A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2010 U.S. Supreme Court Weighs California’s Ban on Violent Video Game Sales being.” Second, those options must be portrayed in the game in Silha lecturer Paul Smith urges justices to a way such that “[a] reasonable person, considering the game fi nd state law unconstitutional as a whole, would fi nd appeals to a deviant or morbid interest of minors … is patently offensive to prevailing standards in n October 18, 2010, Paul Smith, a veteran of more the community as to what is suitable for minors … [and] as a than a dozen Supreme Court oral arguments, whole, lack[s] serious literary, artistic, political, or scientifi c spoke to an overfl ow crowd at the University value for minors.” The defi nition in the California statute is a of Minnesota’s Cowles Auditorium for the reformulation of the rule of law announced in the landmark 25th Annual Silha Lecture about another case U.S. Supreme Court case Ginsberg v. New York, 390 U.S. 629 Othat he was about to argue before the Court. In that case, (1968) which upheld a New York statute prohibiting the sale Schwarzenegger v. Electronic Merchants Ass’n, No. 08-1448 of adult magazines to minors. The Ginsberg test is identical in (2010), Smith argued against the State of California, which he every respect to the test in §1746, except that Ginsberg bans said “tried to take the doctrine works that “appeal[ed] to of obscenity for minors … and . . . prurient interests,” not apply it to violence in video “ It has never been understood that the “deviant or morbid interests games.” Smith argued that freedom of speech did not include of minors.” Under the the Court should not create portrayals of violence. What’s next after California law, stores which a new exception to the First violence? Drinking? Smoking? Movies sell prohibited video games Amendment allowing states to minors would be subject to to prohibit the sale of violent that show smoking can’t be shown to fi nes of up to $1,000. video games. children?” Trade groups representing Currently a partner —Justice Antonin Scalia video game developers with Jenner & Block’s U.S. Supreme Court challenged the California law Washington, D.C. offi ce, Smith in federal district court as specializes in commercial facially unconstitutional, and and telecommunications litigation, intellectual property, and sought a preliminary injunction to prevent its enforcement, election law. Among his best-known Supreme Court cases are arguing that video games are a protected form of expression Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. under the First Amendment. In a 2005 ruling, United States American Library Ass’n, 539 U.S. 194 (2003). Smith clerked District Judge Ronald Whyte found, as a threshold matter, for U.S. Supreme Court Justice Lewis Powell in 1980-1981. In that “[n]either the Supreme Court nor the Ninth Circuit has 2010 he was named one of National Law Journal’s “40 Most ever extended the Ginsberg analysis beyond sexually-obscene Infl uential Lawyers of the Decade.” material.” The state argued that Ginsberg should apply to § Smith’s most recent Supreme Court case was prompted 1746 because the rationale in Ginsberg—protecting children by California’s 2005 passage of California Civil Code § 1746, from harm that exposure to the material would cause— also which prohibited the sale of violent video games to any person applied to violent video games. For example, Whyte wrote, the under the age of 18. The statute had a two-part defi nition for state argued that it “could regulate a minor’s access to games “violent video game.” First, the game must be one “in which the about embezzling, bomb building, and shoplifting, without range of options available to a player includes killing, maiming, violating the First Amendment, if a causal connection with dismembering, or sexually assaulting an image of a human Video Games, continued on page 4 Inside this Issue Fall 2010: Volume 16, Number 1

1 U.S. Supreme Court Weighs California’s Ban on 24 Journalism Suffers amid Drug Wars in Mexico Violent Video Game Sales International Press Freedom

Cover Story

26 International Courts Favor Newsgathering 6 2010 Midterm Election Ads Spark Lawsuits; Rights Journalists’ Contributions Raise Ethical International Press Freedom Questions Media and Politics 29 Journalists Question Implications of Covering Quran Burning and NYC Muslim Community 9 Courts, Of cials Answer Questions Raised by Center Digital Communication and Public Records Media Ethics Public Records

11 Congress Revokes New FOIA Exemption for Securities and Exchange Commission Freedom of Information What do you think of our new look?

12 Federal and State Courts Consider Proposals to We want to hear from you! Permit Cameras in Trial Proceedings Email your feedback to us at [email protected]. Cameras in Courtrooms We look forward to hearing your suggestions and comments on our new format. See the next page 15 The Media and the Military: Guantanamo Access for more information about the new approach to Rules Loosened; Other Guidelines Set to Limit the Bulletin. Leaks Access

18 Access Limited after California Pipeline Explosion Find us online Access Visit us at www.silha.umn.edu for an online archive of the Bulletin, information about 19 Law Firm’s Approach to Protecting News Media upcoming events, and video and photos of past Copyrights Raises Eyebrows Silha Center events.

Copyright Would you prefer to be reached by email? Share your email address with us by writing to silha@ 22 Updates: Punishments for Music Copyright umn.edu, and we will use it to keep you informed Infringers about upcoming events and new editions of the Bulletin online. Copyright

2 Director’s Note: The WikiLeaks Quandary, and a Welcome

s the Bulletin goes to press, Julian Assange, records, they argue, does not make it “part of that media.” the founder and editor-in-chief of WikiLeaks, By distinguishing WikiLeaks from the mainstream media, is in custody in the United Kingdom. He faces they suggest that Assange and his colleagues should not be extradition to Sweden to answer questions covered by statutes such as reporter’s shield laws, or by the regarding alleged sex offenses. Assange, his strong constitutional protections against prior restraints on Alawyers, and his many supporters claim that the charges the press recognized by the U.S. Supreme Court in cases are simply a pretext to silence the controversial distributor like “the Pentagon Papers.” New York Times v. United of thousands of classifi ed documents, including, in late States, 403 U.S. 713 (1971) November 2010, embarrassing U.S. embassy cables. But the reality is that “doing journalism” is what makes Despite calls from political fi gures a journalist, a journalist. A fearless and independent press DIRECTOR’S to charge Assange with crimes ranging challenges the status quo, questions authority, and allows NOTE from theft of government property the public to keep an eye on the government, especially to espionage, Attorney General Eric when government resists that oversight. It is sometimes Holder faces signifi cant legal hurdles, not the least being unpopular and often controversial. Yet it is essential to a whether the government even has jurisdiction over an free society. individual who is neither an American citizen nor located in From an ethical perspective, any entity that claims to be the United States. part of “the media” should be accountable. It should take Journalists and open government advocates are responsibility for its decisions, and explain how they are confl icted in this case. They support access to information. reached. But the First Amendment was never intended to They are disappointed that the Obama administration, after protect only “responsible” journalists. Declaring WikiLeaks promising greater transparency, has continued to thwart a media outlaw is a risky undertaking. Journalists should it. And they are skeptical of claims that these disclosures think long and hard before doing so. genuinely threaten national security and international diplomacy. * * * On the other hand, WikiLeaks’ seemingly indiscriminate We welcome you to a new volume of the Silha Bulletin. release of documents, apparently without thorough review You will notice a new approach to our editorial content, to assess what risks they might pose to safety or privacy, as well as a new design. From an editorial perspective, makes many legacy journalists uncomfortable – even those our staff of graduate and law students explores current like The New York Times or the London-based Guardian topics by taking a more thematic approach than in the which have received and subsequently published many of past. In this issue, you will fi nd longer articles that wrestle them. with complicated issues arising in digital media, including In an op-ed essay published by The Australian freedom of information, video games censorship, access, newspaper on December 8, Assange claims that WikiLeaks and intellectual property. We also include an overview has created “a new type of journalism: scientifi c journalism.” of some of the legal and ethical questions prompted by This he describes as utilizing the Internet, as well other the most recent election, as well as developments in media outlets, not only to report the news, but to provide international law. readers with links to the original documents that form We hope that our re-designed Bulletin complements and the basis for a story so that they can judge for themselves enhances that new approach in ways that are both user- whether it was reported accurately. “Democratic societies friendly and aesthetically pleasing. We are very grateful to need a strong media and WikiLeaks is part of that media,” he Steve Wolf, a senior graphic designer at Goody Clancy in writes. http://www.theaustralian.com.au/in-depth/wikileaks/ Boston, for his generous donation of time and expertise in dont-shoot-messenger-for-revealing-uncomfortable-truths/ assisting us. story-fn775xjq-1225967241332 We invite you to let us know what you think. Some contend that what WikiLeaks is doing is not – JANE E. KIRTLEY “journalism.” Serving as a conduit for leaked government SILHA PROFESSOR OF MEDIA ETHICS AND LAW SILHA CENTER DIRECTOR 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 Video Games, continued from page 1 harm to children could be established.” Video Software Dealers jurisprudence,” which has “consistently addressed obscenity Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005) with reference to sex-based material” and not violence-based Whyte rejected the state’s arguments, writing that “[n]o material. Therefore, the panel “decline[d] the State’s invitation court has previously endorsed such a limited view of minors’ to apply the Ginsberg rationale to materials depicting violence, First Amendment right,” and that therefore § 1746 was a and hold that strict scrutiny remains the applicable review content-based restriction on protected First Amendment standard.” Video Software Dealers Ass’n v. Schwarzenegger, expression to which strict scrutiny 556 F.3d 950 (9th Cir. 2009) applied. Under a strict scrutiny analysis, The panel wrote that although the state submitted myriad COVER STORY a content-based restriction on expression psychological testimony on the purported adverse effects is constitutional only if the state can of violent video games on children, “[n]one of the research justify the regulation by a “compelling state interest” and that establishes or suggests a causal link between minors playing the regulation is the “least restrictive means” of achieving video games and actual psychological or neurological harm that interest. Whyte issued a temporary injunction blocking ... [i]n fact, some of the studies caution against inferring enforcement of the law until the issue of its constitutionality causation.” Therefore, “although [the panel] does not require could be determined. the State to demonstrate a ‘scientifi c certainty,’ the State must Two years later, Whyte heard arguments on whether the come forward with more than it has.” Concluding that the state law withstood strict scrutiny. Whyte found that “prevent[ion had not met its burden, the panel affi rmed Whyte, and held the of] violent, aggressive and antisocial behavior by minors who law unconstitutional. play video games,” are compelling state interests “except to Despite losing twice in lower courts, the State of California the extent they intend merely to control a minor’s thoughts.” appealed § 1746’s constitutionality to the U.S. Supreme Court, Whyte acknowledged that whether these harms are truly which granted certiorari on the question of “whether a state compelling is subject to debate. For example, Whyte noted that regulation for displaying offensive, harmful images to children in the case American Amusement Machine Ass’n v. Kendrick, is invalid if it fails to satisfy the exacting ‘strict scrutiny’ 244 F.3d 572 (7th Cir. 2001), 7th U.S. Circuit Court of Appeals standard of review.” Judge Richard Posner argued that “[t]o shield children right In addition to the merit briefs in the case, which largely up to the age of 18 from exposure to violent descriptions reiterated arguments made in the district and appeals court, and images would not only be quixotic, but deforming; it several media law advocacy groups fi led an amicus brief would leave them unequipped to cope with the world as we on behalf of the Electronic Merchants Association. The know it.” Nevertheless, Whyte found that “the government groups fi ling the brief included, among others, the Reporters has a compelling interest in protecting the physical and Committee for Freedom of the Press, The First Amendment psychological well-being of minors.” Video Software Dealers Center, and the Society of Professional Journalists. The Ass’n v. Schwarzenegger, 2007 U.S. Dist. LEXIS 57472 (N.D. brief argued that creating a First Amendment exception for Cal. 2007) the government to prohibit violent speech is the edge of a However, Whyte found that § 1746 was not the least dangerous slippery slope towards chilling other protected restrictive means of achieving those interests. Whyte wrote speech. Reporters may be less apt to report in detail on news that the defi nition of “violent video game” in the statute “has stories involving violence out of fear that they would open no exception for material with some redeeming value, and is themselves up to sanctions by the government, the brief therefore too broad. The defi nition could literally apply to some argued. classic literature if put in the form of a video game.” Whyte In the November 2 oral arguments, many of the Court’s noted that in borrowing language from Ginsberg in drafting questions to State Assistant Attorney General Zackery the language of the statute, “there is some precedent for Morazzini focused on why the state singled out video games fi nding the defi nition suffi ciently narrow to meet constitutional for regulation when other forms of expression also include standards.” But Whyte found that the statute was nonetheless violent content. Associate Justice Sonia Sotomayor asked not the least restrictive means because studies submitted to Morazzini “Could you get rid of rap music? Have you heard the court showed that early adolescents might react to violent some of the lyrics of some of the rap music … that have been imagery differently than older adolescents. Therefore, Whyte sung about killing people and about other violence directed concluded, because the act applies to all people under 18, and to them?” Similarly, Chief Justice John Roberts and Associate not only those who would be adversely affected by violence Justice Ruth Bader Ginsburg asked why not also ban violent depicted in video games, the law was not narrowly tailored. movies, books, or music. Morazzini replied that studies have Finding that the law failed to pass strict scrutiny, Whyte shown negative psychological effects of video games, which is permanently enjoined the state from enforcing the law. what prompted the law in the fi rst place, whereas the negative The state appealed to a panel of the 9th U.S. Circuit Court effects of rap music, books, or movies have not been proven. of Appeals. The Court noted that the state’s attempt to apply Justice Elena Kagan then asked whether, if a new study came Ginsberg’s standard outside the bounds of sexually prurient out demonstrating the negative effects of violent movies on materials was “an invitation to reconsider the boundaries of children, the state could ban those movies. Morazzini declined the legal concept of ‘obscenity’ under the First Amendment.” to answer Kagan’s question directly. The appellate panel found that “Ginsberg is specifi cally Justice Antonin Scalia’s questions probed Morazzini on the rooted in the [Supreme] Court’s First Amendment obscenity Video Games, continued on page 5 4 Video Games, continued from page 4 historical role of violence in Western culture. “Some of the under the First Amendment, whether parents need to have Grimm’s fairy tales are quite grim to tell you the truth,” Scalia such a new exception created, and whether or not if you are said, “are you going to ban them too?” “Not at all, your honor,” going to do it you could possibly fi gure out what the scope of Morazzini replied. Later in the argument Scalia expressed that exception is.” concerns about creating a new category of unprotected, violent Smith’s arguments before the Supreme Court refl ected speech. “I am concerned with the First Amendment, which points made two weeks earlier in his Silha Lecture. In the says Congress shall make no law abridging the freedom of lecture, Smith said that research that is supposed to support speech. … It has never been understood that the freedom of restricting violence in video games does not provide enough speech did not include portrayals of violence. What’s next after evidence to “draw a law that is workable.” He added that it violence? Drinking? Smoking? is important for the law to Movies that show smoking can’t “ We do not have a tradition in this distinguish between sexual be shown to children?” Scalia materials and violent materials, asked. Before Morazzini could country of telling children they and that there is a principled respond, Justice Samuel Alito, should watch people actively hitting First Amendment basis for poking fun at Scalia’s notorious schoolgirls over the head with a shovel restricting speech based on adherence to constitutional so they’ll beg [for] mercy, being the former and not the latter. originalism, interjected with a “[Violence] is a part of minors’ question that prompted laughter merciless and decapitating them, lives in a way that explicit from the audience: “I think shooting people in the leg so they fall sexuality is not a part of their what Justice Scalia wants to down. We protect children from that.” lives,” Smith said, “and so it is, know is what James Madison because of that reality, diffi cult thought about video games. to fi gure out how you could Did he enjoy them?” Scalia —Chief Justice John Roberts draw a statute that says [the replied, “No, I want to know U.S. Supreme Court fi lms] ‘Star Wars’ and ‘Lord of what James Madison thought the Rings’ are over here, but about violence. Was there any indication that anybody thought, [the game] ‘Grand Theft Auto’ is over here.” when the First Amendment was adopted, that there … was In his lecture, Smith did not speculate on how he believed an exception to it for speech regarding violence? Anybody?” the justices would be inclined to vote, but said that he Morazzini did not offer an answer. was optimistic about his chances because of strong First During Smith’s argument, the Court focused on whether Amendment values on the current Court. Although the harm to children might result from exposure to violent video Court has become more conservative in the past 15 years, games. Roberts pointed out that in Ginsberg, there was also Smith said, it has not “done much cutting back on First competing psychological testimony on both sides of the Amendment rights.” He added that in at least one recent free case, and that therefore the Court could rely on its “common speech case, United States v. Stevens, 130 S.Ct. 1577 (2010), sense” as much as on expert testimony in assessing the the majority opinion, written by conservative Chief Justice harm to children. Roberts also asked whether the level of Roberts “could’ve easily been written by Justice Brennan, the violence depicted in some video games is greater than the famous advocate of First Amendment rights.” For more on the kind historically permitted in children’s movies, books, and Stevens Case, see “Supreme Court Strikes Down Law Banning songs. “We do not have a tradition in this country of telling Depictions of Animal Cruelty, Citing ‘Alarming Breadth’ of children they should watch people actively hitting schoolgirls Statute” in the Winter/Spring 2010 issue of the Silha Bulletin. over the head with a shovel so they’ll beg [for] mercy, being A ruling in Schwarzenegger v. Electronic Merchants Ass’n is merciless and decapitating them, shooting people in the leg expected by late June or early July 2011. so they fall down,” Roberts said. “We protect children from The annual Silha Lecture is supported by a generous that.” Smith responded by noting that it had been parents, not endowment from the late Otto Silha and his wife, Helen. Video the government, that historically shielded children from that of the lecture is available on the Silha Center’s Web site at level of violence, and that “[t]he question before this Court http://silha.umn.edu/events. is whether you are going to create an entirely new exception – GEOFF PIPOLY SILHA RESEARCH ASSISTANT

5 2010 Midterm Election Ads Spark Lawsuits; Journalists’ Contributions Raise Ethical Questions

he midterm elections of political group fi nanced and controlled that Tony Hopfi nger, a reporter for the 2010 saw a variety of issues by Our Country Deserves Better, website Alaska Dispatch, approached involving media ethics and a California-based political action Miller with a small digital video camera law: lawsuits and threatened committee. Tea Party Express supported and asked him questions about whether lawsuits over campaign ads, Miller in the Republican Primary. he was ever formally reprimanded in Ta reporter detained by private security On October 4, Murkowski’s lawyer, 2008 when he worked as an attorney guards, and a Timothy McKeever, sent a letter to local for the Fairbanks Northstar Borough, MEDIA AND revived discussion broadcasters in Alaska which said the which governs the city of Fairbanks POLITICS about whether broadcasters were under a “legal and and the region surrounding it. Three reporters and moral obligation” not to air the ad, The men, who did not identify themselves, other news commentators should make Washington Post reported. McKeever’s told Hopfi nger to stop asking questions. political contributions. letter went on to say that “[w]hen a When Hopfi nger continued to ask station broadcasts false or incorrect questions while videotaping Miller, the Murkowski Threatens to Sue TV advertisements, the station can be held men restrained Hopfi nger, handcuffed Stations Running Pro-Miller Ads liable for such action in a court of law him, and led him to the end of the a Lawyers for Sen. Lisa Murkowski and can lose their broadcasting license,” school hallway where he was held for 30 (R-Alaska) threatened legal action against according to Alaska Dispatch. The letter minutes until police arrived and released local television stations which aired a asked the stations not to broadcast the him. campaign ad on behalf of her opponent, ad until they could verify its substantive According to Miller’s version of Republican candidate Joe Miller. accuracy. events, posted on his campaign website Murkowski’s campaign claimed the ad KTUU attorney John McKay said he the day of the incident, Hopfi nger made contained false statements and could did not believe that a legal challenge to threatening gestures toward Miller, “in expose the stations to legal liability. the ad would be successful, according an attempt to create and then record According to an October 5 post on to an October 5 KTUU story. “Stations a ‘confrontation’ with the candidate.” Anchorage television station KTUU’s that I know in town and work with are Miller’s website said that “the blogger website, an ad titled “Arrogant Lisa careful about these things anyways, they [then] physically assaulted another Murkowski—You Lost!” painted a wouldn’t knowingly run things that are individual and made threatening gestures negative picture of Murkowski, who ran false,” McKay said. and movements towards the candidate,” against Miller as a write-in candidate Unoffi cial results had Murkowski at which point the guards detained him. after losing to him in Alaska’s Republican winning reelection by more than 10,000 Hopfi nger did not deny shoving one primary election. The ad accused votes, according to The New York Times of the security guards, but claimed the Murkowski of having “not earned” her on November 19, but Miller challenged guard shoved him fi rst, according to Senate seat because she was initially that result in a state lawsuit. When the an October 17 report on CNN.com. Lt. appointed to the seat by her father, Bulletin went to press, the dispute Dan Parker of the Anchorage Police Frank Murkowski, after he vacated the had not been resolved and an offi cial Department told CNN that under Alaska seat to assume Alaska’s governorship in winner had not been declared, although law, private security guards are allowed 2002. Although Murkowski was initially Murkowski claimed victory on November to make “private person arrests,” appointed to her seat, she won re- 17. similar to citizens’ arrests, but said his election in 2004. The ad also claimed that department was still looking into whether Murkowski improperly infl uenced the Miller Security Guards Detain criminal charges would be fi led against absentee vote count in the Republican Reporter the guards. primary, and that she attempted to On October 17, private security guards According to an October 17 blog post manipulate Alaska’s Libertarian Party detained and handcuffed a newspaper by Glenn Greenwald at Salon.com, two into giving her its spot on the ballot for reporter who was trying to ask of Miller’s security guards were active the general election after Murkowski Republican Alaska Senate candidate Joe duty U.S. soldiers. Greenwald noted that lost to Miller, according an October 4 Miller a question at a public event at an Department of Defense directive 1344.10 story posted on Alaska Dispatch, a news Anchorage middle school. Miller did not prohibits activity duty military personnel and politics website. The Washington deny that his employees—some of whom from “participat[ing] in partisan Post reported October 4 that Libertarian were active-duty U.S. soldiers—detained political management, campaigns, or party chairman Scott Kohlhaas said the reporter, but claimed that they did conventions.” The Anchorage Daily that although he met with Murkowski’s so to protect the candidate from threats News reported October 18 that Maj. Bill campaign manager after the primary, he and aggressive behavior that the reporter Coppernoll, public affairs offi cer for the did not feel “manipulated.” displayed. Army in Alaska, said the two soldiers The Miller ad was funded and An October 17 story on the website did not have permission from their produced by Tea Party Express, a of Anchorage TV station KTVA reported Media and Politics, continued on page 7 6 Media and Politics, continued from page 6 current chain of command to work for according to an October 12 story on court, Carnahan’s campaign fi red back a private security detail, but the Army Reuters’ website. politically. On September 21, Carnahan did not know whether their employment The suit also claims that said in a press release that her campaign was authorized by previous company or Wallace’s privacy was violated under “stands behind” the ad, and although brigade commanders. Missouri common law when the ad the campaign temporarily removed the Coppernoll told the Anchorage Daily misappropriated Wallace’s image. ad from its website, the ad continued News that the Army allows off-duty Specifi cally, the suit claims that “the to air on local television, according to a soldiers to take outside employment if selection of distinctive and stylized September 21 post on the Washington the job does not interfere with readiness, camera angles” made it appear as though Post blog 44. Carnahan lost her bid for risk their own injury or negatively affect Wallace was endorsing Carnahan by Senate, and the “media” page of her the “good order” and discipline of their criticizing Blunt. campaign website—which had continued unit. Lawyers for Carnahan’s campaign to host the ad during the campaign—is no fi led a two-page motion to dismiss Fox’s longer online. Fox News Sues Missouri Democrat case on October 8. The motion noted Over Campaign Ad that Fox fi led its copyright claim to the The Citizens United Decision and the Fox News Corporation sued Missouri Wallace interview after it fi led its lawsuit Midterm Elections Democratic senate nominee Robin against Carnahan. “Because the Fox According to experts and government Carnahan for $75,000 over footage in a Network commenced its copyright claim agencies, the Supreme Court’s Jan. 21, Carnahan campaign ad that Fox claims prematurely, the Court cannot grant 2010 decision in Citizens United v. made it appear as though host Chris the Fox Network relief on its copyright Federal Election Commission had a Wallace endorsed Carnahan. infringement claim and must therefore signifi cant impact on how donors spent Politico blogger Josh Gerstein dismiss this claim” under 17 U.S.C. § money in the 2010 midterm elections. reported September 16 that the ad, which 411 (a), the motion argued. According The ruling struck down portions was posted on Carnahan’s campaign to Reuters, the 8th U.S. Circuit Court of a federal campaign fi nance law, website and ran on Missouri television of Appeals is unsettled on the issue asserting that the law impermissibly stations, contained footage from a of whether a party can prevail on a discriminated against the First 2006 interview Wallace conducted with copyright claim where the copyright Amendment rights of corporations to Carnaham’s Republican opponent, Roy is fi led after litigation commences. On support political candidates for offi ce. Blunt, who was a congressman at the November 17, U.S. District Judge Gary Justice Anthony Kennedy, writing for time. In the interview and the ad, Wallace Fenner denied Carnahan’s motion to the fi ve-member majority, wrote that said “You just said a moment ago that dismiss, noting that although Fox News’s there is no principled way to distinguish you have to show that you’re the part of original complaint did not indicate that between large media corporations, which reform … but some question whether you the interview had been copyrighted, effectively participate as speakers in are the man to do that. Are you the one the company subsequently amended the marketplace of ideas, from other to clean up the House?” While a graphic its complaint to refl ect an effective corporations, which were foreclosed by showed on the screen, Wallace noted that copyright fi ling. the law from participating in the same Blunt paid $485,000 to a fi rm connected In a September 24 post on the website way. “If the First Amendment has any to disgraced lobbyist Jack Abramoff, and Slate, property law professors Sonia force, it prohibits Congress from fi ning or that Blunt aided tobacco company Phillip Katyal of Fordham Law School and jailing citizens, or associations of citizens, Morris in 2002 while Blunt was dating Eduardo Penalver of Cornell Law School for simply engaging in political speech,” a lobbyist for the company. The ad left argued that Fox’s case was substantively Kennedy wrote. Citizens United v. FEC, out Blunt’s answer to Wallace’s question, “bogus” and that the ad’s use of Fox’s 130 S. Ct. 876 (2010) instead freezing on an image of Blunt footage falls into the “fair use” exception According to an October 2010 while an announcer said “Roy Blunt. The found in § 107 of the Copyright Act. The study by the Campaign Media Analysis very worst of Washington.” professors noted that in a fair use claim Group, a nonpartisan organization that The lawsuit, fi led September 15 “courts examine the character of the tracks money in politics, television in federal court and in which both use. Political commentary and criticism advertisement spending by third-party Fox News Corporation and Wallace are especially favored. Commercial uses interest groups not associated with a individually are named plaintiffs, are not.” Fox’s argument that the use of specifi c candidate for federal offi ce more advances two claims. First, the suit its footage was commercial because it than doubled in 2010, compared to the alleges that the ad violated the Copyright appeared in a campaign ad was weak, the 2006 midterm elections. Act, 17 U.S.C. §101, et seq., when it used professors wrote, because “courts have The amount of money fl owing into Wallace’s image from the interview with repeatedly rejected the proposition that the midterms was directly attributable to Blunt. Fox News alleges that the network [using video in campaign ads] makes a the Citizens United ruling, according to “has fi led with United States Copyright campaign ad commercial. This is why the Trevor Potter, a former Federal Election Offi ce an application for copyright claim about Wallace’s publicity rights also Commission (FEC) Chair and critic of the registration in the FNS interview.” That fails.” decision. Potter told The New York Times application was fi led September 24, In addition to fi ghting the lawsuit in Media and Politics, continued on page 8 7 Media and Politics, continued from page 7 campaigns without obtaining prior the evolving state of media ethics in the on October 7 that the Court’s ruling approval from management fi rst because 21st Century. was signifi cant for its “psychological” it considers such donations a breach The study applied a broad defi nition impact on donors. Potter said that even of journalistic ethics, according to a of “journalist” and “media professional.” if wealthy donors do not understand the November 7 post on the website Politco. The CRP’s data set included journalists nuances of the case, they understand Olbermann returned to the air from what it called “hard” news sources, its thrust to be that citizens and on November 9, and on his program examples of which included The companies are allowed to spend more that night he said he was unaware of Washington Post, Vanity Fair, News on political campaigns. Potter added NBC News’s policy when he made the Corp., The New York Times, and Reuters, that more “casual observers” believe contributions. He also criticized the and from “soft” news organizations such that corporations may spend unlimited Citizens United ruling and the lack of as ESPN, Vogue, and local community- amounts of money after Citizens United. disclosure requirements for donations to based news sites. “That change in psychology … has made nonprofi t groups whose primary function Some individuals donated thousands a difference in terms of the amount of of dollars to money now being spent,” he added. The Center for Responsive Politics candidates. CRP Steven Law, head of the conservative reported that 65 found that 235 people who identi ed percent of the organization American Crossroads, a themselves as “journalists” or “media tax-exempt fundraising group and a individual donations supporter of the Citizens United ruling, professionals” together donated over went to Democratic agreed. “The principal impact of the $469,000 to various candidates for candidates. Chris Citizens United decision was to give Hayes, Washington federal of ce during the 2010 midterm Editor for The prospective donors a general sense congressional elections. that it was within their constitutional Nation magazine rights to support independent political gave $250 to Josh activity,” Law told the Times. For more is to advocate for candidates. “The point,” Segall—an Alabama Democrat and close on the Citizens United decision, see Olbermann said, was “if I had given the friend of Hayes. Hayes told CRP that “Supreme Court Strikes Down Campaign money [to candidates funneled] through he has a personal rule against donating Finance Regulation for Corporations” in the U.S. Chamber of Commerce, you to politicians, but said he thought the the Winter/Spring 2010 issue of the Silha would have never, ever known.” Segall case was different because of his Bulletin. A second MSNBC host—former personal friendship with the candidate. Republican congressman Joe His friendship would ethically prevent Journalists Gave More than Scarborough—was also suspended him from covering the race in Alabama’s $469,000 in 2010 Elections for making donations. On November 3rd Congressional District anyway, Hayes Two high profi le suspensions followed 19, New York Times Media Decoder said, so “whatever threat of confl ict is revelations that cable news pundits blogger Brian Stelter reported that NBC already there. It seems like the least of violated their employer’s ethics policies News had suspended Scarborough for it to throw an extra $250 on top of it,” by contributing to political campaigns. two days for making eight previously Hayes told CRP. Hayes was initially slated But a study of journalists’ political undisclosed contributions of $500 apiece to be the fi ll-in host of “Countdown” donations suggests that fewer journalists to Republican candidates with whom during Olbermann’s suspension, consider political donations to be an he was personally close. In a statement, according to a November 7 Politico post, ethical breach. Scarborough said the contributions were but the network withdrew from that On November 5, MSNBC commentator “not relevant to my work at MSNBC” arrangement after discovering that Hayes Keith Olbermann was suspended without because he made them “to close personal also donated to candidates. pay from his on-air role as host of the friends and family members and were Other journalists on CRP’s list of show “Countdown” after the network limited to local races.” But he added that donors see things differently from Hayes. discovered that Olbermann donated “there is nothing more important than Pulitzer Prize-winning investigative to the campaigns of three Democratic maintaining the integrity of [NBC News’] journalist Seymour Hersh, who donated candidates for federal offi ce. highly respected brand.” $1,000 to Rep. Walter Minnick (D-Idaho) The donations—each in the amount of The actions of Olbermann and told CRP he sees no ethical confl ict with $2,400, which is the maximum individual Scarborough are not out of the ordinary reporters donating to political campaigns. donation allowed under federal for journalists, according to a September “It’s nobody’s business,” Hersh said. law—were to the campaigns of Arizona 2010 study of FEC fi lings by the Center “I’m giving money to people I think are Representatives Raul Grijalva and for Responsive Politics (CRP), a good people.” Nicholas Benton, editor- Gabrielle Giffords, and Kentucky Senate nonpartisan think tank. The study found in-chief of the Falls Church News- candidate Jack Conway. The Grijalva that 235 people who identifi ed themselves Press in Virginia, who donated over donation occurred on October 28, the as “journalists” or “media professionals” $4,000 to Democratic candidates and same day the congressman was a guest together donated over $469,000 to various the Democratic National Committee, on “Countdown.” candidates for federal offi ce during the argued that if journalists are inactive NBC News has a policy against 2010 midterm congressional elections— in the political process, they become donations which raised questions about employees contributing to political Media and Politics, continued on page 9 8 Courts, Offi cials Answer Questions Raised by Digital Communication and Public Records e-mail, and made a series of unfulfi lled that the public maintains control over E-mail ‘metadata’ is requests for the original e-mail with all of their government, and we will not deny public in Washington; its metadata, including information about our citizenry access to a whole class recordkeeping rules apply the date, time, sender, and recipient of of possibly important government the original message. Failing to locate information.” to social media for federal the original message, Fimia eventually Calling the case an “issue of fi rst agencies claimed she must have accidentally impression,” the Washington Supreme destroyed it. O’Neill fi led suit against the Court relied on a 2009 decision by the echnological innovations in city under the PRA, Wash. Rev. Code § Arizona Supreme Court that ruled that, communication continue to 42.56. for the purposes of Arizona’s open create questions about what A trial court dismissed O’Neill’s suit records law, “metadata in an electronic Tconstitutes a “public record” for but a state appeals court reversed, ruling document is part of the underlying the purposes of state and federal open that the city had failed to fulfi ll the document [and] does not stand on its records laws. In the fall of 2010, one request because although it provided own.” Lake v. City of Phoenix, 218 P.3d state supreme O’Neill with a copy of the same message 1004 (Ariz. 2009) PUBLIC RECORDS court ruled on that the original sender sent to another The Washington Supreme Court also the “metadata” city council member, the metadata on the ruled that pursuant to its attempts to included in e-mails, and the national version sent to Fimia could be different, fulfi ll O’Neill’s request, the city should archivist urged federal agencies to so the city was required to provide it. “inspect Fimia’s home computer’s hard preserve records of their use of social The Washington Supreme Court drive for the requested metadata,” media. affi rmed the appeals court in a 5 to 4 adding that “this inspection is ruling, remanding the case back to a appropriate only because Fimia used her Washington State Supreme Court trial court “to give the City the chance personal computer for city business. If Rules ‘Metadata’ is Public to search for the requested metadata, government employees could circumvent On Oct. 7, 2010, the Washington State and to determine whether the City the PRA by using their home computers Supreme Court ruled that “metadata,” has violated the PRA.” Writing for the for government business, the PRA could which is information related to the majority, Justice Susan Owens said that be drastically undermined.” history, tracking, or management of an although the metadata on a message sent In a footnote, however, the Court said electronic document, is a public record or received by a public offi cial pertaining it “address[ed] only whether the City subject to disclosure under the state’s to government business is not usually may inspect Fimia’s home computer if Public Records Act (PRA). O’Neill v. visible to the senders and recipients, it she gives consent to the inspection. We City Of Shoreline 2010 Wash. LEXIS 870 qualifi es as a “public record” under the do not address whether the City may (Wash. Oct. 7, 2010) PRA because it “may contain information inspect Fimia’s home computer absent The case arose from a public records that relates to the conduct of government her consent.” request Shoreline, Wash. resident Beth and is important for the public to The Court instructed the trial O’Neill fi led with the city after Shoreline know.” Specifi cally, Owens wrote that court to fi nd that if the city refuses to Deputy Mayor Maggie Fimia claimed metadata “could conceivably include inspect Fimia’s home computer, they in a 2006 public meeting that she had information about whether a document have “indisputably” violated the PRA, received an e-mail, authored by O’Neill, was altered, what time a document was whereas if the city inspects Fimia’s home that accused the city council of improper created, or who sent a document to computer and the search turns up no conduct. O’Neill denied sending the whom. Our broad PRA exists to ensure Digital Records, continued on page 10

Media and Politics, continued from page 8 mere mouthpieces for campaigns and includes donations, according to the CRP. to public scrutiny. He added that the candidates. “To sit back passively and The Society of Professional Journalists’ appearance of a confl ict of interest is echo what political candidates and Code of Ethics says journalists should the functional equivalent of an actual politicians say without providing the “remain free of associations and activities confl ict. According to Hayes, at a readers of an assessment of the relative that may compromise integrity or damage minimum, reporters who donate should merits on the standpoint of truth and of credibility.” at least disclose their donations so that facts is a disservice,” he said. Aaron Quinn, a professor of the public will not believe their reporting Many large news outlets, including The journalism ethics at California State is compromised. “If you were paying for New York Times, Reuters, ABC News, University, told the CRP that journalists access,” Hayes told the CRP, “that would and NBC News have confl ict of interest are increasingly seen as public fi gures, be a scandal.” policies that prohibit employees from which makes their personal decisions – GEOFF PIPOLY directly participating in campaigns, which to donate to candidates more open SILHA RESEARCH ASSISTANT 9 Digital Records, continued from page 9 metadata or the same metadata already National Archives Encourages NARA Bulletin 2011-02 and available released to O’Neill, “the trial court must Agencies to Preserve Social Media online at http://www.archives.gov/ determine, consistent with this court’s Posts records-mgmt/bulletins/2011/2011-02. opinion, whether the City’s deletion of The Archivist of the United States sent html, Ferriero sought to provide agencies the metadata violated the PRA.” a bulletin to heads of federal agencies with broad “fundamental guidance” Although the ruling favors the free on Oct. 20, 2010 titled “Guidance on rather than “model schedules or step-by- fl ow of information, it raised a thorny Managing Records in Web 2.0/Social step guidance,” and charged agencies to issue of privacy that concerned the Media Platforms.” In the bulletin, U.S. “determine the most appropriate ways to court’s four dissenters. Justice Gerry L. Archivist David S. Ferriero observed that incorporate recordkeeping requirements Alexander wrote in his dissent that “I federal agencies “are using social media into their business processes and identify do not believe that what is contained and web 2.0 platforms to connect people the specifi c means by which their on the hard drive of a public employee’s to government and to share information” agencies will fulfi ll their responsibilities personal home computer, whether it is and explained that many of the uses of under the Federal Records Act.” deemed ‘metadata’ or something else, Ferriero identifi ed is a public record.” Alexander said the “ Our broad [Public Records Act] exists three categories contents of the home computer could not to ensure that the public maintains of “social media be considered a public record since it “is platforms” which not a writing that is ‘retained by any state control over their government, and we agencies might use: or local agency’” as defi ned by the PRA. will not deny our citizenry access to “web publishing,” “More signifi cantly,” Alexander wrote, a whole class of possibly important including blogs or “the majority provides no authority government information.” microblogs such of law for the proposition that a city as Twitter; “social employee’s home computer is subject networking,” to such a search or inspection by the —Justice Susan Owens including tools employing city.” Washington Supreme Court like Facebook and O’Neill’s attorney, Michele Earl- “virtual worlds” like Hubbard, told The Associated Press Second Life; and that although she was disappointed these media create “federal records” “fi le sharing/storage,” including video that the Court remanded the case for as defi ned by the Federal Records Act and image sites like YouTube and Flickr another proceeding without fi nding an (FRA), 44 U.S.C. § 33 et seq. as well as online document storage tools outright violation of the Public Records Under the FRA, “records” are defi ned like Google Docs. Ferriero observed that Act, “Our Supreme Court here says yes, as “all books, papers, maps, photographs, “the principles for analyzing, scheduling, there are electronic parts of records that machine readable materials, or other and managing records are based on may have value, and an agency may not documentary materials, regardless of content and are independent of the destroy them. That’s a big part of the physical form or characteristics, made medium.” He proposed that agencies accountability picture.” or received by an agency of the United consider whether the information in The Washington Supreme Court is States Government under Federal law question is available elsewhere; contains not the fi rst to broach the question of or in connection with the transaction “evidence of an agency’s policies, whether e-mails related to state business of public business.” Federal agencies business, mission, etc.;” whether the should be subject to a state open must preserve records if they provide Web 2.0/social media platform “is being records law request. In February 2010, “evidence of the organization, functions, used in relation to the agency’s work” the state of Alaska released thousands policies, decisions, procedures, and is authorized by the agency; and of government-related e-mails sent by operations, or other activities of whether there is “a business need for the Alaska Governor and former Republican the government” or otherwise have information.” Ferriero said that the list of vice presidential candidate Sarah Palin, “informational value.” The U.S. Archivist considerations was “non-exhaustive,” but her husband Todd, and her staff using and the National Archives and Records “if the answers to any of the … questions non-government e-mail accounts on Administration (NARA) are empowered are yes, then the content is likely to be a services like Yahoo. In October 2008, a by the law to promulgate procedures and Federal record.” state judge ruled that the e-mails had standards for how records are compiled, The bulletin said that agencies must to be retained and preserved subject to catalogued, reproduced, and disposed consider the “noteworthy records records requests, but Palin had argued of. The FRA is distinct from the Federal management challenges associated with that they were protected by executive Freedom of Information Act (FOIA), 5 the use of web 2.0/social media,” which privilege. For more on the Palin e-mails, U.S.C. § 552 et seq. in that it covers the it said includes “public expectations see “Roundup: Government E-mails as retention and preservation of records that all web content is both permanently Public Records” in the Fall 2008 issue of rather than their disclosure. valuable and accessible, [that] ownership the Silha Bulletin. In the October 20 bulletin, listed as and control of data [can] reside[] with Digital Records, continued on page 11

10 Congress Revokes New FOIA Exemption for Securities and Exchange Commission

n Oct. 4, 2010, President incident involving FBN’s information that could harm national security or Barack Obama signed House request and early criticism of the law, see “constitute a clearly unwarranted Resolution 5924, the SEC “Transparency Advocates Protest SEC’s invasion of personal privacy,” for OFreedom of Information New FOIA Exemption” in the Summer example. Exemption 4, which extends Restoration Act, into law. The new law 2010 issue of the Silha Bulletin. to “trade secrets” or “privileged or repeals § 929I of the Dodd-Frank Wall According to an October 6 report by confi dential commercial or fi nancial Street Reform and Consumer Protection the Reporters Committee for Freedom information obtained from a person” and Act, which had exempted the Securities of the Press (RCFP), discussion of a Exemption 8, which protects information and Exchange Commission (SEC) from repeal of the provision arose in July, “contained in or related to examination, complying with certain Freedom of when U.S. Rep. Darrell Issa (R-Calif.), operating, or condition reports about Information Ranking Member of the House Oversight fi nancial institutions that the SEC FREEDOM Act (FOIA) and Government Reform Committee, regulates or supervises” were cited by OF INFORMATION requests. formally objected to it. Issa was joined transparency advocates who initially The Dodd- by Rep. Ron Paul (R-Texas) and Senators protested § 929I as providing enough Frank Act, Pub. Law No. 111-203, became Patrick Leahy (D-Vt.) and Ted Kaufman protection for the SEC and businesses. law on July 21, 2010. Section 929I of (D-Del.). The RCFP also reported that Rick Blum, coordinator of the the Act immediately came under fi re as in a September 16 House Oversight and advocacy group Sunshine in Government journalists and transparency advocates Government Reform Committee hearing, Initiative, told the RCFP on October said that the SEC could use it to refuse opponents of provision 929I argued that 6 that the repeal of § 929I is a “very to comply with FOIA requests if the it was “too broad, thereby giving the strong fi rst step,” but more reform will requests sought records regarding the SEC the power to refuse the disclosure be needed. Blum told the RCFP that SEC’s “surveillance, risk assessments, or of information that could be crucial Exemption 8 “is broad and no one really other regulatory and oversight activities.” to public oversight of the fi nancial knows what it means and the SEC has The SEC used § 929I on July 27 to refuse system and to prevent future fi nancial not [previously] overseen or monitored a request by the Fox Business Network crises.” The Associated Press reported how Wall Street works.” (FBN) for information regarding the September 18 that SEC Chairman Mary In a September 23 statement, Issa Bernie Madoff case. On August 3, a Schapiro argued in the hearing that the said, “by repealing [§ 929I], we have consortium of 10 transparency groups SEC needed the exemption because, in reaffi rmed our commitment to ensure sent a letter to Sen. Christopher Dodd some cases, fi rms would be reluctant that the SEC will be held to the highest (D-Conn.) and Rep. Barney Frank to voluntarily provide information if possible standard of accountability and (D-Mass.), co-sponsors of the Dodd- they knew it could be viewed publicly, transparency.” Frank Act, calling for the repeal of 929I including by competitors. and citing concerns about the SEC’s The federal FOIA has nine – SARA CANNON record of openness. For more on the exemptions, covering disclosures SILHA CENTER STAFF

Digital Records, continued from page 10 a third party,” and the fact that content records. “Each agency is responsible social media “should not be confused management on web 2.0 and social for managing its records, whether they with insignifi cance.” He observed that media services and tools is interactive. reside on a third-party social media “agencies are still neglecting their To address these challenges, the platform or are housed within the recordkeeping responsibilities for email.” bulletin said that agencies “must agency,” the bulletin said, adding that According to Ferriero, a 2009 NARA ensure records management guidance “a concern with web 2.0/social media report “found that most Federal agencies is included in social media policies platforms is that a service provider could do not manage their email records in an and procedures” by identifying stop providing their service or delete electronic recordkeeping system, and federal records in those platforms and information from an agency’s account.” therefore cannot ensure that these emails preserving them, “defi ning ownership of A stop in service or deletion of content are preserved in any recordkeeping content and responsibility for managing would not relieve an agency of “its system on a regular basis.” Moreover, the records,” and sharing policies with records management obligations,” the Ferriero said that “archaic ‘print and fi le’ employees and the public. bulletin said. practices still exist in many agencies, The bulletin acknowledged that In a November 2 blog post on the resulting in the inadequate preservation in some cases, such as with Flickr or NARA website at http://blogs.archives. of messages that meet the criteria for YouTube, privately owned websites gov/aotus/, Ferriero wrote that “the Federal records.” – PATRICK FILE might host content that qualifi es as informal tone” of many of today’s SILHA FELLOW AND BULLETIN EDITOR

11 Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings 53 already bans any electronic media program date back to February 2009, Judges from the U.S. coverage of criminal proceedings. In a when the Minnesota Supreme Court Supreme Court to departure from previous experiments adopted the General Rules of Practice Minnesota remain divided with cameras in courtrooms, under the Committee’s recommendation to retain proposal the courts will furnish and the current rule governing cameras over issue of access operate the cameras, as opposed to news at the trial level. That rule, Minnesota arts of both the federal and media organizations. General Rule of Practice 4, imposes a state judicial branches are The Judicial Conference of the United presumptive ban on cameras which can considering expanding video States was established by Congress be overcome by an order of the trial judge Paccess to courtrooms, but in 1922 to serve as the “principal and consent of all parties in the case. lawyers and jurists are split on the merits policymaking body concerned with However, the Supreme Court instructed of the trend. One recent case—Perry v. the administration of U.S. Courts,” the committee to “design a pilot program Schwarzenegger—brought the issue to according to the U.S. Courts website at that will include a study of the impact the U.S. Supreme Court, which stayed a http://www.uscourts.gov/FederalCourts/ of televised proceedings on victims and JudicialConference.aspx. Under 28 witnesses.” For more on the 2009 order CAMERAS district court U.S.C. § 2701 et seq., its determinations see “Minnesota High Court Approves IN COURTROOMS judge’s order to allow video and recommendations with respect to Cameras-in-Court Pilot Program” in the of the trial to be posted on the Internet. administration are binding on all federal Winter 2009 Silha Bulletin. For the time being, a majority of Supreme courts except the Supreme Court, which A majority of the committee Court justices who have spoken publicly sets its own administrative procedures. recommended implementing the pilot on the issue oppose allowing cameras in The pilot program is not the federal program along guidelines recommended its own courtroom and others. courts’ fi rst foray into video coverage of by scholars at the University of judicial proceedings. In 1990, the Judicial Minnesota, including Jane Kirtley, Silha Federal Judicial Conference Pilot Conference instituted a program which Professor of Media Ethics and Law Program allowed cameras into selected federal and Director of the Silha Center. The The Judicial Conference of the United district and appellate courtrooms on proposed pilot program would consist States announced Sept. 14, 2010 that it an experimental basis. Unlike the 2010 of an 18-month study of 500 randomly would introduce a limited pilot program proposal, the court did not operate selected trial court cases, divided into in which video cameras would be allowed the cameras itself, but allowed media “camera” and “no camera” cases. In order to record proceedings in some civil outlets to bring their own cameras into to address concerns that the Supreme lawsuits. the courtroom. In 1994, the Conference Court expressed about there being “no How many federal courts will be reinstituted its ban on cameras, largely empirical evidence addressing whether involved in the program, whether due to reaction to coverage of the O.J. the prospect of televised proceedings the program will be permissive or Simpson murder trial in California State has a chilling impact on victims and mandatory for courts, and when the Court. witnesses,” the two groups of cases would program will begin are still unclear. The Under new rules in 1996, the be analyzed to assess whether victims’ Judicial Conference said those details Conference allowed cameras to record or witnesses’ testimony was “chilled” will be determined by the Conference’s proceedings only in U.S. circuit courts of as a result of the cameras’ presence. Committee on Court Administration appeal, leaving the decision to individual According to the majority, the plan and Case Management, according to a circuits whether to allow cameras or not. was proposed because members of the September 14 press release. The program According to the Judicial Conference, majority “believe[] this extensive study will be “national in scope,” and “will last only the 2nd and 9th U.S. Circuit Courts is necessary to make scientifi cally valid up to three years” once it begins, the of Appeal currently allow news media conclusions about the impacts cameras release said. cameras to cover oral arguments in their may have on participants and users of the David Sentelle, Chief Judge of the courtrooms. According to a September 15 judicial system.” U.S. Court of Appeals for the District of post on the Politico blog Under the Radar, The decision to adopt the University Columbia Circuit and Chairman of the media outlets rarely do so. of Minnesota-recommended program Conference’s executive committee, told was narrowly adopted by a 7 to 6 vote. A The Associated Press (AP) on September Minnesota Pilot Program minority of the committee recommended 15 that certain parameters had already On Oct. 12, 2010, an advisory panel a “substantially scaled-down research been agreed upon. Recording the faces of of judges and lawyers approved a pilot study.” The minority’s approach would witnesses and jurors will be prohibited, program to allow cameras into Minnesota involve “informal surveys of participants and all parties to the case must consent to state trial courts on a limited basis, in proceedings where the media asked the recording, Sentelle said. Recording of pending approval by the Minnesota for camera coverage.” The surveys criminal cases would remain prohibited; Supreme Court. would include “anecdotal information Federal Rule of Criminal Procedure The seeds of the proposed pilot Cameras in Courts, continued on page 13 12 Cameras in Courts, continued from page 12 from interested groups during the study a presumption against “photographing, recommended modifying the rule to period,” and the committee would elicit recording, or broadcasting of court create a pilot program which would comprehensive reports on the program proceedings by the media using television, allow video cameras in trial courts. after the study was completed. The radio, photographic, or recording Judge Vaughn Walker, who presided over minority plan proposed a 12-month equipment,” allowing such devices only Perry, was a member of the committee. timeframe for the fi rst phase of the “on written order of the judge.” The rule According to the U.S. Supreme Court, program. Although the minority of the currently does not create a presumption Walker had the then-impending Perry committee acknowledged that this study against a judge granting such an order, case “very much in mind at the time would lack the scientifi c validity of however. [the committee recommended the the majority’s approach, it believed its The California proposal was not pilot program] because it had come to approach would “be inexpensive, could limited to photographing or recording prominence then and was thought to be be set up more rapidly, and would still proceedings. It also recommends, an ideal candidate.” Hollingsworth v. address the Court’s concerns about the among other things, adoption of uniform Perry, 130 S. Ct. 705 (2010) impacts of cameras.” The committee did statewide rules for gag orders and orders Ultimately the committee’s not provide specifi c fi gures as to the cost sealing records, and education of judges recommendation was adopted by the 9th of the minority’s proposed program. on how to clearly communicate the Circuit Judicial Council, which issued In its 2009 order, the Court cautioned substance of courtroom proceedings to a press release announcing the pilot that because of economic hard times, the the media. program on Dec. 17, 2009. Under the pilot program would have to be revenue- The committee that drafted the program, participating cases would be neutral for the Minnesota Judicial Branch. proposal was appointed by California chosen by the chief judge of the district The committee’s recommendation Supreme Court Chief Justice Ronald court in consultation with the chief predicted that the majority’s proposed George, and is comprised of judges from circuit judge. In the case of Perry v. pilot program would cost “at least” the trial and appellate levels, journalists, Schwarzenegger, the chief judge of the $750,000. Whichever approach the First Amendment attorneys and district was Walker. Supreme Court opts to implement, the academics. A fi nal version of the plan will On Jan. 6, 2010, Walker issued an order committee noted that although some cost be presented to the full Judicial Council in under which Perry would be transmitted for the program would probably have to Spring 2011. live on closed-circuit televisions in federal be borne by the Judicial Branch, “direct courthouses in other cities around the costs may be covered by independent Cameras Question Reaches United States, and posted on YouTube funds.” The committee recommended U.S. Supreme Court in Perry v. at the end of each day of the trial. that the Court “permit a group of citizens Schwarzenegger Kozinski approved Walker’s order on to raise the available funds from outside The controversial case that declared January 8. Five locations were selected the courts” and that no matter which California’s gay marriage referendum, for courthouse broadcasts: Portland, approach is implemented, funding Proposition 8, unconstitutional, Perry v. Ore.; San Francisco; Seattle; Pasadena; should be completely secured before the Schwarzenegger, 704 F.Supp.2d 921 (N.D. and Brooklyn, New York. Opponents program goes into effect. Cal. 2010), is also signifi cant because of of cameras covering Perry fi led an The Court invited public comment a dispute among the presiding judge, an application for a stay of the order to the on the proposal. Comments were due appellate court, and the U.S. Supreme U.S. Supreme Court on January 9. December 17. Court over whether cameras should be On January 13, the Supreme Court allowed to cover the trial in real time. voted 5 to 4 to reverse the order. In the California Proposal Although the trial judge and a U.S. circuit per curiam majority opinion, the Court The California Judicial Conference judge agreed shortly before the trial fi rst noted that the comment period on released its proposals for media access to allow live video transmission of the the change of Rule 77-3 was, at most, to state courtrooms in September 2010. proceedings, as well as daily uploads fi ve days, and under 28 U.S.C. § 2071(b), The proposal, called “A Balancing of video to the website YouTube, the any changes to judicial rules of the Act: Accommodating the Needs of the U.S. Supreme Court reversed that plan, federal courts must be accompanied Bench, Bar, and Media in the Pursuit citing how quickly it was drawn up and a by a 30-day comment period. Judges of Justice,” is an attempt to reconcile possibility that witnesses might refuse to Walker and Kozinski, the Court noted, judicial interests in due process and testify. invoked the “immediate need” exception. confi dentiality with the public’s interest in In October 2009, a month after the Under § 2701(e), “if the prescribing court transparency and openness. challenge to Proposition 8 was fi led, 9th determines that there is an immediate The proposal recommends amending Circuit U.S. Court of Appeals Chief Judge need for a rule, such court may proceed California Rule of Court 1.150, “to set Alex Kozinski appointed a three-judge … without public notice and opportunity forth an explicit presumption that committee to evaluate the possibility for comment,” as long as the judge opens cameras and other recording devices of modifying the 9th Circuit Local Rule the rule for comment after the need are allowed in the courtroom unless 77-3. Local Rule 77-3 permits video passes. The Supreme Court observed that suffi cient reasons exist to prohibit or limit recordings of appellate proceedings in when the pilot program was announced their use.” The current version of Rule the circuit court, but not in district courts and implemented, no reason for its 1.150, in place since 1997, establishes where trials are held. The committee Cameras in Courts, continued on page 14 13 Cameras in Courts, continued from page 13 implementation was given by the district Court’s proceedings, while others oppose presence. “Please don’t introduce into the or appeals court. the idea. dynamic that I have with my colleagues, The majority also found that Justices Samuel Alito and Antonin the insidious temptation to think that “irreparable” harm would occur if Scalia have both publicly expressed views one of my colleagues is trying to get a transmission of Perry occurred. consistent with their ruling in Perry. soundbite for the television,” Kennedy Specifi cally, the Court expressed concern Scalia has said that the issue of cameras said. that witnesses would be less forthcoming. in courtrooms is one issue on which he Justice Breyer’s views differ from those “The trial will involve various witnesses, has changed his mind over the course of of Alito, Kennedy, and Scalia. Testifying including members of same-sex couples; his 24-year tenure on the Court. Speaking before the House Appropriations academics … and those who participated to an audience at Hastings Law School Subcommittee on Financial Services and in the campaign leading to the adoption of in September 2010, Scalia said that when General Services in April 2010, Breyer Proposition 8. This Court has recognized he joined the court he was in favor of said that maintaining transparency in the that witness testimony may be chilled cameras, but now thinks they should be federal courts was suffi ciently important if broadcast [and] [s]ome … witnesses excluded. According to the San Francisco to justify cameras. “If you bring cameras have already said that they will not testify Chronicle on September 18, Scalia said into the oral arguments, there’s a big if the trial is broadcast, and they have plus for the court substantiated their concerns by citing “ Witnesses have already said that they and for the public. incidents of past harassment.” will not testify if the trial is broadcast, I think they’ll see The Supreme Court admonished and they have substantiated their that we take our job seriously, the Walker for “attempting to change [the] concerns by citing incidents of past rules at the eleventh hour” to broadcast lawyers are well- a high profi le case, and stayed the order harassment.” prepared, the judges allowing the trial to be broadcast. —U.S. Supreme Court are well-prepared, Justice Stephen Breyer dissented Hollingsworth v. Perry, 130 S. Ct. 705 (2010) and are trying to from the stay of Walker’s order. Justices think out diffi cult Stevens, Ginsburg, and Sotomayor “If I really thought it would educate the problems. And for the public to see that, joined his dissent. Breyer wrote that fi ve American people, I would remain in I think, would be a plus. So why not do days was more than enough time for favor of it,” But instead of educational it?” Breyer added that the discussion the parties in Perry to object to the rule gavel-to-gavel coverage, he said, most over cameras is not one that occurs in a change, and that “there is no evidence people would see “30-second snippets” on vacuum. “The Canadians [have cameras in that [irreparable] harm could arise in this the news that would “distort the public their Supreme Court],” Breyer said, “And nonjury civil case from the simple fact of perception of the court.” it’s worked out all right for them.” transmission itself,” noting that 42 states Alito expressed similar sentiments in The two newest Justices—Elena Kagan currently allow recording and broadcast a talk at Drake University, telling a group and Sonia Sotomayor—have expressed of nonjury civil trials. Breyer also argued of law students on October 1 that he is support for allowing cameras in the that, on balance, the interest of the concerned about the public’s potential Supreme Court. In 2009, prior to her public in transparency in the courtroom reaction to oral arguments, which are confi rmation hearing, at which she also outweighs any harm or chilling effect with generally heated, and during which said she supported televising Supreme respect to witnesses, observing that no judges interrupt attorneys frequently. Court proceedings, Kagan told the 9th specifi c witnesses in Perry came forward “What would ordinary viewers think?” Circuit Judicial Conference she was in to say their speech would be chilled. he asked, according to The Associated favor of the practice. “I think if you put On November 15, the 9th Circuit U.S. Press (AP). Alito added that because most cameras in the courtroom, people would Circuit Court of Appeals issued an order cases are extensively briefed in advance say, ‘wow,’” Kagan said. “They would see allowing the December 6 oral arguments of oral arguments, most viewers would their government working at a really high on Proposition 8’s constitutionality to be have diffi culty following the proceedings. level.” broadcast by C-SPAN. The 9th Circuit He predicted that, were Supreme Court Sotomayor also expressed support in currently allows cameras in courtrooms. proceedings televised, “viewership would her confi rmation hearing in 2009. “I have Because the oral argument is an appeal of reach historic lows.” Alito also speculated had positive experiences with cameras,” Walker’s August ruling that the measure that attorneys’ arguments would be Sotomayor said. “When I have been asked was unconstitutional, the proceedings will affected. “Whenever an event is televised to join experiments of using cameras include presentations by lawyers, but not and the participants think any sort of in the courtroom, I have participated. I witness testimony. substantial audience is watching, their have volunteered.” For more Bulletin behavior is changed,” he said. coverage of Kagan and Sotomayor’s Public Statements of Supreme Court Justice Anthony Kennedy, recognized views on cameras, see “Kagan Confi rmed; Justices on the Cameras Issue as the current swing vote on the Court, Provides Few Hints on Media Law Views” The Supreme Court is not immune told the Senate Judiciary Committee in the Summer 2010 issue and “Critics, from the cameras in the courtroom in 2007 that cameras should not Commentators, and Cases Offer Few debate. Some justices on the high court be introduced because the justices Glimpses at How Sotomayor can be stand fi rmly behind broadcasting the themselves would act differently in their Cameras in Courts, continued on page 15 14 The Media and the Military: Guantanamo Access Rules Loosened; Other Guidelines Set to Limit Leaks obtained in the course of newsgathering facilities layout … and locations of Meanwhile, the Pentagon independent of any receipt of information security checkpoints.” and the C.I.A. sue authors while at [Guantanamo], or while However, the new rules contain over books transiting to or from [Guantanamo] on procedural safeguards for journalists transportation provided by DoD.” This the old rules did not. For example, t the same time the Pentagon provision was added in direct response both the old and new rules require that ostensibly relaxed media access to an incident in May 2010, when four all photographs and video images be restrictions at the military base reporters were banned, under the old submitted to Guantanamo personnel for a Aat Guantanamo Bay, Cuba, rules, from covering proceedings at the security review before the media outlets it contracted access and transparency Guantanamo trial of Omar Khadr, after may release the information. The security in other areas, they revealed the name of a confi dential review panel has the authority to crop ACCESS specifi cally through informant. The informant’s name had photographs and edit videos before their new Pentagon-wide already been publicized in other media release. However, unlike the old rules, policies on dealing outlets, including Wikipedia, according reporters and photographers can now with the media, and suppression of an to a September 10 story in The New appeal the decision of the security review Afghan War memoir by purchasing and York Times. On October 29, Kadhr pled panel if the reporters do not believe destroying the entire fi rst printing. guilty to killing an American soldier the information meets the defi nition of in Afghanistan when he was 15 years “protected.” Similarly, they may appeal Guantanamo Bay old. For more on the reporters banned the decision of the panel with respect to On Sept. 10, 2010, the Pentagon from Guantanamo, see “Limits Persist cropped photos if they believe that the released new “Media Ground Rules” for on Access to Guantanamo Proceedings, cropping exceeds what is permitted under reporters covering military commission Records” in the Summer 2010 Silha the rules. Appeals will be submitted to the trials of suspected terrorists at the Bulletin. security review panel’s superior offi cer military base at Guantanamo Bay. The new ground rules are identical who, within 24 hours of the appeal, must Although they are largely consistent with to the old rules in some respects. For render a judgment agreeing or disagreeing their predecessors, the new rules no example, both sets of rules prohibit with the panel’s judgment about releasing longer punish reporters for publishing journalists admitted to Guantanamo the photographs, videos, or information. protected information that had been from “publish[ing], releas[ing], publicly Some reporters cautiously applauded independently leaked. However, media discuss[ing], or shar[ing] … Protected the rules, particularly the new appeals outlets covering the base say that the Information.” Both sets of rules defi ne procedure and the “legitimately obtained” rules are still too restrictive. The new “Protected Information” as “necessarily” provision. John Walcott, the Washington rules are available online at http:// including classifi ed information, but also bureau chief of McClatchy News, told the www.defense.gov/advisories/advisory. “information the disclosure of which Reporters Committee for Freedom of the aspx?advisoryid=3260. A version of the could reasonably be expected to cause Press (RCFP) on September 14 that the old rules is available via the Columbia damage to national security, including new rules are “a good faith effort by the Journalism Review at www.cjrarchive. intelligence or law enforcement sources, [Department of Defense] to address the org/img/posts/Gitmo_Ground_Rules.pdf. methods or activities, or jeopardize the problems that have prevented reporting The new rules include a provision physical safety of individuals.” Both rules from Guantanamo to be as complete and allowing members of the news media also restrict photography of detainees, accurate as it ought to be.” A McClatchy to publish “what otherwise would be Guantanamo personnel, the coastline reporter, Carol Rosenberg of The Miami considered Protected Information, at the base, or “panoramic views of … Herald, was among those banned from where that information was legitimately facilities … that reveal access roads, Pentagon Access, continued on page 16

Cameras in Courts, continued from page 14 Expected to Rule on Media Law” in the Rule of Law Symposium panel, Ginsburg they look to their neighbors.” Summer 2009 issue. expressed trepidation about the practice, In August 2010, while speaking to the Justice Ruth Bader Ginsburg once suggesting that cameras at the appellate Colorado Judicial Conference, Ginsburg expressed strong support for recording level could have negative repercussions at declined to answer a question about Supreme Court proceedings, but her the trial level. “I think what bothers many her current position on cameras in the support may have eroded over the years. people, at least me, on the other side, is Supreme Court; instead, Ginsburg “talked During her 1993 confi rmation hearing, that if [cameras] were in the Supreme about former justices who opposed Ginsburg told the Senate Judiciary Court, I think it would become a symbol cameras,” according to an August 28 Committee that she thought cameras for every court,” she said, “and therefore report from the AP. in the courtroom would be “good for it would be in every criminal trial in the – GEOFF PIPOLY the public.” However, in 2005, speaking country. And when I start thinking about SILHA RESEARCH ASSISTANT before the American Bar Association’s witnesses, I don’t want them thinking how 15 Pentagon Access, continued from page 15 Guantanamo in May. Rosenberg has since “concerned that the Department has Secretary’s guidance is not a change of been readmitted. grown lax in how [it] engage[s] with policy but a reaffi rmation of existing Walcott also expressed concern, the media, often in contravention of policy.” Wilson wrote that his offi ce would however, over the “legitimately obtained” established rules and procedures.” continue to foster positive relationships provision. He told the RCFP that he According to the memo, the Department with members of the media within the worried that the broad scope of the of Defense is the sole release authority bounds of Gates’ July 2 memo. term might give the military too much for offi cial information to news media According to a September 10 story discretion to remove reporters: “Is in Washington, and all media activities by the RCFP, reporters expressed information that was leaked by someone must be coordinated through appropriate concern that the access restrictions will without authority legally [sic] obtained? public affairs channels. undermine their ability to report the My answer is yes, I’m not sure what [the news accurately. For military’s] answer will be.” “ The bottom line is if you don’t example, Military In a September 17 editorial, The know what’s really happening, what Reporters and Editors New York Times condemned the new you have is a story that puts [the co-founder Sig rules as not doing enough to facilitate Pentagon’s] fables into print, and Christenson told the transparency. The rules are “not remotely RCFP that the memos good enough,” the Times wrote, and that’s not what I’m here for.” could deter members the Obama Administration betrayed its of the military campaign promise of transparency and —Sig Christenson from speaking to openness when it set restrictive rules for Co-founder, Military Reporters and Editors reporters. As a result, press access to military commissions in Christenson said, the the fi rst place. The rules “only serve to The memo warns that any military only information reporters would have remind us of the Obama administration’s member who discloses protected or would be the offi cial information from the original error, which was to try Mr. Khadr classifi ed information without going Pentagon. “The bottom line is if you don’t for war crimes allegedly committed through channels specifi ed in the memo know what’s really happening, what you when he was a child, based on evidence can be punished. “Leaking of classifi ed have is a story that puts [the Pentagon’s] tainted by torture and abuse,” the Times information is against the law,” the memo fables into print, and that’s not what I’m declared. states, “and will, when proven, lead to the here for,” Christenson said. Christenson Military spokespeople praised the prosecution of those found to be engaged cited the 2007 Walter Reed Hospital new rules. According to Pentagon in such activity.” scandal, which exposed inadequate spokeswoman Tanya Bradsher, the rules The memo came nine days after Gen. medical care and facilities at the hospital, are a positive step for both the press Stanley McChrystal, then-commander of as an example of why reporters need and the military, because they set clearly U.S. forces in Afghanistan, was fi red by access to sources within the military. defi ned parameters for dealing with the President Barack Obama for disparaging “If the new policy was in place, would press, but are more fl exible than previous statements McChrystal made about those soldiers have talked with The access rules at Guantanamo. “The old the administration’s war policy in an Washington Post and would we have ground rules locked us into a procedure,” interview with Rolling Stone magazine. learned of the abysmal conditions some Bradsher told the RCFP. “These [new The New York Times reported on July 2 of those wounded warriors endured?” he rules] give us more levels of control that the memo represented a signifi cant asked. The RCFP story is available online in the appeal process for journalists crackdown by the Pentagon against leaks at http://www.rcfp.org/newsitems/index. and organizations.” The RCFP story is to the media, and was “a reassertion php?i=11545. available online at http://www.rcfp.org/ by civilian public affairs specialists of Steven Aftergood, author of the blog newsitems/index.php?i=11555. control over the military’s contacts with Secrecy News, a project of the Federation the news media.” The Times also reported of American Scientists, criticized the The Pentagon and Leaks that although Gates had been planning to crackdown on leaks as impractical. On At the same time the Defense Department institute tighter controls over leaks to the September 7, Aftergood wrote that “the released the new Guantanamo ground media for several months, the McChrystal degree of control over DoD contacts rules, memoranda from high-ranking incident expedited release of the memo. with the media sought by the Pentagon offi cials outlined a stricter policy to For more on McChrystal’s termination may be impossible to achieve,” given the prevent leaks from members of military and its impact on reporting on the sheer size and scope of the Pentagon’s to the media. military, see “A Reporter, a General, and operations. Aftergood said that the type The fi rst memo, dated July 2, 2010, was the Ethics of Covering the War” in the of unauthorized disclosures the Pentagon titled “Interaction with the Media” and Summer 2010 issue of the Silha Bulletin. is seeking to eliminate “serve a valuable issued by Secretary of Defense Robert Another memo, dated Sept. 2, 2010, public policy function, at least when they Gates. The memo states that although issued by Assistant Secretary of Defense do not trespass on legitimate secrets, Gates recognizes the Department for Public Affairs Doug Wilson, reaffi rmed because they enable reporters and others of Defense’s obligation to disclose the July 2 Gates memo. Wilson’s to develop an independent account of information to media outlets in a “timely, memo states that the media “is not the events and to generate a more complete accurate, [and] credible” manner, he is enemy” and that “implementation of the Pentagon Access, continued on page 17 16 Pentagon Access, continued from page 16 public record.” The Secrecy News post military reached a compromise: the the secrecy agreement that all CIA is available online at http://www.fas.org/ military would purchase the entire fi rst agents sign at the beginning of their blog/secrecy/2010/09/coordination.html. printing of “Operation Dark Heart” and tenure at the agency. According to the Gates told ABC News on July 8 that destroy all copies, while simultaneously complaint, Jones’ privacy agreement the memo’s directives had more to do redacting passages in the manuscript the provided that he “was required never to with streamlining information in the name military objected to. The edited version disclose information or material obtained of national security than with suppressing was re-released on September 24. in the course of employment or other access, and that the memos do not On September 10, Aftergood reported service with the CIA that is classifi ed or restrict reporters’ ability to cover ongoing on Secrecy News that several copies that reveals classifi able Information.” combat operations. “If you’re a captain in of the fi rst printing of the book were Furthermore, Jones agreed “to submit to a unit that has an embedded reporter, as already in circulation, and criticized the the CIA for its review all information or long as you’re within the guidelines and agreement, arguing that “the mere fact materials … which contain any mention the rules, we expect you to be open with that a government offi cial says certain of intelligence data or activities … which that embedded reporter,” Gates said. “On information could damage national he contemplates disclosing publicly the other hand, if you’re a captain in this security if it were disclosed doesn’t or which he has actually prepared for building, working on budget options, I necessarily make it so.” public disclosure, either during his expect you to keep your mouth shut.” Aftergood also criticized the employment with the CIA or at any time censorship as impractical, given that thereafter … and was further required to ‘Operation Dark Heart’ some copies of the book were already receive written permission from the CIA On Sept. 10, 2010 The New York Times available. Aftergood observed that, before taking any steps toward public reported that the Pentagon had negotiated given the public’s ability to do a side- disclosure.” with former Defense Intelligence offi cer by-side comparison between the edited Panetta defended the lawsuit in a Anthony Shaffer to purchase the entire and unedited text, the military’s action statement, according to Gerstein. “CIA fi rst printing of his book, “Operation Dark actually revealed what it considers offi cers are duty-bound to observe the Heart,” and destroy all 10,000 copies to “sensitive” information. “Therefore, as a terms of their secrecy agreement with prevent the book’s release, at least in an practical security policy matter, it seems the Agency,” Panetta said. “This lawsuit unedited form. that the Pentagon’s best move would be clearly reinforces that message.” The Pentagon claimed that the book, to do nothing and to allow the book to be The CIA has successfully sued former a memoir of Shaffer’s time in Afghanistan published without further interference,” agents in the past over violations of their which purports to show weaknesses in Aftergood wrote. secrecy agreement. For example, in 1980, the U.S. Supreme Court ruled that the United States’ policy there, contained CIA Sues Former Agent Over Book the agency could sue Frank W. Snepp classifi ed and other sensitive information On October 19, the CIA announced III, and demand royalties he earned, the release of which would compromise that it is suing a former deep cover agent because he failed to submit a book he national security and the U.S. mission in for a book he published in 2008, claiming published about CIA activities in Vietnam Afghanistan. that he violated his secrecy agreement to the agency for review. The CIA did not According to the Times, Shaffer with the agency. contend that Snepp’s book contained any submitted a manuscript of the book to The book, “The Human Factor: Inside classifi ed information, but nevertheless the U.S. Army for prepublication review the CIA’s Dysfunctional Intelligence the Court said that “whether Snepp in January 2010. Army reviewers initially Culture,” whose author uses the violated his trust does not depend upon signed off on the text, saying they had pseudonym Ishmael Jones, is highly whether his book actually contained “no objection on legal or operational critical of the CIA. According to an classifi ed information.” security grounds” to the book, which October 19 post on Politico by Josh The Court also rejected Snepp’s at the time was slated for an August 31 Gerstein, Jones said the impetus for the argument that the agreement constituted release. When Defense Intelligence and suit was the book’s critical nature. Jones a prior restraint on his speech, calling CIA analysts saw the manuscript in late told Gerstein that he believes the CIA it “an entirely appropriate exercise of July, however, they raised objections. On has a double standard—permitting the the CIA Director’s statutory mandate August 6, Defense Intelligence Agency publication of books by, for example, to protect intelligence sources and Director Ronald Burgess released a memo CIA Chief Leon Panetta, but rejecting methods from unauthorized disclosure” that said the book could “reasonably be and fi ghting publication of books that are in light of the government’s “compelling expected to cause serious damage to critical of the agency. interest in protecting both the secrecy national security,” according to a Sept. In the book, Jones wrote that the CIA of information important to our 15, 2010 post on Secrecy News. The rejected his initial draft without reviewing national security and the appearance of information consists of, among other it. He later sent back a revised copy, of confi dentiality so essential to the effective things, names of intelligence offi cers with which about half was redacted by the operation of our foreign intelligence whom Shaffer served, and information CIA, Gerstein reported. However, Jones service.” Snepp v. United States, 444 U.S. about specifi c wiretaps performed by the disregarded the CIA’s redactions, and in 507 (1980) National Security Agency, according to 2008 published the book anyway. the Times. The lawsuit, fi led in July 2010, alleges – GEOFF PIPOLY In early September, Shaffer and the that publication of Jones’ book violated SILHA RESEARCH ASSISTANT 17 Access Limited after California Pipeline Explosion Police keep reporters out; crime scene meant that the exception for pipelines in the area, citing “security reporters pertaining to disaster scenes concerns.” The Bay Citizen reported that utility company cites did not apply. By “treating the entire the disaster “laid bare” concerns over security concerns in 10-acre fi re zone as the equivalent of California’s aging gas pipeline system, withholding records a murder room,” he wrote, San Bruno but that PG&E’s secrecy regarding its police “severely restricted” media access network was “raising concern among n Sept. 9, 2010, an to the scene. First Amendment advocates.” The underground gas pipeline in Eskenazi quoted reporter Michael Bay Citizen quoted James Wheaton, San Bruno, Calif. exploded, Cabanatuan of the San Francisco senior counsel at advocacy group First killing four people and Chronicle saying he was “ordered out” Amendment Project, asking “If PG&E O knows about risky pipelines, why would wounding 52. Media access to the of the neighborhood affected by the disaster site and to documentation of explosion on the evening of September they keep that secret?” other potentially 9, before the area was declared a crime Sari Koshetz, a spokesperson for the ACCESS dangerous pipelines scene. “We told them that we have Transportation Security Administration was limited both by access to disaster areas. I did that both (TSA) told The Bay Citizen that it “does police responding to the incident and by individually and with other reporters. not encourage utilities to keep the the utility company. But they said ‘no, we won’t let you in,’” locations of gas pipelines that are a The explosion occurred around 6:15 Cabanatuan said. high-risk for failure from the public” but p.m. on September 9, according to a discourages utility September 10 story by the San Jose “ The very law that gives [authorities] companies from Mercury News. Residents in the area had the right to declare a critical incident displaying complete system maps online reported smelling gas in the week leading and exclude the public says the press up to the disaster, which destroyed 31 “for obvious security homes and seriously damaged eight is exempt from this exclusion. That reasons.” Because more. Pacifi c Gas & Electric (PG&E), the drives a lot of police, re, and disaster PG&E pipeline utility company that owns and maintains managers crazy. But that’s how you information is held by a private the gas line that exploded, said the line keep us honest.” that ruptured was 30 inches in diameter corporation, it is and between 40 and 50 years old. not covered by the On September 10, the Mercury —Anthony Hare California Public News reported that San Bruno police San Francisco Forensic Institute, UC Berkeley Records Act, had declared the affected area a Center for Catastrophic Risk Management Government Code §§ “crime scene” in “a routine move 6250 – 6276.48. that limits access to the area until Eskenazi also quoted Anthony Heather Ishimaru of San Francisco’s authorities determine that no foul Hare of the San Francisco Forensic KGO-TV reported October 14 that the play was involved.” In a blog post on Institute and University of California, California Public Utilities Commission the SF Weekly website, Joe Eskenazi Berkeley’s Center for Catastrophic Risk (CPUC) announced that it had assembled wrote September 13 that by using Management, who previously worked as a team of experts to investigate the the designation “crime” rather than an incident commander with the Oakland explosion. Ishimaru reported that the “disaster,” authorities unnecessarily Police Department. Eskenazi wrote that CPUC would look for “the root cause of “kept media out.” Citing § 409.5 of the the “crime scene” designation “struck the disaster” and review PG&E’s business California Penal Code, Eskenazi said [Hare] as odd.” Hare told Eskenazi that practices. Ishimaru reported that, in that using the “disaster” designation “The very law that gives [authorities] addition to the CPUC investigation, the would have allowed police enough the right to declare a critical incident National Transportation Safety Board authority to keep “gawkers, looters and exclude the public says the press (NTSB) is investigating the incident, and others” away from the scene while is exempt from this exclusion. That and PG&E is conducting an internal they searched and cleared it without drives a lot of police, fi re, and disaster investigation. The NTSB report is restricting media access. Section 409.5 managers crazy. But that’s how you keep available online at http://www.ntsb.gov/ states that “Nothing in this section shall us honest.” Surface/pipeline/Preliminary-Reports/ prevent a duly authorized representative Limits to access and transparency San-Bruno-CA.html. As the Bulletin went of any news service, newspaper, or radio continued in the aftermath of the San to press, none of the investigations had or television station or network from Bruno explosion. On September 15, been completed. entering the areas closed pursuant to San Francisco website The Bay Citizen – SARA CANNON this section.” However, Eskenazi wrote reported that PG&E was refusing SILHA CENTER STAFF that the designation of the area as a to release information about other

18 Law Firm’s Approach to Protecting News Media Copyrights Raises Eyebrows Summer 2010 Silha Bulletin.) story. The ruling dismissed Righthaven’s Righthaven pursues BNA’s Electronic Commerce & Law suit. Righthaven v. Realty One Group, bloggers and other Internet Report reported on November 2 that Inc., et al. 2010 U.S. Dist. LEXIS 111576 users who republish Righthaven had fi led 167 lawsuits against (D. Nev. Oct. 18, 2010) various online publishers around the The Sun reported October 20 that content country since March 2010. The Sun Righthaven CEO Steven Gibson said his fi rm would not appeal Hicks’ order n a series of lawsuits that have reported October 20 that some of the dismissing the case because it had drawn nationwide attention and suits have been settled out of court reached a confi dential settlement with controversy, law fi rm Righthaven while others are in “various stages of Nelson prior to the ruling. The Sun and the Las Vegas Review-Journal litigation.” A blog dedicated to tracking I the suits has court fi lings and other said Hicks apparently was not aware have set out to aggressively pursue of the settlement when he made his bloggers and other Internet users who documents and is located at http://www. ruling. Gibson said that if there were copy and republish Review-Journal righthavenlawsuits.com. no settlement with Nelson, Righthaven stories online. The Review-Journal would consider appealing the ruling to has claimed it Defendants Look to ‘Fair Use,’ Lack of Standing, or ‘Implied License’ the 9th Circuit U.S. Court of Appeals. The COPYRIGHT has a legal right Sun also reported that Gibson said that and an economic Few defendants who have challenged the ruling indicates that fair use would responsibility to protect its copyrighted the Righthaven copyright lawsuits have not be a viable defense in the majority content from unauthorized republication, prevailed, but one defendant successfully of Righthaven’s lawsuits, which involve but some have criticized the legal had a suit dismissed. In an October 18 the posting of entire stories without approach as heavy handed. order granting a realtor’s motion to dismiss, Judge Larry Hicks of the U.S. authorization. Digital rights advocacy group the Righthaven: Locating and Suing District Court for the District of Nevada Electronic Freedom Foundation (EFF) Infringers ruled that realtor and blogger Michael took on two of the Righthaven suits, According to an October 19, 2010 Nelson’s republication of part of an April countersuing the law fi rm on behalf story by the Bureau of National Affairs 30, 2010 Review-Journal article about a of a crime blogger interested in “no (BNA) Media Law Reporter, Righthaven new federal housing program was “fair body” murder cases and a user-driven is funded by an affi liate of the Review- use” under the Copyright Act, 17 U.S.C. § political satire and commentary website Journal’s parent company, Stephens 107 et seq. called Democratic Underground.com. Media. Former Review-Journal Applying the standard four-step In both cases, the EFF has argued that Publisher Sherman Frederick explained test for fair use, Hicks examined the the websites are protected by fair use. in a May 28, 2010 blog post on the “purpose and character” of Nelson’s In the case involving the crime blog, Review-Journal website that Stephens use of the article, “the nature” of the the EFF supported its fair use claim by Media “grubstaked” Righthaven, using Review-Journal article, the amount stating the website is “non-commercial” a term common to mining whereby one Nelson used, and the unauthorized and “benefi ts the public interest” by company supplies money to a venture in use’s “effect on the potential market “assisting prosecutors and homicide return for some of the venture’s profi ts. for the copyrighted work.” In his investigators in bringing justice to In the post, titled “Copyright theft: We’re four-page order, Hicks observed that the friends and families of ‘no body’ not taking it anymore” Frederick said Nelson “reproduced only the fi rst eight murder victims.” In the case involving Righthaven’s “only job is to protect sentences of a thirty sentence news Democratic Underground.com, the EFF copyrighted content.” article,” which contained only the factual claims that the website’s use of a portion An August 4 story in the Las Vegas information from an article that was of an article about Nevada Republican Sun, which has closely followed the “split between factual news reporting Senate candidate Sharron Angle was Righthaven lawsuits, explained that and reporter commentary.” Hicks ruled fair use because the user who posted Righthaven employees search the that even though the purpose and it included only the fi rst fi ve sentences Internet to fi nd websites that have character of Nelson’s use of the article of a story that was 50 sentences long. republished portions of Review-Journal was commercial, it was “likely to have Righthaven v. DiBiase, 2:10-cv-01343- stories online. Righthaven then buys the little to no effect on the market for RLH-PAL (D. Nev. 2010) and Righthaven copyright for the republished story from the copyrighted news article” because v. Democratic Underground, 2:10-cv- Stephens Media and sues the infringer, Nelson’s copied portion, which “did not 01356-RLH-RJJ (D. Nev. 2010) typically demanding $75,000 in damages contain the author’s commentary … does On November 15, Righthaven fi led as well as forfeiture of the domain name not satisfy a reader’s desire to view and a motion for voluntary dismissal of the of the infringer’s website. (For more on read the article in its entirety [with] the suit against Democratic Underground. the early developments of the Righthaven author’s original commentary.” Hicks com with the Nevada District Court. lawsuits, see “News Media Seek Legal added that Nelson included a link leading Tools to Protect Original Content” in the readers to the original Review-Journal Righthaven, continued on page 20 19 Righthaven, continued from page 19 Citing the court’s ruling recognizing the copyright ownership. On October 28, fi led suit on April 7. fair use defense in the Realty One Group District Judge Gloria M. Navarro denied Navarro said that because Righthaven case, and the fact that the user in the a motion to dismiss a Righthaven had rights to sue over “past, present Democratic Underground.com suit also copyright suit fi led by Canadian website and future infringements,” it could sue only used about 10 percent of a longer Majorwager.com. The website claimed the website for an infringement that article, Righthaven said in its motion that Navarro should dismiss the suit occurred before it owned the copyright that “in this case, it appears to be in the because Righthaven failed to prove to the article. In a footnote, however, best interests of Righthaven—and in that Majorwager.com had suffi cient Navarro noted that Majorwager.com the best interests of the Defendants—to legal contact with the state for the did not “address the true nature of the not exhaust judicial resources on the transfer or any other instant lawsuit and instead allow this “ Like most writers, I’ve had my articles possible defects matter to be voluntarily dismissed.” related to Plaintiff’s The motion was fi led “in the interest of posted online without permission. I’m standing. … if only judicial economy,” adding that “though usually glad to get the attention. When a right to sue was Righthaven fi rmly believes that the I’m not, I ask that they be taken down. transferred; Plaintiff Defendants are liable for copyright That’s how these things are handled. may lack standing.” infringement … reasonable minds may Navarro cited disagree as to the legitimacy of a fair People go to court as a last resort, ABKCO Music v. use defense.” The motion also said not as a rst resort—especially when Harrisongs Music, that “Righthaven does not anticipate the infringer is a small nonpro t or a 944 F.2d 971 (2nd fi ling any future lawsuits founded upon blogger who probably doesn’t know Cir. 1991), which she infringements of less than 75% of a said stands for the copyrighted work, regardless of the better.” proposition that the outcome of the instant litigation.” —Stephen Bates “Copyright Act does Wired magazine blog Threat Level Assistant Professor not permit copyright reported October 27 that, as was the University of Nevada, Las Vegas holders to choose case with Democratic Underground. third parties to bring com, many of the Righthaven lawsuits federal court in Nevada to hear the suits on their behalf.” have arisen “not from articles posted case, a doctrine known as “personal In its two counterclaims on behalf by a website’s proprietors, but from jurisdiction.” The court cited 9th Circuit of Democratic Underground.com and comments and forum posts by the precedent in copyright infringement DiBiase, the EFF has claimed that site’s readers.” The Digital Millennium as well as a previous Righthaven case Righthaven solely licenses copyrights Copyright Act’s “safe harbor” provision, in observing that Majorwager.com from Stephens Media for the purpose 17 U.S.C. § 512, generally protects “willfully infringed copyrights owned by” of suing infringers, or, in the words of websites from liability for information Righthaven in an article published by the DiBiase’s counterclaim: “Righthaven posted by users if the website quickly Review-Journal, which it knew is based does not have a regular business model removes or disables access to material in Nevada, causing harm to be suffered in of deriving revenue from licensing that is identifi ed in a copyright holder’s Nevada. The court also said that hearing copyright rights with respect to any complaint. However, in order to qualify the case in Nevada was “reasonable” information or content other than in for the safe harbor provision, websites because although doing so would place connection with litigation, if at all. … must meet several criteria, including a heavy burden on Majorwager.com in Righthaven’s sole revenue is settlements adopting a copyright policy and notifying requiring it to litigate a case in a foreign from the copyright infringement cases it users of that policy, having no knowledge country, that fact was outweighed by has fi led.” of the infringing activity, not benefi ting the state’s interests and the plaintiff’s In a ruling on another Righthaven fi nancially from the infringement, and interests. Righthaven v. MajorWager. case, Navarro said the owner of a identifying and registering a “designated com, 2010 U.S. Dist. LEXIS 115007 (D. website devoted to skyscrapers and agent” with the U.S. Copyright Offi ce Nev. Oct. 28, 2010) urban development might be able to who can manage copyright “takedown” Navarro also rejected Majorwager. assert that the Review-Journal provides complaints. Registering a designated com’s argument that Righthaven lacked an “implied license” to republish its agent requires website proprietors to fi ll standing to sue because it did not own stories. Righthaven v. Klerks, 2010 U.S. out a form and mail it to the Copyright the copyright to the Review-Journal Dist. LEXIS 105307 (Dist. Nev. 2010) Offi ce along with a $105 fee. Threat article when the infringement took place. On September 17, Navarro granted Level reported October 27 that “an The article was posted in a forum on the defendant Jan Klerks’ motion to set examination of Righthaven’s lawsuits website by a user with the pseudonym aside a default judgment against him. targeting user content suggests it’s “CLEVFAN” on March 18, 2010. Stephens According to Navarro’s order, Righthaven specifi cally going after sites that failed to Media assigned ownership of the article, sued Klerks on May 19, 2010, and after he fi ll out that paperwork.” as well as the “right to seek redress for failed to respond to a summons, a clerk’s Courts have also rejected defendants’ past, present and future infringements of default was entered July 9. However, challenges based on jurisdiction and copyright” on March 24, and Righthaven Righthaven, continued on page 21 20 Righthaven, continued from page 20 before a default judgment was entered, impact of a zealous legal approach to about it. “It’s ironic and stupid,” Curtis Klerks fi led a motion to set aside the protecting news media copyrights. said. “If they’re going to sue us for judgment, claiming that the summons Sherwin Siy, deputy legal director quoting us, that gets really stupid.” was sent to the wrong address and for Public Knowledge, a public interest Frederick was unapologetic in his therefore he never received it, and that group based in Washington D.C., told May 28 blog post. “It is our primary hope the fi rst he learned of the suit was when BNA’s Media Law Reporter on October that Righthaven will stop people from a Las Vegas Sun reporter called him. 19 that “if somebody is infringing on stealing our stuff,” he wrote. “It is our Navarro ruled that Klerks’ motion met somebody’s copyrights, they certainly secondary hope, if Righthaven shows the standard of “good cause” required have a right to sue. I don’t think there continued success, that it will fi nd other to set aside the default judgment. She is any debate about that. [But] the clients looking for a solution to the theft noted not only that “he promptly retained existence of copyright law isn’t a license of copyrighted material.” The Threat counsel and fi led the instant motion” as to abuse it either.” Siy said Righthaven’s Level blog reported August 30 that soon as he learned of the complaint, but approach is “turning our legal system Righthaven had added a second client, that he provided a “meritorious defense” into a moneymaking enterprise.” Arkansas-based WEHCO Media, parent against the suit. Although not ruling on Stephen Bates, an assistant professor company of the Little Rock Arkansas the merits of the arguments, Navarro at the University of Nevada, Las Vegas’ Democrat-Gazette and the Chattanooga said that a “fair use” analysis “weighed in school of journalism, told the Las Vegas (Tenn.) Times Free Press. favor” of Klerks, particularly because his Sun for an August 4 story, “Like most The Review-Journal reported blog is a nonprofi t venture, because the writers, I’ve had my articles posted November 12 that Frederick had stepped Review-Journal article in question was online without permission. I’m usually down as publisher, and was replaced by “primarily informational,” and because glad to get the attention. When I’m not, Advertising Director Bob Brown. He was the effect on the market is limited I ask that they be taken down. That’s also replaced as Stephens Media CEO by because infringing “because the same how these things are handled. People Michael Ferguson, the company’s former article was viewable to the public for go to court as a last resort, not as a fi rst chief operating offi cer. free on the Las Vegas Review-Journal’s resort—especially when the infringer According to an October 6 report Website.” is a small nonprofi t or a blogger who by BNA’s Electronic Commerce & Moreover, Navarro said Klerks’ “most probably doesn’t know better.” Law Report, a panel of media lawyers meritorious defense” was “implied Criticism has been most acute speaking at a September 25 conference license,” which the U.S. District Court for when Righthaven suits have targeted focused on “Media Law in the Digital the District of Nevada ruled in Field v. unexpected defendants. For example, Age” said that online publishers should Google, 412 F. Supp. 2d 1106 (Dist. Nev. Righthaven sued former Senate expect to see more lawsuits of the 2006) “can be found where the copyright candidate Angle on September 3 for Righthaven variety. Christopher A. holder engages in conduct from which republishing numerous Review-Journal Wiech, an attorney in the Atlanta offi ce the other party may properly infer that stories on her campaign website. of law fi rm Troutman Sanders, said the owner consents to his use.” Klerks Review-Journal Publisher Sherman that because it is unrealistic for many claimed the Review-Journal “offered the Frederick had long been an outspoken individual bloggers to hire a lawyer to article to the world for free, encouraged Angle supporter on his blog, and the defend their use of a single article, many people to save and share the article newspaper endorsed Angle on October 3. are likely to accept settlements of “a with others without restrictions, and Steve Friess, writing for the AOL couple thousand dollars.” If Righthaven permitted users to ‘right-click’ and copy blog Politics Daily on September is successful in getting these types of the article from its website.” Righthaven 10, observed that the lawsuits could settlements, Wiech said, “you’re going to instead claimed that “allowing a user to strain relationships between Review- see more and more types of entities like copy an entire article and post it to the Journal reporters and their sources. this pop up.” user’s website is similar to allowing a Friess reported that one suit targeted On September 24, The Associated user to copy a library book and distribute the website of Anthony Curtis’ Las Press (AP) reported that AP President the copies; a practice that it notes is Vegas Advisor tourist magazine after and CEO Tom Curley called for better illegal under current copyright laws,” the magazine posted online a Review- enforcement mechanisms to limit Navarro wrote. Nevertheless, she found Journal story reporting the results of unlicensed and unauthorized use of news that Klerks “made a plausible argument a survey conducted by the magazine. online. In remarks at a training program based on the recent cases addressing Friess said the Review-Journal story run by AP Managing Editors at the First the copying of works taken from the “was itself the result of a scoop the Amendment Center in Nashville, Tenn., internet.” Advisor handed to the paper, and Curley said the AP was engaging in now threatens the reporter-source efforts to track websites that “scrape” AP Critics Question Righthaven’s relationship between the Advisor and content systematically without paying Approach; Newspaper is the [Review-Journal]’s entertainment for it. Unapologetic scribe.” The Sun reported September 25 Outside of court fi lings, critics of the According to the Sun on August 4, that Mark Hinueber, vice president and Review-Journal and Righthaven have Curtis learned of the suit in June when a general counsel of Stephens Media, raised questions about the long-term Sun reporter asked him for a comment Righthaven, continued on page 22 21 Updates: Punishments for Music Copyright Infringers Thomas-Rasset faces Rasset was overturned because of networks they use to download music— defi ciencies in the jury instructions. The can work as a strategy to combat piracy, million-dollar damages; second verdict award was reduced to according to the Star Tribune. Camara judge shuts down $54,000—or $2,250 per song— by Chief told the jury that millions of other people LimeWire U.S. District Judge Michael Davis in download music exactly as Thomas- January 2010. Davis, calling the damage Rasset did, but that most of them are ecording companies won two award “monstrous” and “shocking,” not sued; some merely receive letters recent copyright infringement wrote that although jury awards are threatening a lawsuit, Camara said. “The cases in an ongoing battle an effective deterrent against people only difference is that they picked her Rwith online networks that illegally downloading copyrighted music, out in order to make headline news,” he facilitate music sharing and their users. “the need for deterrence cannot justify said. Meanwhile, the U.S. Supreme Court a $2 million verdict for stealing and Neither Thomas-Rasset nor Camara declined to hear arguments on whether illegally distributing 24 songs for the sole spoke to the press following the individuals sued purpose of obtaining free music.” Capitol November verdict. She has not said COPYRIGHT for infringement in Records, Inc., et al v. Thomas-Rasset, whether she will appeal the damage such cases should No. 06-1497 (D. Minn. Jan. 22, 2010) award. be subject to lower damages if they Following Davis’s reduction in can show they were unaware that their damages, the plaintiff record companies Judge Shuts Down Peer-to-Peer activities violated the law. offered Thomas-Rasset a different Network LimeWire arrangement: if she accepted a damage On October 26, 2010, U.S. District In Third Trial, Minnesota Woman award of $25,000 to be paid to a Judge Kimba Wood issued a permanent Ordered to Pay $1.6 Million for musician’s charity, the plaintiffs would injunction against peer-to-peer fi le Downloading not challenge Davis’ reduction order, sharing client LimeWire, ceasing its On November 3, 2010, a federal jury according to a January 27, 2010 post on operations. The injunction followed returned a verdict against Brainerd, CNet News. a May 11, 2010 order in which Wood Minn. resident Jammie Thomas-Rasset Thomas-Rasset rejected both the ruled against LimeWire in a copyright to pay $1.6 million in damages to the plaintiffs’ offer and Davis’ reduction, infringement suit brought by 13 record companies that own the rights to 24 opting instead for a separate re-trial companies. Wood’s May 11 order songs that she downloaded. on the issue of damages alone. At her not only found LimeWire liable for The November verdict is the November 1 trial for damages, her infringement, but held the network’s latest installment in a series of three attorney, Kiwi Camara, argued that founder personally liable as well. proceedings against Thomas-Rasset, Thomas-Rasset did the plaintiffs no LimeWire is a program that allows all of which arose out of the same set actual harm. According to a November users to search other LimeWire users’ of facts. In two previous cases, juries 3 story in the Minneapolis Star Tribune, computers for digital music, movies, returned verdicts against Thomas-Rasset Camara told the jury that although “she or any other type of fi le. The case and in favor of the record companies may have engaged in the conduct, that arose when the music companies— who brought the suit in the amount of doesn’t mean they can take her head and who, according to Wood’s May 11 $222,000 and $1.9 million respectively. stick it up on a pole.” Camara also told order, represent “the vast majority of For more on Thomas-Rasset’s fi rst two the jury that his client was selectively copyrighted sound recordings sold in the trials, see “Music Industry Wins First targeted for litigation by the music United States”—sued LimeWire and its Internet Piracy Case” in the Fall 2009 industry, arguing that the case was only founder and CEO Mark Gorton in federal Silha Bulletin. pursued by the plaintiffs to prove that district court for the Southern District The fi rst verdict against Thomas- suing individuals—and not just the Music Copyright, continued on page 23

Righthaven, continued from page 21 said he was encouraged that the AP is agency” that could help protect copyright in a July 28 post on the Las Vegas Weekly also taking aim at unlicensed use of its and license content. website. “Offenders think they deserve news content. Hinueber spoke during a According to the Sun, Hinueber a polite warning, but I’m all for scaring presentation sponsored by the Las Vegas said that although the lawsuits have the hell out of them,” Friess wrote. Chapter of the Society of Professional generated negative publicity for the “The thing that’s killing the media is the Journalists. He said he hoped that Review-Journal and may have created devaluation of its assets, something in efforts by the AP and others would problems for reporters whose sources which [the media] is a willing participant. deter copyright infringers, and that were sued, the lawsuits would continue. This could be a fi rst step toward “Righthaven isn’t the only solution to this “I think the benefi ts are worth the reminding people that information may problem.” The Sun reported Hinueber negative publicity,” he said. want to be free, but those who provide it called for “some sort of digital rights Friess defended the Righthaven suits have bills to pay, too.” – PATRICK FILE SILHA FELLOW AND BULLETIN EDITOR 22 Music Copyright, continued from page 22 of New York. The plaintiffs claimed that observed that Grokster had sought to preliminary hearing date of May 2011 has because LimeWire’s users transmitted market its services to “former Napster been set to determine how much Gorton copyrighted music over the network, the users,” which indicated “a principal, and LimeWire must pay in damages. company should be liable for copyright if not exclusive, intent … to bring In her October 26 order, Wood noted infringement. Arista Records, LLC, et about infringement” and that it had not that in the months since she found al v. Lime Group LLC, No. 06-CV-5936 “attempted to develop fi ltering tools LimeWire liable for infringement, (S.D.N.Y. May 11, 2010) or other mechanisms to diminish the millions of songs and videos continued to Wood agreed with the plaintiff, infringing activity.” Therefore, the court be shared over LimeWire’s network. She and found LimeWire liable for direct reasoned that “one who distributes a permanently enjoined LimeWire from infringement on a theory of secondary continued existence, liability. Wood found that although “ [Thomas-Rasset] may have engaged writing that “based LimeWire never actually stored and in the conduct, that doesn’t mean they on the record of both directly distributed copyrighted music, proven intentional because it distributed “infringement- can take her head and stick it up on a inducement of enabling products [and] services, [it] pole.” infringement, enable[d] direct infringement on a —Kiwi Camara and continued massive scale, making it impossible to Attorney for Jammie Thomas-Rasset inducement of enforce [copyright] protection effectively infringement even against all direct infringers.” device with the object of promoting its after the Court found [liability], the In addition, Wood wrote that because use to infringe copyright, as shown by evidence warrants injunctive relief.” “in internal communications, [LimeWire clear expression or other affi rmative employees] regularly discussed the steps taken to foster infringement, High Court Denies Certiorari in fact that LimeWire users downloaded is liable for the resulting acts of ‘Innocent Infringer’ Case copyrighted digital recordings through infringement by third parties.” For more The U.S. Supreme Court denied the program, [and] tested [the program] on the Grokster decision, see “U.S. certiorari to a case that could have by searching for infringing content” Supreme Court Rules in Grokster” in the tested whether an individual found and because the company “marketed Summer 2005 issue of the Silha Bulletin. guilty in a fi le sharing infringement case LimeWire to users of Napster and similar In the May 11 ruling, Wood noted may use an “innocent infringer” defense programs, and promoted LimeWire’s that following the Grokster decision to limit her damages. Justice Samuel infringing capabilities,” the company LimeWire began requiring users to Alito dissented from the Court’s denial, intentionally encouraged people to click a box affi rming that they would arguing that the court should consider use its program to infringe. Wood also not use the software for infringement the legal viability of the defense. wrote that the company’s failure to take purposes as a condition of downloading The case, Maverick Recording actions to mitigate infringement despite the program. “The notice and statement Company, et al v. Harper, No. 5:07-CV- knowing that infringement was occurring of intent requirements, on their own, 026-XR (W.D. Texas, Aug. 8, 2008), arose was evidence that the company induced do not constitute meaningful efforts to when a group of record companies sued copyright violations. mitigate infringement,” Wood wrote, then-high school student Whitney Harper Wood’s May 2010 decision relied adding that the company’s “failure to under the Copyright Act, 17 U.S.C. § 101 heavily on MGM Studios, Inc. v. utilize technology to create meaningful et seq, for downloading 39 copyrighted Grokster, 545 U.S. 913 (2005), where barriers [was] a strong indicator of intent songs using the peer-to-peer program the U.S. Supreme Court extended and to foster infringement.” KaZaa. clarifi ed its rule from Sony Corp. of Wood also found Gorton personally The plaintiffs moved for summary America v. Universal Cities Studios, liable for infringement on the same judgment, asking the court to enjoin Inc., 464 U.S. 417 (1984). In Sony, theories of liability as the corporation. Harper from downloading any more the Court held that if technology Wood wrote that precedent established music, and requested damages of has “signifi cant, noninfringing uses,” that “an individual, acting as a corporate $750 per song—the minimum amount the proprietors of that technology offi cer, who has the ability to supervise under the Copyright Act—for a total could not be held liable for copyright infringing activity and has a fi nancial of $29,250. Harper argued that “due to infringement—known as the “Sony interest in that activity … is personally her age—sixteen years old at the time Safe Harbor” rule. The Grokster liable for infringement,” citing Stumm of the infringement—and technological decision concerned peer-to-peer v. Drive Entertainment, Inc., 2002 experience, she did not intentionally technology similar to LimeWire. There U.S. Dist. LEXIS 7762 (S.D.N.Y. 2002) violate Plaintiffs’ copyrights and should the Court found that although peer- (emphasis in original). Wood found that therefore be considered at most an to-peer technology could be used for the evidence showed that Gorton was innocent infringer.” Under § 504 (c)(2) of noninfringing purposes, the vast majority the company’s “ultimate decisionmaker,” the Copyright Act, “where the infringer of downloads over the Grokster network whose approval was required for “any … was not aware and had no reason to were of copyrighted materials, and major strategic and design decisions,” believe that his or her acts constituted that Grokster’s owners and operators and that Gorton benefi ted fi nancially Music Copyright, continued on page 24 promoted it for that purpose. The Court from LimeWire’s infringing activities. A 23 Journalism Suffers amid Drug Wars in Mexico

Journalists are skeptical the CPJ report said. that in July 2010, four journalists were about government “The infl uence of organized crime kidnapped after covering the revelation over nearly every aspect of society, that the warden of Durango’s Gomez solutions including government, police, and Palacio prison had allowed inmates to ncreasing violence in Mexico has prosecutors, has made Mexico the go out on nighttime killing rampages. led journalists there to question deadliest nation for the press in the The kidnapped reporters were released whether doing their jobs is worth Western hemisphere and one of the only when their employers agreed to Irisking their lives. The situation has world’s most dangerous places to broadcast videos sent to them by a drawn worldwide attention to the chilling exercise the fundamental human right cartel that purported to show corrupt effect created when drug traffi cking of free expression,” the report said. The police offi cers admitting, at gunpoint, cartels and law enforcement intimidate report is available online at http://cpj. to working for a rival cartel. One of the and terrorize news media and reporters org/reports/2010/09/silence-or-death-in- kidnapped reporters told the Los Angeles who scrutinize their activities. mexicos-press.php. Times that over the course of fi ve days On Sept. 8, 2010, the Committee to U.S. media have taken notice of he was tortured, beaten with a board, Protect Journalists (CPJ) released a the threat to the Mexican press. In an and threatened with “an ugly death.” 42-page report, August 16 story, the Los Angeles Times When traffi ckers attacked a military INTERNATIONAL titled “Silence explained that Mexican journalists use garrison in Reynosa with machine guns PRESS FREEDOM or Death in the word “narco-censorship” to describe and hand grenades, part of a larger Mexico’s Press” reporters and editors who, “out of fear coordinated attack launched across the that detailed how “crime, violence, and or caution, are forced to write what the country in late March 2010, it made the corruption are destroying the country’s traffi ckers want them to write, or to front page of the Los Angeles Times, but journalism.” Among the report’s fi ndings simply refrain from publishing the whole was not reported in the local Reynosa were that more than 30 journalists or truth.” media out of fear of reprisals. media workers have been murdered According to the Los Angeles Times, CPJ also reported that bribes can or have disappeared since Mexican Mexican journalists, especially in drive coverage, or lack thereof, as much President Felipe Calderon launched a the cities of Ciudad Juarez, Durango, as fear. The organization interviewed military offensive against the country’s and Reynosa, avoid reporting on the journalists in Reynosa who said many powerful drug cartels in December specifi cs of the cartels’ drug production, reporters take bribes from the drug 2006. The report said that 22 journalists smuggling, organized crime operations, traffi ckers to slant their stories or have been murdered in that time, eight and infi ltration of local government withhold coverage. Stories about of whom were killed “in direct reprisal because drawing attention to those kidnappings and extortion are generally for reporting on crime and corruption.” activities would be likely to draw federal considered off-limits. Additionally, the report said three efforts to halt them. Warnings to local The situation appeared to be media support workers have been killed media by the drug cartels can come especially desperate in Ciudad Juarez and at least seven journalists have in the form of the disappearance of in September 2010, after an intern reporters or a deadly hail of bullets. gone missing. Dozens more have been Mexican Press, continued on page 25 attacked, kidnapped, or forced into exile, The Los Angeles Times reported

Music Copyright, continued from page 23 an infringement of copyright, the court was aware that compact discs contain to copyright” to know that the music in its discretion may reduce the award of labels indicating that the material on is copyrighted. Maverick Recording statutory damages to a sum of not less them is copyrighted, U.S. District Judge Company, et al v. Harper, 598 F.3d 193 than $200.” Xavier Rodriquez wrote that “a question (5th Cir. 2010) The district court agreed with Harper, remains as to whether Defendant knew On November 29 the Supreme Court and found that although she infringed the warnings on compact discs were denied certiorari. In his dissent, Alito on the plaintiffs’ copyrights when she applicable in this KaZaA [sic] setting.” wrote, “there is a strong argument downloaded the music, she was unaware The plaintiffs appealed to the 5th U.S. that §402(d) does not apply in a case that her actions constituted infringement. Circuit Court of Appeals, where a three- involving the downloading of digital The plaintiffs argued that warning labels judge panel reversed Rodriquez’s ruling. music fi les. This provision was adopted they placed on compact discs—the The panel wrote that Harper “cannot in 1988, well before digital music fi les common source for music found on to rely on her purported legal naivety [sic]” became available on the Internet.” peer-to-peer networks—was suffi cient to escape paying damages, and that – GEOFF PIPOLY notice to defeat Harper’s innocent “one need only have access to [a] CD SILHA RESEARCH ASSISTANT infringer argument. Even though Harper and see that the recording is subject

24 Mexican Press, continued from page 24 photographer for local paper El Diario prosecutor for crimes against journalists, government has “a federal obligation” to was shot and killed by gunmen when blamed “grand chaos” in the Mexican address the problem, citing protections he was leaving a shopping mall at criminal trial system as the reason so for freedom of expression and the press lunchtime on September 16, according little investigating had been done; no in the Mexican constitution, as well to The New York Times on September authorities had spoken to witnesses as the fact that Mexico is a signatory 20. Another intern was injured in the since the day after the murder. to the International Covenant on Civil attack. The following Sunday El Diario CPJ reported that Víctor Garza and Political Rights, which guarantees published an open letter on its front Ayala, owner of El Tiempo de Durango, the right “to seek, receive, and impart page under the headline “What Do You information and ideas Want from Us?” according to the Los “ The full enjoyment of freedom of all kinds, regardless Angeles Times blog La Plaza. The letter, of expression [in Mexico] … is of frontiers, either according to a translated version on La orally, in writing or Plaza, addressed the “Gentlemen of the up against serious and diverse in print, in the form different organizations that are fi ghting obstacles, including most notably of art, or through for the Ciudad Juarez plaza: … we ask the murder of journalists and other any other media,” that you explain what it is you want from very serious acts of violence against and the American us, what you’d intend for us to publish or Convention on Human to not publish, so that we know what is those who disseminate information, Rights, which not only expected of us. You are at this time the ideas and opinions, and the guarantees rights to de facto authorities in this city because widespread impunity in those cases.” free expression but the legal authorities have not been able also states that every to stop our colleagues from falling, —Catalina Botero Marino, individual has “the despite the fact that we’ve repeatedly Special Rapporteur for Freedom of Expression right to simple and demanded it from them. Because of this, of the Inter-American Commission on prompt recourse … before this undeniable reality, we direct Human Rights and Frank La Rue, United for protection against ourselves to you with these questions, Nations Special Rapporteur on Freedom of acts that violate his because the last thing we want is that Expression and Opinion fundamental rights.” In another one of our colleagues fall victim March 2010, the U.N. to your bullets.” Antuna’s principal employer, had another Human Rights Committee found that the However, the letter was “not a theory for why the investigation had not Mexican government had failed to take surrender,” according to the version gone anywhere: state offi cials “know effective action to protect the press and on La Plaza, “It also does not signify perfectly well who killed him. They don’t bring assailants to justice, CPJ reported. we’re giving up on the work we’ve been need an investigation,” he said. “They are On August 7, hundreds of reporters producing. This is about a truce with either afraid of who did it or they are in marched in Mexico City while thousands those who have imposed the force of business with them.” more marched elsewhere in the country their law upon this city, so long as the The situation has become serious to protest the ongoing threats against lives are respected of those who dedicate enough for the United Nations to send journalism, according to a report on themselves to the task of informing.” two envoys on an offi cial visit. Following the CBS News website. Marcela Turati, The New York Times reported a 15-day trip in August 2010, the Special head of an organization formed to assist that although the government had Rapporteur for Freedom of Expression reporters threatened by organized crime condemned the September 16 killing, its of the Inter-American Commission on called Journalists on Foot, said the investigation had not identifi ed a suspect Human Rights (IACHR) and the United march was “the fi rst march organized or motive. “Such investigations have Nations Special Rapporteur on Freedom by journalists calling for the protection a history of shifting theories and little of Expression and Opinion said Mexico of journalists.” CBS News reported that resolution,” the Times reported, adding requires “urgent attention” because “the Turati said although the march was “an that the 2008 murder of El Diario’s full enjoyment of freedom of expression important fi rst step … we need more police reporter remains unsolved; the … is up against serious and diverse follow-up, more mechanisms to protect case’s lead prosecutor was also killed. obstacles, including most notably the journalists.” According to the CPJ report, murder of journalists and other very On August 24, Madrid-based Spanish corruption and fear pervade the serious acts of violence against those language news service EFE reported that investigations of crimes against who disseminate information, ideas and four media unions, along with magazines journalists, despite the establishment opinions, and the widespread impunity in and journalism foundations, issued a of a federal special prosecutor’s offi ce those cases.” statement calling on the government to for investigating such crimes in 2006 According to Agence France-Presse take “forceful” action to end the “atmo- under President Vicente Fox. For (AFP), on August 17, the U.N. envoys sphere of affronts and violence” against example, the report highlighted the said they support efforts to have crimes Mexico’s journalists and defend freedom unsolved 2009 murder of Durango against media workers recognized of expression and of the press. crime reporter Bladimir Antuna García. and investigated at a federal level. The Mexican Press, continued on page 31 Juan López Ramírez, the state’s lead CPJ report asserted that the Mexican 25 International Courts Favor Newsgathering Rights Canadian and European photographs. The ECHR noted that the the interests of preventing crime with the closure would have limited the ability need to protect journalists’ sources, and rulings expand reporter’s of Sanoma Uitgevers’ dozens of other the crime in this case was serious enough privilege magazines and 180 websites to cover the to justify interfering with publishers’ ulings in two foreign February 2 wedding of the Netherlands’ rights, especially since there was no courts—the Grand Chamber Crown Prince. After negotiations with other way to identify perpetrators. of the European Court of prosecutors, as well as a phone call On Sept. 14, 2010, the 17-judge RHuman Rights (ECHR) and to a judge, the magazine’s lawyers Grand Chamber of the Court—which the Canadian Supreme Court—favored surrendered the photographs “under is the ECHR’s “court of last resort”— journalists’ rights to protect confi dential protest” at 1:20 a.m. on February 2. reversed the lower panel’s ruling. The sources in fall 2010. The magazine lodged a complaint with Court focused primarily on the fact the Regional Court in the Netherlands, that Netherlands law does not require European Court Rules Arrest and asking that the seizure be ruled unlawful, judicial oversight for the issuance of Search Violate Human Rights the photos returned, any copies in the summons, which could impose a In a September 14 decision, the ECHR police possession destroyed, and any “chilling effect” on journalists and their ruled that law evidence based on their content be ruled sources, even where no search or seizure INTERNATIONAL enforcement inadmissible. In a Sept. 5, 2002 hearing, is actually executed. PRESS FREEDOM authorities in the public prosecutor revealed that the The Court observed that “in its earlier the Netherlands summons had been issued not because case-law [it] has found various acts of violated a magazine’s rights to of the street race but because authorities the authorities compelling journalists “journalistic freedom of expression” believed that a car used by some of its to give up their privilege and provide when they forced the magazine to hand participants might have been used in information on their sources or to obtain over photographs of an illegal street race a series of robberies. Ultimately the access to journalistic information to after arresting the magazine’s editor and court ordered the photos returned, but constitute interferences with journalistic threatening to close its offi ces in order to declined to invalidate the seizure. The freedom of expression.” It cited Goodwin search them. Sanoma Uitgevers B.V. v. Netherlands Supreme Court declined v. United Kingdom, 123 Eur. Ct. H.R. the Netherlands, App. No. 38224/03 (Eur. to hear an appeal, ruling that the Code (1996), in which the Court established Ct. H.R. Sept. 14, 2010) of Criminal Procedure did not allow a the “vital public interest in the protection The case arose after journalists from declaratory ruling that the seizure or the of the … journalist’s source” as well as Autoweek attended the race, near a small use of the seized item was unlawful once Roemen and Schmit v. Luxembourg 102 town outside of Amsterdam in January it had been returned. Eur. Ct. H.R. (2003), Ernst v. Belgium 2002. Race participants allowed the The ECHR was established by the 359 Eur. Ct. H.R. (2003), and Tillack journalists to take photographs on the European Convention on Human Rights v. Belgium App. no. 20477/05, Eur. Ct. condition that participants’ identities of which was adopted by the Council of H.R. (2007), where “the Court found would remain undisclosed. Police were Europe in 1953. Individuals or nations that searches of journalists’ homes and present at the race and eventually closed who claim that a Council member has workplaces … constituted interferences it down, but no arrests were made, violated the Convention can fi le an with their rights guaranteed by paragraph according to the court opinion. appeal with the Court. The publisher’s 1 of Article 10.” On Feb. 1, 2002, six days before complaint to the ECHR argued that The Court also observed that the Autoweek published its story about the the search violated Article 10 of the Netherlands trial court had ruled that the race, police contacted the magazine Convention, which states, “everyone government’s interest should outweigh and demanded that it hand over copies has the right to freedom of expression. the journalists’ rights “more so as the of its photos. When editors refused the This right shall include freedom to undertaking to the journalistic source request by phone, police detectives went hold opinions and to receive and concerned the street race whereas to the magazine company’s offi ces and impart information and ideas without the investigation did not concern that served them with a summons issued interference by public authority” and that race,” and instead involved “grave by Amsterdam’s public prosecutor. “the exercise of these freedoms, since it crimes.” The Court said it “does not Under Netherlands law, a summons to carries with it duties and responsibilities, consider this distinction to be crucial” produce materials in connection to a may be subject to such formalities, because the serious of the underlying criminal investigation does not have conditions, restrictions or penalties as case was “irrelevant for the purposes of to be approved by a judge. When the are prescribed by law and are necessary determining whether there has been an magazine’s editor in chief continued in a democratic society.” A seven-judge interference with the right of journalists” to refuse to produce the photographs, panel of the ECHR ruled 4 to 3 in March to protect their sources. he was placed under arrest and police 2009 that no violation of the Convention The Court continued: “While it is threatened to shut down the offi ces of had occurred. Despite “a regrettable true that no search or seizure took Sanoma Uitgevers, Autoweek’s publisher, lack of moderation” demonstrated by place in the present case … a chilling while they removed all computers and police and prosecutors, the Court said, Newsgathering, continued on page 27 searched them and the building for the domestic courts were entitled to balance 26 Newsgathering, continued from page 26 effect will arise wherever journalists ECHR ruling. Geoffrey Robertson QC, case involved a criminal investigation by are seen to assist in the identifi cation of counsel for a coalition of intervening the Royal Canadian Mounted Police, and anonymous sources” because sources news media and advocacy groups, a search warrant seeking possibly forged will be unwilling to trust promises of called the ruling “an acid test for the bank documents. For more on that confi dentiality in the future. The Court Court and for media freedom across case, see “Canadian Justices Say No to added, “News is a perishable commodity Europe,” according to international free Privilege, Yes to Publication Ban” in the and to delay its publication, even for a expression advocacy group Article 19 on Summer 2010 issue of the Silha Bulletin. short period, may well deprive it of all its The Globe and Mail value and interest.” “ It is not inconsistent, either in case was distinguished The Court said that the decision to principle or in fact, to give judges from the National compel journalists to disclose their Post case because it confi dential source should be made by a the authority to exempt a journalist involved the law of judge, rather than a prosecutor who “is from testifying, when his … rights are Quebec, which uses a ‘party’ defending interests potentially found to be paramount.” a civil code system incompatible with journalistic source rather than a common protection and can hardly be seen as —Canadian Supreme Court Judge Louis LeBel law system, and also objective and impartial so as to make Globe and Mail v. Canada, 2010 SCC 41 (Can.) because it involved a the necessary assessment of the various reporter having been competing interests.” The deciding judge September 16. Robertson said the ruling called to personally testify and disclose should apply “clear criteria, including “sets a high benchmark for protection confi dential sources in the context of a whether a less intrusive measure can of journalistic materials and will force civil trial. The underlying case involved suffi ce to serve the overriding public police and prosecutors across Europe, a dispute over government funds interests established,” the Court said. from Russia to France, to change their issued to, and allegedly misused by, The Netherlands argued that it met practices.” media corporation Le Groupe Polygone the necessary threshold because a Article 19 reported that intervening Editeurs Inc. Pursuant to its defense judge had been consulted before the organizations included itself, the Media against the allegations, Groupe Polygone photographs were turned over and Legal Defence Initiative, the Committee subpoenaed Globe and Mail reporter the Regional Court had ruled on the to Protect Journalists, Guardian News Daniel Leblanc to testify and disclose magazine’s appeal, but the Court rejected and Media Limited, and the Open Society a confi dential source for his reporting this argument. There was a “lack of any Justice Initiative. Support also came on the scandal. Groupe Polygone also legal basis for the involvement of the from The Associated Press, Bloomberg sought and received a judicial order investigating judge” who was consulted News, the European Newspaper banning Leblanc from reporting any the night the summons was issued, the Publishers Association, Condé Nast further stories on the scandal, including Court observed, since the Netherlands Publications, Hearst Corporation, the details about confi dential settlement Criminal Code does not require it. “Being National Geographic Society, the New negotiations between it and the Attorney nowhere required by law, it occurred at York Times Company, Reuters, Time Inc., General of Canada. The trial court judge the sufferance of the public prosecutor,” the Washington Post Company, and the refused to recognize the existence of the Court said. World Association of Newspapers and a journalist-source privilege and the “Secondly,” the Court continued, “the News Publishers, Article 19 said. newspaper’s objections were dismissed. investigating judge was called in what The Quebec Court of Appeal declined can only be described as an advisory Canadian High Court Extends to hear the Globe and Mail’s appeal on role. Although there is no suggestion Privilege to Journalist Testimony the issue of privilege, and dismissed the that the public prosecutor would have and Civil Cases newspaper’s attempt to “discontinue” compelled the surrender of the CD-ROM The Supreme Court of Canada Polygone’s suit against the government. in the face of an opinion to the contrary ruled on October 22 that a journalist’s The opinion for a unanimous nine- from the investigating judge, the fact privilege—a right to protect confi dential member Supreme Court, written by remains that the investigating judge had sources from disclosure—can extend Judge Louis LeBel, fi rst rejected the no legal authority in this matter. … Thus to testimony in civil cases, not just Globe and Mail’s argument that the it was not open to him to issue, reject or subpoenas for documentary evidence in Quebec Charter, roughly equivalent to allow a request for an order, or to qualify criminal investigations. Globe and Mail a state constitution, provides a basis or limit such an order as appropriate.” v. Canada, 2010 SCC 41 (Can.) for journalist-source privilege because On the issue of the post-disclosure In May 2010, the Court ruled in R. of provisions that protect freedom of appeal, the Court said “it is clear … that v. National Post, 2010 SCC 16 (Can.) expression, the right to information, the exercise of any independent review that although journalists do not have a and rights for individuals “bound to that only takes place subsequently to constitutional right to shield the identity professional secrecy by law.” the handing over of material … would of their sources, a privilege can be Citing the Court’s reasoning in undermine the very essence of the right applied on a case-by-case basis through National Post, particularly “the diffi culty to confi dentiality.” a four-part balancing test called “the News media supporters praised the Wigmore criteria.” The National Post Newsgathering, continued on page 28 27 Newsgathering, continued from page 27 in defi ning such a ‘heterogeneous the common-law “Wigmore criteria” perhaps most importantly, whether and ill-defi ned group of writers and for determining whether journalist’s the information is available through speakers’” LeBel wrote that “freedom privilege applies to a case can be any other means.” It also said that the of expression under the Quebec imported into Quebec’s civil law system. Wigmore criteria should apply to the Charter cannot constitute the basis Under the four-part test, a court must specifi c circumstances involving Leblanc for recognizing a class-based, quasi- determine whether the communication and the Globe and Mail. constitutional journalist-source “originate[d] in a confi dence that the However, the Court declined to decide privilege.” The Court also said that identity of the informant will not be whether Leblanc’s claim of privilege although the right to information “can … disclosed,” whether the confi dence is should allow him to refuse to testify, inform the protection of the confi dential essential to the relationship in which instead ruling to “remit the matter to the relationship between journalists and the communication arises, and whether Superior Court for a consideration of Mr. their sources, it cannot constitute the the relationship is one which should be Leblanc’s claim, in accordance with these basis for recognizing that privilege” diligently, deliberately, and consciously reasons.” because the right conferred by that fostered in the public good. If the fi rst The Court also overturned the lower provision “is limited to the extent three requirements are met, “the court court’s ban on Leblanc’s publishing that access to information is already must last consider whether in the instant further stories about the Polygone provided for by law … and [therefore] case the public interest served by scandal. LeBel wrote that the lower does not broaden the scope of the right, protecting the identity of the informant court should have given both parties [and] cannot be the source of a quasi- from disclosure outweighs the public an opportunity to submit briefs in constitutional right to the protection of interest in getting at the truth.” support or opposition to the ban. “A journalists’ sources.” The Court observed that “neither publication ban, which by its very On the issue of the Charter’s the Civil Code nor the Code of Civil nature infringes the constitutional protection for “professional secrecy,” Procedure explicitly provides for the rights of the party against whom it is LeBel fi rst observed that journalism is recognition in the civil litigation context imposed, cannot, absent extraordinary not included in the list of 45 professions of journalist-source privilege, which now circumstances not present here, be subject to the Quebec Professional exists in the common law jurisdictions. imposed ex proprio motu,” or without Code; its inclusion was contemplated A gap in the codifi ed law exists, and the hearing from the parties, LeBel wrote. but ultimately rejected. Moreover, LeBel question becomes one of determining the In his analysis of the issue, LeBel said wrote that “there is no basis for drawing appropriate way of fi lling it.” that any confi dentiality agreement an analogy between professional secrecy The Court ruled that although there between parties to a lawsuit “does not, and journalist-source privilege” because is debate over whether judges can apply and cannot, extend to the media. Neither “the associations of journalists are not common-law principles where the civil Mr. Leblanc nor the Globe and Mail did regulated” and because “journalism is not code does not provide guidance, “the anything—illegal or otherwise—to obtain a profession of the type that professional creation of a framework to address the information published in the article.” secrecy traditionally purports to these issues represents a legitimate and LeBel added, “I am reluctant to endorse protect.” The Court’s reasoning was necessary exercise of the power of the a situation where the media or individual based on a defi nition of “professional court to interpret and develop the law” journalists are automatically prevented secrecy” that requires that there “be a and therefore “it is not inconsistent, from publishing information supplied to law that imposes an obligation of silence either in principle or in fact, to give them by a source who is in breach of his on an individual” and an “obligation” that judges the authority to exempt a or her confi dentiality obligations.” is “rooted in a helping relationship.” The journalist from testifying, when his The Montreal Gazette, in an October “helping relationship” is described as one … rights are found to be paramount.” 23 story, said the ruling “boosted” “where the benefi ciary of the privilege Therefore, the Court ruled, “Despite and “reinforced” freedom of the press seeks out the professional for personal its common law origins, the use of a in Canada. According to the Gazette help or assistance” and “the obligation Wigmore-like framework to recognize the Leblanc told reporters “The big victory is of confi dentiality is ‘in the exclusive existence of the privilege in the criminal the recognition of journalistic work, the interest of the person who disclosed law context, as established in National protection of sources that has to weigh [the information], and in the context Post, is equally relevant for litigation in the balance when these issues are of a helping relationship.’” Because the subject to the laws of Quebec.” raised in court.” legislature did not include journalism The Court extensively reviewed the The Globe and Mail reported in the list of 45 professions subject to Wigmore criteria and provided guidance October 23 that its editor-in-chief, John professional secrecy, and because “the on their application to civil law: “the Stackhouse, said the ruling “set a very relationship between journalists and relevant considerations …when a claim high bar for disclosure of sources in their sources is not one that would often to privilege is made in the context of investigative journalism,” adding that result in such a ‘helping relationship,’” civil proceedings, include: how central “journalists and their sources don’t enjoy LeBel said the protection for professional the issue is to the dispute; the stage of blanket protection, but we can continue secrecy does not extend to journalism. the proceedings; whether the journalist to pursue investigative journalism, However, the Court also ruled that is a party to the proceedings; and, Newsgathering, continued on page 29 28 Journalists Question Implications of Covering Quran Burning and NYC Muslim Community Center

“Islamaphobia Observatory” section, and According to the Salon.com story, Media sought ways to the story spread online among Islamic Ingraham applauded the project at the report on controversy communities, particularly via Facebook. time. without perpetuating it The September 10 Washington Post Alissa Torres, a contributor to Salon. story reported that in early August, chain com whose husband was killed in the s controversy simmered in the messages were circulating on Facebook 2001 attacks, wrote September 7 that weeks leading up to Sept. 11, protesting Jones’ page and calling for its she received an e-mail from a New York 2010 around a pastor’s threat to removal. Dozens of groups were formed television reporter on May 6 who wrote, Aburn a Quran and a proposal to to protest the page, which was removed “I am working on a story today about the build an Islamic cultural center in lower in early September. proposed mosque project at the WTC Manhattan, commentators and media Jones later connected his planned site. I am interviewing the developers organizations considered how much the Quran burning with the “Ground Zero but I am also trying to look for family news media might perpetuate the scandal Mosque”—a frequently used name for members who think building a mosque they were covering, and its backlash. the proposed Islamic cultural center at the site is a bad idea.” In her article, Pastor Terry Jones of the Dove in lower Manhattan known as Park Torres said that the query seemed “a World Outreach Center in Gainsville, 51—saying he would not burn the book if bit leading,” and wrote that she felt the Fla. received the center was moved. Park 51 garnered media were trying to exploit those who international news coverage as early as Dec. 8, 2009, lost loved ones in the attacks by “trying MEDIA ETHICS media attention when The New York Times devoted a to create a controversy where there is when he front-page story to the project. The story none, in raking over wounds that—nine threatened to burn copies of the quoted the lead organizer of the project, years later—still hurt.” Islamic holy book, the Quran, on the Imam Feisal Abdul Rauf, as saying that Salon.com’s August 16 story stated ninth anniversary of the Sept. 11, 2001 the project organizers wanted to “push that Park 51 never should have been a terrorist attacks in New York City and back against the extremists.” controversy in the fi rst place because Washington, D.C. Controversy picked up signifi cantly “they have had a mosque in the same According to The Washington Post for Park 51 when a community planning neighborhood for many years. There’s on September 10, Jones fi rst announced board in New York City approved its another mosque two blocks away from his plans to burn copies of the Quran on preliminary plans on May 6, 2010 and the site. City offi cials support the project. July 12, 2010 with a series of statements The Associated Press (AP) produced a Muslims have been praying at the on Twitter that culminated with the story about it the same day. The story Pentagon, the other building hit on Sept. statement “9/11/2010 Int Burn a Koran included quotes from those supporting 11, for many years.” Day [sic].” On September 7, ABC News and opposed to the project, and was Meanwhile, national news media reported that Jones had also announced published by USA Today on May 7. CNN considered how to cover Jones’ on Facebook on July 12 that September also covered the project’s approval on proposed Quran burning in light of 11, 2010, would be “International Burn May 7, as did other national news media. threats of violence and reprisals against a Koran Day,” and that members of his The New York Post ran a story on May 6, U.S. troops and citizens abroad. The church would burn copies of the Quran 2010, with the headline “Panel Approves Washington Post reported September 10 on that day. ‘WTC’ Mosque.” that the fi rst large protest in response to News about Jones’ plans spread According to an August 16 story the planned Quran burning took place in quickly. EuroIslam Info, a Harvard on Salon.com, the term “Ground Zero Indonesia on September 4. On September University sponsored news site that Mosque” was fi rst used when Laura 6, protesters in Kabul burned an effi gy of covers “news and analysis on Islam in Ingraham, co-hosting “The O’Reilly Jones and chanted “Death to America,” Europe and North America,” picked up Factor” on Fox News, interviewed Rauf’s according to the Post. the story on July 14 and posted it in its wife, Daisy Rauf, about the project. Quran Burning, continued on page 30

Newsgathering, continued from page 28 including confi dential sourcing, knowing of the newsgathering relationship,” William Brock said “the Supreme the courts view public interest as and that the case-by-case standard was Court has clearly stated not only that paramount.” too uncertain for such a critical part of journalistic-source privilege exists in However, Professor Jamie Cameron investigative reporting. Cameron said Quebec, but also that a confi dential of York University’s Osgoode Hall Law a shield law is needed to “give this source should only be revealed School told The Globe and Mail she was confi dential newsgathering relationship where it is vital to the integrity of the disappointed that the Court has refused the legal protection it requires.” administration of justice.” to recognize “the constitutional status Nevertheless, Globe and Mail lawyer – PATRICK FILE SILHA FELLOW AND BULLETIN EDITOR 29 Quran Burning, continued from page 29 On September 7, Gen. David Petraeus, decision not to broadcast was “about Gainesville Sun, said in an e-mail to commander of U.S. and international judgment.” Clemente told the Globe that McBride that his newspaper was “trying forces in Afghanistan, released a Jones was “one guy in the middle of the to keep our readers informed without statement saying, “Images of the burning woods with 50 people in his congregation alarming them, or giving this misguided of a Koran would undoubtedly be used who’s decided to try, I gather, to bring pastor more of a stage than is deserved. by extremists in Afghanistan—and some attention to himself … there are While we can’t escape the reality of what around the world—to infl ame public many more important things going on in is likely to happen Saturday, we are opinion and incite violence.” Pakistani the world than that. I don’t know what committed to not sensationalizing the publication Dawn quoted Pakistani they will be this weekend, but I am sure event.” President Asif Ali Zardari on September Mike Thomas, a 9 saying that Jones’ plan, if carried out, “ Whether it’s the coverage of the columnist for the would “cause irreparable damage to plans to build an Islamic center in Orlando Sentinel interfaith harmony and also to world Lower Manhattan or reporting on was more direct in peace.” his criticism of the In a television interview on ABC the United States’ interrogation of media: “I ask you: If News’ “World News,” on September potential terrorists, misinformation a sad little man burns 9, President Barack Obama said is as common as good information.” some Qurans in the that burning Qurans could “greatly woods, and the media endanger our young men and women —Kelly McBride aren’t there to fi lm it, in uniform who are in Iraq, who are Media ethicist, The Poynter Institute is it news? Of course in Afghanistan.” In a news segment not.” Thomas wrote. following the interview, ABC reported they will be more important than that.” “We created the Rev. Terry Jones from that “across the world, crowds took Tom Kent, deputy news director for dust. And in two weeks, to dust he shall to the streets to protest the planned the AP, sent out a memo to AP staff return. Then we’ll move on to the guys burning of the Quran” with September on September 9 informing them of the who plan to run over the Quran at their 9 protests in Pakistan and Afghanistan decision not to broadcast the planned monster-truck pull. Whatever it takes to being the largest. CBS News reported Quran burning and offering guidelines keep your attention.” on September 12 that the protests in on how to limit coverage of it to one Jones announced September 9 that he Afghanistan lasted for three days, from story a day. “AP policy is not to provide had canceled his planned Quran burning, September 8 to September 10, killing two coverage of events that are gratuitously claiming that Florida Imam Muhammad and injuring four. manufactured to provoke and offend. Musri had promised to broker a deal According to the September 9 “World In the past, AP has declined to provide with the group planning to build Park 51. News” report, the U.S. State Department images of cartoons mocking Islam and In a televised press conference, Jones issued a worldwide warning that day Jews,” the memo read. The memo stated, said that he would fl y to New York City for Americans traveling abroad, out of “should the event happen on Saturday the following Saturday to meet with fear that Americans might be targeted [September 11], the AP will not distribute “the Imam at the ground zero mosque.” if the planned burnings went forward. images or audio that specifi cally show Jones told ABC News on September 9 U.S. Secretary of Defense Robert Gates Qurans being burned, and will not that Rauf had “agreed to move [Park 51]. also placed a personal call to Jones to provide detailed text descriptions of the And we have agreed to cancel our event warn him of the potential national and burning. With the exception of these on Saturday. Americans don’t want the international security threats, ABC News specifi c images and descriptions, we mosque there and of course Muslims reported. According to The Washington expect to cover the Gainesville event, don’t want us to burn Korans,” Jones Post on September 10, Secretary of State in all media, placing the actions of this said. Hilary Clinton also contacted Jones group of about 50 people in a clear and However, in an interview with to ask him not to go forward with the balanced context.” Christiane Amanpour for the ABC burning. Kelly McBride, a media ethicist at the program “This Week,” Rauf denied that Amid the warnings and calls for Jones Poynter Institute, wrote in a September 9 any deal was made, or that he had even to halt his plan, the AP and Fox News blog post that “Whether it’s the coverage spoken with Jones or Musri. He said that both announced that they would not of the plans to build an Islamic center he and his partners in Park 51 were not air any footage of the planned Quran in Lower Manhattan or reporting on the going to “toy with our religion or any burnings if they took place. According to United States’ interrogation of potential other” and would not “barter. … We are TVNEWSER, a blog on MediaBistro.com, terrorists, misinformation is as common here to extend our hand to build peace CNN, NBC, ABC, and CBS all planned to as good information.” McBride urged and harmony.” cover the event. editors to use caution in their coverage On September 11, Jones appeared The Boston Globe reported on of Jones’ plan to burn a Quran and the on NBC’s “Today” show and announced September 9 that Michael Clemente, Park 51 project, in light of the potential that he and members of the church Senior Vice President at Fox News, said for international backlash. in a phone interview that the network’s Jim Osteen, executive editor of The Quran Burning, continued on page 31

30 Quran Burning, continued from page 30 would not burn copies of the Quran. “We On September 9, the Westboro Baptist protests funerals and preaches that will defi nitely not burn the Quran, no. Church of Topeka, Kan. announced America is “damned to hell,” according to Not today, not ever,” Jones said. Jones plans to burn a copy of the Quran along its website. Westboro’s funeral protests explained that his church would not go with an American fl ag on Sept. 11, 2010, were the subject of a case before the U.S. forward with its planned Quran burning, according to the Kansas City Star. News Supreme Court, Snyder v. Phelps, in the even given the announcement that the website The Daily Beast reported on fall of 2010. plans for Park 51 would not change. He September 11 that the Church carried On September 14, CNN reported that said that he had received over 100 death out the plan. The burning was covered in the period surrounding Sept. 11, 2010 threats, and that he believed that “God by local television stations, but was “at least three copies of the Quran were is telling us to stop,” but that he also not rebroadcast by any national news burned,” in the United States, and that hoped he would have a chance to speak organizations, according to The Daily at a “counterdemonstration in London, to Rauf. He stated that his goal had been Beast. The Westboro Baptist Church also anti-American protesters burned the “to expose that there is an element of burned a copy of the Quran in 2008, The Stars and Stripes and a copy of the U.S. Islam that is very dangerous and very Daily Beast reported, without igniting Constitution.” radical,” and that he felt his church had international controversy. – SARA CANNON “accomplished that mission.” The Westboro Baptist Church also SILHA CENTER STAFF

Mexican Press, continued from page 25 The statement, published in the against the corrupting power of criminal be a journalist in Mexico.” Mexico City daily La Jornada, said that organizations.” CPJ also claimed that In a 2008 meeting with a delegation numerous attacks against journalists federalization of the problem would send from CPJ, President Calderón said “the have “gone unpunished” and the cases an important message of international government agrees with the idea of remain “without deep investigations,” accountability. “The more Mexico allows federalizing crimes against freedom of according to EFE. “Threats, intimidation, the fl ow of information to be controlled expression,” and pledged to put forward kidnappings and attacks on communica- by drug cartels and dishonest local a proposal in the context of a broad tions media, moreover, have become offi cials, the more it erodes its status as a constitutional amendment to address a common practice, mainly among the reliable global partner,” the report said. the spiral of violence and its effect on security forces and serving politicians,” CPJ and Mexican press freedom civil rights more generally. In spite of the groups said, while “organized crime, advocates support reforms that would promises like Calderón’s and increasing especially, has shown no mercy.” The add crimes against free expression to international attention, including urgent statement was published on behalf of the the federal penal code, make federal calls for reform from both advocacy National Journalists Front for Freedom authorities responsible for investigating groups and the U.N., investigations and of Expression, whose members include and prosecuting attacks on the press, accountability has remained primarily the National Press Editors Union, the and establish accountability at senior local, CPJ reported. Independent Union of La Jornada Work- levels of the national government. Legislators themselves pose a central ers, the Notimex Workers Union, and In the meantime, CPJ reported obstacle to a legislative approach to the union that represents workers at November 9 that the Mexican federalization, CPJ reported, because Puebla’s El Sol newspaper. Contralinea government announced the launch of they consider the move politically and Zocalo magazines, the CIMAC news a program aimed at protecting at-risk imprudent. Gerardo Priego Tapia, a agency, the Manuel Buendia Foundation journalists. According to CPJ, the former leader of the Congressional and several attorneys also signed the Ministry of the Interior said it expects committee on press attacks, said that statement, EFE reported. to offer protective measures such as politically powerful state governors, Although reporters are often reluctant bodyguards, armored cars, or stipends especially in some of the states with to report on the cartels’ organized to allow journalists to relocate to other the highest levels of anti-press violence, crime operations out of fear of drawing parts of the country, and that although oppose federalization as an infringement federal scrutiny, CPJ said that federal the program will initially use federal on states’ rights and their own authority. investigators and prosecutors are better police, it will eventually involve state Priego also said corrupt offi cials who prepared and have better resources law enforcement. “According to the cooperate with organized crime also fear than local authorities to take on threats CPJ, Mexican press groups expressed federalization “because those ties may be to press freedom. A federal solution “considerable skepticism” about the exposed.” “offer[s] hope for a more effective plan, complaining that it “is designed and – PATRICK FILE response,” the report said. “The higher run entirely by government offi cials who SILHA FELLOW AND BULLETIN EDITOR level of scrutiny serves as a check have no understanding of what it’s like to

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 Minneapolis, MN 206 Church Street SE Permit No. 155 Minneapolis, MN 55455 (612) 625-3421

Silha Spring Ethics Forum: April 4, 2011, 7:00 p.m.

Featuring Mark Feldstein, author of “Poisoning the Press: Richard Nixon, Jack Anderson, and the Rise of Washington’s Scandal Culture”

Feldstein is a journalism professor at the University of Maryland, was an investigative reporter for CNN, ABC, and other news outlets for two decades, earning dozens of journalism awards, including an Edward R. Murrow Acheivement Award, and two George Foster Peabody Awards. He received a bachelor’s degree from Harvard and a doctorate from the University of North Carolina.

Douglas Brinkley, Professor of History at Rice University and author of “The Wilderness Warrior,” called “Poisoning the Press” a “crucially important, brilliantly illuminating work of intense scholarship.” Cokie Roberts, news analyst at ABC and NPR, called it a “fast paced tour-de-force” and “riveting and often eye- popping.”

More details to be announced at www.silha.umn.edu/events. Please join us on April 4!