A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | WINTER/SPRING 2019 Media Coalition Wins Legal Victory to Access Body Camera Video in Trial of Former Minneapolis Police Offi cer n April 9, 2019, Hennepin County, Minn. Fourth “critical incident,” such as “the use of deadly force by or against Judicial District Court Judge Kathryn Quaintance a Minneapolis police offi cer.” It was later reported by CNN on reversed an earlier ruling in which she had limited March 26, 2018 that the offi cers had turned their BWCs on and public and media access to key evidence in the trial off several times, as well as muting the cameras. Responding of former Minneapolis Police Offi cer Mohamed Offi cers Scott Aikins’ and Thomas Fahey’s BWCs recorded ONoor, who was found guilty on April 30 of third degree murder part of the aftermath of the shooting. Additionally, the AP and second degree manslaughter after shooting and killing reported there was no dash camera footage of the shooting or its 40 year old personal health coach Justine Damond in 2017. aftermath. Minnesota v. Noor, No. 27 CR 18 6859 (2019). The shooting of On July 26, 2017, The New York Times reported that the MPD Damond, an Australian American woman whose maiden name had changed its BWC policy. Whereas it previously included only was Ruszczyk and was soon to be married to her fi ancé, Don a limited list of situations in which BWCs must be activated, Damond, garnered international attention, prompting media and the policy was amended to include a list of specifi c situations transparency advocates to push for greater access to the trial, in which the cameras must be turned on, such as immediately as well as to photographs and police body worn camera (BWC) after the offi cers start responding to a 911 call or when a footage connected to the case. situation “becomes adversarial.” The policy change also codifi ed The incident began shortly after 11:30 p.m. on July 15, 2017 disciplinary measures for not activating BWCs, which could when Noor and fellow offi cer Matthew Harrity responded to include termination, according to the Times . a 911 call by Damond, who was reporting a possible assault On Sept. 11, 2017, the Minnesota Bureau of Criminal in an alley in Minneapolis’ Fulton neighborhood, as reported Apprehension (BCA) announced that it had completed its by CNN and the Minneapolis Star Tribune the following day. investigation into the shooting, according to WCCO TV, the Twin Within minutes, Noor and Harrity arrived in a police car outside Cities’ CBS affi liate, the following day. Damond’s home, according to Minnesota Public Radio (MPR) On March 20, 2018, Hennepin County, Minn. Attorney Mike News on July 16, 2017. The Star Tribune reported that witnesses Freeman fi led a complaint against Noor in the Fourth Judicial said that Damond had walked towards the vehicle in her District Court. The original complaint included one count of pajamas, approaching the driver’s side door. third degree murder, a felony that carried a maximum sentence In an interview with investigators, who later corroborated of 25 years in prison and a minimum sentence of three years. The the details of the media reports, Harrity said he was startled complaint argued that Noor “cause[d] the death of [Damond] by by a “loud sound,” which, allegedly, was Damond slapping or perpetrating an act eminently dangerous to others and evincing thumping the back of the police SUV, though prosecutors refuted a depraved mind, without regard for human life, while using a this allegation during the ensuing jury trial, which began on April fi rearm.” MPR News reported on March 20, 2018 that it appeared 1, 2019. Moments later, Noor, who was in the passenger seat, to be the fi rst time a Minneapolis offi cer had been charged with allegedly pulled his gun and shot across Harrity, who was in the murder in a fatal shooting while on duty, citing the acquittal driver’s seat, through the driver’s side window, hitting Damond in of St. Anthony offi cer Jeronimo Yanez, who was charged with the abdomen. Damond, who was not carrying a weapon, died at manslaughter for shooting and killing Philando Castile during a the scene. Falcon Heights, Minn. traffi c stop in 2017. In the ensuing months, several media outlets reported Count II was second degree manslaughter, which carried that details remained largely unclear, with investigators and a maximum sentence of 10 years in prison and/or a $20,000 prosecutors relying almost solely on interviews to determine fi ne. The complaint contended that Noor “caused the death of what transpired. The Associated Press (AP) reported on Sept. [Damond] by his culpable negligence,” meaning he “created an 18, 2017 that although Noor and Harrity had eventually turned on unreasonable risk and consciously took a chance of causing their BWCs after the shooting, they had missed the most pivotal death or great bodily harm to [Damond] while using a fi rearm.” moments, despite the Minneapolis Police Department’s (MPD) The complaint also included an arrest warrant to be served BWC policy requiring the offi cers to activate the cameras in a Noor, continued on page 3 Inside This Issue Winter/Spring 2019: Volume 24, No. 2
1 Media Coalition Wins Legal Victory to Access Body Camera 27 Actions by Media Outlets and Companies Raise Ethical Video in Trial of Former Minneapolis Police Offi cer Questions
Cover Story Ethics
8 WikiLeaks Founder Julian Assange Arrested on Computer 32 Google Faces Renewed Concerns Regarding Data Privacy in Hacking Charges, Fueling Concerns Over Press Freedom the U.S. and Abroad First Amendment Data Privacy
10 Department of Justice Continues Mulling Policies 35 Facebook Faces Continued Scrutiny Over Data Privacy and Regarding Jailing, Subpoenaing, and Searching U.S. Cambridge Analytica Scandal Journalists Data Privacy First Amendment 37 The Reporters Committee for Freedom of the Press 13 Justice Thomas Calls for Supreme Court to Reconsider the Prevails in a FOIA Lawsuit Regarding FBI Impersonation of
Actual Malice Standard Documentary Filmmakers Supreme Court News FOIA
14 Federal Judge Dismisses Defamation Lawsuit Against 39 Journalists and Other Travelers Targeted at U.S. Borders, BuzzFeed News ; News Organizations Face Signifi cant Creating More Confusion and Lawsuits Defamation Lawsuits and Settlements Searches and Seizures Defamation 42 Federal Judge Strikes Down Iowa’s “Ag-Gag” Law; Coalition 20 Journalists in the U.S. and Abroad Continue to Face of Animal Rights Groups Challenges Nation’s Oldest “Ag- Violence and Imprisonment; U.S. Court Holds Syria Liable Gag” Law for Role in Journalist’s 2012 Death Ag-Gag Laws Reporters in Danger 45 2019 Spring Forum Tackles Balancing Freedom of the Press 24 Fourth Circuit and Western District of Wisconsin Rule and the Right to a Fair Trial Public Offi cials Violated the First Amendment By Blocking Silha Center Events Social Media Users First Amendment
SILHA C ENTER S TAFF
JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW
SCOTT M EMMEL SILHA BULLETIN E DITOR
KIRSTEN N ORDSTROM SILHA R ESEARCH A SSISTANT
SARAH W ILEY SILHA R ESEARCH A SSISTANT
ELAINE H ARGROVE SILHA C ENTER S TAFF
2 Noor, continued from page 1 handled press coverage differently in the trial of Jake Patterson, against Noor. The full complaint and warrant are available online who was accused of kidnapping teenager Jayme Closs and killing at: https://www.mprnews.org/story/2018/03/20/noor booked jail her parents in the winter of 2018/2019. The court “went as far as ruszczyk#docs. allowing news organizations to live stream audio and video from On Nov. 30, 2018, the Star Tribune reported that prosecutors the courtroom,” according to MPR News. intended to add a second degree murder count in addition to In response to Quaintance’s order, on March 29, Ballard the existing charges, reasoning that Noor shot Damond from Spahr LLP attorney Leita Walker wrote a letter to Bernhardson close range and with “tragic accuracy” past Harrity and through on behalf of a coalition of media organizations that included a “narrow space of the open driver’s window.” On December 11, the Star Tribune Media Company, LLC, CBS Broadcasting Inc., the prosecution, after a series of motions and other proceedings, MPR, TEGNA, Inc., and Fox/UTV Holdings, LLC (collectively formally fi led an amended complaint, which included the second “Coalition”). The letter fi rst stated the Coalition was “extremely degree murder charge. The amended complaint contended that concerned about what it anticipates to be woefully inadequate Noor “caused the death of [Damond] with intent to effect the press and public access to the Noor trial.” death of that person or another, with a fi rearm.” The felony charge carried a “I appreciate the concerns that are being COVER STORY maximum sentence of 40 years in prison. raised [in cases like this], but it seems to On Sept. 19, 2018, MPR News reported me that [the courts] are overlooking the that Hennepin County prosecutors wanted the court to prohibit the disclosure of some evidence in the case, fact that the public and the press have including grand jury testimony, performance review documents, a First Amendment right of access to a and BWC video of the aftermath of the shooting, reasoning criminal proceeding like this one.” that it was confi dential data under the Minnesota Government Data Practices Act (MGDPA). Minn. Stat. § 13.01 et seq. The prosecutor’s motion is available online at http://mncourts. — Jane Kirtley, gov/mncourtsgov/media/High Profi le Cases/27 CR 18 6859/ Silha Center Director and Silha Professor of Memo091918.pdf. Media Ethics and Law On March 29, 2019, the Star Tribune reported that during a pretrial hearing on the same day, Judge Quaintance had announced several restrictions on public and media access to Second, the letter contended that the court “did not the forthcoming jury trial. Citing the need to preserve “order and consult . . . with the press corps that will be covering the trial,” decorum,” Quaintance and Fourth Judicial District Chief Judge which would have allowed a “better understanding about the sort Ivy Bernhardson ordered that the trial remain in a courtroom of access that the Constitution requires and that journalists need containing about two dozen seats, about half the size of other to accurately and thoroughly report on trial proceedings.” Third, courtrooms in the same building, according to the Star Tribune. Walker asserted that because the “high profi le criminal trial” was Quaintance also banned electronic devices, including cellphones, “plainly of the utmost public interest and concern,” the small laptops, and recording devices, from the courtroom, as well as courtroom was not large enough to accommodate the necessary from an overfl ow room that provided additional seating. members of the public and press. Additionally, Quaintance announced that the public and Fourth, the letter noted that the First Amendment and reporters would not be provided access to the BWC video common law guarantee press and public access to criminal recorded after the shooting of Damond, nor to additional proceedings, citing Globe Newspaper Co. v. Superior Court, photos from the medical examiner’s offi ce. Quaintance ruled 457 U.S. 596, 606 607 (1982) and Richmond Newspapers, Inc. that only jurors would be able to see the footage, citing privacy v. Virginia , 448 U.S. 555, 580 (1980), in which the U.S. Supreme concerns over the public seeing the video that shows Damond Court held that “the right to attend criminal trials is implicit in “extremely compromising situations,” according to the in the guarantees of the First Amendment.” Walker added that Star Tribune. The Order on Conduct at Trial, which was fi led “[e]ven if the courtroom doors remain technically open,” access on March 27 and signed by Quaintance and Bernhardson, is to the courtroom must be “meaningful.” available online at: http://mncourts.gov/mncourtsgov/media/High Finally, the letter raised particular concern about paragraph Profi le Cases/27 CR 18 6859/OrderonConductatTrial032719.pdf. 24 of the original and Amended Order on Conduct at Trial, which In a March 29 interview with the Star Tribune, Silha was issued by Quaintance and Bernhardson on March 28. The Center Director and Silha Professor of Media Ethics and Law paragraph in question stated, “The attorneys in this case have Jane Kirtley contended that the restrictions would pose First ethical obligations with respect to their public statements about Amendment problems. “There’s been a deliberate decision made this case. The witnesses in this case have been sequestered. The here to limit access by the press and public,” Kirtley said. “I jurors will be instructed not to speak with anyone about this appreciate the concerns that are being raised here, but it seems case. These limitations shall be respected by members of the to me that [the courts] are overlooking the fact that the public public and the media in attendance.” The full amended order is and the press have a First Amendment right of access to a available online at: http://mncourts.gov/mncourtsgov/media/High criminal proceeding like this one.” Profi le Cases/27 CR 18 6859/OrderonConductatTrial032719.pdf. In a March 29 interview with MPR News, University Walker argued that the statement was “vague and ambiguous” of Minnesota law professor Heidi Kitrosser agreed that and therefore “threaten[ed] to chill the exercise of the Coalition’s Quaintance’s restrictions raised First Amendment problems. She free speech rights under the First Amendment.” Walker contended that although the court offered an overfl ow room for contended that although the Court “may be able to sanction” additional members of the media and the public, “the restrictions trial participants who speak to the media about the case, the sound extreme enough that the [news organizations] would have Court “may not sanction the media” (emphasis in original). She a good case that this raises First Amendment problems.” MPR cited Nebraska Press Association v. Stuart, in which the U.S. News noted that the Barron County District Court in Wisconsin Noor, continued on page 4 3 Noor, continued from page 3 On April 3, the Coalition fi led a “Motion informed electorate.” The Coalition Of Media Coalition Objecting To Orders argued that in this case, “[u]nless evidence Supreme Court held that restricting the That Interfere With First Amendment presented to the jury can be viewed by media’s freedom to communicate with Newsgathering And Reporting Activities.” the press and public sitting in the gallery trial participants and to report what they The motion specifi cally objected to: while that evidence is being discussed say would constitute a prior restraint, • “(1) the anticipated de facto by trial participants, then spectators “the most serious and least tolerable closure of the courtroom when will not be able to fully understand the infringement on First Amendment rights.” certain evidence — including, but evidence that has been presented to the 427 U.S. 539, 559 (1976). Walker also not limited to, video footage and jury for its consideration or how the jury cited Near v. Minnesota, in which the may be reacting Court held that the “chief purpose of “[The media are] simply the conduit to it” (emphasis in the guaranty [of freedom of the press original). is] to prevent previous restraints upon of information to the general public. Furthermore, publication.” 283 U.S. 697, 713 (1931). The court should be focused on the the memorandum Walker’s full letter is available online maximum degree of public information argued that at: http://stmedia.startribune.com/ the four part documents/Leita+Walker+letter.pdf. consistent with a fair trial so that the test articulated In a Second Amended Order on public ends up having the highest level of in Richmond Conduct at Trial fi led on April 1, Newspapers, Quaintance and Bernhardson eased the confi dence that the correct decision was Press Enterprise restrictions on the public and press. First, reached.” Co. v. Superior although they did not move the trial to a Court, 464 U.S. 501, larger courtroom, they did provide seven — Mark Anfi nson, 508 (1984), and additional seats for the press and also Minnesota Newspaper Association attorney Press Enterprise reaffi rmed access to an overfl ow room Co. v. Superior of 78 seats, which would now include Court, 478 U.S. 1, video in addition to audio streaming. photographs — are permitted to 13–14 (1986), which would allow a judge According to the Minnesota Judicial be viewed only by the jury and to restrict access to the trial and trial Branch’s website, 15 seats were reserved other trial participants and not by evidence, was not met in this case. The for members of the media, six for local the press and public [and] four part test requires: media, including the Star Tribune, MPR • (2) any gag order barring the • The party seeking to restrict News, KSTP TV, KARE TV, and nine for courtroom sketch artist from access must demonstrate a national or international outlets, including depicting trial participants substantial probability of prejudice The New York Times, AP, ABC Australia, [including jurors] or otherwise to a compelling interest. and Channel 9 Australia. barring members of the press • The party seeking to restrict Second, Quaintance struck the from reporting on what transpires access must demonstrate sentence from her original and fi rst during the trial and/or on that there is no alternative to amended order that would have required statements trial participants make adequately protect the threatened the media to respect the limitations outside the courtroom.” interest. placed on those involved in the case, The motion and notice of motion • Any restriction on access must be according to the Star Tribune and MPR are available online at: http:// narrowly tailored. News. The full Second Amended Order is mncourts.gov/mncourtsgov/media/ • Any restriction imposed on access available online at: http://mncourts.gov/ High Profi le Cases/27 CR 18 6859/ must be effective in protecting the mncourtsgov/media/High Profi le Cases/27 NoticeofMotionandMotion040219.pdf. threatened interest for which the CR 18 6859/SecondAmendedOrder In a memorandum in support of the limitation is imposed. onTrialConduct040119.pdf. motion, the Coalition reemphasized Additionally, a court may not restrict However, Quaintance did not initially several of the claims made by Walker public access to a trial “without prior rule on whether she would allow the in her March 29 letter, including that notice and without making fi ndings of disclosure of the BWC video, prompting the First Amendment provides an fact, on the record, demonstrating that the Star Tribune Editorial Board on affi rmative, enforceable right of public these standards have been met.” April 2 to emphasize the importance access to criminal trials, citing Richmond The memorandum contended that of “both the local and international Newspapers and Craig v. Harney, 331 Quaintance had not shown that the BWC communities com[ing] away convinced U.S. 367, 374 (1947), in which the Court video and photographs would create that due process and fair justice have held that “[a] trial is a public event. What a substantial probability of harm to a been provided to both the victim and transpires in the court room is public compelling interest, but instead had the defendant in this sensitive case.” property.” only expressed concern about privacy The Editorial Board cited Minnesota The memorandum provided several interests and the infl ammatory nature of Newspaper Association (MNA) attorney reasons why there is an affi rmative the footage and images. The Coalition Mark Anfi nson, who contended that right of public access to criminal trials, cited the trial of James Holmes for the media “are simply the conduit of including that such access allows the the murder of 12 people at an Aurora, information to the general public. The press and public to ensure judicial Colo. movie theater in which the court court should be focused on the maximum proceedings are conducted fairly, as well rejected a request to prevent the gallery degree of public information consistent as “provid[ing] an outlet for community from viewing autopsy and crime scene with a fair trial so that the public ends up hostility, educat[ing] the public about photographs and video footage because having the highest level of confi dence that the judicial process, and foster[ing] an “[t]he wishes of a deceased victim’s the correct decision was reached.” relatives for privacy, while completely 4 understandable, are not suffi cient to objection is available online at: http:// to draw jurors.” In a separate tweet, warrant partial closure of the trial as mncourts.gov/mncourtsgov/media/ Nelson quoted Quaintance, who said, graphic images of the deceased victims High Profi le Cases/27 CR 18 6859/ “It’s clear that I need to follow legal are displayed in the courtroom.” The DefenseObjectiontoLimitation040519.pdf. precedent.. . . [T]here is no role of victim memorandum added that Minnesota law Also on April 5, 2019, the Star Tribune privacy in the First Amendment.” She does not recognize a posthumous right to reported that during a pretrial hearing, added, “The court, like the jury, must privacy. Quaintance “remained skeptical” that follow the law even if I disagree with it.” Regarding the second part of the media and public should have access FOX 9 reporter Paul Blume wrote in a the test, the Coalition argued that to the BWC footage and photographs. tweet, “Judge issued ruling at #NoorTrial alternative remedies did exist, including Quaintance instead argued that only Every piece of evidence shown in court, the “standard practice to instruct the jurors should be allowed to see the will be shown to everyone. Judge had jury members not to listen to or read BWC video, reasoning that the video wanted to limit access to most sensitive news reports on the case they are showed offi cer behavior that would be evidence (body cam/autopsy pix). Judge considering.” Regarding the third part, key to the arguments for attorneys on says she disagrees with law & would the memorandum argued that a “blanket both sides, and also showed Damond rather protect victim dignity. But had no ban on public viewing of the footage and “taking her fi nal breaths with her clothing choice.” photographs while they are presented to partly torn off” to administer emergency The following day, Quaintance issued the jury is not narrowly tailored.” Lastly, life saving techniques, according to a written order in connection with her the memorandum argued that restricting the Star Tribune. Quaintance added, “I oral ruling. The order began by stating access to evidence would have “signifi cant don’t know who would want to watch it that in Quaintance’s “almost two decades negative impacts on the ability of the unless it’s somebody who wants to watch as judge on this court, no criminal case press and public to observe and report on snuff fi lms.. . . It’s shocking. And frankly, has been the subject of greater pretrial how the video and photographic evidence the adamance of wanting access to it publicity or received greater media is presented, how the jury reacts to it, and is shocking.. . . I’m not sure the public interest,” citing 20 notices fi led by media how the evidence might impact the jury’s even has an interest in that video — a outlets seeking to record various pretrial verdict.” legitimate interest.” During the hearing, hearings and the trial, as well as to have The memorandum then made similar prosecutors acknowledged that they sketch artists present. Second, the order arguments regarding limitations imposed would use the BWC video as evidence in stated that given the level of media on the sketch artists, including that it the trial, according to the AP. interest and coverage, the court aimed “to would constitute a prior restraint against Additionally, MPR News reported on manage the pretrial and trial proceedings the press and could not survive strict April 5 that, during the hearing, Walker so as to secure fair trial before an scrutiny, meaning the restriction of had cited at least one local newsroom impartial jury and to protect jurors speech would have to be “necessary to fi ling public records requests for the BWC from unwanted publicity (and possible serve a compelling state interest” and be footage under the MGDPA. She argued harassment) that could compromise their “narrowly drawn to achieve that end.” that once the footage was admitted as impartiality.” The memorandum further contended that evidence in the trial, it would become Finally, the order stated that despite limiting the sketch artist, and therefore public data under the law, citing Minn. concerns regarding privacy interests the press’ ability to publish the sketches, Stat. § 13.82, subd. 7, which states “[a]ny of Damond’s family and the possible was unconstitutional because it would investigative data presented as evidence infl uence on the jurors, the court violate Supreme Court precedent fi nding in court shall be public.” Quaintance “must follow legal precedent and allow that the press has a First Amendment responded that such requests seemed to publication to the gallery of any portions right to publish lawfully obtained, truthful be an “end run around [her] authority [in] of the BWCs the Court receives into information of public concern, citing this trial.” evidence during the trial despite its several cases, including Smith v. Daily Regarding limiting the ability of highly sensitive nature.” The order added Mail Publishing Co., 443 U.S. 97, 102 sketch artists to draw jurors, which were that “the law requires that the media (1979) and Florida Star v. B.J.F., 491 U.S. selected on April 8, Quaintance reasoned courtroom sketch artist be allowed to 524, 541 (1989). The full memorandum that the jurors were “extremely concerned depict jurors.” However, the order noted is available online at: http://mncourts. about their anonymity,” according to the that it “reserves all substantive rulings on gov/mncourtsgov/media/High Profi le Star Tribune on April 5. However, Walker the admissibility of any such evidence to Cases/27 CR 18 6859/Memorandumin pushed back that “[w]ho they are matters.. the trial.” SupportofMotion040219.pdf. . . The public cares very much about how In a memorandum opinion attached In a letter sent to Quaintance the this case comes out, and that’s why it to the order, Quaintance fi rst provided following day, Walker noted that the AP matters.” In an April 5 email to Kirtley and the background of the case, including and Hubbard Broadcasting had joined Silha Bulletin editor Scott Memmel, Silha the “graphic and disturbing nature of the existing Coalition. The Minnesota Research Assistant Sarah Wiley, who was the videos depicting Noor and Harrity Coalition on Government Information in attendance during the hearing, noted and other responders trying to save (MNCOGI) also joined. (Silha Director that Quaintance also questioned whether [Damond’s] life.” The memorandum Jane Kirtley serves on MNCOGI’s board.) the media was “truly a proxy for the reiterated Quaintance’s concerns about On April 5, Noor’s attorneys fi led an public.” disclosing the BWC footage showing objection to the court’s limitation on However, in an April 9 tweet, MPR “the last moments of human life and the access to a public trial, as well as access Reporter Cody Nelson reported that struggles of police and medical personnel to information in the trial, including Quaintance had announced during a to save that life,” reasoning that “most lay the BWC footage. The defense cited a hearing that she would “make public people are not well equipped to take in “history of unfairness to Mr. Noor from all body cam footage shown at trial” such visceral and shocking material” and restricted access to information.” The and would also “allow sketch artists Noor, continued on page 6 5 Noor, continued from page 5 press sketch artist from sketching or video, so would the public. As the that “any attempts by the press to explain jurors, fi nding that such an order would Bulletin went to press, Quaintance it to the public risk misrepresentation.” constitute a prior restraint in violation of had not announced any further rulings The order added that Quaintance felt the First Amendment. The memorandum regarding evidence in the trial. Damond and her family “have privacy noted the three part test articulated In the late afternoon of April 9, interests in these last moments of her in Nebraska Press Association, which Quaintance also issued a Standing life.” provides that a trial court, when deciding Order on Requests for Trial Exhibits The memorandum then turned to the whether to enter an order restraining During Trial, in which she ruled that relevant case law, which Quaintance speech, must consider: “(1) the gravity evidentiary exhibits during the trial argued did not “adequately consider of the harm posed by media coverage; would not be released “until after the [Damond’s] interests and privacy (2) Whether other measures short of prior trial” in order to “ensure fair trial and concerns in the context of the First restraint would adequately have protected the fair administration of justice” and and Sixth Amendment rights at stake the defendant’s right to fair trial . . . and the “integrity of the exhibits.” The order in the criminal trials in which these (3) how effectively restraining order continued, “[T]he Court has determined issues typically arise.” Nevertheless, the would operate to prevent the threatened that no exhibits entered into evidence in memorandum concluded that the press danger.” Quaintance concluded that her this case will be released until after the and public “have a right to view the proposed order “[did] not pass muster conclusion of the trial.” evidence presented during trial to the under these criteria.” An attached document regarding jury,” citing several Supreme Court cases, The full order and memorandum “Bench Procedure/Policy” titled “Public including Richmond Newspapers. The are available online at: http:// Requests for Viewing and Obtaining memorandum stated that the Coalition mncourts.gov/mncourtsgov/media/ Copies of Court Filed Exhibits,” which had “argue[d] persuasively that it is High Profi le Cases/27 CR 18 6859/ was issued by the Fourth Judicial District important that evidence presented to the OrderandMemorandumOpinionReBWC on March 1, 2018, outlined several jury be viewed by the press and public andSketchArtist041019.pdf. guidelines that “should be followed sitting in the courtroom at the time that In a statement on April 9, Walker upon receipt of request to view or obtain evidence is being discussed by trial praised the ruling. “[T]he media coalition copies of exhibits fi led in the Criminal participants[.]” takes no joy in anything related to this Division.” One such guideline was that Furthermore, the memorandum trial,” she said. “But we’re gratifi ed that it exhibits should be “made available for noted that previous attempts by courts will remain open to the public so the press viewing within reasonable timeframe to “place restrictions on the manner in can accurately and thoroughly report on after they have been deposited with court which the press and public have complete the proceedings, and the public can judge administration at the conclusion of a contemporaneous access to evidence in for itself the ultimate verdict and how the trial.” criminal trials where the evidence may judicial system works.” The full order and attached be . . . injurious to the privacy rights and Star Tribune managing editor Suki document are available online at: http:// interests of victims” generally have not Dardarian also praised the ruling in an mncourts.gov/mncourtsgov/media/ survived constitutional scrutiny, citing April 9 story, calling it an “unexpected High Profi le Cases/27 CR 18 6859/ Globe Newspaper Co. v. Superior Court, victory for the First Amendment” given OrderonRequestsforTrial Exhibits040919. 457 U.S. 596, 603, 606 (1982), among other Quaintance’s earlier skepticism of the pdf. As the Bulletin went to press, the cases. media coalition’s arguments. “I appreciate Coalition had not responded to the order. Second, the memorandum conceded that the court recognized the public and Following the fi ling of the order, that the court did not meet the criteria of media’s First Amendment rights of access several reporters at the trial indicated the four part test articulated in Richmond in a criminal trial, particularly one of such that defense attorney Thomas Plunkett Newspapers, including because “a cause critical importance to the residents of this was considering a motion to have the of action for invasion of privacy does not city and this state. It’s diffi cult for a trial audio removed from some of the BWC generally survive an individual’s death.” to be fair if it’s not open to the public,” video. The following day, the defense fi led The memorandum also acknowledged Dardarian said. “This also showed that a motion in limine, meaning a motion that other courts’ efforts to limit press the media in Minnesota take seriously discussed outside the presence of the and public access to graphic video their rights as journalists. However I jury regarding the exclusion of certain footage based on privacy concerns were am disappointed that a right so clearly testimony or evidence, in which the not suffi cient, including in the case of articulated in the law required our legal defense moved for the court to “preclude James Holmes. The court found that intervention.” the State from introducing evidence of the second, third, and fourth branches In an interview with the Star Tribune body worn camera video related to the of the test also were not met because on April 9, MPR executive director of lifesaving efforts performed on [Damond] there were reasonable alternatives, such news and programming Nancy Cassutt and of law enforcement who arrived as instructing jurors not to watch local said she was “pleased with the decision.” on the scene during the course of the media reports; the blanket ban on public She added, “The judge will have to trust investigation.” The defense reasoned viewing of the BWC footage was not the media to do its job. I’m confi dent the that the “extensive efforts of [Harrity narrowly tailored; and such a ban would MPR newsroom will do the right thing for and Noor] to resuscitate [Damond], and “negatively impact the press’ ability to our audiences.” the fi rst responders continued lifesaving observe and report on the video evidence Walker noted that Quaintance had not efforts, [was] not relevant to whether being presented, how the jury reacts to it, formally ruled on whether other graphic Offi cer Noor committed the offenses and how the evidence might impact the evidence would be admissible in court, charged and serve no evidentiary purpose jury’s verdict.” according to MPR News on April 9. in establishing any element of the Finally, the memorandum stated Nevertheless, Walker noted that the ruling offenses.” that the court would not prohibit the meant that if the jury saw the photographs 6 The motion added that the video available online at: https://www.kare11. County District Court Public Affairs of the lifesaving efforts instead was com/article/news/local/noor trial jury Communications Specialist and the court’s “prejudicial and risk[ed] infl aming sees body camera video of ruszczyk criminal administrative staff to “allow the passion of the jury.” Finally, the shooting/89 8a86bbe6 d884 4b6a a0a9 media representatives access to and the motion called for the withholding of 33c7e977fe6c. opportunity to view the trial exhibits BWC footage of “law enforcement who On April 30, multiple reporters present in this case.” However, Quaintance did arrived on the scene during the course in the courtroom reported that Noor was not rule on the prosecutors’ request of the investigation absent some offer found guilty on the third degree murder to prohibit “third party copying of the of proof as to relevance,” reasoning that and second degree manslaughter charges, exhibits” and indicated she would do so much of the video and audio contained and faced a minimum of three years in in a later ruling. The order provided that “hearsay that is prejudicial.” The full prison and a maximum of 25 years. The “[i]f a member of the media or the public motion is available online at: http:// jury acquitted Noor on the second degree who has requested copy access to the mncourts.gov/mncourtsgov/media/ murder charge. MPR News wrote in an exhibits in this case wishes to respond to High Profi le Cases/27 CR 18 6859/ April 30 tweet that it was “believed to be the State’s objection,” the party would be DefendantsFifthMotioninLimine041019. the fi rst time a police offi cer in Minnesota able to intervene by May 16, 2019, “after pdf. was found guilty of murder from shooting which the Court will take the matter KARE TV reporter Lou Raguse tweeted someone while on duty.” Sentencing was under advisement and issue an order that prosecutors argued in court that the set for June 7, 2019. as promptly as possible.” The full order motion should be dismissed, reasoning MPR News reported on May 10 that is available online at: http://mncourts. that the defense had “had these videos for several media outlets had requested gov/mncourtsgov/media/High Profi le a full year and did not say anything.” He access to interviews, photos, and BWC Cases/27 CR 18 6859/1stOrderReCopy added that Quaintance “was irritated with video shown during the trial. However, AccesstoExhibits051319.pdf the timing.” prosecutors fi led a motion to block the As the Bulletin went to press, On April 11, several media outlets release of such evidence, contending that Quaintance had not ruled on the issue of reported that BWC footage from two sentencing had not taken place and the third party copying of the trial evidence. responding offi cers was shown to the jury BWC video could be “misused” by the on the same day, including their efforts press and public. SCOTT M EMMEL to save Damond’s life. A full discussion On May 13, 2019, Quaintance issued SILHA BULLETIN E DITOR of what was depicted in the footage is a written order requiring the Hennepin
Save the date! Monday, October 28, 2019 7:30 pm at Cowles Auditorium The 34th Annual Silha Lecture
Featuring Kelli L. Sager Partner, Davis Wright Tremaine (Los Angeles)
Sager represents media/entertainment companies and journalists, including broadcasters, fi lmmakers, newspapers, Web publishers, and authors. She is best known for her representation of the media in the access issues that arose during the O.J. Simpson trial. Among other accolades, Chambers USA has ranked her for 10 consecutive years in its top tier of media attorneys in the country, and she has been one of Lawdragon’s 500 Leading Lawyers in America since 2005. She regularly is included in the Los Angeles Daily Journal’s list of Top 100 Lawyers, Top Intellectual Property Litigators, and Top Women Litigators.
In 2019, Sager received the “Excellence in Advocacy” award from the Beverly Hills Bar Association, and was named Best Lawyers’ Los Angeles First Amendment and Media/Entertainment “Lawyer of the Year.” Sager has served in leadership roles in many bar associations and non profi ts, including chairing the ABA Forum on Communications Law and the IBA’s Media Committee. She has volunteered for the Ninth Circuit Court of Appeals for more than a decade, and is currently a member of the Courts and Community Committee.
More details coming soon!
7 WikiLeaks Founder Julian Assange Arrested on Computer Hacking Charges, Fueling Concerns Over Press Freedom n April 11, 2019, British extradition to Sweden, where he faced authorization and exceed[ed] authorized authorities arrested two sexual assault allegations. The access, to obtain information . . . relating Wikileaks founder Julian charges in Sweden were eventually to the national defense classifi ed up to Assange at the Ecuadorian dropped, though Assange was found the ‘Secret’ level, with reason to believe embassy in London where guilty in Westminster Magistrates’ Court that such information so obtained could Ohe had been seeking refuge since 2012. of breaching his 2012 bail conditions on be used to the injury of the United Following his arrest, U.S. prosecutors April 11, 2019. On May 1, 2019, several States and the advantage of any foreign unsealed charges against Assange media outlets reported that Assange was nation[.]” The full indictment is available for conspiracy sentenced to 50 weeks in prison on the online at: https://www.justice.gov/opa/ FIRST to “access a bail charges. press release/fi le/1153486/download. The seven page indictment against Washington Post AMENDMENT [government] In an April 12 computer without Assange was originally fi led on March op ed, Steering Committee Chair for authorization” 6, 2018 in the U.S. District Court for the Reuters Institute for the Study under the Computer Fraud and Abuse the Eastern District of Virginia and was of Journalism Alan Rushbridger, the Act. 18 U.S.C. § 1030. The charges allege kept secret until prosecutors mistakenly editor in chief of The Guardian during that Assange assisted then Army Pfc. mentioned charges in an unrelated the WikiLeaks revelations in 2010, Bradley Manning in cracking a password case’s court fi lings, according to a reviewed the indictment, writing that to gain access to classifi ed documents Nov. 15 Reuters article. The Guardian “the unsealed grand jury indictment that WikiLeaks would eventually publish reported in November 2018 that the boils down to two claims, neither in 2010. In 2013, Manning publicly error was likely to have been caused by of them new: one, that Assange announced she was a transgender prosecutors copying and pasting from conspired with Manning to try to get woman and changed her name to documents. However, no specifi cs were hold of more material, even after she Chelsea. then publicly known about the secret had given hundreds of thousands of WikiLeaks gained notoriety in 2010 charges. A lawsuit brought by The classifi ed documents; and two, that after publishing tens of thousands of Reporters Committee for Freedom of the Assange attempted — unsuccessfully, classifi ed U.S. military documents on Press (RCFP) to unseal the indictment it seems — to crack a government the Internet. The leak included classifi ed was pending at the time of Assange’s password.” video from a U.S. military helicopter as arrest when the U.S. released the Executive director of the First it shot and killed a Reuters photographer documents to the public. Amendment Legal Clinic at Arizona State in Baghdad in July 2007, as well as The indictment focuses on Assange’s University Gregg Leslie told HuffPost operating manuals for the Guantanamo alleged actions in helping Manning on April 11 that the document “seems Bay prison. (For more background on gain access to documents released by like a very weak indictment” and that WikiLeaks, see “WikiLeaks’ Document WikiLeaks. Prosecutors alleged that the government does not “make a good Dump Sparks Debate” in the summer Assange attempted to assist Manning case that [Assange] provided Manning 2010 issue of the Silha Bulletin.) in cracking a password to log on to the something he couldn’t do himself.” On Aug. 21, 2013, Manning was U. S. Department of Defense (DOD) Some observers attempted to sentenced to 35 years in prison for computers under a different username differentiate the traditional news media violating the Espionage Act, 10 U.S.C. that did not belong to Manning. The from Assange and WikiLeaks, arguing § 793. On Jan. 17, 2017, then President measure would have made it more that Assange’s actions crossed the line Barack Obama commuted Manning’s diffi cult for investigations to determine and that WikiLeaks was not a journalistic sentence to seven years. (For more the source of the leak. The indictment enterprise for the public good. In an background on Manning, see “President also contended that Assange “actively April 11 interview with the HuffPost, Obama Commutes Chelsea Manning’s encouraged” Manning to collect Silha Center Director and Silha Professor Sentence, Pardons Gen. James E. classifi ed documents, highlighting a chat of Media Ethics and Law Jane Kirtley Cartwright, Takes No Action on Edward exchange where Assange stated “curious said, “It’s very hard to argue that the Snowden” in the Winter/Spring 2017 eyes never run dry in my experience.” First Amendment protects you if you’re issue of the Silha Bulletin and “Manning Additionally, the indictment stated hacking into a government computer.” Sentenced to 35 Years in Prison for that Assange “knew that Manning was She added, “The issue of whether he’s a Leaks” in the Winter/Spring 2015 issue.) providing WikiLeaks with classifi ed journalist or not has become much less On April 11, British police arrested records containing national defense legally signifi cant.” Assange after Ecuador’s President information of the United States.” David A. Schulz, a First Amendment Lenin Moreno revoked political asylum It added, “Assange was knowingly lawyer who advised The Guardian and evicted Assange for “repeated receiving such classifi ed records from when it published documents leaked violations [of] international conventions Manning for the purpose of publicly by Edward Snowden told Vice News , and daily life protocols,” according to disclosing them on the WikiLeaks “If you break into someone’s home to The Washington Post on the same day. website.” get information, you don’t have legal Assange had been granted diplomatic The sole count of the indictment protection under the guise of sharing asylum in the Ecuadorian embassy alleged that Assange “knowingly the news.” (Schulz delivered the 29th in 2012 after losing an appeal against access[ed] a computer, without Annual Silha Lecture, titled “See No
8 Evil: Why We Need a New Approach to defense counsel for The New York Times lecture, see “2005 Silha Lecture Features Government Transparency” on Oct. 16, in New York Times v. United States, First Amendment Attorney Floyd 2014. For more on the lecture, see “29th 403 U.S. 713 (1971), which arose after Abrams” in the Fall 2005 issue of the Annual Silha Lecture Examines the Right the Times published excerpts from Silha Bulletin.) to Access Government Information the Pentagon Papers, highlighted how Kirtley also discussed how the in the Wake of National Security and investigative reporters often obtain government’s strategy against Assange Privacy Concerns” in the Fall 2014 issue classifi ed information through a process may leave the door open for future of the Silha Bulletin.) of encouraging sources and helping them charges against journalists. “The Justice David French, a senior writer at remain anonymous. If they are no longer Department moves very incrementally the National Review, wrote in an allowed to use such techniques, Goodale on the issue of whether journalists can April 12 op ed that Assange “[is] not asserted, “investigative reporting based be charged under the federal espionage a member of the media. He’s nothing on classifi ed information will be given a statute,” Kirtley told HuffPost. “It strikes like a responsible journalist. And he’s near death blow.” me that this indictment is another not a true publisher.” Washington In an April 12 op ed for The Hill, incremental step toward doing that.” Post columnist Kathleen Parker took Goodale highlighted the impact the On April 12, Buzzfeed News reported issue with how Assange vetted and charges could have on newsgathering that Jennifer Robinson, Assange’s published materials. “He is not, after all, in the digital age and the level of lawyer, told reporters that Assange a journalist, despite his claiming to be, instruction journalists could give their planned to fi ght extradition, saying that because he isn’t accountable to anyone. sources. “Can a journalist instruct his it would set a “dangerous precedent” for No fi lters, no standards,” Parker wrote in source in a manner which will permit journalists “having published truthful an April 12 op ed for The Post. the source to escape identifi cation? The information about the United States.” Legal scholars and journalists noted answer is, generally speaking, yes — but According to Eric Lewis, a senior partner the important distinction between active whether it applies to news gathering at Lewis Baach Kaufmann Middlemiss participation and passive reception in the Digital Age, using the computer, PLLC, Assange could argue that he of documents and the corresponding will be the question in this case,” should be protected from extradition protections granted by the First Goodale wrote. (Goodale was the 2013 because the prosecution is politically Amendment. In Bartnicki v. Vopper, Silha lecturer. For more information motivated. Lewis told The Washington 532 U.S. 514 (2001), the U.S. Supreme on the lecture titled “The Lessons Post that a resolution could take “years Court found that members of the press of the Pentagon Papers: Has Obama rather than months.” As the Bulletin could not be held liable for publishing Learned Them?,” see “Silha Lecturer went to press, hearings before a UK or broadcasting illegally obtained Links Pentagon Papers and Obama Magistrate Court regarding extradition information if they were not involved Administration’s Treatment of Linkers” remained ongoing. in its acquisition. “If you wake up in the in the Fall 2013 issue of the Silha On April 22, 2019, several media morning and there are some top secret Bulletin.) outlets reported that the U.S. Court of documents in your email, and you had In an April 11 statement released Appeals for the Fourth Circuit in a brief nothing to do with somebody taking online, executive director of the 3 0 decision had upheld a civil contempt it, then under that case there is a very Freedom of the Press Foundation Trevor order against Manning after she refused strong argument that you would not be Timm also called attention to necessary to answer questions before a federal responsible even if your source very newsgathering activities. “Requesting grand jury investigating WikiLeaks. well might be,” Stuart Karle, the general more documents from a source, using The court wrote, “Upon consideration counsel at North Base Media and also an encrypted chat messenger, or trying of the memorandum briefs fi led on an adjunct professor at the Columbia to keep a source’s identity anonymous appeal and the record of proceedings University School of Journalism, told are not crimes; they are vital to the in the district court, the court fi nds no HuffPost. journalistic process,” Timm wrote. error in the district court’s rulings and However, free press advocates Although many journalists and press affi rms its fi nding of civil contempt. The emphasized that the charges against freedom advocates were relieved that court also denies appellant’s motion for Assange should still worry journalists the indictment against Assange lacked a release on bail.” The two page order is everywhere. Rushbridger wrote, “The charge under the Espionage Act, several available online at: https://www.politico. laws protecting free speech should not legal experts still expressed concern. com/f/?id=0000016a 4509 d50f a96a depend on the likability, mental health “From the broadest perspective, I’m ed5b99cc0001. or personal hygiene of those in the relieved this is not an Espionage Politico and the Associated Press fi ring line.. . . [I]t may be that we have to Act prosecution,” First Amendment (AP) noted that prosecutors appeared to suspend our complicated feelings about lawyer Floyd Abrams told Vice News be seeking Manning’s testimony in order the man and consider the implications on April 11. “That said, it’s not nothing to bolster their case against Assange. for free expression.” Karle similarly for the government to indict an As the Bulletin went to press, Manning told HuffPost, “If the government is not entity that — whatever one thinks of remained in jail in Alexandria, Va. rigorous about drawing really clear lines WikiLeaks — plays a press like role.” that do not implicate standard reporting (Abrams delivered the 20th Annual Silha SARAH W ILEY activities, then it gets problematic.” Lecture, titled “Confi dential Sources of SILHA R ESEARCH A SSISTANT In an article for Harper magazine’s Journalists: Protection or Prohibition?” April issue, James Goodale, former on Oct. 24, 2005. For more on the
9 Department of Justice Continues Mulling Policies Regarding Jailing, Subpoenaing, and Searching U.S. Journalists n January 2019, a report by The Hill gallery, had been obtained from the AP’s seized phone and email records of Times and testimony by then Attorney telephone providers. The same year, the reporter Ali Watkins. General nominee William P. Barr, DOJ named Fox News reporter James According to the Times , it was “not both fueled renewed speculation Rosen as a co conspirator during a leak clear whether investigators exhausted all that the U.S. Department of Justice investigation of a State Department of their avenues of information before I(DOJ) was considering changing its offi cial in order to obtain e mails from confi scating Ms. Watkins’s information. policies and practices regarding jailing, Rosen’s Google account, further raising She was not notifi ed before they gained subpoenaing, and searching members of criticism of DOJ practices. (For more access to her information from the the news media. information on the secret subpoenas telecommunications companies.” DOJ FIRST On January 14, The of the AP, see “Justice Department spokeswoman Sarah Isgur Flores said in AMENDMENT Hill reported that Secretly Subpoenas Associated a June 10 statement that the department the DOJ had been Press Phone Records” in the Winter/ had “fully complied” with its internal “quietly . . . working Spring 2013 issue of the Silha Bulletin guidelines in deciding to seize Ms. on a revision to its guidelines governing and “Department of Justice Revises Watkins’s records.” how, when and why prosecutors can Guidelines for Investigating Journalists” The collection of Watkins’ records obtain the records of journalists, in the Summer 2013 issue. For more prompted a lawsuit by the First particularly in leak cases.” On January information on the targeting of Rosen, Amendment Coalition against the DOJ 15, Barr suggested during a confi rmation see “Attorney General Holder Leaves in an effort to force the disclosure hearing that he “could conceive” of jailing Problematic Legacy on Press Rights of records related to the search and reporters as a “last resort” in government and Civil Liberty” in the Fall 2014 issue seizure. (For more information on the leak cases, citing the guidelines discussed of the Silha Bulletin. For more on the confi scating of Watkins’ records, see in The Hill’s report. Obama administration’s prosecution of Federal Prosecutors Seize Phone and individuals under the Espionage Act, see Email Records of New York Times DOJ Reviews Guidelines Regarding “President Barack Obama Leaves Mixed Reporter in Leak Investigation in “Trump Issuing Subpoenas, Court Orders, Legacy on Government Transparency” in Administration Targets Journalist, Leaker and Search Warrants Against the Fall 2016 issue of the Silha Bulletin, of Government Information, and Former Journalists “Attorney General Holder Leaves Government Employees Who Took On Jan. 14, 2019, The Hill opinion Problematic Legacy on Press Rights and Classifi ed Documents” in the Summer contributor John Solomon reported Civil Liberties” in the Fall 2014 issue, 2018 issue of the Silha Bulletin. For more that then Deputy Attorney General Rod “Manning, Kiriakou Face Punishment information on the lawsuit, see “First Rosenstein’s offi ce had been overseeing for Blowing the Whistle on the War on Amendment Coalition Sues Department for several months the revision of Terror” in the Winter/Spring 2013 issue, of Justice Over Secret Collection of U.S. Department of Justice (DOJ) “Leaks: New Policies Emerge; Congress Journalist’s Telephone and Email guidelines regarding the obtaining of Gets Involved” in the Summer 2012 issue, Records” in the Fall 2018 issue of the journalists’ records by law enforcement. “The Obama Administration Takes on Silha Bulletin.) 28 CFR § 50.10. Government Leakers; Transparency May The guidelines fi rst provide a The guidelines, titled “Policy regarding be a Casualty” in the Winter/Spring 2012 statement of principles, including that obtaining information from, or records issue, “Judge Rebukes Government on “[b]ecause freedom of the press can be of, members of the news media; and Leak Prosecutions” in the Summer 2011 no broader than the freedom of members regarding questioning, arresting, or issue, “Open Government Advocates of the news media to investigate and charging members of the news media,” Criticize Obama’s Prosecution of Leakers” report the news, the Department’s policy were fi rst instituted in 1970 by Attorney in the Winter/Spring 2011 issue, and “The is intended to provide protection to General John Mitchell in response Media and the Military: Guantanamo members of the news media from certain to press uproar about the growing Access Rules Loosened; Other Guidelines law enforcement tools . . . that might number of subpoenas seeking to compel Set to Limit Leaks” in the Fall 2010 unreasonably impair newsgathering journalists to reveal confi dential news issue.) activities.” sources, according to the Reporters In 2014 and 2015, the DOJ further The guidelines state that the “use of Committee for Freedom of the Press revised the guidelines, strengthening certain law enforcement tools, including (RCFP) on Nov. 9, 2018. protections for reporters, according to subpoenas, court orders, . . . and search In 2013, the DOJ amended the RCFP. The DOJ guidelines were most warrants to seek information from, or guidelines amidst growing criticism after recently brought into question on June 7, records of, non consenting members the department obtained Associated 2018 when The New York Times reported of the news media [are] extraordinary Press (AP) telephone records listing that during an FBI investigation into measures, not standard investigatory incoming and outgoing numbers of alleged classifi ed leaks by former U.S. practices.” Therefore, according to the individual AP reporters, the general AP Senate Select Committee on Intelligence guidelines, these measures may only offi ce numbers in New York, Washington, (SSCI) director of security James A. be used 1) after the Attorney General D.C., and Hartford, Conn., and the Wolfe, who was charged and arrested has authorized the use, 2) when the main number for AP reporters in the in early June on three counts of lying to information sought is “essential to a U.S. House of Representatives press federal authorities, prosecutors secretly successful investigation, prosecution, or
10 litigation,” and 3) after “all reasonable administration’s prosecutions of leakers, ways to more easily spy on journalists. As alternative attempts have been made to see “Investigations, Prosecutions, and the Bulletin went to press, the DOJ had obtain the information from alternative Sentencing Continue in Government not announced whether it had revised the sources.” Leak Cases” in the Fall 2018 issue of the guidelines. The guidelines list principles the Silha Bulletin, “Trump Administration Attorney General is to consider regarding Targets Journalist, Leaker of Government New Attorney General Does Not subpoenas, court orders, and search Information, and Former Government Repudiate Possibility of Jailing warrants. For example, in criminal Employees Who Took Classifi ed Journalists matters, there “should be reasonable Documents” in the Summer 2018 issue, On Jan. 15, 2019, several news outlets grounds to believe, based on public “Federal Government Targets a Leaker reported that then U.S. Attorney General information, or information from non and Backpage.com” in the Winter/Spring nominee William P. Barr, during his media sources, that a crime has been 2018 issue, and “Reporters and Leakers confi rmation hearing on the same day, committed, and that the information of Classifi ed Documents Targeted by suggested that the U.S. Department of sought is essential to the successful Justice (DOJ) investigation or prosecution of that “[F]reedom of the press is a bedrock would consider crime.” In the case of civil matters, the jailing reporters information sought would be essential to democratic principle. Under no as a “last resort.” the litigation as well. circumstance should the government Barr’s statement In the event that the Attorney General echoed earlier has authorized a subpoena, court put journalists in jail for doing their job.” comments by order, or search warrant pursuant to a President Donald member of the news media, the affected — American Civil Liberties Union Trump and his individual(s) “shall be given reasonable administration and timely notice,” unless “such notice calling on the DOJ would pose a clear and substantial threat President Trump and the DOJ” in the to consider jailing journalists as part of to the integrity of the investigation, Summer 2017 issue.) government leak investigations. risk grave harm to national security, or Solomon wrote that he had a “special In December 2018, President Donald present an imminent risk of death or vantage point molded by personal Trump nominated Barr to replace serious bodily harm.” experience” regarding Rosenstein’s former Attorney General Jeff Sessions. Under the policy, the DOJ may seek efforts. He explained that in 2001, Barr previously served as Attorney the disclosure of “communication then Deputy Attorney General and General in President George H.W. Bush’s records,” which include “the contents Federal Bureau of Investigation (FBI) administration from 1991 to 1993. On Feb. of electronic communications as well director nominee Robert Mueller, who 14, 2019, Barr was sworn in as the new as source and destination information in 2019 was the head of the investigation Attorney General after the U.S. Senate associated with communications, such into President Donald Trump and his voted 54 45 to confi rm him on the same as email transaction logs and local and administration’s alleged collusion with day. long distance telephone connection Russia during the 2016 presidential During a January 15 confi rmation records.” The DOJ can also seek to election, subpoenaed Solomon’s hearing, Sen. Amy Klobuchar (D Minn.) obtain “business records,” which include phone records without notifying his asked then nominee Barr, “If you’re “work product and other documentary employer, the AP. The FBI later seized confi rmed, will the Justice Department materials, and records of the activities, Solomon’s international mail without a jail reporters for doing their jobs?” including the fi nancial transactions, of warrant, citing U.S. Customs and Border Klobuchar cited her father’s work as a member of the news media related to Protection’s (CBP) “border search a journalist, as well as the murder of the coverage, investigation, or reporting authority.” (For more information on Washington Post columnist Jamal of news.” Additionally, the DOJ may CBP’s authority to conduct warrantless Khashoggi in late 2018. (For more obtain warrants to search “the premises border searches, see “Ninth Circuit information on the killing of Khashoggi, [and] property” of members of the news Ruling and Federal Lawsuit Target U.S. see “Journalists in the United States and media. The full guidelines are available Customs and Border Protection for First Abroad Face Threats of Violence and online at: https://www.law.cornell.edu/cfr/ and Fourth Amendment Violations” in the Incarceration” in the Fall 2018 issue of text/28/50.10. Fall 2018 issue of the Silha Bulletin, “U.S. the Silha Bulletin.) In his January 14 piece, Solomon Customs and Border Protection Actions According to a January 15 Washington cited “multiple sources familiar” with Continue to Raise First and Fourth Post article, Barr responded to the review, who indicated that there Amendment Questions” in the Summer Klobuchar’s question, “I think that, you were two main goals, including to “lower 2018 issue, “Civil Rights Organizations, know, I know there are guidelines in the threshold that prosecutors must Federal Agency, and House of place.” He continued, “And I can conceive meet before requesting subpoenas for Representatives Raise Different Issues of situations where, you know, as a last journalists’ records” and to “eliminate Regarding Searches at U.S. Borders” in resort and where a news organization has the need to alert a media organization the Fall 2017 issue, and “U.S. Customs run through a red fl ag or something like that [the DOJ] intends to issue a and Border Protection Searches of that, knows that they’re putting out stuff subpoena.” Electronic Devices, Data at U.S. Borders that will hurt the country — there could Solomon added that his sources Raise Privacy and Legal Concerns” in the be a situation where someone could be also indicated that the review was Summer 2017 issue.) held in contempt.” connected to an increase in criminal Solomon’s full story is available The Post and Vox noted that Barr was leak investigations by the DOJ. (For online at: https://thehill.com/opinion/ referring to the DOJ guidelines regarding more information on the Trump judiciary/425189 rosenstein doj exploring DOJ, continued on page 12 11 DOJ, continued from page 11 information on Sessions’ comments “[N]o president gets to jail journalists. and criticism from media organizations Reporters are protected by judges and searches and seizures of members of the and experts, see DOJ Charges Former juries, by a congress that relies on news media, which The Hill reported Minneapolis FBI Agent under Espionage them to stay informed, and by a Justice on Jan. 14, 2019 were being reviewed Act; Second Such Action by the Trump Department that for decades has honored by then Deputy Attorney General Rod Administration in “Federal Government the role of a free press by spurning Rosenstein’s offi ce. Targets a Leaker and Backpage.com” prosecutions of journalists for publishing In response to Barr’s comments, the in the Winter/Spring 2018 issue of the leaks of classifi ed information.” The New American Civil Liberties Union (ACLU) Silha Bulletin and U.S. Attorney General York Times added on May 17, 2017 that tweeted on the same day, “Wrong Announces New Efforts in Search President Trump’s proposal “breached answer. The freedom of the press is a new territory for bedrock democratic principle. Under no “We knew the Trump administration political reporters circumstance should the government put who already journalists in jail for doing their job.” was going to take on the issue consider their Barr’s comments were not the fi rst of leaking.. . . We’ve never had a profession under instances of the Trump administration prosecution of journalists for being the siege.” (For more suggesting it may subpoena or jail information on journalists. In an Aug. 4, 2017 press recipient of leaks.” President Trump’s conference, Sessions said that the DOJ comments and was “reviewing its policies” regarding — Jane Kirtley, criticism from subpoenas for members of the news Silha Center Director and Silha Professor of media organizations media who publish leaked government Media Ethics and Law and experts, see information. Sessions added during the President Trump press conference, “This culture of leaking Suggests FBI must stop.. . . I strongly agree with the for Leakers, Including Subpoenaing Director Should Jail Reporters for president and condemn in the strongest Reporters in “Reporters and Leakers Publishing Classifi ed Information in terms the staggering number of leaks.” of Classifi ed Documents Targeted by “Reporters and Leakers of Classifi ed Sessions’ comments led to widespread President Trump and the DOJ” in the Documents Targeted by President Trump criticism from media experts, including Summer 2017 issue.) and the DOJ” in the Summer 2017 issue of Silha Center Director and Silha Professor Additionally, on May 16, 2017, the Silha Bulletin.) of Media Ethics and Law Jane Kirtley, President Trump suggested to then FBI As the Bulletin went to press, neither who said in an Aug. 4, 2017 interview director James Comey that he should the Trump administration nor the DOJ with Yahoo! News , “We knew the Trump consider putting reporters in prison for had sought to jail a journalist. administration was going to take on the disseminating classifi ed information. The issue of leaking.. . . We’ve never had comments sparked criticism from media a prosecution of journalists for being advocacy organizations, including the SCOTT M EMMEL the recipient of leaks. This could be Reporters Committee for Freedom of the SILHA BULLETIN E DITOR the fi rst time that happens.” (For more Press (RCFP), which said in a statement,
Videos of past Silha Lectures, Symposia, and Fora are available on YouTube.
Go to:
https://www.youtube.com/channel/UCottXCU5zGzUSZjO Djlzig/videos
12 Justice Thomas Calls for Supreme Court to Reconsider the Actual Malice Standard n a concurring opinion fi led in McKee Several media experts subsequently Sullivan, according to the Los Angeles v. Cosby , 586 U.S. ___ (2019), on raised concern with Justice Thomas’ call Times on April 18, 2014. Feb. 19, 2019, U.S. Supreme Court to reconsider the actual malice standard. Additionally, the Reporters Committee Justice Clarence Thomas called for In a Feb. 20, 2019 interview on KPCC for Freedom of the Press (RCFP) noted the Court to revisit the actual malice radio’s “AirTalk,” Silha Center Director in 2010 that Justice Elena Kagan “has Istandard, which was created in New York and Silha Professor of Media Ethics and also expressed skepticism with how Times v. Sullivan and requires proof Law Jane Kirtley argued that Sullivan is workable the ‘actual malice’ libel standard that defendants knowingly made false an “[e]xtremely important case because it [is] . . . and whether th[at] standard[] statements or made ensured that people that were covering the need[s] to be reworked.” RCFP contended SUPREME statements with Civil Rights Movement could do so without that Justice Kagan “seems most skeptical COURT NEWS reckless disregard fear of being crippled by libel suits based that the ‘actual malice’ heightened proof for their truth or on factual errors that were made in good requirements in public fi gure cases is falsity. 376 U.S. 254 (1964). The suggestion faith.” benefi cial as a whole, stating that it raised concern from media law experts, Kirtley also told “AirTalk” host ‘deprives falsely defamed individuals of the who emphasized the importance of the Larry Mantle that the creation of the ability to obtain monetary damages’ and ruling in allowing members of the public actual malice standard under the ‘prevents the public from ever learning of and press to criticize public offi cials under First Amendment was appropriate. the falsity of widely disseminated libelous the protection of the First Amendment. “As a practical matter, we need this statements.’” In December 2014, petitioner Kathrine constitutional protection,” Kirtley However, Justice Kagan did note in a McKee publicly accused actor and said. “And for me, it is an absolutely book review for Anthony Lewis’ Make No comedian Bill Cosby of sexually assaulting justifi able interpretation of what the First Law: The Sullivan Case and the First her in the 1970s. She alleged that Cosby’s Amendment is all about, which is allowing Amendment that “Questions of this kind attorney responded by writing and leaking the press, and the public by extension, to [related to the Sullivan ruling] in no way a letter that deliberately distorted her write critically about public fi gures and prove that the Court decided Sullivan personal background in order to “damage public offi cials.” incorrectly or that the Court now should her reputation for truthfulness and In a February 19 interview with The reconsider its holding.” honesty, and further to embarrass, harass, Washington Post , University of Georgia The New York Times noted on Feb. 19, humiliate, intimidate, and shame [her].” professor Jonathan Peters agreed that 2019 that the two most recent Supreme On Oct. 18, 2017, the U.S. Court of Sullivan was a landmark ruling, calling it Court appointees, Justices Neil M. Gorsuch Appeals for the First Circuit upheld the “essential to our modern understanding and Brett M. Kavanaugh, “have expressed district court’s decision to grant Cosby’s of press freedom” by “emboldening support for broad libel protections in their motion to dismiss, fi nding that McKee was news organizations to cover the civil opinions as appeals court judges.” The a public fi gure and could not prove actual rights movement more forcefully — and Times reported that during his Supreme malice. McKee v. Cosby, 874 F.3d 54 (1st later the Vietnam War and Watergate.” Court confi rmation hearings in March 2017, Cir. 2017). On Feb. 19, 2019, the Supreme (Peters was a panelist at “The State of Gorsuch responded to a question from Court denied certiorari in the case. Our Satirical Union: Hustler Magazine, Sen. Amy Klobuchar (D Minn.) regarding In a concurring opinion, Justice Inc. v. Falwell at 30,” a symposium held the actual malice standard by stating Thomas wrote that he agreed with the April 20 21, 2018, co sponsored by the “New York Times v. Sullivan was, as you Court’s decision to deny certiorari in the Silha Center for the Study of Media Ethics say, a landmark decision and it changed case, but also called for the high court, and Law, the Association of American pretty dramatically the law of defamation in an appropriate case, to reconsider the Editorial Cartoonists (AAEC), the and libel in this country.” Gorsuch added, actual malice standard. He contended Minnesota Journalism Center, and the “That’s been the law of the land for, gosh, that Sullivan and subsequent decisions Hubbard School of Journalism and Mass 50, 60 years.” The Times also noted that as extending the standard were “policy driven Communications. For more information an appeals court judge, Gorsuch “showed decisions masquerading as constitutional on the symposium, see “Spring Symposium no hesitation in applying the line of cases law.” Marks the 30th Anniversary of Hustler that began with the Sullivan ruling.” (For He continued, “The states are perfectly Magazine, Inc. v. Falwell, Discusses more information on Justice Gorsuch’s capable of striking an acceptable balance History, Purpose, and Impact of Political background on defamation cases, see “Neil between encouraging robust public Cartoons” in the Winter/Spring 2018 issue Gorsuch Sworn in as Newest Supreme discourse and providing a meaningful of the Silha Bulletin.) Court Justice” in the Winter/Spring 2017 remedy for reputational harm.” Justice In her interview on KPCC radio, issue of the Silha Bulletin.) Thomas added, “There appears to be little Kirtley noted that there have been “a In a July 2018 report, RCFP wrote historical evidence suggesting that the New couple of justices over the years that have that Justice Kavanaugh “has written York Times actual malice rule fl ows from questioned” the actual malice standard, favorably with respect to the ‘actual the original understanding of the First or including Justice Byron White, who once malice’ standard[.]” RCFP noted that Fourteenth Amendment.” No other justices wrote that the actual malice standard “is Kavanaugh recognized that “[c]ostly and joined Justice Thomas’ concurring opinion, not the road to salvation for a court of time consuming defamation litigation which is available online at: https://www. law.” Kirtley also cited Justice Antonin can threaten [the] essential freedoms” supremecourt.gov/opinions/18pdf/17 1542_ Scalia, who argued in 2014 that “the of speech and of the press. Kavanaugh ihdk.pdf. framers would have been appalled” by Thomas, continued on page 14 13 Federal Judge Dismisses Defamation Lawsuit Against BuzzFeed News; News Organizations Face Signifi cant Defamation Lawsuits and Settlements n the winter of 2018/2019, a federal against The Washington Post, claiming Defamation Lawsuit Against BuzzFeed judge dismissed a defamation that the newspaper’s coverage of the Dismissed in Federal Court lawsuit against BuzzFeed News encounter falsely painted Sandmann in On Dec. 19, 2018, a federal judge amidst several individuals fi ling a negative light for political reasons. On dismissed a defamation lawsuit against multi million dollar lawsuits March 12, 2019, the family fi led a similar BuzzFeed over the outlet’s decision to Iagainst major media organizations. On lawsuit against CNN and has threatened publish the “Steele Dossier” (dossier), a Dec. 19, 2018, U.S. District Court for the several more. 35 page document compiled by former Southern District of Florida Judge Ursula In December 2018, Joe Arpaio fi led a MI6 intelligence offi cer Christopher Ungaro dismissed lawsuit against CNN, the Huffi ngton Post, Steele detailing ties between the Russian a defamation Rolling Stone, and several journalists from government and then Republican DEFAMATION lawsuit against each organization, alleging that coverage presidential candidate Donald Trump. BuzzFeed News incorrectly referring to him as a felon Gubarev v. BuzzFeed, 340 F.Supp.3d 1304 over the outlet’s harmed his chances of running for U.S. (S.D. Fla. 2018). Russian businessman decision to publish the “Steele Dossier,” Senate in 2020. Arpaio previously fi led Aleksej Gubarev brought the lawsuit a 35 page document compiled by former a similar lawsuit against The New York after being named in the dossier, which MI6 intelligence offi cer Christopher Steele Times , which fi led a motion to dismiss on BuzzFeed published in its entirety in detailing ties between then Republican Jan. 4, 2019. January 2017. Judge Ursula Ungaro of presidential candidate Donald Trump and Meanwhile, on Dec. 11, 2018, Judge S. the U.S. District Court for the Southern the Russian government. James Otero of the United States District District of Florida ruled that BuzzFeed On March 18, 2019, Rep. Devin Nunez Court for the Central District of California was protected by the fair report privilege, (R Calif.) fi led a defamation lawsuit against ordered adult fi lm actress Stormy Daniels, as the dossier was the subject of offi cial Twitter and three Twitter users. On April whose real name is Stephanie Clifford, to proceedings. 9, 2019, Nunez also sued The McClatchy pay President Donald Trump over $293,000 During the 2016 U.S. presidential Company, the operator of 29 daily in legal fees and sanctions after dismissing campaign, Steele compiled the dossier newspapers around the United States, her defamation lawsuit against the after being hired by a law fi rm working alleging that reporting by The Fresno Bee president in October 2018. Finally, on Jan. for the Democratic National Committee constituted defamation per se. 4, 2019, CBS reached a settlement in a $750 (DNC) to conduct research on then In February 2019, the family of Nicolas million defamation lawsuit stemming from candidate Donald Trump. During the Sandmann, the Covington Catholic High a documentary the network aired about course of his investigation, Steele received School student involved in a confrontation the 1996 murder of JonBenet Ramsey, a information that Russia was interfering with a Native American man at the Lincoln former child beauty queen, which garnered in the 2016 presidential election. Steele Memorial, fi led a defamation lawsuit signifi cant media attention. amassed the information, much of which
Thomas, continued from page 13 Trump presidency, based on in depth “I’m going to open up our libel laws so interviews with administration offi cials when they write purposely negative and wrote in Kahl v. Bureau of National and others,” according to a September 5 horrible and false articles, we can sue Affairs, Inc., “To preserve First story by the Post. President Trump wrote, them and win lots of money.. . . We’re Amendment freedoms and give reporters, “Isn’t it a shame that someone can write an going to open up those libel laws.” (For commentators, bloggers, and tweeters article or book, totally make up stories and more information on Woodward’s book (among others) the breathing room they form a picture of a person that is literally and President Trump’s comments, see need to pursue the truth, the Supreme the exact opposite of the fact, and get The New York Times Publishes Op Ed by Court has directed courts to expeditiously away with it without retribution or cost. Senior Trump Administration Offi cial, weed out unmeritorious defamation Don’t know why Washington politicians Drawing Criticism from President suits.” 856 F.3d 106 (D.C. Cir. 2017). (For don’t change libel laws?” Trump and Some Observers in “President more information on Justice Kavanaugh’s Additionally, during a Jan. 10, 2018 Trump Continues Anti Press Rhetoric background on defamation cases and the cabinet meeting, President Trump called and Actions” in the Fall 2018 issue of RCFP report, see “Brett Kavanaugh Sworn libel laws a “sham and a disgrace and the Silha Bulletin. For more information In as the 114th U.S. Supreme Court Justice” do not represent American values or on Wolff’s book and President Trump’s in the Fall 2018 issue of the Silha Bulletin.) American fairness” after author Michael comments, see Book About the Trump Several media experts noted that Wolff, who previously contributed to USA Administration’s White House Raises President Donald Trump has also been Today, The Hollywood Reporter , and other Ethical and Legal Questions in “The critical of libel laws in the United States. media outlets, authored and released a Ethics of Covering President Donald In a Sept. 5, 2018 tweet, President Trump book titled Fire and Fury: Inside the Trump” in the Winter/Spring 2018 issue of suggested that Congress should change Trump White House , which described the Silha Bulletin.) libel laws after Bob Woodward, an behind the scenes details about President associate editor at The Washington Post, Trump’s White House and administration. authored a book titled Fear in which he SCOTT M EMMEL Finally, during a February 2018 rally in “paint[ed] a harrowing portrait of the SILHA BULLETIN E DITOR Fort Worth, Texas, President Trump added, 14 was unsubstantiated and based on Radio Host Faces Several Defamation way that the allegations concerning Mr. rumors, and produced seventeen reports, Lawsuits” in the Summer 2018 issue.) Gubarev, Webzilla, or XBT Holding were which became the dossier. The dossier On December 19, Ungaro granted true,” he said. “Instead, the court ruled on contained one mention of Gubarev, BuzzFeed’s motion for summary a narrow legal issue, fi nding that BuzzFeed alleging that his company was hired judgment, fi nding that the media outlet had a privilege to publish the information, under duress by Russian intelligence was protected by the fair report privilege, even if it was false.” Gurvits added, “When services to use “botnets and porn traffi c as it published a “fair and true report” of we started this case, we knew that it would to transmit viruses, plant bugs, steal data, an offi cial proceeding. Ungaro noted that be a marathon and not a sprint.. . . We and conduct ‘altering operations’ against the privilege stemmed from a New York remain convinced that, after appeal, this the Democratic Party leadership.” Steele law that prevents civil actions when an matter will be presented to a jury and shared the dossier with the Federal Bureau individual or organization fairly reports that we will succeed in vindicating the of Investigation (FBI), Associate Deputy on a judicial, legislative, or other offi cial plaintiffs’ good names.” Attorney General Bruce Ohr, and several proceeding. N.Y. Civ. Rights Law § 74. She members of Congress in the winter of stated that the statute was designed to Rep. Devin Nunes Sues Twitter, 2016. David Kramer, a former Deputy protect reports of proceedings made in the Newspaper Operator, and Others for Assistant Secretary of State responsible public interest, and said the press acts as Defamation, Faces Uphill Legal Battles for Russia, Ukraine, Belarus, and Moldova, “an agent of the public” when publishing On March 18, 2019, several media eventually received a copy of the dossier information in the public domain. outlets reported that Rep. Devin Nunes from then Sen. John McCain, and chose In reviewing the motion for summary (R Calif.) had fi led a defamation lawsuit to share the information with BuzzFeed. judgment, Ungaro fi rst held that in the Henrico County (Virginia) Circuit BuzzFeed then published the dossier in investigations surrounding the dossier Court against Twitter and three users, its entirety. The dossier and BuzzFeed constituted “offi cial proceedings” under alleging that the users had produced and article are available online at: https://www. the New York statute, even though published defamatory content, which buzzfeed.com/kenbensinger/these reports BuzzFeed was unable to show any was allowed by Twitter despite its terms allege trump has deep ties to russia?utm_ specifi c investigation into the allegations and services. On April 9, Nunes also term=.darpRrV7#.vdxDJdZv. made about Gubarev. She reasoned that sued the operator of 29 daily newspapers Part of the dossier alleged that Gubarev the requirement should be interpreted around the United States, alleging that was a “signifi cant player” in an operation “liberally,” and that it was suffi cient to reporting by The Fresno Bee amounted to in which his companies, XBT Holdings show that the report as a whole was defamation per se, among other claims. S.A. and Webzilla, as well as their affi liates, subject to offi cial action. She also noted Observers contended that Nunes faced an “had been using botnets and porn traffi c to that the average reader would conclude the uphill battle regarding both lawsuits and transmit viruses, plant bugs, steal data and dossier was subject to offi cial action, as that both were “unlikely to be successful” conduct ‘altering operations’ against the BuzzFeed included a hyperlink to a CNN in court. Democratic Party leadership.” In February article that discussed the investigation In his March 18 complaint against 2017, Gubarev fi led a defamation lawsuit into the dossier’s allegations. Finally, Twitter and three Twitter users, Nunes against BuzzFeed, contending that he and Ungaro held that the report was fair and fi rst contended that the social media his companies had been severely damaged true because it accurately reproduced company committed problematic by the false accusations and “some clear the dossier by publishing the report in its actions in creating and developing errors” in the dossier. entirety. Ungaro’s full opinion is available content, including “censorship of On June 4, 2018, Southern District of online at: https://assets.documentcloud. viewpoints with which it disagrees,” and Florida Judge Ursula Ungaro ruled that org/documents/5637767/12 19 18 Gubarev “shadow banning conservatives,” meaning BuzzFeed could claim New York’s fair Opinion.pdf. Twitter allegedly secretly blocked or report privilege as a defense. Gubarev On Dec. 20, 2018, Gubarev fi led an partially blocked Twitter users’ content v. BuzzFeed , No. 1:17 cv 60426 UU (S.D. appeal in the U.S. Court of Appeals for the from public consumption based on the Fla. 2018). Ungaro held that the privilege, Eleventh Circuit. As the Bulletin went to users’ political viewpoints. which is normally used to shield media press, the court had not reached a decision Second, the complaint contended outlets and journalists from defamation on the appeal. that three Twitter users had produced liability when they report on government On Dec. 19, 2019, BuzzFeed defamatory content regarding Nunes, investigations using offi cial documents and editor in chief Ben Smith said in a including Elizabeth Mair, the founder statements by public offi cials, also extends statement that he was “thrilled” by and owner of Mair Strategies, LLC, a to include classifi ed intelligence briefi ngs. the decision, and thanked Ungaro for communications and public relations fi rm. (For more information on the previous considering the case on its merits. “When Nunes alleged that during his re election ruling and the background of the case, we published the Steele Dossier in 2017, campaign in 2018, Mair “relentlessly see Disputes Mount in “Steele Dossier” we were met with outrage from many smeared and defamed Nunes during the Defamation Case, D.C. Judge Dismisses corners — a major news anchor and campaign, fi lming stunts at Nunes’ offi ce Trump Dossier Defamation Case Against President Trump both deemed it ‘fake in Washington, D.C. and posting them Christopher Steele in “Defamation Cases news’; and several Russian businessmen, online,” as well as publishing defamatory Continue for Right Wing Radio Host and plus [President Trump’s former lawyer] statements on Twitter. The complaint BuzzFeed; Former Political Candidates Michael Cohen, sued for defamation,” cited a May 23, 2018 tweet in which Bring Defamation Lawsuits” in the Fall he said. “Today, almost two years later, a Mair “implied that Nunes colluded with 2018 issue of the Silha Bulletin and federal judge has vindicated our decision.” prostitutes and cocaine addicts, that Nunes BuzzFeed Allowed Fair Report Privilege On December 19, one of Gubarev’s does cocaine, and that Nunes was involved in Trump Dossier Defamation Case in attorneys, Val Gurvits, attempted to qualify in a ‘Russian money laundering front.’” “Minnesota and Federal Courts Grapple the ruling. “First and foremost, nothing in Mair’s tweet cited a May 23, 2018 article with Defamation Questions; Right Wing today’s ruling by the court suggests in any Defamation, continued on page 16 15 Defamation, continued from page 15 is available online at: https://www. contended that Nunes was unlikely to scribd.com/document/402297422/Nunes succeed in either. First Amendment lawyer written by Fresno Bee reporter Mackenzie Complaint 3 18 19. Ken White told the Columbia Journalism Mays, titled “A yacht, cocaine, prostitutes: On April 8, 2019, several media outlets Review (CJR) on April 12 that the lawsuits Winery partly owned by Nunes sued after reported that Nunes had also sued The “seem[ed] . . . to be stunt litigation.” White fundraiser event,” which was the basis of McClatchy Company (McClatchy), which added, “Increasingly, people seem to sue Nunes’ subsequent lawsuit. owned and operated The Fresno Bee, people for the publicity over the litigation, The complaint also named two among several other newspapers. The and the legal outcomes are secondary to satirical accounts, “Devin Nunes’ Mom” lawsuit, which was fi led in Albemarle the outcome of thrilling your base and and “Devin Nunes’ Cow,” which used County (Virginia) Circuit Court, once again whipping them up with the fact that you’re the Twitter handles @DevinNunesMom named Mair and Mair Strategies. taking on the enemy.” and @DevinCow respectively. Nunes The lawsuit largely focused on the In an April 9 interview with Sinclair asserted that each had posted “hundreds May 23, 2018 article written by Mays, Broadcast Group (Sinclair), Silha Center of egregiously false, defamatory, insulting, which discussed a lawsuit brought by Director and Silha Professor of Media abusive, hateful, scandalous and vile Alene Anase, a server who was aboard a Ethics and Law Jane Kirtley noted that statements about Nunes that without cruise in the San Francisco Bay in 2015 Nunes, because he was a public offi cial, question violated Twitter’s Terms of that included drug use and prostitution. had to prove actual malice, meaning Service and Rules, including a seemingly According to the story, the cruise was on a he had to show that the defendants endless series of tweets that falsely yacht owned by Alpha Omega, a winery in in each lawsuit knew the information accused Nunes of obstruction of justice, California, which later settled the lawsuit they published was false or acted with perjury, misuse of classifi ed information, with Anase out of court. Mays reported “reckless disregard” for whether it was and other federal crimes.” that one of Alpha Omega’s investors was true, as required by New York Times Co. v. Third, the complaint alleged one count Nunes, a close friend of the winery’s Sullivan, 376 U.S. 254 (1964). of negligence, contending that Twitter had owner. However, Mays did not report that Deputy director of the Media Law “breached its duty of reasonable care” by Nunes was on the yacht. The full article is Resource Center Dave Heller agreed. allowing its platform “to be used by others available online at: https://www.fresnobee. “To win this lawsuit[,] Rep. Nunes as a means to defame Nunes” and failing com/news/business/article210912434.html. would have to prove that the article is to take action to enforce its “Terms and Citing the article, Nunes’ lawsuit false, unprivileged, and published with Rules” preventing “abusive” behavior. contended that Mays had acted “in concert actual malice,” Heller said. “Each of Fourth, Nunes argued that Twitter had with Mair” in order to “defame [him] and these elements would be a hurdle — not allowed the three users to publish and destroy his reputation.” The complaint necessarily insurmountable — but the law republish numerous false statements, further asserted that McClatchy and Mair intentionally makes it diffi cult for public which amounted to defamation per “relentlessly attacked Plaintiff both in print offi cials to win libel suits against the se , meaning the false statements were and digitally — falsely and maliciously press.” so damaging that they were deemed accusing Plaintiff of horrible crimes and Regarding the lawsuit against Twitter defamatory “on their face” or were so improprieties, falsely attributing to him and its users, Jim Bickerton, an attorney egregious that they would always be knowledge he did not have, implying at Bickerton Law Group in Hawaii, considered defamatory. In such instances, that he was involved with cocaine and contended in a March 20, 2019 interview which include falsely imputing to the underage prostitutes, and imputing to with The Washington Post that several of plaintiff a criminal offense, loathsome Plaintiff dishonesty, unethical behavior, the examples named in Nunes’ lawsuits disease, matters incompatible with the lack of integrity, and an unfi tness to serve appeared to be “things that are most individual’s offi ce, or sexual misconduct, as a United States Congressman.” obviously hyperbole,” a form of protected the plaintiff need not prove harm or The complaint added, “The Defendants speech. damages. The statements at issue in this case abandoned the role of Bickerton cited Hustler Magazine, constituted defamation per se, according journalist, and chose to leverage their Inc. v. Falwell, 485 U.S. 46 (1988), which to the complaint, because they accused considerable power to spread falsehoods arose following the publication of the Nunes of “the commission of crimes and to defame the Plaintiff for political and November 1983 issue of Hustler magazine, involving moral turpitude and for which fi nancial gain.” The complaint requested which featured a parody of a Campari Nunes may be punished and imprisoned in $150,000 in compensatory damages and liqueur advertisement on the inside front a state or federal institution” and having $350,000 in punitive damages. The full cover. The ad was titled “Jerry Falwell a “contagious disease.” The complaint complaint is available online at: https:// talks about his fi rst time,” playing on the added that the statements were meant to www.scribd.com/document/405589277/ double entendre meaning of one’s fi rst “prejudice Nunes in his profession or trade Amended Complaint 4 9 19. sexual experiences. Falwell, a nationally as a United States Congressman.” The As the Bulletin went to press, no known minister at the time, summarily complaint therefore alleged one count of further legal proceedings had been fi led a lawsuit against Hustler Magazine, defamation per se, requesting $250 million announced regarding Nunes’ two lawsuits. Inc., Larry C. Flynt, the publisher of the in presumed and actual damages. In an April 9 statement, The Fresno Bee magazine, and his distribution company, Finally, the complaint cited three and McClatchy stood by their reporting Flynt Distributing Co., Inc., seeking to additional counts, including “Insulting and called Nunes’ lawsuit “a baseless recover damages for libel, invasion of Words” under Va. Code § 8.01 45, which attack on local journalism and a free privacy, and intentional infl iction of prohibits the use of “fi ghting words,” press.” The statement added that Nunes emotional distress. meaning those that “tend to violence and had declined to be interviewed and had not The U.S. Supreme Court ultimately breach of the peace.” sought a correction. ruled against Falwell in an 8 0 decision, The complaint requested $250 million Following the fi ling of both lawsuits, reasoning that the “sort of robust in compensatory damages and $350,000 several media experts and observers political debate encouraged by the First in punitive damages. The full complaint 16 Amendment is bound to produce speech School student Nicholas Sandmann, who caused permanent damage to his life and that is critical of those who hold public was involved in a confrontation with reputation.” offi ce or those public fi gures.” The ruling Native American activist Nathan Phillips, Additionally, Sandmann’s complaint was a victory for satirical publications, at the Lincoln Memorial on Jan. 18, 2019, alleged that the Post “attacked, vilifi ed, which, according to The Washington fi led a defamation lawsuit against The and threatened” Sandmann because Post, could include “Devin Nunes’ Mom” Washington Post , seeking $250 million in he was white, Catholic, and wearing a and “Devin Nunes’ Cow.” (On April 20 21, damages. The family fi led an additional hat featuring President Donald Trump’s 2018, the Silha Center for the Study of lawsuit against CNN on March 12, 2019, slogan, “Make America Great Again” Media Ethics and Law, the Association of alleging that CNN engaged in similar (MAGA). The complaint outlined seven American Editorial Cartoonists (AAEC), actions as the Post in vilifying Sandmann. Post articles about the incident that it the Minnesota Journalism Center, and the Sandmann’s attorney suggested that these asserted were defamatory, as well as three Hubbard School of Journalism and Mass were just the fi rst of up to 50 lawsuits the allegedly defamatory tweets. The articles Communication co hosted a symposium family was considering fi ling. and tweets, according to the complaint, titled, “The State of Our Satirical Union: On Jan. 18, 2019, several media “communicated the false and defamatory Hustler Magazine, Inc. v. Falwell at 30.” outlets, as well as numerous social gists [sic] that Nicholas engaged in racist For more information on the Hustler media accounts, circulated photos conduct and that Nicholas assaulted case and the symposium, see “Spring and videos of an alleged confrontation Phillips.” Symposium Marks the 30th Anniversary between Sandmann and Phillips during The complaint contended that of Hustler Magazine, Inc. v. Falwell, two separate rallies taking place at the Sandmann was a private fi gure, reasoning Discusses History, Purpose, and Impact National Mall in Washington, D.C. The that he otherwise lived his life outside of Political Cartoons” in the Winter/Spring Covington Catholic High School students of the public eye and had no notoriety of 2018 issue of the Silha Bulletin.) were attending a pro life March for Life any kind before the incident. ABC 6 in “Here, they actually have someone rally. The Native American marchers were Columbus, Ohio noted in a February 20 who says she’s Devin Nunes’s mother,” attending the Indigenous Peoples March. story that whether Sandmann was a private Bickerton said. “People are going to One photo depicted Sandmann staring fi gure was signifi cant because he would know that’s not really his mom. Just like at Phillips, prompting some observers only need to prove negligence by the Post, how people knew Jerry Falwell wasn’t to criticize Sandmann for mocking or a lesser standard than actual malice, which having sex in the outhouse with his taunting Phillips, according to The Wrap was created in New York Times v. Sullivan mother.. . . In the . . . courts, it’s unlikely to on February 20. However, other observers requiring proof that defendants knowingly be successful.” pointed to additional videos of the event made false statements or made statements Kevin Goering, a partner at Mintz that were released in the ensuing days, with reckless disregard for their truth or & Gold in New York, told the Post that defending Sandmann’s actions at the rally. falsity. 376 U.S. 254 (1964). Nunes faced an additional obstacle in his The Washington Post fi rst reported on The complaint sought $50 million in lawsuit against Twitter: section 230 of the the incident after a video of the encounter, compensatory damages and $200 million Communications Decency Act of 1996 which was videotaped by a participant in punitive damages, as well as attorney’s (CDA), 47 U.S.C. § 230, which states that in the Indigenous Peoples March, as well fees and costs. The full complaint is “No provider or user of an interactive as several photos, were posted by the available online at https://www.dropbox. computer service shall be treated as the Twitter account @2020fi ght, according to com/s/rnio82555v8eiqk/2019 02 19%20 publisher or speaker of any information the Sandmanns’ complaint. The complaint Sandmann%20%20vs.%20Washington%20 provided by another information content alleged that the video was “selectively Post%20 %20Complaint.pdf?dl=0. provider.” As noted by the Post, section edited” in order to show Sandmann as On Feb. 20, 2019, President Donald 230 therefore protects social media sites, the aggressor and that “the Post actively, Trump tweeted a quote from the complaint among other companies, from liability, negligently and recklessly participated and expressed his support for the including for defamation. As a result, in making the [video] go viral on social lawsuit. “‘The Washington Post ignored Goering said Nunes had an “iffy case.” media,” without investigating the validity basic journalistic standards because it Regarding Nunes’ lawsuit against of the video or the Twitter account. The wanted to advance its well known and McClatchy, Clay Calvert, director of the complaint argued that Sandmann stood easily documented biased agenda against Marion B. Brechner First Amendment respectfully for several minutes, trying to President Donald J. Trump.’ Covington Project at the University of Florida, remain non aggressive and passive. student suing WAPO. Go get them Nick. explained that journalists have a “fair The complaint further asserted that the Fake News!” the tweet read. report privilege,” which protects them Post ignored journalistic standards when Following the fi ling of the lawsuit, from defamation lawsuits for citing offi cial interpreting the incident as Sandmann several media experts argued that public documents. He told Sinclair that the engaging in “acts of racism by ‘swarming’ Sandmann would face challenges in privilege would likely apply to quotes from Phillips, ‘blocking’ his exit away from the winning the case. Joseph Tomain, a Anase’s lawsuit. Calvert added, “It’s going students, and otherwise engaging in racist lecturer at the Maurer School of Law to come down to, is there a false factual misconduct,” despite a “plethora” of other at Indiana University, contended in assertion made in the article? . . . Minor evidence was available online to give a an interview with Sinclair Broadcast errors or inaccuracies that do not more accurate view of the incident. The Group (Sinclair) that Sandmann was affect the overall gist generally are not complaint claimed that the Post did this not a private fi gure, but instead a actionable.” in order to “advance its well known and “limited purpose public fi gure” because of easily documented, biased agenda against his participation in a major public protest Covington Catholic High School President Donald J. Trump,” prompting the over a controversial issue and subsequent Student Sues Washington Post and family to bring the lawsuit “to seek legal interview with NBC’s Savannah Guthrie CNN for Defamation redress for [the Post’s] negligent, reckless, days after the incident. If a court made On Feb. 19, 2019, the family of and malicious attacks on Nicholas which Defamation, continued on page 18 16 year old Covington Catholic High 17 Defamation, continued from page 17 www.scribd.com/document/401742248/ claiming he was convicted of a felony Nicholas Sandmann v CNN Complaint crime. The complaint also asserted that this same determination, Sandmann would With Exhibits. the defendants’ publications damaged have to prove actual malice. As the Bulletin went to press, no Arpaio’s reputation within the Republican In a January 18 interview with Sinclair, further announcements had been made establishment, interfering with potential Silha Center Director and Silha Professor regarding the lawsuits against The business relationships and harming his of Media Ethics and Law Jane Kirtley Washington Post and CNN. chances at running for the U.S. Senate argued that much of the rhetoric in in 2020. Finally, the complaint claimed the complaint was “legally irrelevant,” Joe Arpaio Sues CNN, Huffi ngton that the publications painted Arpaio in although the central claims that the Post’s Post, and Rolling Stone; New York a false light that would be offensive to reporting was negligent could hold legal Times Files Motion to Dismiss in a reasonable person by stating that he weight. “I can’t say out of hand there Similar Lawsuit had been convicted of a felony. Arpaio would be no legal basis for these claims,” On Dec. 10, 2018, former Arizona is seeking $300,500,000 in damages, plus she said. “There is an argument to be Sheriff Joe Arpaio fi led a lawsuit against attorney’s fees and court costs. The full made . . . it could certainly have been CNN, the Huffi ngton Post, and Rolling complaint is available online at: https:// harmful to Nick Sandmann’s reputation.” Stone magazine, as well as several www.freedomwatchusa.org/pdf/181210 She added, “I think some of the stuff in individuals at each news organization, Filed%20Complaint.pdf. the complaint probably won’t withstand alleging defamation and false light invasion Meanwhile, on Jan. 4, 2019, The New a motion to dismiss because the issue of of privacy. The complaint alleged that York Times fi led a motion to dismiss the Washington Post being liable for what the news organizations knowingly made a separate defamation lawsuit Arpaio other news organizations might pick up comments designed to negatively impact brought against the Times and editorial and repeat, that’s just not sound.” Arpaio’s reputation and hinder his chances writer Michelle Cottle in October 2018. Clay Calvert, director of the Marion of running for offi ce in 2020. Meanwhile, In that complaint, Arpaio alleged that B. Brechner First Amendment Project on Jan. 4, 2019, The New York Times fi led an Aug. 29, 2018 editorial column that at the University of Florida, agreed with a motion to dismiss a similar defamation referred to him as a “truly sadistic man” Kirtley, adding “The underlying theme lawsuit brought by Arpaio against the harmed his reputation and his ability to of the whole lawsuit is that this is the newspaper in October 2018. run for the U.S. Senate in 2020. Arpaio v. liberal news media making a story fi t its In the complaint fi led against CNN, Cottle, No: 1:18 cv 02387 (D.D.C. 2018). preconceived narrative of white male the Huffi ngton Post, and Rolling Stone (For more information about the basis for students who support Donald Trump being magazine, Arpaio alleged that he was the lawsuit and the public’s reaction, see racist.. . . What is the objective standard “the target of three separate defamatory Former Arizona Sheriff Brings $147.5 for if someone is or is not racist?” publications that falsely refer to and Million Defamation Lawsuit Against The In response to the lawsuit, Post defamed him per se as a convicted felon.” New York Times in “Defamation Cases spokeswomen Kristine Coratti Kelly First, he pointed to a Jan. 10, 2018 CNN Continue for Right Wing Radio Host and said in a February 20 statement, “We are television feature where anchor Chris BuzzFeed; Former Political Candidates reviewing a copy of the lawsuit, and we Cuomo falsely stated that Arpaio was a Bring Defamation Lawsuits,” in the Fall plan to mount a vigorous defense.” convicted felon. The second was a Nov. 2018 issue of the Silha Bulletin.) On March 12, the Sandmann family 5, 2018 Huffi ngton Post article in which In its motion to dismiss, the Times fi led a similar lawsuit against CNN, senior political reporter Kevin Robillard argued that Arpaio’s assertion that the making largely the same claims as the wrote that Arpaio had been “sent to column harmed his political career and complaint against the Post. The complaint prison for contempt of court.” The third damaged his reputation was “implausible asserted that CNN would have known its publication was a Nov. 13, 2018 Rolling on its face.” The Times argued that the reporting of the incidents contained false Stone article written by staff writer Tessa column restated well known facts about accusations against Sandmann if it had Stuart referring to Arpaio as an “ex felon.” Arpaio’s “long reign of terror as a senior “undertaken any reasonable efforts to The complaint alleged that CNN and the law enforcement offi cial,” summarized verify their accuracy before publication.” Huffi ngton Post failed to issue retractions, his public service record, and offered the The complaint also claimed that CNN though it conceded that Rolling Stone Cottle’s opinions on Arpaio’s tenure. “In acted in order to further its anti Trump edited the article to say that “Arpaio short,” the motion said, “the statements agenda. “Contrary to its ‘Facts First’ public was convicted of contempt of court, in the column about Arpaio are not only relations ploy, CNN ignored the facts and a misdemeanor, in 2017 and pardoned true, but the column also constitutes core put its anti Trump agenda fi rst in waging by Trump less than one month later.” political speech protected by the First a 7 day media campaign of false, vicious Nevertheless, Arpaio maintained that Amendment.” attacks against Nicholas,” the complaint the original article was still defamatory The Times further asserted that all read. because those who read it when it was the statements made in the article were The complaint stated that Sandmann published would not be aware that the substantially true as a matter of law, and was defamed in four CNN television statement was false. that Arpaio did not plead facts suffi cient broadcasts and nine online articles The complaint put forward three causes to establish actual malice, the standard published on the CNN website, pointing of action: defamation per se, tortious created in New York Times v. Sullivan particularly to claims such as that interference with prospective business requiring proof that defendants knowingly Sandmann and his classmates acted relations, and false light. It alleged that made false statements or made statements with a “mob mentality,” “looked like they the publications were defamatory, made with reckless disregard for their truth or were going to lynch” other protestors, maliciously, and subjected Arpaio to falsity. 376 U.S. 254 (1964). The motion and were “racist.” The lawsuit sought “widespread ridicule and humiliation,” asserted that an extensive record of $75 million in compensatory damages and harming his reputation, and causing judicial rulings and public records used $200 million in punitive damages. The full pain and fi nancial damage by falsely by the Times proved that most of the complaint is available online at: https:// 18 disputed facts asserted in the column who Clifford claimed threatened her with her “unwillingness to resort to litigation were substantially true and said that any harm in 2011 if she spoke about her 2006 in light of [President Trump’s] continuing of the opinions were non actionable as affair with President Trump, according use of rhetorical hyperbole suggests that defamation. Instead, the Times argued, to the Los Angeles Times on September [she] is already being deterred from fi ling the lawsuit was brought as “an attempt 24. On March 25, Clifford told CBS’s “60 meritless defamation claims.” Otero’s to punish [the newspaper] for publishing Minutes” that the man approached her in decision is available at: https://www. truthful statements and protected a parking lot in Las Vegas and said, while documentcloud.org/documents/5513861 expressions of opinion on a matter of looking at her young daughter, that it Clifford v Trump Order Re Hearing on national signifi cance.” would be a shame if “something happened Motion for.html. The Times therefore sought to have to her mom.” the lawsuit dismissed under Washington, On April 18, President Trump tweeted, JonBenet Ramsey’s Brother Settles D.C.’s Anti SLAPP Act. D.C. Code “A sketch years later about a nonexistent $750 million Lawsuit against CBS § 16 5501 et seq. Anti SLAPP laws provide man. A total con job, playing the Fake On Jan. 4, 2019, Burke Ramsey, the procedures for early dismissal of meritless News Media for Fools (but they know brother of former child beauty queen lawsuits fi led to intimidate people for it)!” The tweet was in response to another JonBenet Ramsey, who was murdered in exercising their First Amendment rights. tweet by Twitter user “RealShennaFox” 1996, reached a confi dential settlement in The full motion to dismiss can be found who posted the sketch next to an image a defamation lawsuit against CBS over a online at: https://assets.documentcloud. of Clifford with her husband, who bears a documentary that suggested he killed his org/documents/5675679/1 4 19 NYT resemblance to the man in the sketch. sister. Motion to Dismiss Arpaio.pdf. As the Otero ruled on Oct. 15, 2018 that the On Dec. 26, 1996, multiple news outlets Bulletin went to press, the court had not tweed constituted “‘rhetorical hyperbole’ reported that JonBenet was found beaten ruled on the motion to dismiss. normally associated with politics and and strangled to death in the basement On Dec. 12, 2018, Tom Rogan, a public disclosure in the United States,” of her parent’s home in Boulder, Colo. commentary writer for the Washington and was therefore protected by the First Although no one has been charged for the Examiner, argued that Arpaio’s lawsuits Amendment. (For more information on murder, a Colorado grand jury indicted were both likely to fail because, the lawsuit and Otero’s ruling, see Federal JonBenet’s parents for child abuse although Arpaio is not a felon, the media Judge Dismisses Defamation Lawsuit resulting in her death. Alex Hunter, the contentions were not defamatory. “That’s Brought By Stormy Daniels Against district attorney at the time, declined because Arpaio is a public fi gure and is President Trump in “President Trump to prosecute, citing a lack of evidence. thus subject to the defamation parameters Prevails in Two Federal Courts’ First However, the Daily Mail reported on appropriate to that public station,” he Amendment Rulings, Faces New First Jan. 11, 2019 that longtime suspect in the wrote. “[S]peech involving public fi gures Amendment Lawsuit,” in the Fall 2018 murder, Gary Olivia, a convicted pedophile is only defamatory if made with the ‘actual Issue of the Silha Bulletin.) serving a 10 year sentence, had allegedly malice’ of spite or a reckless disregard for On December 11, Otero granted confessed to killing JonBenet. the truth.” Rogan called the publications President Trump $292,052.33 in attorney’s In September 2016, CBS aired a that called Arpaio a felon, “regrettable fees and costs, and imposed $1,000 in four hour documentary examining the mistakes,” but said they were not suffi cient sanctions on Clifford. President Trump’s circumstances surrounding JonBenet’s evidence of defamation. “The media’s attorneys had initially asked for over death. At the conclusion of the reporting was wrong, but not so wrong as $389,000 in attorney’s fees, but Otero ruled documentary, a panel of experts gave to be ruled malicious by the courts,” he that number was “excessive” and reduced its opinion that Burke, who was 9 at the wrote. that amount by 25 percent. He reasoned time, hit his sister in the head with a that President Trump’s legal team “could heavy object, and that the parents staged Stormy Daniels Ordered to Pay have researched and briefed this case a burglary in order to cover up the son’s Attorney’s Fees in Dismissed with less involvement from partners and crime. Two months after the documentary Defamation Lawsuit Against President greater use of highly qualifi ed associates,” aired, Burke sued CBS, the production Trump therefore lessening the costs. Otero also company, and the experts for defamation, On Dec. 11, 2018, a federal judge noted that President Trump’s attorneys seeking $250 million in compensatory ordered adult fi lm actress Stormy Daniels, spent an “excessive” amount of time damages and $500 million in punitive whose real name is Stephanie Clifford, to performing legal research and stated that damages, according to a Jan. 4, 2019 pay President Donald Trump over $293,000 President Trump’s “counsel did not need to Reuters article. in legal fees and sanctions after dismissing spend as much time as they did conducting Burke Ramsey’s attorney, Lin Wood, her defamation lawsuit against President legal research and compiling factual told Reuters that the case was settled Trump. On Oct. 15, 2018, Judge S. James exhibits.” amicably but declined to discuss terms. “I Otero of the United States District Court Otero declined to impose “signifi cant can only comment that the case has been for the Central District of California had additional sanctions,” and ordered Clifford amicably resolved to the satisfaction of all granted a special motion brought by to pay $1,000, instead of President Trump’s parties,” he said. “It is now my professional President Trump under the Texas Citizens request for doubled attorneys’ fees. He and personal wish for this family that Participation Act (TCPA), Texas’ anti noted that the TCPA mandates an award of they no longer suffer the pain of false SLAPP statute, to dismiss the lawsuit. sanctions when required to deter the party accusations in the future.” CBS confi rmed Tex. Civ. Prac. & Rem. Code § 27.009. from bringing similar actions in the future. that the case was settled, but refused Clifford v. Trump, 339 F.Supp.3d 915 (C.D. Otero reasoned that President Trump’s further comment. Cal. 2018). request for doubled attorney’s fees, as The lawsuit arose on April 17 after seen in previous anti SLAPP litigation, Clifford’s attorney, Michael Avenatti, would not serve to deter Clifford from KIRSTEN N ORDSTROM released a forensic artist’s sketch of a man fi ling analogous lawsuits in the future, as SILHA R ESEARCH A SSISTANT
19 Journalists in the U.S. and Abroad Continue to Face Violence and Imprisonment; U.S. Court Holds Syria Liable for Role in Journalist’s 2012 Death ournalists in the U.S. and were released from prison in Myanmar According to CNN on Feb. 7, 2019, abroad continued to face after being pardoned by the President the Philippine National Bureau of violence and incarceration of Myanmar. Investigation previously ruled that in the beginning of 2019. Ressa, the CEO and co founder Ressa could not be charged under the In February and March, of Rappler, an online news website cyber libel law because it was enacted prominentJ Philippine journalist Maria with offi ces in the Philippines and four months after the Rappler’s Ressa, one of the journalists named Indonesia, published stories starting publication of the article. However, Time magazine’s 2018 Person of the in 2016 critical of Duterte and the the Philippine Department of Year, was arrested Philippine government. In 2016, Justice overturned that ruling on the REPORTERS twice, once on Rappler published a three part series grounds that the article was updated charges of “cyber in February IN DANGER libel” and once for 2014. Ressa told violating foreign “Philippine offi cials should stop CNN that the ownership laws. Observers noted abusing their authority by issuing arrest charges were that the charges were likely intended warrants against Rappler editor Maria examples of how to silence and punish Ressa for her the Philippine critical reporting on the Philippine Ressa.. . . It is clear that the government government uses government. On Feb. 11, 2019, a BBC is manipulating the law to muzzle and the law to attack cameraman was attacked at a rally intimidate one of its most credible media independent for President Donald Trump in El journalists. “The Paso, Texas. The incident was the critics.” law is being most recent attack on a member of weaponized in the media at a Trump rally, and drew — Shawn Crispin, an attempt to sharp criticism from commentators Committee to Protect Journalists control the public who suggested that President Trump’s Southeast Asia representative narrative,” she anti media rhetoric encouraged such said. “We will not attacks. be intimidated Meanwhile, on Jan. 30, 2019, a U.S. about 26 fake Facebook accounts and will continue to shine the light judge found Syrian President Bashar that allowed individuals linked to on actions of impunity.” Ressa was al Assad’s government liable for at Duterte’s administration to allegedly released on bail after spending one least $302.5 million in damages for “weaponize the internet,” as reported night in jail. its role in the 2012 death of American by The Washington Post on Feb. On March 27, 2019, Philippine journalist Marie Colvin, who was 25, 2019. According to the Post, offi cials issued arrest warrants killed in a targeted airstrike while Ressa reported the fake accounts for several Rappler editors and covering the Syrian civil war for The to Facebook and asked that they be executives, including Ressa, for Sunday Times of London. removed before Rappler published the violating a law that prohibits foreign articles, fearing potential backlash. ownership in media outlets, according Prominent Journalist Repeatedly However, Facebook did not remove to several media reports. Rappler Arrested in the Philippines; Two the accounts, prompting Rappler to executives Manuel Ayala, Nico Additional Reporters Released publish the articles. Jose Nolledo, Glenda Gloria, James from Prison On Feb. 19, 2019, Ressa was Bitangca, Felicia Atienza, and James On Feb. 13, 2019, Philippine arrested on cyber libel charges Velasquez turned themselves in and journalist Maria Ressa, an outspoken under the Philippine Cybercrime were released after posting bail. Ressa critic of Philippine President Rodrigo Prevention Act of 2012. was arrested after returning to the Duterte and part of a group of Rep. Act No. 10175 § 4(c)(4) (2013). Philippines on March 28, and held journalists named Time magazine’s The Act criminalizes libel, an for approximately fi ve hours before 2018 Person of the Year, was arrested offense under a separate section being released on bail, according to on “cyber libel” charges. On March 28, of the Revised Penal Code of the a March 28 New York Times article. Ressa was arrested again for violating Philippines, when committed using Rappler repeatedly denied that foreign laws barring foreign ownership of a computer. The charges arose investment in Rappler confers any media outlets. Observers contended from a story Rappler published in foreign ownership rights. that Ressa was charged in order to May 2012 linking Wilfredo Keng, a The international community silence her critical reporting of the prominent businessman, to one the condemned the charges against Ressa. Philippine government. Meanwhile, on Philippine’s top judges during the Shawn Crispin, the Committee to May 6, two additional journalists who judge’s impeachment trial. The article Protect Journalists’ (CPJ) Southeast were part of the group that won Time also referenced intelligence reports Asia representative, accused the magazine’s Person of the Year, Reuters alleging that Keng was linked to illegal Philippine government of abusing its reporters Wa Lone and Kyaw Soe Oo, drugs and human traffi cking. authority in order to silence Ressa’s
20 criticism. “Philippine offi cials should Myanmar’s Rakhine state. They were to the notice, and Khashoggi’s remains stop abusing their authority by issuing sentenced in September 2018 under had not been recovered. arrest warrants against Rappler editor Myanmar’s Offi cial Secrets Act for The Person of the Year award Maria Ressa,” he said in a March possession of classifi ed documents also included the Capital Gazette 28 statement. “It is clear that the that were given to them in an apparent newsroom staff. On June 28, 2018, government is manipulating the law to police sting. On April 15, 2019, Lone multiple media outlets reported that muzzle and intimidate one of its most and Soe Oo were honored with the fi ve staff members were killed in a credible media critics. This egregious 2019 Pulitzer Prize for International mass shooting in the Annapolis, Md. harassment must stop.” Reporting for the “courageous newsroom of the Capital Gazette. The David Kaye, United Nations coverage that landed [them] in victims included Gerald Fischman, (UN) special rapporteur for human prison.” (For more information on the the editorial page editor for the rights, said Facebook bore some conviction and international response, Capital Gazette, Rob Hiaasen, an responsibility for Ressa’s arrest see Two Reuters Journalists editor and features columnist, John because it violated its own terms Sentenced to Seven Years in Prison McNamara, who held several jobs and conditions when it failed to While Covering Rohingya Killings in in the newsroom for over 20 years, remove the fake accounts. “Certainly Myanmar in “Journalists in the United Rebecca Smith, a sales assistant, Maria deserves that, even though States and Abroad Face Threats of and Wendi Winters, a local news it’s probably far too late,” he said Violence and Incarceration” in the Fall reporter. (For more information on in a February 25 Chicago Tribune 2018 issue of the Silha Bulletin.) the shooting and the victims, see Five article. “She has suffered severe On May 6, 2019, Reuters reported Newspaper Staff Members Killed, consequences.” that Lone and Soe Oo had been Two Injured in Shooting at Local In a February 13 statement, released after over 500 days in Maryland Newsroom in “Journalists Amnesty International Philippines prison. They were released as part Face Physical Violence, Other Dangers section director Butch Olano of President Win Myint’s pardons in the United States and Abroad, in condemned the decision to issue an of 6,520 prisoners in April and May the Summer 2018 edition of the Silha arrest warrant for Ressa. “This is 2019, according to Reuters, which Bulletin.) brazenly politically motivated, and also noted that “it [is] customary consistent with the authorities’ threats in Myanmar for authorities to free BBC Cameraman Attacked at and repeated targeting of Ressa and prisoners across the country around Trump Rally in El Paso her team. Authorities should end this the time of the traditional New Year, On Feb. 11, 2019, multiple news harassment, drop the charges and which began on April 17.” Wa Lone outlets reported that BBC cameraman repeal this repressive law,” he said, told reporters, “I’m really happy and Ron Skeans was attacked at a rally referring to the cyber libel law. “In a excited to see my family and my for President Donald Trump in El country where justice takes years to colleagues. I can’t wait to go to my Paso, Texas. In a February 12 article, obtain, we see the charges against her newsroom.” the BBC reported that Skeans was being railroaded — and the law being Another journalist included in “The unharmed, despite the “incredibly used to relentlessly intimidate and Guardians” was Jamal Khashoggi, a violent attack.” Some observers harass journalists for doing their jobs prominent Saudi Arabian journalist noted that the incident was the latest as truth tellers.” and Washington Post contributor example of members of the press On March 28, Daniel Bastard, who was murdered in the Saudi being assaulted at President Trump’s the head of the Reporters without Arabian consulate in Istanbul on Oct. rallies, and suggested that President Borders (RSF) Asia Pacifi c desk, 2, 2018. (For more information on Trump’s anti press rhetoric could be issued a statement supporting Ressa the background of Jamal Khashoggi’s to blame. and Rappler. “The judicial harassment murder, see Washington Post According to a February 12 article of Rappler by various government Columnist Jamal Khashoggi Killed published by The Guardian, a man agencies is bordering on the absurd,” in Saudi Consulate in Istanbul in wearing a hat with President Trump’s he said. “In all, the website and its “Journalists in the United States and slogan “Make America Great Again” journalists are currently the targets Abroad Face Threats of Violence and shoved and swore at Skeans and of proceedings in at least 11 cases, Incarceration,” in the Fall 2018 issue other news crews before being pulled each as spurious as the other. Against of the Silha Bulletin.) away by a blogger. The Guardian the government’s manipulation of On Jan. 7, 2019 The Washington noted that footage from Skean’s the judicial system with the aim Post reported that Saud al Qahtani, a camera suggested he was knocked of silencing troublesome media royal advisor to Salaman, was a key off balance for about 10 seconds, and outlets, Rappler stands as a pillar suspect in Khashoggi’s killing, though the attacker can be heard shouting of democracy to be defended at all his location was unknown. On March “Fuck the media.” Skeans said the costs.” 1, Interpol issued red notices for 20 man almost knocked over him and his On Dec. 11, 2018, Ressa was named people connected to Khashoggi’s camera twice. The footage showed one of “The Guardians,” a group of killing. According to Reuters on March that the attacker was then removed journalists awarded Time magazine’s 14, red notices are Interpol’s tool to from the rally, and the crowd can be 2018 Person of the Year. The Person of ask police worldwide to locate and heard shouting “let him go.” President the Year award also included Reuters arrest a person pending extradition. Trump reportedly witnessed the journalists Lone and Soe Oo, who The notice was issued as part of assault and confi rmed that Skeans was were fi rst detained on Dec. 12, 2017 Turkey’s investigation into Khashoggi’s uninjured with a thumbs up. After the while investigating violence against murder. As the Bulletin went to press, rally, a campaign offi cial for President the Rohingya ethnic minority in no arrests had been reported pursuant Journalists, continued on page 22 21 Journalists, continued from page 21 Trump to swipe broadly at the news perpetuated by Syria in violation of media, which she said is “one of the the Foreign Sovereign Immunities Trump suggested that the attacker most important checks on government Act. 28 U.S.C. § 1608. Although there was drunk. excesses and one of the most was never a trial on the merits of the In a February 12 statement, important conduits of information case, the court awarded Colven’s White House Press Secretary for the public.” She added, “If you’re family, the plaintiff in the case, a Sarah Huckabee Sanders called for going to say, ‘No, you don’t need default judgment after several years supporters to comport themselves in a information,’ or ‘It’s a subversive of unsuccessfully trying to engage the peaceful manner at rallies. “President act to provide it to you,’ that’s right Syrian government in litigation. Trump condemns all acts of violence Colvin, a against any individual or group of renowned people — including members of the “[W]e fi rmly denounce all physical American war press,” she said. “We ask that anyone violence against reporters for doing their journalist, wrote attending an event do so in a peaceful jobs. This is unacceptable in the country for The Sunday and respectful manner.” Times of London In a February 12 tweet, Reporters of the First Amendment.” for over 25 years, Without Borders (RSF) voiced its and received concern about the attack. “RSF is — Reporters Without Borders numerous awards deeply concerned by this physical for her reporting, attack against a @BBC cameraman at including the a Trump rally,” the tweet said. “As we out of the autocrat’s playbook.” British Press Awards’ Foreign continue to look into what happened, (For more information on President Reporter of the Year in 2000, 2009, we fi rmly denounce all physical Trump’s relationship with the media, and 2012, as well as the 2000 Foreign violence against reporters for doing see “President Trump Continues Press Association’s Journalist of their jobs. This is unacceptable in the Anti Press Rhetoric and Actions” the Year and the 2000 International country of the First Amendment.” and “Journalists in the United States Women’s Media Foundation’s Courage Rep. Eric Salwell (D Calif.) stated and Abroad Face Threats of Violence in Journalism Award. in a February 12 tweet that he would and Incarceration” in the Fall 2018 The case arose after an artillery introduce a bill that would make it a issue of the Silha Bulletin, Five assault on a media center in Homs, federal crime to assault a journalist Newspaper Staff Members Killed, Syria killed Colvin and French in certain situations. “This is what Two Injured in Shooting at Local photographer Remi Ochlik, and happens when a President calls a Maryland Newsroom in “Journalists injured several other journalists who #FreePress the ‘enemy of the people’ Face Physical Violence, Other Dangers were covering the Syrian civil war and whips his rallies into a frenzy,” he in the United States and Abroad,” that erupted in the wake of the Arab said. “Assaults must not be tolerated, and Federal Prosecutors Seize Phone Spring. According to the plaintiffs’ and I look forward to re introducing and Email Records of New York July 9, 2016 complaint, the media the #JournalistProtectionAct Times Reporter in Leak Investigation center was located in Baba Amr, a with @SenBlumenthal.” in “Trump Administration Targets district in the city of Homs, and was The incident at the rally was not the Journalist, Leaker of Government “the heart of the independent media fi rst instance prompting observers to Information, and Former Government movement.” The journalists living in point to President Trump’s anti press Employees Who Took Classifi ed the media center used proxy internet rhetoric as a potential reason for Documents,” in the Summer 2018 servers to hide their location, and violence against the press. One issue, “Reporters and Leakers of accessed the center through a series such instance was the June 28, 2018 Classifi ed Documents Targeted by of underground tunnels in order to mass shooting in the Annapolis, Md. President Trump and the DOJ” in avoid the Syrian government’s “pattern newsroom of the Capital Gazette, the Summer 2017 issue, “Media Face and practice of targeting journalists which killed fi ve staff members. (For Several Challenges During President and other media personnel, ‘subjecting more information on the shooting Trump’s First Months in Offi ce” in them to . . . detention, torture, forced and the victims, see Five Newspaper the Winter/Spring 2017 issue, and disappearance, extrajudicial killing, Staff Members Killed, Two Injured “2016 Presidential Candidates Present and other abuses.’” in Shooting at Local Maryland Challenges for Free Expression” in the By the end of 2011, the Syrian Newsroom in “Journalists Face Summer 2016 issue.) government had formed a committee Physical Violence, Other Dangers in to coordinate military and intelligence the United States and Abroad, in the U.S. District Court Finds Syria operations against the opposition in Summer 2018 edition of the Silha Liable for Journalist’s Killing Homs, especially in Baba Amr because Bulletin.) On Jan. 30, 2019, U.S. District of the media center. The complaint As a presidential candidate and Court for the District of Columbia alleged that the Syrian government as president, Trump has frequently Judge Amy Berman Jackson ruled bombed the media center in order referred to journalists and news that Syrian President Bashar al to target the independent journalists outlets as the “fake news media” Assad’s government was liable for living there who reported on the rebel and “enemies of the people.” In a at least $302.5 million in damages movement and atrocities the Syrian Sept. 21, 2018 interview with the for its role in the 2012 death of government committed during the Minneapolis Star Tribune, Silha American journalist Marie Colvin. course of the uprising. Center Director and Silha Professor The court found that Colvin’s In her Jan. 30, 2019 ruling, Jackson of Media Ethics and Law Jane Kirtley killing was an “extrajudicial killing” held that the Syrian government had called it “dangerous” for President 22 engaged in a targeted strike on the President Assad addressed Colvin’s verdict highlights the potential media center, utilizing bracketing, killing in a July 13, 2016 interview for justice and puts governments an artillery technique for targeting with NBC News. “It’s a war and she everywhere on notice.” a specifi c location. Journalists came illegally to Syria,” he said. On Feb. 5, 2019, The New York evacuated the media center in pairs, “She worked with the terrorists, and Times Editorial Board voiced support running through the foyer of the because she came illegally, she’s been for Jackson’s opinion. “[I]t is good building and across the street into a responsible of everything that befall to know that an American judge is building with an underground shelter. [sic] on her.” prepared to let Mr. al Assad, and Jackson detailed that the Following the ruling, Colvin’s sister, thereby all autocrats who seek to committee directed the Syrian Cathleen Colvin, said that she hoped silence free speech, know that their military to shell the neighborhood actions have a daily and cut off telecommunications, heavy cost, to electricity, and food and water “Dictators have always tried to silence their people and, supplies to Baba Amr from December a free press. But the deliberate one hopes, to 2011 to February 2012. The opinion targeting of reporters like Ms. Colvin themselves,” the described the level of violence as Editorial Board “extreme,” alleging that “bombs were refl ects a new and distressing trend wrote. “Dictators being fi red into densely populated among authoritarian leaders to view have always areas,” and that snipers were the independent media solely as an tried to silence “targeting and killing small children, a free press. But women and other unarmed civilians.” enemy to be eliminated, if necessary the deliberate The opinion further noted that Colvin by death .” targeting of “was specifi cally targeted because reporters like of her profession, for the purpose — New York Times Editorial Board Ms. Colvin of silencing those reporting on the refl ects a new growing opposition movement in the and distressing country.” trend among Initially, the plaintiffs were unable the ruling would help discourage authoritarian leaders to view the to successfully serve the defendant future strikes on journalists. “It is independent media solely as an enemy with a summons for several years, my greatest hope that the court’s to be eliminated, if necessary by as required in order to instigate a ruling will lead to other criminal death.” lawsuit. The plaintiffs and the court prosecutions, and serve as a deterrent However, legal experts noted that were fi nally able to effectuate service against future attacks on the press and compelling the Syrian government to through the Czech Republic Embassy on civilians,” she told the Telegraph comply with the judgement could be in Damascus, Syria on April 14, 2017. on Jan. 31, 2019 . “Marie dedicated her diffi cult, though Henry Weisburg, an The plaintiffs then presented evidence life to fi ghting for justice on behalf of attorney at Shearman & Sterling, the to prove that Syria was liable for the victims of war and ensuring that law fi rm that represented the Colvin an extrajudicial killing under the their stories were heard. This case is family, told the Telegraph on Jan. 31, Foreign Sovereign Immunities Act. an extension of her legacy, and I think 2019 that there have been successful 28 U.S.C. § 1608. she’d be proud of what we achieved.” recoveries in similar cases, and Because Syria did not respond In a Jan. 31, 2019 statement, the suggested that the court could freeze to the complaint, Jackson, satisfi ed Committee to Protect Journalists’ any of Syria’s remaining assets in with the plaintiff’s evidence, entered (CPJ) Middle East and North Africa U.S. territories, or apply to freeze and default judgement against the Syrian Program Coordinator Sherif Mansour liquidate Syria’s assets elsewhere. government and awarded the plaintiffs also said the ruling would hopefully According to CPJ, at least 126 over $302.5 million in economic, help deter future press killings. “This journalists have been killed in Syria punitive, and solatium damages, fi nding that Syria is responsible for since 2011. Syria is the second which are awarded to a plaintiff as deliberately killing Marie Colvin deadliest country for the media since compensation for personal suffering will not bring her back, but it will CPJ began keeping records in 1992. or grief arising from an injury. A copy send a strong message to authorities of the opinion is available at https:// worldwide that murdering journalists KIRSTEN N ORDSTROM ecf.dcd.uscourts.gov/cgi bin/show_ has consequences,” he said. “As the SILHA R ESEARCH A SSISTANT public_doc?2016cv1423 57. international community continues Although the Syrian government to demand accountability for Jamal did not comment on the ruling, Khashoggi’s murder, the U.S. court’s
23 Fourth Circuit and Western District of Wisconsin Rule Public Offi cials Violated the First Amendment By Blocking Social Media Users n January 2019, the U.S. Court of Amendment Implications of Politicians next morning, Randall had unblocked Appeals for the Fourth Circuit Blocking Social Media Users” in Davison. and the U.S. District Court for the Summer 2018 issue of the Silha Davison brought claims against the Western District of Wisconsin Bulletin.) Randall and the Loudoun County reached similar conclusions On March 26, 2019, the Second Board of Supervisors under the First Iregarding the First Amendment Circuit heard oral arguments in Knight Amendment and Article I § 12 of implications of public offi cials blocking First Amendment Institute v. Trump. the Virginia Constitution, the First social media users. On Jan. 7, 2019, As the Bulletin went to press, the court Amendment’s Virginia analogue. Judge the Fourth had not announced a decision in the Cacheris concluded that Davison’s FIRST Circuit held that case. criticism of Randall and the school Phyllis Randall, AMENDMENT board offi cials was “not just protected Chair of the Fourth Circuit Holds Local Offi cial speech, but [lay] at the very ‘heart’ Loudoun County Violated the First Amendment By of the First Amendment.” He further (Va.) Board of Supervisors, violated Blocking a Facebook User from an held that Randall’s page constituted community activist Brian Davison’s Offi cial Page a public forum and that she had First Amendment rights by blocking On Jan. 7, 2019, the U.S. Court “engaged in viewpoint discrimination by him from a public Facebook page of Appeals for the Fourth Circuit banning [Davison] from her Facebook she created. On Jan. 18, 2019, a held that defendant Phyllis Randall, page.” (For more information on the federal judge in Wisconsin held that Chair of the Loudoun County (Va.) background of the case and Cacheris’ three Wisconsin State Assembly Board of Supervisors, engaged in ruling, see Twitter Users Critical of Representatives committed viewpoint based discrimination by President Trump are Blocked by the content based discrimination against blocking plaintiff Brian Davison, a President, Raising First Amendment One Wisconsin Now (OWN), a liberal community activist, from a public Concerns in “President Trump and His non profi t advocacy organization, by Facebook page, violating his First Administration Spark Debate Over blocking OWN’s Twitter account from Amendment rights. Davison v. Randall, Media Law Issues” in the Summer 2017 the “interactive” portions of their 912 F.3d 666 (4th Cir. 2019). The Fourth issue of the Silha Bulletin.) respective pages, which constituted Circuit upheld a July 25, 2017 ruling On Jan. 7, 2019, the Fourth Circuit “designated” public forums. by U.S. District Court for the Eastern upheld Cacheris’ decision in a 3 0 ruling. Previously, on May 23, 2018, U.S. District of Virginia Judge James C. Judge James Wynn wrote the majority District Court for the Southern District Cacheris, who also found that Randall opinion and fi rst held that Davison had of New York Judge Naomi Reice had engaged in viewpoint based established Article III standing under Buchwald ruled that President Donald discrimination in violation of the the U.S. Constitution to bring the case Trump and Daniel Scavino, the White First Amendment and the Virginia because he had provided adequate House Director of Social Media and Constitution. Davison v. Loudoun evidence to establish he had suffered Assistant to the President, had violated County Board of Supervisors, 267 an “injury in fact” as required by the the First Amendment by blocking F.Supp.3d 702 (E.D. Va. 2017). U.S. Supreme Court in Spokeo, Inc. v. several Twitter users who had criticized The case arose on Feb. 3, 2016 Robins, 136 S. Ct. 1540, 1548 (2016). the president or his policies. Knight when Randall posted comments about (For more information on Spokeo, Inc. First Amendment Institute v. Trump, a town hall meeting on her public v. Robins , see “Ninth Circuit Addresses 302 F.Supp.3d 541 (S.D.N.Y. 2018). Facebook page titled “Chair Phyllis Spokeo after Supreme Court Remands Buchwald held that “the interactive J. Randall,” which was separate from Case; Circuit Court Splits on Article space for replies and retweets her personal Facebook profi le and was III Standing Bar Following Spokeo in created by each tweet sent by meant to “address County residents” the Summer 2017 issue of the Silha the @realDonaldTrump account” and to “share information of interest Bulletin, “Supreme Court Issues Long constituted a designated public forum with the County.” Davison commented Awaited Spokeo Ruling” in the Summer because it is “generally accessible to on Randall’s post with allegations of 2016 issue, and “U.S. Supreme Court the public . . . regard[less] of political confl icts of interest and corruption Accepts Review of Robins v. Spokeo, affi liation” and is “designed to allow by Loudoun County’s School Board Inc.” in the Summer 2015 issue.) users ‘to interact with other [users.]’” members. Randall summarily blocked Second, Wynn held that Randall’s She further ruled that President Davison from the Facebook page offi cial Facebook page, particularly Trump and Scavino had engaged in because she took issue with him the interactive component of the page viewpoint based discrimination in “mak[ing] comments about people’s where any Facebook user could post violation of the First Amendment. (For family members” regarding possible comments, constituted a public forum. more information on Buchwald’s ruling confl icts of interests among the school Wynn reasoned that Randall’s offi cial and the background of the case, see board and their family members. Facebook page “[bore] the hallmarks Federal Judge Rules President Trump Davison could still read and share of a public forum,” including that she Cannot Block Twitter Users, Violated content posted on the page, but could opened the public comment section for First Amendment in “Federal Courts not post any comments or send private “public discourse” for “ANY Loudoun and State Governors Deal with First messages through the page. By the citizen” and “on ANY issues, request,
24 criticism, [or] complement [sic]” First, Kennan questioned “whether any statement, Davison said that he hoped (emphasis in original). Wynn added that and all public offi cials, regardless of the ruling would give others “leverage Davison’s speech “occupies the core their roles, should be treated equally in to protect their speech” when blocked of the protection afforded by the First their ability to open a public forum on by public offi cials on social media. Amendment.” social media.” She explained that the In a January 7 interview with the Wynn rejected Randall’s contention “nature and extent of a public offi cial’s Post, Knight First Amendment Institute that public forum analysis should not authority should have some bearing at Columbia University attorney Katie apply because the Facebook page was on the offi cial’s ability to open a public Fallow, who argued the case, praised “a private website” owned by Facebook. forum on social media.” In this case, she the ruling. “[This decision confi rms Wynn reasoned that the Supreme contended that it was unclear whether that the First Amendment] prohibits Court “never has circumscribed the Chair of the Loudoun County Board government censorship on new forum analysis solely to government of Supervisors has the authority to communications platforms,” she said. owned property” and provided the take offi cial action unilaterally or if the “Public offi cials, who increasingly use example of Southeastern Promotions, action must be taken by the board as a social media accounts as public forums Ltd. v. Conrad, in which the Court whole. This was in contrast, according to foster speech and debate among their held that “private property, whether to Kennan, to elected executive offi cials constituents, have no greater license tangible or intangible, constituted who can “conduct government business to suppress dissent online than they do a public forum when, for example, and set offi cial policy unilaterally, offl ine.” the government retained substantial including through the use of social Also in an interview with the control over the property under media.” Post, Joshua A. Geltzer, executive regulation or by contract.” 420 U.S. Second, Kennan wrote that the director at Georgetown Law’s 546, 547, 555 (1975). Wynn added that Supreme Court “should consider further Institute for Constitutional Advocacy “even assuming the relevant aspects of the reach of the First Amendment and Protection, called the ruling [Randall’s] Facebook Page constitute in the context of social media.” She “signifi cant” because the digital space private property . . . Randall, acting acknowledged the Court’s ruling in of social media platforms was “now the under color of state law, retained and Packingham v. North Carolina, in equivalent of a physical public meeting.” exercised signifi cant control over the which the Court struck down a North He added, “A platform has been created page,” including by creating the page Carolina law prohibiting sex offenders in which the government can’t allow the and designating it as belonging to a from access social media and referred voices it likes and silence the ones it government offi cial. to social media as “the modern public doesn’t like.” Third, Wynn ruled that Randall’s square.” 137 S.Ct. 1737 (2017). (For ban of Davison amounted to more information on Packingham, District Court in Wisconsin viewpoint based discrimination. He see “U.S. Supreme Court Rules in Two Rules Legislators Violated First reasoned that Randall had banned Signifi cant First Amendment Cases” Amendment By Blocking a Liberal Davison because she viewed his in the Summer 2017 issue of the Silha Advocacy Group on Twitter allegations as “slanderous” and she Bulletin.) On Jan. 18, 2019, Judge William M. “didn’t want [the allegations] on the However, Kennan contended Conley of the U.S. District Court for site,” an example of “black letter that the “interplay between private the Western District of Wisconsin held viewpoint discrimination.” As a result, companies hosting social media sites that Wisconsin State Assembly Reps. Wynn determined that the court did not and government actors managing Jesse Kramer (R Kewaskum), John need to decide whether the Facebook those sites” had “blur[red] the line Nygren (R Marinette), and Robin Vos page was a traditional or designated regarding which party is responsible (R Burlington), who served as Assembly public forum because viewpoint based for burdens placed on a participant’s Speaker, violated the First Amendment discrimination is “prohibited in all speech.” She provided the example of by blocking One Wisconsin Now forums.” hate speech, which is protected under (OWN), a liberal non profi t advocacy Finally, Wynn addressed Randall’s the First Amendment. According to organization, from their respective argument that her offi cial Facebook Kennan, a government offi cial could Twitter pages. One Wisconsin Now v. page constituted government speech. not ban a Facebook user’s comment Kremer, 354 F.Supp.3d 940 (W.D. Wis. Wynn held that although her comments containing hate speech under the First 2019). Conley held that the “interactive” and posts amounted to government Amendment, but could report the hate component of the defendants’ Twitter speech, the interactive space was speech to Facebook, which would accounts constituted a “designated” “materially different” because the be allowed to remove it, “arguably public forum and that Kramer, Nygren, public’s comments and posts were not circumventing First Amendment and Vos had committed content based “Randall’s own speech.” protections.” discrimination against OWN. In a concurring opinion, Judge Kennan therefore concluded that The case arose in 2017 when each Barbara Milano Kennan wrote that courts “must exercise great caution defendant blocked OWN’s Twitter she joined “the well reasoned majority when examining these issues, as account for purportedly different opinion in full,” including that the we await further guidance from reasons. Kremer claimed he blocked “central aspects of the Chair’s Facebook the Supreme Court on the First it “to stop spamming, stop the posting Page bear the hallmarks of a public Amendment’s reach into social media.” of tweets unrelated to the topic of forum” and that Randall had violated Wynn’s and Kennan’s opinions are the original tweets he posted, and to Davison’s First Amendment rights. available online at: http://www.ca4. stop tweets of an inappropriate and However, Kennan wrote separately to uscourts.gov/opinions/172002.P.pdf. unprofessional nature.” Nygren asserted “call attention to two issues regarding According to The Washington Post that he blocked OWN “for ‘[c]rude governmental use of social media that on January 7, Randall said she would Blocking, continued on page 26 do not fi t neatly into our precedent.” not seek further court review. In a 25 Blocking, continued from page 25 using the power and prestige of that state interest and that it is narrowly offi ce to communicate legislative drawn to achieve that interests” comments on Wisconsin politics’” that matters and other issues with the (emphasis in original). included “numerous vulgarities” and public.” Conley held that the defendants “personal attacks.” Vos testifi ed that he The second prong of the blocked OWN “because of its prior did not remember why he had blocked three step analysis required Conley speech or identity.” He provided the the OWN Account, though he noted that to decide whether the interactive example of Kremer testifying that his the only appropriate grounds to block component of the Twitter accounts Twitter feed was not “for Dane County another Twitter user was “the use of constituted a designated public forum, [(Wisconsin)] liberals to carry on vulgarity and profanity.” Both parties meaning “locations or channels of conversations with me” and Nygren’s summarily fi led motions for summary communication that the government claim that he blocked OWN because judgment. opens up for use by the public for of its “crude comments on Wisconsin In his January 18 opinion, Conley expressive activity,” as defi ned in Surity politics.” Conley held that although Vos fi rst explained the functionality of v. Hyde , 665 F.3d 860, 869 (7th Cir. offered no such speech related reason Twitter, including that if a user is 2011). Conley held that the interactive for blocking OWN, he problably blocked blocked from an account, he/she can no portions did “plainly constitute” such the account “because of its prior activity longer see or reply to the blocking user’s public forums, citing Packingham on his Twitter page.” Conley added tweets. The user is also prohibited v. North Carolina , in which the U.S. that even if the defendants’ reasons from viewing the blocking user’s list Supreme Court suggested that the for blocking OWN were not based on of followers and followed accounts, as internet and social media are “a new content, the defendants still had to meet well as being able to retweet any tweets space for public discourse analogous the burden of providing a compelling from that account. He added that the to traditional public forums.” 137 S.Ct. state interest for blocking the account, “interactive” space of a Twitter account 1730 (2017). (For more information which they failed to do. includes the tweets sent by the owner on Packingham, see “U.S. Supreme Conley therefore held that the of the account, as well as replies from Court Rules in Two Signifi cant First “defendants’ content based restrictions other users. Amendment Cases” in the Summer [were] impermissible and in violation Second, Conley held that the 2017 issue of the Silha Bulletin.) of plaintiff’s First Amendment interactive portion constitutes a Conley added that there could be “no rights.” He granted OWN’s motion “designated” public forum, citing reasonable dispute that defendants for summary judgement and directed Southern District of New York Judge intentionally created the interactive the parties to submit short briefs Naomi Reice Buchwald’s May 2018 social media accounts at issue in order regarding the “remaining issue of ruling in Knight First Amendment to communicate with members of the relief.” Conley’s full ruling is available Institute v. Trump, 302 F.Supp.3d public about news and information online at: https://cases.justia.com/ 541 0 (S.D.N.Y. 2018), as well as the related to their roles as public offi cials, federal/district courts/wisconsin/ U.S. Court of Appeals for the Fourth and are continuing to operate them as wiwdc/3:2017cv00820/40804/80/0. Circuit’s January 2019 ruling in Davison such.” pdf?ts=1547896059. v. Randall , 912 F.3d 666 (4th Cir. 2019). Conley rejected the defendants’ As the Bulletin went to press, Conley Conley applied the “three step contention that they only created their had not ruled on the proper relief in analysis set forth in these decisions,” accounts to inform their constituents, the case. Additionally, Kramer, Nygren, which provides fi rst that Kramer, rather than interact with them, fi nding and Vos had not announced whether Nygren, and Vos created and maintained that Kramer, Nygren, and Vos did not they would appeal the decision to the their respective Twitter accounts take any steps to limit access and U.S. Court of Appeals for the Seventh “in their capacity as members of the interactivity by the public. He also Circuit. Wisconsin State Assembly.” Conley rejected the contention that Twitter In a January 18 statement, OWN reasoned that although there was no accounts could not be public property Executive Director Scot Ross said, state law specifi cally granting them because Twitter is a private corporation, “Vos and the Republicans cannot the power to block Twitter users, they reasoning that “public forums can be suppress people’s speech simply “explicitly or implicitly invoked state found on public or private property.” because they don’t like what’s being authority” and “could not have acted in Conley added that only the defendants’ said . . . [including] on social media.” violation of the plaintiff’s constitutional own tweets, not all the speech tied to He added, “Robin Vos and his cohorts rights but for [their] state authority.” the accounts, including by the public, have tried to run the Legislature Conley further held that Kremer’s constituted government speech. with unprecedented secrecy, to hide and Nygren’s Twitter accounts Finally, Conley turned to the their actions from public scrutiny were intertwined with their public third prong of the three part and suppress the voices of dissent at responsibilities,” including that analysis: whether Kramer, Nygren, every turn.. . . This decision is a clear they used the accounts to “share and Vos committed content based statement to Vos and others that it’s information on legislative matters, discrimination. Conley explained that the people’s government, not their policies, political appearances, and although the government can impose government.” events.” Although Vos had a separate “reasonable time, place and manner account meant for offi cial business, regulations” on speech within a public SCOTT M EMMEL Conley ruled that the function of his forum, it cannot “exclude speech based SILHA BULLETIN E DITOR private account remained “essentially on its content, unless it can meet that the same as Kremer’s and Nygren’s the extraordinarily high burden” of Twitter Accounts: to perform actual and strict scrutiny, meaning the exclusion apparent duties as state assemblyperson was “necessary to serve a compelling
26 Actions by Media Outlets and Companies Raise Ethical Questions n the winter of 2018/2019, several had accused American Media, Inc. upon acknowledgment from the media outlets’ and companies’ (AMI), the National Enquirer’s parent Bezos Parties, released through a practices raised important company, of threatening to publish mutually agreeable news outlet, ethical questions. On Feb. 7, text messages and “intimate photos” affi rming that they have no knowledge 2019, Jeff Bezos, the founder of of himself and former news anchor or basis for suggesting that AMI’s IAmazon.com Inc. (Amazon) and owner Lauren Sánchez, who he was dating, coverage was politically motivated of The Washington Post, accused the unless Bezos publicly announced that or infl uenced by political forces, and National Enquirer’s parent company, AMI’s coverage about him was not an agreement that they will cease American Media, politically motivated. Several media referring to such a possibility.” The ETHICS Inc. (AMI), outlets noted that although President email stated that, in return, AMI would of attempting Donald Trump generally received agree “not to publish, distribute, share, to blackmail favorable coverage by the National or describe unpublished texts and him. Bezos contended in a blog post Enquirer, he often targeted Bezos photos” and “affi rms that it undertook that AMI threatened to publish text and the Post for the newspaper’s no electronic eavesdropping in messages and “intimate photos” of critical coverage of himself and his connection with its reporting and has himself and former news anchor administration. no knowledge of such conduct.” The Lauren Sánchez, who he was dating, On Jan. 9, 2019, Bezos and his wife full blog post is available online at: unless he announced that AMI’s announced that they were divorcing https://medium.com/@jeffreypbezos/ coverage was not politically motivated. after 25 years of marriage, according no thank you mr pecker 146e3922310f. On Feb. 3, 2019, The Washington to Reuters on February 7. The same On Feb. 6, 2019, Business Insider Post prompted both praise and day, the National Enquirer and AMI reported that de Becker had initially criticism from journalists and media CEO David Pecker announced that the targeted Sánchez’s brother, Michael experts after it ran a 60 second supermarket tabloid was publishing Sánchez, an outspoken supporter of advertisement during the Super Bowl alleged intimate text messages between President Trump. On February 10, in which the newspaper articulated the Bezos and Sánchez. The Daily Beast reported that it had importance of journalism and freedom Bezos summarily opened an “multiple sources” identifying Michael of the press in the United States and investigation into the leak, which Sánchez as the source of the leak. The around the world. was led by security consultant Wall Street Journal later reported on On Nov. 27, 2018, Sinclair Broadcast Gavin de Becker, who, following the March 18 that AMI had paid Sánchez Group (Sinclair) garnered renewed investigation, told the media that the $200,000 for the text messages and criticism after the right leaning leak and ensuing coverage by the photos. However, Sánchez denied the company distributed a new two minute National Enquirer was “politically allegations, according to Business “must run” segment defending the motivated,” as reported by Reuters. Insider. use of tear gas on migrants at the U.S. In a Feb. 7, 2019 blog post on online On Feb. 8, 2019, The New York border. On the same day, several media publishing platform Medium titled “No Times reported that the U.S. outlets reported that emails obtained thank you, Mr. Pecker,” Bezos alleged Attorney’s Offi ce for the Southern by a Freedom of Information Act that letters by AMI suggested that the District of New York was reviewing (FOIA), 5 U.S.C. § 552, request by the National Enquirer would “publish the the National Enquirer’s possible Sierra Club, a nonprofi t environmental personal photos [and text messages extortion of Bezos, which would organization, revealed that a producer between Bezos and Sánchez]” unless potentially violate an earlier immunity of the Fox News show Fox & Friends he and de Becker made “the specifi c agreement, which required that AMI had allowed then Environmental false public statement to the press that “commit no crimes whatsoever.” AMI Protection Agency (EPA) Administrator [they] ‘ha[d] no knowledge or basis for was granted immunity in December Scott Pruitt and his team to approve suggesting that AMI’s coverage was 2018 in connection with a $150,000 part of the show’s script. politically motivated or infl uenced by hush money payment AMI gave Finally, on Nov. 1, 2018, The political forces.’” Karen McDougal, the Playboy model Daily Beast reported that Insider Bezos continued, “If we do not agree who claimed she had an affair with Inc. (Insider), the parent company to affi rmatively publicize that specifi c President Trump, according to of Business Insider, had requested lie, they say they’ll publish the photos, CNBC on Dec. 12, 2018. In return that all of its employees sign a new and quickly. And there’s an associated for admitting it had done so, AMI confi dentiality agreement, which threat: They’ll keep the photos on would not be prosecuted for its included a “non disparagement clause” hand and publish them in the future “Trump related efforts” so long as it requiring employees to refrain from if we ever deviate from that lie.” He committed no further crimes for three criticizing the company. added, “Be assured, no real journalists years, according to the Times. As ever propose anything like what is the Bulletin went to press, the U.S. Jeff Bezos Accuses the National happening here[.]” Attorney’s Offi ce had not announced Inquirer of Extortion Bezos included a verbatim any fi ndings in the case. On Feb. 7, 2019, several media copy of an email from AMI deputy In a February 8 statement, AMI said outlets reported that Jeff Bezos, the general counsel Jon Fine to a lawyer it “believe[d] fervently that it acted founder of Amazon.com Inc. (Amazon) representing de Becker, which lawfully in the reporting of the story of and owner of The Washington Post, called for a “public, mutually agreed Questions, continued on page 28 27 Questions, continued from page 27 Abroad Face Threats of Violence and In an October 2018 lawsuit against Incarceration” in the Fall 2018 issue President Trump, literary and human Mr. Bezos.” However, AMI added that of the Silha Bulletin.) De Becker’s rights group PEN American Center, “in light of the nature of the allegations full post is available online at: https:// Inc. (PEN America) contended published by Mr. Bezos, the board www.thedailybeast.com/jeff bezos that the president had “us[ed] the has convened and determined that investigation fi nds the saudis obtained machinery of government to retaliate it should promptly and thoroughly his private information?ref=scroll. or threaten reprisals against journalists investigate the claims. Upon On March 31, 2019, Reuters reported and media outlets for coverage he completion of that investigation, the that AMI, in a statement the same day, dislikes.” PEN America’s complaint board will take whatever appropriate had identifi ed the source of the leak included several examples, including action is necessary.” of the text messages and photos as President Trump “repeatedly call[ing] On March 30, 2019, Ars Technica Michael Sánchez. AMI stated that he for action to punish the online retailer and Fortune magazine reported that had “tipped the National Enquirer off Amazon because Jeff Bezos, its chief de Becker had alleged that Saudi to the affair on Sept. 10, 2018, and over shareholder and CEO, owns [The Arabia’s government had access to the course of four months provided all Washington Post ], whose accurate the private contents of Jeff Bezos’ of the materials for our investigation.” coverage of his Administration the cellphone and, as a result, was the The statement added that there “was President fi nds objectionable.” One source of the leak to the National no involvement by any third party such action was an executive order Enquirer. The allegations were made whatsoever.” directing the U.S. Postal Service in a March 30 post on The Daily Beast. Several media outlets previously to review its fi nancial practices, De Becker wrote, “Our investigators reported that the National Enquirer’s such as the shipping rates it offers and several experts concluded with coverage, and practices in general, had to companies like Amazon. (For high confi dence that the Saudis had been favorable to President Trump. more information on PEN America’s access to Bezos’ phone and gained On Aug. 23, 2018, the Associated lawsuit, see PEN America Files private information.” He added that Press (AP) reported that the National First Amendment Lawsuit Against it was “unclear to what degree, if any Enquirer “kept a safe containing President Trump, Alleges He [the National Enquirer] was aware of documents on hush money payments Retaliated Against Media Outlets the details” of how the information had and other damaging stories it killed and Journalists in “President Trump been obtained. as part of its cozy relationship with Prevails in Two Federal Courts’ First In his post, de Becker cited the Donald Trump leading up to the 2016 Amendment Rulings, Faces New First October 2018 murder of Jamal presidential election,” a practice Amendment Lawsuit” in the Fall 2018 Khashoggi, a prominent Saudi known as “catch and kill.” The AP issue of the Silha Bulletin.) journalist and Washington Post also noted that the National Enquirer On April 10, The Washington columnist. He wrote, “Some Americans had published several stories favoring Post reported that AMI’s board of will be surprised to learn that the Trump over democratic candidates, directors was selling its tabloid brands, Saudi government has been intent on including Hillary Clinton, and had including the National Enquirer, harming Jeff Bezos since last October, endorsed Trump for president in 2016. citing scrutiny by federal prosecutors when the Post began its relentless Additionally, on Feb. 7, 2019, regarding the alleged extortion of coverage of Khashoggi’s murder.” Reuters noted that AMI had “close Bezos, as well as fi nancial diffi culty. De Becker further contended that links with the president of the United According to the Post, the hedge fund “hacking was a key part of the Saudis’ States,” citing the hush money manager whose fi rm controlled AMI ‘extensive surveillance efforts that payment between AMI and McDougal. became “disgusted” with the National ultimately led to the killing of Finally, Business Insider reported on Enquirer’s reporting tactics. On April [Khashoggi],’” citing a March 21, 2019 April 1 that Pecker “has a friendship 18, USA Today reported that the New York Times report, which found with President Trump that dates back National Enquirer had been sold to that in 2017, “Saud al Qahtani — then a to the 1990s,” among other links of AMI James Cohen, CEO of Hudson News, top adviser to Saudi Arabia’s powerful executives to President Trump. a chain of newsstands at airports and crown prince — was tracking Saudi Conversely, Bezos and The bus stations, among other places. dissidents around the world, part Washington Post were the targets of The Washington Post reported that of his extensive surveillance efforts President Trump’s anti press rhetoric, Cohen would pay $100 million for the that ultimately led to the killing of especially after the Post published National Enquirer and the Globe, [Khashoggi].” The Times reported articles critical of the president. another supermarket tabloid. that the Saudi government had used In a Jan. 13, 2019 tweet, President “digital espionage services,” including Trump called Bezos “Jeff Bozo,” as The Washington Post Runs a Super that developed by NSO Group, an reported by The Hill on the same Bowl Commercial Israeli technology fi rm that “creates day. In a separate tweet on January On Feb. 3, 2019, during the Super technology that helps government 13, President Trump wrote, “So sorry Bowl, The Washington Post ran a agencies prevent and investigate to hear the news about Jeff Bozo 60 second advertisement (ad) with terrorism and crime to save thousands being taken down by a competitor a message on the importance of of lives around the globe,” as stated whose reporting, I understand, is far journalism and freedom of the press on the company’s website. (For more accurate than the reporting in in the United States and abroad, more information on the murder his lobbyist newspaper, the Amazon prompting both criticism and praise of Khashoggi, see Washington Post Washington Post. Hopefully the paper from journalists and media experts. Columnist Jamal Khashoggi Killed will soon be placed in better & more The ad began by depicting several in Saudi Consulate in Istanbul in responsible hands!” past events, including the invasion “Journalists in the United States and 28 of Normandy during World War II, that the ad “[was] not gonna change chance for a broader message about Civil Rights protests, and the moon one mind,” but that “[w]hat would the role journalists play in our everyday landing, among others. The ad, which have changed minds is hiring 50 new lives and the risks they take to bring us was narrated by actor Tom Hanks, reporters with that money.” the facts.” contended that in each of these However, some journalists and The Post noted in a February 3 situations, including “when our nation experts defended the Post’s ad. Slate story that the ad was not the fi rst is threatened,” that there is “someone staff writer Henry Grabar noted in a run by a media organization, citing to gather the facts” and “bring you February 4 piece that the Post’s “ad The New York Times ad during the the story . . . no matter the cost.” The money is not coming from a dying Academy Awards in February 2017 ad also showed images of current paper like the East Bay Express, the that contended that “alternative facts reporters, including Anderson Cooper prize winning alt weekly that held the are lies,” targeting the rise of “fake of CNN and CBS News, as well as news.” (For more several journalists who were missing “[The ad demonstrated] the viability information on or killed in 2018 and the beginning of the free press.. . . [It was] not fake news, see of 2019, including Jamal Khashoggi, “Silha Center a prominent Saudi journalist and just . . . for the Post . . . but for Spring Forum Washington Post columnist, who was journalists everywhere, and for every Addresses Ethical murdered on Oct. 2, 2018 inside the Challenges Related Saudi consulate in Istanbul, Turkey. investigation down from Watergate to Fake News” in (For more information on the murder and Syrian war crimes to the scandal the Winter/Spring of Khashoggi, see Washington Post at your school board. It’s an ad for an 2017 issue of the Columnist Jamal Khashoggi Killed Silha Bulletin.) in Saudi Consulate in Istanbul in idea.” The Post also cited “Journalists in the United States and an ad campaign for Abroad Face Threats of Violence and — Henry Grabar, CNN that carried Incarceration” in the Fall 2018 issue of Slate staff writer the tagline “Facts the Silha Bulletin.) fi rst.” The ad concluded by stating that Oakland Police Department and others “Knowing empowers us.. . . Knowing accountable before its entire editorial Sinclair Requires “Must Run” helps us decide.. . . [And k]nowing staff was laid off last month.. . . It’s Defending Use of Tear Gas On keeps us free,” before revealing The coming from one of the few papers Migrants Washington Post ’s logo and slogan that has come out of the digital era On Nov. 27, 2018, several media “Democracy Dies in Darkness.” The full stronger than before, buoyed by the outlets reported that Sinclair Broadcast ad is available online at: https://www. nation’s unhealthy fi xation with news Group (Sinclair), a television station youtube.com/watch?v=ZDjfg8YlKHc. from Washington, deeply supported owner that observers assert has a According to Slate magazine on investigative reporting . . . and an right leaning agenda, distributed a Feb. 4, 2018, the ad cost at least owner who is the richest man in new two minute “must run” segment $5.2 million and was likely closer the world, [Jeff Bezos].” Bezos, the defending the use of tear gas on to $10 million, prompting criticism founder, chairman, CEO, and president migrants at the U.S. Mexico border, from some journalists amidst layoffs of Amazon.com Inc. (Amazon), prompting renewed criticism of the in the journalism industry, including acquired the Post from the Graham company. at BuzzFeed News, Vice News, and family in 2013. Some scholars argued Baltimore based Sinclair owns the Huffi ngton Post in January and the sale led to a turnaround for the or operates 193 stations across the February 2019. Vox reporter Tara paper, according to The Wrap on United States, making it the largest Golshan tweeted on February 3, February 4. television station owner in the nation. “Brb, trying to calculate how many Grabar also contended that the Critics have previously claimed that the jobs $5.25 million could have saved ad had value in that it did “a little company uses it stations to advance a at regional newspapers, Buzzfeed, PR for a beleaguered industry” and mostly right leaning agenda, including HuffPost, Vice etc[.]” demonstrating “the viability of the free through “must run” segments in Los Angeles Times correspondent press.” He further reasoned that the ad which Sinclair sends video segments Matt Pearce tweeted on the same was “not just . . . for the Post . . . but for to the stations it owns and requires day, “This seems like an especially journalists everywhere, and for every that they run them. Past topics have infuriating expense for a company investigation down from Watergate included terrorism news updates, that has: a) tried to take health and Syrian war crimes to the scandal commentators speaking in support of care insurance from part time at your school board. It’s an ad for an President Donald Trump, or speeches employees b) moved everyone toward idea.” from company executives, among other riskier forms of health insurance.” In a February 3 statement, Fred topics. Washington Post reporter Sarah Ryan, publisher and CEO of the Post, On March 31, 2018, Sinclair was Kaplan tweeted, “I’m really proud to defended the ad. “The Super Bowl is a the target of signifi cant criticism work at a newspaper that does this remarkable moment to recognize the after Deadspin, an alternative vital work. But maybe [the] next $10 courage and commitment of journalists sports blog that also provides million could go toward better health around the world that is so essential political commentary, posted a video benefi ts, parental leave, equal pay, and to our democracy.. . . We decided to depicting news anchors from various more jobs for reporters?” seize the opportunity to make this Sinclair owned local broadcast Huffi ngton Post media writer Yashar a milestone moment in our ongoing Questions, continued on page 30 Ali contended in a February 3 tweet campaign.” He added, “This was a 29 Questions, continued from page 29 cannot be intimidated by those willing In a November 29 statement, to use force to get into our country president of the National Association of television outlets repeating the same illegally.” The full segment, as well Hispanic Journalists Hugo Balta called scripted lines about fake news and fair as a full script of the “must run,” the “must run” segment “propaganda” reporting. The New York Times and are available online at: https://www. and “expressed great concern over The Washington Post reported that mediamatters.org/blog/2018/11/27/ confi rmation that [Sinclair] mandated Sinclair had mandated that the script sinclair s latest must run defends another ‘must run’ segment fueling be read by anchors at each of its local tear gassing migrant children warns misplaced hostility toward refugees stations. attempted invasion/222163. seeking asylum.” He further contended In an April 3, 2018 interview on In a Nov. 28, 2018 tweet, Sinclair that “[i]n addition to concerns over the Wisconsin Public Radio (WPR), distanced itself from the segment, credibility of local stations and news Silha Center Director and Silha writing, “The opinions expressed in organizations, the decisions mandated Professor of Media Ethics and Law this segment do not refl ect the views from the corporate level are negatively Jane Kirtley criticized the content of of Sinclair Broadcast Group.” The impacting local journalists.” the segment as “essentially an attack company added in a separate tweet, on . . . journalistic independence,” as well as how the “must run” was Fox & Friends mandated and delivered. She said, “The “In addition to concerns over the Shares Interview main issue I have is when it is basically credibility of local stations and news Scripts with EPA being palmed off to the viewer as organizations, the decisions mandated Chief locally created.. . . [I]t is an issue of On Nov. 27, deception.” (For more information on from the corporate level [by Sinclair] 2018, several the March 2018 “must run” segment are negatively impacting local media outlets, and resulting criticism, see “Sinclair journalists .” including The Broadcasting Group’s “Must Run” Daily Beast Segment Raises Ethical Questions” and The Wrap, — Hugo Balta, in the Winter/Spring 2018 issue of the reported that Silha Bulletin.) National Association of Hispanic Journalists emails obtained On Nov. 28, 2018, Sinclair faced president by a Freedom of renewed criticism after it mandated a Information Act “must run” segment in which Sinclair’s “When Boris’s segments are aired on (FOIA), 5 U.S.C. § 552, request by the chief political analyst and former our stations, they are labeled clearly as Sierra Club, a nonprofi t environmental Trump administration staffer Boris commentary. We also offer our stations organization, revealed that a producer Epshteyn defended U.S. Custom and reporting from the Beltway and beyond of the Fox News’ television show Border Protection’s (CBP) decision that are not partisan or bias[ed] in any Fox & Friends had allowed then to use tear gas at a group of migrants way.” Environmental Protection Agency seeking asylum at the U.S. Mexico However, in a story for Media (EPA) Administrator Scott Pruitt and border on November 26. According Matters on the same day, Matthew his team to approve part of the show’s to The Daily Beast and progressive Gertz, a fellow at Media Matters, said script, prompting criticism from watchdog organization Media Matters he found Sinclair’s defense of Epshteyn observers. for America (Media Matters) on to be disingenuous. “He is one of Experts have previously noted November 27, Epshteyn stated in the a handful of right wingers whose that Fox & Friends had often been segment that the “migrant crisis on our commentary Sinclair forces stations to favorable to President Donald Trump southern border has greatly escalated” run,” Gertz wrote. “He has no natural and his administration, including and “[d]ozens of migrants attacked U.S. audience; his YouTube views are allowing administration offi cials, border enforcement by throwing rocks minuscule.” such Pruitt, to choose the topics of and bottles.” Princeton University professor and interviews. However, emails from Epshteyn also criticized Democrats CNN analyst Julian Zelizer contended May 2017 obtained by the Sierra who denounced the use of tear gas, in a November 28 tweet that Epshteyn Club revealed that a Fox & Friends stating that “this is an attempted “has been a central player in the producer had sent Pruitt’s team a script invasion of our country, period,” Trump conservative media complex” of an upcoming show, according to according to The Daily Beast. He and had “capitalized on the thirst for the Huffi ngton Post on Nov. 27, 2018. continued, “Our border must remain content, as a campaign surrogate, The Associated Press (AP) reported intact and secure. It is not a partisan administration offi cial and Sinclair that the script talked about “a new position to believe that our immigration operative to spread Trumpian [PR].” direction at the EPA ‘after the Obama system is broken and needs to be fi xed. New York University professor Jay administration left behind a huge toxic However, it unfortunately appears that Rosen explained why the “must run” mess. More than 1,300 Superfund sites, there are many on the left who believe segments are problematic. “These which are heavily contaminated, still it is wrong to defend our country and are local stations that advertise require clean ups.’” abide by the rule of law. I would bet themselves as affi liates of ABC, CBS, Screenshots of the email string that many of those same people live NBC, and draw off the credibility of are available online at: https://www. behind walls and locked doors but do local anchors to present themselves as huffpost.com/entry/fox and friends not want to afford the same benefi t to part of the community, with Sinclair scott pruitt questions_n_5bfd7404e4b0 our country as a whole.” HQ in Baltimore forcing delivery of 771fb6beb13b. Epshteyn concluded, “The United these Trump a grams,” he wrote in a States of America should not and November 28 tweet. 30 Several media experts noted that News] missed an opportunity to vendors.” In a statement sent to The although it is common for television provide really important information to Daily Beast, an Insider spokesperson producers to discuss topics in advance the public about what’s actually going said the agreements were “industry with their subjects, the actions by Fox on.” The Huffi ngton Post noted that standard” and had been included in & Friends went too far. In a November Fox News’ Ed Henry had asked Pruitt past versions of company contracts. 27 interview with The Daily Beast, several diffi cult questions in April 2018 Previously, on Dec. 11, 2017, the David Hawkins, a former producer at amidst the investigations. Columbia Journalism Review ( CJR) CNN and CBS, argued that providing On November 27, the AP reported asserted that non disparagement and seeking approval for scripts that Fox News had disciplined provisions had become “boilerplate in is problematic. “Every American the employees who had set up the media contracts, purportedly to protect journalist knows that to provide scripts interview with Pruitt in May 2017, trade secrets and ensure employees or articles to the government for calling the episode “another example of don’t trash their employers.” However, review before publication or broadcast closeness between Fox News and the the report argued that “[e]ven if a is a cardinal sin. It’s Journalism 101,” Trump administration.” The AP noted journalist signs [a non disclosure he said. “This is worse than that. It that Fox News had not revealed the or non disparagement clause], would and should get you fi red from extent of the discipline because it was whistleblower statutes and existing any news organization with integrity.” a “personnel matter.” The network said court rulings still protect them from University of Minnesota Hubbard in a November 27 statement that the retribution if they speak out about School of Journalism and Mass sharing of the script was “not standard illegal behavior,” although employees Communication Professor Sid practice whatsoever and the matter is may still be fearful of getting fi red. Bedingfi eld, a former CNN executive, being addressed internally with those In an interview with The Daily agreed with Hawkins. “I can’t imagine involved.” Beast on Nov. 1, 2018, Silha Center why a high level newsmaker — like Director and Silha Professor of a White House offi cial — would Business Insider Reporters Told Media Ethics and Law Jane Kirtley ever receive a formal pre interview,” They Cannot Speak Critically of criticized the non disparagement Bedingfi eld said. “Those are designed News Outlet clause. “I do not think organizations to ensure that the interview subject On Nov. 1, 2018, The Daily Beast that claim to be in the news business has something relevant to add to the reported that Insider Inc. (Insider), should gag their employees,” she said. story — that it is worth spending time the parent company of Business “After all, journalists are sometimes and resources to conduct the interview. Insider, had requested that all of its stymied in their reporting because a A top White House offi cial who has the employees sign a new confi dentiality source is subject to [a non disclosure power to shape public policy around and proprietary developments agreement].” a particular issue would obviously agreement. Among other provisions, In a Dec. 11, 2017 interview with be relevant. In those interviews, the the new agreement included a CJR, Northwestern University Medill journalist should force the newsmaker “non disparagement clause requiring School of Journalism professor to defend policy decisions, not help sell employees to refrain from ever Jack Doppelt previously contented them.” criticizing the company during or after that there is an irony to silencing In an interview with the Huffi ngton their employment at Insider,” according employees of the news industry. Post on November 27, Elena to Daily Beast reporter Maxwell Tani. “For all the years that journalism Saxonhouse, an attorney for the The contract read, “I agree that, has worried sanctimoniously about Sierra Club, contended that it was during my employment by the the wall between advertising and disappointing that Fox News let Company and at all times thereafter editorial, the wall that is most Pruitt “off the hook,” noting that he (regardless of the reason for often violated is the wall between had resigned from the EPA in July termination), I will not make, or corporate branding and journalistic 2018 after several investigations cause to be made, any disparaging or freedom,” Doppelt said. “The industry’s were launched into his handling of defamatory statements (whether oral ability to be hypocritical on this the agency and 14 months after the or written) concerning the Company, point — either without realizing it interview took place. “The problem is or any of its former, present or future or out of shamelessness — is almost that Pruitt had a lot to answer for and offi cers, managers, directors, members, beyond imagination.” the EPA still does have a lot to answer stockholders, or employees, including for in terms of how they’re letting any statements that could injure, SCOTT M EMMEL the public down and putting polluter impair or damage the relationships profi ts over public health,” Saxonhouse between the Company and any of SILHA BULLETIN E DITOR said. “There’s so much that journalists its offi cers, managers, employees, should be pressing them on.. . . [Fox customers, clients, suppliers or
31 Google Faces Renewed Concerns Regarding Data Privacy in the U.S. and Abroad n January 2019, European Union Forgotten” in the Summer 2018 issue for Freedom of the Press (RCFP), (EU) regulators continued to of the Silha Bulletin, “‘Right to Be the Associated Press (AP), and the grapple with how to regulate Forgotten’ Continues to Develop in the Floyd Abrams Institute for Freedom Google in several areas, including Year Following European High Court of Expression fi led a brief intervening the scope of the “right to be Decision” in the Sumer 2015 issue, in the case, arguing that allowing such Iforgotten” and data privacy. On and “European Union Court Holds worldwide restrictions would lead January 10, EU Advocate General that Citizens Have the ‘Right to Be to many other countries restricting Maciej Szpunar issued a preliminary Forgotten’ from Internet Searches” in Internet access more generally thus opinion limiting the Summer 2014 issue.) leading to censorship. A copy of the the territorial In April 2016, the right to be brief is available online at: https:// DATA PRIVACY scope of the forgotten was also included in the EU’s www.rcfp.org/wp content/uploads/ EU’s established General Data Protection Regulation imported/20161104 Google v CNIL.pdf. individual right to (GDPR), a new set of rules governing Google ultimately appealed the case request search engines remove certain how businesses handle European to the CJEU. (For more information links pertaining to personal information. Union (EU) citizens’ personal data, on Google v. CNIL, see “Right to Szpunar concluded that search engines which took effect on May 25, 2018. Be Forgotten Continues to Create should only be required to prevent Referred to as the “right to erasure,” Challenges for Online Entities” in access to such links stemming from the requirement under the GDPR is not the Summer 2016 issue of the Silha searches taken place within the absolute, but allows individuals to have Bulletin.) EU, not worldwide. On January 21, their personal data erased by companies In his Jan. 10, 2019 opinion, Advocate French data protection authority in certain circumstances, according General Szpunar emphasized that National Commission for Information to the Information Commissioner’s the right to be forgotten must be Technology and Civil Liberties (CNIL) Offi ce (ICO), the United Kingdom’s balanced against other “fundamental announced a $57 million fi ne against (UK) independent body created to rights,” such as the right of the public Google for the company’s lack of uphold information rights. (For more to access information. “If worldwide transparency in violation of the information on the GDPR, see “Courts de referencing were admitted, the EU EU’s privacy law, the General Data in the United Kingdom and United authorities would not be in a position to Protection Regulation (GDPR). States Wrestle with the “Right to Be defi ne and determine a right to receive Forgotten” in the Summer 2018 issue information, still less to strike a balance CJEU Advocate General Concludes of the Silha Bulletin and “The United between that right and the other Scope of “Right to be Forgotten” States, the European Union, and the fundamental rights to data protection Should be Limited to EU, Not Irish High Court Wrangle Data Privacy and to private life, a fortiori because Worldwide Concerns” in the Fall 2017 issue.) such a public interest in having access On Jan. 10, 2019, Court of Justice of The CJEU’s 2014 ruling created to information will necessarily vary, the European Union (CJEU) Advocate signifi cant challenges for search depending on its geographic location, General Maciej Szpunar issued a engines, online content publishers, and from one third State to another,” preliminary opinion in Google v. CNIL news media organizations that sought Szpunar wrote. Case C 507/17, ECLI:EU:C:2019:15 (Jan. to comply with the decision. In May Szpunar also found that the CNIL’s 10, 2019), limiting the territorial scope 2015, the French National Commission worldwide approach created a high of individuals’ right to request removal for Information Technology and Civil risk that other countries would restrict of online information about them, often Liberties (CNIL) formally fi ned Google access to information, creating a referred to as the “right to be forgotten.” €100,000 ($112,000) for failing to de list “race to the bottom.” He continued, Szpunar concluded that search engines results across all of its search engine’s “There would then be a danger that should only be required to “de list” or domain name extensions worldwide. the European Union would prevent prevent access to specifi c links within Google had instead only limited what it individuals in third countries from the EU and not worldwide. removed to relevant results generated having access to information. If an The CJEU established the right from searches on domain names authority within the European Union to be forgotten in its 2014 ruling in corresponding to EU Member States’ could order de referencing on a Google Spain SL, Google, Inc. v. AEPD versions of Google’s search engine, worldwide scale, an inevitable signal and Mario Costeja González Case such as google.fr in France. Google would be sent to third countries, which C 131/12, ECLI:EU:C:2014:317 (May 13, also proposed the company could could also order de referencing under 2014). The court held that European “geo block” or prevent IP addresses their own laws.” Szpunar added, “There citizens could request that search located in the EU Member States from would be a genuine risk of a race to the engines remove links to “inadequate, gaining access to the search results bottom, to the detriment of freedom irrelevant or excessive” content regardless of the version of search of expression, on a European and displayed in response to searches engine used. Google appealed the fi ne worldwide scale.” of the individual’s name. (For more and argued that the French regulator Szpunar therefore concluded that information of the CJEU’s ruling and was over extending its territorial reach search engines should only be required subsequent challenges, see “Courts and censoring the company throughout to remove the links in question from in the United Kingdom and United the world. Several media organizations, results generated from a search States Wrestle with the “Right to Be including the Reporters Committee performed within the EU and not 32 worldwide. Although the Advocate Alphabet Inc., Google’s parent company, personalized advertisements and General’s opinion is not binding on the for violations of the General Data emphasized two reasons for its fi nding. CJEU, it is highly infl uential as the court Protection Regulation (GDPR), a new “First, the restricted committee often follows the Advocate General’s set of rules governing how businesses observes that the users’ consent is not opinion. The full opinion is available handle European Union (EU) citizens’ suffi ciently informed,” the statement online at: http://curia.europa.eu/juris/ personal data, which took effect on read. “Then, the restricted committee celex.jsf?celex=62017CC0507&lang1=en May 25, 2018. The GDPR requires observes that the collected consent is &type=TXT&ancre=. companies clearly explain how data neither ‘specifi c’ nor ‘unambiguous.’” Peter Fleischer, Google’s senior is collected and used, and to obtain The CNIL went on to highlight how privacy counsel, praised the ruling in valid and informed consent. (For users needed to opt out of personalized a January 10 interview with Reuters. more information on the GDPR, see advertisements by deselecting a box “We’ve worked hard to ensure that the “Courts in the United Kingdom and found in the “more options” account right to be forgotten is effective for United States Wrestle with the “Right menu. Europeans, including using geolocation to Be Forgotten” in the Summer 2018 Regarding the penalty, the regulatory to ensure 99 percent effectiveness,” he issue of the Silha Bulletin and “The authority stated that the “severity said. United States, the European Union, of the infringements observed” In a Jan. 10, 2019 interview with and the Irish High Court Wrangle Data justifi ed the $57 million fi ne. The The Guardian, Thomas Hughes, the Privacy Concerns” in the Fall 2017 CNIL added, “Moreover, the violations executive director of UK based free issue.) The CNIL found that Google fell are continuous breaches of the speech advocacy organization Article short of GDPR requirements regarding regulation as they are still observed to 19, stated that he hoped the CJEU transparency and obtaining user date. It is not a one off, time limited would follow Szpunar’s opinion in consent. infringement.” The CNIL’s full statement order to “protect global freedom of In response to complaints from two and order are available online at: expression and prevent Europe from nonprofi t organizations, None of Your https://www.cnil.fr/en/cnils restricted setting a precedent for censorship that Business (NOYB) and La Quadrature du committee imposes fi nancial penalty 50 could be exploited by other countries.” Net, CNIL began investigating Google’s million euros against google llc. As the Bulletin went to press, the CJEU privacy practices on May 25, 2018 — the However, several privacy advocates had not released an opinion. date the GDPR took effect. The noted the fi ne announced was far Previously, on Nov. 2, 2017, Judge organizations also fi led complaints lower than the maximum penalty under Edward J. Davila of the U.S. District against Facebook and its subsidiaries GDPR, which allows for four percent Court for the Northern District of including Instagram and WhatsApp. As of global revenue or, in Google’s case, California, San Jose Division granted a the Bulletin went to press, the CNIL more than $4 billion. “The fi ne is motion brought by Google asking that had not announced any fi nes against immaterial,” Johnny Ryan, the chief the court prevent enforcement of an Facebook and its subsidiaries. policy and industry relations offi cer at order by the Supreme Court of Canada According to the CNIL’s January 21 the web browser Brave, told The New requiring that the search engine delist statement and order, the regulatory York Times on January 21. “But CNIL’s search results that allegedly infringed authority concluded that Google failed decision is very signifi cant because it the intellectual property rights of a to make their data collection and means that Google must stop building British Columbia based technology sharing practices easily accessible advertising profi les about people until it company. Google Inc. v. Equustek and comprehensive. “Essential has properly told them what it is doing Solutions Inc. No. 5:17 cv 04207 EJD information, such as the data processing and received their consent.” (N.D. Cal. 2017). Davila argued that purposes, the data storage periods Several observers suggested the Canadian order “threaten[ed] free or the categories of personal data that the order was a signal that EU speech on the global internet” and used for the ads personalization, are regulators were willing to use the “would eliminate Section 230 immunity excessively disseminated across several GDPR aggressively, especially against for service providers that link to third documents, with buttons and links on Internet companies whose business party websites.” Davila’s full ruling which it is required to click to access models depend on data collection. can be found online at: https://www. complementary information,” the “We are very pleased that for the eff.org/fi les/2017/11/02/2017 11 02_ regulatory authority wrote. “Users are fi rst time a European data protection order_granting_dckt_47_0.pdf. (For not able to fully understand the extent authority is using the possibilities more information on Google Inc. v. of the processing operations carried out of GDPR to punish clear violations Equustek Solutions Inc., see “Federal by Google.” of the law,” Austrian data privacy Judge Blocks Canadian Supreme Court The CNIL emphasized the company’s activist Maximillian Schrems told The Order Requiring Good to Delist Search size and large variety of services, Washington Post on January 21. “It is Results” in the Fall 2017 issue of the warning that Google’s collection important that the authorities make Silha Bulletin.) practices could be “particularly massive it clear that simply claiming to be and intrusive.” The products “can compliant is not enough.” Schrems is Google Fined $57 Million for reveal important parts of [consumer’s] best known for his lawsuit leading to Violations of the General Data private life since they are based on a the replacement of the U.S. EU Safe Protection Regulation huge amount data, a wide variety of Harbor framework with the EU U.S. On Jan. 21, 2019, the National services and almost unlimited possible Privacy Shield, which governs personal Commission for Information combinations,” the statement read. data transfers across the Atlantic Technology and Civil Liberties (CNIL), The regulator also found that Ocean, as well as several additional the French data protection authority, Google did not properly obtain users’ commitments by U.S. government announced a $57 million fi ne against consent for the purpose of delivering Google, continued on page 34 33 Google, continued from page 33 Pichai had testifi ed before the U.S. service prohibited publishers from House of Representatives Judiciary placing search ads from other online agencies concerning surveillance of Committee. Committee members asked ad brokers like Microsoft and Yahoo individuals in the United States. (For questions on a range of topics, including on their search results page. The more information on Schrems and the hate speech, alleged bias, privacy, and Commission also noted “Google was Privacy Shield, see “The United States, diversity. During the hearing, Pichai told by far the strongest player in online the European Union, and the Irish High lawmakers that the industry would be search advertising intermediation in Court Wrangle Data Privacy Concerns” better off “with more of an overarching the European Economic Area, with a in the Fall 2017 issue of the Silha data protection framework for users.” market share above 70% from 2006 to Bulletin.) (For more information on proposed 2016.” The full press release is available In a January 21 interview with The federal data privacy frameworks, see online at: http://europa.eu/rapid/press New York Times, Raphaël Dana, a “Facebook, Google Fail to Protect release_IP 19 1770_en.htm. partner at the Paris law fi rm Frieh Users’ Data; Tech Companies and In response to the fi ne, Kent Walker, Associés, contended that Silicon Valley Federal Government Pursue Federal Google’s senior vice president of Global should be mindful of the order. “This Data Privacy Frameworks” in the Fall Affairs, released a statement agreeing is going to change the perspective 2018 issue of the Silha Bulletin.) with the Commission’s emphasis on between the profi ts that Internet Nevertheless, Google faced an fair markets. “We’ve always agreed companies are able to make from the additional fi ne regarding its actions that healthy, thriving markets are in data of users, and the risk of being related to EU citizens on March 20 when everyone’s interest. We’ve already sanctioned with fi nes,” Dana told the the European Commission fi ned the made a wide range of changes to our Times . search engine €1.5 billion ($1.7 billion) products to address the Commission’s On January 23, Google defended its for antitrust violations stemming from concerns,” Walker wrote. “Over the next privacy practices and announced plans the company’s online advertising few months, we'll be making further to appeal the fi ne. “We’ve worked hard practices. European regulators updates to give more visibility to rivals to create a GDPR consent process for concluded that Google had violated in Europe.” personalized ads that is as transparent anti trust rules by imposing unfair terms In a March 20 interview with Wired , and straightforward as possible, on companies that license the use of University of Tennessee law professor based on regulatory guidance and Google’s search bar embedded in their Maurice Stucke questioned whether user experience testing. We’re also websites. The Commission noted in a the United States would follow the concerned about the impact of this March 20 press release that Google’s European Commission’s lead. “The key ruling on publishers, original content “misconduct lasted over 10 years and thing now is, what’s the United States creators and tech companies in Europe denied other companies the possibility going to do to step up to the plate?” and beyond. For all these reasons, to compete on the merits and to we’ve now decided to appeal,” a Google innovate — and consumers the benefi ts spokesperson said in a statement to SARAH W ILEY of competition.” reporters. SILHA R ESEARCH A SSISTANT The Commission found that starting Observers also noted that on in 2006 Google’s AdSense for Search Dec. 11, 2018, Google CEO Sundar
The Silha Bulletin is available online at the University of Minnesota Digital Conservancy.
Go to: http://conservancy.umn.edu/discover?query=Silha+Bulletin to search past issues.
34 Facebook Faces Continued Scrutiny Over Data Privacy and Cambridge Analytica Scandal n December 2018, Facebook Google Fail to Protect Users’ Data; suddenly denied developers, including continued to face scrutiny over Tech Companies and Federal Six4Three, access to user data, its actions and policies regarding Government Pursue Federal Data according to Ars Technica on Nov. 26, privacy and user information. On Privacy Frameworks” in the Fall 2018 2018. Dec. 5, 2019, a United Kingdom issue of the Silha Bulletin.) Superior Court of California, San I(UK) Parliament committee published Mateo County Judge V. Raymond numerous confi dential emails and British Parliament Releases Trove Swope had previously placed the internal Facebook documents of Internal Facebook Documents, internal documents under seal, as collected as part Highlighting Data Practices in Lead reported by Bloomberg on October 11. of its investigation Up to Cambridge Analytica Scandal However, Ars Technica reported that DATA PRIVACY into the social On Dec. 5, 2019, the United DCMS chair Damian Collins seized the network’s Kingdom (UK) Parliament Digital, documents from Kramer in London previous Culture, Media and Sport Committee after telling Kramer he would be found interactions with political data fi rm (DCMS) published over 250 pages in contempt if he failed to do so. Cambridge Analytica. On Dec. 18, 2019, of confi dential emails and internal Collins emphasized the DCMS’s The New York Times released a report Facebook documents collected as need for the documents in a November based on a separate leak of internal part of its investigation into the 24 interview with The Guardian. Facebook documents. Meanwhile, on social network’s previous work with “We have very serious questions for December 19, the Attorney General for Cambridge Analytica. Facebook. It misled us about Russian the District of Columbia fi led the fi rst The documents offered insight involvement on the platform. And it lawsuit from U.S. regulators against into how the social network handled has not answered our questions about Facebook for its actions during the privacy controls and user data leading who knew what, when with regards March 2018 Cambridge Analytica up to the Cambridge Analytica scandal. to the Cambridge Analytica scandal. scandal. The internal documents included We have followed this court case The Cambridge Analytica scandal several emails from Facebook CEO in America and we believed these came to light in March 2018 after Mark Zuckerberg and appeared to documents contained answers to some several news outlets reported that show that Facebook granted access to of the questions we have been seeking Facebook was aware that the political businesses and other third parties to about the use of data, especially by data fi rm had gained unauthorized use data in exchange for advertising external developers,” he said. access to personal information of buys according to The Washington Collins also defended the decision millions of Facebook users in 2015. Post on December 5. Observers noted to publish the documents to the public Cambridge Analytica obtained the that such evidence contradicted under UK parliamentary privilege data from a Facebook app called Facebook’s claim that the social in a series of December 5 tweets. “I “thisisyourdigitallife,” developed by network did not sell user information. believe there is considerable public Cambridge University researcher In a December 5 statement on its interest in releasing these documents. Aleksander Kogan. The app paid “Newsroom Blog,” Facebook argued They raise important questions about Facebook users to complete a that the documents released were how Facebook treats users data, personality quiz and informed them “cherrypicked.” “The set of documents, their policies for working with app that user profi le data would be by design, tells only one side of the developers, and how they exercise collected for academic purposes. story and omits important context,” their dominant position in the social Kogan’s data collection began in 2014, Facebook stated. “We’ve never sold media market,” Collins said. and only about 270,000 Facebook users people’s data.” The full statement is In a December 5 interview with consented to sharing their Facebook available online at: https://newsroom. The Washington Post, Ashkan Soltani, profi le data with the app. However, the fb.com/news/2018/12/response to a former technologist at the Federal app also harvested data from profi les six4three documents/. Several of the Trade Commission (FTC), asserted of the users’ friends, even though the documents and the DCMS report that the documents released by friends had not consented to data are available online at: https://www. DCMS “highlight[] areas in which the collection. parliament.uk/documents/commons company was knowingly deceptive.” Ultimately, more than 87 million committees/culture media and He added, “It speaks to how both raw data profi les were shared with sport/Note by Chair and selected disingenuous the company is, and Cambridge Analytica. Both The New documents ordered from Six4Three. how anti competitive some of their York Times and The Observer reported pdf. practices are,” Soltani said. that Cambridge Analytica, which had On Nov. 24, 2018, The Guardian In late April 2019, several media received substantial funding from reported that the DCMS obtained outlets reported that Facebook and Republican donor Robert Mercer, the documents from Ted Kramer, the the FTC were negotiating a possible planned to use the data to develop founder of U.S. software company settlement regarding the FTC’s comprehensive psychographic Six4Three during the discovery investigation into Cambridge Analytica. profi les of individuals with the intent process of a lawsuit between his According to The Washington Post to infl uence voting behaviors. (For company and Facebook. Six4Three on April 24, the FTC’s probe sought to more background on the Cambridge claimed Facebook violated antitrust determine if Facebook’s entanglement Analytica scandal, see “Facebook, laws when the social network Facebook, continued on page 36 35 Facebook, continued from page 35 In a December 18 statement on of Columbia, is the fi rst from U.S. its “Newsroom Blog,” Facebook regulators stemming from the social with Cambridge Analytica violated a emphasized that it had received network’s entanglement with voter 2011 agreement, known as a consent consent from users when they profi ling fi rm Cambridge Analytica. decree, with the U.S. government, signed into Facebook through The complaint, citing the Cambridge which required Facebook to improve different applications. “None of Analytica scandal as an example, its privacy practices. In an April 24 these partnerships or features gave asserted that “failures are highlighted earnings report, Facebook budgeted companies access to information through Facebook’s lax oversight $3 to $5 billion for the fi ne, according without people’s permission, nor did and enforcement of third party to the Post. As the Bulletin went to they violate our 2012 settlement with applications.” The complaint press, the FTC had not announced a the FTC,” Konstantinos Papamiltiadis, highlighted several fi ndings, including settlement. Facebook’s Director of Developer that Facebook “misrepresented the Platforms and Programs, wrote in extent to which it protects consumers’ Internal Documents Show the post. The social network also personal data” and that the company’s Facebook Gave Several Tech highlighted that most of the features privacy settings were “ambiguous, Companies Access to Detailed User appearing in the report “are now confusing, and diffi cult to understand.” Information gone.” Facebook’s full statement is The complaint further alleged On Dec. 18, 2019, The New York available online at: https://newsroom. that Facebook “failed to adequately Times released a report based on fb.com/news/2018/12/facebooks disclose to [its] consumers that their a second leak of several hundred partners/. data can be accessed without their internal Facebook documents According to The Guardian on knowledge or affi rmative consent by originated in 2017, prompting renewed December 19, several of the companies third party applications downloaded concerns from observers about that appeared in the report seemed by their Facebook friends,” as well Facebook’s actions related to data surprised to know they had such as failing to disclose to affected privacy. access to user information. Both Apple customers that their data “was According to the Times , the and Spotify told The Guardian that improperly harvested and used by documents exposed how Facebook their companies were not aware of their party applications and others.” allowed several large technology such access. Netfl ix also replied to the Finally, the complaint asserted that companies, including Apple, Spotify, report in a December 18 tweet, writing Facebook “failed to disclosure that it and Microsoft, to have access to that the content streaming company granted certain companies, many of users’ personal data as part of their “never asked for, or accessed, anyone’s whom were mobile device makers, “partnership” programs to integrate private messages.” special permissions that enabled Facebook into the companies’ mobile Damian Collins, Chair of the United those companies to access consumer applications and websites. The Times Kingdom (UK) Parliament Digital, data and override consumer privacy report further found that Facebook Culture, Media and Sport Committee settings.” granted these companies the ability (DCMS) told The Guardian that the The full complaint is available to read, write, and delete private report showed “that Facebook offers online at: https://oag.dc.gov/sites/ messages between users and allowed preferential access to user data to default/fi les/2018 12/Facebook access to names, phone numbers, and some of its major corporate partners.” Complaint.pdf. As the Bulletin went to email addresses of a user’s friends, Collins added that the UK Committee press, no actions had been announced according to the report. remained “concerned as well about related to the lawsuit. The Times reported that the Facebook’s ability to police what In a December 19 press conference, records were generated in 2017 “by happens to user data when it is shared Racine told reporters that his offi ce the company’s internal system for with developers[.]” had “discussions with a number tracking partnerships, provide the of other states that are similarly most complete picture yet of the social D.C. Attorney General Files interested in protecting the data network’s data sharing practices.” Lawsuit Against Facebook for and personal information of their The report added that the documents Failing to Protect Users’ Privacy consumers,” though he cautioned “underscore[d] how personal data has On Dec. 19, District of Columbia there is no formal agreement for become the most prized commodity Attorney General Karl Racine them to proceed jointly, according to of the digital age, traded on a vast announced a lawsuit against Facebook The Washington Post . Facebook told scale by some of the most powerful for “failing to protect the privacy of reporters they were “reviewing the companies in Silicon Valley and its users” in violation of the District complaint and [looking] forward to beyond.” The full report is available of Columbia’s Consumer Protection continuing discussions with attorneys online at: https://www.nytimes. Procedures Act (CCPA), D.C. Code general in D.C. and elsewhere.” com/2018/12/18/technology/facebook §§ 28 3901. The lawsuit, fi led in privacy.html. the Superior Court of the District SARAH W ILEY SILHA R ESEARCH A SSISTANT
36 The Reporters Committee for Freedom of the Press Prevails in a FOIA Lawsuit Regarding FBI Impersonation of Documentary Filmmakers n March 1, 2019, Judge documentary fi lm crew in order to ‘professional credentials, websites and Rudolph Contreras of the investigate cattle rancher Cliven D. business cards’ used by FBI agents in U.S. District Court for the Bundy and his followers who were connection with the impersonation District of Columbia ruled involved in a 2014 armed standoff of a documentary fi lmmaker and/or a in favor of the Reporters between Bundy and law enforcement. documentary fi lm crew since January OCommittee for Freedom of the Press The standoff followed the U.S. Bureau 1, 2010.” (RCFP), which had fi led a motion for of Land Management’s (BLM) attempt The FBI summarily split RCFP’s summary judgement challenging the to remove several hundred head request into four distinct groups. For Federal Bureau of Bundy’s cattle from public land one group, which included Items 2, 3, of Investigation’s in 2014. Bundy and several of his and 5, the FBI cited FOIA Exemption FOIA (FBI) refusal to supporters were eventually arrested 7(E), which, according to the DOJ’s confi rm or deny and prosecuted in connection with the website, “affords protection to all law the existence of standoff. enforcement information that ‘would records related to the impersonation of To impersonate documentary disclose techniques and procedures documentary fi lm workers, known as fi lmmakers following the standoff, for law enforcement investigations a “Glomar” response. Contreras found FBI agents used fake professional or prosecutions, or would disclose that the response, which was pursuant credentials, websites, and business guidelines for law enforcement to the Freedom of Information cards “to lend credibility to their investigations or prosecutions if (FOIA), 5 U.S.C. § 552, was not fake documentary fi lm company” such disclosure could reasonably be appropriate because impersonation as part of “Operation Longbow.” In expected to risk circumvention of of documentary fi lmmakers was a court documents, the government the law.’” The FBI issued a Glomar law enforcement technique already acknowledged that Bundy had “spoken response, meaning it “neither commonly known to the public, and to undercover FBI agents in a hotel confi rm[ed] nor den[ied]” the existence that acknowledging the existence room ‘under circumstances designed of the information sought. or absence of related records would to make Bundy believe that he was The FBI also asserted that not undermine the effectiveness of participating in [a] documentary.’” FOIA Exemption 7(A) prevented the technique. Reporters Committee Additionally, in March 2017, an FBI the disclosure of another group, for Freedom of the Press v. agent acknowledged during court Items 1 and 4. FOIA Exemption Federal Bureau of Investigation, testimony that FBI agents had 7(A) authorizes the withholding of No. 17 1701 RC (D.D.C. 2019). impersonated a documentary fi lm “records or information compiled In some instances, a FOIA request crew. for law enforcement purposes, but seeking records “which would indicate On April 12, 2017, RCFP submitted only to the extent that production that a particular political fi gure, an eight part FOIA request, with of such law enforcement records or prominent businessman or even just an Items 1 through 5 involving Operation information . . . could reasonably be ordinary citizen has been the subject of Longbow and the prosecution of expected to interfere with enforcement a law enforcement investigation” may Bundy and one of his followers, proceedings,” according to the DOJ require a federal agency to “fl atly refuse Gregory Burleson. More specifi cally, website. to confi rm or deny whether such records Item 1 sought all records that In response to Items 6 and 7, the exist,” according to a 1986 report by included the terms “Longbow” or FBI responded that RCFP’s request the U.S. Department of Justice (DOJ) “Longbow Productions,” the name of did not contain enough descriptive Offi ce of Information Policy (OIP). the fake fi lm company, since Jan. 1, information to permit a search, This response, referred to as “Glomar 2010. Items 2 and 4 sought records while the processing of Item 8 denial” or a “Glomar response” was referencing the impersonation of would be delayed “due to unusual fi rst judicially recognized in Phillippi v. documentary fi lm workers in the circumstances.” CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976), investigations of Burleson and Bundy, In response, RCFP fi led a lawsuit according to the OIP report. In Phillippi, respectively. Item 3 sought an October on Aug. 21, 2017 in federal court in the U.S. Court of Appeals for the D.C. 2014 video recording of Burleson the District of Columbia. The FBI Circuit held that the Central Intelligence during the operation. Finally, Item summarily modifi ed its responses, Agency (CIA) could refuse to confi rm 5 sought “a release form referenced now providing a Glomar response or deny its ties to business magnate, in a government motion in Bundy’s pursuant to Exemption 7(E) for “any fi lm director, and pilot Howard Hughes’ criminal case.” records referencing the impersonation submarine retrieval ship, which was Items 6 8 sought materials of documentary fi lm workers, or of any named the Glomar Explorer. The full outside the scope of the Bundy records of credentials, websites, or 1986 report is available online at: https:// standoff investigation, including business cards used in connection with www.justice.gov/oip/blog/foia update any and all “records of the FBI’s such an impersonation, in connection oip guidance privacy glomarization. policies and practices concerning with any criminal investigation outside The case before Contreras arose in the impersonation of documentary of the two for which the use of the 2017 when it was publicly disclosed fi lmmakers and/or documentary fi lm that the FBI had impersonated a crews,” as well as “[r]ecords of any FOIA, continued on page 38 37 FOIA, continued from page 37 documentary fi lm crew in order to “Reasonable” Search of Records investigate Bundy. Regarding Media Impersonation” in technique has already been revealed,” Contreras also pointed to the 2014 the Winter/Spring 2018 issue of the according to Judge Contreras. revelation by the FBI that in 2007 it Silha Bulletin, “Federal Investigators’ On Sept. 14, 2018, RCFP fi led a had created a fake Associated Press Deceptive Use of Media Raises cross motion for summary judgement (AP) news article in order to lure a Concerns” in the Fall 2014 issue regarding the new Glomar response. bomb threat suspect into downloading and Records Reveal that FBI Broke The organization argued that the FBI’s malware onto his computer. Internal Rules when Impersonating Glomar response and application of Seattle area Timberline High School the Associated Press in “Canadian Exemption 7(E) were “inappropriate had received several anonymous and U.S. News Organizations Raise because law enforcement bomb threats, prompting local law Complaints over Law Enforcement impersonation of documentary enforcement to call in the FBI’s Seattle Offi cers Impersonating Journalists” in fi lm workers is already known and the Winter/Spring acknowledging the existence or “[D]etermination of whether 2016 issue.) absence of records would not risk Finally, circumvention of the law.” disclosure of any information in the Contreras held In his March 1, 2019 opinion, documents sought [related to the FBI’s that Exemption Contreras fi rst determined that the impersonation of journalists] could 7(E) did not FBI had made a “‘threshold’ showing warrant a Glomar ‘that the records were compiled for a cause harm must be made utilizing response because law enforcement purpose.’” Second, the standard FOIA tools applied on a revealing the Contreras held that the FBI had existence of adequately demonstrated the “nexus document-by-document basis.” impersonation of between the records sought and law documentary fi lm enforcement activities,” which was not — Judge Rudolph Contreras, workers would not disputed by RCFP. U.S. District Court for the District of Columbia reduce or nullify Third, Contreras determined the technique’s whether the FBI’s Glomar response effectiveness. pursuant to Exemption 7(E) was Division cybercrime experts. An FBI Contreras reasoned that the disclosure appropriate. Contreras cited Electronic agent subsequently identifi ed himself of such records “would not allow Privacy Information Center. v. NSA, as an AP “Staff Publisher” in order criminals to discern whether or not in which the D.C. Circuit held that a to convince the suspect to click on the FBI has used the technique to federal agency “may issue a Glomar the link to the fake AP story, which investigate their own, specifi c criminal response when ‘to answer the FOIA enabled the FBI to track the suspect’s activity” because the criminal would inquiry would cause harm cognizable location, leading to an arrest. only learn of “the existence of an under’ an applicable statutory The revelation of the impersonation unquantifi ed number of records.” exemption.” 678 F.3d 926, 931 (D.C. led RCFP and the AP to fi le several Furthermore, acknowledging the Cir. 2012). FOIA requests, which eventually led existence of records “would not Contreras held in this case that to the release of documents regarding provide any information about the “Exemption 7(E) does not justify DOJ policies regarding impersonation frequency of the technique’s use.” the FBI’s refusal to confi rm or deny of the news media, prompting Contreras added that the information the existence or nonexistence of additional media attention. However, was “already in the public sphere” and responsive records.” He explained that when the FBI had failed to respond to that criminals would already know that in order for an agency to invoke the some of RCFP’s and the AP’s requests, the FBI had used the technique in the portion of Exemption 7(E) regarding the organizations fi led a lawsuit past and would perhaps do so in the “techniques and procedures,” the claiming the agency had conducted future. agency must satisfy a two part inquiry an inadequate records search. Contreras concluded that by showing “that the records contain Ultimately, on Dec. 15, 2017, the U.S. “determination of whether disclosure law enforcement techniques and Court of Appeals for the D.C. Circuit of any information in the documents procedures that are generally unknown ruled in favor of the plaintiffs, fi nding sought could cause harm must be to the public . . . [and that] disclosure that the FBI failed to demonstrate made utilizing the standard FOIA tools could reasonably be expected to risk that it “conduct[ed] a search for the applied on a document by document circumvention of the law.” requested records, using methods basis.” His full ruling is available online Contreras found that the which can be reasonably expected to at: https://www.rcfp.org/wp content/ impersonation of documentary produce the information requested,” uploads/2019/03/D.E. 29_Glomar fi lmmakers is a technique “generally overturning a district court ruling. Opinion.pdf. known to the public,” meaning the Reporters Committee for Freedom As the Bulletin went to press, the FBI’s Glomar response “declining of the Press v. Federal Bureau of DOJ had not announced whether it to acknowledge the existence or Investigation, 877 F.3d 399 (D.C. Cir. would appeal the ruling. absence of records relating to it 2017). under Exemption 7(E) fails at the fi rst (For more information on the SCOTT M EMMEL step[.]” He pointed to the signifi cant “Timberline Investigation” and the SILHA BULLETIN E DITOR media attention given to the disclosure ensuing litigation, see “D.C. Court by the FBI that it had posed as a Finds FBI Failed to Conduct a
38 Journalists and Other Travelers Targeted at U.S. Borders, Creating More Confusion and Lawsuits n the winter of 2018/2019, the concerns about their “journalistic work jobs in violation of the First Amendment, targeting of journalists and other product[s].” On May 9, 2018, U.S. District among other arguments. travelers at U.S. borders by U.S. Court for the District of Massachusetts The secret database included Customs and Border Protection Judge Denise J. Casper denied a motion the names, birthdates, countries of (CBP) continued to be the subject by CBP, DHS, and Immigration and commencement, and photographs of Iof media reports, lawsuits, and advocacy Customs Enforcement (ICE) to dismiss 10 journalists, a U.S. attorney, and 48 organization action. On March 6, 2019, the case, fi nding that the plaintiffs other people from the U.S. and abroad NBC 7 in San Diego reported that the had plausibly alleged First and Fourth labeled as “organizers,” “instigators,” U.S. government Amendment claims. or their roles “unknown.” The database SEARCHES had created a Although some federal courts, also indicated whether an “alert” had AND SEIZURES secret database including the District of Massachusetts, been placed on one of the individuals, of journalists and the District of Maryland, and the U.S. as well as whether they were arrested, activists tied to Courts of Appeals for the Fourth interviewed, or had had their immigrant the “migrant caravan,” a group of over and Ninth Circuits, have ruled in visa canceled. KNSD TV, the NBC 5,000 migrants seeking asylum at the favor of travelers’ First and Fourth affi liate in San Diego, reported on March U.S. Mexico border in November 2018. Amendment rights, generally fi nding that 6 that federal agents had questioned or The revelation prompted criticism seizures of electronic devices require arrested at least 21 of the “organizers” from several civil liberties and media “reasonable suspicion,” the Eleventh or “activists.” According to Reporters advocacy organizations, which argued Circuit has ruled against travelers’ without Borders (RSF) on March 7, that the secret database potentially Fourth Amendment rights, fi nding that 2019, the database was used by U.S. violated the First Amendment. “reasonable suspicion” is not necessary. Customs and Border Protection (CBP), Meanwhile, on Oct. 31, 2018, Haisam (For more information on lawsuits Immigration and Customs Enforcement Elsharkawi, a U.S. citizen of Egyptian by travelers against CBP, as well as (ICE), U.S. Border Patrol, and the descent, fi led a lawsuit in the U.S. federal court rulings, including Casper’s, Federal Bureau of Investigation’s (FBI) District Court for the Central District of regarding warrantless searches and San Diego offi ce. California against the United States, U.S. seizures of electronic devices at U.S. The documents revealing the Department of Homeland Security (DHS) borders, see “Ninth Circuit Ruling and database, which were obtained by Secretary Kirstjen Nielsen, and several Federal Lawsuit Target U.S. Customs and NBC 7 from a Department of Homeland CBP agents, alleging that being detained Border Protection for First and Fourth Security (DHS) source on the condition at the Los Angeles International Airport Amendment Violations” in the Fall of anonymity, were titled “San Diego (LAX), as well as the subsequent search 2018 issue of the Silha Bulletin, “U.S. Sector Foreign Operations Branch: of his cell phones, constituted violations Customs and Border Protection Actions Migrant Caravan FY 2019, Suspected of his First and Fourth Amendment Continue to Raise First and Fourth Organizers, Coordinators, Instigators rights. On Jan. 30, 2019, fi lmmaker Amendment Questions” in the Summer and Media” and were dated Jan. 9, Saeed Taji Farouky’s cell phone was 2018 issue, “Civil Rights Organizations, 2019. The full documents, which searched after he was stopped by Federal Agency, and House of contain screenshots of the database, border authorities after arriving in the Representatives Raise Different Issues are available online at: https://www. United States on a fl ight from the United Regarding Searches at U.S. Borders” in nbcsandiego.com/multimedia/ Kingdom (UK). the Fall 2017 issue, and “U.S. Customs PHOTOS Leaked Documents to NBC 7 Finally, the growing number of and Border Protection Searches of Investigates 506782041.html. similar searches and seizures prompted Electronic Devices, Data at U.S. Borders Additionally, the anonymous DHS action from the Committee to Protect Raise Privacy and Legal Concerns” in the source told NBC 7 that CBP agents Journalists (CPJ), Reporters Without Summer 2017 issue.) “also created dossiers on each person Borders (RSF), and the American Bar listed.” The source added, “We are a Association (ABA). NBC 7 in San Diego Reveals criminal investigation agency, we’re not The searches of Elsharkawi’s and Secret Tracking of Journalists an intelligence agency.. . . We can’t create Farouky’s cell phones were not the and Immigration Advocates by the dossiers on people and they’re creating fi rst instances of travelers asserting Federal Government dossiers. This is an abuse of the Border First and Fourth Amendment rights On March 6, 2019, NBC 7 in San Diego Search Authority.” against warrantless border searches. reported that it had obtained documents According to NBC 7, several For example, on Sept. 13, 2017, the revealing that the U.S. government had journalists who went to the U.S. Mexico American Civil Liberties Union (ACLU), “created a secret database of activists, border to cover the caravan reported the Electronic Frontier Foundation journalists, and social media infl uencers” that they were subjected to secondary (EFF), and the ACLU of Massachusetts tied to the “migrant caravan,” a group screenings and questioning. Several fi led a complaint on behalf of 11 of over 5,000 migrants seeking asylum also said that they “felt they had travelers, whose electronic devices were at the U.S. Mexico border in November become targets of intense inspections searched and, in some cases, seized 2018. The disclosure of the secret and scrutiny by border offi cials.” by CBP agents. Among the travelers database raised signifi cant concern For example, photojournalist Ariana were two journalists, a journalism from media experts and advocates Drehsler told NBC 7 on March 6 that she student, and an independent fi lmmaker, who contended that such surveillance raising heightened First Amendment prevents journalists from doing their Borders, continued on page 40 39 Borders, continued from page 39 doing their jobs, nor can they be used searched him. The agent pulled as an arm of federal law enforcement Elsharkawi’s cell phone out of his pocket faced secondary inspections three times investigations.” and requested that he unlock it. When and was asked questions by CBP about The revelations about the secret Elsharkawi refused, he was handcuffed who she saw and photographed while in database also prompted a March and escorted to a separate part of the Tijuana, Mexico. She added that on one 7, 2019 letter from U.S. House of airport. occasion, she was told to leave a room Representatives Committee on After being interrogated and held in without her gear and electronic devices, Homeland Security Chairman Bennie a holding cell, Elsharkawi unlocked his though she did not believe they were G. Thompson (D Miss.) to CBP phone and agreed to allow a DHS agent searched. Commissioner Kevin McAleenan. to search it. A second cell phone, which NBC 7’s report concluded by stating The letter contended that CBP’s was in Elsharkawi’s carry on and was that although CBP “has the authority to “targeting (of) journalists, lawyers, and used primarily for business, was already pull anyone into secondary screenings” advocates . . . raises questions about unlocked and was searched by the same the documents demonstrated that possible misuse of CBP’s border search agent, according to the complaint. the agency “is increasingly targeting authority and requires oversight to The complaint fi rst cited CBP’s journalists, attorneys, and immigration ensure the protection of Americans’ legal Directive No. 3340 049A, titled “Border advocates.” and constitutional rights.” Thompson Searches of Electronic Devices,” a new In an email to NBC News following requested “information about this policy passed in January 2018 revising its the report, CBP defended the list, troubling practice, which raises serious 2009 directive on searches and seizures asserting that the all the individuals legal and constitutional questions.” The of electronic devices at U.S. borders. in the database “were present during full letter is available online at: https:// The new policy allows CBP agents, when violence that broke out at the border in www.nbcsandiego.com/news/local/ searching an electronic device, to only November [2018].” Critics Blast Secret US Government examine information “that is resident American Civil Liberties Union Surveillance of Journalists Attorneys upon the device and accessible through (ACLU) Speech, Privacy, and Technology and Border Activists 506860971.html. the device’s operating system or through Project staff attorney Esha Bhandari other software, tools, or applications,” condemned the use of the database in Two Travelers’ Electronic Devices meaning agents may not “intentionally a March 6 statement. She said, “This Searched at U.S. Borders use the device to access information that is an outrageous violation of the First On Oct. 31, 2018, Haisam Elsharkawi is solely stored remotely.” Thus, agents Amendment. The government cannot fi led a lawsuit in the U.S. District Court cannot search for information stored in use the pretext of the border to target for the Central District of California the cloud. activists critical of its policies, lawyers against the United States, U.S. Signifi cantly, the policy differentiates providing legal representation, or Department of Homeland Security (DHS) a “basic search” from an “advanced journalists simply doing their jobs. We Secretary Kirstjen Nielsen, and several search.” A basic or “manual” search are exploring all options in response.” U.S. Customs and Border Protection is that in which an agent, “with or As the Bulletin went to press, the ACLU (CBP) agents after he was detained at without suspicion, . . . examine[s] an had not announced any legal action the Los Angeles International Airport electronic device” including reviewing regarding the secret database. (LAX). Elsharkawi, a U.S. citizen, alleged and analyzing information. Conversely, In a March 7 statement, the Society that the search of his two cell phones, an advanced or “forensic” search is that of Professional Journalists (SPJ) also constituted violations of his First and in which an agent “connects external expressed “outrage” at the use of the Fourth Amendment rights. Meanwhile, equipment, through a wired or wireless database. “This is a disturbing pattern on Dec. 23, 2018, fi lmmaker and director connection, to an electronic device not of activity that prevented journalists Saeed Taji Farouky was also stopped by merely to gain access to the device, from doing their jobs of informing the border authorities when he arrived in the but to review, copy, and/or analyze its public about what is happening at our United States after traveling abroad. contents.” The new policy requires that border,” said SPJ National President J. Elsharkawi’s lawsuit arose on Feb. an agent have “reasonable suspicion of Alex Tarquinio in the statement. “Alerts 9, 2017 when he was boarding a fl ight activity in violation of the laws enforced were placed on journalists’ passports; to Saudi Arabia for religious pilgrimage. or administered by CBP, or in which their own privacy and that of their Although he passed through TSA there is a national security concern” in families was violated as journalists who security screening and checked a bag order to conduct an advanced search. covered the caravan were targeted for with no issues, he was pulled out of the The policy does allow CBP agents secondary screenings and unauthorized boarding line by a CBP agent, who asked to request that an individual unlock questioning. It is unacceptable that Elsharkawi several questions, including portions of their electronic device and to journalists are being treated this way.” “where he was traveling to, how long his detain a device “for a brief, reasonable Daphne Pellegrino, the advocacy stay was planned for, if he was meeting period of time” if the agent cannot offi cer for RSF’s North America anyone during his stay, and how much access the device. (For more information bureau, contended on March 7 that the currency he currently had on him.” on the 2018 directive, see CBP Adopts “surveillance of journalists on this level The complaint alleged that after New Policy of Border Searches of is likely illegal and is an absolute abuse Elsharkawi answered the questions, Electronic Devices in “U.S. Customs of power from CBP, one that proves the CBP agent searched his carry on and Border Protection Actions Continue the suspicions an increasing number bag and asked more questions about to Raise First and Fourth Amendment of journalists have shared anecdotally: Elsharkawi’s previous trips to Egypt. Questions” in the Summer 2018 issue of that the US government is monitoring Five additional CBP offi cers arrived, the Silha Bulletin.) their activities as a consequence of their one of which ordered Elsharkawi to put Second, the complaint alleged that work.” She added, “Journalists cannot his hands on his head, and summarily the search of Elsharkawi’s cell phones be stopped for questioning for simply 40 constituted a violation of his Fourth The full complaint is available online found through interviews, news reports, Amendment rights. The lawsuit alleged at: https://www.courtlistener.com/recap/ and legal fi ndings that 37 journalists that the searches of his phones were gov.uscourts.cacd.727665/gov.uscourts. had indicated that screenings by “not supported by any real suspicion cacd.727665.1.0.pdf. As the Bulletin U.S. Customs and Border Protection of ongoing or imminent criminal went to press, no further announcements (CBP) at U.S. borders were “invasive.” activity, and as such, no basis for a had been made regarding the lawsuit. Twenty reported that border agents search existed.” Elsharkawi argued Meanwhile, on Jan. 30, 2019, the U.S. had conducted warrantless searches or that the agents who searched his cell Press Freedom Tracker, a database of seizures of their electronic devices. phones needed “a warrant supported press freedom incidents in the United The report contended that by probable cause that the devices States, reported that fi lmmaker and “[s]econdary screenings of journalists contained contraband or evidence of a director Saeed Taji Farouky was stopped crossing U.S. borders risk undermining violation of customs laws, and without by border authorities on Dec. 23, 2018 press freedom as [CBP] agents search particularly describing the information when he arrived in the United States devices such as laptops or phones to be searched.” after traveling from the United Kingdom without warrant and question journalists Third, the complaint alleged that the (UK). According to the report, Farouky about their reporting and contacts” and seizure of Elsharkawi’s cell phones, was based in the UK and had obtained that journalists were confused about after which agents conducted a forensic a visa for the trip to the United States. their rights at U.S. borders. The full examination, as well as made copies for However, upon arriving in Florida, he report is available online at: https://cpj. future examination and transmission to was pulled aside by a U.S. Customs and org/reports/2018/10/nothing to declare other agencies, also violated his Fourth Border Patrol (CBP) agent, who fi rst us border search phone press freedom Amendment rights as the agents “needed asked him several questions, including cbp.php. probable cause to support these actions, his past travel history to Syria. The agent On Jan. 22, 2019, Bloomberg reported but not even reasonable suspicion summarily requested that he unlock his that the ABA had proposed a resolution existed.” cell phone, to which Farouky complied. targeting searches and seizures of Fourth, the complaint asserted However, he explained in an interview electronic devices at U.S. borders. The that Elsharkawi’s First Amendment with the U.S. Press Freedom Tracker resolution “urge[d] the federal judiciary rights were also violated because that he was worried about his personal to recognize the substantial privacy his devices “contained expressive and professional contacts. Farouky said, and confi dentiality interests implicated content and associational information,” “If they harvested all of the names and by searches and seizures of electronic suggesting CBP needed a warrant to numbers, that’s everyone I have ever devices at the border.” search the devices. Fifth, the lawsuit interviewed, so my sources could be put The resolution also “urge[d] contained a Section 1981 of the Civil in some sort of database. But I didn’t feel Congress to enact legislation . . . that Rights Act of 1866 claim in which like I had a choice.” would: (1) require a warrant based on Elsharkawi contended that the CBP Farouky added that he was concerned probable cause for seizures . . . and agents “intentionally interfered with that pushing back would only increase searches of electronic devices carried Mr. Elsharkawi’s right to exercise the authorities’ interest in his devices by individuals at the border; (2) prohibit and enforce his contract with Turkish and work. He also raised concern any government entity from denying Airlines [to fl y as scheduled with his that the agents could access another a lawful permanent resident entry purchased ticket], and did so because of fi lmmaker’s or journalist’s “hardcore or exit based on the person’s failure Mr. Elsharkawi’s Egyptian descent and investigative work.” The U.S. Press to . . . provide access to an electronic race.” Freedom Tracker’s full report is available device for a search; (3) implement Finally, Elsharkawi alleged several online at: https://pressfreedomtracker. policies and procedures to preserve federal tort violations, including 1) us/all incidents/fi lmmaker saeed taji the attorney client privilege, . . . and False Arrest / False Imprisonment, 2) farouky has device taken and searched (4) require the government to record Battery, 3) Negligence, 4) Intentional dhs upon arrival us/. As the Bulletin each instance in which it conducts a Infl iction of Emotional Distress (IIED), went to press, Farouky had not fi led a search of an electronic device seized at and 5) Intrusion into Private Affairs. lawsuit against CBP. the border and issue an annual report Regarding the IIED claim, Elsharkawi summarizing such searches.” contended that the CBP agents’ Organizations File a Report and The ABA passed the resolution during conduct was “outrageous” and that Resolution Addressing the Searches its Midyear Meeting in March 2019 with they “intended to cause Mr. Elsharkawi and Seizures of Travelers’ Electronic minor amendments, including that the emotional distress and/or acted with Devices new federal policy should “fully protect reckless disregard of the probability that In the midst of a growing number attorney client privilege,” not just seek [he] would suffer emotional distress, of searches and seizures of travelers’ to “implement policies and procedures knowing Mr. Elsharkawi was present electronic devices, including journalists’ to preserve the privilege.” The fi nal when the conduct occurred.” and fi lmmakers’, the Committee to resolution and corresponding report are The complaint asked the Central Protect Journalists (CPJ) and Reporters available online at: http://src.bna.com/ District of California to order the Without Borders (RSF) co published an ENo. defendants to “expunge all information October 2018 report while the American gathered from or copies made of Bar Association (ABA) proposed a SCOTT M EMMEL the contents of Plaintiff’s electronic resolution. SILHA BULLETIN E DITOR devices, and all of Plaintiff’s device On Oct. 22, 2018, CPJ and RSF passwords.” Elsharkawi also requested published a report, titled “Warrantless general, compensatory, punitive, and/or searches of journalists at U.S. borders exemplary damages. pose press freedom threat” which
41 Federal Judge Strikes Down Iowa’s “Ag-Gag” Law; Coalition of Animal Rights Groups Challenges Nation’s Oldest “Ag-Gag” Law n the winter of 2018/2019, state animal cruelty. People for the Ethical “Agricultural production facility fraud.” “ag gag” laws continued to be the Treatment of Animals v. Stein , 737 Fed. Iowa Code § 717A.3A. The particular target of federal court rulings and Appx. 122 (4th Cir. 2018). On Jan. 4, 2018, provision (hereafter “ag gag law”) was lawsuits. On January 9, a federal the Ninth Circuit ruled that the portion the only portion of the larger chapter at judge struck down Iowa’s ag gag of Idaho’s law, Idaho Code § 18 7042, issue in the case. Ilaw, which, like other such laws, had could not survive First Amendment The ag gag law stated that a person is made it illegal to enter an agricultural scrutiny, fi nding that the subsection guilty of agricultural production facility facility under false pretenses, including criminalized innocent behavior, was fraud if he or she “[o]btains access to to conduct an overbroad, and targeted speech and an agricultural production facility by undercover investigative journalists. Animal Legal false pretenses” or if they make “a false AG-GAG LAWS investigation. Defense Fund v. Wasden, 878 F.3d 1184 statement or representation as part of an Meanwhile, a (9th Cir. 2018). Finally, on July 7, 2017, application or agreement to be employed coalition of animal District of Utah Judge Robert Shelby at an agricultural production facility, if rights groups fi led a legal challenge ruled that Utah’s ag gag law, Utah Code the person knows the statement to be against Kansas’ law, the oldest in the § 76 6 112 (2012), regulated protected false, and makes the statement with an nation. speech under the First Amendment. intent to commit an act not authorized Ag gag laws take different forms in Animal Legal Defense Fund v. Herbert, by the owner of the agricultural different states, but generally criminalize 263 F.Supp.3d 1193 (D. Utah 2017). production facility[.]” or hold civilly liable individuals who (For more information on the confl ict A fi rst conviction under the law is a expose food safety violations or cases between journalism and ag gag laws, serious misdemeanor, and a second or of animal abuse at agricultural facilities. as well as the federal court rulings, subsequent conviction is an aggravated Ag gag laws often prohibit the recording see “Fourth Circuit Allows Lawsuit misdemeanor. Additionally, an individual of undercover videos of agricultural Targeting North Carolina Ag Gag Law to can be held criminally liable for operations, raising First Amendment Continue; District Court Rules Wyoming conspiring to violate the statute, aiding concerns from animal rights and Law Unconstitutional” in the Fall 2018 and abetting a violation, or harboring, food activist groups, as well as media issue of the Silha Bulletin, “Minneapolis aiding, or concealing the person organizations, who argue undercover Legislature Introduces an ‘Ag Gag’ Law; committing the violation, “with the investigations should be allowed in Federal Appeals Courts Strike Down intent to prevent the apprehension of the order to expose illegal practices or Two States’ Laws” in the Winter/Spring person.” The full text of the ag gag law unsafe conditions. Similarly, ag gag laws 2018 issue, Journalists Face Evolving, is available online at https://www.legis. can also take the form of agriculture Uncertain Legal Landscape, in “‘Drone iowa.gov/docs/code/717A.3A.pdf. disparagement laws, which establish a Journalism’ Presents Possibilities But The law was summarily challenged cause of action for damages arising from Faces Legal Obstacles” in the Fall 2014 by a coalition of public interest groups, disparaging statements or dissemination issue, and “States Consider Banning including the Animal Legal Defense Fund of false information about the safety of Undercover Recording at Agricultural (ALDF), Iowa Citizens for Community food products. Operations” in the Summer 2011 issue.) Improvement, Bailing out Benji, People Since 2017, several federal courts for the Ethical Treatment of Animals, have ruled in favor of animal rights and Federal Judge Rules Iowa Ag-Gag Inc. (PETA), and the Center for Food food activist groups in their lawsuits Law Unconstitutional Safety (CFS). Iowa Gov. Kimberly targeting ag gag laws. On Oct. 29, 2018, On Jan. 9, 2019, several media Reynolds, Attorney General Tom Miller, District of Wyoming Judge Scott W. outlets reported that Judge James and Montgomery County Attorney Bruce Skavdahl ruled that Wyoming’s two “Data Gritzner of the U.S. District Court for E. Swanson were named defendants. Trespass laws,” Wyo. Stat. §§ 6 3 414 the Southern District of Iowa had ruled Specifi cally, the plaintiffs alleged that the (2015); Wyo. Stat. §§ 40 27 101 (2015), that Iowa’s ag gag law violated the ag gag law was “facially unconstitutional were unconstitutional, fi nding that they First Amendment, granting summary as a content based, viewpoint based, and specifi cally punished individuals for judgement in favor of the plaintiffs. overbroad regulation.” engaging in protected speech. Western Animal Legal Defense Fund v. On Feb. 28, 2018, Judge Gritzner Watersheds Project v. Michael , 196 Reynolds, 353 F.Supp.3d 812 (S.D. Iowa denied Iowa’s motion to dismiss the F.Supp.3d 1231 (D. Wyo. 2018). On 2019). Several civil rights and animal lawsuit, fi nding that the public interest June 5, the U.S. Court of Appeals for rights organizations praised the ruling, groups had stated a plausible claim the Fourth Circuit allowed a lawsuit calling it an important victory for free that the ag gag law was a content based brought by several animal rights speech and the First Amendment. and viewpoint based restriction of groups against North Carolina’s law, In 2012, the Iowa legislature, amidst speech. Animal Legal Defense Fund Wyo. Stat. §§ 40 27 101 (2015), to several industrial farm investigations v. Reynolds , 297 F.Supp.3d 901 (S.D. continue, fi nding that they had alleged brought critical national attention to Iowa 2018). (For more information on a plausible “injury in fact,” namely that Iowa’s agricultural industry, amended the background of the case, see Ninth they could not conduct undercover Chapter 717A of the Iowa Code, titled Circuit Strikes Down Two Idaho Ag investigations of public and private “Offenses Related to Agricultural Gag Law Provisions in “Minnesota facilities in North Carolina for alleged Production,” to include a provision titled Legislature Introduces an ‘Ag Gag’ Law;
42 Federal Appeals Courts Strike Down the state’s interests, meaning there must Following Gritzner’s ruling, several Two States’ Laws” in the Winter/Spring be a “direct causal link between the civil and animal rights groups praised 2018 issue of the Silha Bulletin.) restriction imposed and the injury to be the decision. The American Civil In his Jan. 9, 2019 opinion, Gritzner prevented.” Gritzner concluded that the Liberties Union (ACLU) of Iowa legal fi rst considered whether the ag gag law defendants had “produced no evidence director Rita Bettis Austen told the implicated protected speech. Citing his that the prohibitions of § 717A.3A are Des Moines Register on January 9 that February 2018 opinion, Gritzner found actually necessary to protect perceived the ruling was “an important victory that speech was, in fact, implicated harms to property and biosecurity.” He for free speech in Iowa.” She added, because “one cannot violate § 717A.3A added, “Defendants have made no record “An especially grievous harm to our without engaging in speech” (emphasis as to how biosecurity is threatened democracy occurs when the government in original). Gritzner reasoned that the by a person making a false statement uses the power of the criminal laws speech was protected, even though to get access to, or employment to target unpopular speech to protect it was regarding false statements in, an agricultural production those with power — which is exactly and misrepresentations. He cited facility.. . . Protecting biosecurity is what this law was always about.. . . It United States v. Alvarez, in which the therefore purely speculative.” has effectively silenced advocates and U.S. Supreme Court held that false Gritzner also found that there were ensured that animal cruelty, unsafe food statements are protected by the First alternative, constitutional remedies safety practices, environmental hazards, Amendment so long as they do not available to Iowa to serve its interests, and inhumane working conditions go cause a “legally cognizable harm” or including that an existing section of unreported for years.” provide “material gain” to the speaker. Chapter 717A of the Iowa Code already ALDF executive director Stephen 567 U.S. 709, 715 (2012). In this case, provided that persons “‘shall not, Wells said in an interview with the Des Iowa’s ag gag law did not cause either, without the consent of the owner’ do Moines Register, “Today’s victory makes according to Gritzner. (For more various acts, including entering the it clear that the government cannot information on Alvarez, see “Supreme facility to disrupt or otherwise harm the protect these industries at the expense Court Strikes Down Stolen Valor Act” operation.” An additional section also of our constitutional rights.” in the Summer 2012 issue of the Silha protected biosecurity by prohibiting the In a January 10 statement, animal Bulletin.) willful possession, transportation, or rights group Mercy for Animals wrote Second, Gritzner determined transfer of “a pathogen with an intent to that it “applauds Judge Gritzner for that because the ag gag law was a threaten the health of an animal or crop.” upholding freedom of speech and “content based” restriction of otherwise Gritzner also pointed to Iowa’s existing simultaneously fi ghting for a more protected free speech, strict scrutiny trespass law, Iowa Code § 716.7(2), as transparent food system.” The statement applied, which requires that the state a means for the state to “protect its added, “The public has a right to has a compelling interest and that the proffered interests without chilling know how food is produced and how restriction on speech is narrowly tailored speech.” animals are treated at factory farms and to achieve that interest. However, Third, Gritzner concluded that the slaughterhouses.” Gritzner noted that the result would be ag gag law was an under inclusive the same even if intermediate scrutiny, a means to address the state’s interests. Coalition of Animal Rights Groups lower standard, had applied. He reasoned that the statute “does Challenge Kansas’ Ag-Gag Law Regarding whether Iowa’s interests in nothing to deter the exact same alleged On Dec. 6, 2018, Food Safety News enacting the statute were “compelling,” harms — trespass and biosecurity and VegNews reported that a coalition Gritzner found that the defendants’ breaches — from individuals of animal rights groups, including the interests of “property and biosecurity,” who proceed to access or enter a Animal Legal Defense Fund (ALDF), as well as “protecting Iowa’s agricultural facility without false pretense or Center for Food Safety (CFS), Shy industry” were “important” but were misrepresentation.” 38, Inc., and Hope Sanctuary, fi led a “not compelling in the First Amendment Finally, Gritzner contended that lawsuit in the U.S. District Court for sense,” citing Animal Legal Def. Fund the statute was also overinclusive the District of Kansas against Kansas v. Otter , 118 F. Supp. 3d 1195 (D. Idaho because Section 1 “includes no limiting Gov. Jeffrey Colyer and Attorney 2014), in which the District of Idaho features whatsoever, allowing it to General Derek Schmidt challenging the similarly found that the state’s “‘interest apply even to the most innocent of constitutionality of Kansas’ “ag gag” law, in protecting personal privacy and circumstances.” Gritzner granted the Kan. Stat. § 47 1825 et seq. private property’ to be important, but plaintiffs’ motion for summary judgment Kansas’ ag gag law, which was not compelling.” Gritzner also cited related to its First Amendment claims passed in 1990, is the nation’s oldest Animal Legal Def. Fund v. Herbert, and dismissed an additional claim such law. The portion of the statute 263 F. Supp. 3d 1193 (D. Utah 2017), in regarding a Fourteenth Amendment due primarily at issue in the lawsuit was which the District of Utah ruled that process claim as moot. Gritzner’s full section 47 1827, which, among other the state’s interests of “protection from opinion is available online at: https:// provisions, prohibits an individual spread of disease and injury to animals bloximages.chicago2.vip.townnews.com/ “without the effective consent of the and workers caused by unauthorized qctimes.com/content/tncms/assets/v3/ owner and with the intent to damage actions” were “speculative” and, editorial/4/81/481baa46 fe8c 562e 9661 the enterprise conducted at the animal therefore, not compelling. 510a7b843da5/5c36e7db792f4.pdf. facility” from entering an animal facility Regarding whether Iowa’s ag gag law As the Bulletin went to press, otherwise not open to the public with was narrowly tailored, Gritzner cited Attorney General Miller had not “intent to commit an act prohibited the requirement articulated in Alvarez announced whether the state would by this section.” One such action is that the prohibition of protected speech appeal the case. “tak[ing] pictures by photograph, video must be “actually necessary” to achieve Ag-Gag Laws, continued on page 44 43 Ag-Gag Laws, continued from page 43 instance, would be protected under according to the complaint, was that it the U.S. Supreme Court’s reasoning represented a form of “content based” camera or by any other means.” As a in United States v. Alvarez, in which and “viewpoint based” discrimination. result, according to the lawsuit, the law a plurality of the Court held that false The complaint reasoned that the “criminalizes undercover investigations statements are protected by the First Kansas legislature’s intent was to and whistleblowing at animal facilities, Amendment so long as they do not cause “silence a viewpoint critical of animal including factory farms, slaughterhouses, a “legally cognizable harm” or provide industry” and because the law “prohibits and animal research laboratories.” “material gain” to the speaker. 567 U.S. some types of investigative conduct The complaint began by contending 709, 715 (2012). (For more information focused on animal facilities, but not that such undercover investigations on Alvarez, see “Supreme Court Strikes investigations of other industries or in other states had “reliably revealed Down Stolen Valor Act” in the Summer businesses.” As a result, the defendants truthful information about shocking 2012 issue of the Silha Bulletin.) would have to meet the strict scrutiny animal cruelty, unsafe food safety Fourth, the complaint argued that standard, which requires the state practices, environmental hazards, and Kansas’ ag gag law created a chilling to have a compelling interest and inhumane working conditions, all of effect on these undercover investigations demonstrate that the restriction was which are matters of great concern by criminalizing “a number of activities narrowly tailored to achieve that to the public” and provided several that are central to the work of interest. The lawsuit asserted that the examples, including some conducted by investigators and others who attempt to state did not have a “compelling interest” the ALDF. expose unsafe and inhumane conditions in restricting protected speech, nor was Second, the complaint explained at Kansas agricultural facilities,” the law “narrowly tailored” because the that given Kansas’ “prominent role in including prohibiting photography, Kansas legislature had already passed animal agriculture,” the plaintiffs had a video recording, and deceptive entry. laws “protecting privacy, prohibiting “strong desire to conduct undercover The law’s provisions allowing for trespass, and promoting biosecurity.” investigations at facilities in the state criminal prosecution of violators and the Finally, the complaint sought an order for the purpose of acquiring truthful imposition of damages further created a from the district court declaring the law information about illegal and unethical chilling effect on potential investigators, in its entirety unconstitutional on its practices that it can disseminate to a according to the lawsuit. face and as applied to the plaintiffs. The broad public audience.” Fifth, the complaint alleged that plaintiffs asked that in the alternative, Third, the complaint contended that the law violated the First Amendment certain sections of the statute be such investigations, which date back in two ways, including that it was found unconstitutional, including the to the early 1900s, are a “crucial form overbroad because it “categorizes so prohibition of photography and video of protected free speech” for a number much protected speech as ‘criminal,’ recording. The full lawsuit is available of reasons, including that they result in including the type of investigations online at: https://www.courthousenews. “positive legal outcomes,” “contribute described in this Complaint.” The lawsuit com/wp content/uploads/2018/12/KS Ag immensely to public discourse about the also reasoned that the statute’s defi nition Gag.pdf. political and ethical dimensions of our of “agricultural facility” was overbroad As the Bulletin went to press, no food choices,” and are an “important part because it could include “roadside zoos, further legal action had been announced of the marketplace of ideas because they restaurants with lobster or fi sh tanks, in the case. infl uence public opinion and consumer pet stores, circuses, petting zoos, and demand.” elementary school classrooms with an SCOTT M EMMEL The complaint clarifi ed that although ant farm or a classroom pet.” SILHA BULLETIN E DITOR the speech in question constitutes The second reason the ag gag misrepresentation, such speech, in this law violated the First Amendment,
The video of the 2019 Silha Center Spring Forum, “Free Press — Fair Trial: The Ethics of Writing Wrongs” is available online at: https://youtu.be/QhG1GaTlBFw
44 2019 Spring Forum Tackles Balancing Freedom of the Press and the Right to a Fair Trial n April 30, 2019, the Silha to key evidence in the trial, including lines fi ghting for racial justice” Center for the Study of photographs and police body worn where “issues surrounding fair and Media Ethics and Law camera (BWC) footage connected accurate media coverage has been and the Minnesota Pro to the case. Among the cases cited one of the primary concerns that Chapter of the Society by Quaintance was Richmond we have expressed on behalf on Oof Professional Journalists (SPJ) Newspapers, Inc. v. Virginia, 448 communities of color, particularly the hosted the 2019 Silha Center Spring U.S. 555, 580 (1980), in which the U.S. African American community.” Levy Forum titled “Free Press — Fair Trial: Supreme Court held that “the right to Armstrong discussed how she had The Ethics of attend criminal trials is implicit in the previously been involved in “skirmishes SILHA CENTER Writing Wrongs.” guarantees of the First Amendment.” with different media outlets” regarding More than 50 She also cited Nebraska Press EVENTS the “portrayal of black men in journalists, particular as journalism “[The press] doesn’t always believe criminals,” among students, and community members other concerns. gathered in Murphy Hall on the East [the police].. . . [But] until we have other Levy Armstrong Bank of the University of Minnesota, information, we have to go with it. If argued that the Twin Cities campus to discuss how to somebody gives us reason to doubt what media should be balance First Amendment protections more “culturally for freedom of the press and the [the police are telling us] . . . then we will competent,” Sixth Amendment, which provides start asking the police.” including in that “the accused shall enjoy the right reporting on to a speedy and public trial,” often — John Croman, Noor, noting that referred to as the right to a “fair trial.” KARE 11 political reporter police shootings The forum’s four panelists included usually involved KARE 11, Minneapolis’ NBC affi liate, white offi cers, not political reporter John Croman, Association v. Stuart, in which the offi cers of color. She added, “We are Minneapolis Star Tribune police Supreme Court held that restricting tending to operate as though things reporter Libor Jany, Minneapolis the media’s freedom to communicate are fair, that the justice system truly is based defense attorney Paul Engh, with trial participants and to report blind and that these policies are neutral and civil rights attorney Nekima Levy what they say would constitute a when we know that that is not the case. Armstrong, who previously served as prior restraint, “the most serious and There is defi nitely going to be disparate president of NAACP Minneapolis. least tolerable infringement on First impact on communities of color[.]” SPJ Chapter President and Mankato Amendment rights.” 427 U.S. 539, 559 Croman began by acknowledging Free Press editor Joe Spear began (1976). However, some limitations on that it was important for journalists the forum by discussing the SPJ Code the press remained, including holding to be more aware of problems with of Ethics, which states that “ethical the trial in a small courtroom with racial bias and that in more than one journalism is truthful, compassionate, minimal seating for the press. (For instance, journalists from outside the independent, and transparent.” He more information on the Noor trial United States had been “surprised added, “We need ethical journalism and and Quaintance’s ruling, see “Media by how the [American media] covers journalists who work each day with the Coalition Wins Legal Victory to Access crime,” including the practice of profession’s highest standards in mind Body Camera Video in Trial of Former identifying suspects before they are now more than ever.” Minneapolis Police Offi cer” on page 1 convicted. Croman cited Larson v. Silha Center Director and Silha of this issue of the Silha Bulletin.) Gannett Company, Inc., which arose Professor of Media Ethics and Law Kirtley said that the main issue on Nov. 29, 2012 in Cold Spring, Minn. Jane Kirtley, who moderated the the panel would focus on was how after plaintiff Ryan Larson was named panel, noted that the balancing of “media access to trials, as well as other as the sole suspect in the shooting freedom of the press and fair trials information regarding crimes and death of police offi cer Tom Decker. was an especially “timely topic” due criminal background, should balance No. A17 1068, 2018 WL 2090538 (Minn. to the then ongoing trial of former the public’s interest in the right to Ct. App. 2018). Law enforcement Minneapolis Police Offi cer Mohamed know and the defendant’s right to a fair offi cials held a joint press conference Noor, a Somali American, who was trial.” She added that it was “safe to say about the shooting and issued a found guilty the day after the forum of that this is an issue that is not going to press release stating that “[w]ithin third degree murder and second degree go away.” an hour” of the shooting, a SWAT manslaughter for the 2017 shooting Levy Armstrong, the co founder team arrested Larson, who “was death of 40 year old personal health of Black Pearl, LLC, a “multi faceted booked into the Stearns County Jail coach Justine Damond. company that provides business on murder charges.” Multiple news On April 9, 2019, Hennepin County, consulting, talent management outlets, including KARE 11 and the St. Minn. Fourth Judicial District Court services, and media management Cloud Times, covered the shooting Judge Kathryn Quaintance had services,” according to the company’s and subsequent investigation, focusing reversed an earlier ruling in which she website, began the panel by explaining heavily on statements given during the had limited public and media access that she was frequently on the “front Silha Forum, continued on page 46 45 Silha Forum, continued from page 45 in pending cases may be regulated public should look at these trials,” he under a less demanding standard than said. “And they should watch them press conference and information in that established for regulation of the carefully. As many people that want to the press release. However, in August press,” meaning that although Nevada’s see it should see it.” However, Engh 2013, Larson was offi cially cleared as a rule was unconstitutionally vague, acknowledged that it is possible press suspect, and summarily sued KARE 11 states could impose a “likelihood of coverage can create issues of bias or and the St. Cloud Times, alleging the material prejudice” test under the First create unfair depictions of defendants, coverage of his arrest was defamatory. Amendment. two arguments often raised in On May 7, 2018, the Minnesota Engh also discussed Sheppard preventing media access to trials. Court of Appeals ruled that the fair v. Maxwell, in which the Supreme Finally, Jany addressed some of the report privilege extends to protect Court ruled that pretrial publicity and concerns raised by Levy Armstrong, news reports that fairly and accurately coverage in newsrooms can violate contending that although he worked summarize information relayed by a with “immensely law enforcement agency at an offi cial “[Journalists] do need to be called out talented press conference or in an offi cial press reporters and release. The case has been appealed, from time to time about our coverage videographers and but as the Bulletin went to press, the and the way that we frame certain camera people,” Minnesota Supreme Court had not journalists “do announced a ruling in the case. (For stories.. . . [But most reporters] do try need to be called more information on the background to . . . have conversations about . . . how out from time to of Larson and the Minnesota Court of to frame certain issues [and] which time about our Appeals ruling, see Minnesota Court coverage and the of Appeals Says Fair Report Privilege experts and sources to reach out to. We way that we frame Extends to Cover Law Enforcement are not just sitting there and gleefully certain stories,” Press Conferences and News Releases digging up people’s criminal histories including related in “Minnesota and Federal Courts to race and crime Grapple with Defamation Questions; just so we can fi ll the newspaper.” where “we all have Right Wing Radio Host Faces Several racial blind spots.” Defamation Lawsuits” in the Summer — Libor Jany, Jany contended 2018 issue of the Silha Bulletin.) Minneapolis Star Tribune police reporter that in order Croman explained that “journalists for the media to and police are pretty tight” and overcome these “develop relationships” because defendants’ Sixth Amendment rights problems, reporters need to “steer reporters get “a lot of news from law to a fair trial. 384 U.S. 333 (1966). The clear of establishment experts” enforcement.” Croman asserted that Court held that the judge in a case and only focusing on the “offi cial the press “doesn’t always believe” has the power and responsibility to narrative.” However, he asserted the police, but that “until we have ensure a fair trial, meaning he or she that most reporters “do try to, with other information, we have to go could restrict press activity, change the time permitting, have conversations with it. If somebody gives us reason venue, and issue gag orders, among about . . . how to frame certain issues to doubt what [the police are telling other options. [and] which experts and sources to us] . . . then we will start asking the Engh then turned to his own reach out to. We are not just sitting police.” Croman ultimately concluded experiences as the defense attorney there and gleefully digging up people’s that because of this close relationship, for former Falcon Heights, Minn. criminal histories just so we can fi ll the “fair media coverage [is] a tough one,” police offi cer Jeronimo Yanez, who newspaper.” especially when balancing the public’s was ultimately found not guilty of Croman later added that he “need to know” versus potential shooting and killing 32 year old African felt the best way for newsrooms problems such as “polluting the jury American Philando Castile during to “counteract” racial bias is to pool.” He contended that journalists a traffi c stop in 2016. The shooting, “hire people who represent . . . the therefore “have a responsibility” as well as the subsequent trial and racial makeup of the audience.” He regarding balancing the First and Sixth not guilty verdict, received signifi cant continued, “As you bring in more Amendments. media attention. Engh said during the people of color . . . you are going to end In his opening remarks, Engh fi rst forum that he “encouraged access up just naturally having more people cited Gentile v. State Bar of Nevada, in to [the trial for] the media” and that say ‘Hey, wait a minute.’” which the U.S. Supreme Court struck “everyone with a press pass” could Kirtley then asked the panel whether down Nevada’s limits on attorney get into the courtroom. He therefore they supported allowing cameras in speech, fi nding that Nevada Supreme criticized the decision in the Noor trial courtrooms. According to Kirtley, Court Rule 177, which prohibited to limit the seating for the press and Minnesota was among the most attorneys from making statements if public. restrictive states regarding allowing he or she “knows or reasonably should Engh argued that he viewed the audio and video recording in courts, know that it will have a substantial Sixth Amendment “as a reason to despite a July 2, 2018 order by the likelihood of materially prejudicing” invite the press” into courtrooms Minnesota Supreme Court allowing the case, was unconstitutionally vague. because it allows for not only a “public audio and video recording in most 501 U.S. 1030 (1991). However, a 5 4 trial,” but also public oversight of the criminal proceedings “after a guilty majority of the Court held that the proceedings, a means of ensuring plea has been accepted or a guilty “speech of lawyers representing clients that defendants get a fair trial. “The verdict has been returned.” (For more 46 information on the Minnesota Supreme then Minneapolis Mayor Betsy Hodges who’ve been acquitted who can never Court’s 2018 order, see “Minnesota with an African American man, whose quite get over the adverse publicity and Supreme Court Allows Audio and face was blurred, smiling and pointing pictures in the paper. Their reputations Video Recordings in Some Portions of at each other, a gesture KSTP reporter are absolutely ruined in the Google Criminal Cases” in the Summer 2018 Jay Kolls described as “a known gang era. I think the danger of having a issue of the Silha Bulletin. For more sign.” Kolls did not identify the man visualization of the courtroom can information about the evolution of in the picture by name, but described contribute to the ‘trashing’ of those cameras in Minnesota courtrooms, him as a “twice convicted felon for innocent people.” see “Court Access: Federal Law drug selling and possession and illegal The remainder of the forum Would Allow Cameras in U.S. Courts,” possession of a fi rearm.” Critics of including a Q&A session with the in the Fall 2007 issue of the Silha audience, during Bulletin, “Minnesota Supreme Court “I think we need to understand that we which one Holds Hearing on Cameras in Courts: Hubbard School Minnesota Supreme Court Holds are dealing with public servants who we of Journalism Hearing on Cameras in Courts in pay to protect and to serve and to follow and Mass the Summer 2008 issue; “Minnesota Communication Advisory Committee Resists Cameras the law.. . . When you have that much student asked the in Courts” in the Winter 2008 issue, unchecked power that is given to one panel for their “Minnesota High Court Approves entity, it is a recipe for disaster if you are thoughts on the Cameras in Court Pilot Program” in negative criticism the Winter 2009 issue, “Federal and not ensuring accountability.” directed at news State Courts Consider Proposals to outlets regarding Permit Cameras in Trial Proceedings” — Nekima Levy Armstrong, their coverage of in the Fall 2010 issue, “Battles to Black Pearl, LLC co-founder police involved Gain Camera/Audio Access to State shootings. Jany and Federal Courtrooms Continue” the KSTP report argued that Hodges argued that such criticism “tends to in the Fall 2011 issue, “Minnesota and Navell Gordon, the man in the hone in or focus on a handful of stories Senate Expands Floor Access; State photo, were simply pointing at each and it doesn’t take into consideration Supreme Court Approves Cameras” other, and accused KSTP of taking the the overall coverage.” He explained in the Winter/Spring 2011 issue, “Silha picture out of context. (In December that journalists continue to write Spring Ethics Forum Focuses on 2014, the Silha Center for the Study of about the shooting “for weeks after Cameras in the Courtroom, Status of Media Ethics and Law co sponsored the [incident],” as reporters and news Minnesota Pilot Project” in the Spring a forum that discussed the ethics organizations seek out new information 2012 issue, “Minnesota Supreme behind the KSTP news story regarding and provide more in depth reporting in Court Approves Use of Cameras in “Pointergate.” For more information on order to get a “fuller picture.” Civil Cases, Considers Expansion to the event and “Pointergate,” see “Silha Levy Armstrong emphasized the Criminal Cases” in the Fall 2013 issue, Center Co Sponsors Forum on Ethics importance of the media, protestors, and Minnesota Supreme Court Eases of ‘Pointergate’ Broadcast” in the Fall and the public in holding police Restrictions on Courtroom Cameras 2014 issue of the Silha Bulletin.) accountable. “I think we need to in Criminal Cases in “Updates to State Croman also supported allowing understand that we are dealing with Laws Create Challenges, New Benefi ts cameras in Minnesota courtrooms, public servants who we pay to protect for News Organizations” in the Summer emphasizing that several other and to serve and to follow the law,” 2015 issue.) states provided greater access. He she said. “When you have that much Levy Armstrong responded said, “If you have a camera in the unchecked power that is given to one that she supported cameras in the courtroom . . . you can describe entity, it is a recipe for disaster if you courts because it is “important for [what is happening],” including the are not ensuring accountability.” the public to see what’s happening “expressions on the faces of those A link to a video of the forum is in courtrooms.” However, she also testifying.” However, he noted that available on the Silha Center website at emphasized the importance of KARE 11’s policy was not to show silha.umn.edu. Silha Center activities, addressing underlying societal issues jurors and only rarely show audience including the annual lecture, are made related to race and bias before the trial members. possible by a generous endowment even takes place. Conversely, Engh stated that he had from the late Otto and Helen Silha. Levy Armstrong provided the “mixed feelings.” He explained that example of “Pointergate,” which began his concern was that “defendants are SCOTT M EMMEL on Nov. 6, 2014 when KSTP TV, the subjected to a generalized ‘trashing’ in SILHA BULLETIN E DITOR ABC affi liate in Minneapolis, aired our society before they are convicted.” a report that showed a picture of He continued, “I’ve had a lot of clients
47 Silha Center for the Study of Media Ethics and Law Non profi t Org. Hubbard School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID Twin Cities, MN 111 Murphy Hall Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625 3421
Director’s Note
Dear Silha Bulletin readers,
Following this issue, Winter/Spring 2019, the Silha Bulletin will no longer be published in hard copy. In the digital age, it simply makes more fi scal sense for us to publish electronically.
The Silha Bulletin will continue to be published three times a year: late fall, late spring, and late summer. It will be available online at: www.silha.umn.edu and the University of Minnesota Digital Conservancy http://conservancy.umn.edu/discover?query=Silha+Bulletin. Each site will allow you to read the current issue of the Bulletin, as well as search past issues. If you would like to receive notifi cation when a new issue of the Silha Bulletin has been published online, please email us at: [email protected]. Please include “Silha Bulletin” in the subject line. You may also call the Silha Center at 612 625 3421.
Our mission at the Silha Center for the Study of Media Ethics and Law — to provide high quality, comprehensive overview, discussion, and analysis of current issues in media law and ethics — will not change. Thank you for reading the Bulletin and for your understanding as we move exclusively online.
Jane Kirtley Silha Center Director and Silha Professor of Media Ethics and Law