A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | WINTER/SPRING 2020 A Message from the Director This issue of the Silha Bulletin, produced by our graduate student research assistants, includes a special roundup examining how the COVID-19 pandemic has affected newsgathering and reporting. But as if our world has not been rocked enough by COVID-19, the civil unrest in the Twin Cities following the death of George Floyd on May 25 prompted us to pivot just as we were wrapping up this issue of the Bulletin. Please visit our website to see our running list of clashes between the press and law enforcement. Our website is available at: https://hsjmc.umn.edu/news/2020-06-02-list-incidents-involving-police-and-journalists-during-civil-unrest-minneapolis-mn. We haven’t neglected our usual analysis of significant media law and media ethics developments from around the country. We’ve continued to provide timely research assistance and commentary on issues affecting freedom of the press and the public’s right to know. Elaine Hargrove, Silha Program Assistant, has almost completed a massive migration of Silha Center content — including past issues of the Bulletin, research materials, and photographs and recordings of many Silha events — to our new web site: https://hsjmc. umn.edu/research-centers/centers/silha-center-study-media-ethics-and-law. Silha Center programming and outreach also continue. On June 3, we participated in the first of a series of Town Hall webinars hosted by the Hubbard School of Journalism and Mass Communication examining legal and ethical issues surrounding reporting on the civil unrest in the Twin Cities. A video of that webinar is available online at: https://hsjmc.umn.edu/2020-town-hall-videos. In April, we moved our Spring Ethics Forum online, and plans are underway for the 35th annual Silha Lecture on Oct. 19, 2020, featuring Dale Cohen, Special Counsel to PBS’ FRONTLINE. Whether we can meet in person or virtually, rest assured that the Silha Center staff will keep working throughout the summer, and beyond. Don’t hesitate to reach out if we can be of assistance to you. Jane E. Kirtley, Director Silha Center for the Study of Media Ethics and Law Special Report: Journalists Face Arrests, Attacks, and Threats by Police Amidst Protests Over the Death of George Floyd n May 2020, protests in Minneapolis, Minn. stemming from the May 25 death of George Floyd while in the custody of Minneapolis Police Department (MPD) officers sparked media law and ethics issues and commentary. On May 29, 2020, CNN reported that a CNN television crew was detained while reporting on the early morning protests in Minneapolis. The arrests, which were made despite the television crew explaining that they were members of the news media, prompted significant criticism from press freedom advocacy organizations, including the Silha Center for the Study of Ethics and Media Law. IOn May 30, Tom Aviles, a veteran photographer at WCCO, the Twin Cities’ CBS affiliate, was arrested by the Minnesota State Patrol when covering the ongoing protests over the death of Floyd despite identifying himself and his producer as members of the local news media. Aviles’ arrest led to renewed criticism of police tactics by many observers. Meanwhile, ongoing protests in the Twin Cities and around the United States resulted in arrests, rubber bullets, pepper balls, tear gas, and more to be directed at journalists, who in some cities also faced violence by protesters. Finally, on May 29, Minneapolis Star Tribune reporter and University of Minnesota Hubbard School of Journalism and Mass Communication alumnus Andy Mannix announced on Twitter that he had deleted an earlier tweet in which he defended journalists publishing photos of protests. Several observers agreed with Mannix’s initial assessment, arguing that reporters need to report what takes place at public protests. (Find this story in full on page 3.) Special Report: COVID-19 Pandemic Raises Media Law and Ethics Issues, Challenges, and Opportunities n spring 2020, the COVID-19 pandemic led to problems, developments, and changes across the United States and around the world, including regarding various aspects of media law and ethics. The pandemic saw the escalation of a “media war” between the United States and China; renewed anti-press rhetoric and actions by President Donald Trump; the spread of misinformation online; increased newsroom layoffs, furloughs, and closures; Liberty University sought trespassing charges against two journalists; issues related to public and press access to information and government proceedings; and the U.S. Supreme Court holding oral arguments Ivia teleconference. (Find this story in full on page 16.) Inside This Issue Winter/Spring 2020: Volume 25, No. 2

3 Special Report: Journalists Face Arrests, Attacks, and 49 Saudi Arabia and Turkey Take Different Actions Against Threats by Police Amidst Protests Over the Death of Accused Killers of Journalist Jamal Khashoggi; Saudi George Floyd Crown Prince Escapes Accountability

Special Report Reporters in Danger

16 Special Report: COVID-19 Pandemic Raises Media Law and 51 Journalists File First Amendment Lawsuit Stemming from Ethics Issues, Challenges, and Opportunities Questioning by U.S. Border Agents

Special Report Borders

30 U.S. Senate and Trump Administration Impose Restrictions 52 Freelance Journalist Reaches Settlement with San on Media Access Francisco; FBI Document Confirms Agents Present at Access Searches and Seizures of Journalist's Property Searches and Seizures 34 Twin Cities Media Seek Juror Names in Noor Trial; Minneapolis Advisory Committee Allegedly Violates 54 Federal Courts Rule Iowa and Kansas "Ag-Gag" Laws Minnesota Open Meeting Law Violated First Amendment, Dismiss Lawsuit Challenging Access Arkansas' Statute Ag-Gag Laws 37 High-Profile Defamation Lawsuits Target National and Local Media Outlets 59 First Amendment Attorney John Borger Passes Away in Defamation December 2019 Tribute 45 Julian Assange Extradition Hearing Begins, Delayed Due to COVID-19 Pandemic; Chelsea Manning Released from 60 2020 Spring Ethics Forum Webinar Addresses the Impact Prison of Fact-Checking and Misinformation on Journalism

Leak Investigations Silha Center Events

46 Kobe Bryant's Death Prompts Ethical Concerns Over Media Coverage; Twin Cities Station Parts Ways With Meteorologist Ethics

Silha Center Staff

Jane E. Kirtley Silha Center Director and Silha Professor of Media Ethics and Law

Jonathan Anderson Scott Memmel Silha Bulletin Co-Editor Silha Bulletin Co-Editor

Sarah Wiley Elaine Hargrove Silha Research Assistant Silha Center Staff

2 Special Report: Journalists Face Arrests, Attacks, and Threats by Police Amidst Protests Over the Death of George Floyd n May 2020, protests in of the 911 call is available online at: other officers at the scene, had been Minneapolis, Minn. stemming https://bringmethenews.com/minnesota- fired. At a May 28 press conference, from the May 25 death of George news/minneapolis-releases-transcript-of- Minneapolis Mayor Jacob Frey also Floyd while in the custody of 911-call-that-led-to-george-floyds-arrest. called for the arrest of Chauvin. Minneapolis Police Department Surveillance footage released on In a May 29 statement, Hennepin I(MPD) officers sparked media law and May 27 showed Floyd being dragged County Attorney Mike Freeman ethics issues and commentary. On May out of his vehicle. Contrary to a May announced criminal charges against 29, 2020, CNN reported that a CNN 25 statement by the MPD claiming that Chauvin, including for third-degree television crew Floyd “physically resisted officers,” murder and manslaughter. Freeman said SPECIAL was detained several observers contended that the that he “didn’t want to wait any longer REPORT while reporting on surveillance video suggested that to share the news that he’s in custody the early morning Floyd had not resisted arrest. The and charged with murder.” He added protests in Minneapolis. The arrests, full surveillance video is available that Chauvin was the first one charged which were made despite the television online at: https://www.youtube.com/ because “we felt it was important to crew explaining that they were members watch?v=EKV7Mi9YUAQ&feature=emb_ focus on the most dangerous perpetrator. of the news media, prompted significant logo. Heavily redacted police body-worn I must say this case has moved with criticism from press freedom advocacy camera (BWC) footage is available extraordinary speed.” According to organizations, including the Silha Center online at: https://www.youtube.com/ the Minnesota Daily, Chauvin was for the Study of Ethics and Media Law. watch?v=xwAAEhitWy8. arrested by Minnesota Bureau of On May 30, Tom Aviles, a veteran After pulling Floyd from his vehicle Criminal Apprehension (BCA) agents photographer at WCCO, the Twin at the intersection of East 38th Street and transported to Ramsey County jail. Cities’ CBS affiliate, was arrested by the and Chicago Avenue, three MPD officers On May 31, he was transferred to Oak Minnesota State Patrol when covering summarily held down and handcuffed Park Heights, Minnesota’s maximum the ongoing protests over the death Floyd, while an additional officer held security prison, according to Minnesota of Floyd despite identifying himself back witnesses. Bystander video taken Commissioner of Corrections Paul and his producer as members of the of the scene showed that as Floyd was Schnell at a press conference on the local news media. Aviles’ arrest led to lying on his stomach, MPD Officer same day. renewed criticism of police tactics by Derek Chauvin “dug his knee into the Freeman explained that the charges many observers. Meanwhile, ongoing man’s neck,” despite Floyd pleading that were based on evidence, including protests in the Twin Cities and around he was in pain and could not breathe, video, witness statements, a preliminary the United States resulted in arrests, as reported by the Associated Press autopsy report, and discussions with rubber bullets, pepper balls, tear gas, (AP) on May 28. Chauvin continued to an expert, according to the Star and more to be directed at journalists, press his knee down on Floyd’s neck Tribune, which noted that Chauvin “is who in some cities also faced violence for nearly nine minutes, causing Floyd the first white officer in Minnesota to by protesters. Finally, on May 29, to fall silent and unresponsive, despite be criminally prosecuted in the death Minneapolis Star Tribune reporter and bystanders begging the officers to relent. of a black civilian.” The Star Tribune University of Minnesota Hubbard School Media outlets later claimed that Floyd explained that Hennepin County charged of Journalism and Mass Communication suffocated and died in police custody, former MPD Officer Mohamed Noor alumnus Andy Mannix announced on despite officers calling an ambulance, in the 2017 shooting death of Justice Twitter that he had deleted an earlier which transported Floyd to the Hennepin Damond. Noor was later convicted tweet in which he defended journalists County Medical Center. According to the in 2019 of third-degree murder and publishing photos of protests. Several Star Tribune on May 29, paramedics and second-degree manslaughter. (For more observers agreed with Mannix’s initial emergency room staff “worked for nearly information on the shooting and trial assessment, arguing that reporters need an hour to revive Floyd . . . who arrived of Noor, as well as the legal battles to report what takes place at public with no pulse.” He was pronounced dead around press and public access, see protests. at approximately 9:25 p.m. “Twin Cities Media Seek Juror Names On May 25, 2020, Floyd, a 46-year-old The full bystander video of the in Noor Trial; Minneapolis Advisory African American man, was arrested in incident is available online at: https:// Committee Allegedly Violates Open south Minneapolis after police received www.cbsnews.com/news/minneapolis- Meeting Law” on page 34 of this issue of a call from a grocery store alleging police-george-floyd-died-officer-kneeling- the Silha Bulletin, “Judge Allows Media that he used a counterfeit $20 bill, as neck-arrest/. Footage from another and Public to Make Copies of Evidence reported by several media outlets, angle is available online at: https://www. from Trial of Former Minneapolis Police including CBS News. According to a msnbc.com/msnbc/watch/new-video- Officer, Restricts Live Streaming of Noor transcript of the 911 call, the caller also shows-another-angle-of-george-floyd- Sentencing Hearing” in the Summer 2019 alleged that Floyd “had cigarettes,” was being-restrained-by-police-84061253930. issue, and “Media Coalition Wins Legal “under the influence of something,” and On May 26, several media outlets was “not acting right.” The full transcript reported that Chauvin, as well as three Protests, continued on page 4 3 Protests, continued from page 3 a cardiopulmonary arrest while the death of George Floyd by culpable being restrained by law enforcement negligence, creating an unreasonable Victory to Access Body Camera Video officer(s),” though it also noted risk and taking a chance of causing in Trial of Former Minneapolis Police that Floyd had other “significant death of great bodily harm[.]” The full Officer” in the Winter/Spring 2019 issue.) conditions, including “[a]rteriosclerotic complaint is available online at: https:// Later in the day on May 29, and hypertensive heart disease; www.cnn.com/2020/05/29/us/derek- prosecutors released the criminal fentanyl intoxication; [and] recent chauvin-criminal-complaint-trnd/index. complaint filed in the Minnesota Fourth html. Judicial District Court. The complaint On May 31, first confirmed several details about the “The CNN crew, as well as all Walz announced incident revealed by media outlets and journalists, have a First Amendment that Minnesota the bystander video, including that Floyd Attorney General was pulled from his vehicle by police. right to cover the protests. Although, Keith Ellison The complaint also provided several like other members of the public, would take over additional details, including that Floyd they cannot impede or interfere with the investigation “actively resisted being handcuffed” and prosecution after being pulled from his vehicle. legitimate law enforcement activity, of the MPD The complaint further alleged that the they must be allowed to conduct lawful officers involved officers “made several attempts to get newsgathering.” in Floyd’s death. Mr. Floyd in the backseat” of a police On June 3, Ellison car as “Floyd did not voluntarily get in —Jane Kirtley, announced that the car and struggled with the officers by Silha Center Director and he had upgraded intentionally falling down.” Silha Professor of Media Ethics and Law the charges After Floyd “went to the ground face against Chauvin down . . . still handcuffed,” Officer J.A. to second-degree Kueng held Floyd’s back and Officer methamphetamine use.” The murder and had also charged Kueng, Thomas Lane held his legs. Officer full report is available online at: Lane, and Thoa with aiding and abetting. Tou Thoa, who arrived at the scene https://content.govdelivery.com/ The complaints against all four officers with Chauvin, blocked witnesses from attachments/MNHENNE/2020/06/01/ are available online at: https://kstp.com/ interfering. It was then that Chauvin file_attachments/1464238/2020-3700%20 news/criminal-complaint-3-other-former- “placed his left knee in the area of Mr. Floyd,%20George%20Perry%20 minneapolis-police-officers-involved- Floyd’s head and neck,” keeping it Update%206.1.2020.pdf. in-george-floyd-death-charged-in- there for eight minutes and 46 seconds. Also on June 1, an independent custody/5750207/. According to the complaint, “[t]wo autopsy commissioned by Floyd’s family Meanwhile, in the days following minutes and 53 seconds of this was after called Floyd’s death a homicide and Floyd’s death, peaceful and violent Mr. Floyd was non-responsive.” The determined that he died of “asphyxiation protests erupted in Minneapolis, complaint added, “Police are trained that from sustained pressure,” meaning including at the scene of the incident this type of restraint with a subject in a a lack of blood flow to the brain due and near the MPD’s Third Precinct police prone position is inherently dangerous.” to compression on his back and neck station. Local and national journalists Second, the complaint stated that caused by officers kneeling on him. At a provided live coverage of the protests the autopsy conducted by the Hennepin news conference, Dr. Michael Baden, a each night that they took place. On May County Medical Examiner’s (ME) on former New York City medical examiner 29, several media outlets, including the May 26 preliminarily revealed that the and one of two doctors hired to conduct Star Tribune, reported that protesters “combined effects of Mr. Floyd being the autopsy, said at a news conference, had set fire to the Third Precinct police restrained by police, his underlying “The cause of death in my opinion is station after breaking into the building, health conditions [of coronary artery asphyxia, due to compression to the among other instances of property disease and hypertensive heart disease,] neck — which can interfere with oxygen damage and looting. Additionally, on May and any potential intoxicants in his going to the brain — and compression 27, several media outlets reported that system likely contributed to his death.” to the back, which interferes with a man had been shot and killed during However, the complaint claimed breathing.” the protests on the same day. Protests that there were “no physical findings The complaint included one count around the United States continued over that support a diagnosis of traumatic of third-degree murder, which carries a the next several days. asphyxia or strangulation.” maximum prison sentence of 25 years. However, on June 1, the Hennepin The complaint alleged that “Chauvin CNN Crew and WCCO Photographer County ME updated its findings and caused the death of George Floyd by Arrested in Minneapolis Amidst ruled that Floyd’s death was a homicide, perpetrating an act eminently dangerous Protests Over Death of George Floyd finding that he died of “cardiopulmonary to others and evincing a depraved mind, On May 29, CNN reported that arrest complicating law enforcement without regard for human life.” The correspondent Omar Jimenez, his subdual, restraint, and neck complaint also includes one count of producer Bill Kirkos, and photojournalist compression,” according to a “press second-degree manslaughter, which Leonel Mendez were arrested by release report” released by the ME. The carries a maximum prison sentence Minnesota State Patrol officers while report claimed that the “injury occurred” of 10 years and/or a $20,000 fine. The reporting live from the protests in south because the “[d]ecedent experienced complaint alleged that Chauvin “caused Minneapolis. The arrests prompted

4 significant criticism from observers, activating the National Guard, stating (For more information on the arrest including the Silha Center for the that it was necessary after “extensive of Goodman and other reporters at the Study of Ethics and Media Law. On damage to private property occurred 2008 Republican National Convention, May 30, WCCO, the Twin Cities’ CBS and peaceful protests evolved into a see “Dozens of Journalists Arrested at affiliate, reported that veteran WCCO dangerous situation for protesters and Republican National Convention in St. photographer Tom Aviles was arrested first responders.” Paul” in the Fall 2008 issue of the Silha while covering the ongoing protests over In a May 29 tweet, the Minnesota Bulletin. Goodman also faced arrest the death of Floyd, prompting renewed State Patrol claimed that “[i]n the course after covering oil pipeline protests criticism from observers. of clearing the streets and restoring in North Dakota in 2016. For more According to CNN, the arrests order at Lake Street and Snelling Avenue, information on the warrant issued of its television crew were made at four people were arrested by State Patrol against Goodman, see North Dakota approximately 5 a.m. despite Jimenez troopers, including three members of a Officials Issue Warrant forDemocracy “holding his CNN badge while reporting, CNN crew. The three were released once Now! Reporter During Pipeline Protests identifying himself as a reporter, and they were confirmed to be members of in “Independent Journalists Face Threats telling the officers the crew would move the media.” to Newsgathering Rights” in the Fall 2016 wherever officers needed them to.” However, CNN’s Communications issue of the Silha Bulletin.) During the live report, Jimenez can be Department responded in a tweet In a separate statement, Reporters heard telling the police, “We can move that the State Patrol’s claim was “not Committee for Freedom of the Press back to where you like. We are live on accurate — our CNN crew identified (RCFP) executive director Bruce the air here.. . . Put us back where you themselves, on live television, Brown said, “We strongly condemn want us. We are getting out of your immediately as journalists. We thank the Minnesota State Patrol’s arrest way — wherever you want us (we’ll) Minnesota @GovTimWalz for his swift of a CNN news crew covering the get out of your way.. . . We were just action this morning to aid in the release protests in Minneapolis, who responded getting out of your way when you were of our crew.” In a separate tweet, CNN professionally and appropriately to advancing through the intersection.” also pointed out that Jimenez, who is of the situation. The First Amendment Nevertheless, an officer is heard Hispanic heritage and identifies as black, protects newsgathering, and prohibits during the live report saying, “You’re was “arrested while legally covering the the government from using police under arrest,” as reported by The protests in Minneapolis” while a “white power as a pretext for interfering with Hill. According to CNN, an officer reporter also on the ground was not.” press freedoms. Arresting journalists subsequently “gripped [Jimenez’s] The arrest of the CNN crew prompted to prevent reporting on a public arm . . . then put him in handcuffs.” A significant criticism from observers. In a demonstration is not acceptable.” member of the crew told the network May 29 statement, Silha Center Director Brown continued, “News coverage that police told Jimenez and the crew and Silha Professor of Media Ethics and of protests like the one in Minneapolis members that they were “being detained Law Jane Kirtley said, “The CNN crew, is essential to informing the public because they were told to move and as well as all journalists, have a First and understanding the concerns of our didn’t.” The video of the arrests from Amendment right to cover the protests. communities. While we are relieved the live report is available online Although, like other members of the that the news crew was ultimately at: https://t.co/oZdqBti776. public, they cannot impede or interfere released, we expect the Minnesota State In a report following his release, with legitimate law enforcement activity, Patrol to provide a full explanation as Jimenez said that while he and his crew they must be allowed to conduct lawful to why these reporters, who identified were detained, everyone “was pretty newsgathering. The seizure of these themselves as journalists, were taken cordial” and showed “no animosity,” journalists and their equipment violates into custody.” The full statement is as reported by the Minneapolis Star not only the First Amendment, but the available online at: https://www.rcfp.org/ Tribune and The Hill on May 29. He federal Privacy Protection Act of 1980, cnn-crew-arrest-statement/. continued, “There seemed to be a little which shields journalists from unlawful The Society of Professional bit of confusion around what was seizure of their work product and Journalists (SPJ) said in a separate allowed to happen.. . . The moment documentary materials.” statement, “These journalists work before the arrest actually happened, we Kirtley continued, “It is less than ten ethically — and often in harm’s way — to saw one protester, or at least someone years ago that the cities of Minneapolis bring important news to the public. was not media, run past us . . . and and St. Paul settled a lawsuit brought The reporters’ unwarranted arrest is after that person was apprehended, by Democracy Now! journalist Amy inexcusable.” Minnesota Pro Chapter of [police] turned toward us.” Jimenez Goodman and her colleagues after SPJ President Chris Snowbeck similarly added that an individual hired to provide violating their constitutional rights by argued that “law enforcement officers security for the television crew was also arresting them during their reporting on should be well aware of the importance apprehended and later released. the Republican National Convention in of the media whose job it is to document CNN President Jeff Zucker said in 2008. It is disheartening that the lesson and report on breaking news for the a statement read on the air on May 29 that government cannot interfere with benefit of the general public.” He that he had spoken with Minnesota Gov. newsgathering has been so quickly continued, “We implore the responding Tim Walz, who apologized for the arrest forgotten.” The Silha Center’s full parties to alert their officers on the rights of Jimenez and was working to ensure statement is available online at: https:// of the press and the necessity of their that he and the two other crew members hsjmc.umn.edu/news/2020-05-29-silha- presence as they continue to report on were released immediately. On May center-study-media-ethics-and-law- the current unrest.” 28, Walz had signed an executive order condemns-arrest-omar-jimenez. Protests, continued on page 6 5 Protests, continued from page 5 Revokes and Suspends Hard Press is maintained. Not only that, the Passes Under New Rules” in the Summer protection and security and safety of The American Civil Liberties Union 2019 issue, “President Trump Continues the journalists covering this is a top (ACLU) also criticized the arrests, Anti-Press Rhetoric and Actions” and priority, not because it is a nice thing writing in a statement, “Journalists “Journalists in the United States and to do, because it is a key component of should never be arrested in this country Abroad Face Threats of Violence and how we fix this. Sunshine, disinfectant[,] for doing their job. People are in the and seeing what’s streets of Minneapolis demanding racial happening has to justice, and the public has a right to see “We will continue to strive to make sure be done.” it. Public transparency is absolutely that that accessibility is maintained. Not Later in the day necessary for police accountability.” on May 29, Walz’s The Student Press Law Center (SPLC) only that, the protection and security office released similarly condemned the arrests in a and safety of the journalists covering a press release statement. SPLC executive director this is a top priority, not because it is announcing that Hadar Harris was quoted as saying, the governor had “The arrest of [the CNN crew] is the a nice thing to do, because it is a key signed Executive latest in a string of egregious attacks component of how we fix this. Sunshine, Order 20-65, which on press freedom and attempts to disinfectant[,]and seeing what's “implementing stifle the reporting of important — if a temporary difficult — stories. Journalists covering happening has to be done.” nighttime protests work hard to balance the curfew that will public’s right to know with the safety —Tim Walz, provide safety of those around them; they should Governor of Minnesota for Minnesota never face handcuffs simply because residents from they are present. The racial implication Incarceration” in the Fall 2018 issue, individuals who have engaged in of Jimenez’s arrest while his white Five Newspaper Staff Members Killed, unlawful and dangerous activity colleague worked undisturbed nearby is Two Injured in Shooting at Local in recent days and threatened the also cause for significant concern.” Maryland Newsroom in “Journalists security of lawful demonstrators and In a May 29 interview with The Face Physical Violence, Other Dangers first responders.” The curfew, which Washington Post, Gibson, Dunn & in the United States and Abroad,” was scheduled from 8 p.m. on May 29 Crutcher LLP attorney Theodore J. and Federal Prosecutors Seize Phone through 6 a.m. on May 30, meant that “no Boutrous argued that the arrests were and Email Records of New York one may travel on Minneapolis and Saint the result of several years of politicians Times Reporter in Leak Investigation Paul streets or public places.” Those targeting journalists and news outlets in “Trump Administration Targets exempted from the curfew included with anti-press rhetoric “and trying Journalist, Leaker of Government “first responders,members of the media, to undermine the public’s respect for Information, and Former Government people going back and forth to work, journalists and journalism. This has Employees Who Took Classified individuals seeking emergency care or created an unprecedented degree of Documents,” in the Summer 2018 issue, fleeing danger, and people experiencing dangerous hostility to the press in this “Reporters and Leakers of Classified homelessness” (emphasis added). The country that has shattered traditions Documents Targeted by President full press release is available online at: and that can lead to shocking events like Trump and the DOJ” in the Summer 2017 https://mn.gov/governor/news/#/detail/ this one.” (Boutrous delivered the 33rd issue, “Media Face Several Challenges appId/1/id/434117. Annual Silha Lecture, titled “The First During President Trump’s First Months Minneapolis Mayor Jacob Frey issued Amendment and #MeToo” on Oct. 17, in Office” in the Winter/Spring 2017 an amended Emergency Regulation 2018. For more on the lecture, see “33rd issue, and “2016 Presidential Candidates (regulation) imposing a nighttime Annual Silha Lecture Addresses the Present Challenges for Free Expression” curfew in accordance with the executive Free Speech Implications of the #MeToo in the Summer 2016 issue.) order. Among those exempted from the Movement” in the Fall 2018 issue of the In a May 29 press conference, Walz regulation were “members of the news Silha Bulletin.) apologized once again for the arrests. media.” The full regulation is available President Donald Trump and “I take full responsibility. There is online at: http://news.minneapolismn. his administration have repeatedly absolutely no reason something like gov/2020/05/29/mayor-frey-signs- targeted or criticized the news media, this should happen. Calls were made emergency-regulation-in-minneapolis- including calling the press “enemies immediately. This is a very public establishing-curfew-tonight-at-8-p-m/. of the American people” and the “fake apology to that team,” Walz told The original regulation did not include news media.” (For more information reporters. “The issue here is trust. The an exemption for the news media, on President Trump’s anti-press community that’s down there that’s but was amended after public records rhetoric and actions more generally, see terrorized by this, if they see a reporter researcher and data activist Tony “Special Report: COVID-19 Pandemic being arrested, their assumption is it’s Webster pointed out the omission in a Raises Media Law and Ethics Issues, because something’s going to happen May 29 tweet to Frey. Challenges, and Opportunities” on page that they don’t want to be seen. And so On May 30, 2020, WCCO reported that 16 of this issue of the Silha Bulletin, that is unacceptable.” veteran photographer Tom Aviles was “Federal Judge Orders White House to Walz continued, “We will continue to arrested by the Minnesota State Patrol Reinstate Reporter’s Press Credential” strive to make sure that that accessibility when covering the ongoing protests over in the Fall 2019 issue, “White House 6 the death of Floyd. Aviles recorded the additional reporters, photojournalists, [hers and Freemark’s] heads, while we encounter with the police, including and others faced arrests, rubber bullets, were standing on Nicollet and 32nd when he was hit by a rubber bullet. pepper balls, tear gas, threats, and more. covering the protests.” Baran added that Aviles repeated multiple times that he According to the U.S. Press Freedom she “yelled that [she is] a journalist,” was with WCCO, but an officer was Tracker, a database of press freedom but that the officer “did not lower his heard in the footage repeatedly yelling, violations in the United States and weapon,” prompting the journalists to “Get back!” and “Get out of here.” around the world managed by the run away from the scene and “call[] it a After attempting to leave the area Freedom of the Press Foundation, night.” as directed by a line of officers walking on May 27, freelance journalist About two hours later, Unicorn down the road towards himself and Jared Goyette was struck in the Riot, a nonprofit media organization producer Joan Gilbertson, Aviles was eye by an unknown object and tear dedicated to “exposing root causes forced onto the ground when an officer gassed by police. Dymanh Chhoun, of dynamic social and environmental said, “You are under arrest.” While on a photojournalist at WCCO, was also issues,” tweeted that police were “no the ground, Aviles repeated “I’m not hit with tear gas, according to the longer respecting freedom of press fighting.” As Aviles was being placed U.S. Press Freedom Tracker, which in Minneapolis,” writing that “SWAT in a police vehicle, he continued to has an advisory committee chaired by just forced our reporting team into a record what took place using his cell the Committee to Protect Journalists business and slammed the door.” In phone. The video is available online (CPJ) and also includes the Reporters a subsequent tweet, the media outlet at: https://twitter.com/mplstvguy/ Committee for Freedom of the Press stated that “police suddenly appeared status/1267013236102246404?s=20. (RCFP), among other organizations. and threatened us, forced us inside, According to WCCO, the news Minnesota Reformer reporter Ricardo then their large force quickly left the organization contacted its CBS Lopez tweeted around 11 p.m. that he block as quickly as it came just a few attorneys, which worked on releasing was “physically yanked away” by a min[utes] later.” A video taken earlier Aviles. WCCO also noted that the curfew, police officer who wanted the media to by Unicorn Riot of police threatening which remained in effect on the night of move away from the advancing police them with arrest is available online May 30 and morning of May 31, allowed line. Reformer reporter Max Nesterak at: https://twitter.com/UR_Ninja/ reporters to be on the scene of the tweeted shortly after that he was struck status/1266652249650016257?s=20. protests. At approximately 10:45 p.m. on in the chest by a rubber bullet. Previously, on May 26, Unicorn Riot May 30, Aviles was released from police In a May 29 opinion piece for the Des reporter Niko Georgiades was hit by a custody. Moines Register, reporter Tyler J. Davis projectile on his arm. At a May 30 press conference, wrote that the previous day he was “hit At 9:27 a.m. on May 30, freelance Minnesota Commissioner of Corrections with chemical irritants” while covering journalist Conor Fortune tweeted Paul Schnell called the arrest of Aviles the protests in St. Paul, Minn. Davis a video showing police tackle an and the shooting of journalists with stated that “officers sprayed canisters in independent journalist from Minnesota rubber bullets “regrettable” and claimed every direction telling people to move News Now “even after appearing to that it was hard for officers to tell toward the north sidewalk or keep comply with [a] police order to move.” who was a journalist because of their moving west. The crowd became angrier, Video of the incident is available “widespread use of masks.” telling officers the nonlethal weapons online at: https://www.youtube.com/ University of Minnesota Hubbard were unnecessary and excessive. Behind watch?v=VuMLEev7cAQ. School of Journalism and Mass the barricades, flash-bang devices were Additionally, in a series of tweets Communication director Elisia Cohen thrown into the avenue along with on May 30, freelance photojournalist tweeted on the same night, “I condemn smoke grenades.” Davis wrote that when Linda Tirado wrote that she permanently the arrest of a @WCCO reporter. he “pulled out [his] camera to record lost vision in one eye after she was hit Reporters are exempt from the curfew the incident,” an officer “redirected with a rubber bullet while covering and have a right to lawfully document his chemical spray” toward Davis. The the protests in Minneapolis. The full the police action.” full opinion piece is available online at: tweet string is available online at: Star Tribune editorial board member https://www.desmoinesregister.com/ https://twitter.com/KillerMartinis/ Patricia Lopez tweeted, “I have never story/opinion/2020/05/29/george-floyd- status/1266786161143537669?s=20. seen this level of aggression against minneapolis-protests-leave-usa-today- The following night, on May 30, there journalists. The governor’s assurances reporter-hit-chemical-spray/5285067002/. were numerous additional instances of that reporters could do their jobs don’t On May 30, Samara Freemark, the police arresting, attacking, or threatening seem to be making much difference to senior producer of “In the Dark,” an journalists. One of the early reports [law enforcement officers].” investigative podcast by APM Reports, was by Ryan Raiche, an investigative tweeted at approximately 1 a.m. that “an reporter at KSTP, the Twin Cities’ ABC Numerous Additional Journalists officer ran up and pointed some kind affiliate, who wrote in a tweet that he, Face Arrests and Injuries by Law of weapon (tear gas? Projectile?)” at his photographer, and producer “were Enforcement in the Twin Cities herself, Minnesota Public Radio (MPR) with a group of media and thought we The CNN crew members and WCCO reporter Matt Sepic, “In the Dark” lead were in a safe spot. We kept saying we’re photographer Tom Aviles were not reporter Madeleine Baran, and APM media. Police tear gassed and pepper the only journalists that were arrested Reports reporter Parker Yesko. The sprayed the entire group. Everyone ran. or injured by police amidst efforts journalists “ran” after the officer yelled It was insane. It happened so fast.” Video to combat protests over the death of “Go! Go!” Baran similarly tweeted that of the encounter is available online George Floyd in the Twin Cities. Several an MPD officer “pointed a weapon at Protests, continued on page 8 7 Protests, continued from page 7 Cole was hit in the face with a rubber Communication, were “driving near bullet. She added, “I didn’t realize it, but I Lake St.” Xiong added, “No warning at: https://kstp.com/news/kstp-crew- was bleeding from several wounds to my given[.]” Star Tribune reporter Chris caught-in-middle-of-chemical-irritants- leg.. . . Blood covered the face mask of a Serres was also hit by a rubber bullet, dispersed-by-minnesota-national-guard- reporter next to me, who was so stunned according to a tweet he sent earlier in local-law-enforcement/5745902/. Early in someone had to tell him he was hurt.” the evening. In a May 31 tweet, Serres the morning on May 31, KSTP reported Cole later wrote that her left cornea elaborated on what took place, writing, that a KSTP reporter, photographer, was damaged, which she attributed to “I was twice ordered at gunpoint by and producer “were caught in the pepper spray. Her article recounting Minneapolis police to hit the ground, middle of chemical irritants being used her experience is available online at: warned that if I moved ‘an inch’ I’d be to disperse protesters by the National https://www.latimes.com/world-nation/ shot. This after being teargassed and hit Guard and local law enforcement.” KSTP story/2020-06-01/they-came-toward-us- in groin area by rubber bullet. Waiving said that the crew, while attempting firing-pepper-spray-and-rubber-bullets. [sic] a Star Tribune press badge made no to retreat, “was sprayed by chemical At approximately 8 p.m. on May 30, difference.” irritant and pepper spray.” In a June NBC News social media strategist Micah Just after midnight on May 31, 2 tweet, NBC News staff producer Ed Grimes tweeted that the Minnesota State Faircloth tweeted that police or Ou wrote that he, producer, director, Patrol or National Guard “aimed and members of the Minnesota National and cinematographer Mike Shum, and intentionally shot me in [the] side with Guard “just blew my passenger window photojournalist Peter Van Agtmael were canister with green powder.” Grimes out with live rounds as I tried to turn left among the other journalists in the area continued, “I turned back to him, he and get out of the area.” He wrote that hit with “peppery spray, concussion taunted me like would shoot me again, it resulted in the “glass shattering into grenades, batons, and tear gas by twice. Clear cheap shot. Video at the end. [his face and body.” Faircloth added, “I’m the Minnesota state patrol.” Video of I’m fine. Had my media badge clearly bleeding from the side of my face and the encounters are available online on chest.” The video is available online down my left arm.. . . It isn’t horrible but at: https://twitter.com/edouphoto/ at: https://twitter.com/MicahGrimes/ I am shook up. The window completely status/1267958349477249024?s=20 status/1266537250998956032?s=20. shattered and smoke filled the car.” and https://twitter.com/edouphoto/ At 9:01 p.m., freelance journalist Faircloth later clarified in a tweet that status/1267981849537609728?s=20. Timothy Burke tweeted a CNN video he believed his vehicle was hit by rubber At 8:53 p.m., Dawn Mitchell, a sports showing an unidentified cameraperson bullets. anchor at FOX 9 in Minneapolis, tweeted with a “Press” written on his helmet Xiong also tweeted early in the that although “[m]edia [were] allowed in get hit by a projectile fired by police as morning on May 31 that he was with areas [of] downtown” Minneapolis and he ran to safety. The video is available Star Tribune reporter Elizabeth Sawyer, that FOX 9 reporter Christina Palladino online at: https://twitter.com/bubbaprog/ as well as “2 Kurdish journalists and 1 and her crew “identified themselves as status/1266912774833287169?s=20. Japanese journalist near 5th precinct” media,” they “were still shot at twice by CBS News correspondent Michael when officers “told us to go home.” MPD,” with the rubber bullets hitting the George tweeted at 9:30 p.m. that Xiong continued, “When we said we windshield of their vehicle. (Mitchell was “Minneapolis police fired on our CBS were press one [officer] said ‘Your cards one of five sports journalists who served News crew with rubber bullets” although are bullshit,” referring to their press as panelists at the 2013 Silha Spring the crew was “wearing credentials and credentials. Similarly, Star Tribune Ethics Forum. For more information on had cameras out.” George added, “Our reporter Mara Klecker tweeted at 12:25 the Forum “Tebow, Te’o and Tiger, Oh, sound engineer was hit in the arm.” a.m. that “St. Paul Police also told media My!: Keeping Your Distance as an Ethical At 11:11 p.m. on May 30, Vice News to go home tonight.” Klecker wrote that Sports Journalist,” see “Silha Spring correspondent Michael Anthony Adams although she “showed [police her] press Ethics Forum Discusses Issues Facing tweeted that police “raided the gas badge,” she was told it “doesn’t matter.” Sports Journalists” in the Winter/Spring station” where he and other journalists The following morning, the St. Paul 2013 issue of the Silha Bulletin.) “were sheltering at.” He continued, Police Department (SPPD) sent a At 8:56 p.m., Los Angeles Times “After shouting press multiple times and message to Klecker on Twitter, which reporter Molly Hennessy-Fiske posted raising my press card in the air, I was read, “Hi Mara. We saw your tweet about a video on Twitter in which she stated thrown to the ground. Then another cop the police officer you say told you to go that although she and approximately 12 came up and peppered sprayed me in home. That doesn’t sound like something additional television and print journalists the face while I was being held down.” we see from an SPPD officer because identified themselves as members of Adams included a video of the incident we work hard to protect freedom of the news media, the Minnesota State in his tweet, which is available online at: the press. But in the throes of such a Patrol “fired tear gas canisters . . . at https://twitter.com/MichaelAdams317/ dynamic situation, it’s possible one of point blank range.” She continued, “I status/1266945268567678976. our officers had a momentary lapse. It got hit in the leg.. . . We asked them At 11:18 p.m., Minneapolis Star also may be possible that the officer was ‘where do we go? Where do we go? They Tribune reporter Chao Xiong tweeted from another agency. There were a lot of did not tell us where to go, they just that “[o]fficers of some type just shot agencies involved last night. Either way, fired on us.” The full video is available some type of rounds (rubber bullets)” we’d love to learn more so we can see if online at: https://twitter.com/b_stahl/ at the vehicle in which he and Star there’s a gap in our training or at the very status/1266915025198997512?s=20. Tribune reporter Ryan Faircloth, an least remind him about our values and In a May 31 article describing what alumnus of the University of Minnesota protocols. Would you mind giving one of took place, Hennessy-Fisk also noted Hubbard School of Journalism and Mass our PIOs a call this week?” that her photographer colleague Carolyn 8 At 12:57 a.m. on May 31, MSNBC host struck in the shoulder with a rubber again extend my deepest apologies to Ali Velshi tweeted a video depicting bullet in Minneapolis. the journalists who were once again advancing police shoot tear gas towards According to Bellingcat, an in the middle of this situation, were protesters, himself, and his MSNBC independent investigative journalism inadvertently but nevertheless detained,” crew. The full video is available online at: website, a Swedish and a Norwegian he said. “To them personally, and to the https://www.msnbc.com/msnbc/watch/- journalist were also targeted by rubber news organizations and to journalists there-was-no-warning-whatsoever-police- bullets overnight on May 30. An everywhere, it is unacceptable. I said shoot-tear-gas-toward-protesters-msnbc- Australian News crew was also detained, when it happened the other day, when I crew-84141125529. handcuffed, and searched before being failed you, I have to do better. I continue At 1:30 a.m., Reuters producer released by law enforcement. to need to do and send that message. I Julio-César Chávez tweeted that he Additionally, at 12:47 a.m. on May take full responsibility for that and won’t was shot in the arm and neck “with 31, Tim Arvier, a journalist at Nine equivocate no matter how difficult the rubber bullets in the middle of covering News in Australia, tweeted that he, his environment is.” the Minneapolis protests.” He added, cameraman, and their security were Walz continued, “I would just ask “My security advisor was shot in the “detained and searched by #Minneapolis folks to know that in restoring public face; his gas mask protected him.” A Police.” He continued, “They cuffed my order and adhering to democratic full account of the incident is available cameraman and our security but were principles, and having a history as online at: https://www.reuters.com/ respectful and have now let us go.” governor of welcoming that openness, article/us-minneapolis-police-protest- In a May 31 tweet posted at 5:49 it is certainly not our intention nor is it update/reuters-cameraman-hit-by-rubber- a.m., freelance photojournalist helpful to restoring public order to have bullets-as-police-disperse-protesters- Hossein Fatemi posted a video of that happen. So you can rest assured that idUSKBN237050. police targeting himself and other we will back again at what happened, try At 6:23 a.m., Simon Moya-Smith, journalists with tear gas even though and make those changes. I ask you again a contributing writer for NBC News, they “told the police [they] were from that we will continue to dialogue with alleged in a tweet that the previous the press.” The video is available online the media. It’s critically important that night he “was pepper-sprayed then at: https://twitter.com/hosseinfatemii/ we do that. It’s critically important that I arrested . . . by Minneapolis PD even status/1266919473111588865?s=20. am able to maintain or restore their trust after identifying myself as a reporter According to a May 31 tweet by in the necessity of them being out there MULTIPLE times.” Moya-Smith stated Deutsche Welle (DW) News, “a DW to tell the story.” that as he was lying on the ground, an reporter and his camera operator [were] However, at one point, Walz said, officer checked his press credential shot at [overnight] with projectiles “People picked up with guns [claimed] while another told him to “Roll on your by Minneapolis police and threatened to be reporters during the confusion side, Mr. Journalist.” A third officer then with arrest while covering the protests of all of this,” seeming to attempt to “loaded” Moya-Smith into a police car, sparked by the death of George Floyd.” provide justification for the arresting and when he again saw his “press badge and A video of the incident is available targeting of journalists overnight. shrug[ged].” online at: https://twitter.com/dwnews/ On the night of May 31 / June 1, police At 10:57 a.m., Star Tribune staff status/1267119897806397442?s=20. continued to arrest, assault, or threaten photographer Anthony Soufflé tweeted In the afternoon of May 31, Soufflé journalists amidst ongoing protests his thanks to several individuals tweeted that the previous night, in the Twin Cities. At 8:47 p.m., MPR who “came to my and several other European Pressphoto Agency (EPA) “Morning Edition” host Cathy Wurzer journalists aid when we were tear gassed photojournalist Tannen Maury and tweeted that WCCO reporter Mike Max yesterday.” He added, “I’m incredibly Minneapolis freelance photojournalist and his cameraperson “had to run for thankful for them.” Craig Lassig were two of several cover” while officers shot rubber bullets International journalists and student photojournalists arrested by police for and tear gas in the area. journalists also faced arrests and attacks “violating Minneapolis curfew, despite At 10:15 p.m., Vice News deputy D.C. by police amidst the protests on May 30/ a press exemption.” Maury wrote in a bureau chief Todd Zwillich tweeted that May 31. At 8:54 p.m. on May 30, reporter separate tweet, “Charged with curfew as police were “moving protesters up Andrew Buncombe of the Independent violation . . . this one will get dropped. 16th st[reet],” he was “hit in the head in the United Kingdom (UK) tweeted Worst part? I missed three hours of with a rubber bullet,” even though that the “[i]nternational media [is] being shooting on the streets.” his “press credentials [were] out.” A targeted with tear gas [and] non-lethal Megan Palmer, a reporter at the video of the incident is available online rounds.” Minnesota Daily, the student newspaper at: https://twitter.com/toddzwillich/ Around the same time, Radio-Canada at the University of Minnesota, tweeted status/1267293699630866433. journalist Philippe Leblanc tweeted that “the police pulled a weapon on me On the night of June 1 / June 2, WCCO a video showing police shove him twice tonight, once for doing my job and reporter John Lauritsen tweeted at as police arrived at the scene of a once for trying to get home.” She added 10:28 p.m. that as the Minnesota State protest in a Minneapolis transit bus. in a subsequent tweet, “I am safe, I am patrol “move[d] in,” he was “caught The full video is available online at: fine, but I am livid and I won’t pretend inside by protesters.” Lauritsen said he https://twitter.com/phil_leblancSRC/ I’m not.” was “[d]etained but released after [he] status/1266907398003924992?s=20. In a May 31 press conference, Walz showed [his] credentials.” Also on May 30, Canadian Broadcasting once again apologized to journalists On May 31, The Washington Post Corporation (CBC) senior correspondent and news organizations that were reported that guards from the Somali Susan Ormiston reported that she was targeted by police. “I want to once Protests, continued on page 10 9 Protests, continued from page 9 strongest possible terms the violence bullets reportedly fired by a Louisville and contempt that the Minneapolis Metro Police Department (LMPD) community in Minneapolis stood guard Police Department and other law officer. The protest was over the death of local businesses, including near enforcement have shown journalists of Floyd, as well as Breonna Taylor, Karmel Mall on Lake Street. The Post in recent days and calls on Gov. Tim a black woman killed by police in explained that “Somali youth vetted Walz and city leaders to do the same. her home in March 2020. The Federal journalists who approached on Google, Curfew orders that these leaders put in Bureau of Investigation (FBI) opened an matching their publications with place specifically exempted members investigation into her death on May 31. previous work online before they would of the media — an exemption that law Rust was heard yelling off-camera: “I’ve agree to speak.” been shot! I’ve been On June 1, the Star Tribune reported shot!” The video that the Minnesota State Patrol was “Journalists have taken great risks this of the encounter is reviewing the incidents of journalists last week to show this community and available online at: being detained and injured by law the world what is happening in the Twin https://www.wave3. enforcement. The State Patrol was com/2020/05/29/ also reviewing its training protocols Cities, without fear or favor. They have wave-news- “to prevent similar interactions.” done their jobs, even when it meant reporter-hit-with- Additionally, the Minnesota Department receiving death threats, having their rubber-bullets- of Public Safety issued new guidance to during-louisville- journalists that they should wear visible personal property damaged, or getting protest/. credentials that can be seen from four hurt. This country has laws that protect The following feet away, according to the Star Tribune. journalists for one, simple reason: day, the Associated In an email to Silha Bulletin Co-Editor Press (AP) reported Jonathan Anderson, Klecker shared Without a free press, we will have no that LMPD the State Patrol’s response, which read, democracy.” spokesperson “There were several incidents involving Jessie Halladay members of the media and State Patrol —Chris Snowbeck, apologized for troopers last night, including the arrest President, Minnesota Pro Chapter the incident, of a photographer when troopers were of the Society of Professional Journalists stating that it was clearing an area near Nicollet and “not something Franklin in Minneapolis. The State Patrol that should have is reviewing these incidents and its enforcement blatantly ignored Friday occurred if she was singled out as a training protocols in an effort to prevent and Saturday nights.” The statement reporter.” However, Stephanie Wolf, a similar incidents in the future. During continued, “Journalists have taken reporter at WFPL News, a Louisville these operations, it can be difficult for great risks this last week to show this community-supported nonprofit law enforcement to tell journalists from community and the world what is distributing daily journalism, tweeted a person who is violating the curfew happening in the Twin Cities, without that she “got shoved to the ground order and not complying with commands fear or favor. They have done their jobs, by law enforcement [in Louisville] as to leave the area.” even when it meant receiving death [she] was trying to duck pepper balls.” The DHS guidance read, “To make threats, having their personal property She continued, “They pulled my hands it easier to distinguish journalists damaged, or getting hurt. This country behind my back as I shouted ‘media.’ during demonstrations, the Department has laws that protect journalists for one, Same thing happened to my colleagues. of Public Safety recommends the simple reason: Without a free press, we I shoved up my large camera and they following guidelines: A credential will have no democracy. And then there eventually released us.” should be worn around the neck and will truly be nothing left.” In Indianapolis, Ind., two readable from four feet. The credential Indianapolis Star journalists, Vic should include the name of the media Journalists Face Arrests, Assaults, Ryckaert and Kelly Wilkinson, were hit representative — preferably with [their] and Threats by Police Across the with tear gas on May 29 while covering picture — and the name of the media United States protests in the city, according to outlet.” The guidance concluded by Beginning on the night of May 29 and Indianapolis Star news director Ginger stating, “Law enforcement recognizes the morning of May 30, 2020, journalists Rough in a May 29 tweet. you are allowed to be in the area also faced arrests and assaults by police Overnight on May 29 and May 30, to cover this important story, and as officers sought to subdue protests University of Maryland student journalist that the governor’s executive order in other parts of the United States as Julia Lerner was “chased by police exempts members of the media from protests over George Floyd’s death and maced three times while covering the curfew requirements. Please help expanded around the country, prompting protests in Columbus, Ohio,” according law enforcement by displaying your concerns from numerous press advocacy to the U.S. Press Freedom Tracker on credentials in an obvious manner and organizations. May 30. leaving an area when directed to do so.” On the night of May 29/May 30, Also on May 29, in Denver, Colo., In a separate statement, Minnesota WAVE 3 News reporter Kaitlin Rust police hit a photographer four times Pro Chapter of the Society of and photojournalist James Dobson, and his camera once with paintballs, Professional Journalists (SPJ) President while reporting live on a protest in according to a tweet by Adi Guajardo, a Chris Snowbeck “condemn[ed] in the Louisville, Ky., were hit with rubber journalist at KMDH-TV, the ABC affiliate

10 in Denver. The previous day, Denver Post arrest of journalists working in a public Police Department (NYPD) while he photographer Hyoung Chang said police forum at a highly newsworthy event is “was taking photos and video to post to fired tear gas and pepper balls directly absolutely unacceptable.” Twitter.” He added, “I told the police I at him, as reported by the Post and the At 4:35 p.m. local time on May 30, Los was with the Press, they walked by me U.S. Press Freedom Tracker on May 28. Angeles freelance journalist Lexis-Oliver and then turned around and arrested On May 30, David Sachs, a reporter for Ray tweeted that a Los Angeles Police me.” Additionally, HuffPost editor Philip Colorado Public Radio and Denverite, a Department (LAPD) “officer hit me in Lewis tweeted that he had been shot in member-supported news organization, the stomach after I clearly identified the leg with rubber bullets by the NYPD. tweeted that although he showed myself as a journalist multiple times.” At 11:56 p.m. local time, HuffPost Denver Police his press badge, an officer Cerise Castle of KCRW, a National Public announced on Twitter that reporter “shoved [him] twice.” Sachs continued, Radio member station broadcasting from Chris Mathias was “taken into custody” “Only place to go was into the street the campus of Santa Monica College in by the NYPD “while doing his job as a where I got gassed.” California, tweeted that “LAPD shot me journalist” covering protests in Brooklyn, In the evening of May 30, Capital and protestors . . . with rubber bullets. I N.Y. In a subsequent tweet, HuffPost Times opinion editor Jessie Opoien was holding my press badge above my included photographs showing Mathias tweeted that she had been hit with tear head.” being taken into custody by the NYPD gas along with several protesters near Also on May 30, Chicago, Ill., despite his press badge being “clearly the University of Wisconsin campus freelance reporter Jonathan Ballew visible.” in Madison, Wis. Milwaukee Journal tweeted at 8:04 p.m. that he “got pepper McKenzie Nelson, a reporter for Sentinel reporter Molly Beck similarly sprayed directly while holding [his] KSHB, Kansas City, Mo.’s NBC affiliate, tweeted, “We are getting pepper press pass up and screaming PRESS” tweeted at midnight on May 31 that she, sprayed.” while covering protests in Chicago. her photographer Darrius Smith, and At approximately 1:35 p.m. local Additionally, Scott Bourque, a reporter her field producer Scott Winkler had time, the Las Vegas Review-Journal at KJZZ, an NPR member station in been “hit by tear gas” and “had to move.” reported that Las Vegas Metropolitan Phoenix, Ariz., tweeted early in the Daily Caller reporter Shelby Talcott Police Department officers had arrested morning on May 30 that he was shot by a tweeted in the morning of May 31 that Review-Journal photographer Ellen Phoenix Police officer with a pepper ball “tear gas was thrown directly at [her]” Schmidt and freelance photographer or rubber bullet “as a working member during protests in Washington, D.C. and former Review-Journal employee of the media wearing my credential.” News Observer journalists in Raleigh, Bridget Bennett the previous night. At 10:04 p.m. local time, Unicorn N.C. were also the target of rubber Schmidt and Bennett are alumni of the Riot tweeted that Philadelphia police bullets and tear gas, according to a May University of Minnesota Hubbard School “swat[ted] our field reporter with a 30 story by the News Observer. of Journalism and Mass Communication. baton for filming” officers pinning “a Also at midnight, Detroit Free Press According to court records, the young black man to the ground with editor Jim Schaefer tweeted that several photojournalists were booked into the their knees.” After the reporter identified journalists from the newspaper “got Clark County Detention Center and themselves as a journalist, officers told pepper-sprayed” overnight on May 30 faced a misdemeanor charge of failing the reporter, “I don’t care what you are. and May 31 by Detroit Police, one of to disperse. At approximately 9:45 p.m. Beat it.” A video of the scene is available whom was hit “directly in the face as on the same day, several media outlets online at: https://twitter.com/UR_Ninja/ he held up his media badge.” Schaefer reported that the photojournalists had status/1266913490301792257?s=20. continued, “A photographer had her been released. Jeremy Jojola, an investigative livestream camera slapped out of her Review-Journal executive editor reporter with KUSA-TV, Denver’s NBC hand by another DPD officer as she tried Glenn Cook said in a statement, “It affiliate, tweeted at 10:12 p.m. local to do her job. This is not OK.” is appalling that Las Vegas police time that he was “hit with something At 6:04 a.m. local time on May 31, officers, who have nothing to do fired by police who were standing at the freelance photographer and journalist with what happened in Minnesota, Capitol.” He added, “I was clearly with a Matthew Rodier tweeted that he was would so forcefully take into custody photographer just after I went live with a shot in the hand with a less lethal two people who were obviously large camera and light.” In a subsequent projectile near Lafayette Park in working photojournalists and posed tweet, Jojola clarified that he was hit Washington, D.C. He wrote that he was no threat to law enforcement or with a rubber bullet fired by Capitol hit “despite walking away [and] yelling public safety.. . . They never should security officers with the Colorado State ‘I’m a journalist.’” have been touched, let alone arrested Patrol.” The following night of May 31 and and then booked into jail.” Nevada At 8:11 p.m. local time, freelance the morning of June 1, police continued Press Association Executive Director journalist Jordan Chariton tweeted that to clash with journalists as protests Richard Karpel said, “The press serve independent journalist Tina-Desiree continued around the United States. At a vital, constitutionally protected role Berg’s vehicle was “shot at by Los approximately 8 p.m., KCCI, the CBS during moments of national strife and Angeles police.” According to Chariton, affiliate in Des Moines, Iowa, reported civil disobedience.. . . Journalists put when Berg asked “why did you just that Des Moines Register reporter themselves at risk to inform citizens shoot at my car,” the officer responded Andrea May Sahouri was tear gassed about protesters’ grievances and their “call the city.” and subsequently detained by police actions, and to observe whether law At 11:22 p.m. local time, CNN “on the ground” at the protests at enforcement personnel are operating commentator Keith Boykin tweeted that Merle Hay Mall in Des Moines. In a live within the bounds of the law. The he had been arrested by the New York Protests, continued on page 12 11 Protests, continued from page 11 said that they “didn’t care that [they] intentionally target the press with rubber were media.” bullets, tear gas, and arrests. Scenes Twitter video taken by Sahouri in the Approximately two hours later, The reminiscent of China, Iran. We remain police vehicle where she was held, she Detroit News reported that investigative determined to show the country what’s asserted that she was “just reporting reporter Christine MacDonald was happening here.” at the [mall]” and was tear gassed and “briefly handcuffed” two hours earlier At 10:34 p.m. local time, San Jose arrested even though she repeated, “I’m while she was filming an arrest made Mercury reporter Leonardo Castañeda press, I’m press, I’m press.” According by Detroit police. MacDonald recorded tweeted that he was detained along with to Sahouri, police told her she was what took place on her cellphone and approximately 20 protesters by San arrested for “failure to disperse.” She can be heard telling the officer that she Francisco Police Department officers added, “I was just doing my job as a had press credentials. The officer then (SFPD), even though he identified journalist.” The video is available online instructed MacDonald to come back himself as a member of the press. at: https://twitter.com/lib_crusher/ to his scout car where she was briefly Castañeda added that he “got zip tied status/1267262710913343490?s=20. Just detained, according to The Detroit and searched” before eventually being before midnight, Des Moines Register News. MacDonald could be heard saying released. editor Rachel Stassen-Berger reported following her release, “I was filming At 11:17 p.m. local time, MSNBC that Sahouri had been released from from afar. I was not interfering at all, tweeted a video of NBC News reporter police custody. and he arrested me.. . . He asked me if Garrett Haake being “hit as police At around the same time, VPM News I was going to be leaving after this, I clash with protesters near the White reporter Roberto Roldan reported that said ‘no, I'm going to be doing my job House.” Haake tweeted at 11:43 p.m. “[a]fter showing [his] badge and yelling and covering this event.’” The video (12:43 a.m. local time) that he was ‘I am with the press’ a [Richmond (Va.) is available online at: https://www. hit by police with “rubber bullets/ Police] officer sprayed pepper spray detroitnews.com/story/news/local/ pellets/bean-bags.” He added, “I’m in [his] face and shoved [him] to the detroit-city/2020/05/31/detroit-news- fine, thanks especially to our crew & ground.” In a subsequent tweet, Roldan reporter-detained-other-journalists-say- security team. I have some souvenir added, “For the record this was not they-were-shoved-detroit-officers-during- welts on my side to show for it.” A just my experience. At least two other protes/5304445002/. video of the incident is available online reporters/photographers were coughing At 10:51 p.m. local time, Wall Street at: https://twitter.com/GarrettHaake/ and running. I had to pour milk on my Journal reporter Tyler Blint-Welsh status/1267315757987385346?s=20. photographers [sic] face and another tweeted that he “[l]ost [his] glasses and At 11:34 p.m. local time, freelance Richmond reporter.” [his] ankle [was] in searing pain after journalist Ford Fischer tweeted that At 6:40 p.m. local time, Adolfo NYPD hit [him] in the face multiple times “police shot a pepper or rubber bullet Guzman-Lopez, a reporter at KPCC, with riot shield and pushed [him] to into [his] forehead.” He added that police a public radio station in Southern the ground.” According to Blint-Welsh, “[l]ater kettled me + 30 people in, let California, tweeted that he was “hit officers did so even though he “was us go one by one and said we have to by a rubber bullet near the bottom of backing away as request[ed], with [his] leave city, else arrest.” At 12:58 a.m, BBC [his] throat.” He continued, “I had just hands up” and with his “NYPD-issued News North America correspondent interviewed a man with my phone at 3rd press badge . . . clearly visible.” Around Aleem Maqbool tweeted a video in and Pine [in Los Angeles] and a police the same time, Daily News reporter which a police officer in Washington, officer aimed and shot me in the throat, Noah Goldberg was struck by police D.C. charged at BBC cameraman I saw the bullet bounce onto the street.” with a baton, according to the U.S. Press Peter Murtaugh and hit him with a riot KPCC data journalist Aaron Mendelson Freedom Tracker. shield. The video is available online tweeted at 8:49 p.m. that police in Santa At 10:59 p.m. local time, CQ Roll Call at: https://twitter.com/AleemMaqbool/ Monica, Calif. had also pointed guns at a senior writer John M. Donnelly tweeted status/1267319521486004225. KPCC reporter and the previous day had that a CNN reporter in Washington, D.C. At 11:15 p.m. local time on May 31, hit a KPCC reporter with a baton. reported that a Metropolitan Police Eugene Weekly reporter Henry Houston At approximately 9:30 p.m. local Department officer had “struck the CNN tweeted that he was “tear gassed and time, Detroit Free Press reporter Mark cameraman with a baton, even though beaned” by Eugene, Ore. police. At Kurlyandchik tweeted that he “got the cameraman was holding . . . a camera approximately the same time, Denver charged by a DPD officer” while he and a credential.” Post reporter Alex Burness tweeted that was attempting to put on goggles for New York Times correspondent he was “hit several times” on his leg, protection against tear gas being shot Maggie Haberman retweeted Donnelly’s side, and head by foam bullets fired by where he was reporting. Kurlyandchik tweet and wrote, “I’ve never seen so police. wrote, “Knocked my hat off my head many incidents with police and reporters At 4:11 a.m., NBC 15 sports anchor and phone out of my hands.. . . Another simultaneously in different cities. and reporter George Balekji posted officer tried to make us clear the area Tension between cops and reporters is a video of police firing tear gas at even though we were standing in the nothing new. Aggression on reporters himself as he attempted to interview press zone.” He added, “I’m fine, but in multiple locations nationally at same a protester walking down State it shouldn’t take a big news camera to time is something different.” CBS News Street near the Wisconsin Capitol and exercise our constitutional duty.” Detroit correspondent Michael George similarly University of Wisconsin in Madison. Free Press reporter Darcie Moran added tweeted, “I’ve covered protests for 15 The video is available online at: in a separate tweet that the journalists years across the US. This is the first https://twitter.com/GeorgeBalekji/ were in the designated media area, but time I’ve ever seen police actively and status/1267383314010312710?s=20. that “[police started shoving [them]” and 12 At 6:01 a.m. local time on June 1, The Silha Research Assistants made photographers. We stand with our journalist Roy Greenslade tweeted that every attempt to locate and document peers in the field across the country. British photographer Adam Gray had incidents involving clashes between We stand with all who value a free and been arrested in New York overnight the police and members of the press, independent press.” “while taking photos of the street especially in the Twin Cities, but also protests.” Greenslade wrote that Gray across the United States, over the course Journalists Face Violence From “[s]howed his press pass, but [was] of several nights of ongoing protests. On Protesters Around the United States thrown to the ground by cops, who June 1, the U.S. Press Freedom Tracker Meanwhile, journalists across the climbed on top of him while handcuffing tweeted that each year, the organization United States also faced violence from him.” Gray was charged with “unlawful documents between 100-150 press protesters amidst the demonstrations assembly.” According to Greenslade, freedom violations in the United States. over the death of George Floyd that he was held in police custody for eight The organization tweeted that as of June spanned several days. hours. South West News Service (SWNS) 1, it was “currently investigating *over On May 29, several media outlets editor-in-chief Andrew Young said, “This 100* FROM JUST THE LAST 3 DAYS.” reported that protesters vandalized is an affront to press freedom. It’s an For a complete list of incidents, see the CNN’s Atlanta, Ga. headquarters, outrage.” U.S. Press Freedom Tracker, available including throwing objects at the At 7:42 a.m. local time, Mother online at: https://pressfreedomtracker. buildings’ windows and glass doors, Jones editor Inae Oh tweeted that us/. as well as at police. The CNN Center, as Mother Jones journalist Mark In a May 31 statement, Reporters located in downtown Atlanta, was Helenowski “stopped to held a Committee for Freedom of the Press also covered in graffiti. One protester seriously hurt journalist,” police (RCFP) executive director Bruce Brown reportedly ran inside before being officers in Brooklyn “responded by said, “The numerous, targeted attacks apprehending by police, which had roughing them up.” A video taken by that journalists reporting on protests formed a line outside the building. CNN’s Helenowski of the incident is available across the country have faced from law Chris Cuomo, who was reporting live on online at: https://twitter.com/eenayo/ enforcement over the last two nights are air at the time of the incident, stated that status/1267421175732461575?s=20. both reprehensible and clear violations police used a “deterrent spray” against At 10:39 a.m. local time, CBS News of the First Amendment. These attacks the protesters. tweeted that at a Tampa, Fla. protest not only endanger our free press, but On May 30, protesters in Washington, the previous day, several officers in also threaten our democracy and the D.C. harassed and chased Fox News riot gear “started to shoot rubber essential role that journalists play in correspondent Leland Vittert and bullets at . . . protesters, including the safeguarding constitutional rights.” his crew, according to several media journalist who took” a photo showing Brown continued, “Many of these attacks reports, including by Variety and The an officer pointing his weapon directly were captured on live broadcasts. The Washington Post. Video of the incident at the camera. The photo is available video evidence showing journalists was obtained by the Daily Caller. The online at: https://twitter.com/CBSNews/ under police assault simply for doing video showed one protester grabbing status/1267465837604208641. their jobs is harrowing. We strongly Vittert’s microphone, which was later At 10:04 a.m., Dallas News reporter condemn these actions and will be thrown at the reporter. Other protesters Jesus Jiménez wrote in a tweet that contacting law enforcement in each threw water at the crew. The video is police in Dallas “drew guns on” Dallas jurisdiction to demand a full explanation available online at: https://dailycaller. News reporter Sam Blum “while doing and accountability for officers who com/2020/05/30/george-floyd-protest- his job” overnight on May31/June 1. knowingly targeted journalists.” white-house-fox-news-leland-vittert/. Jiménez added that Blum was also tear In a May 31 opinion piece for USA In a tweet at 1:02 a.m. on May 31, gassed at night on May 29. Today, president Maribel Wadsworth, freelance photojournalist Lucas Jackson On the night of June 1 and morning editor-in-chief Nicole Carrol, and vice included a photograph of his camera, of June 2, as protests continued president for local news Amalie Nash which had been broken when “a man around the United States, journalists wrote, “[I]t’s important to note that with a crowbar hit [it]” as he “attacked continued to face arrests and violence we are not suggesting that journalists [Jackson] while [he was] working in by police, including in Washington, deserve special treatment or that an Minneapolis.” Jackson warned in the D.C., Philadelphia, Penn., Cincinnati, attack on a member of the press is more tweet that the man was “dressed as a Ohio, Columbus, Ohio, Asbury Park, significant than an attack on a peaceful ‘Medic’ with body armor.” The tweet N.J., Little Rock, Ark., Atlanta, Ga., Des protester. It is outrageous whenever and photo are available online at: Moines, Iowa, Seattle, Wash., Omaha, citizens who are peacefully assembling, https://twitter.com/Lucas_Jackson_/ Neb., Los Angeles, Calif., and Oakland, exercising their First Amendment status/1266973281896235008. Calif. The following night, journalists rights, are met with this level of force. At 10:58 p.m. on May 31, AL.com, a again faced arrests and attacks by law We understand that police are under news website hosted by the Alabama enforcement in multiple cities, including incredible stress in these situations. Media Group, tweeted that “[m]embers Little Rock, Los Angeles, Tampa, Fla., St. It’s a tense scene. Some may call these of the media have been physically Petersburg, Fla., Washington, D.C., New accidents part of the fog of war. But attacked in downtown Birmingham.” York City, N.Y., and San Antonio, Texas. to those journalists who have been Footage of the attacks is available online As the Bulletin went to press, journalists targeted, it sure doesn’t feel that way.” at: https://www.facebook.com/aldotcom/ continued to face arrests, assaults, and They added, “This is unacceptable. videos/297910334549112/?vh=e&d=n. threats amidst ongoing protests across Let us be clear. We stand with our the United States. USA TODAY Network reporters and Protests, continued on page 14 13 Protests, continued from page 13 think before you take action against a News Coverage of Ferguson Shooting journalist there to do their job. Treat us after Grand Jury Decision” in the Fall Journalists also faced violence with the same respect and dignity that 2014 issue of the Silha Bulletin and and harassment from protesters in you would want. These are very volatile Journalists Become Targets of Police Pittsburgh, Penn., Phoenix, Ariz., situations and we do our best to cover in Coverage of Protests over Shooting Chicago, Ill., Fayetteville, N.C., these stories under the same conditions in “Journalists Arrested During Protests Louisville, Ky., Denver, Colo., Los you are.” The letter continued, “The in Missouri; Journalists Abroad Face Angeles, Calif., Columbus, Ohio, Atlanta, attacks of journalists by police or Dire Situations” in the Summer 2014 Ga., Columbia, S.C., Salt Lake City, Utah, protesters . . . should have never issue. Additionally, the 2020 Silha Baltimore, Md., Seattle, Wash., and happened.. . . These actions only reflect Forum featured Barbara Allen, the Madison, Wis., among other cities. director of college In a May 29 tweet, the Committee to “The attacks of journalists by police programming at Protect Journalists (CPJ) condemned Poynter. For more violence aimed at journalists. CPJ or protesters . . . should have never information on the included a story providing a series of happened.. . . These actions only reflect organization and tips for covering protests, including badly on officers and people claiming the forum more about how to be prepared, handle generally, see “2020 situations where tear gas is used, and to keep the peace. Let us not forget, Spring Forum how to deal with aggression. The full reporters, producers, videographers[,] Webinar Addresses story is available online at: https:// and photographers are humans[,] too. the Impact of cpj.org/2018/09/physical-safety-civil- Fact-Checking and disorder/. Trying to make a living. Trying to flesh Misinformation The Radio Television Digital News out the truth. We should not be put in on Journalism” Association (RTDNA) also published any danger for doing our jobs.” on page 60 of this a series of guidelines for covering civil issue of the Silha unrest. The story is available online Bulletin.) at: https://www.rtdna.org/content/ —Society of Professional Journalists open letter guidelines_for_civil_unrest. In a May Minneapolis 31 statement, University of Minnesota badly on officers and people claiming Star Tribune Reporter Receives Hubbard School of Journalism and Mass to keep the peace. Let us not forget, Death Threats Over Publication of Communication Senior Fellow Scott reporters, producers, videographers[,] Minneapolis Protests Libin was quoted as saying, “The news and photographers are humans[,] too. On May 29, 2020, Minneapolis professionals who've been injured in Trying to make a living. Trying to flesh Star Tribune reporter and University the field, whether by ‘less lethal’ police out the truth. We should not be put in of Minnesota Hubbard School of weapons or by mob violence, take their any danger for doing our jobs.” The Journalism alumnus Andy Mannix place on a long list of people punished full letter is available online at: https:// announced on Twitter that he had unjustly. Like those who own, work for www.spj.org/pdf/open-letter-2020-05-30. deleted an earlier tweet in which he or shop at the businesses damaged and pdf?utm_sq=gfbe7h1a2f&utm_ explained the importance of journalists destroyed over the past several days, source=twitter&utm_ publishing photos of protests, including they did nothing to deserve this. Our medium=social&utm_campaign=spj- those that reveal the faces of protesters. leaders promise us that the violent death tweets&utm_content=spjpromo. The announcement prompted responses of George Floyd will be thoroughly On May 29, the Poynter Institute of from other journalists around the United investigated, and that those responsible Media Studies (Poynter), a non-profit States supporting Mannix’s decision will be fully prosecuted. That and the journalism school and research to publish photographs of the protests restoration of public safety must be their organization based in St. Petersburg, and his initial tweet defending doing so, priority. But I hope the unacceptable Fla., re-posted a story previously emphasizing the importance of covering aggression toward those covering this published during the August 2014 public protests. critical story will also get the scrutiny it protests in Ferguson, Mo. following Three days before he posted his deserves.” the police shooting and killing of black initial tweet, on May 26, Mannix, in the On May 30, in response to the teenager Michael Brown, Jr. During the course of reporting on the Minneapolis numerous cases of police targeting 2014 protests, several journalists were protests stemming from the killing of journalists with arrests, rubber arrested while covering what took place. George Floyd, tweeted that he had bullets, tear gas, and more, Society Poynter’s story detailed journalists’ been “shot . . . in the thigh” by a rubber of Professional Journalists (SPJ) sent rights at protests, including that “[p]ress bullet, likely by police officers. Mannix an open letter to police officers and areas shouldn’t be restrictive.” The full included a video in a subsequent protesters. The letter read in part, “To all story is available online at: https://www. tweet of the “mayhem scene” where police, military personnel and all public poynter.org/reporting-editing/2020/ he was hit by the rubber bullet. In the safety officers, we understand the stress heading-back-to-ferguson-know- video, protesters can be seen choking and the dangers of your job, especially your-rights/. (For more information on tear gas released by police near during these protests and riots. We on the Ferguson protests and how the Minneapolis Police Department’s understand that at times it is difficult to journalists became targets of arrests (MPD) Third Precinct police station. make decisions in the face of the crisis. and other police actions amidst growing The full video is available online at: We just ask that you take a moment and protests, see “Problems Continue for https://twitter.com/AndrewMannix/ status/1265459440830107651. 14 According to a statement by MPD In a May 29 tweet replying to The decision by the student spokesperson John Elder to The New Mannix, Arizona Republic investigative newspaper prompted immediate York Times on May 27, “police fired foam reporter Craig Harris defended Mannix’s criticism, especially from journalists and projectiles known as marking rounds decision to publish the photographs alumni on social media who argued that and used tear gas to try to repel some of the protests and his initial tweet. taking photographs of public protests of the protesters,” including those that “What you did was ethically correct and and reaching out to ask for interviews “vandalized police vehicles with graffiti honest,” Harris wrote. “Thank you for is part of reporting. Glenn Kessler, a and targeted the precinct house where doing your job and protecting the First columnist with The Washington Post, the four officers [involved in Floyd’s Amendment.” tweeted on November 11, “How is it death] had been assigned.” Lori A. Carter, a staff reporter at The possible that a newspaper at what Mannix took to Twitter on May 28 to Press Democrat in Santa Rosa, Calif., is allegedly a top journalism school defend his decision to post photographs similarly tweeted, “People running would apologize for the basics of of the protests during his reporting. around in public have no expectation of reporting? This is a travesty and an According to the Columbia Journalism privacy. A journalist doing his job has the embarrassment.” Review (CJR) on May 29, Mannix was right to not be threatened, and certainly Several observers also questioned the immediately contacted by numerous his family has nothing to do with it.” student reporters’ decisions to shield individuals requesting that he take down Previously, concerns about reporters protesters. “There’s a lot to comment the photographs because they made covering and reporting on protests arose on in this Daily Northwestern editorial,” protesters identifiable. Mannix wrote in in November 2019 when Northwestern Chicago Tribune reporter Gregory the deleted tweet that reporters should University’s student newspaper, The Pratt tweeted on November 11, “but publish such photographs to properly Daily Northwestern, published an apologizing for contacting people to inform the public. editorial apologizing for its coverage of ask if they’re willing to be interviewed? On May 29, Mannix stated that he two student-led protests that occurred Regretting that you photographed deleted his earlier tweet defending during a November 5 event featuring protesters protesting in public?” reporting on public protests because he former U.S. Attorney General Jeff (For more information on The had “receiv[ed] death threats.” He added, Sessions. After several protesters Daily Northwestern’s decision and “people are tweeting my phone number complained about violation of their subsequent commentary, see “The Daily and home address, where I live w/ my privacy and potential punishment, the Northwestern Removes Content and wife.” In a separate tweet on May 29, newspaper announced that photos Apologizes for Protest Coverage, Faces Mannix wrote that he “st[ood] by [his] previously published to Twitter had been Backlash” in the Fall 2019 issue of the belief that it’s important for journalists “taken down” and that the name of a Silha Bulletin.) to show people what’s happening.” student protester quoted in the original However, he added that “it’s clear my Daily Northwestern November 6 article Scott Memmel meaning was misinterpreted by some.” was removed from the online version. Silha Bulletin Co-Editor Jonathan Anderson Silha Bulletin Co-Editor

Silha Center Director and Silha Professor of Media Ethics and Law Jane Kirtley’s statement on the arrest of the CNN crew is available online at: https://hsjmc.umn.edu/news/2020-05-29-silha-center- study-media-ethics-and-law-condemns-arrest-omar-jimenez.

The Silha Center has prepared a running list of incidents involving police and journalists during civil unrest in Minneapolis, Minn. The list is available online at: https://hsjmc.umn.edu/news/2020-06-02-list-incidents-involving-police-and- journalists-during-civil-unrest-minneapolis-mn.

15 Special Report: COVID-19 Pandemic Raises Media Law and Ethics Issues, Challenges, and Opportunities n spring 2020, the COVID-19 On the same day, The New York arguing that limitations caused by office pandemic led to unprecedented Times reported that the spread of closures, as well as the need to focus problems, developments, and misinformation about COVID-19 resources directly on the COVID-19 changes across the United States online had prompted different efforts response, necessitated the scaling back and around the world, including by social media and technology of requirements to respond to record Iregarding various aspects of media companies to combat the spread of such requests. The moves decreasing access law and ethics. The pandemic saw the information. However, news outlets and to information came amidst actions by escalation of a “media war” between the observers provided several examples federal and state government bodies United States and demonstrating that such efforts were not that reduced access to government SPECIAL China; renewed completely effective. proceedings as well, including in REPORT anti-press rhetoric On April 6, 2020, the Poynter Institute Arkansas and Minnesota. and actions by of Media Studies (Poynter), a non- Finally, on April 13, 2020, the Supreme President Donald profit journalism school and research Court announced that in response to Trump; the spread of misinformation organization based in St. Petersburg, the COVID-19 pandemic, it would hear online; increased newsroom layoffs, Fla., published a list of newsroom oral arguments in 10 cases by remote furloughs, pay cuts, and closures; Liberty closures, furloughs, layoffs, and pay teleconference in May 2020, marking University sought trespassing charges cuts around the United States caused the first time the Court allowed oral against two journalists; issues related to by COVID-19 in order to “help show arguments to be heard live outside public and press access to information the full impact of this pandemic.” Such the courtroom. The move prompted and government proceedings; and actions by print, radio, television, and praise from some observers, though the U.S. Supreme Court holding oral digital news organizations prompted most doubted that it would eventually arguments via teleconference. concerns from observers, who argued lead the Court to allow cameras in the On March 18, 2020, the Ministry of that journalism was especially important courtroom. Foreign Affairs of the People’s Republic to inform the public about COVID-19 According to the U.S. Centers for of China (Ministry) announced that it and hold government accountable. Disease Control and Prevention (CDC), was expelling several U.S. journalists Although some observers called COVID-19 is an illness caused by “a from the country, as well as requiring five for federal funding to support local new coronavirus . . . that can spread media outlets to provide “information journalism, others noted that the press’ from person to person.” As early as about their staff, finance, operation independence from government should late 2019, the virus began spreading and real estate in China.” In response, preclude such aid. around the world, therefore constituting on May 9, the Trump administration On April 8, 2020, Politico reported a global pandemic. The spread of the imposed new restrictions on Chinese that Liberty University, an evangelical coronavirus, especially beginning journalists working in the United States. private college in Virginia, was pressing in March 2020, prompted a range Both moves, which were the latest in trespassing charges against two of responses by different countries, the escalating “media war” between journalists who entered school grounds including the United States, in which the United States and China, prompted to cover why it remained partially states took varying degrees of action. significant criticism from observers, open during the COVID-19 pandemic. A As the Bulletin went to press, the including that limiting journalism was magistrate judge signed arrest warrants COVID-19 pandemic, and responses to especially problematic amidst the for ProPublica reporter Alec MacGillis the virus, remained ongoing. COVID-19 pandemic. Meanwhile, in and freelance photojournalist Julia January 2020, a University of Minnesota Rendleman. However, on May 15, 2020, United States and China Engage student from China was arrested and Lynchburg, Va. prosecutors announced in “Media War” Amidst COVID-19 jailed in his home country after he that MacGillis and Rendleman would not Pandemic tweeted images that allegedly criticized be prosecuted for criminal trespass. On March 18, 2020, The Washington Chinese President Xi Jinping, prompting On May 12, 2020, a coalition of Post reported that the Ministry of concern from observers. major news organizations filed a Foreign Affairs of the People’s Republic On March 9, 2020, Vanity Fair lawsuit against the Small Business of China (Ministry) announced that it reported that President Trump expressed Administration (SBA) after the federal was expelling several journalists from interest in the U.S. Department of Justice agency allegedly did not provide China, including those working for (DOJ) “open[ing] investigations of the adequate access to the identities of the Post, The New York Times, and media for market manipulation” arising companies that received billions of The Wall Street Journal. The Ministry from reporting on COVID-19. President dollars of public assistance during also demanded that these outlets, as Trump’s comments came amidst his the COVID-19 pandemic. Additionally, well as Voice of America and Time continued criticism of the press and on March 18, Chicago Mayor Lori magazine, provide “information about antagonistic exchanges with reporters, Lightfoot, among other state and their staff, finance, operation and real including during daily briefings about the federal government officials, also took estate in China.” The Ministry contended federal COVID-19 response. steps to reduce disclosure obligations, that such demands and actions were

16 necessary after President Donald the staff size of Chinese media outlets unprecedented global crisis, when clear Trump’s administration placed similar in the US, which is expulsion in all but and reliable information about the restrictions on Chinese media outlets name . . . journalists of US citizenship international response to covid-19 is in February 2020. Nevertheless, the working with the New York Times, the essential.. . . Severely limiting the flow of new rules prompted criticism from Wall Street Journal and the Washington that information, which China now seeks editors at the U.S. media outlets, who Post whose press credentials are due to do, only aggravates the situation.” contended that limiting journalism to expire before the end of 2020 notify New York Times executive editor was especially problematic during the Department of Information of the Dean Baquet similarly called the Chinese the COVID-19 pandemic. Additionally, Ministry of Foreign Affairs within four rules “especially irresponsible at a time The New York Times reported on May calendar days starting from today and when the world needs the free and 9 that China’s demands and actions hand back their press cards within open flow of credible information about prompted the Trump administration ten calendar days.” The statement the coronavirus pandemic.” He added to impose new restrictions on Chinese added that these journalists “will not in the statement, “It is critical that journalists working in the United be allowed to continue working as the governments of the United States States. Meanwhile, in January 2020, a journalists in [China], including its Hong and China move quickly to resolve University of Minnesota student from Kong and Macao Special Administrative this dispute and allow journalists to China was arrested and jailed in his Regions.” do the important work of informing home country after he tweeted images Finally, the statement announced the public.. . . The health and safety of that appeared to be critical of Chinese that “in response to the discriminatory people around the world depend on President Xi Jinping, prompting criticism restrictions the US has imposed on impartial reporting about its two largest from observers, who contended that Chinese journalists with regard to visa, economies, both of them now battling a the arrest illustrated China’s increasing administrative review and reporting, common epidemic.” surveillance of its citizens, even when China will take reciprocal measures Wall Street Journal editor in chief they are out of the country. against American journalists.” Matt Murray said in a separate statement In a March 18 statement, the Ministry The statement concluded that these that the news outlet “oppose[s] first claimed that “[i]n recent years, the measures were “entirely necessary and government interference with a free US government has placed unwarranted reciprocal countermeasures that China press anywhere in the world.” He added, restrictions on Chinese media agencies is compelled to take in response to the “Our commitment to reporting fully and and personnel in the US, purposely unreasonable oppression the Chinese deeply on China is unchanged.” made things difficult for their normal media organizations experience in the On May 9, 2019, The New York Times reporting assignments, and subjected US.” The statement continued, “They reported that the U.S. Department them to growing discrimination and are legitimate and justified self-defense of Homeland Security (DHS) and politically-motivated oppression.” The in every sense. What the US has done U.S. Customs and Border Protection statement provided the example of is exclusively targeting Chinese media (CBP) published a rule to the Federal the U.S. State Department on Feb. 18, organizations, and hence driven by a Register amending 8 CFR 214.2(i), 2020 “designat[ing] five Chinese media Cold War mentality and ideological which previously allowed “I visa holders entities in the [United States] as ‘foreign bias.. . . Should the US choose to go [to] be admitted for the duration of missions’ and imposed a cap on the further down the wrong path, it could employment in the United States.” number of their employees, in effect expect more countermeasures from Under the new rule, the “period of expelling Chinese journalists from the China.” The full statement is available admission in I nonimmigrant status for [United States].” The Washington Post online at: https://www.fmprc.gov.cn/ [Chinese] nationals is revised so that the noted on March 17 that, in response, mfa_eng/xwfw_665399/s2510_665401/ maximum initial admission period is 90 China expelled three Wall Street Journal t1757162.shtml. days.” According to the Times, the rule reporters the following day, “marking the According to The Washington therefore applied to “Chinese journalists first time since Mao Zedong’s rule that Post, the measures did not target the working for non-American news outlets.” multiple foreign journalists were kicked Associated Press (AP), Bloomberg News, The rule stated that such individuals can out at once.” CNN, ABC, NBC, CBS, and others, all of request extensions, but that each would The statement therefore announced which have offices in Beijing.The New last a maximum of 90 days. three “measures, effective immediately.” York Times reported that the affected The rule asserted that the changes First, the statement demanded that media outlets would still have at least to visa requirements were necessary “in the spirit of reciprocity . . . the one full-time correspondent in mainland “[b]ased on the treatment by [China] China-based branches of Voice of China, though they would mostly be of foreign journalists, including U.S. America, the New York Times, the non-U.S. citizens. citizens.” The rule cited the March 2020 Wall Street Journal, the Washington Following the release of the statement by the Ministry, among other Post and Time declare in written form statement, several observers examples of China undermining U.S. information about their staff, finance, criticized the new measures. In a journalism in their country. DHS added operation and real estate in China.” The March 17 statement, Washington that it was “therefore issuing this rule statement explained that the move was Post executive editor Marty Baron to address the actions of the [Chinese] “in response to the US designation of said, “We unequivocally condemn government and to enhance reciprocity five Chinese media agencies as ‘foreign any action by China to expel U.S. in the treatment of U.S. journalists missions.’” reporters.. . . The Chinese government’s in [China].” The full rule is available Second, the statement demanded decision is particularly regrettable online at: https://s3.amazonaws.com/ that “in response to the US slashing because it comes in the midst of an COVID-19, continued on page 18 17 COVID-19, continued from page 17 from Luo’s official university email had no additional information about account. At the time, Wuhan had just Luo’s case. Students from China form the public-inspection.federalregister. been put on lockdown in an effort to largest group of international students gov/2020-10090.pdf. contain the spread of COVID-19. The on the University of Minnesota campus, As the Bulletin went to press, China email read, “I was indeed sentenced according to the Minnesota Daily on had not announced any actions in to six months in prison for my Twitter Jan. 23, 2020. response to the visa changes. However, account. I have now been released for In a January 23 interview with The New York Times noted that several my sentence. I am now in my hometown, KSTP, the Twin Cities’ ABC affiliate, Chinese state-controlled media outlets Wuhan, the infected area. I don’t know if law professor Jacques deLisle of the criticized the new restrictions, quoting I have the right to leave China, enter the University of Pennsylvania’s Center Chinese academics. For example, the for the Study of Global Times, a nationalist tabloid, Contemporary quoted Zhang Tengjun, an assistant “Academic communities flourish when China agreed that research fellow at the China Institute all students, including international Chinese students of International Studies, who said, “The students, may speak freely without the are increasingly U.S. has long labeled itself as valuing concerned that ‘freedom of the press,’ but its actions threat of surveillance or punishment. No their government is were full of hypocrisy.” matter where they call home, students keeping close tabs Meanwhile, on Jan. 23, 2020, Axios should not be forced to choose between on their expression. reported that University of Minnesota peacefully expressing their beliefs and “What they say student Luo Daiqing, a liberal arts major and do outside of from China, was arrested in Wuhan staying out of jail.” China can have after posting tweets that were said to be repercussions for unflattering of a Chinese public official. —Sarah McLaughlin, them at home,” Luo was accused of posting upwards of Foundation for Individual Rights in Education deLisle said. “Will 40 comments on Twitter in September director of targeted advocacy it be monitored and October 2018 “denigrating a national and reported, leader’s image and indecent pictures” either by their and which “created a negative social United States, or continue studying at fellow students, or if they are putting impact,” according to court documents the University of Minnesota.” it on Twitter or other social media, it obtained by Axios. Luo was in the United Axios’ report called the prosecution will be monitored by the vast Chinese States when he posted the comments, “a dramatic escalation of the Chinese surveillance state.” but Chinese authorities detained him government’s attempts to shut down free Sarah McLaughlin, director of when he returned to China at the speech abroad and a global expansion targeted advocacy at the Foundation for conclusion of the spring 2019 semester. of a Chinese police campaign to track Individual Rights in Education (FIRE), Axios reported that a Twitter account down Twitter users in China who told KSTP in a statement that Luo should “known to belong to Luo” was created posted content critical of the Chinese not have been punished for his speech. in September 2018 and had a final tweet government.” Axios added that many “FIRE is deeply concerned by Luo’s in June 2019, a month before Chinese Chinese students studying abroad in imprisonment for political comments he authorities detained him. Although it the United States have become wary of posted on Twitter while studying here in was not clear whether Axios found Luo’s criticizing their national government the United States,” McLaughlin wrote. actual account or just an account in or promoting democracy because “Academic communities flourish when his name, the news outlet reported that of concerns that their actions and all students, including international one tweet showed Chinese government statements may be monitored. students, may speak freely without the slogans superimposed over images of the In an interview with Axios, Sen. Ben threat of surveillance or punishment. No cartoon Lawrence Limburger from the Sasse (R-Neb.), a member of the U.S. matter where they call home, students “Biker Mice From Mars” comics. Axios Senate Intelligence Committee, said should not be forced to choose between suggested that the Limburger character China should release Luo. “This is what peacefully expressing their beliefs and “bears a resemblance to Chinese ruthless and paranoid totalitarianism staying out of jail.” President Xi Jinping.” Other tweets looks like,” Sasse said. U.S. Rep. Ilhan University of Wisconsin Professor contained images of Winnie the Pooh, a Omar (D-Minn.), whose congressional Kris Olds, who studies the globalization character China censored after online district encompasses the University of of higher education, posted a series of users compared him to Xi. Minnesota campus, similarly tweeted tweets on January 23 with numerous In November 2019, months after on Jan. 23, 2020, “This is what ruthless questions raised by the incident, such as deleting the tweets, Chinese authorities totalitarianism looks like. Luo Daiqing “How much do the hard working staff sentenced Luo to six months in jail for made these posts while he was in the in our International Student Services the offense of “provocation,” Axios U.S., attending college in my district. (& equivalent) units understand about reported, although time he spent in jail Here in the United States, we believe in the rise of global reach & ‘network during the proceedings counted toward free speech. I am calling on the Chinese sovereignty’ agendas associated with the total jail sentence. It was not clear government to immediately release him.” countries like China and Saudi Arabia?” for how long he was initially detained. On Jan. 23, 2020, the Minneapolis Star and “How can universities better On Jan. 24, 2020, the St. Paul Pioneer Tribune reported that a University of understand when their int’l students are Press reported that it received an email Minnesota spokesperson said the school arrested in their countries of citizenship 18 (for dubious reasons like this case)?” little college essay is funny or true & I As the Bulletin went to press, Barr among several other questions. Olds want a retraction.” had not announced the opening of an added: “Many int’l students have faced However, several observers raised investigation into media coverage of political challenges when ‘returning concerns with President Trump’s call COVID-19. home’ — this is not a completely new for an investigation into the news Meanwhile, during his daily briefings phenomenon. But digital platforms media. ABC News Chief Legal Affairs about the federal response to COVID-19, & associated surveillance agendas anchor Dan Abrams, on his website President Trump criticized the press associated [with] ‘network sovereignty’ “Law & Crime,” argued that “[s]uch a on several occasions, including on are new(ish). Do we have the capacity & move would be stunning in both its April 13 when he played what several expertise to act wisely[?]” audacity and unprecedented nature.” observers and media outlets called a He quoted University of Minnesota “campaign-style video,” which targeted President Trump Calls for DOJ Law Professor Richard Painter, the news media for its coverage of the Investigation into News Media for who similarly called an attempt Trump administration’s response to Market Manipulation, Continues to prosecute the press for market COVID-19. The video included a number Anti-Press Rhetoric and Actions manipulation “outrageous.” Painter of clips depicting people praising the On March 9, 2020, Vanity Fair special explained that such a legal move federal response. Angelo Carusone, correspondent Gabriel Sherman reported would be unlikely to succeed because president of Media Matters for America, that President Donald Trump expressed it would require that news outlets a nonprofit media advocacy organization, interest in the U.S. Department of “shorted stock and ran deliberately tweeted on April 13 that “part of the Justice (DOJ) and Attorney General false news stories to manipulate the same exact video montage” was played William Barr “open[ing] investigations market — which they’re not.” Painter by Fox News host Sean Hannity on a of the media for market manipulation” added, “Absent that, there’s absolutely recent edition of his television show. stemming from reporting on COVID-19. no way a media company could be After the video was finished, President President Trump’s comments raised prosecuted. There would have to Trump said, “It’s very sad when people concern from observers, who argued be a conspiracy to make trades and write false stories.” that attempts to prosecute members the news stories would have to be Media outlets took different of the news media for manipulating deliberately false — you’d have to have approaches to covering President the market were unlikely to succeed. both to make a prosecution.. . . The Trump’s daily briefings. For example, Meanwhile, President Trump continued idea that one or [more] stories impact CNN stopped its live coverage of the to criticize the press, as well as have the market is ludicrous. That’s just not briefing when the campaign-style video heated exchanges with reporters, how markets work.” was played. CNN also aired blunt including during his daily briefings in Abrams cited 15 U.S.C. § 78i, chyrons, including one stating “Angry March, April, and May 2020 detailing which prohibits a wide range of Trump turns briefing into propaganda the federal response to the COVID-19 actions related to “creating a false session.” On March 23, CNN, MSNBC, pandemic. or misleading appearance of active ABC News, NBC News, and CBS News On March 9, 2020, President Trump trading in any security other than a “cut away from President Trump’s tweeted “So much FAKE News!” as the government security, or a false or lengthy coronavirus briefing,” according stock markets futures pointed to a 7% misleading appearance with respect to Business Insider the following day. drop that morning due to COVID-19. On to the market for any such security.” CBS News told Insider that it had “plans the same day, Sherman reported that a However, Abrams noted that there to continue covering briefings whenever source “close to the White House” told is “no precedent for actual media possible” but would potentially cut away him that President Trump “wants Justice outlets actually being taken to legal for other programming. Conversely, to open investigations of the media for task for accurately reporting on news MSNBC stated that the network would market manipulation.” Sherman also whether that be non-financial or “cut away because the information no reported that President Trump was financially-related news.” longer appeared to be valuable to the “frustrated with his West Wing for not Abrams further argued that an important ongoing discussion around getting a handle on the news cycle,” attempt to investigate the “corporate public health.” which included negative coverage about media ecosystem . . . would also In a March 24 article, Washington the spread of COVID-19 and the Trump likely be fraught with potential Post media columnist Margaret Sullivan administration’s response. Three days political downsides — Trump would argued that the news media “must stop earlier, on March 9, President Trump immediately open himself up to live-broadcasting Trump’s dangerous, had forced out acting chief of staff Mick charges of attempting to control destructive coronavirus briefings.” Mulvaney and replaced him with former the flow of information.” Painter She continued, “These White House U.S. Rep. Mark Meadows (R-N.C.). agreed, stating that President sessions — ostensibly meant to give the In a tweet responding to Sherman’s Trump’s comments represented “an public critical and truthful information reporting, then-White House Press attack on the free press in violation about this frightening crisis — are in fact Secretary Stephanie Grisham wrote that of the First Amendment.” In an working against that end.” it was “100% fake news” and added that email to Abrams, national security The Atlantic journalist James Fallows Sherman “did not reach out to me. False attorney Bradley P. Moss, a partner agreed in a March 19 tweet, writing & sensational writing on this topic is at the Washington, D.C. law office that “cable outlets should stop covering irresponsible. POTUS has spent plenty of of Mark S. Zaid, P.C., contended that [the briefings] live.” He continued, time w[ith] the press pool — simply ask President Trump’s comments were [your] colleagues. Nothing about your “probably . . . nothing more than COVID-19, continued on page 20 hyperbolic venting on his part.” 19 COVID-19, continued from page 19 classify newspapers, television, radio, and Suspends Hard Press Passes Under and other media services as ‘essential New Rules” in the Summer 2019 issue, “They’re actively *lowering* level of businesses,’ which are exempt from the “President Trump Continues Anti-Press public knowledge by doing so — and restrictions but are still strongly urged to Rhetoric and Actions” and “Journalists repeating the mistake they made [with] comply with social distancing measures in the United States and Abroad Face wall-to-wall coverage of rallies in 2015 such as working six feet apart.” Threats of Violence and Incarceration” and 2016. [Without] live coverage, Trump President Trump’s tweet was met with in the Fall 2018 issue, Five Newspaper will stop showing up; scientists can criticism, including by CNN reporter Staff Members Killed, Two Injured in speak[.]” Jake Tapper, who tweeted on the same Shooting at Local Maryland Newsroom Additionally, the daily briefings led day, “87,000 Americans dead, 1.3 million in “Journalists Face Physical Violence, to “tense back-and-forth[s]” between Other Dangers in President Trump and reporters, as the United States characterized by The Washington Post “Local news is a vital resource for and Abroad,” on May 12. For example, on May 11, keeping people and communities and Federal CNBC reported that President Trump Prosecutors ended a daily briefing after a “bitter connected in the best of times.. . . Today Seize Phone and back-and-forth[]” with two reporters. it plays an even greater function in Email Records of The situation arose when CBS News reporting on . . . how COVID-19 is New York Times White House correspondent Weijia affecting daily life. But that role is being Reporter in Leak Jiang asked President Trump a series Investigation of questions about why he felt it was challenged as the news industry deals in “Trump important that the “U.S. is doing far with job cuts, furloughs[,] and cutbacks Administration better than any other country when as a result of the economic downturn Targets Journalist, it comes to testing.” In response to a Leaker of follow-up question, President Trump prompted by COVID-19.” Government replied “[M]aybe that’s a question you Information, should ask China. Don’t ask me. Ask —Richard Gingras, and Former China that question, okay? If you ask Google Vice President of News Government them that question, you may get a very Employees Who unusual answer.” As President Trump infected, and the president is attacking a Took Classified Documents,” in the called on another reporter, Jiang asked, local TV news reporter who was trying to Summer 2018 issue, “Reporters and “Sir, why are you saying that to me, do his job and cover a protest. Indecent, Leakers of Classified Documents specifically,” prompting the president to vile.” Targeted by President Trump and call it “a nasty question.” President Trump’s comments and the DOJ” in the Summer 2017 issue, President Trump then called on actions related to the press amidst “Media Face Several Challenges During CNN reporter Kaitlan Collins, who the COVID-19 outbreak were not the President Trump’s First Months in approached the microphone and said “I first instances of the president and his Office” in the Winter/Spring 2017 issue, have two questions.” President Trump administration targeting or criticizing the and “2016 Presidential Candidates summarily said, “No, it’s ok,” and news media. For example, on July 25, Present Challenges for Free Expression” attempted to call on a different reporter. 2018, the White House “banned” Collins in the Summer 2016 issue.) Collins protested, stating “But you called from a press availability with President on me” and President Trump continued Trump and European Commission COVID-19 Pandemic Raises New trying to call on a different reporter. president Jean-Claude Juncker, who Concerns About Misinformation Collins then added, “But I just wanted were meeting in the Rose Garden of the Online to let my colleague finish,” prompting White House. Earlier that day, Collins On March 9, 2020, The New York the president to respond, “Ladies and represented all television networks as Times reported that amidst the gentlemen, thank you very much[,] the pool reporter and had posed several COVID-19 pandemic, misinformation appreciate it, thank you very much,” questions to President Trump at a photo and conspiracy theories about the before turning and walking away. op in the Oval Office. coronavirus “ha[d] spread across the Another instance of President Trump (For more information on the world,” prompting different efforts by using anti-press rhetoric came outside White House banning Collins, see Five social media and technology companies the daily press briefing when he tweeted Newspaper Staff Members Killed, Two “to prevent its dissemination.” However, on May 15, 2020, “FAKE NEWS IS NOT Injured in Shooting at Local Maryland despite these efforts, news outlets and ESSENTIAL,” quoting a Commack, Newsroom in “Journalists Face Physical observers pointed out different ways in N.Y. protester filmed by News 12 Long Violence, Other Dangers in the United which misinformation about the virus Island reporter Kevin Vesey during a States and Abroad” in the Summer continued to spread online, as well as demonstration criticizing New York’s 2018 issue of the Silha Bulletin. For how news organizations can help combat “stay-at-home” order. According to the more information on President Trump’s the spread of misinformation. Reporters Committee for Freedom anti-press rhetoric and actions more In an April 8 opinion piece for of the Press (RCFP), state and local generally, see “Federal Judge Orders Nieman Reports, Claire Wardle, the governments imposed “[e]mergency White House to Reinstate Reporter’s executive director of First Draft, responses like ‘shelter-in-place’ orders Press Credential” in the Fall 2019 issue of a nonprofit dedicated to fighting or other forms of social distancing” in the Silha Bulletin, “White House Revokes misinformation around the world, response to COVID-19. Such orders “all 20 explained that misinformation about to COVID-19, including banning ads being challenged as the news industry COVID-19 came in a variety of forms, and listings “for medical masks, hand deals with job cuts, furloughs[,] and including conspiracy theories, as well as sanitizer, surface disinfecting wipes, and cutbacks as a result of the economic “false and misleading claims about home COVID-19 testing kits, and prohibiting downturn prompted by COVID-19.” remedies that could prevent infection or exploitative tactics in ads,” according Twitter also took several actions, cure the disease, false claims about the to a March 2020 statement released by including announcing in a March 16, Centers for Disease Control doing door- Facebook. In a March 15 interview with 2020 press release that it would remove to-door testing, impending lockdowns, The New York Times, Facebook founder tweets about the coronavirus that could and army deployments,” among other and CEO Mark Zuckerberg stated, “When cause a “direct risk to people’s health inaccurate information and falsehoods. you’re dealing with a pandemic, a lot of or well-being.” In an April 22 statement, According to the Knight Foundation, the stuff we’re seeing just crossed the the company explained that it was a nonprofit organization focused on threshold.. . . So it’s easier to set policies broadening its guidance on “unverified journalism and “informed and engaged that are a little more black and white and claims that have the potential to incite communities,” on May 11, the World take a much harder line.” people to action, could lead to the Health Organization (WHO) called the destruction or spread of information around COVID-19 “There needs to be a collective response damage of critical an “‘infodemic,’ an overabundance of infrastructure, or information — some of it false[.]” by newsrooms to the dangerous rumors cause widespread Public Knowledge, a nonprofit that are emerging around the virus. panic/social organization promoting freedom of There is going to be real-world harm unrest,” which expression and access to information were “considered online, tracked the different efforts from misinformation connected to a violation of our taken by social media and technology COVID-19.” policies.” On May companies to combat the spread of 11, 2020, CNN misinformation online about COVID-19. —Claire Wardle, reported that For example, Public Knowledge listed First Draft executive director Twitter announced several efforts by Facebook to address that it would begin false information on its platform related placing labels and to the virus, including partnering Google also took several actions warning messages on tweets containing with the “International Fact-Checking to address COVID-19 misinformation, disputed or misleading information Network (IFCN) to support the including, like Facebook, “blocking all related to COVID-19. fact-checking community by broadening ads capitalizing on the coronavirus,” However, media outlets and observers the #CoronaVirusFacts Alliance, the according to Public Knowledge. The raised concerns about how social media COVID-19 related misinformation Hill reported on April 2 that Google and tech companies were addressing effort, with a budget of $1 million in also pledged $6.5 million toward misinformation. For example, on grants.” (The IFCN was among the fighting the spread of misinformation April 30, 2020, The New York Times topics discussed at the 2020 Silha Forum related to COVID-19, which would fund explained that although Zuckerberg featuring Barbara Allen, the director of fact-checkers, news organizations, and previously stated that promoting bleach college programming for the Poynter others to improve research and reporting as a cure for COVID-19 constituted Institute of Media Studies (Poynter). For on the virus. “misinformation that has imminent risk more information on the IFCN and the On April 15, 2020, TechCrunch of danger,” Facebook, as well as several forum more generally, see “2020 Spring reported that Google had announced the other social media sites, including Forum Webinar Addresses the Impact of creation of the “Journalism Emergency Twitter, declined to remove comments Fact-Checking and Misinformation on Relief Fund” as part of the Google News by President Donald Trump on April Journalism” on page 60 of this issue of Initiative. Although Google did not 24 suggesting that disinfectants and the Silha Bulletin.) announce the exact size of the fund, the ultraviolet (UV) light were possible Other actions by Facebook included project aimed to support “thousands of treatments for the coronavirus. “[s]ending alerts to users who have small, medium and local news publishers The Times wrote that although shared or attempted to share misleading globally,” through awards ranging from Facebook, Twitter, and YouTube content” and “removing coronavirus “low thousands of dollars for small declined to remove the statements misinformation because it could hyper-local newsrooms to low tens of because President Trump “did not cause physical harm.” Facebook also thousands for larger newsrooms, with specifically direct people to pursue the announced on April 7, 2020 that it was variations per region,” according to unproven treatments,” his comments investing an additional $100 million Google Vice President of News Richard nevertheless “led to a mushrooming dollars into the “news industry,” Gingras in an April 15 blog post. “Local of other posts, videos and comments including “$25 million in emergency news is a vital resource for keeping about false virus cures with UV lights grant funding for local news through people and communities connected and disinfectants that the companies the Facebook Journalism Project, and in the best of times,” Gingras said. have largely left up.” The Times reported $75 million in additional marketing “Today, it plays an even greater function that it found “780 Facebook groups, spend to move money over to news in reporting on local lockdowns or 290 Facebook pages, nine Instagram organizations around the world.” shelter at home orders, school and park accounts and thousands of tweets Additionally, Facebook changed its closures, and data about how COVID-19 pushing UV light therapies that were policies regarding advertisements related is affecting daily life. But that role is COVID-19, continued on page 22 21 COVID-19, continued from page 21 further [is] the president . . . spreading video being uploaded to YouTube misinformation about whether the virus throughout the day.” posted after Mr. Trump’s comments and can be treated by injecting disinfectant.” In a May 9, 2020 article for that remained on the sites[.]. . . Only a In her April 8 opinion piece for ProPublica, health care reporter few of the posts have been taken down.” Nieman Reports, Wardle similarly Marshall Allen explained that The Times also found “more than 45,000 argued that “[t]here needs to be a “[s]ensational videos, memes, rants and tweets discussing bleach and UV light collective response by newsrooms to more about COVID-19 are likely to keep cures for the coronavirus that stemmed the dangerous rumors that are emerging coming. With society polarized and deep from the president’s comments. Many of around the virus. There is going to be distrust of the media, the government the posts said Mr. Trump was right about real-world harm from misinformation and other institutions, such content is his suggested treatments.” connected to COVID-19.” She continued, a way for bad actors to sow discord, In an April 30 interview with the “For the past three and a half years in mostly via social media.” He continued, Times, Renee DiResta, a technical the U.S., the focus has been on political “Ultimately, we’re all going to need to be research manager at the Stanford disinformation on Facebook. And while more savvy consumers when it comes to Internet Observatory, a program of there were certainly concerns that information, no matter how slickly it’s the Cyber Policy Center at Stanford these campaigns might drive down trust presented. This may be but a signal of University, asserted that most social in the electoral system, there wasn’t what’s to come in the run-up to the 2020 media and tech companies crafted a sense that there was going to be a presidential election, when memes and policies addressing misinformation “with threat to life.” (For more information ads of unknown origin come across our the expectation that there would be a on how journalists can help combat the social media feeds. There are standards competent government and reputable spread of misinformation, including for judging the credibility of the media health authority to point to.” She argued related to the COVID-19 pandemic, see we take in every day, so let’s apply that such companies were therefore not “2020 Spring Forum Webinar Addresses them.” prepared to handle false information the Impact of Fact-Checking and coming from the White House. Misinformation on Journalism” on page COVID-19 Causes Newsroom The Knight Foundation reported 60 of this issue of the Silha Bulletin.) Closures, Furloughs, Layoffs, and that a poll it conducted with Gallup On May 9, 2020, CNN Business Pay Cuts Across the United States from April 14-20 found that 68% of reported that “[d]espite pledges from the On April 6, 2020, the Poynter Institute respondents identified social media big social media companies to remove of Media Studies (Poynter), a Florida- as the most common source of dangerous coronavirus misinformation, based non-profit journalism school misinformation, with 54% naming the from false causes to false cures, Silicon and research organization, published Trump administration. The full results of Valley and fact-checkers around the a list of “the layoffs, furloughs, and the poll are available online at: https:// world [continued to] struggl[e] to closures caused by the coronavirus’ knightfoundation.org/articles/americans- stem the flow of false claims about critical blow to the economy and struggle-to-navigate-covid-19-infodemic/. the pandemic.” The article cited the journalism in the United States.” Poynter According to CNN on May 11, it was viral video titled “Plandemic,” in which explained that the purpose of the list not until Twitter’s announcement on the Dr. Judy Mikovits, a controversial was to “help show the full impact of this same day that it would place labels and research scientist, asserted that Dr. pandemic” on print, radio, television, warning messages on tweets containing Anthony Fauci, the director of the and digital outlets. Such actions by misinformation about the virus that National Institute of Allergy and news organizations prompted concerns the company said the rules would also Infectious Diseases and a central figure from observers, who argued that local apply to “world leaders,” including in the COVID-19 pandemic, had buried journalism was especially important President Trump. On May 26, 2020, The Mikovits’ research about how vaccines during the COVID-19 pandemic. Washington Post reported that Twitter damage people’s immune systems and, Although some press groups and had included a “fact-check” label on two therefore, led to the spread of COVID-19. observers even called for federal funding tweets by President Trump regarding The video spread rapidly despite for local journalism, prompting some mail-in ballots being “substantially false claims, such as that wearing a actions by Congress, others noted fraudulent.” According to the Post, mask “activates” the virus. According that the press’ role as a “watchdog” of the label read, “Get the facts about to The Verge on May 12, the video government should preclude government mail-in ballots," and redirected users to received more than 8 million views funding. news articles about President Trump’s across social media platforms, including The list, which was continuously unsubstantiated claim. 7.1 million views on YouTube before it updated by Poynter, included over 100 In an April 30 piece for the Columbia was removed. CNN Business reported entries for “newspapers, weeklies and Journalism Review (CJR), chief digital that social media analytics platform alt-weeklies” through mid-May 2020. writer Mathew Ingram contended that BuzzSumo found that the video was Among the organizations listed was COVID-19 “has made fact-checking and liked, shared, or commented on over Gannett, which sent out a memo to its filtering skills even more important, 10 million times on Facebook before staff on March 30, in which operating as trolls traffic in rumors about how it was removed by Facebook on May CEO Paul Bascobert explained that the drinking bleach or taking megadoses of 7. CNN Business added that despite company would be instituting furloughs vitamin C can cure the virus, or how the efforts by Facebook, YouTube, and and pay reductions, including a 25% cut rollout of 5G cell network technology others to remove the video, “copies of it to executives’ salaries. Bascobert added caused COVID-19.” However, he were still circulating on both platforms that he would take no salary amidst the added that “[c]omplicating things even [on May 7], with new versions of the pandemic. The full memo is available 22 online at: https://www.poynter.org/ managing editor of the St. Paul Pioneer Poynter’s full list of news business-work/2020/gannett-responding- Press, called the estimate “an amazing organizations that took actions in to-the-coronavirus-related-downturn- number.” He added in an interview response to COVID-19 is available online announces-a-series-of-cuts/. with MinnPost, “That is a death knell at: https://www.poynter.org/business- In a separate memo, Gannett for some, and it is forcing all the major work/2020/here-are-the-newsroom- president of news and USA Today changes we’re seeing.” layoffs-furloughs-and-closures-caused- publisher Maribel Wadsworth announced However, Poynter pointed out by-the-coronavirus/. As the Bulletin that reporters and editors earning more that newspapers were not the only went to press, Poynter continued to than $38,000 annually would be required media outlets affected by COVID-19. update the list regularly. (The 2020 to take a scheduled unpaid week off on a The pandemic also affected radio and Silha Forum featured Barbara Allen, the rotating basis, according to Poynter. director of college On April 28, 2020, the New York “[When we lose local journalism, we] lose programming at Post reported that Gannett had laid Poynter. For more off journalists “across many of its 241 the finger on the pulse of the community information on the newspapers in recent days.” However, in a very real way: what your local town organization and Gannett released a statement on the council is doing, what's happening at the forum more same day asserting that the cuts were generally, see “2020 the result of the $1.2 billion takeover your school board meeting.. . . [Y]ou Spring Forum of Gannett by New Media Investment need someone to keep an eye on what's Webinar Addresses Group’s GateHouse Media in November going on with the government.” the Impact of 2019, rather than as a result of COVID-19. Fact-Checking and Misinformation Among those laid off were at least seven —Jane Kirtley, editorial staffers at The Record in New on Journalism” Silha Center Director and Jersey, according to the New York Post. on page 60 of this Silha Professor of Media Ethics and Law Poynter’s list also included several issue of the Silha publications in Minnesota that Bulletin.) announced changes stemming from In an April 3 COVID-19. For example, on April 23, television outlets across the United piece for MPR, reporter Dan Kraker Laurie Hartmann, the general manager States, including MPR, which announced wrote that “[t]he irony, of course, is at the Eden Prairie News and Lakeshore on May 13, 2020 that 14 staffers from that journalists are getting laid off at a Weekly News, announced that the weekly MPR and its parent company, American time when their work is as important as newspapers would cease publishing with Public Media Group (APMG), had taken it’s ever been — and when readers are the final editions mailed to requesters on voluntary buyouts. Among those who responding.” He quoted Steve Yaeger, April 30. Additionally, weekly Minnesota took the buyouts were Laura McCallum, the chief marketing officer for the publications The Hastings Star Gazette interim director of MPR News; deputy Minneapolis Star Tribune, who said and The Bulletin in Woodbury and managing editor Lorna Benson; the newspaper’s digital subscriptions Cottage Grove each announced that they executive producer Kate Moos; senior were up significantly. “We’re seeing so were closing. According to MinnPost editor Eric Ringham; Jim Bickal, senior much interest in the coverage that our on April 14, Adams Publishing, which producer of MPR News with Angela newsroom is producing,” he said. “Those owned more than 60 newspapers in Davis; and business reporter Martin subscriptions are up, despite the fact Minnesota, reduced its workforce hours Moylan. that all our COVID-19 coverage is freely by 25% and laid off several part-time MPR also announced that 14 other available to everybody right now.” employees. Forum News Service, which employees were taking voluntary Kraker added that “newspaper owned more than two-dozen newspapers furloughs. In a statement, APMG publishers across Minnesota say that, in Minnesota, North Dakota, South spokesperson Angie Andresen said, “We despite the downturn, they’ll continue Dakota, and Wisconsin, announced a are currently facing the biggest financial to focus on their mission: Providing the series of layoffs and the end of Monday test we’ve ever faced.. . . We’ve already first draft of history of what is proving to and Friday editions of its papers. reduced executive compensation and be a globally historic moment.” In an April 3 interview with Minnesota we’re looking at every compassionate Nevertheless, the Columbia Public Radio (MPR), Minnesota way we can adjust our expenses to our Journalism Review (CJR) contended Newspaper Association (MNA) executive new revenue realities.” that it is “hard to imagine an industry director Lisa Hills explained that she Poynter’s list also included several more poorly prepared for the arrival “received emails from some of [MNA’s] digital media companies that took of a global pandemic than the media small members that have said, ‘We don’t different actions stemming from business. Even before ‘coronavirus’ know if we can continue going on like COVID-19. For example, BuzzFeed and became a household word, the industry this.’ . . . Any reduction of advertising is a Vice each announced pay cuts. On May was already reeling from a series of body serious issue for the newspapers.” 15, 2020, Vice also announced layoffs blows, most of them delivered by Google According to MinnPost, FTI of 55 employees in the United States and Facebook and their dominance of Consulting, a Washington D.C.-based and 100 employees around the world. the advertising market.” Chief digital advisory firm, forecasted a 37%-41% On April 18, Vox furloughed more than writer Mathew Ingram continued, “Since decline in newspaper revenue in 2020 100 employees for three months, among 2008, nearly half of US newspaper compared to 2019. Nieman Journalism other similar actions taken by other Lab media analyst Ken Doctor, a former digital media companies. COVID-19, continued on page 24 23 COVID-19, continued from page 23 representing journalists [to take] a information on where to get locally maybe unprecedented step and asked tested, hospital capacity, road closures, journalism jobs have disappeared, the government to help by keeping the essential business hours of operation, according to the [Los Angeles Times on industry afloat financially during the and shelter-in-place orders. During April 17, 2020], leaving fewer than 38,000 pandemic and seeding its resurgence this unprecedented public health reporters, photographers, and editors. once the economy begins to recover.” crisis, people need to have access to Waves of layoffs have become the norm, Among the groups writing to Congress their trusted local news outlets for not just for large chains like Gannett and asking for support for local news was this reliable and sometimes life-saving McClatchy but for smaller papers, and advocacy groups Pen America, the information.” The full letter is available even for digital giants like BuzzFeed and National Association of Broadcasters, online at: https://www.blumenthal. Vox, who at one time were seen as the and the NewsGuild labor union. senate.gov/imo/media/doc/04.08.20%20 future of online media.” Jon Schleuss, the president of -%20COVID-19%20-%20Local%20 Ingram concluded, “Then along came NewsGuild, told the Post, “We have to Journalism.pdf. COVID-19, and with it the unprecedented treat this as an emergency.. . . There Additionally, The Washington Post shutdown of entire cities, and the is a real interest in public health to noted that Rep. Tim Ryan (D-Ohio) erasure of huge swaths of the advertising keep people informed in this crisis.” had previously drafted the “Protect business.. . . COVID-19 has only sped up He continued, “In this moment Local Media Act of 2020,” which would their inevitable demise. What comes next especially, we have to keep journalists direct the Federal Communications remains unknown.” employed.. . . People are just hearing Commission (FCC) to “designate 50% MinnPost contributor Pat Borzi crackpot cures and ideas on Facebook of government advertising to local argued in an April 14 article that the because they have no other better source newspapers, television and radio loss of journalism was particularly for information. And that's a real shame stations for the purposes of addressing concerning during the COVID-19 for America.” the covid-19 pandemic up until pandemic. “Worst case, it’s the end However, the Post noted that “[t]he December 31, 2020.” The following year, of local print journalism, at least in role of the Fourth Estate in covering the FCC would designate no less than markets without a robust daily,” he the government makes such a request 25% of government advertising to local wrote. “But even the best case is still awkward.. . . There is also the question journalism. The bill also included a pretty bad: fewer journalists, fewer of whether news publishers would provision creating an “Emergency Jobs publications, and fewer entities holding sacrifice some of their independence for Journalism” tax credit of $20,000 per elected officials and nefarious folks in asking the government for a special newsroom employee hired throughout accountable. At a time of public health carve-out the way hotels, airlines the remainder of 2020. fear, conflicting ‘truths’ and rampant and other industries have.” Gannett As the Bulletin went to press, Ryan disinformation, that’s exceptionally not spokesperson Stephanie Tackach said had not formally introduced the bill. good.” in an April 17 statement, “Maintaining Additionally, Congress had not passed In a May 14 interview with KUMD, our independence is critically any other legislation providing support an independent public radio station in important.. . . As a news organization, to local journalism. Duluth, Minn., Silha Center Director we play an essential role providing our and Silha Professor of Media Ethics communities with clear, up-to-date Liberty University Presses Charges and Law Jane Kirtley also described the information.” Against Two Journalists for Criminal importance of local journalism. “We lose Nevertheless, some members of Trespass, Prosecutors Elect Not To the finger on the pulse of the community Congress have begun focusing on the Pursue Case in a very real way: what your local town issue of providing funding for local news On April 8, 2019, Politico reported council is doing, what’s happening at around the United States, as reported that Liberty University, an evangelical your school board meeting,” Kirtley said by The Washington Post. In an April private college in Virginia, was on the show “Neighbors.” She added, 14 letter to Congressional leadership, pressing trespassing charges against “[Y]ou need someone to keep an eye on Sen. Richard Blumenthal (D-Conn.), two journalists who entered school what’s going on with the government.” along with 17 fellow democrats and grounds to cover why it remained Student Press Law Center (SPLC) independent Sen. Angus King (I-Maine), partially open during the COVID-19 reporter Alicia Thomas added in an called for the next large COVID-19 pandemic. Two days earlier, a magistrate April 30 piece that because “[n]ews stimulus package to include funding for judge had signed arrest warrants for outlets around the country are laying local journalism. The letter explained ProPublica reporter Alec MacGillis off staff, furloughing employees and that local journalism “is part of our and freelance photojournalist Julia implementing hiring freezes due to the lifeblood” and “plays an indispensable Rendleman. However, on May 15, 2020, financial fallout of COVID-19” was that role in civic life.” Lynchburg, Va. prosecutors announced “[m]any college journalists have lost The letter continued, “Without that MacGillis and Rendleman would internships or had post-grad job offers this support, communities across the not be prosecuted for criminal trespass withdrawn, while others are in limbo country risk losing one of their key after consulting with Liberty University waiting to hear back from potential sources of accurate information about President Jerry Falwell, Jr. employers.” what citizens need to know and do in Following Virginia Gov. Ralph The Washington Post reported on response to the COVID-19 pandemic.” Northam’s March 17, 2020 ban on April 17, 2020 that cuts to newsrooms The senators added, “Local journalism gatherings of more than 10 people, across the United States amidst the has been providing communities Falwell announced that Liberty COVID-19 pandemic led “groups answers to critical questions, including University would conduct classes online 24 and follow federal and state social reporter Elizabeth Williamson, because continued, “We are disappointed that distancing directives. However, Falwell there was insufficient evidence that she Liberty University would decide to make also announced that the campus would had committed trespass. Fallwell said. that into a criminal case and go after a remain open to international students On April 8, Falwell told conservative freelance journalist because its officials and other individuals with “nowhere else radio host Todd Starnes that his decision were unhappy with press coverage of the to go,” according to the Associated Press to seek prosecution of the journalist university’s decision to convene classes (AP) on April 9. was to protect his students, arguing that in the midst of the pandemic.” (McCraw On March 26, 2020, ProPublica the journalists likely had coronavirus was the 2017 Silha lecturer. For more published a story by MacGillis, which because they came from Washington, information on his lecture titled “Making reported that Falwell “caused a stir Media Law Great by keeping the campus of the large Again: The First evangelical Christian university open “We are disappointed that Liberty Amendment in the to students despite the calls of state University would . . . go after a freelance Time of Trump,” officials and public health experts for journalist because its officials were see “32nd Annual social distancing to slow the virus’s unhappy with press coverage of the Silha Lecture spread and despite the university’s Addresses Freedom having recently shifted all instruction university's decision to convene classes of the Press During online to conform with state orders.” in the midst of the pandemic.” Trump Presidency” The story also reported that Falwell “has in the Fall 2017 minimized the threat of the coronavirus —David McCraw, issue of the Silha for months . . . and he initially vowed New York Times deputy general counsel Bulletin.) not to follow the lead of other colleges In an April in shutting down on-campus instruction, 9 statement to until Gov. Ralph Northam’s March 17 ban D.C. or New York. Falwell also criticized Business Insider, Reporters Committee on gatherings of more than 10 people their reporting and asserted that there for Freedom of the Press (RCFP) legal gave him no choice.” The full article was less than 10 percent occupancy on director Katie Townsend contended that is available online at: https://www. campus and that those who remained the warrants “appear to be intended to propublica.org/article/whats-it-like-on- could not or were afraid to go home harass journalists who were simply, and one-of-the-only-university-campuses-still- to areas more heavily affected by rightly, doing their jobs — reporting open-in-the-us. COVID-19. on the impact of Liberty University’s On March 29, The New York Times Politico reported that Liberty decision to partially reopen during a also published a story about Falwell’s University’s campus police, rather than pandemic — and to intimidate other decision, titled “Liberty University Brings the Lynchburg, Va. police department, reporters from doing the same type of Back Its Students, and Coronavirus had issued warrants against MacGillis reporting.” She added, “People across Fears, Too.” The Times explained that and Rendleman for misdemeanor the country are relying on the news Falwell’s decision “to partly reopen his trespassing. According to a May 16 media for accurate information about evangelical university enraged residents press release by the Office of the the coronavirus and how institutions of Lynchburg, Va.” The story, which also Commonwealth Attorney for the City are responding to it. Journalists detailed several students coming down of Lynchburg, Liberty University Police should not face retaliation or threats with the virus, included photographs Detective Sergeant Alan Wilkins “sought of criminal penalties for fulfilling that taken by Rendleman. The full article is and obtained warrants for Rendleman responsibility.” available online at: https://www.nytimes. and MacGillis for 1 count each of ABC News Chief Legal Affairs anchor com/2020/03/29/us/politics/coronavirus- trespassing in violation of Virginia Code Dan Abrams, on his website “Law & liberty-university-falwell.html. § 18.2-119.” Crime,” explained that although “there Politico reported that following According to Business Insider on is a general constitutional right to gather the publication of the stories by The April 9, the warrants were signed by a the news, the news may not be gathered New York Times and ProPublica, magistrate judge, though it was unclear everywhere. Exactly where the news is Falwell and Liberty University pursued whether they had been properly certified gathered is at issue here” (emphasis in trespassing charges against MacGillis by a clerk. The warrants are available original). Abrams noted that the U.S. and Rendleman. According to WSLS online at: https://www.scribd.com/ Supreme Court held in Branzburg v. 10, the NBC affiliate in Roanoke, Va., document/455746299/Liberty-University- Hayes that “without some protection on May 15, 2020, both journalists Warrants#from_embed. for seeking out the news, freedom of allegedly entered the campus grounds In an April 8 statement, New York the press could be eviscerated,” but despite numerous signs stating “Liberty Times deputy general counsel David that such protections are not absolute. University Campus, Open ONLY McCraw criticized the issuance of the 408 U.S. 665, 681 (1972). Abrams also to Students, Employees, & Those warrants, explaining that “[Rendleman] cited several cases in which courts Conducting University Business, Until was engaged in the most routine form held that journalists had committed Further Notice, NO TRESPASSING.” of news gathering: taking an outdoors trespass despite a First Amendment Politico noted that Falwell alleged that picture of a person who was interviewed defense, including Green Valley School, there were witnesses for both cases of for a news story” and that she had Inc. v. Cowles Florida Broadcasting, trespassing. However, he explained that been invited to campus by one of the 327 So.2d 810 (Fla. Dist. Ct. App. 1976). a magistrate judge did not sign a warrant students she interviewed for the article, against the author of the Times’ article, who led her around campus. McCraw COVID-19, continued on page 26 25 COVID-19, continued from page 25 In an email to The News & Advance Through early May 2020, the SBA in Lynchburg, Felmlee said, “Julia met had disbursed at least $525 billion in Abrams therefore turned to Virginia’s briefly with a student for the purpose government assistance to businesses in trespassing statute, which provides that of taking photographs for an upcoming an effort to stem the financial impact “any person without authority of law article.. . . Julia has maintained all along of COVID-19, according to the SBA goes upon or remains upon the lands, that she was unaware that she was not Office of Inspector General. The funding buildings or premises of another . . . after permitted to be on the LU campus that derived from two sources. In March having been forbidden to do so, either day.” 2020, the federal government enacted the orally or in writing, by the owner, In a May 15 interview with The Coronavirus Aid, Relief, and Economic lessee, custodian, or the agent of any News & Advance, ProPublica president Security (CARES) Act, which included such person, or other person lawfully Richard Tofel said he was pleased to the Paycheck Protection Program in charge thereof, or after having been learn of Harrison’s decision not to designed to give small businesses loans forbidden to do so by a sign or signs prosecute MacGillis, adding that the that would cover up to eight weeks posted . . . at a place or places where nonprofit news organization would of payroll costs and other specified it or they may be reasonably seen.” continue to “report on Liberty when we expenses. Pub.L. 116–136. The SBA Va. Code § 18.2-119. think circumstances require and — as was responsible for carrying out the Abrams explained that there were we always do and always have — we will Paycheck Protection Program. The SBA therefore two key legal questions: do it in a manner that complies with the said it would forgive the loans to the 1) whether there were signs posted law.” extent borrowers’ workers were paid on campus prohibiting entry and 2) during the eight weeks and that any “whether any of the people the reporter COVID-19 Pandemic Causes Access other money is used for rent, mortgage, or photographer interviewed agreed Problems Across All Levels of or utilities. The SBA also provided loans to allow the journalists to accompany Government through its Economic Injury Disaster them.” Abrams contended that a legal In spring 2020, the COVID-19 Loan program, which predated the challenge would focus on the statute pandemic prompted disputes, lawsuits, COVID-19 pandemic and is intended to and these fact questions. He concluded, and legislation over the press’ and help businesses undergoing temporary “[T]respassing charges can be brought public’s access to information about losses of revenue during a declared against reporters. Don’t expect a First how governments at all levels were disaster. Amendment defense to work here. responding to the health crisis. On According to the coalition’s Arguing consent or a lack of signage May 12, a coalition of major news complaint, each of the news might.” organizations filed a lawsuit against the organizations filed separate FOIA However, on May 15, 2020, WSLS 10, Small Business Administration (SBA), a requests, but for substantially similar among other media outlets, reported federal agency charged with supporting records, including the names and that Bethany Harrison, Lynchburg’s small businesses, for access to the locations of firms that received Commonwealth’s Attorney, announced identities of companies that received loans; identities of company officers, that MacGillis and Rendleman would billions of dollars of public assistance. stockholders, and other people affiliated not be prosecuted for criminal trespass. Additionally, several government with the firms; and loan amounts, In a press release, Harrison wrote, officials, including Chicago Mayor terms, and interest rates. The Paycheck “There is certainly probable cause here Lori Lightfoot on March 18, also took Protection Program loan application to charge these two individuals based steps to reduce disclosure obligations, notified borrowers that the SBA must on their actions and the law of Virginia.. arguing that limitations caused by disclose details about the loans to . . But we are electing not to proceed office closures, as well as the need to anyone who requests such information. with the criminal prosecution given the focus resources directly on COVID-19 Furthermore, The Washington Post’s input that we have from our victim.. prevention, testing, and treatment, FOIA request noted that the SBA . . [Falwell was] satisfied with having warranted scaling back requirements to “already has this data for both loan the reporters understand they have to respond to record requests. Meanwhile, programs in a database and is merely respect the no trespassing signs.” The journalists also saw decreased access withholding much of it from the public,” full press release is available online in other ways, including to legislative pointing out that the agency published at: https://twitter.com/Kate_Riga24/ proceedings. reports on a weekly basis “breaking status/1261329073416085510/photo/1. On May 12, 2020, a coalition of these loans down by state, size of loan, In a statement included in the press news organizations (coalition) filed a type of industry sector and number of release, lawyers for MacGillis said he Freedom of Information Act (FOIA), loans approved per lender.” “believed he had the right to report 5 U.S.C. § 552, lawsuit against the SBA The coalition’s complaint alleged that there based on a prior conversation with stemming from requests for records that the SBA failed to sufficiently respond to the university president inviting him would reveal the recipients of billions the news organizations’ FOIA requests, to campus and because such reporting of dollars in government loans intended and had not produced any responsive constituted business with the university.” to assuage the economic impact records, and had not informed any of Lynchburg attorney Chuck Felmlee, who of COVID-19. The plaintiffs — The the plaintiffs as to what material may was hired by The New York Times to Washington Post, Bloomberg, The Wall be disclosed or withheld. The complaint represent Rendleman, said in a quoted Street Journal, ProPublica, and The further alleged that the SBA either statement that the photojournalist New York Times — filed the lawsuit in denied expedited processing or had was “pleased to move past this and U.S. District Court for the District of not yet determined whether to grant continue with her distinguished career.” Columbia. expedited processing. 26 The complaint also raised questions Lightfoot’s administration initially would need to adjust how it responds as to whether the SBA has disbursed aid planned to stop responding to public to requests and would issue new FOIA funding properly and as the Paycheck record requests because city services policies “as soon as practicable,” Protection Program was designed. had been scaled back. That day, the according to the Tribune. The complaint noted that although the city had issued an automated denial Weeks later, on April 8, 2020, program was intended to help small to a record request from the Tribune, Lightfoot again said that Chicago’s businesses, numerous large corporations stating, “Due to the COVID19 National response to record requests should be and publicly traded companies had and State public health emergency, and less of a priority so more resources can returned loans following public pressure. the Governor’s issuance of a disaster be allocated to COVID-19 pandemic At the same time, organizations proclamation, the City of Chicago is in response, according to the Tribune. representing small and independent the process of scaling back on workforce The newspaper reported that the mayor businesses alleged that their members and non-essential City operations and was supporting a lobbying effort by the had not received any loans and had duties.. . . In doing so the City has Illinois Municipal League to suspend been waiting to hear back from the determined that certain job functions deadlines on when local and state SBA on their applications for weeks, must be suspended as non-essential. governmental bodies must respond according to the complaint. Additionally, The [Illinois Freedom of Information to Illinois FOIA requests during the on May 4, 2020, 103 members of the Act (Illinois FOIA)] responses have been governor’s stay-at-home order. Lightfoot U.S. House of Representatives wrote deemed a non-essential City operation said, “When I think about, for example, to SBA administrator Jovita Carranza and are being temporarily suspended the public health department where demanding answers about the agency’s until further notice.” we’ve got epidemiologists and those are lack of communication with small The Illinois FOIA, 5 ILCS 140, is a doctors who are trained in looking at businesses and failure to disclose generally applicable public record law patterns and viruses and other things information about its lending activities. governing access to state and local that are relevant to this time who are The letter read, in relevant part, “The government records in Illinois. Under crunching data, providing analysis and sporadic and incomplete data thus far the law, any person can request records helping generate the information that provided to Congress has been woefully of a covered agency, and the agency is the foundation for our modeling and insufficient, making it impossible to has a duty to release the record unless predictions about what the slope of conduct proper oversight and keep it falls under an exemption. The Illinois this virus is, I want to ask the average our constituents informed.” The full Attorney General has a statutory role Chicagoan: Would you like them to do letter is available online at: https:// in issuing guidance on the law and their job or would you like them to be luria.house.gov/sites/luria.house.gov/ reviewing disclosure disputes. pulled off to do [Illinois] FOIA requests?” files/wysiwyg_uploaded/2020.05.04%20 Later in the day on March 18, the She added, “[I]n this time where we Schneider%20Letter%20to%20SBA%20 Illinois Attorney General issued an are all straining, where we are pared on%20EIDL.pdf. opinion advising local governments down to just the essential services, In instances when the SBA that they “should continue to comply it is difficult, it is difficult for many did respond to the plaintiff news with [Illinois] FOIA and respond to city agencies to be able to respond to organizations’ requests, the agency each request promptly, to the extent the [Illinois] FOIA requests that have said it would take “efforts to provid[e] they are able to, given the limitation heightened.” loan specific data to the public . . . [i]n on staff and resources during the Several observers criticized Chicago’s the near future,” but did not provide COVID-19 pandemic.” The opinion initial plans to stop processing state any particular timeline, even though continued, “Both requesters and FOIA requests. Citizen Advocacy Center the agency routinely released such public bodies should keep in mind attorney Ben Silver told the Tribune information in the past. that FOIA allows the public body and that public record laws like the Illinois The complaint sought a declaration the requester to come to a mutually Freedom of Information Act can help that the SBA unlawfully denied the agreeable response period to comply the public trust government, which is plaintiffs’ FOIA requests and requests with a FOIA request. . . . Members of especially important during a pandemic. for expedited processing, an injunction the public and media are asked to keep “This is a time of grave uncertainty. directing the SBA to produce all records these considerations in mind and are People need to have trust in their responsive to the requests without strongly encouraged to work with public government,” Silver told the Tribune. redactions as soon as practicable, bodies to agree on reasonable and “One of the reasons we have a Freedom and an award of reasonable court appropriate response times in light of of Information Act is people need to see costs and attorneys’ fees. The full the public health concerns that we all what’s going on in their government. complaint is available online at: https:// face.” The full opinion is available online These are public records people are www.washingtonpost.com/context/ at: http://foia.ilattorneygeneral.net/pdf/ entitled to.” lawsuit-by-the-washington-post-new- OMA_FOIA_Guide.pdf. In an April 9 commentary, Better york-times-propublica-dow-jones- Lightfoot’s office subsequently Government Association (BGA) policy bloomberg-against-sba/34484f63-d99e- issued a statement later in the day on director Marie Dillon and Matt Topic, 44cb-916a-76dad37d9386/. May 8 stating that although the city was BGA’s outside general counsel, argued As the Bulletin went to press, reducing nonessential services, “FOIA that fighting the coronavirus was not the District Court for the District of remains an important public service” a sufficient reason to stop responding Columbia had not ruled on the lawsuit. and that Illinois FOIA requests to the city to open records requests. “Th[e] open Meanwhile, on March 18, 2020, the would be “reviewed and considered.” exchange of information doesn’t begin Chicago Tribune reported that Mayor However, the city maintained that it COVID-19, continued on page 28 27 COVID-19, continued from page 27 In an April 12, 2020 editorial, the process. Given that many journalists Lansing State Journal editorial board are working remotely, government and end with the daily Q&A by the responded to an executive order by employees should communicate with state’s top two executives,” they wrote. Michigan Gov. Gretchen Whitmer them via email whenever possible.” “The public has an urgent interest in that allowed agencies to take longer RCFP added, “Mutual communication records that show how governments are to respond to public record requests and flexibility between requesters and responding to COVID-19. Those requests because of COVID-19. The editorial responding agencies should be a priority have to be prioritized case by case, board said that although Whitmer’s to ensure timely and continued access to like everything else — not summarily action appeared reasonable, “it is more government information.” swept aside until the virus runs its than reasonable — it is essential — to Meanwhile, the pandemic also course.” Dillon and Topic noted that expect state and local officials avoid any led to access limitations to some epidemiologists were not responding state legislative to FOIA requests and “shouldn’t be “In a time of crisis, it is even more proceedings. In diverted” to do so. However, they stated Arkansas, state that the Illinois FOIA “is clear: ‘It is a troubling that policy agreements are lawmakers met fundamental obligation of government being agreed to behind closed doors, inside a basketball to operate openly and provide public without even a semblance of a public arena so that each records as expediently and efficiently as committee hearing.. . . The governing member could be possible.’” spaced at least Elsewhere, on March 17, 2020, actions and reactions of elected officials six feet apart, the the District of Columbia enacted should not be hidden away from public Associated Press legislation allowing local agencies to view[.]” (AP) reported delay processing public record requests on March 26, because of the pandemic. Also on March 2020. Members —John Gordon, 17, the Federal Bureau of Investigation of the public and (FBI) posted a message on its website American Civil Liberties Union of Minnesota press were not stating that it would no longer process executive director allowed inside the electronically filed federal FOIA requests arena, though the and instead required that requests be needless delay fulfilling these requests, proceedings were streamed online. submitted by U.S. mail. The FBI later just because they now can.” The board On March 24, 2020, MinnPost reopened its e-FOIA portal. Response continued, “People want to know what reported that the Minnesota House of time requirements were also relaxed local health departments are doing; Representatives crafted a $330 million under New Jersey’s public records law, whether the state is following its own bill to fight COVID-19 using private according to the Brechner Report on guidelines; that regular government conference calls instead of public April 3, 2020. functions are operating properly meetings and without any public notice Conversely, on May 28, 2020, the during crisis; that details aren’t being as to the nature of the conversations. Department of Justice (DOJ) Office overlooked.” The calls were grouped by political of Information Policy (OIP) issued The Reporters Committee for party so as to not trigger transparency guidance for federal agencies’ FOIA Freedom of the Press (RCFP) posted requirements, according to MinnPost. policies and practices. The guidance guidance on its website urging State Rep. Ryan Winkler (DFL-Golden stated, in part, that agencies’ “legal government agencies to continue Valley) said the arrangement was “not obligations” under FOIA continue processing requests and recommending ideal” in terms of public access, but was “even as [they] are working under new that requesters and record custodians sufficient temporarily. “The alternative constraints in light of COVID-19. The work together to release as much is for us to be exposing our members guidance continued, “[FOIA] remains relevant information as possible. and staff to the spread of coronavirus an important tool for the public to gain “Federal agencies should liberally grant or to not take any action and go home,” access to government information expedited processing of FOIA requests Winkler told MinnPost. “It’s not a perfect to stay informed about government related to COVID-19 from members of situation, far from it. But I think it’s the activities. Accordingly, as a general the news media under the statutory best of the available alternatives. And it’s matter, to the extent feasible agencies definition of compelling need. To the legal.” He added that the public should should work to ensure that their FOIA extent other public records laws allow be concerned about access to legislative operations continue in compliance with for similar procedures, state and local proceedings. “The demand to make the FOIA’s requirements. OIP encourages entities should also expedite and this more public is correct, and we are agencies to continuously assess their prioritize such requests,” RCFP wrote. not going to do this any longer than we FOIA programs as circumstances “Government employees charged with possibly need to. And we are trying to evolve with a focus on finding workable processing records who believe they find a way to hold virtual meetings that solutions to maximize the efficiency and cannot meet the statutory deadline are open to the public,” Winkler said. effectiveness of FOIA administration for providing a response may wish to Open government advocates and within the parameters of their agency’s communicate with requesters to inquire news organization raised concerns workplace policies.” The full guidance whether they would be willing to modify about government bodies operating less is available online at: https://www. their request or agree to an alternative openly. On March 29, 2020, Silha Center justice.gov/oip/guidance-agency-foia- processing timeframe. Some public Director and Silha Professor of Media administration-light-covid-19-impacts. records laws allow or suggest such a Ethics and Law Jane Kirtley argued in

28 a March 26, 2020 interview with the marking the first instance of the Court Michael C. Dorf questioned why the AP that government meetings held allowing the public and press to listen Supreme Court did not decide to use without public access were especially live to oral arguments outside the “Zoom, Google Hangouts, Skype, or problematic during a pandemic. “If you courtroom. National Public Radio (NPR) some other videoconferencing platform.” do things in secret, there’s a perception noted that the Court “has long resisted Dorf opined that the “short and obvious that something nefarious is going on, and attempts to have its arguments broadcast answer is that holding argument that this is not a time when our governments live with either audio or video,” though way would create the possibility of a need to be creating that possibility in the Court posted audio of the arguments video recording of an oral argument, and people’s minds,” Kirtley said. online at the end of each week when the justices have long resisted cameras In an April 22, 2020 op-ed in the oral arguments take place. The full in their courtroom.” Minneapolis Star Tribune, American press release, which includes the cases In a May 1, 2020 opinion piece for Civil Liberties Union (ACLU) of before the Court in May 2020, is available The Washington Post, C-SPAN general Minnesota executive director John online at: https://www.supremecourt. counsel Bruce Collins explained that the Gordon criticized the Minnesota gov/publicinfo/press/pressreleases/ network “has long argued for greater government leaders for crafting pr_04-13-20. public accessibility to the court and COVID-19 response legislation privately, C-SPAN, The Washington Post, CNN, welcomes this development. It has been and said that although online video and other news outlets carried the live a long time coming.” He argued that a streaming of committee meetings is audio feed in the arguments made that “breakthrough of sorts occurred in late an improvement, not everyone has month, as reported by CNN on May 12. November 2000, when it became clear, access to the Internet and a computer. In an April 13 interview with CNN, unexpectedly, that the presidential “In a time of crisis, it is even more Barbara Perry, a longtime Supreme election could be determined by the troubling that policy agreements are Court expert at the University of Supreme Court” in Bush v. Gore. being agreed to behind closed doors, Virginia’s Miller Center, praised the 531 U.S. 98 (2000). Although C-SPAN without even a semblance of a public Court’s decision. “This is good for public “promptly hand-delivered a letter to committee hearing. Crises can be, and education. It’s good for the court coming Rehnquist requesting that, given the have been, used to limit, infringe on into the 21st century.” However, Perry extraordinary level of public interest and take away individual rights and explained that it was unclear whether in the Bush v. Gore case, our cameras liberties. Even well-meaning actions the court would allow livestreaming after be allowed in to provide live coverage,” can have unintended consequences,” the COVID-19 pandemic ended. “Could it Chief Justice William H. Rehnquist Gordon wrote. “The governing actions be the tip of the camel’s nose under the instead “announced the court would and reactions of elected officials should red velvet curtains? . . . I’d say probably release an audio recording of the oral not be hidden away from public view, not,” Perry said. argument shortly after it was completed. and the actions of a few at the very top Lee Arbetman, executive director of Even though it wasn’t camera access, it should not predetermine the outcome of Street Law, an organization that helps nevertheless marked a major departure the democratic process.” high school teachers develop materials for the court[.]” about the Supreme Court, argued that Collins explained that when Chief Supreme Court Holds Oral airing oral arguments live would help Justice John Roberts announced that Arguments Over the Phone, improve civic awareness. “There’s a the Court would release audio of all its Livestream Proceedings Amidst potential for a greater understanding of arguments every Friday, instead of each COVID-19 Pandemic democracy, on the checks and balances day, it “was an unsatisfying compromise On April 13, 2020, the U.S. Supreme of government,” he said. “But does for journalists, but it was yet another Court announced in a press release that one oral argument an educated citizen small step toward broader access by the it would hear oral arguments in 10 cases make?” Perry contended that it was public to the Supreme Court.” by remote teleconference in May 2020, especially important for the public to be Collins added that the Court’s latest meaning all nine justices and counsel able to follow the arguments in Trump “move toward greater transparency would participate in oral arguments v. Vance, Trump v. Mazars USA LLP, should continue after the pandemic remotely. The Court had previously and Trump v. Deutsche Bank AG, in abates — and once the justices have postponed its original March and April which the Supreme Court was tasked become comfortable with live access, oral arguments. The press release with whether President Donald Trump adding video coverage is the next logical explained the Court would conduct oral must comply with subpoenas from step.” arguments remotely in order to comply Democratic Representatives and the “with public health guidance in response Manhattan district attorney’s office. As Scott Memmel to COVID-19.” the Bulletin went to press, the Court had Silha Bulletin Co-Editor The press release explained that the not ruled in these cases. Jonathan Anderson Court would “provide[] a live audio feed However, in an April 15, 2020 post of these arguments to news media,” on his blog “Dorf on Law,” attorney Silha Bulletin Co-Editor Sarah Wiley Silha Research Assistant

29 U.S. Senate and Trump Administration Impose Restrictions on Media Access n January and February 2020, significant criticism from observers, for the impeachment trial of President the U.S. Senate and President who contended that they would limit Bill Clinton. A document detailing the Donald Trump’s administration the ability of the news media to properly various differences is available online imposed measures limiting press inform the American public about a at: https://www.rcfp.org/wp-content/ access to various government historic proceeding. uploads/2020/01/Impeachment-Trial- Iproceedings and events. On January 14, According to The New York Times on Differences.png. CQ Roll Call revealed that U.S. Senate January 19, the press has “for decades” On Jan. 14, 2020, the Standing Sergeant-at-Arms Michael Stenger and generally had “unfettered access to the Committee of Correspondents sent Capitol Police hallways and corridors surrounding the a letter to Senate Majority Leader Chief Steven Senate chamber.” However, CQ Roll Call Mitch McConnell (R-Ky.) and Minority ACCESS A. Sund were reported that the new rules during the Leader Charles Schumer (D-N.Y.), implementing impeachment trial first included that criticizing the planned restrictions. new restrictions on the press’ ability journalists were “confined to roped-off The letter read, “These potential to cover the impeachment trial of pens as senators come and go from the restrictions fail to acknowledge what President Trump, prompting significant trial.” Reporters and photographers currently works on Capitol Hill, or the concern from observers. On January also needed to be escorted to and from way the American public expects to 27, the U.S. State Department removed the “pen.” The Times argued that the be able to follow a vital news event National Public Radio (NPR) reporter rules therefore limited “[w]alk-and-talk about their government in the digital Michele Kelemen from the press interviews with senators, a staple of age.. . . Capitol Hill is one of the most pool for an international trip with congressional reporting made famous accessible places in Washington, but the U.S. Secretary of State Mike Pompeo. by TV shows like ‘The West Wing,’” and proposed restrictions exceed those put Observers speculated that the move was also made it impossible for reporters to in place during the State of the Union, in retaliation for NPR reporter Mary quickly run out of the Senate chamber Inauguration Day, or even during the Louise Kelly posing difficult questions to to relay news to their media outlet and, Clinton impeachment trial 20 years Pompeo during a January 24 interview therefore, to the public. ago.” The full letter is available online on NPR’s “All Things Considered.” Second, CQ Roll Call reported that at: https://twitter.com/sarahdwire/ Following the interview, Kelly alleged audio recording and still photography status/1217204300260216835/photo/1. that Pompeo verbally attacked her, were prohibited inside the Senate RCFP, on behalf of 57 news yelling at her for several minutes and chamber. In order to enter the press organizations, also sent a letter to voicing his displeasure that she had gallery above the chamber, journalists Sens. McConnell and Schumer, arguing asked him questions in connection to were required to stand in line and be that “[a]bsent an articulable security allegations of misconduct regarding subjected to a magnetometer to ensure rationale, Senate leaders, the Senate Ukraine by President Trump and his that they were not carrying prohibited Sergeant at Arms, and the United States administration. Finally, on February 4, electronic devices. Finally, the only Capitol Police have an obligation to CNN confirmed that the White House cameras allowed in the press gallery preserve and promote the public’s right had not invited any journalists from were those run by a Senate office, rather to know.” The letter continued, “The the network to attend the annual “off- than by independent news organizations reported restrictions . . . will hinder the-record briefing” with members of like C-SPAN. reporting without an obvious benefit the news media prior to the State of The full restrictions were sent via for Senate security.” The full letter is the Union address. Although the move email on January 21 by Stenger to the available online at: https://www.rcfp. prompted criticism from observers, no Standing Committee of Correspondents, org/wp-content/uploads/2020/01/1-16- other media outlets provided public which represents journalists 20-Impeachment-Senate-Press-Access- support for CNN. credentialed in the daily press galleries Letter-FINAL.pdf. in the U.S. House of Representatives In a separate letter to Senate U.S. Senate Rules Committee, and the Senate. A screenshot of the leadership, the American Civil Liberties Sergeant-at-Arms, and Capitol rules attached to the email is available Union (ACLU) and several additional Police Limit News Media Access to online at: https://www.rcfp.org/trump- “organizations dedicated to government Impeachment Trial impeachment-coverage-rules/. transparency and the First Amendment,” On Jan. 14, 2020, CQ Roll Call CQ Roll Call claimed that the wrote, “While congressional proceedings reported that the U.S. Senate Rules security measures were ostensibly should be open to the public as a Committee, Sergeant-at-Arms Michael enacted “to protect senators and the matter of general principle, the public Stenger, and Capitol Police Chief chamber,” but, as a result, also had the interest value of transparency in an Steven A. Sund devised a plan imposing effect of suggesting “that credentialed impeachment trial supersedes all others. new restrictions on journalists’ reporters and photographers whom As is true in legislatures and courts movements inside the U.S. Capitol senators interact with on a daily basis across the country, public access can and their use of electronic devices are considered a threat.” The Reporters be preserved without unduly restricting in the Senate Chamber during the Committee for Freedom of the Press the movement of the press by adding impeachment trial of President Donald (RCFP) noted on January 23 that the cameras and allowing reporters to use Trump. The restrictions prompted restrictions surpassed those in place laptops and smartphones. Indeed, when 30 in doubt, a presumption of openness It is through its access that the public Ukraine into investigating former should prevail.” The full letter is is informed. When the public is Vice President and candidate for the available online at: https://www.aclu. informed, it can make better decisions. Democratic presidential nomination Joe org/letter/coalition-letter-senate-leaders- The American public should also be Biden. At one point, Kelly asked Pompeo proposed-press-access-restrictions. outraged about these restrictions.” whether he felt he “owe[d] Ambassador The New York Times reported on On Jan. 23, 2020, The Christian Marie Yovanovich an apology,” to which January 19 that C-SPAN had previously Science Monitor reported that the rules Pompeo responded in part, “You know, sent a letter to Senate leadership barring electronic devices in the Senate I agreed to come on your show today requesting access to the Senate to talk about chamber. However, the network did Iran. That’s what not receive a reply to their request. “To deny journalists their Constitutional I intend to do. I On January 28, Business Insider right to document the historical events know what our reported that because C-SPAN and other occurring now is a gross injustice to Ukraine policy has television networks were not allowed to been now for the bring cameras into the Senate chamber, the American people.. . . The press is three years of this they instead connected to the Senate’s charged with holding the government administration. I’m live feed of the trial, which was recorded accountable. It is through its access that proud of the work using Congress’ cameras. the public is informed. When the public is we’ve done.” Kelly The restrictions also prompted attempted to ask concern from senators, reporters, informed, it can make better decisions.” several follow-up and media advocacy organizations. questions, to which During a January 14 presidential —Patricia Gallagher Newberry, Pompeo replied campaign stop in Iowa, Sen. Amy Society of Professional Journalists president that the Trump Klobuchar (D-Minn.), who at that time administration was a candidate for the Democratic “know[s] exactly presidential nomination, stated that chamber, as well as requirements that what we were doing” in regard to she did not support the restrictions and journalists remain in the roped-off Ukraine policy before ending the called them a “big mistake.” Klobuchar, pens remained in place during the trial, interview. The full transcript of the the ranking Democrat on the Senate though “like water flowing downhill, it’s interview is available online at: https:// Rules Committee, added, “I wanted to hard to stop lawmakers and media from www.npr.org/2020/01/24/798579754/ actually open it more and allow laptops finding each other, or senators from transcript-nprs-full-interview-with- to be used in the press gallery in the getting their message out.” secretary-of-state-mike-pompeo. chamber.” She continued, “They claim However, NPR reported on January it is security. I really don’t think that’s U.S. State Department Removes 24 that the situation escalated after true. We’ve had very high profile votes NPR Reporter Michele Kelemen the show went off the air. Kelly told and high profile subjects at hearings, From Trip Following Secretary of co-host Ari Shapiro during “All Things and we have not restricted access in State Mike Pompeo’s Oral Attack on Considered” on the same day that that way.. . . I have my own theories, of NPR Reporter Mary Louise Kelly Pompeo silently glared at her for several course, and they’re not good ones.. . . It’s On Jan. 27, 2020, the U.S. State seconds before leaving the room. An because they don’t want people to Department announced that it would aide then asked Kelly to join Pompeo interview senators and be able to have not allow National Public Radio (NPR) at the State Department without a them talk.” reporter Michele Kelemen to travel with recorder, though she did not indicate In a Jan. 14, 2020 tweet, Seung Min U.S. Secretary of State Mike Pompeo that the conversation would be off the Kim, a White House reporter for The to Europe and Central Asia. Observers record. Washington Post, wrote, “Excessive noted that the move came three days Kelly alleged that when she entered restrictions like these only hurt the after NPR reporter Mary Louise Kelly the room, Pompeo “shouted at [her] public who are rightfully seeking alleged that Pompeo orally attacked her for about the same amount of time up-to-date information on an incredibly following an interview on NPR’s “All as the [9-minute] interview itself had historic event such as the third Things Considered,” yelling for several lasted.. . . He was not happy to have impeachment trial of a U.S. president in minutes and expressing his displeasure been questioned about Ukraine.” Kelly history.” that she had asked him questions continued, “He asked, ‘Do you think In a January 15 press release, the regarding Ukraine in connection to Americans care about Ukraine?’ He Society of Professional Journalists (SPJ) potential wrongdoing by President used the F-word in that sentence and called the restrictions “unacceptable and Donald Trump and his administration. many others.” Kelly added that Pompeo an outrageous breach of press freedom.” On Jan. 24, 2020, NPR released a “asked if I could find Ukraine on a map; The press release quoted SPJ National full transcript of Kelly’s interview with I said yes.. . . He called out for his aides President Patricia Gallagher Newberry, Pompeo, in which she questioned him to bring him a map of the world with no who said, “To deny journalists their about “U.S. policy in Iran and about the writing, no countries marked. I pointed Constitutional right to document former U.S. ambassador to Ukraine, to Ukraine. He put the map away. He the historical events occurring now Marie Yovanovitch,” who later testified said, ‘People will hear about this.’” is a gross injustice to the American during the impeachment proceedings In a January 25 statement, Pompeo people.. . . The press is charged with against President Trump around alleged contested Kelly’s claims. The statement holding the government accountable. efforts by the president to coerce Restrictions, continued on page 32 31 Restrictions, continued from page 31 accountability is paramount to any continued, “[Pompeo’s] disrespect read, “Kelly lied to me, twice. First, last free and democratic nation.” The and use of profanity and bullying with month, in setting up our interview and, letter called on Pompeo “[i]nstead of this particular journalist are simply then again yesterday, in agreeing to calling journalists ‘liars’” to instead symptomatic of a viewpoint that I think have our post-interview conversation “engage respectfully and transparently.” permeates [the Trump administration].” off the record. It is shameful that this The full letter is available online at: reporter chose to violate the basic https://twitter.com/SenatorMenendez/ White House Excludes CNN from rules of journalism and decency.” The status/1221182757302345729/photo/1. Media Session with President Trump statement also criticized the news media On Jan. 27, 2020, The Hill reported On Feb. 4, 2020, the Associated Press more generally, stating, “This is another that the State Department had removed (AP) reported that the White House example of how unhinged the media has NPR reporter Michele Kelemen from excluded CNN from the annual “off-the- become in its quest to hurt President record briefing” Trump and this Administration. It is over lunch “The State Department cannot retaliate with television no wonder that the American people against a news outlet because one of distrust many in the media when they reporters and so consistently demonstrate their its reporters asked tough questions. It personalities prior agenda and their absence of integrity.” to the State of the is the job of reporters to ask the tough Union address. The statement concluded with a single questions, not be polite company.” line, “It is worth noting that Bangladesh Several observers is NOT Ukraine,” perhaps implying criticized the —Ben Wizner, that Kelly had pointed to the wrong move and argued country on the map. The full statement American Civil Liberties Union Speech, Privacy, and that other news is available online at: https://www.state. Technology Project director networks and gov/statement-by-secretary-michael-r- organizations pompeo/. should have In a statement, NPR Senior Vice a press pool traveling to Europe “take[n] a stand” to support CNN. President for News Nancy Barnes and Central Asia with Pompeo. In CNN confirmed to the AP on defended Kelly, stating that she “has a statement, the State Department February 4 that none of its journalists always conducted herself with the Correspondents’ Association, which were invited to the lunch held on the utmost integrity, and we stand behind represents correspondents covering the day of the State of the Union address, [her] report.” State Department, contended that the whereas CNN’s Wolf Blitzer and NPR President and CEO John move was in retaliation against NPR and Anderson Cooper, among others, had Lansing also defended Kelly, stating on Kelly. “We can only conclude that the previously attended. According to the “All Things Considered” on January 25 State Department is retaliating against AP, journalists who accept the invitation that Kelly “is one of the most respected, National Public Radio as a result of to attend the meeting generally also truthful, factual, professional and this exchange,” said Shaun Tandon, the agree not to report on what is said or ethical journalists in the United States, president of the organization. “Michele takes place. However, details “inevitably and that’s known by the entire press is a consummate professional who has slip out,” such as in 2017 when CBS corps.. . . I stand behind her and I stand covered the State Department for nearly News anchor Scott Pelley asked behind the NPR newsroom, and the two decades. We respectfully ask the President Trump whether his attacks on statement from the secretary of state is State Department to reconsider and the news media could put reporters in blatantly false.” allow Michele to travel on the plane for danger. The AP added that journalists In a letter to Pompeo, Sens. Bob this trip.” generally consider the lunch meeting Menendez (D-N.J.), Cory Booker The American Civil Liberties Union “a chance to convey things that are (D-N.J.), Ed Markey (D-Mass.), Jeff (ACLU) released a separate statement uppermost on a president’s mind, while Merkley (D-Ore.), and Tim Kaine criticizing the move. Ben Wizner, it’s an opportunity for the White House (D-Va.) “express[ed] profound director of the ACLU’s Speech, Privacy, to hammer home talking points.” disappointment and concern regarding and Technology Project, was quoted However, the AP reported that there [his] irresponsible statement . . . about as saying, “The State Department was no public protest by news outlets [Kelly] and the corrosive effects of cannot retaliate against a news outlet or organizations over the exclusion of your behavior on American values because one of its reporters asked tough CNN, though several observers criticized and standing in the world.” The letter questions. It is the job of reporters to the move. Frank Sesno, director of the continued, “At a time when journalists ask the tough questions, not be polite School of Media and Public Affairs at around the world are being jailed for company.” George Washington University and a their reporting — and as in the case In a Jan. 27, 2020 interview with former CNN Washington bureau chief of Jamal Khashoggi, killed — your WNYC, a public radio station in New told the AP, “It is just outrageous that insulting and contemptuous comments York owned by NPR, Silha Center the White House is doing what they’re are beneath the office of the Secretary Director and Silha Professor of Media doing.. . . It ratchets up the war with of State.” The letter concluded by Ethics and Law Jane Kirtley called journalists and, as far as I’m concerned, emphasizing the “importance of the Pompeo’s actions “the latest in a long the general public.” free press” and “how vital a free series of clashes that [Pompeo] has C-SPAN Director of Communications press is for the public to hold their had with the press and particularly Howard Mortman said, “As a media government accountable. Such with women journalists.” She organization which covers the 32 president, this event provides a from attending a “gaggle,” a press again ruled in favor of the press, holding valuable opportunity to better inform briefing that took place in then-White that the suspension of the credential our audience about tonight’s State of House Press Secretary Sean Spicer’s violated the reporter’s Fifth Amendment the Union address.. . . We don’t dictate office. In that case,Time magazine right to due process and that Karem who’s invited. Any credible journalist and the AP boycotted the briefing in adequately demonstrated that “even would take the opportunity to sit down support for the banned outlets. (For the temporary suspension of his pass and question the president.” more information on the exclusion inflict[ed] irreparable harm on his First Conversely, former CBS News anchor of the media outlets from Spicer’s Amendment rights.” Karem v. Trump, Bob Schieffer described that the State of press briefing, seePresident Trump No. 19-2514, 2019 WL 4169824 (D.D.C. the Union briefing as “a fun thing to do Continues Longstanding Battles 2019). The U.S. Court of Appeals for and I always got a kick out of going,” but with the Press in “Media Face Several the D.C. Circuit ruled in favor of Karem added that the meeting did not “[make] Challenges During President Trump’s on June 5, 2020 as the Bulletin went much of a difference in the coverage.” First Months in Office” in the Winter/ to press. More details will appear in Silha Center Director and Silha Spring 2017 issue of the Silha Bulletin.) the Summer issue of the Bulletin. (For Professor of Media Ethics and Law Jane The Trump administration has more information on the ruling and Kirtley contended that “[i]f the stakes also sought to ban CNN specifically the background of Karem’s case, see are as low as they are in a case like this, from events, such as by revoking “Federal Judge Orders White House to why not use this as an opportunity to CNN reporter Jim Acosta’s hard Reinstate Reporter’s Press Credential” take a stand?” Kirtley cited a Feb. 3, pass — a physical press credential in the Fall 2019 issue of the Silha 2020 meeting in which British journalists granting him access to the White Bulletin and “White House Revokes and walked out of a meeting with an aide House — in November 2018. A federal Suspends Hard Press Passes Under New to Prime Minister Boris Johnson to judge ultimately ruled that the White Rules” in the Summer 2019 issue.) show support for their competitors who House was wrong to revoke Acosta’s Additionally, on July 25, 2018, the were not allowed to attend the session. credentials and must immediately return White House “banned” CNN reporter “We should be doing that, too,” Kirtley them. Cable News Network, Inc. v. Kaitlan Collins from a press availability told the AP. “You should be sending a Trump, No. 18 Civ. 2610 (D.D.C. 2018). with President Trump and European message that we’re not going to play on (For more information on the White Commission president Jean-Claude those terms. There needs to be a line House’s attempt to revoke Acosta’s Juncker, who were meeting in the Rose drawn in the sand.” hard pass, the ensuing legal battle, and Garden of the White House. Earlier that Former CBS News anchor Dan the new rules for presidential press day, Collins had posed several questions Rather similarly argued that other conferences, see President Trump Calls to President Trump at a photo op in the networks should have supported CNN Reporter “Rude, Terrible Person,” Oval Office. (For more information on CNN. “There’s value in solidarity Revokes His Press Credentials; Federal the White House banning Collins, see and not allowing this or any other Judge Requires Trump Administration Five Newspaper Staff Members Killed, president to pick off journalists or news Reinstate Credentials in “President Two Injured in Shooting at Local organizations one at a time,” Rather told Trump Continues Anti-Press Rhetoric Maryland Newsroom in “Journalists the AP. and Actions” in the Fall 2018 issue of the Face Physical Violence, Other Dangers The exclusion of CNN from the Silha Bulletin.) in the United States and Abroad” in State of the Union briefing was not the The White House also attempted the Summer 2018 issue of the Silha first time President Donald Trump’s to suspend Playboy magazine senior Bulletin.) administration selectively excluded White House reporter and CNN political certain media organizations from events. analyst Brian Karem’s press pass in Scott Memmel For example, in February 2017, several August 2019, prompting the reporter Silha Bulletin Co-Editor media outlets, including The New York to file a lawsuit against the Trump Times, CNN, and others, were banned administration. A federal judge once

The Silha Bulletin is a publication of the Silha Center for the Study of Media Ethics and Law. It is published three times a year: late fall, late spring, and late summer. It is available online at: https://hsjmc.umn.edu/research-centers/centers/silha-center/silha-center-bulletin and the University of Minnesota Digital Conservancy at: http://conservancy.umn.edu/discover?query=Silha+Bulletin.

If you would like to be notified when a new issue of the SilhaBulletin has been published online, or receive an electronic copy of the Bulletin, please email us at [email protected]. Please include “Silha Bulletin” in the subject line. You may also call the Silha Center at (612) 625-3421.

33 Twin Cities Media Seek Juror Names in Noor Trial; Minneapolis Advisory Committee Allegedly Violates Minnesota Open Meeting Law n the first half of 2020, access Fox/UTV Holdings, LLC, the AP, Hubbard keeping the trials fair,” she said. (For issues came to the forefront in Broadcasting, and the Minnesota Coalition more information on the Silha Lecture and Minnesota related to the 2019 trial on Government Information (MNCOGI) Quaintance’s comments and questions, of former Minneapolis police officer sent a letter to the court arguing that see “34th Annual Silha Lecture Tackles Mohamed Noor and a Minneapolis the First Amendment and common law Public and Media Access to Court Icity advisory committee, which guarantee press and public access to Proceedings and Records” in the Fall 2019 prohibited photography and recording criminal proceedings and prohibit prior issue of the Silha Bulletin.) at its meetings. On May 6, Minnesota restraints on press coverage. In a Jan. 22, 2020 order, Quaintance Fourth Judicial (For more information on the shooting, required that the jury information be District Court the Noor trial, and the legal battle around sealed because of continued media ACCESS Judge Kathryn L. access to the courtroom and evidence, see coverage and because people were still Quaintance heard “Judge Allows Media and Public to Make contacting the court about the case. arguments from the Minneapolis Star Copies of Evidence from Trial of Former Quaintance wrote that the names of jurors Tribune and Hubbard Broadcasting, Minneapolis Police Officer, Restricts Live would be withheld to prevent “unwanted which sought disclosure of information Streaming of Noor Sentencing Hearing” publicity and harassment” and that such about the jury that convicted Noor of in the Summer 2019 issue of the Silha information would continue to be sealed third-degree murder and second-degree Bulletin and “Media Coalition Wins Legal for at least 90 days so long as it is likely manslaughter in April 2019. Meanwhile, on Victory to Access Body Camera Video to be published, according to the Star Jan. 23, 2020, members of a Minneapolis in Trial of Former Minneapolis Police Tribune on Jan. 24, 2020. city advisory committee prohibited Officer” in the Winter/Spring 2019 issue.) On Feb. 11, 2020, the Star Tribune, photography and recording at meetings, Although Quaintance later eased represented by attorneys Leita Walker prompting allegations that the committee several of the restrictions, she continued and Christopher M. Proczko of Ballard was violating the Minnesota Open Meeting to withhold the jurors’ identities from Spahr LLP, filed a motion to release the Law. the public, including after Noor was names of the jurors, the list of prospective convicted. Quaintance wrote in a May jurors, as well as juror questionnaires and Minneapolis Star Tribune and 2019 order that if the court released profiles, a transcript of in camera juror Hubbard Broadcasting Seek Juror the names, it was likely they would be voir dire, and unredacted versions of the Names and Information in Noor Trial published and bring “unwanted publicity verdict forms.. Hubbard Broadcasting On May 6, 2020, Minnesota Fourth and harassment,” according to Minnesota later joined the motion. In a memorandum Judicial District Court Judge Kathryn L. Public Radio on May 2, 2019. She also to the court, the news outlets argued Quaintance heard arguments from the cited media coverage, community that disclosure of the juror names Minneapolis Star Tribune and Hubbard protests, and letters the court had would not threaten Noor’s right to a Broadcasting urging the court to unseal received from the public about the case. fair trial now that it was over, that there information about the jurors who served In the months following the trial, was no evidence of juror harassment in the high-profile murder trial of former Quaintance continued to seal juror or intimidation, and that no concrete Minneapolis police officer Mohamed information in orders issued in July, concerns had been raised about the safety Noor. Quaintance previously expressed October, and November 2019. Quaintance of the jurors. concerns on multiple occasions regarding again raised concerns that publication The memorandum argued that releasing juror names and information, of juror names could lead to “unwanted Quaintance’s order was inconsistent including during the 2019 Silha Lecture. publicity and harassment.” She further with Minnesota court rules, common On April 30, 2019, a jury convicted cited Noor’s appeal as another basis to law, and the First Amendment. First, the Noor of third-degree murder and second- block disclosure. outlets contended that court records degree manslaughter in connection On Oct. 28, 2019, Quaintance attended are presumptively open under state with the July 2017 shooting death of the 2019 Silha Lecture, in which attorney court rules, citing Minn. Gen. R. Prac. 40-year-old personal health coach Justine Kelli L. Sager focused on the public’s 814(a), which states that the “names of Ruszczyk Damond. Prior to and during right of access to judicial records and the qualified prospective jurors drawn the trial, Quaintance imposed several proceedings. During the Q&A session and the contents of juror qualification limitations on access to the courtroom moderated by Silha Center Director and questionnaires . . . must be made available and trial evidence, including in a March Silha Professor of Media Ethics and to the public upon specific request to the 29, 2019 pretrial hearing, in which she Law Jane Kirtley, Quaintance raised court, supported by affidavit setting forth and Fourth Judicial District Chief Judge several concerns and arguments to Sager, the reasons for the request.” Ivy Bernhardson cited the need to including that “jurors have a right to be Minnesota court rules allow preserve “order and decorum.” The same anonymous.” Quaintance added that in the identity of jurors to remain day, a coalition of media organizations her experience, jurors want protection secret only when a “strong reason (Coalition), which included the Star and do not want the press intruding exists to believe that the jury needs Tribune Media Company, LLC, CBS into their private lives. “Those are very protection from external threats to Broadcasting Inc., MPR, TEGNA, Inc., real, pragmatic concerns, and are about its members’ safety or impartiality.”

34 Minn. R. Crim. P. 26.02 subd. 2(2). In such dire, only when there is a compelling asking about deliberations. Quaintance circumstances, a court that seeks to keep government interest to withhold specific also asserted that if people knew their jurors anonymous must “make detailed information and only if the restriction is identities and personal information would findings of fact supporting its decision narrowly tailored. 464 U.S. 501 (1984). be made public, they would be less willing to restrict access to juror information.” The Star Tribune and Hubbard to serve on juries. “Nobody is trying to Names of prospective jurors and their Broadcasting argued that Quaintance’s hide anything here, but I also don’t think questionnaires may be withheld only in Jan. 22, 2020 order was not narrowly there’s a right for the media to participate the “interest of justice” or when the court tailored and failed to show a compelling in jury selection, whether it’s before or articulates a “strong reason.” Minn. Gen. government interest mandating sealing of after the fact,” Quaintance said. R. Prac. 814(a). juror names. The memorandum read, “The Additionally, Quaintance expressed Second, the outlets argued that court January 22 Order, which maintains the concern that disclosure could interfere records are presumptively open under sealing of jurors’ identities and the Juror with Noor’s pending appeal. One of the common law, and that courts across the Materials for almost a full calendar year arguments his defense team previously country have held that the common law after the jury returned its verdict — and raised was that the trial court violated requires public and press access to juror with no end to sealing in sight — is not his constitutional right to a fair trial, names absent “strong countervailing narrowly tailored to protect a compelling according to the Star Tribune on Jan. reasons why access should be restricted,” interest.” 24, 2020. Specifically, defense lawyers citing Minneapolis Star & Tribune Co. The memorandum added that courts pointed to multiple events in support of v. Schumacher, 392 N.W.2d 197, 202–03 have found that juror information has their claim: a September 2018 “off-the- (Minn. 1986). historically been public, and that access record” scheduling conference in which As justification for the continued to juror information enables the public the court discussed and decided pending sealing of the juror information, to evaluate the impartiality of jurors “and motions; the acceptance of nonpublic Quaintance, in her January 2020 thereby ensures fairness, the appearance exhibits; the court’s reliance on letters order, cited State v. Bowles, which of fairness and public confidence in and “other materials” during sentencing, discussed the “strong reason” standard. that system.” Merely because a trial has and the court’s repeated orders sealing 530 N.W.2d 521 (Minn. 1995). The case been highly publicized does not change juror names. involved the trial of a street gang member this analysis, the news organizations As the Bulletin went to press, who was convicted of murdering a asserted. The memorandum further Quaintance had not ruled on the Star police officer. A gang member who was argued that mere preference for secrecy Tribune’s and Hubbard Broadcasting’s suspected of being a police informant was or a general belief that nondisclosure motion. subsequently killed before trial, prompting would be better public policy were authorities to relocate the families of insufficient justifications for keeping the Twin Cities Media Decry Violation of some witnesses who were expected to juror information sealed. “This public Open Meeting Law by Minneapolis testify against the defendant. The court interest — which was no doubt elevated Advisory Committee kept the identities of jurors secret from because the trial against Mr. Noor On Jan. 23, 2020, members of the both the public and the parties on the involved some of the most pressing issues Minneapolis Park and Recreation Board’s theory that if the jurors feared for their of our time, including police violence (MPRB) 17-member Upper Harbor safety or their families’ safety, the verdict and race relations — calls for more Terminal Community Advisory Committee could be affected. The memorandum transparency, not less,” the memorandum (committee) objected to journalists argued that Bowles “demonstrate[d] how read. recording and taking photographs of a exceptional the circumstances must be The news organizations cited multiple public meeting, raising concerns about before an anonymous jury is permitted.” other cases in which federal courts have compliance with Minnesota’s Open The news organizations argued that found a First Amendment right of access Meeting Law, Minn. Stat. Ann. § 13D. The the concerns raised in Bowles were not to juror names, particularly when a trial dispute prompted one of the journalists at issue in relation to the Noor trial. “Mr. has concluded and there is no risk that to leave the meeting under protest and Noor is not an organized crime figure and disclosure will affect juror impartiality. city leaders to warn committee members there is no reason to believe that any juror These cases included In re Providence about the press’ right to record and ever felt any threat of physical harm,” the Journal Co., 293 F.3d 1 (1st Cir. 2002), photograph public meetings. memorandum read. “Equally important, United States v. Haller, 837 F.2d 84 (2nd According to the Minneapolis their impartiality is no longer at issue. Cir. 1988), and United States v. Smith, Star Tribune on January 23, the The verdict is in, Mr. Noor’s trial is over, 123 F.3d 140 (3rd Cir. 1997). committee was guiding the city on a and concern among jurors that, if publicly The full memorandum is available riverfront redevelopment project in identified, they might face retaliation online at: https://drive.google.com/file/d/ north Minneapolis. According to the or harassment for their verdict cannot 1WtBDk0pSkm5QbLZWli9XIDavQkkWIv Star Tribune on January 25, the site possibly impact their deliberation.” nw/view?usp=sharing. of the Upper Harbor Terminal is in Finally, the memorandum argued At a motion hearing on May 6, 2020 a predominantly African-American that there is a presumption of access to attended by Silha Bulletin Co-Editor community and is “a part of the city criminal court records under the First Jonathan Anderson, Quaintance once that’s historically been underserved Amendment. The memorandum cited again raised concerns about releasing by government.” The Minneapolis City Press-Enterprise v. Superior Court, in juror information. She questioned whether Council appointed the committee’s which the U.S. Supreme Court held that the news media were trying to impeach members, most of whom live in north the public and press may be excluded the verdict by scrutinizing the jurors and from criminal trials, including voir whether journalists could be barred from Twin Cities, continued on page 36 35 Twin Cities, continued from page 35 including executive sessions, must be in a particular governance process is not, open to the public,” although there are alone, enough for the Open Meeting Law and northeast Minneapolis, and tasked some limited exceptions. City Council to apply; and (3) the Board of Regents the committee with helping refine a $20 Member Phillipe Cunningham, who did not use the committee to reach a million request to the state Legislature for had been present at meetings in which “preordained result,” but rather, the the project. photographs and recordings were banned, regents were to interview all presidential During a meeting on January 23, some acknowledged to the Star Tribune in a finalists in an open meeting. committee members asked MinnPost January 23 interview that such actions Tanick applied those factors to the reporter Jessica Lee and Minnesota Public violated the Open Meeting law. He actions by the Upper Harbor advisory Radio (MPR) photographer Evan Frost to assured that committee members had committee and found that “[i]n particular, stop taking pictures of them and to cease been advised what the Open Meeting Law the absence of any members of the City recording the proceedings, according to requires and would not continue further Council on the advisory group and its the Star Tribune. The newspaper also prohibitions on the press. limited duration, similar to the lack of reported that the leader of the committee Minneapolis Mayor Jacob Frey said any regents on the university’s temporary said journalists would be required the incident should not have happened. advisory presidential selection unit, are to identify themselves and would be “There’s no ambiguity,” Frey told the telling in rendering the Open Meeting prohibited from photographing members Star Tribune on January 23. “The Open Law legally inapplicable.” Nonetheless, of the committee who did not consent Meeting Law is clear: Press should be Tanick praised efforts to ensure further to having their picture taken. One of the allowed in. Period.” committee meetings were fully open to committee members said they would not On Jan. 24, 2020, the Minnesota Pro the public and press. “Even if it’s not talk about certain issues with the press Chapter of the Society of Professional legally obligated to allow media coverage, present, according to MinnPost on Jan. Journalists (SPJ) issued a written it is prudent for this taxpayer-funded body 23, 2020. “Because of that, journalists statement in response to the incident, to conduct all of its important business should know they are disrupting the which read, “The board of the Minnesota in the open,” Tanick wrote. “Greater planning process,” MinnPost reported, Society of Professional Journalists transparency through unrestricted paraphrasing the committee member. commends the city’s response, and stands media access would encourage greater Frost reportedly left the meeting with the journalists who attempted to accountability on the part of the after a discussion about the request. Lee cover this public meeting. At a time committee and maximize the free flow of wrote in a tweet from the meeting, “Mpls of increasing restrictions of public information to the citizenry it serves.” City Council has appointed members information and rising animosity toward Likewise, Minneapolis media attorney of the community to oversee the Upper members of the press, the board calls on Leita Walker of Ballard Spahr LLP told Harbor Terminal project, and the advisory community leaders and elected officials in MinnPost that whether advisory boards committee just requested that journalists Minneapolis to do the same.” and committees must comply with state not take any photos/recordings of its Star Tribune managing editor Suki openness requirements is not always meetings (despite MN’s open meeting Dardarian expressed disappointment with clear. “It is a thorny area of the law,” laws).” what happened, but said she was happy Walker told MinnPost in a January An observer who had attended that city officials were working to address 23 story. Walker added that in her previous meetings of the same committee the problem. “It’s very gratifying to hear experience, violators of the Open Meeting said members told the press to stop that the city is recommitting to open Law often lack sufficient knowledge of recording in other instances, according meetings and being more inclusive with what is required and tend not to have to the Star Tribune on Jan. 23, 2020. the public in their meetings,” Dardarian bad intentions. “They come from a good The newspaper reported an incident told the Star Tribune. “Our intention in place,” Walker said. “[There’s] a lack of in 2019 in which videographers for covering these meetings is to include understanding.” KMSP-TV, the Twin Cities’ Fox affiliate, more people in the process.” The dispute also drew broader were told to stop recording, despite the In a Jan. 30, 2020 op-ed for the concerns about the news media’s fact that city officials, including a City Star Tribune, Twin Cities attorney relationship with the public, including Council member, were on hand. “The city Marshall H. Tanick wrote that the the African-American community around staff have continued to just sit silently advisory committee may not have had the development of the Upper Harbor every time the issue comes up,” Colleen to comply with the Open Meeting Law. Terminal. Cunningham told the Star O’Connor Toberman, of the group Friends He referenced a 1988 decision by the Tribune that “the Black community has of the Mississippi River, told the Star state Court of Appeals in The Minnesota not had a respectful relationship with the Tribune. “I don’t expect community Daily v. University of Minnesota, in media,” and that efforts by the journalists members to fully understand what their which the student newspaper sought to challenge the bans “does not help to options are, but the city staff should be to compel the University of Minnesota alleviate the fears and the concerns that very clear on this: These are elected and Presidential Search Advisory Committee the committee has.” He added, “Last night, appointed leaders within the city.” (PSAC) to hold open meetings. 432 (the committee) got railroaded by the The committee’s bylaws provide that N.W.2d 189 (Minn. Ct. App. 1988). The media. There was no pause, there was all meetings “be open to the public.” The appeals court held that (1) the panel no reflection, there was no engagement.” full bylaws are available online at: http:// was not a committee of the Board of O’Connor Toberman said she could stmedia.startribune.com/documents/ Regents, but instead, its members derived empathize with such concerns, but added, committeebylaws.pdf. from the University Senate Consultative “it’s an open meeting.” The Minnesota Open Meeting Law also Committee; (2) that a committee may Jonathan Anderson generally requires that “[a]ll meetings, influence a governing body or participate Silha Bulletin Co-Editor

36 High-Profile Defamation Lawsuits Target National and Local Media Outlets n the first half of 2020, national Minnesota Supreme Court Applies On May 28, 2015, Larson sued KARE and local media outlets faced Fair Report Privilege to Law 11 and the St. Cloud Times, alleging that several notable defamation Enforcement Press Conferences and they published 11 defamatory statements lawsuits. On Feb. 26, 2020, the Press Releases about his arrest. Five of the statements Minnesota Supreme Court ruled On Feb. 26, 2020, the Minnesota were attributed to law enforcement, Iin Larson v. Gannett Co., Inc. that the Supreme Court ruled in Larson v. three statements referenced accusations fair report privilege protects fair and Gannett Co., Inc. that the fair report against Larson, and three additional accurate reporting of information about privilege protects fair and accurate statements discussed his criminal history matters of public reporting of information about matters of or community members’ opinions about concern derived the case. In April 2014, Larson sued DEFAMATION public concern derived from official law from official law enforcement press conferences and press KSTP-TV and WCCO’s TV and radio enforcement releases, therefore holding that several stations, each of which settled, according press conferences and press releases. statements published by KARE 11 and to the Star Tribune on Nov. 21, 2016. 940 N.W.2d 120 (Minn. 2020). However, the St. Cloud Times were not actionable. The district court granted partial the Court also ordered a new trial 940 N.W.2d 120 (Minn. 2020). However, summary judgment in favor of KARE because the jury lacked sufficient the Court also ordered a new trial, 11 and the St. Cloud Times, ruling in information to adequately assess whether finding that the jury lacked sufficient May 2016 that “to the extent the news the privilege could be defeated for some information to adequately determine conference and news release only statements that the plaintiff asserted whether the privilege could be defeated communicated the fact of Mr. Larson’s were false and defamatory, raising the in relation to five particular statements arrest or the charge of crime made by possibility that KARE 11 and the St. published about the incident. the officer in making or returning his Cloud Times could still be subject to The case arose following a 2012 fatal arrest, these sources are entitled to the liability. shooting of police officer Tom Decker [fair report] privilege.” Generally, the In February and March, President behind a bar in Cold Spring, Minn. fair report privilege provides immunity Donald Trump’s re-election campaign Decker was in the process of performing for individuals who publish false, sued The New York Times, The a welfare check on the plaintiff, Ryan defamatory information so long as the Washington Post, and CNN, alleging Larson, who lived above the bar and individual relied on an official public that the outlets published libelous was reportedly suicidal. Police arrested document or a statement by a public opinion pieces about the campaign’s Larson soon after the shooting and the official, made clear that the document role with Russian interference in the following day, senior local and state or statement was their source, and fairly 2016 presidential election. In April, law enforcement officials held a press and accurately used the source. the Trump campaign also sued a conference and issued a press release However, the court later amended Wisconsin television station after about the incident. The press release said the ruling in a November 2016 decision, it aired an advertisement critical of that a SWAT team had arrested Larson finding that the fair report privilege did the administration’s response to the “[w]ithin an hour” of the shooting” and not cover the five statements attributed COVID-19 pandemic. that he “was booked into the Stearns to law enforcement and that the three Meanwhile, on January 13, Harvard County Jail on murder charges.” statements referencing accusations law professor and former presidential Based on the law enforcement against Larson were not substantially candidate Lawrence Lessig filed a lawsuit press conference and press release, accurate. Only claims based on the against The New York Times alleging numerous news organizations, including last three statements at issue, which that it falsely portrayed him as defending KARE 11 — the Twin Cities’ NBC discussed Larson’s criminal history and Massachusetts Institute of Technology’s affiliate — and theSt. Cloud Times, community members’ opinions about (MIT) solicitation of donations from reported the fatal shooting, investigation, the case, were dismissed because the convicted sex offender Jeffery Epstein. and arrest of Larson. However, days after court found they were incapable of a On April 13, Lessig withdrew the lawsuit. his arrest, Larson was freed because defamatory meaning. Finally, on March 3, 2020, Nicholas authorities lacked sufficient evidence A jury then found that that the eight Sandmann, the Covington Catholic High to prosecute him, and he was formally remaining statements were defamatory, School student who was the subject eliminated as a suspect in August 2013. but that the news organizations were of a viral video involving an alleged Investigators had identified a different immunized from liability because the confrontation with a Native American man, Eric Thomes, as a lead suspect in information came from law enforcement. activist in January 2019, sued The New January 2013, but Thomes committed Larson moved for a new trial following York Times, Gannett, Rolling Stone suicide when agents sought to question the jury verdict, asserting that the jury magazine, ABC News, and CBS News him. Nonetheless, after the ordeal, did not properly apply the law. The for libel. The new lawsuits came after Larson reportedly quit his job, dropped district court granted Larson a new trial CNN reached a January 2020 settlement out of school, and moved away so he for all 11 statements, finding that the with Sandmann, who also had pending could avoid further “embarrassment statements exceeded “the mere fact of lawsuits against The Washington Post and humiliation,” according to the arrest or charge” and were false and and NBC Universal. Minneapolis Star Tribune on Feb. 23, defamatory as a matter of law. 2020. Defamation, continued on page 38 37 Defamation, continued from page 37 defeated, and that four statements were of . . . government, [they rely] necessarily not covered by the privilege, but were upon the press to bring . . . in convenient On May 7, 2018, a three-judge panel not actionable. form the facts of those operations,” of the Minnesota Court of Appeals Justice Chutich began her analysis citing the U.S. Supreme Court’s ruling reversed the district court, holding that by explaining the majority’s reasoning in Cox Broadcasting Corp. v. Cohn, the fair report privilege covers “fair and as to why the privilege should apply 420 U.S. 469, 491–92 (1975). accurate reports of statements by law to the media statements based on the Second, Justice Chutich concluded enforcement during an official press press conference and press release. that the press conference and press conference and in a news release.” Larson had disputed that Moreno release were a matter of public Larson v. Gannett Co., Inc., 915 N.W.2d supported extending the privilege to concern. “The citizens of Cold Spring 485 (Minn. Ct. App. 2018). The panel and surrounding held that the district court erroneously communities had concluded that the fair report privilege “[I]n a society in which each individual a great need to be did not apply, writing that Minnesota has but limited time and resources informed about “has recognized the privilege for over matters affecting a century.” Most recently, in 2000, the with which to observe at first hand the their ability to go Minnesota Supreme Court held in operations of . . . government, [they about their daily Moreno v. Crookston Times Printing rely] necessarily upon the press to activities without Co. that the privilege applies to an fear,” she wrote. “accurate and complete report or a fair bring . . . in convenient form the facts of “And under some abridgement of events that are part of those operations.” circumstances, the regular business of a city council such as when a meeting.” 610 N.W.2d 321 (Minn. 2000). — Minnesota Supreme Court Justice suspected criminal The Court held that the privilege was Margaret Chutich remains at large, premised on two principles: a fair and it is important for accurate report of a city council meeting law enforcement press conferences and the public to be so informed and for the would “simply relay information to the press releases. However, Justice Chutich government to be able to caution the reader that she would have seen or heard found that “principles recognized in public and solicit pertinent information.” herself were she present at the meeting,” Moreno and the values underlying the Furthermore, Justice Chutich ruled that and second, that there is an “obvious First Amendment warrant applying the reporting such information advances public interest in having public affairs fair and accurate reporting privilege” the “key values of transparency and made known to all.” The Court therefore to the facts of the case. Justice Chutich accountability,” namely facilitating concluded that the news media should wrote that the Court was taking an communication between officials and the be able to cover meetings when they “incremental approach” in expanding the public, but also allowing the public to are open to the public and are related privilege, holding only that it protects evaluate the officials’ actions. to matters of public interest without “news reports that accurately and fairly Third, Justice Chutich found that fear that doing so might subject them to summarize statements about a matter of reporting about the press conference litigation. public concern made by law enforcement and press release were covered by (For more information on the officers during an official press release the privilege as “an official action or background of Larson and the lower and in an official news release.” proceeding” because they were organized court rulings, see Minnesota Court of First, Justice Chutich found that the by senior officials of law enforcement Appeals Says Fair Report Privilege press conference and press releases agencies. Extends to Cover Law Enforcement were public. Larson argued that the press The majority also rejected Larson’s Press Conferences and News Releases in conference was not public because only argument that extending the privilege “Minnesota and Federal Courts Grapple invited journalists were allowed to attend to police press conferences and press with Defamation Questions; Right-Wing and the public was not provided with releases would prejudice juries. Although Radio Host Faces Several Defamation advance notice. However, the majority Justice Chutich recognized that there Lawsuits” in the Summer 2018 issue of rejected this argument, concluding can be a tension between press freedom the Silha Bulletin.) that such a view is “far too narrow” and fair trials, she said it would not In its February 2020 opinion, the for when proceedings can be deemed be appropriate to extend ethical rules Minnesota Supreme Court affirmed public. “The clear purpose of the press prohibiting lawyers from making certain the Court of Appeals in part, reversed conference was to convey information to public statements to non-lawyer public in part, and remanded the case back the community, and the community was officials in light of the public interest in to the district court for a new trial. able to view the press conference live fair and accurate reporting on matters Justice Margaret Chutich, writing for the on television or through the subsequent of public interest derived from public majority, concluded that the fair report media coverage,” Justice Chutich wrote. proceedings. The majority also said privilege applied to seven statements She further held that the press must changes to voir dire or moving the venue the media published based on the press be provided with “some leeway in could also be used to find an unbiased conference and press release, that the its depiction and reporting of public jury. jury instructions and a special verdict events.” Justice Chutich wrote, “[I]n a Finally, Justice Chutich explained form failed to sufficiently inform the society in which each individual has but that a report is fair and accurate when jury of the factors that should be used limited time and resources with which it “simply relay[s] information to the to assess whether the privilege can be to observe at first hand the operations reader” that they would have seen or 38 heard had they been present at the accurate report privilege “expansive warrant the application of the immunity official proceeding. However, Justice and limitless,” and that the privilege the media seek[] here.” As such, Justice Chutich found that because the district should not apply to a law enforcement Anderson wrote that he would find that court erroneously held that the privilege press conference and press release. eight of the media statements were false did not apply, the district court did not He observed that the Minnesota and would remand back to the district tell the jury how to assess whether the Constitution entitles residents with a court to determine the negligence of privilege was defeated. Therefore, the specific remedy for reputational harm. KARE 11 and the St. Cloud Times, as district court’s jury instructions were Minn. Const. Art. 1, § 8. Furthermore, well as proper damages. not adequate because they focused Justice Anderson concluded that Second, Justice Anderson asserted only on whether the statements were expanding the privilege “is neither that even accepting the fair report substantially accurate and did not assess consistent with the history of defamation privilege could apply, he would find that fairness. A report may not be fair if it law nor wise under our existing some statements cannot be protected omits or misplaces information or adds jurisprudence.” He questioned why because they were not fair and accurate. context that changes the meaning of the the press conference and press release Those statements included, “Police say statements in a material way, she wrote. would be considered “official” for that man — identified as 34-year-old Thus, the majority ordered a new purposes of the privilege. Ryan Larson — ambushed officer Decker trial to decide whether the privilege can Justice Anderson explained that and shot him twice — killing him”; “He apply to five statements at issue. KARE the majority had held that reporting [Officer Decker] was the good guy last 11 published four statements — “Police about the press conference and press night going to check on someone who say that man — identified as 34-year- release were covered by the privilege needed help. That someone was 34-year- old Ryan Larson — ambushed officer as “an official action or proceeding” old Ryan Larson who investigators say Decker and shot him twice — killing because the conference and release opened fire on Officer Tom Decker for him”; “Investigators say 34-year-old Ryan were organized by senior officials of no reason anyone can fathom”; and Larson ambushed the officer, shooting law enforcement agencies. However, he “Police say Larson is responsible for the him twice. Larson is in custody”; “He argued that “[u]nder that logic, the media shooting death of Cold Spring-Richmond [Officer Decker] was the good guy last has immunity to report on any press Police Officer Tom Decker.” night going to check on someone who conference held by any government Justice Anderson compared what needed help. That someone was 34-year- employee and the scope of the fair and police officials said during the press old Ryan Larson who investigators say accurate reporting privilege is effectively conference and in the press release with opened fire on Officer Tom Decker for limitless.” Justice Anderson added, the media statements. In doing so, he no reason anyone can fathom”; and “Because of the court’s broad rule, any agreed with the standard articulated by “Investigators believe he fired two government official or employee will the majority: “the inquiry for the jury is shots into Cold Spring Police Officer be able to call a press conference or whether the respondents’ reports about Tom Decker, causing his death” — and disseminate a press release that defames the law enforcement press conference the St. Cloud Times published the private individuals and the press, with communicated the same meaning that fifth statement — “Police say Larson is impunity, will be able to widely circulate someone who actually attended the responsible for the shooting death of that defamation.” Such immunity, he press conference would have taken Cold Spring-Richmond Police Officer wrote, contradicts the Court’s own away from the press conference.” Justice Tom Decker.” precedent and the Restatement (Second) Anderson wrote that someone attending Regarding the remaining statements, of Torts. Restatement (Second) of Torts § the press conference “would have fairly Justice Chutich concluded that 611 (Am. Law. Inst. 1977). concluded that law enforcement was two — “Ryan Larson, the man accused Moreover, Justice Anderson in the midst of an active, ongoing, and of killing Officer Decker, could be questioned the majority’s invocation of early-stages investigation. The person charged as early as Monday,” and “Man the First Amendment. Its “values and would have learned that Larson had been faces murder charge” — were fair and principles,” he wrote, “have little to do arrested as a suspect in the murder that accurate as a matter of law. Chutich held with the facts here.” Justice Anderson was under investigation. But nothing that four additional statements were held instead that the case was not about about what law enforcement said at the not actionable because they were not government misconduct or defamation press conference supports the takeaway capable of a defamatory meaning, were of a government employee, but instead that law enforcement had determined opinion, or were true. concern[ed] “a private citizen who that Larson ambushed, shot, and killed In an opinion concurring in part was falsely accused by certain media Officer Decker or that law enforcement and dissenting in part, Justice G. Barry representatives of shooting and killing was accusing the as-yet uncharged Anderson, joined by Chief Justice Lorie a police officer.” He acknowledged Larson of doing so. Certainly law S. Gildea, agreed with the majority’s that the murder of a police officer and enforcement never said anything close to conclusion that four media statements the expenditure of public money to those things.” were not actionable. However, he investigate such a crime are of public Justice Anderson therefore concluded, disagreed with the rest of the majority’s concern and the privilege might extend “A free and robust press that is motivated decision, writing that the Court “tip[ped] to information from police when a to inform and educate the public about [the] balance too far in favor of the press, suspect is at large. However, Justice important public matters is undoubtedly effectively immunizing the press from Anderson concluded that the identity critical to our democracy, and a broad liability for falsely accusing a private of someone who is solely the target of cushion around the press is necessary to citizen of murder.” a police investigation “cannot be said Justice Anderson first argued that to be of sufficient public interest to Defamation, continued on page 40 the majority’s holding made the fair and 39 Defamation, continued from page 39 Trump administration’s response to the The day the lawsuit was filed, the COVID-19 pandemic prepared by a liberal Times issued a written statement. accomplish that end. But we also expect advocacy organization. Spokesperson Eileen Murphy wrote, “The the press to act responsibly in how it The lawsuits against The New York Trump campaign has turned to the courts conducts its work. That did not happen Times, The Washington Post, and CNN to try to punish an opinion writer for here.” each targeted separate opinion pieces having an opinion they find unacceptable. The full ruling by the Minnesota published by the outlets about Russian Fortunately, the law protects the right of Supreme Court is available online at: interference in the 2016 presidential Americans to express their judgments https://scholar.google.com/scholar_case?- election. On Feb. 26, 2020, President and conclusions, especially about events case=7090530110914468793&hl=en& Trump’s campaign sued the Times in the of public importance.” Murphy added, as_sdt=6&as_vis=1&oi=scholarr. “We look forward On March 11, 2020, KARE 11 and the to vindicating that St. Cloud Times petitioned the Court “The Trump campaign has turned to right in this case.” for a rehearing. On March 30, the Court the courts to try to punish an opinion Observers denied the petition. writer for having an opinion they argued that Following the ruling, Minnesota President Trump’s media attorney Mark Anfinson told find unacceptable. Fortunately, the campaign would the Star Tribune on Feb. 26, 2020 that law protects the right of Americans be unlikely to the Court’s application of the fair and to express their judgments and prevail. University accurate report privilege to the police of Virginia Law press conference and press release was conclusions, especially about events of Professor Frederick significant. However, he contended public importance.” Schauer told the that the Court “really gets off in the Times on February weeds and makes its application far — Eileen Murphy, 26 that proving more complicated than it needs to be.” New York Times spokesperson actual malice in Anfinson also argued that the decision court “is virtually would be likely to chill coverage and impossible.” require news organizations to pay Supreme Court of New York, the state’s Gibson, Dunn & Crutcher LLP attorney significant sums to defend themselves in trial court, regarding an op-ed written Theodore J. Boutrous tweeted on court. by Max Frankel published on March February 26 that the lawsuit was Steven Wells, the lawyer for KARE 11 27, 2019. Frankel wrote that President unlikely to succeed and was “yet another and the St. Cloud Times, told the Star Trump’s campaign had a basic agreement egregious example of Trump abusing Tribune that his clients were grateful with Russian officials: “the quid of help the judicial process to chill freedom that a majority of the Minnesota Supreme in the campaign against Hillary Clinton of speech and of the press.” Boutrous Court ruled the fair report privilege for the quo of a new pro-Russian foreign added, “This column is opinion based should apply, but added that they were policy.” on disclosed facts about issues of great disappointed about the jury verdict The complaint contended that this public concern relating to the President. being overturned. “It’s very difficult to claim was false and the Times published The First Amendment unequivocally bars understand what the court has done,” it with “actual malice,” a standard this lawsuit.” (Boutrous delivered the Wells said. established by the U.S. Supreme Court 33rd Annual Silha Lecture, titled “The Stephen Fiebiger, Larson’s lawyer, told in New York Times v. Sullivan that First Amendment and #MeToo” on Oct. the Star Tribune that he was happy there public officials have to show that news 17, 2018. For more on the lecture, see will be a new trial. “It’s important the organizations knowingly published “33rd Annual Silha Lecture Addresses the media be held accountable for defaming false information or acted with reckless Free Speech Implications of the #MeToo a private citizen,” he said. disregard for the truth. 376 U.S. 254 Movement” in the Fall 2018 issue of the As the Bulletin went to press, the trial (1964). The complaint argued that the Silha Bulletin.) had not been held by the district court. Times “was well aware when it published On March 3, 2020, President Trump’s these statements that they were not true” campaign filed a lawsuit againstThe Trump Re-election Campaign Files and “published these statements anyway, Washington Post in the U.S. District Libel Lawsuits Against National knowing them to be false, and knowing Court for the District of Columbia, Outlets, Local Television Station it would misinform and mislead its own alleging that two op-eds by opinion Between February and April 2020, readers.” The complaint contended that writers Greg Sargent and Paul Waldman Donald J. Trump for President, Inc. the Times did so because of its “extreme were libelous. The complaint claimed (President Trump’s campaign) filed libel bias against and animosity toward the that Sargent’s piece, published on June lawsuits against three national news Campaign, and [its] exuberance to 13, 2019, falsely reported that special organizations — The New York Times, improperly influence the presidential counsel Robert S. Mueller III determined The Washington Post, and CNN — and a election in November 2020.” that President Trump’s election campaign small Wisconsin television station. The The complaint sought compensatory had attempted to “conspire with” Russia’s lawsuits against the three national outlets damages “in the millions of dollars,” interference of the 2016 presidential stemmed from reporting on Russian as well as presumed and punitive election. The complaint further alleged interference in the 2016 presidential damages. The full complaint is available that Waldman’s op-ed, published on June election. The lawsuit against WJFW-TV, online at: https://assets.donaldjtrump. 20, 2019, made a similar false claim when an NBC affiliate in Rhinelander, Wis., com/2017/web/hero_images/Draft_NYT_ Waldman wrote, “Who knows what sort arose from an attack ad about the Complaint_(NY_State_Court).pdf. 40 of aid Russia and North Korea will give the 2020 presidential election. The against the Times, the Post, or CNN,” to the Trump campaign, now that he has complaint argued that “[a]t the time Geltzer and Katyal wrote. “But think of invited them to offer their assistance?” of publication, CNN was well aware smaller, local media outlets — whether The complaint argued that this statement that these statements were not true, newspapers, radio stations, TV news was libelous because President Trump’s because there was an extensive record programs, or websites — that already campaign was not seeking help from of statements from the Campaign and the are struggling to stay afloat as hundreds Russia or North Korea in the upcoming administration expressly disavowing any of other media outlets go under 2020 presidential election. intention to seek Russian assistance.” nationwide.. . . For them, the prospect Like the lawsuit against the Times, the The complaint continued, “There have of having to litigate a defamation suit complaint against The Washington Post been no statements by the Campaign that against the behemoth of the Trump argued that the outlet “was well aware either constitute or imply an intention campaign is intimidating — perhaps even at the time of publishing the foregoing by the Campaign to seek or consider prohibitively intimidating.” They added, statements that they were not true.” The seeking Russian assistance in the 2020 “An editor or lawyer at those outlets complaint added that “despite extensive election, or to ‘leave that option on the may pause on a particular adjective reporting on the Campaign’s activities, table.’” used to describe Trump’s relationship to there is not a shred of evidence that As in the lawsuits against the Times Russia, think about the suits against the there have been any contacts between and the Post, the suit against CNN sought Times, the Post, and CNN, and then think the Campaign and North Korea, let alone compensatory damages “in the millions really, really hard about softening that any invitation transmitted to North Korea of dollars” as well as presumed and language.” to interfere in the election.” punitive damages. The full complaint is Finally, on April 24, 2020, President The complaint therefore sought available at: https://assets.donaldjtrump. Trump’s campaign filed a libel lawsuit compensatory damages “in the millions com/2017/web/hero_images/ against WJFW-TV in Rhinelander, Wis. of dollars,” as well as presumed and Complaint(1).pdf. The lawsuit was brought in state court, punitive damages. The full complaint In all three lawsuits, attorney Charles but the television station later removed is available online at: http://assets. Harder represented President Trump’s the case to federal court in the Western donaldjtrump.com/2017/web/hero_ campaign. Harder, of Harder LLP, is best District of Wisconsin. images/Complaint.Filed.pdf. known for his victorious lawsuit against The complaint asserted that a political Kris Coratti, a spokesperson for the media gossip website Gawker on behalf advertisement prepared by Priorities Post, said in a March 3 statement, “It’s of former professional wrestler Hulk USA (PUSA), a liberal advocacy group, disappointing to see the president’s Hogan, as well as his more recent legal falsely claimed that President Trump campaign committee resorting to these attacks on technology news website called the COVID-19 pandemic a “hoax.” types of tactics, and we will vigorously TechDirt and women’s website Jezebel. The ad played a recording of President defend this case.” (For more information on Harder and Trump stating “this is their new hoax” University of Utah Law Professor his lawsuits against media outlets, see amid other statements by the president RonNell Andersen Jones told the Post Book About the Trump Administration’s spliced together. The campaign argued on March 3 that “[t]he suit is less a White House Raises Ethical and Legal that President Trump was not saying legitimate effort to seek legal redress and Questions in “The Ethics of Covering the coronavirus was a hoax, but rather, more a publicity measure designed to President Donald Trump” in the Winter/ that his political opponents were generate disdain for the media amongst Spring 2018 issue of the Silha Bulletin, using the government’s response to a base that is already quite inclined to “Attorney Charles Harder Continues the coronavirus as a basis to criticize vilify the press.” She continued, “Trump Attacks on News Websites by Filing him. Thus, “their” was a reference to and his lawyers of course do not believe Defamation Suits” in the Fall 2017 issue, his political opponents and “new hoax” they can win a libel suit over an opinion “Gawker Shuts Down After Losing Its was a reference to the notion that the column discussing one of the major Initial Appeal of $140 Million Judgment government was failing to effectively domestic and foreign relations issues of in Privacy Case” in the Summer 2016 respond to COVID-19. our day. What they believe is that they issue, and “Gawker Faces $140 Million The complaint alleged that President can use the suit to continue their own Judgment after Losing Privacy Case to Trump’s campaign sent a cease and narrative about Russian interference and Hulk Hogan” in the Winter/Spring 2016 desist letter to WJFW notifying the to compound the attacks on the press issue.) station “about the fake, deceptive, and that they have made so central to their Joshua A. Geltzer, executive director fraudulent manner in which the PUSA administration.” of the Institute for Constitutional advertisement was produced and the On March 6, 2020, President Trump’s Advocacy and Protection, and Neal K. advertisement’s false and defamatory campaign filed a lawsuit against CNN Katyal, former acting solicitor general content,” as well as “the fact that Broadcasting, Inc., CNN Productions, of the United States, wrote in a March multiple, independent, fact-checking Inc. and CNN Interactive Group, Inc. 11, 2020 Atlantic commentary that organizations rightly concluded that the (CNN) in the Northern District of although the lawsuits were likely to central point of the PUSA advertisement Georgia, alleging that a June 13, 2019 fail, they still had the capacity to inflict is clearly false.” The complaint claimed opinion piece by CNN contributor and harm by creating a chilling effect. “The that “[d]espite this overwhelming former Federal Election Commission intention, it seems, is to scare away evidence, [WJFW] continued to (FEC) general counsel Larry Noble media outlets from publishing opinion broadcast the PUSA ad, airing it falsely asserted that the campaign pieces that use particularly critical thirty-six (36) more times over the next had left open the possibility that words to describe his relationship with eleven (11) days.” it would seek help from Russia in Russia. These tactics likely won’t work Defamation, continued on page 42 41 Defamation, continued from page 41 threat was small and under control, and Harvard Law Professor Sues The that — just as he believed that he had New York Times Over “Clickbait The result, according to the in the impeachment controversy — the Defamation,” Later Withdraws complaint, was that WJFW “continued to Administration’s response to the crisis Lawsuit broadcast the PUSA advertisement with was ‘great.’ The Priorities USA political On Jan. 13, 2020, Harvard law actual knowledge that the advertisement advertisement . . . conveys precisely the professor and former presidential contained verifiably false information same gist as the President conveyed at candidate Lawrence Lessig announced and, therefore, perpetuated a fraud on his rally,” the station’s memorandum on his Twitter account that he had filed the public and/or acted with reckless read. a lawsuit against The New York Times disregard for the advertisement’s Finally, WJFW argued that the for defamation. The lawsuit contended truth.” Thus, the complaint contended campaign had not made a plausible claim that a Sept. 14, 2019 Times article that the false statements were “of and of actual malice. The station asserted falsely portrayed Lessig as defending concerning” President Trump and had that President Trump’s campaign Massachusetts Institute of Technology’s harmed his reputation, resulting in committee failed to plausibly allege (MIT) solicitation of donations from actual damages to the president and actual malice and didn’t “even come convicted sex offender Jeffery Epstein. his campaign. The complaint therefore close” to making a sufficient allegation On April 13, 2020, Reuters reported that sought actual and punitive damages. in the complaint. The memorandum Lessig had withdrawn the lawsuit. The complaint is available online at: added that President Trump’s statement On Sept. 7, 2019, the New Yorker https://assets.donaldjtrump.com/2017/ “this is their new hoax” is ambiguous published an article detailing how MIT’s web/hero_images/As_filed_Complaint_ and that when there are multiple Media Lab, a multifaceted research against_WJFW-NBC.pdf. rational interpretations of a statement, center, had attempted to conceal On May 6, WJFW filed a motion those rational interpretations cannot previous donations from Epstein, a to dismiss the lawsuit based on four be basis for actual malice. “Here, the former financier arrested in July 2019 arguments. First, the station argued political advertisement reflected a on charges of sex trafficking and that the ad was not “of and concerning” rational interpretation by Priorities conspiracy to engage in sex trafficking. President Trump’s campaign committee, USA of President Trump's comments According to the New Yorker, although but rather, President Trump himself. about the coronavirus at the rally,” the Epstein had been listed as “disqualified” Therefore, the motion argued that the memorandum contended. in MIT’s official donor database, campaign committee lacked a viable WJFW’s memorandum in support former Media Lab director Joi Ito had claim for libel. “[T]he Trump Campaign of dismissal is available online at: continued to accept monetary gifts, Committee cannot prevail on its https://www.documentcloud.org/ consulted with Epstein about the use defamation claim because, as a matter documents/6883359-Northland.html. of funds, and marked the contributions of law, the alleged false statement does President Trump’s campaign was as anonymous. The Boston Globe later not diminish the Committee’s reputation represented by the law firm Husch reported on September 11 that several and there is not defamatory of it,” the Blackwell LLP. WJFW was represented top officials at MIT knew about the defendants argued in a memorandum by Ballard Spahr LLP and Godfrey & donations. According to a September 7 accompanying the motion to dismiss. Khan S.C. New York Times article, Ito resigned Second, WJFW argued that the ad Marquette University professor and from the lab and left the boards of three was opinion and cannot be proven true former Silha Center Fellow Erik Ugland other organizations: the MacArthur or false, meaning it could not, therefore, told Wisconsin Public Radio (WPR) on Foundation, the John S. and James L. be the basis for a libel action. “Here, April 13 that the campaign’s lawsuit had Knight Foundation, and The New York the political advertisement as a whole little likelihood of success, but that, as Times Company, where he had been a reflects not a verifiable fact but Priorities with the lawsuits filed against theTimes , board member since 2012. USA’s opinion that the President the Post, and CNN, paying for a defense On Sept. 8, 2019, Lessig wrote a dangerously downplayed the risk from can be expensive. “They’re going to incur Medium post discussing the ethical coronavirus in the early part of 2020. The a bunch of costs that they're just going dilemmas many universities and validity of the opinion is not for the court to have to absorb even if they ultimately organizations face while fundraising to decide. Instead, whether President prevail, which I’m quite certain they will,” and expressed support for Ito. Lessig Trump fully understood and responded Ugland said, who added that going after opined that although it was “a mistake” appropriately to this danger to public the station, instead of Priorities USA, was for MIT to take Epstein’s donations, the health is for voters to decide in the 2020 likely part of a strategy. “A small station anonymity and secrecy surrounding the presidential election,” the defendants with few resources in rural Wisconsin is acceptance was not an issue. “Everyone argued. much easier to intimidate than a station seems to treat it as if the anonymity Third, WJFW contended that the that’s part of a huge national chain.” and secrecy around Epstein’s gift statements in the ad were substantially On May 12, Priorities USA moved to are a measure of some kind of moral true. The station argued that when intervene in the lawsuit as a defendant. failing,” Lessig wrote. “I see it as exactly President Trump’s statements, which As the Bulletin went to press, the motion the opposite. If you are going to take were recorded at a political rally, remained pending. Courts had not yet [Epstein’s] money, then you should only are considered in context they are ruled on the four lawsuits by President take it anonymously.” not materially false. “The clear gist Trump’s campaign. On Sept. 14, 2019, The New York of President Trump’s remarks at the Times published an article based on rally was his belief that, contrary to Lessig’s Medium post and two interviews his opponents’ views, the coronavirus conducted with Lessig with the headline:

42 “A Harvard Professor Doubles Down: is a well-known professor who is active with an action for dismissal. “We chose If You Take Epstein’s Money, Do It in on social media, he would probably be not to enter into a settlement agreement Secret.” The lede of article stated, “It considered a public figure. “That means but instead decided to make minor is hard to defend soliciting donations the Times will win the case unless he changes in the lead so that it more fully from the convicted sex offender Jeffrey can prove actual malice — meaning captures what the story says, and we are Epstein. But Lawrence Lessig, a Harvard actual knowledge that it’s false and now using our original print headline Law professor, has been trying.” reckless disregard for the truth,” on the online version of the story,” the Lessig filed a lawsuit against the Zipursky explained. The actual malice spokesperson said in a statement. “As we Times on Jan. 13, 2020 for one count of standard was established by the U.S. were about to file a motion to dismiss, defamation. According to the complaint, Supreme Court in New York Times Co. v. Professor Lessig withdrew his suit, Lessig claimed that the article had Sullivan, 376 U.S. 254 (1964). However, before a judge was able to assess the falsely suggested that he “was defending Zipursky said that Lessig might have had suit’s merits.” soliciting donations from Jeffrey “a powerful argument with the lede.” Epstein.” The complaint took particular Zipursky contended that “when [the Sandmann Sues Five More News issue with the headline and lede and Times] was fact-checking, he told them Outlets After Settling with CNN argued that the Times’ “actions here are they got it wrong, but they didn’t correct On March 3, 2020, The Cincinnati part of a growing journalistic culture it, which goes to establishing actual Enquirer reported that Nicholas of clickbaiting: the use of a shocking malice.” Sandmann, the Covington Catholic High headline and/or lede to entice readers to On April 2, The New York Times School student who was the subject click on a particular article, irrespective changed the Sept. 14, 2019 article’s of a viral video involving an alleged of the truth of the headline.” headline to “What Are the Ethics of confrontation with a Native American The complaint further argued that Taking Tainted Funds?” and updated activist, filed lawsuits against five the Times was “fully aware that many, the lede to state, “It is hard to defend additional media outlets for libel related if not most, readers never read past a university official who anonymously to their reporting on the confrontation. the clickbait” and therefore that the accepted donations from the convicted The new lawsuits came after CNN use of the tactic “represents a uniquely sex offender Jeffrey Epstein. But reported on Jan. 7, 2020 that it had troubling media practice as it relates Lawrence Lessig, a Harvard Law reached a settlement in a lawsuit brought to the harm to and destruction of the Professor, has been trying, even though by Sandmann. Terms of the deal with reputation of the target of the clickbait.” he wishes universities had never taken CNN were not disclosed publicly, but According to the complaint, Lessig had the money.” An “editors’ note” appearing the lawsuit sought $275 million from the previously raised objections to the lede with the article explained the changes, cable news channel. copy before the article was published. “An earlier version of this article referred The litigation stemmed from reporting The full complaint is available online at: imprecisely in the lead paragraph to the about an incident on Jan. 18, 2019, https://leiterlawschool.typepad.com/files/ views of Professor Lawrence Lessig. when numerous news organizations complaint-lessig.pdf. The lead has been edited to reflect that and social media accounts circulated On January 13, Vice reported that while Mr. Lessig defended Joi Ito, who photos and videos of a confrontation Lessig, after filing the complaint, also had accepted anonymous donations between Sandmann and Nathan Phillips launched clickbaitdefamation.org. The from Jeffrey Epstein, he said he would during two separate rallies taking place website included an essay, podcast, and prefer that institutions not accept such at the National Mall in Washington, D.C. video about the lawsuit, and a fundraiser money. The headline has also been Sandmann had traveled to Washington, to cover legal fees. In a January 13 changed, and this version of the article D.C., from Covington, Ky., a suburb interview with The Daily Beast, Lessig now has the same headline as in the print of Cincinnati, Ohio, to participate in a stated, “The law needs to reflect the edition of The Times.” The full article is march on the National Mall opposing culture. Given we know that we live available online at: https://www.nytimes. abortion. As the students were waiting in a culture where headlines and ledes com/2019/09/14/business/lessig-epstein- for a bus to pick them up at the Lincoln travel independently of a story, there’s ito-mit.html. Memorial, they were approached by an obligation to make sure the headlines On April 13, Reuters reported that Phillips and other participants of the and ledes are true and not defamatory.” Lessig had withdrawn his lawsuit. In an Indigenous Peoples March. Many of Legal experts expressed skepticism interview with The Hill on the same day, the students, including Sandmann, that the lawsuit would be successful. Lessig stated, “I don’t think we should were wearing “Make America Great “The lawsuit is really a stretch under be suing papers except in the most Again” hats. Early reporting about the current law,” Dave Heller, the deputy extreme cases, but on the other hand incident alleged that Sandmann was director of the Media Law Resource I think newspapers have to make sure blocking Phillips. However, Sandmann Center, told Mediaite on January 13. “A that if they’re going to start selling ads later disputed that characterization and court will typically look at headline and on the basis of the click-throughs from said he was not trying to interfere with article together — not in isolation — so headlines, they need to continue to make Phillips’ movements. even if you have a misleading or one- sure that their headlines are accurate and On Feb. 19, 2019, Sandmann filed sided headline if that impression is fair.” a lawsuit against the Post alleging corrected in the body of the article there In a statement to The Hill, a New York that the footage posted by the news can be no defamation claim.” Times spokesperson explained that the organization was “selectively edited” In a January 31 Law.com article, news organization had not made the in order to show Sandmann as the Fordham Law School professor Ben changes in light of the lawsuit and that aggressor and that “the Post actively, Zipursky explained that because Lessig the Times had been moving forward Defamation, continued on page 44 43 Defamation, continued from page 43 However, on Oct. 28, 2019, Bertelsman Ohio, reported that CNN had reached a partially reinstated the suit against the settlement with Sandmann, though it did negligently and recklessly participated Post and wrote that he would allow the not provide the details of the settlement. in making the [video] go viral on social plaintiffs to begin discovery based on However, CNN Business noted that the media,” without investigating the validity three statements in the Post’s coverage. settlement would “allow CNN to avoid of the video or the Twitter account. Those statements said Sandmann a lengthy and potentially unpredictable Sandmann v. WP Company LLC, “blocked” Phillips and “would not allow trial.” 19-CV-19 WOB-CJS (E.D. Ky. 2019). The him to retreat.” Although Bertelsman Meanwhile, in early March 2020, complaint further asserted that the Post had previously found that it was Phillips’ Sandmann filed lawsuits against five ignored journalistic standards when opinion that he was being blocked and additional defendants in the U.S. interpreting the incident. Following not allowed to retreat, and that he had District Court for the Eastern District of the filing of the lawsuit, several media conveyed those beliefs to the newspaper, Kentucky seeking $450 million in total, experts opined that Sandmann would he ruled that this “should . . . be the including $195 million from Gannett, face challenges in winning the case. subject of proof.” Bertelsman wrote, which publishes USA Today, The On March 12, 2019, the Sandmann “Suffice to say that the Court has given Cincinnati Enquirer, and numerous family filed a similar lawsuit against this matter careful review and concludes other local newspapers; $95 million from CNN, making largely the same claims that “justice requires” that discovery be ABC News; $65 million from The New as the complaint against the Post. had regarding these statements and their York Times; $60 million from CBS News; Sandmann v. Cable News Network, context. The Court will then consider and $35 million from Rolling Stone Inc., 19-CV-31-WOB-CJS (E.D. Ky. them anew on summary judgment.” As magazine. Sandmann v. The New York 2019). The complaint asserted that CNN the Bulletin went to press, litigation in Times Company, 20-cv-23-WOB-CJS would have known its reporting of the the case remained ongoing. (E.D. Ky. 2020); Sandmann v. CBS News, incidents contained false accusations Meanwhile, on Nov. 21, 2019, Inc. et al., 20-cv-24-WOB-CJS (E.D. Ky. against Sandmann if it had “undertaken Bertelsman similarly ruled that a 2020); Sandmann v. ABC News, Inc. et any reasonable efforts to verify their separate, $275 million libel lawsuit al., 20-cv-25-WOB-CJS (E.D. Ky. 2020); accuracy before publication.” The the Sandmann family filed against Sandmann v. Gannett Co. Inc., 20-cv- complaint also claimed that CNN sought NBC Universal could move forward. 26-WOB-CJS (E.D. Ky. 2020); Sandmann to advance an anti-Trump agenda. Bertelsman wrote, “[T]he court finds that v. Rolling Stone, LLC et al., 20-cv-00027- “Contrary to its ‘Facts First’ public the statements that plaintiff ‘blocked’ WOB-CJS (E.D. Ky. 2020). relations ploy, CNN ignored the facts and Phillips or did not allow him to retreat, Sandmann claimed that the Rolling put its anti-Trump agenda first in waging if false, meet the test of being libelous Stone, The New York Times, and a 7-day media campaign of false, vicious per se[.]” Bertelsman had made the same CBS News each published one article attacks against Nicholas,” the complaint finding in the Sandmann family’s lawsuit containing allegedly libelous material. read. against CNN before the parties reached a The complaints identified multiple The complaint claimed that Sandmann settlement, according to The Washington articles and social media posts by was defamed in four CNN television Times on Nov. 21, 2019. Gannett and ABC News as allegedly broadcasts and nine online articles (For more information on the containing libelous material, according published on the CNN website, pointing confrontation, lawsuits, and commentary to iMediaEthics on March 3, 2020. particularly to claims such as that from media experts, see Sandmann According to The Cincinnati Enquirer Sandmann and his classmates acted with Lawsuit Partially Reinstated Against on March 3, the complaints “make similar a “mob mentality,” “looked like they were The Washington Post in “News arguments to previous ones,” namely going to lynch” other protesters, and Organizations and Journalists Face that the news outlets published false were “racist.” The lawsuit sought $75 High-Profile Defamation Cases Brought and defamatory reports that harmed million in compensatory damages and by Public Officials, Figures” in the Sandmann’s reputation, as well as $200 million in punitive damages. The full Fall 2019 issue of the Silha Bulletin, bringing public criticism and threats complaint is available online at: https:// Federal Judge Dismisses $250 Million upon him and his family. www.scribd.com/document/401742248/ Lawsuit Against The Washington New York Times spokesperson Nicholas-Sandmann-v-CNN-Complaint- Post in “Minnesota Supreme Court, Danielle Rhoades Ha told iMediaEthics, With-Exhibits. Sixth Circuit, and Eastern District of “We’re confident that our coverage was On July 26, 2019, Judge William O. Kentucky Rule in Notable Defamation balanced and cautious, and we intend to Bertelsman dismissed the complaint Cases” in the Summer 2019 issue, defend against the claim vigorously.” against the Post “in its entirety.” He held and Covington Catholic High School As the Bulletin went to press, that several of the alleged defamatory Student Sues Washington Post and litigation remained ongoing in the cases statements by the Post were “protected CNN for Defamation in “Federal Judge against NBC Universal, the Post, the opinion” under the First Amendment. Dismisses Defamation Lawsuit Against Times, Gannett, Rolling Stone, ABC He also found that other alleged BuzzFeed News; News Organizations News, and CBS News. defamatory statements were not “about” Face Significant Defamation Lawsuits or “concerning” Sandmann, or did not and Settlements” in the Winter/Spring Jonathan Anderson constitute defamation per se, meaning 2019 issue.) Silha Bulletin Co-Editor statements that accuse an individual of On Jan. 7, 2020, CNN Business and Sarah Wiley crimes or immoral acts and are presumed WXIX-TV, the Fox affiliate in Cincinnati, Silha Research Assistant to be harmful.

44 Julian Assange Extradition Hearing Begins, Delayed Due to COVID-19 Pandemic; Chelsea Manning Released from Prison n April 21, 2020, Bloomberg Obama Commutes Chelsea Manning’s WikiLeaks announced on Twitter that News reported that Sentence, Pardons Gen. James E. the evidence portion of the trial had the extradition trial of Cartwright, Takes No Action on Edward been rescheduled for September 2020. WikiLeaks founder Julian Snowden” in the Winter/Spring 2017 issue (For more information on the COVID-19 Assange in London had been of the Silha Bulletin). pandemic and how it raised several Odelayed due to the COVID-19 pandemic. On April 11, 2019, British police media law and ethics issues, see “Special Assange faced extradition to the United arrested Assange after Ecuador’s Report: COVID-19 Pandemic Raises Media States on charges that he conspired to President Lenin Moreno revoked political Law and Ethics Issues” on page 16 of this disclose documents asylum and evicted Assange for “repeated issue of the Silha Bulletin.) LEAK passed to him by violations [of] international conventions According to The New York Times on INVESTIGATIONS former U.S. Army and daily-life protocols.” Assange had February 24, U.S. government attorney intelligence analyst been granted diplomatic asylum in the James Lewis contended during opening Chelsea Manning in 2010. Meanwhile, on Ecuadorian embassy in 2012 after losing arguments that the case was not about March 12, Manning was released from an appeal against extradition to Sweden, journalism or First Amendment rights, but prison after a federal judge announced where he faced two sexual assault about computer hacking and publishing that the grand jury investigating Assange allegations. Assange was also found classified documents. “Reporting or had been disbanded. Manning had been guilty in Westminster Magistrates’ Court journalism is not an excuse for criminal detained for more than 11 months in of breaching his 2012 bail conditions. activities or a license to break ordinary contempt for refusing to testify. On May 1, 2019, he was sentenced to 50 criminal laws,” Lewis told the court. On May 23, 2019, the U.S. Department weeks in prison on the breached bail “These are ordinary criminal charges of Justice (DOJ) released an indictment charges, and on July 18, he dropped his and any person, journalist or source who alleging 17 charges against WikiLeaks appeal against the jail term. hacks or attempts to gain unauthorized founder Julian Assange arising from On Nov. 19, 2019, Swedish prosecutors access to a secure system or aids and alleged violations of the Espionage Act, announced that they would not proceed abets others to do so is guilty of computer 18 U.S.C. § 793. The charges came in with extradition to Sweden and were misuse.” addition to a previous indictment that dropping the investigation into an Mark Summers, an attorney included one charge under the Computer allegation of rape previously made against representing Assange, countered that his Fraud and Abuse Act, 18 U.S.C. § 1030. Assange in 2010. In a press conference, client had not helped Manning “crack” a The charges alleged that in 2010, Assange Swedish Deputy Chief Prosecutor password or hack into a secure system assisted Manning in gaining access Eva-Marie Persson stated that although because Manning already had access to classified documents published by the complainant’s evidence was credible, to the information. “You can accurately WikiLeaks. The thousands of classified it was “not strong enough to form the describe this chapter of the case as lies, U.S. military documents included video basis for filing an indictment.” The lies and more lies,” Summers told the of a U.S. military helicopter as it shot and decision to drop the investigation put an court. He also emphasized that WikiLeaks killed a Reuters photographer in Baghdad end to a mounting dilemma for British had partnered with other media in July 2007. Manning was sentenced in courts to decide between competing organizations around the world including 2013 to 35 years in prison for the 2010 extradition requests from the United The Guardian and The New York Times leaks of classified military and diplomatic States and Sweden. and had a procedure in place to identify documents to WikiLeaks in violation On Feb. 24, 2020, United Kingdom and redact the names of individuals of the Espionage Act. On Jan. 17, 2017, (UK) District Judge Vanessa Baraitser for considered to be at risk. Instead, then-President Barack Obama commuted the Woolwich Crown Court in southeast Summers claimed, the unredacted files Manning’s sentence to seven years. (For London began hearing opening arguments had been published because a password more information on the indictment, for the United States’ extradition had appeared in a book by two reporters see “Federal Prosecutors Charge Julian request. According to a February 24 for The Guardian. “The gates got opened Assange With Seventeen Counts Under Guardian report, after a week of opening not by Assange or WikiLeaks but by the Espionage Act, Prompting Renewed arguments, the trial was scheduled to another member of that partnership,” he Concern for Journalists” in the Summer break until May 18 when the two sides argued. 2019 issue of the Silha Bulletin. For more would lay out their evidence. However, In response, The Guardian released background on WikiLeaks publishing according to the Guardian on April 27, a statement on February 25 denying the documents leaked by Manning, see Baraitser announced that the three-week the claim. “The Guardian has made “WikiLeaks’ Document Dump Sparks trial planned for May could no longer take clear it is opposed to the extradition Debate” in the Summer 2010 issue of the place due to the COVID-19 pandemic. of Julian Assange,” the statement read. Silha Bulletin and “Manning Sentenced “Remote attendance by the parties in this “However, it is entirely wrong to say the to 35 Years in Prison for Leaks” in the case will not be appropriate,” Baraitser Guardian’s 2011 Wikileaks book led to the Winter/Spring 2013 issue. Finally, for said. “Mr. Assange and the lawyers on publication of unredacted US government more information on the commuting both sides will need to be physically files.” of Manning’s sentence, see “President present in the courtroom.” On May 4, Leaks, continued on page 46 45 Kobe Bryant’s Death Prompts Ethical Concerns Over Media Coverage; Twin Cities Television Station Parts Ways With Meteorologist n Jan. 26, 2020, former of KARE 11’s news ethics and other your loved one has perished and to learn National Basketball policies.” about it from TMZ,” Los Angeles County Association (NBA) star Sheriff Alex Villanueva said at a news Kobe Bryant (Bryant), News Outlets Face Backlash Over conference on January 26. “That is just his 13-year-old daughter, Reports on Kobe Bryant’s Death wholly inappropriate.” OGianna Maria-Onore Bryant, and seven In January 2020, news outlets TMZ, TMZ is well known for breaking other passengers were killed when their ABC News, and the BBC faced criticism the news of celebrity deaths. In 2009, helicopter crashed in Calabasas, Calif. for their reports in a rush to break the the website first reported the death of Media coverage news of the January 26 helicopter crash Michael Jackson. In 2012, the outlet following the in Calabasas, Calif. that killed retired broke the news that Whitney Houston ETHICS tragedy was National Basketball Association (NBA) had passed away. And in 2016, TMZ marked with player Kobe Bryant (Bryant), his 13-year- was the first to report Prince’s death. several ethical old daughter, Gianna Maria-Onore Hollywood Reporter editorial director challenges. Celebrity news outlet TMZ Bryant, and all seven other passengers Matthew Belloni told CNN in a January was criticized for breaking the news onboard. Observers criticized TMZ for 28 interview that “when it comes to before authorities had contacted the reporting the crash before the victims’ high-profile people, they have an ‘in’ victims’ families. In their haste to families were notified. Meanwhile, other with the kinds of people who know this confirm the news, ABC News and the news reports, including those from ABC information.” BBC faced criticism for inaccurate News and BCC, were denounced for In a January 27 article, New York reports. Meanwhile, The Washington inaccuracies. Times reporter Marc Tracy highlighted Post faced backlash for suspending Celebrity news organization TMZ was the conflicting interests in reporting reporter Felicia Sonmez after she posted the first to report the helicopter crash breaking news. “Whenever a big story a series of tweets about the 2003 rape and Bryant’s death, just hours after law breaks, news organizations have to gauge allegation against Bryant shortly after enforcement officials had learned of how fast is too fast,” Tracy wrote. “For his death. Meanwhile, on May 1, 2020, the incident and before authorities had reports on tragedies, journalists face KARE 11, the Twin Cities’ NBC affiliate, contacted Bryant’s family. TMZ was the issue of whether or not to put their posted on Facebook that the outlet was publicly criticized by law enforcement drive to be first above sensitivity toward “part[ing] ways” with meteorologist Sven for the timing of the report. “It would be victims and members of their family.” Sundgaard for “continued violations extremely disrespectful to understand

Leaks, continued from page 45 Rohrabacher (R-Calif.) had offered a In his March 12 decision, Trenga pardon to Assange on President Donald reasoned that because the court had, on On the last day of opening arguments, Trump’s behalf if Assange would say the same day, dismissed the grand jury Edward Fitzgerald, another attorney that Russia had nothing to do with the before which Manning was refusing to representing Assange, contended 2016 hacking of the Democratic National testify, “Ms. Manning’s appearance before that WikiLeaks had changed U.S. Committee (DNC). The evidence portion the grand jury is no longer needed, in government policy. “WikiLeaks didn’t of the trial was scheduled for September light of which her detention no longer just seek to induce change, it did induce 2020. serves any coercive purpose.” However, change,” Fitzgerald said, referring to Meanwhile, on March 12, 2020, Judge Trenga denied Manning’s request to the withdrawal of U.S. troops from Anthony J. Trenga of the U.S. District vacate conditional fines accrued against Iraq. Fitzgerald further argued that Court for the Eastern District of Virginia her, therefore upholding the $256,000 the extradition request was based on ordered the release of Manning, who was fine for her refusal to testify. The full ulterior political motives and therefore jailed over one year earlier on March 8, ruling is available online at: https://int. constituted an abuse of process by the 2019 when Judge Claude H. Hilton found nyt.com/data/documenthelper/6814- United States in violation of a treaty her in contempt of court for refusing to chelsea-manning-ordered- between the U.S. and the UK that bans testify before a grand jury investigating releas/3f24b02368918f60524b/optimized/ extraditions for political offenses. The Assange and WikiLeaks. Manning was full.pdf#page=1. full treaty is available online at: https:// briefly released in May 2019 when the According to a March 12 New York uk.usembassy.gov/our-relationship/policy- term of the grand jury had expired. Times article, the order came one day history/the-u-s-uk-extradition-treaty/. However, she was served with another after Manning attempted to commit Previously, during a February 19 subpoena to appear, with which she suicide. pretrial hearing, Assange’s legal team had refused on May 16, 2019 and was sent asked that they be allowed to introduce back to prison. Sarah Wiley evidence that former U.S. Rep. Dana Silha Research Assistant

46 WSBT-TV, the CBS affiliate in South James was mistakenly included in the abuse and death threats, please take a Bend, Ind., reported on January 28 that news organization’s coverage of the moment and read the story — which a Change.org petition called for Fox tragedy. BBC correspondent Reeta was written 3+ years ago, and not by me. affiliates to cancel TMZ programming Chakrabarti relayed the apology in an Any public figure is worth remembering on their networks in the wake of the edition of the BBC’s “News At Ten” in their totality even if that public figure report. “Basketball legend Kobe Bryant program, stating, “In our coverage of is beloved and that totality unsettling.” and his daughter Gianna died in a horrific the death of Kobe Bryant, in one section Sonmez also posted what appeared to be helicopter crash, and TMZ LEAKED the of the report, we mistakenly showed a screenshot of an email she had received news before the authorities were even pictures of another basketball player, that used threatening language and able to notify the family,” the petition LeBron James. We do apologize for displayed the sender’s full name. read. “This is beyond not ok, and [it’s] the error.” BBC editor Paul Royall also In a January 27 interview with time that Fox and Warner take away their posted an apology on Twitter, stating that The Washington Post’s “Erik Wemple platform.” A January 30 update to the the news organization “apologise[s] [sic] Blog,” Sonmez explained that the day petition explained that although “TMZ’s for this human error which fell below our before, she had alerted Washington founder Harvey Levin said that he was usual standards.” Post managing editor Tracy Grant and in communication with Kobe Bryant’s In a January 28 article for the Arizona editor Peter Wallsten to the threats she representatives before publishing the Republic, journalist Bill Goodykoontz received. “Just so they’d be aware that story,” he also acknowledged that “the wrote that “journalism is an exceptionally things were getting a little out of hand, families of other victims could have competitive business — breaking stories I sent them links to my tweets. Tracy found out from TMZ’s reporting or social is certainly one of the goals.” However, wrote back a couple of hours later asking media, which happened more than four Goodykoontz also noted the importance me to take [the tweets] down,” Sonmez hours before the official announcement of fact-checking. “But there is also an old said. According to the “Erik Wemple was made.” The petition added, “All saying, that in the world of instantaneous Blog,” Sonmez learned that she was families deserve the respect of being updates, bears repeating: It’s better to placed on administrative leave shortly notified by the police, not tabloid be right than first,” he wrote. “Readers, after removing the tweets. news.” As the Bulletin went to press, viewers and listeners will remember who On January 27, The New York Times the petition garnered over 614,000 made a mistake a lot longer than they reported that before Sonmez deleted signatures. will who got it first, or second, or third.” the tweets, she received an email from Meanwhile, other news outlets Washington Post executive editor Marty conveyed incorrect and contradicting Washington Post Suspends, Baron. “A real lack of judgment to tweet information as they rushed to confirm Reinstates Reporter After Tweets this. Please Stop. You’re hurting this Bryant’s death. On January 29, the Regarding Sexual Assault Allegation institution by doing this,” Baron wrote. Los Angeles Times reported that Against Kobe Bryant In a January 27 statement, Washington ABC News suspended reporter Matt On Jan. 27, 2020, The Washington Post managing editor Tracy Grant Gutman for incorrectly speculating Post suspended reporter Felicia confirmed the leave. “National political on-air on January 26 that all four of Sonmez after she had posted a series of reporter Felicia Sonmez was placed Bryant’s daughters were on board the tweets about the 2003 rape allegation on administrative leave while The Post helicopter when it crashed. Los Angeles against former NBA star Kobe Bryant reviews whether tweets about the officials later confirmed the death of (Bryant) shortly after his death. The death of Kobe Bryant violated The Post Bryant and daughter Gianna, and seven tweets and subsequent suspension newsroom’s social media policy.” Grant others announced that Bryant’s three spurred discussion over the ethical added that “[t]he tweets displayed poor other children were not aboard the practices involved in reporting the judgment that undermined the work of helicopter. deaths of complicated public figures and her colleagues.” Gutman later corrected and newsroom policies regarding reporters Sonmez’s colleagues and journalists apologized for conveying the error in and social media. On January 28, the Post at other outlets criticized the decision a subsequent report and on his Twitter reinstated Sonmez, prompting further to place her on leave. More than 200 account. “Today I inaccurately reported commentary from observers about news staff members and journalists signed it was believed that four of Kobe Bryant’s outlets’ policies regarding journalists’ use a January 27 letter organized by the children were on board that flight. That of social media. NewsGuild, the union that represents is incorrect. I apologize to Kobe’s family, Shortly after the January 26 helicopter Post journalists, denouncing the action. friends and our viewers,” Gutman wrote. crash that killed Bryant, his daughter The letter, which was addressed to Baron “Reporting the facts accurately is the Gianna, and seven other passengers, and Grant, criticized how the newspaper cornerstone of our journalism,” an ABC Sonmez posted a link on Twitter to a 2016 handled the matter. “Felicia received an News representative said in a January 29 Daily Beast article with the headline, onslaught of violent messages, including statement announcing the suspension. “Kobe Bryant’s Disturbing Rape Case: the threats that contained her home address, “As he acknowledged on Sunday, Matt DNA Evidence, the Accuser’s Story, and in the wake of a tweet Sunday regarding Gutman’s initial reporting was not the Half-Confession.” The article detailed Kobe Bryant,” the letter said. “Instead accurate and failed to meet our editorial an allegation of sexual assault brought of protecting and supporting a reporter standards.” Although ABC News did not against Bryant in 2003. Shortly thereafter, in the face of abuse, the Post placed her indicate how long the suspension would Sonmez tweeted about the apparent on administrative leave while newsroom last, Gutman returned to reporting in backlash she had received. “Well, THAT leaders review whether she violated March 2020. was eye-opening,” she wrote. “To the the social media policy.” The letter The BBC also apologized on January 10,000 people (literally) who have Ethics, continued on page 48 26 after footage of NBA star LeBron made comments and emailed me with 47 Ethics, continued from page 47 protect their journalists, not acquiesce KARE 11 Parts Ways with to the mob when it comes for them. [The acknowledged the tragedy of Bryant’s Meteorologist for Alleged Ethics Washington Post] not only failed Felicia death yet went on to explain that “we Violations Sonmez, but set a dangerous precedent.” On May 1, 2020, KARE 11, the Twin believe it is our responsibility as a news On January 28, The Post reinstated Cities’ NBC affiliate, released a statement organization to tell the public the whole Sonmez and issued a statement, which on Facebook explaining that “[d]ue truth as we know it — about figures and read, “After conducting an internal to continued violations of KARE11’s institutions both popular and unpopular, review, we have determined that while news ethics and other policies, we have at moments timely and untimely.” we consider Felicia’s tweets ill-timed, she made the decision to part ways with The letter also noted Sonmez’s was not in clear and direct violation of Sven Sundgaard,” who worked as a past personal experience with sexual our social media policy.” The statement meteorologist at the station since 2006. misconduct. “Felicia herself is a survivor continued, “Reporters on social media According to the Minneapolis Star of assault who bravely came forward represent The Washington Post, and Tribune on May 2, the Facebook post with her story two years ago,” the letter our policy states ‘we must be ever prompted thousands of comments stated. “The Post’s handling of this issue mindful of preserving the reputation of from viewers, many of whom criticized shows utter disregard for best practices The Washington Post for journalistic the decision. “You will lose way more in supporting survivors of sexual excellence, fairness and independence.’ viewers with him leaving than you would violence — including the practices we We consistently urge restraint, which is have with people protesting his words,” use in our own journalism.” According particularly important when there are one follower said. “I was a faithful to The New York Times, in May 2018 tragic deaths. We regret having spoken viewer, but now I’m out.” The full post Sonmez had alleged that Jonathan publicly about a personnel matter.” and the comments are available online Kaiman, a former Beijing bureau chief That evening, Sonmez replied to the at: https://www.facebook.com/KARE11/ for the Los Angeles Times, had groped Post’s statement on Twitter and called posts/10163866748110457. and pressured her into having a sexual for more clarity around her suspension. Although the exact reason for encounter in September 2017. Kaiman “I believe that Washington Post readers Sundgaard’s removal was unclear, the resigned after the Los Angeles Times and employees, including myself, deserve Star Tribune and St. Paul Pioneer Press conducted an investigation in 2018. to hear directly from Marty Baron on the suggested that it may have been in The letter also stated that the newspaper’s handling of this matter,” response to Sundgaard having reposted suspension reflected “fundamental flaws Sonmez wrote. “I hope Washington Post on Facebook a comment by Minneapolis in The Post’s arbitrary and over-broad newsroom leaders will not only prioritize Rabbi Michael Adam Latz, who compared social media policy” and criticized their employees’ safety in the face of protesters of economic shutdowns the Post for “fail[ing] to offer a clear threats of physical harm but also ensure related to the COVID-19 pandemic to explanation of why [Sonmez] was placed that no journalist will be punished for “white nationalist Nazi sympathizer gun on leave.” The full letter is available speaking the truth.” fetishist miscreants.” online at: https://docs.google.com/ On the same day, The New York In a May 5, 2020 Facebook post, document/d/1ErQ7bN352jQZ0Ka8kCzAW Times reported that Baron and other top Sundgaard addressed his departure 8CWr2zEnUIvms5BG2Kdt1E/edit. editors sent a memorandum to the Post from KARE 11 for the first time, writing According to the “Erik Wemple Blog,” staff following the decision to reinstate in part, “Many have asked me about Grant had indicated in a January 27 Sonmez. “The events of the last few days KARE11’s post regarding my employment email to Sonmez that the tweets did not have surfaced concerns felt widely in the and separation from employment. Here’s “pertain” to the reporter’s “coverage room,” it read. After noting that the Post what I have to say about that for now: area” and that Sonmez’s “behavior on tries “to act quickly and thoroughly to I disagree with and dispute my former social media is making it harder for protect and defend our colleagues from employers claims and I am considering others to do their work as Washington intimidation and threats,” the memo my options at this time. Thank you Post journalists.” Washington Post media highlighted that the paper’s “policies on again.” The full post is available critic Erik Wemple pushed back against the use of social media — which date online at: https://www.facebook.com/ that reasoning. “A couple of thoughts from 2011 — are in need of an update.” explorewithsven/photos/a.10151936309 about those objections: One, if journalists In a January 29 article, Columbia 165934/10158742228010934/?type=3&th at The Post are prone to suspension for Journalism Review (CJR) writer eater. tweeting stories off their beats, the entire Jon Allsop called attention to the As the Bulletin went to press, KARE newsroom should be on administrative constraining nature of newsroom 11 had not provided any further details leave. Two, the contention that sharing policies regarding journalists’ use of on the departure of Sundgaard. a link to a news article complicates social media. “Sonmezgate . . . exposes the work of others requires supporting a more routine problem: the tyranny of evidence,” Wemple wrote in his January Sarah Wiley the newsroom social media policy,” he 27 blog post. Silha Research Assistant wrote. “Ostensibly, such policies are Journalists at other outlets also meant to safeguard journalists and their Scott Memmel highlighted the puzzling rationale. bosses against the pitfalls of the internet; Silha Bulletin Co-Editor On January 27, New York magazine in practice, they often read like hamfisted Washington correspondent Olivia Nuzzi attempts to reconcile competing tweeted, “News organizations should impulses.”

48 Saudi Arabia and Turkey Take Different Actions Against Accused Killers of Journalist Jamal Khashoggi; Saudi Crown Prince Escapes Accountability n Dec. 23, 2019, several Agency (CIA) concluded just weeks transparency and the Saudi government’s media outlets reported after the killing that it was ordered by refusal to cooperate with independent that Saudi Arabia had MBS. Even so, President Donald Trump investigators suggests that this was sentenced five people publicly defended MBS and Saudi merely a sham trial. Those ultimately to death for their role in Arabia on the basis that Khashoggi’s responsible, at the highest level of the Othe 2018 murder of journalist Jamal death was not important enough to Saudi government, continue to escape Khashoggi. Three additional individuals undermine the relationship between the responsibility for the brutal murder of were sentenced to a total of 24 years in two countries. (For more information Jamal Khashoggi.” prison. On March on the background of Jamal Khashoggi’s Other observers contended that REPORTERS 25, 2020, The New murder, see Washington Post Columnist more could be done to hold senior York Times and Jamal Khashoggi Killed in Saudi Saudi officials accountable. Agnès IN DANGER The Washington Consulate in Istanbul in “Journalists Callamard of the Office of the U.N. Post reported in the United States and Abroad Face High Commissioner for Human Rights that Turkish officials indicted 20 Saudi Threats of Violence and Incarceration,” called the proceedings and subsequent nationals in connection with the murder. in the Fall 2018 issue of the Silha sentences against the five individuals Khashoggi was a Saudi Arabia Bulletin.) a “mockery.” Adam Coogle of Human national who lived in Virginia and wrote On Dec. 23, 2019, The Washington Rights Watch raised suspicion of the columns in The Washington Post that Post, NBC News, and several additional fairness of the proceedings and called were often critical of Saudi Crown Prince news outlets reported that Saudi Arabia for further scrutiny of Khashoggi’s Mohammed bin Salman (MBS). Among had sentenced five people to death for killing. Coogle told The Washington Post the most prominent journalists and their role in Khashoggi’s killing. Three in December 2019 that the actions of public figures in Saudi Arabia, Khashoggi additional individuals were sentenced the Saudi government, “from complete first attracted international acclaim in to a total of 24 years in prison for denial to hanging the murder on lower- the 1980s for covering the Soviet Union’s “covering up this crime and violating level operatives in a trial that lacked invasion of Afghanistan, according to a the law,” according to a Saudi public transparency, demonstrates the need for 2018 New York Times article. He later prosecutor in a December 23 statement. an independent criminal inquiry.” became close with the Saudi royal family Two more people — high-ranking Saudi Three months later, on March 25, and was an adviser and spokesperson officials accused of being involved in the 2020, Turkish officials indicted two for the crown. However, his relationship plot — were reportedly exonerated. former aides of MBS and 18 other Saudi with the royal family became strained The sentences were handed down nationals in connection with the murder when MBS ascended to power, and by after a nearly year-long criminal trial in of Khashoggi. Prosecutors in Istanbul 2016 Khashoggi was prohibited from Riyadh. The proceedings were closed issued arrest warrants and detention commenting in the press and on social to the public and the names of the five requests for the men. However, despite media about Saudi Arabia. He eventually people sentenced to death were not Turkey’s actions, the Times reported that fled Saudi Arabia for the United States in released. However, Khashoggi’s sons Saudi Arabia had not allowed Turkish 2017. were allowed to attend the trial, as well investigators access to the indicted On Oct. 2, 2018, Khashoggi went to as their attorneys and representatives individuals. As the Bulletin went to the Saudi Consulate in Istanbul to get from Turkey and the United Nations press, Saudi Arabia had not extradited documentation so he could marry his (U.N.) Security Council’s five permanent any of the 20 individuals. fiancée, Hatice Cengiz. Investigators from members, including the United States. In a March 25 statement, Gulnoza multiple agencies, both American and Reaction to the sentences was Said, the Europe and Central Asia foreign, concluded that Khashoggi was mixed. Khashoggi’s eldest child, Salah program coordinator for the Committee murdered shortly after he entered the Khashoggi, praised the sentences in a to Protect Journalists (CPJ), wrote, consulate by a team of Saudi assassins. statement posted on Twitter. “We affirm “Today’s indictments represent an Investigators believe Khashoggi’s body our confidence in the Saudi judiciary important step towards achieving justice was dismembered, although his remains on all its levels, in it being fair to us, for the killing of Jamal Khashoggi, but were not found. and achieving justice,” Salah Khashoggi much work remains to be done. Saudi In November 2018, the U.S. wrote. The Washington Post quoted an and Turkish authorities should ensure government imposed sanctions upon anonymous State Department official that all those involved in the gruesome 17 people believed to have played a who described the death sentences as murder, including the masterminds, role in Khashoggi’s murder, all of them “an important step in holding those are held accountable, no matter how Saudi citizens. The Saudi government responsible for the terrible crime influential they may be.” nevertheless maintained that Khashoggi’s accountable.” On April 16, 2020, CPJ sent an open killing was the result of rogue agents However, Cengiz said the court’s letter to President Trump calling on who were supposed to bring the action was “not acceptable.” Washington him to order the Office of the Director dissident back to his home country Post publisher Fred Ryan wrote in of National Intelligence to share an alive. However, the Central Intelligence a statement, “The complete lack of Reporters, continued on page 50 49 Reporters, continued from page 49 see “Federal Judge Orders White Other Dangers in the United States and House to Reinstate Reporter’s Press Abroad,” and Federal Prosecutors Seize unclassified report with Congress Credential” in the Fall 2019 issue of the Phone and Email Records of New York identifying the people who are believed Silha Bulletin, “White House Revokes Times Reporter in Leak Investigation to be involved in Khashoggi’s murder. and Suspends Hard Press Passes Under in “Trump Administration Targets CPJ also asked President Trump New Rules” in the Summer 2019 issue, Journalist, Leaker of Government to impose sanctions on all those Information, responsible, including MBS. As the “Today's indictments represent an and Former Bulletin went to press, the Trump Government administration had not released the important step towards achieving justice Employees Who report or imposed sanctions on MBS or for the killing of Jamal Khashoggi, but Took Classified other Saudi officials. much work remains to be done. Saudi Documents,” in The letter also criticized President and Turkish authorities should ensure the Summer 2018 Trump’s anti-press rhetoric and actions. issue, “Reporters The letter read, “[M]any of the actions that all those involved in the gruesome and Leakers taken by you and your administration murder, including the masterminds, of Classified have deepened distrust of the media, are held accountable, no matter how Documents chilled national security reporting, and Targeted by made it more difficult for the general influential they may be.” President Trump public to access timely and accurate and the DOJ” in information from their government.” CPJ — Gulnoza Said, the Summer 2017 “respectfully request[ed] a meeting” with Committee to Protect Journalists Europe and issue, “Media Face President Trump or member(s) of his Central Asia program coordinator Several Challenges administration “to discuss [its] concerns During President and . . . recommendations for improving “President Trump Continues Anti-Press Trump’s First Months in Office” in the press freedom environment in the Rhetoric and Actions” and “Journalists the Winter/Spring 2017 issue, and United States.” The full letter is available in the United States and Abroad Face “2016 Presidential Candidates Present online at: https://cpj.org/2020/04/ Threats of Violence and Incarceration” Challenges for Free Expression” in the cpj-calls-on-trump-to-improve-press- in the Fall 2018 issue, Five Newspaper Summer 2016 issue.) freedom-in-us.php. Staff Members Killed, Two Injured in (For more information on President Shooting at Local Maryland Newsroom Jonathan Anderson Trump’s relationship with the media, in “Journalists Face Physical Violence, Silha Bulletin Co-Editor

The Silha Center for the Study of Media Ethics and Law was established in 1984 with an endowment from Otto and Helen Silha. Located within the Hubbard School of Journalism and Mass Communication at the University of Minnesota, Twin Cities, the Silha Center is the vanguard of the School’s interest in the ethical responsibilities and legal rights of the mass media in a democratic society.

The Center focuses on the concepts and values that define the highest ideals of American journalism: freedom and fairness. It honors the importance of these ideals by examining their theoretical and practical applications and by recognizing the interdependence of ethical and legal principles.

50 Journalists File First Amendment Lawsuit Stemming from Questioning by U.S. Border Agents n Nov. 21, 2019, NBC 7 in 2018 issue, “U.S. Customs and Border detained at secondary inspection at San Diego reported that five Protection Actions Continue to Raise least once, during which time they were journalists had filed a lawsuit First and Fourth Amendment Questions” questioned about their journalistic work, in the U.S. District Court for in the Summer 2018 issue, “Civil Rights activities, and sources of information the Eastern District of New Organizations, Federal Agency, and House related to the migrant caravan and OYork against President Donald Trump’s of Representatives Raise Different Issues the U.S.-Mexico border, among other administration, challenging questioning Regarding Searches at U.S. Borders” in matters. The complaint contended by U.S. Customs and Border Protection the Fall 2017 issue, and “U.S. Customs that such questioning and secondary (CBP) officers about and Border Protection Searches of inspections violated the First Amendment their journalistic Electronic Devices, Data at U.S. Borders because it was done “without any valid BORDERS work, activities, Raise Privacy and Legal Concerns” in the immigration or customs purpose” and and sources on Summer 2017 issue.) “compel[ed the plaintiffs] to disclose conditions at On March 6, 2019, NBC 7 revealed information revealing constitutionally the U.S.-Mexico border. The journalists that the U.S. government had “created a protected newsgathering and associational also sought a court order requiring secret database of activists, journalists, activities, without meeting the standard expungement of information gathered and social media influencers” tied to the necessary to compel such disclosure.” about them through the questioning, migrant caravan seeking to cross the The complaint further argued that the including details that were compiled in U.S.-Mexico border in November 2018. questioning “substantially burden[ed] a secret database, revealed by NBC 7 in The secret database included the names, Plaintiffs’ exercise of their constitutional March 2019, tracking individuals tied to birthdates, countries of commencement, rights to engage in newsgathering activity the “migrant caravan,” a group of over and photographs of several journalists, a and to associate with their sources, and 5,000 migrants seeking asylum at the U.S. attorney, and 48 other people from substantially burdening their freedom of U.S.-Mexico border in November 2018. the United States and abroad labeled as speech — including their rights to publish For several years, CBP’s practice of “organizers,” “instigators,” or their roles their work as photojournalists.” warrantless searches and seizures of “unknown.” It was reportedly used by CBP, Finally, the complaint asked the electronic devices has prompted lawsuits Immigration and Customs Enforcement court to declare that the defendants’ by travelers asserting violation of their (ICE), U.S. Border Patrol, and the Federal actions — specifically, questioning the First and Fourth Amendment rights. Bureau of Investigation’s (FBI) San Diego plaintiffs about their journalistic work Although some federal courts — including office. and activities, compelling disclosure of the U.S. Courts of Appeals for the According to NBC 7, several journalists information, and detaining the plaintiffs Fourth and Ninth Circuits, as well as the who went to the U.S.-Mexico border for secondary inspection — violated U.S. District Courts for the Districts of to cover the migrant caravan reported the First Amendment. The complaint Massachusetts and Maryland — have that they were subjected to secondary also asked the court to “[e]njoin upheld travelers’ First and Fourth screenings and questioning. Several also [the d]efendants to expunge all records Amendment rights, generally finding that said that they “felt they had become they have retained regarding the unlawful seizures of electronic devices require targets of intense inspections and scrutiny questioning of Plaintiffs, including records “reasonable suspicion,” the Eleventh by border officials.” (For more information reflecting the substance of information Circuit has ruled that “reasonable on NBC 7’s revelations, see NBC 7 in the Plaintiffs were unlawfully compelled suspicion” is not necessary. (For more San Diego Reveals Secret Tracking of to disclose,” some of which appeared information on lawsuits by travelers Journalists and Immigration Advocates in the secret database revealed by against CBP, as well as federal court by the Federal Government in “Journalists NBC 7. Additionally, the complaint asked rulings, including Casper’s, regarding and Other Travelers Targeted at U.S. the court to require the defendants to warrantless searches and seizures of Borders, Creating More Confusion and disclose whether they had disseminated electronic devices at U.S. borders, Lawsuits” in the Winter/Spring 2019 issue records related to the questioning see “Judge Rules Border Agents Need of the Silha Bulletin.) and secondary inspections “to other ‘Reasonable Suspicion’ to Search and Seize On Nov. 20, 2019, journalists Bing individuals, agencies, and/or governments, Electronic Devices at U.S. Borders” in Guan, Go Nakamura, Mark Abramson, including foreign governments; and, if the Fall 2019 issue of the Silha Bulletin, Kitra Cahana, and Ariana Drehsler filed so, to identify the individuals, agencies, “U.S. Customs and Border Protection a lawsuit in the Eastern District of New and/or governments, including foreign Continues to Raise Privacy Issues Amid York against Acting Secretary of the U.S. governments.” Data Breach, Searches and Seizures of Department of Homeland Security (DHS) The full complaint is available online Electronic Devices” in the Summer 2019 Chad Wolf, CBP Acting Commissioner at: https://www.aclu.org/legal-document/ issue, “Journalists and Other Travelers Mark Morgan, and ICE Acting Director guan-v-wolf-complaint-declaratory-and- Targeted at U.S. Borders, Creating More Matthew Albence. The complaint detailed injunctive-relief/. As the Bulletin went to Confusion and Lawsuits” in the Winter/ NBC 7’s revelations about the secret press, the Eastern District of New York Spring issue, “Ninth Circuit Ruling and database, which included information had not ruled on the lawsuit. Federal Lawsuit Target U.S. Customs about and screenshots of all five plaintiffs. and Border Protection for First and Second, the complaint alleged Scott Memmel Fourth Amendment Violations” in the Fall that each journalist was sent to and Silha Bulletin Co-Editor 51 Freelance Journalist Reaches Settlement with San Francisco; FBI Document Confirms Agents Present at Searches and Seizures of Journalist’s Property n March 31, 2020, the searches of Carmody’s home, office, circumstances surrounding a series of city and county of San and cell phone, therefore ruling that warrants concerning Mr. Carmody and Francisco, Calif. reached the warrants were unlawful. The judges the conduct of the Police Department a $369,000 settlement with also unsealed the warrant applications in the course of the investigation San Francisco freelance for the searches. involving those warrants,” according Ojournalist Bryan Carmody nearly a On Aug. 20, 2019, the FAC to San Francisco’s resolution to settle. year after the San Francisco Police announced that it had filed a lawsuit The full resolution is available online Department (SFPD) executed search against SFPD and Mayor Breed in at: https://sfgov.legistar.com/View.ashx? warrants of his the Superior Court of California. The M=F&ID=8093288&GUID=EBB0C75E- SEARCHES home, office, complaint sought the disclosure of 4AB6-4E49-A958-BFAA677570A1. In a March 31 interview with AND SEIZURES and cell phone. records related to the searches and Meanwhile, on seizures of Carmody’s property in Courthouse News, Aaron Peskin, a Dec. 16, 2019, order to “understand the political and member of the San Francisco Board of the Reporters Committee for Freedom Supervisors, said of the Press (RCFP) obtained a “This was a shame to the city and county he was “delighted” Federal Bureau of Investigation (FBI) that San Francisco document confirming that FBI agents of San Francisco.. . . I hope that we never had agreed to were present at the searches, among in this town ever again suppress the settle the case. other key details. rights of a free press.” “This was a shame On May 10, 2019, the San Francisco to the city and Police Department (SFPD) executed — Aaron Peskin, county of San a search warrant on Carmody’s home Francisco,” Peskin San Francisco Board of Supervisors member and personal office. SFPD officers said. “I hope that also seized his confidential work we never in this materials, as well as his computers and law-enforcement processes that led town ever again suppress the rights of cell phones, among other electronic to the now-infamous police raid[s].” the free press.” devices. On May 28, the San Francisco According to the complaint, the FAC FAC executive director David Chronicle reported that the SFPD had had previously submitted requests for Snyder told Courthouse News executed at least five search warrants city and police records in June 2019, that he was pleased Carmody was against Carmody, and perhaps as with the SFPD providing no records compensated for the raids and that many as seven. The searches occurred and the Mayor’s office yielding only “this is at least a tacit acknowledgment after Carmody provided three local “a smattering of documents.” As the by the city that they seriously television stations with a copy of a Bulletin went to press, the Superior overstepped their bounds here.” Snyder police report related to the death of Court had not ruled on the lawsuit. added that the FAC was working with Jeff Adachi, a public defender in San (For more information on the San Francisco to prevent searches and Francisco, prompting SFPD to conduct background of the searches and seizures like those executed against internal investigations into the leak of seizures, as well as the lawsuits Carmody. “There’s no opportunity the report. and rulings, see “Fifth Judge Orders to contest a search warrant,” Snyder On May 16, Carmody filed a motion Release of Warrant Materials Tied to said. “I think there needs to be to quash the search warrants in the Searches of Freelance Journalist’s accountability on some level at least case, as well as a motion to return Home, Office, and Phone Records; Free in a sense that officials acknowledge 68 items of his work materials and Speech Group Files Lawsuit Seeking this never should have happened and electronic devices. Separately, on May Additional Records” in the Fall 2019 demonstrate steps to prevent this from 20, 2019, a “Media Coalition” comprised issue of the Silha Bulletin and “Police happening again.” of the First Amendment Coalition Raid Freelance Journalist’s Home and Meanwhile, on Dec. 17, 2019, (FAC), RCFP, and the Northern Office, Prompting Criticism and Legal RCFP Technology and Press Freedom California Chapter of the Society of Action” in the Summer 2019 issue.) Project Director Gabe Rottman and Professional Journalists (SPJ) filed a On March 2, 2020, several media Stanton Foundation National Security motion in California Superior Court outlets reported that the city and Fellow Linda Moon detailed how the to unseal the SFPD’s applications county of San Francisco was expected organization had filed a Freedom of for search warrants, among other to reach a $369,000 settlement with Information Act (FOIA), 5 U.S.C. § 552, documents, to the searches of Carmody. On March 31, Courthouse request in June 2019 seeking records Carmody’s property. News reported that the San Francisco related to the searches and seizures In summer and fall 2019, five San Board of Supervisors unanimously of Carmody’s property. When RCFP Francisco County Superior Court approved the settlement, which had not received any records for judges quashed the search warrants stemmed from an Aug. 29, 2019 several months, the organization filed that they had signed regarding the complaint by Carmody involving “the a lawsuit against the U.S. Department 52 of Justice (DOJ), FBI, and Executive whether important procedures at the Journalists” in the Winter/Spring 2019 Office for United States Attorneys in Justice Department for investigating issue of the Silha Bulletin). the U.S. District Court for the District the press, which require attorney Additionally, Rottman and Moon of Columbia seeking to compel the general approval before questioning, reported that RCFP had received disclosure of the requested records. were followed.” They explained that letters “from the Criminal Division and The full complaint is available online under the DOJ guidelines regarding the Executive Office for United States at: https://www.rcfp.org/wp-content/ the obtaining of journalists’ records by Attorneys stating that their initial uploads/2019/09/Carmody-FOIA- law enforcement, an FBI agent “cannot searches failed to find any documents Complaint_RCFP-v.-DOJ-FBI-EOUSA. subject a journalist to questioning referring to Carmody.” They explained pdf. without the express authorization of that this could be a significant Rottman and Moon reported that on the attorney general, or, in ‘exigent development because “[h]ad the [DOJ] December 16, RCFP received an FBI circumstances,’ a deputy assistant guidelines been followed, the Justice document dated May 10, 2019, which attorney general for the Justice Manual (formerly the U.S. Attorneys’ confirmed that FBI agents were present Department’s Criminal Division.” Manual) would have required the at the search of Carmody’s house 28 CFR § 50.10. Rottman and Moon preparation of a memorandum seeking and that the agents had questioned added, “The FBI’s interview notes do permission and laying out the relevant Carmody while SFPD officers searched not indicate whether this process was facts and considerations[.]” They his home. The FBI document was “the followed.” concluded that “it will be crucial to form “302” — the agents’ interview The full FBI document is available determine whether such a memo report,” which also revealed that online at: https://www.rcfp.org/wp- exists.” As the Bulletin went to press, “Carmody was ‘detained/hand cuffed’ content/uploads/2019/12/Carmody-FBI- litigation remained ongoing in the case. during questioning” and that “[FBI] Interview-Report-RCFP-v-DOJ-19-2847. agents helped Carmody get clothes on pdf. (For more information on the Scott Memmel prior to the interview.” DOJ guidelines and its provisions, However, Rottman and Moon noted see “Department of Justice Continues Silha Bulletin Co-Editor that the document did not explain why Mulling Policies Regarding Jailing, the FBI was present, nor did it “address Subpoenaing, and Searching U.S.

Videos of past Silha Lectures, Symposia, and Forums are available on YouTube.

Go to: https://z.umn.edu/SilhaCentervideos

53 Federal Courts Rule Iowa and Kansas “Ag-Gag” Laws Violated First Amendment, Dismiss Lawsuit Challenging Arkansas’ Statute n the winter of 2019/2020, federal ag-gag laws, as well as the federal court facility fraud.” Iowa Code § 717A.3A. court rulings continued to target rulings, see “Federal Judge Strikes The provision specified that a person is state “ag-gag” laws. On Dec. 2, Down Iowa’s ‘Ag-Gag’ Law; Coalition guilty of agricultural production facility 2019, U.S. District Court for the of Animal Rights Groups Challenges fraud if he or she “[o]btains access to Southern District of Iowa Judge Nation’s Oldest ‘Ag-Gag’ Law” in the an agricultural production facility by IJames Gritzner issued a preliminary Winter/Spring 2019 issue of the Silha false pretenses” or if they make “a false injunction barring enforcement of Bulletin, “Fourth Circuit Allows Lawsuit statement or representation as part of an Iowa’s second ag-gag law, which had Targeting North Carolina Ag-Gag Law application or agreement to be employed been passed in to Continue; District Court Rules at an agricultural production facility, if Wyoming Law Unconstitutional” in the the person knows the statement to be AG-GAG LAWS March 2019 after he struck down Fall 2018 issue, “Minneapolis Legislature false, and makes the statement with an the state’s original Introduces an ‘Ag-Gag’ Law; Federal intent to commit an act not authorized statute as unconstitutional under the Appeals Courts Strike Down Two States’ by the owner of the agricultural First Amendment. Similarly, on Jan. Laws” in the Winter/Spring 2018 issue, production facility[.]” 22, 2020, District of Kansas Judge Journalists Face Evolving, Uncertain The law was summarily challenged Kathryn H. Vratil struck down most of Legal Landscape in “‘Drone Journalism’ by a coalition of public interest Kansas’ ag-gag law, the oldest in the Presents Possibilities But Faces Legal groups, including the Animal Legal nation, as unconstitutional under the Obstacles” in the Fall 2014 issue, and Defense Fund (ALDF), Iowa Citizens First Amendment. On April 3, Vratil “States Consider Banning Undercover for Community Improvement, Bailing issued a permanent injunction blocking Recording at Agricultural Operations” in out Benji, PETA, and the Center for the enforcement of the provisions the Summer 2011 issue.) Food Safety (CFS). On Jan. 9, 2019, that violated the First Amendment. Gritzner ruled that Iowa’s ag-gag law Conversely, on Feb. 14, 2020, Eastern Federal Judge Strikes Down Iowa’s violated the First Amendment, granting District of Arkansas Judge James M. Second Attempt at an Ag-Gag Law summary judgment in favor of the Moody, Jr. dismissed a lawsuit brought On Dec. 2, 2019, Judge James plaintiffs. Animal Legal Defense Fund v. by a coalition of advocacy groups Gritzner of the U.S. District Court for Reynolds, 353 F.Supp.3d 812 (S.D. Iowa challenging Arkansas’ ag-gag law, holding the Southern District of Iowa issued 2019). (For more information about the that the plaintiffs had not established a preliminary injunction barring original ag-gag law and Gritzner’s ruling, Article III standing under the U.S. enforcement of Iowa’s latest ag-gag see Federal Judge Rules Iowa Ag-Gag Constitution to bring the lawsuit. law, which was passed in March 2019 Law Unconstitutional in “Federal Ag-gag laws vary from state-to-state, after Gritzner struck down the state’s Judge Strikes Down Iowa’s ‘Ag-Gag’ but generally criminalize or hold civilly original ag-gag statute two months Law; Coalition of Animal Rights Groups liable individuals who uncover or expose earlier. Animal Legal Defense Fund v. Challenges Nation’s Oldest ‘Ag-Gag’ Law” food safety violations or cases of animal Reynolds, No. 4:19-cv-00124-JEG-HCA, in the Winter/Spring 2019 issue of the abuse at agricultural facilities. Such 2019 WL 8301668 (S.D. Iowa 2019). Silha Bulletin.) statutes often prohibit the unauthorized Britzner ruled that the new statute, On March 14, 2019, several media recording of videos of agricultural like the original, plausibly constituted outlets reported that the Iowa legislature operations and facilities. These laws a content-based and viewpoint-based passed, and Gov. Kim Reynolds raise First Amendment concerns from regulation of speech in violation of the signed into law, Iowa Code § 717A.3B, advocacy groups, as well as media First Amendment, therefore surviving creating a new crime, “agricultural organizations, who argue undercover most of a motion to dismiss brought by production facility trespass.” The investigations should be allowed in order defendants Gov. Kimberly Reynolds, new ag-gag law prohibited the use of to expose unsafe conditions or illegal Attorney General Tom Miller, and “deception . . . on a matter that would practices. Ag-gag laws can also take Montgomery County Attorney Bruce E. reasonably result in a denial of access the form of agriculture disparagement Swanson, who was included because to an agricultural production facility laws, which establish a cause of action People for the Ethical Treatment of that is not open to the public, and, for damages arising from negative Animals, Inc. (PETA) “allege[d] that through such deception, gains access statements or dissemination of false it [was] interested in conducting to the agricultural production facility, information about the safety of food an employment-based undercover with the intent to cause physical or products. investigation at a specific Montgomery economic harm or other injury to Since 2017, several federal courts County . . . egg facility.” the agricultural production facility’s have ruled in favor of animal rights and Iowa’s original ag-gag law was passed operations, agricultural animals, food activist groups in their lawsuits in 2012 when the Iowa legislature crop, owner, personnel, equipment, targeting ag-gag laws, including those amended Chapter 717A of the Iowa building, premises, business interest, in Wyoming, North Carolina, Idaho, Code, titled “Offenses Related to or customer.” The law also prohibited and Utah. (For more information on Agricultural Production,” to include a the use of “deception . . . that would the conflict between journalism and provision titled “Agricultural production result in a denial of an opportunity to be 54 employed at an agricultural production restricts speech. The statute does not plaintiffs provided several examples facility.” merely prohibit obtaining unauthorized demonstrating “the statute’s overly broad Under the statute, deception includes, access to an agricultural production prohibition.” For example, the plaintiffs among other things, “[c]reating or facility; it specifically prohibits doing argued that the law violated “the free confirming another’s belief or impression so ‘by false pretenses.’” He therefore speech rights of parties not before this as to the existence or nonexistence of focused on the speech issues arising Court, such as labor organizers,” adding a fact or condition which is false and from entering an agricultural facility that the law “would not only apply to which the actor does not believe to through deception, rather than the undercover investigations focused on be true” or “[f]ailing to correct a false speech resulting from the investigation. animal abuse but also to covert labor belief or impression as to the existence Second, Gritzner addressed the organizing activities and undercover or nonexistence of a fact or condition defendants’ argument that the First investigations focused on worker health which the actor previously has created Amendment does not protect false and safety.” or confirmed.” Under the new ag-gag statements like those covered by the Additionally, Gritzner ruled that the law, an individual who committed ag-gag law. The defendants cited United statute was underinclusive because agricultural production facility trespass States v. Alvarez, 567 U.S. 709, 730 it “does nothing to deter trespass or was “guilty of a serious misdemeanor (2012), in which the U.S. Supreme Court biosecurity breaches from individuals for a first offense and an aggravated struck down the “Stolen Valor Act,” who proceed to access or enter a facility misdemeanor for a second or subsequent which prohibited lying about receiving without deception.” offense.” military awards or medals, such as the However, Gritzner concluded that On April 22, 2019, the same coalition Congressional Medal of Honor. However, the statute was not, as the plaintiffs of advocacy groups that brought the Gritzner explained that the Court had claimed, “void for vagueness,” reasoning challenge to the original Iowa ag-gag law held that false statements are protected that “[a]lthough the statutory language is filed a complaint alleging that the new by the First Amendment so long as they broad, its meaning is sufficiently precise statute was unconstitutional on its face. do not cause a “legally cognizable harm” to allow ordinary people to understand The coalition reasoned that it “violates or provide “material gain” to the speaker. what is and is not prohibited.” the First Amendment as an overbroad Gritzner held that the Iowa ag-gag law Nevertheless, Gritzner granted the restriction on speech and as a content- “did not cause a legally cognizable plaintiffs’ motion for a preliminary and viewpoint-based restriction on harm or provide a material gain to the injunction, which had argued, “among speech.” speaker and, therefore, received First other things, that § 717A.3B ha[d] On Dec. 2, 2019, Gritzner ruled in Amendment protection.” He reasoned deterred their organizations from favor of the coalition, denying most that the statute “appears to place no engaging in undercover investigations, of the motion to dismiss brought meaningful limit on the harm that would which they would otherwise conduct.” by the defendants. Gritzner first satisfy its intent element — that is, it Gritzner’s rationale included that the held that because an individual can does not require the harm to be legally plaintiffs would suffer irreparable injury only violate the new ag-gag law cognizable, specific, tangible, actual, or because they could not conduct their “by engaging in deception, which material.” Therefore, the statute “does undercover investigations, which would requires either speech or expressive not imply that all intended harms are deprive them of their First Amendment conduct — such as nodding one’s head material or legally cognizable,” and that rights. He added that “the public instead of saying ‘yes’ in response to it could instead “cause little harm” or benefits from people and organizations a question — § 717A.3B also appears “nominal harm,” according to Gritzner. exercising First Amendment rights and to regulate speech.” He therefore (For more information on Alvarez, see educating the public about important differentiated the case from “civil “Supreme Court Strikes Down Stolen issues relating to animal abuse and and criminal sanctions discussed Valor Act” in the Summer 2012 issue of safety at agricultural production [in several] . . . cases in which courts the Silha Bulletin.) facilities.” rejected First Amendment defenses to Third, Gritzner held that the new Gritzner dismissed the defendants’ application of trespass laws,” including ag-gag law, like the original, constituted a argument that other means of Food Lion, Inc. v. Capital Cities/ content-based restriction on speech. He investigations were available to the ABC, Inc., 194 F.3d 505 (4th Cir. 1999) reasoned that “enforcement authorities organizations, reasoning that such a and Dietemann v. Time, Inc., 449 F.2d would have to evaluate the content of rationale “would result in rarely finding 245 (9th Cir. 1971). The U.S. Courts what a person said to determine whether irreparable injury in First Amendment of Appeals for the Fourth and Ninth they engaged in deception[.]” Gritzner cases because some other form of Circuits held that “publication is not an also ruled that the statute also plausibly expression is nearly always available.” essential element of plaintiff’s cause constituted a viewpoint-based restriction He added, “In any event, it would seem of action,” even though, according to on speech sufficient to survive a motion axiomatic that undercover investigations Gritzner, “the individuals committing to dismiss. He explained that “the law are likely to produce information that the violations were allegedly doing so in was motivated by, among other things, is unavailable from interviews, public service of First Amendment-protected an intent to prevent disparaging remarks record requests, and whistleblowing.” speech.” He wrote, “By contrast, one about agricultural facilities” and that it Gritzner also ruled that the new cannot violate § 717A.3A without “only targets the agricultural industry.” ag-gag statute could not survive strict engaging in speech” (emphasis in Fourth, Gritzner held that the scrutiny, a First Amendment standard original). plaintiffs’ claim that the statute which provides that a content-based Gritzner added, “Though § 717A.3A was overbroad also survived the regulates conduct to some extent, it also motion to dismiss, reasoning that the Ag-Gag Laws, continued on page 56 55 Ag-Gag Laws, continued from page 55 whether it would appeal Gritzner’s according to the complaint, the law latest ruling, though the state previously “criminalizes undercover investigations regulation is “presumptively appealed his ruling on the original ag-gag and whistleblowing at animal facilities, unconstitutional and will be justified law to the Eighth Circuit. including factory farms, slaughterhouses, only if the state proves that the law is and animal research laboratories.” narrowly tailored to serve a compelling Federal Judge Strikes Down Most of The complaint alleged that the statute state interest.” Gritzner cited his ruling Kansas’ Ag-Gag Statute, the Oldest violated the First Amendment in two on the original ag-gag law, in which he in the Nation ways, including that it was overbroad held that even if the court “assumed that On Jan. 22, 2020, Judge Kathryn H. and that it represented a form of protecting the property and biosecurity Vratil of the U.S. District Court for the content-based and viewpoint-based of agricultural facilities from third District of Kansas struck down most discrimination and could not survive parties were the true interests served strict scrutiny. (For by [the statute],” rather than prohibiting “We warned Iowa legislators that Iowa's more information undercover investigations as argued by on the lawsuit, see the plaintiffs, “they were not ‘compelling [ag-gag] law would trample on free “Federal Judge in the First Amendment sense.’” Gritzner speech in our state, and violate the Strikes Down further reasoned that the new ag-gag Constitution.. . . The First Amendment Iowa’s ‘Ag-Gag’ law, like the original, only addressed Law; Coalition “entirely speculative” harms and that rights of journalists, investigators[,] and of Animal Rights the defendants could not provide court advocates that are at stake in this case Groups Challenges precedent stating that biosecurity was at are vital to our democracy.” Nation’s Oldest risk due to deception. ‘Ag-Gag’ Law” in He also held that the new statute, like — Rita Bettis Austen, the Winter/Spring the original ag-gag law, was not narrowly American Civil Liberties Union of Iowa 2019 issue of the tailored, reasoning that existing statutes, legal director Silha Bulletin.) including the existing biosecurity law, Vratil first held Iowa Code § 717A.4, already addressed the plaintiffs had the government’s interests. . Gritzner of the nation’s oldest ag-gag law, the standing to challenge the majority of added that “alternative measures that Kansas Farm Animal and Field Crop and the statute under the First Amendment, burden substantially less speech are Research Facilities Protect Act, K.S.A. including K.S.A. § 47-1827(b), available,” including “[a] prohibition §§ 47-1825 et seq. (2019). Animal Legal § 47-1827(c), and § 47-1827(d). against intentional, material interference Defense Fund v. Kelly, No. 18-2657-KHV, However, she held that the plaintiffs with biosecurity protocols, without the 2020 WL 362626 (D. Kan. 2020). Vratil did not have standing to challenge requirement that the interference be held that certain portions of the statute K.S.A. § 47-1827(a), which prohibits preceded by deception,” which “would constituted content-based restrictions “damag[ing] or destroy[ing] an animal not burden speech.” on speech that could not survive strict facility or any animal or property in or on Thus, Gritzner “enjoined and scrutiny review, a First Amendment an animal facility,” without the “effective prohibited [the defendants] from standard requiring that the statute consent” of the owner, with the “intent enforcing, through any action or serve a compelling government interest to damage the enterprise conducted at omission or otherwise, Iowa Code § and be narrowly tailored to achieve the animal facility.” Vratil reasoned that 717A.3B as currently drafted throughout that interest. On April 3, 2020, Vratil because the plaintiffs had not alleged the pendency of this litigation.” The full issued a permanent injunction blocking that they needed to or would cause ruling is available online at: https://www. the enforcement of the provisions damage to facilities in the course of their aclu-ia.org/sites/default/files/041_order_ that she held were unconstitutional. undercover investigations, § 47-1827(a) granting_preliminary_injunction_1_1. Animal Legal Defense Fund v. Kelly, would not impair their ability to conduct pdf. No. 18-2657-KHV, 2020 WL 1659855 (D. such investigations. Conversely, the Following the ruling, American Civil Kan. 2020). other portions of the statute would Liberties Union (ACLU) of Iowa legal The case arose on Dec. 4, 2018 when limit the ability of the advocacy groups director Rita Bettis Austen praised the a coalition of animal and environmental to conduct undercover investigations, decision in a statement, writing, “We advocacy groups, including the Animal among other possible actions, and create warned Iowa legislators that Iowa’s Legal Defense Fund (ALDF), Center for “a fear of prosecution” for doing so. [ag-gag] law would trample on free Food Safety (CFS), Shy 38, Inc., and Second, Vratil considered the speech in our state, and violate the Hope Sanctuary, filed a lawsuit against plaintiffs’ First Amendment claims, Constitution.. . . The First Amendment Kansas Gov. Laura Kelly and Attorney holding that the statute’s “prohibition rights of journalists, investigators[,] and General Derek Schmidt targeting Kansas’ on deception limits what plaintiffs may advocates that are at stake in this case ag-gag law. Among other provisions, or may not say,” therefore implicating are vital to our democracy.” the statute made it a crime to “enter First Amendment protections. Vratil In a separate statement, Iowa an animal facility that is not open to held that the prohibition constituted a Sen. Annette Sweeney (R-Alden), the the public to take photographs or content- and viewpoint-based regulation vice chair of the Senate Agriculture recordings” without “effective consent,” of speech because it was “based on the Committee, called it a “sad day for meaning “consent obtained without topic . . . or the idea or message [the America.” As the Bulletin went to press, force, fraud, deception, duress or speech] expresses.” Vratil also found that the state of Iowa had not announced threat” (emphasis added). As a result, the prohibition on taking photographs at

56 an animal facility targeted speech, rather In a January 22 statement, ALDF Arkansas’ ag-gag law, titled “Civil than simply conduct, citing Sorrell v. executive director Stephen Wells cause of action for unauthorized access IMS Health Inc. (2011), in which the U.S. praised the ruling, writing, “For 30 years, to property,” was passed in 2017. It Supreme Court held that the creation Kansas lawmakers have suppressed provides, in part, that any individual and dissemination of information, whistleblowers from investigating cruel “who knowingly gains access to a including videos, photographs, and conditions on factory farms with this nonpublic area of a commercial property recordings, constitute speech. 564 unconstitutional law.. . . Today’s decision and engages in an act that exceeds the U.S. 552, 570 (2011). She further held is a victory for the millions of animals person’s authority to enter the nonpublic that the provision also constituted a raised for meat on factory farms.” area is liable to the owner or operator content- and viewpoint-based regulation In a separate statement, Clint of the commercial property for any of speech, reasoning that the regulation Blaes, a spokesperson for the Kansas damages sustained by the owner or “only applies to speech that is made attorney general’s office, wrote, “We are operator.” Under the statute, such an with intent to damage the enterprise disappointed with the ruling and we will action requires that an individual enter conducted at an animal facility.” be evaluating the next steps, including a nonpublic area “for a reason other Vratil therefore applied strict scrutiny, whether an appeal is warranted.” As than a bona fide intent of seeking or finding that Kansas did not assert a the Bulletin went to press, Kelly and holding employment or doing business compelling government interest in Schmidt had not announced whether the with the employer” and subsequently, protecting “animal facility owners’ state would appeal the ruling. without authorization, “[r]ecords images privacy and property rights” and that in On April 3, 2020, Vratil issued a or sound occurring within an employer’s any event, § 47-1827(b), (c) and (d) were permanent injunction blocking the commercial property and uses the not narrowly tailored. She reasoned enforcement of the provisions of the recording in a manner that damages that these provisions were “hopelessly Kansas ag-gag law that violated the First the employer” and/or “[p]laces on the underinclusive” because they “d[id] not Amendment. She held that the plaintiffs commercial property an unattended prevent everyone from violating the “have satisfied the requirements for camera or electronic surveillance device property and privacy rights of animal injunctive relief,” including “because and uses [it] for an unlawful purpose,” facility owners — only those who violate the Court has determined that among other provisions. said rights with intent to damage the K.S.A. § 47-1827(b), (c) and (d) are In their complaint, ALDF and AE both enterprise conducted at animal facilities” unconstitutional.” Vratil further found expressed “[a] wish to investigate Prayer (emphasis in original). that the plaintiffs had successfully Creek Farm,” a pig farm in Horatio, Ark. Finally, Vratil rejected the defendants’ demonstrated “irreparable harm on operated by Jonathan Vaught and Rep. argument that the First Amendment account of the chilling effect of the Deann Vaught (R-Horatio). ALDF and does not protect false speech under unconstitutional provisions on their AE also stated that they were seeking the Kansas ag-gag law. Vratil reasoned First Amendment rights.” Vratil added to investigate facilities owned by Peco that in United States v. Alvarez, 567 that “the threatened injury to First Foods, Inc., an Alabama-based company U.S. 709, 730 (2012), the Supreme Court Amendment rights outweighs the harm that operates several facilities, including held that false statements are protected that a permanent injunction may cause a slaughter and processing plant and by the First Amendment so long as defendants” and that “the public interest hatchery in Pocahontas and Batesville, they do not cause a “legally cognizable favors assertion of First Amendment Ark. ALDF and AE contended that the harm” or provide “material gain” to the rights.” purpose of the investigations “would speaker. The Supreme Court ultimately be to obtain information ‘that they struck down the Stolen Valor Act, Federal Judge Dismisses Lawsuit would release to the public, use in their which prohibited lying about receiving Challenging the Constitutionality of advocacy, and allow other advocacy military awards or medals, such as the Arkansas Ag-Gag Law groups to use to demonstrate the harms the Congressional Medal of Honor. On Feb. 14, 2020, Judge James M. industrial agriculture generates.’” The (For more information on Alvarez, see Moody, Jr. of the U.S. District Court remaining plaintiffs, CBD and FCWA, “Supreme Court Strikes Down Stolen for the Eastern District of Arkansas argued that although they did not wish Valor Act” in the Summer 2012 issue of dismissed a lawsuit brought by a to engage in such investigations, they the Silha Bulletin.) coalition of advocacy groups, including relied on information obtained by Vratil instead agreed with the the Animal League Defense Fund ALDF and AW for their advocacy work, plaintiffs’ argument that “lying to an (ALDF), Animal Equality (AE), the therefore limiting their ability to engage animal facility owner to gain access to Center for Biological Diversity (CBD), in protected speech. an animal facility has no corresponding and the Food Chain Workers Alliance In his February 14 ruling, Judge legally cognizable harm.” She added (FCWA), seeking declaratory and Moody focused on whether the plaintiffs that even if the speech at issue did injunctive relief to stop the enforcement had established a sufficient “injury-in- create such a harm, the Supreme Court of Arkansas’ ag-gag law, Ark. Code Ann. fact” to establish Article III standing to “has noted that even when a law bans §16-118- 113. Animal Legal Defense bring their claim against the Arkansas unprotected speech, the government Fund v. Vaught, 4:19-CV-442-JM (E.D. ag-gag law. He first explained that the cannot discriminate by targeting only a Ark. 2020). Moody held that the plaintiffs plaintiffs had “allege[d] that they are subset of speech within the unprotected had not established Article III standing suffering injury in that they are self- category,” citing R.A.V. v. St. Paul, 505 under the U.S. Constitution to bring the censoring their protected speech to U.S. 377, 391–92 (1992). Vratil’s full ruling lawsuit, finding that they had not alleged avoid civil liability.” is available online at: https://casetext. a sufficient “injury-in-fact.” com/case/animal-legal-def-fund-v-kelly. Ag-Gag Laws, continued on page 58 57 Ag-Gag Laws, continued from page 57 volume of pigs their farm can maintain, the case and an attorney at Public the wholly-enclosed design of the facility, Justice, a Washington, D.C. public Second, Moody cited Eckles v. City and Defendant Deann Vaught’s role in interest advocacy group, criticized of Corydon, 341 F.3d 762, 767 (8th sponsoring § 16-118-113.” Regarding Moody’s ruling. “The decision we are Cir. 2003), in which the U.S. Court Peco, Moody held that the plaintiffs’ appealing today gets a number of things of Appeals for the Eighth Circuit belief that “there is an important wrong about why the plaintiffs in this held that in order to demonstrate an public interest in understanding how case have standing to challenge this injury-in-fact, plaintiffs “must present Peco operates in Arkansas” rose only unconstitutional law, and acknowledges more than allegations of a subjective to allegations of a subjective chill, that it’s at odds with other case law,” chill. There must be a claim of specific rather than “a claim of specific present Muraskin was quoted as saying in present objective harm or a threat of objective harm or a threat of specific the press release. “The court erred in specific future harm.” The court also future harm.” suggesting that the plaintiffs’ speech required plaintiffs to allege an injury Finally, Moody cited Southern District hasn’t been chilled given that the state that is “concrete and particularized” of Iowa Judge James Gritzner’s January passed a law to punish them for speaking and “actual or imminent.” Moody 2019 ruling that Iowa’s original ag-gag out. Rep. Vaught expressly pushed the acknowledged that the threat of civil law violated the First Amendment, which passage of this law to protect herself liability can “create an unconstitutional Moody noted had already been appealed and her factory farm. We want the public chilling of the first amendment’s to the Eighth Circuit, which includes to be able to know what she and other guarantee of free speech and satisfy Arkansas. Moody cited Gritzner’s finding industrial ag operators across Arkansas the injury-in-fact requirement,” citing that “concerns over the chilling effects are hiding.” New York Times Co. v. Sullivan, 376 on speech are significantly more acute Sarah Hanneken, an attorney with U.S. 254, 277–78 (1964). when a criminal sanction is involved AE, explained the importance of However, he held that the plaintiffs’ rather than a civil cause of action.” Thus, allowing undercover investigations allegations “d[id] not [meet] the although Gritzner ruled that the plaintiffs of agricultural facilities. “Every requirements that the injury be ‘concrete bringing the claim against the Iowa investigation we conduct provides new, and particularized’ and ‘actual or statute had established standing, Moody critical insights into the realities of imminent.’” Moody reasoned that ALDF declined “to reach the same conclusion animal agriculture — an industry rife and AE had not hired an investigator, in the challenge to this Arkansas statute” with issues of public concern,” she said nor had they investigated Prayer Creek because it imposed civil, rather than in a statement. “Without these insights, and Peco, and therefore they did not criminal, liability. He therefore granted we are severely limited in our ability to have “any form of protected speech that the defendants’ motion to dismiss effectively advocate for the interests of [they] would seek to publish.” He further without prejudice. vulnerable individuals behind opaque reasoned that the plaintiffs had not On March 12, 2020, the plaintiffs industry walls.” alleged that the Prayer Creek and Peco appealed the ruling to the Eighth Circuit. Foods “engaged in the type of practices As the Bulletin went to press, the case Scott Memmel that Plaintiffs would like to expose” remained pending. Silha Bulletin Co-Editor and instead only speculated that such In a March 12 CBD press release, practices may be occurring “given the David Muraskin, the lead counsel in

The Silha Bulletin is available online at the University of Minnesota Digital Conservancy.

Go to: http://conservancy.umn.edu/discover?query=Silha+Bulletin to search past issues

58 First Amendment Attorney John Borger Passes Away in December 2019 ell-known First post-traumatic stress disorder in $100,000, to the Children’s Literature Amendment attorney February 2013, the trial nevertheless Research Collections at the Archives John Borger passed began in July 2014. Borger represented at the University of Minnesota’s Elmer away in Minneapolis, Kyle’s widow, Taya. The jury awarded Andersen Library and Special Collections Minn., on Dec. 16, 2019 Ventura $500,000 in damages for his department. Known as “The John Philip Wat the age of 68. Borger had retired in defamation claim, and an additional Borger Comic Book Collection,” it 2017 after a 40-year career with law $1.3 million for the unjust enrichment, contains volumes about superheroes firm Faegre Baker Daniels LLP, where citing Kyle’s alleged fabrication in the such as Superman and Batman, as well he served as a book. as superhuman stories by authors such partner since 1976. However, in June 2016, the U.S. as Neil Geiman and Frank Miller. It was TRIBUTE During his tenure Court of Appeals for the Eighth Circuit there that the family held a gathering on at the law firm, overturned the jury’s decision, remanded Jan. 2, 2020 to celebrate Borger’s life. he represented the Minneapolis Star the defamation claim for a new trial, In a Dec. 17, 2019 interview with Tribune and other Twin Cities media and ordered that the unjust enrichment the Associated Press (AP), Star organizations. award be vacated. In December 2017, a Tribune senior vice president Randy According to the St. Paul Pioneer settlement in the case was announced. Lebedoff called Borger “a brilliant First Press, Borger worked on his high school (For more information about the case, Amendment advocate who contributed newspaper in Parkersburg, W.Va., and see “Jesse Ventura Reaches Settlement in greatly to our [the state of Minnesota] then the campus newspaper at Michigan American Sniper Defamation Lawsuit” and country by standing up for freedom State University, where he graduated in the Winter/Spring 2018 issue of the of speech when it counted.” with a bachelor of arts (B.A.) degree Silha Bulletin, “Eighth Circuit Overturns Leita Walker, now an attorney with in journalism. It was there he met his Jesse Ventura’s Victory in Libel and Ballard Spahr in Minneapolis, worked wife, Judith Yates Borger, who later Unjust Enrichment Suit” in the Summer with Borger early in her career. In a became a reporter with the Pioneer 2016 issue, and “Jesse Ventura Awarded Dec. 23, 2019 interview with MinnPost, Press. Borger completed his education $1.8 Million for Libel and Unjust she noted that Borger was a “more with a law degree from Yale Law School Enrichment” in the Summer 2014 issue.) than a great lawyer, he was a great in 1976. In addition to his career as Borger frequently attended Silha man,” citing his “generosity of spirit, an attorney, Borger served as a board Center for the Study of Media Ethics his patience [and] his commitment to member of the Minnesota Coalition on and Law events, and twice served a worthy cause.” She continued, “Like Government Information (MNCOGI) on panels at Silha Center seminars. any good journalist, John was often since 2009, and was a member of the In April 2014, he was a panelist at a skeptical, But I never saw him cynical. Governing Committee for the American symposium, “How Far from Near? 50 He questioned people’s judgment, but Bar Association’s (ABA) Forum on Years of New York Times v. Sullivan in rarely their motives. He understood Communications Law. Minnesota and Beyond: A Symposium that there is enough adversity in the One of Borger’s most recent cases was Honoring the Legacy of Silha Professor world — certainly in the practice of Ventura v. Kyle, 825 F.3d. 876 (8th Cir. Emeritus Donald M. Gillmor,” serving law — without going looking for it 2016). The case centered on a dispute on the event’s practitioners panel, among your friends, colleagues, and between former Minnesota Gov. Jesse “Time after Times: Defamation Law allies.” Ventura and Chris Kyle, a former U.S. (and Privacy, Too) in Minnesota.” (For Silha Center Director and Silha Navy SEAL and the author of American more information on the symposium, Professor of Media Ethics and Law Sniper: The Autobiography of the Most see “Spring Symposium Examines Jane E. Kirtley said, “John Borger was a Lethal Sniper in U.S. Military History. the Legacy of New York Times v. principled and accomplished attorney. A portion of the book recounted an Sullivan, Honors Donald M. Gillmor” But beyond that, he was a stalwart alleged scuffle at a California bar in 2006 in the Winter/Spring 2014 issue of the defender of the First Amendment and between Kyle and an older celebrity Silha Bulletin.) In April 1998, Borger the public's right to know. He also Navy SEAL, identified only as “Scruff appeared on a panel at the Silha consistently supported the work of the Face.” Kyle later identified Ventura as Center’s National Media Ethics and Law Silha Center. He attended almost all of “Scruff Face,” leading Ventura to file Conference, where he presented a paper, our Silha Lectures and other events, a complaint in the U.S. District Court “New Whines in Old Bottles: Taking and I could always count on him to ask for the District of Minnesota, alleging Newsgathering Torts off the Food Lion pointed and thoughtful questions that defamation and “unjust enrichment,” Shelf.” (For more information on the contributed significantly to the debate among other claims. Ventura contended conference, see “First National Media and discussion. He will be missed.” that a Google search of his name Ethics & Law Conference Debates New In 2018, Borger received the resulted in millions of hits restating Technology, Ethics, and Newsgathering” Champion of the First Amendment Kyle’s alleged falsehoods in the book, in the Spring 1998 issue of the Silha award, the highest honor from the ABA’s thereby damaging the former governor’s Bulletin.) Forum on Communications Law at its reputation. In 2008, Borger decided to donate his annual conference in Napa, Calif. Borger Although Kyle was shot and killed extensive comic book collection of over was only the third attorney ever to be by a military veteran suffering from 40,000 volumes, valued at approximately Borger, continued on page 60 59 2020 Spring Ethics Forum Webinar Addresses the Impact of Fact-Checking and Misinformation on Journalism n April 27, 2020, Barbara attended the forum, sponsored by the what we think we know, especially at a Allen, the director of Silha Center for the Study of Media time when there are so many ways for college programming for Ethics and Law and the Minnesota Pro information to be manipulated.” (For the Poynter Institute of Chapter of the Society of Professional more information on the COVID-19 Media Studies (Poynter), Journalists (SPJ) as a virtual webinar pandemic and how it raised several Oa non-profit journalism school and during the COVID-19 pandemic. media law and ethics issues, see research organization based in St. In his opening comments, SPJ “Special Report: COVID-19 Pandemic Petersburg, Fla., contended during the Chapter President and Minneapolis Raises Media Law and Ethics Issues, 2020 Silha Center Challenges, and SILHA CENTER Spring Ethics “Public spaces that are open to Opportunities” EVENTS Forum that on page 16 of this “[p]ublic spaces free speech are being flooded with issue of the Silha that are open questionable information, political Bulletin.) to free speech are being flooded with polarization, and outright lies.. . . [I]t Allen began questionable information, political her presentation polarization, and outright lies.” She feels like [mis- and disinformation are] by acknowledging added that “[t]aking into account the getting worse as fewer journalists are that earlier in her recession that began in 2009 and this around to provide Americans with the career at Poynter, latest wave of coronavirus layoffs, she “did not care a there are half as many journalists factual information they need to make whole lot about the working in America as there were decisions about their lives.” world of mis- and 10 years ago.. . . [I]t feels like [mis- and disinformation.” disinformation are] getting worse as — Barbara Allen, She continued, fewer journalists are around to provide Poynter Institute of Media Studies “I didn’t think it Americans with the factual information Director of College Programming was super sexy. they need to make decisions about their It seemed kind of lives.” boring. And frankly, Allen’s presentation, titled “What the Star Tribune reporter Chris Snowbeck I just wasn’t into it and I didn’t care that Fact? How fact-checking is ballooning, contended that amidst the pandemic, much. It just didn’t seem to impact me.” its impact on journalism – and how not “[it] is an important time to be a However, Allen explained that this to be fooled yourself,” focused on the journalist.. . . People are turning to changed when Poynter, on April 30, 2019, increasingly important role of journalists journalists in huge numbers right now published the “Unreliable News Index,” and fact-checkers around the world. for vital baseline information about a list of 515 news websites labeled as She also offered tips, recommendations, the public health emergency and also “unreliable.” As an editor at Poynter at and tools for how everyone, but to understand the economic crisis” the time, Allen approved the publication especially journalists, can spot and stemming from COVID-19. He continued, of the index, which was compiled address mis- and disinformation online. “Tonight’s topic is at the heart of what from five “fake news” databases that, Approximately 70 journalists, journalism we do as journalists: being self-critical according to Allen, “were well known students, and community members [and] evaluating how it is we know and had been composed by journalists

Borger, continued from page 59 Symposium: “How Far from Near? Treatment of Leakers” in the Fall 2013 given this honor, according to a Dec. 50 Years of New York Times v. Sullivan issue, “2005 Silha Lecture Features First 18, 2019 article posted on the ABA’s in Minnesota and Beyond.” (For more Amendment Attorney Floyd Abrams” in website. In his acceptance speech, information on their presentations, the Fall 2005 issue, “Barnicki v. Vopper Borger mentioned Kirtley, as well as see “34th Annual Silha Lecture Tackles Topic of Sixteenth Annual Silha Lecture” other noted First Amendment attorneys, Public and Media Access to Court in the Fall 2001 issue.) including Kelli Sager, James Goodale, Proceedings and Records” in the Fall When accepting the Champion of the Floyd Abrams, and Lee Levine, all of 2019 issue of the Silha Bulletin, “Spring First Amendment award, Borger told the whom were Silha Lecturers. Borger also Symposium Examines the Legacy of audience, “I have carried a torch for the mentioned Senior Judge Robert D. Sack New York Times v. Sullivan, Honors First Amendment for more than 50 years. of the U.S. Court of Appeals for the Donald M. Gillmor” in the Winter/Spring I hope I lit a few candles along the way.” Second Circuit, who was the keynote 2014 issue “Silha Lecture Links Pentagon speaker at the Silha Center’s 2014 Papers and Obama Administration’s Elaine Hargrove Silha Center Staff

60 and academic organizations. [These should follow. The organization works The second tool is “lateral reading,” databases] were just lists of websites with 74 signatories, according to Allen, which was developed by the Stanford that were known to occasionally contain “to make sure that they’re doing the History Education Group, a research egregious or occasional mis-, dis-, and best kind of fact checking that you can and development group aiming to mal-information.” possibly do.” improve education around the United Allen said that although she Allen then talked about her current States. Allen played a video in which initially thought the index was “a great work with MediaWise Campus MediaWise ambassador and New York resource for people,” it was met with Correspondents, a group of 11 students Times bestselling author John Green immediate criticism and complaints, from around the United States trained by explained that lateral reading means including from several conservative Poynter to spot “fact from fiction online.” “looking elsewhere for additional news organizations — The Washington According to Allen, the students, since information.. . . When you’re on a new Examiner, The Daily Signal, and the start of the COVID-19 pandemic, website, instead of staying put and Drudge Report, among several taking their word others — that insisted that they should “[R]emember, non-journalists don't for it, you should not have been included in the index. just leave, open a Poynter summarily removed the see how hard we work, how much we new tab [on your index from its website, replacing it care, [and] the intricacies of our jobs. browser], and with a “letter from the editor” written Now more than ever, journalists have to start looking for by Allen. She explained that “an audit more information. to test the accuracy and veracity of tell our stories and we have to help our That’s called lateral the list . . . found weaknesses in the fact-checking brethren correct mis- and reading because methodology.” The letter continued, “We disinformation.. . . Doing so is going of moving up and detected inconsistencies between the down [on a single findings of the original databases that to help our communities make better webpage,] you’re were the sources for the list and our decisions and have better information.” moving from tab to own rendering of the final report.. . . We tab.” regret that we failed to ensure that the — Barbara Allen, Allen added that data was rigorous before publication, Poynter Institute of Media Studies fact checkers also and apologize for the confusion and Director of College Programming “are always on the agitation caused by its publication. We lookout” for other pledge to continue to hold ourselves to signs of mis- or the highest standards.” The full letter is had been conducting training across the disinformation, including “information available online at: https://www.poynter. country at “every different university [that] has ad and sponsored content org/letter-from-the-editor/2019/letter- that that will have them.” labels.” from-the-editor/. She provided a series of “practical Allen then offered tips to help Allen explained that she “decided that ways to spot in mis- and disinformation an individual who “want[s] to have from this experience, [she] was going online,” as well as “some tools you a confrontation with someone who to try to learn everything [she] could can use to help you.” One way was is presenting mis- or disinformation about the world of misinformation to a series of questions internet users online,” including determining whether understand it better so [she] would never should “consider[] before [they] “you value this person enough to make a mistake like this [again].” share or trust information . . . online.” connect with them . . . and [are] willing Allen then provided a brief history The questions, which followed the to . . . learn something from them.” of fact-checking, including the founding “journalistic . . . 5-Ws,” included: Allen continued, “I’m not saying that of fact-checking website Snopes in • Who posted this? What motivations you have to accept something that you 1994 and PolitiFact, an independent might they have? know not to be true . . . but are you fact-checking organization under • What evidence did they include to willing to learn from them and to open Poynter, in 2007. (Joshua Gillin, a staff back up [this claim]? your heart and your mind enough to at writer for PolitiFact and the Tampa • When was the information posted or least see where they’re coming from?” Bay Times, was the featured speaker updated? Allen explained that if an individual at the 2017 Silha Center Spring Ethics • Where is it posted? believes that they are able to have that Forum, “Making News or Faking News? • How is the information being conversation, they should ask “questions Ethical Journalism in a Post-Truth Era.” shared? of understanding over questions of For information on the Silha Forum, Allen then described “two really persuasion,” meaning posing questions PolitiFact, and the proliferation of “fake powerful tools . . . favored by fact in a way that “avoid[s] being defensive news,” see “Silha Center Spring Forum checkers,” including a “reverse image of your position . . . because it sends a Addresses Ethical Challenges Related to search.” According to Engadget on Sept. signal to the other person that you are Fake News” in the Winter/Spring 2017 10, 2016, a reverse image search is the really listening and you are really ready issue of the Silha Bulletin.) “upload[ing] of an image [to a search to embrace at least part of what they’re Allen described the International engine in order to get] more information telling you.” Fact-Checking Network (IFCN), a unit about the objects or individuals that are Allen also recommended asking of Poynter launched in September 2015. on it.” The search can also be used to “questions about how this person arrived The IFCN created a series of standards identify where an image was originally at this conclusion [and] how they came that fact checkers around the world posted and, potentially, who owns it. Spring Forum, continued on page 62 61 Spring Forum, continued from page 61 “[R]emember, non-journalists don’t see continued, “I would say that you have how hard we work, how much we care, to take the sum of work . . . and look at to feel this way.” The result, according [and] the intricacies of our jobs. Now all the reporting [a news organization to Allen, whether the conversation is in more than ever, journalists have to tell does].. . . But news should be delivered person or online, is “it can really be sort our stories and we have to help our pretty straight, as we all know.” of magical because people expect to fact-checking brethren correct mis- and Another attendee asked whether fight and when they find someone who’s disinformation.” Allen added, “Doing “editors [should be] . . . using . . . tools to disagreeing, but polite and open to other so is going to help our communities explain their decision-making processes ideas, it can really change the tenor of make better decisions and have better and, if so, why aren’t they doing it?” the conversation.” information. In short, bad actors are Allen responded, “Yes, yes, one thousand Allen concluded by asserting that “a trying to pry open the chamber of times, yes. We are an ivory tower. People lot of the people that you may run into chaos with mis- and disinformation and don’t know who we are.. . . We have online that you have disagreements together we can slam it shut.” done a terrible job with our transparency with . . . don’t have the luxury of During a Q&A session moderated because as soon as you meet a reporter spending their days in a newsroom by Silha Center Director and Silha and know what they do in real life, all of being immersed in the world of the Professor of Media Ethics and Law the sudden it’s a connection, it’s a human importance of fact checking the veracity Jane Kirtley, Allen responded to several touch.. . . People really are interested in of open records.” However, she argued questions from webinar attendees, [journalistic processes] if we would just that journalists, news organizations, and including “How do you determine if tell them.” others “aren’t always doing a great job a media source like The New York A link to a video of the webinar is providing that understanding.” Times [or] The Washington Post is available online at: https://www.youtube. Allen therefore provided a “call to reliable?” Allen answered that it was “a com/watch?v=45n-y0z0V-k. Silha Center action [to] kindly start a conversation complicated question in that there’s an activities, including the Spring Ethics around the myths and disinformation element of what makes a positive story Forum, are made possible by a generous you see online, which is often centered and what makes a negative story.. . . [A]ll endowment from the late Otto and Helen around the media or can be brought national political journalists have a [real] Silha. into a conversation about how much struggle with this administration. They good the media does as its employees have never had a federal leader be so Scott Memmel work to find out if [information vociferously anti-press.. . . So how do Silha Bulletin Co-Editor online] is true or not.” She continued, you cover someone like that?” Allen

A video of the 2020 Silha Spring Ethics Forum, “What the Fact: How fact-checking is ballooning, its impact on journalism – and how not to be fooled yourself” with Barbara Allen, is available online at: https://www.youtube.com/watch?v=45n-y0z0V-k

62 SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW Hubbard School of Journalism and Mass Communication University of Minnesota 111 Murphy Hall 206 Church Street SE Minneapolis, MN 55455 [email protected] www.silha.umn.edu (612) 625-3421

35th Annual Silha Lecture “Inconvenient Truths and Tiger Kings: The Vital Role of Documentaries Today” Featuring Dale Cohen Date: Monday, October 19, 2020 Time: 7:30 pm Place: Cowles Auditorium, University of Minnesota, Twin Cities Campus Please check our website at https://hsjmc.umn.edu/research-centers/centers/silha-center-study-media-ethics-and-law for updates as the venue for the Silha Lecture is subject to change. Dale Cohen serves as Special Counsel to FRONTLINE, the award-winning PBS documentary series, where he counsels and leads the news team and producers on legal issues and ethical standards. He is also Director and founder of the UCLA Doc Film Legal Clinic and an adjunct professor of law.

Cohen has more than 35 years of experience as a media lawyer, litigator, and news executive, having served in senior roles at Radio Free Europe, National Public Radio (NPR), Cox Enterprises and Tribune Company.

In addition to the Clinic, Cohen teaches News Media Law in the Digital Age at UCLA. His other teaching experience includes media law courses at University of North Carolina’s School of Law, Emory College, the Philip Merrill College of Journalism at the University of Maryland, and the Medill School of Journalism at Northwestern University. A frequent speaker at documentary film festivals and media law conferences, Cohen is also the co-author of the textbook, Media and the Law (2d ed., LexisNexis).

A graduate of Syracuse University with degrees in American Political Thought and Journalism, Dale Cohen Cohen’s J.D. is from the Northwestern University Pritzker School of Law.