A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | WINTER/SPRING 2011 Open Government Advocates Criticize Obama’s Prosecution of Leakers got elected pledging openness and transparency—and someone Leaks of Information to News Media who also got elected thanks to a lot of [Bush-era] scandals that Raise Fundamental Legal Questions were revealed by whistleblowers.” On Jan. 21, 2009, his second day in offi ce, Obama released he federal government’s prosecutions of leakers of a memo that said that under his administration there would government information have stirred advocates of be a “presumption of disclosure” for all federal Freedom of free speech and open government to criticize the Information Act requests, reversing a Bush administration Obama administration for promising transparency directive that called for withholding any requested documents while chilling freedom of speech. if there was a “sound legal basis” for doing so. Obama said in TIn roughly 28 months since President Barack Obama took a speech the same day that “starting today, every agency and offi ce Jan. 20, 2009, the federal government has fi led criminal department should know that this administration stands on the charges against fi ve people for the unauthorized distribution side not of those who seek to withhold information but those of classifi ed national security information. The fi ve cases have who seek to make it known.” (For more on the Obama open involved leaks from the Central Intelligence Agency (CIA), U.S. government promises, see “Obama Promises More Government military, U.S. State Department, Openness; Skeptics Demand and National Security Agency “ We’ve argued that I was a victim of Immediate Results” in the (NSA) to the media. In two Winter 2009 issue of the of the cases, the government harassment by the government. This Silha Bulletin, and “Obama’s issued subpoenas to reporters seems to bolster that.” Policies Promote Openness; or media companies as part of — James Risen Some Secrecy Persists” in the their investigations. New York Times Reporter Spring 2009 issue.) In a March 7, 2011 article, Salon.com blogger Glenn Politico.com reporter Josh Greenwald contrasted the Gerstein called the Obama administration’s aggressive pursuit of leaks with Obama’s administration’s legal campaign against leakers “a sharp break promises to promote transparency. Greenwald observed from recent history,” observing that the U.S. government that Obama’s agenda as president-elect included plans to brought only three such cases during the 40 years prior “protect whistleblowers,” stating that “such acts of courage to the present administration. Gerstein reported that the and patriotism, which can sometimes save lives and often administration has defended the prosecutions, insisting that save taxpayer dollars, should be encouraged rather than they have arisen out of a duty to protect the nation’s most stifl ed.” (Obama’s Ethics Agenda is available online at http:// sensitive secrets from reckless disclosure, and pointing out that change.gov/agenda/ethics_agenda/). Greenwald said “those other, more proper channels exist for government employees pretty words have given way to the most aggressive crusade to report malfeasance. However, “legal experts and good- to expose, punish and silence ‘courageous and patriotic’ government advocates say the hard-line approach to leaks whistleblowers by any President in decades.” has a chilling effect on whistleblowers, who fear harsh legal reprisals if they dare to speak up,” Gerstein wrote. Risen Subpoenaed, Investigated in CIA Leak Case Jesselyn Radack, Homeland Security and Human Rights The investigation and indictment of former CIA offi cer Director for the Government Accountability Project and a Jeffrey Sterling has made New York Times reporter James former Justice Department attorney, told Gerstein the Obama Risen the subject of two subpoenas and a government policy is “a disturbing one particularly from a president who Leakers Prosecuted, continued on page 4 Inside this Issue Winter/Spring 2011: Volume 16, No. 2

1 Open Government Advocates Criticize Obama’s 18 Courts, Police Beginning to Address Issues Prosecution of Leakers Raised by Citizens with Cameras Cover Story Access

3 Director’s Note: Outrageous Speech, ‘Trash 21 Second Circuit Rationale for Denying Privilege Torts’ and the First Amendment to Filmmaker: Failure to Maintain Independence Director’s Note Journalist’s Privilege

9 Supreme Court Addresses FOIA Exemptions; 23 Journalists Face Challenges in Covering Utah Legislators Pass, Repeal Law Limiting Revolution in North Africa, Middle East Openness International Press Freedom Freedom of Information

27 Minnesota Senate Expands Floor Access; State 12 Supreme Court Ruling Protects Funeral Supreme Court Approves Cameras Picketers Access Freedom of Speech

29 Minnesota News Council Closes after 41 Years 15 Prank Phone Call, Hidden Camera Spur Ethical Controversies Media Ethics Media Ethics 30 Silha Spring Events Highlight Paradoxical Heroes of Press Freedom

Silha Center Events

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2 Director’s Note: Outrageous Speech, ‘Trash Torts’ and the First Amendment In the early stages of the case, the trial judge threw out some Looking at the ‘Johnny Northside’ Case of Moore’s claims, fi nding that parts of the blog post were pure through the Prism of Snyder v. Phelps opinion and therefore could not be the basis for a lawsuit. She rejected Moore’s lawyer’s argument that Hoff was not entitled arch 2011 was an interesting month for freedom to the First Amendment protection accorded to journalists of expression. As you’ll read elsewhere in this because he is not objective and allows others to post online issue of the Silha Bulletin, the Supreme Court comments that turn his blog into a “defamation zone.” But the of the United States ruled, 8 to 1, that members jury nevertheless ruled against Hoff. Even though it found that of the Topeka, Kansas-based Westboro Baptist what the blogger had posted was true, it concluded that the MChurch have a First Amendment right to picket at the periphery statement “tortiously interfered” with Moore’s employment, of a military funeral. The majority of the justices held that the resulting in lost wages and reputational damage. protesters’ signs, bearing messages such as “Thank God for This case is reminiscent of the so-called “trash torts” Dead Soldiers” and “Fag Troops,” constituted commentary on lawsuits brought in the 1990s. Plaintiffs who wanted to sue vital issues involving “the political and moral conduct of the for libel, but could not meet the high standards of proof set by United States and its citizens,” including “homosexuality in the the Supreme Court in cases like New York Times v. Sullivan military.” The court rejected claims that and its progeny, attempted to circumvent those requirements DIRECTOR’S the surviving family of Lance Corporal by claiming damages based on other legal theories such as NOTE Matthew Snyder should be able to trespass, breach of duty of loyalty, or fraud. In some instances, recover damages for intentional infl iction such as the infamous 1999 Food Lion suit brought against of emotional distress—essentially, hurt feelings—based on a ABC’s “Primetime Live” for deceptive undercover reporting peaceful protest on public property that involved “matters of techniques, they have won. But for the most part, courts have public import.” been unwilling to allow these kind of end-runs around the Justice Samuel Alito, the lone dissenter, argued that private First Amendment. Plaintiffs whose damages are based on individuals like the Snyders should not have to be subjected reputational harm must meet the standards of proof of falsity to what Alito considered to be outrageous and personal and actual malice that are necessary to prevail in a libel suit, attacks. But the majority, extending its landmark 1988 decision even if they label the claim as some other tort. in Hustler Magazine, Inc. v. Falwell, concluded that even The jury verdict in the “Johnny Northside” case is unlikely “outrageous” speech targeted at private individuals must be to withstand review by an appellate court. Holding a speaker protected as long as it involves matters of public concern. liable for damage to reputation that results because he told But just a few days later, a jury in Hennepin County (Minn.) the truth simply cannot be squared with the unbroken line of ruled that a public fi gure—ex-Jordan Area Community Council First Amendment precedent that protects robust, and even director Jerry Moore—could recover $25,000 for emotional caustic, attacks on public fi gures. If the Supreme Court will distress (as well as $35,000 for lost wages) after he was fi red by not allow private fi gures like the Snyders to recover damages the University of Minnesota’s Urban Research and Outreach/ for emotional distress caused by the “outrageous” speech of Engagement Center the day after John Hoff, a blogger known the Westboro protesters, it will certainly reject a similar claim as “Johnny Northside,” wrote a post accusing Moore of brought by a former government offi cial who is offended by involvement in a “high-profi le fraudulent mortgage” and asking truthful criticism of his activities. “WHAT THE HELL was the U of M thinking by hiring him.” – PROF. JANE KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

SILHA CENTER STAFF

JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

PATRICK FILE SILHA FELLOW AND BULLETIN EDITOR

GEOFF PIPOLY SILHA RESEARCH ASSISTANT

SARA CANNON SILHA CENTER STAFF

3 Leakers Prosecuted, continued from page 1 investigation that swept up some of his personal fi nancial and journalists because they require federal offi cials to negotiate travel records without his knowledge or permission. with a reporter before a subpoena is requested, as well as On Jan. 6, 2011, Sterling was arrested and charged with to exhaust other sources of information and to provide six counts of unauthorized disclosure of national defense “reasonable grounds” that the information is “essential” to information, and one count each of unlawful retention of resolve a disputed issue or solve a crime. The guidelines state national defense information, mail fraud, unauthorized that “the use of subpoenas to members of the news media conveyance of government property, and obstruction of justice. should, except under exigent circumstances, be limited to the Sterling’s indictment, which was fi led under seal Dec. 22, verifi cation of published information and to such surrounding 2010, did not specify the information circumstances as relate to the accuracy of the published he is alleged to have released, only information.” But they also state that the policy “does not apply COVER STORY saying that it related to his assignment to demands for purely commercial or fi nancial information to a “classifi ed clandestine operational unrelated to the news gathering function.” (For more on the program designed to conduct intelligence activities related Attorney General Guidelines, see the “Silha Bulletin Guide to the weapons capabilities of certain countries,” and as an to Journalist’s Privilege” in the Spring 2008 issue of the Silha “operations offi cer assigned to handle a human asset associated Bulletin.) with that program.” According to the indictment, Sterling’s Court fi lings in the Sterling case show that although the unauthorized disclosure of national defense information subpoenas directly to Risen were unsuccessful, the government violates the Espionage Act, 18 U.S.C. § 793, which criminalizes used other ways to compile information on the reporter. A the unauthorized retention or disclosure of “national defense motion Sterling fi led with the Eastern District of Virginia on information” or “classifi ed information.” Feb. 24, 2011 stated that, as part of its evidence supporting The indictment alleges that Sterling “engaged in a scheme the case against Sterling, the government “provided … various to disclose information … fi rst, in connection with a possible telephone records showing calls made by … Risen” as well as newspaper story to be written by an author employed by a “credit card and bank records and certain records of his airline national newspaper in early 2003 and, later, in connection travel.” In a footnote in a March 10 fi ling with the court, federal with a book published by the author in January 2006.” The prosecutors wrote that they did not subpoena Risen’s phone indictment does not name the author, but its details make records, which would have required notifi cation to Risen under clear that it is Risen, who covers national security issues and the attorney general guidelines. The fi ling did not address the whose 2006 book “State of War: The Secret History of the other records, which do not require notifi cation under the C.I.A. and the Bush Administration” described a CIA attempt guidelines. Moreover, they argued that questions about the to disrupt Iranian nuclear research as an “espionage disaster.” acquisition of Risen’s information was not “germane” to the The indictment alleges that Sterling released the information in issue before the court. retaliation for his 2002 fi ring. In an interview for a Feb. 24, 2011 story for Politico.com, Risen, who won a Pulitzer Prize in 2006 for his reporting on Jane Kirtley, director of the Silha Center and professor of the Bush administration’s warrantless wiretapping program, media ethics and law at the University of Minnesota told has been the subject of two federal subpoenas seeking his Gerstein that “third-party subpoenas” like the one issued sources for the Iran chapter of “State of War.” According to for Risen’s bank and credit card records “are really, really The New York Times, in January 2008 the Bush administration invidious.” Kirtley explained that journalists often are not obtained a subpoena seeking his cooperation in the Sterling notifi ed when the government asks telephone and Internet investigation, but Risen fought the government’s efforts and the companies or banks for their records. “Even if it is targeted, subpoena expired in summer 2009 without his having to testify. even if they’re trying to just look at the relevant stuff, they’re On April 28, 2010, The New York Times reported that a second inevitably going to get material that exposes other things,” subpoena had been issued by the Obama administration. Kirtley said. (In 2007, St. Paul, Minn. police used a third-party At that time, Risen’s attorney, Joel Kurtzberg, said Risen subpoena to gather information on a local reporter without his intended to fi ght the subpoena and “honor his commitment of knowledge. See “St. Paul Police Secretly Subpoena Reporter’s confi dentiality to his source or sources.” A Jan. 6, 2011 New Cell Phone Records” in the Winter 2008 issue of the Bulletin.) York Times story reported that a federal judge in the Eastern In a Feb. 25, 2011 New York Times story, Lucy Dalglish, District of Virginia quashed the second subpoena in November executive director of the Reporters Committee for Freedom 2010. (For more on the 2008 subpoena, see “Reporters Fight of the Press, expressed concern about the chilling effect the Federal Subpoenas” in the Winter 2008 Silha Bulletin.) Sterling investigation could have on government workers who It is likely that both subpoenas were personally approved by might criticize their bosses by speaking to the media. “The U.S. attorney generals—Michael Mukasey under Bush in 2008 problem is that [Risen] and other reporters are going to have and Eric Holder under Obama in 2010—because of guidelines a much more diffi cult time in the future having government that require explicit permission from the Attorney General for whistleblowers talk to them, and that’s the reason [government the Justice Department to issue a subpoena to a member of the offi cials] do this.” news media or to issue a subpoena for a reporter’s “telephone Risen’s assessment, given to the Gerstein, was more toll records.” The Attorney General guidelines are published at direct: “We’ve argued that I was a victim of harassment by the 28 C.F.R. § 50.10. Although not formally enforceable by a court, government. This seems to bolster that.” the guidelines have been seen as an important protection for

4 Manning, WikiLeaks Case Leads to Prominent direct.” The charge sheet did not identify an enemy that Resignation, Twitter Investigation Manning was accused of aiding. According to the Times, a The case brewing against Pfc. Bradley Manning, the military military statement said that “the prosecution team had decided intelligence analyst charged with leaking thousands of military against recommending the death penalty in [Manning’s] case.” and diplomatic documents and other information to the From July 2010 until April 2011, Manning was held at a website WikiLeaks, has also raised questions and criticism over Marine Corps brig in Quantico, Va. The conditions of Manning’s discouraging whistleblowers while chilling freedom of speech. detention drew criticism from Coombs, commentators, On March 1, 2011 the Army announced the addition of and news media. Coombs wrote several posts on his blog, 22 charges to those already pending against Manning, who located at http://www.armycourtmartialdefense.info, detailing was fi rst taken into custody treatment of Manning that in May 2010 in Kuwait over “ In an intelligent system of government, he called “degrading and allegations that he had leaked humiliating.” After being classifi ed video taken from a [Crowley’s] views would be freely aired transferred to Quantico, U.S. military helicopter as its and honestly attended to. But it seems Manning was held under guns shot and killed a Reuters that there is not much place for such “maximum custody” with photographer in Baghdad in speech in the current Administration.” additional “suicide watch” and July 2007. WikiLeaks titled the “prevention of injury watch” video “Collateral Murder” and measures, according to a released it online, including — Steven Aftergood complaint he fi led with the on YouTube, in April 2010. Secrecy News Quantico base commander on Manning has also been accused January 11. On April 19, The of providing WikiLeaks with Associated Press (AP) reported tens of thousands of classifi ed fi eld reports fi led by American that the Pentagon announced that Manning would be moved to troops in Afghanistan, which WikiLeaks began publishing in the Fort Leavenworth Joint Regional Correctional Facility in July 2010, and hundreds of thousands of American diplomatic Kansas. cables, which WikiLeaks began to release in November 2010. According to the January 11 complaint, Manning was (For more on the initial round of WikiLeaks documents, see permitted to leave his cell for one hour out of every 24 for “WikiLeaks’ Document Dump Sparks Debate” in the Summer exercise, when he was allowed to walk in an empty room. He 2010 Silha Bulletin. Silha Center Director Jane Kirtley was forbidden to exercise in his cell, and was allowed no more discussed “The WikiLeaks Quandary” in the Fall 2010 issue.) than one book or magazine at a time, which was removed On April 25, WikiLeaks released a new round of documents when he went to bed. His meals were served in his cell. The focused on details surrounding detainees at the United States’ suicide and prevention of injury watch measures required detention center in Guantanamo Bay, Cuba. Manning to respond affi rmatively to guards asking whether he The original charges against Manning included violations of was “ok” every fi ve minutes between 5 a.m. and 8 p.m., when Article 92 of the Uniform Code of Military Justice (UCMJ) for he was prohibited from sleeping. He was not allowed a pillow “violating a lawful Army regulation by transferring classifi ed or sheets, and if he covered his head or turned toward the data onto his personal computer and adding unauthorized wall while sleeping, he was awakened to ensure that he was software to a classifi ed computer system” and Article 134 for “ok.” According to the complaint, two forensic psychiatrists at general misconduct—breaking federal laws against disclosing the brig who examined Manning consistently recommended classifi ed information. According to Manning’s new “charge that Manning be moved to “medium custody” and taken off of sheet,” the March 1 charges included violations of Article suicide and prevention of injury watch. 104, “aiding the enemy;” charges stemming from violations of Coombs reported in a March 5 blog post that beginning Article 92, “failure to obey order or regulation;” and Article 134, March 2, Manning was required to sleep completely naked and which extends generally to offenses not specifi cally listed in report for morning roll call naked, after which his clothing the UCMJ which “shall be punished at the discretion of [the] was returned. The new treatment was a result of a remark that court.” his treatment as a self-injury risk was “absurd” and, according The New York Times reported March 2, 2011 that Manning’s to Coombs, he “sarcastically stated that if he wanted to harm lawyer, David E. Coombs, posted a comment on his Twitter himself, he could conceivably do so with the elastic waistband feed saying that the Article 104 charge was the “most of his underwear or with his fl ip-fl ops.” signifi cant additional charge.” The Times reported that Coombs In his post, Coombs argued that “the decision to strip “has largely declined to talk to the news media.” PFC Manning of his clothing … is clearly punitive in nature. Article 104 of the UCMJ says: “Any person who (1) aids, or There is no mental health justifi cation for the decision. There attempts to aid, the enemy with arms, ammunition, supplies, is no basis in logic for this decision. PFC Manning is under money, or other things; or without proper authority, knowingly 24 hour surveillance, with guards never being more than a harbors or protects or gives intelligence to or communicates few feet away from his cell. PFC Manning is permitted to or corresponds with or holds any intercourse with the enemy, have his underwear and clothing during the day, with no either directly or indirectly; shall suffer death or such other apparent concern that he will harm himself during this time punishment as a court-martial or military commission may Leakers Prosecuted, continued on page 6

5 Leakers Prosecuted, continued from page 5 period. Moreover, if Brig offi cials were genuinely concerned that abuse is a fi ring offense. Good to know.” about PFC Manning using either his underwear or fl ip-fl ops Edward Wasserman, the Knight Professor of Journalism to harm himself (despite the recommendation of the Brig’s Ethics at Washington and Lee University and a columnist psychiatrist) they could undoubtedly provide him with for The Miami Herald, criticized mainstream media more clothing that would not, in their view, present a risk of self- broadly for not speaking out against the detention of Manning, harm. Indeed, Brig offi cials have provided him other items such considering that Manning is accused of giving the media access as tear-resistant blankets and a mattress with a built-in pillow to such a valuable trove of information. In a March 28 column, due to their purported concerns.” A March 13 post on the Wasserman asked, “don’t journalists have some obligation to Washington Post World blog reported that beginning March 12, their sources? … If these news media believe they were right Manning was receiving sleeping garments. to publish the material Manning gave them, how can they stand March 14 editorials in the Los Angeles Times and New York aside as he faces life in prison for giving it to them? If they Times decried Manning’s treatment. The New York Times did right and the world benefi ted, did he do wrong? On what said that Manning’s detention “conjures creepy memories of grounds can they say—as [New York Times Executive Editor how the Bush administration used to treat terror suspects,” Bill] Keller and Guardian of London editor Alan Rusbridger while the Los Angeles Times observed, “it’s hard to resist the have—that they would help defend Wikileaks boss Julian conclusion that punishment, not protection, is the purpose of Assange if the U.S. charges him, while they won’t lift a fi nger to these degrading measures. Punishment may be in Manning’s protest Manning’s incarceration?” (Wasserman was a featured future … [but his] treatment should refl ect the fact that he speaker at the 2008 Silha Spring Ethics Forum. See “Forum remains innocent until proven guilty.” Explores Journalistic Independence, War and Politics” in the Outspoken criticism of the conditions of Manning’s Spring 2008 Silha Bulletin.) detention also forced the resignation of a top Obama The Pentagon said Manning’s move to Fort Leavenworth administration spokesperson. According to a March 10 blog was not a response to criticism of his treatment in Quantico, post by BBC news presenter and Nieman Journalism Fellow the AP reported April 19. Defense Department General Counsel Phillippa Thomas, Chief State Department Spokesman P.J. Jeh Johnson said in a press conference that “the fact that we Crowley told about 20 people gathered for an event organized have made a decision to transfer this particular pretrial confi ne by the Center for Future Civic Media at MIT that the treatment ... should not be interpreted as a criticism of the place he was of Manning was “ridiculous and counterproductive and stupid,” before.” Johnson and Army Undersecretary Joseph Westphal adding “none the less [he] is in the right place.” told reporters that Fort Leavenworth is more open, has more Obama was asked about Manning’s detention in a press space, and will provide Manning with a greater opportunity to conference the following day. According to the March 13 eat and interact with other prisoners, the AP reported. Johnson Washington Post blog post, Obama said the Pentagon had and Westphal said that the facility also has a broader array of assured him that the conditions of Manning’s detention were facilities, including trained mental, emotional, and physical “appropriate.” health staff. The AP reported that Pentagon offi cials said On March 13, Crowley resigned. CNN Senior White House Manning’s case is very complex and could drag on for months Correspondent Ed Henry reported March 13 that “sources or years. close to the matter said the resignation … came under pressure The federal government’s investigation following WikiLeaks’ from the White House, where offi cials were furious about publication of government secrets has not been limited to his suggestion that the Obama administration is mistreating Manning, however. On March 11, a federal magistrate judge in Manning.” In an interview broadcast March 28 by the program the Eastern District of Virginia upheld an order demanding the “HARDtalk” on BBC World News, Crowley said “I don’t regret disclosure of account information of three Twitter users with saying what I said,” although “quite honestly I didn’t necessarily ties to WikiLeaks. think the controversy would go as far as it did.” Crowley The Twitter users who fi led a motion to dismiss the order as declined to give details about “privileged conversations” he well as a motion to unseal the court records associated with it had with White House offi cials in the fallout from his remarks, were Birgitta Jónsdóttir, a member of the Icelandic parliament saying that “I felt that my actions put the president in a diffi cult who has been associated with WikiLeaks; Jacob Appelbaum, position. I felt that the only appropriate thing for me to do was a WikiLeaks volunteer from Seattle; and Rop Gonggrijp, a resign.” Dutch computer security specialist and Internet entrepreneur. Commentators decried the fact that Crowley was apparently Lawyers from the American Civil Liberties Union (ACLU) and forced to resign for speaking his mind on Manning’s detention. Electronic Frontier Foundation (EFF) represented the users. Steven Aftergood, an expert on government secrecy, The order also sought records relating to WikiLeaks itself, its intelligence, and national security policy, wrote in a post on his founder Julian Assange, and Manning. The Privacy Inc. blog on blog Secrecy News, “in an intelligent system of government, the website Cnet reported March 11 that prosecutors said no [Crowley’s] views would be freely aired and honestly attended one “associated with” WikiLeaks has fi led an objection to the to. But it seems that there is not much place for such speech order. in the current Administration.” Glenn Greenwald, in a March The order was fi led under seal on Dec. 14, 2010. Citing the 13 blog post, said, “so, in Barack Obama’s administration, it’s Stored Communications Act, 18 U.S.C. § 2703 et seq., it required perfectly acceptable to abuse an American citizen in detention Twitter to turn over the users’ “subscriber names, user names, who has been convicted of nothing … but speaking out against screen names, or other identities;” contact information; records

6 of the users’ “connection[s,] … session times and durations;” available, fail to explain how the Twitter Order has a chilling the “means and source of payment for such service (including effect” on their association, adding, “The Twitter Order does any credit card or bank account number) and billing records; not seek to control or direct the content of petitioners’ speech records of user activity for any connections made to or from or association.” She said that the order was “reasonable in the Account, including date, time, length, and method of scope,” refl ected a “legitimate” government interest, and was connections, data transfer volume, user name, and source and not requested in “bad faith.” destination Internet Protocol address(es);” among other things. “The freedom of association does not shield members The Stored Communications Act outlines the circumstances from cooperating with legitimate government investigations,” in which government entities may, via a warrant or Buchanan wrote. subpoena, require the disclosure of the contents of a wire or Buchanan also denied the users’ request that all documents electronic communication, or any records pertaining to that in the case be unsealed, particularly any documents that communication, by an electronic communication service would identify other companies (such as Facebook or Google) provider. According to U.S. Magistrate Judge Theresa Carroll that might have received orders like the one sent to Twitter. Buchanan’s order, the law applies differently to “records” The users cited case law supporting both a common law and of communications, such as a name, address, connection constitutional “presumption that public documents, including records, or payment records; and communication “contents:” judicial records, are open and available for citizens to inspect.” the actual messages communicated. If the government seeks Buchanan rejected the request for openness, however, arguing communication contents, it must notify the subject of the that it was overcome by the government’s need to prevent warrant or subpoena, who can challenge the order. If the the destruction of evidence and “prevent[] unnecessary government seeks only records, however, notifi cation is not exposure of those who may be the subject of an investigation, required, and the user may not challenge the order. but are later exonerated.” Additionally, Buchanan ruled that The New York Times reported January 9 that such requests there is “no First Amendment justifi cation for unsealing the to Internet communications companies are somewhat routine, … documents” because “there is no history of openness for but are rarely disclosed to the public. The reason the Twitter documents related to an ongoing criminal investigation” order became public is because Twitter took the unusual and “there are legitimate concerns that publication of the step of challenging the secrecy of the government request in documents at this juncture will hamper the investigatory order to inform its targets. Twitter won that challenge, and process.” the existence of the order, though not its contents, was made Buchanan agreed to release two redacted documents public. pertaining to the Twitter order, because they “do not reveal any Nevertheless, Buchanan’s March 11 order ruled that sensitive investigatory facts which are not already revealed by Jónsdóttir, Appelbaum, and Gonggrijp lacked standing to the Twitter Order” and she agreed to “further review” and take challenge the order, since it requested only communication “under consideration” the users’ request that the case be placed records, and not contents. Buchanan also addressed the three on a public docket. users’ claims that the order was not properly issued because On March 25, Bloomberg news service reported that the it was too broad and included information irrelevant to the Twitter users fi led an appeal of Buchanan’s order in federal investigation, it violated the Fourth Amendment prohibition district court in Alexandria, Va. Bloomberg reported that of unreasonable searches and seizures, and violated the users’ EFF legal director Cindy Cohn said “services like Twitter First Amendment rights to association. In Re: §2703(d) Order; have information that can be used to track us and link our 10GJ3793 (E. Dist. Va., March 11, 2011) communications across multiple services including Twitter, Buchanan ruled that notwithstanding “the diffi culty of Facebook and Gmail. The magistrate’s ruling that users have no challenging a document [the users] have not seen,” the ability to protect that information from the U.S. government is government had met its burden under 18 U.S.C. § 2703 (d) especially troubling.” to show that its request for records “stated ‘specifi c and ACLU staff attorney Aden Fine, in a March 26 Agence articulable’ facts suffi cient to issue the Order … [seeking] France-Presse (AFP) story, said “if the ruling is allowed to disclosures … ‘relevant and material’ to a legitimate law stand, our client might never know how many other companies enforcement inquiry.” Moreover, Buchanan ruled that the have been ordered to turn over information about her, and order did not violate the Fourth Amendment because it she may never be able to challenge the invasive requests.” The did not infringe on “an expectation of privacy that society ACLU is helping to represent Jónsdóttir. considers reasonable.” She cited case law that has held that The federal investigation into WikiLeaks remains largely “no legitimate expectation of privacy exists in subscriber secret. A March 14 AP story observed that “prosecutors have information voluntarily conveyed to phone and internet said little about their case, though Attorney General Eric companies,” and said the users “voluntarily conveyed their IP Holder has said that the leaks jeopardized national security, addresses to the Twitter website, thus exposing the information and promised to prosecute anyone who violated U.S. law.” to a third party administrator, and thereby relinquishing any The story quoted Aftergood, who speculated about the reasonable expectation of privacy.” government’s motives for seeking Twitter records: “Either the Buchanan also found that the order did not violate the users’ government is being extremely diligent in crossing every ‘t’ and First Amendment rights. “Petitioners,” she wrote, “who have dotting every ‘i.’ Or the other possibility is that they have no already made their Twitter posts and associations publicly case whatsoever and they’re tallying up all conceivable leads,” Leakers Prosecuted, continued on page 8 7 Leakers Prosecuted, continued from page 7 Aftergood said. “The information they’re going to get from On Aug. 27, 2010, Stephen Kim, a former foreign policy Twitter is indirect evidence at best.” analyst contracted to the U.S. State Department, pled not guilty to charges that he had leaked classifi ed information Three Other Cases in Various Stages about North Korea to Fox News, according to The New York Three other leak cases, none of which has included a Times. The Reporters Committee for Freedom of the Press request for source information or subpoena to a media reported on Feb. 11, 2011 that Kim fi led motions to dismiss organization, are in various stages of litigation. On May 24, the charges, arguing, among other things, that the prosecution 2010, former FBI linguist Shamai Leibowitz was sentenced to violates the First Amendment because it does not show 20 months in prison after he pled guilty to leaking documents that Kim handed over documents, stole tangible reports, or concerning “communication intelligence activities” to an received compensation or reward for “what would include oral unnamed blogger. According to The Washington Post on May conversations with a member of the press.” Kim’s attorney, 25, 2010, “federal prosecutors … remained mum about exactly Abbe Lowell, also led the defense of Rosen and Weissman. what was contained in the classifi ed papers” that Leibowitz Lowell argued in a January 31 press release that in the Kim case leaked. The Post reported that during Leibowitz’s sentencing “the government seeks to make illegal mere oral conversations hearing, U.S. District Judge Alexander Williams Jr. said federal between a government offi cial and a member of the press.” authorities convinced him that Leibowitz committed a “very, Former National Security Administration (NSA) offi cial very serious offense,” but even the judge did not know what Thomas Drake was indicted on April 14, 2010, after leaking information Leibowitz disclosed. “I don’t know what was information about government wiretapping programs to divulged, other than some documents, and I don’t know how Baltimore Sun reporter Siobhan Gorman. The New York Times it’s compromised things,” Williams said. reported June 11, 2010 that the Bush administration initially Aftergood said in a May 25 Secrecy News post that suspected that Drake was the source for the Times’ Pulitzer- Leibowitz was the third government employee to ever be winning reports on warrantless wiretaps. According to the sentenced for leaking classifi ed information to the press. Times, former offi cials said that fi ve prosecutors and 25 FBI Samuel Morison served eight months of a two-year sentence agents were assigned to that investigation, which included a after being convicted in 1985 of disclosing spy satellite raid of Drake’s house in November 2007, as well as searches photos to Jane’s Defence Weekly and Larry Franklin served of the homes of three other security agency employees and a 10 months of house arrest after pleading guilty in 2005 to Congressional aide. disclosing classifi ed information in conversations with Pro- On March 31, 2011, The Baltimore Sun reported that Judge Israel lobbyists. The lobbyists, Steven Rosen and Keith Richard D. Bennett of the U.S. District Court for the District Weissman, were also indicted in the investigation for taking of Maryland said in a March 31 hearing that he would allow the information Franklin had shared with them and sharing it Gorman’s articles about NSA program and management with reporters, but the charges were dropped in May 2009. The problems to be admitted as evidence in Drake’s trial. However, Washington Post reported May 2, 2009 that U.S. attorney Dana the Sun reported that Bennett said he would not allow Gorman Boente said the government requested dismissal because of to be called as a witness at trial. According to the Sun, Bennett “the diminished likelihood the government will prevail” in light said forcing Gorman to testify could end in a “deep, dark hole,” of, among other things, a lower court ruling that the Espionage and he is not inclined to jail reporters for refusing to reveal Act required the government to show that the men spread sources. Drake’s trial is scheduled to begin June 13, 2011. the information with the intent to hurt the United States. Regardless of the ultimate outcome of the cases against Media organizations and free press advocates criticized the Sterling, Manning, Kim, or Drake, the litigation is likely to prosecution of Rosen and Weissman, who were not government continue to help expand an area of law that remained relatively employees, arguing that it was one step away from prosecuting untouched for decades. As the Obama administration moves journalists under the Espionage Act for engaging in everyday forward with the prosecutions, questions about how World Washington newsgathering practices—talking to sources and War I-era anti-spying laws apply to a variety of contemporary passing along information. (For more on the case, see “Judge news media practices and technology are likely to arise, forcing Rules Classifi ed Evidence in AIPAC trial Cannot be Kept Secret lawmakers, judges, journalists, and citizens to contemplate from Press and Public” in the Spring 2007 issue of the Silha the benefi ts of and challenges to access to information in a Bulletin.) democracy. – PATRICK FILE SILHA FELLOW AND BULLETIN EDITOR

8 Supreme Court Addresses FOIA Exemptions; Utah Legislators Pass, Repeal Law Limiting Openness n March 2011, two U.S. Supreme pleadings and correspondence” related principally on the meanings of “person” Court rulings reaffi rmed the to the FCC’s investigation. CompTel and “personal” in the statute. The presumptive disclosure of public describes itself on its website as a trade court accepted AT&T’s argument that information embodied in the organization representing and lobbying the plain text of “personal privacy” in federal Freedom of Information Congress on behalf of three of AT&T’s exemption 7(C) applied to corporations. ActI (FOIA) in cases that focused on chief competitors: Verizon, Qwest, and “‘[P]ersonal’ is the adjectival form of the proper judicial interpretation of the Sprint. AT&T opposed CompTel’s FOIA ‘person,’” the court wrote, and explained terms “personal” and “personnel” in the request. that another provision of FOIA, 5 U.S.C. statute’s exemptions. Meanwhile state The FCC issued a letter-ruling in § 551(2), “defi nes ‘person’ to include a legislators in response to AT&T’s opposition to corporation.” The FCC had also argued FFREEDOMREEDOM OOFF Utah passed, CompTel’s request. The ruling concluded that, based on previous Supreme Court IINFORMATIONNFORMATION then repealed, that some information AT&T sought to precedent, “personal” in exemption 7(C) a public keep from disclosure was protected by must be read in its “ordinary, everyday” records law that many said decreased FOIA exemption 4, which covers “trade sense; according to the FCC, the government openness. secrets and commercial or fi nancial ordinary, everyday meaning of “personal” information,” and some information meant only natural persons. The No ‘Personal Privacy’ Exemption related to individual AT&T employees appeals court rejected this argument, for Corporations was covered by exemption 6, which reasoning that the FCC “fail[ed] to take On March 1, 2011, a unanimous U.S. covers “personnel and … similar fi les the into account that ‘person’—the root Supreme Court ruled that corporations disclosure of which would constitute a from which the statutory word at issue are not covered by FOIA’s “personal clearly unwarranted invasion of personal is derived—is a defi ned term” in the privacy” exemption, codifi ed at 5 U.S.C. privacy.” However, the FCC ruled statute, and cited the Supreme Court § 552 (b)7(C), holding that AT&T could that AT&T as a corporation could not case Stenberg v. Carhart, 530 U.S. 914 not prevent a trade organization from invoke exemption 7(C), which applies (2000), for the proposition that “if … a acquiring internal company records to “records or information compiled for statute includes an explicit defi nition, that the Federal Communications law enforcement purposes, but only to we must follow that defi nition, even Commission (FCC) gathered during an the extent that the production of such if it varies from that term’s ordinary investigation of AT&T’s operations. FCC law enforcement records or information meaning.” AT&T Inc. v. FCC, 582 F.3d v. AT&T, 131 S. Ct. 1177 (March 1, 2011) … could reasonably be expected to 490 (3rd Cir. 2009) The facts giving rise to the case constitute an unwarranted invasion of The 3rd Circuit panel also rejected the began in 2004, when AT&T voluntarily personal privacy.” The FCC ruled that FCC’s argument that because exemption disclosed to the FCC that it might any information that AT&T sought to 6, which also contains the term “personal have overbilled a Connecticut school keep secret under exemption 7(C) must privacy,” has not been held by courts district for telecommunications be disclosed to CompTel. to apply to corporations, neither can services it provided as part of an FCC- The FCC’s decision that the “personal “personal privacy,” as used in exemption administered program to enhance privacy” exemption did not apply to 7(C), apply to corporations. The court local schools’ and public libraries’ corporate entities was based on a string reasoned that simply because exemption access to telecommunications services of FCC administrative law precedents, 6 as a whole has not been held to apply called E-Rate. The FCC launched an as well as several U.S. circuit court to corporations, “it does not follow that investigation after AT&T reported the and Supreme Court rulings. The FCC’s each and every component phrase in possible error, during which the FCC letter also said that exemption 7(C) was that exemption, taken on its own, collected invoices, emails containing only intended to cover natural persons, limits Exemption 6 to individuals. It information about AT&T’s pricing and not corporations. According to the 3rd means only that some language in that billing structures, and memoranda about Circuit U.S. Court of Appeals, which exemption does so.” whether AT&T employees violated heard the case on appeal and reversed The FCC appealed the 3rd Circuit’s company policies. Ultimately, AT&T and the FCC’s letter-ruling, the FCC asserted ruling to the Supreme Court, which the FCC settled the matter without AT&T that the exemption’s purpose was to reversed, concluding that exemption conceding liability. The company agreed “protect key players in an investigation— 7(C)’s “personal privacy” language could to pay the government $500,000 and targets, witnesses, and law enforcement not be applied to corporations. agreed to implement new procedures to offi cers—from the ‘literal embarrassment Chief Justice John Roberts, writing ensure compliance with E-Rate’s billing and danger’ that an individual might for the unanimous court, explained requirements. suffer, rather than from the ‘more that “adjectives typically refl ect the Several months after AT&T and the abstract impact’ that a corporation might meaning of corresponding nouns, but FCC reached their agreement, a trade suffer.” not always. Sometimes they acquire organization, CompTel, submitted a In ruling that 7(C) applied to AT&T as distinct meanings of their own.” For request under FOIA to the FCC for “all a corporation, the 3rd Circuit panel relied Open Gov’t, continued on page 10 9 Open Gov’t, continued from page 9 court based its ruling on a theory that Department of the Air Force v. Rose, 425 example, “[t]he noun ‘crab’ refers Foster’s family members had a privacy U.S. 352 (1976). In Rose, the court held variously to a crustacean and a type right in the government withholding that exemption 2 targets records about of apple, while the related adjective the photos that outweighed the public employee relations or human resources ‘crabbed’ can refer to handwriting that interest in their being released. Nat’l matters, such as “the use of parking is diffi cult to read … and while ‘crank’ Archives and Records Admin. v. Favish, facilities or regulations of lunch hours, is ‘a part of an axis bent at right angles,’ 541 U.S. 157 (2004) statements of policy as to sick leave ‘cranky’ can mean ‘given to fretful The Silha Center fi led an amicus and the like.” In Rose, the court found fussiness.’” Roberts wrote that although brief in support of the records requestor, that “the general thrust” of exemption “person” is defi ned in FOIA, “personal” attorney Allan Favish. See “Citing Family 2 “is simply to relieve agencies of the is not, and those two words can have Members’ Privacy, Supreme Court burden of assembling and maintaining very different meanings. According to Allows Government to Withhold Foster [such information] for public inspection.” Roberts, “‘Personal’ ordinarily refers Photos,” in the Spring 2004 issue of the However, as Kagan wrote in Milner, the to individuals. We do not usually speak Silha Bulletin and “The Silha Center court also noted a potential “caveat”: of personal characteristics, personal Files Amicus Brief With the United its limited interpretation of exemption effects, personal correspondence, 2 may apply only personal infl uence, or personal tragedy “ The protection in FOIA against to the extent that as referring to corporations or other disclosure … on the ground that it “the situation is not one where artifi cial entities.” would constitute an unwarranted Roberts also noted that when disclosure may risk conducting statutory interpretation, invasion of personal privacy does not circumvention of courts “construe language in light of the extend to corporations. We trust that agency regulation.” terms surrounding it,” and explained that AT&T will not take it personally.” Milner v. “Exemption 7(C) refers not just to the Department of the word ‘personal,’ but to the term ‘personal Navy, 131 S.Ct. 1259 — Chief Justice John Roberts privacy,’” concluding that “AT&T’s effort (March 7, 2011) U.S. Supreme Court to attribute a special legal meaning Kagan wrote to the word ‘personal’” was “wholly that “[i]n Crooker unpersuasive.” States Supreme Court, Comments with v. Bureau of Alcohol, Tobacco & Roberts also addressed exemption 6 the Council of Europe, And Department Firearms, 670 F.2d 1051 (1981), the and its use of “personal privacy,” fi nding of Homeland Security,” in the Summer D.C. Circuit converted this caveat that, contrary to the 3rd Circuit’s fi nding, 2003 issue of the Silha Bulletin. Brief into a new defi nition of Exemption 2’s “the meaning of ‘personal privacy’ in for Respondent Allan J. Favish as Amici scope.” In Crooker, the D.C. Circuit Exemption 7(C) is further clarifi ed by Curiae Supporting Respondent, Nat’l Court found that exemption 2 covered the rest of the statute.” Roberts wrote of Archives and Records Admin. v. Favish, any “predominantly internal” materials exemption 6’s use of “personal privacy” 541 U.S. 157 (2004) (No. 02-954) whose disclosure would “signifi cantly that “not only did Congress choose the risk circumvention of agency regulations same term in drafting Exemption 7(C), Military Maps are not ‘Internal or statutes.” Kagan explained that, over it also used the term in a nearly identical Personnel Rules and Practices of an the years, a new lexicon developed: manner.” Agency’ under FOIA some courts following the Crooker Roberts concluded his opinion with a On March 7, 2011, less than a week reasoning referred to records about tongue-in-cheek joke: “The protection in after handing down its decision in AT&T human resources as “Low 2” exemptions FOIA against disclosure … on the ground v. FCC, the Supreme Court decided to FOIA and referred to records the that it would constitute an unwarranted Milner v. Department of the Navy, in disclosure of which would risk evasion invasion of personal privacy does not which it held that FOIA’s exemption 2, of laws as “High 2” exemptions. extend to corporations. We trust that which prohibits disclosure of documents Milner directly addressed the AT&T will not take it personally.” “related solely to the internal personnel distinction lower courts had developed In a March 3 press release posted on rules and practices of an agency,” did between “High 2” and “Low 2” its website, the FCC said that the ruling not apply to naval maps that showed exemptions. The case concerned the “supports the Commission’s commitment what might happen if a weapons cache, Navy’s Indian Island Naval Magazine, to increased transparency and openness located near a populated area, exploded. located at Puget Sound, Wash., which in government by giving this FOIA Justice Elena Kagan, writing for stored heavy munitions and explosives. exemption its natural and more limited the eight-member majority, said that The Navy used data, called Explosive reading, hence refusing to expand the the court took the case to resolve a Safety Quantity Distance (ESQD), to universe of records that may be withheld split in authority among the federal estimate the potential effects of an from the public.” appeals courts regarding the proper accidental explosion of weaponry at However, in 2004, the court had interpretation of the language of Indian Island. The ESQD data was interpreted the personal privacy exemption 2. The circuit split, Kagan translated onto topographical maps, exemption expansively to cover the wrote, arose from case law that showing the degree of damage to autopsy photos of Vincent Foster. The began with the Supreme Court case surrounding areas that might result from 10 a hypothetical explosion. The lawsuit from Exemption 2’s text.” Kagan wrote “one thing is clear: The 1986 amendment arose out of 2003 and 2004 FOIA requests that the “High 2” test articulated in does not ratify, approve, or otherwise to the Navy by Glen Milner, a resident Crooker “ignores the plain meaning of signal agreement with Crooker’s of Puget Sound, for the ESQD maps. the adjective ‘personnel,’ and adopts a interpretation of Exemption 2.” The Navy denied Milner’s request, citing circumvention requirement with no basis Although the court struck down exemption 2, and Milner sued to compel or referent in Exemption 2’s language. the broad “High 2” interpretation of the maps’ disclosure. Indeed, the only way to arrive at High exemption 2, Kagan wrote that the court The district court and the 9th Circuit 2 is by taking a red pen to the statute “recognize[d] the strength of the Navy’s U.S. Court of Appeals held that the Navy …. Because this is so, High 2 is better interest in protecting the ESQD data and could withhold the ESQD maps under labeled ‘Non 2’ (and Low 2 … just 2).” maps and other similar information,” a “High 2” interpretation of exemption Kagan also wrote that FOIA’s echoing the 9th Circuit’s concerns that 2. Disclosing the maps, the 9th Circuit legislative purpose does not support “disclosure of this information could wrote, “would risk circumvention of the lower courts’ recognition of the “High be used to ‘wrea[k] havoc’ and ‘make law” because if a terrorist group were to 2” interpretation. Kagan wrote that catastrophe more likely.’” The court obtain the ESQD maps through a FOIA observed that other request, it could use the information “By no stretch of imagination do [the means exist to to attack the “most damaging target.” protect sensitive Milner v. Department of the Navy, 575 ESQD maps] relate to ‘personnel rules information under F.3d 959 (2009) and practices,’ as that term is most FOIA, including The Supreme Court reversed, fi nding naturally understood.” exemption 1, that “Exemption 2, as we have construed which applies to it, does not reach the ESQD information — Justice Elena Kagan “properly classifi ed” at issue here. … By no stretch of U.S. Supreme Court information, and imagination do [the ESQD maps] relate exemption 3, which to ‘personnel rules and practices,’ as that applies to “matters term is most naturally understood. They the court has repeatedly held that that are … specifi cally exempted from concern the physical rules governing FOIA’s goal is “broad disclosure,” disclosure by statute (other than section explosives, not the workplace rules and that FOIA exemptions are to be 552b of this title).” The Navy can seek governing sailors; they address the construed narrowly. Congress’ purpose to withhold the ESQD data and maps handling of dangerous materials, not in enacting FOIA, she wrote, was to under those exemptions, or seek help the treatment of employees. The Navy encourage disclosure of information, from Congress to do so in the interest of therefore may not use Exemption 2, and that purpose would be ill-served by national security, Kagan concluded. interpreted in accord with its plain “construing Exemption 2 to authorize Justice Stephen Breyer dissented, meaning to cover human resources expansive withholding.” writing that although he “recognize[d] matters, to prevent disclosure of the In support of a “High 2” interpretation, that there is reasonable ground for requested maps and data.” the Navy also offered a House report, disagreement” over whether “High 2” Kagan’s two-pronged rationale was issued in 1966 when FOIA was being should continue to exist as a way to based both on a statutory interpretation drafted, and a 1986 FOIA amendment interpret exemption 2, in reality, the of the meaning of “personnel” that did that included “circumvention of the law” majority of federal courts over the not encompass as much information language in exemption 7, but Kagan years since Crooker had embraced and as the government argued it should, as rebuffed these. Kagan wrote that in Rose, relied on the “High 2/Low 2” distinction. well as an interpretation of the intent of the high court had adopted a competing Breyer wrote that the Supreme Court’s FOIA and exemption 2 that undermined 1966 Senate report that favored the own precedents held that when lower any justifi cation for recognizing “High narrower interpretation of “personnel,” courts rely on a commonly accepted 2” exemptions. “When used as an saying that the 1986 amendment to interpretation of statutory language, adjective,” Kagan wrote, “[personnel] exemption 7 did not support a broad the court should be cautious before refers to human resource matters … in interpretation of exemption 2. If reversing that trend. its common parlance, [it] means ‘the Congress supported the broad Crooker Justice Kagan and the majority selection, placement and training of interpretation of exemption 2, Kagan found Breyer’s argument unpersuasive. employees and … the formulation of wrote, it would have either amended Breyer’s concern, Kagan wrote, “would policies, procedures, and relations with exemption 2 “specifi cally to ratify be immaterial even if true, because we employees or their representatives.” Crooker” or “left the statute alone (on have no warrant to ignore clear statutory Kagan explained that “Exemption 2 uses the theory that Crooker would do the language on the ground that other ‘personnel’ in the exact same way,” and necessary work).” courts have done so. And in any event, that therefore “the records that qualify “The decision instead to amend it is not true.” Kagan wrote that, prior for withholding [under exemption 2] … Exemption 7(E) suggests that Congress to Crooker, three circuits adopted the are what now commonly fall within the approved the circumvention standard narrow reading of exemption 2 that the Low 2 exemption.” Kagan argued that only as to law enforcement materials, Court favored in Milner, “and they have “the Crooker interpretation … suffers and not as to the wider set of records not changed their minds.” Kagan wrote from a patent fl aw: It is disconnected High 2 covers,” Kagan wrote, concluding, Open Gov’t, continued on page 14 11 Supreme Court Ruling Protects Funeral Picketers

uoting from many of the the other three claims. A federal judge court ruled that the “inappropriate or U.S. Supreme Court’s reduced those damages to $5 million in controversial character of a statement most important decisions October 2007. (For more on the district is irrelevant to the question whether it protecting freedom of court case, see “U.S. District Court Rules deals with a matter of public concern.” speech, Chief Justice John against Funeral Protesters” in the Winter Roberts concluded that “the content of QRoberts wrote in a March 2, 2011 ruling 2008 issue of the Silha Bulletin.) In 2009 Westboro’s signs plainly relates to broad that the First Amendment protects the the 4th Circuit U.S. Court of Appeals issues of interest to society at large, “hurtful” picketing of military funerals by reversed the lower court, holding that rather than matters of purely private the Westboro (Kan.) Baptist Church. the church’s “distasteful” picket signs concern.” “As a Nation we have chosen … to were protected by the First Amendment Snyder argued that even if the protect even hurtful speech on public because they involved matters of picketers’ speech addressed issues of issues to ensure that we do not stifl e public concern and could not be read public concern, they should be subject public debate,” Roberts wrote, on behalf as “asserting actual and objectively to a lower First Amendment standard of an 8 to 1 majority. “That choice verifi able facts about the father or his because they sought to exploit his requires that we shield Westboro from son.” Snyder v. Phelps, 580 F.3d 206 (4th son’s funeral “as a platform to bring tort liability for Cir. 2009) their message to a broader audience,” FREEDOM OF its picketing in The U.S. Supreme Court affi rmed the intentionally infl icting emotional distress SPEECH this case.” Justice 4th Circuit ruling for two central reasons: on the family, and because they aimed Stephen Breyer the church’s speech addressed matters their message at a “captive audience”— wrote a concurrence and Justice Samuel of public concern, and it occurred in funeral attendees—intruding on Snyder’s Alito dissented. Snyder v. Phelps, 131 S. a public place. Although the church’s right to expect seclusion in burying his Ct. 1207 (March 2, 2011) messages “may fall short of refi ned social son. The case arose in 2006 after the or political commentary,” Roberts wrote, Roberts observed that “Westboro church picketed the Westminster, Md. “the issues they highlight—the political conducted its picketing peacefully … at a funeral of Marine Lance Cpl. Matthew and moral conduct of the United States public place adjacent to a public street,” Snyder, who was killed in action in Iraq. and its citizens, the fate of our Nation, a space which “occupies a special The church, which was founded by homosexuality in the military, and position in terms of First Amendment the Rev. Fred Phelps in 1955, believes scandals involving the Catholic clergy— protection,” according to the 1983 case that God hates the United States for its are matters of public import.” Quoting United States v. Grace. Furthermore, tolerance of homosexuality, particularly Justice William Brennan’s famous Roberts wrote, “Westboro alerted local in America’s military, and the death of majority opinion in the landmark 1964 authorities to its funeral protest and fully soldiers is punishment for that tolerance. case New York Times Co. v. Sullivan, complied with police guidance on where Roberts wrote that members of the as well as the 1964 case Garrison v. the picketing could be staged,” 1,000 feet church have publicized their message by Louisiana and 1983 case Connick v. from the church and out of the sight of picketing nearly 600 funerals over the Myers, Roberts wrote that “The First funeral attendees. “The protest was not past 20 years, many of which have been Amendment refl ects a profound national unruly; there was no shouting, profanity, military funerals. Westboro picketers commitment to the principle that debate or violence,” Roberts wrote. “Simply put, commonly carry signs with messages like on public issues should be uninhibited, the church members had the right to be “Thank God for Dead Soldiers,” “America robust, and wide-open … because speech where they were.” is Doomed,” and “God Hates Fags.” concerning public affairs is more than Roberts also observed that the Snyder’s father, Albert Snyder, sued self-expression; it is the essence of self- Maryland jury ruled that Westboro’s the church after seven of its members— government.” Therefore, Roberts said, picketing was suffi ciently “outrageous” Fred Phelps, two of his daughters, and “speech on public issues occupies the to support Snyder’s claim of intentional four of his grandchildren—picketed near highest rung of the hierarchy of First infl iction of emotional distress. Quoting Matthew Snyder’s funeral and posted an Amendment values, and is entitled to the 1988 case Hustler Magazine, Inc. Internet message disparaging Albert and special protection.” v. Falwell, however, Roberts observed Julie Snyder as parents and Catholics. Roberts observed that the court that “outrageousness … is a highly The original suit, fi led in federal district has defi ned speech addressing matters malleable standard with an inherent court in Maryland, included fi ve state of public concern as that which “can subjectiveness about it which would tort law claims: defamation, publicity be fairly considered as relating to any allow a jury to impose liability on the given to private life, intentional infl iction matter of political, social, or other basis of the jurors’ tastes or views, or of emotional distress, intrusion upon concern to the community … or when perhaps on the basis of their dislike of seclusion, and civil conspiracy. The it is a subject of legitimate news a particular expression,” adding, “what district court granted summary judgment interest; that is, a subject of general Westboro said, in the whole context to the church on the defamation and interest and of value and concern to the of how and where it chose to say it, is publicity claims, but a jury awarded public.” Moreover, Roberts wrote, in the entitled to special protection under the Snyder $10.9 million in damages on 1987 case Rankin v. McPherson, the First Amendment, and that protection

12 cannot be overcome by a jury fi nding of bereaved relatives is particularly federal law, the Respect for America’s that the picketing was outrageous.” The vulnerable. Exploitation of a funeral for Fallen Heroes Act, codifi ed at 18 U.S.C. picketers’ speech, Roberts concluded, the purpose of attracting public attention § 67 and 38 U.S.C. § 24, is applicable only “cannot be restricted simply because intrudes upon their … grief, and may to national cemeteries. it is upsetting or arouses contempt,” permanently stain their memories of the According to an analysis by First quoting the 1989 decision in Texas v. fi nal moments before a loved one is laid Amendment Center Scholar David Johnson: “If there is a bedrock principle to rest.” (For more on the Favish case, Hudson, courts in Kentucky, Ohio and underlying the First Amendment, it is see “Citing Family Members’ Privacy, Missouri have enjoined or struck down that the government may not prohibit Supreme Court Allows Government to all or parts of those states’ funeral the expression of an idea simply because Withhold Foster Photos,” in the Spring protest laws, usually because they are society fi nds the idea itself offensive or 2004 issue of the Silha Bulletin. The Silha unconstitutionally vague or overly disagreeable.” Center fi led an amicus brief in support broad and therefore ban constitutionally The court also dismissed Snyder’s of California attorney Allan Favish in protected speech. The Westboro Baptist “captive audience” argument, observing that case. See “The Silha Center Files Church has been involved in several of that the picketers “stayed well away from Amicus Brief With the United States the suits challenging state laws. Hudson’s the memorial service. Snyder could see Supreme Court, Comments with the analysis is available online at http://www. no more than the tops of the signs when Council of Europe, And Department fi rstamendmentcenter.org/press/topic. driving to the funeral. And there is no aspx?topic=funeral_ indication that the picketing in any way “ As a Nation we have chosen … to protests. interfered with the funeral service itself.” First Amendment Justice Breyer concurred, protect even hurtful speech on public Center Legal emphasizing the majority’s narrow issues to ensure that we do not stifl e Correspondent Tony holding, arguing that “it does not hold or public debate. That choice requires Mauro wrote on imply that the State is always powerless that we shield Westboro from tort March 4 that experts to provide private individuals with on funeral protest necessary protection” from invasion liability for its picketing in this case.” laws expect that of personal privacy or infl iction of a second wave of emotional distress. — Chief Justice John Roberts litigation challenging In a dissent, Justice Alito said that U.S. Supreme Court those statutes might “our profound national commitment to follow the Snyder v. free and open debate is not a license for of Homeland Security,” in the Summer Phelps decision, and may reach the U.S. the vicious verbal assault that occurred 2003 issue of the Silha Bulletin. Brief Supreme Court, despite the fact that the in this case.” Alito argued that the tort for Respondent Allan J. Favish as Amici court said that as long as the laws are of intentional infl iction of emotional Curiae Supporting Respondent, Nat’l “content-neutral” they are unlikely to distress is recognized by “most if not all Archives and Records Admin. v. Favish, raise constitutional problems. (For more jurisdictions” to protect “private persons 541 U.S. 157 (2004) (No. 02-954)). on the state and federal statutes banning at a time of intense emotional sensitivity Maryland’s funeral protest law was funeral protests, see “Church Group’s … [from] vicious verbal attacks that enacted in October 2006, almost four Protests Spawn Legislation Limiting make no contribution to public debate.” months after Snyder fi led his complaint Demonstrations” in the Winter 2006 issue Alito added, “When grave injury is with the federal district court there. The of the Silha Bulletin.) intentionally infl icted by means of an law, Md. Ann. Code § 10-205, is typical of Commentary on the case’s outcome attack like the one at issue here, the First other states’ statutes: it makes engaging refl ected the controversial nature of Amendment should not interfere with in specifi ed types of conduct and speech the church’s speech. Numerous March recovery.” at funeral processions a misdemeanor, 3 editorials in national newspapers Alito also noted, as did Roberts in the prohibits picketing targeted at a funeral supported the ruling. The New York majority, that the federal government within 100 feet of the burial ceremony Times agreed that the First Amendment and 43 states, including Maryland, (other states’ laws extend this “buffer extends to “even hurtful speech;” the have enacted statutes that ban or limit zone” up to 1,000 feet), and prohibits Los Angeles Times said it protects “the picketing at funerals. Alito wrote that speech directed to a person attending right to be vile.” The Wall Street Journal rather than eliminate the need for a a funeral that is likely to incite or observed that “even jerks are protected civil remedy like intentional infl iction produce an imminent breach of the by the First Amendment,” and The of emotional distress, however, “[the peace. In a footnote, Roberts observed Washington Post said that “the beauty statutes’] enactment dramatically that Westboro’s picketing would have of the First Amendment is often most illustrates the fundamental point that complied with the Maryland prohibition vibrantly expressed under the ugliest of funerals are unique events at which on picketing within 100 feet of a funeral circumstances.” special protection against emotional service or procession. The editorials refl ected many assaults is in order.” Quoting the 2004 Snyder’s suit did not allege a news organizations’ argument that a case National Archives and Records violation of the federal funeral protest ruling against the church would have Administration v. Favish, Alito said, law because his son was interned at a threatened to silence public debate on “at funerals, the emotional well-being Maryland state veterans cemetery. The Snyder v. Phelps, continued on page 14 13 Snyder v. Phelps, continued from page 13 delivered the 2007 Silha Lecture. into a suicide pact.” Farmer wrote that controversial topics that might offend Other commentators struggled with all Constitutional rights are “subject to audience members. The Reporters the result. Bob Schieffer, host of CBS reasonable limits, the operative word Committee for Freedom of the Press News’ “Face the Nation,” wrote that here being ‘reasonable’ and involving joined with 21 news organizations in “when there are those among us so the exercise of good judgment. The high fi ling an amicus brief in support of the selfi sh and cruel they are willing to use court — with the notable exception of Westboro Baptist Church, in which one of our most cherished freedoms to Justice Samuel Alito — failed that test in Robert Corn-Revere, an attorney with intrude on the grief of parents who have the Snyder case.” Davis Wright Tremaine in Washington, lost a child just to promote their cause, Ultimately, however, Roberts wrote D.C. wrote that “without a doubt, the we must do everything legally possible to that the First Amendment required a church’s message of intolerance is deeply deter them.” John Farmer, a lawyer and ruling in favor of the church in spite of offensive to many, and especially so to columnist for the Newark, N. J. Star- its odious speech. “Speech is powerful,” gay Americans, Catholics, veterans, and Ledger, compared Justice Alito’s dissent Roberts wrote. “It can stir people to the families of those who sacrifi ced their to Justice Robert Jackson’s 1949 dissent action, move them to tears of both joy lives defending the United States. But in Terminiello v. Chicago in which and sorrow, and—as it did here—infl ict to silence a fringe messenger because Jackson stated, “There is a danger that, if great pain. On the facts before us, we of the distastefulness of the message is the court does not temper its doctrinaire cannot react to that pain by punishing antithetical to the First Amendment’s logic with a little practical wisdom, it will the speaker.” convert the constitutional Bill of Rights – PATRICK FILE most basic precepts.” Corn-Revere SILHA FELLOW AND BULLETIN EDITOR

Open Gov’t, continued from page 11 state’s governor, who signed the bill into lawmakers who opposed HB 477 spoke that, outside the D.C. Circuit, the Crooker law on March 8. at the rally. Rep. Joel Briscoe (D-Salt decision had been cited only fi ve times The repealed law, HB 477, included Lake City) held up his state-issued cell in 30 years of federal appellate decisions. provisions that removed some forms phone to the assembled crowd and said Kagan also wrote that three circuits of electronic media—such as emails “You guys are paying for this. You’re had adopted a “High 2” interpretation, and voicemails—from the defi nition more than welcome to read it.” On one reserved judgment, and three had of “public record,” meaning that they March 15, the Society of Professional not considered the matter. “The result would not have been subject to public Journalists (SPJ) awarded Utah its is a 4 to 3 split among the Circuits. We disclosure under the state’s open records annual “Black Hole” award, a tongue- will not fl out all usual rules of statutory law. The law also increased fees that in-cheek way to shame governments interpretation to take the side of the bare the state government could charge and offi cials that, in SPJ’s view, have majority,” Kagan wrote. citizens requesting public records, and egregiously violated principles of David Mann, Milner’s attorney, told shifted the legal standard governing the openness in government. the Reporters Committee for Freedom conditions under which the state must On March 21 Gov. Herbert called the of the Press for a March 7 story that disclose public records, making it easier legislature back into special session for “[w]e went into this with the goal of for the government to prevent disclosure. the sole purpose of repealing HB 477. dismantling the High 2 exemption. I Before HB 477 was passed, the state was According to a March 21 press release was never a believer that High 2 ever required to disclose information “if the announcing the special session, Herbert existed.” In a March 21 “roundup” on its interests favoring access outweigh[ed] said he had considered a veto following website, law fi rm Sidley & Austin noted the interests favoring restriction of the initial passage of the bill, but citing that “[s]ignifi cantly, Milner reaffi rms the access.” Utah Code Ann. § 63G-2-401(6). “veto-proof margins,” opted against it. understanding that FOIA Exemptions Under HB 477, the burden of proof to Herbert said his decision to call the are to be construed narrowly in order to establish that the interests of disclosure legislature back in special session was a promote the congressional objective of outweigh the interests of nondisclosure result of the “loss of public confi dence” disclosure.” was on the requestor. HB 477 required that had occurred in the time since the the requestor of the document to bill’s passage. The law was repealed Utah Legislature Backpedals on establish “by a preponderance of the in its entirety on March 27. The AP Anti-Transparency Law evidence.” reported that Herbert said he hoped the On March 25, 2011, the Utah Utah citizens and First Amendment repeal would “restore public confi dence” legislature voted to repeal a new public advocates criticized the law after its in Utah and its legislative process. records law it had enacted only two passage. About a hundred citizens When the Bulletin went to press, new weeks before. The move was preceded protested at Gov. Gary Herbert’s March 8 amendments to the state’s open records by calls for the law’s repeal by open bill signing, according to a March 8 story law had not been passed. government advocates and even the in Salt Lake City’s Deseret News. Several – GEOFF PIPOLY SILHA RESEARCH ASSISTANT

14 Prank Phone Call, Hidden Camera Spur Ethical Controversies for News Media Wisconsin Governor Mark Holden confi rmed that the to be an alternative news site with recording The Beast posted online was heavily slanted views that are neither Speaks to Fake Benefactor, not David Koch, calling the prank a fair nor objective, the fact remains that NPR Executives Speak to “fraudulent act.” this interview was underhanded and Fake Charity Walker spent 20 minutes speaking unethical.” The SPJ advised “credible with Murphy, believing he was Koch. In news organizations” to “be cautious eceptive journalistic his blog post, Murphy expressed surprise about how they report this already practices punctuated two at the ease with which he was able to set widely reported story,” and to “realize political controversies in up a phone conversation with Walker via that the information was obtained in a early 2011, embarrassing his chief of staff. grossly inappropriate manner according powerful public fi gures In the conversation, Murphy to longstanding tenets of journalism.” Dand drawing additional media coverage encourages Walker to discuss his plans Specifi cally, the SPJ cited principles of and condemnation from journalists and for resolving the political dispute the SPJ Code of Ethics that journalists commentators. surrounding the bill, which included “be honest, fair and courageous in large protests at the Wisconsin state gathering, reporting and interpreting Blogger Fools Wisconsin Governor capitol and during which 14 Democratic news” while avoiding “undercover or with Prank Call senators left the state in order to stall a other surreptitious methods of gathering On February 23, 2011 a Buffalo, vote. When Murphy suggested Walker information except when traditional N.Y.-based blog, The Beast, posted should place troublemakers amid the open methods will not yield information a recording of a phone conversation crowd of protesters to stir support for vital to the public.” between its editor, posing as a powerful ending the protests, Walker responded SPJ President Hagit Limor said conservative fi nancier, that he had “thought about that” but “Murphy should be ashamed not only MEDIA and embattled feared a backlash. “My only fear is if of his actions but of besmirching our ETHICS Wisconsin Gov. Scott there’s a ruckus caused that would profession by acting so shamelessly,” Walker. Media outlets scare the public into thinking maybe the calling the actions “a new low” for reported on Walker’s comments, which governor has to settle to avoid all these anyone claiming to be a journalist, the primarily focused on his political strategy problems,” Walker said. press release reported. for passing a controversial budget bill Walker also said that his offi ce had that would strip state labor unions of considered inviting the Democrats back NPR Executives Resign after Hidden benefi ts and collective bargaining rights. to the state on the premise of having an Camera Sting But the deceptive nature of the prank informal conversation, at which point the On March 8, 2011, James O’Keefe, a was also a subject for debate among Republicans could declare that they had conservative political activist known for journalists and commentators. quorum and vote on the bill. “Legally, we producing controversial hidden camera According to The Beast on February believe, once they’ve gone into session, videos, released a video on his website, 23, editor Ian Murphy called Walker’s they don’t physically have to be there,” Project Veritas, that led to the resignation offi ce on February 22 via Skype, an Walker said. “If they’re actually in session of two top offi cials at National Public Internet-based telephone system, posing for that day, and they take a recess, the Radio (NPR) and energized an ongoing as infl uential conservative activist David 19 Senate Republicans could then go into legislative effort to cut off federal Koch. Koch is co-owner, with his brother action.” The Journal Sentinel reported funding for public broadcasting. The Charles, of Koch Industries, an energy that a state senator had called the plan video, which some commentators called and consumer products company. The to “trick” Democrats disturbing, but heavily and misleadingly edited, showed Milwaukee Journal Sentinel reported Walker disputed the characterization Ron Schiller, senior vice president on February 23 that Koch is also a of the plan as a trick. In a February 23 of NPR and president of the NPR chief fi nancial backer of Americans for press conference Walker said he was foundation, making negative comments Prosperity, which helped stage “Tea “not going to allow one crank phone call about the Republican party and members Party” rallies in Wisconsin and other to be a distraction,” the Journal Sentinel of the conservative “Tea Party” political states in 2009 and 2010, and that Koch reported. movement while also saying that NPR Industries’ political action committee While Walker defended and would be “better off in the long run contributed $43,000 to Walker’s fall 2010 downplayed the statements, Murphy without federal funding.” campaign. The Journal Sentinel further was scolded over his use of deception O’Keefe gained notoriety in September reported that Americans for Prosperity to get them on the record. The Society 2009 for hidden camera videos depicting announced it was spending $342,200 of Professional Journalists (SPJ) Ethics employees of the nonprofi t group on advertising to persuade Wisconsin Committee “strongly condemn[ed] the Association of Community Organizations residents to back Walker’s plan actions” of Murphy and The Beast. In for Reform Now (ACORN) advising a According to the Journal Sentinel, a February 23 press release, the SPJ couple posing as a pimp and prostitute. Koch Industries senior vice president said, “though the Buffalo Beast purports Deception, continued on page 16 15 Deception, continued from page 15 is an Egypt-based religious and political make its donation anonymously in order The controversy that followed the group that some have accused of to shield it from government scrutiny. release of the video resulted in the being involved in terrorism. The NPR In a statement following the release of elimination of the organization’s federal executives and fake representatives the video on March 8, NPR Senior Vice funding and several lawsuits against of MEAC met to discuss a possible $5 President of Marketing Dana Davis O’Keefe and fellow fi lmmaker Hannah million donation to NPR. Rehm said, “The fraudulent organization Giles. In California, the state attorney An 11-minute version of the video was represented in this video repeatedly general launched an investigation into released on the Project Veritas website pressed us to accept a $5 million check, ACORN, concluding that the group on March 8 highlighting a series of with no strings attached, which we was poorly managed but committed no controversial quotes from Schiller. Later repeatedly refused to accept.” She said crime. The Los Angeles Times reported that day, Project Veritas released a two- NPR was “appalled by the comments April 2, 2010 that then-state attorney hour version of the video it described as made by Ron Schiller … which are general Jerry Brown said “the evidence “largely the raw video and audio of the contrary to what NPR stands for.” illustrates that things are not always as entire conversation.” Both videos are On March 10, many of NPR’s on-air partisan zealots portray them through available at www.theprojectveritas.com. personalities also denounced Schiller’s highly selective editing of reality. In the shorter version, Schiller statements, calling them “offensive.” Sometimes a fuller truth is found on appears to laughingly brush off the Twenty-three individuals, including the cutting-room fl oor.” (For more on revelation that MEAC was founded by many of public radio’s best-known the ACORN video and its fallout, see members of the Muslim Brotherhood names, signed an “open letter” that “ACORN Videos Provoke Media Debate, and that one of its goals is to “spread said they “were appalled” at Schiller’s Trigger Lawsuit” in the Fall 2009 issue of the acceptance of Sharia across the comments because they “violated the the Silha Bulletin.) world.” Through the course of the lunch basic principles by which we live and In January 2010, O’Keefe and three the two men pretending to represent work: accuracy and open-mindedness, associates were arrested in New Orleans MEAC paint their organization as anti- fairness and respect.” The full text of the after allegedly trying to infi ltrate the Jewish and interested in using their letter, along with a list of its signatories, offi ce of Sen. Mary Landrieu (D-La.) donation to infl uence NPR programming, is available via the Poynter Institute’s in order to tamper with the offi ce’s while encouraging Schiller to share his Romenesko blog at http://www.poynter. phone system. According to an affi davit opinions on several political topics. The org/latest-news/romenesko/122867/ submitted by a Federal Bureau of video shows Schiller saying that the npr-hosts-journalists-appalled-by-ron- Investigation (FBI) agent assigned to Republican Party has been “hijacked” schillers-comments/. the case, two of the men entered the by the “xenophobic” Tea Party, whose The day after the video was released, offi ce dressed as telephone repairmen supporters are “seriously racist, racist March 9, NPR Chief Executive Offi cer and asked to have access to the offi ce people.” He also said that, in his opinion, Vivian Schiller (who is not related to phones, while O’Keefe recorded them there was an “anti-intellectual move Ron Schiller) also resigned. According using his cell phone. O’Keefe told Fox on the part of a signifi cant part of the to The New York Times on March 9, News commentator Sean Hannity in Republican party.” Dave Edwards, the chairman of NPR’s a Feb. 1, 2010 interview that he was The day the video was released, board of directors, said that Vivian investigating accusations that Landrieu’s Schiller announced that although he had Schiller offered to resign “if that was the offi ce had ignored phone calls from been scheduled to leave NPR for a job board’s will, and the board decided that constituents about the health care with nonprofi t, nonpartisan research and it was.” Edwards cited the “distraction” debate. The FBI reported in a May 26, policy organization the Aspen Institute of the hidden camera incident, as well 2010 press release that O’Keefe and the in the coming weeks, he and NPR had as the October 2010 fi ring of analyst others pled guilty to one count each of decided to make his resignation effective Juan Williams, as having “hindered entering federal property under false immediately. On March 9 The Wall Street Vivian Schiller’s ability to lead the pretenses. O’Keefe was ordered to Journal reported that Schiller had also organization going forward.” Williams, pay a $1,500 fi ne, serve 100 hours of decided not to take the position at the who also worked as an analyst for Fox community service, and was placed on Aspen Institute. The Journal reported News, said in an Oct. 18, 2010 broadcast three years’ probation. that the Institute said in a statement of “The O’Reilly Factor” that he felt According to the Project Veritas that “Ron Schiller has informed us that, uncomfortable on airplanes when he saw website, the hidden camera video of in light of the controversy surrounding fellow passengers dressed in “Muslim Ron Schiller and NPR senior director his recent statements, he does not feel garb.” NPR Ombudsman Alicia Shepard of institutional giving Betsy Liley was that it’s in the best interests of the Aspen wrote Oct. 21, 2010 that the fi ring was recorded on Feb. 22, 2011. It depicts the Institute for him to come work here.” “poorly handled.” In the Feb. 22, 2011 two NPR executives at a lunch with two The Washington Post reported hidden camera video, Ron Schiller said individuals from O’Keefe’s organization March 10 that NPR placed Liley on he was “proud” of NPR’s handling of the who posed as members of a fi ctional administrative leave in response to the Williams situation, because NPR stood group called the Muslim Education video as well as Project Veritas’ March for “non-racist, non-bigoted straight- Action Center (MEAC), which the video 10 release of a recorded follow-up phone forward telling of the news” and fi red identifi es as “a Muslim Brotherhood call made by one of its members to Liley, Williams because he “lost all credibility” Front Group.” The Muslim Brotherhood in which she suggested the group could after making the remarks. 16 Vivian Schiller told The New York part, but the raw video reveals that he is complimentary to conservatives and to Times that although she “disavowed” largely recounting the views expressed people of faith and Tea Party activists in Ron Schiller’s comments. “I’m the to him by two top Republicans, one a the same conversations.” CEO, and the buck stops here,” she former ambassador, who admitted to him Al Tompkins, a former broadcast said, adding that she was “hopeful that that they voted for Obama.” The Blaze journalist who works with the Poynter my departure from NPR will have the analysis said, however, that Schiller Institute journalism think tank, told intended effect of easing the defunding ultimately signaled his agreement with Folkenfl ik “I tell my children there pressure on public broadcasting.” the opinion that Tea Partiers are “racist” are two ways to lie. One is to tell me The New York Times reported March and “xenophobic.” The Blaze said, “the something that didn’t happen, and the 9 that some Republican lawmakers who larger context does not excuse his other is not to tell me something that consider NPR biased and want to cut its comments, or his judgment in sharing did happen. I think they employed both federal funding saw the video as further the account, but would a full context edit techniques in this.” support for their cause. A Republican have been more fair?”. Tompkins also found fault in the video effort to cut federal funding for public In the longer version of the video, failing to show Schiller telling the two broadcasting was started soon after Schiller amended his comment about fake philanthropists that donors cannot the Williams fi ring, the Times reported, NPR’s need for federal funding by expect to infl uence news coverage at and on March 17 the U.S. House of expressing concern that if it were cut NPR. At one point in the longer video Representatives passed a bill, H.R. 1076, Schiller said “there that would prohibit federal funding of “ I tell my children there are two ways is such a big fi rewall NPR and block local stations from using to lie. One is to tell me something that between funding and federal money to purchase programming reporting: reporters content. didn’t happen, and the other is not to will not be swayed The New York Times reported that the tell me something that did happen. I in any way, shape measure passed the House 228 to 192, think they employed both techniques or form.” Tompkins but it is unlikely to pass the Senate. The in this.” said, “the message Times reported that both Republican that he said most — Al Tompkins and Democratic senators have expressed often—I counted six Media Ethicist, Poynter Institute skepticism about cutting NPR funding times: He told these because of its popularity among their two people that he constituents. immediately, “we would have a lot had never met before that you cannot Meanwhile, several media outlets of stations go dark.” The Blaze also buy coverage. He says it over and over criticized the O’Keefe group for observed that in the fuller version of the and over again.” attempting to mislead viewers by video Schiller “explains the risk to local O’Keefe, in a March 13 appearance selectively editing the video. On March stations in more detail and why NPR is on the CNN program “Reliable Sources,” 10, The Blaze, a website operated by doing ‘everything we can to advocate for defended his practices. “Journalists Fox News commentator Glenn Beck, federal funding.’” have been doing this for a long time,” published a detailed analysis that Commentators considered what O’Keefe said. “It’s a form of investigative compared the shorter 11-minute video to lessons should be drawn from the reporting that you use to seek and fi nd the longer “raw” footage. For example, episode. Time magazine television the truth.” Calling the video “powerful” The Blaze observed that throughout critic James Poniewozik, writing at the and “honest,” he said, “the tape cuts to the longer video, the fake donors magazine’s blog Tuned In, wrote March the core of who these people are.” downplayed or obscured their supposed 13 that The Blaze’s coverage “doesn’t But Baker told Folkenfl ik that the connections to the Muslim Brotherhood, let … Ron Schiller off the hook. But it video misrepresented the two NPR making it unclear whether Schiller or shows O’Keefe edited the short version executives. “I think if you look at Liley actually thought they were meeting of his video to fi t his anti-NPR agenda.” two hours in total, you largely get an with a “front group” for the Muslim According to NPR media impression that these are pretty—they Brotherhood. The Blaze also said the correspondent David Folkenfl ik, seem to be fairly balanced people, trying shorter video failed to contextualize elements of the video were “taken out to do a fairly good job,” Baker said. Schiller’s negative comments about of context.” On March 14, Folkenfl ik Folkenfl ik also observed that some Republicans and conservatives by also appeared on the NPR program “Morning journalists expressed regret for reporting showing more complimentary ones: Edition,” and wrote a post on the NPR on the video without giving it greater Schiller said he “grew up Republican” website discussing the fi lm with Blaze scrutiny. Politico blogger Ben Smith, for and is “proud of that,” that he is a editor in chief Scott Baker and several example, wrote, “the damage is, again, fi scal conservative and favors a limited media ethicists and commentators. done; I regret having, even in what I government role in “personal lives” and Baker said, “there was certainly a lot thought was a cautious way, picked up “family lives.” there for conservatives and people the story.” Folkenfl ik reported that Dave Moreover, The Blaze analysis of faith and Tea Party activists to be Weigel, a political blogger for Slate, said, observed that “the edited video implies bothered about—but we felt like that “the speed at which the media operates Schiller is giving simply his own analysis wasn’t the whole story. There were a lot when a video comes out is a problem. I of the Tea Party,” which “he does … in of other things said that may have been Deception, continued on page 18 17 Courts, Police Beginning to Address Issues Raised by Citizens with Cameras echnology has allowed rights, the group may provide the video for their actions, and their supervisor more citizens to record to the arrestee for use in litigation, post was admonished for failing to supervise government offi cials— the video on its website to draw public them properly. especially police—doing attention to the matter, or both. The Journal-Constitution reported their jobs in public places. The incident that gave rise to the that following the incident, Kautz fi led ThisT change has moved questions February settlement occurred in April a complaint with the City of Atlanta in about whether wiretapping laws allow 2010, according to a Feb. 10, 2011 story lieu of a formal civil rights lawsuit, which recording to take place, and whether in The Atlanta Journal-Constitution. gave rise to the February settlement. the First Amendment protects it, to the While walking the streets of Atlanta’s The settlement authorizes the payment forefront of First Amendment advocates’ Little Five Points neighborhood, Marlon of $40,000 in damages to Kautz for the attention. Kautz, a Copwatch volunteer, noticed incident, which he said he will spend two police offi cers, Mark Taylor and on Copwatch’s continued operations. Atlanta Police and Watchdog Group Anthony Kirkman, in the process of The settlement also provides that the Reach Settlement Over Citizens arresting a suspect. According to Kautz, Atlanta police department will amend Filming Police shortly after he began fi lming the arrest its Standard Operating Procedures On Feb. 10, 2011, the City of Atlanta on his cell phone’s camera, Taylor and to “prohibit Atlanta police offi cers agreed to pay a Kirkman approached him and demanded from interfering in any way with a ACCESS settlement of $40,000 that he stop fi lming. Kautz refused, and citizen’s right to make video, audio, to a volunteer for the offi cers then removed his phone by or photographic recordings of police a citizen advocacy group, Copwatch force. “They grabbed me, put my hands activity, as long as such recording of East Atlanta, over an incident that behind my back and tried to forcefully does not physically interfere with the occurred when Atlanta police offi cers pry the phone out of my hands and performance of an offi cer’s duty.” damaged the volunteer’s cell phone after eventually they were able to,” Kautz said, Kautz praised the settlement for he used it to record the offi cers arresting according to a February 11 story on Fox prohibiting offi cers from obstructing a suspect. In addition to the fi nancial Five Atlanta’s website. citizens fi lming them unless the citizens settlement, the city agreed to implement In a March 25 interview with the “physically interfere” with police work. police procedures for handling similar Silha Bulletin, Kautz said that Kirkman “A lot of these policies [in other cities] incidents. confi scated his phone. Kautz said that are vague in terms of what constitutes On its website at http://www. when he called Kirkman the next day, ‘interference,’” he said. “Some policies copwatchoea.org/, Copwatch of East Kirkman told him that he would only say you’re interfering if you have a Atlanta describes itself as a community return the phone if Kautz provided him light on your camera that shines on the group of “civilians organized to protect with the password so that Kirkman could offi cers. The fact that this change to the … communities from police abuse.” delete the footage it contained, which Standard Operating Procedures manual When Copwatch members encounter a Kautz said he refused to do. Although the says ‘physical interference’ is strong police traffi c stop or an ongoing arrest, phone was eventually returned, Kautz language.” they record the event with handheld said that the video had been scrambled, The Atlanta city clerk’s offi ce told the video cameras. If the group believes rendering it unwatchable. According to Bulletin May 2 that city council approved that the recorded incident documents the Journal-Constitution, Taylor and the settlement and changes to police an abuse of the arrestee’s constitutional Kirkman received oral admonishments Cameras, continued on page 19

Deception, continued from page 17 a breather before jumping to any had expressed regret for uncritically mean, the rush to be the fi rst to report conclusions about the magnitude or contributing to the scandal, Meares on a video—and, let’s be brutally honest, repercussions or deeper meaning of this wrote, “We can only hope that, next the rush is to get traffi c and to get people morning’s news. From where might we time, the order in which this scandal and booked on [cable TV] shows to talk have learned such a lesson? From video others like it have unfolded—headlines about it—and that nature leads you to scandals past. Think ACORN and think and drama fi rst; reporting and vetting not do the rigor and fact-checking that Shirley Sherrod: job- and organization- later—is reversed. Given the pattern that you would do in other situations.” crippling scandals in which the media just repeated itself, we’re not optimistic.” blindly aided and abetted. Note too that Columbia Journalism Review – PATRICK FILE O’Keefe is a political point-scorer, and blogger Joel Meares wrote March 8, SILHA FELLOW AND BULLETIN EDITOR the day that the video was released, here he is scoring from a soft-target.” that although NPR executives should On March 15, after the full-blown – SARA CANNON take quick action to address the issue, scandal had cost Ron Schiller and Vivian SILHA CENTER STAFF “the rest of us should probably take Schiller their jobs and some journalists

18 Cameras, continued from page 18 Amendment advocates and media reasonable person would have known.” procedures on March 7, and they took corporations fi led an amicus brief Harlow v. Fitzgerald, 547 U.S. 800 (2009) effect April 7. supporting Glik. The coalition included The city also argued that there is no Meanwhile, Atlanta Police Department Harvard Law School’s Cyberlaw Clinic, “Supreme Court or First Circuit case Spokesman Carlos Campos told the the Citizen Media Law Project, Dow that clearly establishes Glik’s … First Journal-Constitution for its February Jones & Company, GateHouse Media, Amendment right to record police 10 story that the terms of the settlement Globe Newspaper Company, The offi cers carrying out their duties in a were already being implemented and that Massachusetts Newspaper Publishers public place.” Brief of Appellant John “commanders have made it clear that Association, Metro Corp., NBC Universal, Cunniffe, et al., Glik v. Cunniffe, et al., Atlanta police offi cers in the fi eld should New England Newspaper and Press No. 10-1764 (1st Cir. 2010) not interfere with a citizen’s right to fi lm Association, The New York Times, On the issue of whether Glik’s right to them while they work in public areas.” Newspapers of New England, the Online fi lm public offi cials in a public forum is “clearly established” First Circuit to Consider “ Commanders have made it clear that for purposes of Constitutional Right to Record Atlanta police offi cers in the fi eld the city’s claim of Public Offi cials in Public Places qualifi ed immunity, A coalition of First Amendment should not interfere with a citizen’s both sides’ briefs advocates and media corporations fi led right to fi lm them while they work in focused heavily on an amicus brief on behalf of a lawyer public areas.” the 1st Circuit U.S. who sued the city of Boston for violating Court of Appeals case of Iacobucci his First Amendment rights after police — Carlos Campos v. Boulter. In that arrested him for fi lming another citizen’s Atlanta Police Department Spokesman arrest. case, police arrested In October 2007, Simon Glik recorded a citizen for fi lming two Boston police offi cers arresting a News Association, and the Reporters proceedings of a public meeting who suspect on Boston Common, according Committee for Freedom of the Press. later sued under § 1983, alleging that to a Jan. 12, 2011 story in The Boston (Jane Kirtley, director of the Silha Center the arrest violated his First Amendment Globe. Glik believed that the offi cers and professor of media ethics and law at rights. The court held that Iacobucci used excessive force when they removed the University of Minnesota, is a member had a First Amendment right to record a plastic bag from the suspect’s mouth of the Citizen Media Law Project’s Board the meeting without government in the course of a drug arrest. Glik of Advisors.) interference. Iacobucci v. Boulter, 193 recorded the incident on his cell phone In his brief, Glik argued that a number F.3d 14 (1st Cir. 1999) camera, and was arrested and charged of U.S. Supreme Court cases recognize Glik argued in his brief that with violating Massachusetts’ wiretap “the right to record matters of public Iacobucci supports his position that statute, Mass. Gen. Laws ch. 272 §99. The interest.” Glik also argued that many he is constitutionally protected from statute’s preamble states that, because of lower court cases, applying the Supreme government interference in fi lming police the threat to personal privacy posed by Court’s case law, have upheld the right offi cers, and that because Iacobucci “modern electronic devices … the secret of citizens to videotape or photograph was decided “eight years before [Glik’s] use of such devices by private individuals “public offi cials in general or police arrest, [it] gave fair warning to [the city] must be prohibited.” The statute makes offi cers in particular.” Glik’s brief noted that [police offi cers] could not arrest it illegal to “willful[ly] intercept[]” any that in cases where recording occurs in [Glik] for videotaping them on Boston “oral or wire communication” without “traditional public fora” such as Boston Common,” and that therefore Glik’s right the consent of both parties to the Common, “the government has the to fi lm public offi cials has been “clearly communication. According to Glik’s highest burden to justify limitations on established” for purposes of analysis appellate brief, the state eventually speech.” under Fitzgerald. dismissed all charges under the wiretap The City of Boston asserted that even The city, meanwhile, contended statute. if Glik had a constitutional right to fi lm that the “right to videotape a matter On Feb. 1, 2010, Glik fi led a suit in the offi cers, the city and its employees of public concern” is not supported federal district court under 42 U.S.C. are entitled to “qualifi ed immunity,” by the Iacobucci opinion, and that §1983 et seq. against the City of Boston a legal doctrine which can shield Glik’s reliance on that case is therefore and each of the three police offi cers who government offi cials from liability for misplaced. The city argued that arrested him, alleging that his arrest violating of an individual’s constitutional “Iacobucci was engaging in a First violated his First Amendment rights. The rights. The city relied on a 2009 Supreme Amendment right because he was acting district court denied the city’s motion Court case, Harlow v. Fitzgerald, under within his rights as conferred by the to dismiss on June 8, 2010, and the city which government offi cials are immune Massachusetts Open Meetings Law,” and appealed. Brief of Plaintiff-Appellee from liability in a §1983 civil rights that therefore the “plain reading of the Simon Glik, Glik v. Cunniffe, et al., No. action “insofar as their conduct does opinion makes clear that Iacobucci’s 10-1764 (1st Cir. 2010) not violate clearly established statutory lawful exercise of a First Amendment In January 2011, a coalition of First or constitutional rights of which a right concerned his right of access to Cameras, continued on page 20 19 Cameras, continued from page 19 statute, an issue not central to the the video on YouTube, police raided a place open to the public,” and not parties’ briefs. The amicus brief noted his home and arrested him. The case the broader Constitutional question of that the statute’s primary purpose is was docketed for trial, but trial judge whether a First Amendment right to fi lm to protect privacy, but also said that Emory A. Plitt Jr. dismissed the wiretap all public offi cials exists. the 1st Circuit’s case law instructs the charges against Graber, leaving only the Glik’s brief rejected the city’s reading court to “strike a balance between the speeding charge. According to the Sun, of the Iacobucci opinion, noting that the privacy interests at stake and the First Plitt wrote that “[t]hose of us who are fi lming at issue in that case occurred Amendment interests implicated.” In public offi cials and are entrusted with not in the public meeting itself, but in the power of the the hallway when the plaintiff in that “Those of us who are public offi cials state are ultimately case was confronted by the police. Glik accountable to the argued that “[t]he Court’s recognition of and are entrusted with the power of public. When we the plaintiff’s First Amendment right to the state are ultimately accountable exercise that power fi lm the hallway conversation is separate to the public. When we exercise that in public fora, we from the plaintiff’s First Amendment power in public fora, we should not should not expect right of access to the public meeting,” our actions to be and Iacobucci thus “clearly establishes” expect our actions to be shielded from shielded from public his right to fi lm. public observation.” observation.” The coalition of amici argued that In another case, Glik’s right to fi lm the offi cers is “clearly — Judge Emory A. Plitt Jr. the American Civil established.” Pointing to a long line Harford County (Md.) Circuit Court Liberties Union of Supreme Court cases, the coalition (ACLU) of Illinois contended that Glik’s actions fall under fi led a lawsuit in the clearly established right of news cases such as the Glik arrest, where summer 2010 on behalf of two brothers organizations to collect and disseminate recording occurs in a traditional public who were prosecuted under that state’s information on matters of public forum, no party has a reasonable eavesdropping law for fi lming their importance, and that “citizens like Glik expectation of privacy, the coalition interaction with a police offi cer who should be afforded no less information argued. Therefore, applying the wiretap pulled them over on suspicion of drunk gathering protection than traditional statute to the Glik case would chill driving. The Illinois eavesdropping media organizations.” However, the free expression by citizen-journalists statute, 720 Ill. Comp. Stat. Ann. 5/14-1, coalition brief went further, arguing that who might otherwise hesitate to gather “prevents the recording of any part of even if the court decides that the city information of public importance for fear a conversation without the consent of is entitled to qualifi ed immunity on the of prosecution. each participating party,” according to a ground that Glik’s right to fi lm is not No date had been set for oral Jan. 20, 2011 story on Courthouse News’ clearly established, the court should use arguments when the Bulletin went to website. According to a Jan. 22, 2011 this case as an opportunity to declare press. story in The New York Times, the ACLU that the right is now clearly established argued that the act violates the First for the sake of future cases. “A clear Other Recent Cases: Mixed Results Amendment and “hinders citizens from statement that the First Amendment In April 2010, Maryland citizen monitoring the public behavior of police encompasses the right to record would Anthony Graber was prosecuted under offi cers and other offi cials.” On January deter an offi cer who might otherwise that state’s wiretap statute, Md. Code 10, U.S. District Judge Suzanne Conlon arrest a future Glik and would thereby Ann. § 10-402, for recording a police dismissed the ACLU’s claim, writing that prevent repeated infringement upon the offi cer who pulled him over for speeding reaching an opposite result would be an freedoms at issue,” the coalition wrote. on his motorcycle. The video, recorded “unprecedented expansion of the First Brief of the Citizen Media Law Project, et on a camera embedded in Graber’s Amendment.” ACLU v. Alvarez, 10 c al. as Amici Curiae Supporting Plaintiff- motorcycle helmet, showed the offi cer 5235, 2010 U.S. Dist. LEXIS 115354 (N.D. Appellee, Glik v. Cunniffe et al., No. pulling Graber over in an unmarked Ill., Jan. 10, 2011) 10-1764 (1st Cir. 2011) vehicle, and exiting the vehicle with his – GEOFF PIPOLY The coalition’s brief also addressed gun drawn. The Baltimore Sun reported SILHA RESEARCH ASSISTANT the issue of privacy under the wiretap Sept. 27, 2010 that after Graber posted

20 Second Circuit Rationale for Denying Privilege to Filmmaker: Failure to Maintain Independence n Jan. 13, 2011, a panel 2nd Circuit's order also specifi ed that privilege; rather, the journalist carries of the 2nd Circuit U.S. the footage be used “solely for litigation, the burden to show “entitlement Court of Appeals issued arbitration, or submission to offi cial to the privilege by establishing the its rationale for a July bodies,” and ordered Chevron to pay independence of her journalistic process, 2010 ruling in which it any expenses related to the duplication for example, through evidence of Olimited but upheld a subpoena for raw or sorting of the footage. The panel’s editorial and fi nancial independence.” footage from a documentary about a January 2011 opinion provided the In this case, according to the court, lawsuit between Chevron Corp. and a legal rationale for the June 2010 order. Berlinger failed to meet that burden. group of Ecuadorian citizens. The court Chevron Corp. v. Berlinger, 629 F.3d The court relied on a previous 2nd reasoned that the 297 (2d Cir. 2011) For more on the June Circuit case, Von Bulow v. Von Bulow, JOURNALIST’S fi lmmaker, Joseph 2010 order, see “Appeals Court Narrows, in establishing the connection between PRIVILEGE Berlinger, forfeited Upholds Subpoena for Film Outtakes” journalistic independence and the his journalist’s in the Summer 2010 issue of the Silha strength of the journalist’s claim to the privilege because he failed to show that Bulletin. privilege in a given case. In Von Bulow, he retained journalistic independence. In his majority opinion for the a 2nd Circuit panel found that a woman Berlinger’s fi lm, “Crude,” followed unanimous panel, Judge Pierre Leval who claimed to be writing a book about environmental lawyer Steven Donzinger wrote that the 2nd Circuit recognizes a high-profi le murder could not claim the as he pursued litigation both in the a “qualifi ed evidentiary privilege for journalist’s privilege because at the time United States and Ecuador against oil information gathered in a journalistic she gathered the information at issue, giant Chevron for allegedly damaging investigation.” Determining “the her intent was to “vindicate” the murder the environment in and around its existence . . . [and] the strength of the suspect, whereas her decision to use the Ecuadorian drilling sites. According press privilege” in an individual case, information to write a book about the to the 2nd Circuit panel, the fi lm also according to the court, depends largely trial arose later. The court held that the depicts “interviews with Ecuadorians on how “independent” a journalist is question of whether the privilege should dying of diseases perhaps caused by oil relative to the story he or she publishes. apply turns on “intent to disseminate to spills.” Attorneys for Chevron argued For example, journalists whose stories the public at the time the gathering of that the fi lm’s fi nal product omitted “were commissioned … in order to information commences.” Von Bulow v. footage that they characterized as serve the objectives of others who have Von Bulow, 811 F.2d 136 (2d Cir. 1987) essential to their defense in the litigation a stake in the subject of the reporting In Chevron, the panel acknowledged “Crude” documented. Specifi cally, are not acting as an independent press,” that the principal issue in Von Bulow Chevron’s lawyers claimed that the raw Leval wrote, and “those who do not was the “timing of the intention to make footage depicted Donzinger attempting retain independence as to what they public dissemination,” which was not to improperly infl uence an Ecuadorian will publish but are subservient to the central to the case before it. However, judge and improperly colluding with objectives of others who have a stake the panel wrote, the Von Bulow court Ecuador’s president, who allegedly in what will be published have either a also emphasized that the purpose of the favored the plaintiffs in the litigation. weak privilege or none at all.” journalist’s privilege is to “protect the Chevron’s attorneys also claimed that The court found that Berlinger public’s interest in being informed by a the raw footage shows a plaintiffs’ surrendered his journalistic ‘vigorous, independent press,’” which medical expert “fail[ing] to maintain independence—and therefore his was the principal issue in Chevron. strict independence” in his assessment privilege against compelled disclosure Berlinger argued in his appellate of the health hazards allegedly caused of the raw footage—because Donzinger brief that many of those interviewed in by Chevron’s drilling interests. During approached Berlinger and solicited him “Crude” expected the unedited footage pretrial discovery, when Chevron’s to make “Crude” “from the perspective to remain confi dential, and that he attorneys requested the raw footage, of [Donzinger’s] clients,” and because cannot be compelled to disclose the raw Berlinger refused to comply, citing a Berlinger admitted that he had removed footage because the privilege exists to journalist’s privilege. at least one scene from “Crude” at “ensure[] that members of the press will In June 2010, the 2nd Circuit panel Donzinger’s request. be not conscripted to serve as unwilling issued an order without an opinion The court noted that its ruling should arms of the legal system and [to] protect which narrowed a district court order not be construed to imply that journalists them from burdensome and intrusive to turn over all unused footage from the forfeit the privilege every time they are disclosure requirements that will inhibit fi lm. The 2nd Circuit directed Berlinger solicited to produce a story or present their ability to perform their critical to provide to Chevron’s attorneys any reporting from the point of view of the social function—to investigate and report and all raw footage from “Crude” that person or entity that solicited them. on signifi cant, newsworthy events.” depicted Donzinger, expert witnesses Nonetheless, the court wrote, the Berlinger had asserted in an affi davit involved in the Ecuador litigation, and journalist’s privilege is not presumptively that his interview subjects “trusted Ecuadorian government offi cials. The in favor of the party invoking the Chevron, continued on page 22 21 Chevron, continued from page 21 discovery” as with Chevron’s request for idea that what you’re protecting here is that I would not turn over the raw the raw footage from “Crude.” Gonzales editorial and journalistic independence.” footage to Chevron to be used against v. Nat’l Broad. Co., 194 F.3d 29 (2d Cir. Following the 2nd Circuit’s 2011 them.” The court called this statement 1999) opinion, Garrett Epps, Professor of “conclusory”—lacking in supportive (Abrams delivered the 20th Annual Law at the University of Baltimore and evidence—noting that Berlinger did not Silha Lecture, titled “Confi dential a former Washington Post reporter, submit “corroborative evidence that Sources of Journalists: Protection or criticized the ruling on The Atlantic’s the persons fi lmed demanded that the Prohibition?” on Oct. 24, 2005. For more website, calling the ruling “a bad footage of them be held in confi dence.” on the lecture, see “2005 Silha Lecture decision, and one that will cause The court added that the release form Features First Amendment Attorney mischief down the road.” In particular, Berlinger submitted to those he fi lmed Epps criticized the contained no confi dentiality clause. The “It is essential to the creative process panel’s emphasis court therefore found no “promise of that outtakes—even nonconfi dential on journalistic independence as confi dentiality” in the case of the “Crude” ones—be generally protected from footage. the lynchpin of the Berlinger further argued that the disclosure and that they be ordered journalist’s privilege. court’s order should have analyzed produced only when they are truly “Many stories begin “Crude” scene-by-scene to determine needed for use in a litigation.” because someone which scenes were relevant to Chevron’s involved approaches case, rather than compelling the a reporter. If that — Floyd Abrams by itself raised disclosure of all footage involving First Amendment attorney Donzinger, Ecuadorian offi cials, and questions about experts. The court disagreed, in part ‘independence,’ few because Berlinger had failed to provide Floyd Abrams” in the Fall 2005 issue of journalists would merit the privilege,” any proposed guidelines to distinguish the Silha Bulletin.) Epps wrote. “Putting the burden on the between relevant and irrelevant material. Berlinger relied on Gonzales in his journalist to convince a trial court he is The case attracted amici for both brief as well, arguing that Chevron had ‘independent’ turns the First Amendment Berlinger and Chevron. Prominent First failed to demonstrate the raw footage’s on its head. It makes every trial judge Amendment attorney Floyd Abrams fi led relevance to the proceeding, and that a press critic.” Epps argued that the a brief supporting Berlinger on behalf some of the footage was available Chevron case is evidence that Congress of a coalition of media corporations and from other sources because fi lm crews should enact a federal journalist’s shield advocates which included ABC, CBS, employed by Chevron fi lmed much of the law. If such a law had been in place, NBC, The Associated Press, Gannett same material as Berlinger. Berlinger’s he contended, it would have covered Co., the National Press Photographers argument, the court wrote, “proceeds Berlinger from the moment Donzinger Association, The New York Times from the incorrect premise that our approached him, and avoided the Company, The Washington Post, the description in Gonzales of the showing “folderol” over whether “Crude” was Reporters Committee For Freedom necessary to overcome [journalist’s suffi ciently “independent.” of the Press, and the Society of privilege] would apply regardless of Berlinger told the Los Angeles Environmental Journalists. Abrams’ brief whether the press entity claiming Times in July 2010 that he feared a relied largely on Gonzales v. National the privilege’s protections acted with ruling against him could undermine Broadcasting Company, Inc., where independence. Gonzales said no such documentarians’ ability to make fi lms the 2nd Circuit held in 1999 that “where thing.” similar to “Crude” in the future. “The nonconfi dential information is at stake, Awaiting the panel’s 2011 opinion, nature of the relationship [between a the showing needed to overcome the on January 2 Abrams told The New fi lmmaker and his subjects] is one of journalists’ privilege is less demanding York Times that “[i]t is essential to the trust and access,” he said. “And these than for material acquired in confi dence.” creative process that outtakes—even kinds of stories are built on a trusting Although the court held that a litigant nonconfi dential ones—be generally relationship.” can overcome the journalist’s privilege protected from disclosure and that they On March 7, U.S. District Judge Lewis for nonconfi dential information if “he be ordered produced only when they are Kaplan issued a 131-page order granting can show that the materials at issue truly needed for use in a litigation.” a preliminary injunction which prevents are of likely relevance to a signifi cant On June 25, 2010, Jane Kirtley, the Honduran plaintiffs from collecting issue in the case, and are not reasonably director of the Silha Center and an $8.6 billion judgment awarded to obtainable from other available sources,” professor of media ethics and law at the them by an Ecuadorian court. According Abrams argued in his brief that the University of Minnesota, told Reuters to Kaplan’s order, the “Crude” outtakes Gonzales standard—although lower that the raw footage sought by Chevron were “remarkably informative about the than the standard to overcome the should be subject to the same legal … litigation and related matters bearing privilege for confi dential information— protections as a reporter’s notebook. heavily on this motion and … provide is “nonetheless signifi cantly more However, Kirtley added that “it’s often a signifi cant part of the evidentiary substantial than the burden on a a tough argument to make because it record.” The outtakes, Kaplan wrote, litigant seeking ordinary garden-variety really does require a judge to buy into the Chevron, continued on page 23 22 Journalists Face Challenges in Covering Revolution in North Africa, Middle East s popular uprisings U.S. State Department press release on evidence of force used on protesters the unfolded across North February 24, senior Libyan government day before.” Africa and the Middle East offi cials told U.S. diplomats that Another government-led visit, to in early 2011, journalists although members of a few television the site of a British airstrike against on the ground faced networks—CNN, BBC Arabic, and Al a Ghadafi compound, led to a dispute Amany challenges in covering the story. Arabiya—would be allowed into the among journalists about their role in the Threats to newsgathering and reporting country to report on the situation there, middle of the confl ict. A report posted usually came from the governments reporters who had entered the country March 21 on Fox News.com said the that protesters were seeking to illegally would be considered al-Qaida journalists were brought to the area depose, and included restrictions on collaborators. The Guardian of London “to show them damage from the initial communications, harassment, assaults, reported February 23 that after rebels attack and to effectively use them as and detention. took over the Northeast region of the human shields” against a second attack. The chaotic and violent atmosphere country near Benghazi the previous The Fox News report said, “British led advocacy group the Committee to week, some journalists entered the sources confi rmed that seven Storm Protect Journalists (CPJ) to say the country overland, crossing the border Shadow missiles were ready to be fi red region posed from Egypt. Under Gadhafi , Libya has from a British aircraft, but the strikes INTERNATIONAL “enormous been mostly closed to foreign media, The had to be curtailed due to crews from PRESS FREEDOM challenges” Guardian reported, and Deputy Foreign CNN, Reuters and other organizations for journalists. Minister Khalid Kayem said journalists nearby” leading to “a great deal of On April 16, CPJ said there had been who had crossed the border were consternation by coalition commanders.” more than 450 attacks on journalists, there “illegally and will be considered But CNN correspondent Nic Robertson including eight deaths, amid the unrest outlaws.” rejected the “human shield” claim, as in Libya, Egypt, Bahrain, Tunisia, Yemen, On February 26, however, The New well as the implication that Fox News Syria, Saudi Arabia, and Iraq. On April York Times reported that the government reporters had opted not to participate in 12, Reporters sans Frontieres (RSF or had lifted its complete ban on foreign the visit, according to a March 21 story Reporters without Borders) reported journalists, re-opened Internet access posted on CNN.com. In an interview on its website that governments in after severely restricting it, and stopped with CNN host Wolf Blitzer on March 21, the region had made “no concessions confi scating cell phone chips and camera Robertson called the report “outrageous to media” and were engaging in memory cards from those leaving the and hypocritical” because it left out the “indiscriminate repression.” country. A group of invited journalists fact that “a Fox staffer was among the were taken on a tour of Tripoli on journalists on the trip,” which Robertson Libya February 27, the Times reported, in called “hurried.” Robertson added, “I In Libya, conditions for reporters an attempt to show that things were expect lies from the government here. were especially dangerous because of peaceful there and the people supported I don’t expect it from other journalists. inconsistent and unpredictable treatment Gadhafi . While visiting an area known It’s frankly incredibly disappointing.” An by the government and military. The as the Friday market, however, the update to the original Fox News story government initially appeared willing Times’ David Kirkpatrick reported that said the network stood by its account, to allow journalists to report freely on signs appeared everywhere of a hasty adding that “a security guard hired by the confl ict, but detentions and abuse— clean-up after a riot the previous day. “A Fox News did accompany the group.” mostly by the Libyan military—led to young man approached the journalists In a televised speech on March 2, international outcry. to deliver a passionate plea for unity Gadhafi criticized the international The Gadhafi government’s treatment and accolades to Colonel [Gadhafi ], then journalists he invited to Tripoli, of reporters ranged from ham- slipped away in a white van full of police according to the Times, which based handed attempts to spin coverage offi cers,” Kirkpatrick wrote. “Meanwhile, its report on a translation from Arabic of the uprising in its favor to sudden two small boys surreptitiously offered to English carried live on Libyan state crackdowns and abuse. According to a bullet casings that they presented as Libya and Egypt, continued on page 24

Chevron, continued from page 22 Civ. 0691, 2011 U.S. Dist. LEXIS 22729 plaintiffs were expected to look to the prove that Donzinger “continues to (S.D.N.Y. March 7, 2011) United States and other countries where threaten and pressure judges at all According to a March 8 story in The Chevron operates in order to enforce the levels, particularly those hearing suits New York Times, Kaplan’s ruling could Ecuadorean court’s ruling and collect that implicate government interests,” “prevent[] the plaintiffs from enforcing damages. Therefore, Kaplan’s injunction and it would be improper to allow a the … ruling anywhere outside Ecuador.” could mean an end to the case. judgment to stand when based on such Because Chevron has no assets in – GEOFF PIPOLY improprieties. Chevron v. Donzinger, 11 Ecuador, the Times reported, the SILHA RESEARCH ASSISTANT 23 Libya and Egypt, continued from page 24 He pointed the barrel at each of us,” country. Among the detained foreign television. “Libya doesn’t like foreign Cobb-Smith said. “When he got to me at journalists were James Foley, an correspondents,” Gadhafi said. “They the end of the line, he pulled the trigger American correspondent for the online shouldn’t even know about the weather twice. The shots went past my ear.” publication Global Post; Manuel Varela, forecasts in Libya, because we are According to the journalists’ account a European Press Agency photographer suspicious.” of the ordeal at http://www.bbc.co.uk/ from Spain; Clare Morgan Gillis, an In an April 10 report, the Times’ news/world-africa-12695138, they were American freelancer working for The Kirkpatrick said that the government released shortly thereafter, with an Atlantic, Die Welt, and USA Today; and had presented so-called evidence of Anton Hammerl, a civilian casualties from U.S. and British “A young man approached the London-based South airstrikes in Tripoli hospitals that was so African freelance journalists to deliver a passionate photographer. HRW sloppily staged that even the government plea for unity and accolades to escorts leading the tours did not refrain said the journalists from pointing out that the blood in Colonel [Gadhafi ], then slipped away were detained by a hospital bed was fake. In another in a white van full of police offi cers. government security instance, on April 6, Kirkpatrick reported forces on April 5 in that 26 journalists were “suddenly — David Kirkpatrick Brega, and were held ordered, without explanation or pattern, The New York Times “incommunicado” in to leave Libya the next day. By the end of Tripoli since April 8, the night, many had negotiated individual forbidden to contact exemptions. Then at breakfast the next apology for the “mistake by the military.” their families or receive visiting morning, another offi cial announced The New York Times reported diplomats. On April 25, CPJ reported that that the exemptions were no good, a bus March 21 that Times Beirut bureau Foley and Varela were allowed to place was coming to dump the journalists in chief Anthony Shadid, reporter and phone calls to their families on April Tunisia, and it was time to go. But by 11 videographer Stephen Farrell, and 23, who they told they were not injured a.m. it was fi nally clear that there would photographers Tyler Hicks and Lynsey or being mistreated. CPJ also reported be no bus to the border at all. Who in the Addario were detained in Ajdabiya on that Hammerl and Gillis “appeared in government pushed for the expulsions March 15 by forces loyal to Gadhafi . The government custody” on April 22 “and and who might have stopped them is reporters were trying to escape the city are apparently in good health.” impossible to determine.” as fi ghting intensifi ed. HRW also said April 15 that an CPJ reported that as of April 15, it had The journalists said their treatment American freelancer, Matthew VanDyke, documented more than 80 attacks on the over the six days of their detention had gone missing near Brega. VanDyke press in Libya, including two fatalities, a ranged from humane to brutal. According was last seen March 13, HRW reported. gunshot injury, 49 detentions, 11 assaults, to the March 21 Times account, each According to CPJ, VanDyke arrived two attacks on news facilities, and the checkpoint stop along their route toward in Libya on March 6 via the country’s jamming of broadcast transmissions Tripoli “allow[ed] for a new group of eastern land border with Egypt, and last from Qatar-based television network soldiers to land a fresh punch or a rifl e spoke to his family on March 12. HRW Al-Jazeera and United States-based butt in [the reporters’] backs.” Addario, also reported that at least six Libyan Al-Hurra. CPJ also reported that two especially, was the subject of unwanted journalists known for being critical of international journalists had been attention. “There was a lot of groping,” the government had been arrested and expelled from Libya. Addario said. “Every man who came in their whereabouts, as of April 15, were Several high-profi le instances of contact with us basically felt every inch unknown. harassment, detention, and beatings of of my body short of what was under my The Associated Press (AP) reported journalists were reported. On March 9, clothes.” on April 20 that two acclaimed three BBC journalists were released after After several days of negotiations photojournalists died while covering being subjected to what they described between Libyan and American offi cials, the confl ict. Tim Hetherington and as 21 hours of torture. According to including a demand that an American Chris Hondros were killed in Misrata, a The New York Times on March 9, diplomat come to Tripoli to receive the port city controlled by revolutionaries reporter Feras Killani, cameraman journalists, the Times reporters were and besieged by Ghadafi ’s troops. Goktay Koraltan, and producer Chris released into the custody of Turkish Hetherington was co-director of the Cobb-Smith said they were beaten with diplomats and allowed to cross into critically acclaimed Afghanistan war fi sts and rifl es, hooded, and subjected Tunisia on March 21. According to documentary “Restrepo” as well as to mock executions after being taken Human Rights Watch (HRW) on April an award-winning photographer for captive while trying to reach the scene 15, the journalists’ driver, Mohamed Vanity Fair and other publications. of a battle in Zawiyah. Cobb-Smith said Shaglouf, was captured along with the Hondros, a winner of the Robert Capa that at one point near the end of their reporters on March 15, but had not been Gold Medal, worked for Getty Images. detention, the three journalists were heard from since then. The New York Times reported that the lined up facing a wall. “A man with a On April 15, HRW called for the photographers were among a group small sub-machine gun was putting it release of nine foreign and six Libyan of journalists covering house-to-house to the nape of everyone’s neck in turn. journalists detained or missing in the fi ghting along Tripoli Street in Misrata. 24 Both Hetherington and Hondros which their licensing agreements require. a military escort arrived, Garcia-Navarro died of shrapnel injuries. Two other Although some domestic connectivity reported, but not before “an Egyptian- photographers were also injured. Reports continued during the fi ve-day blackout, American colleague, Ashraf Khalil, was confl icted as to whether it was a rocket- almost all traffi c between citizens in repeatedly punched in the face.” propelled grenade or a mortar that hit the “technologically advanced, densely Garcia-Navarro reported that the group. No media outlets reported wired country” and the rest of the world reporters closer to Tahrir Square were that the journalists were themselves the was halted, the Times reported, calling subject to even more harassment and target of the attack. the government response to the quickly violence. She said the experience of CPJ reported that two other growing movement “a dark achievement Time magazine’s Andrew Butters was journalists have been killed in the Libyan that many had thought impossible in the “typical.” Butters said although bands confl ict: Mohammed al-Nabbous, founder age of global connectedness.” of armed men carried out the attacks, of the online Libya Al-Hurra TV, shot The Mubarak regime also engaged in in some parts of the city the security in the rebel stronghold of Benghazi on old-fashioned intimidation, harassment, services appeared to be orchestrating March 19; and cameraman Ali Hassan violence, and detention to limit them. “I was grabbed by a young guy al-Jaber of Al-Jazeera shot near Benghazi international news coverage of the with a club who hauled me over to on March 13. revolution. On February 3, the Times an improvised checkpoint,” Butters reported that as the protests grew, said. “A few of them punched me and Egypt journalists increasingly found themselves [it] was clear what they were doing During the revolt in Egypt against to be the targets of “an apparently [was] coordinating with the police and President Hosni Mubarak in late coordinated campaign … intended to rounding up all foreigners and they were January and early February of 2011, the stifl e the fl ow of news that could further being coordinated and commanded by government demonized and attacked the undermine the government.” an agent from the Interior Ministry who press in a way that appeared to be more According to a February 3 story by looked straight out of central casting, organized than in Libya. As the Egyptian The Christian Science Monitor, CPJ with leather trench coat and walkie- demonstrations grew, the government said it received nearly 100 reports of talkie.” Butters said he was eventually sought to block the transmission of damage to news organization property released. broadcast news and communication via or individuals being detained or attacked CNN correspondent Anderson Cooper the Internet. Meanwhile, as reporters over the 36 hours between February was the subject of one of the most high fl ooded Cairo to report on the revolution, 1 and February 3. In a post on The profi le attacks, as he and his crew were crackdowns came in the form of Huffi ngton Post on February 3, CPJ “set upon by pro-Mubarak supporters” intimidation and attacks by security Executive Director Joel Simon wrote in an area near the Egyptian Museum forces, police, and even gangs deployed that “the world [should] speak with one in Cairo on February 2 and repeatedly by the Mubarak regime. voice” to insist that Mubarak end the kicked and punched in the head. Cooper Al-Jazeera was an early target of media crackdown. “What is frightening recorded the attack on a video camera he government attempts to silence media … is that sweeping efforts to suppress was carrying, and it was later broadcast coverage of the massive protests, which the media often lay the groundwork for on CNN. centered on Cairo’s Tahrir Square. CPJ most brutal kinds of repression, from The AP reported February 4 that two reported on January 30, the sixth day of the Tiananmen Square massacre to the Fox News journalists were severely protests, that the government-operated 2009 post-election crackdown in Iran,” beaten by a mob near Tahrir Square on satellite company that carried Al-Jazeera Simon wrote. “As brutal as the violence February 2. Correspondent Greg Palkot had stopped carrying the signal. The has been in Egypt over the last several and cameraman Olaf Wiig had retreated government also ordered the offi ces days, there is also no question that the to a building, the AP said, but someone of all Al-Jazeera bureaus in Egypt shut presence of the international media has threw a fi rebomb inside the building down and the accreditation of all of acted as something of a restraint.” and the men were attacked as they the network’s journalists revoked. On Among the incidents the Times rushed out, according to Fox Senior Vice January 31, CPJ reported that six Al- reported February 3 were an ABC News President for News Michael Clemente. Jazeera reporters were briefl y detained crew that was carjacked and threatened Numerous other international news in Cairo and their cameras permanently with beheading, a Reuters offi ce in organizations had journalists detained confi scated. Cairo that was stormed by a “gang of during the height of the protests, the AP Egyptian offi cials also essentially thugs,” and four journalists from The reported, including Paris-based all-news shut down the Internet from January Washington Post that were detained by television channel France 24, Toronto’s 28 to February 4. According to The forces suspected to be from the Interior The Globe and Mail, and Polish state New York Times on February 15, the Ministry. television TVP. government used its control over a National Public Radio reporter Meanwhile, the AP reported that central server located in Cairo to cut Lourdes Garcia-Navarro reported Greek daily newspaper Kathimerini off almost all Internet traffi c into and February 3 that she was surrounded said its Cairo correspondent was briefl y out of the country on January 28. The in an otherwise quiet neighborhood in hospitalized after being stabbed in the Times reported that individual Internet Cairo by an angry crowd who accused leg in Tahrir Square, and another Greek service providers were also ordered her and her colleagues of being Israeli newspaper photographer was punched to shut down by government decree, spies or Al-Jazeera reporters. Eventually Libya and Egypt, continued on page 26 25 Libya and Egypt, continued from page 25 wrote that the Logan incident was not three of the paper’s senior editors, and in the face. Swedish public broadcaster an isolated or even unusual incident for deported two other senior staffers. SVT said one of its reporters was also women reporting abroad, but that similar In its March 14 report, CPJ said a list stabbed. The AP said Kyodo News assaults are rarely reported, and should called the “Bahrain list of dishonor,” agency reported that two Japanese be more widely discussed as part of the had circulated online, identifying people freelance photographers were attacked professional environment for female as “collaborators aiming to sell their while covering the protests, and one of reporters overseas. Barker said that CPJ, country.” CPJ said that the list’s author them slightly injured. which keeps the most comprehensive was unclear; upon review of it, CPJ CPJ reported that some government “found the names of television broadcasters, as well as “What is frightening … is that at least nine critical private stations whose owners were loyal journalists.” sweeping efforts to suppress the In Syria, reporters to Mubarak, portrayed foreign journalists media often lay the groundwork for as endeavoring to destabilize the country. were expelled and On February 5, CPJ reported that the most brutal kinds of repression, from others blocked from networks that supported Mubarak the Tiananmen Square massacre to reporting from the frequently accused Al-Jazeera and other most active sites of the 2009 post-election crackdown in unrest. On March 28, international news organizations of Iran.” having a “hidden agenda,” of attempting CPJ reported that two Reuters reporters to “incite the people,” while calling local — Joel Simon journalists “infi dels” for working with were kicked out of Executive Director, the country after a international media. Committee to Protect Journalists The New York Times reported two-day detention February 3 that government attempts for working there to suppress coverage “were somewhat statistics on worldwide journalist attacks without authorization and fi lming “in effective,” as major international and murders, does not catalogue sexual an area where fi lming is not permitted,” television networks, including the BBC, assaults. according to Syrian authorities. CNN, and Al-Jazeera were unable to On April 13, more than two months Another Reuters reporter had his broadcast from in and around Tahrir after Mubarak stepped down and press credentials revoked for “false” Square, thanks to being chased off, the Egyptian military took over, CPJ coverage, CPJ reported. On March 25, detained, or forcibly removed from their reported that some restrictions on security forces blocked journalists bases set up in hotels near the square. press freedom continued, including a from the southern city of Daraa, which According to the AP on February requirement that local print media obtain CPJ described as “the birthplace of the 4, evening news anchors Katie Couric approval for all mentions of the armed political unrest now sweeping Syria.” of CBS and Brian Williams of NBC forces before publication. CPJ called At least one satellite network—private, eventually left Egypt in order to the rule a “substantial setback for press Dubai-based Orient TV—said its broadcast live without interference. freedom in Egypt.” signal had been jammed in Syria after Williams’ show moved to Jordan and extensively covering protests in Daraa, Couric returned to New York. The AP Bahrain, Syria, Yemen CPJ reported. also reported that Arabic-language Similar press restrictions and attacks Syrian senior presidential adviser satellite channel Al-Arabiya “pleaded on on members of the media occurred amid Buthaina Shaaban claimed in a March an urgent news scroll for the army to popular uprisings in Bahrain, Syria, and 24 press conference that “the problem protect its offi ces and journalists.” Yemen. CPJ reported March 14 that in is with some media organs who wanted In an incident that did not appear to Bahrain, plainclothes security forces to exaggerate the fi gures, who wanted be politically driven, CBS News reported beat a photographer working for the to exaggerate what happened,” CPJ February 15, that on February 11, the independent daily Al-Wasat as he tried to reported. Shaaban said “Syrian state day Mubarak announced his resignation, cover a demonstration in Manama. television tells the truth; no one else.” Chief Foreign Correspondent Lara On April 12, Karim Fakhrawi, founder In Yemen, CPJ expressed concern Logan was separated from her crew and board member of Al-Wasat, died April 18 for the whereabouts of Ahmad amid the largely jubilant crowd, “was while in police custody, CPJ reported Al-Mohamadi, whom it described as surrounded and suffered a brutal and April 15. Bahrain’s offi cial news agency a reporter for the privately owned sustained sexual assault and beating said via Twitter that Fakhrawi died news channel Suhail, with ties to before being saved by a group of women of kidney failure, but photographs the opposition party Al-Islah, and a and an estimated 20 Egyptian soldiers.” published elsewhere online show a contributor to independent weekly Logan returned to the United States the body identifi ed as that of Fakhrawi with Al-Nass. After being summoned for following day, and was released from extensive cuts and bruises, CPJ said. questioning by Republican Guards on the hospital on February 16, CBS News The CPJ report said that the Bahraini April 16, Al-Mohamadi could not be reported. government had accused Al-Wasat reached two days later, CPJ reported. In a February 19 Op-Ed in The New of “deliberate news fabrication and In its April 18 report, CPJ also York Times, investigative journalist falsifi cation” in early April, announced reported that several journalists for and foreign correspondent Kim Barker plans to fi le criminal charges against Libya and Egypt, continued on page 27 26 Minnesota Senate Expands Floor Access; State Supreme Court Approves Cameras

n Spring 2011, both the Minnesota fl oor seats for other news agencies, that already have a lease agreement Senate and the state judicial which were allocated at the discretion for access to the capitol press area. branch changed policies regarding of the Secretary of the Senate, and noted According to the rule, “[a]ll other gallery media access. The Senate that journalists not specifi cally granted access will be provided on a fi rst-come, expanded its media credentialing access by the rule “may occupy seats fi rst-served basis to individuals and criteriaI in a way that allows new organizations with credentials and provided in the Senate gallery” along and different media outlets to cover with the rest of the general public. passes” issued by the Sergeant at Arms. proceedings from the fl oor of the Senate The new version of Rule 16, approved The new rule codifi es the chamber, and the by a vote of 57 to 5 and entitled recommendation of a working group of ACCESS Minnesota Supreme “Credentials for News Coverage,” Senate staffers, bloggers, and journalists, Court approved a takes a different approach. Rather who presented the proposed changes pilot program allowing cameras to cover than restricting credentials to specifi c to the Senate Committee on Rules and certain types of civil cases, even without news organizations, the rule now Administration in February. According to the parties’ consent. permits the Senate Sergeant at Arms a February 28 blog post by David Brauer, to issue credentials to “organizations a journalist for MinnPost.com and a Minnesota Senate Expands Media or individuals who demonstrate that member of the working group, the group Credentialing Criteria they provide frequent news coverage was unanimous in proposing the changes On March 3, 2011 the Minnesota of the legislature.” In order for a that were ultimately refl ected in Rule 16. Senate approved a media credentialing journalist to demonstrate that he or In a March 3 post about the Senate’s reform measure which expanded she “provide[s] frequent news coverage adoption of the working group’s previous rules, allowing a wider range of the legislature,” the journalist must proposal, Brauer wrote that the principal of journalists—including bloggers—to provide the Sergeant at Arms with “three change is that the new rule will permit cover the body’s proceedings in the examples of news coverage of legislative a more diverse group of journalists into Senate chamber. matters produced by the organization or the Senate to cover proceedings. Brauer According to the Minnesota individual” in the preceding year. These said that bloggers will be eligible for legislature’s website, “[e]ach [legislative] examples of news coverage may be audio credentials, provided that they can meet body adopts the rules under which it or video recordings or written materials, the required “three examples” standard operates.” The credentialing reform and the journalist must also include with the new rule embodies. measure came as part of revisions to these examples a description of how In his February 28 post, Brauer the Minnesota Permanent Rules of the they were distributed to the public. To wrote that the provision of the rule Senate. Specifi cally, the measure enacted avoid concerns about possible political prohibiting the Sergeant at Arms from changes to Rule 16, which governs media bias, the rule prohibits the Sergeant at considering opinions in journalists’ access to the Senate fl oor. Arms from considering “any opinion applications would “almost certainly” The old version of Rule 16, citing expressed in the examples” when making mean that “more ‘ideological’ journalists concerns over “limited fl oor space” in the the credentialing determination. The will get credentials,” noting that “the Senate, restricted access to “permanent Sergeant at Arms must issue credentials Minnesota and U.S. Constitutions don’t fl oor space” to “those news agencies that or reject an application within 14 days, limit freedom of the press to perceived regularly cover the legislature.” The rule and if a journalist is denied credentials, non-ideologues.” Brauer added, however, listed specifi c news entities that were the rule now permits the applicant to that the new text of the rule prohibits allowed permanent fl oor access: “The appeal the case to the Senate Committee registered lobbyists or “publications Associated Press, St. Paul Pioneer Press, on Rules and Administration. ‘owned or controlled’ by lobbyists, St. Paul Legal Ledger, [Minneapolis] The new rule takes the number of political parties and party organizations” Star Tribune, Duluth News-Tribune, available seats into account, limiting from eligibility for media credentials. The Forum, Rochester Post-Bulletin, the number of seats on the fl oor of Conservative political blogger Mitch St. Cloud Times, WCCO radio, KSTP the Senate to six, and in the Senate Berg, another member of the working radio, Minnesota Public Radio and gallery to 10. The rule also sets aside an group, praised the Senate’s non-partisan Minnesota News Network.” The old additional four seats on the fl oor of the approach to drafting the new rules. In rule set aside two additional permanent Senate for television news organizations Minn. Access, continued on page 28

Libya and Egypt, continued from page 26 In another instance, a reporter covering reported that a shipment of newspapers local publications had been beaten a rally “received an anonymous phone had been confi scated by authorities, and while trying to cover demonstrations. call asking him to stop his coverage and its driver beaten, on April 15. Four had their cell phones confi scated to leave the scene immediately” before – PATRICK FILE and were forced to leave the protests. he was beaten, CPJ reported. CPJ also SILHA FELLOW AND BULLETIN EDITOR

27 Minn. Access, continued from page 27 issued an additional order excluding civil formal study’s requirement that district a March 2 post on his blog Shot in the commitment proceedings, which can judges fi ll out multiple surveys used to Dark, Berg wrote that the Minnesota include cases of people suffering from compile data about the program. The Senate now has “the most transparent, mental illness as well as predatory sex court wrote that “at this time, when the open and non-partisan media process of offenders. (For more on the evolution of judiciary has incurred repeated budget any state government body in the United the Minnesota pilot program see “Federal cuts and shortfalls, and faces continuing States. Literally … there are none better.” and State Courts Consider Proposals to serious budget constraints, we are Permit Cameras in Trial Proceedings” unwilling to impose additional burdens Cameras in Courtrooms Pilot in the Fall 2010 Silha Bulletin, and on district judges.” Program Advances in Minnesota “Minnesota High Court Approves The court also rejected a second A pilot program which will allow Cameras-in-Court Pilot Program” in the option proposed by the advisory cameras into Minnesota trial courtrooms Winter 2009 Silha Bulletin.) committee: a “scaled down” study beginning on July 1, 2011 received The court’s order also required the based on reports and surveys of court approval from the Minnesota Supreme advisory committee to monitor the participants describing their experiences Court on March 21, 2011. The court program for its effectiveness. According with cameras in the courtroom. The rejected two proposals to monitor the to the order, the advisory committee court emphasized that although this program’s effectiveness that had been approach could be considered by an advisory committee of “We know that whatever the implemented more judges and lawyers. Under the court’s committee comes up with won’t be quickly and less order, the program must be monitored scientifi cally valid. All the court is expensively than the for its effectiveness over its two-year life formal study, it would span, and will be limited to certain civil looking for is an effect overall.” still impose burdens on cases. the judiciary because — Justice David Stras The court’s order amended Rule the judicial branch Minnesota Supreme Court 4 of the Minnesota General Rules of would ultimately Practice, the rule that had previously be responsible for imposed a presumptive ban on cameras submitted a report to the court in designing, distributing, and collecting the which could be overcome only by an October 2010 proposing two potential reports and surveys. order of the trial judge and consent of courses of action for monitoring the pilot Despite rejecting the advisory all parties in the case. Under the pilot project: a broad, comprehensive research committee’s two proposed courses of program, cameras will be allowed in study to measure cameras’ impact, or action for monitoring the program, civil proceedings when a judge approves a more informal study supported by the court wrote in its order that “the them. The court cited “continuing anecdotal reports from participants in Advisory Committee … will monitor concerns” about admitting cameras proceedings which have been covered the pilot project” and report on its into criminal proceedings which date by cameras. The committee formulating effectiveness to the committee. back to a 2009 order on cameras in the the comprehensive study consisted of As for implementation of the pilot courtroom, where the court wrote that scholars at the University of Minnesota, program, the court’s order instructs “[n]umerous participants in the justice including Eugene Borgida, a University the advisory committee to “identify system who work on a regular basis of Minnesota psychology professor media coordinators,” whose role will with victims and witnesses expressed who conducted a small-scale study on be to “facilitate interaction between the the fi rmly held view that televised cameras in Minnesota courtrooms in the district courts and the electronic media proceedings would make a diffi cult 1990s, and Jane Kirtley, Silha Professor during the course of the pilot project.” situation even more problematic.” of Media Ethics and Law and Director of The order emphasized, however, that The pilot program will not permit the Silha Center. “the media coordinators will not be cameras in all civil proceedings, The court wrote that although it had employed or funded by the judicial however. Under the court’s order, no doubt that the comprehensive study branch.” “child custody proceedings, marriage would be an effective mechanism to On April 12, the advisory committee dissolution proceedings, juvenile monitor the impact of camera coverage met to address two items in the court’s proceedings, child protection of trials, “a number of factors led us order: implementation of the pilot proceedings, paternity proceedings, to decide against the formal research program and monitoring. Mark Anfi nson, and petitions for orders for protection” study, many of them related to budgetary an attorney for media outlets who had are ineligible for camera coverage. constraints facing the judiciary.” The originally petitioned the Supreme Court Additionally, cameras will never be court noted that the formal study’s in 2007 to allow cameras in courtrooms, permitted to photograph jurors, either projected cost was approximately said that he had assembled a preliminary during trial or during jury selection. $750,000. Although the proposal did list of people, many of whom work for Cameras will not be permitted to record not call for the state judicial branch to television and radio stations, who would proceedings if the judge is not physically pay for the program, the court cited “work well as media coordinators.” present in the courtroom, nor will they diffi culty in raising those funds as being a Taking note of the Court’s instruction be permitted to fi lm witnesses unless the consideration in its rejection. In addition, that the coordinators not be employed by witness consents. On April 25, the court the court expressed concern about the Minn. Access, continued on page 29 28 Minnesota News Council Closes after 41 Years Funds, Complaints Dry Up media organizations, and held public posted on the First Amendment Center hearings for people who complained website, Rem Rieder, editor and senior n Jan. 27, 2011, the that the actions of media outlets were vice president of American Journalism Minnesota News Council misleading, inaccurate, or otherwise in Review, said the closure was unexpected (MNC) announced that it violation of the Society of Professional because the MNC was more successful was shutting down after Journalists code of ethics, which the than many other news councils. “While 41 years of adjudicating MNC cited as a guideline for fi ling news councils have hardly fl ourished in complaintsO about media coverage in complaints. the U.S., the Minnesota News Council Minnesota. The council held 155 hearings was part of the journalistic landscape for MNC President Tony Carideo between 1971 and 2009. Participation was a long time,” Rieder said. “It seemed like announced the council board of directors’ voluntary, and the council’s decisions one of the rare successes in the world decision to close at the 2011 Minnesota were not legally binding. According to of news councils.” Rieder called the Newspaper Association (MNA) the MNC website, at its founding, the MNC’s longevity an “impressive anomaly.” convention, according to a January 28 organization had “24 voting members, Remaining U.S. news councils include the Associated Press half of them journalists and half Washington News Council of Washington MEDIA ETHICS report. In a laypersons, and a sitting justice of the state, Media Council Hawaii, and the statement on the state supreme court as chairperson New England News Forum, based at the MNC website dated February 1, Carideo at public hearings.” After 2002, when University of Massachusetts Amherst. cited a lack of funding and a drop in committee chair Justice Edward Stringer According to Carideo’s February 1 complaints as reasons for the decision to retired from the court, hearings were statement, the MNC faced a twofold close. chaired by a retired justice. The hearings challenge in recent years: funding shrank The MNC was founded in 1970 by the were the most visible method of fulfi lling with the economic downturn, while MNA in response to concerns within the council’s mission to “promote fair, public reliance on the organization also that organization that trust in the media vigorous and trusted journalism by dwindled. In his February 3 blog post, was declining. According to the MNC creating a forum where the public and Brauer wrote that the organization’s website, in the late 1960s the MNA asked the news media can engage each other in budget “collapsed” as the Star Tribune University of Minnesota journalism examining standards of fairness.” Foundation was shut down, and backers professor Ed Gerald to study the British In a February 3 blog post by David such as Target and Thrivent Financial Press Council (which would later become Brauer of MinnPost.com, MNC Executive pulled their funding. Bauer said “The the Press Complaints Commission). Director Sarah Bauer said 10 percent fi rst big hit was the loss of Star Tribune Gerald traveled to London to study the of complaints actually led to hearings, Foundation support at the top level,” work of that council, and concluded and said “working with the public adding that the St. Paul Pioneer Press that it was successful at resolving short of a formal hearing” was “an continued to back the MNC, but its complaints about media coverage and underappreciated part of the council’s contributions waned as the economy restoring public trust. Based on those mission.” Bauer said those who fi led worsened. In the end, Brauer wrote, the fi ndings, the MNA started the Minnesota complaints sometimes relented if council MNC’s annual budget dwindled from News Council, which was incorporated staff decided their objection did not $220,000 to $75,000-$100,000. in December 1970 and held its fi rst justify a formal hearing, and that at other Carideo wrote in his statement complaint hearing in 1971. times, “connecting the person to the that board members tried petitioning The MNC took complaints from media” would “foment a resolution.” local universities to take on the work citizens, sought responses from news According to a January 31 article News Council, continued on page 31

Minn. Access, continued from page 28 proposed monitoring options, Stras said program and research assessment or the judicial branch, Anfi nson added that “we know that whatever the committee allow cameras in criminal trials. In an under the terms of the pilot program, comes up with won’t be scientifi cally email to the Bulletin, Borgida said that the media coordinator’s role “won’t be valid. All the court is looking for is an “the monitoring of the pilot program to onerous” because “civil cases aren’t effect overall. It could be a survey, it commence on July 1st of this year simply generally regarded as being as much of a could be something else. It’s up to the will not be able to address the Court’s public interest as criminal cases, which committee.” The committee proposed original set of questions about [cameras would reduce the workload of the media that the media coordinator’s role could in the courtroom] in a scientifi cally valid coordinator in the pilot phase.” include preparing and administering fashion. What probably will be produced The committee also addressed the surveys to participants in trials. will be more of a post hoc, anecdotal issue of monitoring. Justice David Stras, Borgida, whom the advisory report which, ironically, the Court order the Supreme Court’s liaison to the committee had recommended conduct recognized as inadequate to the task at committee, emphasized that the court the formal research study that the hand.” – GEOFF PIPOLY will leave the specifi cs of the monitoring court ultimately rejected, said he SILHA RESEARCH ASSISTANT program to the committee. Noting that was “disappointed” that the March 21 the Court rejected the committee’s two order did not endorse the larger pilot 29 Silha Spring Events Highlight Paradoxical Heroes of Press Freedom Historians Discussed Jack mongering played in a deterioration in sources. Feldstein said that The New the standards of political journalism that York Times did not vociferously defend Anderson and Justice lasts to the present day. According to “Pentagon Papers” leaker Daniel Ellsberg William Brennan Feldstein, Nixon even once suggested when he was prosecuted by the Nixon that a conservative news network should administration in the 1970s, nor, more he spring 2011 events hosted be developed as a counterweight to the recently, embattled WikiLeaks founder by the Silha Center for perceived liberal bias of other news Julian Assange or Army Pfc. Bradley the Study of Media Ethics media. “Fox News was Nixon’s idea,” Manning, who is accused of leaking and Law highlighted two Feldstein said. numerous documents to WikiLeaks. (For important and contrasting In his presentation and question-and- more on Obama’s prosecutions and their fiT gures in the American history of answer session with a capacity audience implications for the news media, see freedom of the press: Jack Anderson, a in Murphy 130, Feldstein highlighted “Open Government Advocates Criticize controversial muckraking journalist, and the ethical challenges that Anderson Obama’s Prosecution of Leakers,” the William Brennan, the Supreme Court and other investigative journalists face. cover story of this issue of the Silha justice widely considered to be one of the A key question, Feldstein asked, is “do Bulletin.) First Amendment’s greatest champions. ends justify means?” For Anderson, those In comparing Anderson to Assange, On April 4, Mark Feldstein discussed means often included ploys that most Feldstein said there were similarities as some of the ethical problems raised journalists and journalism professors well as differences. On one hand, he said by investigative journalism at the Silha would decry, Feldstein said, such as both men were “generally disliked”— Spring Ethics Forum, entitled “The lying, stealing, bribing sources, and even “bad boys with a cult following”—and Morality of Muckraking: Journalistic more serious illegal activities. Anderson both were sometimes considered to be Ethics from Jack SILHA CENTER employed those investigative means in “irresponsible and reckless.” On the other Anderson to EVENTS pursuit of both what Feldstein called hand, Feldstein explained that Anderson Julian Assange.” “high brow” stories, like national security was “more schooled in journalism” Feldstein, himself a veteran award- issues and other problems of serious and was therefore “more careful” than winning investigative journalist who now public importance, as well as “low Assange, who he said is learning his teaches at George Washington University methods of disclosure and directs the Journalism Oral History Justice William Brennan probably and discretion along the Project, is the author of a new book way. chronicling the adversarial relationship would have disapproved of Jack At his April 11 talk, between Anderson and Richard Nixon: Anderson and Julian Assange constitutional law “Poisoning the Press: Richard Nixon, Jack and their tactics, in spite of his professor and former Anderson, and the Rise of Washington’s reputation as an ardent defender of Wall Street Journal Scandal Culture.” In the book, Feldstein Supreme Court reporter chronicles Anderson’s dogged attempts the First Amendment. Stephen Wermiel gave to uncover the Nixon administration’s a description of Justice darkest and most closely held secrets, brow” stories, such as “sexposés” about William Brennan that suggested that as well as Nixon’s subsequent attempts politicians’ personal lives, including the justice would have disapproved of to discredit—and allegedly, even “outing” allegedly gay public offi cials and Anderson and Assange and their tactics, assassinate—the infl uential and widely fi gures. Feldstein said Anderson did not in spite of his deserved reputation as an read columnist. consider himself a moral philosopher, “he ardent defender of the First Amendment. In his talk, Feldstein explained that just liked to nail the S-O-Bs.” Brennan’s “love-hate” relationship the title “Poisoning the Press” had two Feldstein also drew connections with the press was a central theme of meanings. One meaning applied to a between the arenas of politics and Wermiel’s talk, entitled “Justice Brennan: plot—formulated in March 1972 by journalism of the 1970s and today. Nixon Champion of the Free Press.” Wermiel Nixon operatives G. Gordon Liddy and E. “went berserk” over his administration’s is co-author of the critically-acclaimed Howard Hunt—to stage a fatal accident leaks of secret information, Feldstein biography: “Justice Brennan: Liberal in order to kill Anderson. Proposed said, drawing a comparison to Champion.” The book chronicles methods included poisoning an aspirin the aggressive pursuit of leakers Brennan’s life and 34-year Supreme Court bottle in Anderson’s home or staging a and whistleblowers by the Obama tenure from 1956 to 1990, during which car crash or mugging. Arrests for the administration. But Feldstein contrasted the justice played a signifi cant role in Watergate break-in ultimately sidelined Anderson’s approach of standing up shaping the contemporary judicial view the plot, Feldstein said. for his sources—by “body-blocking” of the role of freedom of speech and The other meaning of “poisoning the government offi cials with blackmail and the press, becoming one of the most press,” Feldstein explained, applied to threats—to other media organizations’ infl uential justices in history. the role Nixon’s and Anderson’s scandal relative silence in defense of their Silha Events, continued on page 31 30 Silha Events, continued from page 30 wrote, but decided not to publish, in “we desert our most enobling ideals.” Brennan, Wermiel explained, had a the 1985 case Dun & Bradstreet, Inc. Wermiel also discussed Brennan’s “schizophrenic” relationship with the v. Greenmoss Builders, Inc. as one of “unique” approach to deciding cases, press because his robust, principled Brennan’s most passionate defenses of which made him so infl uential. Although defense of the First Amendment did press freedom. At the time, many people he was not considered one of the court’s not always match the “private Justice in the legal community, including some of “intellectual giants,” Wermiel said, “he Brennan,” who did not particularly like Brennan’s colleagues on the court, were was the best lawyer among them.” It was reporters or want to have anything to criticizing the “actual malice” standard Brennan’s focus on winning majorities do with them. Wermiel provided several for libel of public offi cials and fi gures through compromise, rather than holding anecdotes that illustrated Brennan’s that Brennan articulated in the 1964 case fi rmly to a set of principles, that led to personal distaste for reporters, including New York Times v. Sullivan. According his success from “behind the scenes,” a long-standing refusal to talk to a to that standard, a public offi cial or Wermiel said. Of Brennan’s notorious New York Times reporter because of public fi gure cannot win damages in a knack for compromise, Wermiel said, “he the paper’s coverage of a scandal that libel case unless he or she can prove that wouldn’t give away the entire store, but implicated Brennan’s son, and an instance the offending statement was published he’d give up several shelves full” in order when Brennan pushed a journalist out of with knowledge of its falsity or reckless to reach a majority. an elevator before the doors closed when disregard for whether it was true or false. Both authors signed copies of their he was surprised and bothered by the In his unpublished dissent, Brennan books following the presentations. reporter’s line of questioning. wrote that if it abandoned that the Silha Center events are supported by a Meanwhile, Wermiel explained, “actual malice” standard, the court would generous endowment from the late Otto Brennan’s “deep seated” faith in the demonstrate little confi dence in citizens’ Silha and his wife, Helen. Audio of both “multifaceted, critical, core role” the abilities to debate and discuss matters events is available on the Silha Center’s press plays in a democracy drove of public importance and determine Web site at http://silha.umn.edu/events. the best course of action, instead giving his strong and consistent defense of – PATRICK FILE that responsibility to courts and the the news media’s First Amendment SILHA FELLOW AND BULLETIN EDITOR rights. Wermiel cited a dissent Brennan government. In so doing, Brennan wrote,

News Council, continued from page 29 instantaneous outlet for complaints, and law at the University of Minnesota, of the news council, and discussed concerns and commentary on the told the First Amendment Center that continuing their efforts on a volunteer news. Our hearing process, which was the council “was voluntarily supported basis, but “none of those avenues bore both thorough and, as a result, time- (fi nancially and ‘morally’) by many fruit.” According to Brauer’s post, consuming, couldn’t measure up to the Minnesota-based media, but those who Carideo said money remaining in the instant access allowed by electronic did not support it were still subject to MNC’s endowment fund would go to media,” Carideo wrote. being brought before it involuntarily for the “Minnesota News Media Institute, In his February 3 blog post, Brauer a hearing, and could be tried in absentia a Minnesota Newspaper Association- noted that some members of the media if they refused to participate.” Kirtley affi liated nonprofi t, to hold public forums, community did not view the closure as also said that the council had taken train journalists and fund research a huge loss. MNA General Counsel Mark complaints “from governmental entities projects.” Anfi nson said that while the MNC was (like city councils) regarding ‘fairness’ The MNC’s funding losses coincided a “glorious experiment that goes down in editorials” some of which “were with another problem for the to the honor and praise of its creators” thinly disguised libel claims that the organization. As Brauer wrote in his its goals of reducing libel claims and governmental entities would never have February 3 post, “The public didn’t rely bolstering the credibility of the news been able to bring in a court of law—and on the News Council like it used to.” media were not “ultimately met.” for good reason, in my judgment, because According to Brauer, the MNC averaged According to the First Amendment of the First Amendment protection for four to six hearings annually until 2008, Center, Rieder said news councils face statements of opinion.” Kirtley told the but the number of complaints had unique problems. “The deck is stacked First Amendment Center that she had dropped steadily starting in the early against them. To succeed, they need shared her concerns about the Minnesota 2000s. Brauer also wrote that “complaints the willing participation of the news News Council with its last two directors. fell from 142 in 2003 to 50 in 2008, 35 in organizations they plan to scrutinize, both Carideo told Brauer that the loss of the 2009, and 25 in 2010.” in terms of participating in the process council meant the loss of an “independent In his February 1 statement on and helping to fund the council.” Rieder voice.” In his February 1 statement, the MNC website, Carideo cited the said tensions with media have caused Carideo thanked the MNC’s supporters, “growth and expansion of the Internet” problems for other news councils. “The and said “becoming the longest-living as contributing to shrinking public opposition of major newspapers is what organization dedicated to fair and trusted engagement with the news council. “The killed the National News Council,” Rieder journalism in America” was “something proliferation of blogs, which allowed added. The National News Council was to be proud of.” – SARA CANNON news consumers their own distinct founded in 1973 and dissolved in 1984. SILHA CENTER STAFF voices, email and comment sections Jane Kirtley, director of the Silha to online news stories, provided an Center and professor of media ethics 31 Silha Center for the Study of Media Ethics and Law Non-profi t Org. School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID 111 Murphy Hall Twin Cities, MN Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625-3421

2011 Silha Lecture: Mark Stephens, Attorney for Julian Assange October 4, 2011, 7:00 p.m. - Coffman Union Theater

Join us for the 26th Annual Silha Lecture, featuring attorney Mark Stephens. Stephens is the head of the International and Media department at the London-based law fi rm Finers Stephens Innocent. He has argued many high profi le cases in Great Britain since the 1980s, and in 2008, The Times of London called him “one of the best advocates for freedom of expression.” Stephens has represented WikiLeaks founder and editor in chief Julian Assange since 2010.

More details to come at www.silha.umn.edu/events.