A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2012 Supreme Court Strikes Down Stolen Valor Act In an 18-page opinion joined by Chief Justice John Roberts Congress already working on new bills to and Justices Ruth Bader Ginsburg and Sonia Sotomayor, Kennedy wrote that because the Stolen Valor Act restricted outlaw lying about military medals speech based on its content, it was “presumed invalid” and therefore the government bore the burden of proving its n a June 28, 2012 ruling that struck down a federal law constitutionality. Content-based restrictions on speech have known as the “Stolen Valor Act,” U.S. Supreme Court historically only been permitted when they fall into a few Justice Anthony Kennedy wrote that “the remedy categories, including that which advocates and is likely to for speech that is false is speech that is true,” not incite “imminent lawless action,” obscenity, libel, “fi ghting government suppression, even when the speech “can words,” fraud, “true threats,” and “speech presenting some disparage,I or attempt to steal, honor that belongs to those who grave and imminent threat the government has the power fought for this nation in battle.” to prevent,” Kennedy explained. “Absent from those few United States v. Alvarez was a case challenging 18 U.S.C. categories,” Kennedy wrote, “is any general exception to §§704 (b)(c), a federal statute passed in 2006 which made the First Amendment for false statements.” United States v. lying about receiving military awards or medals, especially the Alvarez, 132 S. Ct. 2537 (June 28, 2012) Congressional Medal of Honor, a crime punishable by a fi ne and In defense of the statute, the government cited several up to a year in jail. Kennedy, writing for a plurality of the court, landmark Supreme Court cases to support the proposition wrote that the government failed to meet its burden under that false statements are not constitutionally protected. For the First Amendment to show “a direct causal link between example, in the 1979 case Herbert v. Lando, 441 U.S. 153 the restriction imposed and the injury to be prevented.” In a (1979), the court stated that “spreading false information in and concurrence, Justice Stephen Breyer argued that the court of itself carries no First Amendment credentials,” and in 1964 in should have applied a less stringent level of scrutiny because Garrison v. Louisiana, 379 U.S. 64 (1964), that “the knowingly false statements are less likely to make a valuable contribution false statement and the false statement made with reckless to society than truthful ones, and suggested that a more disregard of the truth do not enjoy constitutional protection.” narrowly drawn statute might be considered constitutional. But Kennedy responded that the government’s argument took Justice Samuel Alito dissented, arguing that the ruling broke “the quoted language far from its proper context.” The cited with “a long line of cases recognizing that the right to free statements “derive from cases discussing [a] legally cognizable speech does not protect false factual statements that infl ict real harm associated with a false statement,” Kennedy wrote; harm and serve no legitimate interest.” The vote was 6 to 3 in although the falsity of the speech was relevant to the analysis favor of striking down the law. in those cases, it was not “determinative.” Kennedy concluded, The case arose in 2007 after defendant Xavier Alvarez was “the Court has never endorsed the categorical rule the charged under the law for falsely introducing himself at a Government advances: that false statements receive no First Claremont, Calif. water district board meeting as a recipient Amendment protection.” of the Medal of Honor as a Marine in 1987. “Lying,” Kennedy Because the statute restricted speech based on its wrote, “was his habit.” Alvarez had also claimed to have been content, the plurality applied a standard described in Turner a member of the Detroit Red Wings hockey team and to have Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) as been married to a Mexican movie star. Kennedy described the “most exacting scrutiny,” under which the government Alvarez’s statements as part of “a pathetic attempt to gain must assert a “compelling interest” advanced by the statute respect that eluded him.” But Alvarez’s false statement claiming and show that the restriction of speech that results from the a military decoration led to charges under the Stolen Valor statute is “actually necessary” to achieve its interest. Kennedy Act, to which Alvarez later pled guilty in federal district court, quoted a passage from the 2011 case Brown v. Entertainment reserving the right to challenge the law’s constitutionality. Merchants Association, 131 S. Ct. 2729, to boil down the In 2010, a panel of the 9th Circuit U.S. Court of Appeals standard: “There must be a direct causal link between the ruled 2 to 1 that the law was unconstitutional; the 9th Circuit restriction imposed and the injury to be prevented.” (For more subsequently denied the government’s request for a rehearing on that case, see “U.S. Supreme Court Strikes Down Ban on by the panel or by the full court. Stolen valor, continued on page 4 Inside This Issue Summer 2012: Volume 17, No. 3

1 Supreme Court Strikes Down Stolen Valor Act 24 More States Pass Anti-Bullying Legislation Cover Story Student Free Speech

3 Scandals, Inquiries and Reform Might Leave U.K. Press 25 Update: Charges Filed in British Phone Hacking Case Freedom Worse for the Wear Media Ethics Director’s Note 26 Mexico Amends Constitution to Protect Journalists and 5 Federal Court Rulings Differ on Branzburg Interpretation, Free Expression Amid Violence Reporter’s Privilege International Journalist’s Privilege 27 Silha Lecture to Feature Famous Food Critics and Mystery 11 Leaks: New Policies Emerge; Congress Gets Involved Guest Government Leaks Silha Center Events

13 Sidebar: WikiLeaks Founder Assange Seeks Asylum in Ecuador Government Leaks

15 First Amendment Challenges to Government Surveillance and Detention Programs Will Proceed Government Surveillance

17 Courts, Federal Government Clarify First Amendment Protection for Recording in Public Freedom of Speech

20 Supreme Court Fleeting Expletives Ruling Leaves Constitutional Questions Unanswered FCC

22 Minnesota Supreme Court Sides with University on Punishment for Facebook Posts Student Free Speech

SILHA CENTER STAFF

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

PATRICK FILE SILHA BULLETIN EDITOR

EMILY MAWER SILHA RESEARCH ASSISTANT

MIKEL J. SPORER SILHA RESEARCH ASSISTANT

ELAINE HARGROVE SILHA CENTER STAFF

2 Scandals, Inquiries, and Reform Might Leave U.K. Press Freedom Worse for the Wear

along the lines of Ofcom, the statutory body that regulates the An inquiry fueled by outrage over press electronic media and is roughly comparable to the Federal misconduct could have unintended Communications Commission. Yet even Leveson himself mused that “One would want to encourage everybody to have consequences their own complaints-handling system and to deal with them effi ciently,” and some newspapers, such as the Guardian uly 24, 2012 was a watershed day for journalists in the and the Observer, already have their own ethics codes and United Kingdom. Lord Justice Brian Leveson, chair readers’ editors to handle these matters. Guardian editor Alan of the public inquiry into the conduct of the British Rusbridger told Leveson that he doubted a new regulatory press that began in November 2011, declared that body would have much impact on his operations at all. But the fact-gathering phase of “the task” was complete, draconian regulations could also undermine investigatory and withJ a promise that he and his team would complete a report watchdog journalism in general. The devil is in the details. and recommendations on future regulation of the print media From a First Amendment-based perspective, the Leveson sometime before the end of the year. Inquiry seems bizarre. Prosecution of journalists — just like The 97 days of hearings and thousands of pages of anyone else — for violation of laws of general applicability like written testimony collected by the Leveson Inquiry exposed those prohibiting phone-hacking, makes sense. But launching disturbing details about too-cozy relationships between the a government inquiry into improper relationships between press, politicians, and police, as well DIRECTOR’S as unethical newsgathering practices, Launching a government inquiry into NOTE including computer hacking, bribery, and intercepting the voicemails of more improper relationships between the than 600 individuals including murdered press and those in power with the teenager Milly Dowler. It prompted calls for legislation that intention of de ning what constitutes would mandate the creation of a new regulator to dictate journalistic standards, adjudicate complaints, and — perhaps journalism “in the public interest” seems — impose fi nes. risky. But the conclusion of this phase of the Leveson Inquiry was knocked off the front pages of London newspapers by the startling announcement that eight suspects, including the press and those in power with the intention of defi ning former editors, reporters, and a private investigator, had been what constitutes journalism “in the public interest” seems formally charged with phone hacking and perverting the course risky. A July 2012 report by Index, a London-based non-profi t of justice. The London Evening Standard suggested that the organization that advocates for free expression around the complexity of the evidence, coupled with the large number of world, noted that “Any government power or role in regulating alleged victims, will turn the prosecutions into a nightmare, the press risks abuses of that power including through chilling requiring restraining orders to prevent prejudicial publicity that effects and potentially through more direct interference.” would undermine the defendants’ rights to a fair trial. Trials The fact that the Prime Minister — whose own former are not expected to begin for a year or more. (For more on the spokesperson Andy Coulson is one of those charged in the charges, see “Update: Charges Filed in British Phone Hacking phone-hacking cases — will make the fi nal determination about Case on page 25 of this issue of the Bulletin.) what will be done with the Leveson recommendations simply The fact that the charges have been fi led at all is itself underscores that danger. remarkable, and may well have been encouraged by the The rise of digital news providers, who would, in the Leveson Inquiry. Media analyst and journalism professor Roy words of Paul Staines, founder of the Guido Fawkes blog, Greenslade observed that “until the Milly Dowler story broke, “cheerfully ignore” any new regulations, suggests that the there has been almost no interest in the hacking scandal.” Leveson report has come too late to have any signifi cant But ironically, now that it appears that prosecutions will go impact on journalism in the United Kingdom. But it could do forward, it is unclear what impact, if any, the Leveson report real harm abroad. Although supporters of a new regulatory will have. regime believe that enforcement in the United Kingdom will be Demand for creation of a new independent regulator measured and circumspect, in a July 17, 2012 letter, the World arose because the newspapers’ self-regulatory body, the Press Freedom Committee reminded Leveson that “whatever Press Complaints Commission (PCC), is widely regarded as recommendations come from your inquiry, worst case usage by an ineffectual toothless tiger in thrall to the publishers who repressive governments seems inevitable.” underwrite its operations and indifferent to complaints from In fact, the best case scenario might well be that Lord the public. During the course of the Inquiry, Leveson heard Justice Leveson issue no report at all. testimony from Lord David Hunt, the current head of the PCC, JANE E. KIRTLEY as well as many others, about ways to beef up its authority to SILHA CENTER DIRECTOR AND provide some form of alternative dispute resolution, perhaps SILHA PROFESSOR OF MEDIA ETHICS AND LAW

3 Stolen valor, continued from page 1 [them] … to a subset of lies where specifi c harm is more likely Violent Video Game Sales to Minors” in the Summer 2011 issue to occur.” The Stolen Valor Act carries no such limitations, of the Silha Bulletin.) Breyer wrote, which might otherwise have allowed it to survive Kennedy wrote that the military medals program has a constitutional scrutiny. He suggested that a more narrowly history stretching back to the American Revolutionary War and tailored statute, such as one that applied only to particularly that the government offered ample evidence of the program’s prestigious medals or to “lies most likely to be harmful” could importance as a means of encouraging public recognition and be considered constitutional under intermediate scrutiny. gratitude and boosting troop morale and “esprit de corps.” In a dissent joined by Justices Antonin Scalia and Clarence However, the government did not offer any evidence that Thomas, Alito argued that the law should be considered a Alvarez’s lie — or any other such lie — has harmed the public’s perception of military awards. Moreover, Kennedy wrote, “the government has not shown, and cannot show, why counterspeech would not “The government has not shown, and COVER STORY suffi ce to achieve its interest.” Kennedy wrote that once it became public that cannot show, why counterspeech would Alvarez’s claim about being a recipient of the Congressional not suf ce to achieve its interest. ... Medal was false, he was ridiculed online and his resignation Indeed, the outrage and contempt from the water board was demanded. Kennedy added that an amicus brief from the Reporters Committee for Freedom of expressed for respondent’s lies can the Press had listed numerous examples of false claimants of serve to reawaken and reinforce the military medals who had been publicly exposed and shamed. public’s respect for the Medal, its “Indeed,” Kennedy wrote, “the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce recipients, and its high purpose.” the public’s respect for the Medal, its recipients, and its high purpose.” — Justice Anthony Kennedy The statute was also not the “least restrictive means among U.S. Supreme Court available, effective alternatives,” Kennedy wrote, which the First Amendment requires when a government regulation extends to protected speech. The government could create a constitutional means to stem “an epidemic of false claims publicly available database of award recipients, for example, about military decorations” which “were undermining our making it “easy to verify and expose false claims.” Kennedy country’s system of military honors and infl icting real harm noted that a private group, the Congressional Medal of Honor on actual medal recipients and their families.” Alito called the Society, maintains such a list. A government feasibility report Stolen Valor Act a “narrow statute that presents no threat to ruled out an award list in 2008. the freedom of speech.” In sum, Kennedy wrote for the court’s plurality that the Alito wrote that the statute was Congress’ response to Stolen Valor Act, particularly because it lacked a requirement “a proliferation of false claims,” noting that, for example, that the government prove specifi c harm that arose from according to The Philadelphia Inquirer in 2004, more than a lie, must be struck down. If upheld, the law “would give 600 Virginia residents falsely claimed to have won the Medal of government a broad censorial power unprecedented in this Honor in a single year, and according to Marine Corps Times Court’s cases or in our constitutional tradition” and “would in 2007, 24 of 49 people interviewed for a Library of Congress endorse government authority to compile a list of subjects oral history project about veterans falsely claimed to have about which false statements are punishable. … The mere received the award. False claimants reportedly lied in order potential for the exercise of that power casts a chill, a chill to receive “lucrative contracts and government benefi ts,” Alito the First Amendment cannot permit if free speech, thought, and wrote. discourse are to remain a foundation of our freedom.” Alito disputed the assertion by Kennedy and Breyer that Breyer, joined by Justice Elena Kagan, concurred in the a government database could thwart false claims, citing case’s outcome and agreed that the Stolen Valor Act was the military’s conclusion that a comprehensive database unconstitutional, but reached that conclusion by a different could not be compiled. The absence of proof for or against analysis. Breyer wrote that because “false statements about peoples’ claims about military awards would only create more easily verifi able facts” do not make a valuable contribution uncertainty about them, Alito wrote, undermining Kennedy’s to public discourse, the court should have applied a lower contention that “counterspeech” offers a better solution than a standard of analysis — “intermediate scrutiny” — under criminal statute. “In addition, a steady stream of stories in the which the statute could be considered constitutional if the media about the exposure of imposters would tend to increase government interest in protecting the military awards program skepticism among members of the public about the entire outweighed the First Amendment harm it caused. awards system. This would only exacerbate the harm that the In contrast to the plurality opinion, Breyer gave greater Stolen Valor Act is meant to prevent,” Alito wrote. weight to the government’s contention “that this Court has Alito also rejected the suggestions by the plurality and frequently said or implied that false factual statements enjoy concurrence that a similar statute might be upheld if it required little First Amendment protection,” but, he added, “these a showing of actual harm, such as a fi nancial loss. “Unless even judicial statements cannot be read to mean ‘no protection a small fi nancial loss — say, a dollar given to a homeless man at all.’” Breyer noted that “many statutes and common falsely claiming to be a decorated veteran — is more important law doctrines make the utterance of certain kinds of false in the eyes of the First Amendment than the damage caused statements unlawful,” such as those prohibiting fraud, to the very integrity of the military awards system, there is no defamation, perjury, and trademark infringement, but all basis for distinguishing between the Stolen Valor Act and the of these legal prohibitions include limitations that “narrow Stolen valor, continued on page 5 4 Federal Court Rulings Differ on Branzburg Interpretation, Reporter’s Privilege

three-judge panel, Judge Sandra Lynch confl ict, including the Ulster Volunteer Questions over online media wrote, “the choice to investigate criminal Force (UVF) and the Provisional IRA. continue to challenge state activity belongs to the government As described by Lynch, “the purpose [of and is not subject to veto by academic the project] was to gather and preserve courts researchers.” the stories of individual participants and The court ruled that the researchers’ provide insight into those who become he question of whether appeal failed for three reasons: because personally engaged in violent confl ict.” journalists or other they could not assert any private rights The Belfast Project’s archives, information gatherers may under a “mutual legal assistance treaty” including recordings of the interviews, refuse to reveal confi dential between the United States and the are held at Boston College’s John sources of information United Kingdom; because federal courts J. Burns Library of Rare Books and remainsT a controversial and unsettled are unable to review the actions of the Special Collections, and are subject to legal issue. In summer 2012, two U.S. Attorney General under the terms what the court described as “extremely federal court rulings offered differing of the treaty; and because, according limited access.” According to the court, interpretations of to the U.S. Supreme Court’s holding in Moloney and Boston College struck JOURNALIST’S the U.S. Supreme Branzburg v. Hayes, 408 U.S. 665 (1972), an agreement that required interview PRIVILEGE Court’s only case the researchers could not claim a First subjects to be given contracts that to directly consider Amendment-based privilege to refuse to guaranteed the confi dentiality of the the question: hand over the recordings. United States records “to the extent American law 1972’s Branzburg v. Hayes. Meanwhile, v. Moloney, No. 11-2511 (1st Cir. July 6, allows.” Many of the 41 interviewees news publishers of various types — 2012) and Moloney v. Holder, No. 12-1159 agreed to speak with researchers with professional and amateur, traditional (1st Cir. July 6, 2012) the guarantee that the recordings and digital — confronted subpoenas for The recordings at issue are part of would be made public only after their confi dential or unpublished information. The Belfast Project, an oral history death, or with their permission. Lynch’s project that includes interviews with July 6 opinion noted that unlike the First Circuit Rejects Academics’ dozens of participants in the Irish agreement between Moloney and Boston Claim of Privilege for Confi dential political, ethnic, and religious confl ict College, the contracts the interviewees IRA Interviews that began in the late 1960s, commonly signed guaranteed secrecy but not On July 6, 2012, the 1st Circuit U.S. known as “The Troubles.” Between 2001 “confi dentiality,” and made no mention Court of Appeals in Boston rejected and 2006, Boston College researchers of the terms being subject to “American two scholars’ attempts to block a led by Irish journalist and author Ed law.” subpoena for audio recordings held in Moloney and historian and former In 2010, Moloney published a book a Boston College archive that Northern Provisional Irish Republican Army titled Voices from the Grave, which Irish police are seeking as part of an (IRA) paramilitary member Anthony was based on interviews with two key investigation into a 1972 abduction and McIntyre interviewed members of rival participants in rival factions who had death. In the opinion of the unanimous paramilitary groups involved in the Privilege, continued on page 6

Stolen valor, continued from page 4 could chill speech that had social value. that will pass constitutional scrutiny.” alternative statutes that the plurality and “The speech punished by the Act is not The press release said the new “Stolen concurrence appear willing to sustain,” only verifi ably false and entirely lacking Valor” bill has 52 bipartisan co-sponsors, Alito wrote. in intrinsic value, but it also fails to serve and its companion bill, S. 1782, has been Alito contended that “time and again, any instrumental purpose that the First introduced in the Senate by Sen. Scott this Court has recognized that as a Amendment might protect,” Alito wrote. Brown (R-Mass.). general matter false factual statements “Tellingly, when asked at oral argument The Associated Press reported July possess no intrinsic First Amendment what truthful speech the Stolen Valor Act 11 that the Defense Department is now value,” and called the plurality opinion might chill, even respondent’s counsel working on creating a searchable digital “a dramatic — and entirely unjustifi ed conceded that the answer is none.” database of award recipients, despite — departure from the sound approach Opponents of the ruling may not their argument in Alvarez that doing taken in past cases.” He cited a long have to wait long for the passage of so would not be feasible. Pentagon list of U.S. Supreme Court statements, a more narrowly drawn law. In May Press Secretary George Little said no common law principles, and federal 2011, Congressman Joe Heck (R-Nev.) fi nal decisions have been made about statutes that have either been ruled introduced H.R. 1775, titled “The Stolen the details of the database. “There are constitutional or never faced a Valor Act of 2011” which punishes false some complexities involved in looking constitutional challenge, examples claims of military awards made “with back into history,” Little said. “We would which he argued “amply demonstrate intent to obtain anything of value.” In a obviously hope to be able to go as far that false statements of fact merit no June 28, 2012 press release, Heck said, back as possible, but we also want there First Amendment protection in their own “now that the Supreme Court has laid to be integrity in the data.” right.” down this marker, I will be pushing for a – PATRICK FILE Alito also rejected the concerns raised vote on a version of the Stolen Valor Act SILHA BULLETIN EDITOR by Kennedy and Breyer that the law 5 Privilege, continued from page 5 on Feb. 2, 2012, appealed the ruling alleged that the subpoenas “violated recently died, Brendan Hughes of the on the August 2011 subpoena. The 1st the Plaintiffs’ constitutional right to Provisional IRA and David Ervine of the Circuit held a hearing April 4, 2012 on freedom of speech, and in particular UVF. An award-winning documentary that appeal but has not yet released its their freedom to impart historically with the same name as the book was decision. important information for the benefi t of also released. In his interview, Hughes The subpoenas have drawn criticism the American public, without the threat claimed that prominent Northern Irish from both sides of the Atlantic. of adverse government reaction.” The politician Gerry Adams was a leading According to The Associated Press (AP) district court granted the government’s fi gure in the Provisional IRA and in 1972 on July 9, Sens. John Kerry (D-Mass.) motion to dismiss the civil suit on Jan. commanded a group to abduct and kill and Charles Schumer (D-N.Y.), among 24, 2012. Jean McConville, a single mother of 10 other American politicians, have urged The 1st Circuit’s July 6 ruling affi rmed children who was alleged to be a British Secretary of State Hillary Clinton and both the district court’s denial of the informant. Adams has denied ever being U.S. Attorney General Eric Holder to researchers’ request to intervene on the a member of the IRA. withdraw the requests, citing concerns subpoena to Boston College as well as its In May and August of 2011, a dismissal of their commissioner appointed by the U.S. civil suit. The court Attorney General under the “U.S.- “The choice to investigate criminal ruled that Moloney U.K. Mutual Legal Assistance Treaty” and McIntyre could and 18 U.S.C. § 3512, a federal statute activity belongs to the government not intervene in which governs “foreign requests for and is not subject to veto by academic the university’s assistance in criminal investigations researchers.” attempt to quash and prosecutions,” issued two separate the subpoenas or subpoenas for recordings held in the bring a civil suit Belfast Project collection. The subpoenas — Judge Sandra Lynch against Holder were a response to a Northern Irish 1st Circuit U.S. Court of Appeals for two central police request for American assistance reasons. First, in its investigation into the McConville Lynch wrote that abduction and death. The fi rst subpoena about the tenuousness of the peace the mutual legal assistance agreement did not specifi cally name McConville, agreement struck in 1998 known as the between the United States and Britain demanding “recordings, written “Good Friday Agreement.” The AP also forecloses the researchers’ claims documents, written notes, and computer reported that Moloney and McIntyre because it states that its “provisions records of interviews” made with Hughes have expressed concerns that they and … shall not give rise to a right on the and former Provisional IRA member other Belfast Project researchers could part of any private person to obtain, Dolours Price, who is still living. The be branded as informants and face suppress, or exclude any evidence, or to second subpoena demanded “recordings “the real risk of physical harm” if the impede the execution of a request.” The of ‘any and all interviews containing interviews are turned over to police. On court also observed that a report by the information about the abduction and July 4, 2011, The Guardian of London Senate Committee on Foreign Relations death of Mrs. Jean McConville,’ along reported that an independent Northern accompanying the treaty “confi rms” with related transcripts, records, and Irish commission investigating the the court’s interpretation: “a person other materials.” cases of other “disappeared” alleged from whom records are sought may not Boston College complied with the collaborators expressed concerns that oppose the execution of the request by request for the Hughes documents the subpoenas could stall their efforts claiming that it does not comply with the because it no longer considered them by making other former IRA members Treaty’s formal requirements.” Moreover, confi dential after his death, but fi led a reluctant to speak out. the court ruled that, under the terms of motion asking the U.S. District Court for The subject of the July 6, 2012 ruling the treaty, federal courts do not have the District of Massachusetts to quash by the 1st Circuit was Moloney and jurisdiction to review the decisions of the subpoenas for the other materials McIntyre’s attempt to intervene on the the attorney general in complying with or, in the alternative, allow for a review subpoenas against Boston College. In requests for legal assistance. of the materials in order to limit the initially denying Boston College’s motion The court also ruled that Moloney amount of information released. After to quash the subpoenas on Dec. 16, 2011, and McIntyre had no right under the an in camera review of the materials on the U.S. District Court for the District First Amendment to keep the interview Dec. 27, 2011, the district court ordered of Massachusetts also denied the two materials confi dential. “We affi rm the the remaining materials subject to the researchers’ request to intervene in the dismissal, as we are required to do May subpoena released, and on Jan. case. Moloney and McIntyre appealed by Branzburg v. Hayes, 408 U.S. 665 20, 2012, ordered the release of some the district court ruling to the 1st Circuit (1972),” Lynch wrote. In Branzburg, of the materials subject to the August and also fi led a separate civil suit against a divided U.S. Supreme Court ruled subpoena. Order, In re: Request from Attorney General Holder, claiming that requiring “newsmen” to appear the U.K., No. 11-91078 (D. Mass. Dec. that Holder violated the Mutual Legal and testify before grand juries about 27, 2011) and Findings and Order, In re: Assistance Treaty because he did not confi dential sources or information Request from the U.K., No. 11-91078 (D. consider the public policy ramifi cations did not violate the First Amendment’s Mass. Jan. 20, 2012) of assisting with a British investigation guarantees of freedoms of speech and Boston College did not appeal the that could undermine the peace press. In the decades since, federal district court’s order on the subpoena agreement or he improperly discounted appeals courts have varied in their for the Price interview materials, but those ramifi cations. Further, the suit applications of the Branzburg decision.

6 Lynch wrote that the 1st Circuit interest in the reporters to whom the fruits of the Appellants’ investigative recognized the “possibility” that “a they had given the information under labors,” Torruella wrote, citing an oft- reporter’s privilege of constitutional or a promise of confi dentiality. These repeated qualifying statement in White’s common law dimensions” could exist in insuffi cient interests included the fear, Branzburg opinion: “We do not question United States v. LaRouche Campaign, as here, that disclosure might ‘threaten the signifi cance of free speech, press, or 841 F.2d 1176 (1st Cir. 1988) and ruled in their job security or personal safety or assembly to the country’s welfare. Nor is Cusumano v. Microsoft Corp., 162 F.3d that it will simply result in dishonor or it suggested that news gathering does not 708 (1st Cir. 1998) that “academicians embarrassment,’” Lynch wrote. “If the qualify for First Amendment protection; engaged in pre-publication research reporters’ interests were insuffi cient in without some protection for seeking out should be accorded protection Branzburg, the academic researchers’ the news, freedom of the press could be commensurate to that which the law interests necessarily are insuffi cient eviscerated.” provides for journalists.” However, the here.” Lynch wrote that the researchers’ Torruella wrote, “it is one thing to 1st Circuit has not recognized a privilege “chilling effect” concerns “amount to say that the high court has considered in the context of a criminal case; the an argument that unless confi dentiality competing interests and determined Cusumano case “dealt with claims of that information a nondisclosure privilege in civil cases, gatherers (here, in which private parties both sought “Law enforcement agencies, which academic and opposed disclosure; as a result, the researchers) may government and public’s strong interest cannot escape culpability for Northern not refuse to turn in investigation of crime was not an Ireland’s ‘dirty war,’ are now trying to over material issue.” Lynch wrote that Branzburg they acquired was “closer … than any of our circuit shape society’s knowledge of that upon a premise precedent,” in which the Supreme Court war by seeking to monopolize control of confi dentiality “held that the fact that disclosure of over what unfolds from the past while when these are the materials sought by a subpoena in requested via criminal proceedings would result in the simultaneously relegating the role of government breaking of a promise of confi dentiality academic and journalistic researchers .” subpoena by reporters is not by itself a legally in criminal cognizable First Amendment or common — Anthony McIntyre proceedings. It is law injury.” entirely another Historian and former Provisional IRA member Lynch wrote that the fact that the to eagerly fail to Belfast Project case did not involve a recognize that the grand jury request like Branzburg made could be promised and that promise First Amendment affords the Appellants no difference in the analysis. “The law upheld by the courts in defense to a measure of protection … in order not enforcement interest here —a criminal criminal subpoenas, the research to undermine their ability to gather and investigation by a foreign sovereign project will be less effective,” a risk that disseminate information.” advanced through treaty obligations Branzburg took into account and also According to the BBC on July 9, the — is arguably even stronger than the dismissed. McConville family “welcome[d]” the government’s interest in Branzburg.” Lynch wrote that “this situation court’s ruling. In a television interview, Lynch quoted Justice Byron White’s was clearly avoidable” because Jean McConville’s son Michael said the majority opinion in Branzburg that the researchers wrongly gave the people involved in the murder of his “the preference for anonymity of those interviewees the impression that their mother should be “named and shamed,” confi dential informants involved in interviews could not be subject to a adding, “if something happens to them actual criminal conduct is presumably a subpoena or other court order. “Even if that will be good enough for our family.” product of their desire to escape criminal participants had been made aware of the In a July 10 commentary in The prosecution, and this preference, while limits of any representation about non- Guardian, McIntyre called the understandable, is hardly deserving of disclosure, Moloney and McIntyre had subpoenas part of “a fi shing expedition constitutional protection.” White added, no First Amendment basis to challenge through the US justice department that “it is obvious that agreements to conceal the subpoenas,” Lynch wrote, because, aimed at plundering the fruits of that information relevant to commission of as White wrote in Branzburg, “the mere research stored in the Boston College crime have very little to recommend fact that a communication was made in archive” and questioned why British them from the standpoint of public express confi dence … does not create authorities had not been equally zealous policy.” a privilege. … No pledge of privacy nor in allowing private investigations Lynch also dismissed the plaintiffs’ oath of secrecy can avail against demand into unsolved murders of alleged IRA concerns about their personal safety, for the truth in a court of justice.” members. “Ultimately, law enforcement the safety of the interviewees, the In a concurrence, Judge Juan agencies, which cannot escape political ramifi cations of the premature Torruella wrote that the 1st Circuit’s culpability for Northern Ireland’s ‘dirty release of the interview materials, and decision should be viewed narrowly. war,’ are now trying to shape society’s the risk of a harmful chilling effect on “While the effect of Branzburg and its knowledge of that war by seeking to future Belfast Project interviewees or progeny is to forestall the result that the monopolize control over what unfolds similar research projects, writing that Appellants wish to see occur, none of from the past while simultaneously Branzburg also addressed each of those those cases supports the very different relegating the role of academic and problems. In that case, “the interests proposition, apparently espoused by the journalistic researchers,” McIntyre in confi dentiality of … informants did majority, that the First Amendment does wrote. not give rise to a First Amendment not provide some degree of protection to Privilege, continued on page 8 7 Privilege, continued from page 7 some circumstances” and “advocated either denied involvement or could not balancing the freedom of the press recall whether they discussed Keefe Minnesota District Court Recognizes against the obligation of citizens to with Chanen. Simply because Keefe is Constitutional Reporter’s Privilege provide testimony.” Relying on that dissatisfi ed with those answers does On May 25, 2012, the U.S. District concurrence, Rau wrote, “most federal not demonstrate an exhaustion of Court for the District of Minnesota courts grant a qualifi ed privilege for all reasonable alternative means for quashed a subpoena demanding the journalists against compelled disclosure establishing the identity of Chanen’s testimony of a Minneapolis Star Tribune of information gathered in the news- sources.” reporter as part of a civil lawsuit, citing making process.” Keefe v. City of Georgia Court Quashes Subpoena a qualifi ed privilege rooted in the U.S. Minneapolis v. Star Tribune, 0:09-cv- for Anonymous Commenters’ Supreme Court’s ruling in Branzburg v. 02941-DSD/SER (D. Minn. May 25, 2012) Identities Hayes. Although “the existence of a qualifi ed State courts in Georgia and Idaho The subpoena arose in the context of reporter’s privilege is an open question” considered whether newspapers could a dispute between Minneapolis police in the 8th Circuit, Rau wrote, the District refuse to disclose the identities of offi cer Michael Patrick Keefe and the city of Minnesota recognized a privilege in commenters on their websites when of Minneapolis. Keefe sued the city and J.J.C. v. Fridell, 165 F.R.D. 513 (D. Minn. government offi cials demanded they its police chief, Timothy Dolan, claiming 1995), establishing a “a three-pronged do so as part of libel suits. In Newton he was the victim of “a tacit agreement test” for determining whether a reporter’s County, Ga., a Superior Court judge ruled and conspiracy resulting in adverse testimony must be compelled. According on June 28, 2012 that the state’s “shield employment actions and harassment to the test, “a requesting party may law” protected a newspaper from a libel in violation of his statutory, civil, and overcome the privilege if he or she can plaintiff’s subpoena for the identities of constitutional rights” when he was demonstrate that the information sought eight commenters on the newspaper’s suspended, demoted, and removed from is: (1) ‘critical to the maintenance or the website. In April 2012, Alcovy High a joint police department/FBI task force. heart of the claim,’ (2) ‘highly material School Principal LaQuanda Carpenter Keefe’s claims in the federal lawsuit and relevant,’ and (3) ‘unobtainable from demanded that the Rockdale Citizen included common law and statutory other sources.’” newspaper turn over the identifying whistleblower claims, reprisal, invasion Rau ruled that Keefe failed to meet information as part of a libel suit she of privacy, and intentional infl iction of any of the three prongs. The sources of was preparing against the commenters, emotional distress. Chanen’s two articles were not “critical” who had posted disparaging remarks As part of the discovery process to the claims, Rau wrote, because about her job performance on the for his lawsuit, Keefe subpoenaed “by Keefe’s own admission, these newspaper website in January 2011. Star Tribune reporter David Chanen, ‘leaks’ were ‘part of a wider pattern of Carpenter demanded that the newspaper demanding that Chanen reveal sources retaliation and reprisal.’” Therefore the surrender the names, addresses, and for two articles about him: one published lack of information about them “will telephone numbers associated with the in January 2008 citing a letter from not critically harm” his case. Secondly, pseudonymous commenters; documents the city attorney’s offi ce “recently Rau found that Keefe’s demand for the reproducing all of the comments they made public” which accused Keefe information was based on “conjecture” had posted since Jan. 1, 2011; and all of professional misconduct, and one and “speculation” and therefore could server logs, IP address logs, account published in May 2009 that referenced an not be considered “highly material information, account access records and internal investigation resulting in Keefe’s and relevant.” Rau wrote that Keefe application or registration forms related suspension and relying on unnamed assumed that Chanen’s source was “at to those eight commenters. “sources.” In his complaint, Keefe alleged least one of the fi ve offi cers he suspects” Judge Eugene Benton quashed the that Dolan and other members of the and had already deposed. Further, subpoena in a June 28, 2012 order, police force, worried about his testimony Keefe presupposed that Chanen would relying on the Georgia journalists’ at an upcoming trial and seeking to remember which offi cers told him shield law as well as a common law test discredit him, “leaked” information to specifi c pieces of information. Keefe also for deciding when anonymous online Chanen for the articles. In his May 25 argued that he would use the information speakers should be unmasked. Georgia’s order, Federal Magistrate Judge Steven provided by Chanen to “verify” shield law, O.C.G.A. § 24-9-30, extends Rau quashed the subpoena, fi nding that information contained in the depositions, a qualifi ed privilege to “any person, “Chanen’s qualifi ed reporter’s privilege but Rau countered that claim: “it is plain company, or other entity engaged in under the First Amendment outweighs that [Keefe] seeks this information to the gathering or dissemination of news Keefe’s curiosity.” obtain potential impeachment evidence” for the public through a newspaper, In stark contrast to the rulings in the that could undermine the credibility book, magazine, or radio or television Belfast Project cases, which considered of the offi cers’ depositions. Rau cited broadcast,” allowing that person to Branzburg to be a broad rejection of several federal district court decisions refuse to disclose “any information, a reporter’s privilege, Rau stated that for the proposition that “the mere document, or item obtained or prepared Branzburg “confronted the narrow possibility of impeachment evidence in the gathering or dissemination issue of whether reporters may be is an insuffi cient reason to vitiate the of news.” In order to overcome the subpoenaed to testify in criminal grand qualifi ed privilege.” privilege, the party demanding the jury proceedings.” Moreover, although Lastly, Rau wrote that the information information must show that it “(1) is the U.S. Supreme Court found that the Keefe subpoenaed may be available from material and relevant; (2) cannot be First Amendment was not the source other sources. “In his efforts to uncover reasonably obtained by alternative of such a privilege, Rau wrote, the Chanen’s sources, Keefe deposed only means; and (3) is necessary to the proper concurrence of Justice Lewis Powell in the fi ve MPD offi cers he alleges ‘leaked’ preparation or presentation of the case that case “recognized that a qualifi ed information,” Rau wrote. “The offi cers reporter’s privilege may be proper in 8 of a party seeking the information, methods as required by the Georgia 339 F.3d 530 (7th Cir. 2003), a case in document, or item.” Shield Law, and assuming that Plaintiff which the 7th Circuit ruled that a proper Carpenter argued that the state gives proper notice as required by interpretation of the Branzburg decision shield law did not apply because the Mobilisa, the Court will then move to fi nds no reporter’s privilege under the information she sought was not the the second step of Mobilisa to determine First Amendment and that courts had identities of confi dential sources, but whether Plaintiff’s cause of action could “rather surprisingly” relied on the Powell Benton disagreed, ruling that Georgia survive a motion for summary judgment.” concurrence for recognizing a qualifi ed case law supports a broad interpretation Benton quashed the subpoena “without privilege. (See “Reporters’ Privilege of the phrase “information … obtained prejudice to Plaintiff’s right to reissue a Update” in the Fall 2003 issue of the or prepared in the gathering or subpoena.” Silha Bulletin for more on McKevitt v. dissemination of news,” including the Pallasch.) identities of anonymous commenters Idaho Court: No Privilege for Luster further ruled that the state level on the Rockdale Citizen site. Benton Anonymous Commenters privilege did not apply in the Spokesman- ruled that the subpoena must be quashed On July 10, Idaho First Judicial Review case because Dave Oliveria, the because Carpenter had failed to prove District Judge John Luster ruled that reporter and columnist who wrote the that the identities “cannot be reasonably the Spokane, Wash. Spokesman- blog post where the comments were obtained by alternative means” under the Review must hand over information posted, “was not acting as a reporter second qualifying element of the shield identifying one website commenter, but when the statements were made, but law. Carpenter v. Does, CV-2012-895-5 quashed the subpoena for information instead was acting as a facilitator of (Super. Ct. Ga. June 28, 2012) about two others. In “a matter of fi rst commentary and administrator of the Benton also addressed the impression for Idaho state courts,” Blog.” newspaper’s argument that even if the Luster ruled that Kootenai County The Spokesman Review argued that, shield law did not apply, standards Republican Chairwoman Tina Jacobson’s failing the recognition of a reporter’s developed in recent case law around demand for the identity of commenter privilege, the subpoena should be the country on anonymous online “almostinnocentbystander” met the quashed because Jacobson failed to meet speech would require Carpenter to three requirements of a test for deciding the test for forcing the disclosure of the notify the anonymous speakers that whether such subpoenas should be identity of anonymous online speakers their identities were sought and give upheld that was similar to the Mobilisa that was outlined in the cases Dendrite them reasonable time to respond to the standard applied in the Rockdale Citizen International, Inc. v. Doe Number 3, subpoena. Benton ruled that a standard case. Jacobson v. Doe, CV-2012-0003098 775 A.2d 756 (N.J. Super. Ct. App. Div. devised by the Arizona Court of Appeals (1st Jud. Dist. Idaho July 10) 2001) and Doe v. Cahill, 884 A.2d 451 in Mobilisa, Inc. v. John Doe 1 and Jacobson sought the identities of the (Del. 2005). Instead, Luster applied The Suggestion Box, Inc. 170 P.3d 712 three commenters in order to sue them a test devised by the Federal District (Ct. App. Ariz. 2007) was most suited to for defamation for comments posted Court for the District of Idaho, which he the Rockdale Citizen case. Under the Feb. 14, 2012, which speculated about wrote “accounts for all the elements of Mobilisa standard, “In order to compel whether she had stolen money from the the Cahill or Dendrite tests.” In SI03 v. discovery of an anonymous internet Kootenai County Republican Central Bodybuilding.com, CV-07-6311 (D. Idaho speaker’s identity, the requesting party Committee. 2008) the court ruled that “a court may must show (1) the speaker has been The Spokesman-Review argued that order the disclosure of an anonymous given adequate notice and a reasonable the commenters’ identities were subject poster’s identity if a plaintiff: (1) makes opportunity to respond to the discovery to a privilege under the First Amendment reasonable efforts to notify the defendant request; (2) the requesting party’s cause as well as Article 1, Section 9 of the of a subpoenas or application for an of action could survive a motion for Idaho Constitution. Although Idaho has order of disclosure; … (2) demonstrates summary judgment on elements not no shield law, the state supreme court that it would survive a summary dependent on the speaker’s identity; and recognized a qualifi ed privilege in In Re judgment motion … and (3) the court (3) a balance of the parties’ competing Contempt of Wright, 700 P.2d 40 (Idaho must balance the anonymous poster’s interests favors disclosure.” (For more 1985) for “the identities of confi dential First Amendment right of anonymous on the developing judicial standards for sources that provide the reporters with free speech against the strength of revealing anonymous online speakers, information and assist in the task of the plaintiff’s case and the necessity see “Online Anonymity Continues to gathering and reporting news.” of the disclosure to allow plaintiff to Challenge Courts, Plaintiffs” in the Luster ruled that “while there is some proceed.” In his analysis, Luster found Summer 2010 issue of the Silha Bulletin, discussion amongst federal appellate that because the Spokesman Review had and “Subpoenas to Unmask Anonymous courts that the Branzburg decision was written about Jacobson’s subpoena and Internet Users Continue to Challenge limited only to that case … the Ninth the newspaper’s motion to quash and News Media and Courts” in the 2009 Circuit has recognized that Branzburg because Jacobson had posted a notice issue.) limits the ability of federal circuit courts on the Spokesman Review website about Benton ruled that Carpenter had not to recognize even a qualifi ed reporter’s the lawsuit, she had satisfi ed the fi rst met the fi rst prong of the test requiring privilege. … Thus, the First Amendment part of the test. that she give the commenters adequate does not provide for a reporter’s As to the summary judgment part of notice and an opportunity to respond privilege.” Luster cited In Re Grand Jury the test, Luster ruled that Jacobson had to the subpoena. However, he left the Proceedings, 5 F.3d 397 (9th Cir. 1993), shown that she was likely to succeed possibility open that the identities could a case in which the 9th Circuit rejected on a claim of libel per se against the be disclosed: “Assuming that Plaintiff a Ph.D. student’s claim of a “scholar’s commenter “almostinnocentbystander,” is unable to obtain the identity of the privilege” coextensive with a reporter’s who “specifi cally used the word anonymous speakers by reasonable privilege, and McKevitt v. Pallasch, ‘embezzlement’ and specifi cally noted the Privilege, continued on page 10 9 Privilege, continued from page 9 Coeur d’Alene Press that she was the Texas Civil Practices & Remedies Code Plaintiff’s profession as a ‘bookkeeper,’ commenter “almostinnocentbystander.” §22.021-22.027. thereby subjecting the Plaintiff to According to the AP, Spokesman-Review Loftin denied Wilson’s request, professional disgrace and negatively editor Gary Graham said the decision fi nding that Wilson could not claim the affecting her reputation in her personal to comply was not a result of Cook’s qualifi ed privilege because she did meet business.” revelation. “The decision not to appeal the defi nition of “journalist” under the Moreover, because Jacobson would didn’t really have anything to do with shield law. Moreover, even if she could qualify as a public fi gure because of her whether the commenter planned to go be considered a journalist, Loftin ruled, role with “a large political organization,” public,” Graham said. “Our attorneys Range had satisfi ed the standard set out Luster wrote that she would need to advised us that we were extremely by the law to make a “clear and specifi c unlikely to succeed with an appeal.” showing” that the subpoena was not show that “almostinnocentbystander” unreasonable and that the information defamed her with “actual malice,” a Online Publisher Cannot Claim could not be obtained from other standard established in the landmark Texas Shield sources. Lipsky v. Range, CV11-0798 U.S. Supreme Court case New York On May 15, 2012, a District Court (Tex. Dist. Ct. Parker Co. May 15, 2012) Times v. Sullivan 376 U.S. 254 (1964), Judge in Weatherford, Texas ruled The Texas shield law defi nes which requires a “clear and convincing” that the publisher of an environmental “journalist” as “a person … who for showing that the commenter knew website could not claim the protection of a substantial portion of the person’s the statement was false or recklessly the state’s shield law because she “failed livelihood or for substantial fi nancial disregarded whether it was true or false. to prove that she is a journalist or that gain, gathers, compiles, prepares, Luster ruled that Jacobson had met her employer … is a news medium.” collects, photographs, records, writes, the “actual malice standard” because Sharon Wilson publishes a blog edits, reports, investigates, processes, an independent investigation of the called “TXSharon Blue Daze Drilling or publishes news or information that Kootenai County Republican Central Reform” on which she posts information is disseminated by a news medium Committee’s fi nances had shown that it and links related to oil and gas or communication service provider.” was missing no money, thus showing that drilling that is generally critical of According to Loftin’s order, Wilson does the statement was false, and because the corporate interests of the oil and not make a substantial livelihood from the commenter recanted the accusation gas industry. As part of a discovery her blog; she “did not create [it] for the in a later comment on the same blog, request in a civil lawsuit between purpose of making money,” and although supporting the claim that the commenter Range Resources Corporation and she works part time as an organizer acted recklessly, “engag[ing] in a Steven Lipsky, a homeowner Range and advocate for an environmental purposeful avoidance of the truth.” had accused of attempting to harm its accountability group called Earthworks, On the other hand, Luster ruled reputation, Range subpoenaed Wilson “there is no evidence that a substantial that because Jacobson sought the two demanding information that included her portion of Wilson’s salary is attributable other commenters’ identities in order correspondence with Lipsky as well as to her activity regarding her blog.” to call them as witnesses rather than to with government agencies including the Moreover, Loftin wrote, “Wilson has no make them defendants in her libel suit, Environmental Protection Agency (EPA), background as a journalist,” she “does summary judgment analysis could not Department of Justice, and Government not have any education or training in the apply, and therefore the subpoena for Accountability Offi ce (GAO). fi eld of journalism. … Instead, Wilson their identities must be quashed. In January 2011, Lipsky sent Wilson a claims that she is an activist.” Loftin In balancing the commenters’ First video clip via a submission form on her added that “Wilson displays none of Amendment rights of anonymous free website. The video purported to show the characteristics of the journalism speech against Jacobson’s case, the last fl ames pouring out of a garden hose profession” as defi ned by the Society prong of the test, Luster observed that attached to a well on Lipsky’s property, of Professional Journalists and the the libel case could not proceed without which he claimed was the result of Project for Excellence in Journalism. the identity of the plaintiff. Moreover, Range’s 2009 hydraulic fracturing Earthworks, Wilson’s part time employer, although the right of anonymous speech operations there. Wilson posted the video “is not engaged in journalism [and] is is “a sacred and inviolate right enjoyed to her YouTube channel “TXSharon” not a news media organization” and by all three individuals … this Court with the title “Hydraulic Fracturing turns therefore “is not a ‘news medium’ as notes that the United States Supreme gardenhose to fl amethrower.” defi ned by Section 22.021(3).” Court, since 1942 [in Chaplinsky v. State Lipsky also sued Range, alleging the Loftin further ruled that, even if of New Hampshire, 315 U.S. 568 (1942)], company had introduced methane into Wilson did qualify as a journalist under has stated that the First Amendment his water supply, and Range in turn sued the shield law, Range had satisfi ed the does not protect defamatory speech.” Lipsky, accusing him and environmental law’s requirement that it “make[] a The Idaho State Constitution also states consultant Alisa Rich of defamation. clear and convincing showing” that it that “persons who write, publish, and According to Judge Trey Loftin of has exhausted “reasonable efforts … speak are ‘responsible for the abuse Texas’ 43 Judicial District, “Wilson to obtain the information” elsewhere; of that privilege,’” Luster wrote. “Thus is a central character in the Lipskys’ that “the subpoena is not overbroad, while the individuals are entitled to the and Rich’s conspiracy to defame and unreasonable, or oppressive;” that right of anonymous free speech, this disparage Range.” Range’s subpoena “reasonable and timely notice” was right is clearly limited when abused.” demanded that Wilson turn over copies provided to Wilson; that Range’s On July 24, the AP reported that the of emails between her, Lipsky, Rich, and interest “outweighs the public interest Spokesman-Review decided to comply government offi cials. Wilson requested in gathering and dissemination of news, with the subpoena on July 23. That same that the subpoena be quashed under the including the concerns of the journalist;” day, former Republican campaign worker Texas journalist’s shield law, codifi ed at Linda Cook of Rathdrum, Idaho told the that the subpoena was not aimed at Privilege, continued on page 11 10 Leaks: New Policies Emerge; Congress Gets Involved lthough the Obama “top down” approach for monitoring and cases” even when Attorney General administration did not add investigating unauthorized leaks to its Eric Holder decides not to prosecute to the list of six prosecutions existing approach, which “requires that the alleged leakers. The independent it is pursuing against leakers individuals report potential violations up investigations will “ensure that selected of government secrets in the chain of command.” unauthorized disclosure cases suitable Athe summer of 2012, the White House The new ODNI directive will add for administrative investigations are not continued to defend the unprecedented a question to a routine polygraph closed prematurely,” the ODNI said. crackdown amid claims that some examination that intelligence workers The Defense Department initiative, leaks have in seven federal intelligence agencies announced July 19, includes a plan to GOVERNMENT been politically must take, asking about “unauthorized monitor news media for unauthorized LEAKS motivated. disclosure of classifi ed information.” The disclosures. According to a Defense Military and seven agencies that administer the lie Department press release, “the intelligence offi cials announced new detector tests are the Central Intelligence Undersecretary of Defense for policies to discourage and punish leaks, Agency (CIA), Defense Intelligence Intelligence, in consultation with the and members of Congress weighed in Agency (DIA), Department of Energy Assistant Secretary for Public Affairs, with legislative proposals and political (DOE), Federal Bureau of Investigation will monitor all major, national level rhetoric, all while three ongoing (FBI), National Geospatial-Intelligence media reporting for unauthorized prosecutions inched forward. Agency (NGA), National Reconnaissance disclosures of defense department Offi ce (NRO) and National Security classifi ed information.” The new “top New Policies for Intelligence Agency (NSA). CBS News reported down” monitoring, the Pentagon said, Agencies, Military June 26 that polygraph tests are given will complement existing “bottom On June 25, 2012, the Offi ce of the when new employees join the agencies up” practices that require leaks to Director of National Intelligence (ODNI) and when security clearances are be reported to security offi cers for announced in a press release that it renewed. The press release stated that preliminary review and to the Under was taking new steps to “help deter Director of National Intelligence James Secretary of Defense for Intelligence, and detect potential leakers within the Clapper will also ask the specially “who in coordination with the General Intelligence Community,” and on July 19 assigned Intelligence Community Counsel, may refer matters to the a Department of Defense press release Inspector General to investigate Department of Justice for potential announced the U.S. military was adding a “selected unauthorized disclosure prosecution.” Leaks, continued on page 12

Privilege, continued from page 10 “peripheral, nonessential, or speculative also concluded that the subpoena was to the claims in the litigation and the information;” and that the information is “reasonably tailored” to the relevant litigants,” as opposed to the original “relevant,” “material,” and “essential” to facts, parties, and claims in the case. subpoena, which “also included the maintenance of Range’s claim against As to balancing between the “fair communications between Sharon and Lipsky and Rich. administration of justice” and “the anyone else in the world pertaining to Loftin concluded that because free fl ow of information [and] a free those same issues,” McLain said. Wilson the EPA had stated that it would and active press,” Loftin ruled that also will be deposed on August 6, McLain treat Range’s information requests as Wilson “does not observe rules of ethics said; “the deposition, in theory, will be Freedom of Information Act (FOIA) applicable to those who engage in limited to what Sharon knows about the requests, “it will probably take an journalism as a profession … does not lawsuit which, ironically, is precious excessive amount of time for Range to claim to be objective in her blogging little.” obtain the requested documents and … and considers herself to be in a In late May 2012, Loftin was criticized communications between EPA and kind of war against the oil and gas for campaign mailers he released Wilson” that way, making “Wilson … industry,” adding “given Wilson’s lack of suggesting that his rulings in landowners’ the only reasonably available source independence, Wilson is not a member suits against Range had caused of recovery.” Loftin ruled that the of a ‘free’ press.” The judge concluded “Obama’s EPA” to “back down” against same standard applied for requested that “even if it were assumed that Wilson the corporation. According to May 25 communications between Wilson disseminated ‘news,’ Range’s, and the Bloomberg News story, the fl iers could and the U.S. Department of Justice public’s, interests in discovering the truth violate Texas’ campaign rules for judicial and the GAO. As for communications in the fair administration of justice are races by commenting on a pending case. Range requested between Wilson and substantial and outweigh any interest On June 8, Bloomberg reported that other individuals, Loftin ruled that the in the gathering and dissemination of Loftin recused himself from the civil subpoena was reasonable because “it news.” case. Loftin wrote to an administrative is not reasonable to require Range to Wilson’s attorney J. Scott McLain judge, “while I know that I have been a incur the time and expense of pursuing told the Bulletin July 18 that she later fair and impartial jurist, I am concerned the discovery of requested documents complied with a narrowed discovery that appearances in this case have and communications with Wilson from request, which asked for “any become its own story [sic].” persons residing or having their principal communications between Sharon and place of business outside the 150-mile a list of specifi c 3rd parties pertaining – PATRICK FILE subpoena range of this court.” Loftin SILHA BULLETIN EDITOR 11 Leaks, continued from page 11 The six cases have involved leaks to information and to keep records of the media from the CIA, U.S. military, those disclosures, and would require The Pentagon said the media U.S. State Department, and NSA, and, the Director of National Intelligence monitoring initiative joins other as Politico.com reporter Josh Gerstein to provide Congress with a detailed measures adopted over recent months has written, is double the number of plan for investigating unauthorized to safeguard classifi ed information, government leak prosecutions during disclosures. They would also prohibit including new training and credentialing the entire 40 years prior to the present current and recently retired intelligence for people authorized to handle classifi ed administration. The most recent charges agency offi cials from consulting with information, a near ban on the use of came against former CIA offi cer John the media on intelligence matters “removable storage like DVDs, CDs, Kiriakou on Jan. 23, 2012. Kiriakou and would authorize only top agency and memory sticks” to copy or transfer was charged with repeated leaks of offi cials or public affairs offi cers to classifi ed information, and easier classifi ed information to journalists, give “background” or “off-the-record” monitoring and reporting of classifi ed briefi ngs to the information releases through Defense media. Under the Department computer networks. “Espionage today is a lot different from bill, individuals News media, in reporting on the found to have new Pentagon initiative, noted that espionage during the rst world war.” made unauthorized it was announced following several disclosures high-profi le news reports that relied of classifi ed on leaks of classifi ed information — Rep. Jim Sensenbrenner (R-Wis.) House Judiciary Committee information could including New York Times reports be stripped of their about President Barack Obama’s use security clearances of drones, a “secret kill list” of al-Qaida including the name of a covert CIA as well as their federal government members, and American intelligence offi cer and information revealing the role pensions. agencies’ cyber attacks against Iranian of another CIA employee in classifi ed Critics said the bill was harsh and nuclear enrichment facilities; and an activities. (For more on the Kiriakou ineffective. In a July 31 Politico.com Associated Press (AP) report that a prosecution, as well as others, see article, Jane Kirtley, director of the foiled Yemeni suicide bombing aboard a “The Obama Administration Takes on Silha Center and professor of media passenger plane involved a CIA double Government Leakers; Transparency May ethics and law at the University of agent. According to Reuters on July be a Casualty” in the Winter/Spring 2012 Minnesota, said, “the fact [Congress 19, the Pentagon announced its new issue of the Silha Bulletin, as well as would] be targeting lower-level people initiative hours after the conclusion of a “Open Government Advocates Criticize for this kind of really draconian control closed-door hearing held by the House Obama’s Prosecution of Leakers” in the is not only disappointing but ultimately of Representatives Armed Services Winter/Spring 2011 issue.) ineffectual. Maybe the purpose of all this

Committee that included Defense is to put fear of God in people who are Congress Considers Legislative Secretary Leon Panetta, Army General potential sources for the media. … Just Options Martin Dempsey, and Pentagon General the fact that a congressional committee Federal legislators have taken a Counsel Jeh Johnson. Committee Chair is contemplating it is enough to send larger role in considering how leaks Rep. Buck McKeon (R-Calif.) said the shivers down career civil servants’ should be punished, including whether committee was “concerned about the backs.” reporters should be prosecuted for leaks that have come out over the years Republican members of Congress publishing them. On July 24, 2012, the and accelerated, it seems, over the last accused the Obama administration of Senate Intelligence Committee approved few months,” Reuters reported. orchestrating recent leaks as a calculated a bill that would restrict leaks from The Wall Street Journal reported attempt to place the president in a intelligence agencies. In a July 25 press June 5 that the FBI had opened an positive light during the 2012 election release, Sen. Saxby Chambliss (R-Ga.), investigation into the Times’ Iran cyber campaign. vice chairman of the committee, said the attack story, “according to two people The AP reported June 8 that White bill is “a strong step toward stemming familiar with the probe.” FBI Director House Press Secretary Jay Carney the torrent of leaks” and “provide[s] the Robert Mueller told the Senate Judiciary responded to the claims, saying “any intelligence community with the tools Committee May 16 that an investigation suggestion that the White House has and resources necessary to help keep into the Yemeni double agent leak had leaked sensitive information for political the country safe.” But critics noted that begun. On June 8, The New York Times purposes has no basis in fact,” and the new rules would not extend to the reported that Attorney General Holder Obama called them “offensive” and White House — which has been accused assigned two United States attorneys to “wrong.” of providing the most recent high profi le take over the FBI’s investigations. The According to a July 11, 2012 report leaks — or to members of Congress or Times reported that Ronald Machen by the Reporters Committee for their staff, top Pentagon offi cials, or the of the District of Columbia and Rod Freedom of the Press (RCFP), a July National Security Council. Rosenstein of Maryland were assigned to 11 judiciary committee hearing raised The new limits passed the intelligence the investigations, “elevating the stature questions about whether the Espionage committee by a vote of 14 to 1 as of the cases but not giving [the attorneys] Act of 1917, 18 U.S.C. § 793, a World part of the Intelligence Authorization any special powers.” War I-era law which criminalizes the Act for Fiscal Year 2013, H.R. 5743. Since Obama took offi ce in early unauthorized retention or disclosure The bill would require intelligence 2009, the federal government has fi led of “national defense information,” agency offi cials to notify congressional criminal charges against six people could be used to target journalists who intelligence committees of authorized for the unauthorized disclosure of publish leaked classifi ed information. disclosures of classifi ed or declassifi ed classifi ed national security information. No American journalist has ever been 12 prosecuted under the Espionage Act for receiving classifi ed information without WikiLeaks Founder Assange authorization. Rep. Jim Sensenbrenner (R-Wis.) said members of Congress “have to update” the law, adding “espionage Seeks Asylum in Ecuador today is a lot different from espionage ikiLeaks Founder Julian story in The Telegraph of London. The during the fi rst world war,” the RCFP Assange entered the Telegraph story added, “It has been reported. Ecuadorian Embassy reported the country became the only Manning Trial Judge Refuse to in London on June 19, one to offi cially expel a US ambassador Release Documents 2012 to request asylum, in the wake of the furore caused by Wrefusing to leave until his request was The most high profi le leak case may the leaks. It has been speculated that be the one involving U.S. Army Pvt. processed. Ecuadorean President Rafael Correa Bradley Manning, who has been accused According to The New York may offer Mr. Assange asylum to try to of leaking thousands of U.S. military and Times on June 20, British police said redeem his record on free speech.” The diplomatic documents to the website Assange — who had been under house diplomatic cables implicated Correa WikiLeaks, which then worked with U.S. arrest since December 2010 while in corruption and were denounced and European news organizations to fi ghting extradition to Sweden to face as completely untrue in state-run publish them. (For more on the release, accusations of sexual abuse — violated Ecuadorian media. In February 2012, see “WikiLeaks’ Document Dump his bail by not returning to his home Correa successfully championed a Sparks Debate” in the Summer 2010 in London between 10 p.m. and 8 a.m., criminal libel conviction against El Silha Bulletin. Silha Center Director making him subject to arrest if he were Universo, Ecuador’s second best-selling Jane Kirtley discussed “The WikiLeaks to leave the embassy premises. On June newspaper, including fi nes that are likely Quandary” in the Fall 2010 issue.) 14, the British Supreme Court rejected to force the paper into bankruptcy. (For According to a July 6, 2012 First Assange’s fi nal appeal, ruling that unless more on the libel case, see “International Amendment Center report, on June 21, the European Court of Human Rights Journalists Face Censorship in 2012 the U.S. Army Court of Criminal agreed to hear a further appeal, Assange Confronting Governments” in the Appeals denied a request by journalists should be extradited to Sweden by Winter/Spring 2012 Silha Bulletin.) and rights groups to release documents midnight on July 7, the Times reported. CNN reported July 10 that Correa related to the ongoing Manning Assange is accused of raping one told a local television station that the case, including motions, orders, and woman and sexually molesting and United States allows capital punishment transcripts. The order was one sentence coercing another in Stockholm in August for a “political crime,” a fact that long: “On consideration of the Petition 2010 while visiting to give a lecture. He could provide suffi cient grounds to for Extraordinary Relief in the Nature has denied the accusations and claims grant asylum. “We have to see whether of a Writ of Prohibition and Mandamus, that if he is extradited to Sweden, he everything that’s being done in the case the petition is DENIED.” The order was could more easily be transferred to the of Julian Assange is compatible with ... the response to a petition fi led on May 24 United States to face charges related to the constitution and our view of human by the Center for Constitutional Rights, the publication of thousands of classifi ed rights, political rights and due process,” The Nation magazine, Amy Goodman diplomatic and military documents. U.S. Correa said. On June 26, The Wall Street of “Democracy Now!,” and WikiLeaks’ Army Pvt. Bradley Manning is currently Journal reported that Ecuador Foreign Julian Assange, among others. The June facing charges for leaking those Minister Ricardo Patino said a decision 21 denial followed a June 8 denial of documents to WikiLeaks. News media on the asylum request would not be the group’s petition for access, saying it have reported that a grand jury has been announced until after the conclusion had failed to meet “an ‘extremely heavy convened to investigate the possibility of the Olympic Games on August 12. burden’ to justify the granting of a writ” of charging Assange or WikiLeaks The Guardian reported July 26 that and that the Freedom of Information Act for the leaks. The Sydney Morning offi cials at the Ecuadorean embassy had would eventually provide for the release Herald reported on Feb. 29, 2012 that asked for assurances from the U.K. and of the information, the First Amendment a confi dential email obtained from Sweden that Assange would not be sent Center reported. the private U.S. intelligence company to the United States. Shayana Kadidal, attorney for the Stratfor stated that U.S. prosecutors On July 24, Reuters reported that Center for Constitutional Rights, told the have a sealed indictment against Assange had hired Baltasar Garzon, RCFP for a June 27 story that the group Assange. (For more on the Manning a well-known international human planned to appeal the case to the U.S. case, see “Leaks: New Policies Emerge, rights lawyer, as his attorney and legal Court of Appeals for the Armed Forces, Congress Gets Involved” on page 11 of adviser. Patino said he welcomed a court staffed by civilian judges. “The this issue of the Silha Bulletin. For more Garzon’s involvement in the Assange Supreme Court said one major reason on the possible Assange indictment, see case because the lawyer had “a very we mandate public access to trials is “The Obama Administration Takes on good relationship” with the Ecuadorian to protect legitimacy and to protect Government Leakers; Transparency May government. (Former Assange lawyer accuracy in fact fi nding,” Kadidal said. be a Casualty” in the Winter/Spring 2012 Mark Stephens discussed the Assange “It’s very clear in federal courts that issue.) case in the 2011 Silha Lecture. See the First Amendment governs access to Ecuador offered Assange residency “Silha Lecture Highlights Free Speech documents.” in November 2010, as controversy in the Digital Age” in the Fall 2011 Silha On July 19, 2012, Army Col. Denise ramped up following the publication of Bulletin for more on that event.) Lind, the presiding judge in the Manning the American military and diplomatic documents, according to a June 21, 2012 – PATRICK FILE case, ruled that Manning could not SILHA BULLETIN EDITOR Leaks, continued on page 14 13 Leaks, continued from page 13 interest” in the information. Although offi cer and information revealing the role present evidence attempting to show that neither party disputed the information’s of another CIA employee in classifi ed the information releases caused little relevance to the leak prosecution, activities, fi led two motions to dismiss harm to U.S. national security, and the Brinkema ruled that the government the charges against him on June 12, 2012. court would not hear the testimony of failed to prove that it could not be In the two motions, fi led in the U.S. a United Nations (U.N.) torture expert obtained by means other than Risen’s District Court for the Eastern District on the question of whether Manning’s testimony, or that there was a compelling of Virginia, Kiriakou argued that his pretrial detention amounted to illegal interest in its disclosure. United States prosecution was unconstitutional punishment. According to a July 20 AP v. Sterling, 818 F. Supp. 2d 945 (E. D. Va. because it was “selective” and report, prosecutors argued they are not 2011) “vindictive,” and because the statutes required to prove the leaks caused harm According to May 18, 2012 New York under which he was charged, the in order to secure a conviction, and Lind Times story, government prosecutors Espionage Act, 18 U.S.C. § 793, and the agreed, saying jurors “will be confused argued that the 4th Circuit panel, made Intelligence Identities Protection Act, 50 by the focus of the trial shifting” if she up of Chief Judge William Byrd Traxler U.S.C. §§ 421–426, are unconstitutionally allowed such evidence. Meanwhile, Jr. and Judges Roger Gregory and Albert overbroad and void for vagueness. U.N. torture investigator Juan Mendez, Diaz, should recognize no journalist’s Kiriakou argued that his prosecution who accused the United States of privilege, which would be consistent satisfi es the doctrine of selective violating U.N. rules when he was refused with the U.S. Supreme Court’s divided prosecution, under which a prosecution unfettered access to Manning during his ruling in Branzburg v. Hayes 408 U.S. violates the due process clause of the nine-month detention at a Marine Corps 665 (1972). In Branzburg, the court ruled Fifth Amendment if “similarly situated brig in Quantico, Va., will not be allowed that requiring reporters to testify before individuals are not prosecuted and to testify. Lind ruled that Mendez’s grand juries about confi dential sources the decision to prosecute is invidious testimony was irrelevant to whether or information did not violate the First or made in bad faith.” Kiriakou listed Manning’s detention was punitive in Amendment’s guarantees of freedoms numerous other instances in the nature, which would be a violation of speech and press. But a concurrence years since the investigation of his of his rights because he has not been by Justice Lewis Powell in that case disclosures of information began when convicted of a crime, the AP reported. appeared to narrow the scope of the others released similar information, For more on Manning’s detention, see ruling, allowing federal courts around as demonstrated by an article in The “Open Government Advocates Criticize the country to recognize a qualifi ed New Yorker giving details about the Obama’s Prosecution of Leakers” in privilege. The Times reported that 2011 killing of Osama bin Laden, the AP the Winter/Spring 2011 Silha Bulletin. Risen’s attorney Joel Kurtzberg argued article about the Yemeni double agent, According to the July 20 AP report, Lind that no federal appeals court has adopted and New York Times report of cyber said Manning’s trial could be pushed the narrow view prosecutors presented, attacks against Iran. None of these leaks back to February 2013. and urged the judges “not to accept the has led to prosecutions, Kiriakou argued, government’s invitation to be the fi rst.” and “the one common element in these Fourth Circuit Panel Hears Appeal Risen has fought two previous unprosecuted leaks is that they portray on Risen Subpoena subpoenas as part of the government’s the government in an excellent light.” The U.S. Government argued in a May attempts to prosecute Sterling. Kiriakou argued that is his stance on 18, 2012 hearing before a three-judge Prosecutors claim Sterling leaked waterboarding — voiced in interviews panel of the 4th Circuit U.S. Court of information about “Operation Merlin,” he gave in 2007 and 2009 — and not the Appeals that New York Times reporter a failed plan to pass fl awed blueprints alleged release of classifi ed information James Risen should be forced to testify to Iran via a former Russian scientist, to has provoked the government’s about his confi dential sources in the Risen for his 2006 book “State of War: prosecution of him. Kiriakou was a Espionage Act prosecution of former The Secret History of the C.I.A. and the consistent and outspoken critic of the CIA analyst Jeffrey Sterling. On July 29, Bush Administration.” The fi rst two practice of waterboarding, he explained, 2011, Federal District Court Judge Leonie subpoenas were issued by grand juries fi rst contradicting government claims Brinkema granted Risen’s motion to investigating the leak. Once Sterling that it was not done, and later arguing quash the subpoena. was identifi ed and charged, prosecutors that it was not an effective means of In the lower court ruling, Brinkema issued a trial subpoena against Risen. extracting information from suspected found that the 4th Circuit recognizes (For more on the Sterling case, see terrorists. “The government’s decision a qualifi ed privilege for journalists to “Judges Rebuke Government on Leak to bring this case, while not prosecuting refuse to testify about confi dential Prosecutions” in the Summer 2011 others who leaked classifi ed information sources, and that the government issue of the Silha Bulletin. For more in support of the government’s actions, failed to satisfy two parts of a three- on reporter’s privilege, see “Federal demonstrates that the government is part balancing test, established in Court Rulings Differ on Branzburg motivated by its dislike of the contents LaRouche v. National Broadcasting Interpretation, Reporter’s Privilege” on of Mr. Kiriakou’s statements,” which Corp., 780 F.2d 1184 (4th Cir. 1986) and page 6 of this issue of the Silha Bulletin.) violates both his due process rights under the Fifth Amendment and his used to determine whether a subpoena Kiriakou Calls Leak Prosecution free speech rights under the First against a reporter should be upheld. ‘Selective;’ Government Says Amendment, the motion argued. Under that test, Brinkema wrote, the Journalists Will Not be Called Kiriakou also argued that the court must consider 1) whether the John Kiriakou, the former CIA offi cer Espionage Act and Intelligence Identities information sought is “relevant” to the charged Jan. 23, 2012 with repeatedly Protection Act “are void for vagueness case, 2) whether that information “can giving journalists classifi ed information, under the Due Process Clause of the be obtained by alternative means,” including the name of a covert CIA and 3) whether there is a “compelling Leaks, continued on page 15 14 First Amendment Challenges to Government Surveillance and Detention Programs Will Proceed 11-1025, a case that could challenge separation of powers. The plaintiffs are Supreme Court will address the constitutionality of a statute that specifi cally challenging the warrantless questions over plaintiffs’ right allows the government to monitor surveillance of American citizens who the international communications of engage in no criminal activity but to sue American citizens without a warrant. frequently participate in international wo federal court rulings in In Clapper, a group of 13 attorneys, communications as a result of their May 2012 allowed journalists journalists, and labor, media, legal, and work, such as journalists and human and First Amendment human rights organizations sued Director rights workers. advocates to proceed with of National Intelligence James Clapper, The issue before the Supreme Court challenges to U.S. government challenging the FISA Amendments Act will not be plaintiffs’ constitutional surveillance T and detention policies used of 2008 (FAA), 50 U.S.C. § 1881(a), a challenge to the law, but whether they in the fi ght against terrorism. On May provision of the Foreign Intelligence have legal standing to challenge the 21, 2012, the U.S. Supreme Court agreed Surveillance Act of 1978 (FISA) which law at all. In a motion for summary to hear a case that could challenge a authorizes the warrantless wiretaps. The judgment, the Department of Justice law that allows section that the plaintiffs are challenging has argued that the plaintiffs lack legal GOVERNMENT warrantless amended FISA to eliminate requirements standing to sue because they have SURVEILLANCE surveillance of that intelligence offi cials identify the failed to show that they have suffered international specifi c individual they intend to target an “injury-in-fact” as a result of the communications. One day later, a Senate for surveillance or present probable FAA. The government contends that to panel voted to extend that law to 2017. cause supporting the belief that the have standing in the case, the plaintiffs Meanwhile, a federal judge enjoined a target is a “foreign power or an agent of a must cite a specifi c instance in which “vague” law that allows the government foreign power” who may be monitored. they have been subject to surveillance to indefi nitely detain anyone who The group challenging the law, which under the law. The plaintiffs maintain provides “support” to terrorists. The includes Amnesty International USA, that the fear of having communications Supreme Court’s decision could affect Human Rights Watch, and The Nation intercepted and fi nancial hardship the ability of both cases to proceed. magazine, argues in its complaint that stemming from precautions taken to the FAA gives the executive branch protect their confi dentiality are suffi cient Supreme Court to Hear Warrantless “virtually unregulated authority” to injuries in fact to sustain their lawsuit. Wiretap Case monitor American citizens in violation The journalists and human rights groups On May 21, 2012, the U.S. Supreme of the Fourth Amendment, the First presented evidence showing their Court agreed to hear Amnesty Amendment, Article III of the U.S. work often requires them to engage in Constitution, and the principle of the International USA v. Clapper, No. Surveillance, continued on page 16

Leaks, continued from page 14 Fifth Amendment and impermissibly of “newspaper stories authored The government also noted in its overbroad in violation of the First by journalists to whom improper response that “the government does not Amendment.” The Intelligence Identities disclosures may have been made … falls intend to seek the testimony of either Protection Act, which Kiriakou said has far short of identifying similarly situated journalist to whom Kiriakou made the never been subjected to constitutional subjects; if true, it proves only a crime charged disclosures,” instead relying analysis in a court, is vague because problem that would counsel in favor of on his correspondence with the CIA it requires a person to know the bringing prosecutions when, as here, the Publications Review Board and other government is taking “affi rmative evidence is available and compelling.” statements and emails to show he lied to measures” to conceal the identity of a As to his First Amendment protection, the board “in a failed effort to trick [its “covert agent” without defi ning the term the government argued that “it is well- members] into permitting the defendant “affi rmative measures.” The statute is settled that ‘the Government has a to write about a classifi ed investigative overbroad, Kiriakou argued, because compelling interest in protecting both technique in his memoirs.” According it “does not require the government to the secrecy of information important to to Politico.com reporter Josh Gerstein prove that the defendant intended to our national security and the appearance on July 5, 2012, the two journalists in injure the United States or had reason to of confi dentiality so essential to effective question — identifi ed in court documents believe that his disclosures would harm operation of our foreign intelligence only as “Journalist A” and “Journalist the United States or assist an enemy,” service,’” citing Snepp v. United States, B” — are Matthew Cole, a former ABC which “penalizes speech well beyond 444 U.S. 507 (1980). The Snepp case News producer working as a freelance those instances where the government involved the CIA’s lawsuit against Frank writer at the time the alleged leaks needs to maintain secrecy in order to W. Snepp III, a former agent who failed occurred, and New York Times reporter prevent actual harm to national security.” to submit a book he published about CIA Scott Shane. In a consolidated response to activities in Vietnam to the agency for Kiriakou’s motions, the government review. The U.S. Supreme Court ruled – PATRICK FILE disputed his selective prosecution that the agency could sue and demand SILHA BULLETIN EDITOR claim, arguing that the presentation any royalties he earned.

15 Surveillance, continued from page 15 we need to know how many law- in protecting sources and methods.” sensitive communications with people abiding Americans are having their Kenneth Wainstein, former Homeland located outside of the United States communications reviewed with these Security Advisor to President George and argued it was reasonable to expect authorities,” said Jennifer Hoelzer, a W. Bush, also testifi ed at the hearing, the possibility that the government spokeswoman for Sen. Ron Wyden emphasizing the importance of enhanced would listen to those conversations. As (D-Ore.). In July 2011, Senators Wyden intelligence capabilities, including the a result, the plaintiffs claim they have and Mark Udall (D-Colo.), both members FAA, in protecting national security. stopped certain communications, which of the intelligence committee, asked In his written testimony, Wainstein compromised their work, and have Clapper for details about how the contended “electronic surveillance can undertaken costly travel to conduct law is used. Kathleen Turner, director be a tremendous source of intelligence other conversations in person. of legislative affairs for the Offi ce of about the inner workings of a conspiracy. In August 2009, the U.S. District Court the Director of National Intelligence, That is particularly true in relation to for the Southern District of New York stated in a July 26, 2011 response to foreign terrorist groups, where leaders ruled in favor of the government, but in the senators that it is not “reasonably and foot soldiers in different parts of March 2011, the U.S. Court of Appeals possible” to identify each person who the world have to rely on electronic for the 2nd Circuit reversed, holding has been reviewed under the FAA, communication for operational that the suit could go forward. Judge and that the government was still coordination.” Gerard Lynch, writing for a unanimous defi ning its “view of the full contours three-judge panel, wrote that standing of this authority and will get back to Federal Judge Enjoins Law may be based on the reasonable fear you.” Hoelzer said in the May 22, 2012 Authorizing Indefi nite Detentions of future injury and determined that Washington Post story that no clearer On May 16, 2012, a federal judge cited the plaintiffs’ apprehension in this case answer had yet been provided. First Amendment concerns in issuing was reasonable. Lynch wrote, “The In a Senate Intelligence Committee a preliminary injunction halting the plaintiffs have good reason to believe report dated June 7, 2012, Wyden and enforcement of another controversial that their communications, in particular, Udall expressed concerns about a national security initiative, this one will fall within the scope of the broad loophole in the law that would allow contained in the National Defense surveillance that they can assume the the government to monitor American Authorization Act (NDAA), Pub. L. government will conduct.” Amnesty citizens without any judicial authority. 112–81, 125 Stat. 1298. International USA v. Clapper, 638 F.3d The FAA only authorizes warrantless In Hedges v. Obama, a group of 118 (2d Cir. 2011) wiretaps of foreigners outside of writers and activists have challenged On Sept. 21, 2011, the 2nd Circuit the United States, and therefore still the constitutionality of the NDAA, declined to rehear the case, with Lynch requires a court order to target an arguing that section 1021 of the law, writing, “It is the glory of our system American citizen. However, because which gives the president the power that even our elected leaders must communications are collected under the to indefi nitely detain anyone who has defend the legality of their conduct when FAA without individual warrants, there “substantially supported” terrorist challenged.” The Supreme Court will is nothing prohibiting the government organizations, violates their free speech hear oral arguments on Oct. 29, 2012. from searching through the collected and associational rights guaranteed by information for phone calls or emails the First Amendment and their Fifth Obama Administration Urges from a particular American, according Amendment rights to due process. Renewal to the senators. Wyden and Udall argued The plaintiffs include Chris Hedges, One day after the Supreme Court in the report that “protections against an author, columnist for the website agreed to review the challenge to the warrantless searches for Americans’ Truthdig, and Pulitzer prize-winning FAA, on May 22, the Senate Intelligence communications should be added to the international correspondent; Alexa Committee voted to extend the law immediately.” However, supporters O’Brien, founder of the protest U.S. amendment through June 2017. The law of the act, including Intelligence Day of Rage and contributor and editor is set to expire at the end of 2012, and Committee Chair Sen. Dianne Feinstein for the international news website WL the Obama administration has urged (D-Calif.), deny the existence of the Central; Kai Wargalla, an activist and Congress to renew it. In a Feb. 8, 2012 loophole, asserting the provision founder of Occupy London, and Brigitta letter to Congressional leaders, Clapper requires a court order before targeting an Jonsdottir, an activist and member of and Attorney General Eric Holder American for surveillance. parliament in Iceland. (Hedges was a called reauthorization of the FAA “this On May 31, 2012, the House Judiciary featured speaker at the 2010 Silha Center year’s top legislative priority for the Subcommittee on Crime, Terrorism, Spring Ethics Forum. See “Silha Center intelligence community,” and said that and Homeland Security held a hearing Hosts Variety of Speakers in Spring 2010” the surveillance the measure authorizes on the warrantless wiretap program. in the Winter/Spring 2010 issue of the “has produced and continues to produce American Civil Liberties Union deputy Silha Bulletin.) signifi cant intelligence that is vital to legal director Jameel Jaffer testifi ed at Hedges v. Obama is similar to protect the nation against international the hearing, urging Congress to restrict Amnesty International USA v. Clapper terrorism and other threats.” the circumstances under which the in that the Justice Department argued The Washington Post reported May government can acquire Americans’ the plaintiffs lack standing to challenge 22 that senators on the Intelligence conversations and to require disclosure the law because none of them have Committee have said they hope to of information regarding how the law is actually been detained under the receive more information about the used. In his written testimony submitted authority of the NDAA. The plaintiffs FAA’s effects prior to the Senate’s vote to the subcommittee, Jaffer argued “the each claim they have reason to believe on whether to renew it. “Before the secrecy surrounding the Act extends far their conduct may be covered by the Act, beyond the executive’s legitimate interest Senate passes any long-term extension, Surveillance, continued on page 17 16 Courts, Federal Government Clarify First Amendment Protection for Recording in Public The case arose out of the ACLU’s plan was based on the “willing speaker” Law enforcement actions to implement a “police accountability principle, which requires speaker continue to draw lawsuits, program” in Chicago, during which consent. According to the doctrine, all members would openly record parties in the conversation, including criticism police offi cers in public places. The police and bystanders, must consent lthough federal courts and organization became concerned that to be recorded by the ACLU. Without the U.S. Department of its videographers would be arrested permission, Alvarez argued, the ACLU Justice have clarifi ed the for violating Illinois’ eavesdropping has no First Amendment right to record. basic principle that the statute, 720 Ill. Comp. Stat. 5/14-2, which In a 2 to 1 ruling, the 7th Circuit First Amendment protects prohibits recording conversations rejected both of Alvarez’s arguments. Athe making of audiovisual recordings without the consent of all parties who Judge Diane Sykes wrote for the majority in public places, cases challenging are recorded. The ACLU sued Cook that the ACLU had suffi cient standing police conduct toward camera-carrying County Ill. State’s Attorney Anita Alvarez, to challenge the statute because it citizens and journalists are proceeding challenging the constitutionality of the “fl atly prohibits the ACLU’s planned in Maryland and statute and requesting a preliminary recording, exposing the organization FREEDOM OF New York and injunction barring Alvarez from and its employees to arrest and criminal SPEECH law enforcement enforcing the law, arguing that making punishment.” Further, Sykes wrote, offi cials continue audiovisual recordings is an activity Alvarez’s contention “that openly to face criticism for arrests and protected by the First Amendment. recording what police offi cers say while harassment. On Jan. 10, 2011, the district court performing their duties in traditional dismissed the case, holding that the First public fora — streets, sidewalks, plazas, 7th Circuit Holds Recording is Amendment does not protect a “right to and parks — is wholly unprotected Protected by First Amendment audio record.” The ACLU appealed. by the First Amendment … is an On May 8, 2012, the 7th Circuit U.S. Alvarez argued that the ACLU did extraordinary argument,” resting on Court of Appeals in Chicago held that the not have legal standing to challenge the a “misreading” of precedent and a act of making an audio or audiovisual law because it had not cited a “credible “misapplication” of the “willing speaker” recording is included in the First threat of prosecution,” and that the First principle. American Civil Liberties Amendment’s guarantee of free speech Amendment does not protect the open Union of Illinois v. Alvarez, 679 F.3d 583 and press rights. The court enjoined the recording of police when offi cers do (7th Cir. 2012) enforcement of an Illinois eavesdropping not give their consent to be recorded. Instead of the “willing speaker” statute that forbids the recording of Alvarez’s contention that the recording doctrine, Sykes wrote that “the ACLU’s police offi cers in public. was unprotected by the First Amendment challenge to the statute implicates Recordings, continued on page 18

Surveillance, continued from page 16 were suffi cient injury for standing in that section 1021 should be treated as and therefore cited fear of detention and the case. Forrest’s ruling went further, “analogous to a criminal statute,” and changes in their professional activities however, fi nding that the plaintiffs had therefore should defi ne the offense as injuries that support standing. The shown a likelihood of succeeding on in a way that “ordinary people” can complaint states that, as a journalist and their First Amendment challenge to understand the “prohibited conduct.” war correspondent, Hedges “publishes the NDAA, warranting a preliminary Without a knowledge requirement, “an and conveys the opinions, programs injunction on the enforcement of the individual could fall within the defi nition and ideas of al-Qaida, the Taliban, law. Forrest wrote, “There is no doubt of ‘covered person’ under section 1021 or associated forces.’” The plaintiffs that the type of speech in which Hedges, without having either intentionally or suggest that these activities could be O’Brien, Wargalla, and Jonsdottir engage recklessly known that he or she was considered “substantially supporting” is political in nature. It is also likely that doing so.” Forrest wrote that the terms the organizations and therefore could some of their views may be extreme and “substantially,” “direct,” and “support” subject Hedges to indefi nite detention. unpopular as measured against views lack suffi cient defi nition in the text of The government has declined to say of an average individual. That, however, the Act and the government was unable whether the detention power could is precisely what the First Amendment to explain the meaning of the words, affect any of the plaintiffs. protects.” Hedges v. Obama No. 12 Civ. providing a strong argument for the On May 16, 2012, Judge Katherine 331, 2012 U.S. Dist. LEXIS 68683, 2012 plaintiffs’ vagueness challenge. Forrest of the U.S. District Court for WL 1721124 (S.D.N.Y. May 16, 2012) Hedges called the ruling “a the Southern District of New York In addition, Forrest found the tremendous step forward for the ruled for the plaintiffs, holding that the plaintiffs were likely to succeed on restoration of due process and the rule “actual fear that their expressive and a vagueness challenge under the of law.” Given the similarity of the cases, associational activities are covered Fifth Amendment. Forrest wrote that the U.S. Supreme Court’s decision on by section 1021” and “uncontroverted according to the amendment’s Due standing in Amnesty International USA evidence of concrete — not hypothetical Process Clause, “Individuals are entitled v. Clapper could affect standing for the — ways in which the presence of the to understand the scope and nature plaintiffs in Hedges v. Obama. legislation has already impacted those of statutes which might subject them – EMILY MAWER expressive and associational activities” to criminal penalties.” Forrest held SILHA RESEARCH ASSISTANT 17 Recordings, continued from page 17 freedom from censorship. “Judges asked Sharp fi led a complaint over the seizure a different set of First Amendment to affi rm novel ‘interpretations’ of the of his phone when he used it to record principles,” drawn from the U.S. First Amendment should be mindful that police arresting his friend on May 15, Supreme Court’s ruling in Citizens the constitutional right of free speech, as 2010. Sharp’s phone was eventually United v. FEC, 558 U.S. 50 (2010), that construed nowadays, is nowhere to be returned, but all video, including the “laws enacted to control or suppress found in the Constitution,” Posner wrote. arrest and some personal videos, had speech may operate at different points Posner argued that allowing the ACLU been deleted. Sharp v. Baltimore City in the speech process.” Sykes wrote to publicly record police offi cers will Police Dep’t, 11 Civ. 02888 (Dist. Md. Oct. that by regulating “the use of a medium prevent the offi cers from communicating 11, 2011) of expression,” the Illinois statute with suspects, witnesses, and bystanders On May 14, 2012, the U.S. Department “inevitably affects communication itself.” and will therefore impair offi cers’ of Justice endorsed the right to record In other words, by regulating the creation abilities to perform their duties. Posner in a letter to the Baltimore Police of recordings, the statute also affects considered the privacy rights of the Department regarding Sharp’s complaint. the communication of those recordings. citizens who speak with the police, The letter followed a Jan. 10, 2012 The First Amendment protects the right expressing concern that they might be statement of interest in the case in which to publish or broadcast an audio or afraid to do so if they are being recorded. the DOJ argued that Sharp was protected audiovisual recording, Sykes wrote, but The majority asserted that anyone who by the First and Fourth Amendments. In without any protection for the creation wants to speak with a police offi cer in the letter, the DOJ offered guidance on of that recording, the right would be private will have the opportunity to do policy and training requirements for the compromised. “Audio and audiovisual so and that important security issues are police that are consistent with the First, recording are communication not discussed in public places. Posner Fourth, and Fourteenth Amendment technologies, and as such, they enable responded, “Forget national security; the and urged the department to provide speech. Criminalizing all nonconsensual people who most need police assistance practical guidance on how offi cers can audio recording necessarily limits the and who most want their conversations perform their duties without violating information that might later be published kept private are often the people least constitutional rights. The Baltimore or broadcast … and thus burdens able to delay their conversation until Police Department released a general First Amendment rights,” Sykes wrote. they reach a private place.” Posner order on recording police activity in (For background on Citizens United concluded that the social value of November 2011. However, the DOJ v. FEC, see “Supreme Court Strikes protecting privacy outweighs any value found that the order did not adequately Down Campaign Finance Regulation for promoted by allowing public recordings guide offi cer conduct in some areas. Corporations,” in the Winter/Spring 2010 of the police. For example, the letter suggested that issue of the Silha Bulletin.) The Alvarez ruling follows a similar the policy should include a specifi c The court also found that the ACLU’s ruling by the 1st Circuit U.S. Court recitation of the First Amendment, rather challenge is likely to succeed regardless of Appeals in June 2011. In Glik v. than referring to general “Constitutional of the standard of review used in the Cunniffe, 655 F.3d 78 (1st Cir. 2011) rights,” and should defi ne terms such as analysis. The least rigorous standard the court ruled unanimously that the the “public domain,” where the public the statute could face is intermediate recording of government offi cials in has the right to record, to provide scrutiny, which requires the law to public “is a basic and well-established further clarity. “Comprehensive policies advance a “substantial government liberty safeguarded by the First and effective training are critical to interest” and be “drawn to achieve Amendment.” The case arose from ensuring that individuals’ First, Fourth that interest.” Alvarez argued the law plaintiff Simon Glik’s claim that the and Fourteenth Amendment rights protects privacy interests. However, Boston police violated his civil rights are protected when they record police the court noted that the ACLU plans when they arrested him for recording offi cers in the public discharge of their to openly record police offi cers in an arrest he encountered in Boston duties,” wrote Jonathan M. Smith, chief public, where “reasonable expectations Common. In striking down the City of of the Special Litigation Section of the of privacy” do not exist. Therefore, Boston’s qualifi ed immunity argument, Civil Rights Division at the DOJ. The the court found the statute was not the court held that the right to record letter is available online at www.justice. suffi ciently narrow to protect the interest is clearly established law and thus the gov/crt/about/spl/documents/Sharp_ltr_5- of privacy. “Rather than attempting to police had “fair warning” that the arrest 14-12.pdf tailor the statutory prohibition to the was unconstitutional. (See “Cops and In an interview with CBS Baltimore, important goal of protecting personal Citizens Clash over Recordings of Law Meredith Curtis of the ACLU of Maryland privacy, Illinois has banned nearly all Enforcement Activity,” in the Fall 2011 said the letter was the fi rst time the DOJ audio recording without consent of the issue of the Silha Bulletin.) has taken an offi cial position on the right parties — including audio recording to record. Kim Zetter, blogger on the that implicates no privacy interests at Ongoing First Amendment Wired magazine blog Threat Level, wrote all.” The 7th Circuit reversed the district Challenges to Police Policies in a May 16, 2012 blog post that the letter court’s ruling, ordering it to grant the Several ongoing cases have raised was a “strong statement” not only to the preliminary injunction barring Alvarez similar First Amendment issues to those Baltimore Police Department, but to from prosecuting the ACLU under the in the Alvarez case. In May 2012, the U.S. every police department in the country, statute. Department of Justice took the unusual that interference in public recordings is In a dissent, Judge Richard Posner step of intervening in a complaint against unconstitutional. wrote that the majority’s interpretation the Baltimore City Police Department for In another pending case, Rodriguez of the First Amendment was at odds with a policy restricting the use of devices to v. Winski, New York elected offi cials, the intent of its original authors, who record police activity in public. The case journalists, and Occupy Wall Street only meant the amendment to provide arose in August 2011 after Christopher activists fi led a complaint against the 18 City of New York on April 30, 2012, Journal at the site of a wildfi re drew appeared in The New York Times, alleging that actions by the New York condemnation from media organizations. Newsweek, Der Spiegel, USA Today, Police Department violated the First The Gazette-Journal reported June and on Bloomberg, Reuters, and Getty Amendment. The complaint cited clashes 19 that photographer Tim Dunn was Images wire services, was arrested and between the plaintiffs and the New pushed to the ground, forcing his face charged with disorderly conduct on York police, including one incident on into gravel, and detained for more than June 16, 2011 while fi lming an arrest Nov. 15, 2011, when police prevented half an hour after he took photos of a outside of a restaurant. Garcia claimed the public, press, and elected offi cials brush fi re that destroyed two homes in the offi cers assaulted him and took the from observing the eviction of Occupy Sun Valley, Nev. The incident left Dunn memory chip from his camera before Wall Street protesters from Zuccotti with scrapes on his face and hands. handcuffi ng him and placing him under Park — which protesters dubbed Liberty The police cited Dunn for obstructing a arrest. At trial for the disorderly conduct Square — in New York City. According public offi cer and Dunn told the Gazette- charge, the offi cers involved claimed to the complaint, Ydanis Rodriguez, lead Journal that police also accused him Garcia’s injuries from the incident plaintiff and a member of New York City of impersonating a fi refi ghter at the were self-infl icted, but a Montgomery Council, complied with police orders to scene. Dunn was wearing the protective County Associate Judge found the police remain where he was, but “nevertheless gear fi re offi cials recommend for media complaint was not credible and acquitted was attacked and arrested by police covering wildfi res, the Gazette-Journal Garcia, News Photographer reported. offi cers in the absence of probable reported. Barry Smith, executive director Nevertheless, Garcia was unable to cause.” Several of the other plaintiffs of the Nevada Press Association, renew his White House press credential in the case were arrested in connection called the accusation “absolutely during the time the criminal charge with the same protest. Rodriguez v. preposterous,” in an interview with the was pending, resulting in what News Winski, 12 Civ. 3389, 2012 WL 1470305 Gazette-Journal. “Nevada journalists Photographer described as the loss of (S.D.N.Y. Apr. 30, 2012) are trained how to respond to wildfi res,” a “sizable portion” of his income. On The complaint asks the federal district Smith said. “It sounds to me like the fi re June 12, 2012 Garcia fi led a lawsuit court to issue an injunction enjoining the offi cials and deputies need to be trained against the police offi cers involved in the police from preventing lawful entry into on how to respond to the media.” incident, alleging civil rights violations public spaces, from barring press access According to the Gazette-Journal under the United States and Maryland to police activities related to public article, Beryl Love, the newspaper’s Constitutions, as well as other state assembly, and from keeping photographs executive editor, said in a statement claims, according to a June 14 report and fi ngerprints from individuals who are that “the brutal nature in which Tim, a by the NPPA. The NPPA reported that found innocent in their criminal cases. veteran photographer with more than 20 Garcia’s case is one of several civil In addition, the plaintiffs are seeking years experience, was treated by sheriff’s suits that the organization is involved the appointment of an “independent deputies is beyond comprehension. in regarding police mistreatment of monitor” to oversee the New York Police Their use of excessive force on a fellow journalists. “Mr. Garcia is just one of too Department. Wylie Stecklow, an attorney professional who also has an important many visual journalists whose rights involved in the case, told the Bulletin job to do is shocking. His rights were have been egregiously infringed upon of that the plaintiffs are expecting either an clearly violated.” late,” NPPA President Sean Elliot said. answer or a motion to dismiss from each According to a June 25, 2012 press “It is time for the NPPA to contribute to of the defendants by mid-September release from the Society of Professional the efforts to hold these public servants 2012. Journalists (SPJ), the group’s president accountable for their assault upon the John Ensslin sent a letter to Washoe First Amendment.” More Arrests for Recording in Public County Sheriff Michael Haley in which he Donald Winslow, editor of News Offi cers and citizens continue to clash wrote, “I understand the need of public Photographer magazine wrote in the over; ; the recording of police activity. The safety personnel to control access to the January 10 article that without civil spike in arrests has gained the attention scene of a chaotic situation so they can suits, there are usually no serious of the international press freedom do their job. But it’s also important to consequences for the arrests of organization “Reporters Sans Frontières” remember that Mr. Dunn had a job to do photographers. “Police who practice this (RSF or “Reporters Without Borders”) as well, one that is backed by his First ‘catch and release’ method of getting which compiles an annual ranking of Amendment right to cover a breaking photographers out of their hair know, for countries called the “Press Freedom news story.” the most part, that the journalists will Index” — an assessment of countries’ On June 23, the Gazette-Journal likely never actually face a day in court press freedom records. The United reported that Dunn submitted a formal or be convicted, because prosecutors States’ 2011/2012 ranking dropped 27 complaint to the Washoe County Sheriff’s or higher ranking police usually dismiss places from its 2010 ranking, from 20th Offi ce citing excessive force. the charges and offer up some lame to 47th, a slide which RSF attributed Meanwhile, a veteran freelance public apology, saying it won’t happen to “the many arrests of journalists photojournalist has fi led a lawsuit again,” Winslow wrote. “In the aftermath covering Occupy Wall Street protests.” against police in Montgomery County, the photographer walks away with no The Press Freedom Index, which was Md. for an arrest that resulted in him arrest record, usually without running released in January 2012, is available being unable to renew his White House up huge legal fees,” Winslow wrote. “And online at http://en.rsf.org/press-freedom- press credentials. News Photographer the police have what they wanted: they index-2011-2012,1043.html. magazine, a publication of the National stopped a journalist from taking pictures But Occupy protests were not the only Press Photographers Association of them doing whatever it was they didn’t settings for confl icts between police and (NPPA), reported Jan. 10, 2012 that want the public to see.” journalists. The June 18, 2012, arrest of a Mannie Garcia, an award-winning – EMILY MAWER photo editor for the Reno (Nev.) Gazette- photographer whose photos have SILHA RESEARCH ASSISTANT 19 Supreme Court Fleeting Expletives Ruling Leaves Constitutional Questions Unanswered

Richie made reference to her popular In 2001, the commission issued FCC punishments overturned television show, saying, “Why do they “Industry Guidance” on its indecency even call it ‘The Simple Life?’ Have you regulations, explaining that it would but indecency policy left ever tried to get cow shit out of a Prada consider three factors in deciding whether intact purse? It’s not so fucking simple.” The FCC material was indecent: (1) its “explicitness received complaints after both broadcasts, or graphic nature;” (2) “whether the and in 2006 ruled that they violated the material dwells on or repeats at length n a narrow holding addressing three commission’s rules against indecency. descriptions of sexual or excretory organs instances of “fl eeting” expletives However, citing the fact that the FCC’s or activities;” and (3) “whether the material or nudity broadcast on television, interpretation of its broadcast indecency appears to pander or is used to titillate, the U.S. Supreme Court ruled rules — and specifi cally its rules against or whether the material appears to have June 21, 2012 that the Federal one-time “fl eeting” expletives — had been presented for its shock value.” When Communications I Commission (FCC) generated confusion among broadcasters it fi ned NBC in 2004 for an awards show failed to give “fair notice” to Fox or ABC before being clarifi ed in a ruling against broadcast which featured the singer Bono television in fi nding NBC in 2004, the commission declined to uttering the words “fucking brilliant,” the the networks impose a fi ne against Fox for the Cher and FCC addressed the isolated and fl eeting FCC had violated the Richie comments. nature of the utterance, stating that “the commission’s Meanwhile, ABC was fi ned for a 2003 mere fact that specifi c words or phrases indecency episode of “NYPD Blue” that included are not sustained or repeated does not standards. However, the court declined a scene in which a female character mandate a fi nding that material that to address the constitutionality of those prepared to take a shower. The woman’s is otherwise patently offensive to the standards. nude buttocks could be seen for less than broadcast medium is not indecent.” In re By an 8 to 0 vote, the U.S. Supreme ten seconds and the side of her breast for Complaints Against Various Broadcast Court ruled that the FCC violated the about one second. In 2008, the FCC ruled Licensees Regarding Their Airing of the Fifth Amendment’s “due process” clause that the scene was “actionably indecent” “Golden Globe Awards” Program, 19 FCC because it failed to provide suffi cient and fi ned each of the 45 ABC affi liates that Rcd. 4975 (2004) notice to the networks that they would aired the episode $27,500. The Supreme The major broadcast television be in violation of its revised indecency Court consolidated the separate appeals of networks challenged the FCC’s new policy when the broadcasts occurred in Fox and ABC in its June 21 ruling. interpretation of the indecency rules, 2002 and 2003. However, in a majority The FCC is authorized to fi ne arguing in federal court that they were opinion by Justice Anthony Kennedy, the “whoever utters any obscene, indecent, not given proper notice of the change in court also said that because it decided the or profane language by means of radio enforcement, rendering it “arbitrary and case on due process grounds, “it need not communication” under 18 U.S.C. § 1464. capricious” under the Administrative address the First Amendment implications The FCC applies the law between the Procedure Act (APA), 5 U.S.C. 706, because of the Commission’s indecency policy” or hours of 6 a.m. and 10 p.m. local time to the commission failed to give a reasoned “reconsider Pacifi ca,” the court’s landmark radio and television broadcasters alike. basis for a signifi cant change in policy. In 1978 ruling on broadcast indecency. FCC In 1978, the U.S. Supreme Court upheld 2007, the 2nd Circuit U.S. Court of Appeals v. Fox Television Stations, Inc., 132 S. Ct. the commission’s authority to regulate ruled in favor of the networks, but in 2009 2307 (June 21, 2012) indecency in FCC v. Pacifi ca, 438 U.S. 726 the U.S. Supreme Court overturned the 2nd Justice Ruth Bader Ginsburg voted with (1978), ruling that a broadcast of George Circuit ruling on a 5 to 4 vote fi nding that the majority in the ruling, but wrote a two- Carlin’s “seven dirty words” monologue the rule change met the requirements of sentence concurrence stating that, “In my was indecent because it contained the APA and was “entirely rational.” FCC v. view,” Pacifi ca “was wrong when it issued. “language that describes, in terms patently Fox Television Stations, Inc., 556 U.S. 502 Time, technological advances, and the offensive as measured by contemporary (2009) On remand, the 2nd Circuit relied on commission’s untenable rulings in the cases community standards for the broadcast the First Amendment to fi nd that the rules now before the court show why Pacifi ca medium, sexual or excretory activities and were “unconstitutionally vague, creating a bears reconsideration.” Justice Sotomayor organs, at times of the day when there is a chilling effect.” Fox Television Stations, did not take part in the consideration or the reasonable risk that children may be in the Inc. v. FCC, 613 F.3d 317 (2d. Cir. 2010) ruling. audience.” The court ruled that because On June 21, 2012, the U.S. Supreme The June 21 ruling arose out of three broadcast radio and television have “a Court vacated and remanded the July 2010 now-infamous broadcasts in 2002 and 2003 uniquely pervasive presence in the lives 2nd Circuit ruling. Justice Kennedy wrote which have been the subject of extensive of all Americans,” it was appropriate to that the “void for vagueness” doctrine in federal court consideration, including one extend “the most limited First Amendment American law has created a “requirement other U.S. Supreme Court ruling, in the protection” to them. Pacifi ca did not of clarity in regulation [which] is essential intervening years. In the Fox broadcast address the question of whether the FCC to the protections provided by the Due of the Billboard Music Awards in 2002, could regulate isolated or occasional Process Clause of the Fifth Amendment singer Cher accepted an award saying, expletives, as opposed to their repetition in [and] … requires the invalidation of laws “people have been telling me I’m on the the Carlin monologue which Justice Lewis that are impermissibly vague.” Boiled way out every year, right? So fuck ‘em.” Powell, in a concurrence, called “verbal down, the law requires “fi rst, that regulated In the 2003 broadcast of the Billboard shock treatment.” parties should know what is required awards, also on Fox, presenter Nicole 20 of them so they may act accordingly; his opinion, “an isolated and ambiguous second ruling on the matter; it came to second, precision and guidance … so statement from a 1960 Commission the same conclusion in 2008, but the U.S. that those enforcing the law do not act decision does not suffi ce for the fair notice Supreme Court vacated that decision in in an arbitrary or discriminatory way.” required when the Government intends to 2009 following its fi rst ruling in FCC v. Fox Kennedy added, “when speech is involved, impose over a $1 million fi ne for allegedly Television Stations, Inc. rigorous adherence to those requirements impermissible speech.” Kennedy also noted In an opinion concurring in the Supreme is necessary to ensure that ambiguity does that in 1978 the commission had declined Court’s denial of writ of certiorari, Chief not chill protected speech.” to fi nd broadcasts containing nudity to be Justice John Roberts wrote that “even if the The Supreme Court’s ruling ultimately indecent and in 2000, ruled that full frontal Third Circuit is wrong” in its 2011 decision, pivoted on the timing of the sanctions nudity in a broadcast of the fi lm Schindler’s “that error has been rendered moot going against Fox and ABC. The FCC’s 2001 List was not indecent. forward [because] it is now clear that the “Industry Guidance” did not explain that Kennedy concluded by explaining the brevity of an indecent broadcast — be it fl eeting expletives or nudity would be limited scope of the decision. Because word or image — cannot immunize it from considered in violation of FCC guidelines, the court had resolved the case on Fifth FCC censure.” Kennedy wrote. The FCC did not explain Amendment grounds, Kennedy wrote, Meanwhile, the FCC may already be its new policy until 2004 in the ruling it did not need to address arguments considering its next censure for a Super against NBC, which came after the made by Fox and ABC that Pacifi ca’s Bowl halftime show incident. During a broadcasts of the Billboard Music Awards rationale — that the unique pervasiveness performance by popular music artists and “NYPD Blue.” “The Commission policy of broadcast television and radio justifi es Madonna, Nicki Minaj, and M.I.A. during in place at the time of the broadcasts gave FCC regulation — “has been overtaken halftime of the 2012 Super Bowl on Feb. no notice to Fox or ABC that a fl eeting by technological change and the wide 5, 2012, singer and rapper M.I.A. gave the expletive or a brief shot of nudity could availability of multiple other choices for middle fi nger to the camera and appeared be actionably indecent; yet Fox and ABC listeners and viewers.” Moreover, because to mouth an expletive. NBC failed to catch were found to be in violation,” Kennedy the court’s consideration of FCC policy was either on its delay, blurring the picture wrote. “This would be true with respect limited to 2002 and 2003 broadcasts, which shortly after they occurred. According to to a regulatory change this abrupt on any occurred before the commission issued a March 15 report from ESPN, a Freedom subject, but it is surely the case when its ruling on indecency in 2004, it did not of Information Act request found that 222 applied to the regulations in question, need to consider whether those 2004 rules complaints had been fi led over the Super regulations that touch upon sensitive areas were constitutional. “The Court adheres to Bowl broadcast, most of which were in of basic First Amendment freedoms.” its normal practice of declining to decide response to M.I.A.’s performance. The FCC argued that its rule could not cases not before it,” Kennedy wrote. ABC News reported February 6 that be considered unconstitutionally vague as Kennedy added that the limited scope of the Parents Television Council issued a applied to Fox because it did not impose the opinion “leaves the commission free to statement the day after the broadcast, a fi ne against the network for the fl eeting modify its current indecency policy in light criticizing NBC and the NFL for selecting expletives. Kennedy rejected this argument of its determination of the public interest “a lineup full of performers who have because the FCC has statutory authority and applicable legal requirements ... [a]nd based their careers on shock, profanity and to consider the rules violation in future leaves the courts free to review the current titillation. … Instead of preventing indecent sanctions regardless of whether or not policy or any modifi ed policy in light of its material, they enabled it.” a fi ne was imposed; “the government’s content and application.” ABC News reported that Drexel assurance it will elect not to do so is Indeed, the FCC and American courts University law professor Lisa McElroy insuffi cient to remedy the constitutional may continue to grapple with the legal said “there is reasonable potential for an violation.” Moreover, Kennedy wrote, Fox defi nitions and implications of broadcast FCC fi ne,” in the M.I.A. incident, but that had sustained “reputational injury” as a indecency. On June 29, 2012, the U.S. the commission might wait until after result of the fi nding that it violated FCC Supreme Court denied the FCC’s petition the Supreme Court’s ruling in FCC v. rules, even if that fi nding did not carry a for writ of certiorari in the “wardrobe Fox Television Stations, Inc. to decide fi ne, harming its relationship with viewers malfunction” case involving a halftime how to respond. McElroy said that after or advertisers. show performance by Janet Jackson and the Jackson incident in 2004, the FCC In the case of “NYPD Blue,” the Justin Timberlake at the 2004 Super Bowl. increased the fi ne for broadcast indecency government argued that ABC had notice The appeal had come after the 3rd Circuit to $325,000, which means that M.I.A.’s that it would be in violation, citing a 1960 U.S. Court of Appeals ruled in CBS v. FCC, combined expletive and middle fi nger FCC ruling that stated that “the televising 663 F. 3d 122 (3d Cir. 2011) that the FCC’s could cost NBC as much as $650,000. of nudes might well raise a serious $550,000 fi ne for showing the incident question of programming contrary to 18 was “arbitrary and capricious.” The 2011 – PATRICK FILE U.S.C. §1464.” Kennedy responded in 3rd Circuit decision was that court’s SILHA BULLETIN EDITOR

The Silha Bulletin has provided extensive coverage of the indecency cases and the FCC rule changes that precipitated them. For more, see “FCC Defends Regulatory Regimes in Court; U.K. Explores Cross-Ownership Regulations” in the Fall 2011 issue, “U.S. Supreme Court Ruling Leaves FCC’s Ban on Fleeting Expletives in Place” in the Spring 2009 issue, “Second Circuit Strikes Down FCC’s ‘Fleeting Expletives’ Rule as ‘Arbitrary and Capricious’” in the Summer 2007 issue, “Broadcasters Challenge Indecency Standards” in the Winter 2007 issue, “FCC Backtracks on Some Indecency Rulings, Continues to Pursue Others in Court” in the Fall 2006 issue, “Bush Signs Broadcast Decency Enforcement Act; May Increase Fines for Indecent Programming” in the Summer 2006 issue, and “FCC Crackdown on Indecency Leads to Historic Fines” in the Winter 2004 issue.

21 Minnesota Supreme Court Sides with University on Punishment for Facebook Posts

movie Kill Bill and “a certain someone” Tatro appealed to the Minnesota Standard: Universities may referred to her ex-boyfriend, according to Supreme Court. A three-judge panel the court’s opinion. heard the case, as four of the seven punish off-campus speech that After another mortuary science justices recused themselves due to violates professional rules student brought the posts to the program connections to the university. Like the director’s attention, Tatro was suspended Court of Appeals, the Minnesota Supreme he Minnesota Supreme Court from class. When University of Minnesota Court held that the university did not held on June 20, 2012 that the police determined no crime had been violate Tatro’s First Amendment rights; University of Minnesota did committed, she was allowed to return however, the Supreme Court used a not violate a student’s First different legal standard Amendment rights when it “Tying the legal rule to established than the lower court to punished T her for Facebook posts about reach that conclusion. her mortuary science lab. A three-judge professional conduct standards It also rejected the panel of the court unanimously upheld limits a university’s restrictions standards proposed the university’s by Tatro as well as the STUDENT FREE disciplinary on Facebook use to students in university. SPEECH actions, but professional programs and other In the court of declined to accept disciplines where student conduct is appeals decision, the the university’s position that it had broad court applied a standard power to regulate student speech off governed by established professional developed in the U.S. campus. conduct standards.” Supreme Court case The student in the case, Amanda Tatro, Tinker v. Des Moines died suddenly on June 26, 2012, less than Independent Community — Justice Helen Meyer one week after the ruling. She was 31. As School District, 393 U.S. of press time, details about Tatro’s death Minnesota Supreme Court 503 (1969), which held had not come to light. The Minneapolis that a K-12 school may Star Tribune reported June 26 that police to class, but the university’s Offi ce for regulate student speech if it reasonably did not consider the death suspicious. Student Conduct and Academic Integrity anticipates a “substantial disruption of Tatro’s attorney Jordan Kushner told the fi led a complaint against Tatro on Dec. or a material interference with school Star Tribune that Tatro suffered from 29, 2009, alleging violations of the activities.” However, the Minnesota a condition that affected her nervous university’s student-conduct code. The Supreme Court found that not only was system and caused pain and immobility. Campus Committee on Student Behavior a university regulating speech in this Kushner said that Tatro wanted to appeal at the university conducted a hearing on case, rather than a K-12 school, but the the case to the U.S. Supreme Court, but the matter and on April 2, 2010, issued university’s actions were not meant following her death he was no longer a written decision fi nding that Tatro to punish for creating a “substantial considering doing so. violated the rules of the Mortuary Science disruption.” Instead, the discipline was Tatro sued the University of Minnesota Program. As a result, Tatro received a for violating academic program rules, and in 2010, alleging it violated her First failing grade in her mortuary science thus the supreme court determined that Amendment rights when it disciplined her lab, and was required to attend a course the Tinker standard was inappropriate for comments she made on her Facebook in clinical ethics, write a letter to a in this case. Tatro v. University of page over a period of four weeks in faculty member of the Mortuary Science Minnesota, A10-1440, 2012 WL 2328002, fall 2009. Tatro was a mortuary science program addressing professional respect, 2012 Minn. LEXIS 246 (June 20, 2012) student enrolled in three laboratory submit to a psychiatric evaluation at the The university argued that the classes involving anatomy, embalming, student health service clinic, and remain supreme court should apply a standard and restorative art. She posted status on probation for the remainder of her used by the U.S. Supreme Court in updates about her cadaver, whom she undergraduate career. Hazelwood School District v. Kuhlmeier, called “Bernie,” a reference to the 1989 On August 19, 2010, Tatro appealed 484 U.S. 260 (1988), which held that comedy fi lm, “Weekend at Bernie’s.” the punishment to the Minnesota Court educators in K-12 schools may regulate The fi lm portrays two employees who, of Appeals, claiming that the university’s the “content of student speech in school- following the death of their boss, try disciplinary actions violated her right to sponsored expressive activities so long to convince people that he is still alive. free speech guaranteed by the federal and as their actions are reasonably related Tatro commented that she “gets to play” state constitutions. On July 11, 2011, the to legitimate pedagogical concerns.” with her cadaver, discussed taking court of appeals affi rmed the university’s However, again this rule applied only to out her “aggression” on the body, and sanctions, holding that the school did K-12 schools. Additionally, the Minnesota mentioned keeping a “lock of hair” in her not violate Tatro’s rights. Tatro v. Univ. Supreme Court emphasized that the pocket, a reference to a Black Crowes of Minn., 800 N.W.2d 811 (Minn. Ct. App. standard applies to speech that the public song. Tatro also posted that she wanted 2011) (For more background on the case would reasonably believe to carry the “to stab a certain someone in the throat” and the appeals court ruling, see “Student imprimatur of the school. In this case, with an embalming tool, and mentioned Speech: Off-Campus, Online, and in the speech was not “school-sponsored,” her “Death List #5.” Tatro later said Trouble,” in the Summer 2011 issue of the because the public would not consider “Death List #5” is a reference to the Silha Bulletin.) Tatro’s Facebook posts to have the 22 support of the university. In addition, lab,” wrote Meyer. In addition, the which would have given the university the court noted that the concept of court held that the school rules were broader power to regulate off-campus “legitimate pedagogical concerns” has narrowly tailored, and not overly broad, speech. been broadly construed, and therefore to achieve the objective of respectful Frank LoMonte, executive director of its application in this context would give and dignifi ed treatment. Specifi cally, the Student Press Law Center (SPLC), universities “wide-ranging authority” the court noted that the university’s said in a June 20, 2012, SPLC article that over student Internet activity. The rules only pertained to widely dispersed the decision was “defi nitely a narrow court declined to extend this broad Facebook posts that could be viewed carve-out that seems only to impact a power to the university and rejected the by thousands. Regulation of private small subset of students.” Because of Hazelwood standard in the Tatro case. conversations would be too broad to the narrow ruling, LoMonte called the Tatro, meanwhile, argued that students promote the interest, but the court found decision a “mixed result.” “The First at public universities are protected controlling public speech on Facebook Amendment dodged a bullet today,” by the same right to free speech as to be permissible. Finally, the court LoMonte said. “The University of the general public, but conceded also noted that Tatro’s behavior was Minnesota was out to essentially wipe that the university could regulate off- the First Amendment campus speech that “violate[s] specifi c “It’s a sad reality that in today’s off the books for professional obligations.” Specifi cally, college students, and Tatro acknowledged that the university climate, a narrow defeat is going the Minnesota Supreme could prohibit her from identifying a to feel like it’s a victory. We’re Court stopped them in human donor, but argued that it could their tracks.” not impose a broader rule regulating essentially celebrating the fact that The Tatro decision her online activity. Therefore, Tatro schools didn’t do as much damage was the fi rst to apply argued for a narrow rule preventing the to First Amendment rights as they any standard to the university from regulating “a student’s regulation of off- personal expression at any time, at wanted to, and that’s unfortunate.” campus student speech any place, for any claimed curriculum- in colleges, LoMonte based reason.” The court acknowledged — Frank LoMonte said, and although Tatro’s concern, but noted that the Executive Director, it is binding only on parties agreed that a university may Student Press Law Center Minnesota state courts, regulate Facebook activity that violates it could be infl uential established professional standards. for other courts across Thus, the court adopted a legal standard disrespectful. “Giving the human cadaver the country. However, LoMonte said, by based on professional rules, requiring a name derived from a comedy fi lm emphasizing the unique circumstances of restrictions on students’ Facebook posts about a corpse and posting commentary the mortuary science program, the court to be “narrowly tailored and directly about ‘playing’ with the human cadaver, avoided the question of what standard related to established professional taking her ‘aggression’ out on the human applies generally to off-campus student conduct standards.” Discussing the reach cadaver, and keeping a ‘[l]ock of hair’ speech, an issue that has yet to be of the standard, Justice Helen Meyer in her pocket are incompatible with the addressed. wrote, “Tying the legal rule to established notions of respect and dignity for the Some experts found the decision to be professional conduct standards limits a individual who chose to donate his body positive for students’ First Amendment university’s restrictions on Facebook use to support the research and education rights. Raleigh Levine, a professor at the to students in professional programs and missions of the Anatomy Bequest William Mitchell College of Law who fi led other disciplines where student conduct Program,” wrote Meyer. an amicus brief in the case on behalf is governed by established professional The court emphasized that its decision of the American Civil Liberties Union conduct standards.” Meyer added that was based on the unique circumstances of Minnesota, said the court rejected the standard will limit the ability of the of the case, specifi cally the academic the opportunity to extend the limits of university to “impermissibly reach into a program with professional conduct free speech in high schools to university university student’s personal life outside standards. Although Tatro signed an students. “The facts of this case were so of and unrelated to the program.” agreement with the university promising unusual and so particular. In many ways, The court looked to the Minnesota to abide by certain rules, it was the the University won this particular battle, statute governing the professional established professional standards but it lost the war,” Levine said in a June conduct of mortuary scientists and that factored into the decision, not this 20, 2012, Pioneer Press article. interns, Minn. Stat. § 149A.70 subdiv. academic agreement. Meyer rejected However, in the SPLC article, LoMonte 7(3), and found that unprofessional the idea that the contract between said the decision would have been conduct includes “failure to treat with the student and the university created considered negative a few decades ago. dignity and respect the body of the the conduct standards, writing that “It’s a sad reality that in today’s climate, deceased.” The court then determined “a university cannot impose a course a narrow defeat is going to feel like it’s a that the university’s academic program requirement that forces a student to victory,” LoMonte said. “We’re essentially standard was consistent with the statute’s agree to otherwise invalid restrictions on celebrating the fact that schools didn’t professional conduct requirement of her free speech rights.” do as much damage to First Amendment respect and dignity for the deceased. Tatro’s attorney Kushner expressed rights as they wanted to, and that’s “Signifi cantly, the academic program disappointment that the court upheld unfortunate.” rules do not require respectful and the punishment, but told the Minnesota – EMILY MAWER discreet behavior on Facebook generally, Daily in a June 27, 2012 article, that the SILHA RESEARCH ASSISTANT but explicitly pertain to statements about decision was a “substantial improvement” cadaver dissection and the anatomy from the holding of the court of appeals, 23 More States Pass Anti-Bullying Legislation the 24/7 exposure to threats, bullying or bill now awaits fi nal approval from the New laws may raise new discrimination. With this new law, when Louisiana Senate and, according to a May questions over student speech cyberbullying impedes a student’s ability 29, 2012 SPLC article, has the support of to learn, victims and their parents will now Gov. Bobby Jindal. rights have the ability to report the incidents to The bill defi nes bullying as “a pattern school districts to investigate.” of … gestures,” “written, electronic, or ullying in American schools Adam Goldstein, attorney advocate at verbal communications,” “physical acts,” remains a concern for the Student Press Law Center (SPLC), said or “shunning or excluding from activities” legislators across the country. in a June 19, 2012 SPLC article that the that has the effect of “physically harming a As more states have passed text of the law is constitutional on its face, student, placing the student in reasonable legislation limiting permissible but if it is construed broadly, could pose a fear of physical harm, damaging a student’s Bcommunications for public school students, threat to free speech. Specifi cally, Goldstein property, placing the student in reasonable however, courts and legal advocates have said the defi nition of bullying in the law, fear of damage to the student’s property,” begun to address questions over whether which includes conduct that “reasonably creating “an intimidating or threatening such measures causes or would reasonably be expected to educational environment,” “substantially STUDENT FREE infringe students’ cause physical injury or emotional harm to interfering with a student’s performance in SPEECH rights to freedom a student,” could be interpreted to include school,” or “substantially disrupting orderly of expression. actions that emotionally harm a 12 year old. operation of the school.” The bill sets out “If causing emotional harm to a student is guidelines for reporting and investigating New York cyberbullying, then every set of parents incidents of bullying in public K-12 schools A New York law signed by Gov. Andrew in New York has cyberbullied their kid,” and for disciplining the students involved. Cuomo on July 9, 2012, gives public Goldstein said. SPLC Executive Director Frank LoMonte elementary and secondary schools the said he believes the bill is unconstitutional Maine authority to regulate students’ off-campus in a May 29, 2012 SPLC article. Under the Maine Gov. Paul LePage signed a law Internet posts. The bill, N.Y. Educ. Law bill, bullying conduct would be punishable May 21, 2012 requiring K-12 school districts § 10, requires teachers to report speech, if it “substantially interfer[es] with” the to adopt a bullying prevention policy based made off school property and not at a victim’s school work, even if the victim is on the state Commissioner of Education’s school-sponsored activity or event, to unusually emotionally fragile. However, model plan. administrators if “it is foreseeable that the LoMonte said that standard violates the The Maine law, Me. Rev. Stat. tit. 20-A, § conduct, threats, intimidation or abuse First Amendment. The standard for K-12 1001, defi nes bullying as “a written, oral or might reach school property.” After the schools regulating non-school sponsored electronic expression or a physical act” that principal or designee receives a report speech is from a U.S. Supreme Court “has, or a reasonable person would expect from a teacher, he or she must oversee case, Tinker v. Des Moines Independent it to have, the effect of: physically harming an investigation to verify the incident Community School District, 393 U.S. a student,” “placing a student in reasonable and determine if the conduct constitutes 503 (1969), which held that a school may fear of harm,” “creating an intimidating or bullying. The statute defi nes bullying as regulate student speech only if it reasonably hostile educational environment for the the “creation of a hostile environment anticipates a “substantial disruption of student,” or “interfering with the student’s by conduct or by threats, intimidation or a material interference with school academic performance.” Like the New York or abuse” that has or could have one of activities.” However, based on this statute, law, the statute gives schools the power several effects including “unreasonably and LoMonte said that the school could punish to regulate off-campus bullying if it “also substantially interfering with a student’s a student for speech based on its effect on infringes on the rights of the student at educational performance, opportunities or one student, rather than the entire school. school.” benefi ts, or mental, emotional or physical LoMonte said that the legislators’ The American Civil Liberties Union well-being.” If the investigation determines response to the Middlebrook’s suicide is (ACLU) of Maine said it considered the that the conduct was bullying, the law understandable, but lawmakers should law constitutional in a May 17, 2012 press requires the school to take “prompt actions” think carefully about limiting free speech. release. In the release, Alysia Melnick, to end the harassment. Schools also must “Grief is a powerful motivator,” LoMonte public policy counsel for the ACLU of instruct students on “safe, responsible said in the May 29 SPLC article. “But grief Maine, said the law “struck an appropriate use of the Internet and electronic can also be blinding.” LoMonte said that balance that protects student safety and communications.” The bill does not create infringing upon students’ First Amendment freedom of speech.” “We can reduce a specifi c criminal charge for cyberbullying, rights is not an appropriate way to bullying in school without undermining our instead relying on the school to establish remember Middlebrook or other victims the protocol for punishing offenders. fundamental civil liberties,” Melnick said. of bullying. (For more background on New York Sen. Steve Saland Louisiana bullying legislation, see “Courts Continue to (R-Poughkeepsie), a sponsor of the bill, On May 30, 2012, the Louisiana House Grapple with Online Student Speech Cases; called the legislation “a critically needed of Representatives unanimously passed Supreme Court Chose Not to Weigh In,” in step” toward safe schools. “Students the Tesa Middlebrook Anti-bullying Act, the Spring 2012 issue of the Silha Bulletin; today live in a cyber-world, it’s how most named after a Louisiana high school “Social Media Laws Aim to Curb Bullying choose to communicate,” Saland said in a student who killed herself just over a and Abuse of Children Online,” in the Fall June 19, 2012 press release. “It’s also how month earlier. Middlebrook’s uncle, Michael 2011 issue; “Student Speech: Off-Campus, many are cyberbullied — whether through Derson, told The (Baton Rouge) Advocate Online, and in Trouble,” in the Summer 2011 messaging, emails or social networking that Middlebrook had been the victim of issue.) sites, it’s diffi cult for victims to escape bullying for a year prior to her death. The Bullying, continued on page 25 24 Update: Charges Filed in British Phone Hacking Case n July 24, 2012, the British Spreads Far and Wide” in the Summer 2011 political outrage when an investigation by Crown Prosecution Service issue of the Silha Bulletin, and “Murdoch- The Guardian revealed that the News of announced that it would fi le owned British Paper Embroiled in Phone the World accessed the voice mail of Milly criminal charges against eight Scandal” in the Fall 2009 issue.) Dowler, a 13-year-old girl who went missing people in connection with A statement by Alison Levitt QC, in 2002 and was later found murdered. Othe “phone hacking” scandal rocking the News of the World investigators and principal legal advisor to the Director of British media. The announcement followed Public Prosecutions, said that among the reporters allegedly listened to the voice more than a year’s worth of revelations, total of 19 charges, all but Mulcaire were mail messages of worried family members investigations, and to be charged with “conspiring to intercept as police searched for her. inquiries, sparked The New York Times’ John F. Burns MEDIA ETHICS communications without lawful authority, by one of the most from 3rd October 2000 to 9th August 2006. wrote on July 24, 2012 that the scandal’s wide-reaching ethics The communications in question are the effects are far-reaching. British reporters scandals in modern media history. voicemail messages of well-known people and editors say it has led to a “chilling The group facing charges includes some and/or those associated with them. There effect” on the press, as the notorious “red of what website The Daily Beast called is a schedule containing the names of over top” tabloids are less eager to appear “Fleet Street’s most prominent tabloid 600 people whom the prosecution will sensational or unethical. The scandal has journalists:” Rebekah Brooks, former say are the victims of this offence.” Each also uncovered a culture of corruption chief executive of Rupert Murdoch’s News individual will face additional charges and bribery, “checkbook journalism that is International and before that, editor of related to specifi c victims whose phones alleged to have included payments rising News of the World, a newspaper Murdoch they allegedly hacked. The New York Times into the tens of thousands of dollars to closed as the scandal unfolded around reported July 24 that the charges could public offi cials, including police and prison it in spring and summer 2011, and Andy carry prison sentences of up to two years. offi cers.” In addition to the harm done to Coulson, News of the World editor after Brooks and Coulson were already Murdoch’s News Corp. in the public eye, Brooks who resigned amid an earlier phase facing charges related to phone hacking the scandal has led to “hundreds of millions of the phone hacking controversy in 2007. investigations before the July 24 charges. of dollars in legal costs, out-of-court Coulson subsequently served as British On May 15, The New York Times reported settlements and payoffs to employees who Prime Minister David Cameron’s Director that Brooks was charged along with fi ve have been laid off,” including a settlement of Communications. Stuart Kuttner was other people for “perverting the course with Milly Dowler’s family reported to News of the World managing editor for 22 of justice” by trying to hide or destroy be several million dollars. “Together, years; Greg Miskiw, Ian Edmondson, and evidence. On May 30, Coulson was charged prosecutors say, it is a tally of wrongdoing James Weatherup were senior reporters and with perjury for lying under oath while that is likely to yield many more criminal assistant editors. Neville Thurlbeck was a discussing phone hacking at News of the cases in the months ahead,” Burns wrote. chief reporter. Glenn Mulcaire, a private World. (For more on the phone hacking investigator who worked for the newspaper, Although the practice of phone hacking scandal, see “Director’s Note: Scandals, was convicted in 2006 of illegally listening — illegally accessing the voicemail of Inquiries, and Reform Might Leave U.K. to voice mail messages of the royal family. famous or prominent subjects of news Press Freedom Worse for the Wear” on page He now faces new charges. (For more on coverage — had been known about since 3 of this issue of the Bulletin. ) the phone hacking scandal, see “Not Just a before the 2006 case involving Mulcaire, – PATRICK FILE ‘Rogue Reporter’: ‘Phone Hacking’ Scandal the problem sparked increasing public and SILHA BULLETIN EDITOR

Bullying, continued from page 24 The students were suspended shortly on anyone,” Gavin Rose, attorney for the after a parent brought the Jan. 24, 2012 ACLU, told the AP. “If you make a legitimate Indiana: Expulsion for Facebook Posts conversation to the principal’s attention. threat against someone ... you don’t follow Draws Lawsuit Griffi th Middle School expelled the girls in it up with an emoticon.” Meanwhile, one school’s efforts to February, after a hearing determined that Director of the Religious Freedom prevent bullying drew a lawsuit claiming the students violated the school’s bullying, Education Project, Charles Haynes, said a First Amendment violation. On April 25, harassment, and intimidation policy. schools should foster conversations 2012, the American Civil Liberties Union According to the Tribune, the complaint of diverse viewpoints, rather than (ACLU) of Indiana fi led a complaint against states that the expulsions will end in preventing speech, to teach students Griffi th Public Schools in Griffi th, Ind., August 2012, and The Associated Press how to interact with people of differing alleging that middle school administrators (AP) reported on April 25 that the girls will opinions. “Censorship doesn’t make violated three female students’ free speech be permitted to attend high school in the schools safer,” Haynes wrote in a June rights when they expelled them based on district in Fall 2012. 1, 2012 First Amendment Center article. a Facebook conversation made on the However, the ACLU hopes to overturn “On the contrary, suppressing speech only students’ personal electronic devices. the expulsion. The group argues that the deepens divisions and fuels intolerance. According to an April 26, 2012, Chicago school went beyond ensuring a safe school To prepare students for citizenship in a Tribune story, the ACLU’s complaint states environment and instead infringed upon pluralistic democracy that values the First that the posts began with a discussion of protected speech. “The fact of the matter Amendment, schools must be places that shaving and then the girls’ friendships, but is that no reasonable person looking at are both safe and free.” this conversation would think that these turned into a debate about which of their – EMILY MAWER classmates they would kill if they could. girls were going to go out and infl ict harm SILHA RESEARCH ASSISTANT 25 Mexico Amends Constitution to Protect Journalists and Free Expression Amid Violence According to a March 30, 2012 article Eugenio Herrera, general counsel Implementing the new in the English-language newspaper for Grupo Reforma, Mexico’s Guadalajara Reporter, the amendment largest newspaper publisher, told measure will require more will give federal authorities the power the Guadalajara Reporter that he legislation and reform to handle cases such as the murder or doubted that the amendment and kidnapping of journalists, removing such any accompanying laws would make n June 6, 2012, Mexican cases from the hands of local police the country safer for journalists. “We lawmakers approved an enforcement offi cials and judges who have higher prison punishments for amendment to the nation’s allegedly are often negligent or corrupt. kidnapping, for drug traffi cking and constitution that made that doesn’t seem to attacks on journalists a Crimes against journalists have deter criminals from Ofederal crime in an effort to protect committing those reporters covering the violent struggle remained largely unsolved due crimes,” Herrera said. with drug cartels and drug-related crime. to negligence and corruption Meanwhile, Carlos The amendment, Article 73, Section among law enforcement of cials, Lauría, senior program XXI of the Mexican Constitution, makes coordinator for the crimes against particularly those at the state level, Americas for CPJ, INTERNATIONAL journalists a which has led Mexican journalists to commended the passage federal offense avoid controversial topics. of the legislation, calling and gives federal it “the fi rst step to stop authorities the power to investigate and impunity in the killings try crimes committed against journalists — Committee to Protect Journalists of Mexican journalists.” even when they are committed in areas Article 19 noted that normally would fall under local or Making murders of journalists a federal that because of the amendment’s broad state jurisdiction. The newly-revised crime also increases the punishment if language pertaining to crimes that limit Mexican Constitution is available online the alleged perpetrators are found guilty, freedom of expression and information, in Spanish at http://www.diputados.gob. the Guadalajara Reporter said. it could apply not only to those working mx/LeyesBiblio/pdf/1.pdf. Press freedom advocates have with established media organizations The Mexican Senate approved the said that the broad mandate of the but to citizen journalists and users of measure on March 6, 2012, sending it on amendment will probably create the social media as well. This is important to the 31 state legislatures, 16 of which need for legislation in order to enforce it. because regular citizens have turned to had to pass it in order for it to be ratifi ed. Article 19 outlined several ways in which the Internet to report criminal activities The majority of 16 was met on June Mexican federal law could be rewritten carried out by the drug cartels after 6, 2012. According to a June 14, 2012 to accommodate the new constitutional traditional media outlets were silenced. article by Article 19, an advocacy group language in its June 14 article. The law But now even the people who write for freedom of expression worldwide, will need to specify the circumstances in about these crimes are facing violent the amendment empowers the federal which the federal government can claim retribution from the drug cartels, government to investigate and prosecute jurisdiction over an investigation or “endangering the constitutional rights of crimes committed against journalists, prosecution, for example, and the federal all Mexicans to freedom of expression persons, or places which affect, limit criminal code and code of criminal and access to information,” Lauría stated or undermine the right to freedom of procedure may also need to be revised to in a September 26, 2011 CPJ article. expression and information, or freedom implement the new amendment. For more on the threats to social media of the press. In addition to the revised legislation, users in Mexico, see “Dangers Faced A March 9, 2012 article by the Article 19 stated that the Special by Journalists Extend to Social Media Committee to Protect Journalists (CPJ) Attorney’s Offi ce for Crimes against Users” in the Fall 2011 issue of the Silha reported that more than 40 Mexican Freedom of Expression (in Spanish, Bulletin. journalists have died or disappeared Fiscalía Especial para la Atención de Passage of the amendment did not in Mexico since 2006. Crimes against Delitos Cometidos contra la Libertad immediately seem to quell violence journalists have remained largely de Expresión, or FEADLE), which against journalists in the summer of unsolved due to negligence and investigates crimes against freedom of 2012. On June 14, Victor Manuel Báez corruption among law enforcement expression that are classifi ed as federal Chino, a crime editor for the national offi cials, particularly those at the offenses, needs to be incorporated newspaper Milenio and an editor of the state level, CPJ reported, which has into the Mexican Attorney General’s news website Reporteros Policiacos, led Mexican journalists to avoid offi ce. According to CPJ’s March 9, 2012 was found murdered in Xalapa, Veracruz. controversial topics such as violence, article, FEADLE has never solved a case According to CPJ on June 14, 2012, corruption, and drug traffi cking, and left and suffers from a lack of resources. state spokeswoman Gina Domínguez citizens without access to information. Additional legislation would also provide said Chino may have been the victim of (For more on the challenges Mexican FEADLE with the necessary human organized crime, and National Attorney journalists face, see “Journalism Suffers and fi nancial resources to carry out its General Marisela Morales stated that it Amid Drug Wars in Mexico” in the Fall mission, Article 19 said. 2010 issue of the Silha Bulletin.) Amendment, continued on page 27 26 Silha Lecture to Feature Famous Food Critics and Mystery Guest

The panel will also discuss newer yielded more than 40 books, including Food criticism’s ethical problems related to the craft of criticism Roadfood, Square Meals, and American conundrums will be on the as traditional professional critics are Gourmet. The Sterns have won three increasingly joined by thousands of James Beard Foundation journalism table amateur critics writing online, posting awards for their monthly column in critiques on blogs, social networks, and Gourmet magazine, and are contribut- n October 25, 2012, four web sites like Yelp and Urbanspoon. ing editors of Saveur magazine and the food critics will discuss the Are these reviewers the ordinary “real Sunday supplement Parade. ethical challenges of food people” they claim to be, or might The event’s mystery guest is a James and restaurant criticism they have an agenda to promote or an Beard Foundation award-winning Twin at the 27th Annual Silha ax to grind? Should the new amateur Cities food critic who has written for a OLecture: “A Question of Taste: The Ethics online critics be expected to follow and Craft of Restaurant Reviewing.” The fundamental principles of media ethics local publication for about 15 years and 2012 lecture will feature Lynne Rossetto like avoiding confl icts of interest, whose work has appeared in several Kasper, co-creator and host of American refusing special treatment, or correcting editions of the Best Food Writing book Public Media’s mistakes? Kasper, the Sterns, and series. SILHA CENTER national radio the mystery guest will discuss these This year’s Silha Lecture will begin EVENTS show, “The problems and more, as well as take at 7:00 pm in Cowles Auditorium on the Splendid Table,” questions from the audience. University of Minnesota Twin Cities West and Jane and Michael Stern, who are Kasper’s radio program, “The Splendid Bank campus. A book signing will follow weekly guests on “The Splendid Table.” Table” has won James Beard Foundation the lecture. The event is free and open to The panel will also include a fourth Awards for Best National Radio Show the public, and no reservations or tickets mystery guest — an award-winning on Food in 1998 and 2008, a Gracie Allen will be required. Parking is available at veteran local food critic whose identity Award in 2000 for Best Syndicated Talk the 19th and 21st Avenue parking ramps will be concealed in the interest of Show, and Clarion Awards from Women on the University of Minnesota’s West maintaining anonymity. in Communication in 2007, 2008, 2009 Bank campus. More information about The panel discussion will center and 2010. According to “The Splendid directions and parking is available online on traditional ethical issues that arise Table” website, Kasper says she created at www.umn.edu/pts. from food and restaurant reviews as the program as a means to explore every- The Silha Center for the Study of well as newer questions presented by thing she loved about food: the culture, Media Ethics and Law is based at interactive Internet culture and online the science, the history, the back stories the School of Journalism and Mass review websites. The panel will consider and deeper meanings that come together Communication at the University of problems such as how professional every time people sit down to enjoy a Minnesota. Silha Center activities, restaurant critics can relate to diners meal. “The Splendid Table” became “the including the annual Lecture, are made with a range of experiences and possible by a generous endowment from radio program for people who love to tastes and the challenges of remaining the late Otto Silha and his wife, Helen. eat.” balanced and fair in the face of close For further information, please contact Besides being weekly guests on “The friendships in the food industry, the the Silha Center at 612-625-3421 or Splendid Table,” Jane and Michael Stern’s demands of employers who are eager [email protected] or visit www.silha.umn. to please advertisers, and the tendency Roadfood.com website covers informal edu. for restaurants to provide preferential and inexpensive regional eateries along service to critics even when they strive highways, in small towns, and in city – ELAINE HARGROVE to keep their identities secret. neighborhoods. Their collaboration has SILHA CENTER STAFF

Amendment, continued from page 26 was possible state offi cials were also of the daily El Norte, located in different outlet, El Mañana, located in Nuevo involved in the murder. CPJ reported areas of the city of Monterrey. One of Loredo, was hit by an explosive device that Chino was the fourth journalist in the supplements, La Silla, was hit by which damaged the façade of the two months to be killed in the state of an explosive device which damaged building. El Mañana was one of the fi rst Veracruz. the front of the building, and the other, news organizations to stop covering On July 11, 2012, CPJ reported Linda Vista, was attacked by a group confl icts between crime groups, and to that three separate news outlets were of people who fi red on the building. also publicly acknowledge that it was attacked on July 10, causing property One member of the group also threw a doing so, CPJ reported. damage but no injuries. Two of the grenade at the building, damaging its – ELAINE HARGROVE attacks were against weekly supplements façade and some windows. The third SILHA CENTER STAFF

27 Silha Center for the Study of Media Ethics and Law Non-profi t Org. School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID 111 Murphy Hall Twin Cities, MN Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625-3421

TWENTY-SEVENTH ANNUAL SILHA LECTURE ???

Lynne Rossetto Kasper Jane and Michael Stern Mystery Guest A Question of Taste: The Ethics and Craft of Restaurant Reviewing

OCTOBER 25, 2012 • 7:00 P.M. – 9:00 P.M. COWLES AUDITORIUM UNIVERSITY OF MINNESOTA WEST BANK Story on page 27 CONTACT THE SILHA CENTER AT [email protected] OR 612-625-3421 FOR ADDITIONAL INFORMATION.