TV, the NBC affiliate have and will continue to cooperate fully com/2020/10/01/trump-supporter-attacks- in Denver, Colo., had shot and killed a with law enforcement.” wcco-photojournalist-in-duluth-you- demonstrator, Lee Keltner, in the course As the Bulletin went to press, want-to-be-violent-come-to-me/. of dueling right- and left-wing political Dolloff’s trial had not yet begun. Following the incident, Chhoun said, rallies. In the wake of the incident, Also on October 15, 9NEWS’ “I was scared.. . . I’m used to people which took place at the “Patriot Rally” investigative team reported Dolloff verbally attacking me but not physically. in downtown Denver, commentators was “not the only unlicensed or not I was just doing my job.” grappled with ethical questions around properly credentialed security guard The Asian American Journalists journalists bringing security guards with to accompany 9NEWS crews as they Association released a statement in them to protests, including weighing the covered protests and riots during the which the organization urged authorities importance of keeping journalists safe past five months.” The report added that in Duluth to fully investigate the versus the independence of the press. “[b]ecause they were not licensed, those attack. “The press is not the enemy,” On October 10, the Denver Police guards were not required to go through the statement said. “[I]t serves a Department sent out a tweet explaining the extensive training Denver mandates fundamental role in a democracy that officers were “investigating a all private security guards receive.” by informing the public and holding shooting that occurred in the Courtyard The full report is available online at: powerful people and institutions by the Art Museum.” At the time, the https://www.9news.com/article/news/ accountable. Any threat to the press is a agency said one victim was hospitalized threat to a free society, free speech and and one suspect was in custody. The the First Amendment.” department later announced that the Protests, continued on page 16

15 Protests, continued from page 15 2020 presidential election vote count don’t know how many times they picked and results. The tweet is available online off an attack. Sometimes they say ‘it is investigations/unlicensed-security- at: https://twitter.com/cbsnewspath/ time to go’ and we go. Maybe they see guards-9news/73-1ee788f1-41db-4fed- status/1324517950880051200?s=20. somebody drive by more than once.” b811-d25b44ee950d. Mahoney added that news outlets can However, the Post argued that “[t]he The incident involving Dolloff and should perform risk assessments decision to hire personal security also prompted ethical discussions by to determine what steps are needed to brings ethical questions. Do media journalists and media ethics experts. On protect journalists. He also advocated disclose they have security? Do they October 18, the Denver Post reported for journalists to be trained in how to require security to wear identification?” that other news outlets had also hired address dangerous situations. “If you The Post stated that “[o]pinions are security during protests in Denver, go out to a street protest in the U.S., mixed. Some say identifying security including ABC News, which “hired local you’re going to see everything from might prevent journalists from getting hit freelance video journalist Carl Filoreto experienced, well-equipped, well-trained with pepper spray or projectiles fired by to cover the demonstrations — and paid journalists to an independent journalist police, but it might not work the other for armed security guards to accompany with an iPhone,” Mahoney said. way when facing the general public.” Put him.” Filoreto told the Post, “I never Chris Roberts, an associate differently, observers were torn between felt threatened in Denver but knowing professor in the University of Alabama’s the value of police keeping journalists you have that extra set of eyes on you Department of Journalism and Creative safe versus the risks to journalists’ that are there for protection, it’s very Media, told the Post, “Crazies follow independence. reassuring when you’re out covering that television cameras the way moths follow Roberts told the Post that one main kind of thing.. . . You just never know flames.. . . It’s reasonable to have some concern about employing security is what spark is going to incite a major sort of security.” that “identifying security accompanying confrontation.” On Oct. 13, 2020, the Poynter Institute journalists while covering a police In an interview with the Post, of Media Studies (Poynter), a non-profit protest could confuse the general public, Committee to Protect Journalists journalism school and research who might see the security guards as law (CPJ) deputy executive director organization in St. Petersburg, Fla., enforcement. And part of the strategy Robert Mahoney noted that large stated that several journalists told the behind security sometimes means it is news organizations like CNN and The organization that “from networks to local invisible.” New York Times employ in-house stations, it has become common practice Vazquez asserted that the presence security, while smaller outlets hire to send security officers with news of security guards changed the way outside contractors due to fewer crews, and that it is not at all uncommon reporters approach some stories. resources. Regardless of the type of in some TV markets for those guards to “What we have decided is we are going security, Mahoney contended that be armed.” to approach every single situation “[t]he environment for news reporters Poynter Author and Senior Faculty differently,” Vazquez said. “When we and media crews has become more for Broadcast Al Tompkins wrote go out on an assignment, we have a dangerous in recent years.. . . You’re that this was not surprising given the little meeting with the guard and agree out there covering stories against the number of attacks faced by journalists that if we get in the thick of it that we backdrop of people seeing the media from protesters and police. He immediately move out of the thick of as the ‘enemy of the people.’ There’s wrote, “Cameras attract trouble and it. Maybe we go in with our cellphone background music of hostility against troublemakers. Veteran journalists I cameras to keep a low profile.” the media before you even get out on the spoke with told me they feel they need Chris Post, chair of the National streets.” security to travel with them because Press Photographers Association’s For example, on May 30, 2020, the journalists are under attack from all (NPPA) Safety and Security Committee, U.S. Press Freedom Tracker reported sides.” told Tompkins he understood why that “[i]n the span of two minutes Tompkins provided the example of journalists feel the need for security, but on May 30, . . . a news crew from San Francisco television stations, which emphasized the role of the guards should [Minneapolis, Minn.] NBC-affiliate began sending guards with their crews be “verbal de-escalation.” Otherwise, KARE 11 that was covering protests and during the “Occupy Wallstreet” protests the presence of security could lead to unrest in Minneapolis . . . was held up at in 2011. According to Tomkins, veteran a situation escalating unnecessarily. gunpoint by one man, and threated by journalists resisted because they wanted “There is a belief structure that has been another man wielding a crowbar.” The to appear independent, meaning “not created over several years,” Post said, crew members included investigative affiliated with any organization, not “where the media is the enemy.” journalist A.J. Lagoe and photojournalist with the police or anybody,” as stated by NPPA general counsel Mickey Devin Krinke. KPIZ-TV reporter Joe Vazquez. Osterreicher contended in an interview On Nov. 5, 2020, a Twitter account Vazquez explained that he and others with Poynter that using armed security for CBS Newspath, which provides had adjusted. “We started to learn “is more of a decision by news content to network affiliates and that our security guards, most of them organizations than by journalists.” He owned-and-operated stations, tweeted retired, experienced police officers, added, “It may be a decision made to that KPHO reporters and anchors draw an imaginary perimeter around protect the organization from liability (or in Phoenix, Ariz. were “told to wear us and confront anyone who breaches even an insurance requirement) as much bullet proof vests because of death that perimeter,” Vazquez said. “These are as to protect the journalists themselves. threats directed at the station and its experienced officers, they are the ones It may or may not be something those employees” amidst protests over the who are steeped in de-escalation. We journalists agree with but as employees

16 or contracted freelancers they must article is available online at: https:// However, the letter then noted that follow.” ethics.journalism.wisc.edu/2020/06/05/ the press “is the only [profession] Osterreicher continued, “The bigger five-problems-with-your-protest- explicitly named and protected in question . . . is what training and coverage/. the U.S. Constitution. Despite the qualifications those guards have and time-tested First Amendment, law if they are hired directly by the news Media Advocacy Organizations Pen enforcement authorities nationwide have organization or through a security firm. Letter Emphasizing the Importance been targeting and arresting journalists Another issue to be examined is the and Rights of the Press Covering with alarming frequency in recent use of force and self-defense statutes Protests and Public Events Free years, and especially during this year’s in each state as well as the licensing From Police “Harassment” protests.” The letter also explained the requirements to be able to carry a On Oct. 30, 2020, the Society negative effects and consequences of firearm (open or concealed).” of Professional Journalists (SPJ), the police, intentionally or not, targeting Nevertheless, Mahoney, Roberts, and along with 25 other journalism members of the press, including that Osterreicher each told the Denver Post groups, including the National Press “journalists can’t do their jobs without that “[a]t the end of the day, news outlets fear of harassment, have a responsibility to keep their “We the people are less able to govern violence or arrest, journalists safe.” or that charges Previously, media education and ourselves absent the ability to know against them aren’t advocacy organizations have provided what is going on in our society. And dropped as quickly journalists with guidelines and advice journalists are instrumental in making as possible once when covering protests. For example, the facts are sorted in June 2020, the Reporters Committee sure that Americans stay informed.” out.” for Freedom of the Press published its The letter guide titled, “Police, Protesters, and the — Letter from the Society of Professional therefore called Press.” The purpose of the guide, which Journalists and other journalism groups to law on the law was originally published in 2018 before enforcement organizations enforcement being updated in 2020, was to “help organizations “to journalists understand their rights at Photographers Association (NPPA), change this.” It read, “You can influence protests and avoid arrest when reporting the Brechner Center for Freedom of the attitudes and actions of your on these events. It summarizes the Information at the University of Florida, members. You can ask them to refrain legal landscape and provides strategies and the Student Press Law Center from arresting journalists — and if and and tools to help journalists avoid (SPLC), a non-profit organization in when journalists have been arrested, incidents with police and navigate them Washington, D.C., sent a letter to 28 you can ask prosecutors to drop charges successfully should they arise.” law enforcement organizations across against them. We the people are less RCFP’s full guide is available online the United States emphasizing that able to govern ourselves absent the at: https://www.rcfp.org/resources/ journalists have a right to cover protests ability to know what is going on in our police-protesters-and-the-press/. and news events without fear of arrests, society. And journalists are instrumental On June 5, the University of attacks, or threats by police under in making sure that Americans stay Wisconsin-Madison School of Journalism the First Amendment. Among the law informed.” The letter added, “We urge and Mass Communication (SJMC) Center enforcement agencies was the American you to speak out against the arrests of for Journalism Ethics posted a series of Criminal Justice Association, the Federal journalists in the field and to encourage five “problems” with protest coverage, as Law Enforcement Officers Association, better officer training.” well as recommendations for correcting and the National Association of Police The letter concluded by stating, such issues. For example, Doug McLeod, Organizations. “When journalists tell the stories of the the SJMC Evjue Centennial Professor The letter began by stating that communities your members protect in the School of Journalism & Mass “[i]t is no secret that 2020 has been a and serve, they tell the stories of your Communication, contended that a unique and challenging year for all of officers as well. There must be a way problem with protest coverage is framing us. Law enforcement professionals and for both law enforcement officials and it “as a contest between protesters and journalists alike face new and greater journalists to do their respective jobs. police.” McLeod recommended instead challenges and more scrutiny than ever Respectfully, all journalists need to do that journalists represent protesters as before.” The letter also acknowledged their work without any officers stifling “part of the community and that they “the difficult job you are required to do it.” are citizens actively engaged in trying every day.” The letter continued, “We see The full letter is available online to bring about positive social change. it up close. The scenes and situations at: https://www.spj.org/pdf/ldf/law- Whether the audience agrees with them that demand so much of your attention enforcement-letter.pdf. or not, it is important to see them not as are often the same as ours. We both have troublemakers but as active citizens who obligations, through our professions, to are expressing opinions and attempting the American public: Yours is to protect. — Scott Memmel to make changes in society.” The full Ours is to inform.” Postdoctoral Associate

17 Court Access and Medical Privacy Issues Arise in Wake of George Floyd Killing n fall 2020, several notable the Silha Bulletin; “Journalists Covering the raw footage from cameras or the single access-to-information and privacy Fallout from George Floyd Death Take transmission feed that is produced that issues arose stemming from the Legal Action; Misinformation Underscores would prevent any other media outlet or police killing of George Floyd on May Lessons from 2020 Silha Spring Ethics entity from using, broadcasting, or sharing 25, 2020. On November 4, Hennepin Forum” in the Summer 2020 issue; and the footage or any other free use thereof.” ICounty District Judge Peter Cahill ruled “Special Report: Journalists Face Arrests, The pool producer must also provide a that the upcoming trial of police officers Attacks, and Threats by Police Amidst transmission feed to the Minnesota Judicial charged in connection with Floyd’s Protests Over the Death of George Floyd” Branch for use on its website. death may be recorded, broadcast, and in the Winter/Spring 2020 issue.) Attached to Cahill’s order was a livestreamed — the memorandum that explained his reasoning. first time a trial Judge Allows Audio-Video Recording, The memorandum recognized that the ACCESS judge has allowed Livestreaming of Trial issue of trial access is premised on two such access in On Nov. 4, 2020, Hennepin County rights. First, Cahill wrote that defendants Minnesota history. The Minnesota Attorney District Judge Peter Cahill issued an order have a right to a public trial under the Sixth General subsequently filed a motion asking allowing live audio and video coverage Amendment of the U.S. Constitution and Cahill to reconsider the order. A media of the trial. The order noted that all Article One, Section Six of the Minnesota coalition opposed the Attorney General's defendants requested audio and video Constitution. Public trials help ensure that reconsideration request. Cahill later broadcast of the trial, but that the state did “the public may see [the defendant] is fairly affirmed his original order. On October not consent to audio-video coverage. The dealt with and not unjustly condemned, and 12, the Minnesota Attorney General asked order states that the trial “may be recorded, that the presence of interested spectators Cahill to prevent public access to all new broadcast, and livestreamed in audio may keep his triers keenly alive to a sense court filings in the criminal case involving and video” subject to certain conditions. of their responsibility and the importance the police officers for 48 hours so lawyers The order restricts such coverage to the of their functions.” Second, Cahill found could assess whether any information in the courtroom and only during trial sessions. that the press and public have a right of filings should be withheld from the public. A The order further states that “only matters access to public trials pursuant to the media coalition opposed the request, which that are on the record are subject to audio First Amendment of the U.S. Constitution. Cahill denied. On October 10, KARE-11 coverage.” Sidebar discussions between Quoting Globe Newspaper Company v. journalist Chris Hrapsky filed a request the court and counsel are presumed to be Superior Court for Norfolk County, 457 with the Hennepin County District Court off the record unless the court otherwise U.S. 596 (1982), Cahill wrote: “Public to access materials that Cahill reportedly indicates. Matters that are off the record scrutiny of a criminal trial enhances the reviewed before allowing Derek Chauvin, may be covered by video, but only when the quality and safeguards the integrity of the police officer charged with killing Floyd, trial is in session and when the judge is on the factfinding process, with benefits to to live in an undisclosed location potentially the bench. The order restricts photography both the defendant and to society as a out of state until the trial commences and audio recording in all other parts of whole.. . . Moreover, public access to the because of safety concerns. Finally, on the Hennepin County Government Center criminal trial fosters an appearance of September 24, the Minneapolis Star where recording is prohibited. fairness, thereby heightening public respect Tribune reported that multiple Hennepin The court order further limits what for the judicial process. And in the broadest Healthcare employees had improperly cameras and microphones can cover. terms, public access to criminal trials accessed Floyd’s medical records. Lawyers Jurors and potential jurors may not be permits the public to participate in and for the Floyd family responded by saying video recorded, nor can there be audio serve as a check up on the judicial process that they were exploring their options in coverage of any in camera examination — an essential component in our structure response to the invasion of privacy. of potential jurors. There can be no video of self-government.” Four Minneapolis police officers have coverage of witnesses who are under the Cahill acknowledged that his order been criminally charged in connection age of 18, unless they and at least one provides access beyond what is authorized with Floyd’s death. Derek Chauvin, who parent or guardian have consented in under Minnesota Supreme Court rules, pinned his knee on Floyd’s neck, is facing writing. The order further prohibits video which prohibit audio-video recording charges of second-degree murder and coverage of members of the George Floyd and reproduction except when all parties second-degree manslaughter. Officers family without their consent. consent. Minn. Gen. R. Prac. 4. The rule Thomas Lane, J. Alexander Kueng, and Cahill’s order provides that up to three can normally be applied without concerns Tou Thao are each charged with aiding and video cameras may be installed in the trial that it would “impinge on the right to a abetting murder and manslaughter. (For courtroom. The cameras will be operated public trial or the right of access held by more information on Floyd’s death, protests by one media organization (pool producer), the public and press,” Cahill wrote, because that followed, incidents between the press which the court will select. The pool spectators would usually be able to freely and police, incidents between the press and producer will provide a transmission of attend the proceedings in person, including demonstrators, and subsequent litigation, the video feed to other media outlets and journalists. “The instant situation, however, see “Ongoing Protests and Confrontations to overflow courtrooms. The order states not only is abnormal — it is in fact quite Between the Press and Police Prompt that “[n]either the [p]ool [p]roducer nor any unique,” Cahill wrote, citing three major Legal Action, Ethical Debates, and Media media outlet will hold a copyright or any factors in particular. Advocacy” on page 10 of this issue of other intellectual property right for any of

18 First, Cahill said that social distancing had addressed similar issues previously reconsideration with the court, asking during the COVID-19 pandemic means far in the case, which may have informed Cahill to either prohibit recording and fewer people than normal can physically Judge Cahill’s decision. “The media has livestreaming unless all parties consent sit in a courtroom to observe the trial. intervened in this case twice before — in or narrow his order so all witnesses who This is true even taking into account that July and again in October — and I think testify can object to being recorded and Hennepin County has rebuilt a courtroom those public, substantive briefs probably livestreamed. The Attorney General argued specifically for the upcoming trial. Second, did inform the judge’s thinking on the that allowing audio-video coverage of because most police officers will be tried First Amendment rights of access,” Walker witnesses without their consent could at once, more people will be involved wrote in an email to the Bulletin. The Silha lead to harassment and intimidation and in the proceedings. And third, the case Center for the Study of Media Ethics and might discourage them from participating. has attracted significant attention from Law was part of the media coalition that “Ordinary citizens have been thrust into the public and from news organizations had previously intervened in the case. these proceedings simply because they locally, nationally, and internationally, In response to Cahill’s decision, Silha witnessed George Floyd’s death,” the and thus numerous journalists will be on Center Director and Silha Professor of Attorney General’s motion reads. “They hand to cover the proceedings. “This court Media Ethics and Law Jane Kirtley told should not be forced to sacrifice their concludes that the only way to vindicate the Minneapolis Star Tribune that the privacy or suffer possible threats of the defendant's constitutional right to a ruling is an exemplar of how judges should intimidation when they perform their civic public trial and the media's and public’s approach courtroom access. “I’m thrilled,” duty and testify.” The Attorney General constitutional right of access to criminal Kirtley told the newspaper. “This is the further pushed back against Cahill’s trials is to allow audio and video coverage kind of memorandum I’m going to give my conclusion that audio-video coverage of the trial, including broadcast by the students to say, ‘This is what a judge should is constitutionally required because of media in accordance with the provisions on say about cameras in the courtroom.’” the special circumstances, namely the the attached order,” Cahill wrote. Mitchell Hamline School of Law Professor significant number of trial participants, Thus, Cahill concluded, following Raleigh Levine told the Star Tribune that social distancing requirements because Minnesota Supreme Court rules would the level of access afforded by Cahill’s of COVID-19, and intense public and mean “that nothing would be known about order may help the public better trust the press interest in the case. The Attorney the empaneled jurors, all witnesses could judicial process. “This ruling is not only General argued that the court does not veto coverage of their testimony, and the unusual for Minnesota but it goes farther have discretion to deviate from existing public would be left with nothing but the than the U.S. Supreme Court has gone in Minnesota Supreme Court Rules governing arguments of counsel.” That “is hardly interpreting the very broad right to public cameras in the court, which require consent a basis for the public ‘to participate in access,” Levin said. “Given the intense from the parties. Minn. Gen. R. Prac. 4. and serve as a check upon the judicial feelings that the murder has generated, I “The State absolutely welcomes a public process,’” Cahill said, quoting Globe think it makes a lot of sense to say we can trial; it just wants that trial to proceed Newspaper Company. Cahill wrote that avoid a lot of angst, we can possibly even under the rules Minnesota has devised to the order “seeks to accommodate the avoid protests if people can see what’s protect the privacy and safety of witnesses, interests served by the current rule by going on in the courthouse and reassure to safeguard them from undue publicity and expanding audio and video coverage only themselves as to the fair administration of harassment that might make them reluctant as necessary to vindicate the Defendants’ the trial by the judge.” to testify, and to thereby ensure that the constitutional right to a public trial and Suki Dardarian, managing editor trial may best perform its truth-seeking the public’s and press rights of access to of the Star Tribune, one of the outlets function,” the Attorney General’s motion criminal trials in the unique circumstances that pushed for courtroom access, said reads. The Attorney General’s motion for currently prevailing in the COVID-19 the decision is historic for cameras in reconsideration is available online at: pandemic and the intense public and Minnesota courtrooms. “Minnesota’s rules https://www.mncourts.gov/mncourtsgov/ media interest in the cases.” Doing so on cameras in the courtroom are among media/High-Profile-Cases/27-CR-20-12646/ helps ensure that “‘the public may see the most restrictive in the country, so Motion11252020.pdf. [that Defendants] [are] fairly dealt with we are extremely gratified that the court On December 14, the media coalition, and not unjustly condemned, and that the determined that both the defendants’ right which had not previously submitted formal presence of interested spectators may to a fair, public trial and the media’s right briefing on the issue of camera access, keep [their] triers keenly alive to a sense of of access can be met by providing live filed an opposition to the state’s motion their responsibility and the importance of coverage,” Dardarian told the newspaper. for reconsideration. The coalition made their functions,’” Cahill concluded, quoting Attorney Earl Gray, who represents one two primary arguments. First, the media Waller v. Georgia, 467 U.S. 39 (1984). of the police officers charged in the case, coalition argued that if the courtroom A full copy of Cahill’s order and described his experiences with cameras in is closed to the public and press, “then memorandum is available online at: the court in Wisconsin, where cameras are the First Amendment requires expansive https://mncourts.gov/mncourtsgov/media/ allowed more often than in Minnesota. “It audio-visual coverage.” The coalition wrote High-Profile-Cases/27-CR-20-12646/27- doesn’t interfere with anybody’s procedures that the key question “is not whether the CR-20-12646_Order-Regarding-Audio-Video- in the courtroom,” Gray told the Star Constitution requires the live broadcast Coverage.pdf. Tribune. “We never show the jury. They’re or recording of a criminal trial — no one The news media did not initially submit never on TV. It’s just the witnesses, the is arguing that it does, at least under a brief on the issue of audio-video coverage judge and the lawyer. I thought that’s way normal circumstances. Rather, the question of the trial. However, media coalition overdue.” is about what reasonable measures attorney Leita Walker of Ballard Spahr On November 25, Minnesota Attorney the Court must take, given the actual LLP told the Bulletin that media outlets General Keith Ellison filed a motion for Floyd, continued on page 20 19 Floyd, continued from page 19 On December 18, Cahill affirmed his County District Judge Peter Cahill to circumstances, to preserve the public trial original order, “conclud[ing] that televising temporarily seal new court documents as rights guaranteed under the First and Sixth the trial is the only reasonable and they are filed in the criminal case of the Amendments” (emphasis in original). meaningful method to safeguard the Sixth four police officers charged in connection The coalition then pointed to six and First Amendment rights implicated with George Floyd’s death. The purpose important circumstances at issue in these cases.” In the order, Cahill again for the sealing, the state said, was to here: “(1) the extreme interest in these noted that a special courtroom was being assess whether any information in the prosecutions, which involve issues of renovated to host the trial to allow for filings should be withheld from the public. utmost public concern at an international social distancing during the COVID-19 The Attorney General raised concerns (but also intensely local) scale”; “(2) the pandemic, and that the public gallery that filings in the case might include inherent danger, during the pandemic, in had to be removed to accommodate all inadmissible or protected evidence, which requiring those interested in observing trial participants. In the end, only one if made public could prejudice the jury. the trial to come to the courthouse to seat would remain in the courtroom for a “A temporary protective order lasting two do so, as large crowds will undoubtedly non-trial participant, and if the trial were business days will ensure the parties and assemble”; “(3) the likelihood that social televised, a technician would likely have to the Court have sufficient time to review distancing requirements will limit the use the seat. future filings and exhibits before they number of spectators in overflow rooms “No other seating is available in the are made public — and, if necessary, will to a mere fraction of those who wish to trial courtroom,” Cahill wrote. “It would permit the parties to object to the public attend (and no spectators will be allowed be farcical to say that this arrangement, disclosure of that information, and allow in the courtroom itself)”; “(4) the utter by itself, provides meaningful access to the Court to order further briefing and set inadequacy of a closed-circuit feed”; “(5) the public or the press or vindicates the a briefing schedule on a motion opposing the existence of technology that will, defendants’ right to a public trial.” Cahill public disclosure,” the Attorney General’s without disrupting trial . . . enable anyone also responded to the state’s argument motion read. who wants to observe the trial to do so that there is not a constitutional right On October 14, the Attorney General in real time, from the safety of their own for a televised criminal trial. “This Court filed another motion seeking to restrict homes via high-quality livestream”; and “(6) never said there was,” Cahill wrote. “This access to video from a 2019 traffic stop that audio-visual coverage will occur not Court merely concluded that audio and in which Floyd was a passenger in the over the criminal Defendants’ objection, video coverage of the trial despite the vehicle. Counsel for one of the defendants but with their consent and at their request.” State’s objection is the only reasonable had asked the court to introduce the video Thus, the coalition said, “it is of no alternative to ensure a truly public trial for as evidence. The state argued that the moment that the State is ‘not aware of a the defendants and meaningful access to recording, at least at the time the motion single case — from Minnesota, or any other the trial for the public and the press. Those was filed, was inadmissible and should not jurisdiction — holding that the Constitution rights are constitutional in nature and must be publicly-accessible because it could mandates the public broadcast of an entire be protected.” prejudice the jury and taint the jury pool. criminal trial.’ . . . No court has ever faced Cahill also rejected the argument “If the records filed about the victim in the challenges this Court is facing and that an overflow courtroom would be a this case are made public, they are likely no court has ever tried to address those “reasonable solution.” Numerous members to be widely broadcast, and will have the challenges as this Court proposes.” of the public and press would likely be obvious potential to prejudice the jury Second, the media coalition argued that vying for access every day during the trial, pool,” the Attorney General’s motion reads. claims about “witness concerns for privacy which would complicate if not violate “The harm is likely to be particularly severe and safety are speculative” and “must be social distancing rules. Cahill questioned here because evidence of this incident addressed on an individualized basis.” This how many overflow courtrooms would be has already been ruled inadmissible. argument was raised in response to the necessary, and acknowledged that overflow Inadmissible evidence is particularly state’s request that if audio-visual coverage courtrooms do not sufficiently replicate the prejudicial because a court has found that could not be barred entirely, then coverage experience of being in a trial courtroom. A it is not proper evidence for the jury to should be allowed only if testifying copy of Cahill’s order is available online at: consider.” witnesses consent. The coalition argued https://z.umn.edu/6jq6. On October 15, a media coalition, that consent limitations were incorporated On Jan. 11, 2021, Cahill ordered that including the Silha Center for the Study into Rule 4.02 not out of concern about any Chauvin would be tried separately from the of Media Ethics and Law, opposed the potential “chilling effects” on witnesses, three other defendants because of social- Attorney General’s request for a protective but rather, because “coverage could distancing restrictions under COVID-19 order. The state’s motion, the coalition prejudice defendant’s right to a fair trial.” and the number of lawyers and support said, “turns the common law and the The coalition noted that in this case, the staff who will be present for each of the First Amendment on their head.” The defendants want audio-visual coverage. defendants. Chauvin’s trial is scheduled coalition argued that “the law is clear The coalition also cited Waller v. Georgia, to start March 8. The trial for the three that under both the common law and in which the U.S. Supreme Court found remaining defendants is scheduled to start the First Amendment the press and the that “a public trial encourages witnesses August 23. public have a contemporaneous right of to come forward and discourages perjury” access to criminal proceedings” (emphasis (emphasis in original). 467 U.S. 39 (1984). Judge Denies Prosecution Request For in original). Once a document is filed in The coalition further highlighted that no Two-Day Delay in Release of Court court, it is presumptively public, and even witness thus far has raised a concern about Filings short delays can raise First Amendment “testifying in front of a camera.” The media On Oct. 12, 2020, Minnesota Attorney concerns. The coalition further argued coalition’s opposition is available online at: General Keith Ellison asked Hennepin that the state’s request for a 48-hour hold https://z.umn.edu/6jq7. 20 on public access to new court filings request with the Hennepin County District on confidentiality of patient information, would be unworkable during trial. “[T]wo Court seeking to access “the in-camera according to the newspaper, which had business days during a fast-moving trial is evidence presented to Judge Cahill showing obtained dismissal letters issued to five an eternity,” the media coalition argued. how/why Mr. Chauvin’s safety is at risk.” employees pursuant to a public records “Under the State’s proposal, it is not just On October 15, Hennepin County District request. Although the letters did not possible but quite probable that the Court Court Communications Specialist Spenser specify whose patient information was would receive and rule upon some issue Bickett responded to Hrapsky’s request and breached, they did refer to a “high profile before the two-business-day window wrote “There is no record of the in camera patient” and a case that was receiving news passes, leaving the media and the public evidence you have requested access to.” coverage. After the letters were sent to it serves completely in the dark about Bickett suggested that Hrapsky contact the employees, Hennepin Healthcare also the issue, the substantive support for the the Minnesota Department of Corrections wrote to Floyd’s family notifying them that parties’ arguments, the Court’s ruling, and for additional information. A copy of several workers had accessed his private how that ruling may change the trajectory Hrapsky’s request is available online data and were no longer employed by the of the trial. There is thus a real likelihood at: https://mncourts.gov/mncourtsgov/ hospital. that journalists covering the proceedings media/High-Profile-Cases/27-CR-20-12646/ The letters obtained by the Star Tribune will end up confused and that their RequestforAccess10102020.pdf. show that some employees offered coverage will reflect that confusion, to the Several days earlier, Chauvin was explanations for why they reviewed the detriment of the public.” released from prison after he posted bail on medical records. One employee said The coalition suggested that the state a bond of $1 million. Under the conditions they were “concerned about the safety of and defense could arrange a process in of his release, Chauvin must carry a mobile the paramedics that had worked on this which they exchange draft filings and phone with him at all times and keep in patient.” Another letter reviewed by the wait two days before filing the documents contact with the Minnesota Department of newspaper showed that a lab specialist publicly with the court. “What matters to Corrections and other agencies, according claimed to have looked at the patient’s the Media Coalition — and what is required to the Star Tribune. records because of a request from the by the law — is that motions to seal get On November 20, the Star Tribune medical examiner, but that the employee filed before the sealing occurs and that reported that a judge rejected a proposed later said they “did accidentally slip those motions themselves are publicly divorce agreement between Chauvin up.” The letter reads: “You stated that filed (along with a redacted copy of the and his wife, Kellie Chauvin. Washington co-workers were talking about the medical materials at issue) so that members of the County District Judge Juanita Freeman information that was being reported on the press and public can review them, and if ruled that a judge may deny an agreement news, and you clarified for them what was the situation warrants, respond and request when “the transfer features ‘badges of stated/written in the medical record.” a meaningful opportunity to be heard,” fraud,’” according to the newspaper. “The A spokesperson for Hennepin the media coalition argued. A copy of the Court has a duty to ensure that marriage Healthcare would not answer questions media coalition’s opposition to the state’s dissolution agreements are fair and from the Star Tribune about the privacy request for a protective order is available equitable,” Freeman wrote in an order, beaches but said the hospital performs online at: https://www.mncourts.gov/ according to the Star Tribune. “One badge “privacy audits” and has an obligation mncourtsgov/media/High-Profile-Cases/27- of fraud is a party’s transfer of ‘substantially to notify patients whose privacy has CR-20-12646/Memorandum10152020.pdf. all’ of his or her assets.” The newspaper been breached. In a statement to the On October 15, Cahill issued an oral included comment from divorce attorneys newspaper, attorneys for the Floyd family ruling denying the state’s request to seal not involved in the case who said the said they were examining ways to “make the May 2019 video of Floyd and further ruling “adds to suspicions that Derek and this right and make the family whole denying the state’s motion for a 48-hour Kellie Chauvin are trying to protect their for this incredible intrusion of privacy.” protective order on all new filings in the assets.” The terms of the divorce settlement They continued, “The security of medical case, according to the Minneapolis Star are not known publicly because they are records and personal information is of Tribune. However, Cahill did say he would under seal. (For more information about critical importance in Minnesota and not allow any photos, video, or audio the sealing of the Chauvins’ divorce file, across the country.” The law firm added: to be included in any future filings. Any see Multiple Disputes Arise About Access “When George Floyd was desperate for a audio-visual material already filed may be to Information in “Journalists Covering breath, the city of Minneapolis pushed on accessed at the courthouse. Fallout from George Floyd Death Take his neck further. And even after death, he Legal Action; Misinformation Underscores was abused and mistreated by the system. KARE-11 Reporter Requests Evidence Lessons from 2020 Silha Spring Ethics Shameful.” Showing Safety Threats Against Derek Forum” in the Summer 2020 issue of the On September 11, the HIPAA Journal Chauvin Silha Bulletin.) wrote that the alleged privacy breaches On Oct. 10, 2020, the Minneapolis Star were “in clear violation of hospital policies Tribune reported that Hennepin County Hospital Employees Fired After and the Health Insurance Portability District Judge Peter Cahill allowed Derek Improperly Accessing George Floyd’s and Accountability Act (HIPAA).” As the Chauvin, one of the officers charged in Medical Records Bulletin went to press, the Floyd family connection with George Floyd’s death, On Sept. 24, 2020, the Minneapolis Star had not filed a lawsuit in relation to to live in a state adjacent to Minnesota Tribune reported that multiple Hennepin reported privacy breaches. while free on bail because of “unspecified Healthcare employees had improperly safety concerns.” Following that decision, accessed George Floyd’s medical records. — Jonathan Anderson KARE-11 journalist Chris Hrapsky filed a The conduct violated the hospital’s policy Silha Bulletin Editor

21 Justice Ginsburg Passes Away; Authored and Joined Key First and Fourth Amendment Majority and Dissenting Opinions n Sept. 18, 2020, U.S. relation to speech and the press in Confidentiality Law” in the Summer 2011 Supreme Court Associate two areas: 1) commercial speech and issue of the Silha Bulletin.) Justice Ruth Bader Ginsburg 2) “the intersection between the First Regarding copyright, Justice died of complications Amendment and copyright law.” Ginsburg authored majority opinions of metastatic pancreatic Hudson wrote, “Ginsburg’s First in two significant copyright cases. Ocancer. Justice Ginsburg, who was 87 Amendment jurisprudence . . . is marked In Eldred v. Ashcroft, 537 U.S. 186 years old, was revered as a crusader for by a generally strong commitment to (2003), the Supreme Court held that women’s rights and equality, but also the protection of commercial speech the Copyright Term Extension Act authored and or advertising.” He cited Justice of 1998 (CTEA), which extended the SUPREME joined several Ginsburg’s majority opinion in Ibanez terms of existing and future copyrights COURT majority and v. Florida Department of Business by 20 years, did not violate the First dissenting opinions and Professional Regulation, 512 Amendment. Justice Ginsburg wrote, in key First and Fourth Amendment U.S. 136 (1994), in which she held that “The First Amendment securely protects cases. Silvia Safille Ibanez, an attorney and the freedom to make — or decline to On June 14, 1993, Ginsburg accepted public accountant, had not intended make — one’s own speech; it bears President Bill Clinton’s nomination to to deceive the public and was merely less heavily when speakers assert the the Supreme Court where she served disclosing information in a Yellow Pages right to make other people’s speeches.” for over 27 years before her death. advertisement stating that she was a Justice Ginsburg’s ruling is available Her most notable majority opinion in certified public accountant and a certified online at: https://www.law.cornell.edu/ a free speech case came in Buckley financial planner. Justice Ginsburg’s supct/html/01-618.ZO.html. (For more v. American Constitutional Law full ruling is available online at: https:// information on Eldred, see “Recent Foundation, 525 U.S. 182 (1999). She casetext.com/case/ibanez-v-florida-dept- Developments in Copyright Law: held that Colorado violated the First of-bus-prof-reg. Copyright Term Extension Upheld as Amendment when it required people Hudson added that Justice Ginsburg Constitutional” in the Winter 2003 issue of circulating petitions to place initiatives “consistently voted with her colleagues the Silha Bulletin.) on a general ballot to meet three in cases that held the government to Nearly a decade later, in conditions — 1) be registered voters, a strict standard when attempting Golan v. Holder, 565 U.S. 302 (2012), 2) wear an identification badge bearing to regulate truthful, non-misleading the Court upheld the constitutionality the circulator’s name, and 3) file monthly advertising — such as the alcohol of Section 514 of the Uruguay Round disclosures — all violated the First advertising decision 44 Liquormart, Inc. Agreements Act (URAA), which restored Amendment. v. Rhode Island (1996)[.]” In that case, copyright protection for thousands of Justice Ginsburg cited the Court’s the Supreme Court held that Rhode foreign works that were previously in the ruling in Meyer v. Grant, 486 U.S. 414 Island’s complete ban on advertisements public domain. Justice Ginsburg cited her (1988), in which it held that “petition providing the retail price of alcoholic opinion in Eldred v. Ashcroft and wrote, circulation is ‘core political speech’ for beverages violated the First Amendment. “Neither the Copyright and Patent Clause which First Amendment protection is ‘at 517 U.S. 484 (1996). nor the First Amendment, we hold, makes its zenith’” and that the First Amendment Hudson noted, however, that the public domain, in any and all cases, “requires vigilance . . . to guard Justice Ginsburg joined the dissenting a territory that works may never exit.” against undue hindrances to political justices in Sorrell v. IMS Health Inc., Justice Ginsburg’s ruling is available conversations and the exchange of ideas.” 564 U.S. 552 (2011). Justice Stephen online at: https://scholar.google.com/ She added, “Colorado’s registration Breyer wrote in the dissenting opinion scholar_case?case=3239612723066820072. requirement drastically reduces the that “[t]he First Amendment does Justice Ginsburg also authored notable number of persons, both volunteer and not require courts to apply a special concurring opinions, including in cases paid, available to circulate petitions. ‘heightened’ standard of review when implicating freedom of the press. Los That requirement produces a speech reviewing . . . a lawful governmental effort Angeles Police Department v. United diminution of the very kind produced by to regulate a commercial enterprise.” Reporting Publishing Corporation, 528 the ban on paid circulators at issue in Conversely, the majority opinion written U.S. 32 (1999), arose when California Meyer.” Justice Ginsburg’s full ruling is by Justice Anthony Kennedy held that “amended Cal. Govt. Code Ann. § 6254(f) available online at: https://supreme.justia. a Vermont law restricting “the sale, (3) to require that a person requesting an com/cases/federal/us/525/182/. disclosure, and use of pharmacy records arrestee’s address declare that the request In a Sept. 24, 2020 commentary for the that reveal the prescribing practices of is being made for one of five prescribed Freedom Forum, David L. Hudson Jr., individual doctors” “imposes a speaker- purposes and that the address will not an assistant professor of law at Belmont and content-based burden on protected be used directly or indirectly to sell a University and a First Amendment Fellow expression,” necessitating a “stricter product or service.” United Reporting at the Freedom Forum, explained that form of judicial scrutiny.” (For more Publishing had previously provided Justice Ginsburg’s First Amendment information on Sorrell, see “U.S. Supreme “names and addresses of recently jurisprudence was most notable in Court Invalidates Vermont Prescription arrested individuals to its customers,”

22 which included attorneys, insurance and photographs, did not violate the ultimately struck down portions of companies, and others. First Amendment. In her dissenting the Bipartisan Campaign Reform Act The Supreme Court held that the opinion, which focused largely on the (BCRA) of 2002, 2 U.S.C. § 441b, a government may selectively grant access issue of summary judgment, Justice federal campaign finance law, because to public record information, reasoning Ginsburg also wrote that she joined it impermissibly discriminated that the Los Angeles Police Department Justice John Paul Stevens in holding against the First Amendment rights (LAPD) was “correct that § 6254(f)(3) that “the justifications advanced by the of corporations to expressly support is not an abridgment of anyone’s right Secretary of Pennsylvania’s Department political candidates.” The 5-4 majority to engage in speech, but simply a law of Corrections (Secretary) do not warrant held that “[b]y suppressing the speech regulating access to information in the pretrial dismissal of Ronald Banks’s of manifold corporations, both for-profit government’s hands.” The Court found complaint alleging arbitrary deprivation and nonprofit, the Government prevents that “this [was] not a case in which the of access to the news of the day.” Her their voices and viewpoints from reaching government [prohibited] a speaker from full dissent is available online at: https:// the public and advising voters on which conveying information that the[y] already supreme.justia.com/cases/federal/ persons or entities are hostile to their possess[]. The California statute . . . us/548/521/. interests.” merely requires respondent to qualify Justice Ginsburg also authored an Justice Ginsburg joined Justice under the statute if it wishes to obtain important dissenting opinion in Federal Stevens’ dissenting opinion in which arrestees’ addresses[.]” Communications Commission v. Fox he primarily contended that he would In a concurring opinion, Justice Television Stations, Inc., 556 U.S. 502 have reached a narrower ruling and Ginsburg agreed with the majority in (2009), in which the majority upheld the that the majority had ignored or worked asserting that “[a]nyone who comes upon Federal Communication Commission’s around existing Court precedent. arrestee address information in the public (FCC) new policy on “indecency,” which Justice Stevens also focused on the domain is free to use that information no longer required that vulgar four- risk of corporations undermining the as she sees fit. It is true . . . that the letter words be repeated in order for the democratic system of self-government, information could be provided to and speech to be actionable. The new policy as well as contending that corporations’ published by journalists, and § 6254(f) therefore banned even a single, “fleeting” “domination” of political speech, (3) would indeed be a speech restriction use of such a word between 10 a.m. and 6 especially during an election, would if it then prohibited people from using p.m. because children could be listening limit the marketplace of ideas. He that published information to speak to or or watching. therefore called for the recognition about arrestees. But the statute contains In her dissenting opinion, Justice of “the integrity of the marketplace of no such prohibition. Once address Ginsburg wrote that “there is no political ideas” in candidate elections. information is in the public domain, the way to hide the long shadow the (For more information on Citizens statute does not restrict its use in any First Amendment casts over what United and Justice Stevens’ dissenting way.” the Commission has done. Today’s opinion, see “Former Supreme Court She further argued that statutes decision does nothing to diminish that Justice John Paul Stevens Passes Away; allowing for “selective disclosure” of shadow.” She further held that the FCC’s Authored Notable First Amendment records is better than “an all-or-nothing decision was “arbitrary, capricious, an Majority and Dissenting Opinions” in regime” because states would be likely abuse of discretion” in violation of the the Summer 2019 issue of the Silha to choose, under such circumstances, Administrative Procedure Act, 5 U.S.C.A. Bulletin and “Supreme Court Strikes to release “nothing” because that would § 706(2)(A), requiring remand of the case Down Campaign Finance Regulation be “a State’s easiest response.” Justice to the agency. Justice Ginsburg reasoned for Corporations” in the Winter/Spring Ginsburg added, “[I]f States were required that the FCC generally “provide[d] no 2010 issue. Campaign finance was also to choose between keeping proprietary empirical or other information explaining the topic of the 2003 Silha Lecture, information to themselves and making it why [its] considerations, which did not featuring attorney Ken Starr. For more available without limits, States might well justify its new policy before [in relation information on his lecture, “Political choose the former option. In that event, to FCC v. Pacifica Foundation, 438 U.S. Liberty: Campaign Finance and the disallowing selective disclosure would 726 (1978)], justify it now.” In April 2013, Freedoms of Speech and Association” lead not to more speech overall but to the FCC adopted the “egregious situation see “Ken Starr Presents 18th Annual Silha more secrecy and less speech.” Her full standard,” meaning it would only pursue Lecture” in the Fall 2003 issue of the Silha concurring opinion is available online at: “egregious cases” of indecency. Justice Bulletin, which is available online at: https://supreme.justia.com/cases/federal/ Ginsburg’s dissent is available online at: https://conservancy.umn.edu/bitstream/ us/528/32/. https://supreme.justia.com/cases/federal/ handle/11299/150038/BulletinFall2003. Justice Ginsburg, who was known us/567/10-1293/case.pdf. (For more pdf?sequence=1&isAllowed=y.) for her sharp dissents in other areas information on Fox Television Stations, Another example was in the area of of law, garnering her the nickname Inc., see “U.S. Supreme Court Ruling student speech. In 2007, the Supreme “the Notorious RBG,” dissented in Leaves FCC’s Ban on Fleeting Expletives Court held in Morse v. Frederick that several First Amendment cases as well, in Place” in the Spring 2009 issue of the school officials can prohibit students often ruling in favor of stronger First Silha Bulletin.) from displaying messages that promote Amendment protections. One such In other significant speech and press illegal drug use. 551 U.S. 393 (2007). The case was Beard v. Banks, 548 U.S. 521 cases, Justice Ginsburg joined her Court further held that although students (2006), in which the majority held that colleague’s dissenting opinions. For do have some right to political speech a prison’s ban on reading materials, example, in Citizens United v. FEC, even while in school, this right does including newspapers, magazines, 58 U.S. 310 (2010), the Supreme Court Ginsburg, continued on page 24 23 Ginsburg, continued from page 23 the “intermediate scrutiny standard,” Justice Ginsburg added that she whereby “a content-neutral regulation “would not allow an expedient knock not extend to pro-drug messages that will be sustained if it advances important to override the warrant requirement. may undermine the school’s mission of governmental interests unrelated to the Instead, I would accord that core discouraging drug use. The case arose suppression of free speech and does not requirement of the Fourth Amendment after a group of high school students, burden substantially more speech than full respect. When possible, ‘a warrant including Joseph Frederick, held up a necessary to further those interests.” must generally be secured,’ the Court sign reading “BONG HiTS 4 JESUS” as the Justice Ginsburg joined the dissenting acknowledges. There is every reason Olympic Torch passed through Juneau, opinion in Turner II, in which Justice to conclude that securing a warrant Alaska. Sandra Day O’Connor argued that the was entirely feasible in this case, Justice Ginsburg once again joined a “must-carry requirements thus burden and no reason to contract the Fourth dissenting opinion by Justice Stevens. an operator’s First Amendment freedom Amendment’s dominion.” Justice In this case, he wrote that the First to exercise unfettered control over Ginsburg’s full dissent is available online Amendment should “protect[] student a number of channels in its system, at: https://casetext.com/case/king-v- speech if the message itself neither whether or not the operator’s present commonwealth-14. violates a permissible rule nor expressly choice is aligned with that of the Justice Ginsburg would also advocates conduct that is illegal and Government.” She ultimately held that promote stronger Fourth Amendment harmful to students.” He concluded, the statute at issue “is not narrowly protections by joining majority rulings “This nonsense banner does neither.” tailored to serve a substantial interest in by her colleagues. For example, in Justice Stevens further argued that the preventing anticompetitive conduct.” Carpenter v. United States, 585 U.S. ___, majority did “serious violence to the Justice Ginsburg also authored 138 S.Ct. 2206 (2018), she joined Chief First Amendment in upholding — indeed, dissenting opinions in Fourth Amendment Justice John Roberts’ majority opinion lauding — a school’s decision to cases, including in Kentucky v. King, holding that government actors need punish Frederick for expressing a view 563 U.S. 452 (2011), which arose when a warrant to obtain historical data with which it disagreed.” (For more Lexington, Ky. police officers “set from cell phone carriers detailing the information on Morse and Justice up a controlled buy of crack cocaine movements of a cell phone user, known Stevens’ dissenting opinion, see outside an apartment complex” and “by as cell site location information (CSLI). “Former Supreme Court Justice John knocking on the door of a residence and (For more information on Carpenter, Paul Stevens Passes Away; Authored announcing their presence, cause[d] see “U.S. Supreme Court Rules Law Notable First Amendment Majority and the occupants to attempt to destroy Enforcement Must Obtain Warrant to Dissenting Opinions” in the Summer evidence.” The Court held that police Access Individuals’ Historical Cell Site 2019 issue of the Silha Bulletin and “In may enter a private home without a Records” in the Summer 2018 issue of the Morse v. Frederick, Court Places Limits warrant under “exigent circumstances,” Silha Bulletin.) on Student Expression” in the Summer such as the imminent destruction of Justice Ginsburg also joined Chief 2007 issue.) evidence, so long as the law enforcement Justice Robert’s opinion in Riley v. Finally, in Turner Broadcasting officers do not create the emergency California, 573 U.S. 373 (2014), in which System, Inc. v. Federal Communications through conduct in violation of the the Supreme Court unanimously held that Commission, 512 U.S. 622 (1994) Fourth Amendment. The Court found that law enforcement officers are required (Turner I), the unanimous Supreme the officers knocking on the door was to obtain a warrant before searching an Court held that the First Amendment “entirely lawful” and “did not violate the arrested individual’s cell phone data. (For allowed for different standards between Fourth Amendment or threaten to do so,” more information on Riley, see “Supreme cable television and broadcast media. The meaning the exigent circumstances rule Court Says Warrants are Required Court concluded that the “less rigorous applies. to Search Cell Phone Data; Possible standard of scrutiny now reserved for Justice Ginsburg, the lone dissenting Implications for NSA Telephony Metadata broadcast regulation . . . should not be vote, wrote that the majority “arm[ed] Collection” in the Summer 2014 issue of extended to cable regulation, since the the police with a way routinely to the Silha Bulletin.) rationale for such review — the dual dishonor the Fourth Amendment’s In his Sept. 24, 2020 commentary, problems of spectrum scarcity and signal warrant requirement in drug cases. In Hudson concluded by writing, “Justice interference — does not apply in the lieu of presenting their evidence to a Ruth Bader Ginsburg was small in stature, context of cable.” neutral magistrate, police officers may but a giant in American jurisprudence However, after the Court remanded now knock, listen, then break the door and — in later years — popular culture. the case to the lower court, the case down, never mind that they had ample Her seminal accomplishments in making returned to the Supreme Court in Turner time to obtain a warrant. I dissent from the world a better place by advocating Broadcasting System, Inc. v. Federal the Court’s reduction of the Fourth for gender equality should not cause Communications Commission, 520 U.S. Amendment’s force.” She provided us to lose sight of her many other 180 (1997) (Turner II). In that case, a five- several reasons, including that “[i]n no contributions, including those to the First judge majority held that the “must-carry” quarter does the Fourth Amendment Amendment.” provisions at issue in Turner I — namely apply with greater force than in our the requirement that “cable television homes, our most private space which, — Scott Memmel systems . . . dedicate some of their for centuries, has been regarded as Postdoctoral Associate channels to local broadcast television ‘entitled to special protection,’” citing stations” — were constitutional under the Georgia v. Randolph, 547 U.S. 103, 115 First Amendment because they satisfied (2006).

24 Associate Justice Amy Coney Barrett Has “Relatively Light” Record on First Amendment and Press Law, Legal Experts Say n Oct. 27, 2020, Amy speaking as a public employee not as the claims was defamation, in which Coney Barrett was a private citizen. Barrett cited Garcetti Shea alleged that his sister filed a “false sworn into office as an v. Ceballos, 547 U.S. 410 (2006), which criminal complaint” that accused him of Associate Justice of the “supplies the test for distinguishing domestic battery and that his brother- U.S. Supreme Court, employee and citizen speech.” (For in-law falsely told sheriff’s deputies that Osucceeding Associate Justice Ruth more information about Garcetti, see he was responsible for a hit-and-run, Bader Ginsburg, who died on Sept. 18, “Government Interference with Speech, improperly used a van owned by his 2020. Before President Donald Trump Garcetti v. Ceballos” in the Spring 2006 mother, and stole his mother’s keys. The nominated Barrett to the Supreme Court, issue of the Silha Bulletin.) Under District Court dismissed the defamation she served as a Garcetti, if speech “owes its existence claim on the grounds that it lacked SUPREME judge on the U.S. to a public employee’s professional sufficient detail. The three-judge panel COURT Court of Appeals responsibilities,” “then the employee upheld the dismissal, but for a different for the Seventh speaks in his capacity as an employee reason: In Illinois, “‘statements made Circuit and was also a professor at Notre rather than a private citizen and his to law enforcement officials, for the Dame Law School. Barrett’s nomination speech is not protected.” The full ruling purpose of instituting legal proceedings, drew scrutiny and commentary about is available online at: https://z.umn. are granted absolute privilege’ from her record on various legal topics, edu/61r5. defamation actions.” In support of that including issues that affect speech and In the second case, Adams v. Board proposition, the panel cited Morris press rights. (For more information of Education of Harvey School Dist. v. Harvey Cycle & Camper, Inc., 911 about Ginsburg’s time on the Court and 152, 968 F.3d 713 (7th Cir. 2020), a N.E.2d 1049, 1055 (Ill. App. Ct. 2009) and her role in notable cases, see “Justice three-judge panel upheld a jury award of Vincent v. Williams, 664 N.E.2d 650, Ginsburg Passes Away; Authored and $400,000 to an Illinois school principal 655 (Ill. App. Ct. 1996). The full ruling Joined Key First and Fourth Amendment who alleged that she was the subject is available online at: https://z.umn. Majority and Dissenting Opinions” of retaliation in violation of the First edu/61r4. on page 14 of this issue of the Silha Amendment. The full ruling, which During her confirmation hearing, Bulletin.) Barrett did not author, is available online Barrett was asked to name the five First On October 9, Grayson Clary of the at: https://z.umn.edu/61r6. Amendment freedoms but could recite Reporters Committee for Freedom of the Finally, in the third speech case, only four. On October 14, Sen. Ben Sasse Press (RCFP) published an analysis of Price v. City of Chicago, 915 F.3d (R-Neb.) asked Barrett, “What are the Barrett’s record on the First Amendment 1107 (7th Cir. 2020), a three-judge five freedoms of the First Amendment?” and press law. “That record is relatively panel upheld a Chicago ordinance that Barrett responded: “Speech, religion, light,” Clary wrote. “Judge Barrett has imposed an 8-foot “bubble zone” around press, assembly . . . I don’t know; what joined very few published opinions abortion clinics prohibiting “sidewalk am I missing?” Barrett’s response addressing First Amendment issues counselors” from engaging in passersby omitted the right to “petition the and has written fewer. Her academic for the purpose of “counseling, government for a redress of grievances.” work, for its part, is primarily focused education, leafletting, handbilling, or Sasse then asked Barrett why the on questions of judicial method rather protest.” Barrett did not author the five rights were grouped in the same than particular areas of the law.” Clary opinion, but the vote was unanimous. amendment. Barrett said she did not identified three cases that related to The panel wrote that it was bound by know, but added that “assembly and speech, and one case that involved precedent under Hill v. Colorado, 530 protest and speech bear more relation defamation. Each of those cases was U.S. 703 (2000), in which the Supreme to one another than necessarily free reviewed in turn. RCFP’s analysis is Court “upheld a nearly identical exercise.” Barrett also said, “I think available online at: https://www.rcfp.org/ Colorado law against a similar First they are in the First Amendment and amy-coney-barrett-press-rights/. Amendment challenge.” The full ruling in that reflects that those were core Two of the cases involved Price is available online at: https://z.umn. values that reflects that the states who employment speech. In edu/61r7. ratified the original constitution on the Lett v. City of Chicago, 946 F.3d 398 (7th Barrett also ruled in a case understanding that a Bill of Rights would Cir. 2020), the plaintiff-appellant, Kelvin that partly involved a defamation be added wanted protections like that Lett, a City of Chicago investigator, claim. In Shea v. Winnebago to be included because they were really claimed that the city and his superiors County Sheriff’s Department, core to what the new Americans thought violated the First Amendment by 746 F. App’x 541 (7th Cir. 2018), a three- was going to be America.” In that retaliating against him after he refused judge panel issued a non-precedential statement, Barrett emphasized the word to alter a report about a police shooting. opinion in a pro se lawsuit brought by “First” in saying “First Amendment,” Barrett, who authored the January an Illinois attorney against his sister, perhaps suggesting that the First 2020 decision for the three-judge panel, brother-in-law, and various deputies Amendment is important because it is concluded that Lett’s First Amendment and jail employees of the Winnebago rights were not violated because he was County Sheriff’s Department. One of Coney Barrett, continued on page 26 25 Coney Barrett, continued from page 25 take place in tandem with any of the five 665 (1972), and the concept of reporter’s freedoms — speech, press, assembly, privilege, asking Barrett: “Under its numerically first. However, Akhil Reed religion and petition. Thanks to both original public meaning, does the First Amar, the Sterling Professor of Law Barrett and Sasse for making the case for Amendment protect a reporter’s decision and Political Science at Yale University, First Amendment education.” Paulson’s to protect a confidential source?” Barrett has observed that the text of the First full commentary is available online responded: “Again that would be eliciting Amendment was not actually the first at: https://mtsu.edu/first-amendment/ a legal conclusion from me which I can’t article proposed or ratified to append post/1038/confirmation-hearing-making- answer in a hypothetical form in the to the Constitution, but rather the third. the-case-for-first-amendment-education. hearing itself, so a question as you point Only because the first two proposed Also during the hearing, on Oct. 14, out that’s closely related to ones that are amendments failed ratification did 2020, Sen. Amy Klobuchar (D-Minn.) being litigated.” Klobuchar then asked: what is known as the First Amendment asked Barrett whether the actual malice “Do you agree that if reporters cannot become first. Amar’s analysis is available standard established in New York Times protect their sources, they are less likely online at: https://lawreview.law.ucdavis. v. Sullivan, 376 U.S. 254 (1964), should to be able to find confidential witnesses edu/issues/47/4/Lecture/47-4_Amar.pdf. be overturned, as Justice Clarence willing to share information, confidential The exchange between Sasse and Barrett Thomas suggested in February 2019. informers willing to share information is available online at: https://www. (For more information about Justice about issues of public importance?” youtube.com/watch?v=a6-mJpqTqSw. Thomas’ views on Sullivan, see “Justice Barrett responded: “That would both On Oct. 14, 2020, Ken Paulson of the Thomas Calls for Supreme Court to be a policy question, a matter of public Free Speech Center at Middle Tennessee Reconsider the Actual Malice Standard” policy, which I can’t express a view on, State University commented on the in the Winter/Spring 2019 issue of the and presumably also one that might exchange between Sasse and Barrett. Silha Bulletin.) Barrett responded: “I factor into the question of what the First Paulson noted that Sasse’s reply to can’t really express a view on either Amendment protects, so again that’s not Barrett — when she could not remember New York Times v. Sullivan or Justice something that I can give an opinion on the fifth right contained in the First Thomas’ critique of it without violating in this context.” The exchange between Amendment — was that she was missing the principle that I’ve repeatedly stated Klobuchar and Barrett is available “redress or protest.” Said Paulson: that all nominees follow that I can’t online at: https://www.youtube.com/ “Nope. They’re not the fifth freedom. comment on matters of litigation or watch?v=qZqsSJqlehc. That would be ‘the right to petition grade precedents that the Court has government for redress of grievances.’” already decided.” Klobuchar also — Jonathan Anderson Paulson continued: “Protest can actually discussed Branzburg v. Hayes, 408 U.S. Silha Bulletin Editor

SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW Hubbard School of Journalism and Mass Communication University of Minnesota 111 Murphy Hall 206 Church Street SE Minneapolis, MN 55455 [email protected] www.silha.umn.edu (612) 625-3421

26 Misinformation Concerns Precede and Follow Presidential Election n Fall 2020, numerous concerns about the journalistic integrity and one of which purported to show a about misinformation preceded independence of the news outlet. The CNN producer calling the coverage of and followed the presidential moves prompted renewed criticism from President Trump’s possible collusion election on November 3. In observers, as well as speculation that with Russia during the 2016 presidential September and December, James O’Keefe’s actions were illegal. election “mostly bullshit” and all IO’Keefe, a political activist known for O’Keefe has a long history of posting about “ratings.” In another video, CNN posting controversial surreptitious audio undercover videos on Project Veritas contributor and host of “Messy Truth” and video recordings on his website, that raise legal and ethical questions. Van Jones is heard calling the possible Project Veritas, O’Keefe first gained notoriety in 2009 collusion of the Trump administration undertook when he released a series of undercover with Russia during the 2016 presidential MISINFORMATION separate efforts videos depicting a community organizing campaign “a nothingburger.” (For more claiming to group, the Association of Community information on the 2017 CNN videos, uncover evidence of voter fraud in Organizations for Reform Now (ACORN), see Political Operatives Target Hidden Minneapolis, Minn. and anti-conservative advising a couple posing as a pimp Camera Videographer in Civil Lawsuit bias by CNN and its employees. In and a prostitute on how to make their in “Controversial Undercover Video October, the New York Post published an business legal. The couple was later Makers Face Legal Action and Ethical article containing unverified assertions revealed to be O’Keefe and his associate Concerns” in the Summer 2017 issue of that now-President Elect Joe Biden Hannah Giles. In 2010, two of O’Keefe’s the Silha Bulletin.) engaged in corruption to help his son’s accomplices were criminally charged Following the release of each of business activities in Ukraine. Also in after they disguised themselves as these videos, news outlets and scholars October, and again in January 2021, telephone repairmen in an attempt to criticized O’Keefe’s undercover recording major social media platforms took enter the offices of then-U.S. Senator methods and called into question the steps to ban conspiracy theories that Mary Landrieu (D-La.). In 2011, O’Keefe legitimacy of the videos, which have advocate or have resulted in real-world targeted senior vice president of National also targeted The Washington Post, violence, most notably theories advanced Public Radio (NPR) Ron Schiller, who Democratic politicians, and others. by the QAnon community. (For more was depicted in a Project Veritas video (For more information on the operation information on social media platforms making negative comments about the against the Post, see “Undercover Video and the banning of President Trump, see “Tea Party” political movement. (For Maker James O’Keefe Continues Attacks “Events Surrounding the U.S. Capitol more information on O’Keefe’s stings on the News Media, Faces Setbacks in Insurrection Raise Significant Media Law in 2010 and 2011, see NPR Executives Some Legal Disputes” in the Winter/ Issues and Questions” on page 1 of this Resign after Hidden Camera Sting in Spring 2018 issue of the Silha Bulletin.) issue of the Silha Bulletin.) “Prank Phone Call, Hidden Camera Spur In some cases, O’Keefe has faced legal Ethical Controversies for News Media” in action, including in 2010 when he was Project Veritas Faces Renewed the Winter/Spring 2011 issue of the Silha sentenced to three years of probation, Criticism Following Disputed Bulletin.) 100 hours of community service, and Election Fraud Claims and Targeting O’Keefe’s targeting of CNN in a $1,500 fine in connection to Project CNN Editorial Meetings December 2020 was not the first instance Veritas’ illegal surveillance of Landrieu. In September and December 2020, of him doing so. In fall 2019, Project Additionally, on Jan. 4, 2018, Judge political activist James O’Keefe, who Veritas released a series of videos Ellen Huvelle of the U.S. District Court is known for publishing controversial purporting to depict CNN employees for the District of Columbia allowed hidden camera videos on his website, discussing “tak[ing] down President a lawsuit brought by Robert Creamer, Project Veritas, was behind separate Trump” and a “personal vendetta” against co-founder of Strategic Consulting efforts to allege voter fraud in the president and his administration, Group, NA, Inc., a member organization Minneapolis, Minn. and anti-conservative among other comments. The videos of Democratic National Committee bias by CNN. On September 27, Project were cited in a letter sent on behalf of vendor Democracy Partners, LLC, to Veritas claimed that it had evidence President Donald Trump to Zucker and proceed. O’Keefe had filed two motions proving that U.S. Rep. Ilhan Omar CNN General Counsel David Vigilante, seeking to dismiss the lawsuit, which (D-Minn.) and Minneapolis City Council accusing the network of violating the arose after he published a series of member Jamal Osman were part of Lanham Act of 1946, 15 U.S.C. § 1051 videos to Project Veritas following election fraud schemes in the run up to et seq., a federal statute that governs a “sting operation” into Democracy the November 2020 elections. However, trademarks and also includes provisions Partners LLC. (For more information on the video released by O’Keefe and Project against false advertising. (For more the legal victories against O’Keefe, see Veritas was later discredited by several information on the letter, see “Letter Sent “Undercover Video Maker James O’Keefe news outlets and experts. On December on Behalf of President Trump Threatens Continues Attacks on the News Media, 1, O’Keefe released a series of recordings Legal Action Against CNN, Prompting Faces Setbacks in Some Legal Disputes” of CNN’s daily editorial conference calls Criticism” in the Fall 2019 issue of the in the Winter/Spring 2018 issue of the earlier in fall 2020. He also released Silha Bulletin.) Silha Bulletin.) a video depicting himself calling into In 2017, O’Keefe released a series CNN’s December 1 conference call and of videos targeting the news outlet, Misinformation, continued on page 28 questioning CNN President Jeff Zucker 27 Misinformation, continued from page 27 [September 4] decision.” DSCC v. Simon, Veritas’ claims. Trump also wrote, “This On Sept. 29, 2020, the Minneapolis 950 N.W.2d 280 (Minn. 2020). The is totally illegal. Hope that the U.S. Star Tribune reported that President Minnesota Supreme Court’s September Attorney in Minnesota has this, and other Trump and Minnesota Republican 4 ruling is available online at: https:// of her many misdeeds, under serious lawmakers had called for an investigation scholar.google.com/scholar_case?ca review??? If not, why not??? We will after Project Veritas alleged two days se=8208851250102741992&hl=en& win Minnesota because of her, and law earlier that it had obtained video proving as_sdt=6&as_vis=1&oi=scholarr. The enforcement. Saved Minneapolis & Iron that Minneapolis City Council member opinion explaining the ruling is available O Range!” Jamal Osman and U.S. Rep. Ilhan Omar online at: https://casetext.com/case/ In the days following the release of (D-Minn.) were part of election fraud dscc-v-simon. the video by Project Veritas, several schemes in the leadup to the November Nevertheless, a spokesperson for media outlets and experts discredited 2020 elections. According to the Star the Minneapolis Police Department the video. On Sept. 29, 2020, the Tribune, Project Veritas’ video included (MPD) told the Star Tribune that the Election Integrity Partnership (EIP) — a Snapchat recordings posted in July 2020 department was “in the process of coalition of research entities focused depicting Minneapolis resident Liban looking into the validity” of the group’s on “detect[ing] and mitigate[ing] the Mohamed — the brother of Osman — statements. In a September 28 tweet, impact of attempts to prevent or deter saying that he had collected 300 absentee MPD wrote that it was “aware of the people from voting or to delegitimize ballots in a single day for his brother’s allegations of vote harvesting.. . . We election results” — concluded that special election race in Minneapolis’ are in the process of looking into the Project Vertias’ video was “an interesting Sixth Ward. Mohamed could be heard validity of those statements. No further example of what a domestic, coordinated saying in the video, “Money is everything, information is available at this time on elite disinformation campaign looks money is the king of this world. If you this.” The Hennepin County Attorney’s like in the United States.” The report don’t have money you should not be Office similarly told theStar Tribune reasoned that “[t]he video made several here period.” The video also depicted it was made aware of the allegations, falsifiable claims that have either been unnamed sources and covert footage but had not received any information debunked by subsequent reporting or alleging that canvassers for Omar were or cases involving “ballot harvesting.” are without any factual support. As the part of a “cash for ballots voter fraud As the Bulletin went to press, no legal video calls into question the integrity scheme.” action had been taken as a result of of the election using misleading or Project Veritas and some Republican Project Veritas’ claims. inaccurate information, we determined observers claimed that the video was In a Facebook post, Osman this video to be a form of election therefore evidence of a “cash-for-ballot condemned the allegations, writing, in disinformation.” The report went on to scheme” and “ballot harvesting,” a part, “Throughout my campaign, I let my provide “the timeline of how the ideas practice that allows third parties to staff, volunteers and supporters know in this video were initially seeded and collect ballots and return them to polling my values including the type of race I then aggressively spread” by several locations under certain circumstances. wanted to run.. . . I stated publicly the political figures and observers on social The full video is available online at: importance to run a positive and ethical media. The full report is available online https://www.projectveritas.com/news/ campaign. I condemn behavior that at: https://www.eipartnership.net/ ilhan-omar-connected-cash-for-ballots- contradicts these values. That is why rapid-response/project-veritas-ballothar- voter-fraud-scheme-corrupts-elections/. I also condemn the continued attacks vesting. Significantly, theStar Tribune noted on the integrity of the East-African In a September 29 interview with that there was “no direct evidence in the immigrant community in Minneapolis. The New York Times, Alex Stamos, videos of money being exchanged for The community is proud to be here, the director of the Stanford Internet ballots.” passionate about exercising their Observatory, one of the research Additionally, several media outlets constitutional right to vote and excited organizations affiliated with the EIP, noted that ballot harvesting was legal in to elect the next President of the called the spread of Project Veritas’ Minnesota under certain circumstances. United States.” In a separate statement, claims “a great example of what a They cited a September 4 ruling by the Minnesota Democratic-Farmer-Labor coordinated disinformation campaign Minnesota Supreme Court, which held Chairman Ken Martin said, “Project looks like: pre-seeding the ground and that a third party may help more than Veritas is a discredited, far-right then simultaneously hitting from a bunch three disabled people mark their ballots, propaganda outfit known for lying, of different accounts at once.” but can only deliver absentee ballots of, entrapment, and breaking the law.” In On October 1, the Daily Dot, a digital at most, three people. DSCC v. Simon, an October 6 tweet, Omar criticized media company covering multiple No. A20-1017 (Minn. 2020). Chief Justice Project Veritas’ actions and claims, aspects of the Internet, reported that Lorie S. Gildea wrote the expedited writing, “So you’re saying a coordinated Project Veritas’ “key whistleblower” in four-page ruling, which affirmed in misinformation campaign by a known the Somali community in Minnesota was part and reversed in part the ruling of fraud was actually…a fraud?! . . . This “hilariously uncredentialed.” The report Minnesota Second Judicial District Judge is on brand for Trump and his stooges, explained that Project Veritas claimed Thomas Gilligan, who had ordered on fraudsters who love concocting that the source, Omar Jamal, worked July 28 that the state stop enforcing the desperate racist conspiracies and chaos for the “Somali Watchdog Group.” three-person limit on both helping people in an effort to distract the public from However, Jamal reportedly registered fill out ballotsand delivering them. On their failures.” But on September 17, the website of the organization in late October 28, the Court released a full President Trump retweeted a tweet by August 2020, at least one month after opinion to “explain[] the reasons for our Breitbart News reporting on Project Project Veritas began producing the 28 videos alleging ballot harvesting in what has happened here in the last week purportedly based on information found Minneapolis. On October 1, the Sahan with Trump and his behavior.. . . This is in a laptop alleged to have belonged Journal in Minneapolis reported that a president who knows he’s losing, who to Hunter Biden. However, the Biden Jamal had backtracked on several of knows he’s in trouble, is sick, maybe is campaign denied the allegations in the his claims of voter fraud in an interview on the aftereffects of steroids or not, I report and some social media platforms with Somali American TV. Additionally, a don’t know, but he is acting erratically limited dissemination of the article. spokesperson for Project Veritas told the and desperately, and we need to not Multiple Post reporters also raised Daily Dot that the organization could not normalize that.” After O’Keefe posted doubts about the veracity of the story confirm the authenticity of the Somali the video of himself joining the CNN call and its main writer refused to attach his Watchdog Group, as well as whether to Twitter in a December 1 tweet, the byline to it, according to The New York Jamal worked for the Ramsey County CNN public relations staff responded Times on October 18. Sheriff’s Office as he had previously through the “CNN Communications” On October 14, the New York claimed. Twitter account, “Legal experts say this Post published a story headlined On October 5, FOX 9, the Twin Cities’ may be a felony. We‘ve referred it to law “Smoking-gun email reveals how Hunter Fox affiliate, reported that Osman was enforcement.” Biden introduced Ukrainian businessman offered $10,000 by a man working for Although CNN did not elaborate to VP dad.” The story claimed to Project Veritas to claim that he was on the legal issues, The Washington contradict Joe Biden’s public statements harvesting ballots for Omar. In an Post noted that several of the meeting that he had not been involved with interview with FOX 9, Osman said the attendees had called in from states Hunter’s business dealings in Ukraine. man “was setting me up” and explained “that require the consent of both The story was principally based on an that he declined the offer. On Oct. 7, parties for a recording to be made.” email that an executive at a Ukrainian 2020, the Huff Post contended that the One such state is California, where Cal. energy company allegedly sent to Hunter reports by FOX 9 and the Daily Dot both Penal Code § 632(a) (2020) provides Biden thanking him for introducing him “debunk[ed] Project Veritas’ claims” of that “a person who, intentionally and to his father. The Post reported that the election fraud. Finally, on October 16, without the consent of all parties to email was found on a laptop dropped off USA Today concluded that there was no a confidential communication, uses at a Delaware computer repair shop by proof of a voter fraud scheme implicating an electronic amplifying or recording someone claiming to be Hunter Biden in Omar or Osman. device to eavesdrop upon or record the April 2019. The owner of the store has Meanwhile, on Dec. 3, 2020, The confidential communication, whether the said that after he never heard back from Washington Post reported that O’Keefe communication is carried on among the the customer, he copied its contents had filmed himself calling into CNN’s parties in the presence of one another and contacted federal authorities about conference call on December 1 and or by means of a telegraph, telephone, the laptop, which the FBI subsequently summarily questioning Zucker about or other device, except a radio, shall be retrieved, according to the Post. The the journalistic integrity of the network. punished by a fine not exceeding two newspaper said it was tipped off about According to the Post, O’Keefe’s actions thousand five hundred dollars ($2,500) the existence of the laptop by Stephen were an effort to promote a new series per violation, or imprisonment in a K. Bannon, President Donald Trump’s of recordings of CNN’s daily morning county jail not exceeding one year, or in former adviser who was indicted by a editorial calls, though some observers the state prison, or by both that fine and grand jury in August 2020 for alleged questioned the legality of O’Keefe’s imprisonment.” fraud. Rudolph W. Giuliani, President actions. In an interview with the Post on Trump’s personal lawyer, gave the Post In a video released by Project Veritas, December 3, O’Keefe defended his a copy of the laptop’s hard drive on O’Keefe was depicted calling into a actions, stating, “Project Veritas has October 11, according to The New York teleconference call hosted by Zucker. legal experts, too, and we believe Jeff Times. O’Keefe first stated that “we’ve been Zucker is just mad and embarrassed,” On October 18, the Times reported listening to your CNN calls for basically he said. “Project Veritas follows the that two anonymous Post employees two months [and have been] recording law.” O’Keefe added that Project Veritas had said the reporter who was largely everything.” He then asked Zucker, “Do gained access to the meeting, as well as responsible for writing the article you still feel you are the most trusted previous meeting recordings, after being declined to attach his byline to the story name in news? . . . We’ve got a lot of “given access to the CNN calls by a brave because of concerns about its credibility. records that indicate that you are not insider.” That reporter was not alone, according really that independent of a journalist.” As the Bulletin went to press, CNN to the Times, which reported, “Many Zucker responded by suggesting that he had not initiated any legal action against Post staff members questioned whether would reschedule the meeting with the O’Keefe or Project Veritas. the paper had done enough to verify the call attendees and use a “new system.” authenticity of the hard drive’s contents, O’Keefe then declared that Project New York Post Publishes said five people with knowledge of the Veritas would release several recordings ‘Questionable’ Story About Hunter tabloid’s inner workings. Staff members of past CNN meetings later that day. The Biden also had concerns about the reliability full video is available online at: https:// In October 2020, the New York Post of its sources and its timing, the people www.pscp.tv/w/1mnxeaBlrlNxX. published a story suggesting corrupt said.” According to The Washington Post, practices involving now-President Elect Major national newspapers — The in one recording, Zucker was heard Joe Biden and his son, Hunter Biden, New York Times, The Washington Post, telling CNN employees, “I just wanted to which other news organizations have reemphasize that we cannot normalize yet to substantiate. The report was Misinformation, continued on page 30 29 Misinformation, continued from page 29 be proven accurate, or that it might Facebook later said in an update to its and The Wall Street Journal — were just amount to “speculative partisan blog post that “when someone searches unable to independently corroborate advocacy.” Whatever the story, Folkenflik for terms related to QAnon on Facebook the information in the Post’s story, said, it is “[a] totem of our media and Instagram, we will redirect them according to the Times. A spokesperson moment.” to credible resources from the Global for the Post told the Times in a written Network on Extremism and Technology statement, “The story was vetted and The Major Social Media Platforms Ban (GNET), the academic research Post stands by its reporting.” QAnon Content network of the Global Internet Forum The New York Times reported On Oct. 6, 2020, Facebook said it to Counter Terrorism. This is the latest that within hours of the Post’s article would close accounts that openly identify expansion of our Redirect Initiative to appearing on the Internet, at least two with QAnon, a community of conspiracy help combat violent extremism and will social media platforms restricted its theorists whose claims have resulted direct people to resources that can help reach. Facebook limited the article’s in real-world violence. Facebook said inform them of the realities of QAnon distribution so it could work to verify the action would apply to both on its and its ties to violence and real world the information in the story, and Twitter platform and Instagram, which Facebook harm.” The update is available online blocked accounts from linking to the also owns, even if the accounts do not at: https://about.fb.com/news/2020/08/ article on the basis that the story violated contain violent content. On October 15, addressing-movements-and-organiza- the platform’s policy governing hacked YouTube, among other Internet outlets, tions-tied-to-violence/. information and ban on disclosing also announced that it would remove On October 15, The New York Times personal email addresses and phone QAnon content. reported that YouTube and other social numbers. Twitter later reversed course QAnon began in 2017 after an media platforms — Pinterest, Etsy, and and allowed the article to be shared after unknown person with the Internet Triller — also began banning content coming under pressure from President handle “Q Clearance Patriot,” or “Q,” promoting QAnon. YouTube revised its Donald Trump and other conservative posted on a message board that they content policies to prohibit “content political figures. had information about a war being that targets an individual or group with On October 17, National Public Radio waged between President Trump and conspiracy theories that have been used (NPR) media reporter David Folkenflik a band of pedophiles, according to the to justify real-world violence,” according produced a story explaining why the Times. Members of the movement have to a blog post from the company. Post’s claims were “questionable.” First, falsely accused Democratic leaders of YouTube will ban content that promotes Folkenflik said the emails have not been participating in a sex-trafficking scheme, QAnon and other similar conspiracy authenticated. “They were said to have the most prominent example of which theories. However, news stories about been extracted from a computer assumed was “Pizzagate,” a false allegation that QAnon and content discussing the group — but not proven — to have belonged trafficked girls were being kept in that does not “target[] individuals or to the younger Biden. They were said to the basement of a Washington, D.C., protected groups may stay up.” have been given to the Post by Trump's pizza restaurant. In December 2016, The move comes after YouTube two personal lawyer Rudy Giuliani, who is a North Carolina man fired an assault years ago revised its recommendation known for making discredited claims rifle inside the restaurant claiming he system, which the company said has about the Bidens,” Folkenflik reported. was investigating the sex-trafficking resulted in a significant drop in views Second, Folkenflik contended the allegations, according to NBC News on of QAnon content. YouTube also said Post as an outlet also raises concerns June 22, 2017. No one was injured. it had “removed tens of thousands of because it is owned by Rupert Murdoch, Facebook’s move followed efforts by QAnon-videos and terminated hundreds who has long supported Trump. One of the company in August 2020 to remove of channels under our existing policies, the named reporters on the story also various types of content associated particularly those that explicitly threaten previously worked as a producer for with QAnon that discussed the potential violence or deny the existence of major Sean Hannity, the Fox News host who for violence and to limit the reach of violent events.” YouTube’s blog post is is friends with Trump. Murdoch also such material. “We’ve been vigilant available online at: https://blog.youtube/ owns Fox News. Third, Folkenflik said in enforcing our policy and studying news-and-events/harmful-conspiracy-the- there are important contextual factors its impact on the platform but we’ve ories-youtube/. to consider: “U.S. officials say Russian seen several issues that led to today’s Additionally, YouTube was one of the disinformation campaigns have sought update,” Facebook said in a blog post platforms that removed content related to keep Hunter Biden's business dealings on October 6. “For example, while we’ve to President Trump and suspended his in Ukraine in the public eye. According removed QAnon content that celebrates official account. (For more information to The Washington Post, intelligence and supports violence, we’ve seen other on social media platforms, suspending officials warned the White House last QAnon content tied to different forms or banning President Trump, see “Events year that Russian operatives had sought of real world harm, including recent Surrounding the U.S. Capitol Insurrection to give misinformation to Giuliani to be claims that the west coast wildfires were Raise Significant Media Law Issues and used against the Bidens. And NBC is now started by certain groups, which diverted Questions” on page 1 of this issue of the reporting that the FBI is investigating attention of local officials from fighting Silha Bulletin.) whether the material in the New York the fires and protecting the public.” Post story originated in a foreign power's Facebook’s blog post is available online — Scott Memmel disinformation campaign,” Folkenflik at: https://about.fb.com/news/2020/08/ Postdoctoral Associate reported. He thus concluded that the addressing-movements-and-organiza- — Jonathan Anderson Post story or parts of it might eventually tions-tied-to-violence/. Silha Bulletin Editor 30 National and Local News Outlets Face and Address Ethical Questions and Dilemmas n fall 2020, news outlets across MPR Fires DJ Amidst Sexual I sincerely hope that my resignation can the United States faced a variety Harassment Allegations, Resignation serve as a catalyst for positive change and of ethical questions and dilemmas, of MPR Reporter push the newsroom to do right by victims prompting commentary, and in some On Sept. 14, 2020, Minnesota Public of abuse in the future.” cases criticism, from media ethics Radio (MPR) arts reporter Marianne Combs also addressed the importance Iobservers. On September 14, Minnesota Combs announced her resignation of newsrooms reporting critically on Public Radio (MPR) announced that it on Twitter, alleging that management their own company and employees, had fired Eric Malmberg, a DJ at 89.3 The attempted to cover for a DJ at the center writing, “MPR hosts — whether they Current, MPR’s of sexual misconduct allegations. Later the are news anchors or music DJs — are sister station, who ETHICS same day, MPR announced that it had fired public figures and communicate what was accused of Eric Malmberg, the DJ at 89.3 The Current, our organization stands for.. . . They must sexual harassment. MPR’s sister station, who was accused of be held to a higher standard than simply The move came hours after MPR arts sexual harassment. obeying the law. And our newsroom reporter Marianne Combs announced In a string of tweets on September 14, must not flinch at turning a critical eye her resignation on Twitter, alleging that Combs first wrote that “after more than 23 on our own company and staff.” Combs’ the company had attempted to cover for years at @MPRNews, I turned in my letter full string of tweets is available online Malmberg despite significant evidence of resignation, effective immediately.” She at: https://twitter.com/MarianneSCombs/ against him. explained that in her letter of resignation, status/1305519037607292929. Following the death of U.S. Supreme she had detailed spending “the past two On September 14, the Minneapolis Star Court Justice Ruth Bader Ginsburg and a half months investigating allegations Tribune reported that MPR responded that on Sept. 18, 2020, several observers made about the conduct of a DJ at our it was “blindsided” by Combs’ resignation. raised ethical questions about National sister station, @TheCurrent. In that time, In an on-air interview with MPR News’ Public Radio (NPR) correspondent Nina I gathered testimony from eight women Cathy Wurzer, MPR President Duchesne Totenberg’s reporting on the Justice who say that he sexually manipulated and Drew responded to Combs’ tweets, stating throughout her career after Totenberg psychologically abused them.” that the editors “decided that the story, wrote in an obituary that she and Justice Combs asserted that she then “wrote which deals with complex and sensitive Ginsburg had a longstanding friendship. a story draft and my editors presented issues, [was] not ready to run because it (For more about the passing of U.S. it to our legal counsel for review. The does not meet our journalistic standards. Supreme Court Justice Ruth Bader lawyer judged the story to be compelling In fact, they were blindsided by Marianne’s Ginsburg, see “Justice Ginsburg Passes and well-sourced, with strong supporting resignation and expected that she was Away, Authored and Joined Key First documentation. She saw no legal threat to continuing to work on the story.” and Fourth Amendment and Dissenting MPR News for airing the story.” However, Drew continued, “Editors had discussed Opinions” on page 14 of this issue of the according to Combs, her “editors . . . failed with her how to strengthen the story.. . . Silha Bulletin.) Media ethics experts to move forward on the story. They have The sources in the story do not allege that argued that the friendship constituted a countered that the DJ’s actions were, the subject of the story assaulted them or conflict of interest and a violation of the for the most part, legal, and therefore did anything illegal. None of the sources principle of independence, and should don’t rise to the level of warranting news in the story were willing to be identified. have been disclosed by NPR to the public. coverage.” The reporting could not confirm that any of On September 27, The New York Times Combs continued, “While the editors the women had reported their allegations published an investigative story based on have not gone so far as to cancel the or incidents to authorities. No complaints President Donald Trump’s tax returns, story, they have shown such a complete regarding any action by him have been revealing several potentially problematic lack of leadership that I no longer have brought forward to MPR’s HR staff. No details about, and practices by, President any confidence they will handle the story MPR employee has made any accusations Trump and his businesses. Following the appropriately.. . . This is not the first time against him on their own behalf, nor on revelations, observers generally agreed in the past year that our newsroom has behalf of other employees.. . . Facts matter, that the publication of information based gathered, and then neglected, women’s to us and to our audiences, and we work on such records was both legal and ethical. stories of abuse. For many of these women hard to earn the trust of every listener On October 15, several media outlets it took more than a decade to find the by honoring the highest standards of reported that C-SPAN had placed Steve courage to speak up; when they eventually professional journalism in every story.” Scully, the network’s senior executive did, they put their trust in MPR News and However, on the same day, MPR News producer and political editor, on me.” reported that the company, amid criticism “administrative leave” after he admitted She added, “In my mind, by dragging from MPR employees and listeners, to lying about his Twitter account having our feet and sending the implicit message had announced that Malmberg would been hacked earlier in the month. that their cause is not an urgent one, we “no longer be a DJ at The Current.” In a Finally, also on October 15, NBC and are as good as silencing them. I cannot statement, Drew wrote, “Our hosts have to ABC broadcast two separate town hall accept this course of action.. . . I’m be able to attract an audience that wants forums featuring President Donald Trump resigning to show my continued support to listen to them and trusts them and over and then-presidential candidate Joe Biden, for these women.. . . These times call for simultaneously, prompting criticism from leadership, a moral compass and courage. Ethics, continued on page 32 observers primarily directed at NBC. 31 Ethics, continued from page 31 Farhi wrote that the relationship between we must make it clear that our primary Totenberg and Justice Ginsburg “raises an allegiance is to the public. Any personal the last 36 hours those conditions have old journalistic question: Can a reporter, or professional interests that conflict with changed for Malmberg.” In a later email committed to neutrality and balance, that allegiance, whether in appearance to the Star Tribune, Drew clarified that fairly cover a public figure with whom or in reality, risk compromising our Malmberg was “fired.” they have a close friendship? Does such a credibility. We are vigilant in disclosing relationship present a conflict of interest, to both our supervisors and the public NPR Correspondent’s Relationship or the appearance of one, that might lead any circumstances where our loyalties with Justice Ginsburg Raises Ethical readers, viewers or listeners to question may be divided — extending to the Questions whether a reporter is slanting his or her interests of spouses and other family On Sept. 18, 2020, U.S. Supreme Court presentation to favor a friend?” members — and when necessary, we Justice Ruth Bader Ginsburg died of Leonard Downie Jr., the former recuse ourselves from related coverage.” complications of metastatic pancreatic executive editor of The Washington Post The full entry, which also discusses cancer at the age of 87. In the wake and currently a journalism professor at conflicts of interest, is available online at: of her death, several observers raised Arizona State University, agreed in an https://www.npr.org/about-npr/688405012/ ethical questions regarding reporters interview with Farhi that Totenberg’s independence. covering those with whom they have a relationship with Ginsburg “creates McBride also included a quote by Joe close personal relationship or friendship. an appearance [of conflict] question.” Mayer, the director of the Trusting News In particular, observers cited Justice He added, “On the face of it, I’m Project, which works with newsrooms Ginsburg’s friendship with National Public uncomfortable with it. I’d have to think to employ transparency practices. Mayer Radio (NPR) reporter and legal affairs about removing a reporter from the beat said, “We need to prove [our ethics]. We correspondent Nina Totenberg. [under similar circumstances]. At the very need to back it up with evidence.. . . In On September 19, the day after least, it should be disclosed.” terms of earning listener trust, there was Justice Ginsburg passed away, Totenberg McBride argued that NPR, by failing a real opportunity in this case for NPR published an obituary titled “A 5-Decade- to be transparent about the friendship to show the broader audience why the Long Friendship That Began With A Phone between Totenberg and Justice Ginsburg, journalists at NPR felt comfortable with Call.” In the piece, Totenberg detailed how “missed two opportunities. First, the arrangement.” she and Justice Ginsburg “would become NPR leaders could have shared the McBride concluded her commentary professional friends and later, close friends conversations they were having and the by stating, “Totenberg’s coverage of the after she moved to Washington to serve on precautions they were taking to preserve Supreme Court is deeply respected. the federal appeals court here and later, the newsroom’s independent judgment. It’s too bad that NPR didn’t use the on the U.S. Supreme Court.” The full piece Second, having those conversations in opportunity to publicly explain how is available online at: https://www.npr. front of the public would have sharpened it manages competing loyalties, and org/2020/09/19/896733375/a-five-decade- NPR’s acuity in managing other personal then apply those lessons to the many long-friendship-that-began-with-a-phone- conflicts of interest among its journalists.” other conflicts testing its newsroom’s call. She further argued that NPR “le[ft] open values.. . . In journalism, the audience In a September 24 commentary, NPR the possibility that there is one set of gets to decide if you’re doing your job and Public Editor Kelly McBride, who also standards for senior, elite journalists, and deserves the necessary transparency to serves as the Chair of the Craig Newmark another set of standards for the rest of the judge for itself.” The full article is available Center for Ethics and Leadership at staff. After all, why is it OK for Totenberg online at: https://www.npr.org/sections/ the Poynter Institute of Media Studies to be close friends with a key source on publiceditor/2020/09/24/916057100/ (Poynter), a non-profit journalism her beat, but it’s not OK for a journalist nprs-should-have-revealed-totenberg-rbg- school and research organization in St. to march in a Black Lives Matter protest? friendship-earlier. Petersburg, Fla., observed that “[a]s one Blazing the ethical pathway through ‘social Farhi similarly argued that “[t]raditional of American journalism's most respected incestuousness’ and leaving trail markers journalistic practice is to avoid such legal affairs and Supreme Court reporters, that others might follow would have been entanglements, or at least disclose them Totenberg’s long history of working with a service to the broader public radio so that readers can judge for themselves. Ginsburg is not in and of itself surprising. community.” Totenberg and NPR rarely did the latter; Great reporters have great sources, and McBride quoted Bob Steele, a former her friendship with Ginsburg was almost often know them well.” ethics scholar at Poynter, who argued that never mentioned in the hundreds of news However, McBride also argued that the friendship between Totenberg and stories, interviews and features Totenberg Totenberg’s essay revealed potential Justice Ginsburg implicated “the principle has done about the court over the years.” ethical issues, namely that “Totenberg’s of independence.” He had continued, He also cited the example of former access to Ginsburg yields deep reporting “The obligation of journalists is to have Washington Post editor Ben Bradlee, that has well-served NPR audiences for the public as their primary loyalty and who “faced similar questions about his years. But the closeness of that Totenberg- to not let that loyalty be undermined by relationship with John F. Kennedy and Ginsburg relationship was never fully relationships with those that you are his wife, Jacqueline.” Farhi explained that disclosed, and raises the question of covering.” McBride added that reporters Bradlee became friends with the Kennedys whether journalistic independence — also are generally taught “that it is problematic “in the late 1950s when Bradlee was a vital to NPR consumers — was as solid as to make friends with their sources.” top correspondent for Newsweek and listeners have a right to expect.” NPR’s Ethics Handbook includes a Kennedy was a senator. The relationship Similarly, in a Sept. 22, 2020 article, section on “Independence,” which reads carried over to Kennedy’s term in the Washington Post media reporter Paul in part, “To secure the public’s trust, White House.. . . [I]t became an issue 32 during Bradlee’s tenure as editor in the one thing to occasionally have coffee or previously obtained by The Times.” early 1970s . . . [w]hen The Post began lunch or drinks with someone you cover to The Times’ full story is available breaking stories about the Watergate further develop that source, the friendship online at: https://www.nytimes.com/ burglary and related crimes and coverups between Totenberg and Ginsburg went far interactive/2020/09/27/us/donald-trump- by the Nixon administration.” According beyond that.” Jones continued, “Totenberg taxes.html. to Farhi, President Richard Nixon, is considered a top-notch journalist. During a September 27 press who was Kennedy’s opponent in the Perhaps her friendship with Ginsberg did conference, President Trump responded 1960 presidential race, “cited Bradlee’s not impact how she did her job or how by calling the Times’ reporting “fake news” relationship with Kennedy as evidence that she shaped her stories. But we can’t say it and “totally made up.” He added that the newspaper was biased.” didn’t impact her journalism, either. And the Times journalists “only do negative In a statement sent to McBride, that’s the problem when you have even the stories.” Totenberg and her editor, Krishnadev appearance of a conflict of interest. We just Following the publication of the Calamur, defended the lack of disclosure don’t know.” story, New York Times executive editor of the friendship. “I have never shaded my Jones added, “How can we be sure what Dean Baquet defended the reporting reporting because of my friendship with stories Totenberg might have chosen to in an editor’s note, writing, “We are Justice Ginsburg, or any other member cover or ignore because of her relationship publishing this series of reports because of the court,” the statement read. “I have with Ginsburg? Not only does it bring into we believe citizens should understand been privileged to have known and been question Totenberg’s coverage, but it lends as much as possible about their leaders friends with both liberal and conservative credence to all those who think the media and representatives — their priorities, members of the court over the more is in cahoots with the people they cover — their experiences and also their finances.” than 50 years that I have covered the especially liberals.” Baquet continued, “Every president institution. Anyone who has listened to since the mid-1970s has made his tax me over the years or watched any of the New York Times Reports on President information public. The tradition ensures dozen interviews that I conducted with Donald Trump’s Tax Returns; Several that an official with the power to shake Justice Ginsburg, on the air, and in front Observers Call the Decision Lawful markets and change policy does not seek of audiences of thousands knows that we and Ethical to benefit financially from his actions. Mr. had a longtime friendship. I have always On Sept. 27, 2020, The New York Times Trump, one of the wealthiest presidents in mentioned that in the course of these published a story based on President the nation’s history, has broken with that interviews.” Donald Trump’s tax returns “extending practice. As a candidate and as president, In a separate interview with Farhi, over more than two decades,” which Mr. Trump has said he wanted to make Totenberg said, “It’s my job to learn revealed “struggling properties, vast his tax returns public, but he has never as much as I can about the people I write-offs, an audit battle and hundreds of done so. In fact, he has fought relentlessly cover.. . . You’re supposed to know them millions in debt coming due.” Following to hide them from public view and has and understand them as much as you the publication of the story, several falsely asserted that he could not release possibly can.. . . It’s a great benefit to me as observers discussed the legal and ethical them because he was being audited by the a reporter and my listeners.” considerations that went into the Times’ Internal Revenue Service.” According to Farhi, Totenberg further reporting and ultimately determined that Baquet explained that although the contended that she separated the personal the publication of such information was Times was publishing information based from the professional, citing an interview both legal and ethical. on President Trump’s tax records, the with Justice Ginsburg in 2016 when the In its September 27 story, New York newspaper would “not mak[e] the records justice “had criticized then-candidate Times reporters Russ Buettner, Susanne themselves public because we do not want Donald Trump, stirring up a backlash. Craig and Mike McIntire reported several to jeopardize our sources, who have taken Totenberg said Ginsburg regretted the findings from President Trump’s tax enormous personal risks to help inform the comments and asked the journalist not to returns, including that he “paid $750 in public.” ask her about them; Totenberg said she federal income taxes the year he won the At the end of the note, Baquet wrote told Ginsburg that she had to and that it presidency. In his first year in the White that the U.S. Supreme Court “has would be irresponsible if she didn’t ask.” House, he paid another $750.” The Times repeatedly ruled that the First Amendment She added, “You can have an arm’s-length also reported that President Trump “paid allows the press to publish newsworthy relationship [as a reporter] and still be a no income taxes at all in 10 of the previous information that was legally obtained by friend.. . . You can do both.” 15 years — largely because he reported reporters even when those in power fight Isabel Lara, NPR’s executive director losing much more money than he made” to keep it hidden. That powerful principle of media relations, similarly contended in and that he reduced his tax bills with of the First Amendment applies here.” One an email to McBride that Totenberg and “questionable measures, including a $72.9 such case was Bartnicki v. Vopper, 532 Justice Ginsburg “were merely friendly million tax refund that is the subject of an U.S. 514 (2001), in which the Court held professional colleagues” and that their audit by the Internal Revenue Service.” that members of the press could not be relationship did not warrant disclosure. The story noted that “[a]ll of the held liable for publishing or broadcasting Lara provided several examples, including information The Times obtained was illegally obtained information if they that “[e]ach time Nina introduced Justice provided by sources with legal access were not involved in its acquisition. (For Ginsburg at an event she referred to their to it. While most of the tax data has more information on Bartnicki, see “U.S. friendship.” not previously been made public, The Supreme Court Rules In Historic Bartnicki In his daily newsletter on Sept. 21, Times was able to verify portions of it Case” in the Summer 2001 issue of the 2020, Tom Jones, a senior media writer by comparing it with publicly available at Poynter, disagreed, stating, “While it’s information and confidential records Ethics, continued on page 34 33 Ethics, continued from page 33 journalist or newscaster, including the Scully, who was set to be the moderator identity of a source.” of the second presidential debate in Silha Bulletin and “Barnicki v. Vopper In a Sept. 28, 2020 commentary for 2020 before it was ultimately canceled, Topic of Sixteenth Annual Silha Lecture” in the Poynter Institute of Media Studies added, “These actions have let down a the Fall 2001 issue.) (Poynter), a non-profit journalism lot of people, including my colleagues at The Supreme Court similarly held school and research organization in St. C-SPAN, where I have worked for the past that the First Amendment protects Petersburg, Fla., senior media writer 30 years, colleagues in the media, and the the publication of lawfully obtained, Tom Jones argued that “[t]his is an team at the Commission on Presidential truthful information in Cox Broadcasting important story, and of course the Times Debates. I ask for their forgiveness as I try Corporation v. Cohn, 420 U.S. 469, 492 should publish such information. This is to move forward in a moment of reflection (1975) and Florida Star v. B.J.F., 491 the president of the United States. His and disappointment in myself.” U.S. 524, 527 (1989) — in which the business dealings and personal finances In a separate statement, C-SPAN Supreme Court held, in both cases, that are absolutely a story [of public interest]. wrote in part, “By not being immediately the publication of a rape victim’s name Is this even a debate?” forthcoming to C-SPAN and the was protected by the First Amendment Jones cited CNN correspondent Brian Commission about his tweet, [Scully] because the information was truthful Stelter, who said, “I worked at The New understands that he made a serious and lawfully obtained — and Smith v. York Times many years ago.. . . A story mistake. We were very saddened by this Daily Mail Publishing Co., 443 U.S. 97 of this magnitude does not get published news and do not condone his actions. (1979) — in which the Court held that the without weeks and months of reporting, During his 30 years at C-SPAN, Steve First Amendment protected the publication editing, and — here’s the important consistently demonstrated his fairness of the name of a juvenile defendant part — legal scrutiny.” and professionalism as a journalist. He has obtained lawfully through routine built a reservoir of goodwill among those newsgathering practices even though there C-SPAN Places Veteran Producer on he has interviewed, fellow journalists, our was a state law against it. Leave Following False Claims About viewers, and with us. Starting immediately, Baquet’s full editor’s note is available His Twitter Account Being Hacked we have placed Steve on administrative online at: https://www.nytimes. On October 15, several media outlets, leave. After some distance from this com/2020/09/27/us/trump-taxes-editors- including CNN and the Associated Press, episode, we believe in his ability to note.html. reported that C-SPAN had placed Steve continue to contribute to C-SPAN.” In a Sept. 28, 2020 interview with “Law Scully, the network’s senior executive Scully’s and C-SPAN’s statements are & Crime,” a website created by ABC News producer and political editor, on available online at: https://twitter.com/ Chief Legal Affairs anchor Dan Abrams, “administrative leave” after he admitted to oliverdarcy/status/1316825168262635520/ First Amendment attorney Floyd Abrams, falsely claiming that his Twitter account photo/1. As the Bulletin went to press, who is Dan Abrams’ father, argued that it was hacked one week earlier. C-SPAN had not announced Scully’s return was “clear” that The New York Times was The situation arose on Oct. 8, 2020 to working for the network. free to publish the reports on President when Scully sent a tweet to Anthony Previously, on July 15, 2020, Twitter Trump’s tax returns. “First Amendment law Scaramucci, who previously served as the was the target of a hacking effort in which could hardly be clearer than that the press White House Director of Communications hackers breached the company’s internal is protected in publishing newsworthy for a short period in 2017 and later systems and compromised 130 user information, let alone information about became a vocal critic of President Donald accounts, in some instances posting rogue a President in the midst of his campaign Trump. The tweet read, “@Scaramucci tweets and downloading user data from the for re-election, regardless of whether its should I respond to trump,” referencing a accounts. (For more information on the source was authorized or permitted to comment earlier in the day by President Twitter hack, see “Twitter Hack Included provide it,” Floyd Abrams said. “In any Trump calling Scully a “Never Trumper,” Data Breach of User Accounts” in the event, no law barred the Times from according to CNN. Summer 2020 issue of the Silha Bulletin.) publishing its article and if there had The following day, Scully claimed been one it would in all likelihood be that he had not sent the tweet and that NBC and ABC Broadcast Dueling Town unconstitutional.” his Twitter account had been hacked. In Hall Debates with Vice President Biden In a piece for “Law & Crime,” a statement, C-SPAN supported Scully, and President Trump managing editor Matt Naham contended writing in a statement that he “did not On Oct. 15, 2020, NBC and ABC that the Times’ reporting was lawful, originate the tweet and believes his broadcast competing town hall debates citing Bartnicki, as well as arguing account has been hacked.” featuring President Donald Trump and that the newspaper was protected from However, on October 15, Scully then-presidential candidate Joe Biden. investigations into its sources. Naham released a statement in which he admitted NBC faced significant criticism for several pointed to New York’s shield law, which that he had sent the tweet, calling the reasons, including that it offered to host its provides a reporter’s privilege against tweet and his false claim about his account town hall at the same time as ABC’s event, compelled disclosure of confidential being hacked “both errors in judgement which had been scheduled first. sources and information. More specifically, for which I am totally responsible. I The Commission on Presidential he cited the Reporters Committee for apologize.” He added that the tweet and Debates (CPD) originally set a schedule Freedom of the Press’ (RCFP) finding false claim were made “[o]ut of frustration” of September 29, October 15, and October that New York’s Civil Rights Law § 79-h after President Trump went “on national 22 for the 2020 Presidential Debates to “provides an absolute privilege from television . . . and falsely attack[ed Scully] take place. The September 29 debate took forced disclosure of materials obtained or by name.” place as scheduled. Then, on October 2, received in confidence by a professional the White House disclosed that President 34 Trump had tested positive for COVID-19. their choice of time slot, saying that if the like one of two things. Either it’s a ratings The president was hospitalized and treated Trump debate followed the Biden debate, grab or they’re acting at the behest of the for three days at Walter Reed National it would give Trump a favorable advantage President.” Military Medical Center. After being over Biden, since more viewers prefer to Kirtley continued, “My view is that the released, President Trump returned to the watch television later in the evening than President knew what the ground rules White House. the Biden debate was scheduled. But The were; he got sick, they had to change the According to recommendations from New York Times noted that NBC had the format. He said he didn’t want to play. the Centers for Disease Control and potential for a wider viewing audience That’s his prerogative. Vice President Prevention (CDC), President Trump and therefore increased ratings because Biden was prepared to go forward and then should have self-quarantined for 14 days, the network could carry the debate on its I guess because he was feeling better or meaning he would be unavailable for the sister cable channels, MSNBC and CNBC. because he didn’t want to not be out there, scheduled October 15 debate. Therefore, Several media reports noted that NBC the President apparently was approached on October 8, the CPD announced that the had carried Trump’s reality show, “The by or went to NBC and asked them to run second debate would be held virtually in an Apprentice,” which ran on the network this. And I have no problem with them effort to accommodate President Trump. from 2004 until 2015, and which, as The running a town hall with President Trump, But President Trump told Fox Business Washington Post pointed out, was the I just don’t think it should be at the same that he was “not going to waste my time program through which “Trump first time as Vice President Biden’s town hall. on a virtual debate” in part because entered the consciousness of most people.” The public should be able to watch both of “they cut you off whenever they want.” Quartz, a business-focused English- these things without having to have a split Donald J. Trump for President campaign language international news organization, screen and go back and forth and try to (Trump campaign) manager Bill Stepien characterized NBC’s treatment of Trump figure out what’s going on. I just don’t think later said they would be willing to push the as “preferential,” noting that Trump had it’s serving the public interest to do this.” October 15 debate back a week and then hosted Saturday Night Live during the On October 15, the Hollywood move the third debate to October 29, just 2015 Republican primary race; that Trump Reporter reported that more than 100 days before the November 3 election. had been a guest in September 2016 on “top showrunners, producers, and stars” Biden’s campaign rejected the Trump the Tonight Show, when host Jimmy had sent a petition to Comcast and campaign’s proposal. According to CNN Fallon playfully tousled Trump’s hair, NBCUniversal executives, protesting the on October 16, Biden spokesperson Kate and that during that same month, former timing of the Trump town hall. “You are Bedingfield responded, saying, “Donald NBC anchor Matt Lauer had asked Trump enabling the president’s bad behavior Trump doesn’t make the debate schedule; softball questions during a “Commander-in- while undercutting the Presidential Debate the Debate Commission does.. . . Biden Chief” forum. Commission and doing a disservice to the would be happy to appear virtually, but Reaction to NBC’s hosting the Trump American public.. . . This is not a partisan said if the president declines to appear, town hall debate and scheduling it head-to- issue. This is about the political health of the former vice president will hold a head with Biden’s came from a variety of our democracy.” The petition concluded, town hall elsewhere.” (Kate Bedingfield is sources. One former NBC executive, Mark “We are simply asking that NBC air the the daughter of University of Minnesota Lukasiewicz, told The New York Times, President’s town hall either before or after Hubbard School of Journalism and Mass “This is a bad result for American voters, Vice President Biden’s so that American Communication associate professor Sid who should not be forced to choose which voters can have the opportunity to watch Bedingfield.) The Biden campaign then to watch.” both.” Signatories to the petition included scheduled a nationally-televised town hall Vivian Schiller, a former NBC, Twitter, such notables as actors Debra Messing, Jon on ABC with George Stephanopoulos on and National Public Radio executive, told Hamm, and Mariska Hargitay, as well as October 15 at 8 pm ET. The Washington Post, “The point of a news Adam Sorkin, creator of the NBC political According to CNN, NBC then offered organization is to serve the public. This is drama series, “West Wing.” President Trump the opportunity to the opposite.” The Wall Street Journal reported that schedule a town hall debate at the Kyle Pope, editor and publisher of the NBCUniversal News Group Chairman same time and on the same day as the Columbia Journalism Review, tweeted on Cesar Conde responded to the criticism by Biden debate on ABC. According to the October 14, “I’m reminded of Chris Wallace issuing a statement that read in part, “Our Hollywood Reporter, NBC stipulated two bemoaning the fact that Trump’s shouting decision is motivated only by fairness, not conditions: that Trump had to provide meant the American people didn’t get the business considerations.” The Wall Street evidence that he would not present a safety benefit of hearing from both candidates. Journal further reported that NBC had risk to others attending the event, and that @NBCNews apparently has no such view. scheduled the Trump town hall at the same the moderator would be NBC’s “Today” co- This is a craven ratings stunt, caving to the time at the Biden town hall because the anchor Savannah Guthrie. President Trump Trumpian impulses the network helped network had given the same time slot to agreed. hone.” Biden at a previous town hall and it wanted NBC defended its decision to air the Silha Center Director and Silha to keep all things equal between the two program directly opposite the Biden Professor of Media Ethics and Law Jane candidates. debate, telling The New York Times that Kirtley said in an October 15 interview when NBC executives were asked why with WCCO radio in Minneapolis, “I’m — Scott Memmel they decided not to hold the Trump debate incandescent with rage that they have Postdoctoral Associate on a different night, they responded that chosen to do this. I’m a big supporter of — Elaine Hargrove not only was that evening their own choice; the news media and I’ll fight to the death Silha Center Staff it also fit better into President Trump’s to defend their First Amendment rights. schedule. NBC executives further defended But this is just so tacky because it looks

35 Courts Reject Efforts to Block or Impede Publication of Books About President Donald Trump n summer 2020, President Donald for the District of Columbia denied publisher to delay the release date of Trump’s family and administration the federal government’s motion for the book pending the completion of sought to block or impede a temporary restraining order and the prepublication review process and publication of three books about preliminary injunction against former authorization from the United States him. Each effort failed and the National Security Advisor John Bolton, that no classified information remains in Ibooks were published. who authored the book The Room the book”; “instruct his publisher to take On June 20, Judge Royce C. Where It Happened. United States any and all available steps to retrieve Lamberth of the U.S. District Court of America v. John R. Bolton, No. and destroy any copies of the book that for the District 1:20-cv-1580-RCL (D.D.C. June 20, may be in the possession of any third PRIOR of Columbia 2020). The Justice Department took party”; prevent Bolton from “taking any RESTRAINT denied the federal legal action alleging that Bolton had additional steps toward[s] public[ly] government’s failed to comply with prepublication disclosing classified information motion for a temporary restraining review requirements and that the without first obtaining authorization order and preliminary injunction against book contained classified information. from the United States through the former National Security Advisor John Lamberth recognized that Bolton failed prepublication review process”; and Bolton, who authored the book The to fully comply with prepublication finally to mandate that Bolton “ensure Room Where It Happened. review rules, but determined that the that his publisher and resellers received On June 30, New York state Supreme government had not met the legal notice of [the injunction].” Court Judge Hal B. Greenwald issued standard for seeking a preliminary In his ruling, Judge Lamberth a temporary injunction restraining injunction and dismissed the action. articulated the legal standard for President Donald Trump’s niece, Mary The facts of the case principally stem issuing a preliminary injunction, which L. Trump, and her publisher, Simon & from December 2019, when Bolton he called “an extraordinary remedy.” Schuster, from publishing her book sent the National Security Council a To prevail in seeking a preliminary Too Much and Never Enough, How draft manuscript for prepublication injunction, the moving party must make My Family Created the World’s Most review. Over the course of four a “clear showing that four factors, taken Dangerous Man. The plaintiff, Robert months, Bolton worked with the NSC together, warrant relief.” Those four S. Trump, President’s Trump’s brother, in editing the draft. On April 27, 2020, factors are: “(1) a substantial likelihood sought the injunction arguing that the an NSC official told Bolton that “she no of success on the merits, (2) that the book was produced in violation of a longer considered the manuscript to movant would suffer irreparable injury nondisclosure agreement that Mary L. contain classified material.” However, if the injunction were not granted, Trump had signed to resolve an earlier written authorization reflecting such (3) that an injunction would not family dispute. A state appeals court a determination did not follow, and substantially injure other interested subsequently vacated the temporary the NSC official later clarified that the parties, and (4) that the public interest injunction against Simon & Schuster but prepublication review process was would be furthered by the injunction.” upheld the temporary injunction against still ongoing. Weeks later, a White As to the first prong of the test, the Mary L. Trump pending a hearing House lawyer notified Bolton that court agreed that the government was on whether to grant the preliminary the manuscript still had classified likely to succeed on the merits. The injunction. information in it. By that time, however, court said that it was “persuaded that On July 13, Greenwald vacated the Bolton had already sent the manuscript defendant Bolton likely jeopardized temporary injunction against Mary to his publisher without notice to or national security by disclosing L. Trump, and declined to issue a approval from the government. The classified information in violation preliminary injunction against Mary L. manuscript was subsequently printed of his nondisclosure agreement Trump and Simon & Schuster. and shipped to booksellers around the obligations.” The court further said Finally, on July 23, Judge Alvin K. United States. that “it is well settled that a mandated Hellerstein of the U.S. District Court The government asked the court on prepublication review process is not for the Southern District of New York June 16 to issue a temporary restraining an unconstitutional prior restraint,” concluded that the federal government order or preliminary injunction that citing McGhee v. Casey, 718 F.2d 1137 sent former Trump attorney Michael would, among other things, prevent (D.C. Cir. 1983), and Snepp v. United Cohen back to prison because he was Bolton from “proceeding with the States, 444 U.S. 507 (1980). Ultimately, writing a book about Trump — action publication of his book in any form or the court said that the nondisclosure that Hellerstein concluded was media without first obtaining written agreements did bar publication of retaliatory and in violation of the First authorization from the United States classified materials and that Bolton had Amendment — and ordered that Cohen through their pre-publication review likely published classified materials in be released from custody. process.” The government also asked his book. the court to require that Bolton However, Lamberth found that the Court Declines to Stop Distribution “ensure that his publisher and resellers government failed to establish that of John Bolton Book received notice that the book contains an injunction would actually prevent On June 20, 2020, Judge Royce C. classified information that he was not irreparable injury. More than 200,000 Lamberth of the U.S. District Court authorized to release”; “instruct his copies of the book had already been

36 shipped around the United States and a written statement: “The court was of injunction against Mary L. Trump, to numerous countries around the course right to reject the government’s and declined to issue a preliminary world, and various excerpts of the request for a prior restraint, especially injunction against Mary L. Trump and book had been posted on the Internet. because the injunction the government Simon & Schuster. Moreover, “For reasons that hardly need sought here was broader than the one In the initial ruling in the case, to be stated, the court will not order a the Supreme Court rejected in the Greenwald issued a temporary nationwide seizure and destruction of Pentagon Papers case. In other respects, injunction restraining Mary L. Trump a political memoir,” Lamberth wrote. though, the ruling is a troubling and Simon & Schuster from “publishing, “In taking it upon himself to publish his reaffirmation of broad government printing or distributing” the book book without securing final approval power to censor in the name of national or any portions of it that contained from national intelligence authorities, security. The prepublication review “descriptions or accounts of Mary L. Bolton may indeed have caused the system puts far too much power in Trump’s relationship with Robert S. country irreparable harm. But in the the hands of government censors, and Trump, Donald Trump, or Maryanne Internet age, even a handful of copies reform of this dysfunctional system Trump Barry.” The temporary injunction in circulation could irrevocably destroy is long overdue.” The Knight First was scheduled to last until a hearing confidentiality. A single dedicated could be held on individual with a book in hand could the matter on July publish its contents far and wide from “For reasons that hardly need to 10. Mary L. Trump his local coffee shop. With hundreds be stated, the court will not order a and Simon & of thousands of copies around the nationwide seizure and destruction of a Schuster appealed globe — many in newsrooms — the political memoir.” the temporary damage is done. There is no restoring injunction and the status quo.” The court further sought to have suggested that the government may — Judge Royce C. Lamberth, it vacated or lack standing to pursue the preliminary U.S. District Court for the District of Columbia modified. On injunction because the relief being July 1, the New sought — a prior restraint — would York Supreme not remedy the injury the government Amendment Institute is representing Court, Appellate Division, the state’s argued it would suffer. a group of former federal officials intermediate appellate court, issued Thus, Lamberth held that, although in a lawsuit against the government a decision and order invalidating the Bolton had “gambled with the national challenging the constitutionality of the temporary injunction against Simon & security of the United States and pre-publication review system. Schuster, but the appeals court kept the exposed his country to harm himself to temporary injunction against Mary L. civil and potentially criminal liability Injunctions Ultimately Rejected Trump intact. Presiding Justice Alan D. the government had failed to establish Against Mary Trump, Simon & Scheinkman was the sole author of the an injunction would prevent irreparable Schuster decision. Although panels of justices harm.” The court did not address the On June 30, 2020, New York state typically review appeals, this case was First Amendment issues raised in the Supreme Court Judge Hal B. Greenwald reviewed by just one justice because case. A copy of the ruling is available issued a temporary injunction Mary L. Trump and Simon & Schuster online at: https://z.umn.edu/62hc. restraining President Donald Trump’s appealed pursuant to a state statute that Bolton’s attorney, Charles J. Cooper, niece, Mary L. Trump, and her publisher, allows for review by a single justice. said he was happy about the outcome Simon & Schuster, from publishing her C.P.L.R. 5704(a). but disputed Lamberth’s conclusion that book Too Much and Never Enough, At issue in the suit was a 2001 Bolton had not followed pre-publication How My Family Created the World’s settlement agreement between protocol, according to The New York Most Dangerous Man. Robert S. members of the Trump family over the Times on June 20, 2020. “We welcome Trump v. Mary L. Trump and Simon probate of wills of Fred and Mary Anne today’s decision by the court denying & Schuster, Inc., 69 Misc. 3d 285, 128 Trump, who are the parents of Donald the government’s attempt to suppress N.Y.S.3d 801 (N.Y. Sup. Ct. 2020). (In Trump and grandparents of Mary L. Ambassador Bolton’s book,” Cooper New York, the state Supreme Courts Trump. As part of the settlement, the told the newspaper. “We respectfully are the lowest courts of record.) The parties agreed to seal records from the take issue, however, with the court’s plaintiff, Robert S. Trump, President’s case, “agreeing that the public had no preliminary conclusion at this early Trump’s brother, sought the injunction interest in the particular information stage of the case that Ambassador arguing that the book was produced in involved in their resolution of their Bolton did not comply fully with his violation of a nondisclosure agreement differences and that confidentiality was contractual prepublication obligation that Mary L. Trump had signed to required in order to protect the litigants to the government, and the case will resolve an earlier family dispute. A state and encourage a fair resolution of the now proceed to development of the full appeals court subsequently vacated the matters in controversy.” The “settlement record on that issue. The full story of temporary injunction against Simon agreement contains reciprocal these events has yet to be told — but it & Schuster but upheld the temporary provisions essentially barring each will be.” injunction against Mary L. Trump side from disclosing the terms of the Jameel Jaffer, executive director of pending a hearing on whether to grant settlement or publishing any description the Knight First Amendment Institute at the preliminary injunction. On July of the litigation or their relationships Columbia University, told the Times in 13, Greenwald vacated the temporary Prior Restraint, continued on page 38 37 Prior Restraint, continued from page 37 for public office of her uncle, the The appeals court held that “[t]here without the consent of all parties on President of the United States . . . and is no compelling need for the material the other side,” according to court that the United States Constitution at issue to be published by Ms. Trump documents. A relevant portion of the independently protects the right of prior to the return date of the motion for agreement states that Mary L. Trump [Simon & Schuster] to publish the a preliminary injunction, which is less “shall not disclose any of the terms of work.” than 10 days away. At this preliminary this Agreement and Stipulation, and in The appeals court agreed in part stage of the proceedings, this Court is of addition shall not directly or indirectly and disagreed in part. First, the the view that it is appropriate, in view publish or cause to be published, any court said Mary L. Trump was free of the confidentiality provision of the diary, memoir, letter, story, photograph, to relinquish her First Amendment settlement agreement and the showing interview, article, essay, account, or rights in a contract. “While Ms. Trump made in the plaintiff’s papers, for a description or depiction of any kind unquestionably possess the same First temporary restraining order to issue whatsoever, whether fictionalized Amendment expressive rights belonging as against Ms. Trump to temporarily or not, concerning their litigation or to all Americans, she also possesses the enforce its terms pending a hearing on relationship with the ‘Proponents/ right to enter into contracts, including the preliminary injunction.” Defendants’ or their litigation . . . or the right to contract away her First However, the appeals court vacated assist or provide information to others Amendment rights. Parties are free to the temporary injunction against Simon in connection therewith.” The excerpt limit their First Amendment rights by & Schuster because it was not a party to also states that “In the event such contract,” Scheinkman wrote. “Here, the settlement agreement and was not breach occurs, ‘Objectants/Plaintiffs’, as the plaintiff has presented evidence that acting as Mary L. Trump’s agent. “While well as their ‘counsel’, hereby consent Ms. Trump, in exchange for valuable the plaintiff has alleged, in effect, that to the granting of a temporary or consideration, voluntarily entered [Simon & Schuster] is Ms. Trump’s permanent injunction against them (or into a settlement agreement to resolve agent, the evidence submitted is against any agent acting in their behalf) contested litigation. In that settlement insufficient for this Court to determine by any court of competent jurisdiction agreement, she agreed not to publish whether the plaintiff is likely to succeed prohibiting them (or their agent) from a book concerning the litigation or in establishing that claim. So, while violating the terms of this Paragraph.” her relationship with the adverse the plaintiff is entitled to have the In his lawsuit seeking to block parties, the plaintiff, Donald J. Trump, temporary restraining order bind any publication of Mary L. Trump’s book, and Maryanne Trump Barry, without agent of the plaintiff, this Court will not her uncle, Robert S. Trump, alleged their consent.. . . While the contents name [Simon & Schuster] as being such that while he had not seen the book, of the proposed book are unknown, an agent,” the court wrote. A copy of the he believed that “a major topic of the from the title and from the statements appellate court’s decision is available book” would be her “relationship with attributed to Ms. Trump it appears that online at: https://z.umn.edu/62ma. the plaintiff, Donald J. Trump, and the content of the book touches upon On July 13, with the case back in [their sister,] Maryanne Trump Barry.” subjects that may be within the reach the trial court, Greenwald vacated the At the time, Mary L. Trump had said of the confidentiality provision of the temporary injunction against Mary publicly that the book would contain settlement agreement.” L. Trump, and declined to issue a an “insider’s perspective” of “countless The appeals court then said preliminary injunction against Mary holiday meals,” “family interactions,” although it was not required to enforce L. Trump or Simon & Schuster. In a and “family events.” Robert S. Trump confidentiality agreements, courts 20-page opinion, Greenwald found argued to the court that he, Donald can issue injunctions as “matter[s] that the nondisclosure provision in J. Trump, and Maryanne Trump of equity,” or courts impose money the settlement agreement between Barry did not give their consent to damages for breach of contracts. members of the Trump family to be “so the book’s publication. The lawsuit “The balancing concept takes into overly broad[] as to be ineffective,” and sought performance of the settlement account whether the provisions that Simon & Schuster was not acting as agreement to enforce the nondisclosure of the confidentiality agreement an agent for Mary L. Trump. “The mere provision, a declaratory judgment are temporally and geographically fact that [Simon & Schuster] entered that the book violates the settlement reasonable and the extent to which the into a publishing agreement to publish agreement, a permanent injunction, and provisions are necessary to protect the [Mary L. Trump’s] memoir — does not money damages for breach of contract. plaintiff’s legitimate interests.. . . The establish agent-principal relationship,” Mary L. Trump and Simon & passage of time and changes in the court wrote. Simon & Schuster had Schuster responded in court filings circumstances may have rendered at argued that not only was it not an agent “that the temporary restraining order least some of the restrained information of Mary L. Trump, but that enjoining should not have been issued, and less significant than it was at the time it from publishing her book amounted should be vacated, as there is a heavy and, conversely, whatever legitimate to an unconstitutional prior restraint. presumption against prior restraint public interest there may have been “[Simon & Schuster] argues that as on expression . . . which the plaintiff in the family disputes of a real estate such, restraining a publication in this has not overcome.” Simon & Schuster developer and his relatives may be instance equates to a prior restraint also argued that Mary L. Trump was considerably heightened by that real of expression on a matter of public entitled under the First Amendment estate developer now being President of interest and would be unconstitutional, to “participate in the electoral debate the United States and current candidate as it infringes upon its First Amendment by writing and publishing a work for re-election,” Scheinkman wrote. protected speech,” the court wrote. concerning the character and fitness “[Simon & Schuster] purports that there 38 is a heavy presumption to overcome to Greenwald then recited the standard mortar and virtual, libraries and private allow this type of restraint, and plaintiff for granting a preliminary injunction. citizens, is an insurmountable task at must show in the record, that the “It is well settled that for a preliminary this time,” the court wrote. A copy of matter sought to be restrained would injunction to be granted there are Greenwald’s decision is available online immediately and irreparably create three required elements that must be at: https://z.umn.edu/62m9. public injury, which plaintiff has not established: (1) likelihood of success on The court thus vacated the demonstrated.” the merits, (2) irreparable injury absent temporary injunction against Mary L. Greenwald also rejected various granting of a preliminary injunction, (3) Trump and denied Robert S. Trump’s other arguments asserted by Robert and a balancing of the equities in the request for preliminary injunctions S. Trump. The president’s brother had movant’s favor.” The court found that against Mary L. Trump and Simon & claimed that Simon & Schuster “does none of those requirements were met Schuster. not get the benefit of protections for the requested injunction against In response to the ruling, attorney afforded to journalists or newspapers, Simon & Schuster. First, Robert S. Theodore Boutrous Jr., who in being able to publish unlawfully Trump would be unlikely to succeed represented Mary L. Trump, issued a obtained information, because [Simon on the merits of his claim. Second, written statement. “The court got it & Schuster] did not passively receive the court found that Robert S. Trump right in rejecting the Trump family’s the information but [is] involved in would not incur irreparable injury, in effort to squelch Mary Trump’s core the improper activity of obtaining part when considering that a court political speech on important issues the information.” He further alleged found irreparable injury would not of public concern,” Boutrous said. that Simon & Schuster and Mary L. flow from John Bolton’s book, which “The First Amendment forbids prior Trump have a relationship that is was about national security, whereas restraints because they are intolerable “distinguishable from a journalist Mary L. Trump’s book is about family infringements on the right to participate and its source, as they have more matters. In fact, Greenwald said that in democracy. Tomorrow, the American than an arm’s length relationship, and Simon & Schuster and the public would public will be able to read Mary’s both fare to gain a lucrative benefit be irreparably harmed by blocking important words for themselves.” from this publication, therefore it is a publication. Third, Greenwald found (Boutrous delivered the 2018 Silha collaborative effort to evade the terms that the balance of equities favored Lecture. For more information on his of the Agreement.” Robert S. Trump Simon & Schuster. “The Court further presentation, “The First Amendment also argued that the injunction was not finds that the balancing of the equities, and #MeToo,” see “33rd Annual Silha attempting to enjoin Mary L. Trump’s where there is no privity of contract and Lecture Addresses the Free Speech “political speech, akin to a prior no likelihood of success, plus there has Implications of the #MeToo Movement” restraint[,] but [instead was seeking] been no evidence of irreparable harm, in the Fall 2018 Silha Bulletin.) more of a content neutral application and in light of the number of books of contract law, similar to a copyright already published and distributed and Judge Rules Government Retaliated injunction.” information already discussed by media Against Ex-Trump Lawyer Michael However, Greenwald found that and members of the Trump family, tilts Cohen for Planned Book About the a literary agent for Mary L. Trump in favor of [Simon & Schuster],” the President had approached Simon & Schuster court wrote. On July 23, 2020, The New York and other publishers about the book, As to Mary L. Trump, the court Times reported that federal authorities and that Simon & Schuster won the also found that the standard for a had unconstitutionally retaliated bid for the contract. “There is also preliminary injunction was not met. against President Donald Trump’s no evidence that [Simon & Schuster] Greenwald wrote Robert S. Trump did former lawyer, Michael Cohen, by enticed [Mary L. Trump] to provide not meet the burden of “demonstrating sending him back to prison in solitary unlawful information, which would be imminent, irreparable harm” to confinement because he was writing a more similar to the unethical practice of himself because the allegations were book about the president. Judge Alvin paying a source for information rather “unsupported and conclusory” and K. Hellerstein of the U.S. District Court than merely entering into a contract. “without any specifics as to [whether] for the Southern District of New York It is well settled that if a newspaper he . . . will suffer irreparable harm.” subsequently ordered that Cohen be lawfully obtains truthful information With respect to the balance of equities, released from prison again so he could of great public concern, even when Greenwald concluded that the balance continue serve the remainder of his stolen from a third party, the Courts will tipped in favor of Mary L. Trump sentence under home confinement. “I uphold the right of the press to publish because an injunction would amount to make the finding that the purpose of such information, and restraint of such a prior restraint in violation of the First transferring Mr. Cohen from furlough may be deemed unconstitutional,” Amendment. Also significant was that and home confinement to jail is Greenwald wrote, citing Bartnicki v. at the time of the ruling, the book had retaliatory,” Hellerstein said during a Vopper, 532 U.S. 514, (2001). “Plaintiff already received extensive attention hearing, according to the newspaper. has not demonstrated any impropriety from the public and press. “Comparing “And it’s retaliatory because of his on behalf of [Simon & Schuster] in the potential enormous cost and desire to exercise his First Amendment obtaining the publishing rights to [Mary logistical nightmare of stopping the rights to publish a book and to discuss L. Trump’s] memoir or that [Simon & publication, recalling and removing anything about the book or anything Schuster] did not lawfully obtain the hundreds of thousands of books from else he wants on social media and with information.” all types of booksellers, brick and others.” Michael D. Cohen v. William Prior Restraint, continued on page 40 39 Prior Restraint, continued from page 39 “The narrative describes pointedly the Court may take notice of this certain anti-Semitic remarks against Administration’s disparate treatment of Barr, et al., No. 20-CV-05614 (S.D.N.Y. prominent Jewish people and virulently its allies and prior attempts to silence or July 20, 2020). racist remarks against such Black retaliate against critics of the President. A Bureau of Prisons spokesperson leaders as President Barack Obama Not only does that context make more disputed that the decision to send and Nelson Mandela,” the ACLU’s court plausible Mr. Cohen’s contention that Cohen back to prison was retaliation for filing states. The action was a verified he is being punished because of his the book. Rather, authorities attributed petition for writ of habeas corpus, intent to speak, but it also highlights the Cohen’s confinement to his acting in a need for immediate “combative” manner, according to the redress for such a Times. The probation officer working “[T]he government cannot jail an blatant and public with Cohen testified that he drafted outspoken critic of the President violation of the the conditions for supervised release, First Amendment. that he did so without input from because he exercised and refused to Absent such supervisors at the Bureau of Prisons or relinquish his freedom of speech.” redress, Mr. anyone in the Executive Branch, and Cohen’s jailing is that the document was not intended — Amicus curiae brief by First Amendment likely to have an to gag Cohen’s speech. But Hellerstein Scholars, including Jane Kirtley, outsized chilling said in the court hearing that the terms Silha Center Director and effect on other of the supervised released were highly Silha Professor of Media Ethics and Law critics of the unusual. “In 21 years of being a judge President.” and sentencing people and looking at In a statement, the terms and conditions of supervised which is available online at: https://z. Ben Wizner, director of the ACLU’s release. I have never seen such a umn.edu/62md. Speech, Privacy, and Technology clause,” Hellerstein said, according On July 21, a group of First Project, said the government’s action to the newspaper. Hellerstein added: Amendment scholars filed with the against Cohen was an example of how “Why would [the probation officer] ask court an amicus curiae brief calling the Trump administration has sought for something like this unless there Cohen’s confinement “a blatant to silence critics of the president. was a purpose to it, unless there was violation” of the First Amendment. “The government cannot imprison a retaliatory purpose saying, ‘You toe Among the scholars who signed onto Michael Cohen for writing a book the line about giving up your First the brief was Director of the Silha about President Trump,” Wizner said Amendment rights or we will send you Center and Silha Professor of Media in the statement. “The gag order that to jail.’” Ethics and Law at the University the government sought to impose on The ruling came days after Cohen, of Minnesota Jane Kirtley. “If the Mr. Cohen was an unconstitutional represented by the American Civil allegations in Mr. Cohen’s petition are prior restraint, and his continued Liberties Union (ACLU), sued the true, this is a straightforward First imprisonment is part of a dangerous government on July 20 alleging that Amendment case: the government pattern of retaliation against Trump it was trying to stifle publication of cannot jail an outspoken critic of the critics.” the book, which was expected to President because he exercised and be critical of Trump and reveal “the refused to relinquish his freedom of — Jonathan Anderson president’s behavior behind closed speech,” the brief reads. “Furthermore, doors,” according to the newspaper. Silha Bulletin Editor in considering Mr. Cohen’s claims,

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40 Developments in Two Defamation Lawsuits Against Minnesota News Media n the second half of 2020, two the accused shooter, writing in a press On May 19, 2016, the district court major developments occurred in release that Larson “was booked into the partly granted summary judgment in libel lawsuits involving Minnesota Stearns County Jail on murder charges.” favor of KARE 11 and the St. Cloud news media. On Oct. 13, 2020, the Based on that information, multiple Times, ruling that “to the extent the U.S. Supreme Court declined to news organizations, including Twin news conference and news release only Ireview the Minnesota Supreme Court’s Cities television station KARE 11 and the communicated the fact of Mr. Larson’s decision in Larson v. Gannett. Although St. Cloud Times newspaper, produced arrest or the charge of crime made by the state high court held that the fair stories about the fatal shooting, the officer in making or returning his report privilege investigation, and arrest of Larson. arrest, these sources are entitled to the protects fair and DEFAMATION However, days after his arrest, police [fair report] privilege.” The fair report accurate reporting released Larson because authorities privilege generally immunizes individuals of information lacked enough evidence to charge him, who publish false, defamatory about matters of public concern derived and he was formally eliminated as a information so long as the individual from official law enforcement press suspect in August 2013. In the wake of relied on an official public document or conferences and press releases, the his arrest, Larson quit his job, dropped a statement by a public official, made court also ordered a new trial as to out of school, and moved away so he clear that the document or statement whether the privilege applied to certain could avoid further “embarrassment was their source, and summarized the statements. The media defendants in and humiliation,” according to the source material fairly and accurately. that case argued to the U.S. Supreme Minneapolis Star Tribune on Feb. 23, However, on Nov. 10, 2016, the district Court that requiring such a trial when 2020. court amended the May ruling, finding a jury already found the statements On May 28, 2015, Larson sued that the fair report privilege did not substantially true violated the First KARE 11 and the St. Cloud Times cover the five statements attributed Amendment. The Court chose not to in Hennepin County District Court, to law enforcement and that the three accept the case. alleging they published 11 defamatory statements referencing accusations In the other libel lawsuit, Ethiopian statements about his arrest. Five of against Larson were not substantially Airlines, the largest airline in Africa, the statements were attributed to accurate. The court dismissed only the sued Ze Habesha, a Minnesota-based law enforcement, three statements last three statements at issue, which newspaper, for $25 million for publishing were general descriptions of law discussed Larson’s criminal history and allegedly defamatory statements about enforcement’s accusations against community members’ opinions about the the airline and its leadership. The Larson but without explicitly referencing case, because the court found they were newspaper denied the allegations in law enforcement, and three additional not capable of a defamatory meaning. court filings, but the parties reached a statements discussed his criminal history On Nov. 21, 2016, a jury found that tentative settlement in October 2020. or community members’ opinions that the eight remaining statements about the case. Of the five statements were defamatory, but that the news U.S. Supreme Court Declines to Hear attributed to law enforcement, KARE organizations were immunized from Larson v. Gannett 11 published four statements (“Police liability because the information came On Oct. 13, 2020, the U.S. Supreme say that man — identified as 34-year-old from law enforcement. Larson moved Court declined to review the Ryan Larson — ambushed officer Decker for a new trial following the jury verdict, Minnesota Supreme Court’s decision and shot him twice — killing him”; asserting that the jury did not properly in Larson v. Gannett, 940 N.W.2d 120 “Investigators say 34-year-old Ryan apply the law. The district court granted (Minn. 2020), in which the state’s high Larson ambushed the officer, shooting Larson a new trial for all 11 statements, court held that the fair report privilege him twice. Larson is in custody”; “He finding that the statements exceeded protects fair and accurate reporting of [Officer Decker] was the good guy “the mere fact of arrest or charge” and information about matters of public last night going to check on someone were false and defamatory as a matter concern derived from official law who needed help. That someone of law. enforcement press conferences and was 34-year-old Ryan Larson who On May 7, 2018, a three-judge panel press releases. As is customary with investigators say opened fire on Officer of the Minnesota Court of Appeals most decisions to deny review, the U.S. Tom Decker for no reason anyone can reversed the district court, ruling that Supreme Court did not explain why it fathom”; and “Investigators believe he the fair report privilege applies to “fair chose not to hear the case. However, the fired two shots into Cold Spring Police and accurate reports of statements lawsuit remained active as the Bulletin Officer Tom Decker, causing his death”) by law enforcement during an official went to press because a majority of the and the St. Cloud Times published the press conference and in a news release.” Minnesota Supreme Court ordered a fifth statement (“Police say Larson is Larson v. Gannett Co., Inc., 915 N.W.2d new trial, which is scheduled to begin in responsible for the shooting death of 485 (Minn. Ct. App. 2018). The panel February 2021. Cold Spring-Richmond Police Officer held that the district court incorrectly The case arose after a 2012 fatal Tom Decker”). Larson also sued concluded that the fair report privilege shooting of a police officer in Cold KSTP-TV and WCCO’s TV and radio did not apply, writing that Minnesota Spring, Minn. Law enforcement initially stations, each of which settled. “has recognized the privilege for over a identified the plaintiff, Ryan Larson, as Libel, continued on page 42 41 Libel, continued from page 41 a new trial to decide whether the v. Vopper, 532 U.S. 514 (2001), in which privilege can apply to the five statements the U.S. Supreme Court held that century.” (For more information on the attributed to law enforcement. The government punishment of publishing background of Larson and the lower full ruling by the Minnesota Supreme “truthful information can seldom satisfy court rulings, see Minnesota Court of Court is available online at: https://z. constitutional standards.” And the media Appeals Says Fair Report Privilege umn.edu/6ihk. (For more information outlets argued that when a defamation Extends to Cover Law Enforcement about the Minnesota Supreme Court’s plaintiff has failed to establish that Press Conferences and News Releases in decision, see Minnesota Supreme statements are false, the speaker “Minnesota and Federal Courts Grapple Court Applies Fair Report Privilege to should not be required to establish that with Defamation Questions; Right-Wing Law Enforcement Press Conferences the statements are privileged; for this Radio Host Faces Several Defamation and Press Releases in “High-Profile proposition the outlets cited Time, Lawsuits” in the Summer 2018 issue of Inc. v. Pape, 401 the Silha Bulletin.) U.S. 279 (1970), On Feb. 26, 2020, the Minnesota "[The Minnesota Supreme Court's and Time, Inc. v. Supreme Court affirmed the Court of decision in Larson v. Gannett] threatens Firestone, 424 U.S. Appeals in part, reversed in part, and 448 (1976). Second, remanded the case back to the district to chill constitutional speech when the petition argued court for a new trial. In the majority reporting on government investigations that the “Minnesota opinion, written by Justice Margaret and statements.” Supreme Court’s Chutich, the Court concluded that the decision highlights privilege applied to seven statements — Petition for a writ of certiorari filed by the the deep division the media published based on the press St. Cloud Times and KARE 11 with the U.S. and confusion conference and press release, that the Supreme Court among lower jury instructions and a special verdict courts as to how to form failed to sufficiently inform the address defamation jury of the factors that should be used Defamation Lawsuits Target National claims based on press reports of to assess whether the privilege can be and Local Media Outlets” in the Spring government officials’ statements defeated, and that four statements were 2020 issue of the Bulletin.) regarding government investigations.” covered by the privilege, but were not Following the Minnesota Supreme In this case, the petition said, the actionable. Court decision, KARE 11 and the Minnesota Supreme Court exceeded the The Court ruled that the fair report St. Cloud Times took steps to avoid a flexibility provided to states to define privilege protects “news reports new trial. On March 11, 2020, the media defamation law and that the order for a that accurately and fairly summarize outlets petitioned the state high court new trial is “flatly prohibit[ed]” by the statements about a matter of public for a rehearing, but the Court denied First Amendment.” Third, the petition concern made by law enforcement the petition on March 30, 2020. Then argued that the Minnesota Supreme officers during an official press release on Aug. 27, 2020 the media outlets filed Court decision “threatens to chill and in an official news release.” A report a petition for a writ of certiorari with constitutional speech when reporting is fair and accurate when it “simply the U.S. Supreme Court. The petition on government investigations and relay[s] information to the reader said the case raised an important First statements.” The petition for a writ of that she would have seen or heard Amendment question: “In a defamation certiorari is available online at: https://z. herself were she present” at the official case, where a jury finds that media umn.edu/6iku. proceeding. The press conference and defendants’ reporting on what law On Sept. 14, 2020, Larson waived his press release were “an official action enforcement said in a news release right to respond to the petition. Justices or proceeding” and thus covered by and news conference was substantially considered the petition at a conference the privilege, the Court said, because accurate and thus not false, does the on October 9, and the Court denied the they were organized and disseminated First Amendment permit a state court to petition on October 13, according to by senior officials of law enforcement require the jury to consider whether such the Court’s public docket for the case. agencies. reports met the fair report privilege’s Gannett Co., Inc., et al., Petitioners However, the majority explained that requirements, thereby displacing the v. Ryan Larson, 592 U.S. ___ (2020). because the district court erroneously falsity element of defamation?”. A jury trial is scheduled to begin Feb. 8, held that the privilege did not apply, The answer, the petition said, 2021 in Hennepin County District Court, the district court did not tell the jury should be “no” for three reasons. First, according to court records. how to assess whether the privilege the media outlets argued that the had been defeated. The district court’s Minnesota Supreme Court’s decision Minnesota Newspaper, Ethiopian jury instructions were therefore not conflicts with key First Amendment Airlines Reach Tentative Settlement adequate because they focused only precedents. The media outlets cited In 2020, Ethiopian Airlines sued on whether the statements were Phila. Newspapers, Inc. v. Hepps, 475 Minnesota-based journalist Henok substantially accurate and did not assess U.S. 767 (1986), which provides that Alemayehu Degfu and his newspaper, Ze fairness. A report may not be fair if it private-figure plaintiffs should not be Habesha, in U.S. District Court for the omits or misplaces information or adds able to recover damages on speech District of Minnesota. Ethiopian Airlines, context that changes the meaning of the about a matter of public concern unless one of the largest airlines in Africa and statements in a material way, according they show the statements were false. an arm of the Ethiopian government, to the Court. Thus, the majority ordered The outlets also pointed to Bartnicki alleged that Degfu and Ze Habesha

42 defamed the company in several videos On May 28, 2020, the airline filed First, defendants argued that most of the posted to the Internet on YouTube. After suit against Degfu and Ze Habesha. The statements did not concern Ethiopian the defendants moved to dismiss the suit, airline alleged that the videos contained Airlines, but rather its chief executive the airline filed an amended complaint, 16 false and defamatory statements, officer. Thus, the defendants said that prompting Judge Eric C. Tostrud to deny according to the complaint, which the complaint “reads not as a good-faith the motion to dismiss because it was included general descriptions and attempt to recover for real reputational based on the original complaint and thus verbatim transcripts of the allegedly damage to Plaintiff arising from allegedly rendered moot. The parties subsequently defamatory statements translated into false statements of fact, but as an notified the Court that they had reached English. The allegedly defamatory attempt to harass Defendants in hopes a tentative settlement. statements claimed that the airline that the expense of fighting a behemoth On and after April 15, 2020, the such as Plaintiff defendants had posted to YouTube three will force them to videotaped interviews entitled “The "[Ethiopian Airlines' lawsuit] reads not as stop publishing Hidden Secrets of Ethiopian Airlines,” a good-faith attempt to recover for real critical videos according to the airline’s complaint. The reputational damage to Plaintiff arising about Plaintiff’s videos were narrated in the Amharic from allegedly false statements of fact, CEO.” language. Second, On April 18, 2020, United States but as an attempt to harass Defendants defendants argued counsel for the airline sent defendants in hopes that the expense of fighting that the airline a letter requesting that they remove two a behemoth such as Plaintiff will force was a public figure of the YouTube videos within 48 hours. because it was The letter listed the allegedly defamatory them to stop publishing critical videos “the largest airline statements and concluded by saying that about Plaintiff's CEO.” in Africa”; the failure to remove the videos “will result defendants cited in legal proceedings in [the] appropriate — Ze Habesha and Alemayehu Degfu's case law in which jurisdiction to accomplish these memorandum in support of their motion to dismiss courts have found objectives and to hold you responsible that corporations for all damages.” On April 22, 2020, and especially counsel for the airline sent YouTube a intentionally transmitted the COVID-19 heavily-regulated corporations are public request to have the videos removed and virus into Africa and laid off employees figures for purposes of actual malice, further threatened legal action against because of the pandemic; accused including Nw. Airlines, Inc. v. Astraea the website. The same day, legal counsel the airline and its management of Aviation Servs., Inc., 111 F.3d 1386, for Degfu and Ze Habesha also wrote corruption, misconduct, and ineptitude, 1393 (8th Cir. 1997). Although Ethiopian to YouTube asking the company to such as purchasing defective planes, Airlines is also “an instrumentality deny the airline’s request. “Ze Habesha attempting to steal Ethiopian currency, of the Federal Democratic Republic is a leading news organization with [a] and deleting the black box of a plane that of Ethiopia,” the defendants did not reputation for integrity and providing crashed; and asserted that the airline’s assert that the governmental nature of credible information focused on chief executive officer improperly the airline required the actual malice Ethiopian politics and civic affairs. The enriched himself, made business standard to apply. organization stands by its reporting decisions for personal reasons, and The defendants further alleged that and the information contained in mistreated employees. the airline did not plausibly plead actual the above two reports are based on More generally, the lawsuit alleged malice. “Thus, if Plaintiff’s lawsuit publicly available reports and sources that the “[d]efendants failed to exercise against Defendants is to move forward, with personal knowledge. Ze Habesha due care in making, publishing, and it must plead facts sufficient to give disputes the assertion that it contains distributing” the statements and did so rise to a reasonable inference that information that is false or defamatory with actual malice — that is, that the Defendants were aware of their video per se as alleged,” a lawyer for the defendants published the statements reports’ probable falsity when they defendants wrote to YouTube. The knowing they were false or did so published those video reports in April letter continued: “Ze Habesha has “with reckless disregard for the truth.” 2020. Nothing in the Complaint comes extended an open invitation to Ethiopian The complaint further alleged that the even close to meeting this standard. Airlines through its attorney to provide statements were “defamatory per se,” Rather, the Complaint merely alleges that ‘any information that contradicts, although the complaint did not elaborate Defendants ‘published and distributed explains, or puts in context any of the on this claim. The complaint sought these false and defamatory statements information contained in the reports compensatory damages in excess of $25 with knowledge that the statements were you found objectionable.’ Ze Habesha million, claiming that the statements false, or with a reckless disregard for the has expressed its willingness to report injured Ethiopian Airlines’ “business and truth,’” the defendants’ memorandum any information or rebuttal provided by business reputation,” including sales read. Ethiopian Airlines.” YouTube removed and revenue. The complaint is available Third, the defendants raised various one of the videos, but two still remained online at: https://z.umn.edu/6ikw. additional arguments that many of available as the Bulletin went to press. On Aug. 18, 2020, the defendants filed the challenged statements could not Copies of the letters are available online a motion to dismiss the complaint. In a be actionable: the statements did not at: https://z.umn.edu/6ivb. supporting memorandum, the defendants identify the plaintiff, were true, were made multiple arguments for dismissal. Libel, continued on page 44 43 Libel, continued from page 43 150 N.W.2d 27, 28-30 (Minn. 1967). In special damages” because ticket sales Soderberg, the Court “considered a “dramatically decreased causing a based on government records, “simply mimeograph circular’s purpose, the substantial loss of revenues.” The repeat[ed] accusations already reported topics covered in the articles, and the amended complaint is available online at: by other reputable news organizations,” circular’s regular distribution in its https://z.umn.edu/6iky. and were opinion or hyperbole. The determination that the publication was Also on September 8, the airline defendants further argued that the airline covered by the statute.” The defendants filed a memorandum of law opposing failed to provide any basis for the alleged argued that those same factors were dismissal. The memorandum argued $25 million in compensatory damages. present here: “Ze Habesha publishes that the airline’s complaint as amended Notably, the defendants also argued and distributes 10,000 copies of a print included facts sufficient to infer actual that the airline failed to demand a newspaper on a periodic basis and malice, that the alleged defamatory retraction of the third video and did not has done so since December 2008. Its statements identified the airline, and properly plead special damages, which stated purpose is to ‘provide balanced that the amended complaint alleged the defendants said should preclude the news, perspectives, and issues across special damages. In response to the airline from recovering damages from the political spectrum to the Ethiopian defendants’ arguments about the any of the challenged statements in the community.’ The topics discussed Minnesota libel retraction statute, the third video. The defendants invoked in the [c]hallenged [s]tatements — airline argued that the statute covers Minnesota’s libel retraction statute, Ethiopian Airlines’ business operations only “a libel in a newspaper” and did Minn. Stat. § 548.06, which states: “In an and treatment of employees during not apply in this case because the action for damages for the publication of the pandemic, as well as possible alleged defamatory statements were a libel in a newspaper, the plaintiff shall corruption among top officials at the spoken slander in YouTube videos. “The recover no more than special damages, company — are clearly ‘newsworthy statute could not be applied to slanders unless a retraction be demanded and and topical.’” The defendants further published on YouTube because it would refused as hereinafter provided. The argued that because Degfu operates the be impossible to comply with the plaintiff shall serve upon the publisher news outlet from his home in Minnesota, Retraction requirements,” the plaintiff’s at the principal place of publication, "[i]t would be impossible for Ze Habesha memorandum read, referring to the a notice, specifying the statements to timely deliver all of its video reports to statute’s publication rules for retractions, claimed to be libelous, and requesting that global audience on actual newsprint. such as the page, font size, timeframe that the same be withdrawn. If a So, like most newspapers and other of the retraction statement. Therefore, retraction thereof be not published on media outlets today, Ze Habesha also the plaintiff argued, it was not required the same page and in the same type and publishes articles and videos online.” to plead or prove special damages. the statement headed in 18-point type The online nature of the content does The plaintiff also argued the court or larger ‘RETRACTION,’ as were the not preclude application of the retraction in Soderberg relied on a definition of statements complained of, in a regular statute, the defendants argued, citing “newspaper” that was repealed in 1984. issue thereof published within one week Adams v. Schiffer, No. 27-cv-16-10257 Minn. Stat. §§ 331.01-331.08. Repealed after such service, the plaintiff may (Minn. Dist. Ct. Henn. Cty., Dec. 8, 2016), by Laws 1984, c. 543, § 69. The plaintiff’s allege such notice, demand, and failure in which a court applied the retraction memorandum of law opposing dismissal to retract in the complaint and recover statute to material published on the is available online at: https://z.umn. both special and general damages, if the Minneapolis Star Tribune’s website. The edu/6ikz. cause of action be maintained. If such defendants’ memorandum in support of On September 9, Tostrud denied the retraction be so published, the plaintiff the motion to dismiss is available online defendants’ motion to dismiss because may still recover general damages, at: https://z.umn.edu/6ikx. the airline had filed the amended unless the defendant shall show that the On Sept. 8, 2020, the airline filed complaint, which Tostrud said rendered libelous publication was made in good an amended complaint. Among the the motion to dismiss moot. The faith and under a mistake as to the facts. major changes, the amended complaint Court left open an opportunity for the If the plaintiff was a candidate for office argued that many of the claims made defendants to “file a motion regarding at the time of the libelous publication, by the defendants came from a fugitive the amended complaint.” Tostrud’s order no retraction shall be available unless accused of embezzling from Ethiopian is available online at: https://z.umn. published on the same page and in the Airlines who was biased and “motivated edu/6il0. same type and the statement headed in to cause harm” to the airline. The On October 19, a lawyer for the 18-point type or larger ‘RETRACTION,’ amended complaint also alleged the airline notified the Court by letter that as were the statements complained of, in defendants did not “attempt to test the parties had “reached a tentative a regular issue thereof published within the credibility” of this source and settlement agreement,” and that one week after such service and in a “purposefully ignored discovering the pleadings to close the case would likely conspicuous place on the editorial page, truth by failing to interview informed be filed within 60 days. As theBulletin nor if the libel was published within sources,” including the airline, and went to press, the parties had not filed one week next before the election. failing to examine “relevant documents.” a stipulation for dismissal with the This section shall not apply to any libel The amended complaint further Court. The letter notifying the Court of imputing unchastity.” alleged that the challenged statements a tentative settlement is available online Defendants argued that the retraction “were so inherently improbable that at: https://z.umn.edu/6il1. statute applied because Ze Habesha a reasonable person would have met the definition of “newspaper” in the known they were false.” The amended — Jonathan Anderson statute as construed by the Minnesota complaint also asserted that it “sustained Silha Bulletin Editor Supreme Court in Soderberg v. Halver, 44 Courts Rule on Defamation Lawsuits Against The New York Times, Fox News, President Donald Trump n the second half of 2020, lawsuit against The New York Times. in the Fall 2017 issue of the Silha courts issued rulings in several Palin v. The New York Times Company, Bulletin.) high-profile libel lawsuits: Sarah 264 F.Supp.3d 527 (S.D.N.Y. 2017). On Aug. 6, 2019, the U.S. Court of Palin’s lawsuit against The New Rakoff dismissed motions for summary Appeals for the Second Circuit revived York Times, Karen McDougal’s judgment from both Palin and the Times, Palin’s lawsuit, finding that Palin had Ilawsuit against Fox News, and E. Jean but still found that at this point in the plausibly alleged a defamation claim Carroll’s lawsuit against President litigation, when drawing inferences in and that the case should proceed to Donald Trump. favor of Palin, a jury could conclude that the discovery phase, paving the way On Aug. 28, the Times acted with actual malice. A for depositions and other collection of 2020, Judge Jed copy of the ruling is available online at: evidence. The Second Circuit said that DEFAMATION S. Rakoff of the https://z.umn.edu/6ih8. although Palin had made “sufficient U.S. District Court The lawsuit stems from a June 14, allegations of actual malice,” the for the Southern District of New York 2017 editorial the Times published that ruling should not “be construed to found that a libel lawsuit filed by former alleged a 2010 map issued by Palin’s cast doubt on the First Amendment’s Vice Presidential candidate Sarah Palin political action committee, SarahPAC, crucial constitutional protections.” against The New York Times could helped inspire the 2011 mass shooting (For more information on the Second proceed to a jury trial. Although Rakoff by Jared Lee Loughner in Tucson, Ariz., Circuit’s ruling, see Second Circuit denied motions for summary judgment that killed six people and severely Revives Lawsuit Brought by Sarah from both Palin and the Times, Rakoff wounded then-Congresswoman Gabrielle Palin Against The New York Times held that a jury could conclude that Giffords. The editorial asserted that in “Minnesota Supreme Court, Sixth the Times acted with actual malice in the map “put Ms. Giffords and 19 other Circuit, and Eastern District of Kentucky publishing an editorial that Palin has Democrats under stylized cross hairs.” Rule in Notable Defamation Cases” in the alleged was false and defamatory. The newspaper printed the editorial after Summer 2019 issue of the Silha Bulletin.) On Sept. 24, 2020, Judge Mary Kay the June 14, 2017 mass shooting in which In support of its petition for Vyskocil of the U.S. District Court for James Hodgkinson, a left-wing activist, rehearing, the Times argued that the the Southern District of New York opened fire on a baseball practice for panel misunderstood “two bedrock dismissed a lawsuit brought by former Republican members of Congress in First Amendment protections.” First, Playboy model Karen McDougal against Alexandria, Va. the Times said that the panel applied Fox News. McDougal alleged that Fox The Times issued a correction within the wrong standard for what constitutes News host Tucker Carlson defamed a day of publication, clarifying that there a plausible allegation of actual malice. her when he accused her of “extorting was no established link between Palin The panel, according to the Times, now-President Donald J. Trump out of and the 2011 shooting. Additionally, the had relied on an improper definition approximately $150,000 in exchange for revised editorial clarified that Palin’s map of “recklessness” that was rooted in her silence about an alleged affair” she had not printed the faces of Gifford and tort law and characterized as political had with Trump. Vyskocil concluded that the other Democrats under cross hairs. animus. The Times contended that the Carlson’s statements were rhetorical Instead, the map “showed the targeted U.S. Supreme Court and the Second hyperbole and that the context of his electoral districts of Ms. Giffords and 19 Circuit had both rejected such definitions show made clear he was not asserting other Democrats under stylized cross in the context of defamation allegations, actual facts. hairs.” with the former holding that it is “legally On Oct. 27, 2020, Judge Lewis On Aug. 29, 2017, Rakoff dismissed irrelevant” and the latter ruling that the Kaplan of the U.S. District Court for the Palin’s lawsuit, concluding that she had definition insufficiently proved actual Southern District of New York ruled that failed to show that the Times published malice. The Times argued instead that the United States government may not any inaccurate statements with actual demonstrating actual malice must focus be substituted as a defendant for Trump malice. Rakoff held that because Palin solely on a speaker’s state of mind and, in a libel lawsuit brought by journalist was a public figure, she had the burden at the very least, requires a plaintiff to E. Jean Carroll. Had Kaplan allowed the of establishing that the Times acted with show that the speaker published the substitution, Carroll’s lawsuit might have “actual malice,” a standard established allegedly defamatory material with a been foreclosed because of sovereign by the U.S. Supreme Court in New York “high degree of awareness” that it is immunity. The Justice Department has Times v. Sullivan that public officials probably false. appealed Kaplan’s ruling to the U.S. have to show that news organizations The Times’ second argument was Court of Appeals for the Second Circuit. knowingly published false information that the wrong standard was applied or acted with reckless disregard for the for evaluating when statements are Jury Trial Ordered in Sarah Palin’s truth. 376 U.S. 254 (1964). (For more protected opinion. The Second Circuit’s Lawsuit Against The New York Times information on the background of the ruling, the Times contended, was an On Aug. 28, 2020, Judge Jed S. Rakoff case and Rakoff’s ruling, see District “unprecedented reliance on an author’s of the U.S. District Court for the Court Judge Dismisses Sarah Palin’s alleged political views and resulting Southern District of New York ruled Lawsuit Against The New York Times ill will as the predicate for a finding of that former Vice Presidential candidate in “News Organizations and Journalists Sarah Palin can proceed with her libel Face High-Profile Defamation Lawsuits” Defamation, continued on page 46 45 Defamation, continued from page 45 that Palin’s suit was not sufficiently guarantee the truth of all the inferences distinguishable from Sullivan not to a reader might reasonably draw from actual malice.” The Second Circuit panel apply it. “[P]laintiff’s argument is that a publication would undermine the held that Palin only needed to show that the actual malice rule, which was first uninhibited, open discussion of matters a “reasonable reader” would see the articulated more than half a century ago of public concern.” Saenz v. Playboy statements at issue as factual, but the in the days before the Internet and social Enterprises, Inc., 841 F.2d 1309, 1318 Times argued that the Supreme Court media, has run its course and should no (7th Cir. 1988). and the Second Circuit have previously longer govern our contemporary media Palin argued these authorities were ruled that a more demanding standard is landscape. Binding precedent does not, inapposite because they were limited to needed: the statement must be “provably however, come with an expiration date,” claims of libel by implication, whereas false.” Rakoff wrote. “To the extent plaintiff in this case, the statements in the Times A coalition of news outlets and believes the actual malice requirement were allegedly “explicit and facially journalistic organizations filed an ought to be abolished, she could make defamatory” and there was “‘substantial amici curiae brief supporting the that argument to the appropriate evidence’ showing what the speaker Times’ petition for en banc review. The court — the Supreme Court. Until meant and intended to say.” However, brief argued that the panel’s decision then, public figures, like plaintiff, must Rakoff disagreed. “The purpose of the contradicted the central holding of establish actual malice before collecting awareness element is to ensure that Sullivan. The brief further argued that damages for defamation. Plaintiff’s liability is not imposed upon a defendant the definition of “reckless disregard” motion for partial summary judgment is who acted without fault. This must the Court used in Sullivan was therefore denied.” hold true regardless of whether the different from a dictionary definition of Rakoff also rejected the Times’s defendant’s statement is directly or recklessness. position that “no reasonable jury could indirectly libelous,” the Court wrote, The brief cited several Supreme Court find that the statements at issue were citing Masson v. New Yorker Magazine, rulings, including Garrison v. Louisiana, published with actual malice.” In making Inc., 832 F. Supp. 1350, 1361-63 (N.D. Cal. 379 U.S. 64 (1964), in which the Court this determination, the Court examined 1993), aff’d on other grounds, 85 F.3d held that the standard required a “high each of the newspaper’s arguments, the 1394 (9th Cir. 1996). Palin also asserted degree of awareness of . . . probable first of which asserted that Palin can’t that the Times had already argued, falsity.” The brief also cited Harte-Hanks prove the newspaper’s editorial page and the Second Circuit had previously Communications, Inc. v. Connaughton, editor, James Bennet, was aware the rejected, an awareness requirement, 491 U.S. 657 (1989), in which the Court statements had a defamatory meaning. but Rakoff wrote that neither he nor found that “reckless disregard” does Rakoff wrote that the key legal question the Second Circuit had “squarely not mean “highly unreasonable conduct was “whether the First Amendment addressed” or resolved the issue of constituting an extreme departure requires that plaintiff prove that Bennet whether Palin “must establish actual from the standards of investigation ‘was aware of, or recklessly blinded malice with respect to meaning as well and reporting ordinarily adhere to by himself to, the defamatory import of as falsity.” Thus, Rakoff wrote, “[f]or the responsible publishers.” The panel’s his words.’” Rakoff found that other above-discussed reasons, the Court now decision, the brief contended, “is at courts have adopted an awareness holds that she must.” such variance with Sullivan itself that, requirement on plaintiffs to “show that a The Court then discussed whether if followed, it could lead to significant jury could reasonably find by clear and Palin could conceivably prove actual limitations of speech about public figures convincing evidence that [a defendant] malice about the statement’s meaning, that has long been protected by the First intended to convey the defamatory as distinguished from whether she must Amendment.” impression.” Dodds v. American Broad. prove it. “Where a plaintiff’s defamation On Nov. 7, 2019, several media Co., 145 F.3d 1053, 1064 (9th Cir. 1998). case depends on a statement that is outlets reported that the Second Circuit Such a requirement is premised on the capable of multiple meanings — one had denied a petition by the Times for notion that “defendants should not be defamatory, the other innocuous — the a panel rehearing or a rehearing en liable ‘for what was not intended to be plaintiff must prove that the defendant banc. The short decision read in part, said;’” otherwise the First Amendment acted with actual malice not only with “The panel that determined the appeal protections established by Sullivan respect to the statement's falsity but has considered the request for panel would be “eviscerated.” Newton v. Nat’l also to its meaning,” Rakoff wrote. The rehearing, and the active members of the Broad. Co., 930 F.2d 662, 681 (9th Cir. court cited Saenz for the proposition Court have considered the request for 1990). The Court looked to the “values that “evidence of defamatory meaning rehearing.. . . [T]he petition is denied.” underlying Sullivan” and echoed the and recklessness regarding potential A copy of the Second Circuit’s order California Supreme Court in Good falsity does not alone establish the is available online at: https://z.umn. Government Group of Seal Beach, Inc. defendant's intent.” Instead, Rakoff edu/6ikt. v. Sup. Court, 22 Cal.3d 672 (1978), said, the plaintiff must show that the On Aug. 28, 2020, Rakoff denied which “explained that failure to impose defendant “either deliberately cast its summary judgment motions from both an awareness requirement ‘would statements in an equivocal fashion in the Palin and the Times. Rakoff rejected create precisely the chilling effect on hope of insinuating a false import to the Palin’s arguments that Sullivan should speech which the New York Times rule reader or that it knew and acted with be overruled or, alternatively, that the was designed to avoid.’” To support reckless disregard of whether its words actual malice standard should not this proposition, the Court also cited would be interpreted by the average apply. Rakoff wrote that he was bound a decision from the Seventh Circuit, reader as a false statement.” Solano v. by precedent set in Sullivan, and which held that “requiring a publisher to Playgirl, Inc., 292 F.3d 1078, 1084 (9th

46 Cir. 2002). Rakoff noted that Bennet material. Fourth, the Court said that the shooting; Bennet has said he simply had sworn to the Court multiple times corrections made after publication of the had not clicked on the link. The Court that he did not intend to suggest there editorial “stand as further circumstantial further noted that a researcher had sent was a link between Palin’s map and the evidence that Bennet was aware that Bennet an earlier Times editorial that attack on Giffords. Bennet told the Court the Editorial carried the defamatory quoted former President Barack Obama that he had not realized readers would meaning.” The correction stated, in “saying Loughner’s shooting cannot be understand the editorial as “suggesting relevant part: “An earlier version of this blamed on ‘a simple lack of civility.’” that Loughner himself was directly editorial incorrectly stated that a link The Court recognized that the Times has inspired or motivated by the [Map] to existed between political incitement compelling arguments in defense, but engage in the shooting,” and that he had and the 2011 shooting of Representative that at this stage in litigation, Palin has not intended for readers to make such an Gabby Giffords. In fact, no such link made a satisfactory showing allowing inference. Rather, Bennet argued that his was established.” The Court said the the suit to proceed. “Once again,” the intention was to “advance the idea that wording of the correction could be seen Court wrote, “there is considerable overheated political rhetoric can create as consistent with actual malice: “If, as evidence that defendants mount to a climate inducive to violent acts, and Bennet now contends, it was all simply support the notion that Bennet simply [he] mentioned the [Map] as an example a misunderstanding, the result of a poor drew the innocent inference that a of the kind of ‘political incitement’ that choice of words, it is reasonable to political circular showing crosshairs over contributes to this atmosphere.” Bennet conclude that the ultimate correction a Congressperson’s district might well further pointed to an email he wrote would have reflected as much and invite an increased climate of violence shortly after publication of the editorial simply clarified the Editorial’s intended with respect to her. But, taken in the light that he argues is evidence he did not meaning,” the Court wrote. “Ultimately, most favorable to plaintiff, the evidence intend for the piece to “convey the idea while much of plaintiff’s evidence is shows Bennet came up with an angle for that the Map directly caused Loughner’s circumstantial, as is often the case when the Editorial, ignored the articles brought shooting, which is the heart of what actual malice is at issue, and while there to his attention that were inconsistent [Palin] says was libelous.” is arguably contrary evidence as well, with his angle, disregarded the results However, despite the Times’s the Court finds that, taking the evidence [of the] research that he commissioned, arguments, the Court found that when in light most favorable to plaintiff, she and ultimately made the point he set considering the evidence in the light has sufficiently pointed to enough triable out to make in reckless disregard of the most favorable to Palin — who was issues of fact that would enable a jury truth.” Therefore, the Court wrote, “there the nonmoving party in response to to find by clear and convincing evidence is sufficient evidence to allow a rational the newspaper’s motion for summary that Bennet knew, or was reckless not to finder of fact to find actual malice by judgment — a rational jury could know, that his words could convey the clear and convincing evidence.” A trial conclude “that Bennet either knew, or meaning in the minds of the readers that in the case is scheduled to begin Feb. 1, was reckless not to know, that his words plaintiff asserts was libelous, to wit, that 2021. would carry the defamatory meaning.” she bore direct responsibility for inciting The Court said four pieces of evidence the Loughner shooting.” Judge Dismisses Lawsuit Against support such a conclusion. First, the text Rakoff then addressed the Fox News, Finds Show Was Not of the editorial expressly referred to the newspaper’s second argument: that ‘Stating Actual Facts’ map as “a ‘direct’ form of ‘incitement’ to even if Bennet knew the statements had On Sept. 24, 2020, Judge Mary Kay Loughner’s shooting.” Bennet’s claim that a defamatory meaning, Palin cannot Vyskocil of the U.S. District Court for he “did not mean to suggest a direct link prove Bennet knew the statements the Southern District of New York between the Map and the shooting [] may were false. However, the Court rejected issued an opinion and order granting be ‘so inherently improbable that only this argument and found that Palin a motion to dismiss from Fox News a reckless man would have’ chosen the had enough evidentiary support “to Network, LLC in a lawsuit brought by words he chose to convey the meaning preclude a grant of summary judgment” former Playboy model Karen McDougal. he (allegedly) sought to convey.” Second, in favor of the Times. The Court wrote Karen McDougal v. Fox News Network, Bennet admitted to being aware that that a juror could conclude that Bennet LLC, 19-CV-11161-MKV (S.D.N.Y Sept he knew the term “incitement” might knew there was no link between the 24, 2020). McDougal alleged that Fox be interpreted as a “call to violence.” map and the shooting but wrote it News host Tucker Carlson defamed This is further evidence of actual malice anyway to conform to a narrative he her when he accused her of “extorting because “knowledge ‘that the average had already crafted. In support of now-President Donald J. Trump out of reader . . . would be familiar with both’ this, the Court pointed to evidence approximately $150,000 in exchange the defamatory and nondefamatory that Bennet had asked a subordinate for her silence about an alleged affair meanings of the word at issue counts to research whether there was a link between Ms. McDougal and President in favor of finding actual malice,” the between the map and the shooting, Trump.” McDougal alleged that Carlson Court wrote, citing Sprague v. American and that the subordinate determined defamed her in at least two statements Bar Ass’n, No. Civ. A 01-382, 2003 WL there was no such link. The Court also on his program, “Tucker Carlson 22110574 (E.D. Penn July 21, 2003). found that a juror could conclude that Tonight,” on December 10, 2018. Carlson Third, the Court wrote that a jury could Bennet purposefully avoided the truth said McDougal “approached Donald find Bennet’s edits to the initial version by failing to click on a hyperlink in the Trump and threatened to ruin his career of the article to be further evidence of editorial linking to an ABC News story and humiliate his family if he doesn’t give actual malice because the initial version that contradicted the editorial’s claim them money,” and also suggested that did not contain the allegedly defamatory of a connection between the map and Defamation, continued on page 48 47 Defamation, continued from page 47 were in response to contemporaneous “Fox News has convincingly argued suggestions that President Trump that Mr. Carlson was motivated to McDougal’s actions were “a classic case could be impeached due to campaign speak about a timely political cause of extortion.” finance violations stemming from the and that, in this context, it is clear that Fox News moved to dismiss the payments to Ms. McDougal, an issue his charge of “extortion” should not lawsuit. The cable channel argued that that attracted significant public and be interpreted as an accusation of an Carlson’s statements “are constitutionally political concern and led to sustained actual crime. Plaintiff’s interpretation protected opinion commentary on debate across media platforms.. . . When of Mr. Carlson’s accusations is strained matters of public importance and are the statements are read in context, it is and, the Court finds, not reasonable not reasonably understood as being apparent that Mr. Carlson is remarking when the entire segment is viewed in factual.” Fox News cited “a litany of on hypocrisy he perceives, i.e., that [the context. It is true that Mr. Carlson added cases which hold that accusing a person President’s personal lawyer, Michael] color to his unsubstantiated rhetorical of ‘extortion’ or ‘blackmail’ simply is Cohen could be prosecuted, and the claim of extortion when he narrated ‘rhetorical hyperbole,’ incapable of that Ms. McDougal being defamatory.” McDougal countered ‘approached’ that the accusation of “extortion” The "general tenor” of Tucker Carlson's Mr. Trump and along with a description of her alleged program on Fox News "should inform threatened his actions “constitute provably false factual a viewer that he is not 'stating actual career and family. assertions that [she] committed a crime.” But this overheated First, Vyskocil’s analysis began by facts.'" rhetoric is precisely discussing Milkovich v. Lorain Journal the kind of pitched Co., 497 U.S. 1 (1990), in which the — Judge Mary Kay Vyskocil, commentary that U.S. Supreme Court “emphasized that U.S. District Court for the one expects when statements, whether presented as fact Southern District of New York tuning in to talk or opinion, may be defamatory only shows like Tucker where they state or imply a provably President impeached, for actions falling Carlson Tonight, with pundits debating false assertion of fact.” Vyskocil wrote short of the conduct Ms. McDougal the latest political controversies.” that “simply invoking a criminal act purportedly engaged in during the Next, the Court said McDougal was or accusing a person of a crime does president’s campaign.” Therefore, the too focused on specific words Carlson not transform an otherwise nonfactual Court reasoned, Carlson’s statements used that were taken out of context. statement into a factual assertion if the were on matters of public concern and Although Carlson did remind viewers to accusation, in light of the surrounding thus deserving of the highest degree of “remember the facts of the story,” which context, is ‘rhetorical hyperbole’ or protection. he said were “undisputed” — that two where the record is ‘devoid of evidence’ Vyskocil also cited various decisions women allegedly threatened Trump if that anyone thought a crime was actually from other courts that have similarly he did not pay them — the Court noted committed.” The Court then noted rendered nonactionable “accusations that Carlson had previously said he was that accusing someone of extortion of extortion or blackmail, especially as “stipulating” to the assertions “for the as Carlson did is “often construed as related to political issues.” Those cases sake of argument.” Thus, the Court found merely rhetorical hyperbole when were Greenbelt Coop. Pub. Ass’n v. that “Carlson’s statements viewed in [the accusation is] not accompanied Bressler, 398 U.S. 6 (1970); Remick v. context are not factual representations by additional specifics of the actions Manfredy, 238 F.3d 248 (3d Cir. 2001); and, therefore, cannot give rise to a claim purportedly constituting the crime.” Brodkorb v. Minnesota, No. 12-cv-1958 for defamation.” Vyskocil further wrote that “[s]uch (SRN) (AJB), 2013 WL 588231; and The Court then found that even if the accusations of crimes also are unlikely Automated Transactions, LLC v. Am. statements were actionable, McDougal’s to be defamatory when, as here, they Bankers Ass’n, 216 A.3d 71 (N.H. 2019). complaint would have to be dismissed are made in connection with debates In light of that precedent and in the because it did not “plausibly plead actual on a matter of public or political context of Carlson’s show, the Court malice.” McDougal argued that she had importance” — a form of political found that Carlson’s claim of “extortion” sufficiently pleaded actual malice by hyperbole that is “normally associated was “nonactionable hyperbole.” The alleging that Carlson was “personally and with politics and public discourse in Court also recognized Carlson’s stated politically biased in favor of President the United States.” Such statements, objective was to “challenge[] political Trump, and, thus, would ignore the truth the Court said, constitute rhetorical correctness and media bias.” And, to publish the story supporting him.” hyperbole, especially “in the context of the Court said, the “general tenor” of McDougal specifically invokedPalin commentary talk shows like the one at Carlson’s program “should inform a v. N.Y. Times Co., 940 F.3d 804 (2d Cir. issue here, which often use ‘increasingly viewer that he is not ‘stating actual 2019), in which the U.S. Court of Appeals barbed’ language to address issues in the facts’ about the topics he discusses and for the Second Circuit held that former news.” is instead engaging in ‘exaggeration’ Vice Presidential candidate Sarah Palin Specifically, the Court noted and ‘non-literal commentary.’” Indeed, had adequately alleged actual malice in that the context surrounding the the Court wrote: “[G]iven Mr. Carlson’s her suit against The New York Times statements “made it abundantly reputation, any reasonable viewer after it published an unsigned editorial clear” that Carlson was not asserting ‘arrive[s] with an appropriate amount alleging that a map distributed by Palin’s McDougal had committed a crime. of skepticism’ about the statements he political action committee incited a 2011 Therefore, his statements could not be makes.” The Court therefore concluded: mass shooting that left six people dead actionable. “Mr. Carlson’s statements 48 and then-Congresswoman Gabrielle is not otherwise required to seek out 951 F.3d 952 (8th Cir. 2020); Oakley v. Giffords severely wounded. “In sum,” contrary evidence,” the Court wrote. Dolan, No. 17-CV-6903, 2020 WL 818920 Vyskocil wrote, “the Second Circuit “Indeed, in New York Times v. Sullivan, (S.D.N.Y. Feb. 19, 2020). Therefore, found that actual malice adequately the Supreme Court rejected a claim Vyskocil wrote, because McDougal was alleged where (1) the speaker identical to the one Ms. McDougal makes had not identified specific facts about of defamatory statements possessed here, that because the New York Times Carlson’s alleged biases and failed to an editorial and political advocacy had previously reported on an issue otherwise “provide a permissible theory background sufficient to suggest he while stating the facts differently, the supporting a finding of actual malice, the published the statements with deliberate publication had demonstrated actual Court cannot find a plausible inference or reckless disregard for their truth, malice.. . . In this case, simply because that actual malice exists.” (2) the drafting and editorial process Fox News had reported on the Cohen In conclusion, Vyskocil wrote that of the statements in question permitted case (and the payments to McDougal) although Carlson accused McDougal an inference of deliberate or reckless without reference to extortion does not of extortion, McDougal did not offer falsification, and (3) the newspaper’s mean that Mr. Carlson acted with actual a “plausible interpretation” that the subsequent correction to the allegedly malice when he linked the concepts. accusation was a statement of fact when defamatory article did not undermine Mr. Carlson did not have any duty to read in context. Rather, Vyskocil said, the plausibility of that inference.” (For seek out these earlier publications, Carlson’s accusation was “rhetorical more information on the background and it is instead Plaintiff’s obligations hyperbole and opinion commentary of the Palin case, see District Court to ‘bring home’ an existing connection intended to frame a political debate.” Judge Dismisses Sarah Palin’s Lawsuit between Mr. Carlson and these earlier Further, Vyskocil wrote, McDougal as a Against The New York Times in “News publications.” New York Times v. public figure failed to “raise a plausible Organizations and Journalists Face High- Sullivan, 376 U.S. 254 (1964). inference of actual malice” because she Profile Defamation Lawsuits” in the Fall Vyskocil also said that McDougal offered “only conclusory allegations 2017 issue of the Silha Bulletin; Second did not sufficiently provide evidence about Mr. Carlson’s alleged biases and Circuit Revives Lawsuit Brought by of political or personal bias to allege otherwise pursue[d] theories that [were] Sarah Palin Against The New York actual malice. While the Second Circuit pre-empted by long-standing precedent.” Times in “Minnesota Supreme Court, allowed a “bias” theory premised on Vyskocil thus granted Fox News’s motion Sixth Circuit, and Eastern District of factual assertions of bias in the context to dismiss McDougal’s complaint. Kentucky Rule in Notable Defamation that the speaker had knowledge of In response to the ruling, McDougal Cases” in the Summer 2019 issue; Second falsity, Vyskocil said that “McDougal’s told the Associated Press on September Circuit Denies Rehearing in Palin arguments rest only on speculative 24, “I believe reporting something you Defamation Lawsuit Against The New allegations of a personal friendship know is a lie as ‘news’ or ‘undisputed York Times in “News Organizations and between Mr. Carlson and President facts’ is the very definition of malicious.” Journalists Face High-Profile Defamation Trump and a purported political Fox News told The New York Times on Cases Brought by Public Officials, agreement/alignment between them.” September 24 in a written statement: Figures” in the Fall 2019 issue, and McDougal had cited 47 tweets in which “Karen McDougal’s lawsuit attempted Jury Trial Ordered in Sarah Palin’s Carlson had written positively about to silence spirited opinion commentary Lawsuit Against The New York Times President Trump, and further made a on matters of public concern. The court in “Courts Rule on Defamation Lawsuits “conclusory allegation that Mr. Carlson today held that the First Amendment Against The New York Times, Fox News, is driven to help the President politically plainly prohibits such efforts to stifle free President Donald Trump” on page 45 of and that defaming her was part of that speech.” this issue of the Silha Bulletin.) effort.” But Vyskocil said that was not The ruling comes after a $10 million However, Vyskocil rejected enough. “The Court is unaware of any libel lawsuit against MSNBC’s Rachel McDougal’s attempt to allege actual law — and Plaintiff has not provided Maddow was dismissed in May 2020. malice in the same manner as Palin. One any — that establishes any number The suit, filed by the owner of One key difference was that Fox News had of social media posts by someone America News Network (OAN), alleged not issued any corrections concerning else as indicative of a close personal that Maddow had defamed the news Carlson’s statements. “Thus,” the Court relationship sufficient to establish channel in a July 22, 2019 broadcast. At wrote, “any bad intent that could be actual malice. Instead, although the issue was Maddow’s statement that “the inferred in Palin from a decision to posts might indicate that the President most obsequiously pro-Trump right wing publish and (one day later) then to issue follows or even admires Mr. Carlson, news outlet in America really literally a correction cannot be analogized to this it is pure speculation to assume the is paid Russian propaganda.” The court case.” And the Court said McDougal’s reverse, and the tweets alone certainly found Maddow’s statement was not other allegations were “conclusory or do not establish any kind of personal an assertion of fact: “The context of speculative” and could not be used relationship. As a result, the Amended Maddow’s statement shows reasonable to “establish a plausible inference of Complaint alleges only ‘sheer political viewers would consider the contested actual malice.” McDougal suggested bias’ as a basis for inferring actual statement be opinion,” the court wrote. that Fox News had previously reported malice, which is not enough. This is Herring Networks, Inc., v. Rachel on the Cohen criminal prosecution and consistent with other post-Palin cases Maddow, et al., No. 19-cv-1713-BAS-AHG payments to McDougal without alleging that require specific factual allegations (S.D. Cal. May 22, 2020). extortion, but the Court observed that about the speaker’s bias and the reasons Carlson himself had not been involved a speaker has to lie.” Nelson Auto Center, in that previous reporting. “[A] speaker Inc. v. Multimedia Holdings Corp., Defamation, continued on page 50 49 Defamation, continued from page 49 Act (FTCA), the federal government 505 U.S. 788 (1992). Finally, Kaplan has “authorize[d] damages claims for said, construing “employee of the District Court Rejects Government negligence and certain other civil wrongs Government” to cover the President Bid to Replace Trump as Defendant committed by government employees “could ignite a significant expansion of in E. Jean Carroll Lawsuit within the scope of their employment.” federal tort exposure — without any On Oct. 27, 2020, Judge Lewis However, the FTCA specifically excepts evidence of a congressional intent to do Kaplan of the U.S. District Court for the libel and slander cases from the United so — by authorizing lawsuits that could Southern District of New York ruled States’s consent to be sued.” Thus, involve review of the president’s job that President Donald Trump may not Kaplan wrote, two legal questions must performance.” substitute the United States government be answered to determine whether Second, Kaplan held that even if as a defendant in a libel lawsuit the federal government can replace Trump was considered an “employee brought by journalist E. Jean Carroll. Trump as defendant: (1) Is Trump an of the Government,” the allegedly E. Jean Carroll v. Donald J. Trump, “employee of the Government” under defamatory statements would not be 20-CV-7311-LAK (S.D.N.Y Sept. 8, 2020). the FTCA? (2) If Trump is an “employee within the scope of his governmental After Carroll alleged that Trump sexually of the Government,” were his allegedly employment. That decision was based assaulted her, he asserted that she made defamatory statements within the scope on Kaplan’s analysis of five factors that up the story. Carroll then sued alleging of his governmental employment? Kaplan courts use to determine the nature of that Trump’s denial defamed her. Kaplan answered “no” as to both questions. an employer-employee relationship. held that the U.S. government could First, Kaplan found that Trump is Among the key considerations Kaplan not be substituted as a defendant in not an “employee of the Government” identified were (1) that “[n]o one, inside the lawsuit because Trump was not an for purposes of the FTCA for several or outside of the executive branch, has “employee of the government” and even reasons. Kaplan looked to the statutory ‘the power to control the [president’s] if he was an employee, the statements at text and found that the Presidency, as conduct’ — a factor Kaplan said was issue do not concern activity that would a constitutional office, is not covered “decisive” — and (2) “while commenting be in the scope of his employment. A under any statutory definition of on the operation of government is part copy of the decision is available online “employee of the Government.” 28 of the regular business of the United at: https://z.umn.edu/6ih6. U.S.C. § 2671. Kaplan also pointed to States, commenting on sexual assault The lawsuit arose after New York legislative history. The U.S. Supreme allegations unrelated to the operation of magazine on June 21, 2019 published Court ruled in 1982 that the President government is not.” an excerpt from a book Carroll wrote “is entitled to absolute immunity from In sum, Kaplan wrote, the federal in which she claimed that Trump had damages liability predicated on his government cannot be substituted as a sexually assaulted her in the 1990s at official acts.”Nixon v. Fitzgerald, defendant for Trump in Carroll’s lawsuit. a department store in New York City. 457 U.S. 731 (1982). Six years later, in “[T]he undisputed facts demonstrate Shortly after the allegation was made Westfall v. Erwin, 484 U.S. 292 (1988), that President Trump was not acting public, Trump refuted it, said Carroll the Supreme Court held that “federal in furtherance of any duties owed to had made up the story, and called her “a officials are not absolutely immune from any arguable employer when he made liar and stated that he never met her.” state-law tort liability for all actions the statements at issue. His comments On Nov. 4, 2019, Carroll sued Trump committed within the outer perimeter concerned an alleged sexual assault in his personal capacity in New York of their duties.” Kaplan wrote that the that took place several decades before state court alleging that he defamed her Supreme Court in Westfall “clearly was he took office, and the allegations have by calling her a liar in response to her not referring to the president.” In 1988, no relationship to the official business sexual assault claim. E. Jean Carroll Congress passed a statutory override of of the United States,” Kaplan wrote. v. Donald J. Trump, Sup. Ct. New the Supreme Court’s decision in Westfall. “To conclude otherwise would require York County, Sept. 8, 2019, Saunders, J. The legislation, called the Westfall Act, the Court to adopt a view that virtually index No. 160694/2019. On Sept. 8, 2020, “bars tort claims against government everything the president does is within the U.S. Department of Justice filed a employees acting within the scope the public interest by virtue of his office. notice of removal in the case, seeking of their employment,” and requires The government has provided no support to transfer the lawsuit to federal court that the Attorney General defend civil for that theory, and the Court rejects it as and replace Trump with the federal actions and proceedings brought against too expansive.” government as the defendant. The governmental employees. “There was On November 27, the Associated Justice Department asserted that Trump no need to extend the protections of the Press (AP) reported that the Justice was acting in his official capacity as Westfall Act to the president, whom the Department appealed Kaplan’s ruling. At President when he denied the sexual Supreme Court evidently recognized was the time the Silha Bulletin went to press, assault allegation. The import of such not a ‘federal employee,’ for the very the U.S. Court of Appeals for the Second a claim is that, if true, Carroll’s lawsuit good reason that the president already Circuit had not issued a decision. would almost assuredly fail because of had ‘absolute immunity from damages governmental immunity, according to the liability predicated on his official acts’ by New York Law Journal on October 27. — Jonathan Anderson virtue of Nixon v. Fitzgerald,” Kaplan Kaplan wrote that the United States Silha Bulletin Editor wrote. Furthermore, Kaplan said, the as a sovereign nation has sovereign Court is precluded from assuming immunity, meaning the U.S. cannot the President is covered under the be sued unless it consents to being FTCA “absent an express statement by sued. Under the Federal Tort Claims Congress.” Franklin v. Massachusetts,

50 Ninth Circuit Rules NSA Surveillance Program Violated FISA and Potentially the Fourth Amendment n Sept. 2, 2020, the U.S. known as telephony metadata, from Cal. 2013). In so doing, the Court Court of Appeals for the telecommunications providers.” (For established the “third-party doctrine,” Ninth Circuit held that more information on Snowden’s which was upheld in United States v. the National Security disclosures, see “Snowden Leaks Reveal Miller, 425 U.S. 435, (1976), in which Agency’s (NSA) warrantless Extensive National Security Agency the Court held that defendants had no Omass surveillance of American’s Monitoring of Telephone and Internet legitimate expectation of privacy in their telephone metadata violated the Foreign Communication” in the Summer 2013 bank records. Intelligence Surveillance Act (FISA) issue of the Silha Bulletin, “Snowden Berzon held that there were “strong and may have Leaks Continue to Reveal NSA reasons to doubt that Smith applies violated the Fourth Surveillance Programs, Drive U.S. and here.” She continued, “Advances in PRIVACY Amendment. International Protests and Reforms” in technology since 1979 have enabled United States the Fall 2013 issue, “NSA Surveillance the government to collect and analyze v. Moalin, 973 F.3d 977 (9th Cir. Practices Prompt Reforms and Legal information about its citizens on an 2020). However, the court upheld the Challenges Throughout All Government unprecedented scale.” Berzon cited convictions of the defendants in the Branches” in the Winter/Spring 2014 Carpenter v. United States, 138 S. Ct. case on charges of sending money to issue, “Fallout from NSA Surveillance 2206 (2018), in which the Supreme Somalia in support of a foreign terrorist Continues One Year After Snowden Court “[c]onfront[ed] these changes, organization. Revelations” in the Summer 2014 issue, and[,] recognizing that a ‘central aim’ The case arose between October “Government Surveillance Critics of the Fourth Amendment was ‘to place 2010 and June 2012 when the federal Target Broad Authority of Executive obstacles in the way of a too permeating government charged the defendants Order 12333” and “29th Annual Silha police surveillance[,]’ . . . declined — Basaaly Saeed Moalin, Mohamed Lecture Examines the Right to Access to ‘extend’ the third-party doctrine Mohamed Mohamud, Issa Doreh, and Government Information in the Wake of to information whose collection was Ahmed Nasir Taalil Mohamud — with National Security and Privacy Concerns” enabled by new technology,” namely conspiring to send $15,900 to Somalia in the Fall 2014 issue, “Two Years After historical cell site location information. in 2008 to support al-Shabaab, a foreign Snowden Revelations, National Security (For more information on Carpenter, terrorist organization. According to the Surveillance Issues Still Loom” in the see “U.S. Supreme Court Rules Law Ninth Circuit, “[s]hortly after filing the Summer 2015 issue, and “NSA Telephony Enforcement Must Obtain Warrant To initial indictment, the government filed Metadata Collection Program Remains Access Individuals’ Historical Cell Site notice that it intended to use or disclose Controversial Even After It Ends” in the Records” in the Summer 2018 issue of the in the proceedings “information obtained Fall 2015 issue.) Silha Bulletin.) or derived from electronic surveillance In June 2015, Congress passed the USA Berzon concluded that the conducted pursuant to the authority of FREEDOM Act, which “effectively ended” “distinctions between Smith and this [FISA].” the NSA’s bulk telephony metadata case are legion and most probably During the ensuing trial, the collection program and prohibited further constitutionally significant” and provided government’s primary evidence was a bulk collection of such records after Nov. several reasons why this was the case, series of recorded phone calls between 28, 2015. including that “the information recorded the defendants that was obtained Judge Marsha S. Berzon wrote in Smith was ‘limited’ and of a less through a wiretap of Moalin’s phone. the unanimous opinion for the Ninth ‘revealing nature’ than the telephony The government gained access to the Circuit. She first addressed Moalin’s metadata at issue here.” She added phone calls “after receiving a court order Fourth Amendment claim, namely that that the large amount of people whose under FISA Subchapter I, 50 U.S.C. “the metadata collection violated his telephony data were collected was also §§ 1801–1812.” In February 2013, the Fourth Amendment “right . . . to be problematic because it “enable[ed] the jury convicted defendants on all counts. secure . . . against unreasonable searches data to be aggregated and analyzed in In September 2013, the defendants filed and seizures.” According to Berzon, bulk.” a motion for a new trial, arguing that the U.S. District Court for the Southern Although Berzon concluded that the information obtained through the District of California held that the the “defendants’ Fourth Amendment interceptions conducted pursuant to present case was controlled by Smith v. argument has considerable force,” FISA “may have been ‘generated by illegal Maryland, 442 U.S. 735, 742–43 (1979), in the court “[did] not come to rest as to means’ — that is, that the government which the U.S. Supreme Court held that whether the discontinued metadata may have violated the Fourth Amendment the “government'’ use of a pen register program violated the Fourth Amendment or its statutory authority under FISA in to record the numbers the defendant because even if it did, suppression collecting information supporting the dialed from his home telephone did not would not be warranted on the facts of FISA warrants.” constitute a Fourth Amendment search, this case.” She reasoned that “[h]aving In the months following the trial, because individuals have no reasonable carefully reviewed the classified FISA former NSA contractor Edward Snowden expectation of privacy in information applications and all related classified revealed the existence of NSA data they voluntarily convey to the telephone information, we are convinced that collection programs, including “the company.” United States v. Moalin, under established Fourth Amendment bulk collection of phone records, No. 10cr4246 JM, 2013 WL 6079518 (S.D. Privacy, continued on page 52 51 Privacy, continued from page 51 belief that . . . the target of the electronic of each defendant. The full ruling is surveillance is a foreign power or an available online at: https://www.aclu. standards, the metadata collection, even agent of a foreign power.” org/sites/all/libraries/pdf.js/web/viewer. if unconstitutional, did not taint the Fourth, Berzon held that “assuming html?file=https%3A%2F%2Fwww.aclu. evidence introduced by the government without deciding that the government org%2Fsites%2Fdefault%2Ffiles%2Ffield_ at trial.” should have provided notice of the document%2F85-1._opinion_9.2.20. Second, Berzon turned to the metadata collection to defendants, the pdf#page=1&zoom=auto,-12,798. defendants’ argument that “the government’s failure to do so did not In a statement following the ruling, the metadata collection program violated prejudice defendants.” She wrote, in American Civil Liberties Union (ACLU) FISA Subchapter IV, under which the part, “At a minimum, then, the Fourth praised the decision. “Today’s ruling is FISA Court authorized it.” According Amendment requires notice to a criminal a victory for our privacy rights.. . . [I]t to Berzon, “Section 1861 of FISA defendant when the prosecution intends makes plain that the NSA’s bulk collection Subchapter IV authorizes the government to enter into evidence or otherwise use or of Americans’ phone records violated the to apply to the FISA Court for an ‘order disclose information obtained or derived Constitution.” requiring the production of any tangible from surveillance of that defendant Joshua L. Dratel, a lawyer for Moalin, things (including . . . records . . . ) conducted pursuant to the government’s said in a statement, “We’re disappointed for an investigation to obtain foreign foreign intelligence authorities.” in the result, especially since more intelligence information not concerning a In a Sept. 9, 2020 commentary for recent disclosures regarding misconduct United States person or to protect against Lawfare, Orin Kerr, a professor at regarding FISA has further revealed how international terrorism or clandestine the University of California, Berkeley the lack of transparency in the entire intelligence activities.’” She continued, School of Law, argued that the Ninth process compromises individual rights “At the time relevant to this case, the Circuit “appears to articulate a new of those charged with crimes as well statute required the government to Fourth Amendment notice requirement. as those never charged — including include in its application ‘a statement of It suggests that defendants charged those Americans whose telephone facts showing that there are reasonable with crimes must be notified about metadata was collected and retained.” grounds to believe that the tangible things surveillance practices that led to He added, “In this case, we believe that sought are relevant to an authorized evidence that may be used in their the lack of transparency was prejudicial investigation (other than a threat case.” Kerr explained that the Fourth to our ability to challenge the FISA assessment).’” Amendment “traditionally has only surveillance.” Berzon held that “the telephony one notice requirement. When the As the Bulletin went to press, Moalin’s metadata collection program exceeded government executes a search warrant, defense team was “evaluating the options the scope of Congress’s authorization the government has to give notice — even for further appeal,” according to the in section 1861 and therefore violated if delayed notice — that the warrant was ACLU and Politico. that section of FISA.” She cited the executed,” citing Dalia v. United States, Meanwhile, on Oct. 28, 2020, Reuters Second Circuit’s ruling in American Civil 441 U.S. 238, 247-48 (1979). reported that the NSA was “rebuffing Liberties Union v. Clapper, 785 F.3d 787, However, Kerr contended that the efforts by [Sen. Ron Wyden (D-Ore.)] 821 (2nd Cir. 2015), in which the court Ninth Circuit “imagines a different kind to determine whether it is continuing held that the text of section 1861 “cannot of notice requirement, though. Instead of to place so-called back doors into bear the weight the government asks us a notice requirement that a warrant was commercial technology products.” More to assign to it, and . . . does not authorize executed, flowing from the warrant itself, specifically, the back doors, according the telephone metadata program.” this is a notice requirement that appears to Reuters, “enable the NSA and other Third, Berzon held that because to be triggered only if and when criminal agencies to scan large amounts of Subchapter IV did not include a charges are filed providing notice that traffic without a warrant.” Following “suppression remedy,” there was no evidence about a person was collected the Snowden revelations, the NSA statutory basis to suppress Moalin’s using a surveillance practice that may developed new rules around such metadata. She further ruled that or may not be a search.” He added, “In practices. However, aides to Wyden told “[b]ecause the wiretap evidence was effect, it’s a notice to criminal defendants Reuters that the agency “has stonewalled not ‘unlawfully acquired,’ suppression to consider filing a motion to suppress to on providing even the gist of the new is not warranted.” She provided several challenge the investigation and vindicate guidelines.” reasons, including that the court any Fourth Amendment rights that may “Secret encryption back doors are a agreed with the government “that or may not have been at stake.. . . This threat to national security and the safety Moalin’s metadata ‘did not and was strikes me as a very different kind of of our families — it’s only a matter of not necessary to support the requisite constitutional notice requirement than time before foreign hackers or criminals probable cause showing’ for the [FISA] what courts have recognized before.” The exploit them in ways that undermine Subchapter I application in this case.” full commentary is available online at: American national security,” Wyden told Berzon explained that the government https://www.lawfareblog.com/did-ninth- Reuters. “The government shouldn’t had “obtained an order from the FISA circuit-create-new-fourth-amendment- have any role in planting secret back Court under Subchapter I authorizing a notice-requirement-surveillance- doors in encryption technology used by wiretap of Moalin’s phone” and that, in practices. Americans.” doing so, the government included other Berzon also addressed several evidence in the application, including “a evidentiary arguments by the defendants, — Scott Memmel statement of the facts and circumstances and ultimately upheld the convictions Postdoctoral Associate relied upon by the applicant to justify his

52 35th Annual Silha Lecture Addresses the Importance of Documentaries and the Need for U.S. Law to Protect Them n Oct. 19, 2020, Dale of George Floyd Killing,” on page 18 in-depth stories . . . leav[ing] many Cohen, the director and of this issue of the Silha Bulletin; storytellers . . . looking for new founder of the UCLA “Journalists Covering Fallout from channels of communication.” Documentary Film Legal George Floyd Death Take Legal Action; Cohen then considered the legal Clinic and Special Counsel Misinformation Underscores Lessons landscape around documentaries Oto FRONTLINE, the award-winning PBS from 2020 Silha Spring Ethics Forum” in the United States, asserting “the documentary series, contended during in the Summer 2020 issue, and “Special surprising fact that our legal system the 35th Annual Silha Lecture that Report: Journalists Face Arrests, does not treat doc filmmakers with “[d]ocumentaries Attacks, and Threats by Police Amidst the same constitutional deference as SILHA CENTER provide a brilliant Protests Over the Death of George we provide the journalists operating EVENTS platform for Floyd” in the Winter/Spring 2020 issue.) in other media.” He explained first filmmakers to tell Cohen also cited several that “[t]his isn’t a new phenomenon” us important stories and give voice to “powerful documentaries,” in which and that the U.S. Supreme Court first perspectives that are often overlooked. “documentary filmmakers get to considered motion pictures in Mutual Some of them are straight up news. add their skills, their tools, and their Film Corporation v. Industrial Some are advocacy.. . . Some are talents to enhance and contextualize Commission of Ohio, 236 U.S. 230 designed primarily to make us laugh that footage.” He continued, “They (1915). In this case, the Court held in a or to intrigue or entertain. Whatever use music, sound, lighting, graphics, 9-0 vote that the free speech protection form they take, films provide us with effects, and cinematography, and use under the Ohio Constitution did not a vivid and entertaining medium for these tools . . . in documentaries to extend to motion pictures. According understanding our world. It’s time for grab our attention to make us think to Cohen, the Court provided three the law and our institutions to treat to tug at your heartstrings just as main reasons why it did not extend documentaries as an essential and equal much as any Hollywood blockbuster First Amendment protections to motion part of our journalism universe.” does.. . . [T]hese elements can be pictures, including that motion pictures Cohen’s lecture, titled “Inconvenient used to educate, to challenge, and “were capable of causing harm, given Truths and Tiger Kings: The Vital Role to entertain us.” Cohen cited several their ‘attractiveness and manner of of Documentaries Today,” attracted examples, including An Inconvenient exhibition.’” The second reason was approximately 200 attendees from a Truth — a 2006 documentary film about that films, according to the Court, were variety of locations in the United States former U.S. Vice President Al Gore’s for entertainment, not the conveyance and abroad, marking the first Silha efforts to inform the American public of opinion. The final reason was that Lecture held in a virtual format due to about global warming — and Tiger films were created as part of business to the ongoing COVID-19 pandemic. King: Murder, Mayhem and Madness make a profit. Cohen began his lecture by — a 2020 documentary miniseries Cohen argued that “[t]oday, of discussing “the importance of about the life of zookeeper Joseph course, we recognize how wrongheaded documentaries in our culture today.” Maldonado-Passage, better known as these rationales are,” for three reasons. He explained that “[t]housands of “Joe Exotic.” First, Cohen said “the fact that the documentaries are available for Cohen noted “the skill of the particular media might be utilized for streaming and viewing these days” and filmmakers who have borrowed the insidious purposes is not a justification that in the first half of 2020, Netflix had storytelling techniques of the finest for eliminating protection for all works announced that 150 million viewers filmmakers from around the world.” He and that media category.” worldwide had watched at least one of also credited smartphones, which he Second, Cohen also contended its documentaries in the last year. described as “powerful high-resolution that “the line between entertainment Cohen also described the “incredible filmmaking tools” that have “all of and opinion can’t really be effectively power of documentaries,” citing the the necessary equipment for making drawn,” citing the Supreme Court’s value of “news video,” including the a documentary.” This technology, he ruling in Brown v. Electronic footage depicting the May 2020 death said, is “much more accessible than Merchants Association, 564 U.S. 786 of George Floyd while in the custody it had been in the past.” He also cited (2011), in which the Court struck down of the Minneapolis Police Department the “tremendous amount of shelf a California law that prohibited the (MPD). (For more information on the space for documentaries” because of sale or rental of violent video games Floyd’s death; ensuing arrests, attacks, the rise of 24/7 cable news channels to minors, declaring video games to and threats against journalists by police; and streaming services that “all need be protected speech under the First and litigation, see “Ongoing Protests lots of content and documentaries, Amendment. (For more information on and Confrontations Between the [which] are generally cheaper to buy Brown, see “U.S. Supreme Court Strikes Press and Police Prompt Legal Action, or to make than scripted films and Down Ban on Violent Video Game Sales Ethical Debates, and Media Advocacy,” programs.” Finally, Cohen pointed to Minors” in the Summer 2011 issue of on page 10 and “Court Access and to “the declining financial support the Silha Bulletin. Brown was also the for traditional news sources that tell Medical Privacy Issues Arise in Wake Cohen, continued on page 54 53 Cohen, continued from page 53 finance law, because it impermissibly public places in the course of their topic of the 2010 Silha Lecture featuring discriminated against the First [official] duties.” (For more information attorney Paul Smith, who later argued Amendment rights of corporations to on such rulings, see “Third Circuit the case before the Supreme Court. For expressly support political candidates.” Declares a First Amendment Right to more information on his lecture, which (For more information on Citizens Record On-Duty Police Officers” in was a rehearsal for Smith’s arguments United, see “Justice Ginsburg Passes the Summer 2017 issue of the Silha before the Court, see “U.S. Supreme Away; Authored and Joined Key First Bulletin.) However, Cohen argued Court Weighs California’s Ban on and Fourth Amendment Majority that despite such rulings, as well as Violent Video Game Sales” in the Fall and Dissenting Opinions” on page those “recognizing a right to record 2010 issue of the Silha Bulletin). 22 of this issue of the Silha Bulletin, governmental activities and other Finally, Cohen argued “that and “Supreme Court Strikes Down matters of public interest, . . . a number operation for profit has never excluded Campaign Finance Regulation for of federal agencies and state and speech from the First Amendment Corporations” in the Winter/Spring local governments [have continued] protection.” He cited New York 2010 issue. Campaign finance was also to discriminate against documentary Times Co. v. Sullivan, 376 U.S. 254 the topic of the 2003 Silha Lecture, filmmakers.” (1964), in which the Supreme Court featuring attorney Ken Starr. For He cited Price v. Barr, 1:19-cv-03672, applied the First Amendment to an more information on his lecture, a case before the U.S. District Court advertisement published by The New “Political Liberty: Campaign Finance for the District of Columbia centering York Times seeking donations for the and the Freedoms of Speech and on the National Park Service’s policy legal defense of Martin Luther King, Association” see “Ken Starr Presents requiring a permit and fees for Jr. on perjury charges. The Court 18th Annual Silha Lecture” in the commercial filming in national parks. ultimately established the “actual Fall 2003 issue of the Silha Bulletin, According to Cohen, the regulation malice” standard, which requires proof which is available online at: https:// “requires a permit and payment for that defendants knowingly made false conservancy.umn.edu/bitstream/ ‘recording a moving image with the statements or made statements with handle/11299/150038/BulletinFall2003. intent of generating income.’” He reckless disregard for their truth or pdf?sequence=1&isAllowed=y.) explained that although the regulation falsity. However, Cohen argued that despite “specifically exempts newsgathering, Cohen next cited the U.S. Supreme the Burstyn ruling, there has still the Park Service contended that Court’s ruling in Burstyn, Inc. v. been “a lingering bias against film [Gordon Price, a documentary Wilson, 343 U.S. 495, 501–02 (1952), and documentary films, in particular filmmaker,] making a film [in Yorktown, in which the Court “reversed course” in the field of newsgathering.” He Va. honoring our victory in the and held that “[i]t cannot be doubted contended that although the Supreme Revolutionary War] . . . didn’t qualify.” that motion pictures are a significant Court held in Branzburg v. Hayes that Cohen continued, “In other words, medium for the communication of “news gathering is not without its First a still photographer working for a ideas. They may affect public attitudes Amendment protections,” 408 U.S. 665, magazine or a newspaper would have and behavior in a variety of ways, 681, 707 (1972), the “application of that no problem under the regulation and ranging from direct espousal of a principle has been spotty at best.” would not need a permit or would political or social doctrine to the subtle Cohen provided examples, including have to pay or not have to pay a fee. shaping of thought which characterizes that the Supreme Court “still doesn’t Similarly, an amateur photographer all artistic expression. The importance allow [cameras in the courtroom] and or videographer . . . would be okay of motion pictures as an organ of public [that] most courts still disfavor them.” taking endless amounts of video of opinion is not lessened by the fact that He explained that “[e]ven in the states the family in the National Park. And they are designed to entertain as well that allow cameras, there’s generally there’s no evidence that the Park as to inform.. . . [W]e conclude that a process that requires specific court Service has ever applied this law to a expression by means of motion pictures approval.” Conversely, according to TV news program.. . . Treating Mr. Price is included within the free speech and Cohen, there is “no similar process or differently than all of those people is free press guaranty of the First and bias against reporters attending trial irrational and it does not comport with Fourteenth Amendments.” and in other situations.” He added, “In the First Amendment.” As the Bulletin Cohen noted that “one might be fact, the rules regarding cameras are went to press, the National Park Service able to draw a line from the [Burstyn] strange, given that the Supreme Court (NPS) was still defending the policy case to one of the most important has emphatically pressed for courts before the federal District Court for the and controversial First Amendment and their proceedings to be open to the District of Columbia, although NPS had decisions of recent times: the Citizens public, but apparently [not] through one dropped the charges it had filed against United case,” in which “[i]t was of the most effective communications Price for violation of the regulation. a documentary film about Hillary media and the one that our youngest Third, Cohen argued that the Clinton produced by a conservative generations have come to rely upon the “federal government’s bias against nonprofit organization that led to that most.” documentarians plays out in other ways decision and all of the controversy that On the other hand, Cohen explained as well,” including in a U.S. Department followed.” In Citizens United v. FEC, that “courts are increasingly protective of Homeland Security (DHS) policy that 58 U.S. 310 (2010), the Court ultimately of video and photography,” and that “requires documentary filmmakers to struck down portions of the Bipartisan “[a] majority of the federal Circuit agree to a special form of agreement Campaign Reform Act (BCRA) of 2002, Courts have now held there is a First when they access DHS property or 2 U.S.C. § 441b, a federal campaign Amendment right to record police in facilities.” According to Cohen, DHS

54 “use[s] that as a precondition for Furthermore, insurance companies, to extend the reporter’s privilege not that access for not only documentary according to Cohen, “press filmmakers to disclose confidential sources and filmmakers, but scripted films, fiction for assurances about such releases information to Joseph Berlinger, a programs, television programs, etc.” from their subjects [and] others who documentary filmmaker. The court However, other print and television appear in the documentary before reasoned that Berlinger was not acting journalists, according to Cohen, “don’t they will provide errors and omissions as an independent journalist because receive that agreement and it’s not a policies.. . . [D]istributors of films insist the film was solicited by the plaintiffs. precondition for access.” on that insurance before they will agree Cohen argued that there were He added, “Among the many to distribute a documentary.” multiple problems with the ruling, requirements of the multimedia He added, “Here again including that “the First Amendment agreement [is that] DHS requires doc documentarians are being treated doesn’t require objectivity to qualify filmmakers to submit both the rough cut for protection.” and the final cut of their films to give "[T]he First Amendment doesn't require He continued, DHS the opportunity to comment upon “Thomas Paine and and, if they deem necessary, demand objectivity to qualify for protection. John Peter Zenger changes to meet concerns about Thomas Paine and John Peter Zenger didn’t follow a accuracy, safety, and security.. . . Again, didn't follow a set of editorial guidelines set of editorial there is no similar provision for TV guidelines when news or for newspapers and there’s no when they became free speech they became free basis for subjecting documentaries to heroes in colonial times. The First speech heroes in these requirements, which obviously Amendment protects a marketplace colonial times. The raise concerns about potential First Amendment censorship.” of ideas — opinion and advocacy are protects a Finally, Cohen cited Ness v. City of welcome. And as the Supreme Court has marketplace of Bloomington, a case pending before often reminded us, the First Amendment ideas — opinion the U.S. Court of Appeals for the Eighth and advocacy are Circuit challenging the constitutionality protects a robust, uninhibited, and wide welcome. And of a Bloomington, Minn. ordinance open discussion of matters of public as the Supreme prohibiting intentionally taking a interest." Court has often photograph or otherwise recording a reminded us, the minor in a city park without the consent — Dale Cohen, First Amendment of the parent or guardian. Sally Ness, Special Counsel to PBS's FRONTLINE protects a robust, a Bloomington resident, claimed that uninhibited, the law was unconstitutional under the and wide open First Amendment. Cohen asserted that discussion of in July 2020, the District of Minnesota differently than other journalists. matters of public interest,” citing “dismissed the claim incorrectly, The New York Times doesn’t ask Sullivan. He therefore called for U.S. in my view, largely based on the interviewees to sign a release. And law and institutions to better recognize misunderstanding of First Amendment their insurance company certainly the importance of documentaries and law.” Ness v. City of Bloomington, No. doesn’t require that. ‘60 minutes’ treat them equally with traditional 19-2882 ADM/DTS, 2020 WL 4227156 correspondents and local television journalism. (July 23, 2020). news people do not ask for releases During a Q&A session moderated Cohen argued that the trial court when they interview people or by Silha Center Director and Silha misinterpreted First Amendment when they film them on the street Professor of Media Ethics and Law Jane law because the ordinance is not for their news stories.” Cohen Kirtley, Cohen responded to several “content-neutral” and “the City Council therefore asked, “Why then should questions from webinar attendees, and the court both improperly ignored documentarians be expected to meet including a question by prominent the constitutionally salient truth that this standard? Their interviewees First Amendment attorney Lee Levine, there is no reasonable expectation [and people filmed in public] do not who asked, “In a world when many of privacy in a public park.” As the have any reasonable expectation of documentarians come to their subjects Bulletin went to press, the Eighth privacy.. . . [Interviewees] know they’re with a story they want to tell, how Circuit had not ruled in Ness. being filmed and they typically know do you counsel your clients about Cohen drew a parallel to the “same what the interviewer knows and intends mitigating the risks of defamation erroneous judgment that many in the to do with the recording.” liability from plaintiffs who will argue film industry make when they insist Cohen asserted that the “only that such preconceived narratives are that documentary filmmakers must reason that’s been articulated in case actually evidence of actual malice?” have releases from everyone who law that [he could] identify “has been (Levine delivered the 16th Annual Silha appears in their films.” He explained the contention that documentarians Lecture, titled “Newsgathering on Trial: that such releases “certify that an are often times, acting as advocates, The Supreme Court And the Press In interviewee consents to an interview not as journalists.” He cited the the 21st Century” on Oct. 2, 2001. For and its use in a documentary and . . . Second Circuit’s 2011 ruling in more information on the lecture, see may include other provisions, including Chevron Corp. v. Berlinger, 629 F.3d “Bartnicki v. Vopper Topic of Sixteenth the release of other tort claims.” 297 (2011), in which the court declined Cohen, continued on page 56 55 Cohen, continued from page 55 the way they thought it would and that believes “the First Amendment protects it did not cast prison officials or the all of these documentarians . . . [and] Annual Silha Lecture” in the Fall 2001 state in a very good light. So they ran people across the political spectrum.” issue of the Silha Bulletin.) to court in New York to try to get an However, he added, “I think we Cohen responded that he advises injunction against the showing at the can all agree that we would like his clients “to follow good journalistic [New York Film] Festival. Happily, the the social media platforms that practice, which means that they report court in New York allowed them to do have such an incredible impact on things based on multiple solid sources the one showing.” our world to exercise reasonable that that that are independently However, Cohen explained that discretion.” He cited Section 230 of confirming the facts.” He added that Massachusetts officials were granted the Communications Decency Act, PBS — like other traditional outlets an injunction against the film in 47 U.S.C. § 230 (2020), which provides such as The New York Times, The their state, requiring Wiseman to protection for social media platforms Washington Post, and the BBC — has pull back whatever copies he had and others from liability based on most guidelines ensuring a “right of reply,” and to destroy those copies. The content posted by their users. meaning that if a filmmaker criticizes Massachusetts Supreme Court, in Cohen argued that although the someone, such as alleging unethical or Commonwealth v. Wiseman, ultimately debate over whether social media criminal conduct, they provide “them balanced the First Amendment and platforms can and do suppress certain the opportunity to respond.” privacy interests in the case, ruling political opinions “rocks our faith in Such conversations allow PBS, that the film could not be shown to the First Amendment,” he still “[felt] according to Cohen, to “lay out for the general public, but instead only better prohibiting the government for them the things that our sources have to a select group of doctors, lawyers, making decisions about what can and told us or what we found in the course medical professionals, and educators. can't appear for the public and what of our investigation and ask them to 356 Mass. 251 (1969). The full ruling is ideas, they can and can’t see.” He added, respond to it.” Cohen continued, “And available online at: https://law.justia. “I believe, like [Justice Louis Brandeis] very often, they introduce us to new com/cases/massachusetts/supreme- said when he was on the [Supreme information and it changes the way we court/1969/356-mass-251-2.html. Court], that that counter speech is really tell the story.. . . That’s good journalistic In 1991, Massachusetts Superior the best solution to false speech and practice.” Court Judge Andrew Meyer ruled that sunlight is the best disinfectant. I’ve In response to another question the restrictions on the documentary lived by that for a long time.” from Kirtley, Cohen discussed the 1967 constituted a prior restraint, clearing A link to a video of the lecture documentary Titicut Follies, which was the way for PBS to air the film in 1992. is available online at: https://www. directed by Frederick Wiseman and Meyer wrote, “As each year passes, youtube.com/watch?v=OlFpX90AZBU. focused on “the horrendous treatment” the privacy issue of this case is of less Silha Center activities, including the of the patient-inmates of Bridgewater concern to the court than the [First annual Silha Lecture, are made possible State Hospital for the criminally insane Amendment] issue. I am now convinced by a generous endowment from the late in Massachusetts. According to Cohen, that the scales have tipped in favor of Otto and Helen Silha. a legal dispute over the film arose when an unrestricted showing.” “the State of Massachusetts decided In response to another audience — Scott Memmel that the film had not quite turned out question, Cohen remarked that he Postdoctoral Associate

The 35th Annual Silha Lecture Inconvenient Truths and Tiger Kings: The Vital Role of Documentaries Today featuring Dale Cohen Special Counsel to PBS’s FRONTLINE is available online at: https://www.youtube.com/watch?v=OlFpX90AZBU

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