A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2017 Reporters and Leakers of Classifi ed Documents Targeted by President Trump and the DOJ n the fi rst half of 2017, President Donald Trump and the false information about the size of the crowds attending the Department of Justice (DOJ) sought to address leaks tied inauguration. Additionally, at the May 17, 2017 commencement to the Trump administration. In a Feb. 14, 2017 meeting ceremonies at the Coast Guard Academy, President Trump with thenFederal Bureau of Investigation (FBI) director told graduates that “no politician in history has been treated James Comey, President Trump suggested that the worse or more unfairly” by the media, according to The New Idirector consider jailing journalists who disseminate classifi ed York Times . (For more information on President Trump’s information, raising concerns from media law experts and relationship with the press as a presidential candidate and advocates. In an August 4 news conference, Attorney General as president, see “Media Face Several Challenges During Jeff Sessions announced that the DOJ was considering President Trump’s First Months in Offi ce” in the Winter/ subpoenaing members of the news media who publish leaked Spring 2017 issue of the Silha Bulletin and “2016 Presidential information. Sessions’ comments further raised concerns from Candidates Present Challenges for Free Expression” in the media experts and advocates about the Trump administration’s Summer 2016 issue.) attacks on freedom of the press. Meanwhile, on June 9, 2017, Prior to President Trump’s February 2017 meeting with a National Security Agency (NSA) contractor who leaked a Comey, there were multiple leaks apparently from or near his classifi ed report regarding Russia’s interference in the 2016 administration. In late January 2017, unauthorized transcripts presidential election to The Intercept pled “not guilty” after of phone conversations between President Trump and the being indicted by a federal grand jury on one count of “willful leaders of Mexico and Australia went public, The Washington retention and transmission of national defense information.” Post reported on February 5. Drafts of executive orders, Reality Leigh Winner faces 10 years in prison if convicted including one that would grant legal protection to people under the Espionage Act, the fi rst such prosecution under the and businesses that discriminate against samesex married Trump administration. couples, were also leaked in January. On February 9, The Washington Post , among other publications, reported on a President Trump Suggests FBI Director Should Jail leak that suggested former national security adviser Michael Reporters for Publishing Classifi ed Information T. Flynn spoke privately with Russian Ambassador Sergey On May 16, 2017, The New York Times reported that Kislyak and that the two discussed the U.S. sanctions on President Trump suggested to thenFBI director James Russia for the country’s interference with the 2016 presidential Comey that he should consider putting reporters in prison election. Following President Trump’s meeting with Comey, for disseminating classifi ed information. During the February additional leaks alleged that Comey was fi red because the 14 meeting, President Trump was “fi xated on a series of administration felt increasing pressure under the Russia damaging leaks during his presidency” and efforts to stop investigation, according to The Hill on May 12. such leaks, according to the Times . Several media law experts On July 6, 2017, Politico reported that Senate Homeland and advocates expressed concern over President Trump’s Security and Governmental Affairs Committee Chairman comments, noting that the idea of jailing journalists was not Ron Johnson (RWis.) released a report and sent a letter to impossible. Attorney General Jeff Sessions claiming that an “avalanche” Trump, throughout the 2016 campaign and the fi rst of media leaks under the Trump administration was harming several months of his presidency, was critical of the press, national security. The report claimed that at least 125 often speaking about his distaste for the media. In February stories containing leaked information potentially damaging 2016, Trump said that he believed news organizations often to national security were published by national news published false stories because they knew they would not be organizations between January 20 and May 25, 2017. On July sued for libel. In May 2016, Trump called reporters “dishonest,” 10, Alexandra Ellerbeck, senior Americas and U.S. research “not good people,” and among “the worst human beings” he associate for the Committee to Protect Journalists (CPJ), had ever met, according to CNN on May 31, 2016. The day wrote that the Senate report was “deeply fl awed,” citing after Trump was inaugurated as the 45th president of the nonscientifi c methodology and political bias, among other United States, he and thenWhite House Press Secretary Sean concerns. “The naming of more than a hundred journalists Spicer accused news organizations of deliberately reporting Classifi ed docs, continued on page 3 Inside This Issue Summer 2017: Volume 22, No. 3

1 Reporters and Leakers of Classifi ed Documents Targeted by 32 U.S. Customs and Border Protection Searches of Electronic President Trump and the DOJ Devices, Data at U.S. Borders Raise Privacy and Legal Cover Story Concerns Law Enforcement 7 Journalists Face Physical Restraints and Arrests; Trump Video Raises Further Concerns about Violence Against the 37 Ninth Circuit Addresses Spokeo after Supreme Court Media Remands Case; Circuit Courts Split on Article III Standing Endangered Journalists Bar Following Spokeo Data Privacy 11 President Trump and His Administration Spark Debate Over Media Law Issues 41 Eleventh Circuit Affi rms Dismissal of Video Privacy Class Action; Legal Questions Remain First Amendment Data Privacy 16 U.S. Supreme Court Rules in Two Signifi cant First 43 Controversial Undercover Video Makers Face Legal Action Amendment Cases and Ethical Concerns Supreme Court News Media Ethics 20 Vermont Governor Signs New Shield Law; U of M Board of 50 Third Circuit Declares a First Amendment Right to Record Regents and a New York Appeals Court Address Reporter’s On-Duty Police Offi cers Privilege Issues Law Enforcement Reporter’s Privilege 53 Several State Courts and Legislatures Grapple with 24 Rolling Stone, Daily Mail, and ABC Settle High-Profi le Anti-SLAPP Laws Defamation Lawsuits Anti-SLAPP Defamation 58 Google Hands Over Only One Record Following Expansive 29 Media Groups and Transparency Advocates Challenge Search Warrant Family’s Lawsuit, Judge’s Ruling Halting the Release of

“Personal” Information Update

Privacy 59 New York Times Deputy General Counsel to Deliver 2017 Silha Lecture, “Making Media Law Great Again: The First Amendment in the Time of Trump” Silha Center Events

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

CASEY C ARMODY ASHLEY T URACEK SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT

BRITTANY R OBB ELAINE H ARGROVE SILHA R ESEARCH A SSISTANT SILHA C ENTER S TAFF

2 Classifi ed docs, continued from page 1 rhetoric and actions he can take to undermine the work of accused of harming national security seems intended to have the media,” said Simon to The New York Times. “That gap has a chilling effect on the press and is the type of measure that now been closed.” we see more often in authoritarian countries,” Ellerbeck Several media law experts indicated that it could be wrote. “The free press and national security are not opposing possible for the Trump administration to attempt to send interests: the American people are best served when a journalists to prison. Silha Center Director and Silha Professor vigorous media holds the government to account.” The of Media Ethics and Law Jane Kirtley said it is “risky” to report full report is available online at: http://www.politico.com/ on classifi ed information under the Trump administration. f/?id=0000015d174cd1a7a95d5f4dd0350000. “The law is untested, in terms of prosecuting journalists for Several rightwing media outlets took the opportunity to reporting classifi ed information, as distinguished from sources use President Trump’s frustration with the leaks to condemn leaking it,” Kirtley told Paste magazine. “This would make “leftleaning” media outlets for sabotaging the president, as reporting legally risky.” reported by The New York Times. Breitbart News and Fox University of Chicago law professor Geoffrey R. Stone told News criticized the Times and The Washington Post for The Washington Post on May 17 that it may be possible for relying on anonymous leakers, including those from or near reporters to be jailed for doing their jobs, perhaps under the the Trump administration. Espionage Act, 18 U.S.C. § 793 et seq. According to Stone, As the Bulletin went to press, neither the Trump news organizations that publish leaked information seem administration nor the Department of Justice (DOJ) had to be safe, citing the New York Times v. United States, also sought to jail a journalist. Nevertheless, known as “The Pentagon Papers Case,” in which the U.S. Supreme Court held that the government could not issue a COVER STORY President Trump’s comments sparked criticism from media experts. prior restraint against newspapers that sought to publish In a May 17 story for The New York classifi ed documents after they received the information from Times , correspondents Michael M. Grynbaum and Charlie someone who illegally photocopied the documents. 403 U.S. Savage, together with reporter Sydney Ember, wrote that 713 (1971). However, he also agreed with Kirtley that although President Trump’s proposal to Comey to jail journalists the law is clear about the leakers as well, “[t]he law is not “breached new territory for political reporters who already clearly resolved for the journalist who actively encourages the consider their profession under siege.” They quoted The leak. That’s a case the court has not addressed.” (Stone was Washington Post executive editor Martin Baron who said, the 2006 Silha lecturer. For more information on the lecture “Suggesting that the government should prosecute journalists titled “The Freedom of the Press v. The National Security,” for the publication of classifi ed information is very menacing, see “Geoffrey Stone Predicts First Amendment will Protect and I think that’s exactly what they intend. It’s an act of Journalists from Prosecution at 21st Annual Silha Lecture” in intimidation.” the Fall 2006 issue of the Silha Bulletin). Joseph Kahn, the managing editor of the Times , defended James Goodale, who represented The New York Times in the investigatory functions of the press. “We believe strongly the Pentagon Papers case, contended that a journalist could that it is in the public interest to have a vigorous media be charged under the Espionage Act. “I have thought from the committed to publishing truthful information about the moment [Trump] became president that the greatest threat government,” said Kahn. “The First Amendment clearly to the free press is that he and his attorney general would try protects the right of the press to publish such information, to jail reporters,” Goodale told The Washington Post . “The and [the Times ] regards fair, unfettered coverage of those who president cannot jail journalists but the Attorney General hold power as a core part of its mission.” is in a position to jail journalists, and I think we know a bit The Reporters Committee for Freedom of the Press (RCFP) the general direction from which he’s coming because he released a statement also denouncing President Trump’s said his priority is to prosecute WikiLeaks.. . . The greatest suggestion to jail journalists. “The comments attributed danger the press has is a successful prosecution of WikiLeaks to President Trump cross a dangerous line,” the statement in which the attorney general is able to prove that there is a read. “But no president gets to jail journalists. Reporters are conspiracy between WikiLeaks and its sources.. . . I don’t get protected by judges and juries, by a congress that relies on much pleasure defending [Assange] but functionally what he them to stay informed, and by a Justice Department that for does is get information published.” (Goodale was the 2013 decades has honored the role of a free press by spurning Silha lecturer. For more information on the lecture tilted “The prosecutions of journalists for publishing leaks of classifi ed Lessons of the Pentagon Papers: Has Obama Learned Them?,” information.. . . Comments such as these, emerging in the see “Silha Lecturer Links Pentagon Papers and Obama way they did, only remind us that every day public servants Administration’s Treatment of Linkers” in the Fall 2013 issue are reaching out to reporters to ensure the public is aware of of the Silha Bulletin.) the risks today to rule of law in this country. The president’s In a May 16, 2017 interview with Slate magazine, Trevor remarks should not intimidate the press but inspire it.” Timm, executive director of the Freedom of the Press The White House did not respond when asked by The Foundation (FPF), agreed that although the DOJ may have a New York Times if President Trump supported imprisoning hard time prosecuting a journalist under the Espionage Act, reporters who publish stories based on leaked material. Then they still may attempt to do so given the broad language of White House Press Secretary Sean Spicer did tell reporters the Act. “Publishing classifi ed information has generally been that President Trump did not believe the Times article “was considered a bedrock right of journalists,” Timm said. “I think an accurate representation of that meeting,” according to the there is at least a broad consensus among the legal community Times . that bringing such a prosecution would violate the First Nevertheless, Joel Simon, executive director of CPJ, feared Amendment. But when you look at how the Espionage Act is that President Trump may follow through on his comments. written, it’s written so broadly that, just judging by the letter “We’ve been saying there’s a big gap between the president’s Classifi ed docs , continued on page 4 3 Classifi ed docs, continued from page 3 “While journalists have been caught up particularly media experts and of the law, newspapers are violating it inprosecutions of leakers, a move to advocates who viewed the potential all the time.” Timm added, “[T]here’s directly target and jail them would be subpoenas as threats against press nothing stopping the DOJ from trying a marked change for the government,” freedom. In an interview with Yahoo to bring that case, and that’s what’s so Ellerbeck wrote. “The likelihood of News, Silha Center Director and disturbing. Even the specter of such a journalists in the U.S. being imprisoned Silha Professor of Media Ethics prosecution would certainly chill a lot of for publishing classifi ed information and Law Jane Kirtley said that the reporting.” has not been legally tested, but lawyers targeting of journalists who publish President Trump’s threat to jail point out that sections of U.S. law could sensitive information was “a reality journalists is not without precedent. In expose them to prosecution.” that we have to prepare for.” Kirtley some cases, journalists have been caught continued, “We knew the Trump up in the prosecution of leakers. One U.S. Attorney General Announces administration was going to take on the example is James Risen, a Pulitzer Prize New Efforts in Search for Leakers, issue of leaking.. . . We’ve never had a winning journalist and author. In 2010, Including Subpoenaing Reporters prosecution of journalists for being the federal prosecutors indicted Jeffrey On August 4, The Hill reported recipient of leaks. This could be the fi rst Sterling, a former Central Intelligence that during a news conference with time that happens.” Agency (CIA) offi cer, alleging that Dan Coats, the director of national In an August 4 statement, the Sterling provided classifi ed information intelligence, Attorney General Jeff American Society of News Editors for Risen’s book, State of War . In 2011, Sessions indicated that the Department (ASNE) and the Associated Press thenAttorney General Eric Holder of Justice (DOJ) was “reviewing its Media Editors (APME) expressed authorized a subpoena ordering Risen policies” regarding subpoenas for concern regarding Sessions’ statements. to testify at Sterling’s trial. Risen refused members of the news media who “Attorney General Sessions’ remarks to testify, arguing that he had a First publish leaked information, further minimize the care with which Amendment right to protect his source. raising concerns about the Trump journalists treat their sources and their In 2013, a Fourth Circuit threejudge administration targeting journalists for information,” said ASNE President panel overturned a district court order, leaks. Mizell Stewart III in the press release. which had prevented prosecutors from In the August 4 news conference, “The publication of information received asking Risen the name of his source. Sessions said, “I have listened to career from a confi dential source, especially After the U.S. Supreme Court declined investigators and prosecutors about classifi ed information or information to hear Risen’s case in June 2014, he how to most successfully investigate relating to national security in any way, faced potential jail time for contempt. and prosecute these matters.. . .At their occurs only after signifi cant vetting However, the DOJ did not seek Risen’s suggestion, one of the things we are by several people at all levels of the testimony during Sterling’s actual trial, doing is reviewing policies affecting newsroom. It is also welldocumented according to a Jan. 12, 2015 New York media subpoenas.” Sessions continued, that media outlets actively seek Times story. (Risen and his attorney Joel “We respect the important role the press the input of the government before Kurtzberg were the 2015 Silha lecturers. plays and we’ll give them respect, but publishing any sensitive information.” For more information about the it’s not unlimited.. . . They cannot place APME First Amendment committee lecture, see “30th Annual Silha Lecture lives at risk with impunity. We must chairman Dennis Anderson agreed. “We Addresses Challenges to Reporting on balance the press’ role with protecting are acutely concerned that the attorney National Security Matters” in the Fall our national security and the lives of general seeks to roll back protections 2015 issue of the Silha Bulletin and “30th those who serve in the intelligence for reporters that were strengthened Annual Silha Lecture to Feature New community, the Armed Forces and all only after it was revealed that the York Times Investigative Reporter James lawabiding Americans.” Department of Justice had clandestinely Risen and Attorney Joel Kurtzberg” According to The Washington Post, subpoenaed the communications in the Summer 2015 issue. For more Sessions also said that the DOJ had records of 20 Associated Press reporters information on the background to “more than tripled the number of leak from various telephone providers. Risen’s case, see “Espionage Conviction investigations compared to the number Reversion to these tactics threatens the Ends Lengthy Struggle to Compel that were ongoing at the end of the last awardwinning, impactful reporting AP Journalist’s Testimony” in the Winter/ administration.” Additionally, Sessions does in the United States and around Spring 2015 issue of the Silha Bulletin, announced the creation of a new the world. As our members publish “Attorney General Holder Leaves Federal Bureau of Investigation (FBI) those stories to readers in their local Problematic Legacy on Press Rights and counterintelligence unit for managing communities on a daily basis, this is not Civil Liberties” in the Fall 2014 issue, leak cases. “This culture of leaking must just a threat to reporters and sources; it “Update: Supreme Court Declines to stop,” Sessions said according to The is a threat to our readers.” Hear Reporter’s Privilege Cases” in the New York Times on August 4. “I strongly In a separate statement, Alex Summer 2014 issue, “Reporters Struggle agree with the president and condemn Ellerbeck, senior Americas and U.S. to Claim Privilege to Avoid Testifying in the strongest terms the staggering research associate at the Committee About Confi dential Sources” in the number of leaks.” to Protect Journalists (CPJ), discussed Fall 2013 issue, and “Judges Rebuke President Trump tweeted his the implications of the Trump Government on Leak Prosecutions” in approval of the efforts to fi nd and administration’s pursuit of leakers on the Summer 2011 issue.) prosecute leakers on August 5. “After journalists. “Independent journalism However, Ellerbeck highlighted many years of LEAKS going on in in the public interest depends on the difference between Risen’s case Washington, it is great to see the A.G. reporters’ being able to communicate and President Trump’s comments to taking action!” Trump wrote. privately with sources,” Ellerbeck wrote Comey in a May 20, 2017 CPJ story. Sessions’ comments, however, did on August 4. “Rolling back the limited not receive approval from everyone, protections on communication between 4 journalists and their sources would agency was not identifi ed, The New C. Garrick contended that there was lessen the public’s ability to hold their York Times reported on June 5 that the probable cause to believe Winner elected leaders to account and weaken NSA used Pluribus contractors and had violated the Espionage Act, which hardwon standards of source protection opened a branch facility near Augusta in provides: “whoever having unauthorized around the world.” 2012. possession of, access to, or control However, The New York Times On June 1, Pluribus notifi ed the FBI over any document . . . or information reported on August 6 that deputy that it had been contacted by reporters relating to the national defense which Attorney General Rod J. Rosenstein told from The Intercept two days earlier, information the possessor has reason “Fox News Sunday” that the DOJ would according to a June 5, 2017 Bloomberg to believe could be used to the injury of not be pursing reporters as part of its story. The New York Times reported the United States or to the advantage increasing leak investigations. “We don’t that The Intercept had approached of any foreign nation, willfully prosecute journalists for doing their the NSA with questions for their story communicates, delivers, transmits or jobs,” Rosenstein said. “That’s not our and provided a copy of the document causes to be communicated, delivered, goal here.” Nevertheless, Rosenstein they had obtained from Winner. In an or transmitted . . . shall be fi ned or maintained that concerns about press interview with CNN on June 6, The imprisoned not more than ten years, or freedom following Sessions’ remarks Intercept’s director of communications both.” 18 U.S.C. § 793(e). were an “overreaction” and reiterated Vivian Siu said the document was Garrick contended that there that reporters cannot expect “unlimited” provided anonymously and that the was probable cause because Winner freedom in handling leaked material, news agency had no knowledge of the “admitted intentionally identifying according to the Times . identity of the source. and printing the classifi ed intelligence “Generally speaking, reporters A June 5 affi davit in support of reporting at issue despite not having who publish information are not application for an arrest warrant against a ‘need to know,’ and with knowledge committing a crime. But there might Winner alleged that the leaked material that the intelligence reporting was be a circumstance where they do,” was marked with a warning that the classifi ed.” According to the affi davit, Rosenstein said. “I haven’t seen any of release of the information “could Winner also admitted to “removing the those today, but I wouldn’t rule it out in reasonably result in exceptionally classifi ed intelligence [report] from her the event that there were a case where grave damage to the national security.” offi ce space, retaining it, and mailing it a reporter was purposely violating the According to The New York Times , from Augusta, Georgia” to The Intercept, law.” the report described two cyberattacks which she knew was not authorized As the Bulletin went to press, the by Russia’s Main Intelligence Agency to receive or possess the documents. Trump administration and the DOJ had (GRU) on a U.S. voting software Winner also said she knew “the contents not yet subpoenaed a member of the supplier during the 2016 presidential of the reporting could be used to the news media. election. On June 6, Ars Technica injury of the United States and to the reported that by handing over a copy advantage of a foreign nation.” The full Department of Justice Arrest of the document to the NSA to verify affi davit is available online at: https:// of NSA Leaker Marks First its authenticity, The Intercept exposed www.justice.gov/opa/pressrelease/ Such Prosecution under Trump Winner as the source. The FBI was fi le/971331/download. Administration able to determine that Winner leaked According to a statement by Assistant On June 9, 2017, a National Security the document because the NSA’s U.S. Attorney Jennifer Solari, Winner Agency (NSA) contractor who leaked auditing system showed that six people told FBI agents she was “mad about a classifi ed report regarding Russia’s had printed the document, but only what she had recently seen in the interference in the 2016 presidential Winner had email contact with The media” and “wanted to set the facts election pled not guilty after being Intercept. Additionally, the document right.” Solari also indicated that Winner indicted by a federal grand jury on had watermarks revealing when it was used her work computer to search the one count of “willful retention and printed and on what printer. question, “Do top secret computers transmission of national defense Editorinchief of The Intercept detect when fl ash drives are inserted?” information.” Reality Leigh Winner faces Betsey Reed later released a statement On June 10, the FBI searched Winner’s 10 years in prison and/or a $250,000 fi ne on the news organization’s website home and seized notebooks, cellphones, if convicted under the Espionage Act apologizing for not taking better computers, and Winner’s passport. for leaking an NSA intelligence report to precautions to protect their source. “At In one notebook, Winner had written the news outlet The Intercept on May 5. several points in the editorial process, the phrase “I want to burn the White Winner’s arrest marks the fi rst criminal our practices fell short of the standards House down” and move to Nepal or leak case under President Donald to which we hold ourselves,” Reed Kurdistan, Solari alleged. The Atlantic Trump’s administration. said. “We should have taken greater also reported on June 9 that Winner had In February 2017, Winner, a former precautions to protect the identity of a often tweeted about government leaks U.S. Air Force linguist, was assigned source who was anonymous even to us.” and followed the Twitter accounts of to a government agency during her Reed also announced that The Intercept Edward Snowden and WikiLeaks, as work for Pluribus International Corp. and its parent company, First Look, well as accounts tied to the hacking in Augusta, Ga. where she was given were donating money to help defend network Anonymous. topsecret security clearance. Pluribus is Winner. The Intercept published a story based a government contractor that “provides On June 5, Winner was arrested on on the leaked document about an hour trained and experienced experts in accusations of “removing classifi ed after Winner’s arrest. The article is intelligence, counterintelligence, and material from a government facility available online at: https://theintercept. counterterrorism,” according to its and mailing it to a news outlet.” In website. Although the government the affi davit, FBI Special Agent Justin Classifi ed docs , continued on page 6

5 Classifi ed docs, continued from page 5 for information in our democracy” and Holder Leaves Problematic Legacy on Press Rights and Civil Liberties” in the com/2017/06/05/topsecretnsareport that prosecuting leakers results in a Fall 2014 issue, Manning, Kiriakou Face detailsrussianhackingeffortdays “less informed public and less account Punishment for Blowing the Whistle before2016election/. Bloomberg able government.” Shamsi added, “It on the War on Terror” in the Winter/ reported that government offi cials, would be deeply problematic if this Spring 2013 issue, “Leaks: New Policies including the Director of National prosecution marks the beginning of Emerge; Congress Gets Involved” in Intelligence, asked the news outlet not a Trump administration crackdown on the Summer 2012 issue, “The Obama to publish or report on the document. leaks to the press,” Shamsi said. Administration Takes on Government After declining the request, The Kathleen McClellan, who serves Leakers; Transparency May be a Intercept agreed to withhold material as national security and human rights Casualty” in the Winter/Spring 2012 that “clearly wasn’t in the public deputy director for the Whistleblower issue, “Judge Rebukes Government on interest.” and Source Protection Program, was Leak Prosecutions” in the Summer 2011 On June 8, a federal grand jury in also critical of charging Winner with issue, “Open Government Advocates Savannah, Ga. indicted Winner on violating the Espionage Act, calling it Criticize Obama’s Prosecution of one count of “willful retention and “wildly inappropriate.” “There are plenty Leakers” in the Winter/Spring 2011 transmission of national defense of regulations and other laws that you issue, and “The Media and the Military: information,” according to the could use to punish someone for leak Guantanamo Access Rules Loosened; indictment. The grand jury concluded ing,” said McClellan to The Guardian. Other Guidelines Set to Limit Leaks” in that Winner’s “unauthorized possession “It’s clear that the Trump administration the Fall 2010 issue.) of, access to, and control over a wants to punish leakers as severely, if In the fi nal days of his presidency, document containing information not more severely, than Obama did.” President Barack Obama commuted related to the national defense” and her The case against Winner marks most of the remaining prison sentence “willfully transmit[ing the document] to the fi rst such action by the Trump of Chelsea Manning, a former a person not entitled to receive it” were administration to crack down on intelligence analyst who was convicted in violation of the Espionage Act. The government workers who illegally leak of leaking details of American military indictment was fi led in the U.S. District information to the press. On February and diplomatic activities to WikiLeaks in Court for the Southern District of 16, President Trump announced that he 2010. Manning was previously sentenced Georgia Augusta Division. According to would be personally directing the DOJ to 35 years in prison. At the same time The Guardian on June 6, Winner faces to open a criminal investigation into the that he commuted Manning’s sentence, up to 10 years in prison and/or a fi ne up illegal leaks against his administration, Obama pardoned James E. Cartwright, a to $250,000 for violating the Espionage according to a February 16 New York retired Marine general who pled guilty to Act. Times story. “I’ve actually called the lying to FBI agents about conversations On June 9, Winner pled not guilty to Justice Department to look into the he had with reporters in relation leaking the document. At the detention leaks,” President Trump said during a to classifi ed information regarding hearing, prosecutors argued that Winner news conference at the White House. cyberattacks on Iran’s nuclear program. may have additional stolen government “Those are criminal leaks.” On May (For more information on Obama secrets and that she may attempt to fl ee 16, President Trump tweeted that he commuting Manning’s sentence and the country, according to a ABC News had been “asking Director Comey pardoning Cartwright, see “President report. Additionally, Solari suggested & others, from the beginning of my Obama Commutes Chelsea Manning’s that this “was not the fi rst time [Winner] administration, to fi nd the LEAKERS in Sentence, Pardons Gen. James E. mishandled classifi ed information,” the intelligence community.” Cartwright, Takes No Action on Edward according to The New York Times on The Trump administration is not Snowden” in the Winter/Spring 2017 June 8, 2017. Solari also alleged that the fi rst to prosecute leakers under issue of the Silha Bulletin.) Winner’s laptop contained software the Espionage Act. In fact, President Nancy Hollander, Manning’s attorney, that could enable her to access online Barack Obama’s administration was blackmarkets and purchase items, such emphasized that the Espionage Act especially tough on leakers. Politico prevented Winner from arguing the as a fake ID or passport. “We don’t know reported on May 12, 2016, that over how much more she knows and how disclosures were in the public interest. the course of the eightyear term, the “When people know something they much more she remembers,” Solari said. Obama administration prosecuted eight seriously and genuinely believe the “But we do know she’s very intelligent. individuals under the Espionage Act public has a right to know, and the So she’s got a lot of valuable information for disclosing sensitive information to government is keeping from the public, in her head.” the public. Previous administrations U.S. Magistrate Judge Brian Epps combined had brought only three such they have no recourse,” she said in a cited the “strong” weight of evidence prosecutions under the Espionage Act statement. “It’s very diffi cult for her against Winner and ordered that she against government leakers since the to defend herself since she can’t ever remain in jail until her trial. As the law was adopted in 1917. (For more on explain, until such time that she’s Bulletin went to press, Winner remained the Obama administration’s prosecution sentenced, why she did what she did, in prison pending her trial, which was of individuals under the Espionage what her motive was.” set for October 23. Act, see “President Barack Obama SCOTT M EMMEL Hina Shamsi, director of the ACLU’s Leaves Mixed Legacy on Government national security project, told The Transparency” in the Fall 2016 issue of SILHA BULLETIN E DITOR Guardian that leaks are a “vital source the Silha Bulletin, “Attorney General

6 Journalists Face Physical Restraints and Arrests; Trump Video Raises Further Concerns about Violence Against the Media uring the summer of 2017, The criminal complaint alleged that Department of Military Affairs and Public several journalists were Heyman was “aggressively [trying to] Safety, which oversees the West Virginia physically restrained or breach Secret Service security to the Capitol Police, told CPJ that Heyman arrested in the process of point that agents were forced to remove “wasn’t arrested for asking a question. It is newsgathering duties. On him a couple times from the area.” the actions of this individual that set him DMay 9, 2017, a reporter for Public News The full complaint is available online apart from the other reporters trying to Service in West Virginia was arrested and at: https://www.documentcloud.org/ cover the event.” charged with a misdemeanor count of documents/ 3711449DanielHeyman In his editorial for The Washington “willful disruption CriminalComplaint.html. In a May 10 Post, Heyman responded to Price’s press ENDANGERED of governmental news conference, Heyman said he was conference comment. “I would have JOURNALISTS processes” after only reaching over some of the staff and preferred to go to a news conference — asking government security personnel surrounding Price and ask my one question, sit down and shut up. offi cials a series Conway with his Android smartphone, But Price, like many of the other public of questions in the hallway of the West according to the Times . In a May 16 offi cials supporting the AHCA, has been Virginia State Capitol in Charleston. On editorial for The Washington Post , Heyman tightly restricting press and public access May 18, 2017, a reporter for Congressional contended that he was wearing his press when he might be asked about health Quarterly, Inc. (CQ) Roll Call alleged he pass and identifi ed himself as a reporter to care.” He added that he saw an outpouring was pushed against a wall by security and the authorities present in the hallway. of support on his Twitter account because forced to leave a Federal Communications Heyman was detained by West Virginia his arrest “confi rm[ed] people’s worst fears Commission (FCC) meeting after Capitol Police offi cers and charged about the erosion of a free press.” approaching an FCC commissioner with one misdemeanor count of “willful Heyman’s arrest garnered attention with a question. On June 12, 2017, a disruption of governmental processes,” from several fellow reporters and media congressmanelect for Montana’s open as reported by National Public Radio advocates who considered it an affront seat in the U.S. House of Representatives (NPR) on May 10. Kristen O’Sullivan, a to freedom of the press. In an interview pled guilty to misdemeanor assault after protestor who saw the arrest and recorded with Public News Service on May 10, “body slamming” a Guardian reporter it on her phone, told Public News Service outreach coordinator for the West Virginia during a May 24 campaign event. And, that Capitol security offi cers “grabbed Citizen Action Group Valerie Woody, who on July 2, 2017, President Donald Trump [Heyman] by the back of the neck and was present during the arrest, defended tweeted a video that portrayed the [pushed him] against a wall.” the actions of Heyman. “I saw nothing president wrestling a man whose head was Heyman spent eight hours in the South in his behavior, I heard nothing that superimposed with the CNN logo, further Central Regional Jail before being released indicated any kind of aggressive behavior raising concerns about violence against when his employer posted a $5,000 bond, or anything like that,” she said. “Just members of the media. according to a May 10 Reuters report. The simple, you know, trying to get somebody’s maximum penalty under West Virginia law attention and ask them a question. It seems West Virginia Journalist Arrested is a fi ne of up to $100 and up to six months to me there was no violation of anyone’s On May 9, 2017, a reporter for Public in jail. As the Bulletin went to press, a space, or physicality, other than the arrest News Service in West Virginia was arrested court date had not been set. itself.” after asking Secretary of the Department of In an interview with CNBC, Heyman In a May 10 commentary, CPJ senior Health and Human Services Tom Price and criticized the actions of the capitol U.S. and Americas research associate President Donald Trump’s senior advisor security. “I think it’s a terrible example,” Alexandra Ellerbeck wrote, “The arrest Kellyanne Conway a series of questions Heyman said. “I think it’s dreadful. I of a journalist trying to ask a question in the hallway of the West Virginia State mean, well, this is my job. This is what I’m in the public interest is a clear affront to Capitol. Dan Heyman’s arrest drew supposed do. I am supposed to go out and press freedom,” she said. “West Virginia attention from fellow reporters and media fi nd out if somebody is going to be affected authorities should drop all charges against advocates, including the American Civil by this healthcare law.” At the May 10 Dan Heyman immediately and respect Liberties Union (ACLU) and the Committee press conference, Heyman’s attorney Tim journalists’ right to question government to Protect Journalists (CPJ). DiPiero called the arrest a “highly unusual offi cials.” The New York Times reported on May case” and said he has never had a client In a statement, the ACLU of West 10 that Heyman persistently shouted arrested for “talking too loud,” according Virginia called the arrest “a blatant attempt questions at Price and Conway as the to The Washington Post on May 10. to chill an independent, free press.” The two walked down a hallway in the capitol Price defended the police during a statement added, “This is a dangerous time following a May 9 press conference. meeting in New Hampshire on May 10, in our country. Freedom of the press is Heyman was attempting to question the contending that they “did what they being eroded every day.” two regarding whether domestic violence felt was appropriate,” according to the ACLU legal director Jamie Lynn Crofts would be considered a preexisting Associated Press (AP). Price also said said the arrest falls under a pattern condition under the American Health Care the arrest was “not my decision to make” set during Donald Trump’s presidency. Act (ACHA) passed by the U.S. House of but added that “[Heyman] was not in a “They have shown us every day since Representatives, according to the Times . press conference.” Lawrence Messina, Donald Trump took offi ce they don’t care a spokesman for the West Virginia Violence, continued on page 8 7 Violence, continued from page 7 don’t have to answer. But it is completely toward journalists. The senators wrote, unacceptable to physically restrain a “Yesterday’s incident at the FCC is not about the First Amendment or the free reporter who has done nothing wrong or an isolated one and seems to be a part of press. Today was just another example force him or her to leave a public building a larger pattern of hostility towards the of that. It’s horrifying," Crofts said in a as if a crime had been committed.” press characteristic of this Administration, May 10 interview with CNBC. (For more NPC Journalism Institute president which underscores our serious concern. information about President Trump’s Barbara Cochran also condemned the Recent examples . . . make this most relationship with the media, see “Reporters action of the FCC security guards. “The recent incident a new low point in and Leakers of Classifi ed Documents FCC and other government buildings are a disturbing trend.” The full letter is Targeted by President Trump and the DOJ” paid for by U.S. tax dollars, and offi cials available online at: https://www.scribd. on page 1 and “President Trump and his who work there are accountable to the com/document/348869989/Sens-Udall- Administration Spark Debate Over Several public through its representatives in the and-Hassan-Ltr-to-FCC-Re-Journalist- Media Law Issues” on page 11 in this issue media,” Cochran said in a statement. “The Incident-5-19-17. of the Silha Bulletin, “Media Face Several FCC should apologize for this incident Kathy Kiely, the 2017 Press Freedom Challenges During President Trump’s First and ensure that their guards are trained Fellow at the NPC Journalism Institute, Months in Offi ce” in the Winter/Spring 2017 to respect the right of journalists to cover agreed that the events refl ect the current issue, and “2016 Presidential Candidates FCC public events. In other words: hands political climate. “Incidents like these, Present Challenges for Free Expression” in off reporters!” The release is available occurring under a president who has the Summer 2016 issue.) online at: http://www.press.org/news- openly threatened a free press, take on a greater and more ominous signifi cance,” FCC Commissioner Apologizes for multimedia/news/club-leaders-protest- Kiely said in a May 19 statement. “And Treatment of Reporter report-reporter-manhandled-fcc-guards- they do not seem to be isolated.” (For On May 18, 2017, John M. Donnelly, a because-he-asked-que. more information about President Trump’s reporter for Congressional Quarterly, Inc. Donnelly tweeted about the interaction, relationship with the media, see “Reporters (CQ) Roll Call, said he was shoved against directing his commentary to O’Rielly’s and Leakers of Classifi ed Documents a wall by plainclothes security guards and Twitter account @mikeofcc, as well as Targeted by President Trump and the DOJ” forced to leave a Federal Communications the @fcc account and FCC Chairman Ajit on page 1 and “President Trump and his Commission (FCC) meeting in Washington, Pai’s account @ajitpaifcc. O’Rielly initially Administration Spark Debate Over Several D.C. after approaching FCC commissioner responded to Donnelly by saying he had Media Law Issues” on page 11 in this issue Mike O’Rielly to ask a question. The not witnessed any guards putting hands on of the Silha Bulletin, “Media Face Several following day, O’Rielly apologized to the the reporter and said he would be “happy Challenges During President Trump’s First reporter. Media experts and advocates, to answer questions you may have.” Months in Offi ce” in the Winter/Spring 2017 among others, denounced the actions by O’Rielly later apologized to Donnelly issue, and “2016 Presidential Candidates FCC security, citing the current political in a May 19 tweet, claiming he did not Present Challenges for Free Expression” in climate and President Donald Trump’s recognize Donnelly in the hallway. “I saw the Summer 2016 issue.) criticism of the press as contributing security put themselves between you, me and my staff. I didn’t see anyone put a hand factors. Montana Politician “Body Slams” On May 18, the National Press Club on you. I’m sorry this occurred.” In a May 19 email to Politico, an FCC spokesperson Journalist, Pleads Guilty to (NPC) published a press release detailing Misdemeanor Assault how Donnelly was “manhandled” during said, “We apologized to Mr. Donnelly more than once and let him know that the FCC On June 12, 2017, U.S. Representative the FCC meeting. According to the NPC, Greg Gianforte (R-Mont.), then- when Donnelly approached O’Rielly was on heightened alert today based on several threats.” congressman-elect, pled guilty to to ask a question, two security guards, misdemeanor assault after “body which included Frederick Bucher, “pinned Donnelly responded in a tweet that he appreciated the apologies, but was critical slamming” Guardian political reporter Ben Donnelly against the wall with the backs Jacobs during a May 24 campaign event. of their bodies until O’Rielly had passed.” of the FCC’s statement about security threats. “There’s no way I could have been Gianforte later apologized for the incident Bucher asked Donnelly why he had and was sentenced to a 180-day deferred not posed his question during the press mistaken for a threat,” said Donnelly. “And if their guards are that bad at sentence, including community service conference, according to the release. and anger management. Several media Bucher then forced the journalist to leave discriminating threats, then THAT is their biggest security problem.” organizations and advocates denounced the building under an “implied threat of the attack, calling it an “assault” on force.” The release also alleged that the On May 19, U.S. Sens. Tom Udall (D-N.M.) and Maggie Hassan (D-N.H.) sent democracy, among other claims. security guards “had shadowed Donnelly On May 24, 2017, Jacobs asked as if he were a security threat” throughout a letter to Pai demanding an explanation for the events. “Given the FCC’s role as Gianforte about the Republican healthcare the meeting. plan when the candidate allegedly “body In the release, Donnelly said, “I could the primary authority for communications law and its regulatory role with respect to slammed” Jacobs, according to The not have been less threatening or more Guardian on May 24. In an interview polite.. . . There is no justifi cation for using the media, the FCC should set a sterling example when it comes to supporting the with The Guardian, Fox News journalist force in such a situation.” NPC President Alicia Acuna, producer Faith Mangan, and Jeff Ballou denounced the physical First Amendment and freedom of the press for other government entities here in the photojournalist Keith Railey, who were restraint of a reporter. “Donnelly was doing present at the campaign event, described his job and doing it with his characteristic United States and around the world,” the senators wrote. Gianforte as “slamming [Jacobs] to the civility,” Ballou said. “Reporters can ask ground while shouting ‘Get the hell out questions in any area of a public building Additionally, the senators included a list of incidents involving President of here.’” In a May 24 story for Fox News, that is not marked off as restricted to them. Acuna wrote that Gianforte “grabbed Offi cials who are fi elding the questions Donald Trump’s administration’s mistreatment and negative comments Jacobs by the neck with both hands and 8 slammed him into the ground behind him.. Challenges During President Trump’s First The Huffi ngton Post reported on July . . Gianforte then began punching the Months in Offi ce” in the Winter/Spring 2017 18 that Gianforte fought a court order reporter.” According to Acuna, Jacobs did issue, and “2016 Presidential Candidates requiring him to get fi ngerprinted and not “show any form of physical aggression Present Challenges for Free Expression” in photographed following pleading guilty. toward Gianforte.” Jacobs’ glasses were the Summer 2016 issue.) His legal team fi led a motion on June 15 broken in the assault and he was sent to CNN reported on May 26 that despite arguing that Gallatin County’s Justice the hospital for X-rays. the incident, Gianforte had won the special Court does not have the authority to force Jacobs reported the incident to the election for Montana’s open U.S. House Gianforte to provide be fi ngerprinted or police, who charged Gianforte with of Representatives seat. In his acceptance photographed because he was not arrested misdemeanor assault later that night, as speech, Gianforte apologized to Jacobs. or charged with a felony, according to The reported by The Guardian. Jacobs also “When you make a mistake, you have Huffi ngton Post. Gallatin County Attorney posted a series of tweets recalling the to own up to it,” Gianforte said. “That’s Marty Lambert fi led a response on July 20, incident. the Montana way.. . . I should not have contending “the legal arguments offered Several media members and advocates responded the way I did, for that I’m sorry. in support of defendant’s motion lack were critical of Gianforte’s actions. In a I should not have treated that reporter merit and the motion should be denied.” May 25 post on the Newseum Institute’s that way, and for that I’m sorry, Mr. Ben He added, “[Gianforte] should obey this website, Gene Policinski, the chief Jacobs.” Additionally, Gianforte said, “If court’s order.” operating offi cer of the Institute, wrote, and when you’re ready, I look forward On August 23, West wrote in a one-page “Sadly, shamefully, disgustingly, it has to sitting down with you,” referencing order that Gianforte has until September come to this . . . Do not be fooled. It’s Jacobs’ statement in June that he “hope[d] 15 to report to the Gallatin County democracy that got ‘body slammed’ to fi nally interview [Gianforte] once Detention Center to provide the booking Wednesday night. It’s respect for the he’s arrived on Capitol Hill.” However, information, according to the Bozeman rule of law that was dealt a blow. It’s the as reported by The Washington Post on Daily Chronicle. As the Bulletin went to First Amendment that was insulted by August 23, Gianforte had not done an press, Gianforte had not been fi ngerprinted Gianforte’s attempt to justify what he did: interview with Jacobs, nor had he met with or photographed.. attacking a reporter asking a reasonable the journalist. Nancy Keenan, executive director question, on a matter of great public On June 21, Gianforte was sworn into of the Montana Democratic Party, told interest, to a political candidate on the eve the House by Speaker of the House Paul The Huffi ngton Post in an email that of an important election.” The Reporters Ryan (R-WI), who had previously called for Gianforte’s motion was at odds with his Committee for Freedom of the Press the politician to apologize, according to a apology to Jacobs. “Greg Gianforte claims (RCFP) called the incident “an assault on June 21 CBS News report. he has ‘taken responsibility’ for assaulting the very core of democratic life,” in a May As part of a deal with Jacobs to avoid a reporter who asked him about health 25 statement. a civil lawsuit, Gianforte agreed to donate care, but he continues to do everything On June 2, PEN America, the Free Press $50,000 to the Committee to Protect in his power to fi ght a routine criminal Action Fund, Reporters Without Borders, Journalists (CPJ) “in the hope that perhaps procedure resulting from his conviction,” and the Society of Professional Journalists some good can come of these events,” Keenan wrote. “No matter what he says, (SPJ) fi led a complaint with the Offi ce of according to a June 8 ABC News report. it’s clear to Montanans that Congressman Congressional Ethics, an independent, On June 12, National Public Radio Gianforte has not taken responsibility at nonpartisan agency within Congress that (NPR) reported that Gianforte pled guilty all. He’s hidden from it.” investigates ethics complaints. Among to the charge of misdemeanor assault. In other claims, the complaint contended a tweet on the same day, Bozeman Daily Trump Tweets Video Depicting Himself that Gianforte was in violation of House Chronicle journalist Whitney Bermes Wrestling “CNN”; CNN’s Decision to Rule 23, clause 1, which states, “A Member, reported that Gallatin County Judge Rick Withhold Reddit User’s Name Prompts Delegate, Resident Commissioner, offi cer, West had originally sentenced Gianforte to Ethical Concerns or employee of the House shall conduct four days in jail. However, after speaking On July 2, 2017, President Donald himself at all times in a manner that shall with prosecutors and defense lawyers, Trump tweeted a video in which he is refl ect creditably on the House.” The full West changed the sentence to include a portrayed wrestling and punching a man complaint is available online at: https:// 180-day deferred sentence, 40 hours of whose face was superimposed with the pen.org/wp-content/uploads/2017/06/ community service, 20 hours of anger CNN logo. Media members and advocates PEN-America-White-House-Letter-for- management and a $300 fi ne along with denounced the video as promoting violence Submission.docx.pdf. a $85 court fee, according to Bermes. against journalists, while supporters of the The organizations also sent a letter to Gianforte had faced a maximum penalty president defended it as being satirical. the House ethics committee to remind of a $500 fi ne and six months in jail under Following President Trump’s tweet, CNN the panel that it is required to open an Montana law. discovered the identity of the Reddit user investigation within 30 days. Additionally, Jacobs responded in a statement who had originally published the video to the organizations sent a letter to President that he hoped the sentencing would the message board site. However, CNN’s Donald Trump criticizing his rhetoric help demonstrate the important role of decision to withhold the identity of the toward the media. (For more information the press. “While I have no doubt that individual after he issued a public apology about President Trump’s relationship actions like these were an aberration for raised ethical questions about whether with the media, see “Reporters and Congressman-elect Gianforte personally, I CNN committed “blackmail” or “extortion,” Leakers of Classifi ed Documents Targeted worry that, in the context of our political among other claims. by President Trump and the DOJ” on debate, they have become increasingly The New York Times reported on page 1 and “President Trump and his common,” he wrote. “In recent years, July 2 that President Trump tweeted Administration Spark Debate Over Several our discourse has grown increasingly “#FraudNewsCNN #FNN,” which was Media Law Issues” on page 11 in this issue rancorous and increasingly vile. This needs Violence, continued on page 10 of the Silha Bulletin, “Media Face Several to stop.” 9 Violence, continued from page 9 preparing for his overseas trip, his fi rst The fi nal statement raised controversy meeting with Vladimir Putin, dealing with over the ethical implications of CNN’s accompanied by an edited clip from North Korea and working on his health actions. Conservative activist Ben Shapiro President Trump’s appearance at care bill, he is instead involved in juvenile called it “essentially blackmail,” according WrestleMania, an annual professional behavior far below the dignity of his offi ce. to the AP. He added, “That’s CNN stating wrestling event. At the event, Trump We will keep doing our jobs. He should that it will out the guy if he dares to defy wrestled World Wrestling Entertainment start doing his.” their political perspective or offends them (WWE) CEO Vince McMahon, whose head Conversely, many of President suffi ciently.” was replaced with the CNN logo in the Trump’s supporters and spokespersons Senator Ted Cruz (R-Texas), contended 28-second clip. According to the Times , endorsed his response to what they say is that CNN violated Georgia state law’s the video fi rst appeared in June 2017 on unfair treatment of the president by the prohibition against “theft by extortion,” a Trump-dedicated page on Reddit. The mainstream media. Two CNN political which makes it a crime if CNN “threatened video became @realDonaldTrump’s most- commentators, Kayleigh McEnany and to ‘[d]isseminate any information tending shared tweet, according to The Hill on July Sally Kohn, engaged in a heated exchange to subject any person to hatred, contempt, 5. The video was also shared from the @ on July 2 over the tweet, with Kohn or ridicule.” Ga. Code Ann., § 16-8-16. POTUS account, meaning it is archived as questioning how McEnany could defend WikiLeaks founder Julian Assange argued an offi cial presidential statement by the the president’s decision in tweeting the that CNN had violated New York’s criminal National Archives under the Presidential video. “I can’t believe you can defend this,” code against “coercion,” NY Penal Code Records Act. Kohn said. “I mean, really? Is there . . . is § 135.60, and federal law regarding Journalists and media advocates there no line? Like, if that had been a “conspiracy against rights.” 18 U.S.C.A. § were quick to denounce the president’s picture not of a CNN logo, but it had been 241. Additionally, Donald Trump Jr., among tweet as a threat to their safety and an Jake Tapper’s head he was punching, others, falsely alleged that the Reddit user unpresidential move. “I think it is unseemly would that cross a line for you? What if it was a 15-year-old boy, according to a July 5 that the president would attack journalists was a picture of Donald Trump holding a story by Vox . for doing their jobs, and encourage such bloodied CNN logo up? When does it cross CNN responded in a statement that “[a] anger at the media,” The New York Times the line?” ny assertion that the network blackmailed executive editor Dean Baquet said in a July McEnany reiterated she would not have or coerced him is false.” The statement 2 statement. advised Trump to tweet the video, but continued, “The user, who is an adult Courtney Radsch, advocacy director she also said, “I think it was intended as a male, not a 15-year-old boy, apologized and for the Committee to Protect Journalists tongue-in-cheek, satirical video. Nothing deleted his account before ever speaking (CPJ), told The Guardian on July 2 that serious.” She continued that Trump has “a with our reporter. CNN never made any “[s]ingling out individual journalists and right to fi ght back” when he feels that he’s deal, of any kind, with the user. In fact, news outlets creates a chilling effect and unfairly attacked in the press. CNN included its decision to withhold the fosters an environment where further President Trump’s Homeland Security user’s identity in an effort to be completely harassment and even physical attacks are Adviser Thomas Bossert argued that transparent that there was no deal.” CNN seen to be acceptable.” She continued, “[n]o one would perceive that as a threat,” added that it opted to publish the user’s “We are already concerned about physical in a July 2 interview with ABC News. name “out of concern for his safety.” attacks on reporters.. . . And clearly the Reuters reported on July 6 that during In a July 6 interview, “AirTalk” host White House’s charged rhetoric online a news conference in Poland, Trump Larry Mantle asked Silha Center Director undermines the media in the US and criticized CNN for taking the video “too and Silha Professor of Media Ethics and emboldens autocratic leaders around the seriously.” Law Jane Kirtley if it was ethical for CNN world.” Following President Trump’s tweet, to put conditions on an individual as to Radsch added that the video was CNN identifi ed the Reddit user who whether they publicly name him or not. especially alarming given recent assaults originally published the video as Kirtley responded, “In my opinion, news on working journalists. “We already saw “HanA------Solo [sic]” and reached out organizations exist for reporting the that there has been at least one serious to him, according to a July 5 Associated news. If they decided that the identity attack recently, on Ben Jacobs, a reporter Press (AP) story. The user issued a of this individual was newsworthy, then for The Guardian, and this does not create public apology on July 6 for the video, I think they should have reported it.. . . a positive environment for the press online which he called a “prank” and “purely If it’s not newsworthy and they choose or offl ine,” she said. satire,” according to the AP. The user also not to publish it, then there’s no need for Three days prior to the president’s apologized for other racist and anti-Semitic this back and forth with this guy.” Kirtley tweet, Deputy White House Press Secretary postings. added, “People are tossing around words Sarah Huckabee Sanders told the White The day after the public apology, CNN like ‘blackmail’ and ‘extortion’ and as a House Press Corps, “The President in no reporter Andrew Kaczynski posted an lawyer I fi nd that troubling because I’m way form or fashion has ever promoted or online story detailing how CNN found the not at all sure that either word would encouraged violence. If anything, quite the Reddit user and that the news organization apply in this set of circumstances. But contrary.” CNN’s communications account had decided not to publish the user’s name from an ethical perspective, I think CNN @CNNPR tweeted the quote as a reply to “because he is a private citizen who has did something pretty stupid which was to the wrestling video. issued an extensive statement of apology, engage in a dialogue with this individual.” In its offi cial statement on the video, showed his remorse by saying he has taken Kirtley contended that a news CNN again referenced Huckabee Sanders’ down all his offending posts, and because organization should consider any harm or statement saying, “It is a sad day when the he said he is not going to repeat this ugly retribution that may result from publishing President of the United States encourages behavior on social media again.” Kaczynski the name of an individual. “I think anytime violence against reporters. Clearly, Sarah added “CNN reserves the right to publish you’re dealing with an individual who Huckabee Sanders lied when she said the his identity should any of that change.” President had never done so. Instead of Violence, continued on page 11 10 President Trump and His Administration Spark Debate Over Media Law Issues n the summer of 2017, comments citing the importance of government depth and context, and provides the and actions by President Donald accountability and transparency White House with information and Trump and his administration through the newsgathering process. In ready access to a massive international raised First Amendment concerns, the weeks following President Trump’s audience,” she told the Houston among other media law issues. On comments, although the briefi ngs were Chronicle. “Daily briefi ngs, beyond just IMay 12, 2017, President Trump suggested not completely canceled, journalists the giveandtake with reporters, convey that he would consider canceling all covering the White House reported a to the world what U.S. policies are, and future White House press briefi ngs. The decrease in their number and claimed what the president is prioritizing. The comments came that they were often restricted from exercise helps the administration hone FIRST as the briefi ngs recording video and audio. its messaging, and provides tips and AMENDMENT were increasingly On May 12, President Trump posted information about what is happening done off-camera on Twitter, “As a very active President and being said outside of the White and with less frequency than earlier in with lots of things happening, it is not House.” She added, “Our leaders from Trump’s presidency. On June 6, 2017, the possible for my surrogates to stand at both parties regularly lecture other Knight First Amendment Institute asked podium with perfect accuracy!” Moments nations about democracy, including President Trump to unblock Twitter later, President Trump tweeted “Maybe press freedoms. What kind of example users who had been critical of the the best thing to do would be to cancel would it set to allow, as President Trump president. If President Trump complied, all future ‘press briefi ngs’ and hand has proposed, only written questions the users would once again be able to see out written responses for the sake of from journalists? The idea is completely and respond to the president’s tweets, as accuracy???” unacceptable, and letting it happen, well as view his following and follower Later the same day, President Trump just because his briefers are out of the lists and his likes. On July 11, the Knight reiterated his position in an interview loop, would be a dangerous failure of Institute fi led a complaint for declaratory with Fox News’ Jeanine Pirro, who journalism.” and injunctive relief in the United States asked him what he felt could be done Jeff Mason, a White House District Court for the Southern District to rectify the inaccuracies presented by correspondent for Reuters and president of New York, citing the First Amendment the media. Trump responded, “We don’t of the White House Correspondents’ and public forum doctrine, among other have press conferences. We just don’t Association, outlined potential arguments. have them. Unless I have them every two consequences of canceling the weeks and do it myself. We don’t have briefi ngs entirely. “Doing away with President Trump Considers them. I think it’s a good idea.” briefi ngs would reduce accountability, Canceling White House Briefi ngs Former White House correspondent transparency and the opportunity On May 12, 2017, President Donald for the Houston Chronicle Julie Mason for Americans to see that, in the U.S. Trump suggested he was considering expressed her concern with canceling system, no political fi gure is above canceling all future White House press press briefi ngs. “At the White House, being questioned,” he told The New York briefi ngs, ostensibly to ensure greater being able to see and question the Times . He added, “We believe strongly accuracy. In response to the president’s president and his staff on a regular basis, that Americans should be able to watch comments, several journalists and without the formal constraints of a press and listen to senior government offi cials media advocates expressed concern conference, are important elements of regarding eliminating press briefi ngs, newsgathering. Access gives reporting Debate, continued on page 12

Violence, continued from page 10 organizations is for them to try to stay out Additionally, in a campaignstyle rally of making the news,” he said in the same on August 22, President Trump called might suffer adverse consequences if “AirTalk” program. “This is a case where journalists “sick people,” accused the their identity is revealed and it is not CNN has clearly put themselves in the news media of “trying to take away our already known, a news organization position of making the news and I don’t history and our heritage” and questioned should be weighing that in the balance of know how that helps them in any way.” their patriotism, according to the Post making their determination of whether In August, Trump further raised on August 23. He also said, “I really think the publication is newsworthy,” she said. concerns about potential violence against they don’t like our country.” Following However, in this case, Kirtley contended journalists after he retweeted a cartoon his comments, Margaret Sullivan, a media that the user was “likely mistaken” if he of a train, labeled “Trump” along its side, columnist for the Post, wrote in an August thought he would remain anonymous running over a man with the CNN logo 23 commentary that his remarks were “the after posting the video and bragging that superimposed on the top half of his body, most sustained attack any president has President Trump had retweeted his video. as reported by The Washington Post on ever made on the press.” Kirtley added, “[T]here are consequences August 15. Trump quickly deleted the Radsch told the Post, “To see this sort of to actions like that.” tweet after it sparked criticism as being attack coming yet again from the president Professor of communication at inappropriate following an incident in is deeply disturbing.. . . It creates an DePauw University Jeffrey McCall agreed which a counterprotester was killed environment in which attacks on the press, with Kirtley and argued that CNN put in Charlottesville, Va. after a white both verbal and potentially physical, could themselves in a diffi cult position. “One supremacist drove vehicle into a crowd of become common.” thing I always think is best for news counterprotesters. BRITTANY R OBB SILHA R ESEARCH A SSISTANT 11 Debate, continued from page 11 into what is a new normal in this many senior offi cials in the West Wing, country, where the president of the who believe the president has been face questions from an independent United States is allowed to insulate poorly served by his staff.” news media.. . . We are not satisfi ed with himself from answering hard questions,” Several offi cials close to the Trump the current state of play, and we will Acosta said on CNN. “I don’t know why administration suggested that the work hard to change it.” we covered that gaggle today, quite president was also considering scaling In an opinion piece for The New honestly Brooke, if they can’t give us the back Spicer’s public role. Spicer’s deputy, York Times, former White House answers to the questions on camera or Sarah Huckabee Sanders, replaced him correspondent Jim Rutenberg questioned where we can record the audio. They’re on several briefi ngs in May and June, the point of the briefi ngs if there was no basically pointless at this point.” according to Bloomberg on June 18. concern for accuracy in the fi rst place. On July 21, The “The daily White House briefi ngs have “The daily White House briefi ngs have New York Times always been used to put the president’s reported that decisions in the best light. But that’s always been used to put the president’s Spicer had resigned typically done with verifi able facts that decisions in the best light. But that’s his position, which stand no matter how hard every White was fi lled by House works to treat them like Silly typically done with verifi able facts that Huckabee Sanders. Putty.. . . Once a president drops even stand no matter how hard every White The Times reported the pretense of accuracy, what’s the House works to treat them like Silly that Spicer point?” resigned because Former Speaker of the House Newt Putty.. . . Once a president drops even he “vehemently Gingrich welcomed President Trump’s the pretense of accuracy, what’s the disagreed” with suggestion to eliminate press briefi ngs. point?” the appointment “Ignore all of these reporters,” Gingrich of New York told Fox News on May 13. “Close down fi nancier Anthony — Jim Rutenberg, the press room. Send the reporters off. Scaramucci as the They can go to Starbucks across the former New York Times White House correspondent administration’s street. I don’t care where they go. These new people are not committed to the truth. In an opinion piece for The New communications director, following They’re not committed to being neutral. York Times , Marc Dacosta called the the departure of Mike Dubke in May Why would you hang out with a bunch of decision to prevent recording press 2017. The New York Times had called people who despise you?” briefi ngs “an affront to the spirit of an Dubke’s resignation the beginning of “[a] Although the briefi ngs were not open and participatory government.” long-promised shake up of the White canceled in the weeks following He continued, “It’s especially chilling in House staff.” On July 31, multiple news President Trump’s comments, they were a country governed by a Constitution agencies reported that President Trump “downgraded,” according to a June 20 whose very First Amendment protects removed Scaramucci, another decision story by The Atlantic. During the June the freedom of the press.. . . Our in the “shake up” of the communications 12 briefi ng, then-White House Press government does millions of things each department. Secretary Sean Spicer took questions for day.. . . Each of these actions creates As the Bulletin went to press, the only 15 minutes, signaling that “[b]revity a data record and, in aggregate, these briefi ngs had not been entirely canceled. has become perhaps the defi ning feature records help us as citizens gain detailed of the briefi ng these days,” according to information about the operations of Twitter Users Critical of President CNN. For four days following the June government. Such data is a crucial tool Trump are Blocked by the President, 12 briefi ng, representatives of President for understanding and improving the Raising First Amendment Concerns Trump took only off-camera questions way our government functions. However, On June 6, 2017, First Amendment in lieu of on-camera briefi ngs. On June under President Trump, the collection lawyers at the Knight First Amendment 19 and June 23, reporters were barred and publication of public data has been Institute, a non-profi t organization from recording audio or video footage of substantially undermined.” Dacosta under the Knight Foundation and the briefi ng, according to Nieman Lab, also cited the Trump administration’s Columbia University, sent President a publication of the Nieman Journalism decision to stop publishing daily Donald Trump a letter asking him Lab at Harvard University. Additionally, White House visitor records, as well to unblock Twitter users who had The Washington Post reported on June as burying information about fi nes previously criticized or disagreed 19 that the number of White House imposed by the Occupational Safety and with the president on the social media briefi ngs had decreased signifi cantly Health Administration, as examples of site. The users were blocked from since March 2017, when there were 21 departures from past administrations accessing President Trump’s personal briefi ngs. Comparatively, there were only and from efforts for “a more transparent account, @realDonaldTrump, which he 13 in May. and open government.” uses more frequently than the offi cial Senior White House Correspondent The changing nature of the White account of the president, @POTUS. The for CNN Jim Acosta was critical of House press briefi ngs came after Knight Institute’s letter led several First the changes to the press briefi ngs, President Trump discussed “shaking Amendment lawyers, advocates, and including the use of “press gaggles” or up” the communications department, experts to comment on the applicability informal briefi ngs by the White House according to a May 18 report by Politico. of the First Amendment, public forum Press Secretary distinct from press According to The Washington Post , the doctrine, and other arguments to conferences or briefi ngs. “It feels like communications operation had come President Trump’s personal Twitter we’re slowly but surely being dragged under “sharp criticism from Trump and account. On July 11, the Knight Institute

12 fi led a complaint for declaratory and associated with [President Trump’s] “offi cial statements by the president of injunctive relief in the United States tweets.” the United States.” According to NBC District Court for the Southern District Next, the letter contended that News on June 6, this contradicted the of New York after President Trump or his President Trump’s Twitter account is a views of other White House offi cials, aides failed to unblock several Twitter “public forum” in which he “share[s his] including national security advisor users. Meanwhile, on July 25, 2017, a thoughts and decisions as President, Sebastian Gorka, who told CNN the federal district court ruled that the Chair and in which millions of people respond, day before, “It’s not policy, it’s not an of the Loudoun County (Va.) Board ask questions, and sometimes have executive order, it’s social media. Please of Supervisors engaged in viewpoint those questions answered.” The letter understand the difference,” in reference discrimination by blocking a Facebook explained that when a government to President Trump’s tweets. user from a public page, violating the offi cial or body “makes a space available Additionally, as reported by Slate plaintiff’s right of free speech under to the public at large for the purpose magazine on June 12, the United States the First Amendment and the Virginia of expressive activity, it creates a Court of Appeals for the Ninth Circuit Constitution. public forum from which it may not declared that President Trump’s Twitter According to the Twitter Help Center, constitutionally exclude individuals feed is a legally binding stream of blocking an account on the social on the basis of viewpoint.” The letter consciousness. State of Hawaii, et al. media site “restrict[s] that account’s argued that a public forum can be a v. Trump F.3d (9th Cir. 2017). In its ability to interact with your account.” metaphysical space, like Twitter, rather ruling upholding the injunction blocking Users logged into Twitter that have than just a physical space, like a town President Trump’s travel ban against been blocked cannot view the tweets, hall meeting. Therefore, by blocking Muslim individuals from some Middle following or followers lists, likes, or lists users from that “public forum,” Trump Eastern countries, the court cited of the account that blocked them. violated the First Amendment, according President Trump’s tweet on June 5 which According to a June 6, 2017 article to the Knight Institute. read “That’s right, we need a TRAVEL by Forbes, one example of a Twitter Similarly, the letter discussed the First BAN for certain DANGEROUS countries, user being blocked is Joseph M. Papp, Amendment implications of President not some politically correct term that @joepabike, who tweeted “Greetings Trump blocking individuals based on won’t help us protect our people!” from Pittsburgh, Sir” and “Why didn’t their viewpoints. The letter pointed out The court noted, “We take judicial you attend your #PittsburghNotParis that users were “blocked soon after notice of President Trump’s statement rally in DC, Sir? #fakeleader” following a having disagreed with or ridiculed as the veracity of this statement ‘can tweet by President Trump on June 3. The you (Trump).” The Knight Institute be accurately and readily determined following day, Papp, one of the Knight contended that this is a violation of from sources whose accuracy cannot Institute’s clients, discovered that he was those users’ First Amendment rights reasonably be questioned.’ Fed. R. Evid. blocked. because even if their tweets were 201(b)(2).” Another example is Twitter user Holly “scornful and acerbic,” they are still In a June 10 interview with O’Reilly, another client of the Knight protected by the First Amendment. ProPublica, American Civil Liberties Institute, who was blocked on May 28 Although the government may impose Union (ACLU) legal director Deborah after tweeting a Graphics Interchange time, place, and manner restrictions on Jeon argued that the First Amendment Format (GIF), a moving image, of the forum, it cannot exclude individuals should apply to President Trump’s Pope Francis with an uncomfortable if they disagree with the government tweets. “Where that’s the situation and facial expression during a meeting with offi cial or body. The letter emphasized taxpayer resources are going to it, then President Trump and the message, that protecting free speech critical of the full power of the First Amendment “This is how the whole world sees you,” government offi cials is “perhaps the applies,” she said. “It doesn’t matter according to Forbes. These instances core concern of the First Amendment, if they’re members of Congress or the were part of a trend in which President because the freedom of individuals to governor or a local councilperson.” Trump blocked a user after he or she engage in this kind of speech is crucial to Another argument raised by media said something with which he disagreed self-government.” experts concerns the pattern cited by the or that was critical of the president, The letter concluded by asking Knight Institute that President Trump according to a June 9 CNN story. President Trump or his aides to was blocking users who were critical On June 6, 2017, NBC News reported immediately unblock Papp and O’Reilly’s of him or shared a different viewpoint. that the Knight Institute sent a letter to accounts in particular. The letter also Clay Calvert, the Brechner Eminent President Trump urging him to unblock included @POTUS, though that account Scholar in Mass Communication at the Twitter users, particularly Papp and had purportedly not blocked any Twitter University of Florida, wrote an opinion O’Reilly who were their clients, claiming users based on their viewpoints. piece for CBS News on June 9 in which that blocking the users violated their One point of contention for First he explained that the First Amendment First Amendment rights. The letter Amendment lawyers, advocates, prohibits viewpoint-based censorship of fi rst argued that blocking particular and experts was whether the First speech, meaning the government cannot Twitter accounts “suppresses speech Amendment applied to President suppress speech in light of someone’s in a number of ways” including that the Trump’s personal Twitter account. Katie view of a topic or issue. Therefore, users cannot follow President Trump on Fallow, a senior attorney at the Knight Calvert argued that President Trump’s Twitter, are limited in their ability to see Institute who co-authored the letter, blocking of accounts that disagree with and fi nd his tweets, and cannot identify argued the First Amendment should him “is engaging in viewpoint-based which accounts follow the president. apply, citing then-White House Press censorship.” The letter also said that the blocked Secretary Sean Spicer’s statement on Twitter users were “limited in their June 6 that President Trump’s tweets ability to participate in comment threads on @realDonaldTrump constitute Debate, continued on page 14

13 Debate, continued from page 13 personal one. In an interview with has to do with the right of people to ProPublica, Volokh argued that members speak, not the right of anyone being Silha Center Director and Silha of Congress, for example, are entitled to forced to communicate with them.” Professor of Media Ethics and Law Jane private speech, even on offi cial pages, One fi nal area of debate regarding Kirtley agreed in an interview on WCCO because they are just one voice among the Knight Institute’s letter was whether News Radio. “I think what makes this many in the legislative branch. “It’s clear individuals blocked by President Trump makes this a little more complicated is that whatever my senator is, she’s not the have alternative ways to see his tweets the fact that he is issuing various kinds government. She is one person who and to express their views. Kirtley of pronouncements using this particular is part of a legislative body,” he wrote contended that these alternatives exist. Twitter account and . . . he has blocked (emphasis in original). “She was elected “The reality is that a court would look at these people specifi cally because of because she has her own views and it this and say there are alternative ways the comments they have made to him makes sense that if she has a Twitter both for you to reach the president and through the Twitter account,” Kirtley feed or a Facebook page, that may well get access to his tweets,” she said. “This said. “And there is authority out there be seen as not government speech but is not really blocking you from accessing that’s saying [that] public offi cials, while this information they do not have to take comments or “Though the architects of the or expressing questions from everybody, they can’t not your opinion.” For take those comments or questions [based Constitution surely didn’t contemplate example, a user on] ideological purposes.” presidential Twitter accounts, they could log out of In a statement, Jameel Jaffer, the their account and Knight Institute executive director, said understood that the president must not still see tweets the First Amendment was created to be allowed to banish views from public by President ensure a president cannot censor certain discourse simply because he fi nds them Trump. Or, a user viewpoints. “Though the architects of the could create a Constitution surely didn’t contemplate objectionable.” new account. An presidential Twitter accounts, they individual could understood that the president must not — Jameel Jaffer, also use alternative be allowed to banish views from public Knight First Amendment Institute methods to express discourse simply because he fi nds them executive director their opinion objectionable,” Jaffer said. besides using Calvert also discussed the Knight the voice of somebody who may be a Twitter to attempt to communicate and Institute’s argument that President government offi cial.” follow President Trump. Trump’s personal account creates a Similarly, President Trump makes However, Alex Abdo, one of the “designated public forum,” a space up one individual in the executive attorneys who signed the Knight created by the government for the branch, according to Volokh. “You Institute’s letter, argued that there purpose of speech, such as a bulletin could imagine actually some other are two injuries resulting from being board in a city hall where people president running this kind of account blocked by President Trump: not being can post fl iers for events. President in a way that’s very public minded – ‘I’m able to tweet to the president and being Trump blocking users from responding just going to express the views of the excluded from directly responding to directly to him, according to Calvert, executive branch,’” Volokh said. “The his tweets and replies from other users. is the equivalent of a citizen not being @realDonaldTrump account is very “The signifi cant harm, and one for which allowed to use the bulletin board. much, ‘I’m Donald Trump. I’m going there aren’t obvious workarounds, is Calvert contended that although the First to be expressing my views, and if you that you’re excluded from the comment Amendment does not address censorship don’t like it, too bad for you.’ That threads discussing the president’s imposed by private individuals or sounds like private speech, even done tweets,” Abdo said in an interview with businesses, including Twitter, the First by a government offi cial on government The Washington Post . “That is the forum Amendment still applies to President property.” that is created by each of the tweets Trump as a government offi cial. Michael W. McConnell, the director about his policies.. . . You could create David Greene, an attorney and the of Stanford’s Constitutional Law Center another account and tweet anonymously civil liberties director of the Electronic and formerly a judge on the U.S. Court to those threads, but what you’re Frontier Foundation (EFF), agreed that of Appeals for the Tenth Circuit, was excluded from is contributing to those President Trump creates a public forum also critical of the public forum doctrine debates as yourself.” when he tweets. “[Blocking Twitter being applied to Trump’s tweets. “The On July 11, the Knight Institute fi led accounts is] not a problem for most president is entitled to communicate a 25page complaint for declaratory people, because most people are not with whoever he wants to whenever and injunctive relief in the United government actors,” Greene said in an he wants to,” McConnell told The States District Court for the Southern interview with Forbes. “But once you’re a Washington Post on June 7. “No one District of New York. The complaint government actor, and you’re using it as has the right to compel someone else named several additional plaintiffs a public forum, the First Amendment is to communicate with them. If Trump or who were Twitter users blocked going to apply.” anyone else wants to limit his Twitter by @realDonaldTrump for sharing Eugene Volokh, a constitutional audience, he can do that. As can any viewpoints critical or in opposition law professor at the University of other public offi cial or any private to the president. President Trump, California, Los Angeles School of Law person.. . . [Even presidents can] go to Spicer, and White House Social Media contended that President Trump’s public arenas and meet with audiences Director Daniel Scavino were named as @realDonaldTrump account was a of their choice. Public forum doctrine defendants. 14 The complaint reiterated the allegations of corruption and confl icts of critical commentary regarding arguments made in the letter to of interest by Loudoun County’s School elected offi cials is the quintessential President Trump that blocking users Board members and their families. form of viewpoint discrimination violated their First Amendment rights. Randall summarily blocked Davison against which the First Amendment Specifi cally, the complaint contended from the Facebook page because she guards.” Cacheris added that Randall that the defendants violated the First took issue with him “mak[ing] comments “committed a cardinal sin under the First Amendment by imposing “a viewpoint- about people’s family members.” Davison Amendment,” despite the consequences based restriction on the Individual could still read and share content posted being “fairly minor” because the ban Plaintiffs’ participation in a public on the page, but could not comment on lasted only a matter of hours. forum[,] . . . access to offi cial statements or send private messages on it. By the In a July 29 commentary for Slate the President otherwise makes available next morning, Randall had unblocked magazine, writer Mark Joseph Stern to the general public[,] . . . [and their] Davison. contended that Cacheris’ decision could ability to petition the government for Nevertheless, Davison brought “be applied to [President] Trump’s redress of grievances.” claims against Randall and the Loudoun practice of blocking Twitter users with The complaint asked the court to County Board of Supervisors under whom he disagrees.” “When Trump declare the defendants’ “viewpoint-based the First Amendment and Article I § 12 blocks Twitter users, they can still see blocking of the Individual Plaintiffs of the Virginia Constitution, the First his tweets.. . . But they cannot engage from the @realDonaldTrump account Amendment’s Virginia analogue, among directly with his tweets, at least not to be unconstitutional.” Additionally, other claims. Regarding the First without resorting to an intricate and the complaint requested that the court Amendment question, Cacheris wrote unreliable workaround,” Stern wrote “enter an injunction requiring that the that he fi rst had to determine whether [emphasis in original]. “This inability to plaintiffs be unblocked” and prohibit the case concerned protected speech. respond to Trump may seem to present the defendants from blocking the He concluded that Davison’s criticism only a minor burden on speech. But it plaintiffs and other Twitter accounts of Randall and the school board offi cials poses a real First Amendment problem based on viewpoint. “President Trump’s was “not just protected speech, but nonetheless, infl icting a potentially Twitter account, @realDonaldTrump, [lay] at the very ‘heart’ of the First unconstitutional burden on protected has become an important source Amendment.” Cacheris wrote, “If the political speech.” of news and information about the Supreme Court’s First Amendment Venkat Balasubramani, a litigator government, and an important public jurisprudence makes anything clear, it is of Focal PLLC, agreed in July 27 forum for speech by, to, and about the that speech may not be disfavored by the commentary for Technology Marketing President,” the complaint read. “In an government simply because it offends.” Law Blog. “This is obviously a timely and effort to suppress dissent in this forum, Second, the court addressed whether relevant ruling, given the lawsuit against Defendants have excluded – ‘blocked’ Randall “opened a forum for speech” President Trump for blocking Twitter – Twitter users who have criticized the through the “Chair Phyllis J. Randall” followers,” he wrote. “What started President or his policies. This practice is Facebook page. Cacheris cited a 2008 off looking like a lark of a case could unconstitutional, and this suit seeks to ruling by the U.S. Court of Appeals for turn into consequential precedent for end it.” the Fourth Circuit in which the court constraints on the ability of politicians, As the Bulletin went to press, the U.S. concluded that the government “may including President Trump, to block District Court for the Southern District open a forum for speech by creating a members of the public.” of New York had not held any offi cial website that includes a ‘chat room’ or However, Stern also wrote that the proceedings related to that complaint. ‘bulletin board’ [through] which private cases may not be the same. “There’s just On July 25, 2017, United States [users] could express opinions or post one lingering issue with this comparison: District Court Judge James C. Cacheris information.” Page v. Lexington Cnty. It isn’t clear whether Trump intends his ruled in a memorandum opinion that Sch. Dist. One, 531 F.3d 275 (4th Cir. personal Twitter page to function as a defendant Phyllis Randall, Chair of 2008). Cacheris also cited the 2017 U.S. public forum the way Randall did.. . . the Loudoun County (Virginia) Board Supreme Court decision Packingham Trump’s lawyers will almost certainly of Supervisors, engaged in viewpoint v. North Carolina , in which the Court argue that his personal Twitter feed discrimination by blocking plaintiff Brian concluded that “social media . . . has is a private forum, not a government Davison from a public Facebook page, become a vital platform for speech of all project.” Nevertheless, Stern predicted violating his right of free speech under kinds.” 137 S. Ct. 1737 (2017). For more that this argument would “likely fail,” the First Amendment and the Virginia information on Packingham, see “U.S. citing a series of @RealDonaldTrump Constitution. Davison v. Loudoun Supreme Court Rules in Two Signifi cant tweets on July 26, 2017 in which County Board of Supervisors et al., 2017 First Amendment Cases” on page 16 of President Trump banned transgender WL 3158389 (E.D. Va. 2017). this issue of the Silha Bulletin. military service members, suggesting he The case before the U.S. District Cacheris concluded Randall’s page had turned his feed “into a quintessential Court for the Eastern District of Virginia fell under the Page and Packingham public forum.” arose on Feb. 3, 2016 when Randall defi nitions of a public forum. posted comments about a town hall on Consequently, he found that because SCOTT M EMMEL her public Facebook page titled “Chair Randall blocked Davison from her SILHA BULLETIN E DITOR Phyllis J. Randall,” which was created page after being “offended by his by Randall separate from her personal criticism of her colleagues in the Facebook profi le to “address County County government,” she “engaged in residents” and to “share information viewpoint discrimination by banning of interest with the County.” Davison [Davison] from her Facebook page.” commented on Randall’s post with Cacheris wrote, “Indeed, the suppression

15 U.S. Supreme Court Rules in Two Signifi cant First Amendment Cases n June 19, 2017, the U.S. users or visitors to the commercial social court denied his motion to dismiss Supreme Court issued two networking Web site mechanisms to the indictment on the grounds that it rulings concerning the communicate with other users, such as violated his First Amendment rights. On First Amendment. First, a message board, chat room, electronic appeal, the Court of Appeals of North the Court ruled in favor of mail, or instant messenger.” A violation Carolina struck down the statute on First Oa convicted sex offender who alleged of the statute constitutes a Class I felony Amendment grounds, concluding that that a North Carolina law banning such under state law. it was not “narrowly tailored to serve criminals from accessing a “commercial In 2002, Packingham pled guilty to North Carolina’s legitimate interest of social networking “taking indecent liberties with a child” protecting minors from sexual abuse. after admitting to having sex with a SUPREME COURT website” State v. Packingham, 229 N.C.App. 293 violated his First (N.C. Ct. App. NEWS Amendment rights. “By prohibiting sex offenders from using 2013). However, In the second case, on Nov. 6, 2015, the Court ruled in favor of the plaintiff, those websites, North Carolina with the North Carolina who sued after he was denied a federal one broad stroke bars access to what Supreme Court trademark for his rock band because the for many are the principal sources for affi rmed the trial name was “disparaging towards ‘persons court decision, people of Asian descent.’” Following the knowing current events, checking ads for fi nding §14–202.5 to Supreme Court’s ruling, the Department employment, speaking and listening in be “constitutional of Justice (DOJ) and several Native in all respects.” The American individuals dropped their the modern public square, and otherwise court contended legal challenge against the trademark exploring the vast realms of human that “the essential of the Washington Redskins, a National thought and knowledge. These websites purpose of section Football League (NFL) team. 14202.5 is to can provide perhaps the most powerful limit conduct, Packingham v. North Carolina mechanisms available to a private citizen specifi cally the Strikes Down Law Barring Sex to make his or her voice heard.” ability of registered Offenders from Social Media sex offenders to Websites access certain In Packingham v. North Carolina, 137 — U.S. Supreme Court Justice Anthony Kennedy carefullydefi ned S.Ct. 1730 (2017), plaintiff Lester Gerard Web sites. This Packingham challenged a North Carolina 13-year-old girl. Packingham, who was limitation on conduct only incidentally statute banning registered sex offenders a 21-year-old college student at the burdens the ability of registered sex from accessing a commercial social time, was required to register as a sex offenders to engage in speech after networking website that allows access to offender for a minimum of 30 years. The accessing those Web sites that fall minor children. N.C. Gen. Stat. Ann. §14– case before the Supreme Court arose within the statute’s reach.” State v. 202.5. On June 19, 2017, the U.S. Supreme in 2010 when a state court dismissed a Packingham 368 N.C. 380 (N.C. 2015). Court reversed the North Carolina traffi c ticket against Packingham, who (For more information on the North Supreme Court’s ruling, concluding that summarily posted on his Facebook Carolina Supreme Court ruling, see North §14–202.5 violated the First Amendment account, “Man God is Good! How about Carolina Sex Offender Case Muddles because it “bar[red] access to what I got so much favor they dismissed the First Amendment Issues in “Recent for many are the principal sources for ticket before court even started? No fi ne, Cases and Pending Decisions Put Media knowing current events, checking ads for no court cost, no nothing spent.. . . Praise Law Issues in Spotlight in Multiple employment, speaking and listening in be to GOD, WOW! Thanks JESUS!” States” in the Fall 2015 issue of the Silha the modern public square, and otherwise At the time of Packingham’s Facebook Bulletin.) exploring the vast realms of human post, the Durham Police Department was In December 2015, the Electronic thought and knowledge.” conducting an investigation to identify Frontier Foundation (EFF), Public N.C. Gen. Stat. Ann. §14–202.5, registered sex offenders who were Knowledge, and the Center for titled “Ban use of commercial social violating §14–202.5. An offi cer noticed Democracy & Technology fi led an networking Web sites by sex offenders,” that an account with the name “J.R. amicus brief in support of Packingham. makes it “unlawful for a [registered] Gerrard” had posted the ticket status The brief contended that the “proscribed sex offender . . . to access a commercial update. The offi cer determined through social networking services are central social networking [website] where the a search warrant and court records that to enabling myriad First Amendment sex offender knows that the site permits J.R. Gerrard was in fact Packingham. protected speech, including political minor children to become members or to On June 19, 2017, Reuters reported that speech, religious speech, and create or maintain personal Web pages at no time during the ensuing jury trial employmentrelated speech.” Thus, the on the commercial social networking did the State accuse or provide evidence brief argued that the North Carolina Web site.” The statute also lists several that Packingham had attempted to or statute “cuts off a large class of people requirements for what constitutes successfully contacted a minor through from an immense and important public a “commercial social networking the Facebook account. dialogue,” citing the U.S. Supreme [website],” including that it “[p]rovides Packingham was indicted by a grand Court’s 1997 decision in ACLU v. Reno jury for violating §14–202.5. The trial in which the Court “recognized the 16 profoundly important role of Internet sweeping law is necessary or legitimate is of interest as the First Amendment’s communication in fostering the free to serve that purpose.” He wrote, “It is freedom of speech guarantee has speech values at the very heart of the well established that, as a general rule, typically been applied in the physical First Amendment. 521 U.S. 844 (1997). the Government ‘may not suppress world,” she wrote. “In Packingham, the The full amicus brief is available online lawful speech as the means to suppress court took a rather progressive stance at: http://www.scotusblog.com/wp- unlawful speech,’” citing Ashcroft v. that the internet in general – and social content/uploads/2016/12/15-1194_amicus- Free Speech Coalition. 535 U.S. 234, 255 media sites in particular – are now petitioner-EFF.pdf. (2002). Thus, the Court reversed the the modern settings in which many On June 19, 2017, the U.S. Supreme North Carolina Supreme Court ruling Americans exchange ideas.” Court in the 8-0 decision – Justice Neil and remanded the case for further In a July 19 MinnPost “Community Gorsuch took no part in any portion proceedings. Voices” piece, Marshall H. Tanick, a of the case – concluded that §14–202.5 In a concurring opinion, Justice constitutional law attorney at Hellmuth violated the First Amendment. Justice Samuel Alito wrote that he could not & Johnson, suggested that uncertainty Anthony Kennedy, writing for the “join the opinion of the Court . . . because remains after Packingham. “It remains unanimous court, explained that “[a] to be seen how fundamental principle of the First “This ruling is of interest as the First the ruling will Amendment is that all persons have affect conditions access to places where they can speak Amendment’s freedom of speech imposed on them and listen, and then, after refl ection, guarantee has typically been applied in or, for that matter, speak and listen once more.” Justice the physical world.. . . In Packingham , commonly accepted Kennedy emphasized that social media limitations on use users employ the websites “to engage in a the court took a rather progressive of social media to wide array of protected First Amendment stance that the internet in general — and engage in offensive activity,” but noted that “this case is or harassing one of the fi rst this Court has taken social media sites in particular — are communications,” to address the relationship between now the modern settings in which many Tanick wrote. the First Amendment and the modern Americans exchange ideas.” “These types of Internet.” restrictions are The Court concluded that the statute frequently resorted — Melissa Hamilton, was content neutral and thus subject to by judges . . . in to intermediate scrutiny, meaning that University of Houston Senior Lecturer sentencing of criminal a statute must be “narrowly tailored to of Law & Criminology wrongdoers, serve a signifi cant governmental interest” including sex and “must not ‘burden substantially of its undisciplined dicta. The Court is offenders, as well as in marital disputes more speech than is necessary to further unable to resist musings that seem to and other inter-personal spats.” the government’s legitimate interests.’” equate the entirety of the internet with McCullen v. Coakley, 573 S. Ct. (2014). public streets and parks.” Justice Alito Individuals and Organizations Have Justice Kennedy found that §14–202.5 concluded that “[b]ecause protecting The Right to Utilize Potentially failed to pass intermediate scrutiny children from abuse is a compelling Disparaging Terms as Trademarked because “the statute here enacts a state interest and sex offenders can Names prohibition unprecedented in the scope (and do) use the internet to engage in On June 19, the U.S. Supreme Court of First Amendment speech it burdens, such abuse, it is legitimate and entirely ruled that the provision of federal [including] access to information and reasonable for States to try to stop law prohibiting the registration of communicate with one another about abuse from occurring before it happens.” scandalous, immoral, or disparaging it on any subject that might come to However, Justice Alito found that the trademarks violated the Free Speech mind.” He continued, “By prohibiting “fatal problem for § 14–202.5 is that Clause of the First Amendment, affi rming sex offenders from using those websites, its wide sweep precludes access to a a ruling by the U.S. Circuit Court of North Carolina with one broad stroke large number of websites that are most Appeals for the Federal Circuit. Matal v. bars access to what for many are the unlikely to facilitate the commission of a Tam , 137 S.Ct. 1744 (2017). Following the principal sources for knowing current sex crime against a child.” He provided ruling, the Department of Justice (DOJ) events, checking ads for employment, several examples, including Amazon. and a Native American group dropped speaking and listening in the modern com and WebMD, which allow minors their disparaging trademark case against public square, and otherwise exploring to use their services. Therefore, he the Washington Redskins, which had the vast realms of human thought and concluded that “[p]lacing this set of remained in the U.S. Court of Appeals for knowledge. These websites can provide websites categorically off limits from the Fourth Circuit pending the Supreme perhaps the most powerful mechanisms registered sex offenders prohibits them Court’s ruling in Matal. available to a private citizen to make from receiving or engaging in speech that The case before the Court was his or her voice heard.” Thus, the court the First Amendment protects and does brought by Simon Shiao Tam, who named concluded, a statute “foreclose[ing] not appreciably advance the State’s goal his all-Asian American dance rock band access to social media altogether is to of protecting children from recidivist sex “The Slants” in order to “reclaim” and prevent the user from engaging in the offenders.” “take ownership” of Asian stereotypes. legitimate exercise of First Amendment In a July 20 commentary for The In 2010, Tam sought to register the rights.” Conversation, University of Houston band’s name with the U.S. Patent and Additionally, Justice Kennedy Senior Lecturer of Law & Criminology Trademark Offi ce (PTO), but was denied concluded that the State had failed Melissa Hamilton discussed the Supreme Court, continued on page 18 to meet its burden to show “that this signifi cance of the ruling. “This ruling 17 Supreme Court, continued from page 17 The Court next addressed whether chose not to join the union the portion the disparaging clause violated the Free of union dues used for activities related a trademark because the PTO found that Speech Clause of the First Amendment to collective bargaining . . . [but] did the name “would likely be disparaging through viewpoint discrimination. The not allow the employer to collect the towards ‘persons of Asian descent,’” in court considered three arguments by portion of union dues that would be used violation of the Disparagement Clause petitioner Joseph Matal, the interim in election activities.” 551 U.S. 177–182 of the Lanham Act of 1946. 15 U.S.C.A. director of the PTO (“the Government”), (2007). The Court determined that the § 1052(a). The “disparaging clause” including “(1) that trademarks are law imposed “a “modest limitation” on an prohibits trademarks that “[consist] of government speech, not private speech, “extraordinary benefi t,” namely, taking or [comprise] immoral, deceptive, or (2) that trademarks are a form of money from the wages of non-union scandalous matter; or matter which may government subsidy, and (3) that the members and turning it over to the union. disparage or falsely suggest a connection constitutionality of the disparagement In Ysursa v. Pocatello Ed. Assn., the with persons, living or dead, institutions, clause should be tested under a new Court considered the constitutionality of beliefs, or national symbols, or bring “government-program” doctrine.” an Idaho law allowing public employees them into contempt, or disrepute.” Regarding the Government’s argument “to elect to have union dues deducted Tam appealed the decision to the that trademarks are government speech from their wages but did not allow such Trademark Trial and Appeal Board, because they are issued by a federal a deduction for money remitted to the which again denied the registration of the offi ce, Justice Alito concluded that this union’s political action committee.” 555 mark. Tam then appealed to the Federal premise was invalid and that trademarks U. S. 353, 355 (2009). The court ruled that Circuit, which found that the trademark constitute private speech. “Because the “the government . . . [was] not required to offi cials correctly denied the trademark ‘Free Speech Clause . . . does not regulate assist others in funding the expression of based on the language of the disparaging government speech,’ Pleasant Grove particular ideas.” clause. In re Tam , 758 F.3d 567 (Fed. Cir. City v. Summum, 555 U.S. 460, the Based on its conclusions that the 2015). However, the full Federal Circuit government is not required to maintain disparaging clause cannot be sustained voted to rehear the case en banc. On viewpoint neutrality on its own speech. under government speech or subsidy Dec. 22, 2015, the Federal Circuit came to This Court exercises great caution cases or the proposed “government- a new conclusion, holding 9-to-3 that the in extending its government-speech program” doctrine, the Court turned exclusion of “disparaging” trademarks precedents, for if private speech could to whether trademarks constitute violated the First Amendment. In re be passed off as government speech commercial speech and are thus subject Tam , 808 F.3d 1321 (Fed. Cir. 2015) (en by simply affi xing a government seal to relaxed scrutiny under the 1980 case banc). of approval, government could silence Central Hudson. Central Hudson v. On Sept. 29, 2016, the Supreme Court or muffl e the expression of disfavored Public Serv. Comm’n, 447 U.S. 557, 100 granted certiorari in Lee v. Tam , which viewpoints.” S.Ct. 2343, 65 L.Ed.2d 341 (1980). The was changed to Matal v. Tam after Justice Alito next addressed the Court did not need to determine whether Michelle Lee resigned her position as Government’s claim that “this case is trademarks constitute commercial PTO Director. (For more information on governed by cases in which this Court speech because “the disparagement the facts of the case, the Federal Circuit has upheld the constitutionality of clause cannot withstand even Central en banc decision, and the Supreme government programs that subsidized Hudson review” – specifi cally that Court granting certiorari, see “United speech expressing a particular a restriction of speech “must serve States Supreme Court Set to Hear Oral viewpoint.” The Court concluded that ‘a substantial interest,’ and must be Arguments on Disparaging Trademarks” the federal registration of a trademark ‘narrowly drawn.’” First, the Court in the Fall 2016 issue of the Silha is “nothing like the programs at issue concluded that the Government’s Bulletin.) in [other] cases” because those cases interest in using the disparaging clause Justice Samuel Alito, writing for on which the Government relies to prevent “‘underrepresented groups’” the 8-0 majority, concluded that the “all involved cash subsidies or their from being “‘bombarded with demeaning disparaging clause “violate[d] the Free equivalent.” messages in commercial advertising’” Speech Clause of the First Amendment Finally, Justice Alito addressed the demonstrated that the Government [because it] offends a bedrock First Government’s attempt to have the Court “ha[d] an interest in preventing speech Amendment principle: Speech may “sustain the disparagement clause expressing ideas that offend.” Justice not be banned on the ground that under a new doctrine that would apply Alito wrote that “that idea strikes at the it expresses ideas that offend.” The to ‘government-program’ cases.” He heart of the First Amendment. Speech Court fi rst considered whether “Tam’s concluded that “this argument simply that demeans on the basis of race, argument that the [disparaging] clause merges our government-speech cases ethnicity, gender, religion, age, disability, does not reach marks that disparage and the previously discussed subsidy or any other similar ground is hateful; racial or ethnic groups.” Tam contended cases in an attempt to construct a but the proudest boast of our free speech that the clause prohibits the registration broader doctrine.” The only new jurisprudence is that we protect the of marks that disparage “persons,” elements, according to Justice Alito, freedom to express ‘the thought that meaning “only natural and juristic were two cases that “occupy a special we hate,’” citing Justice Oliver Wendell persons,” and not “non-juristic entities area of First Amendment case law, Holmes’ famous dissenting opinion in such as racial and ethnic groups.” Justice and they are far removed from the United States v. Schwimmer, 279 U. S. Alito concluded that Tam narrowly registration of trademarks.” In Davenport 644, 655 (1929). Second, the Court found read the term “persons,” which “applies v. Washington Ed. Assn ., the Court that the “disparagement clause is not to the members of any group whose upheld a Washington law that “permitted ‘narrowly drawn’ to drive out trademarks members share particular ‘beliefs,’ such a public employer automatically to that support invidious discrimination” as political, ideological, and religious deduct from the wages of employees who because it applies to any person, group, groups.” 18 or institution. Thus, the Court affi rmed In a June 19 statement, Notre Dame instructions to enter judgment in favor the judgment of Federal Circuit. law professor Richard W. Garnett wrote of Pro-Football.” Freeman’s full letter is Justice Anthony Kennedy fi led that Matal bolsters the reputation of available online at: http://www.politico. an opinion concurring in part and the Supreme Court as protector of First com/f/?id=0000015c-f0a0-d1e3-a97d- concurring in the judgment. He Amendment rights. “At a time when f9f436400001. agreed with Justice Alito that the some have claimed that speech may and Jesse A. Witten, an attorney “[disparaging clause] constitutes should be regulated or censored if it representing the Native American group, viewpoint discrimination – a form is offensive, hurtful, or dangerous, the sent a similar letter to Connor on June 29. of speech suppression so potent justices’ fi rm insistence that governments He wrote, “We agree that . . . . Matal . . . is that it must be subject to rigorous may not silence messages they dislike is controlling. As a result, there is no need constitutional scrutiny.” However, noteworthy and important,” he wrote. for oral argument.” Witten’s full letter is Justice Kennedy elaborated on “why Matal was also closely watched by available online at: https://localtvwtvr. the First Amendment’s protections DOJ attorneys and Native American fi les.wordpress.com/2017/06/ against viewpoint discrimination apply individuals contesting the Washington ddgcarjwaam8e0o-large. to the trademark here.” He wrote, “At Redskin trademark. In June 2014, the jpg?quality=85&strip=all&w=254. its most basic, the test for viewpoint PTO initially ruled in favor of the DOJ In a statement, Witten wrote, “There’s discrimination is whether – within and a Native American group led by no more challenge to make.” He also the relevant subject category – the Amanda Blackhorse, a Navajo from pointed to the publicity his clients’ government has singled out a subset campaign raised of messages for disfavor based on the “After an excruciating legal battle that throughout the legal views expressed.. . . [The disparaging process. “There’s clause allows] an applicant may register has spanned nearly eight years, we’re the legal case and a positive or benign mark but not a beyond humbled and thrilled to have then there’s the derogatory one. The law thus refl ects the won this case at the Supreme Court. cause,” he said. “It Government’s disapproval of a subset of was a galvanizing messages it fi nds offensive. This is the This journey has always been much force that caused essence of viewpoint discrimination.” bigger than our band: it’s been about the people to pay Justice Kennedy added, “A law that rights of all marginalized communities to attention to the can be directed against speech found cause.” offensive to some portion of the public determine what’s best for ourselves.” Nevertheless, can be turned against minority and a June 21 Gibson, dissenting views to the detriment of — Simon Shiao Tam, Dunn & Crutcher all. The First Amendment does not respondent LLP commentary entrust that power to the government’s warned that the benevolence. Instead, our reliance must central holding in be on the substantial safeguards of free Arizona, scheduling the cancellation Matal was unlikely to affect trademark and open discussion in a democratic of the team’s registrations. The team policy. “Tam’s central holding—that the society.” appealed, but on July 8, 2015, the U.S. Lanham Act’s [disparaging] clause is Justice Clarence Thomas fi led a District Court for the Eastern District unconstitutional—is likely to have only short opinion also concurring in part of Virginia, Alexandria Division sided a limited impact, as most trademarks and concurring in the judgment. Justice with Blackhorse, questioning why the are not accused of disparagement,” the Thomas wrote, “I continue to believe that team chose the name in the fi rst place fi rm wrote. “More broadly, the Supreme when the government seeks to restrict “when Webster’s Collegiate Dictionary Court’s unanimous government-speech truthful speech in order to suppress defi ned the word as ‘often contemptuous’ ruling suggests that it is poised to cabin the ideas it conveys, strict scrutiny is as early as 1898.” Pro-Football, Inc. v. what is considered to be government appropriate, whether or not the speech Blackhorse, 112 F.Supp.3d 439 (E.D. Va. speech in the context of government in question may be characterized as 2015). registration and regulation. The Court ‘commercial,’” citing his opinion in However, the Associated Press explicitly warned that courts ‘must Lorillard Tobacco Co. v. Reilly. 533 U.S. (AP) reported on June 29 that the DOJ exercise great caution before extending’ 525, 572, 121 S.Ct. 2404, 150 L.Ed.2d 532 and Blackhorse had dropped their government-speech rules to messages (2001). case, which had remained pending in that originate from private parties. And In a Facebook post following the Fourth Circuit pending the Matal the Justices’ emphasis on viewpoint- the decision, Tam wrote, “After an decision. In a letter to Patricia S. Connor, neutrality as it relates to the government excruciating legal battle that has spanned the Clerk of Court for the Fourth Circuit, suggests that the Court is unlikely to nearly eight years, we’re beyond humbled the DOJ attorney Mark R. Freeman extend the government speech doctrine and thrilled to have won this case at the wrote, “[O]ral argument is unnecessary. any time in the near future.” Supreme Court. This journey has always The Supreme Court’s decision in been much bigger than our band: it’s Matal . . . controls the disposition of this been about the rights of all marginalized case. Consistent with Tam, the Court BRITTANY R OBB communities to determine what’s best for should reverse the judgment of the SILHA R ESEARCH A SSISTANT ourselves.” district court and remand the case with

19 Vermont Governor Signs New Shield Law; U of M Board of Regents and a New York Appeals Court Address Reporter’s Privilege Issues n the summer of 2017, the The other source of a qualifi ed sought to be compelled pursuant to reporter’s privilege to protect privilege in Vermont was the state’s subsection (b) of this section was confi dential sources and constitution, which provided “[t]hat obtained.” “Journalism” is defi ned as information was the focus of a the people have a right to freedom of “(A) investigating issues or events of state legislature, a university’s speech, and of writing and publishing public interest for the primary purpose Iboard of regents, and a state appellate their sentiments, concerning the of reporting, publishing, or distributing court. On May 17, 2017, Vermont transactions of government, and news or information to the public, became the 41st jurisdiction, including therefore the freedom of the press whether or not the news or information Washington, D.C. to ought not to be restrained.” VT. CONST. is ultimately published or distributed; REPORTER’S pass a shield law, ch. I, art. 13 (1793). According to the or (B) preparing news or information PRIVILEGE providing statutory Reporter’s Privilege Compendium concerning issues or events of public protection to compiled by the Reporters Committee interest.” journalists. On May for Freedom of the Press (RCFP), Under the statute, no “court or 11, St. Paul, Minn.’s KSTP-TV became the Article 13 of Vermont’s state constitution legislative, administrative, or other body target of a University of Minnesota Board “supports the recognition of a reporter’s with the power to issue a subpoena shall of Regents investigation after an internal privilege, especially where the journalist compel: (A) a journalist to disclose news email was leaked to the television station is reporting on the activities of elected or information obtained or received under the condition of anonymity. government offi cials.” However, in confi dence.” This includes not only Finally, on July 13, 2017, a New York according to RCFP, Article 13 “has not “the identity of the source of that news appellate court ruled that a subscription been relied on by any court to provide a or information,” but also “news or fi nancial industry newsletter was higher level of protection than is derived information that is not published or protected by the New York Shield Law. from the First Amendment.” Spooner disseminated, including notes, outtakes, v. Town of Topsham , 2006 WL 4911248 photographs, photographic negatives, Vermont Becomes 41st State to (2006). video or audio recordings, fi lm, or other Adopt a Reporter’s Shield Law The Vermont Press Association and data.” Vermont Public Radio (VPR) reported a coalition of journalists pushed for However, the statute does provide on May 17, 2017 that Gov. Phil Scott (R) the legislation after two reporters and means for a court or legislative body to had signed Senate Bill 96, “An act related an editor at Seven Days, a Burlington compel a journalist to “disclose news to a news media privilege,” into law, the newspaper, were subpoenaed to or information that was not obtained state’s fi rst statute protecting journalists testify in a December 2015 sexual or received in confi dence” if the from subpoenas seeking to compel assault case fi led against former government entity “establishes clear the disclosure of confi dential sources Sen. Norm McAllister (R-Alburgh- and convincing evidence that (i) the and information. 12 V.S.A. § 1616. The Franklin). Prosecutors later withdrew news or information is highly material bill passed the state Senate in March the subpoena, as reported by VPR on or relevant to a signifi cant legal issue with no opposition and the House of June 14, 2016. Nevertheless, during the before the court or other body; (ii) the Representatives in April, with only two drafting of the Vermont Shield Law, news or information could not, with due diligence, be obtained by alternative opponents. Media experts and advocates journalists testifi ed that S.96 was needed means; and (iii) there is a compelling praised the new shield law, while the to protect sources and unpublished need for disclosure.” representatives who voted against the information. Moments before signing the bill, Gov. bill cited concerns that it was not broad Sponsored by Sens. Dick Sears Scott praised the protection it provides enough and imposed a defi nition of (D-Bennington) and Jeanette K. White Vermont journalists. “This protection “journalist” and “journalism.” (D-Putney), S.96 passed both houses enables sources, from whistleblowers Prior to the passage of S.96, a with overwhelming majority. The Senate to victims of a crime, to feel confi dent reporter’s privilege in Vermont consisted vote passed 29-0 with one senator absent in their ability to speak freely with the of a qualifi ed privilege based on state from the vote. The House vote passed press, ensuring accountability and giving and federal case law. In State v. St. Peter, 140-2. On May 17, 2017, Gov. Scott signed the vulnerable a voice without fear,” he the Vermont Supreme Court recognized the bill into law. said. a qualifi ed reporter’s privilege under The statute defi nes “journalist” as “(A) Paul Heintz, a political editor for the First Amendment to refuse to give an individual or organization engaging Seven Days who lobbied for the new testimony in a criminal case “absent a in journalism or assisting an individual law, contended that the law is necessary showing by the party seeking disclosure or organization engaging in journalism given the current political climate in that there is no other adequately at the time the news or information which journalists “are under attack.” available source for the information and sought to be compelled . . . or (B) any “Just yesterday, the New York Times that the information sought is relevant supervisor, employer, parent company, reported that in an Oval Offi ce meeting and material on the issue of guilt or subsidiary, or affi liate of an individual in February, [President Donald Trump] innocence.” 132 Vt. 266, 315 A.2d 254 or organization engaging in journalism asked his FBI director to jail reporters (1974). at the time the news or information who reported classifi ed material,” Heintz 20 told VTDigger.org, a project of The Signed on May 23 by Gov. Scott, H.513 of anonymity, as reported by KSTP. Vermont Journalism Trust, on May 17. is an omnibus education bill, which On May 11, the regents launched “We don’t hear such deeply un-American provided, among other provisions, that an investigation “to determine who threats in Vermont, but that does not public school and college administrators provided the email to the TV station,” mean Vermont reporters and news cannot censor material produced by according to the Minneapolis Star organizations don’t face grave threats.” school-affi liated media or retaliate Tribune on May 12. The Board required He added, “For too long, this state against the students and their instructors all 12 of its members, as well as has allowed its judicial system to haul for exercising their First Amendment university employees who had access journalists up on the stand and compel freedoms. 16 V.S.A. § 180. The statute to the information, to sign affi davits them to testify with few limitations. reads, “Absent a showing that a swearing they were not the anonymous For too long, the state has allowed particular publication will cause direct, source. The affi davit required each one overzealous attorneys to force reporters immediate, and irreparable harm that to assure that he or she did “not provide to disclose unpublished information would warrant the issuance of a prior a physical or electronic copy of the and reveal the identities of confi dential restraint order against the private media, memorandum,” “read any portion of the sources.” (For more information on school offi cials are not authorized to Memorandum,” describe the contents in President Trump’s comments about censor or subject to prior restraint the any way, or disclose any contents to “any jailing reporters and attempts to stop content of school-sponsored media. member of the media, including anyone leakers, see “President Trump and his Content shall not be suppressed from KSTP.” Administration Spark Debate Over solely because it involves political or On June 22, the Associated Press Several Media Law Issues” on page 11 controversial subject matter, or is critical (AP) reported that the University of of this issue of the Silha Bulletin. For of the school or its administration.” Minnesota had hired the Minneapolis more information on journalists facing branch of the risk management fi rm physical threats, see “Journalists Face KSTP Reports Internal Regents Stroz Friedberg LLC to investigate Physical Restraints & Arrests; Trump Email; Regents Launch Investigation the leak. University spokesman Evan Video Further Raises Concerns about to Find Source of the “Leak” Lapiska told the AP that the costs Violence Against the Media” on page 7 in On May 11, 2017, Minnesota Public would be covered through a budget this issue of the Silha Bulletin.) Radio (MPR) and the Minneapolis Star allocated for outside counsel. Lapiska Rep. Bob Frenier (R-Chelsea) was one Tribune reported that the University of added, “In order for all parties to trust of the two lawmakers who voted against Minnesota Board of Regents (“regents”) that allegations of misconduct will the bill. Frenier, a former newspaper had launched an investigation to be addressed fi rmly, honestly, and in editor, supported the concept of a shield discover who provided information to a fair manner, there must be respect law, but worried Vermont’s law was too KSTP-TV, the ABC affi liate in St. Paul, for confi dentiality at all levels of the narrow. “The defi nition of a free press Minn., regarding a sexual harassment University, especially at the top.” The is so broad now and this bill narrows claim against Randy Handel, the Star Tribune had previously reported it down, and that’s not a good thing,” University of Minnesota associate that the regents were planning to hire Frenier said in an interview with the athletic director of development. outside counsel and experts to conduct Associated Press (AP). Although the regents defended the a forensic investigation of electronic Rep. Anne Donahue (R-Northfi eld) probe seeking the anonymous leaker, communications of individuals who had was the other representative who voted media experts and advocates criticized access to the memorandum. against the bill and was also the only the Board’s attempts to reveal KSTP’s In a May 24 statement, the Minnesota member to publicly speak against the confi dential source, citing the Minnesota chapter of the Society of Professional bill during debate. Following the vote, Shield Law. Journalists (SPJ) defended the KSTP she explained her opposition on her The investigation by the regents reporters involved with the story. “The legislative blog “Representative Anne arose following a May 10 KSTP report Minnesota Society of Professional Donahue.” “As a lifelong journalist and that Handel was being investigated Journalists defends the right of KSTP-TV the daughter of a lifelong journalist, by the EOAA. The full news report is and its journalists to pursue the truth I probably surprised many with my available online at: http://kstp.com/news/ and report it. In that pursuit, KSTP has opposition to the news media shield randy-handel-university-of-minnesota- relied on confi dential sources to shine a law that passed 140-2 on the House sexual-harrassment/4479772/. The light on sexual harassment allegations fl oor. I suppose my vote was partly in source of KSTP’s report was a May 10 at the University of Minnesota.” SPJ honor of my father, who imbued in me email sent from the University’s Equal also cited the Minnesota Free Flow of the principles of freedom of the press.,” Opportunity and Affi rmative Action Information Act, the state shield law she wrote. “As he said, any time the (EOAA) offi ce to the Board of Regents which provides qualifi ed protection to government imposes a defi nition on explaining that Handel had sexually journalists. Minn. Stat. 595.021 et seq. who is a journalist and what content harassed an employee in the athletic “The university’s investigation to seek constitutes journalism, we are imposing department. The email read, “In a the identity of the confi dential source government control on the press. A preliminary report issued on May 3, the goes against the spirit of the Free Flow shield law that protects journalists from EOAA found Handel’s conduct towards of Information Act and will have a subpoenas carves out such defi nitions.” (the victim) violated the University’s chilling effect on those whistleblowers The shield law was one of two sexual harassment policy,” according to who seek to expose wrongdoing and measures that passed the Vermont a May 11 KSTP story. The contents of those journalists who report it,” the legislature in the summer of 2017 aiming that email were provided to the news statement read. to guarantee protections to journalists. station by a regent under the condition Privilege, continued on page 22 21 Privilege, continued from page 21 New York Appeals Court Rules a “must have been from a group of Subscriber Newsletter is Protected investors that were sent two power SPJ added that the university should by State Shield Law point presentations in advance of an drop its investigation, “abide by the spirit On July 13, 2017, a fi ve-judge panel for investor teleconference on August 23, of the Free Flow of Information Act[,] the New York Supreme Court Appellate 2016.” Specifi cally, Murray sought “the and concentrate on the serious problems Division, First Department unanimously name(s) and contact information of John of sexual harassment allegations at the ruled that a subscription fi nancial Does 1-10, and any and all documents, University of Minnesota.” industry newsletter was protected by including electronically stored In an interview with Twin Cities PBS’s the New York Shield Law, N.Y. Civ. information, constituting or relating to “Almanac,” University of Minnesota Rights Law § 79-h, reversing a February communications between John Does media ethics professor Chris Ison agreed 2017 decision in the New York Supreme 1-10 and Reorg.” that KSTP should not be compelled to Court for New York County. Murray Reorg contended that it was entitled provide their source and was not in legal Energy Corp. v. Reorg Research, Inc., to protection under the New York Shield jeopardy regarding the investigation. No. 157797/16 4464N 4463 (N.Y. App. Law, which provides that journalists “I don’t think there’s any chance they’ll Div. 2017). Several attorneys praised the cannot be “held in contempt by any give up a source” he said. “The state of ruling as demonstrating the strength of court, legislature or other body having Minnesota has a shield law that protects the New York Shield Law. contempt powers for refusing or failing them from being compelled to give up a Reorg Research, Inc. (“Reorg”), the to disclose news obtained or received source, so there’s no way we’re going to respondent in the case, sends email in confi dence or the identity of the see that.” alerts to its subscribers regarding the source of such news coming into such In a May 11 statement, KSTP defended fi nancial industry and bankruptcy person’s possession in the course of its reporting. “KSTP-TV regularly relies proceedings, among other topics. gathering or obtaining news.” In support on sources, including confi dential Reuters reported on Feb. 24, 2017 that of their argument, Reorg submitted a subscription costs between $30,000 sources, in our newsgathering and an affi davit from Paul Steiger, former to $120,000 a year, though it is often managing editor of The Wall Street reporting,” KSTP reporter Theresa purchased by a corporation which Journal and founder of ProPublica. Malloy wrote. “Consistent with First then allows numerous people in the The affi davit contends that Reorg is Amendment principles and federal and organization access to the content. a “journalism company” because of it state law, KSTP-TV protects the identity According to court fi lings, Reorg has a employs an editorial staff and that the of its confi dential sources to the fullest “‘dedicated editorial team of journalists, content it produces “serves the public extent of the law.” former lawyers, and investment bankers interest.” Additionally, Steiger argued Conversely, the board contended that . . . provide a comprehensive view’ that journalism can take a variety of that its investigation was justifi ed, of debt-distressed companies in which forms. “Clearly, dissemination comes citing university policies regarding the subscribers have an interest.” both in many different forms and at private personnel information. In a The case arose in August 2016 when many different prices: video, audio, text; May 11 news release, Dean Johnson, thermal coal company Murray Energy desktop, laptop, handheld; free, cheap, the Board of Regents chairman, argued Corporation (“Murray”), reached a expensive, very expensive,” Steiger that the regents’ investigation was collective bargaining agreement with its wrote. “The variety is so great, it seems into the release of private information unionized mine workers and published hard to swallow a contention to exclude in violation of those involved in the press releases announcing the deal. Reorg Research based either on its price original sexual harassment claim. “We Max Frumes, the senior editor at Reorg, or on its effort to lengthen the time its strive to uphold tremendous fi duciary followed up with four contacts who scoops remain exclusive, which, as responsibilities that require us always provided additional information about mentioned above, is hardly unique.” to act professionally and ethically, and the agreement, which became the basis Nevertheless, on Feb. 24, 2017, Justice to maintain privacy and other legal for an Aug. 15, 2016 alert titled “Murray Carol R. Edmead granted Murray’s expectations,” Johnson said. “So it is Touts Successful Renegotiation With application for pre-action disclosure. greatly disappointing that we are faced Union Amid Covenant Amendment Murray Energy Corp. v. Reorg with the potential that a member of Effort.” Subsequently, two of the Research, Inc., 47 N.Y.S.3d 871 (Sup. Ct. the University community may have sources provided additional information 2017). Edmead contended that Reorg did betrayed the public’s trust. That’s why concerning Murray’s negotiations not fall under the New York Shield Law’s members of the Board believe strongly with its debt holders, among other defi nition of “professional reporter,” “one that we need to investigate any potential information. On August 17, Frumes who, for gain or livelihood, is engaged in sent a second alert titled “Murray leaks of private and confi dential gathering, preparing, collecting, writing, Finalizes Credit Agreement Amendment, editing, fi lming, taping or photographing information.” The release called on Expects Annual Savings of $70M From of news intended for a newspaper, KSTP to violate the source’s condition of Renegotiated Union Contract.” Frumes magazine, news agency, press anonymity with the justifi cation that the promised to keep the names of his association or wire service or other investigation “signals to KSTP that the sources confi dential. professional medium which has as one University is legally releasing KSTP from On September 16, Murray fi led a of its regular functions the processing its apparent agreement of confi dentiality motion in the New York Supreme Court and researching of news intended for with a Regent, and it encourages KSTP for New York County, a trial court, dissemination to the public . . .” Edmead to reveal its Board source publicly.” for pre-action discovery in order to found that the information gathered by As the Bulletin went to press, KSTP learn the identity of Frumes’ sources, Frumes “while it may have been news, had not revealed its sources to the Board which Reorg and Frumes refused to was never intended for dissemination to of Regents or any other University body. divulge. Murray believed the sources the public.” 22 Additionally, Edmead found that its confi dential sources by New York’s protections” for the type of reporting Reorg should be differentiated from Shield Law because it is a “professional done by Reorg. traditional news organizations, even medium or agency which has as one of In an interview with Law360 on those like The New York Times and its main functions the dissemination of July 13, Laura R. Handman, who also The Wall Street Journal which charge news to the public.” represented Reorg, called the decision subscription fees. Edmead ruled that The court fi rst concluded that even a welcome relief for the organization. because Reorg “strictly keeps its stories though Reorg’s content is only available “We are grateful for the court’s strong away from the general public[,]. . . the to a limited subscriber base, it is still protection for this kind of indepth conclusion that [Reorg] is not a news entitled protections under the Shield reporting,” she said. “The decision organization under the Shield Law is Law because it is similar to “specialty provides the certainty reporters need to unavoidable.” or niche publications” targeting do their job.” In a Feb. 24, 2017 article for Reuters, narrower audiences “not covered by Kent Collier, founder and CEO of news editor Alison Frankel criticized the general news media.” The court also Reorg, also discussed the implications of Edmead’s conclusion that Reorg should agreed with Reorg’s argument that the the ruling on journalism. “In this evolving be distinguished from traditional news public “benefi ts secondarily from the media landscape, it sends a powerful organizations. “I’m not convinced information that [Reorg] provides to its message that journalistic freedom is Reorg is as different from traditional limited audience, because that audience important and worth protecting,” he said news companies as . . . Justice Edmead is comprised of the people who are in an interview with Business Insider portray[s] it to be,” she wrote. “Justice most interested . . . and most able to use on July 14. “I could not be prouder of Edmead, for instance, mentioned and benefi t” from the information. The our entire team here at Reorg, and I look several times that Reorg has only 347 court added, “[G]iven the substantial forward to continuing to provide our subscribers. But the company’s founder, investment required to unearth this subscribers with the very best news and Kent Collier, said in an affi davit in the information and the limited number of analysis in the industry.” Murray Energy litigation that many of interested readers, the alternative is not In a July 13 statement, Murray’s the subscribers are institutions that broader coverage but no coverage at all.” senior corporate counsel and director allow lots of people access to Reorg Second, the panel contended that of investor and media relations Gary reports. So those 347 subscriptions add other state and federal courts have Broadbent expressed disappointment up to about 9,000 readers. The Murray considered a publication’s independence in the ruling, according to The New Energy story, for instance, went out to and editorial control as important York Law Journal . “Reorg Research nearly 6,000 readers – more than the factors for whether a shield law applies. has repeatedly obtained and profi ted circulation of many local newspapers The court determined that Reorg had from the distribution of Murray and niche publications.” “established that its editorial staff is Energy Corporation’s confi dential Frankel added that Edmead’s ruling solely responsible for deciding what to fi nancial information, in breach of could have implications for traditional report on and that it does not accept Murray Energy’s legally enforceable journalism. “[E]very chip knocked out compensation for writing about specifi c confi dentiality agreements,” he said. of the fi rmament of journalism matters. topics or permit its subscribers to dictate Broadbent added that Murray was If Murray Energy . . . can squelch the content of its reporting.” As a result, planning to take further legal action. “We coverage by suing to expose confi dential Reorg established a relationship typical will continue to vigorously litigate this sources, what’s to stop other companies of that “between a journalist and the case and to ensure that all of Murray from using the same strategy against activities upon which the journalist Energy’s fi nancial information remains subscriber-based news outlets? At reports,” citing LaSalle Natl. Bank v strictly confi dential,” he wrote. “We are the very least, corporations can scare Duff & Phelps Credit Rating Co. 951 F. progressing in our identifi cation of the confi dential sources out of talking to Supp. 1071, 1096 (S.D.N.Y. 1996). party that violated our confi dentiality reporters and can saddle publishers Finally, the court ruled that extending agreement by disseminating this with legal costs, even if there’s no doubt protection to Reorg is “consistent confi dential fi nancial information to about the truth of the stories they put with New York’s ‘long tradition, with the public. We will hold this party out.” roots dating back to the colonial era, responsible for their actions.” As the Reorg fi led an appeal in March 2017 of providing the utmost protection of Bulletin went to press, no further and was joined by several media outlets, freedom of the press’ – protection that legal motions or proceedings had been including Reuters and Politico, as has been recognized as ‘the strongest announced. amici curiae. The news organizations in the nation.’” The court found that contended that the news business analyzing a publication’s number of BRITTANY R OBB includes organizations that provide free subscribers, subscription fees, and SILHA R ESEARCH A SSISTANT or low-cost content to the public, but the extent to which it allows further SCOTT M EMMEL also organizations that provide content dissemination of information” was SILHA BULLETIN E DITOR sold at a premium, according to The New not only “unworkable” and “creat[ing] York Times on June 21. prospective uncertainty,” but could also On July 13, a fi ve-judge panel for the lead to a “chilling effect,” though the New York Supreme Court Appellate court did not elaborate on this claim. Division, First Department unanimously Following the decision, Jude Gorman, reversed Edmead’s ruling, denying the the general counsel at Reorg, said the petition for pre-action disclosure and organization was pleased with the dismissing the proceeding. The court decision, according to The New York concluded that Reorg was exempt Law Journal on July 13. He noted, “the from having to disclose the names of court made it clear that there are strong 23 Rolling Stone, Daily Mail, and ABC Settle High-Profi le Defamation Lawsuits n the spring and early summer of Eramo, for being more concerned about separate defamation lawsuit against 2017, Rolling Stone magazine, the the school’s reputation than properly Rolling Stone, Wenner Media, and British tabloid Daily Mail, and addressing sexual assaults on campus. Erdely in the United States District American Broadcasting Company On April 5, 2015, the Columbia Court for the Southern District of New (ABC) each reached settlements in School of Journalism published a York, as reported by The Washington Iprominent defamation lawsuits. Rolling study conducted at the request of Post. Although they were not named in Stone settled two defamation cases Rolling Stone. The study found that the the story, the plaintiffs, George Elias related to its retracted 2014 story “A magazine had failed to follow ethical and IV, Stephen Hadford, and Ross Fowler, Rape On Campus,” journalistic principles, including failing still alleged that their reputations had one brought by to corroborate derogatory information, been harmed because people had DEFAMATION University of using pseudonyms that unnecessarily come to believe that the three were the Virginia (UVA) obscured key information, ignoring the perpetrators of the sexual assault. (For Associate Dean of concerns of staff fact checkers, and more information and commentary on Students Nicole Eramo, and the other providing inadequate information to the both defamation lawsuits, see “Update: by former members of the UVA Chapter fraternities when asking for comment, Rolling Stone Continues to Face of Phi Kappa Psi. On April 12, 2017, the among other problems. Rolling Stone Backlash for Campus Rape Story” in the Daily Mail reached a settlement with retracted “A Rape on Campus” the Summer 2015 issue of the Silha Bulletin First Lady Melania Trump following a same day the study was published. and Legal Challenges, Ethical Questions retracted August 2016 story alleging that (For more information on “A Rape On Linger for Rolling Stone over Retracted she worked for a modeling agency that Campus” and the Columbia School of Campus Rape Story in “Rolling Stone also offered escort services. On June Journalism’s study, see Legal Challenges, Faces New Reporting Controversy, 28, ABC and ABC News reporter Jim Ethical Questions Linger for Rolling Continues to Face Questions over Avila reached a confi dential settlement Stone over Retracted Campus Rape Retracted Story” in the Winter/Spring with Beef Products Inc. (BPI) in a case Story in “Rolling Stone Faces New 2016 issue.) originating in 2012 when ABC News Reporting Controversy, Continues to On Nov. 7, 2016, the jury in Eramo’s and Avila repeatedly referred to BPI’s Face Questions over Retracted Story” defamation case awarded the UVA signature product as “pink slime.” in the Winter/Spring 2016 issue of the administrator $3 million in damages. Silha Bulletin and “News Organizations Earlier that day, Eramo had testifi ed Rolling Stone Reaches Settlements Backpedal after Failures to Fact Check, that her life unraveled after the Rolling in Two Defamation Lawsuits related Anchor’s False Stories” in the Winter/ Stone story was published, according to 2014 Campus Rape Story Spring 2015 issue.) to The Washington Post on November On April 11, 2017, Rolling Stone On May 12, 2015, The Washington 7. The 10person jury concluded that magazine announced it had reached Post reported that Eramo fi led a statements in “A Rape On Campus” and a confi dential settlement with former defamation lawsuit against Rolling those made by Erdely following the University of Virginia (UVA) Associate Stone, the magazine’s parent company publication of the story demonstrated Dean of Students Nicole Eramo, six Wenner Media, and Erdely in Virginia actual malice, according to a November months after a jury had awarded Eramo state court. Eramo alleged that Rolling 7 USA Today story. The jury determined $3 million in damages. On June 13, Stone had harmed her reputation by that Erdely was liable for $2 million of 2017, Rolling Stone magazine reached casting her as “the chief villain of the the total, and Rolling Stone and Wenner a $1.65 million settlement in the story,” according to her complaint. Media for $1 million. defamation lawsuit brought by three Eramo also claimed that Rolling Following the jury decision, Deborah former members of the UVA Chapter Stone’s story and Erdely’s subsequent J. Parmelee, the jury forewoman, read of Phi Kappa Psi. The settlements press interviews falsely reported a brief statement, which said, in part: marked the end of litigation following that she was “indifferent to Jackie’s “With careful consideration of the facts the controversial 2014 story “A Rape On allegations” and misquoted her in saying in evidence for determining damages, Campus,” which reported the alleged that “UVA withholds rape statistics the jury made its determination. We gang rape of a UVA student, but was later ‘because nobody wants to send their were proud to execute our civic duty.” retracted due to inaccuracies and other daughter to the rape school,’” among In a statement, Eramo’s attorney, Libby journalistic ethical concerns. Although other false statements. Finally, Eramo Locke, called the jury’s verdict “nothing Rolling Stone declined to comment on contended that Rolling Stone and short of a complete repudiation of either lawsuit, media experts argued that Erdely had demonstrated actual malice, Rolling Stone and Sabrina Rubin Erdely’s the suits took their toll on the magazine which requires the journalist acted fl awed journalism.” both fi nancially and in terms of their with knowledge of falsity or reckless On April 12, 2017, Jezebel reported reputation. disregard of the truth, as defi ned by that Rolling Stone and Eramo reached In November 2014, Rolling Stone the 1964 Supreme Court case New a confi dential settlement after Rolling published “A Rape On Campus,” written York Times v. Sullivan . 376 U.S. 254 Stone had fi led a motion to vacate the by Sabrina Rubin Erdely, in which she (1964). Eramo sought $7.5 million in jury’s judgment, the fi rst step towards an reported on the alleged gang rape of compensatory damages for harm to her appeal. In return for an undisclosed sum, UVA student “Jackie” during a Phi Kappa reputation. Eramo agreed to drop the defamation Psi fraternity party in 2012. The story On July 29, 2015, three former suit. In a statement, Locke said, “We criticized university offi cials, including members of Phi Kappa Psi fi led a are delighted that this dispute is now 24 behind us, as it allows Nicole to move entertainment, investigative stories were lawsuit in the Royal Courts of Justice on and focus on doing what she does a cornerstone of Rolling Stone,” he said. in London, according to a September 2 best, which is supporting victims of “But where are they now? Magazines BBC report. Tarpley and the Daily Mail sexual assault.” Rolling Stone called the cannot survive on memory or on history. both retracted their stories immediately settlement an “amicable resolution,” Magazines survive on the future.” after Trump fi led the lawsuits. according to The Washington Post on The Guardian reported on Jan. April 11. First Lady Reaches Settlement in 27, 2017 that Trump had reached a On June 13, The New York Times Libel Suit Against Daily Mail settlement with Tarpley for “a substantial reported that Rolling Stone reached a On April 12, 2017, First Lady of the sum.” Tarpley also apologized to the settlement with the former members of United States Melania Trump reached a fi rst lady. “I posted an article . . . about Phi Kappa Psi for $1.65 million, bringing settlement in two defamation lawsuits Melania Trump that was replete with an end to the litigation sparked by the “A brought against the Daily Mail, a British false and defamatory statements about Rape on Campus” article. No other terms tabloid that also publishes online content her,” he wrote in a statement after of the agreement were released. retracting his story. In a statement, Brian Ellis, a “We accept that these allegations about “I had no legitimate spokesman for Phi Kappa Psi, said his factual basis to clients were pleased with the settlement, Mrs. Trump are not true and we retract make these false although they originally sought $25 and withdraw them.. . . We apologise statements and I million in damages. “It has been nearly [sic] to Mrs. Trump for any distress that fully retract them. three years since we and the entire I acknowledge University of Virginia community were our publication caused her. To settle Mrs. that these false shocked by the now infamous article, Trump’s two lawsuits against us, we have statements were and we are pleased to be able to close agreed to pay her damages and costs.” very harmful the book on that trying ordeal and its and hurtful to aftermath,” wrote Ellis. “The chapter Mrs. Trump looks forward to donating a signifi cant — Daily Mail and her family, portion of its settlement proceeds and therefore I to organizations that provide sexual in the United States. The lawsuits fi rst sincerely apologize to Mrs. Trump, her assault awareness education, prevention arose following an Aug. 19, 2016 Daily son, her husband and her parents for training and victim counseling services Mail article alleging that Trump had making these false statements.” on college campuses.” worked for a modeling agency in the On Feb. 2, 2017, The Washington Rolling Stone representatives 1990’s that also provided escort services. Post reported that Trump’s defamation declined comment. However, the Observers noted that Trump is the only claim was dismissed by Maryland litigation and the settlements to Eramo fi rst lady to fi le a lawsuit while in that Circuit Court Judge Sharon V. Burrell. and the fraternity had taken their position. In a memorandum opinion, Burrell toll on the publication, according to On Aug. 19, 2016, Mail Media, concluded that Mail Media was not Samir Husni, director of the Magazine Inc., which operates the Daily Mail’s subject to jurisdiction in Maryland Innovation Center at the University of website “Media Online,” published an because the article in question was Mississippi School of Journalism. “If you article titled, “Naked photoshoots, and “researched, written for and published look at the magazine today, it’s starting troubling questions about visas that in a United Kingdom newspaper and to look like a shadow of its past,” Husni won’t go away: The VERY racy past of published on a general news website that said in a June 13 interview with The Donald Trump’s Slovenian wife.” The did not focus on Maryland.” Washington Post . “It is something you story cited a Slovenian magazine and Consequently, on Feb. 6, 2017, Trump can’t hide. The magazine is not in a alleged that the modeling agency for fi led a new lawsuit in the New York healthy place.” which Trump worked in the 1990 was Supreme Court for the County of New On July 29, 2016, The New York Times also an escort service and that Trump York, Commercial Division against reported that Managing Editor Will had “provided services beyond simply the Daily Mail, according to National Dana, who had limited involvement with modeling,” according to The New York Public Radio (NPR) on the following the reporting of “A Rape on Campus” Times on April 12. A Maryland blogger, day. In her complaint, Trump contended but oversaw publication of the story, Webster Tarpley, published similar that the Daily Mail’s article negatively announced his resignation from the claims to those reported by the Daily affected her ability “to launch a broad- magazine. In September 2016, Wenner Mail. based commercial brand in multiple Media sold a 49 percent stake in Rolling The New York Times reported on product categories, each of which Stone to BandLab Technologies, a Sept. 1, 2016 that Trump sued Mail could have garnered multimillion dollar Singapore-based music technology Media and Tarpley in the Circuit Court business relationships for a multiyear company. In March 2017, Wenner Media for Montgomery County in Maryland, term during which plaintiff is one of also sold the celebrity magazine Us alleging three counts, including libel the most photographed women in the Weekly to American Media Inc. for a against Tarpley, libel against Daily world” and that her “brand ha[d] lost reported price of $100 million, according Mail, and “Tortious Interference With signifi cant value.” The complaint further to the Times . Actual and/or Prospective Business alleged that the “defamatory statements However, Husni said that the biggest Advantage” against both defendants. in the [a]rticle . . . caused [Trump] blow to the magazine was not the Trump’s full complaint is available online damages, including to her reputation fi nancial hardships, but the impact of at: http://news.bbc.co.uk/2/shared/bsp/hi/ and to her business interests and “A Rape On Campus” on its reputation. pdfs/02_09_16_melaniatrump_complaint. prospective economic opportunities, as “In addition to the music and the pdf. On the same day, Trump fi led a Defamation, continued on page 26 25 Defamation, continued from page 25 U.S. 254 (1964). Prior to the settlement, to tiny bursts of ammonium hydroxide Feldstein said he was not convinced to kill E. coli and other dangerous well as causing signifi cant humiliation Trump would win her lawsuit in the contaminants,” used in processed foods in the community and emotional United States. “I think this [lawsuit] will found in school cafeterias and fast food distress.” Trump sought $150 million get tossed pretty quickly,” Feldstein restaurants, according to a March 5, in damages, according to the lawsuit. told the USA Today. “I don’t see this as 2013 article by MSN News. ABC News’ Her full complaint is available online challenging New York Times v. Sullivan, 2012 broadcast “Pink Slime and You” at: https://www.documentcloud.org/ which is the linchpin of (libel) law, that is available online at: http://abcnews. documents/3455911-Melania-DailyMail. there is an extraordinarily high threshold go.com/WNT/video/pinkslime15873068. html. to prove libel of a public fi gure.” In its complaint, BPI alleged that On April 12, 2017, multiple news However, according to the BBC on the reports by ABC News contained agencies reported that Trump had Sept. 2, 2016, it would not have been disparaging statements about LFTB reached a settlement with the Daily Mail as diffi cult to succeed in a defamation and each plaintiff, citing the AFPDA. related to the lawsuits in London and action in the UK. “If [Trump] could prove The statute defi nes disparagement as New York. The terms of the settlement that the published allegations were a false statement or implication “that were not released in court, but the defamatory and that she had suffered an agricultural food product is not safe Associated Press (AP) reported that the serious harm as a result, it would be for consumption by the public or that total was $2.9 million (£2.4m), which hard for the Daily Mail to defend an generally accepted agricultural and included damages as well as legal costs. action,” the BBC wrote. “Also, in light management practices make agricultural According to The Guardian on April 12, of its retraction it could not argue that it food products unsafe for consumption the settlement “is one of the highest ever was justifi ed in publishing.” by the public.” to go through the British courts.” According to Silha Center Director In an April 12 article, the Daily Mail ABC Reaches Settlement with and Silha Professor of Media Ethics apologized to Trump. “We accept that Beef Products Inc. in “Pink Slime” and Law Jane Kirtley in a June 2017 these allegations about Mrs. Trump are Lawsuit interview on National Public Radio’s not true and we retract and withdraw On June 28, 2017, the Sioux City (NPR) “All Things Considered,” suing them,” the statement read. “We apologise Journal in South Dakota reported under the AFPDA meant that BPI would [sic] to Mrs. Trump for any distress that that American Broadcasting Company have to prove that ABC called LFTP our publication caused her. To settle (ABC) had reached a settlement with unsafe to consume. ABC contended that Mrs. Trump’s two lawsuits against us, Beef Products Inc. (BPI) in a case it had never reported LFTB was unsafe, we have agreed to pay her damages and dating back to 2012 when ABC and ABC arguing the AFPDA would not apply. costs.” News reporter Jim Avila repeatedly BPI also claimed that ABC’s reporting, Trump’s attorney Charles J. Harder referred to BPI’s signature product as as well as Avila’s tweets related to wrote in a statement, “The First Lady “pink slime” in a series of news reports, LFTP, had defamed the company. The Melania Trump is very pleased that she including ABC News’ 2012 broadcast company drew attention to a March has resolved this matter favorably with “Pink Slime and You,” as well as several 7, 2012 tweet in which Avila wrote, the Daily Mail, which has issued a full 2012 tweets by Avila. BPI claimed $1.9 “[pink slime]’s just not what it purports and complete retraction and apology billion in damages, though the total to be. Meat.” In order for BPI to prove for its false statements about her, and could have tripled to $5.7 billion under that ABC’s reporting and Avila’s tweets agreed to pay her million of dollars in South Dakota’s Agricultural Food were actionable, according to Kirtley, damages and full reimbursement of her Products Disparagement Act (AFPDA). the company’s attorneys would have to legal fees costs. Mrs. Trump will remain SDCL § 2010A. Media attorneys show ABC reported false statements vigilant to protect her good name and and experts expressed concern that with actual malice. This standard reputation from those who make false the settlement may have negative requires a libel plaintiff to prove that and defamatory statements about her.” consequences for future defamation defendants made defamatory statements First lady historian Myra Gutin, litigation and for the newsgathering with knowledge of their falsity or a professor at Rider University in process. with reckless disregard of the truth, Lawrenceville, N.J., told the USA Today In September 2012, BPI, as well as established in New York Times v. on February 7 that it was “a fi rst” for a as BPI Technology Inc. and Freezing Sullivan. 376 U.S. 254 (1964). fi rst lady to fi le a lawsuit, though Trump Machines, Inc., brought a civil action Lyrissa Lidsky, incoming dean at the was not yet fi rst lady when she fi led her in the Circuit Court of Union County University of Missouri School of Law, original complaint. Mark Feldstein, a in South Dakota against ABC, ABC told Vice on June 7, 2017 that it would former NBC reporter and a journalism News, Avila, anchor Diane Sawyer, be an uphill battle for BPI. “I think they professor at the University of Maryland, correspondent David Kerley, USDA defi nitely suffered economic harm from agreed. “It’s unprecedented for a microbiologist Gerald Zirnstein, food the report, but the question is, to what president (to fi le a libel suit), let alone a scientist Carl Custer, and former BPI extent was the report inaccurate, and fi rst lady,” he said. quality assurance manager Kit Foshee. if it was inaccurate, to what extent did In order to prove in the U.S. that The complaint followed a series of they recklessly disregard the truth?” Daily Mail had defamed her as a public broadcast and online stories, as well Lidsky said. fi gure, Trump would have had to prove as several tweets, in March 2012 about In 2013, ABC attempted to move that the Daily Mail acted with actual BPI’s Lean Finely Textured Beef (LFTB) the case to federal court on diversity malice, which requires showing that product, which ABC News repeatedly grounds and to have the case heard the journalist acted with knowledge of referred to as “pink slime.” LFTP is “a by a federal jury. However, on June falsity or reckless disregard of the truth, lowfat product made from chunks of 12, 2013, U.S. District Judge Karen as defi ned by the 1964 Supreme Court beef, including trimmings, and exposed E. Schreier ordered that the case be case New York Times v. Sullivan. 376 26 heard in South Dakota state court ABC and Avila. “A jury could determine was still signifi cant. “I do think it’s a because BPI Technology, based in that there is clear and convincing bellwether in the sense that it raises South Dakota, was a “real party in evidence that ABC Broadcasting and two very critical issues,” Kirtley told interest” in the case, among other Mr. Avila were reckless, that defendants NPR’s Robert Siegel. “One is that BPI reasons. (For more information on had obvious reason to doubt the veracity claims that ABC News was basically BPI’s 2012 complaint, South Dakota’s of informants, and that they engaged on a disinformation campaign, which agriculture disparagement law, and the in purposeful avoidance of the truth,” is another way of saying fake news. 2013 decision to have the case heard Gering said during the hearing. ABC fi led The other goes to the heart of what the in state court, see “Pink Slime” Case a petition in the South Dakota Supreme media are supposed to be doing, which to Be Heard in South Dakota State Court in April 2017 appealing Gering’s is informing the public about things that Court in “Defamation Round-up: Recent February ruling. On April 5, Reuters might be matters of interest to them but Decisions and Pending Cases Put reported that Justice Gilbertson denied which corporate America might not be Defamation in Spotlight, Have Potential ABC’s petition. interested in sharing with them. And I to Reshape Media-Friendly Laws” in The trial began on June 5, 2017 and think that was ABC’s justifi cation for the Summer 2013 issue of the Silha was not expected to conclude until the doing this story – simply to let people Bulletin.) end of July. BPI claimed $1.9 billion know that this substance was in their The Christian Science Monitor in damages, including treble damages ground beef.” reported in March 2014 that Judge under South Dakota’s AFPDA. In opening On June 28, the Sioux City Journal Cheryle Gering ruled that the case statements, attorney for BPI Dan Webb reported that ABC had reached a would move forward following a claimed that ABC used the term “pink confi dential settlement with BPI. Gering motion to dismiss by ABC in which slime” 350 times over the course of its fi led the judgment of dismissal after the organization argued that BPI had telling those in failed to meet the requirements to “I think [Beef Products Inc.] defi nitely attendance at the bring defamation and disparagement suffered economic harm from the report, trial that “[n]either claims. Gering let stand 21 of BPI’s the court, nor 26 counts against ABC and the other but the question is, to what extent was the jury, nor the defendants, as reported on April 29 by the report inaccurate, and if it was public will be told Sioux City Journal. According to the inaccurate, to what extent did they the terms of the March 28, 2014 story by Law360, Gering settlement today.” did dismiss several of BPI’s claims for recklessly disregard the truth?” In a statement disparagement, contending that they outside the were preempted by other claims. — Lyrissa Lidsky, courthouse, Webb ABC appealed Gering’s ruling on University of Missouri School of Law dean said, “We are April 23, petitioning the South Dakota extraordinarily Supreme Court to reverse or clarify pleased with this portions of her decision related to reporting, according to Reuters on June settlement.. . . I believe we have totally common law disparagement claims, 28. Webb also showed a picture of LFTB vindicated the product.” BPI issued a and the AFPDA. In a May 22 two-page to demonstrate that it “physically doesn’t statement defending their product and ruling, Chief Justice David Gilbertson look like slime.” Additionally, Webb their litigation against ABC. “While denied ABC’s appeal and lifted the stay contended that calling a product “slime,” this was not an easy road to travel, it on litigation he had granted while the instead of its proper name, would lead was necessary to begin rectifying the high court had considered ABC’s motion, viewers or readers to “say they can’t harm we suffered as a result of what according to the Sioux City Journal. imagine anything worse. It connotes we believed to be biased and baseless In an Aug. 2, 2016 ruling, Judge Gering something disgusting, inedible.” reporting in 2012,” the statement read. scheduled the jury trial between BPI and In its opening statement, ABC “Through this process, we have again ABC to begin in June 2017, according to countered that its coverage was accurate established what we all know to be a Food Safety News story. The jury trial and deserved protection under the true about Lean Finely Textured Beef: was set to take place in Union County First Amendment. The network also it is beef, and it is safe, wholesome and Circuit Court in Elk Point, with Gering contended that the term “pink slime” nutritious.” presiding. On August 22, BPI lawyers was used before its report and that BPI After Gering announced the voluntarily dismissed fi ve defendants, was already losing customers prior to settlement, Avila also spoke briefl y including ABC News, Kerley, Zirnstein, ABC’s online and broadcast stories. outside the courthouse defending his Custer, and Foshee, according to an Oct. Additionally, ABC maintained that it used reporting. “I wish [the jury] had had the 7, 2016 Minnesota Public Radio (MPR) “knowledgeable sources on a matter chance to hear my side of the story,” report. of keen public interest,” according to Avila said. “It’s important to note we’re The following February, the Associated Press (AP) on May 30. not retracting anything. We’re not Gering dismissed claims against Kevin Baine, an attorney representing apologizing for anything.” Avila also Sawyer because “her actions as ABC and Avila, previously said in a June said he understood the settlement was a anchor . . . [limited] her involvement in 2017 statement that “people deserve to business decision by ABC, a subsidiary doing research” and the claims against know what’s in the food they eat” and of the Disney Media Network division of her were not suffi cient to establish that ABC’s reporting would “be fully The Walt Disney Company. defamation, according to a March 2017 vindicated.” In a written statement, ABC report by Reuters. However, Gering At the onset of the trial, Kirtley said spokeswoman Julie Townsend said the denied ABC’s motion for summary that although the trial decision would settlement was an “amicable resolution” judgement, retaining the claims against have no precedential value, the case Defamation, continued on page 28 27 Defamation, continued from page 27 Kirtley that it was problematic that this one. “From the president on down, ABC settled. “It’s troubling whenever it seems like we have reached a news of the lawsuit and that it was in the a case with such strong defenses environment where everything that network’s best interests. “Throughout settles,” Julin said. He added that he the media does or doesn’t do, intent is this case, we have maintained that our was concerned the settlement could ascribed to it,” Armijo said. “If the jury reports accurately presented the facts embolden people and companies to take was predisposed to think that media, and and views of knowledgeable people legal action whenever they do not like especially big media, has an agenda, then about this product,” Townsend wrote. how they were portrayed in the media. that makes the plaintiffs’ burden of proof “Although we have concluded that “[I]t is worrisome, whenever there’s a easier to meet.” continued litigation of this case in not confi dential settlement of a billiondollar Lidsky contended that defamation in the company’s interests, we remain case, you don’t know what the terms are; cases often swing based on the committed to the vigorous pursuit of that can be as encouraging to plaintiffs credibility of the journalist, meaning truth and the consumer’s right to know as anything else.. . . There will be many skepticism about journalistic methods about the products they purchase.” can affect a media Kirtley called the settlement defendant’s case. “It unfortunate because ABC would have “I do think [the Pink Slime case is] a matters if the media had a strong defense had the case bellwether in the sense that it raises as a whole are continued. “I always regret when a news two very critical issues.. . . One is that really unpopular organization, especially one who could with the public, mount a credible defense and has solid BPI claims that ABC News was basically because juries are fi nancial resources, elects to settle,” on a disinformation campaign, which members of that Kirtley told The Wrap on June 28. public and they’re In a June 28 interview with the is another way of saying fake news. less likely to fi nd Associated Press (AP), Kirtley also The other goes to the heart of what the the media credible explained how settlements can media are supposed to be doing, which if they think the embolden potential plaintiffs to fi le whole structure a defamation lawsuit. “As a general is informing the public about things that of the media isn’t proposition, I think settlements are might be matters of interest to them.” credible,” she bad because they send a message to told Law360. “If other litigants that news organizations — Jane Kirtley, the president is basically will buy their way out of Director of the Silha Center and saying the media lawsuits,” Kirtley said. “This is a Silha Professor of Media Ethics and Law is the enemy powerful corporation and it represents a of the people, powerful industry, and I think everyone that’s something should be concerned about the future of plaintiffs and many lawyers that will that fi lters down all the way to the investigative reporting when powerful look at this as a case that will show you trial judges in states where judges are entities can bring an action like this and media will settle these claims.” elected.” bring a settlement.” She added in a June Los Angeles media lawyer Ted Sonja West, a professor of First 28 interview with Law360, “I think the Boutrous agreed with Kirtley and Julin, Amendment law at the University word has gotten out to the libel plaintiffs contending that the settlement could of Georgia School of Law, said the bar that if you’re a public fi gure, you’ve embolden people to attack the press. BPI’s case against ABC could have got a big task ahead of you.. . . But now “It may well be a great settlement for the consequence of making the press something like this could embolden ABC, but we just don’t know and these more cautious in its reporting. “If that them to say give it a try because they days attackers of the press feel free to happens, it’s the public who suffers by might give you some money.” ignore the facts and will seize on and missing out on valuable information First Amendment attorney Thomas twist almost anything to undermine about important matters,” West said in Julin told Law360 that he was “amazed” the legitimacy of the media,” he said a June 28 interview with Reuters. “We the case ever made it to trial because in an interview with The Wrap. “I am don’t want a press that is always playing ABC’s statements appeared to be either concerned about the outburst of recently it overly safe with their reporting.” true or opinions, therefore protected fi led defamation suits, and I think news Kirtley agreed, adding that the case under the law. “It’s not like they did organizations need to fi ght back hard “was a ‘chilling’ one from the beginning.” a report that simply said ‘this is pink and explain what they do and why they “[The settlement] play[s] into the hands slime’ fullstop and then left it to the are doing it.” of those who want to undermine public imagination of viewers what that Enrique Armijo, associate professor confi dence in the mainstream media,” meant – ABC went the extra mile and at Elon University School of Law, told she said. said this is exactly how this product is Law360 that attacks against the press manufactured,” he said. SCOTT M EMMEL by politicians and other public fi gures Because he believed ABC could can infl uence defamation suits such as SILHA BULLETIN E DITOR have won the case, Julin agreed with

28 Media Groups and Transparency Advocates Challenge Family’s Lawsuit, Judge’s Ruling Halting the Release of “Personal” Information n June 2, 2017, multiple he had reburied the remains after are accessible by the public for both news organizations moving them a year after the murder. inspection and copying unless there reported that Patty and Heinrich gave a full, graphic account is federal law, a state statute, or a Jerry Wetterling had fi led of the kidnapping, sexual assault, and temporary classifi cation of data that a lawsuit to block the murder of Jacob, and also confessed provides that certain data are not Orelease of certain documents from to sexually assaulting another boy, public.” Minn. Stat. §13.01(3). the now-closed investigation into the Jared Scheierl, nine months prior to the However, on June 2, the Wetterlings 1989 abduction and murder of their murder. Minnesota Public Radio (MPR) fi led a lawsuit in the Minnesota District son, Jacob. The reported the confessions were part of Court for the Seventh Judicial District, PRIVACY Wetterlings a plea agreement that he would not requesting a TRO that would halt the claimed that some face charges in either case, but instead release of some information in the of the documents provide closure and information for investigative fi le. The Star Tribune produced by the investigation included the families. In November, Heinrich reported on June 3 that the Wetterlings personal and sensitive information was sentenced to 20 years in prison, had been allowed to review the fi le about their family. The same day, a the statutory maximum for the federal prior to its release and claimed that Stearns County (Minnesota) District child pornography charge to which he despite redactions, their privacy Court judge granted a temporary pleaded guilty. would still be violated if certain restraining order (TRO), halting the Jacob’s disappearance and the documents were made public. In the release of over 10,000 documents ensuing investigation drew local lawsuit, the Wetterlings alleged that collected during the 27-year and national attention, including the investigative documents include investigation until she could review an American Public Media podcast “personal information regarding [their] the documents the Wetterlings claimed series “In The Dark,” which received marriage and family relationship” and contained private information. Patty a Peabody Award in 2016. The case “highly personal details about the Wetterling and Jerry Wetterling v. also led to the creation of the Jacob Plaintiffs, their minor children, and the Stearns County, No. 73-CV-17-4904 Wetterling Crimes Against Children and inner working of the Wetterling family.” (2017). On, June 27, the Silha Center Sex Offender Registration Act, which Additionally, the lawsuit explains that for the Study of Media Ethics & Law, requires states to register and track sex law enforcement personnel were often along with nine other several media offenders. 42 U.S.C. § 14071. Congress “physically present in the Wetterling organizations and transparency amended the Wetterling Act in 1996 family home.” The complaint alleged advocates, fi led a “complaint in with the addition of Megan’s Law, which that the Wetterlings would “suffer intervention,” in addition to arguing for requires law enforcement agencies to irreparable harm if the redacted the release of the documents under the release information about registered investigative fi le . . . is publicly Minnesota Government Data Practices sex offenders that is “relevant” and released” and asked the court to grant Act (MGDPA). Minn. Stat. § 13.01 et seq. “necessary to protect the public.” 42 injunctive relief preventing the release Jacob was 11 years old when he U.S.C. § 14071(e). of the personal data. was abducted at gunpoint on Oct. 22, In May 2017, Stearns County The complaint contended that 1989 near his home in St. Joseph, Minn. Attorney Janelle Kendall announced such information “is protected from During the ensuing 27-year investigation that the county sheriff would release disclosure by the state and federal after the disappearance of Jacob, the 10,000 documents from the constitutions” and that “[b]oth the local, state and national investigators, Wetterling investigation, on June 5. In United States Supreme Court and including the Federal Bureau of a June 2 statement, Stearns County the Minnesota Supreme Court afford Investigation (FBI), compiled more than Sheriff Don Gudmundson said, “The individuals a fundamental and personal 56,000 pages of information and 10,000 struggle here is balancing our need right to informational privacy that documents containing interviews, to protect the privacy of victims and prevents governmental intrusion into tips, lead sheets, and investigative state law that requires the release of and public discourse about intimate reports, according to a June 2 story by a closed investigative fi le.” The state details regarding personal and family Minneapolis’ KARE 11. law discussed by Gudmundson is the matters.” The full complaint is available In October 2015, Danny Heinrich was MGDPA, which classifi es documents online at: https://www.courthousenews. offi cially named a person of interest in and information from closed or inactive com/wp-content/uploads/2017/06/ the Wetterling case after being jailed investigations as “public data,” “unless WetterlingComplaint.pdf. on federal child pornography charges. the release of the data would jeopardize On June 2, Judge Ann L. Carrott On Sept. 1, 2016, Heinrich confessed to another pending civil legal action, and issued a TRO enjoining the Stearns kidnapping and killing Jacob in October except for those portions of a civil County Sheriff’s Offi ce from 1989, according to the Star Tribune. On investigative fi le that are classifi ed as “disseminating or disclosing the September 3, Stearns County offi cials not public data by this chapter or other personal information contained announced they had found Jacob’s law.” Minn. Stat. § 13.39. Additionally, in the Jacob Wetterling criminal remains after Heinrich led authorities the MGDPA “establishes a presumption investigative fi le to any person.” Carrott to a farm near Paynesville, Minn. where that government data are public and Privacy, continued on page 30 29 Privacy, continued from page 29 (MNCOGI), among others, fi led a complaint in intervention is available “complaint in intervention” in the online at: https://www.scribd.com/ cited the 1965 Minnesota Supreme Stearns County District Court in document/352444051/Minnesota-Media- Court case Dahlberg Brothers, Inc. order to become a part of the legal Organization-Intervention-in-Wetterling- v. Ford Motor Co ., which provided proceedings regarding the investigative Documents-Release. “fi ve considerations . . . relevant in documents. The organizations sought In a statement after fi ling the deciding whether to [issue a temporary to intervene “for the purpose of complaint, the MNA wrote, “While restraint].” These considerations challenging plaintiffs’ claim that there sincerely sympathetic to the include, “(1) The nature and is a right of privacy arising under the Wetterlings, [MNA] believes the lawsuit background of the relationship between state or federal constitutions that takes poses a direct threat to the integrity the parties preexisting the dispute precedence over the public access of the Data Practices Act, the state giving rise to the request for relief. (2) requirements of the MGDPA.” The law that governs the classifi cation of The harm to be suffered by plaintiff if complaint added, “Applicants are not government records and that requires the temporary restraint is denied as most to be made compared to that infl icted on defendant public.” if the injunction issues pending trial. “While sincerely sympathetic to the Mark Anfi nson, (3) The likelihood that one party or the Wetterlings, the Minnesota Newspaper a Minneapolis other will prevail on the merits when Association believes the lawsuit poses media lawyer the fact situation is viewed in light of representing the established precedents fi xing the limits a direct threat to the integrity of the MNA, explained of equitable relief. (4) The aspects of [Minnesota Government Data Practices the organizations’ the fact situation, if any, which permit Act], the state law that governs the reason for fi ling or require consideration of public the complaint in a policy expressed in the statutes, State classifi cation of government records and June 27 interview and Federal. (5) The administrative that requires most to be made public.” with the Pioneer burdens involved in judicial supervision Press. “Once you and enforcement of the temporary — Minnesota Newspaper Association recognize that decree.” 137 N.W.2d 314 (Minn. 1965). the existence of Carrott concluded that “each of the a constitutional fi ve factors . . . weighs in favor of the aware of any legal authority suggesting right of privacy can be used to override issuance of a Temporary Restraining that records subject to the MGDPA and the Data Practices Act, you’ll have Order to maintain the status quo among classifi ed as public can be withheld an endless parade of celebrities, the parties.” based on a purported constitutional prominent offi cials and people who Carrott ordered that the plaintiffs privacy right.. . . Should this Court can afford attorneys threatening “shall submit a copy of the Personal accept plaintiffs’ argument . . . it would government agencies with lawsuits if Information for the Court’s in camera severely impair the ability of Applicants they release records about them, even review,” giving the family until June 30 and their members to protect their though classifi ed as public under the to produce the documents they wanted interest in public access to government Data Practices Act,” he said. “That to keep from public view. records, because it would create threat alone will have a paralyzing On June 6, the Star Tribune reported enormous uncertainty about when and effect on public access.” that Carrott moved the deadline for under what specifi c circumstances In a June 27 interview with KSTP- producing the documents containing public records could be withheld based TV, Silha Center Director and Silha the personal information to July 31. on the constitutional privacy right.” Professor of Media Ethics and Law Doug Kelley, the Wetterling’s attorney, Minnesota law requires that Jane Kirtley said the MGDPA should said the delay stemmed from a request in order for an applicant “to be not be bent to satisfy the Wetterling’s by the FBI for Stearns County to return permitted to intervene in an action,” desire for privacy. “The statute is investigative documents shared by the the party must “claim an interest unequivocal,” Kirtley said. “While I agency to the county during the course relating to the property or transaction think no one has any interest in adding of the investigation, according to the which is the subject of the action.” to the pain of the Wetterlings family, we Star Tribune. According to the St. Paul Minn. R. Civ. P. § 24.01 et seq. The have to think about this in the broader Pioneer Press on June 2, Kendall and applicant must also show that their sense.” Gudmundson both announced that they interest is not adequately protected Kirtley further discussed the would wait to release the documents by the existing parties in the legal Wetterlings’ legal arguments in an until after Carrott privately reviewed action. The news and transparency interview with MPR’s Cathy Wurzer on them and ruled on what should be organizations alleged that they “have June 7. “They are apparently relying made public. a strong and substantial interest in on the federal Constitution, the Fourth The Wetterlings’ request to keep the subject matter of this action, Amendment and also the Minnesota certain documents secret drew which focuses on the issue of public Constitution, which does not have an criticism from media members and access to records created, collected, explicit privacy provision,” Kirtley said. transparency advocates. On June and maintained by government “The argument that they’re making to 27, ten media and transparency agencies.” They also contended that apply the Fourth Amendment here is organizations, including The Silha “no existing party is likely to challenge somewhat novel because it normally Center for the Study of Media Ethics plaintiffs’ claim that disclosure of the wouldn’t apply in a federal setting.” and Law, Minnesota Newspaper records in question is prohibited by a She continued, “The Legislature doesn’t Association (MNA), and Minnesota constitutional privacy right.” The full provide an exemption for this and I Coalition on Government Information 30 think that the court should follow the I don’t think that’s a good way to make intervening in the legal proceedings. law.” public policy, but it is, unfortunately, The Wetterlings asked Carrott to decide The purpose of the MGDPA somewhat inevitable.” whether to release the documents provision making inactive investigation In a June 27 statement, Kelley before determining whether to let records public, according to Kirtley, defended the Wetterlings’ desire to the media and transparency groups is to “give the public a chance to withhold private information. “Patty intervene in the case. know what the government is up and Jerry Wetterling fi rmly believe On August 11, a hearing on the to.” She added, “I understand that in transparency in government and motion to intervene was held in St. the Wetterlings think their family recognize that law enforcement fi les Cloud, Minn., with both sides given the happenings do not refl ect on that, but – should generally be made public opportunity to explain their positions. with all due respect – I don’t think that once a criminal investigation ends,” At the hearing, Kelly and co-counsel is their decision to make.” the statement read. “Our lawsuit Adam Ballinger reiterated their desire Some experts were concerned that for Carrott to look even if the court ultimately rejects the “[The Wetterlings] are apparently relying at the contested Wetterlings’ arguments, a consequence documents of the ruling would be lawmakers on the federal Constitution, the Fourth in camera seeking to amend the MGDPA. Don Amendment and also the Minnesota before ruling Gemberling, secretary of MNCOGI, a on the motion nonprofi t group that works to educate Constitution, which does not have to intervene, the public on issues related to public an explicit privacy provision.. . . The according to records and government transparency, argument that they’re making to apply an email from told Minnesota Lawyer on June 12 that Anfi nson provided “[i]f the Wetterlings win, the practical the Fourth Amendment here is to the Silha Center. effect is that we return to 1981 and a somewhat novel because it normally On August 23, the situation where the Legislature spent wouldn’t apply in a federal setting.” Wetterlings fi led a whole lot of time not being able to a memorandum come up with a compromise on law responding to — Jane Kirtley, enforcement data.” an August 9 Gemberling also illustrated the Director of the Silha Center and memo submitted importance of the MGDPA in a June Silha Professor of Media Ethics and Law by Anfi nson 27 interview with the Pioneer Press. in support of “A whole lot of information has made seeks to preserve the Wetterling’s intervention. Carrott also provided the available to the public, which is helpful constitutionally protected privacy news and transparency organizations in understanding how investigations interests. A very small part of the an opportunity to respond to the by law enforcement agencies are law enforcement fi le contains things plaintiffs’ memo within seven days, done, and whether or not sometimes which do not belong in a police fi le and if the organizations determine it is they are screwed up,” he said. “If we misinformation of a character I’ve never necessary. somehow stick limitations on those before seen in my 42 years of practicing Anfi nson predicted that Carrott kinds of releases of information, then criminal law. We’ve asked the judge to would make a decision on the we start chipping away at government review a very small set of documents intervention motion within two weeks accountability and understanding how (less than three one thousands of one of the Wetterling’s attorneys fi ling the things work, and whether or not people percent) that is intensely personal memo, though she would be allowed are really doing their jobs.” and protected from disclosure by up to 90 days. As the Bulletin went to Kirtley agreed with Gemberling’s the state and federal constitutions press, Carrott had not issued a decision concerns about an amendment of the and the Minnesota Government Data regarding the contested information, MGDPA. “I would predict that at the Practices Act. None of the documents nor had she ruled whether the next chance the legislature had they in issue mention Danny Heinrich or media organizations were allowed to would go in and amend this provision shed any light on the performance of intervene. to specifi cally cover this kind of law enforcement investigating Jacob’s material,” she said. “We have certainly disappearance.” BRITTANY R OBB seen in other cases around the country On July 27, WCCO, Minneapolis’ CBS SILHA R ESEARCH A SSISTANT when you have a bad case or a case affi liate, reported that the Wetterlings that upsets people, the legislature often fi led a motion to prevent the media will react by closing off public access. and transparency organizations from

31 U.S. Customs and Border Protection Searches of Electronic Devices, Data at U.S. Borders Raise Privacy and Legal Concerns n April 2017, U.S. Customs and encountered . . . at the border.” The not always be honored, or be completely Border Protection (CBP) released policy cites several reasons for searching clear. The Atlantic reported on Feb. 13, data indicating a signifi cant these devices, including to “help detect 2017 that Sidd Bikkannavar, a 35-year- increase between 2015 and early evidence relating to terrorism and other old engineer working at the National 2017 of warrantless searches by national security matters, human and Aeronautics and Space Administration ICBP agents of travelers’ personal and bulk cash smuggling, contraband, and (NASA) Jet Propulsion Laboratory in work electronic devices, as well as child pornography.” Pasadena, Calif., was told by a CBP demands for their passwords and social Signifi cantly, the directive allows agent to hand over his smartphone, media information. “an Offi cer or other individual despite being part of the CBP Global LAW The data raised authorized to perform or assist in such Entry program, which allows members searches . . . [to] examine electronic ENFORCEMENT legal questions and to pass through customs lines after their privacy concerns devices and may review and analyze fi ngerprints and passport are scanned. stemming from the information encountered at the When Bikkannavar complied, the CBP CBP’s 2009 policy directive allowing border.” The individual can do so “with agent requested Bikkannavar’s passcode warrantless searches of electronic or without individualized suspicion,” to gain access to his phone. Although devices at U.S. borders. Also in the fi rst meaning a search warrant or probable Bikkannavar explained that the phone half of 2017, President Donald Trump’s cause are not required, according to a was property of the Jet Propulsion Lab administration, the U.S. Department March 13, 2017 ProPublica story. The and contained sensitive information, of Homeland Security (DHS), and policy cites several federal statutes the border agent maintained that he the U.S. State Department proposed related to imports and immigration, had the authority to access the device. or implemented “extreme vetting” among other areas, justifying these Eventually, Bikkannavar provided measures of visa applicants and foreign warrantless searches. the passcode and waited 30 minutes visitors to the U.S., further raising If an offi cer determines that there is as the agent “r[a]n ‘algorithms’ on concerns about the privacy of travelers’ probable cause to believe “the device, or the device . . . to search for threats.” social media accounts and data. Finally, copy of the contents thereof, contains This incident suggests that CBP’s on June 20, 2017, Kevin McAleenan, evidence of or is the fruit of a crime directive is applicable to both personal CBP’s acting commissioner, responded that CBP is authorized to enforce,” electronic devices as well as those to a February 2017 letter from Sen. Ron the offi cer may “detain the [device], or owned and provided by an employer, Wyden (D-Ore.), citing several statutes copies of information contained therein, even if it contains sensitive information, defending the agency’s warrantless for a brief, reasonable period of time according to The Atlantic. searches, but also indicating that CBP to perform a thorough border search,” Furthermore, journalists also face agents do not search data stored on which should generally not exceed fi ve searches of their electronic devices, external servers. Nevertheless, on April days. even if they are used for work purposes, 4, 2017, Sen. Wyden, along with Sen. The policy includes several according to the Reporters Committee Rand Paul (R-Ky.), introduced a bill exceptions. First, if offi cers encounter for Freedom of the Press (RCFP). aiming to prevent searches of American material that appears “to be legal in In an Oct. 28, 2014 commentary, the citizens’ and permanent residents’ nature, or an individual . . . assert[s] Committee to Protect Journalists (CPJ) electronic devices without a warrant, as that certain information is protected contended that searches of journalists’ well as prohibiting CBP’s pressure on by attorney-client or attorney work personal devices used for work purposes travelers to disclose passwords or social product privilege . . . the Offi cer must can expose sensitive data, such as media accounts. seek advice from the CBP Associate/ contact information of confi dential Assistant Chief Counsel before sources, classifi ed documents, or notes 2009 Policy Continues to Raise conducting a search.” Second, sensitive taken during investigative reporting, Legal Questions Amid Increase material “such as medical records despite the CBP policy exception in Warrantless Searches at U.S. and work-related information carried intended to be applied to journalists. Borders by journalists . . . shall be handled in Consequently, the 2009 policy In August 2009, CBP released accordance with any applicable federal directive, and resulting actions by CBP Directive No. 3340-049, titled “Border law and CBP policy.” Finally, if an offi cer agents, continue to raise legal questions, Search for Electronic Devices Containing encounters “business or commercial particularly that an agent can search Information,” which remains an active information in electronic devices,” the an electronic device “with or without policy. The purpose of the directive offi cer must “treat such information individualized suspicion” and that the is to provide “guidance and standard as business confi dential information federal government “has long claimed operating procedures for searching, and shall protect that information from that Fourth Amendment protections reviewing, retaining, and sharing unauthorized disclosure.” In all cases, prohibiting warrantless searches don’t information contained in computers, information of a sensitive nature can apply at the border,” according to an disks, drives, tapes, mobile phones and only be shared with federal agencies that American Civil Liberties Union (ACLU) other communication devices, cameras, “have mechanisms in place to protect release on March 14, 2017. Many privacy music and other media players, and appropriately such information.” experts have pushed against these any other electronic or digital devices, However, an incident in February claims, often citing three court cases, 2017 indicates that the exceptions may including the 2014 U.S. Supreme Court 32 case Riley v. California, the 2013 U.S. states in the Ninth Circuit and it is “not the government’s authority to search at Court of Appeals for the Ninth Circuit’s clear whether CBP has taken the 2013 the border, but also the border itself, that decision in United States v. Cotterman, decision into account more broadly,” it was unreasonable.” and the 2015 ruling by the U.S. District according to ProPublica on March 13, In addition to citing court precedent, Court for the District of Columbia in 2017. privacy advocates have also cited United States v. Kim. Finally, on May 8, 2015 District arguments against warrantless searches Riley arose out of two lower court Court Judge Amy Berman Jackson, at U.S. borders based on the Fourth and cases in which the plaintiffs argued citing Riley and Cotterman, ruled that Fifth Amendments. Hugh Handeyside, a that searches of their smartphones searches of computers at U.S. borders staff attorney with the ACLU’s National constituted “warrantless search[es] in must be “reasonable,” with the totality Security Project contended in a March violation of the Fourth Amendment.” of circumstances taken into account, 13, 2017 interview with NBC News Riley v. California, 134 S.Ct. 2477 including the potential invasion of that “while the Fourth Amendment’s (2014). Chief Justice John Roberts, individuals’ privacy. United States v. warrant requirement doesn’t apply at writing for the unanimous Court, Kim, 103 F.Supp. 3d 32, 59 (D.D.C. 2015). the border, its ‘general reasonableness’ ruled that “what police must do before The case arose in October 2012 when requirement still does, and is supposed searching a cell phone seized incident DHS offi cials obtained information to protect against unreasonable to an arrest is accordingly simple— that defendant Jae Shik Kim, a Korean searches and seizures.” He added, “That get a warrant.” Chief Justice Roberts businessman, was “involved in a may seem nuanced, but it’s a critical added, “Our holding, of course, is not distinction.. . . We that the information on a cell phone is “[W]hile the Fourth Amendment’s don’t surrender immune from search; it is instead that warrant requirement doesn’t apply at our constitutional a warrant is generally required before rights at the such a search, even when a cell phone the border, its ‘general reasonableness’ border.” is seized incident to arrest.” (For more requirement still does, and is supposed Additionally, information on the Riley decision, see in a March 13, “Supreme Court Says Warrants are to protect against unreasonable 2017 commentary Required to Search Cell Phone Data; searches and seizures.. . . That may for ProPublica, Possible Implications for NSA Telephony seem nuanced, but it’s a critical reporting fellow Metadata Collection” in the Summer Patrick G. Lee 2014 issue of the Silha Bulletin.) distinction.. . . We don’t surrender our suggested that the A second case often cited is constitutional rights at the border.” individuals at the Cotterman, which arose in 2007 when border may be able border agents seized plaintiff Howard — Hugh Handeyside, to invoke their Cotterman’s laptop at the U.S.-Mexico ACLU National Security Project staff attorney Fifth Amendment border after his name drew an alert that right to avoid he was a registered sex offender. United being “a witness States v. Cotterman, 709 F.3d 957 (9th against himself” in Cir. 2013). Although the initial search of previous shipment of controlled articles a criminal case. However, Lee conceded his device “turned up no incriminating to a Chinese businessman in Korea, who that lower courts “have produced material,” a “comprehensive forensic then forwarded them to customers in differing decisions on how exactly examination” at a location 170 miles Iran.” In December, before being allowed the Fifth Amendment applies to the away uncovered images of child to board his fl ight home, Kim’s laptop disclosure of passwords to electronic pornography on Cotterman’s laptop. was seized by a DHS agent and shipped devices.” Writing for the majority, Judge M. to a forensic specialist in San Diego. Despite these contentions, CBP Margaret McKeown determined that Only after the specialist created an agents and the federal government have “the legitimacy of the initial search identical copy of the hard drive, which maintained that the Fourth Amendment of Cotterman’s electronic devices at was searched using specialized software, does not apply at the border, what NBC the border is not in doubt” because did the DHS agent obtain a warrant to News calls a “legal loophole to collect “a suspicionless cursory scan of conduct the search of the hard drive. intelligence.” Nevertheless, Liza Goitein, a package in international transit Jackson ruled that the search of Kim’s co-director of the Liberty and National was not unreasonable.” However, laptop was not “reasonable” given the Security Program at the Brennan Center the majority concluded that an totality of the circumstances surrounding for Justice, suggested to ProPublica that “extended border search,” such as the search. She wrote, “the Court is questions remain if an agent can compel the forensic analysis of Cotterman’s troubled by the lack of particularized an individual to disclose their passwords laptop done at a separate geographical grounds to believe that this defendant or to search their devices with a warrant. location, requires “reasonable was engaged in criminal activity at the “That’s still an unsettled question.. . . suspicion[,] . . . ‘a particularized and time he was exiting the United States” Until it becomes clear that it’s illegal to objective basis for suspecting the and that “the invasion of [Kim’s] privacy do that, they’re going to continue to ask,” particular person stopped of criminal was substantial.” Jackson added that the she said. activity,’” which McKeown called “a court found the search of Kim’s laptop The ACLU agreed. “Until the Supreme modest requirement in light of the using specialized forensic software Court weighs in on the constitutional Fourth Amendment.” “was supported by so little suspicion of limits of the government’s powers at the Although Cotterman perhaps ongoing or imminent criminal activity, border, questions about the government’s provided some guidance for the and was so invasive of Kim’s privacy authority to conduct these kinds of potential limitations of CBP’s authority, and so disconnected from not only the Borders, continued on page 34 it is binding only in the nine Western considerations underlying the breadth of 33 Borders, continued from page 33 The Atlantic reported on April 12, questions about political views and searches aren’t likely to be settled.. . . 2017 that although the percentage of associations.” Lower courts have issued confl icting travelers being searched remained very The following week, then-U.S. rulings on whether individualized low, with about eight in every 100,000 Homeland Security Secretary John suspicion should be a condition for such travelers being searched, there is a F. Kelly defended the practice. Kelly a search.” “steady rise [that] shows no signs of told the U.S. House of Representatives Amidst the legal questions and slowing.” Homeland Security Committee that uncertainty, the practice of searching foreign visitors should have to provide electronic devices and requesting Federal Agencies, Trump their online passwords and submit to passwords by CBP agents at U.S. borders Administration Propose and social-media searches in order to enter increased between October 2015 and Implement Measures for “Extreme the United States, The Atlantic reported March 2017. According to data published Vetting” on Feb. 10, 2017. “If they don’t want to by CBP in an April 11, 2017 release, Following President Donald Trump’s cooperate then you don’t come in,” Kelly searches of cellphones by border agents January 2017 executive order banning said in the February 8 meeting. more than doubled from 8,503 arriving Muslim individuals from several Joseph Lorenzo Hall, the chief international travelers to 19,033 in 2016. Middle Eastern countries, the Trump technologist at the Center for Searches rose from 857 in October 2015 Administration, the U.S. Department Democracy and Technology, criticized to 2,560 one year later, rising to 2,595 in of Homeland Security (DHS), and the Kelly’s comments in a February 9 blog March 2017 before the data was released. U.S. State Department each proposed or post. “Asking for passwords and other The full press release is available online implemented policy changes regarding credentials is beyond the pale,” he at: https://www.cbp.gov/newsroom/ the “extreme vetting” of visa applicants wrote. “With that kind of access, they national-media-release/cbp-releases- and foreign visitors to the United States. can not only see what you’ve publicly statistics-electronic-device-searches-0. The Washington Post reported on April posted, but things you haven’t posted In a March 13, 2017 interview with 4, 2017 that among the most signifi cant yet, private messages, private lists, they NBC News, Mary Ellen Callahan, former changes were increased searches of can impersonate you, even do these chief privacy offi cer at the Department individuals’ electronic devices and things on accident. This kind of access is of Homeland Security (DHS), called mandatory checks of their social media profoundly invasive.” the increases “signifi cant.” She added, history. Several former immigration Sophia Cope, staff attorney at the “That [increase] was clearly a conscious offi cials, as well as privacy experts, Electronic Frontier Foundation (EFF), strategy, that’s not happenstance.” criticized the proposed changes, calling agreed in a February 8 interview with In the release, the CBP contended them time consuming and ineffective, The Guardian. “Whether border agents that the increase in electronic device among other claims. demand usernames and passwords searches was “driven by CBP’s mission On Jan. 27, 2017, President Trump to social media accounts or access to protect the American people and signed an executive order banning apps, such searches . . . violate human enforce the nation’s laws in this digital Muslim individuals from Iraq, Syria, Iran, rights norms around free speech and age.. . . No court has concluded that Libya, Somalia, Sudan and Yemen from privacy for foreigners and implicate the the border search of electronic devices entering the United States, as reported constitutional rights of Americans,” she requires a warrant, and CBP’s use of this by CNN. President Trump called for said. authority has been repeatedly upheld.” “far-reaching steps for ‘extreme vetting’” On March 23, The New York Times CBP Deputy Executive Assistant of individuals looking to enter the U.S. reported that the Trump administration Commissioner John Wagner is quoted as in connection with the “travel ban.” sent four cables between March 10 and saying, “Electronic device searches are Just prior to the order, the Council on March 17 to U.S. embassies, requesting integral in some cases to determining American-Islamic Relations (CAIR), that they conduct “extra scrutiny” of visa an individual’s intentions upon entering the nation’s largest Muslim civil rights applicants. In the cables, Secretary of the United States.. . . These searches, and advocacy organization, had fi led State Rex W. Tillerson called for embassy which affect fewer than one-hundredth complaints with U.S. Customs and offi cials to “scrutinize a broader pool of one percent of international travelers, Border Protection (CBP), DHS, and the of visa applicants to determine if they have contributed to national security U.S. Department of Justice (DOJ) after pose security risks to the United States,” investigations, arrests for child reports indicated an “increased scrutiny including mandatory checks of social pornography and evidence of human of American Muslims’ social media media history if the individual had ever traffi cking. CBP offi cers are well trained accounts and the contents of mobile been to a country or territory controlled to judiciously conduct electronic phones, along with interrogations about by the Islamic State, according to the device searches and to protect sensitive constitutionally-protected beliefs,” Times . information that may be encountered.” according to a Jan. 18, 2017 CAIR press On April 4, 2017, The Wall Street Additionally, NBC News contended release. Journal reported that DHS offi cials were that the increase may have been The Verge reported on January 30 that also considering stricter policies for visa “sparked by a string of domestic following President Trump’s executive applicants and other foreign individuals incidents in 2015 and 2016 in which the order, “border agents [increasingly] seeking entry to the U.S. As part of a watch list system and the FBI failed to confronted targeted travelers with an review of existing vetting procedures stop American citizens from conducting unusual request: access to their social DHS offi cials planned to “signifi cantly attacks. The searches also refl ect new media accounts.” According to The increase demands for information from abilities to extract contact lists, travel Verge, an immigration lawyer named all visa applicants, including visitors patterns and other data from phones Mana Yegani reported Border Patrol and others seeking to immigrate.” The very quickly.” agents in Houston, Texas were “checking Wall Street Journal reported that there new arrival’s Facebook pages, alongside would be two changes to current U.S.

34 policy. First, CBP agents “would be Rodriguez said. “They’ll show up with a permits CBP to ask for or demand, as asking applicants to hand over their clean phone.” a condition of entry, that a U.S. person telephones so offi cials could examine In a May 4 interview with Reuters, disclose their social media or email their stored contacts and perhaps other John Sandweg, a former senior offi cial at account information . . . [and/or] turn information.” Visitors have previously the Department of Homeland Security, over their device PIN or password had their phones examined at ports of agreed that the process would be labor to gain access to encrypted data?” entry, but a phone review “isn’t routinely intensive and have little pay-off. “The Wyden’s full letter is available online requested during the application stage.” more effective tactics are the methods at: https://www.wyden.senate.gov/ Second, CBP offi cials “would ask that we currently use to monitor terrorist download/?id=B947731A-2394-484B- applicants for their social-media handles organizations, not just stumbling into 81E3-FDD49530EBF4&download=1. and passwords so that offi cials could see the terrorist who is dumb enough to In a letter dated June 20, 2017, Kevin information posted privately in addition post on his Facebook page ‘I am going McAleenan, then-nominee for CBP to public posts.” According to a June 1 to blow up something in the United Commissioner, responded to several Fortune magazine story, the social media States,’” Sandweg said. Greg Siskind, of Wyden’s questions, as reported by screening proposed by DHS offi cials an immigration attorney in Memphis, NBC News. McAleenan cited several could include citizens of close U.S. allies agreed. “Somebody’s got to do the work,” statutes defending the searches without in the Visa Waiver Program, including he told Reuters. “It’s going to cause probable cause by CBP, including the United Kingdom and Australia, in operations at a lot of consulates [to] 8 USC § 1357(c), which authorizes addition to other nations. slow to a crawl.” a search without a warrant of “the ABC News reported on May 4, 2017 personal effects in the possession of that the U.S. State Department had also Senator Receives Letter Clarifying any person seeking admission to the proposed changes to existing vetting CBP Policies; Introduces Bill United States,” if the CBP offi cer “may practices, including proposed tougher Seeking to Eliminate Warrantless have reasonable cause to suspect that questions for some visa applicants. Searches of Americans at U.S. grounds exist for denial of admission to Among the information requested Borders the United States . . . which would be in the new questionnaire would be On Feb. 20, 2017, CNN reported that disclosed by such search.” McAleenan “[s]ocial media platforms and identifi ers, Sen. Ron Wyden (D-Ore.) wrote a letter also maintained that CBP’s inspection of also known as handles, used during the to then-Secretary of Homeland Security electronic devices “does not require the last fi ve years; and [p]hone numbers John F. Kelly asking for clarifi cation consent of that traveler.” Additionally, he and email addresses used during the regarding U.S. Customs and Border wrote that if a traveler refuses to unlock last fi ve years,” according to the State Protection (CBP) agents’ searches of their device or provide passwords, Department’s proposal. travelers’ electronic devices at U.S. CBP offi cers can “detain the item.” He On May 31, Reuters reported that borders, as well as their requests for added that smartphone searches are the Trump administration and the travelers’ passwords and social media “exceedingly rare.” Offi ce of Management and Budget had account information. In a June 20 letter But perhaps most signifi cantly, approved the State Department’s new responding to Wyden, Kevin McAleenan, McAleenan wrote that searches by CBP questionnaire for U.S. visa applicants, CBP’s acting commissioner, cited apply only to content that is “physically which required fi ve years’ worth of several statutes defending the agency’s resident on the device during CBP social media handles, among other practices, but also indicating that inspection,” including call histories, information. Border agents would ask CBP agents do not search data stored text messages, contacts, and more. for social media details in the event on external servers or cloud storage, Consequently, according to McAleenan, “such information is required to confi rm according to a July 12 NBC News story. “CBP does not access information identity or conduct more rigorous Meanwhile, CNN reported on April 4, found only on remote servers through national security vetting,” according 2017 that Sens. Wyden and Rand Paul (R- an electronic device presented for to an anonymous State Department Ky.) introduced a bill aiming to prevent examination, regardless of whether offi cial who spoke with Reuters. On searches at U.S. borders of American those serves are located abroad or June 29, The Hill reported that the citizens’ and permanent residents’ domestically,” therefore including cloud State Department had begun instructing electronic devices without a warrant. storage. According to McAleenan, embassy and consular offi cials to The bill would also allow Americans to CBP’s Offi ce of Field Operations issued institute social media checks, specifi cally cross the border without being forced to “a nationwide muster in April 2017 of people coming from regions of Iraq hand over account passwords and social reminding its offi cers of this precise and Iran under Islamic State control. media information. aspect of the border search policy.” Privacy experts and former Wyden sent his February 2017 letter McAleenan’s full letter is available government offi cials expressed concern to Kelly in response to “recent media online at: http://msnbcmedia.msn.com/i/ over the potential changes. Leon reports of Americans being detained MSNBC/Sections/NEWS/170712-cpb- Rodriguez, who previously headed by [CBP] and pressured to give CBP wyden-letter.pdf. the U.S. Citizenship and Immigration agents access to their smartphone PIN Observers expressed mixed reactions Services, a DHS agency, told The Wall numbers or otherwise provide access to what McAleenan wrote. Drew Street Journal that although information to locked mobile devices.” Wyden Mitnick, policy counsel at the digital gleaned from phones and social media called the reports “deeply troubling,” rights organization Access Now, told could help assess threats, it would also especially following Kelly’s comments The Washington Post on July 14 that be a time-consuming process and that that CBP should demand social media although he and other privacy advocates people with bad intentions would only passwords from all visitors of the U.S. welcomed McAleenan’s clarifi cation, need to change their practices. “The real Wyden asked a series of questions in the CBP rules could easily be changed to a bad guys will get rid of their phones,” letter, including “[w]hat legal authority Borders, continued on page 36 35 Borders, continued from page 35 under the Fourth Amendment to the The bill contains emergency Constitution of the United States.” exceptions, including if there is more intrusive policy. “[T]his policy is Under the legislation, a government immediate danger of death or serious at odds with recent broad expansions body or offi cial may not “access the injury, “conspiratorial activities of CBP collection of social media digital contents of any electronic threatening the national security interest information, which can enable the equipment belonging to or in the of the United States,” or any activity agency to access, store and analyze a possession of a United States person “characteristic of organized crime.” signifi cant amount of data on travelers at the border without a valid warrant Additionally, a government entity and their connections, revealing highly supported by probable cause.” Second, does not have to obtain a warrant if personal information,” Mitnick said. a government entity cannot “deny entry an individual provides verbal consent “Moreover, if CBP offi cers are not into or exit from the United States by and the entity subsequently “obtain[s] permitted to seek data stored in the a United States person” who refuses written consent” prior to searching an cloud, it makes the case even weaker for to disclose an access credential, individual’s electronic device. them to seek travelers’ passwords, as provide access to digital contents The bill was sponsored by Reps. Secretary Kelly has proposed.” of an electronic device, or provide Jared Polis (DColo.) and Blake In a July 13 commentary for online account information. Third, a Farenhold (RTexas) in the U.S. House of The Verge, writer Russell Brandom government entity may not delay entry Representatives, and was referred to the contended that the distinction between into or exit from the United States for Senate Committee on Homeland Security devices and cloud storage is not as clear longer than the period of time “necessary and Governmental Affairs on April 4, as McAleenan makes it seem. “While to determine whether the United States 2017. As the Bulletin went to press, the McAleenan’s testimony draws a sharp person will . . . consensually provide bill remained in the committee. distinction between devices and the an access credential, access, or online In a statement following the cloud, the division is often less sharp in account information,” which is not to introduction of S.823, Wyden explained practice,” Brandom wrote. “The letter’s exceed four hours. the purpose behind the legislation. phasing leaves room for border searches As The Verge journalist Adi Robertson “Americans’ constitutional rights of recent email and social media noted in an April 4 commentary, shouldn’t disappear at the border,” messages, provided the information is the bill was only intended for “U.S. Wyden said. “By requiring a warrant accessible on a traveler’s phone at the persons,” meaning citizens or permanent to search Americans’ devices and time of the search (that is, not “solely” residents. “Because it applies only to US prohibiting unreasonable delay, this on a remote server).” persons — either citizens or permanent bill makes sure that border agents are In his February 2017 letter to Kelly, residents — it wouldn’t address focused on criminals and terrorists Wyden also indicated that he intended to complaints from foreign travelers, nor instead of wasting their time thumbing introduce legislation to “guarantee that stop the administration from asking through innocent Americans’ personal the Fourth Amendment is respected at visa applicants to turn over phones photos and other data.” He added, “Folks the border by requiring law enforcement and social media details for ‘extreme are going to be less likely to travel freely agencies to obtain a warrant before vetting.’” She added, “Though its chances to the US with the devices they need if searching device, and prohibiting the of passing are likely slim, the bill is they don’t feel their sensitive business practice of forcing travelers to reveal meant to address growing concern over information is going to be safe at the their online account passwords.” invasive customs searches, especially as border.” Between sending his letter to Kelly and the Trump administration puts a greater In a separate statement, Paul cited receiving the response back from CBP, focus on aggressive border security the 2004 U.S. Supreme Court case Riley Wyden, along with Sen. Rand Paul, measures.” v. California , in which the Court ruled introduced S.823, titled “Protecting Data If a warrant was not obtained, “any a warrant is generally required before at the Border Act,” on April 4. copy of the digital contents in the such a search, even when a cell phone The bill fi rst provided that individuals custody or control of a Governmental is seized incident to arrest.” “As the “have a reasonable expectation of entity shall immediately be Supreme Court unanimously recognized privacy in the digital contents of their destroyed . . . [and] the digital contents, in 2014, innovation does not render the electronic equipment, the digital and any information derived from the Fourth Amendment obsolete,” Paul said. contents of their online accounts, and digital contents, may not be disclosed “It still stands today as a shield between the nature of their online presence,” to any Governmental entity or a State or the American people and a government including at U.S. borders. The bill alleged local government.” However, the authors all too eager to invade their digital that “accessing the digital contents of the bill were careful to note that the lives. Americans should not be asked to of an online account, or obtaining bill does not “prohibit a Governmental surrender their rights or privacy at the information regarding the nature of entity from conducting an inspection border, and our bill will put an end to the the online presence of a United States of the external physical components of government’s intrusive practices.” person entering or exiting the United the electronic equipment to determine States, without a lawful warrant based the presence or absence of weapons or SCOTT M EMMEL on probable cause, is unreasonable contraband without a warrant.” SILHA BULLETIN E DITOR

36 Ninth Circuit Addresses Spokeo after Supreme Court Remands Case; Circuit Courts Split on Article III Standing Bar Following Spokeo n Aug. 14, 2017, the U.S. violations of the Fair Credit Reporting accuracy of his consumer report—is, Court of Appeals for Act (FCRA). 15 U.S.C. § 1681g(a) alone, enough to establish a concrete the Ninth Circuit ruled (2). The U.S. District Court for the injury.” O’Scannlain explained that on remand that plaintiff Central District of California dismissed although the FCRA “purportedly allows Thomas Robins claimed Robins’ complaint for lack of Article III [Robins] to sue for willful violations Oa “suffi ciently concrete” injury to standing. The Ninth Circuit reversed, without showing that he suffered any establish Article III standing under holding that Robins had “established a additional harm . . . the mere fact that the U.S. Constitution in order to bring suffi cient injury-in-fact . . . because [he] Congress said a consumer like Robins a claim against alleged that Spokeo violated specifi cally may bring such a suit does not mean Spokeo, Inc. the his statutory rights, which Congress that a federal court necessarily has the DATA PRIVACY operator of an established to protect against individual power to hear it.” O’Scannlain cited the online “people rather than collective harms.” Robins v. Supreme Court’s conclusion in Spokeo search engine,” Spokeo, Inc., 742 F.3d 409, 414 (9th Cir. that “a plaintiff does not ‘automatically for violating the Fair Credit Reporting 2014). satisf[y] the injury-in-fact requirement Act (FCRA). Robins v. Spokeo, Inc., Justice Samuel Alito, writing for a whenever a statute grants a person a No. 11-56843 (9th Cir. 2017). The ruling 6-2 majority, vacated and remanded statutory right and purports to authorize followed the U.S. Supreme Court’s May the Ninth Circuit decision. The court that person to sue to vindicate that 2016 decision in Spokeo, Inc. v. Robins determined that in order to have right.’” Instead, the plaintiff must allege in which the Court determined that the Article III standing, a plaintiff must a statutory violation “that caused him Ninth Circuit had failed to properly demonstrate that he or she suffered to suffer some harm that ‘actually analyze the “concreteness” requirement an injury-in-fact, which consists of the exist[s].’” for establishing standing, and remanded invasion of a legally protected interest Nevertheless, O’Scannlain the case to the lower court to decide if which is “concrete and particularized.” maintained that “congressional Robins’ claims met the “concreteness” Alito wrote that in determining whether judgment still plays an important role standard. 136 S.Ct. 1540 (2017). an intangible harm is suffi cient under in the concreteness inquiry, especially Conversely, in May 2017, the Second Article III, courts must determine in cases—like this one—in which the and Fourth Circuits both ruled that whether the injuries have “traditionally plaintiff alleges that he suffered an plaintiffs did not have Article III been regarded as providing a basis intangible harm” [emphasis in original]. standing to sue for violations of state for a lawsuit in English or American He wrote, “while Robins may not show or federal statutes because they had courts.” Additionally, Alito wrote that an injury-in-fact merely by pointing to a not incurred any concrete injuries. Congress’s judgment is both “instructive statutory cause of action, the Supreme Although the Second and Fourth Circuit and important.” Therefore, the Court Court also recognized that some decisions both favored the defendants, held that Robins could not satisfy the statutory violations, alone, do establish other circuit courts, including the Ninth concreteness requirement with a “bare concrete harm” [emphasis in original]. Circuit, have ruled in favor of plaintiffs procedural violation” of the FCRA. Consequently, the Ninth Circuit having Article III standing in similar posed two questions: “(1) whether cases, following the Supreme Court’s Ninth Circuit Rules Spokeo Plaintiff the statutory provisions at issue ruling in Spokeo. Court observers Claimed a Suffi ciently Concrete were established to protect [Robins’] argued that the split would not be Injury to Meet Article III Standing concrete interests (as opposed to remedied until the Supreme Court On Aug. 15, 2017, the Ninth Circuit purely procedural rights), and if so, weighed in on the issue once again. considered whether Robins had claimed (2) whether the specifi c procedural On May 16, 2016, the Supreme Court a “suffi ciently concrete injury” to meet violations alleged in this case actually decided Spokeo, vacating and remanding Article III standing after the Supreme harm, or present a material risk of harm a Ninth Circuit decision because the Court remanded the case in May 2016. to, such interests.” lower court improperly analyzed The court reversed the district court’s Regarding the fi rst question, the “concreteness” requirement for dismissal of Robins’ action, instead O’Scannlain agreed with Robins establishing an injury-in-fact. Spokeo ruling that “because the alleged injuries “that Congress established the was the operator of an online “people were also suffi ciently particularized to FCRA provisions at issue to protect search engine,” which gathered Robins and caused by Spokeo’s alleged consumers’ concrete interests.” The personal information about individuals FCRA violations that were redressable court ruled that the “interests protected for users, including employers in court, Robins adequately alleged by FCRA’s procedural requirements are evaluating prospective employees. The the elements necessary for Article III ‘real,’ . . . [and] the dissemination of case arose when information pertaining standing.” false information in consumer reports to the plaintiff Thomas Robins Writing for the unanimous three- can itself constitute a concrete harm.” contained inaccuracies, misrepresenting judge panel, Judge Diarmuid F. O’Scannlain added, “given the ubiquity his marital and employment status O’Scannlain fi rst addressed Robins’ and importance of consumer reports in and infl ating his income and level argument that “Spokeo’s alleged modern life—in employment decisions, of education. Robins fi led a class violation of FCRA—specifi cally its in loan applications, in home purchases, action suit against Spokeo, alleging failure reasonably to ensure the Spokeo , continued on page 38 37 Spokeo , continued from page 37 plaintiffs had not sustained suffi ciently complaint in the United States District concrete injuries in order to have Court for the Eastern District of New and much more— the real-world Article III standing to sue for violations York on Dec. 2, 2014, alleging that implications of material inaccuracies of state or federal statutes. The she had suffered actual damages in those reports seem patent on their decisions fell on one side of a circuit and faced an increased risk of future face.” court split following the Supreme harm. Whalen v. Michael Stores Inc., The court also looked to “historical Court’s ruling in Spokeo, with some 153 F.Supp.3d 577 (E.D.N.Y. 2015). practice” to determine if “the statutory observers contending that the Court Whalen alleged fi ve different types provisions at issue were established must weigh in on the issue once again in of injuries, including “(1) ‘actual to protect [Robins’] concrete order for the split to be remedied. damages including monetary losses interests.” The court cited several Following Spokeo, several observers arising from unauthorized bank federal court opinions, including In criticized the decision as lacking clear account withdrawals, fraudulent card re Horizon Healthcare Servs. Inc. guidance for lower courts about how payments, and/or related bank fees Data Breach Litig. in which the Third plaintiffs establish “concreteness” charged to their accounts,’ . . . (2) the Circuit compared the FCRA’s privacy of injury. In a May 17, 2016 post loss of time and money associated protections to common law protections. on LinkedIn’s “Pulse” blog, Daniel with credit monitoring and obtaining 846 F.3d 625, 638–40 (3rd Cir. 2017). Solove, the John Marshall Harlan replacement cards, . . . (3) overpayment O’Scannlain concluded that “guided by Research Professor of Law at George for Michaels’ services because both Congress’s judgment and historical Washington University Law School, Whalen would not have shopped practice . . . the FCRA procedures argued that while the Court sought to at Michaels had she known that at issue in this case were crafted to restrict Congress’s ability to establish Michaels did not properly safeguard protect consumers’ (like Robins’) concrete harms via statutory violations, her personal identifi ed information concrete interest in accurate credit it failed to create a suffi cient test for (“PII”), . . . (4) the lost value of Whalen’s reporting about themselves.” determining when Congress is not credit card information, . . . and (5) a The court next turned to “whether permitted to elevate such violations to statutory violation of GBL § 349,” New Robins has alleged FCRA violations that level. York’s general business law concerning that actually harm, or at least that In a June 22, 2016 commentary deceptive acts and practices. N.Y. GBL actually create a ‘material risk of for The Legal Intelligencer, Reed Smith § 349. In response, Michaels fi led a harm’ to, this concrete interest.” LLP attorney Richard L. Heppner Jr. motion to dismiss, arguing that Whalen O’Scannlain determined that Robins’ wrote that merely citing procedural lacked Article III standing and that she claim “clearly implicates . . . [his] failures is no longer suffi cient to “failed to establish claims for breach concrete interests in truthful credit establish standing. According to of implied contract and for violation of reporting” because Spokeo “ensured Heppner, plaintiffs now must show GBL § 349.” the accuracy of his consumer report” that the defendant’s conduct caused or On Jan. 8, 2016, District Court and “published the report on the increased the risk of harm. However, Judge Joanna Seybert dismissed Internet.” The court added, “It does not he added that Spokeo provided “little Whalen’s complaint, noting that “(i) take much imagination to understand guidance for other ‘increased risk’ no fraudulent charges were actually how inaccurate reports on such a cases.” incurred; (ii) a plaintiff cannot use his/ broad range of material facts about On May 2, 2017, the Second Circuit her own spending on credit monitoring [Robins’] life could be deemed a real affi rmed in a summary order a district to ‘manufacture standing,’ particularly harm . . . we agree with Robins that court’s dismissal of a class action suit. if the compromised card is cancelled; information of this sort (age, marital Whalen v. Michaels Stores, Inc., 2017 (iii) Michaels did not charge a premium status, educational background, and WL 1556116 (2nd Cir. 2017). The court on its goods to refl ect data security; employment history) is the type that concluded that plaintiff Mary Jane (iv) Whalen did not explain how her may be important to employers or Whalen had failed to allege an actual personal information had lost value; and others making use of a consumer injury in connection to a security breach (v) the bare assertion of a violation of report. Ensuring the accuracy of this at Michaels Stores, Inc. (“Michaels”). NY GBL § 349 does not create standing.” sort of information thus seems directly The case arose on Jan. 25, 2014, Seybert also wrote that because Whalen and substantially related to FCRA’s when Michaels notifi ed customers of cancelled the compromised credit card, goals.” “possible fraudulent activity on some she did not face a “substantial” risk of Finally, the court rejected Spokeo’s U.S. payment cards,” which the store future harm. argument “that [Robins’] allegations of later confi rmed was a security breach. On appeal, the Second Circuit harm are too speculative to establish Michaels reported that hackers had affi rmed the district court’s judgement. a concrete injury” and that Robins used a “highly sophisticated malware” Clerk of Court Catherine O’Hagan only “asserted that such inaccuracies to retrieve the credit and debit card Wolfe wrote the summary order for might hurt his employment prospects, information from the systems of the court, which fi rst explained that but not that they present a material or Michaels stores and its subsidiary, Article III standing requires a plaintiff impending risk of doing so” [emphasis Aaron Brothers, though there was to “allege an injury that is ‘concrete, in original]. Thus, the court reversed the no evidence that the hackers were particularized, and actual or imminent; district court ruling and remanded. able to retrieve any other customer fairly traceable to the challenged action; information. Between May 8, 2013 and and redressable by a favorable ruling,’” Second & Fourth Circuits Rule on Jan. 27, 2014, approximately 2.6 million citing the 2013 U.S. Supreme Court case Article III Standing; Circuit Courts cards were affected. Clapper v. Amnesty Int’l USA. 133 S. Ct. Split Following Spokeo Ruling Whalen, one of Michaels’ customers 1138, 1147 (2013). Clapper also required In May 2017, the Second and Fourth during the security breach, fi led a the plaintiff to show that a future injury Circuits ruled in similar cases that 38 is “certainly impending,” rather than 2017). The case arose in 2010 when the Fair Credit Reporting Act (FCRA). being “simply speculative.” plaintiff Michael Dreher was undergoing On Oct. 31, 2014, the parties fi led The court next reviewed Whalen’s a background check for a security cross-motions for partial summary theories of injury, including that “(1) clearance. During the process, the judgment on October 31, 2014. Experian her credit card information was stolen federal government discovered Dreher contended that “Dreher and the class and used twice in attempted fraudulent was associated with a delinquent credit members lacked Article III standing, purchases; (2) she face[d] a risk of card account. Dreher determined and Dreher argued Experian willfully future identity fraud; and (3) she that his cousin had taken out a credit violated the FCRA.” Gibney denied ha[d] lost time and money resolving card in his name to cover expenses Experian’s motion, concluding that the attempted fraudulent charges for a failing business. Subsequently, Dreher had suffi cient “injury-in[-]fact and monitoring her credit.” The court Dreher requested credit reports for constitutional standing” because pointed out that Whalen did not allege from three credit agencies, including Experian violated Dreher’s right under “a particularized and concrete injury Experian Information Solutions, Inc. the FCRA “to receive the ‘sources of suffered from the attempted fraudulent (“Experian”), to clear up the delinquent information’ for one’s credit report,” purchases” because she never had to account. The Experian reports listed which Experian failed to provide. pay, or was asked to pay, any fraudulent a delinquent account under the names Conversely, the district court granted charge. Whalen also did not allege “how “Advanta Bank” or “Advanta Credit Dreher’s motion, concluding “as a she can plausibly face a threat of future Cards” (Advanta). matter of law that ‘Experian committed fraud, because her stolen credit card In March and April 2011, Dreher a willful violation of the [FCRA].’” On was promptly canceled after the breach sent two letters to Advanta requesting Aug. 26, 2015, the district court entered and no other personally identifying “some verifi cation that [he] owed this fi nal judgment on behalf of Dreher in information . . . [was] alleged to have debt.” On April 18, 2011, he received a the amount of $11.7 million. Experian been stolen.” Finally, the court noted response on Advanta letterhead with appealed and the Fourth Circuit held that Whalen provided “no specifi cs a March 2011 statement showing an the case in abeyance pending the about any time or effort that she herself outstanding balance of $15,746.94. The decision in Spokeo. has spent monitoring her credit.” following month, Dreher requested On May 11, 2017, Judge Stephanie Based on these conclusions, the court that Advanta delete the inaccurate Thacker wrote the unanimous opinion ruled that Whalen “alleged no injury information, which was not deleted for the Fourth Circuit addressing that would satisfy the constitutional until June 6, 2012. Dreher contended the Article III standing requirement. standing requirements of Article III,” that the “process caused ‘additional Thacker fi rst explained Spokeo’s affi rming the judgment of the district stress and wasted hours of [his] time,’” requirement that a plaintiff must show court. though his security clearance was that the he or she “‘suffered ‘an invasion Following the ruling, Hanley Chew approved by the federal government. of a legally protected interest’ that is and Tyler G. Newby, attorneys at Dreher was unaware that in early ‘concrete and particularized’” in order Fenwick & West LLP, explained in a May 2010, the Utah Department of Financial to establish injury-in-fact. 4 blog post that the summary decision Institutions had closed Advanta, Thacker turned to Dreher’s argument “heightened pleading requirements which had failed to withstand the 2008 that Experian had violated the provision for standing in data breach cases” fi nancial crisis. Deutsche Bank Trust of the FCRA requiring that a consumer because plaintiffs “cannot rely on Company received a security interest reporting agency “shall, upon request general allegations of increased risk in Advanta receivables and appointed . . . clearly and accurately disclose to of identity theft from stolen personal CardWorks, Inc., and CardWorks the consumer . . . [t]he sources of the information coupled with mitigation Servicing LLC (“CardWorks”) as information [in the consumer’s fi le costs to establish a concrete injury. Nor servicer of Advanta’s portfolio. at the time of the request].” Dreher can they rely on an offer of free credit CardWorks decided to do business claimed he suffered “a cognizable monitoring by a company to supplement using the Advanta name, phone number, ‘informational injury’” because Experian those otherwise defi cient factual and website. failed to provide “specifi c information allegations.” On September 21, 2011, Dreher to which [he] w[as] entitled under the A May 19, 2017 Simpson Thacher & individually sued Experian and FCRA.” Bartlett LLP memorandum contended CardWorks in the U.S. District Court Thacker wrote that although that the decision was “a welcome for the Eastern District of Virginia, “‘informational injury’ is a type of development for companies that later amending the complaint to intangible injury that can constitute an experience data breaches” because include three class claims and seven Article III injury-in-fact . . . a statutory plaintiffs no longer have standing individual claims. Dreher v. Experian violation alone does not create a to bring claims “if they do not incur Information Solutions, Inc., 71 concrete informational injury suffi cient fraudulent charges, reasonably expend F.Supp.3d 581 (E.D. Va. 2014). Dreher to support standing,” as outlined in resources to prevent fraudulent contended that Experian “willfully Spokeo. Instead, a constitutionally charges, or suffer some other actual violated the FCRA by failing to include cognizable informational injury requires injury or plausible risk of a future one.” the name ‘CardWorks’ in the Advanta that an individual “lack[ed] access In a similar case, on May 11, 2017, the tradelines on its credit reports.” On May to information to which he is legally Fourth Circuit vacated and remanded 30, 2013, U.S. District Court Judge John entitled and that the denial of that a district court decision that the A. Gibney denied Experian’s motion for information creates a ‘real’ harm with plaintiff had demonstrated a concrete partial summary judgement in which an adverse effect.” injury suffi cient to satisfy Article III the credit reporting agency contended In order to determine whether a standing. Dreher v. Experian Info. that Dreher did not provide suffi cient party suffered such a harm, the Court Solutions, Inc., No. 15-2119 (4th Cir. evidence of willfulness required under Spokeo , continued on page 40 39 Spokeo , continued from page 39 decision “is welcome and signifi cant reported by Law360. For example, good news for defendants, and a the Eleventh Circuit ruled in Church considered whether the injuries warning to plaintiffs that hyper- v. Accretive Health that the plaintiff have “traditionally been regarded technical claims premised on alleged a concrete injury suffi cient to as providing a basis for a lawsuit in hypothetical harms may not be establish Article III standing in a Fair English or American courts,” as outlined suffi cient in the Fourth Circuit.” Debt Collection Practices Act (FDCPA) in Spokeo. The Fourth Circuit concluded Robert D. Perrow & J.P. McGuire case. 654 Fed.Appx. 990 (11th Cir. 2016). that Dreher “[did] not propose a Boyd, Jr., partners at Williams Mullen, Marc Rotenberg, executive director common law analogue for his alleged argued in a May 2016 post that the of the Electronic Privacy Information FCRA injury.” Additionally, the court Fourth Circuit made the proper ruling Center (EPIC), a consumer advocacy found “no traditional right of action that based on the Spokeo decision. “In its organization, told Legal Newsline on is comparable.” decision, the Fourth Circuit has applied July 12 that courts citing the Spokeo Next, the court turned to reasoning Spokeo as intended,” they wrote. “To decision to reach different conclusions by the D.C. Circuit, which concluded meet the standing test for federal is a result of the decision itself. “Part of that a plaintiff suffers a concrete jurisdiction for violation of a statute, the confusion comes from the court’s informational injury if he or she a plaintiff must show an injury-in-fact own decision,” Rotenberg said. “The “suffers . . . by being denied access from the violation of the statute that is (Supreme Court’s) decision hasn’t to [information], the type of harm concrete and particularized.. . . Here, helped lower courts clarify what’s Congress sought to prevent by requiring if Experian had reported technically required to establish standing.” disclosure.” Friends of Animals v. correct information, it would not have A Simpson Thacher & Bartlett Jewell, 828 F.3d 989, 992 (D.C. Cir. changed Dreher’s credit report or made LLP memorandum on May 19, 2017 2016). The Fourth Circuit agreed the dispute resolution process more attributed part of the problem that the with this reasoning and concluded effi cient. In addition, reliance on mere Supreme Court “did not prescribe what that Dreher “failed to show how the frustration and inconvenience is not types of data breach injuries (actual knowledge that he was corresponding enough in the Fourth Circuit to show a or potential) are suffi ciently concrete with a CardWorks employee, rather than concrete injury.” to confer standing.” The memorandum an Advanta employee, would have made A May 17 Fenwick & West LLP also contended that the mixed circuit any difference at all in the ‘fair[ness] commentary contended that Dreher court results will impact how plaintiffs or accura[cy]’ of his credit report, or “adopt[ed] a narrow interpretation of bring their complaints. “Given that the that it would have made the credit Spokeo in statutory injury cases and standing issue has produced mixed resolution process more effi cient,” as aligns with recent post-Spokeo decisions results across U.S. courts in other required under the FCRA. Instead, he fi nding that purely procedural or circuits, however—and that data claimed there is “value in ‘knowing who technical violations of statutory rights breaches often affect consumers in it is you’re dealing with,’” among other are insuffi cient to establish Article III all 50 states—plaintiffs are likely to claims, which the court called “chiefl y standing.” ‘forum shop’ to maximize the chances customer service complaints” and not Circuit courts have split concerning that their claim will survive a threshold the type of harm Congress sought to how Spokeo is applied in statutory standing challenge,” the memorandum prevent when it enacted the FCRA. injury cases. In addition to Whalen read. A Jan. 23, 2017 Bloomberg BNA Finally, Dreher was left “with a and Dreher, other circuit courts, as story predicted that “depending on statutory violation divorced from any well as district courts, have ruled in the context, various splits of authority real world effect.” The court concluded favor of the defendants and indicated concerning standing remain.” that “receiving a creditor’s name a heightened pleading requirement for Some observers have argued that the rather than a servicer’s name – without Article III standing, according to a Feb. only means to resolve the circuit court hindering the accuracy of the report or 15, 2017 Law360 story. For example, split is for the Supreme Court to weigh effi ciency of the credit report resolution the Eighth Circuit ruled in Braitberg in once again. A May 4, 2017 Fenwick process – worked no real world harm v. Charter Communications, Inc . that & West LLP commentary contended on Dreher.” As a result, the court held the plaintiffs lacked Article III standing that the circuit split “is not likely to be that Dreher was not adversely affected and failed to state a claim alleging a resolved if and until the Supreme Court by the alleged error on his credit report” violation of the Cable Communications weighs in on the issue.” and that he suffered “no real harm.” Policy Act, 47 U.S.C. § 551(e). 836 John Wester, an attorney at The court vacated the district court’s F.3d 925 (8th Cir. 2016). (For more Robinson, Bradshaw & Hinson, wrote judgment and remanded it to the lower information on an additional case in in a July 6 commentary, “With several court “with instructions to dismiss the which the court favored the plaintiff, circuits now reporting, when the case.” see “Eleventh Circuit Affi rms Dismissal Supreme Court will return to this fi eld A May 15, 2017 Troutman Sanders of Video Privacy Class Action, Legal looms as a more urgent question.” LLP blog entry contended that the Questions Remain” on page 41 of this Dreher decision was “one of the most issue of the Silha Bulletin.) SCOTT M EMMEL signifi cant post- Spokeo decisions to Conversely, other circuit courts have SILHA BULLETIN E DITOR date.” The post explained that the ruled more favorably for plaintiffs, as

40 Eleventh Circuit Affi rms Dismissal of Video Privacy Class Action; Legal Questions Remain n April 27, 2017, the U.S. amended complaint, Perry set forth Perry’s “alleged violation of a statutory Court of Appeals for the one cause of action for violation of the right is not on its own suffi ciently Eleventh Circuit ruled that VPPA, seeking injunctive relief, as well concrete.” 136 S. Ct. 1548 (2016). In downloading a mobile as statutory and punitive damages, due Spokeo, the Supreme Court ruled that software application (“app”) to CNN’s alleged unlawful disclosure of in addition to being “particularized,” Oand gaining access to “premium content” personally identifi able information. intangible injuries, including statutory through a cable package did not make The VPPA prohibits “[a] video tape violations, must be “concrete [because the plaintiff a “subscriber” allowing service provider [from] knowingly a] bare procedural violation” of a him to bring a disclos[ing], to any person, personally statute is not suffi cient to establish claim under the identifi able information concerning injury-in-fact. Additionally, the Court DATA PRIVACY Video Privacy any consumer of such provider.” ruled that it is necessary to determine Protection Act Additionally, the VPPA defi nes consumer “whether [the] alleged intangible harm (VPPA), 18 U.S.C. as “any renter, purchaser, or subscriber has a close relationship to a harm § 2710 (2002). Perry v. Cable News of goods or services from a video tape that has traditionally been regarded Network, Inc., 854 F.3d 1336 (11th Cir. service provider.” If a section of the as providing a basis for a lawsuit in 2017). Plaintiff Ryan Perry alleged that statute is violated, “any person . . . may English or American courts.” (For more Cable News Network, Inc. (CNN) had bring a civil action in a United States information on the Spokeo decision, see wrongfully disclosed his viewing records district court.” “Ninth Circuit Addresses Spokeo after to a third-party analytics company Meanwhile, in the fall of 2015, the Supreme Court Remands Case; Circuit without his consent. However, the Eleventh Circuit heard a similar case Courts Split on Article III Standing Bar court determined that although Perry in which plaintiff Mark Ellis claimed Following Spokeo” on page 37 in this had Article III standing under the U.S that Cartoon Network’s free “CN App” issue of the Silha Bulletin and “Supreme Constitution to bring a VPPA claim, he “kept records of the videos he watched Court Issues Long-Awaited Spokeo was not a “subscriber” under the statute and shared those records with Bango Ruling” in the Summer 2016 issue.) and had not established an “ongoing each time Mr. Ellis closed out of the CN The Eleventh Circuit concluded commitment or relationship” with CNN, app” in violation of the VPPA. Ellis v. that Perry had satisfi ed Spokeo’s affi rming a district court’s dismissal of Cartoon Network, Inc., 803 F.3d 1257 concreteness requirement of Article Perry’s attempt to amend his complaint. (11th Cir. 2015). However, the court III standing by alleging a violation of Following the ruling, observers were ruled on Oct. 9, 2015 that an individual the VPPA. Restani wrote that violation divided on whether the decision provided who “downloads and uses a free mobile of the VPPA constitutes a concrete clarity in VPPA class action cases. application on his smartphone to view harm because the statute “prohibits The case arose in early 2013 when freely available content, without more, the wrongful disclosure by a video tape Perry downloaded the CNN app to his is not a ‘subscriber’ (and therefore not a service provider of video tape rental iPhone in order to receive breaking news ‘consumer’) under the VPPA.” The court or sale records” and “creates a cause alerts, stories, video clips, and coverage concluded that to be a “subscriber,” the of action for ‘[a]ny person aggrieved of live events. Perry alleged that the user must have an “ongoing commitment by any act of a person in violation of CNN app, without a user’s knowledge, or relationship . . . [with] the entity this section.’” The court concluded that “tracks the user’s views of news articles which owns and operates the app.” VPPA’s creation of a cause of action for and videos and also collects a record Because Ellis was not a subscriber or this type of an invasion of privacy “has of this viewing activity.” According to consumer under the VPPA, the Eleventh a close relationship to a harm that has Perry’s complaint, when a user closes Circuit affi rmed the dismissal of his case traditionally been regarded as providing the app, CNN sends a “collected record by the district court. a basis for a lawsuit in English or of viewing activity” to Bango, a third- Subsequently, Perry, whose fi rst American courts,” as required by Spokeo. party data analytics company. Perry amended complaint made similar Consequently, the court dismissed CNN’s also contended that CNN sends Bango allegations under the VPPA as Ellis’, motion to dismiss the appeal. a media access control address (“MAC sought leave of the district court to Next, the court reviewed the district address”), a series of numbers tied to a amend his complaint. On April 20, 2016, court’s decision to deny Perry’s leave to particular user’s mobile device. Bango the district court granted CNN’s motion amend his complaint. According to the then uses the MAC address to identify to dismiss the amended complaint opinion, Perry conceded that his initial the user’s other internet activity in order and denied Perry’s attempt to revise complaint “fail[ed] to state a claim under to track their online behavior, as well his complaint, reasoning that further the VPPA,” but that the district court as to compile “personal information, amendment to the complaint would be erred in denying leave to amend. Perry including the user’s name, location, futile. claimed he would amend his complaint phone number, email address, and On appeal, the Eleventh Circuit fi rst fi rst to “allege that in addition to payment information.” considered whether Perry had Article downloading the CNN App and viewing On February 18, 2014, Perry fi led III standing under the U.S. Constitution CNN content on his iPhone, he also a proposed class action in the United to bring an action over a violation of subscribed to CNN’s television channel States District Court for the Northern the VPPA. Judge Jane A. Restani wrote through his cable package.” Second, he District of Georgia, Atlanta Division. the unanimous opinion, which fi rst would contend that “CNN’s transmission Perry v. Cable News Network, 2016 reviewed the 2016 U.S. Supreme Court of his MAC address and video history is WL 4373708 (N.D. Ga. 2016). In his fi rst case Spokeo, Inc. v. Robins because Video privacy, continued on page 42 41 Video privacy, continued from page 41 Here, the court distinguished the case unregistered user downloads an app and from a 2016 First Circuit ruling, Yershov watches content on his or her mobile ‘personally identifi able information’ as v. Gannett Satellite Information device, the Eleventh Circuit narrows defi ned in the VPPA.” Network, Inc., in which the plaintiff the reach of the VPPA to mobile apps Nevertheless, the court concluded provided his mobile device identifi cation that require users to sign up, register, that the district court had properly number and GPS location to Gannett, establish a profi le, or pay for the use of held that Perry’s attempt to amend therefore “establish[ing] a relationship” that app,” they explained. his complaint was “futile.” The court with the proprietor of the app. 820 F.3d However, Chew and Newby still determined that Perry was not a 482 (1st Cir. 2016). In this case, Perry cautioned that companies should avoid subscriber to CNN because he has not conceded that he was “never required to disclosing personal information to demonstrated an ongoing commitment register for the CNN App, even stating third parties without users’ consent. or relationship with CNN. Restani that the CNN App did not request his “Despite Perry, companies and wrote that Perry “did not ‘sign up for email address, his credit card number, or organizations that offer free mobile or establish an account with’ CNN, his GPS location.” apps should still act cautiously and ‘provide any personal information to’ Consequently, the court ruled that obtain consent from their users for any CNN, ‘make any payments’ to CNN in Perry’s investment and commitment with collection and disclosure of their users’ using its app, ‘become a registered user’ downloading the CNN app, combined personal information,” they wrote. of CNN or its app, ‘receive a [CNN] ID,’ with his cable subscription, were not In an April 27, 2017 story for Law360, ‘establish a [CNN] profi le,’ ‘sign up for suffi cient to be a “subscriber” and to reporter Allison Grande wrote that any periodic services or transmissions,’ state a claim under the VPPA. The court “video service providers can’t take nor ‘make any commitment or establish affi rmed the district court’s judgement total comfort in the Eleventh Circuit’s any relationship that would allow him and determined that CNN may not be ruling” given the “unsettled questions to have access to exclusive or restricted held liable under the VPPA for providing such as what constitutes ‘subscriber’ content.’” “personally identifi able information” to a and whether information such as Additionally, Restani contended that third party. media access control addresses and Perry’s proposed amendment would Following the ruling, some observers video histories constitute ‘personally only show a commitment to his cable contended that the decision provided identifi able information’ under the television provider, not to CNN. First, clarity for courts in cases in which a statute (VPPA).” Perry contended that his television plaintiff brings VPPA claims related to Venkat Balasubramani of Focal PLLC subscription provided him access to app or online use. In a May 30, 2017 wrote in a May 1, 2017 commentary that certain features on the CNN app that blogpost, Jeff Landis, an attorney at uncertainty remains even after Perry. were not available to a typical user, ZwillGen PLLC, wrote that Perry was “There’s a tension there between reading including watching live CNN television another ruling in a trend of federal the statute broadly to protect consumers on the app. However, Restani countered courts favoring defendants in VPPA on the one hand, and facilitating that Perry’s choice to watch the same cases. “The Eleventh Circuit’s decision crushing privacy lawsuits on the other,” content on the app, rather than his marks a continuation of the trend in he wrote. “There’s also of course the television, which appeared to be the VPPA cases,” he wrote. “To date, no difference between the state of affairs same content, “[did] not somehow VPPA case brought against a media when the statute was passed (e.g., before convert him into a subscriber of CNN” company based on videos offered via an Netfl ix) to the changing landscape of because he did not demonstrate how App or online has resulted in liability to content consumption today. You can he engaged CNN in any way beyond a defendant.” certainly argue that content nowadays downloading the app. Furthermore, Ethan Forrest, an associate at often involves a nonmonetary quid pro Perry used his credentials associated Covington & Burling LLP, wrote an April quo, so looking to whether the consumer with his cable television provider’s 28 commentary in which he called Perry pays money is a poor metric. But it’s account, not a separate CNN account, “another win for VPPA defendants.” certainly a bright line. And as this case meaning he could access the live He continued, “[T]he narrowing of the illustrates, the ‘ongoing relationship’ television “solely because of his separate ‘subscriber’ defi nition may make VPPA test spelled out by Ellis and applied relationship with his cable television cases less palatable to the plaintiff’s bar.” here is vague at best.” Consequently, provider.” However, other observers contended Balasubramani predicted that “courts Second, Perry contended that CNN that uncertainty remained in class [will] continue to struggle with aspects indirectly received monetary benefi t action related to the VPPA. In a May 1, of the [VPPA].” through his direct payments to his cable 2017 commentary for Fenwick & West television provider. However, Restani LLP, attorneys Hanley Chew and Tyler SCOTT M EMMEL wrote that Perry’s argument “misse[d] G. Newby discussed the signifi cance of SILHA BULLETIN E DITOR the mark” because “Perry’s distinct the ruling in relation to the VPPA. “By fi nancial relationship with his cable holding that a user does not establish a television provider does not shed light commitment or relationship that rises to on his commitment to CNN.” the level of being a ‘subscriber’ when an

42 Controversial Undercover Video Makers Face Legal Action and Ethical Concerns uring the summer of 2017, the release of the videos produced discussions” at the NAF conferences two undercover video by Center for Medical Progress without written consent by NAF. makers faced legal action (CMP), an anti-abortion group which After gaining access to the meetings, after recording individuals Daleiden founded and heads. The Daleiden and his co-conspirators and organizations without videos primarily depicted two annual recorded several hundred hours of the Dconsent, among other unethical and meetings of the National Abortion conferences, including conversations potentially unlawful methods. On July Federation (NAF), an association of with other attendees. During this 11, 2017, a federal judge held pro-life abortion providers, and purported to period, Daleiden also used fake IDs activist David show how abortion providers made to gain access to Planned Parenthood Daleiden and two fetal tissue available to researchers, clinics across the U.S. DATA PRIVACY of his attorneys sparking controversy and investigations In July 2015, Daleiden made several in contempt into Planned Parenthood Federation recordings public, each alleging that after videos by of America, a nonprofi t organization Planned Parenthood employees sold the self-described journalist appeared that provides sexual health care in fetal tissue for profi t, which would on the attorneys’ website, despite a the United States and globally. In be illegal, according to a July 26, preliminary injunction. The videos March 2017, California prosecutors 2016 story by The New York Times. purported to show how abortion charged Daleiden and co-conspirator Daleiden and CMP continued releasing providers made fetal tissue available to Sandra Merritt with 14 felony counts recordings through the summer of researchers. On July 7, the California of unlawfully recording people without 2017. According to a May 25, 2017 story Attorney General’s offi ce refi led 14 their consent, as well as one count of by the Los Angeles Times, the videos felony counts brought against Daleiden conspiracy to invade privacy. On July “stoked the American abortion debate and a co-conspirator after a San 7, the California Attorney General’s when they were released in 2015 and Francisco Superior Court judge had offi ce refi led the 14 felony counts increased congressional heat against dismissed the charges on June 21. of unlawful recording after a San Planned Parenthood that has yet to On June 1, Robert Creamer, the co- Francisco Superior Court judge had subside.” Planned Parenthood denied founder of Strategic Consulting Group, dismissed them on June 21. The charges the claims and argued that the videos NA, Inc., a member organization of drew criticism from media advocates as were deceptively edited. The Los Democratic National Committee vendor setting a dangerous precedent against Angeles Times reported on March 28, Democracy Partners LLC, fi led a civil investigative reporting. 2017 that the organization would later complaint against James O’Keefe, a In March 2013, Daleiden, who restrict affi liated clinics from accepting conservative political activist known describes himself as a “guerilla monetary reimbursement for making for producing controversial hidden journalist,” founded CMP to fetal tissue available to researchers. camera videos on his website, Project “investigate, document, and report on On July 31, 2015, NAF fi led a Veritas. O’Keefe posted a series of the procurement, transfer, and sale lawsuit in the U.S. District Court for videos following a “sting operation” of fetal tissue,” according to CMP’s the Northern District of California, that infi ltrated Democracy Partners’ website. In 2014 and 2015, Daleiden requesting a temporary restraining private offi ces. Subsequently, Creamer and other anti-abortion activists, order (TRO) prohibiting CMP, Daleiden, and Scott Foval, another Democratic including CMP board member Troy and Newman from releasing the political operative, left their jobs. In Newman, misrepresented themselves as recordings of the NAF annual meetings, recent months, O’Keefe has also found representatives of BioMax Procurement the dates of future NAF meetings, and himself embroiled in controversy after Services LLC, a company purportedly names and addresses of NAF members. releasing a series of videos from CNN’s engaging in fetal tissue research, in The lawsuit also sought to bar the offi ces in Atlanta, Ga. order to gain entrance to NAF’s 2014 enjoined individuals from attending and 2015 annual meetings, according future NAF meetings. According Federal Judge Holds Daleiden to the Ninth Circuit’s memorandum to a July 31, 2015 press release by and his Attorneys in Contempt; affi rming the preliminary injunction NAF, Orrick issued a TRO preventing California Attorney General’s against Daleiden’s videos. Daleiden Daleiden and co-conspirators from Offi ce Refi les Felony Charges went by the alias Robert Dauod Sarkis releasing any information or recordings Against the Video Maker and signed “Exhibit Agreements” from the NAF meetings. Orrick wrote On July 11, 2017, U.S. District Judge for both annual meetings in which that without the restraining order, “NAF for the Northern District of California he acknowledged, among other would be likely to suffer irreparable William Orrick said he was holding things, that all written, oral, or visual injury . . . in the form of harassment, video maker and pro-life activist David information disclosed at the meetings intimidation, violence, invasion of Daleiden and two of his attorneys in “is confi dential and should not be privacy, and injury to reputation, and contempt of court after a series of links disclosed to any other individual or the requested relief is in the public to videos appeared on their website third parties” without permission from interest.” in May, according to the Associated NAF. Daleiden, other CMP activists, and Politico reported on Sept. 23, 2015 Press (AP) on July 17. In March 2017, investigators hired by CMP also signed that Daleiden and CMP were ordered the U.S. Court of Appeals for the Ninth “Confi dentiality Agreements” that by Orrick, as part of the discovery Circuit had upheld Orrick’s order for prohibited “video, audio, photographic, a preliminary injunction blocking or other recordings of the meetings or Video, continued on page 44 43 Video, continued from page 43 and justice.” The difference between was entitled to journalist’s protections. process tied to NAF’s lawsuit, to a TRO and a preliminary injunction The brief highlighted the importance turn over private documents and is that TROs are meant to be a short- of investigative reporting, but also the submit to questions regarding how term measure, whereas preliminary dangers of an individual posing as a they got access to the NAF meetings. injunctions remain in effect during the journalist: “There is no question that Additionally, Daleiden was required pending court case, unless otherwise serious investigative journalists provide to provide the full, raw footage he modifi ed or dissolved, according to the an invaluable service to society by collected from some of the meetings he American Bar Association. revealing truthful information otherwise attended. The Ninth Circuit upheld the In the 42-page order, Orrick hidden from the public and helping lower court’s decision requiring CMP to wrote that he did not fi nd Daleiden’s to hold institutions and individuals participate in discovery. Politico also claims about being a journalist very accountable. But individuals who reported that Daleiden was ordered to convincing. “Defendants did not masquerade as investigative journalists, turn over documents in a separate case – as Daleiden repeatedly asserts – whose actions show a gross disregard brought by StemExpress, the tissue use widely accepted investigative for basic principles of journalistic procurement company featured in some journalism techniques,” Orrick wrote. ethics such as telling the truth, serve no of Daleiden’s videos. “The products of that Project – achieved valid purpose.” Additionally, Orrick ruled on Oct. in large part from the infi ltration – thus The brief argued, similar to Orrick, 6, 2015 that CMP must turn over all that Daleiden’s of its illegally recorded material to “There is no question that serious actions did not fall NAF before submitting it to Congress under the ethical pursuant to a subpoena connected investigative journalists provide an practices expected to a Congressional investigation into invaluable service to society by revealing of journalists. “The deceptive Planned Parenthood. Orrick wrote “I truthful information otherwise hidden will not countenance a game of hide the techniques ball with respect to these documents, from the public and helping to hold deployed by Mr. video footage and communications, institutions and individuals accountable. Daleiden and that interferes directly with these his associates in proceedings.” Later that month, But individuals who masquerade as conducting their Daleiden and CMP turned over more investigative journalists, whose actions ‘investigation’ are a than 500 hours of secretly recorded show a gross disregard for basic no less deplorable footage, according to a NAF press departure from release. principles of journalistic ethics such as standards of ethical In December 2015, James Bopp telling the truth, serve no valid purpose.” journalism. Mr. Jr., a free-speech and anti-abortion Daleiden used deception as a fi rst advocate, fi led an emergency appeal — Journalists and journalism scholars, – not a last – resort, on behalf of Daleiden, asking U.S. June 2016 amici curiae brief Supreme Court Justice Anthony without exhausting Kennedy to block a November 20 alternative order by Orrick requiring Daleiden far have not been pieces of journalistic investigative methods or considering to disclose the names of CMP’s integrity, but misleadingly edited videos the many ethical and legal issues raised supporters and donors, citing the First and unfounded assertions (at least by his deceptive techniques,” the brief Amendment right of association. Bopp with respect to the NAF materials) of reads. The full amici curiae brief is also argued that Daleiden was a citizen criminal conduct.” available online at: http://prochoice.org/ journalist and was entitled to protect Orrick was not alone in questioning wp-content/uploads/2016-06-07-87-Brief- confi dential information and sources Daleiden’s claims of being a journalist. of-Amici-Curiae-Journalism-Scholars- under the California Shield Law, which Salon’s Amanda Marcotte wrote in and-Journalist....pdf. provides that journalists “cannot be a January 28 article that Daleiden On Jan. 15, 2016, Planned adjudged in contempt . . . for refusing “has no right to call himself a Parenthood fi led a lawsuit similar to to disclose . . . the source of any journalist . . . because of his relationship NAF’s against Daleiden and CMP in information procured . . . in gathering, to the truth.” Slate magazine reporter federal district court in San Francisco. receiving or processing of information Dahlia Lithwick agreed in a February Like the NAF lawsuit fi led in July 2015, for communication to the public.” Cal. 2 story. “The difference between Planned Parenthood alleged that the Evid. Code § 1070. The Los Angeles journalism and what CMP did is that defendants committed wire and mail Times reported on Dec. 4, 2015 that journalists seek truth, while Daleiden fraud, invasion of privacy, trespassing, Justice Kennedy, who oversees appeals seeks to show that somewhere in and illegal secret recording, according from California, turned down the between the edited seams and faked to CNN. request, affi rming the Ninth Circuit’s voiceovers of his fi lms there lies a truth Later that month, a grand jury near ruling. he cannot quite prove but wants us Houston, Texas indicted Daleiden The following January, Orrick to believe anyhow,” Lithwick wrote. and one of his videographers, Sandra replaced the TRO with a preliminary “That can be called many things, but Merritt, on charges of tampering injunction, according to a Jan. 29, 2016 ‘journalism’ probably isn’t one of them.” with government records, using fake story by Rewire, an online publication In a June 2016 amici curiae brief, identifi cation, and offering to buy aiming “to foster public knowledge 18 journalists and journalism scholars fetal tissue, according to a Jan. 26, and enlightenment . . . on issues of criticized Daleiden’s claims that he 2016 New York Times story. After sexual and reproductive health, rights, was an “investigative journalist” and Daleiden and Merritt maintained that 44 they were journalists entitled to First However, CMP agreed in a protective First Amendment cases.” The full Amendment protection and that their order that if law enforcement offi cials petition for certioarai is available videos showed criminal wrongdoing by obtained a subpoena, the defendants online at: https://lifelegaldefense.fi les. Planned Parenthood, a judge dismissed would be required to fi rst notify NAF, wordpress.com/2017/08/daleiden-v-naf- the charges against the pair, the Times rather than law enforcement, so the cert-petition-7-31-2017-fi nal.pdf. As the reported on July 26, 2016. Nevertheless, organization could decide whether or Bulletin went to press, the Supreme the indictments raised concerns over not to oppose the subpoena. The court Court had not issued an order on the implications they could have for concluded that because the preliminary whether it would hear the case. investigative journalism techniques. injunction and protective order both Despite the preliminary injunction (For more information on the grand explicitly provided that NAF may being upheld by the Ninth Circuit, jury indictments and commentary not “disobey a lawful . . . subpoena,” links to the videos covered by the regarding the First Amendment and the injunction does not prevent law order were posted on the website of journalist’s privileges, see “Grand enforcement from conducting lawful Daleiden’s attorneys Steve Cooley Jury Indicts Creators of Undercover investigations. and Brentford J. Ferreira in May 2017. Planned Parenthood Videos; Possible Judge María Callahan fi led an On May 25, Orrick said that he would Implications for Undercover opinion concurring in part and consider holding Daleiden and his Newsgathering” in the Winter/Spring dissenting in part. Callahan agreed with attorneys in contempt, according to 2016 issue of the Silha Bulletin.) the majority that the “[d]efendants have the Los Angeles Times. Orrick initially On March 29, the Ninth Circuit generally failed to carry their burden ordered the three to appear at a June 14 affi rmed Orrick’s January 2017 of showing that the District Court’s hearing to consider contempt sanctions, preliminary injunction blocking the grant of a preliminary injunction is an but later canceled the hearing after release of any recordings made by CMP abuse of discretion.” However, Callahan Daleiden sought to disqualify Orrick at the NAF annual meetings. National wrote that she disagreed with the from the lawsuits brought by NAF Abortion Federation v. Center for portion of the injunction blocking the and Planned Parenthood. According Medical Progress, 2017 WL 1164450 defendants from sharing information to a June 22 ABC News story, CMP (9th Cir. 2017). The court fi rst explained with law enforcement unless there was claimed that Orrick was biased against that the defendants, Daleiden, CMP, a subpoena. Furthermore, Callahan Daleiden because of the judge’s and Newman, had not contested that wrote that the requirement that affi liation with Good Samaritan Family they “engaged in misrepresentation and the defendants notify NAF about a Resource Center, a partner of Planned breached their contracts.” Although the subpoena interferes with legitimate Parenthood, and that his wife had defendants claimed that the information investigations, given the delay it “liked” Facebook posts critical of they obtained was of public interest, causes. Additionally, Callahan wrote Daleiden. The AP reported on June making the preliminary injunction that disclosure to a law enforcement 26 that U.S. District Court Judge an unconstitutional prior restraint, agency is different from disclosure to James Donato rejected the attempt the court ruled that the defendants the public. Law enforcement regularly to disqualify Orrick, citing a lack of waived their First Amendment rights handles highly sensitive materials and evidence calling the judge’s impartiality to disclose that information by signing should be trusted to do so, according to into question. confi dentiality agreements. Further, the Callahan. On July 11, Orrick announced he court found that the district court was Following the ruling, CMP released was holding Daleiden and his lawyers correct in concluding that a balancing a statement that the organization “will in contempt of court for publishing the of the competing public interests continue to fi ght this unconstitutional videos in violation of the preliminary favored preliminary enforcement of the abuse of power and vindicate our injunction, as reported by the AP confi dentiality agreements, because First Amendment rights and those on July 17. Orrick determined that “one may not obtain information of all citizen journalists to speak and “CMP, Daleiden, Cooley, and Ferreira through fraud, promise to keep that publish on matters of urgent public willfully disobeyed a court order.” He information confi dential, and then concern.” On August 3, the Life Legal told the attorneys in court, “Criminal breach that promise in the name of the Defense Foundation fi led a petition for defense counsel . . . do not get to public interest.” certiorari seeking review by the U.S. decide whether they can violate the Next, the court addressed the Supreme Court of the Ninth Circuit preliminary injunction.” Matthew defendants’ arguments that they decision. Petition for writ of certiorari, Geragos, an attorney for Cooley and were released from the contractual National Abortion Federation v. Ferreira, contended that the attorneys obligations because they uncovered Center for Medical Progress, 2017 WL were attempting to draw out witnesses criminal wrongdoing. Once again, the 1164450 (9th Cir. 2017). The petition and other information by posting the court supported the fi ndings of Orrick, contended that the Ninth Circuit was videos, according to the AP. As the who had reviewed the recordings and “the fi rst federal circuit to uphold an Bulletin went to press, Orrick was found that no criminal activity had injunction against the publication considering a request from attorney been recorded. Additionally, the court of information of legitimate public Matthew Geragos, who represented ruled that although the preliminary interest, based solely on the private Cooley and Ferreira, asking that the injunction restricted CMP from agreement of parties.” The petition judge stay his ruling for 30 days while disclosing information or recordings also contended that the Ninth Circuit defense attorneys fi led an appeal. to anyone, including law enforcement, decision confl icted with the Supreme In the midst of NAF and Planned the injunction did not place a direct Court’s “many decisions requiring Parenthood’s legal action against restriction on law enforcement de novo review of constitutionally Daleiden and CMP, Daleiden also faced authorities obtaining information decisive facts and an ‘independent felony charges in California. On April or recordings through a subpoena. examination of the whole record’ in Video, continued on page 46 45 Video, continued from page 45 charges against Daleiden and Merritt set victims, among other information. Hite “a dangerous precedent.” “Undercover also ruled that identities of the alleged 5, 2016, The Washington Post reported journalism is in the best journalistic victims would remain under court seal, that investigators with the California tradition,” Gobry wrote. “Embarking according to Reuters. Department of Justice raided Daleiden’s on serious undercover journalism will, In a statement, attorney Mat Staver home, seizing a laptop and multiple by defi nition, almost always involve who represented Merritt, called the hard drives. The search suggested doing things that can be technically dismissal of the counts a “huge victory.” that states were looking into possible classifi ed as illegal. To prosecute such “We will now turn our attention to criminal activity by Daleiden, according behavior is a textbook case of ‘chilling dismissing the fi nal count,” Staver to the Post. In a statement, Daleiden effect,’ the legal and ethical concept said. “The complaint by the California said, “We will pursue all remedies to that safeguards the First Amendment’s attorney general is unprecedented and vindicate our First Amendment rights.” protection of the natural right of free frankly will threaten every journalist On March 28, 2017, nearly a year speech. This precedent is disastrous.” who provides valuable information to after California authorities entered In a March 29, 2017 story, Slate the public.” Daleiden’s apartment, California magazine writer Mark Joseph On July 7, the San Francisco prosecutors charged Daleiden and Stern discussed the implications of Chronicle reported that prosecutors Merritt with 14 felony counts of California being a “two-party consent” refi led the charges against Daleiden unlawfully recording people without state. Cal. Penal Code § 632. The and Merritt. The new charges included their permission and one count of state’s wiretapping law provides numerical identifi cations for each conspiracy to invade privacy, according that an individual cannot record video and other details that were to a March 28, 2017 Los Angeles Times “confi dential communication” without absent from the original charges. story. California Attorney General the consent of all parties being Staver said he would challenge the Xavier Becerra said his offi ce “will recorded. Communication qualifi es refi led charges because they are still not tolerate the criminal recording of as confi dential if it is made with the not specifi c enough. “[The new set confi dential conversations” and that reasonable expectation “that it would of charges] lists videos generally but the “right to privacy is a cornerstone not be overheard or recorded.” The Los doesn’t list specifi c conversations on of California’s Constitution, and a right Angeles Times Editorial Board argued those videos, so it’s hard to know what that is foundational in a free democratic the two-party consent law “should be conversations they’re referring to,” society.” applied narrowly” and should only Staver said. As the Bulletin went to In a March 30, 2017 story, the Los be applied “to clear and egregious press, no announcement had been made Angeles Times editorial board argued violations of privacy where the motive regarding the charges against Daleiden that the charges brought by Becerra is personal gain.” and Merritt. were a “disturbing overreach” and Daleiden criticized the felony carried implications for the press. “It’s charges in a statement released through Political Operatives Target Hidden disturbingly aggressive for Becerra CMP. “The bogus charges from Planned Camera Videographer in Civil to apply this criminal statute to Parenthood’s political cronies are fake Lawsuit people who were trying to infl uence news,” the March 28 statement said. On June 1, 2017, Robert Creamer, a contested issue of public policy, “We look forward to showing the entire co-founder of Strategic Consulting regardless of how sound or popular world what is on our yet-unreleased Group, NA, Inc., a member organization that policy may be,” the Los Angeles video tapes of Planned Parenthood’s of Democratic National Committee Times editorial board wrote. “In criminal baby body parts enterprise, vendor Democracy Partners LLC, similar cases, we have denounced in vindication of the First Amendment fi led a civil complaint against political moves to criminalize such behavior, rights of all.” In an interview with The activist James O’Keefe, who is known especially in the case of animal Washington Post , Cooley also invoked for producing controversial hidden welfare investigators who have gone the First Amendment. “It was nothing camera videos on his website, Project undercover at slaughterhouses and more than a First Amendment journalist Veritas. In the fall of 2016, O’Keefe other agricultural businesses to secretly pursuing a good cause and fi ghting posted a series of videos following record horrifi c and illegal abuses of a battle, now a martyr who’s being a “sting operation” that infi ltrated animals. That work, too, is aimed at crushed by the power of the State of Democracy Partners’ private offi ces, revealing wrongdoing and changing California.” leading to Creamer and Scott Foval, public policy.” On June 21, the Superior Court of another Democratic political operative, The Los Angeles Times editorial California for San Francisco County to leave their jobs. In the summer of board also contended that legal dismissed the 14 felony counts of 2017, O’Keefe was embroiled in more remedies existed for Planned unlawfully recording individuals controversy after he released over 119 Parenthood and StemExpress, making without their permission, fi nding the hours of audio and video footage of his California’s action against Daleiden charges to be “legally insuffi cient,” “sting operation” into CNN. unnecessary. “[The companies] have according to a June 22 Fox News story. O’Keefe fi rst gained notoriety in another remedy for the harm that was The charge of conspiracy to invade 2009, when a series of undercover done to them: They can sue Daleiden privacy was not dismissed. Reuters videos were posted to Project Veritas and Merritt for damages,” the board reported on June 21 that Superior Court depicting a community organizing wrote. “The state doesn’t need to Judge Christopher Hite ruled that the group known as Association of threaten the pair with prison time.” criminal complaint was “too vague.” Community Organizations for Reform In a March 29 opinion piece for The Rather than dismiss the case, Hite gave Now (ACORN) advising a couple posing Week, writer and fellow at the Ethics Becerra’s offi ce until mid-July to fi le a as a pimp and a prostitute on how to and Public Policy Center Pascal- revised complaint that provides greater make it a legal business. The couple Emmanuel Gobry wrote that the detail, including specifi c dates, alleged was later revealed to be O’Keefe and 46 co-conspirator Hannah Giles. The New series of videos posted over the course later revealed that Brandt/Maass had Yorker magazine reported on May 20, of the fall of 2016, Foval is shown recorded the conversations, both in 2016 that the videos “raised serious bragging about “a litany of political person and during conference calls. questions about [O’Keefe’s] methods dirty tricks.” The complaint emphasized that the and ethics — questions that have The next step of Project Veritas’ recording took place in Democracy trailed him ever since.” The videos infi ltration into Democracy Partners Partners’ private offi ces that are also appeared to be heavily edited, began during the spring of 2016 and “not accessible to the general public, according to the Columbia Journalism sparked the June 2017 complaint by have 24-hour security, and are only Review ( CJR) on March 15, 2011. The Creamer, Democracy Partners, and accessible if one signs into the building resulting court case concluded with Strategic Consulting Group. On June at the lobby security desk, if one O’Keefe and his accomplice settling 24, 2016, Creamer met a man who is provided entrance by Plaintiffs’ with ACORN for $100,000 after losing introduced himself as “Charles Roth,” receptionist, and/or if one has an on summary judgment on a wire-tap claiming he was a potential donor to electronic pass card.” It also said she claim. (For more information on the Americans United for Change (AUFC), did not have consent from the plaintiffs ACORN Videos and the resulting a non-profi t organization for which or clients to record them in meetings lawsuit, see “ACORN Videos Provoke Creamer worked. Roth’s real name was or conversations. According to the Media Debate, Trigger Lawsuit” in the Daniel Sandini, an employee of the complaint, Brandt/Maass was also Fall 2009 issue of the Silha Bulletin). Project Vertias Action Fund (“Project included among the recipients of highly In 2010, O’Keefe and three Veritas Action”), which was created to confi dential emails and documents, accomplices were criminally charged “[i]nvestigate and expose corruption, which she collected and provided to when two of the accomplices disguised dishonesty, self-dealing, waste, fraud Project Veritas. Democracy Partners themselves as telephone repairmen in and other misconduct.” According never authorized Maass to transfer or an attempt to enter the offi ces of then- to the complaint, on July 15, 2016, deliver any of the documents. U.S. Senator Mary Landrieu (D-La.) Roth/Sandini told Creamer that his The private conversations, messages, and tampered with the offi ce’s phone niece, “Angela Brandt,” was interested and documents recovered by Brandt/ system, as reported by The Washington in volunteering for Democratic Maass were later used by Project Post on Jan. 27, 2010. O’Keefe and the candidates or organizations. It was Veritas in four separate videos posted others pled guilty to one count each of later revealed that “Angela Brandt” on their website between October 17 entering federal property under false was a fi ctitious name and that she was and October 24. Project Veritas Action pretenses. O’Keefe was sentenced to really Allison Maass, another Project also published the videos on its website three years of probation, 100 hours of Veritas employee. Creamer interviewed under the heading “VeritasLeaks” on community service, and a $1,500 fi ne. Brandt/Maass for an internship in Oct. 26, 2016. The Washington Post In 2011, O’Keefe released a video on the Democracy Partners offi ce. The reported on October 19 that the videos Project Veritas depicting senior vice complaint alleges that during the appeared to be heavily edited, often president of National Public Radio interview, Brandt/Maass gave the combining statements in a way that (NPR) Ron Schiller making negative fi ctitious name and false background did not make sense or suggested that comments about the Republican party information, including her identity, something was missing from the video. and the “Tea Party” political movement. being the niece of Roth/Sandini, and This style of production was consistent Schiller was also shown saying that her interest in gaining experience with with past videos by Project Veritas, NPR would be “better off in the long Democracy Partners. according to the Post. Additionally, run without federal funding.” The Brandt/Maass began her internship Time magazine reported that many of video ultimately led to the resignation in Washington, D.C. on Sept. 21, the claims made by O’Keefe regarding of Schiller and NPR Chief Executive 2016, where she carried a concealed the videos “did not hold up to scrutiny Offi cer Vivian Schiller. (For more camera and audio recording device. and the videos were more of a footnote information on O’Keefe’s stings in 2010 The complaint claims that no one in during a fall campaign.” and 2011, see NPR Executives Resign the Democracy Partners offi ce knew Nevertheless, following release of after Hidden Camera Sting in “Prank she was wearing or using the device. the videos, Foval and Creamer both Phone Call, Hidden Camera Spur According to the complaint, much of left their jobs, as reported by The Ethical Controversies for News Media” the information Creamer disclosed Washington Post . Foval was laid off in the Winter/Spring 2011 issue of the to Brandt/Maass was “confi dential on October 18 by AUFC, where he Silha Bulletin.) and sensitive business information had been national fi eld director. The According to Time magazine on including the identity of clients, following day, Creamer announced he Oct. 18, 2016, O’Keefe’s investigation client information and programmatic was “stepping back” from the work he into Democracy Partners began in details, and the identity of partners.” was doing for the unifi ed Democratic April 2016 when a staffer for Project Creamer alleged that he told Brandt/ campaign for Hillary Clinton, according Veritas, who went by the alias “Steve Maass “that based on the confi dential to the Post. Packard,” met with Foval, who became and sensitive nature of the mission In a statement that night, Democracy a contractor for Democracy Partners and programming of . . . Democracy Partners denounced not only Project soon afterward. Packard recorded Partners, the information, and any Veritas, but also the comments made conversations with Foval, who additional information she was given by Foval and Creamer on camera. “Our discussed his role with Democracy over the course of her internship, was fi rm has recently been the victim of a Partners and how the organization confi dential and not to be shared with well-funded, systematic spy operation might cover up voter fraud in the 2016 anyone other than persons with whom that is the modern day equivalent of Presidential Election, according to The she had specifi cally been instructed Washington Post on October 19. In a to share that information.” It was Video, continued on page 48 47 Video, continued from page 47 as well as “[r]emoving documents or the defendants “return any documents, copies of documents from the premises recordings, or other information the Watergate burglars,” the fi rm said. without consent or authorization” and obtained.” Finally, the plaintiffs sought “The plot involved the use of trained providing those materials to Project actual damages of $1,034,000 for operatives using false identifi cations, Veritas. “actual loss of amounts that would disguises and elaborate false covers to Count Two claimed that all the have been received under contracts,” infi ltrate our fi rm and others, to steal defendants participated in “unlawful “diminishment of the economic value of campaign plans, and goad unsuspecting interception of oral communications.” the space leased . . . and of confi dential individuals into making careless 18 U.S.C. § 2511 et seq. The complaint and proprietary information,” “loss statements on hidden cameras. One alleged that Maass “willfully of future contracts,” and “damage to of those individuals was a temporary intercepted the oral communications reputation of the Plaintiffs.” They also regional subcontractor who was goaded of Plaintiffs and their employees by sought additional statutory damages, into statements that do not refl ect our using an electronic device concealed punitive damages, costs of litigation, values.” on her person . . . in violation of the and more. The complaint indicated In an interview with Time magazine that the plaintiffs on Oct. 18, 2016, Creamer criticized “[P]retending to be someone else to requested a jury Project Vertias’ methods. “James trial. The full O’Keefe, the discredited individual expose something that might be of complaint is behind this well-orchestrated spying public interest is hardly new.. . . In the available online scheme directed at our fi rm, uses current environment of ‘fake news’ and at: http://www. methods that would make Richard politico.com/ Nixon and the Watergate burglars hyper partisanship, it won’t be surprising f/?id=0000015c- proud,” Creamer said. “O’Keefe if judges struggle over what is or isn’t for 64bc-d355-a3fc- executed a plot that involved the 66fd15dc0000. use of trained operatives using false the good of the public.” In an email identifi cations, disguises and elaborate acquired by false covers to infi ltrate our fi rm and — David Heller, Time magazine, other consulting fi rms in order to steal Media Law Resource Center deputy director O’Keefe said he campaign plans and goad unsuspecting was prepared to individuals into making careless fi ght. “Robert Creamer believes that statements on hidden cameras.” Constitution and the laws of the United by suing us, he can intimidate us,” he Steve Gordon, a spokesman for States.” Count Three made the same wrote. “I will not be silenced – only the Project Veritas Action, defended claims, but applied to the “unlawful over my dead body!” O’Keefe also the organization’s actions to The interception of oral communications” promised more sting operations. “We Washington Post the following day. under Washington D.C. code. will be deploying a new batch of freshly “The reporting process and methods D.C. Code § 23-542(a)(1). trained journalists next week to shine of Project Veritas Action are proven Count Four alleged that Maass additional light on the cockroaches successful and effective and are trespassed at the Democracy Partners of the corrupt D.C. establishment,” the protected intellectual property offi ce, contending that it was not O’Keefe wrote. and trade secrets of Project Veritas open to the public and was accessible Project Veritas attorney Benjamin Action,” said Gordon. “This policy is in by third parties only upon invitation Barr added: “The First Amendment accordance with the practices of news and authorization. Count Five of the protects the rights of undercover organizations globally and is generally complaint accused each defendant journalists to expose exactly the accepted as the professional norm.” of fraudulent misrepresentation. The sort of corruption captured in these On June 1, 2017, Time magazine complaint alleged that both Sandini videos. Veritas will assert its full First reported that Democracy Partners, and Maass made false representations Amendment rights to defend itself in Strategic Consulting Group, and regarding their names and backgrounds. these proceedings.” Creamer fi led a 27-page complaint Maass also misrepresented her intent in David Heller, deputy director of against O’Keefe, Maass, Sandini, Project securing and maintaining the internship, the Media Law Resource Center, said Veritas, and Project Veritas Action, her education, and work history, Creamer’s lawsuit would face signifi cant which included six counts against the among other claims. Finally, Count Six challenges, especially because O’Keefe defendants. The fi rst count alleged that alleged that each defendant “combined identifi es himself as a journalist. Heller Maass committed a breach of fi duciary and conspired for an unlawful told The Washington Post on June 8 duty. The complaint contended that a purpose . . . including to commit that “pretending to be someone else fi duciary relationship existed between trespass, fraudulent misrepresentation, to expose something that might be of Maass and Democracy Partners because unlawful wiretap, and to breach public interest is hardly new.” “In the Maass had access to confi dential fi duciary duties.” current environment of ‘fake news’ information at the fi rm during her At the end of the complaint, the and hyper partisanship, it won’t be internship. Maass allegedly breached plaintiffs requested relief, including fi rst surprising if judges struggle over what her fi duciary duties to Democracy “enjoin[ing the] Defendants . . . from is or isn’t for the good of the public,” Partners by “surreptitiously recording posting, publishing, disclosing, or in any Heller said. He added that courts have meetings and conversations held in non- way using any documents, recordings, generally protected constitutional rights public spaces with Democracy Partners or other information obtained.” Second, to gather and publish news, whether by members, employees and clients the complaint requested an order that the institutional press or the average without consent or authorization,” citizen.

48 The Washington Post also reported think there’s anything to comment an opinion piece for CNN on June 29 that because Washington, D.C.’s on.” O’Keefe later called on volunteers calling the recording “a hoax.” Also wiretapping law is a “one-party to comb through the 119 hours of on June 29, O’Keefe released a video consent” law, O’Keefe and other raw tape, offering a $10,000 reward depicting a Project Veritas reporter members of Project Veritas did not need of “content that exposes media asking CNN associate producer Jimmy to get permission to tape conversations malfeasance.” Carr if it “would be fair to question to which the video makers were a party. On June 27, The Hill reported that the intellect of the American voter,” D.C. Code § 23-542. Accordingly, Mason O’Keefe released another undercover according to The Hill. Carr is shown in Kortz, an instructional fellow at Harvard video that depicted a CNN producer the video responding “Oh, no. They’re University’s Cyberlaw Clinic, said an saying the coverage of President stupid as s--- [sic].” Carr also said issue for Democracy Partners will be if Donald Trump’s possible collusion with President Trump is “just f---ing [sic] Maass was a bystander to other people’s Russia during the 2016 presidential crazy” and that he is “not actually a conversations or if she was a part of election was “mostly bullshit” and Republican.” CNN declined to comment them, in which case she would not be in on the footage. violation of the wiretap law. However, “[W]e are suddenly operating in an Gabriel Kahn, Kortz also said that Washington, a journalism D.C.’s one-party consent law includes environment where all reporting is professor at an exception that secret recordings perceived as partisan. This becomes the University are illegal if they are done with the a self-fulfi lling prophesy. When the of Southern purpose of “committing any criminal or California, told tortious act.” Thus, according to Kortz, holder of the highest offi ce in the land USA Today that the wiretapping law prevents secret lambastes coverage he doesn’t like as surreptitiously recordings done to purposely damage a recording a source person or organization. biased or fake, then, almost by defi nition, “is slimy.” “If they In an interview with The Washington that coverage is seen as partisan by are knocking CNN Post, Yael Bromberg, a supervising some.” for bad practices, attorney for the Institute for Public they need to look Representation at Georgetown Law at their own, fi rst,” — Gabriel Kahn, representing Creamer and Democracy Kahn said. “More Partners, said O’Keefe’s methods University of Southern California broadly, we are of obtaining the video had been journalism professor suddenly operating widely criticized. “We’re in an era of in an environment unprecedented hyper partisanship all about “ratings.” CNN producer where all reporting is perceived as and fake news, and the integrity of the John Bonifi eld is seen speaking to an partisan. This becomes a self-fulfi lling public domain is critical to the practice off-screen questioner in a number of prophesy. When the holder of the of democracy,” said Bromberg. “What’s settings, including in an elevator and highest offi ce in the land lambastes more is [O’Keefe and Project Veritas] outside the Atlanta offi ce. Bonifi eld coverage he doesn’t like as biased or degrade public discourse during a time can be heard and seen saying “I haven’t fake, then, almost by defi nition, that of heightened importance, which is seen any good enough evidence to show coverage is seen as partisan by some.” when the public is most in tuned into that the president committed a crime.” In a series of tweets following the politics just before the election.” Bonifi eld, who appears not to realize he release of the video, New York Times As the Bulletin went to press, no is being recorded, also mocked “cutesy reporter Sopan Deb also criticized further action had been announced on little [journalism] ethics.” the videos, saying “there is a better the civil complaint. In a statement, CNN said their than 90% chance they were edited In recent months, O’Keefe has organization “stands by our medical deceptively.” She also tweeted “CNN found himself embroiled in further producer John Bonifi eld. Diversity of has probably 1,000 producers, not controversy after releasing undercover personal opinion is what makes CNN including APs, PAs, etc. But sure, videos from CNN’s offi ces in Atlanta, strong, we welcome it and embrace it.” let’s use 1 guy’s private comments to Ga, which he called “CNN Leaks.” In Steve Gordon, communications director represent the whole network.” February 2017, O’Keefe posted 119 at Project Veritas, defended the use of President Trump also took to Twitter, hours of secretly taped conversations undercover video in an interview with saying “Fake News CNN is looking at among CNN employees to Project USA Today. “That’s what Project Veritas big management changes now that they Veritas, according to The Washington does,” he said. “We go undercover. got caught falsely pushing their phony Post on Feb. 23, 2017. However, the Undercover video has been widely Russian stories. Ratings way down!” Post and Politico both reported that respected.” He also tweeted “So they caught Fake when the audio recordings were On June 28, O’Keefe posted News CNN cold, but what about NBC, posted, technical diffi culties with the another video on Project Veritas. CNN CBS & ABC? What about the failing website prevented many users from contributor and host of “Messy Truth” @nytimes & @washingtonpost? They hearing any of the audio. Additionally, Van Jones is heard calling the possible are all Fake News!” the recordings largely only featured collusion of the Trump administration lower-levels staffers at the network. with Russia during the 2016 presidential In response to the recordings, a CNN campaign “a nothingburger,” according SCOTT M EMMEL spokesperson told Politico, “I don’t to The Hill on June 30. Jones wrote SILHA BULLETIN E DITOR

49 Third Circuit Declares a First Amendment Right to Record On-Duty Police Offi cers n July 7, 2017, the United in the Summer 2012 issue of the Silha the picture and ordered him to leave. States Court of Appeals Bulletin.) When Fields refused, he was detained for the Third Circuit ruled The following year, the Ninth Circuit by the offi cer who confi scated and that bystanders have a First recognized a First Amendment right to subsequently searched through Fields’ Amendment right to record photograph police. Adkins v. Limtiaco, phone, opening several videos and Oon-duty police offi cers in public places. 537 Fed.Appx. 721 (9th Cir. 2013). The photos. Fields was issued a citation for Fields v. Philadelphia, No. 16-1650, court cited their 1995 case Fordyce v. “Obstructing Highway and Other Public No. 16-1651 (3rd Cir. 2017). The Third Seattle, which found that “a genuine Passages,” though the charges were later Circuit joined a issue of material fact exists concerning withdrawn. LAW growing consensus whether [a police offi cer] interfered Geraci and Fields brought claims in of fi ve other with [an amateur journalist’s] First the United States District Court for the ENFORCEMENT federal circuit Amendment right to gather news.” Eastern District of Pennsylvania against courts that issued 55 F.3d 436 (9th Cir. 1995). the City of Philadelphia and certain similar rulings. Several attorneys and Finally, in February 2017, the Fifth police offi cers, citing 42 U.S.C. § 1983, media experts praised the decision and Circuit ruled in a 2-1 decision that the a federal statute allowing individuals or explained the signifi cance of the ruling, First Amendment provides the right for groups to bring lawsuits for violation of including on the newsgathering process. citizens to fi lm the police, though the constitutional rights. Geraci and Fields’ Previously, the United States Court right is not absolute. Turner v. Driver , suits were consolidated by the district of Appeals for the First, Fifth, Seventh, 848 F.3d 678 (5th Cir. 2017). Writing court at their request. Ninth, and Eleventh Circuits had ruled for the majority, Judge Jacques L. Both claimed that the offi cers that bystanders’ right to record law Wiener concluded that “the principles illegally retaliated against them for enforcement offi cers in public places is underlying the First Amendment support exercising their First Amendment right protected by the First Amendment. The the particular right to fi lm the police.” to record public police activity. They Eleventh Circuit ruled in 2000 that the Additionally, he wrote that gathering also alleged that the offi cers violated “First Amendment protects the right to information about government offi cials their Fourth Amendment right to be gather information about what public that can be disseminated to the public free from an unreasonable search or offi cials do on public property, and “serves a cardinal First Amendment seizure. Additionally, the plaintiffs specifi cally, a right to record matters of interest in protecting and promoting ‘the pointed out that Philadelphia Police public interest.” Smith v. Cumming, 212 free discussion of governmental affairs.’” Department’s offi cial policies recognized F.3d 1332, 1333 (11th Cir. 2000). Judge Edith “Joy” Brown Clement wrote their First Amendment right, including In August 2011, the First Circuit ruled a dissenting opinion regarding the a 2011 memorandum advising offi cers that recording or fi lming government liability of the offi cers in the case, but not to interfere with a private citizen’s offi cials engaged in their duties in agreed that “a First Amendment right to recording of police activity because it a public space “is a basic and well- record the police does exist, subject only was protected by the First Amendment. established liberty safeguarded by the to reasonable time, place, and manner A 2012 offi cial department directive First Amendment.” Glik v. Cunniffe, restrictions.” reiterating that the First Amendment 655 F.3d 78 (1st Cir. 2011). However, the The case before the Third Circuit right existed. court found that the First Amendment began as two separate lawsuits following On February 19, 2016, U.S. District does not apply if the bystander directly events occurring in September 2012 Court Judge Mark A. Kearney concluded interferes with law enforcement activity. and September 2013. Amanda Geraci, that Geraci’s and Fields’ actions were (For more information on the Glik a member of the police watchdog not protected by the First Amendment decision, see “Cops and Citizens Clash group “Up Against the Law,” attended a because they presented no evidence over Recordings of Law Enforcement September 2012 protest in Philadelphia. that their “conduct may be construed Activity” in the Fall 2011 issue of the When Geraci saw several police offi cers as expression of a belief or criticism of Silha Bulletin.) acting to arrest a protestor, she moved police activity.” Fields v. Philadelphia, In a May 2012 ruling, the Seventh to a better vantage point, without 166 F. Supp. 3d 528 (E.D. Pa. 2016). Circuit held that the act of making an interfering with the police activity, in Kearney also wrote that “[a]bsent any audio or audiovisual recording falls order to record the encounter. According authority from the Supreme Court or under the First Amendment. ACLU to the Third Circuit’s majority opinion, our Court of Appeals, we decline to of Illinois v. Alvarez, 679 F.3d 583 an offi cer “abruptly pushed Geraci and create a new First Amendment right for (7th Cir. 2012). The court enjoined an pinned her against a pillar for one to citizens to photograph offi cers when Illinois eavesdropping law because it three minutes,” prevented her from they have no expressive purpose such as “likely violate[d] the First Amendment” observing or recording the arrest. Geraci challenging police actions.” by prohibiting people from making was not arrested or cited. On Oct. 31, 2016, the Reporters audio recordings of the police in In September 2013, Temple University Committee for Freedom of the Press public. (For more information on student Richard Fields was on a public (RCFP) and 31 media organizations, the Seventh Circuit’s decision, see 7th sidewalk when he observed a number including The New York Times and The Circuit Holds Recording is Protected by of police offi cers breaking up a house Washington Post , fi led an amici curiae First Amendment in “Courts, Federal party across the street. Fields took a brief in support of Geraci and Fields. Government Clarify First Amendment photograph of the scene with his iPhone. The brief argued that bystander video Protection for Recording in Public” A police offi cer noticed Fields take benefi ts the newsgathering process, 50 and thus the public, in two ways. First, review of them does their worth become do not capture. Civilian video also fi lls bystander video provides the news apparent.” Ambro contended that the gaps created when police choose media and the public with important, because the offi cers stopped Geraci from not to record video or withhold their newsworthy material. “Today, the fi rst recording, she never had the opportunity footage from the public.” Furthermore, source of information from the scene to decide to put any recording to bystander video “complements the role of a newsworthy event is frequently an expressive use. of the news media,” as well as serving ordinary citizen with a smart phone,” Next, the court addressed whether as a “common component of news the brief read. “These witnesses often bystanders have a First Amendment programming,” Ambro wrote. play a meaningful role in monitoring the right to record law enforcement offi cers The court also contended that video functioning of government, particularly acting in the course of their duties recorded by the public can benefi t when they work with the news media to in a public space. Ambro wrote that the police as well. Ambro noted that distribute the information.” because “recording of police activity is bystander video may “improve policing,” The brief detailed the media coverage a widespread, common practice” and “help [law enforcement] carry out of several police shootings that had the First Amendment issue is “of great their work,” and “exonerate an offi cer “benefi tted from eyewitness video.” importance,” it is necessary to “deal charged with wrongdoing.” Video taken “Video evidence is useful whether it of police offi cers comes from a bystander or another “We ask much of our police. They can be who committed source, like a patrol car dashcam, an wrongdoing has offi cer’s body-worn camera, or other our shelter from the storm. Yet offi cers “spurred action surveillance video,” wrote the RCFP and are public offi cials carrying out public at all levels of media organizations. “Its release serves functions, and the First Amendment government to the public interest in understanding what address police actually happened in a disputed event, requires them to bear bystanders misconduct and to regardless of which side it favors, if any.” recording their actions. This is vital to protect civil rights,” Second, the brief contended that Ambro wrote. He upholding the district court’s decision promote the access that fosters free continued, “We ask would “hinder the ability of the news discussion of governmental actions, much of our police. media to gather the news and provide especially when that discussion benefi ts They can be our the public with information of signifi cant shelter from the public interest.” According to the brief, not only citizens but the offi cers storm. Yet offi cers the lower court’s decision could have themselves.” are public offi cials a chilling effect on citizens and the carrying out public press. “By fi nding that ordinary citizens — Third Circuit Judge Thomas L. Ambro functions, and the observing police activity in public have First Amendment no constitutional protections when they requires them to try to record the event, the district court with it before addressing . . . defenses bear bystanders recording their actions. interferes with the general public’s right to liability.” Ambro wrote that the First This is vital to promote the access that to learn about critically important public Amendment “protects the public’s right fosters free discussion of governmental controversies,” the brief read. “After all, of access to information about their actions, especially when that discussion if it becomes even more common for offi cials’ public activities.. . . Access benefi ts not only citizens but the offi cers offi cers to arrest citizens who peacefully to information regarding public police themselves.” record their activities, it is reasonable to activity is particularly important because However, the court cautioned that all conclude that fewer citizens will engage it leads to citizen discourse on public recording is not necessarily protected in such conduct.” The full amici curiae issues, ‘the highest rung of the hierarchy or desirable. The right to record police brief can be viewed online at: https:// of First Amendment values, and is is not absolute and is instead “subject www.eff.org/fi les/2017/06/13/10.31.16_ entitled to special protection.’” to ‘reasonable time, place, and manner amicus_brief_reporters_committee_for_ Ambro added that because recording restrictions,’” such as if a bystander freedom_of_the_press.pdf “corroborates or lays aside subjective interferes with police activity while On July 7, 2017, multiple news impressions for objective facts” and recording. The court concluded that publications reported that the Third “facilitate[s] discussion because of the cases before them provided “no Circuit reversed and remanded the the ease in which they can be widely countervailing concerns” and that they district court decision. Judge Thomas distributed via different forms of media,” did not have to “address at length the L. Ambro wrote the opinion of the recording police activity “falls squarely limits of this constitutional right.” court, which fi rst addressed Kearney’s within the First Amendment right After addressing whether Geraci’s conclusion that the plaintiffs “engaged of access to information.” The court and Fields’ actions were protected by in conduct only (the act of making a contended that because the press “no the First Amendment, the court next recording) as opposed to expressive doubt . . . has this right,” the public does considered whether the six defendant conduct (using the recording to criticize as well. police offi cers were entitled to qualifi ed the police or otherwise comment on Additionally, the court discussed immunity. According to Ambro, offi cers’ actions),” which would have the signifi cance and value of bystander government actors, including police meant their recording activities were videos. Ambro contended that offi cers, are entitled to protection from protected by the First Amendment. bystander video can “provide different lawsuits under qualifi ed immunity unless Ambro countered that the value or the perspectives than police and dashboard they violated a constitutional right “so purpose of the recordings “may not cameras, portraying circumstances and clearly established that ‘every reasonable be immediately obvious and only after surroundings that police videos often Record, continued on page 52 51 Record, continued from page 51 offi cial policies, including the 2011 clearly established beforehand so that offi cial would have understood that what memorandum, “explicitly recognized this any reasonable police offi cer would [the offi cer] is doing violates that right.’” First Amendment right well before the know that what they were doing was In order to determine whether the incidents under review here took place.” unconstitutional. The Supreme Court plaintiffs’ constitutional right to record Consequently, Nygaard contended that has so far declined to hear such a case the police carrying out offi cial duties “it is indisputable that all offi cers in the but every Circuit Court of Appeals to in public was “clearly established,” the Philadelphia Police Department were put address this issue . . . has held that such court “look[ed] at the state of the law on actual notice that they were required a clearly established right exists. By when the retaliation occurred” against to uphold the First Amendment right to those courts doing so, police in those Geraci and Fields in September 2012 make recordings of police activity.” jurisdictions may not successfully use and 2013. Ambro wrote that the court Following the ruling, several qualifi ed immunity in their defense.” could not defi nitively say that the state members of the media and media In a story for Slate magazine, writer of law at the time of the events “gave experts commented on the signifi cance Mark Joseph Stern agreed. “Fortunately, fair warning so that every reasonable of the ruling. In a July 7 statement, Friday’s ruling establishes the right to offi cer knew that, absent some sort executive director of the American Civil record within the 3rd Circuit beyond of expressive intent, recording public Liberties Union (ACLU) of Pennsylvania any doubt, meaning offi cers who violate police activity was constitutionally Reggie Shuford praised the decision. that right in Delaware, New Jersey, or protected.” As a result, the court “Government operates best in sunlight, Pennsylvania may be sued,” he wrote. concluded that the Geraci’s and Fields’ and the police are not an exception,” “The Philadelphia police are now on right to record police activities in public he said. “The First Amendment right to notice: An individual who fi lms law places was not “clearly established,” document the police at work is critical enforcement activity isn’t breaking the meaning the offi cers were entitled to to promote transparency. We are grateful law; she’s exercising her constitutional qualifi ed immunity. that the appeals court agrees.” rights.” Stern added, “Bystander videos The court remanded the case to the Molly Tack-Hooper, the ACLU may not eliminate police misconduct. district court to determine if the City attorney who argued the case before But they play a vital role in our national of Philadelphia could be held liable the appeals court, discussed the debate about the lawlessness of law for its offi cers’ conduct, an issue that value of holding government offi cials enforcement. And the Constitution does the district court had not considered accountable. “The police cannot not allow police to muffl e that debate by because of its First Amendment ruling. operate in a shroud of secrecy,” said denying citizens the right to document As the Bulletin went to press, the Tack-Hooper in a statement following their misconduct with a camera.” district court had not held any further the ruling. “The fundamental right to The Electronic Frontier Foundation proceedings related to the case. document police activity is crucial to (EFF) contended that despite the Judge Richard Lowell Nygaard fi led deter misconduct and gather information important victory, the right of technology an opinion concurring in part and about how police use their power. users to record on-duty police offi cers dissenting in part. He wrote that he Today’s ruling strengthens that important was far from resolved. “[T]he struggle agreed with the “majority’s analysis and concept.” continues,” EFF Senior Staff Attorney conclusions regarding the existence of In a July 7 story for The Atlantic, Adam Schwartz and Staff Attorney a First Amendment right to record, and associate editor Matt Ford called the Sophia Cope wrote in a July 7 article. agree[d] that the case against the City ruling a “signifi cant milestone” because “Across the country, many government of Philadelphia should be remanded “[h]alf of U.S. states are now covered offi cials continue to block members of for further proceedings.” However, by [circuit court] rulings protecting the the public from using their electronic he disagreed with his colleagues’ videotaping of law enforcement.” Ford devices to record newsworthy events. conclusion that the offi cers should be estimated that roughly 60 percent of EFF will continue to fi ght for this vital granted a qualifi ed immunity. the American population falls under the right.” Nygaard wrote that the question of constitutional protection. Osterreicher cautioned that police whether a constitutional right is clearly According to Mickey Osterreicher, may still attempt to stop photojournalists established has to be considered in counsel for the National Press from recording. “A police offi cer may a “real-world context,” and should Photographers Association (NPPA), not tell you to stop photographing or be “conducted from the perspective the six circuit court decisions not only recording if you are in a public place of a ‘reasonable offi cial.’” For two establish a right to record on-duty where you have a legal right to be reasons, Nygaard felt Geraci’s and police, but also have implications for present but that does not mean that Fields’ constitutional right was clearly qualifi ed immunity for offi cers in those they will not still do so,” he said. “That established under this standard. First, jurisdictions. “In order to overcome that is because the right to photograph and Nygaard explained that “every Circuit ‘qualifi ed immunity’ defense, plaintiffs record is a First Amendment protected Court of Appeals that has considered must show that they were engaged in activity which may only be limited by the issue ruled that there is a First a constitutionally protected activity reasonable time, place and manner Amendment right to record police that was ‘clearly established’ at the restrictions. The most common of those activity in public.” Because four of the time of the incident,” Osterreicher told restrictions are location.” decisions were published before the the Poynter Institute on July 10. “The conduct related to this case, Nygaard only way for that to be substantiated SCOTT M EMMEL reasoned that the constitutional right to is for the U.S. Supreme Court, a U.S. SILHA BULLETIN E DITOR record the police during their duties in Court of Appeals or a federal district a public place was clearly established. court having jurisdiction over the area Second, Nygaard contended that the where the incident took place to have Philadelphia Police Department’s previously articulated that right as being 52 Several State Courts and Legislatures Grapple with Anti-SLAPP Laws uring the summer of 2017, SLAPP lawsuit (“moving party”) must Sinuon, it did permit the board’s claims several states grappled make a threshold showing that “the that Sinuon had received wages and with anti-SLAPP (strategic [lawsuit] materially relates to an act of benefi ts to which she was not entitled. lawsuit against public the moving party that involves public Consequently, the old board fi red participation) laws meant to participation.” “Public participation” is Sinuon. After AWUM declined to take Dprovide a remedy for defendants against defi ned as “speech or lawful conduct further legal action against Sinuon, the meritless claims brought by plaintiffs that is genuinely aimed in whole or in district court ultimately dismissed the involving publications regarding part at procuring favorable government case. matters of public action.” The Minnesota statute provides In August 2005, Sinuon sued AWUM concern or the immunity against lawsuits targeting for wrongful termination. The district ANTI-SLAPP defendant’s right “lawful conduct or speech that is court dismissed the action, but the to free speech, genuinely aimed in whole or in part at Minnesota Court of Appeals reversed. right to petition procuring favorable government action.” Leiendecker v. Asian Women United of the government, or right of association. According to MinnPost on June 7, 2017, Minn., 731 N.W.2d 836, 838 (Minn. App. On May 24, 2017, the Minnesota this could include a number of activities, 2007). The parties ultimately settled the Supreme Court ruled that the state’s from contacting an elected offi cial to second lawsuit in 2008. anti-SLAPP law was unconstitutional making a report to law enforcement. In the third lawsuit, AWUM sued because it deprived claimants the right This conduct or speech is immune from Lawrence for legal malpractice in to a jury trial. On May 23, 2017, the liability, unless it “constitutes a tort or February 2007. The district court Massachusetts Supreme Judicial Court a violation of a person’s constitutional eventually dismissed AWUM’s complaint (SJC) provided a new way for parties rights.” at the organization’s request, granted to dismiss special motions under the If the moving party meets its summary judgment to Lawrence on his state’s anti-SLAPP law. In addition to the threshold showing, the burden moves counterclaim for indemnifi cation, and existing procedures, the SJC ruled that a to the party who brought the lawsuit entered judgment for over $41,000 in judge can dismiss an anti-SLAPP special (“responding party”) to produce “clear favor of Lawrence. motion if the nonmoving party shows and convincing evidence that the acts One year later, AWUM sued Sinuon, that their lawsuit was not brought of the moving party are not immunized alleging that she had received wages “primarily to chill” a defendant’s ability from liability.” This is an elevated and other payments to which she was to petition the government. Conversely, standard from “preponderance of not entitled while AWUM’s executive the New Jersey and Connecticut evidence” followed in most civil cases. director. After Sinuon moved for legislatures each considered an anti- If the responding party fails to meet this indemnifi cation, the district court SLAPP lawsuit in their respective states. burden, its lawsuit is dismissed and the denied her motion. However, the court court awards reasonable attorney fees of appeals reversed and remanded Minnesota Supreme Court Strikes and costs to the moving party. the case to the district court, which Down State’s Anti-SLAPP Law The case before the Minnesota dismissed AWUM’s lawsuit when the On May 24, 2017, the Minnesota Supreme Court arose as part of a organization declined to tender advance Supreme Court struck down decade-long dispute between Sinuon indemnifi cation to Sinuon. the state’s anti-SLAPP law, and Lawrence Leiendecker and Asian The fi fth lawsuit between the parties Minn. Stat. § 554.01 et seq. in Women United of Minnesota (AWUM), is the case considered by the Minnesota Leiendecker v. Asian Women United a non-profi t organization addressing Supreme Court in regards to the state’s of Minnesota, A16-0360 (Minn. 2017). domestic violence against women. anti-SLAPP statute. The Leiendeckers The majority ruled that the statute was Sinuon Leiendecker was AWUM’s brought the lawsuit seeking to recover unconstitutional as applied because it executive director from 1999 to 2004 for the injuries allegedly infl icted by deprived claimants their right to a jury while her husband provided pro bono AWUM in the four previous lawsuits. trial under the Sixth Amendment to the legal services to AWUM. In 2003, the The Leiendeckers argued that two of U.S. Constitution and Article 1, Section Leiendeckers attempted to oust AWUM’s AWUM’s previous lawsuits against them 4 of the Minnesota Constitution. Chief board of directors by forming a new constituted malicious prosecution, a Justice Lorie Skjerven Gildea fi led a board and fi ling a declaratory-judgment tort action in which a plaintiff sues dissenting opinion, arguing that the law action to have the new board declared another party for using the legal system did not violate claimants’ right to a jury legitimate. AWUM contended that in a manner for which the system was trial because a judge can issue summary the organization had previously fi red not intended. Subsequently, AWUM judgment without violating that right. Sinuon and that she received wages and sought immunity under Minnesota’s Although some constitutional law benefi ts to which she was not entitled. anti-SLAPP law, attempting to dismiss attorneys, among others, contended that The dispute led to fi ve lawsuits between the Leiendeckers’ lawsuit. the loss of the anti-SLAPP statute would the Leiendeckers and AWUM. In 2013, the district court dismissed have a small impact, others expressed The fi rst began in late 2003 and most of the Leiendeckers’ claims, but concern following the Minnesota resulted in a district court rejecting also denied AWUM’s anti-SLAPP motion Supreme Court’s decision. the Leiendeckers’ efforts to install on the grounds that the organization did Passed in 1994, Minnesota’s anti- the new board of directors. Although not meet its initial burden of showing SLAPP statute requires that a party the district court also rejected the that the Leiendeckers’ lawsuit related fi ling a motion to dismiss an alleged old board’s allegation that it had fi red Anti-SLAPP, continued on page 54 53 Anti-SLAPP, continued from page 53 unconstitutional. However, McKeig failed to show by clear and convincing wrote that the court must also exhibit a evidence that the moving party engaged to an act by AWUM involving public “watchful jealousy” of any “impairment in tortious conduct,” it would preclude participation. On June 3, 2013, the of the right of a free and inviolate a jury trial. Furthermore, the court court of appeals affi rmed the lower jury trial,” citing the 1921 case Flour contended that even if a district court court’s decision. However, on June 25, City Fuel & Transfer Co. v. Young. decided that the responding party did 2014, the Minnesota Supreme Court 150 Minn. 452, 458, 185 N.W. 934, 937 show clear and convincing evidence, granted AWUM’s petition for review to (1921). The case requires that a law be it “would also arguably preclude a jury determine if the district court properly unconstitutional “if it renders the jury- trial.” Second, the majority concluded denied AWUM’s anti-SLAPP motion. The trial right ‘so burdened with conditions that the clauses “require the responding court reversed the decision of the court that it is not a jury trial, such as the party to meet a higher burden of proof of appeals and remanded the case to the Constitution guarantees.’” Article I, before trial (clear and convincing lower courts. On Dec. 15, 2014, the court Section 4 of the Minnesota Constitution evidence) than it would have to meet at of appeals ruled that AWUM had met establishes that the “right of trial by jury trial (preponderance of the evidence).” the threshold showing that the “lawsuit shall remain inviolate, and shall extend The majority opinion drew a parallel fi led by the Leiendeckers materially to all cases at law without regard to the to a similar case decided by the related to an act by AWUM involving amount in controversy.” Furthermore, Washington Supreme Court in 2015, public participation.” The court of the Sixth Amendment provides “In all which determined that Washington’s appeals then remanded the case to the criminal prosecutions, the accused shall anti-SLAPP law violated the state’s district court, where AWUM renewed enjoy the right to a speedy and public constitutional jury-trial guarantee. its motion to dismiss the Leiendeckers’ trial, by an impartial jury of the State (For more information on Washington lawsuit under the anti-SLAPP law. In and district wherein the crime shall Supreme Court Striking Down the response, the Leiendeckers moved for have been committed.” state’s anti-SLAPP law, see Washington an order declaring the anti-SLAPP law McKeig wrote that the right to Supreme Court Strikes Down Anti- unconstitutional. Although the district a jury trial is relevant because the SLAPP Law in “Updates to State Laws court found that the Leiendeckers fell Leiendeckers claimed malicious Create Challenges, New Benefi ts for short of proving by clear and convincing prosecution, which contains three News Organizations” in the Summer evidence that AWUM’s acts were not elements: “(1) the action [must be] 2015 issue of the Silha Bulletin.) immunized from liability under the brought without probable cause or Finally, having determined that anti-SLAPP statute, the court concluded reasonable belief that the plaintiff clauses 2 and 3 of section 554.02 that the law violated the Leiendeckers’ would ultimately prevail on the merits; were unconstitutional, the court next constitutional right to a jury trial. (2) the action must be instituted and considered whether they were severable AWUM appealed and sought accelerated prosecuted with malicious intent; from the reminder of the section. review, which was granted by the and (3) the action must terminate McKeig wrote that the clauses were Minnesota Supreme Court. in favor of the defendant.” Kellar v. inseparable because the remaining In a 6-1 decision, the Minnesota high VonHoltum , 568 N.W.2d 186, 192 (Minn. provisions “provide no procedure for court ruled on May 24, 2017 that two App. 1997). According to the majority, courts to determine whether a lawsuit clauses in the Minnesota anti-SLAPP two of the three elements of malicious violates the substantive prohibition of law were unconstitutional. First, prosecution, the probable cause and Minn. Stat. § 554.03.” Therefore, the the court considered “whether the malice elements, are factual questions court ruled that “Minn. Stat. § 554.02 Leiendeckers waived their argument for a jury. is unconstitutional when it requires a that the law is unconstitutional.” Justice Next, McKeig turned to the language district court to make a pretrial fi nding Anne K. McKeig wrote in the majority of the statute, specifi cally clause 2 of that speech or conduct is not tortious opinion that because the Leiendeckers section 554.02, which specifi es that under Minn. Stat. § 554.03 . . . Minn. Stat. had no prior opportunity to make “the responding party has the burden § 554.02 is unconstitutional as applied to their constitutional challenge at the of proof,” and clause 3 which requires claims at law alleging torts.” district court, they had not waived their the responding party to produce “clear Chief Justice Gildea fi led a dissenting challenge. and convincing evidence” to dismiss the opinion in which she wrote that she Second, the court had to determine anti-SLAPP motion. McKeig wrote that “would resolve this case on . . . more whether the district court violated the these clauses violated the responding narrow ground and not reach the court of appeals’ remand instructions party’s right to a jury trial in two ways. constitutional question the majority by analyzing the constitutionality of First, they transfer the jury’s fact-fi nding decides,” especially because “precedent the statute. McKeig wrote that because role to the district court. McKeig cited recognizes that we resolve cases the appellate court did not provide a Gabrielson v. Warnemunde which held without reaching constitutional issues specifi c statement to the district court that the role of resolving disputed facts whenever possible.” saying it was not permitted to determine belongs to a jury, not the court. 443 Gildea contended that the majority’s the constitutionality of the statute, N.W.2d 540, 543 n.1 (Minn. 1989). Thus, resolution “may undermine the the district court did not violate the the majority ruled that these clauses summary judgment remedy” afforded to instructions on remand. “unconstitutionally instructs district district courts by Rule 56 of Minnesota’s The court next addressed the courts to usurp the role of the jury by Rules of Civil Procedure. Additionally, constitutionality of the anti-SLAPP making pretrial factual fi ndings that can, Gildea contended that because the law. McKeig provided context for depending on the fi ndings, result in the district court in this case did not fi nd determining the constitutionality of complete dismissal of the underlying facts and “did not need to make any a statute, writing that the court must action.” Accordingly, if a district court credibility determinations on the “[exercise] extreme caution” when decided that “the responding party probable cause element” regarding determining whether a statute is 54 malicious prosecution, the district time but of a species that most people the civil claims, counterclaims, or cross court’s conclusion that the Leiendeckers weren’t all that interested in hunting.” claims against said party are based on failed to show a lack of probable Marshall H. Tanick, a Twin Cities [their] exercise of its right of petition cause was “a ruling as a matter of law.” employment and constitutional law [governmental bodies] under the Thus, according to Gildea, “the district attorney, wrote in his June 7 story for constitution of the United States or of court’s resolution of the legal question MinnPost that members of the media the commonwealth.” A special movant of probable cause did not violate the and freespeech advocates may not “must make a threshold showing . . . that Leiendeckers’ right to a jury trial.” be pleased with the decision. “For the claims against it are ‘based on’ the Following the Minnesota Supreme progressives, liberals, and freespeech petitioning activities alone and have Court’s ruling, Robert Hill, one of the enthusiasts of whatever political no substantial basis other than or in Leiendeckers’ attorneys, said he was ideology, the decision is one of mixed addition to the petitioning activities,’” not surprised by the ruling. “Once the blessings,” he wrote. “There are others, according to the SJC decision. judge is forced to become a fact fi nder however, including some in the media, Law360 reported on May 23, 2017 on a motion, the toothpaste is out of the who view it less charitably. They regard that Massachusetts’ antiSLAPP law is tube,” said Hill according to a May 30, the dismantling of the SLAPP shield narrower than other states’ because 2017 Minnesota Lawyer story. “What as unfavorably removing barriers to it specifi cally “protects speech and the Supreme Court did today is to lawsuits for defamation and similar petitioning that relates to governmental reaffi rm that our rules of civil procedure claims by powerful entities and affl uent and regulatory functions, instead of just are the only mechanism that ensures individuals, which may have the effect matters of broader public importance.” due process and fundamental fairness. of silencing critics or those opposing The antiSLAPP statute provides that And if you deviate from that, you do it at their practices for fear of being slapped the special motion can be dismissed your own peril.” around in costly litigation. The chilling if the party against whom the motion Hill added that his clients were effect of exposure to such lawsuits may, is made shows that: “(1) the moving relieved by the decision not only they fear, impede freedom of expression party’s exercise of its right to petition because they could pursue their claim and impair the free fl ow of information was devoid of any reasonable factual of malicious prosecution, but also that to the public.” support or any arguable basis in law the anti-SLAPP statute’s attorney fee Ultimately, Tanick contended that the and (2) the moving party’s acts caused provision would have applied had they decision was likely to have a “profound actual injury to the responding party.” lost. Section 4 of the anti-SLAPP law and longlasting impact.” He wrote, Thus, the burden shifts to the plaintiff requires that “[t]he court shall award a “Not only is the Minnesota law now to establish “by a preponderance of the moving party who prevails in a motion invalid, but the ruling is likely to have evidence that the [defendants] lacked under this chapter reasonable attorney a domino effect, cited as precedent for any reasonable factual support or any fees and costs associated with the striking down similar laws in many arguable basis in law for its petitioning bringing of the motion.” According to other jurisdictions. It also could scuttle activity.” Baker v. Parsons, 434 Mass. Minnesota Lawyer, Hill estimated his a SLAPP measure at the federal level, 543, 553554 (2001). clients would have been required to pay which has been stalled in Congress Blanchard arose in April 2011 over $500,000. since 2009 and is not likely to be following four incidents involving Eric Magnuson, another attorney enacted anytime soon, if ever.” alleged patient abuse and neglect at for the Leiendeckers, called the ruling the adolescent psychiatric unit of an important victory for constitutional Massachusetts Supreme Judicial Steward Carney Hospital, according principles. “It’s a strong vindication of Court Changes Legal Framework of to the SJC decision. The hospital the right to a jury trial, which is one the State’s Anti-SLAPP Statute immediately reported these incidents of our most precious and fundamental In a May 23, 2017 ruling, the to the Department of Mental Health rights,” said Magnuson. Attorney for Massachusetts Supreme Judicial Court (DMH), the Department of Public AWUM Phillip Cole said that although (SJC) provided a new way in which a Health (DPH), and the Department his clients were disappointed in the party can have an antiSLAPP motion of Children and Families. DMH decision. However, he told Minnesota dismissed by a district court judge. commenced an investigation into the Lawyer that the larger ramifi cations are Blanchard v. Steward Carney Hosp., incidents and considered revoking the limited because the anti-SLAPP statute Inc., 477 Mass. 141 (Mass. 2017). The hospital’s license to operate the unit, “is simply not invoked very often.” SJC ruled that a judge can dismiss pending the hospital’s response to the Mark Anfi nson, a lawyer and an antiSLAPP special motion if the reports of abuse. Additionally, Scott lobbyist for the Minnesota Newspaper nonmoving party who brought the Harshbarger, thensenior counsel at Association, agreed that the loss of the alleged SLAPP lawsuit can show that the law fi rm Proskauer Rose LLP, was anti-SLAPP law was “not a big deal,” the suit was not brought “primarily to hired to conduct an investigation into according to Minnesota Lawyer. “I’ve chill” a defendant’s ability to petition the incidents, to recommend remedial used it to threaten people who said they the government, an activity protected actions, and to represent the hospital’s were going to sue my clients: You better by the Massachusetts Constitution. interests in its dealings with the State watch out, Jack, there’s this statute you Following the ruling, attorneys had agencies. During the investigations, should be aware of,” said Anfi nson. “But mixed reactions to the change in the the hospital placed most employees of when push came to shove and litigation antiSLAPP law, with some arguing it the unit, including managers, nurses, occurred, it hardly ever worked. Trial signifi cantly weakened the statute. and mental health counsellors, on paid judges saw the fl aw in it and said, ‘I Passed in 1991, the Massachusetts administrative leave. After completing can’t make this kind of factual decision. antiSLAPP law allows a party to bring his investigation, Harshbarger That’s not how the law works.’” He a special motion to dismiss “[i]n any recommended to thenpresident of added, “It’s been a sitting duck for a long case in which [that] party asserts that Anti-SLAPP, continued on page 56 55 Anti-SLAPP, continued from page 55 complained of, Walczak’s email movant’s petitioning activities lack a and his statements to the Boston reasonable basis in fact or law, such as the hospital, William Walczak, that “it Globe, constituted the exercise of sham petitioning, or if the petitioning would be prudent to replace the current the defendants’ right to petition. caused injury. If the party did not meet personnel in order to ensure quality Accordingly, the initial question before this burden, the special motion would care for these vulnerable patients.” the court was whether Walczak’s be granted, ending the lawsuit and Subsequently, Walczak informed each communications to the Boston Globe resulting in fi nancial penalties, including of the nine plaintiff nurses that he was and to the hospital employees were attorney’s fees. terminating their employment. each made “in connection with” DMH’s However, the court ruled that the Walczak issued statements about investigation of the incidents and nonmoving party could now meet a the investigations and the fi ring of the its decision regarding the hospital’s “second-stage” burden and defeat the nurses through an internal email to license to operate the unit. If so, these special motion “by demonstrating that the hospital’s employees and to the communications would constitute each such claim was not primarily Boston Globe. In a Boston Globe article petitioning activity under the anti- brought to chill the special movant’s published two days later, Walczak was SLAPP statute, according to the opinion. legitimate petitioning activities.” Thus, quoted as saying that he “decided to The court concluded that the the nonmoving party can escape an anti- replace the nurses and other staff on statements to the Boston Globe were SLAPP motion if it convinces the judge the unit” after seeing the reports of the petitioning activity under the anti- that it did not bring the defamation abuse. Walczak said that the report SLAPP statute for two reasons. First, suit or other claims to chill the other recommended that he “start over on the Lenk wrote that “it can be reasonably party’s petitioning rights, according to unit” and that his “goal [was] to make inferred that Walczak’s statements to Law360. Lenk added that to make this it the best unit in the state.” About one the Boston Globe were intended to showing “the nonmoving party must month later, the Boston Globe published demonstrate to DMH the hospital’s establish, such that the motion judge another article on the incidents at the public commitment to address the may conclude with fair assurance, that hospital, quoting Walczak as saying underlying problems at the unit,” its primary motivating goal in bringing “[t]he Harshbarger report indicated it during the same period when DMH its claim, viewed in its entirety, was ‘not wasn’t a safe situation” and that the was considering whether to revoke to interfere with and burden defendants’ report “underscored his decision to fi re the hospital’s license to operate the . . . petition rights, but to seek damages the entire staff of the unit.” unit. Second, the court contended for the personal harm to [it] from In May 2013, the nurses who that Walczak’s statements were [the] defendants’ alleged . . . [legally had been fi red by Walczak fi led a issued in a manner that was likely to transgressive] acts.’” lawsuit suit against the hospital, as infl uence or, at the very least, reach The SJC remanded the case back to well as Proskauer Rose LLP and DMH because the Boston Globe is a lower courts to sort through the new Harshbarger, for defamation, among newspaper “widely circulated in Boston procedure. As the Bulletin went to other claims. The nurses alleged and throughout the Commonwealth.” press, the lower courts had not ruled that they were defamed both by the Conversely, the internal email did not on whether the nurses had met their email sent to hospital employees represent petitioning activity because second-stage burden to dismiss the announcing their terminations, as well the audience was exclusively hospital special motion, nor had they ruled as by communications made to and employees, not the DMH or any other whether the nurses met their fi rst- published by the Boston Globe. The government body or offi cial. stage burden of showing the hospital hospital defendants, including Walczak, Although the SJC determined that defendants’ petitioning activities lacked as well as Proskauer Rose LLP and “the Boston Globe based portion of the a reasonable basis in fact or law. Harshbarger, fi led special motions to nurses’ defamation claim arises from Following the ruling, attorney Dahlia dismiss the defamation counts under and is, in that limited sense, solely C. Rudavsky, who represented the the anti-SLAPP statute, claiming the based on their hospital employer’s quite nurses, praised the decision. “I think it’s defamation suit fi led by the nurses was legitimate petitioning activity,” the great that the court has seen what was a SLAPP suit. A Superior Court judge court was not satisfi ed that the plaintiff a diffi culty with the statute,” Rudavsky allowed the Proskauer defendants’ nurses’ defamation claim was “a ‘SLAPP’ told Law360. “Defendants have been special motion to dismiss, but denied suit at all.” misusing and overusing anti-SLAPP the hospital defendants’ motion. The Accordingly, the court concluded statute to get rid of legitimate claims. motion judge concluded that Walczak’s that in order to ensure that only SLAPP The court has fi nally taken action to communications to the Boston Globe suits are subject to early dismissal and remedy that.” did not fall under the anti-SLAPP law. In fi nancial penalties under the anti-SLAPP Jeffrey J. Pyle, a First Amendment 2016, the Massachusetts Appeals Court law, the statutory term “based on” lawyer at Prince Lobel Tye LLP, said reversed the motion judge’s decision must be “accorded broader meaning.” in an email to the Silha Center for the to deny the hospital defendants’ anti- Consequently, the court added an Study of Media Ethics & Law that he SLAPP motion.” Blanchard v. Steward additional opportunity for a party to agreed with the SJC that calling the Carney Hosp., Inc., 89 Mass. App. defeat a special motion to dismiss by nurses’ defamation suit a SLAPP was Ct. 97, 98 (2016). The SJC granted demonstrating that the challenged claim problematic. “The court’s reluctance the parties’ applications for further is not a SLAPP suit. to dismiss the claims of the nurses in appellate review. Previously, if the moving party met Blanchard was understandable. The Writing for the unanimous court, the initial burden of showing the claims legislature passed the statute to provide Justice Barbara A. Lenk fi rst addressed are solely based on petitioning activities, for quick resolution of suits brought ‘to whether the defendants met the the burden shifted to the nonmoving intimidate opponents’ exercise of rights threshold burden that the conduct party to demonstrate that the special of petitioning and speech,’ . . . and there

56 is no indication the nurses brought 16, 2017. As the Bulletin went to press, Following the Assembly passing suit to discourage the hospital from A603 remained in the Senate Judiciary A603, Lagana said in a statement, continuing to speak out in support of its Committee. “SLAPP suits are nothing more than license.” Under the proposed law, the moving thinly veiled attempts to silence However, Pyle remained concerned party, the defendant in a civil action defendants by putting them through a about the ramifi cations of the decision. alleged to be a SLAPP lawsuit, may fi le costly and complicated legal process. “In resolving this diffi cult case, an application seeking the dismissal This goes against our democratic ideals however, the Court has made the path of the suit. The burden fi rst falls on and is an abuse of our judicial system.” to dismissal under the anti-SLAPP law the moving party to present “prima During hearings on the bill in the more circuitous and doubtful, to the facie evidence showing that the cause Assembly Judiciary Committee in March detriment of the First Amendment of action at issue arises from an act in 2016, Lagana said the current process in values it seeks to protect,” he wrote. furtherance of the right of advocacy which defendants can ask for sanctions “The new standard weakens the anti- on an issue of public interest.” The bill to be imposed after motions to dismiss SLAPP law and will likely result in defi nes “right of advocacy on an issue based on grounds of frivolousness are more defamation claims against citizens of public interest” as a “statement granted, is insuffi cient, as reported by groups, bloggers, opinion writers, and made in connection with an issue of the New Jersey Law Journal on March the press. In practice, a defamation public interest . . . that is reasonably 8, 2016. plaintiff will always insist that its likely to encourage or to enlist public On June 5, 2017, the Connecticut ‘primary’ motivation in bringing suit was participation,” “an expression . . . that House of Representatives unanimously to recover damages, not to suppress involves petitioning State or local passed Public Act 17-71, previously SB- petitioning. Defendants seeking to government,” “any written or oral 981, titled “An Act Concerning Strategic rebut such claims will now have the statement made or submitted in a place Litigation Against Public Participation unenviable task of trying to show their open to the public or a public forum,” And A Special Motion To Dismiss.” The opponents’ bad motive – without the or “any other conduct in furtherance of proposed anti-SLAPP statute is meant to benefi t of discovery.. . . [A]nti-SLAPP the exercise of the constitutional right enable defendants who are exercising motions are likely to become of free speech or right of petition.” The First Amendment rights to more increasingly burdensome and expensive bill defi nes “issue of public interest” as easily seek dismissal of some lawsuits – the very outcome the statute was any issue related to “health or safety; intended to silence them, according to intended to avoid in the fi rst place.” environmental, economic, or community the Connecticut Law Tribune on May Pyle continued, “By placing so much well-being; the government; a public 10. As the Bulletin went to press, the emphasis on the plaintiff’s subjective fi gure; or a good, product, or service in bill remained on Gov. Dannel Malloy’s motivation, the ruling threatens to the marketplace.” desk for his consideration. vest more discretion in the hands If the moving party meets this Under the proposed law, “[i]n any of trial judges to deny anti-SLAPP initial burden, the burden shifts to civil action in which a party fi les a motions.. . . However, judges who the responding party who brought complaint, counterclaim or cross simply don’t like the anti-SLAPP law, or the initial lawsuit to provide “prima claim against an opposing party that is who don’t think the plaintiff should have facie evidence that demonstrates the based on the opposing party’s exercise to pay the defendant’s attorneys’ fees, probability of prevailing on the cause of its right of free speech, right to will now have greater leeway to deny of action.” The includes: “evidence petition the government, or right of a special motion to dismiss simply by to support each essential element of association under the Constitution of fi nding a proper subjective motive.” the cause of action, evidence showing the United States or the Constitution of that the moving party’s application for the state in connection with a matter Connecticut and New Jersey dismissal . . . is devoid of any reasonable of public concern” the opposing party Legislatures Consider Anti-SLAPP factual support or any arguable basis may fi le a special motion seeking Legislation of law, and evidence showing that dismiss the complaint. “Right to On March 16, 2017, the New Jersey the moving party’s acts caused actual petition the government” is defi ned Assembly passed A603, a bill allowing compensable harm to the responding as “communication in connection a party to fi le an application seeking party.” with an issue under consideration dismissal of a civil action on the basis If the responding party meets this or review by a legislative, executive, that it is a SLAPP lawsuit. Similarly, on burden, the civil action proceeds to trial administrative, judicial or other June 5, 2017, the Connecticut House of and the court awards the responding governmental body,” as well as Representatives unanimously passed party reasonable costs of litigation communication that “is reasonably Public Act 17-71, an anti-SLAPP bill and attorney’s fees. Conversely, if likely to enlist public participation in meant to enable defendants to seek the responding party fails to meet the an effort to effect consideration of dismissal of SLAPP lawsuits related to burden, the civil action is dismissed. an issue by a . . . governmental body.” the rights of free speech, assembly, and Additionally, the court awards the The bill defi nes “matter of public petitioning the government. moving party reasonable costs of concern” as “an issue related to (A) According to the New Jersey Law litigation and any attorney’s fees health or safety, (B) environmental, Journal on March 16, 2017, the New incurred. A603 also allows a judge economic or community well-being, Jersey anti-SLAPP bill had previously to “order additional relief including (C) the government, zoning and other been approved in a 68-4 vote in sanctions against the responding party regulatory matters, (D) a public offi cial February 2016, but the state Senate took as the court deems necessary to deter or public fi gure, or (E) an audiovisual no action before the legislative session repetition of comparable conduct work.” ended. Sponsored by Assemblyman by the responding party or others Joseph Lagana (D-Bergen), the bill similarly situated.” Anti-SLAPP, continued on page 58 re-passed the Assembly 69-3 on March 57 Google Hands Over Only One Record Following Expansive Search Warrant n Feb. 1, 2017, Hennepin search warrant application is available complied with the warrant, according County Judge Gary Larson online at https://www.documentcloud. to City Pages on May 12. “On April 27, approved a search warrant org/documents/3519211-Edina-Police- [I] was notifi ed by Google Inc. that the request by the Edina Police GoogleSearch-Warrant-Redacted.html. results from this search warrant were Department seeking to Lindman fi led the application for available via their law enforcement Oforce Google to reveal the name(s) and the search warrant on February 1 portal,” Lindman wrote in the update. personal information of suspect(s) in and Larson approved it the same day. On May 12, Google issued a statement a local identity fraud case. On May 3, The warrant asked Google to reveal saying that it had turned over only one Detective Dave the “name(s), address(es), telephone record. “We objected to the warrant Lindman of the number(s), dates of birth, social security and signifi cantly narrowed its scope UPDATE Edina police fi led numbers, email addresses, payment to the point that only one record was an update with information, account information, IP produced,” the statement read. “We the district court addresses, and MAC [media access were pleased to resolve this in a way indicating that Google had complied control] addresses of the person(s) that preserves our users’ privacy.” with the warrant, despite the search who requested/completed the search” Neither Edina offi cials nor Google engine’s previous objections. On May 12, of Douglas’ fi rst and last name. In a disclosed what information was turned the Minneapolis Star Tribune reported March 17 story about the warrant, Ars over to the police, according to the Star that Google had turned over only one Technica senior editor David Kravets Tribune on May 12. record. wrote that the warrant was “perhaps In an interview with the Star On Jan. 7, 2017, two individuals the most expansive one we’ve seen Tribune , University of Minnesota law reported to Edina police that $28,500 unconnected to the US national security professor William McGeveran said had been stolen from their Spire apparatus.” Google’s resistance to the warrant Credit Union savings account through On March 17, a spokesperson for led to a positive result. “Google, by a fraudulent transfer. According to Google told the Star Tribune that working to narrow it down and focus Lindman’s application for the search “[Google] will continue to object to it, was responding to what was really warrant, an unknown number of this overreaching request for user data, objectionable,” he said. “[The warrant] suspects transferred the funds from and if needed, will fi ght it in court. We was asking for a broad swath of people’s the victim, who was only identifi ed always push back when we receive searches that was overly inclusive.” as Douglas in the search warrant excessively broad requests for data However, McGeveran expressed application, into a Bank of America about our users.” (For more information concern about similar warrants being account that did not belong to Douglas. on the search warrant and commentary issued in the future and that other search The suspect(s) authorized the transfer from observers, see Minnesota Judge engines may not fi ght as hard to prevent by providing the credit union with Signs Search Warrant Covering the disclosure of personal information. Douglas’s name, date of birth, social Individuals Who Searched a Victim’s “I’m still worried about what would security number, and a fake passport Name on Google in “Minnesota and New happen next time,” he said. “Will another in Douglas’s name. Lindman wrote in York Consider Media Law Questions judge do this in the future?” the application that the photo used Involving the Internet and Privacy” in in the passport was not Douglas, but the Winter/Spring 2017 issue of the Silha SCOTT M EMMEL resembled him and was the fi rst image Bulletin.) SILHA BULLETIN E DITOR displayed under a Google Image search Nevertheless, in a May 3 court of Douglas’s fi rst and last name. The full fi ling, Lindman wrote that Google had

Anti-SLAPP, continued from page 57 However, the court can deny the motion is denied and is found to be special motion if the party that brought “frivolous and solely intended to cause In order for a court to grant the the alleged SLAPP lawsuit “sets forth unnecessary delay,” the court awards special motion to dismiss, the party with particularity the circumstances costs and reasonable attorney’s fees to fi ling the motion must “[make] an initial giving rise to the complaint . . . and the party opposing the motion. showing, by a preponderance of the demonstrates to the court that there is Following its passage in the evidence, that the opposing party’s probable cause, considering all valid Connecticut House of Representatives, complaint, counterclaim or cross claim defenses, that the party will prevail Rep. William Tong (D-Stamford) called is based on the moving party’s exercise on the merits of the [lawsuit].” Like Public Act 17-71 “a bill to protect people of its right of free speech, right to the New Jersey bill, the court awards against ‘libel bullies.’” petition the government, or right of costs and reasonable attorney’s fees association.” to the party fi ling the special motion if SCOTT M EMMEL it is granted. Conversely, if the special SILHA BULLETIN E DITOR

58 New York Times Deputy General Counsel to Deliver 2017 Silha Lecture, “Making Media Law Great Again: The First Amendment in the Time of Trump” hen the President of and concluded, “We did what the law hospital, and the secret fortunes of the United States has allows. We published newsworthy China’s political elite. McCraw also declared the news information about a subject of deep leads the Times ’s crisis management media “the enemy of public concern.” McCraw invited team coordinating the newspaper’s the American people” Trump’s attorneys to present his case response when journalists are Wand has threatened to “open up our in a court of law, assuring them that a kidnapped or detained overseas. In libel laws” to make it easier for the judge would “set him straight.” To date, January 2017, the Times promoted powerful to sue, will the Constitution neither Trump nor his administration McCraw to its Deputy General Counsel. continue to has sued the newspaper, but the He is a graduate of the University of SILHA CENTER protect freedom President continues to threaten and Illinois, Cornell University, and Albany EVENTS of the press? Join deride what he calls “Fake News” Law School. He is also an adjunct us on Monday, organizations, including CNN, NBC, professor at the NYU Law School. In October 2, 2017 CBS, and ABC, along with the “failing” 2010, the New York City Bar awarded at 7:30 p.m. for the 32nd Annual Silha New York Times and The Washington McCraw its Cyrus Vance Award for his Lecture, “Making Media Law Great Post. international pro bono work on behalf Again: The First Amendment in the McCraw is among the nation’s most of free expression. Time of Trump,” featuring David prolifi c advocates for open government. The 32nd Annual Silha Lecture McCraw, Deputy General Counsel of He has litigated more than 35 Freedom begins at 7:30 pm at Cowles Auditorium The New York Times. This event is of Information Act (FOIA) suits, 31 of in the Hubert H. Humphrey Center sponsored by the Silha Center for the them during the Obama administration, on the West Bank of the University Study of Media Ethics and Law at the winning the disclosure of secret records of Minnesota Twin Cities campus Hubbard School of Journalism and on topics ranging from drone strikes in Minneapolis. No reservations Mass Communication at the University in Yemen to the government’s ever- or tickets are required. Parking is of Minnesota. growing surveillance program. Pursuing available in the 19th and 21st Avenue McCraw’s October 2016 letter to information about government activity ramps. Additional information about Donald Trump’s attorney, defending through FOIA requests is essential directions and parking can be found at the Times ’ right to publish an article to providing the public with the www.umn.edu/pts. entitled, “Two Women Say Donald information it needs to know, McCraw The Silha Center for the Study of Trump Touched Them Inappropriately,” wrote in a June 13, 2017 Times essay. Media Ethics and Law is based at the put The Times’ lawyer in the national Unless news organizations are willing Hubbard School of Journalism and spotlight. The letter is available to sue when requests are denied, “FOIA Mass Communication at the University online at: https://www.nytimes.com/ bureaucrats [are permitted] to decide of Minnesota. Silha Center activities, interactive/2016/10/13/us/politics/david- just how secret our government is including the annual Silha Lecture, mccraw-trump-letter.html going to be. That was never part of are made possible by a generous Trump’s attorneys accused the democracy’s plan.” McCraw’s essay endowment from the late Otto Silha and Times of libeling the then-Republican is available online at: https://www. his wife, Helen. For further information, presidential candidate, and demanded nytimes.com/2017/06/13/insider/foia- please contact the Silha Center at that the newspaper retract the freedom-of-information-act-new-york- (612) 625-3421 or [email protected], or article from its website. But McCraw times.html visit www.silha.umn.edu. refused, saying, “Nothing in our article McCraw has worked for the has had the slightest effect on the Times for 15 years, where he has SILHA BULLETIN S TAFF reputation that Mr. Trump, through his provided legal support for many of own words and actions, has already the newspaper’s major investigative created for himself.” He defended stories, including its Pulitzer Prize- Times reporters’ efforts to confi rm winning stories on workers’ deaths at the women’s statement and to give a Texas foundry, the lethal aftermath Trump an opportunity to respond, of Hurricane Katrina at a New Orleans

59 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