A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2011 Not Just a ‘Rogue Reporter’: ‘Phone Hacking’ Scandal Spreads Far and Wide The so-called “phone hacking” scandal has led to more than Murdoch Closes News of the World and a dozen arrests, resignations by top News Corp. executives Speaks to Parliament while Public and British police, the launching of several new investigations Outrage Grows over Tabloid Crime, into News Corp. business practices, and pressured Murdoch to retreat from a business deal to purchase the remaining Collusion, and Corruption portion of BSkyB that he did not own. The U.S. Department of Justice and the Securities and Exchange Commission (SEC) massive ethical and legal scandal enveloped the are reportedly conducting preliminary investigations into the Rupert Murdoch-owned British tabloid News of possibility of international law violations. The FBI is reportedly the World in the summer of 2011, leading to its investigating allegations that Murdoch journalists hacked into sudden closure. New allegations arose almost the phones of victims of the Sept. 11, 2001 terrorist attacks daily that reporters and private investigators or their families. British police have teamed up with Scottish Aillegally accessed the voice mail messages of politicians, authorities to continue investigating claims of phone hacking. celebrities, and private citizens. The revelations sparked Parliament launched a formal inquiry into the scandal and has worldwide public outcry and led to sweeping law enforcement questioned top News Corp. offi cials including Rupert Murdoch investigations directed at top editors of the paper, executives and his son, James Murdoch. The investigations and inquiries at its parent company News Corporation, and the News remain ongoing, and it is unclear what each effort will uncover Corp. chairman and CEO himself. Meanwhile, lawmakers and about the details of a scandal that spans nearly a decade. commentators explored the scandal’s implications for the news media business as a whole. ‘Phone hacking’ a Widespread Practice at News of the Allegations arose in July 2011 that private investigators World working for News of the World accessed the voice mail account The illegal practices News of the World reporters allegedly of Milly Dowler — a 13-year-old British girl who went missing used to access the voice mail accounts of individuals ranging in 2002 and was later found murdered. The investigators from famous athletes to family members of crime victims allegedly listened to the voice mail messages of worried family have been popularly labeled “phone hacking,” although that members and then deleted them to make room for new ones, label suggests a more complex process of computer system giving her family and police false hope that Dowler was still manipulation than what apparently occurred. According to alive and accessing her cellphone. The news fed a growing a Sept. 1, 2010 New York Times Magazine article, News of scandal that has been years in the works, involves dozens of the World reporters, or private investigators the reporters reporters and editors at News of the World, and perhaps others hired, engaged in a practice known as “double screwing,” associated with News Corp. holdings, even in the United States. which involved two people calling the same cell phone at the The British police have also been criticized for handling early same time. The fi rst caller rendered the line busy, sending investigations poorly and for engaging in corrupt relationships the second caller to a voice mail prompt. The second caller with News of the World reporters and editors. On July 8, 2011, would then gain access to the phone’s voice mail in one of two News Corp. announced that the July 10, 2011 issue of News of ways. In some cases, the second caller might enter a generic the World would be its last after 168 years of publication. News passcode used by the mobile phone service provider which Corp. owns more than two hundred media outlets including would grant access to any voice mail box on that company’s The Wall Street Journal and The Times of London, the Fox network, such as “1111” or “4444.” According to a July 14, television and fi lm companies, and much of BSkyB, a British 2011 post on the PBS blog Need to Know, in other cases, the satellite TV company. Phone Hacking, continued on page 4 Inside This Issue Summer 2011: Volume 16, No. 3

1 Not Just a ‘Rogue Reporter’: ‘Phone Hacking’ 23 Social Media Challenge British Privacy Scandal Spreads Far and Wide Injunctions

Cover Story International Press Freedom 3 Security and Privacy in ‘The Year of the Hack’ 25 Journalist Murders: Bailey Killers Convicted; Director’s Note More Charges in Politkovskaya Case

9 Judges Rebuke Government on Leak Endangered Journalists Prosecutions 26 School Privacy Law Changes Could Challenge Government Leaks Media

12 Silha Lecture Features Mark Stephens, Freedom of Information International Free Expression Advocate 29 Student Speech: Off-Campus, Online, and in

Silha Center Events Trouble

13 U.S. Supreme Court Strikes Down Ban on Student Free Speech Violent Video Game Sales to Minors 37 Update: Colorado Prosecutor Violated Student

Supreme Court News Editor’s Rights with Criminal Libel Search Warrant 15 U.S. Supreme Court Invalidates Vermont

Prescription Confi dentiality Law Criminal Libel

Supreme Court News 38 Ninth Circuit Overturns Conviction for Threat against Obama 17 State Shield Laws: New Jersey Denies Blogger’s

Claim; Other States Expand and Extend Freedom of Speech Privilege 40 Legal and Ethical Issues Arise when bin Laden Journalist’s Privilege Dies

20 States Consider Banning Undercover Recording Freedom of Speech at Agricultural Operations Access

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2 Security and Privacy in ‘The Year of the Hack’ he year 2011 may be remembered as “the year of disclose plenty of it as the price of admission to their digital the hack.” On the heels of WikiLeaks’ extensive playgrounds. Unless compelled to, however, those companies disclosures of classifi ed government records in 2010, are not necessarily forthcoming about what they are doing with dozens of businesses ranging from Sony to Citigroup the information once they have it. to Google reported cyber attacks that compromised So it is not surprising that governments ranging from the theirT operations as well as sensitive consumer data. Some U.S. Congress to the European Union are calling for greater companies were targeted by the “hacktivist” collective transparency in cyberspace. They want to force companies to known as “Anonymous” in retaliation for the decision to explain what data they collect, what use they make of it, and sever their ties with WikiLeaks. Others, how users can opt out of the process, all in the name of giving DIRECTOR’S including PBS, the U.S. Senate, and the individual the right of control over personal information. NOTE the CIA, were singled out by the “Lulz This is all very well. But the “right to control” will have Security” collective, whose proclaimed First Amendment implications down the road. The European mission was to expose gaps in security systems. Even the Commission (as well as, independently, some legislators in International Monetary Fund suffered what it called a “large California), have called for an even more potent right: the and sophisticated cyber attack” that threatened to expose “right to be forgotten,” or to be removed from databases international economic data, with some investigators accusing such as Wikipedia and Google’s Streetview. This confl icts the Chinese government of backing the assaults — a charge with United States law, which generally says that truthful China denies. And the unfolding story of The News of the information obtained legally from public sources cannot be World phone-hacking scandal, which we explore in detail censored. For example, The New York Times reported on in our cover story, reminded us that unscrupulous behavior August 27, 2011 that two entrepreneurs in Cincinnati, operating that compromises both privacy and security can extend to as “Larken Design,” are selling digitally retouched mug shots journalists, too. from 1955 that were discarded by the Alameda County (Calif.) The public clamored for reassurance that their personal sheriff’s department when it switched to a digital fi ling system. information would be safeguarded in a digital world that Scholars quoted in the story said that Larken’s sales of prints, seemed increasingly vulnerable, even as they eagerly adopted posters, and tote bags are protected by the First Amendment. new social media innovations — some of which, like the But other countries consider privacy to be a fundamental identity disclosure requirements for subscribers to Google right that trumps other interests like free expression. A recent Plus and Facebook’s use of facial recognition software to scan poll found that 90 percent of Europeans polled support the photos posted online, were highly controversial. Predictably, “right to be forgotten.” I wonder how they would react to what legislators around the world called for stronger laws and Larken is up to? regulations and more vigorous enforcement mechanisms. * * * Law enforcement demanded, and in many instances received, With this issue, we bid a fond and grateful farewell to greater authority to utilize social media to investigate and Patrick File, who during his years as a graduate student at the prevent crime. In May, nearly 10 years after the September 11 School of Journalism and Mass Communication has served attacks, Congress voted overwhelmingly to extend surveillance as a Silha Center research assistant, Silha Fellow, and editor powers under the USA PATRIOT Act just a day before they of 13 issues of the Silha Bulletin. Patrick has dedicated much were set to expire. of his scholarly energy to the study of media law and ethics. The public has an insatiable appetite for disclosing and He has labored tirelessly and patiently with a staff of law and sharing personal information with ever-expanding circle of graduate students to produce the quality publication that you “friends.” But they want to do it on their own terms — and are reading now, bringing creativity, insight, and good humor preferably, for free. Companies like Facebook and Google to the process. We wish him every success as he shifts gears recognize that the information their users provide is a to concentrate on completing and defending his doctoral valuable commodity, and so they entice their customers to dissertation. He will be very much missed. – PROF. JANE KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF SILHA CENTER STAFF MEDIA ETHICS AND LAW

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

PATRICK FILE SILHA BULLETIN EDITOR

HOLLY MILLER SILHA RESEARCH ASSISTANT

MIKEL J. SPORER SILHA RESEARCH ASSISTANT

ELAINE HARGROVE SILHA CENTER STAFF 3 Phone Hacking, continued from page 1 private investigators would contact the cell phone provider and by a small group of individuals within the royal family. The request a password change. It is unclear if the investigators Metropolitan Police Service (MPS), commonly referred to as posed as the customer or if companies readily fulfi lled these Scotland Yard, which is responsible for Greater London and types of requests. The “double screwing” technique practiced also has signifi cant national responsibilities such as leading by News of the World’s investigators would probably not counter-terrorism efforts and protection of the British Royal be effective on newer cell phone networks because they Family and senior fi gures of the government, launched an allow only the subscriber who sets the original password to investigation. subsequently change it, Need to Know reported. In 2006, Clive Goodman, a reporter at News of the World, In 2003, an investigation of Stephen and Glenn Mulcaire, a private investigator who worked for the Whittamore, a private investigator, led to newspaper, were charged with illegally listening to voice mail COVER STORY the discovery of a client list containing messages of the royal family, a criminal offense under section the names of more than 300 British 79 of the Regulation of Investigatory Powers Act 2000. They journalists from more than 30 media outlets, according to were both found guilty and received prison terms. The editor an August 15, 2011 story in of News of the World at the The Washington Post. The “Politicians were terrifi ed of putting time, Andy Coulson, resigned story said journalists used from his position and claimed Whittamore to get personal their heads above the parapet and he had no knowledge of the information like private phone challenging these tabloids that sold phone hacking practices. numbers. Among other things millions of copies. We know now that Soon after Coulson’s seized during a search of was wrong.” resignation, British Prime Whittamore’s home were the Minister David Cameron phone numbers of Milly Dowler — Chris Bryant appointed Coulson to Director and her family members, the Labour Party MP, Rhondda of Communications for the story said. Whittamore’s 2005 Conservative Party. In January conviction for violating the 2011, Coulson resigned from Data Protection Act — a U.K. law that governs the security the position because of continued media coverage surrounding of personal data and prohibits companies and individuals the phone hacking scandal and allegations that he encouraged from revealing personal information — “led only to a slight the practice while at the helm of News of the World. According tap on the wrist: no fi ne, and a suspended sentence with no to the June 2011 issue of Vanity Fair, Scotland Yard seized jail time,” the Post reported. Whittamore violated the law paperwork, computer records, handwritten notes, and by misrepresenting himself as a relative or employer of the audiotapes as part of its investigations into Goodman and person whose phone number he was seeking. None of the Mulcaire. The investigation revealed 4,332 names or partial journalists who hired him were investigated. According to names of people the pair had taken an interest in, along with the Post report, a 2006 Information Commissioner’s Offi ce 2,978 cellphone numbers, 30 tapes containing voice mail report largely based on the Whittamore case called for harsher messages, and 91 PIN codes to access voice mail boxes, Vanity sentences for violators of Britain’s Data Protection Act. It Fair reported. The authorities notifi ed fi ve people outside the died in Parliament in 2008. “There was this sense out there royal family that their voice mail messages may have been that a little bit of gossip didn’t really do anyone any harm,” intercepted. Gordon Taylor, chief executive of the Professional said Member of Parliament (MP) Chris Bryant, a Labour Party Footballers’ Association and Max Clifford, a powerful British member from Rhondda, and a repeated target of the tabloid publicist, two of those notifi ed, sued News of the World and press, which he said he believes used illegal methods to obtain the paper settled both cases for nearly $2.5 million, the story the private data of an ex-partner. “And politicians were terrifi ed said. According to Vanity Fair, Coulson described the phone of putting their heads above the parapet and challenging these hacking practice as the work of a “rogue reporter.” But, the tabloids that sold millions of copies. We know now that was “rogue reporter” defense began to unravel after a July 8, 2009 wrong.” According to the Washington Post report, politicians story in The Guardian suggested the practice was widespread. said the Whittamore case should have been a wake-up call to But critics dismissed initial reports as mere media-mudslinging. do something about the broader problem of phone hacking. (See “Murdoch-owned British Paper Embroiled in Phone “Every so often, an event like this happens and we have to Scandal” in the Fall 2009 issue of the Silha Bulletin.) ask ourselves deeper questions,” said MP Ed Miliband, Labour Frustrated by the lack of attention its coverage was Party leader and Leader of the Opposition from the South receiving, Guardian editor Alan Rusbridger emailed then-New Yorkshire constituency of Doncaster. “What does it say about York Times editor Bill Keller, encouraging him to look into the our country? How did we let this happen? And how do we phone hacking story, according to the Vanity Fair report. More change to ensure this does not happen again?” than a year after The Guardian’s fi rst report, a Sept. 1, 2010 In 2005, the same year Whittamore was convicted, senior story in The New York Times Magazine quoted former News aides to the British royal family began noticing voice mail of the World reporter Sean Hoare saying Coulson encouraged messages they had never heard were already in the saved the phone hacking practice. Hoare gave a similar interview for message folders of their inboxes. During the same time period, the June 2011 Vanity Fair story, and said the practice was fi rst News of the World ran stories with information known only used as a negotiation tactic to get publicists to offer alternative

4 stories in exchange for not using the private material. The and said he only learned he may have been a victim of hacking New York Times story also quoted unnamed detectives from after “repeated requests.” Scotland Yard alleging that investigations into complaints of According to a Sept. 5, 2010 story in The Telegraph, Scotland phone hacking in 2006 and 2007 were deliberately curtailed Yard detectives asked The New York Times for its transcript of because of a close relationship between the authorities and the interview with Hoare, but the newspaper refused. A post on News of the World. John Whittingdale, a Conservative Party Yahoo! News blog The Upshot said Keller said the paper would member from Maldon and the chairman of a parliamentary not assist in a police investigation. Scotland Yard’s assistant committee that has twice investigated the phone hacking, police commission insisted Hoare’s statements had “come said “there was simply no enthusiasm among Scotland Yard to from nowhere,” in terms of its investigation, according to a go beyond the cases involving Mulcaire and Goodman.” The Sept. 6, 2010 BBC report. While the Labour Party was calling New York Times’ interviews with more than a dozen former for a fresh inquiry, Education Secretary Michael Gove told the reporters and editors revealed the phone hacking went well BBC that the New York Times story seemed “to be a recycling beyond Mulcaire and Goodman. Sharon Marshall, a former of allegations we have heard before” and dismissed the story News of the World TV editor, as a product of newspaper who witnessed phone hacking “ It was an industrywide thing. Talk to “circulation wars” in the while at the tabloid said, “It any tabloid journalist in the United United States between the was an industrywide thing. Talk Times and the Murdoch-owned to any tabloid journalist in the Kingdom, and they can tell you each Wall Street Journal. The United Kingdom, and they can phone company’s four-digit codes. News of the World released a tell you each phone company’s Every hack on every newspaper knew statement in response to the four-digit codes. Every hack on this was done.” Sept. 1, 2010 article, quoted every newspaper knew this was by the BBC on Sept. 6, 2010, done.” alleging they had “repeatedly At the time the New York — Sharon Marshall asked The New York Times Times Magazine story was Former News of the World TV editor to provide support of their published, fi ve people had fi led allegations and they were lawsuits accusing News Group unable to do so.” The tabloid Newspapers, a division of Murdoch’s News Corp., of breaking said by refusing to participate in the investigation, The New into their voice mail. Additional cases were being prepared, York Times confi rmed suspicions that the story was “motivated including one seeking judicial review of how Scotland Yard by commercial rivalry.” handled the investigation. Bill Akass, the managing editor of Nevertheless, the phone hacking scandal would not go away News of the World, dismissed what he called “unsubstantiated for News of the World. On Jan. 5, 2011, The New York Times claims” that phone hacking was widespread and told The New blog The Lede reported the tabloid had suspended senior York Times that efforts had been made to introduce safeguards news editor Ian Edmondson, who was accused of intercepting to prevent unethical reporting tactics. But despite what editors actress Sienna Miller’s voice mail messages. Miller was one of told The New York Times was a “zero tolerance” hacking the fi rst to fi le a suit against the newspaper and her case led to policy, the story said News of the World executives had been the discovery of important information, Vanity Fair reported warned about another suspicious incident after making those in its June 2011 story. Cases like Miller’s prompted another statements. A phone company alerted a TV personality that reopening of the investigation by mid-January. According someone had called her cellphone and attempted to access her to a Jan. 14, 2011 report in The New York Times, the Crown voice mail, the Times story said. A court order compelled the Prosecution Service said it would evaluate all of the evidence phone company to turn over the source of the call, which was collected by Scotland Yard during its original investigation a number traced to a reporter at News of the World. The tabloid and any new material that had come forward since then. “The told The New York Times the journalist had “been suspended purpose of this assessment is to ascertain whether there is any from reporting duties” while it conducted an investigation. material which could now form evidence in any future criminal Days after the New York Times story was published, prosecution relating to phone hacking,” the prosecutors said in politicians called for a new investigation. In the May/June 2011 a statement. On Jan. 21, 2011, Coulson resigned as Cameron’s issue of the Columbia Journalism Review, reporter Archie director of communications, saying that “continued coverage Bland said The New York Times “piece gave the story new life, of events connected to my old job at the News of the World and gave fresh ammunition to those who found it impossible has made it diffi cult for me to give the 110 percent needed to believe that the practice had not preceded Coulson’s reign, in this role,” Vanity Fair reported. Five days after Coulson’s and had not been known higher up the foodchain.” According resignation, News Corp. turned over a large volume of emails to a Sept. 4, 2010 story in The Observer, The Guardian’s sister to Scotland Yard, which offi cially named the phone hacking newspaper, Lord John Prescott, a Labour Party politician investigation “Operation Weeting,” an apparently randomly- who was deputy prime minister under Tony Blair, was one of chosen designation. Deputy Assistant Commissioner Sue Akers the people whose phones may have been hacked. Prescott of the Serious and Organised Crime Command took over the said he was “far from satisfi ed with the Metropolitan Police’s procedure in dealing with my requests to uncover the truth,” Phone Hacking, continued on page 6

5 Phone Hacking, continued from page 5 investigation and about 45 offi cers were working on the case as view to establishing whether there is available evidence and if of May 2011, Vanity Fair reported. it would be appropriate to conduct any further investigation According to the BBC, Scotland Yard’s Assistant into these activities,” a police letter said, according to The Commissioner John Yates had previously instructed offi cers Telegraph. that there were only a small number of victims, but it was On June 23, The Guardian reported another woman becoming clear this was not the case. On April 5, 2011, The connected with the phone hacking scandal was arrested. The New York Times reported two journalists had been arrested, report said the woman arrested is believed to be Terenia Taras, questioned, and released on bail in connection with the phone who contributed more than 30 stories for News of the World hacking scandal. The reporters were “arrested on suspicion of and the ex-girlfriend of Greg Miskiw, the News of the World’s unlawfully intercepting mobile phone voice-mail messages,” former assistant news editor. Her identity was later confi rmed. according to a police statement quoted by The New York Times. “As chief executive of the company, I Milly Dowler Allegations Although the statement did Lead to New Arrests not name the individuals, The feel a deep sense of responsibility for According to a July 14, New York Times reported that the people we have hurt and I want to 2011 Time magazine story, “a person familiar with the reiterate how sorry I am for what we now News of the World prided investigation” identifi ed the two know to have taken place.” itself on serving all social as Edmondson, who was fi red classes, including “the poorer earlier in the year, and Neville — Rebekah Brooks classes.” But after The Thurlbeck, the paper’s chief Former News of the World Editor Guardian’s July 4, 2011 report reporter. The story called the alleging Mulcaire hacked into developments “a potentially messages left for Milly Dowler decisive turning point in an the public became outraged investigation that has been underway, often fi tfully, since 2006.” at “the people’s champion” exploiting ordinary people in their On April 14, 2011, another senior News of the World reporter, time of grief, the Time magazine story said. In a statement to James Weatherup, was also arrested, according to a June 8 The New York Times, Mark Lewis, the Dowler family’s lawyer, BBC “Q&A” article outlining the scandal. called News of the World’s actions “heinous” and “despicable.” Dozens of public fi gures, including Paul McCartney’s ex-wife The report of the hacking became signifi cant because it showed Heather Mills and James Hewitt, a former army offi cer who the practice occurred fi ve years before the arrests of Goodman had an affair with the late Princess Diana, have considered and Mulcaire. The incident would also have taken place under and or started legal proceedings against the News of the World. former News of the World editor Rebekah Brooks, who had The list of potential victims spans politicians, sports stars, been promoted to chief executive of News International. “I actors, and prominent business people. It is unclear how many hope you all realize it is inconceivable that I knew or worse, total targets there were, but the June Vanity Fair story gives sanctioned these appalling allegations,” she wrote in an email a “conservative estimate” of 2,000, adding that the true fi gure to employees in early July. On July 8, Coulson was arrested may be double or triple that number. The Guardian reported for questioning about his role in the phone hacking scandal in a July 7, 2011 story that police said there could be as many and allegations about police bribes. On July 15, The New York as 4,000 hacking victims. Alleged targets included actor Hugh Times reported Brooks and Les Hinton, the publisher of The Grant, comedian Steve Coogan, model Elle Macpherson, soccer Wall Street Journal since 2007, resigned as pressure mounted stars John Terry and David Beckham, and possibly former from politicians and investors in the United States and Britain. Prime Minister Gordon Brown. On May 13, 2011 The Guardian Brooks said in a letter that she had become a distraction to reported News International set up a compensation fund worth the company. “As chief executive of the company, I feel a deep £20 million, or about $32 million, in order to pay to settle the sense of responsibility for the people we have hurt and I want suits. Miller settled her claim against the tabloid for around to reiterate how sorry I am for what we now know to have $160,000, The Guardian reported. In response to the Miller taken place,” Brooks wrote. Hinton, who oversaw Murdoch’s settlement and the creation of the fund, a News International British newspaper subsidiary when phone hacking was spokeswoman told The Guardian, “several weeks ago we apparently rampant, resigned after questions arose about his admitted liability in certain cases and offered a genuine and involvement and knowledge of the illegal practice going on at unreserved apology. We hope to resolve other cases swiftly.” newspapers under his control, The New York Times reported. Several lawsuits remained ongoing when the Bulletin went to On July 17, 2011 Scotland Yard arrested Brooks on suspicion press. of illegally intercepting phone calls and bribing the police, The According to a June 10, 2011 report in The Telegraph, New York Times reported. Hours later, Britain’s top police the scandal may not be limited to listening in on voice mail offi cial, Sir Paul Stephenson, resigned as commissioner of the messages. Scotland Yard has established a new team to Metropolitan Police Service. The New York Times reported investigate claims that emails and computer fi les were illegally he stepped down because “the ongoing speculation and accessed by News of the World, The Telegraph reported. “The accusations relating to the Met’s links with News International [Metropolitan Police Service] has set up a small team in order at a senior level” made it challenging to do his job. to assess the various allegations that have been made with a Stephenson’s resignation also followed the July 14, 2011 arrest

6 of Neil Wallis, a former News of the World deputy editor, who of the scandal suggested that he had been mistaken, misled, had become a police public relations consultant after leaving or he lied, according to an August 10, 2011 Bloomberg report. the paper and who was also suspected of phone hacking. The ABC News reported on July 18 that James Murdoch has been New York Times reported Brooks’ arrest was a “shock” to criticized for responding too slowly to initial allegations of News Corp. “When she resigned on Friday, we were not aware phone hacking. James Murdoch also approved settlement that she would be arrested by the police,” a News International payments to some of the tabloid’s most prominent hacking offi cial told the Times. victims. James Murdoch is expected to clarify his testimony, The Milly Dowler allegations also affected News Corp. more but had not yet done so when the Bulletin went to press. generally when Murdoch withdrew a bid to buy the portion According to an August 18, 2011 report in The Scotland of BSkyB satellite network that he did not own, at the urging Herald, the Strathclyde Police, Scotland’s largest police force, of members of Parliament. A July 6, 2011 report in The Wall have launched an investigation to examine allegations of Street Journal said British Culture Secretary Jeremy Hunt had phone hacking, breaches of data protection law, and police been expected to sign off on the deal soon after the public corruption. Scottish detectives are working with their London consultation period ended July 8, but the approval was delayed counterparts, Scotland Yard, the story said. The Daily Mail because of the phone hacking allegations related to Dowler. reported July 20 that U.S. Justice Department, FBI, and SEC A July 13, 2011 Reuters story said Murdoch began to receive preliminary investigations are exploring whether News Corp., pressure from Parliament to withdraw his offer soon after the which is based in New York, violated the Foreign Corrupt new allegations arose. Prime Minister Cameron, under fi re over Practices Act (FCPA), which bans U.S.-based companies his own ties to former News of the World journalists, threw from paying bribes to overseas offi cials. The FBI will focus its the government’s support behind an opposition motion that investigation on whether Murdoch journalists hacked into the denounced Murdoch’s bid to extend his media power while phones of victims of the Sept. 11, 2001 terrorist attacks or their police were investigating the alleged phone hacking, the story families, the report said. A July 22 report in The Guardian said said. “It has become clear that it is too diffi cult to progress in News Corp. could come under the SEC’s scrutiny because it is this climate,” News Corp. deputy chairman Chase Carey told partly responsible for policing the FCPA. The SEC will want to Reuters, adding that the company remained “a committed long- know if News Corp. properly declared all its account activities term shareholder” in BSkyB. and whether it tried to cover up any bribes made within the On August 19, 2011 The Guardian reported two more United Kingdom under false accounting returns, the report arrests in connection with the phone hacking scandal. A police said. detective was arrested on August 18 on suspicion of leaking details about Scotland Yard’s investigation of the scandal, while News Corp. Ethics and the Scandal’s Meaning for Dan Evans, a former News of the World reporter, was also Murdoch arrested on suspicion of phone hacking. “I made very clear The broader meaning of the scandal — now being referred when I took on this investigation the need for operational and to as “Hackgate” or “Murdochgate” on social media and by information security. It is hugely disappointing that this may some media outlets — for Murdoch, his media empire, and not have been adhered to,” said Sue Akers, Scotland Yard’s the state of journalism has become a subject of much debate deputy assistant commissioner, who is leading the investigation in the media community. In a July 9, 2011 commentary for into phone hacking at the News of the World. The Guardian Newsweek, veteran journalist Carl Bernstein compared the declined to comment on reports that the leaks had been to The scandal to one that made him famous, and the inspiration Guardian. for the “Hackgate” label, Watergate. “The circumstances of Beyond individual arrests, several government investigations the alleged lawbreaking within News Corp. suggest more are being conducted in response to the phone hacking than a passing resemblance to Richard Nixon presiding over practices of News of the World. Lord Justice Brian Leveson, a criminal conspiracy in which he insulated himself from a judge in the Court of Appeal and head of the Sentencing specifi c knowledge of numerous individual criminal acts while Council for England and Wales, is leading an inquiry into the being himself responsible for authorizing general policies scandal and a broader investigation into the media’s practices that routinely resulted in lawbreaking and unconstitutional and ethics at the request of Cameron, according to a July 20 conduct,” Bernstein wrote. “Not to mention his role in the report in The Guardian. The inquiry is scheduled to begin cover-up. It will remain for British authorities and, presumably, in September 2011 and the judge is expected to complete disgusted and/or legally squeezed News Corp. executives and his report within 12 months. The inquiry will also examine editors to reveal exactly where the rot came from at News of publishers’ involvement with politics and the police. the World, and whether Rupert Murdoch enabled, approved, or On July 19, 2011 Murdoch and his son James Murdoch opposed the obvious corruption that infected his underlings.” voluntarily appeared before a special Parliamentary committee In a July 19, 2011 post for Rolling Stone’s Taibblog, to answer questions about the phone hacking scandal that led contributing editor Matt Taibbi wrote that the scandal is them to shut down the News of the World on July 10. According being used “as an opportunity to do what should have been to a July 19 broadcast of “Talk of the Nation” on NPR, Rupert done years ago, which is indict Rupert Murdoch in the court Murdoch told the committee that because the paper was such a of public opinion.” Taibbi wrote that although Murdoch will small part of his company, he lost track of the publication and suffer a blow over the scandal, it is still unclear how far the its actions. James Murdoch’s testimony about his knowledge revelations will go. But Taibbi expressed concern that the Phone Hacking, continued on page 8 7 Phone Hacking, continued from page 7 deeper lesson of the scandal will be overlooked. “Even if believes the press can make or break political careers. “The Murdoch and News Corp. go down, the basic problem that greatest safeguard of press ethics is always going to be the he represents is going to remain,” he wrote. “The News of press itself. Britain still has diverse and vigorous newspapers. the World scandal represents a step over an important moral They should be left to judge, hang and bury their own. They line for the commercial media. In the constant effort to make are doing a good job of that just now,” he wrote, crediting The money, companies like News Corp. have for decades now been Guardian for holding News of the World accountable for its sinking to even-lower depths to fi nd sensational material.” actions. Jenkins previously wrote columns for Murdoch-owned Because of people like Murdoch, Taibbi argued, editors and The Times of London and The Sunday Times, and edited The reporters today do not have the discretion to reject stories that Times from 1990 to 1992. will bring in money to the publication on a moral basis. “The In a July 11, 2011 commentary entitled “In Defense of Edward R. Murrow model of responsible news is kind of a Murdoch” for The New York Times, columnist Roger Cohen sucky commercial product,” Taibbi wrote. “Nobody who is in it called Murdoch “good for newspapers over the past several for the money is going to ride decades, keeping them alive that horse voluntarily.” Taibbi “The greatest safeguard of press ethics and vigorous and noisy and argued that the central issue relevant.” Cohen said that is not a question of whether is always going to be the press itself. although phone hacking Murdoch broke the law Britain still has diverse and vigorous is “indefensible” and, in himself, but rather the fact that newspapers. They should be left to his opinion, Fox News has he “did more than anyone else judge, hang and bury their own. They are signifi cantly contributed to on earth” to create a climate the polarization of American where editors fail to listen to doing a good job of that just now.” politics and eroded reasoned “something else that guides the — Simon Jenkins debate, and although he individuals in these businesses Columnist, The Guardian disagrees with Murdoch’s — ethics, morality, patriotism, views on a range of issues some non-commercial human thing — that prevents them from from climate change to the Middle East, he admires Murdoch’s taking that step over the line.” “visionary, risk-taking determination that has placed him Simon Jenkins, a columnist for The Guardian and London’s ahead of the game as the media business has transformed Evening Standard, as well as a commentator for BBC, wrote through globalization and digitization.” Cohen argued that a July 5 commentary for The Guardian analyzing how editors without Murdoch, the British newspaper industry might have became embroiled in the phone hacking scandal. Jenkins disappeared altogether, and the overall British media scene pointed to increased commercial pressures that have led would be “pretty impoverished.” Despite the recent troubles, to “warped ethics” in newsrooms. “Pressure on editors and Cohen wrote, he believes Murdoch has been good for media newspaper owners not just to ‘dumb-down’ but to abandon and a more open world. all scruple and restraint has been intense,” he wrote. For all In the meantime, Murdoch is left vigorously defending his newspapers, Jenkins wrote, the News of the World phone company as it faces the scandal. According to an August 10, hacking scandal is a “moment of truth.” Jenkins argued that in 2011 report in The New York Times, Murdoch insisted he has order for the profession of journalism to continue, the industry the backing of the News Corp. board of directors and will stay “must believe in readers who will value, and ultimately pay on as chief executive. In a conference call with fi nancial analysts for, quality reporting and comment. Tarnish that belief, and we and reporters, Murdoch emphasized that none of the problems really are out of a job,” he wrote. In a July 12 commentary for at News of the World had affected other parts of News Corp. The Guardian, Jenkins also blamed politicians and their fear “We’re all committed to doing the right thing,” he said. “We of the media’s infl uence over politics and public opinion for have taken decisive actions to hold people accountable and the continuous “media mischief” in Britain. Jenkins proposed will do whatever is necessary to prevent anything like this from a professional regulatory body to oversee complaints against occurring ever again.” the press rather than a government body, like Parliament, that – HOLLY MILLER SILHA RESEARCH ASSISTANT

8 Judges Rebuke Government on Leak Prosecutions The subpoena Brinkema quashed on government failed to satisfy a three-part Adverse Rulings Do July 29 was the third issued to Risen balancing test used to determine whether Not Slow Obama in connection with the Sterling case. a subpoena against a reporter should be Administration’s Pursuit According to the opinion, which was upheld. She upheld the subpoena only released after a classifi cation review on insofar as it requires Risen to confi rm of Leaks August 3, the fi rst subpoena was issued that he was the author of a particular n the Obama administration’s by a federal grand jury sitting in the newspaper article or book chapter; that ongoing efforts to track down and Eastern District of Virginia in January the newspaper article or book chapter prosecute leakers of classifi ed 2008 and sought Risen’s testimony is accurate; and that certain statements information, one federal judge and information about his sources for in that article or chapter were, in fact, quashed a subpoena to a New chapter nine of his 2006 book “State of made by an unnamed source. “A criminal YorkI Times reporter for his sources War: The Secret History of the C.I.A. and trial subpoena is not a free pass for the while another the Bush Administration.” In chapter government to rifl e through a reporter’s nine of the book, Risen described notebook,” Brinkema wrote. GGOVERNMENTOVERNMENT rebuked the Operation Merlin as an “espionage Brinkema explained that, contrary LLEAKSEAKS government’s prosecution disaster.” The grand jury term expired to the government’s argument that the of a former National Security before a fi nal ruling could be issued U.S. Supreme Court ruled that there Administration (NSA) offi cial as the case on the fi rst subpoena, but by that is no federal reporter’s privilege in fell apart. time the government had focused its Branzburg v. Hayes, 408 U.S. 665 (1972), investigation into the Operation Merlin the 4th Circuit has interpreted Justice Risen Subpoena Quashed, Judge leak on Sterling. The second grand jury Powell’s concurrence in that case to Raises New Question about subpoena was issued in January 2010, mean that a privilege is available in some Espionage Act seeking “the where, the what, the how, circumstances, and has recognized a On July 29, 2011, U.S. District Judge and the when” regarding the disclosure qualifi ed privilege since the 1977 case Leonie Brinkema granted most of New of classifi ed information for chapter United States v. Steelhammer, 561 York Times reporter James Risen’s nine of “State of War.” On Nov. 30, 2010, F.2d 539 (4th Cir. 1977). The sum of the motion to quash a trial subpoena Brinkema quashed the second subpoena, Circuit Court’s rulings on reporter’s demanding that he testify and identify concluding that the government had privilege since Steelhammer have his sources for his stories about an “essentially admitted” that it had “more established the rule, Brinkema wrote, alleged Central Intelligence Agency (CIA) than enough evidence to establish that “if a reporter presents some program aimed at undermining Iran’s probable cause to indict Sterling” and evidence that he obtained information attempts to build a nuclear weapon. therefore did not need Risen’s testimony. under a confi dentiality agreement, or The subpoena was issued as part of the However, Brinkema left the door open that a goal of the subpoena is to harass government’s prosecution of Jeffery for the government to pursue a trial or intimidate the reporter, he may invoke Sterling, a former CIA offi cial who subpoena against Risen, saying that a qualifi ed privilege against having to prosecutors claim leaked information because the government must prove testify in a criminal proceeding.” about “Operation Merlin,” a failed plan Sterling’s guilt “beyond a reasonable Having established that Risen had a to pass fl awed blueprints to Iran via doubt” in a trial as opposed to the valid confi dentiality agreement with his a former Russian scientist. Sterling “probable cause” needed to indict him, source for his discussion of Operation was indicted in December 2010 for the the government might have a stronger Merlin in “State of War,” Brinkema unauthorized retention and disclosure argument that Risen’s testimony was applied a three-part balancing test for of “national defense information” in vital to its case. determining whether the privilege should violation of the Espionage Act, 18 Sterling was indicted on Dec. 22, be overcome, which the Circuit Court U.S.C. §793 et seq., as well as mail 2010, and prosecutors issued a subpoena devised in the 1986 case LaRouche v. fraud, “unauthorized conveyance of to Risen on May 23, 2011 seeking his National Broadcasting Corp., 780 F.2d government property,” and obstruction testimony at trial. The government 1184 (4th Cir. 1986). of justice. United States v. Sterling, explained that it planned to ask Risen to Under that test, Brinkema wrote, 1:10cr485 (LMB), 2011 U.S. Dist. LEXIS identify Sterling as his source for chapter the court must consider 1) whether the 87514 (E. D. Va. July 29, 2011) (For nine of “State of War,” provide details information sought is “relevant” to the more on Sterling’s case — and the fi ve about the reporter-source relationship case, 2) whether that information “can be other cases the Obama administration between the two men, and authenticate obtained by alternative means,” and 3) has prosecuted for similar leaks — see his reporting in the book. whether there is a “compelling interest” “Open Government Advocates Criticize Brinkema ruled that the 4th Circuit in the information. Obama’s Prosecution of Leakers” in the recognizes a qualifi ed privilege for Brinkema wrote that neither party Winter/Spring 2011 issue of the Silha journalists to refuse to testify about disputed the relevance of the information Bulletin.) confi dential sources, and that the the government sought, but that the Leaks, continued on page 10 9 Leaks, continued from page 9 government failed to prove that it could disagreed, arguing that “the case law Fed. R. Evid. 804 (b)(3) as a statement not be obtained by means other than does not distinguish between civil against interest.” Under the federal Risen’s testimony, or that there was a actions and criminal cases. Accordingly, rules of evidence, a statement that compelling interest in its disclosure. The for a compelling interest to exist, the would otherwise be considered hearsay government argued that there were no information must be necessary, or at qualifi es for an exception when it “is alternative means to Risen’s testimony the very least, critical to the litigation at actually adverse to the speaker’s penal about his sources because only Risen issue.” The government also argued that interest.” could provide eyewitness testimony, because it must prove Sterling’s guilt According to Brinkema, Risen’s as opposed to circumstantial evidence, beyond a reasonable doubt at the trial alleged admission to a third party that about the identity of his source, and stage, as opposed to the “much lower Sterling was his source would be adverse that “it is self evident that ... Risen is the evidentiary standard” of probable cause to his penal interest “because receiving only source for the information that the at the grand jury stage, Risen should be classifi ed information without proper government seeks.” However, Brinkema forced to testify. However, Brinkema authorization is a federal felony under 18 argued that neither LaRouche nor any explained, rather than argue that Risen’s U.S.C. 793(e).” other case places the bar for information testimony is necessary or critical to Steven Aftergood, an expert on about confi dential sources at eyewitness government secrecy testimony as opposed to circumstantial “ A criminal trial subpoena is not a and national security evidence, and that the government had free pass for the government to rifl e policy who follows presented evidence that undermined the Obama leak its claim that Risen, and Risen alone, through a reporter’s notebook.” prosecutions closely could provide the information about on his blog Secrecy his confi dential source. “This argument — Judge Leonie Brinkema News, said Brinkema’s clearly misstates the evidence in the U.S. District Court, Eastern District of Virginia statement that Risen record,” Brinkema wrote, “which ... could be guilty of a includes numerous telephone records, felony for “receiving email messages, computer fi les, and demonstrating Sterling’s guilt beyond classifi ed information without proper testimony that strongly indicates that a reasonable doubt, the government authorization” was incorrect, “almost Sterling was Risen’s source.” A motion argued that Risen’s testimony would certainly a misunderstanding and a Sterling fi led with the Eastern District “simplify the trial and clarify matters misrepresentation of the law.” of Virginia on Feb. 24, 2011 stated that, for the jury” and “allow for an effi cient In an August 4 post, Aftergood as part of its evidence supporting the presentation of the government’s explained that the section of the case against Sterling, the government case.” Brinkema wrote, “an effi cient or Espionage Act Brinkema cited “deals “provided ... various telephone records simpler trial is neither necessary nor with unauthorized transmission of showing calls made by ... Risen” as well critical to demonstrating Sterling’s guilt classifi ed information; contrary to as “credit card and bank records and beyond a reasonable doubt.” If doing her assertion, it does not prohibit certain records of his airline travel.” so were suffi cient to satisfy LaRouche’s unauthorized receipt at all.” Aftergood The information was probably acquired compelling interest standard, Brinkema said, “The espionage statutes including via third-party subpoenas to Risen’s concluded, “there would hardly be a 793(e) are notoriously ambiguous and telephone and credit card service qualifi ed reporter’s privilege.” susceptible to multiple, confl icting providers, unbeknownst to Risen. Although media and free press interpretations, but no one has ever Brinkema also observed that a advocates generally praised the read them as Judge Brinkema did.” former intelligence offi cial with whom decision upholding a reporter’s Moreover, Brinkema sought to support Risen consulted on his national security privilege in the Risen case, one of the her interpretation of § 793(e) with reporting testifi ed before the grand jury more legally technical passages of the a footnote citing “U.S. Sentencing that Risen had told him that Sterling Brinkema decision raised some alarm. Guidelines Manual § 2M3.3 (providing was his source for information about In addressing the second part of the a base offense level 29 for convictions Operation Merlin. Brinkema concluded LaRouche test and arguing that other for the ‘Unauthorized Receipt of that “the second LaRouche factor means were not available to obtain the Classifi ed Information’).” But according weighs heavily in favor of quashing the information Risen could provide, the to Aftergood, although § 2M3.3 provides subpoena.” government claimed that the grand jury sentencing guidelines for multiple Brinkema ruled that the government testimony of the former intelligence statutes, the only one that concerns also failed to show that there was offi cial who named Sterling as Risen’s “unauthorized receipt of classifi ed a “compelling interest” in forcing source would be inadmissible at trial information” is 50 U.S.C. § 783(b), which Risen to testify about his confi dential because it would qualify as hearsay. applies only to agents or representatives sources. The government fi rst argued To the contrary, however, Brinkema of a foreign government, or to members that under 4th Circuit precedent the stated that “any statements by Risen to of a Communist organization. “In other “compelling interest” analysis should not a third party that Sterling was his source words, unless Mr. Risen is a foreign apply to criminal cases, but Brinkema would be admissible hearsay under agent or a Communist, there is no statute

10 that specifi cally prohibits him from hours of community service. According after that event. And that weighs heavily, receiving classifi ed information without to a transcript of the sentencing hearing, obviously, upon this particular judge.” authorization. There just isn’t,” Aftergood Bennett declined to impose a $50,000 Bennett added, “somebody somewhere wrote. The passing claim by Brinkema, fi ne as part of the sentence, which the in the U.S. government has to say to Aftergood said, “adds new confusion government argued was important somebody, the Department of Justice, to an area of the law that is already to “send a message” and discourage that the American public deserves better complicated and contested. Ideally, one future leaks of classifi ed information. than this.” Bennett was appointed to hopes that she would see fi t to correct The judge observed that the case had the federal bench in 2003 after being the record.” already taken a heavy toll on Drake, nominated by President George W. Bush. On August 24, the government fi led adding that he did not qualify to receive a motion for reconsideration arguing a government pension for his time Other Leak Investigations Continue that “there is no equivalent for Risen’s served in the military or with the NSA, On June 17, The New York Times eyewitness testimony” in the Sterling and that the case had a disastrous effect reported that the Obama administration’s trial. on his career. “There has been fi nancial campaign against government leaks devastation wrought upon this defendant does not appear to have been slowed by Federal Judge Chides Prosecutors any adverse rulings. in Drake Leak Case “ Somebody somewhere in the U.S. The story reported On June 9, 2011, Former NSA offi cial government has to say to somebody, that Stephen Kim, a Thomas Drake pleaded guilty to a single former foreign policy count of “exceeding authorized use of the Department of Justice, that the analyst contractor a computer” in violation of 18 U.S.C. § American public deserves better than for the U.S. State 1030, after initially being charged with this.” Department who is numerous offenses under the Espionage charged with leaking Act for allegedly leaking information classifi ed information — Judge Richard Bennett about government wiretapping programs about North Korea U.S. District Court, District of Maryland to Baltimore Sun reporter Siobhan to Fox News, is Gorman in 2006 and 2007. Commentators “next in line in the like Secrecy News’ Steven Aftergood that far exceeds any fi ne that can be Obama administration’s unprecedented said the government’s sudden agreement imposed by me. And I’m not going to add crackdown on leaks.” Kim pled not guilty to strike a plea deal demonstrated that to that in any way,” Bennett said. to the charges on Aug. 27, 2010, and its case was weaker than it had realized The judge also scolded government on Aug. 24, 2011, Judge Colleen Kollar- when it zealously pursued Drake, and prosecutors for what he called Kotelly of the U.S. District Court for had subsequently fallen apart. Drake’s “unconscionable” treatment of Drake, the District of Columbia denied several April 14, 2010 indictment included whose house was searched by federal of his motions to dismiss, allowing fi ve counts of “retention of classifi ed agents investigating the leaks but who the government to proceed with its information” under the Espionage Act, 18 was not formally charged until two prosecution. U.S.C. § 793 (e), one count of obstruction and a half years later. Bennett asked In the meantime, the government’s of justice, and four counts of making whether there was an explanation for the investigation of WikiLeaks has false statements. delay, but the government could offer continued, although much of it remains Previously, Judge Richard D. none. Bennett, making reference to the shrouded in secrecy. Pfc. Bradley Bennett of the U.S. District Court for government’s interest in deterring future Manning, the military intelligence analyst the District of Maryland had declined leaks, said “I don’t think that deterrence charged with leaking thousands of to force Gorman to testify in the case. should include an American citizen military and diplomatic documents and On March 31, 2011, The Baltimore Sun waiting two and a half years after their other information to WikiLeaks, is still reported that Bennett said in a hearing home is searched to fi nd out if they’re awaiting a trial at Fort Leavenworth Joint that although he would permit Gorman’s going to be indicted or not. ... It is at Regional Correctional Facility in Kansas. articles about NSA program and the very root of what this country was Manning’s charges include numerous management problems to be admitted as founded on against general warrants violations of the Uniform Code of evidence in Drake’s trial, he would not of the British. It was one of the most Military Justice (UCMJ) including Article allow Gorman to be called as a witness. fundamental things in the Bill of Rights 104, “aiding the enemy,” a charge which Bennett said forcing Gorman to testify that this country was not to be exposed can carry the death penalty. Prosecutors could end in a “deep, dark hole,” and to people knocking on the door with have stated that they do not intend to he was not inclined to jail reporters government authority and coming into seek the death penalty in Manning’s case, for refusing to reveal sources, the Sun their homes. And when it happens, it however. reported. should be resolved pretty quickly, and Glenn Greenwald, a blogger for the On July 15, 2011, Bennett sentenced it sure as heck shouldn’t take two and website Salon, reported June 9, 2011 that Drake to one year of probation and 240 a half years before someone’s charged several people have been subpoenaed to Leaks, continued on page 12

11 Silha Lecture Features Mark Stephens, International Free Expression Advocate n Oct. 4, 2011, international Prosecutions” on page 9 of this issue of Stephens is a Trustee of Index media lawyer and free the Silha Bulletin, “Open Government on Censorship, and Chair of the expression advocate Mark Advocates Criticize Obama’s Prosecution International Board of the Media Legal Stephens will present of Leakers” in the Winter/Spring 2011 Defence Initiative. In June 2011, he was the Silha Center’s 26th issue, and “WikiLeaks’ Document Dump named a Commander of the Order of the OAnnual Lecture, “Free Speech and the Sparks Debate” in the Summer 2010 British Empire (CBE) for his service to Digital Challenge Around the Globe: A issue. Silha Center Director Jane Kirtley the legal profession and the arts. Conversation With discussed “The WikiLeaks Quandary” The lecture will be held at 7:00 p.m. in SILHA CENTER Mark Stephens.” in the Director’s Note in the Fall 2010 Coffman Union Theater on the East Bank EVENTS Stephens issue.) Campus of the University of Minnesota specializes in In 2002, Stephens successfully in Minneapolis, and will include an defending free speech and freedom of opposed attempts to force Washington opportunity for audience Q & A. The information worldwide as head of the Post correspondent Jonathan Randal event is free and open to the public. No International and Media department to testify before the Hague War Crimes reservations or tickets are required. for the London-based law fi rm Finers Tribunal about atrocities he observed The Silha Center for the Study of Stephens Innocent. while covering the Yugoslav War in the Media Ethics and Law is based at Stephens, who The Times of London 1990s. Stephens argued that “compelling the School of Journalism and Mass has described as “one of the best journalists to give evidence at war crimes Communication at the University of advocates for freedom of expression,” trials puts their lives at risk because Minnesota. Silha Center activities, has litigated high profi le cases in the they become automatic targets.” (For including the annual lecture, are made United Kingdom, United States, Iraq, more on the Jonathan Randal case, see possible by a generous endowment from Singapore, and Russia, among other “Former Washington Post Reporter the late Otto Silha and his wife, Helen. places. In 2010 and 2011 he was involved Subpoenaed by International Criminal For further information, please visit in the proceedings to extradite WikiLeaks Tribunal” in the in the Summer 2002 www.silha.umn.edu or contact the Silha founder Julian Assange to Sweden. (For issue of the Silha Bulletin, and “Qualifi ed Center at 612-625-3421 or silha@umn. more on the U.S. government’s pursuit Privilege for War Correspondents edu. – ELAINE HARGROVE of WikiLeaks in response to its release Recognized by ICTY” in the Winter 2003 SILHA CENTER STAFF of classifi ed government documents, see issue.) “Judges Rebuke Government on Leak – PATRICK FILE SILHA BULLETIN EDITOR

Leaks, continued from page 11 “an expectation of privacy that society testify before a grand jury in Alexandria, expert at the University of California San considers reasonable.” (For more on the Va., that is investigating the possibility Diego. Greenwald reported that at least WikiLeaks investigation case see “Open of prosecuting WikiLeaks itself or its some of those subpoenaed had vowed Government Advocates Criticize Obama’s principals, including founder Julian not to cooperate with the grand jury. Prosecution of Leakers” in the Winter/ Assange. The New York Times’ June 17 In March 2011, a federal judge upheld Spring 2011 issue of the Silha Bulletin. story called the grand jury investigation an order demanding the disclosure of Mark Stephens, the 2011 Silha Lecturer, “a rare effort to prosecute those who account information of three Twitter has worked as an attorney for Assange; publish secrets, rather than those who users with ties to WikiLeaks, fi nding that his lecture is titled “Free Speech and the leak them.” Greenwald reported that the users lacked standing to challenge Digital Challenge Around the Globe: A those subpoenaed include David House, the order, the order was valid because Conversation with Mark Stephens.” See a researcher at the Massachusetts it was “relevant and material to a “Silha Lecture Features Mark Stephens, Institute of Technology and founder of legitimate law enforcement inquiry,” and International Free Expression Advocate” the Bradley Manning Support Network; did not violate the Fourth Amendment on the top of this page of the Silha Manning’s ex-boyfriend Tyler Watkins; bar on unreasonable search and Bulletin.) and Nadia Heninger, a cryptography seizure because it did not infringe on – PATRICK FILE SILHA BULLETIN EDITOR

12 U.S. Supreme Court Strikes Down Ban on Violent Video Game Sales to Minors for the Northern District of California The legitimate power to protect children California Law Violated and the 9th Circuit Court of Appeals from harm may not be used to bar First Amendment ruled that the law violated the First protected material “solely to protect Amendment. (Attorney Paul Smith, the young from ideas or images that a n June 27, 2011, the who represented the video game trade legislative body thinks unsuitable for Supreme Court of the groups before the U.S. Supreme Court, them,” Scalia wrote. United States struck discussed the case and his argument in The court rejected California’s down a California law the 2010 Silha Lecture. For more on his arguments analogizing its statute to that prohibited the sale or lecture and more background on the Ginsberg’s permissible ban on selling Orental of violent video games to minors, case, see “U.S. Supreme Court Weighs pornography to children, asserting an declaring video games to be protected California’s Ban on Violent Video Game absence of any longstanding tradition speech under the First Amendment and Sales,” in the Fall 2010 issue of the Silha of restricting children’s access to fi nding the law Bulletin.) violent literature. Scalia recounted a SUPREME itself incapable The justices voted 7 to 2 to uphold list of violent literary works commonly COURT NEWS of satisfying the the 9th Circuit’s decision that the law accepted as mainstays of school “strict scrutiny” violated the First Amendment. Brown v. curricula. “Grimm’s Fairy Tales, for required to restrict protected speech. Electronic Merchants Association, 131 example, are grim indeed,” he wrote. The law at issue, California Civil S. Ct. 2729, 2011 U.S. LEXIS 4802 (U.S. Responding to California’s argument Code § 1746, was sponsored by June 27, 2011) that the level of interactivity enabled California State Senator Leland Yee The majority opinion by Justice by video games renders the medium (D-San Francisco) and passed the Antonin Scalia established at the wholly unique, Scalia quoted 7th Circuit California State Legislature in 2005. outset that video games qualify for Judge Richard Posner’s majority opinion The law bans the sale of “violent video First Amendment protection. They in American Amusement Machine games” to those under the age of 18 “communicate ideas — and even social Assn. v. Kendrick, 244 F.3d 572 (7th and mandates conspicuous labeling messages — through many familiar Cir. 2001) declaring that the difference beyond the self-regulatory system literary devices ... and through features between literature and video games is already in place and implemented by the distinctive to the medium.” Scalia merely one of degree. “Literature when Entertainment Software Rating Board wrote that California was “trying to it is successful draws the reader into (ESRB). The act contains a two-part make violent-speech regulation look the story, makes him identify with the test classifying games as violent: those like obscenity regulation,” invoking characters ... to experience their joys and “in which the range of options available precedent barring legislative creation of sufferings as the reader’s own,” Posner to a player includes killing, maiming, new categories of unprotected speech. wrote. dismembering, or sexually assaulting The majority found guidance in its Because the law imposed an image of a human being” and which decision in United States v. Stevens, 130 restrictions on what the court deemed “a reasonable person, considering the S. Ct. 1577 (2010), a case in which the protected speech, California needed to game as a whole, would fi nd appeals to court declared a statute criminalizing demonstrate that it was drafted to pass a deviant or morbid interest of minors the creation, sale, or possession of “strict scrutiny,” a standard requiring ... [is] patently offensive to prevailing depictions of violence against animals that the legislation be “justifi ed by a standards in the community as to what unconstitutional. In his majority opinion compelling government interest” and is suitable for minors ... [and] causes in Stevens,Chief Justice John Roberts “narrowly drawn to serve that interest.” the game, as a whole, to lack serious wrote that the Supreme Court does not In addressing whether the law was literary, artistic, political, or scientifi c have “a freewheeling authority to declare justifi ed by a compelling interest, the value for minors.” The defi nition mimics new categories of speech outside the court rejected California’s argument the rule of law announced by the U.S. scope of the First Amendment.” (For that aiding of parental authority Supreme Court in Ginsberg v. New York, more on the Stevens case, see “Supreme constituted such an interest. The court 390 U.S. 629 (1968) a case which upheld Court Strikes Down Law Banning observed that the ESRB voluntary a New York statute prohibiting the Depictions of Animal Cruelty, Citing ratings system, which assigns an age- sale of pornography to minors, but the ‘Alarming Breadth’ of Statute,” in the specifi c rating to every video game sold California law targets works appealing Winter/Spring 2010 issue of the Silha at a retail outlet, was successful in its “to a deviant or morbid interest of Bulletin.) efforts to curb the renting or selling of minors” rather than “prurient interests.” Scalia also recognized the adults-only games to minors. Citing a Trade groups representing video game considerable First Amendment 2009 FTC report to Congress fi nding and software companies challenged the protections afforded to minors and that because of this system “the video law on constitutional grounds, resulting wrote that the government may not bar game industry outpaces the movie and in a preliminary injunction on the law’s distribution of protected materials to music industries” in “restricting target- enforcement. Both the District Court them except in narrow circumstances. Video Games, continued on page 14 13 Video Games, continued from page 13 marketing of mature-rated products recognizing that not all parents are litany of puritan child-rearing practices to children; clearly and prominently concerned about their.S. children’s SUPREME COURT dating to the colonial era, concluding disclosing rating information; and consumption of violentSTRIKES materials. DOWN Rather BAN that “the Framers could not possibly restricting children’s access to mature- than being narrowly tailoredON VIOLENT to “assist VIDEO have understood ‘the freedom of speech’ rated products at retail,” regarded the parents,” the court saidGAME the law’s SALES ultimate TO to include an unqualifi ed right to speak California law’s contributions to the effect was to “supportMINORS ... what the state to minors.” preexisting system as comparatively thinks parentsU ought to want.” Breyer disagreed with the majority’s modest. The majority thus declined Justice Samuel A. Alito Jr. wrote a conclusion that the California law was to fi nd that California had shown the concurring opinion, which was joined unconstitutionally vague and unable compelling state interest required to pass by Chief Justice John Roberts. Alito said to survive strict scrutiny, arguing that strict scrutiny. that the statute was unconstitutionally the terms employed by the statute such Scalia wrote that the law was also not vague, thus failing to provide the fair as “kill,” “maim,” and “dismember” tailored to meet California’s ostensible notice required by the Constitution for were suffi ciently narrow to give a clear government interest. Following the laws to be considered valid. Alito wrote indication of the material they covered, state’s admission that it could not show and questioning a causal link between violent video Justice Scalia’s majority opinion quoted the merits of the games and harm to minors, the court majority’s distinction found that the studies the state offered from the court’s 2010 decision in between photographs as support for the law merely showed a U.S. v. Stevens where the court said of nudity and correlation between violent video games it does not have “a freewheeling depictions of and violent behavior in children, not authority to declare new categories of extreme violence. that the games caused violent behavior. He regarded the Further, the court pointed to testimony speech outside the scope of the First law’s restrictions on by the author of a study that California Amendment.” speech as modest relied upon to support § 1746 who said and justifi ed by a that video games’ effects on children’s compelling interest, aggression were indistinguishable from citing scientifi c data effects produced by exposure to violence that the lack of a history of restricting illustrating the effect of violent video on television. As a result, the court found violent expression could lead to games on children. the law to be “wildly underinclusive disagreement about which depictions Members of the video game industry when judged against its asserted excite “deviant” or “morbid” impulses, were enthusiastic about the court’s justifi cation” because it targeted only and that the California legislature relied decision. “I think that the Supreme Court the video game industry while excluding on undefi ned societal or community decision today really put the kibosh similar content available on other media. standards to ascertain the meaning of on this type of legislation where you The court also found the law to be those terms. But Alito also criticized the have an outright restriction on minor’s underinclusive because § 1764.1(c) majority’s First Amendment analysis. access to video games based on their stated that the law did not apply Disagreeing with the contention that violent content,” said Sean Bersell, “if the violent video game is sold Stevens controlled the case, he said Vice President of Public Affairs for the or rented to a minor by the minor’s he doubted the decision that a law Entertainment Merchants Association, in parent, grandparent, aunt, uncle, or purporting to solely limit minors’ access an interview with PC World Magazine. legal guardian.” The court regarded to violent video games needed to satisfy Cheryl Olson, a public health California’s purported solution as strict scrutiny. Alito also expressed researcher specializing in children and ineffi cient considering the supposed reluctance to regard video games as video games, wrote in a The New York dangers of the medium. “The California analogous to literature. Calling the Times op-ed that the California law made Legislature is perfectly willing to leave majority’s classifi cation “premature,” assumptions about the effect of violent this dangerous, mind-altering material he warned of the possibility of “games video games on children in order to draft in the hands of children so long as one that allow troubled teens to experience policy solutions. “If we want to mitigate parent (or even an aunt or uncle) says in an extraordinarily personal and vivid risks of harm to our children (or the risk it’s OK. And there are not even any way what it would be like to carry out that our children will harm others), we requirements as to how this parental or unspeakable acts of violence.” need research on the specifi c effects avuncular relationship is to be verifi ed; Justices Clarence Thomas and of the most commonly played violent apparently the child’s or putative Stephen Breyer wrote separate games, and of playing violent games in parent’s, or aunt’s, or uncle’s say-so dissenting opinions. Thomas approached social groups,” she wrote. suffi ces,” Scalia wrote. “That is not how the case from a characteristically Supporters of the annulled legislation, one addresses a serious social problem.” originalist vantage point, seeking however, said they remained undeterred In contrast to its insuffi cient evidence that the statute would comport by the court’s ruling. Common Sense protections, the court judged the with the “original public understanding” Media (CSM), a non-profi t group devoted law’s intended reach as overinclusive, of the First Amendment. He recited a to fostering parental accountability Video Games, continued on page 15 14 U.S. Supreme Court Invalidates Vermont Prescription Confi dentiality Law Dissenters Argued Court private health care sector … through the largest publishers of information, promotion of less costly drugs” and to research, and analysis for the health Should Apply Commercial “ensur[e] prescribers receive unbiased care and pharmaceutical industries.” Speech Doctrine Rather information.” The legislation was Pharmaceutical Research and Than Strict Scrutiny proposed in reaction to a practice called Manufacturers of America, a drug “detailing,” whereby pharmaceutical industry trade group, joined IMS, SDI, Analysis companies use prescription data to and Source as a party to the suit. In n June 23, 2011 the U.S. target doctors with samples of drugs April 2009, the U.S. District Court for the Supreme Court struck and medical studies that support the District of Vermont upheld the law. IMS down a Vermont law advantages of prescription medications. appealed to the U.S. Court of Appeals restricting the sale, Knowing a doctor’s prescribing habits for the 2nd Circuit. In November 2010, disclosure, or use of helps salespersons become more the 2nd Circuit reversed and remanded Opharmacy records that reveal the effective in tailoring their sales practices, the District Court’s decision and held prescribing practices of physicians, the court’s opinion said. In a July 3 the Vermont law violated the First ruling that it column in the Bennington (Vt.) Banner, Amendment by burdening the speech SUPREME violated the First Vermont Governor Peter Shumlin, a of pharmaceutical marketers and data COURT NEWS Amendment by member of the legislature at the time miners without an adequate justifi cation. imposing content- the law was passed, said the tactics The State of Vermont asked the U.S. and speaker-based burdens on protected pharmaceutical companies use to market Supreme Court in December 2010 to expression. their drugs work so well that doctors in review the 2nd Circuit decision, and “The choice between the dangers of Vermont “were increasingly prescribing the Supreme Court agreed, hearing oral suppressing information, and the dangers expensive brand-name drugs instead of arguments on April 26, 2011. of its misuse if it is freely available is cheaper, and just as effective, generic First Amendment advocates including one that the First Amendment makes drugs.” The results, Shumlin said, are The Associated Press and the Reporters for us,” Justice Anthony Kennedy wrote, higher insurance premiums and an added Committee for Freedom of the Press on behalf of a 6 to 3 majority. “The State problem to “out-of-control” health care joined other media companies and may not burden the speech of others spending. Legislatures in Maine and New press freedom groups in fi ling an amici in order to tilt the public debate in a Hampshire passed similar laws in an curiae brief urging the court to strike preferred direction.” Sorrell v. IMS attempt to control information pertaining down the law. The brief argued that Health Inc., 131 S. Ct. 2653 (June 23, to brand-name pharmaceuticals, upholding the law would allow Vermont 2011) according to a June 23 Associated Press and other states to pass laws that would The case arose after the Vermont (AP) report. “severely impair or destroy the incentive General Assembly passed Vermont’s In August 2007, IMS Health, SDI to gather and publish” data that can be Prescription Confi dentiality Law, 18 Health, and Source Healthcare Analytics used to inform “discussion of undeniably V.S.A. § 4631 in June 2007. The law fi led a lawsuit in United States District consequential health care issues.” The was meant to block pharmaceutical Court for the District of Vermont brief also expressed concern that a ruling manufacturers and marketers from claiming the law violated their First in favor of Vermont “could sanction selling or using patients’ prescription Amendment right to communicate unprecedented limitations on access data for marketing purposes. Among accurate health data to third parties to a broad range of information by the reasons the Vermont General for the purposes of “marketing or publishers, journalists and the public.” Assembly gave for passing the law was promoting a prescription drug.” The In its opinion in Sorrell, the Supreme to protect “the privacy of prescribers … three companies identifi ed themselves Court affi rmed the 2nd Circuit ruling, and ensure costs are contained in the in court fi lings as “among the world’s Vermont Law, continued on page 16

Video Games, continued from page 14 for children’s media choices, fi led an sense solution in the very near future.” Senator Yee, who sponsored the law, amicus brief supporting California The Parents Television Council, a similar said he would reintroduce it in a form in the Supreme Court case. In a press nonprofi t devoted to “responsible that would pass constitutional scrutiny, statement released shortly after the entertainment,” denounced the result according to a June 27 Associated Press decision, CSM CEO and Founder James in a press release issued the same day report. “It’s disappointing the court didn’t Steyer wrote that “this is a sanity issue, as the decision by writing that the court understand just how violent these games not a censorship issue ... we look “replaces the authority of parents with are,” Yee said. forward to working with national and the economic interests of the video game – MIKEL J. SPORER state policymakers on another common- industry.” SILHA RESEARCH ASSISTANT

15 Vermont Law, continued from page 15 have addressed confi dentiality through commercial enterprise,” Breyer wrote. agreeing with its analysis that the a “more coherent policy” by allowing “The First Amendment does not require Vermont legislature’s rationale did not the information’s sale or disclosure in courts to apply a special ‘heightened’ justify the restrictions the law placed only a few narrow and well-justifi ed standard of review when reviewing such on the First Amendment rights of circumstances. “Instead, Vermont made an effort. And, in any event, the statute pharmaceutical companies to distribute prescriber-identifying information meets the First Amendment standard data for marketing purposes. Because the available to an almost limitless audience. this court has previously applied when court held that the marketing practices The explicit structure of the statute the government seeks to regulate are a form of speech, it subjected the allows the information to be studied commercial speech.” Breyer wrote that Vermont law to heightened constitutional and used by all but a narrow class of the Vermont statute survived the Central scrutiny because it imposed content- and disfavored speakers,” wrote Kennedy. Hudson “intermediate” commercial speaker-based burdens on protected Because of the information’s widespread speech standard, along with other expression. “The law fi rst forbids sale availability and potential uses, the court more limited “economic regulation” subject to exceptions based in large part said the state’s asserted interest in tests. The Central Hudson test asks (1) on the content of a purchaser’s speech. whether the speech It then bars pharmacies from disclosing “ The choice between the dangers at issue concerns the information when recipient speakers of suppressing information, and lawful activity and will use that information for marketing,” is not misleading (2) Kennedy wrote. “Finally, it prohibits the dangers of its misuse if it is whether the asserted pharmaceutical manufacturers from freely available is one that the First government interest using the information for marketing. Amendment makes for us.” is substantial; and if The statute thus disfavors marketing, so, (3) whether the i.e., speech with a particular content, regulation directly — Justice Anthony Kennedy as well as particular speakers, i.e., advances the interest U.S. Supreme Court detailers engaged in marketing on behalf asserted; and (4) Sorrell v. IMS Health Inc of pharmaceutical manufacturers.” In whether it is more practical operation, Kennedy wrote, extensive than “Vermont’s law ‘goes even beyond confi dentiality did not justify the burden necessary to serve that interest. Central mere content discrimination, to actual on protected expression. Vermont also Hudson Gas & Electric Corp. v. Public viewpoint discrimination,’” citing the argued that heightened constitutional Serv. Comm’n of New York., 447 U.S. court’s ruling in R.A.V. v. St. Paul, 505 scrutiny was unwarranted because the 557 (1980). Breyer wrote that Vermont U.S. 377 (1992). In R.A.V. the court held law regulated the sales, transfer, and use suffi ciently demonstrated that its statute content-based regulations that place of prescriber-identifying information, “meaningfully furthers substantial state “special prohibitions on those speakers” which is conduct, not speech. However, interests.” The majority’s ruling may who express disfavored views are the court declined to accept that have opened “a Pandora’s Box of First unconstitutional. Therefore, because of distinction, pointing to its decision in Amendment challenges to many ordinary the law’s content-specifi c restriction, the Bartnicki v. Vopper, 532 U.S. 514 (May regulatory practices,” Breyer wrote. court said heightened judicial scrutiny 21, 2001), when it held “the creation and Vermont Attorney General William was warranted, with Vermont having dissemination of information are speech Sorrell and other Vermont politicians the burden to justify the law by proving for First Amendment purposes.” (For expressed disappointment in the court’s it advanced a substantial government more on the Bartnicki decision, see decision. “We knew going in that this interest and that the measure was “U.S. Supreme Court Rules In Historic Supreme Court has frequently sided with designed to achieve that interest, which Bartnicki Case” in the Summer 2001 large corporations. Our challenge now the court ruled that it failed to do. issue of the Silha Bulletin.) Kennedy will be to continue to work to protect Vermont sought to meet the wrote that facts are often the beginning medical privacy and reduce health care heightened standard of judicial point for speech which is essential to costs without violating the Supreme scrutiny by arguing it had a substantial the advance of knowledge, so therefore Court’s ruling. This is a step back, but governmental interest in protecting there is a strong argument that the data not the end of the story,” Sorrell said in medical privacy, including physician in question are speech under the First an interview for a June 23 report in the confi dentiality, avoiding harassment, Amendment. Burlington (Vt.) Free Press. Sen. Patrick and maintaining the integrity of the Justice Stephen Breyer dissented, Leahy (D-Vt.) told the Free Press the doctor-patient relationship. The state joined by Justices Ruth Bader Ginsburg decision was “another example of this argued the law was specifi cally drawn to and Elena Kagan. Breyer argued that Court using the First Amendment as a address those concerns. The state also the majority wrongly applied the tool to bolster the rights of big business said the prescription data law is integral heightened level of scrutiny to the at the expense of individual Americans.” to achieving public policy objectives, Vermont statute and it should have been Sen. Bernie Sanders (I-Vt.) called the particularly improving public health and held constitutional. The law’s “effect on decision “an absurd ruling” and an reducing health care costs. The court expression is inextricably related to a invasion of his privacy and relationship disagreed. Kennedy said Vermont could lawful governmental effort to regulate Vermont Law, continued on page 17

16 State Shield Laws: New Jersey Denies Blogger’s Claim; Other States Expand and Extend Privilege n spring 2011, West Virginia defamation case against her, she claimed Media attorney Joel Kreizman welcomed passed the 40th shield law in the the shield law protected her right not to the court’s decision and is pleased the United States granting reporters a answer questions about her sources of defamation lawsuit against Hale can privilege to withhold the identity information. (See “Blogger Cannot Claim fi nally proceed. “We’ve been stuck on of confi dential sources, Hawaii New Jersey Shield Law,” in the Summer this issue for over two years. This case extendedI the shield law it passed in 2009 issue of the Silha Bulletin.) The normally would have gone to trial by 2008, and Arkansas June 7 judgment affi rmed and modifi ed now,” he said. Hale’s attorney, Jeffrey JOURNALIST’S legislators voted to an April 22, 2010 ruling by the Superior Pollock, told The Star-Ledger he will PRIVILEGE amend its existing Court of New Jersey, Appellate Division. ask the New Jersey Supreme Court to law to include Too Much Media LLC v. Hale, 20 A.3d reconsider its ruling that the standard television and Internet reporters. But 364 (N.J. 2011) it created will apply retroactively to the Supreme Court of New Jersey ruled Although the state Supreme Court Hale. The Heartland Institute, a Chicago- that its shield law does not extend to a held that the shield law did not apply to based policy research group, expressed blogger who posted negative comments Hale, its decision threw out portions of concern over the narrow scope of people about a software company. the appellate court decision requiring who qualify for protection under the those seeking shield law protections shield law. “Putting aside the wisdom New Jersey Shield Law Does Not to show that they follow professional of shield laws, they should not exist to Extend to Blogger journalistic standards or have traditional protect only certain classes of Americans The New Jersey Supreme Court media credentials. The Supreme a court defi nes as ‘journalists.’ Freedom unanimously held June 7 that the state Court held Hale did not qualify for of the press is not truly free if the legislature did not intend to provide protection because the law requires defi nition of ‘press’ is left up to the whim an absolute testimonial privilege persons invoking the shield to have of a judge,” said Jim Lakely, co-director in defamation cases to people who some connection to a publication that of the institute’s Center on the Digital posted comments on Internet message is similar to traditional media, whether Economy, in an interview with The Star- boards. The case arose after Shellee online or not. Chief Justice Stuart Rabner Ledger. Hale, a Washington state-based blogger, wrote in his unanimous opinion that the Bruce Rosen, a New Jersey media licensed private investigator, and “life shield law “language does not mean that lawyer, said in an interview for a June 7 coach,” made statements in an Internet a newsperson must be employed as a Reporters Committee for Freedom of the forum accusing software company Too journalist for a traditional newspaper Press (RCFP) story that a positive aspect Much Media and two of its offi cers or have a direct tie to an established of the ruling is that it should be easier for of engaging in criminal behavior, magazine. But he or she must have some traditional and online journalists to show including making physical threats and nexus, relationship, or connection to a court that the shield law applies to profi ting from a security breach that ‘news media’ as that term is defi ned.” them. “If you collect news and it’s clear jeopardized the privacy of subscribers The court found Hale did not have that you’re connected to a news organization, to pornography websites. When the qualifying relationship. you’ll be fi ne,” Rosen said, but “if company deposed Hale as part of its According to a June 8 report in the Shield Laws, continued on page 18 Newark, N.J. Star-Ledger, Too Much

Vermont Law, continued from page 16 with his doctor, the Free Press story Bulletin.) “I am proud to stand with interaction. For that information to said. our unifi ed congressional delegation in be subsequently sold and repackaged In his July 3 column in the opposition to the court’s ruling,” Shumlin as marketing ammunition for use Bennington Banner, Shumlin expressed said. to infl uence my prescribing habits disappointment in the ruling, but also Dr. Norman Ward, president of the is distasteful to me and to many called it “hardly surprising.” “This is the Vermont Medical Society, said the colleagues,” Ward told NPR. same court that opened the door in the court seems “to be oblivious to the Randy Frankel, an IMS vice president, Citizens United case for corporations realities of practicing medicine in a told the AP for its June 23 story that to manipulate our elections; the same world where drug salesmen target prescription data is used in health care court that has consistently sided with doctors, and doctors have neither the areas beyond marketing. Frankel praised corporate interests against consumers time nor the quick ability to check their the decision “as a great benefi t in terms in recent years.” (For more on Citizens claims,” during a June 23 broadcast of improving patient care.” United v. FEC, see “Supreme Court of National Public Radio’s (NPR) “All – HOLLY MILLER Strikes Down Campaign Finance Things Considered.” “When I write a SILHA RESEARCH ASSISTANT Regulation for Corporations” in the prescription for a patient based on my Winter/Spring 2010 issue of the Silha best medical judgment, that is a private

17 Shield Laws, continued from page 17 you’re not connected with any news unjust incarceration.” test, but the House Judiciary Committee organization and you’re venting online, The statute defi nes a reporter as “a ultimately omitted that language. you may not have those protections.” person who regularly gathers, prepares, Media and First Amendment Rosen told the RCFP that the court drew collects, photographs, records, writes, advocates supported the law, but not a reasonable line between a reporter edits, reports, or publishes news or without some skepticism. In an Editor’s and someone commenting on a subject information that concerns matters of Log blog post on The Parkersburg online. “For the general public, it makes public interest for dissemination to the (W. Va.) News and Sentinel website, it harder for individual bloggers to have public for a substantial portion of the News and Sentinel Executive Editor automatic protection,” Rosen said. person’s livelihood, or a supervisor, Jim Smith wrote, “the bottom line is “They’re going to have to pass the test.” or employer of that person in that with a strong shield law, the public gets Jonathan Peters, a lawyer and fellow capacity.” The law also extends to information that may be vital to it and at the Missouri School of Journalism, student journalists, “provided that its understanding of events of the day wrote in a June 10 post on the blog [the] student reporter at an accredited or government-related activities.” But MediaShift that New Jersey’s shield law educational institution … meets all of the Smith also expressed concern: “It will is among the broadest in the country. be interesting to see But Peters cautioned that the opinion “The bottom line is with a strong how effective the may be “setting out principles that law is in practice. might handicap the news media of shield law, the public gets information Unfortunately, there the future” because “as [online news] that may be vital to it and its always seems to be outlets evolve, perhaps as they become understanding of events of the day or a broad difference more collaborative and interactive, they government-related activities.” between the intent might not be similar anymore to the and spirit of a law traditional news media, insofar as that and how it is actually term refers to ‘newspapers, magazines, — Jim Smith followed.” press associations, news agencies, wire Executive Editor Student Press services, radio, [or] television.’” The Parkersburg (W. Va.) News and Sentinel Law Center (SPLC) In an interview with The Star-Ledger, Director Frank Rosen, representing the New Jersey requirements of this defi nition, except LoMonte praised the student journalist Press Association, said this ruling is just that his or her reporting may not provide provision of the bill in a blog post on the beginning of a conversation about a portion of his or her livelihood.” the organization’s website on March the state’s shield law. “This conversation The West Virginia legislation also 14, saying the bill would make West is going to go on for years, but it’s a good mandates that the section not be read Virginia’s shield law among the strongest place to start,” he said. “to limit any existing constitutional in the nation for student journalists. In protections afforded any person under a March 10 column in the Charleston, West Virginia Enacts 40th Shield the United States or West Virginia W.Va. Daily Mail, two days before the Law Constitutions,” a provision which, in an law passed, LoMonte encouraged the On March 12, 2011 the West Virginia April 6, 2011 report, the RCFP called West Virginia Legislature to recognize state legislature enacted H.B. 2159, “signifi cant … in light of [West Virginia] student journalists as it considered adding §57-3-10, “Reporters’ Privilege,” courts’ general acceptance of the state the measure. “With the ranks of full- to the Code of West Virginia. The statute, Supreme Court’s articulation of a time salaried journalists shrinking, which was signed by Acting Gov. Earl qualifi ed reporter’s privilege in Hudok v. unpaid college students increasingly Ray Tomblin in April and took effect Henry.” In Hudok, 389 S.E.2d 188 (W.Va. are providing the news coverage that June 10, extends a qualifi ed privilege 1989), reporters claimed a privilege communities rely on to stay informed. with few limitations to reporters under the free press clause of the First Student journalists assume all of the seeking to protect confi dential sources Amendment and under Article II, Section same risks and responsibilities that of information, supplementing existing 7 of the West Virginia Constitution to professionals do, and they should be state constitutional protection. decline to answer questions or to divulge entitled to all of the same protections,” Under the law, reporters cannot information obtained in the course of he wrote. be “compelled to testify in civil, newsgathering. The Supreme Court of The new shield law may be applied criminal, administrative, or grand jury Appeals of West Virginia held “disclosure for the fi rst time after the Supreme Court proceedings” without “the consent of of a reporter’s confi dential sources or of Appeals of West Virginia, the state’s the confi dential source.” Reporters also news-gathering materials may not be highest court, held that a trial judge cannot be compelled “to produce any compelled except upon a clear and erred in ordering a newspaper to reveal information or testimony that would specifi c showing that the information is the identities of anonymous sources and identify a confi dential source” without highly material and relevant, necessary documents in a defamation suit. Lincoln the consent of the source. The privilege or critical to the maintenance of the Journal v. Hustead, No. 35734, 2011 W. may be overcome, however, when the claim, and not obtainable from other Va. LEXIS 25 (W. Va. May 2, 2011) testimony “is necessary to prevent available sources.” The original draft In that case, The Lincoln (W. Va.) imminent death, serious bodily injury, or of the shield law contained the Hudok Journal and individual reporters 18 petitioned the Supreme Court of Appeals disclosure of “the source of information a newspaper, magazine, news agency, for a writ of prohibition to prevent Judge used as the basis for any article he or press association, wire service, or radio Jane Hustead from enforcing a Sept. 14, she may have written, published, or or television station or network. The 2010 order compelling them to reveal broadcast” to “any grand jury or to any law also protects digital operations sources and newsgathering materials. other authority” unless it can be “shown of those organizations and extends to Hustead’s order stemmed from a series that the article was written, published, or online journalists, like bloggers, who of articles in The Lincoln Journal that broadcast in bad faith, with malice, and regularly report on information of public alleged illegal campaign donations by not in the interest of public welfare.” interest. The privilege does not extend the owner of a rival newspaper and In an April 6 RCFP report, Philip to journalists who witness a crime or other individuals to local candidates Anderson, a media lawyer with Williams commit a crime. In 2009, a state district in 2008 primary elections. The reports & Anderson PLC in Little Rock, Ark., court judge ruled that the law exempted cited several anonymous sources and said the state’s original shield law was an independent documentary fi lmmaker Lincoln County Prosecuting Attorney introduced in 1936 and was amended from responding to subpoenas or William J. “Jackie” Stevens II. The stories in 1949 to include the new media of its being deposed in a lawsuit involving also referred to copies of the criminal time — radio. The bill was unanimously a property dispute. (See “Hawaiian complaints that had been submitted to approved in the House and Senate and, Shield Law Protects Independent the paper and to Stevens. The state’s pending no problems arising during Filmmaker” in the Fall 2009 issue of high court ruled May 2 that the lower the review of the session’s work, the the Silha Bulletin.) By contrast, in court “was required to separately identify amendment will take effect in fall 2011. January 2011 a panel of the 2nd Circuit each allegedly defamatory article with The amendment was introduced after U.S. Court of Appeals in New York specifi city, each source therein that the Michael Tilley, co-owner and editor of upheld a subpoena to a documentary plaintiffs sought through discovery, and The City Wire, an online publication, fi lmmaker, reasoning that he forfeited his thereupon conduct for each article a contacted Sen. Jake Files (R-Fort journalist’s privilege by failing to retain separate Hudok analysis,” rather than Smith), asking whether the state shield journalistic independence. (See “Second analyze them all together. law should be updated to include more Circuit Rationale for Denying Privilege Because the lower court review will modern media. Tilley told the RCFP to Filmmaker: Failure to Maintain be conducted after the new shield law is that “it never hurts to take the grey area Independence” in the Winter/Spring 2011 in place, it may benefi t the newspaper. out of the law.” In a March 29 story on Bulletin.) David Barnette, The Lincoln Journal’s the amended shield law, The City Wire Some members of the press and lawyer and general counsel for the West described its involvement: “Prior to the advocates questioned why the legislature Virginia Broadcasters Association, told beginning of the 88th Arkansas General did not make the measure permanent. the RCFP for a May 9 story that when Assembly, The City Wire sent a formal In a June 29 interview with the Silha the case undergoes further review, the request to Files asking him to consider Bulletin, media lawyer Jeff Portnoy of newspaper may avoid the Hudok analysis amending the shield law. Owners of The the Hawaii law fi rm Cades Shutte said if the court applies the new shield law, City Wire believe the law was vague the extension rather than permanent although the law allows the reviewing with respect to online web publications, enactment of the law seemed to be judge to consider the Hudok factors if he especially those that are ‘pure’ in the based on “some intramural issues or she chooses. By applying the Hudok sense that they are not a subsidiary or having nothing to do with the media, test, Barnette said, “The court can go direct operation of a traditional news but between the legislature and the beyond what the Legislature can do.” outlet.” judiciary about who should deal with rules of evidence.” The RCFP reported Arkansas Updates Shield Law Hawaii Extends Shield Law for Two April 8 that some members of the On March 30, 2011, the Arkansas More Years Judiciary’s Standing Committee on General Assembly approved a measure On April 28, the Hawaii Legislature Rules of Evidence want to re-examine that included new forms of media in passed a two-year extension of that the law after they gather information its existing shield protections. S.B. 772 state’s shield law. Hawaii became the about other states’ shield laws and amends Arkansas Code §16-85-510, 36th state to enact a shield law in 2008 the law’s effect on the media and how changing the current title of the law from with H.B. 2557, which added §621, cases are handled. Portnoy told the “Disclosure of newspaper, periodical, “Limitation on compellable testimony Honolulu Star-Advertiser for an April or radio station sources” to “Disclosure from journalists and newscasters; 7 story that the review should have of media sources.” The amendment also exceptions” to the Hawaii Revised been requested when the bill passed adds “television station” and “Internet Statutes. (See “Hawaii Enacts 36th State in 2008. “The judiciary considers it a news source” to its list of protected Shield Law,” in the Summer 2008 issue matter of evidence,” he said. “Obviously entities, which already included “any of the Silha Bulletin.) The law will now we disagree. They had three years to editor, reporter, or other writer for any provide a shield for Hawaiian journalists do it.” Senate Judiciary Committee newspaper, periodical, or radio station,” until July 2013. Chairman Clayton Hee (D-Kauku- or the manager or owner of those The law provides a qualifi ed Kaneohe) told the Star-Advertiser the organizations. The Arkansas shield law privilege for journalists or newscasters protects the listed media entities from currently or previously associated with Shield Laws, continued on page 20 19 States Consider Bans on Undercover Recording at Agricultural Operations prevent contamination of agricultural shelter, a boarding kennel, a commercial Iowa, Florida, and facilities. kennel, a pet shop, or a pound.” Minnesota Bills Could On March 17, 2011 the Iowa House Under the Iowa bill, a person would Hinder Investigative of Representatives passed H.B. 589, also be guilty of “animal facility fraud” a broad bill that proposed blocking if he or she willfully obtained access to Reporting the recording of images or sounds at an animal facility or a crop operation uring their 2011 sessions, agricultural facilities without owner through “false pretenses for the purpose state legislatures in Iowa, consent. However, the Iowa Senate did of committing an act not authorized by Minnesota, and Florida not pass the bill before the legislative the owner.” This would include making considered bills that would session ended. Under the bill, a person “a false statement or representation as criminalize recording would be guilty of “animal interference” part of an application to be employed.” undercoverD videos of agricultural if he or she produced “a record which Similar legislation with nearly operations, drawing First Amendment reproduces an image or sound occurring identical language was introduced in concerns from at the animal facility,” possesses or Florida and Minnesota in March 2011 animal rights distributes “a record which produces and April 2011, respectively. The Florida ACCESS activist groups an image or sound occurring at the and Minnesota bills would also ban and media who animal facility,” or entered “onto the covert recording of farming practices, argued the bills could outlaw journalistic animal facility, or remains at the animal distributing those recordings, and punish investigations that expose unsafe and facility, if the person has notice that individuals who took jobs at farms with unsanitary farming conditions. the facility is not open to the public.” the purpose of gaining access to record For some years, the agricultural The bill also applies to “crop operation the facility’s practices. industry has argued that videos shot and interference,” using identical language The Florida bill, S.B. 1246, differed released by animal rights groups present to the “animal interference” provisions, only slightly from the Iowa and a distorted view of their operations but replacing the word “animal facility” Minnesota legislation by explicitly listing and unfairly represent meat production with “crop operation.” Violation of the photography separately from “images” practices. Criminalizing the production law as a fi rst offense would be charged and recordings. The Iowa and Minnesota of the videos, industry offi cials say, as an aggravated misdemeanor, further bills had a broader defi nition of “image” would deter animal rights organizations offenses a Class D felony. The proposed that could also include still photography. from distributing misleading videos and law would not apply “to an animal The Florida bill passed the Senate, but Undercover, continued on page 21

Shield Laws, continued from page 19 committee’s concerns remained unclear “optimistic” there will be a permanent that killed seven people. Portnoy, who after the hearing. “I’m sure that will be measure in the future. is Zimmerman’s attorney, told the clear after the report comes out,” Hee The Star-Advertiser report said the Bulletin June 29 that the subpoena has said. Committee member Les Ihara Society of Professional Journalists, been dormant for more than a year, (D-Kahala-Palolo) said his vote for the The Associated Press, and several but hypothetically could “raise its head extension of the shield law was to keep Hawaii news organizations representing again” after the pending litigation that the measure alive, according to the Star- broadcast, print, and online media gave rise to the subpoena was approved Advertiser. “I would support making submitted testimony to the Senate to move forward by a Hawaii appellate it permanent,” he said, “it’s just better committee supporting making the law court. (For more on the Zimmerman to move it forward and try to see what permanent. “If we want investigative case, see “Hawaii Enacts 36th State the judiciary has to say.” Portnoy said reporting in Hawaii and want people Shield Law,” in the Summer 2008 issue of he met with the judiciary committee in to feel comfortable that they can come the Silha Bulletin, and “Reporter Shield early June and said that there “seems to forward with information, we need Law Update” in the Winter 2008 issue.) be a general consensus that some type this law,” said Malia Zimmerman of Because the Hawaii shield law will of journalistic privilege is appropriate.” Hawaiireporter.com in an interview for expire in 2013, the Rules of Evidence “But you never know when you put the story. Committee will have to recommend a committee of lawyers and judges Since 2007, Zimmerman has been whether to retain the statute, codify it, together what mischief they will cause,” fi ghting a subpoena of her newsgathering or repeal it before the start of the 2012 he said. Portnoy said he is happy with materials used in a Hawaiireporter. legislative session. the two year extension for now, and is com story about a Kauai dam failure – HOLLY MILLER SILHA RESEARCH ASSISTANT

20 Undercover, continued from page 20 died in the House after no vote was anything — immediately like they’re of the Supreme Court’s ruling last year taken before the end of the session. The required to.” Shipley said activists “hang in United States v. Stevens.” In Stevens, Minnesota legislation, H.B. 1368, did on to that information for publicity the court held that a federal statute not pass the House or Senate before the purposes.” criminalizing the commercial creation, legislative session ended. Minnesota Sen. Doug Magnus sale, or possession of depictions Though the bills died at the end of (R-Slayton) told the Minneapolis Star of animal cruelty was substantially their states’ legislative sessions, they are Tribune in April 2011 that the Minnesota overbroad, striking it down on the likely to be reintroduced. Jacksonville, bill was aimed at preventing harassment basis that it was facially invalid under Fla. television network First Coast and sabotage of facility operations. the First Amendment. United States v. News reported that Sen. Jim Norman “These people who go undercover Stevens, 130 S.Ct. 1577 (Oct. 6, 2009) (R-Pasco), the author of the Florida aren’t being truthful about what they’re (See “Supreme Court Strikes Down Law bill, said he intends to fi le the bill again doing,” he said. According to a March Banning Depictions of Animal Cruelty, next year. The Associated Press (AP) 15 report in The Des Moines Register, Citing ‘Alarming Breadth’ of Statute” in reported on June 13 that the Iowa Iowa lawmakers have claimed activists the Winter/Spring 2010 issue of the Silha measure “initially had plenty of support, Bulletin.) refl ecting the importance agriculture “[The bills are] an attempt to According to The holds in a state that leads the nation in criminalize whistle-blowing at a time New York Times, production of corn, soybeans, hogs and under the bills, eggs. Although most Iowa residents live when we need more transparency taking a picture of in cities, agriculture remains important about animal welfare, not less. It goes any agricultural [to] them and is a powerful force in the after people with a really broad brush.” facility or crop Legislature.” operation, even while Lawmakers, bill proponents, and standing on public — Howard Goldman industry offi cials cited concerns about property, would be Minnesota Director contamination and negative publicity illegal. Although Humane Society of the United States as their central reasons for proposing much of the media the laws. On May 5, 2011, The New York attention focused on Times reported that proponents of from People for the Ethical Treatment the bills’ provisions governing animal the bills said undercover investigators of Animals (PETA) shot a video in 2008 facilities, at least one media advocacy could bring disease into facilities. but did not turn it in to law enforcement group raised concerns about the breadth “There’s viruses [sic] that can put these for six weeks after it was recorded. The of the proposed legislation. The National producers out of business, whether it’s video showed employees of a farm near Press Photographers Association (NPPA) cattle, hogs or poultry,” said Iowa Senate Bayard, Iowa abusing sows. In a March decried the broad nature of the Florida President John Kibbie (D-Emmetsburg), 17 interview with Des Moines TV station and Iowa bills in two blog posts on a supporter of the ban. KCCI Rep. Annette Sweeney (R-Alden), the Advocacy Committee section of More frequently, however, legislators the Iowa bill’s sponsor, alleged that some its website. In a March 18 post, NPPA and farming groups said they want undercover videos of animal facilities are Advocacy Chair Alicia Calzada wrote that to prevent fraudulent job seekers “staged.” States News Service reported the Iowa bill’s language “elevates editors from shooting videos that give unfair May 5 that PETA’s general counsel sent and news organizations to the status of perspectives and are used for publicity a letter to Sweeney asking her to “cease criminals if they publish, or even possess rather than reporting animal abuse to and desist from making defamatory undercover footage of farms, crops or authorities. The AP reported on March comments regarding PETA’s undercover animal facilities.” Calzada wrote on 14, 2011 that bill proponents argued that investigation footage.” March 2, “we contacted the offi ces of people with concerns about abusive Meanwhile, animal rights advocates the author of the bill and NPPA Attorney practices should report them to the say the legislation unconstitutionally Mickey Osterreicher has received police and seek to prevent them through infringes on free speech and would assurances from staff members that other channels. The AP reported that have a chilling effect on whistleblowers the bill is being amended to specifi cally in 2009, a video shot at a Spencer, Iowa trying to bring attention to cases of relate to trespassers on private property.” chicken hatchery was released which animal cruelty, according to the April 9 Despite the assurances, Calzada wrote included footage of male chicks “being Star Tribune report. Howard Goldman, that criminalizing photography made her tossed into grinders,” but no complaints Minnesota director of the Humane “very uncomfortable.” were ever fi led about the hatchery. Society of the United States, called the On April 15, the Quad City Times of Tom Shipley, a lobbyist with the Iowa Iowa, Minnesota, and Florida bills “an Davenport, Iowa noted opponents’ First Cattlemen’s Association, told the AP “we attempt to criminalize whistle-blowing at Amendment argument that the Iowa believe [a new law] can help prosecute a time when we need more transparency legislation “would outlaw undercover people who, while they claim to have about animal welfare, not less. It goes journalistic investigations that seek to animals’ interests at heart, don’t really after people with a really broad brush.” expose potentially unsafe and unsanitary follow through and report the animal The New York Times reported May 5 conditions for animals, workers, abuse — if in fact there actually is that the bills, if passed, “could run afoul Undercover, continued on page 22 21 Undercover, continued from page 21 and consumers.” Iowa state senator Liberties Union of Iowa, told The New Paul McMasters, then-First Amendment Matthew McCoy (D-Des Moines) told York Times that the provision effectively ombudsman at The Freedom Forum, The New York Times that he introduced eliminated the possibility for extended argued that the “veggie libel laws” amendments to weaken or block the undercover operations and “constitutes could lead to a chilling effect on anyone bill because “he was worried that it a warrantless seizure of property.” The who wanted to speak out about food, would open Iowa to abuses that could second provision recommended striking including journalists and non-profi t jeopardize food quality and undermine all of the bill’s language and replacing organizations. the very agricultural interest supporting it with a change to the state’s trespass The “food libel laws” have not been the legislation.” McCoy said, “if they have law, The Times reported. Posing as a used often, but they gained notoriety nothing to hide and they are operating worker is often the way activist groups when Texas’ food disparagement law was ethically, they should have no fear.” In or journalists gain access to agricultural used in a case against The Oprah Winfrey an interview with National Public Radio facilities. Undercover videos shot by the Show in 1998. Texas feed yard owners (NPR) for its April 13 “Morning Edition” Humane Society of the United States claimed that Winfrey’s statement that program, McCoy said a bill that limits showed workers slamming chickens she would not eat a hamburger again for opportunities for industry oversight into metal bins and dead birds littering fear of getting mad cow disease caused “could set a dangerous precedent.” cages at the nation’s largest egg farms, a decrease in beef sales. The feed yard Rose Acre Farms Manager Andrew according to a Los Angeles Times article owners ultimately lost the case. Texas Kaldenberg told NPR during its April on April 8, 2010. The organization’s Beef Group v. Winfrey, 11 F. Supp. 2d 13 “Morning Edition” broadcast that efforts caught the attention of companies 858 (N.D. Tex. 1998) he welcomes reporters because his like Wendy’s, Sonic Corp., and the parent farms have nothing to hide. Rose Acre company of IHOP and Applebee’s, all of An Ethical Debate over Undercover Farms is one of Iowa’s largest chicken which shifted to using cage free eggs, the Journalism farms and egg producers. In February Los Angeles Times reported. Wal-Mart Although some courts have protected 2010, an undercover activist from the Stores, Inc., the world’s largest grocer, the news media’s ability to conduct Humane Society recorded footage at said in February 2010 that the eggs sold undercover investigations with hidden Rose Acre Farms of “chickens living in under its own label are now cage free. cameras, the practice has come under cramped cages and some dead birds In an AP report on June 13, Humane scrutiny. Media ethics experts have whose carcasses were left so long they’d Society spokeswoman Carol Rigelon cautioned excessive use of hidden been mummifi ed,” NPR reported. The said opponents of the bills were careful cameras. Bob Steele, a journalism Humane Society released the video to avoid being critical of agriculture as ethics professor at DePauw University, three months later. Kaldenberg said an industry. “What we’re trying to do is developed a set of guidelines for news the farm’s real problem is with activist expose things that might not otherwise organizations to use when considering organizations that are promoting “an be exposed and as a result make an undercover story, entitled “Deception/ agenda which is vehemently against how agriculture even better,” Rigelon said. Hidden Cameras Checklist: When the industry produces food” and people If the bans on undercover recording might it be appropriate to use these who misrepresent their true purposes at agricultural facilities pass state tactics?” The checklist, which Steele for getting hired. “Morning Edition” legislatures in the future, it would not developed while he was an ethics scholar reported that large chicken, hog, and be the fi rst time the agricultural industry at journalism think tank the Poynter cattle organizations said the pending has successfully lobbied politicians to Institute, says the information should Iowa legislation was mischaracterized, pass laws that protect the industry from be of “profound importance” and “vital and that it was not meant to prevent criticism of its food safety practices. In to public interest, such as revealing whistleblowing but rather to keep people the mid-1990s, 13 states enacted statutes failure at top levels, or it must prevent who misrepresent themselves from that made it easier for producers to sue profound harm to individuals.” He also getting hired. critics of their food products for libel. cautioned that deception or hidden The New York Times reported on These “food libel laws” or “veggie libel cameras not be used unless “all other May 5 that Iowa legislators answered laws” authorized food producers to alternatives for obtaining the same whistleblowing concerns with two sue individuals who disparaged a food information have been exhausted,” amendments after the state’s attorney product with information unsupported among other factors. Steele’s checklist is general expressed problems with by a reliable source. Disparagement in available online at http://www.poynter. the initial bill. The fi rst provision these types of situations is generally org/uncategorized/744/deceptionhidden- would require a person to turn over defi ned as giving false information cameras-checklist. all recordings of suspected criminal claiming that an agricultural product is activity at agricultural facilities to not safe for human consumption. authorities within 72 hours of their In a commentary for Legal Times in – HOLLY MILLER occurrence. Anna Dey, a lobbyist and 1998, Ronald Collins, then-director of SILHA RESEARCH ASSISTANT staff attorney for the American Civil the FoodSpeak Free Speech Project and

22 SPRIVACY INJUNCTIONS Social Media Challenge British Privacy Injunctions ocial media like Twitter are bloggers helped reveal that Trafi gura, information was reported through making the enforcement of an energy company, was behind the Twitter. Although British newspapers British privacy injunctions October 2009 gag order against The remained legally gagged, fans jeered nearly impossible, forcing Guardian. The newspaper cryptically at Giggs at matches, and Member of judges and lawmakers to reported October 12, 2009 that “today’s Parliament (MP) John Hemming, a Sgrapple with how to apply old rules to a published Commons order papers Liberal Democrat from Birmingham new era of media. contain a question to be answered by a Yardley, used parliamentary privilege Privacy injunctions are rooted in the minister later this week. The Guardian in late May to name Giggs and disclose United Kingdom’s Human Rights Act of is prevented from identifying the MP that he had obtained an injunction, 1998, which guarantees British citizens’ who has asked the question, what the The Washington Post reported June rights by incorporating the European question is, which minister might answer 11. (Parliamentary privilege is legal Convention on Human Rights (ECHR) it, or where the question is to be found.” immunity enjoyed by members of the into law, including the right to privacy The story was available online for just British legislature, protecting politicians under Article minutes before Internet users began from civil or criminal liability for actions INTERNATIONAL 8 and the right “tearing apart the gag,” The Guardian done or statements made related to their PRESS FREEDOM to freedom reported October 13, 2009. (For more work.) According to a May 23 Associated of expression on the incident, see “Social Media Sites Press (AP) report, Scotland’s Sunday under Article 10. Article 12 of the Assist Gagged British Newspaper,” in the Herald published a “thinly censored” Human Rights Act states that a Fall 2009 issue of the Silha Bulletin.) photo of Giggs on its front page on publication cannot be “restrain[ed] In a May 20, 2011 BBC “Q&A” report May 22. The newspaper blocked out … before trial unless the court is about super-injunctions, a tongue-in- Giggs’ eyes and wrote under the picture satisfi ed that the applicant is likely cheek example showed how the gag that “everyone knows” it depicted the to establish that publication should orders work in practice, drawing from athlete “accused of using courts to keep not be allowed.” Privacy injunction the real-life case of soccer star Ryan allegations of his sexual affair secret.” In applicants —frequently celebrities — Giggs: “Taking a hypothetical case, a an accompanying editorial, the Herald claim their individual right to privacy Premiership footballer asks the High called it “unsustainable” for newspapers will be violated if certain information Court to stop a kiss-and-tell story from not to be able to report on information is published about them and, in some appearing in next weekend’s papers, that was widely available online. “The cases, that mere public knowledge of the saying that he is a victim of wrongdoing issue is one of freedom of information existence of the injunction would also and blackmail by the other party. If and of a growing argument in favor of violate their right to privacy. Accordingly the judge agrees to a super-injunction, more restrictive privacy laws,” the paper U.K. courts must struggle to balance the newspaper cannot report the said. the ECHR and Human Rights Act’s allegations — and it is also prevented The Washington Post story also said protections of both privacy and freedom from saying that the footballer went to Giggs was using the London court system of expression. court to gag the paper. If the newspaper to bring suits against the anonymous British courts have developed breaks the injunction, the editor could Twitter users who defi ed the court order two ways to stop the publication of be prosecuted for contempt of court.” and posted the information about his information about individuals who seek In an August 17 article in the Bureau affair. Although the details of the suits injunctions. The fi rst type of injunction of National Affairs (BNA) Electronic are unknown, a May 20 Bloomberg is called an “anonymised order,” which Commerce & Law Report, American report said Twitter and some of its users prohibits reporting private information media lawyer Robert Corn-Revere, were sued by an entity known as “CTB” or identifying the applicant, but does a partner of the fi rm Davis Wright in London, according to a court fi ling it not prohibit reporting the fact of the Tremaine in its Washington D.C. obtained. The story said the document order. The second type of injunction is offi ce, wrote this “somewhat obscure contained no other information about the known as a “super-injunction” because it phenomenon began to get signifi cant initials CTB, but that they were also used prohibits reporting even the existence of press attention in early 2011 when in a separate lawsuit involving an athlete the injunction. Publishing these details London-based tabloid newspapers who won an anonymity order banning could result in the publisher being held reported that privacy injunctions were the media from publishing stories about in contempt of court. being used increasingly to gag the his alleged affair. According to the According to a May 9, 2011 report press.” (Corn-Revere was the 2007 report, the suit was fi led on May 18 in the in Metro, a daily newspaper published Silha Lecturer. See “2007 Silha Lecture High Court in London as CTB v. Twitter by Associated Newspapers Ltd, the Focuses on Media Violence Regulation” Inc., Persons Unknown, High Court term “super-injunction” was coined in the Fall 2007 issue of the Silha of Justice (Queens Bench Division), by Guardian editor Alan Rusbridger, Bulletin.) HQ11X01814. James Quartermaine, a after the newspaper was banned from After Giggs won an injunction in media lawyer at the London fi rm Charles reporting information from an internal late April 2011 that barred London Russell, told Bloomberg that Twitter is report by an oil trader about the dumping tabloids from reporting on his alleged unlikely to cooperate and turn over the of toxic waste. Twitter users and extramarital affair, the banned Injunctions, continued on page 24 23 Injunctions, continued from page 23 names of its users involved in reporting an offi cial parliamentary inquiry on the and, at least normally, for very short the information, and speculated the suit topic. A May 26 commentary in The periods of time.” The committee said “is probably intended to deter people Economist contended that part of the the increase in number of anonymised from breaking injunctions on the Web.” problem is the lack of a formal privacy orders and super-injunctions had In an interview with BusinessWeek for law in the United Kingdom, but also raised concerns about whether all a June 20 report Quartermaine said, said the Human Rights Law of 1998 courts were handling the proceedings “it could get pretty political. But any “made things messier by enshrining two consistently and properly. Although the law that doesn’t get enforced quickly clashing principles: a strong defense of committee dealt only with procedural begins to look dodgy.” Matt Graves, freedom of speech, and a more qualifi ed issues and not any substantive legal a spokesman for Twitter, said in an right to the ‘respect of private life.’” issues, The Guardian said in a May emailed statement to BusinessWeek that According to The Economist, media 20 commentary that the committee’s Twitter does not comment on individual lawyer Mark Stephens of the fi rm Finers fi ndings and recommendations should users. “In keeping with our policy, we Stephens Innocent argued that tabloid not be “underestimated.” The Guardian review reports that accounts violate stories are forgotten quickly without characterized the factual report as the Twitter Rules and Twitter terms of an accompanying legal frenzy. “You cutting through some of the hysteria service,” Graves said. take it on the chin and it’s tomorrow’s surrounding super-injunctions, and Giggs was not the fi rst public fi gure fi sh-and-chip paper,” he said. Stephens said Neuberger “correctly delegated to have an injunction undermined by proposed that U.K. privacy law should the substantive issues to appropriate Twitter users. On May 8, 2011 a Twitter more closely resemble libel law, with quarters: parliament and the courts.” user posted a series of messages penalties and remedies available only According to the report, the proper claiming a number of U.K. celebrities after information is published. The approach to anonymised orders has had obtained privacy injunctions and Economist said Stephens’ proposal could been clarifi ed in JIH v. News Group detailed the activities that they hoped to be enhanced by a strengthened version Newspapers Ltd [2011] EWCA Civ 42. keep out of the public eye, according to of the now-voluntary Press Complaints In JIH, the Master of Rolls held that a May 10 report in BusinessWeek. The Commission’s Editors’ Code of Practice, “where the court is asked to make any posts remained accessible a day later, with statutory provisions that would [privacy] order, it should only do so and some British media lawyers claimed penalize newspapers that violate privacy after scrutinizing the application, and that if action was not taken against the and tighter defi nitions of “public interest” considering whether a degree of restraint person who posted the information, the and what constitutes a “public fi gure.” on publication is necessary, and, if it injunctions would look unenforceable Media organizations would not like this is, whether there is any less restrictive to the media and the general public, the change, The Economist said, because or more acceptable alternative than story said. On May 23, The New York they would be concerned that bolstered that which is sought.” The court also Times reported that, as the existence of privacy laws would be misused by the said it must consider whether there is privacy injunctions became more widely rich, powerful, and well-lawyered to “suffi cient general, public interest in known about, Twitter users have made continue to conceal their mistakes. publishing a report of the proceedings it a priority to identify the people behind (Stephens will present the 2011 Silha which identifi es a party,” which would them on social media sites. Lecture on Oct. 4, 2011. For more on justify the corresponding invasion of In its June 11 story, The Washington the Lecture, see “Silha Lecture Features the applicant’s right to privacy. To help Post characterized the situation as Mark Stephens, International Free with consistency among courts, the leaving “British judges and wronged Expression Advocate” on page 12 of this committee created a model explanatory parties scrambling for ways to hold new issue of the Silha Bulletin.) note and a model judicial order to be media accountable.” According to the In April, a committee chaired by used in injunction proceedings. The May 23 New York Times report, John Lord David Neuberger, who is Master model order states injunctions should Wittingdale, a Conservative Party MP of the Rolls, was created to address the “only be granted in an exceptional case from Maldon, said “you would virtually impact of super injunctions on open where a reporting restriction is strictly have to be living in an igloo” not to justice. At a May 20 press conference, necessary.” The model order includes realize that the use of Twitter was “in Neuberger released the committee’s sample language for both anynomised danger of making the law look like an report, stating that it “tried to achieve injunctions and super-injunctions. ass.” a procedural system which strikes a The committee did not specifi cally BusinessWeek reported May 10 that fair and proper balance” between the address the concerns raised by the Prime Minister Cameron opposed the media’s right to freedom of expression use of technology like Twitter. The full injunctions, reasoning that Parliament and a person’s individual right to privacy. committee report is available online at and not the courts should create U.K. The report promulgated guidelines http://www.judiciary.gov.uk/Resources/ privacy law. On May 23, the AP reported that would regulate the injunctions JCO/Documents/Reports/super- that Cameron spoke on Britain’s ITV more heavily. In the interest of open injunction-report-20052011.pdf. calling for a “time out” to “have a proper justice, the committee recommended – HOLLY MILLER look” at the problems surrounding social that super-injunctions be granted SILHA RESEARCH ASSISTANT media and privacy injunctions, ordering only in “very limited circumstances

24 Journalist Murders: Bailey Killers Convicted; More Charges in Politkovskaya Case he cases of two prominent murders of Bailey and one of the men. been done. Now Chauncey can rest. This journalists murdered in Broussard, who was charged as the chapter is over.” The Chauncey Bailey 2006 and 2007 continued to gunman, agreed to testify against Bey Project reported that although Your move forward in the summer and Mackey in exchange for a plea deal Black Muslim Bakery was once a symbol of 2011. Two men were that resulted in 25 years in prison for of African-American empowerment convictedT June 9 in connection with the the three murders. In addition to the and defi ance in Oakland, it was also a 2007 murder of Oakland (Calif.) Post charges related to the Bailey killing, Bey polygamist cult in which founder Yusuf editor Chauncey and Mackey were charged with the July Bey fathered more than 40 children with ENDANGERED Bailey, while 8, 2007 murder of Odell Roberson and at least 14 women. Bey’s political and JOURNALISTS police in Moscow the July 12, 2007 murder of Michael Wills. street power once led him to campaign announced On August 26, Bey and Mackey were unsuccessfully for Oakland mayor, the two major arrests related to the 2006 sentenced to life in prison without parole project reported. The bakery became murder of Russian journalist Anna for the three murders. Broussard was home to dozens of ex-convicts who took Politkovskaya. sentenced to 25 years on August 12. Bey’s name, and at the time of Bey’s The convictions of the three men death from colon cancer in 2003 he faced Two Convicted for Murder of were a victory for The Chauncey Bailey statutory rape and child abuse charges Chauncey Bailey Project, which formed in August 2007 involving children as young as 10, the On June 9, 2011, a unanimous jury as an effort to fi nish Bailey’s work and project reported. After a violent power found two men guilty of the Aug. 2, 2007 make sure those involved in his murder struggle to succeed his leadership, Yusuf murder of Bailey. Oakland’s KTVU-TV were brought to justice. According to Bey’s son Yusuf Bey IV eventually gained reported on June 9 that Bailey, who was the group’s website, its goal is to make control of the organization, the story shot and killed on his way to work at the statement that “you can’t kill a story said. On the day of Bailey’s shooting, The the Oakland Post the morning of Aug. 2, by killing a journalist.” The project’s Chauncey Bailey Project reported, Yusuf 2007, was the fi rst American journalist collection of stories can be read at http:// Bey IV was facing nine separate criminal killed in the United States for covering www.chaunceybaileyproject.org/. The cases involving incidents over a two and a story in more than 10 years. Before project is led by Dori Maynard, president a half year time span. his death, Bailey had been reporting and CEO of the Robert C. Maynard on the fi nancial troubles of Your Black Institute for Journalism Education in Suspects Arrested in Murder of Muslim Bakery, a 40-year-old community Oakland, and Sandy Close, executive Politkovskaya organization that promoted self- editor of New America Media in San Moscow police arrested one man empowerment and became an important Francisco. Other participants include in May that they accused of the 2006 institution in Oakland’s black community. Bay Area News Group newspapers murder of Russian journalist Anna KTVU-TV reported that in recent years, the Oakland Tribune and the Contra Politkovskaya and another in August that the organization’s reputation became Costa Times; the San Francisco Bay they accused of helping to organize the tainted by connections to crime. Guardian; the Bay Area Association of killing. On May 31, BBC News reported According to The Chauncey Bailey Black Journalists; KQED Public Radio; that the suspected gunman, Rustam Project, a team of Bay Area reporters KTVU-TV; the Center for Investigative Makhmudov, was arrested in Chechnya and editors formed to investigate Bailey’s Reporting; and the journalism schools at his parents’ home. According to The death and continue his investigative at the University of California-Berkeley, Committee to Protect Journalists (CPJ), work, authorities arrested 19-year-old San Francisco State University, and San Russian press reports said the alleged Devaughndre Broussard on Aug. 3, Jose State University. Organizations gunman was indicted in Moscow on 2007. Broussard said he killed Bailey to including the John S. and James L. June 2. On August 24, Agence France- prevent him from exposing the problems Knight Foundation and the Sigma Delta Presse (AFP) reported that police plaguing Your Black Muslim Bakery, Chi Foundation, among others, helped investigators announced the arrest of where Broussard worked. A few days to fund the project. On its website, The retired police lieutenant colonel Dmitry later, however, Broussard recanted his Chauncey Bailey Project quoted Bailey’s Pavlyuchenkov, who they suspected of confession and told police the bakery’s friend and Oakland Tribune editor taking cash in exchange for organizing CEO, Yusuf Bey IV, told him Allah Martin Reynolds, who called Bailey “so the murder and obtaining the murder wanted him to take the blame for others synonymous with Oakland that he was weapon. responsible for the murder, the project Oakland. Everybody knew Chauncey Politkovskaya was found murdered reported. and knew they could go to him. He was in the lobby of her Moscow apartment Bey was found guilty of three counts a good guy with a great sense of humor.” building on October 7, 2006. The of murder for ordering the deaths According to KTVU-TV, in an interview circumstances of Politkovskaya’s of Bailey and two other men, KTVU- outside the courthouse following the murder led to speculation that it was TV reported. The jury also convicted June 9 verdict, Bailey’s cousin, Wendy a contract killing in retaliation for co-defendant Antoine Mackey in the Ashley-Johnson, said, “justice has fi nally Murders, continued on page 26 25 School Privacy Law Changes Could Challenge Media New Rules Would Grant According to an April 7, 2011 U.S. from a student or parent before releasing Department of Education press release, any information from the student’s Schools Greater Discretion the department has proposed a series “education record.” Federal funds may over Directory Information of initiatives to help continue to protect be denied to schools that fail to follow student privacy while “clarifying that the FERPA regulations, which appear at n April 2011, the United States states have the fl exibility to share school 34 C.F.R. 99.1. Access may be permitted Department of Education data that are necessary to judge the if the requesting party is a qualifi ed announced proposed revisions effectiveness of government investments school offi cial, law enforcement agent, to the Family Educational Rights in education.” The department said or other party listed in C.F.R. 99.1. and Privacy Act (FERPA), which FERPA clarifi cations are needed because FERPA defi nes “education record” as governsI the confi dentiality of students’ information that is “directly related differing interpretations of the law education records. The potential changes have complicated “valid and necessary” to a student” and “maintained by an to “directory disclosures of information and have also educational agency or by a party acting FREEDOM OF information” sometimes resulted in decreased privacy for the agency or institution.” In January INFORMATION procedures that protections for students. “Data should 2009, the United States Department of currently govern only be shared with the right people for Education modifi ed FERPA, expanding access to basic student information the right reasons,” said U.S. Secretary what constitutes a confi dential like names, addresses, and phone of Education Arne Duncan in the press “education record.” The term “personally numbers have raised some concern release. “We need common-sense rules identifi able information” now includes among First Amendment advocates that that strengthen privacy protections and not only information such as a student’s this information, commonly used in allow for meaningful uses of data.” name, address, and social security reporting, will be more diffi cult to obtain. FERPA, also known as the Buckley number, but also any “other information Other less controversial changes will Amendment, 20 U.S.C. 1232 et seq., was that, alone or in combination, is linked expand government use of education passed in 1974 and generally requires or linkable to a specifi c student that data for research purposes. that a school obtain written consent FERPA, continued on page 27

Murders, continued from page 25 reporting on stories that were often men were tried and acquitted for lack Markin also said that investigators had critical of Russian government offi cials of evidence in February of 2009. AFP information on the alleged mastermind and policies targeting Chechnya. She reported August 24 that Pavlyuchenkov of the killing, the individual who would worked as a special correspondent for was a witness in the 2009 trial. Russia’s have given orders to Pavlyuchenkov independent Moscow newspaper Novaya Supreme Court overturned the acquittals and who has never been identifi ed Gazeta. Makhmudov was wanted on an on June 25, 2009, ordering a retrial. or arrested, but Markin said it was Interpol warrant since shortly after the AFP reported that the Pavlyuchenkov “premature” to share any further details Politkovskaya murder, CPJ reported, was arrested on Aug. 23, 2011, and about the investigation, AFP reported. and reportedly fl ed Russia for elsewhere Novaya Gazeta was fi rst to report it later The Silha Bulletin has covered the in Europe in late 2007 after obtaining a that day. A statement from Investigative Politkovskaya case extensively. For fraudulent passport. Committee spokesman Vladimir Markin more, see “Russia: Politkovskaya Murder According to a June 2 CPJ report, to Russian news agencies alleged that Trial to be Reheard; Prominent Activist The Investigative Committee of the Pavlyuchenkov agreed to organize the and Reporter Killed” in the Summer Russian Federation, the agency that killing of Politkovskaya “in exchange 2009 issue; “Accused Politkovskaya deals with the country’s most severe for a monetary award,” according to the Conspirators Acquitted” in the Winter crimes, announced on its website that August 24 AFP report. Markin said that 2009 issue; “Charges Filed in the Makhmudov was charged with four Pavlyuchenkov is suspected of hiring Politkovskaya Murder, Killer Still separate counts, including murder and the Makhmudov brothers to murder At Large” in the Summer 2008 issue; illegal appropriation of fi rearms, as well Politkovskaya as well as obtaining “Russia: Politkovskaya Investigation as kidnapping and extortion charges the pistol allegedly used by Rustam Continues; Reporter Detained for Alleged that are unrelated to the Politkovskaya Makhmudov. Markin said Pavlyuchenkov Extortion” in the Fall 2007 issue; and case. Makhmudov’s brothers Dzhabrail told the brothers where Politkovskaya “Famed Russian Reporter Murdered in and Ibragim were accused of acting as lived and identifi ed her car, allowing Contract Killing” in the Fall 2006 issue. lookouts and getaway drivers for the them to trail her and confi rm her routine gunman, while former police offi cer before carrying out the murder, AFP – HOLLY MILLER Sergei Khadzhikurbanov was accused reported. SILHA RESEARCH ASSISTANT of providing logistical support. All three

26 FERPA, continued from page 26 would allow a reasonable person blog post said SPLC’s fi rst concern was security, and confi dentiality of student- in the school community, who does if schools can selectively disclose the level data.” not have personal knowledge of the information, many schools may no longer The Education Department proposed relevant circumstances, to identify the put their student directories online, two other revisions. The fi rst would student with reasonable certainty,” and which LoMonte called “a signifi cant step allow states to enter into research “information requested by a person who backward.” SPLC’s second concern was agreements on behalf of their districts the educational agency or institution the amount of discretion schools would to measure the success of specifi c reasonably believes knows the identity have to choose which “specifi c parties” programs, such as kindergarten prep of the student to whom the education would be eligible to receive the directory programs. The second would allow record relates.” (See “FERPA Expanded: information. According to the Education high school administrators to share Critics Call New Rules ‘Irrational’” in the Department press release, the proposed information on student achievement to Fall 2009 issue of the Silha Bulletin). change is meant to assist schools in track how their graduates perform in The Education Department’s newest implementing directory information college. The Education Department plans proposed clarifi cations include a plan policies that limit access to the data by to release the fi nal version of the rules by to alter the rules about how schools marketers or criminals. LoMonte’s blog the end of 2011. Along with the proposed disclose “directory information.” post predicted that this fl exibility could revisions, the department announced Directory information includes basic turn into “another retaliation tool,” if, for three initiatives related to its goal of information like a student’s name, year in example, the student newspaper writes a safeguarding student privacy: hiring school, major, awards, and sports played. piece not favored by the administration a Chief Privacy Offi cer, establishing a Directory information does not qualify and thus loses its directory access. The Privacy Technical Assistance Center as an “education record” under FERPA, problem could extend to all journalists. to provide resources for the education and schools can choose to provide “The idea that directory information community concerning student data, and access to this information without could be disclosed for ‘limited purposes’ releasing a new series of technical briefs students’ consent if they have given should buckle the knees of any decent to provide guidelines and best practices public notice to parents and students education journalist,” LoMonte wrote. of data security and privacy protections. about what information they will make Other proposed revisions are less available and provide a procedure for controversial. One change would News Organizations Continue to students or parents to notify the school broaden the number of government Fight FERPA Roadblocks that they do not want their information employees, agencies, and contractors News organizations continue to have to be included. According to a May 23 who can obtain student data for diffi culty getting basic information Student Press Law Center (SPLC) blog accountability purposes and studies, about students from educational post by SPLC Executive Director Frank without the consent of a parent or the institutions that cite FERPA as the LoMonte, journalists often use directory student. According to an April 11 post on reason for denying requests, but some information to locate sources for news the National Association of Independent courts have refused to apply FERPA to stories. The practice is especially Colleges and Universities (NAICU) basic directory information like names, common at the college level, where the website, the changes are likely to remove addresses, majors, and other general data directories are often searchable online. barriers to conducting research linking in recent cases. However, if the proposed LoMonte said the easily accessible education records with data maintained revisions to the directory information information can be “a particular asset for pre-school, health and human provisions are implemented, schools may when dealing with a reticent institution.” services, labor, and other potential have more leeway in refusing to provide Under the proposed changes, schools areas. Groups affi liated with the Data this data under FERPA. would be authorized to allow selective Quality Campaign (DQC), “a national, A 2009 Chicago Tribune series called disclosure of directory information collaborative effort to encourage and “Clout Goes to College” was based on to “specifi c parties” or for “specifi c support state policymakers to improve general student statistics and reported purposes.” LoMonte expressed concern the availability of and use of high- that unqualifi ed applicants were being about the broad terms of the proposed quality education data,” have argued granted admission to the University changes. “Who, you might ask, are the FERPA has hindered the effectiveness of Illinois through the backing of ‘specifi c parties’ who would qualify of statewide data systems. “Lack of university trustees and legislators. The to see the student directory? And clarifi cation around FERPA has created initial stories relied on 1,800 pages of what ‘specifi c purposes’ would justify an unfortunate game of ‘telephone,’ in documents released by the university granting or withholding access to which different players have received, following a public records request, but this information?” The Department of understood, and passed along different the Tribune also sought high school Education proposed provision does not versions of what they have heard about grade-point averages and ACT test address these questions and it does not FERPA,” said Aimee Guidera, executive scores of the “clout list” applicants. The provide a framework for how schools director of DQC, in a press release. “We newspaper requested the information be should make those determinations. hope these regulations will provide the released without names or identifying The SPLC submitted comments during clear answers states need to move ahead information in order to comply with the Education Department’s 45-day to support … data use for continuous FERPA, continued on page 28 public comment period. The May 23 improvement and protect the privacy, 27 FERPA, continued from page 27 FERPA, but the university refused. (See this trust and to ensure the continued external documents between the NCAA “College Sports Programs Cite FERPA in federal funding support for students from and Ohio State and its representatives Withholding Information” in the Fall 2009 all backgrounds at our campuses, as well related to an investigation of head coach issue of the Silha Bulletin). In December as the important work of our faculty.” Jim Tressel and fi ve football players for 2009 the Tribune also requested parents’ According to a May 10 University of rules violations. The university denied names, addresses of students who Illinois press release, the university won access to the records, claiming they received special consideration because a stay of Gottschall’s court order as it were protected by FERPA. On July of their connections, and other related moves forward with the appeal. 11, ESPN fi led a complaint for writ of information, according to a March 9 University athletic departments mandamus — a court order that compels Tribune report. The university again also continue to cite FERPA in denying a government entity to take an action refused to release the information under journalists information related to as prescribed by the order — against FERPA. athletes and athletic programs. On the university, alleging that the school On Jan. 27, 2011 the Chicago Tribune April 15, The News and Observer of violated state public records laws. Under sued the University of Illinois Board of Raleigh, N.C., and seven other media Ohio law, a party who has been denied Trustees under Illinois-open records outlets brought a lawsuit under the state access to records can “proceed with law in both state court and the U.S. a mandamus action” District Court for the Northern District “[FERPA] should not be used as a in the Ohio Supreme of Illinois. Illinois open-records law Court. allows institutions to deny access to means to thwart citizens’ rightful On August 12, “information specifi cally prohibited from access to information about the way Ohio State student disclosure by federal or state law or rules our public institutions operate.” newspaper The Lantern and regulations adopted under federal or reported that the state law.” The university argued FERPA — Gerould Kern university sent ESPN is such a regulation. On March 9, 2011, Editor, Chicago Tribune and other news outlets Federal District Judge John Gottschall the records listed in held that the university improperly public records law against University ESPN’s complaint. According to The denied access to the admissions records of North Carolina-Chapel Hill Athletics Lantern, the university sent a letter and that a university may not use federal Director Richard Baddour after requests accompanying the documents which laws to withhold admissions records. for information including names and said, “consistent with our long working The university called it a “setback for the phone numbers of football players and relationship and many telephone privacy rights of young adults applying copies of parking tickets were denied conversations, we viewed the process of for admission to public universities in under FERPA. North Carolina public responding to several of those requests Illinois and nationwide,” according to a records law states “the general rule in as ongoing. The university was unaware March 10 Associated Press (AP) story. the American political system must be that ESPN thought otherwise.” Chicago Tribune editor Gerould Kern that the affairs of government be subject said in an interview for the newspaper’s to public scrutiny.” On May 12, a state Disclosure of Private Information March 9 coverage of the decision superior court judge held the records Appropriate during an Emergency that he was pleased with the result. requested are not protected by FERPA In June 2011, the Department of FERPA “should not be used as a means because the information did not meet the Education released a guide for schools to thwart citizens’ rightful access to defi nition of an “education record” under about how to address FERPA privacy information about the way our public the law. On June 15 the SPLC reported issues during emergency situations. institutions operate,” he said. “We hope that the North Carolina Court of Appeals The guide, “Addressing Emergencies the University of Illinois will comply with decided the court-ordered disclosure of on Campus,” uses as examples the the ruling and release the information.” records could not be delayed while it 2007 shootings at Virginia Tech and The state case is continuing, the Tribune considered the case. The disclosure of the January 2011 shootings of U.S. reported. the records led to a News and Observer Rep. Gabrielle Giffords (D-Ariz.), On April 12, the University of Illinois story about hundreds of parking tickets federal district judge John Roll, and announced it would appeal the district issued to UNC football players totaling others in Tucson. In each situation, court decision to the 7th Circuit U.S. more than $13,000 in fi nes. the gunmen were college students and Court of Appeals. “We take seriously the In August, The Ohio State University their schools had pertinent information special trust placed in our institution released documents related to a National about the individuals, the guide said. when applicants, students and their Collegiate Athletic Association (NCAA) “A school offi cial may determine that families share the details of their lives investigation into its highly regarded it is necessary to disclose personally with us,” University of Illinois President football program after cable sports identifi able information from a student’s Michael Hogan said in an April 12 press network ESPN sued the university in the education records to appropriate release. “We are compelled to safeguard Supreme Court of Ohio. On April 20, an parties in order to address a health or this private information both to honor ESPN producer requested internal and safety emergency,” the guide said. This FERPA, continued on page 29 28 Student Speech: Off-Campus, Online and in Trouble Niehoff, 642 F.3d 334 (2nd Cir. April 25, candidate for senior class secretary for Courts Disagree over 2011) the following school year, and when Whether First Amendment According to the 2nd Circuit’s April Doninger declined, said she would Allows Punishment 25 opinion, the case arose in spring not allow her to appear on the ballot. 2007, after Doninger, then a junior and Niehoff testifi ed that she took this action mong several federal student council member at Lewis Mills because she felt that the blog post failed appeals court rulings on High School, had a disagreement with to demonstrate “good citizenship” as student speech in the spring principal Karissa Niehoff and district required by student offi cers’ guidelines and summer of 2011 were superintendent Paula Schwartz over the set out in the Lewis Mills student fi ve involving high school scheduling of an annual battle of the handbook, which Doninger had signed. Astudents punished for off-campus, online bands event known as Jamfest. After Niehoff also said she believed Doninger speech. The issue appears increasingly administrators informed the student was “acting as a class offi cer at the time likely to reach council that Jamfest would have to be that she created the blog.” On May 25, STUDENT FREE the U.S. Supreme postponed or its location moved for 2007, before a school assembly at which SPEECH Court to resolve a third time that school year because candidates for student council were an apparent split of a scheduling confl ict, Doninger and scheduled to give speeches, Doninger among several circuits and to address several other student council members and several other students were told they confusion about whether the Supreme composed and sent a mass email to would not be allowed to wear T-shirts Court’s standards for censoring or students and their parents reporting that they had made bearing slogans like punishing student speech should extend Jamfest could not be held in the school “Team Avery” and “Vote for Avery.” off campus. The 2nd, 3rd, 4th, and 8th auditorium. The email requested support The 2nd Circuit has addressed the Circuit U.S. Courts of Appeals issued for holding the event as scheduled, and Doninger case before. In an earlier suit, confl icting opinions, underscoring that encouraged recipients to contact Niehoff Doninger’s mother Lauren had sued courts disagree over whether students and Schwartz to voice concerns. Later Niehoff and Schwartz on behalf of her can be punished for online, off-campus that night, Doninger posted a message daughter, who had not yet reached the speech without violating their First on her publicly available blog in which age of majority, asking the U.S. District Amendment rights. she made references to “douchebags in Court for the District of Connecticut for central offi ce,” republished the text of a preliminary injunction to require the Doninger v. Niehoff the mass email sent earlier in the day, school to either rerun the election and On April 25, 2011, the 2nd Circuit and encouraged readers to continue allow Doninger to participate or grant U.S. Court of Appeals ruled that public to contact school offi cials in order to Doninger “the same title, honors, and school offi cials in Burlington, Conn. “piss [them] off more.” The following obligations as the student elected to were entitled to “qualifi ed immunity” — day, administrators and student council the position, including the privilege of a doctrine which shields government members decided on a new Jamfest date speaking as a class offi cer at graduation.” offi cials against liability for reasonable and Schwartz admonished the students Both the District Court and the 2nd mistakes that infringe the rights of others for appealing directly to the public when Circuit denied Lauren Doninger’s motion — when they prohibited student Avery they disapproved of her decision, asking for preliminary injunction. Doninger v. Doninger from running for senior class them to send another email announcing Niehoff, 527 F.3d 41 (2nd Cir. 2008) secretary and from wearing a homemade that the scheduling confl ict had been (For more on the earlier version of the printed T-shirt at a school assembly as resolved. case, see “2nd Circuit Rules School punishment for her off-campus Internet Niehoff became aware of Doninger’s Can Punish Teen for Online Criticism speech. The court ruled that “the blog post on May 7, 2007 and confronted of Administrators” in the Summer 2008 asserted First Amendment right at issue Doninger about it on May 17. Niehoff issue of the Silha Bulletin.) was not clearly established.” Doninger v. asked Doninger to withdraw as a Student Speech, continued on page 30

FERPA, continued from page 28 exception to consent is limited to the Journalists are not mentioned. A full law enforcement for fear of violating emergency time period and “generally copy of the guide can be viewed at http:// students’ privacy rights.” According to does not allow for a blanket release www2.ed.gov/policy/gen/guid/fpco/pdf/ LoMonte’s blog post, Pima Community of personally identifi able information emergency-guidance.pdf. College in Arizona, for example, could from a student’s education records.” According to a June 30 SPLC blog have “taken more aggressive action to The guide names law enforcement post by SPLC Executive Director Frank sound the alarm” about Tucson shooter offi cials, public health offi cials, trained LoMonte, the report is probably a Jared Loughner’s “disturbing behavior” medical personnel, and parents as the response to the colleges in Virginia and at school. types of “appropriate parties” who Arizona which “may have held back – HOLLY MILLER should typically receive information. from sharing life-saving information with SILHA RESEARCH ASSISTANT

29 Student Speech, continued from page 29 After Avery Doninger graduated expression that, like Avery’s, does not reasonable,” meaning that another from high school, she became the suit’s occur on school grounds or at a school- offi cial “of reasonable competence” plaintiff, and rather than an injunction, sponsored event.” According to the might have made the same choice in which was mooted by her graduation, court, Doninger argued that a “bright-line similar circumstances. The court said she asked for damages under 42 U.S.C. principle” should apply which strictly that according to the undisputed facts § 1983 (the federal Civil Rights Act), limits the regulation of off-campus of the case, the blog post had created claiming that her rights to freedom of speech to circumstances that, under the a disturbance by forcing offi cials to speech under the First Amendment U.S. Supreme Court’s ruling in Tinker v. respond to phone calls and emails from and the equal protection clause of the Des Moines Independent Community students and parents, and to meet with Fourteenth Amendment were violated. School District, 393 U.S. 503 (1969) “will students during class time to resolve In 2009, the District Court granted the the issue. Moreover, administrators’ motion for summary In Doninger v. Niehoff, the court ruled the punishment judgment on qualifi ed immunity for was reasonable, the refusing to allow Doninger to participate that school administrators could court ruled, because in the election, but not their refusal to claim qualifi ed immunity because it extended only to allow her to wear or display her “Team their decision to punish Doninger Doninger’s role as a Avery” T-shirt. was “objectively reasonable,” class offi cer. “It was On April 25, 2011 the 2nd Circuit not unreasonable for affi rmed the lower court in part and meaning that another offi cial “of Niehoff to conclude reversed it in part, granting qualifi ed reasonable competence” might have that Doninger, by immunity to the administrators for made the same choice in similar posting an incendiary punishing Doninger for the blog post and circumstances. blog post in the midst refusing to allow the T-shirts. of an ongoing school In the unanimous three-judge panel controversy, had opinion, Judge Debra Ann Livingston demonstrated her explained that under 2nd Circuit case materially and substantially disrupt unwillingness properly to carry out this law, a government offi cial is protected by the work and discipline of the school.” role,” Livingston wrote. qualifi ed immunity if his or her “conduct Livingston wrote that “Doninger has Although there was a question as did not violate a clearly established identifi ed no case — and we are aware of to whether Niehoff was motivated by constitutional right or if it was none” that upheld the principle. Instead, the offensiveness of the blog post or objectively reasonable for the [offi cial] the court cited its own 2007 decision its likelihood to cause a disturbance, to believe that his conduct did not in Wisniewski v. Board of Education, the court ruled that, under existing violate such a right.” A right is “clearly 494 F.3d 34 (2d Cir. 2007), which applied case law, the question of her intent in established,” Livingston continued, if Tinker as well as the U.S. Supreme punishing Doninger was irrelevant. it is “defi ned with reasonable clarity,” Court’s most recent student speech case, Under Crawford-El v. Britton, 523 U.S. recognized by the U.S. Supreme Court Morse v. Frederick, 551 U.S. 393 (2007), 574 (1998), the court said, “a defense of or the 2nd Circuit, and “a reasonable to a case involving an eighth grader qualifi ed immunity may not be rebutted defendant would have understood that who sent instant messages bearing “a by evidence that the defendant’s conduct his conduct was unlawful.” crudely drawn icon depicting one of his was … improperly motivated,” nor does The court concluded that the law is teachers being shot in the head,” with 2nd Circuit precedent under Tinker not suffi ciently clear on the question text below calling for the teacher to be require an inquiry into the intent of of whether off-campus speech can killed. The student’s punishment was school offi cials who punish students for be subject to school punishment for upheld. “Where the icon’s off-campus speech. Niehoff or Schwartz to be aware that display posed a reasonably foreseeable As for the T-shirts, the 2nd Circuit punishing Doninger would violate her risk that it would come to the attention reversed the District Court, fi nding that First Amendment rights, and, moreover, of school authorities and … materially Niehoff and Schwartz were entitled to a that the administrators’ actions were and substantially disrupt the work and claim of qualifi ed immunity in refusing reasonable given that there was discipline of the school, the student’s to allow students to wear them. “We “foreseeable disruption to the school’s suspension for this display did not agree that a reasonable fact-fi nder could work and discipline” created by the blog run afoul of the First Amendment,” conclude that Defendants were mistaken post and the T-shirts. Livingston wrote. (For more on Morse in assessing the likely impact of the The court refuted Doninger’s v. Frederick, see “In Morse v. Frederick, t-shirts and thus the permissibility of argument that the U.S. Supreme Court Court Places Limits on Student prohibiting them pursuant to Tinker,” and 2nd Circuit have clearly established Expression” in the Summer 2007 issue of Livingston wrote, “however, we conclude that off-campus speech could not be the Silha Bulletin.) that any such mistake was reasonable.” the subject of school discipline. To The court ruled that Niehoff Because the administrators’ decision was the contrary, Livingston wrote, the and Schwartz could claim qualifi ed reasonable, qualifi ed immunity should “Supreme Court has yet to speak on the immunity because their decision to be extended, the court ruled. “The law scope of a school’s authority to regulate punish Doninger was “objectively governing restrictions on student speech 30 can be diffi cult and confusing, even for vacated Feb. 4, 2010 decision, affi rmed, in favor of Justin Layshock and 8 to 6 lawyers, law professors, and judges,” fi nding that Layshock’s suspension in favor of the Blue Mountain student. Livingston wrote, adding, “‘School violated his First Amendment rights and In the Layshock case, the court applied principals,’ as the Supreme Court has saying that “it would be an unseemly the Tinker standard, and in the majority recently noted, ‘have a diffi cult job.’” and dangerous precedent to allow the opinion written by Chief Judge Theodore state in the guise of school authorities McKee, ruled that “because the School Layshock v. Hermitage School to reach into a child’s home and control District concedes that Justin’s profi le did District; J.S. v. Blue Mountain School his/her actions there to the same extent not cause disruption in the school, we District that they can control that child when do not think that the First Amendment On June 13, 2011, the 3rd Circuit U.S. can tolerate the School Court of Appeals decided two cases “We do not think that the First District stretching its involving students who were punished authority into Justin’s for off-campus online speech, ruling that Amendment can tolerate the School grandmother’s home suspending the students violated their District stretching its authority into and reaching Justin First Amendment rights. Two separate Justin’s grandmother’s home and while he is sitting at 3rd Circuit panels had reached differing reaching Justin while he is sitting at her computer after conclusions in the factually similar cases school in order to in February 2010, leading 3rd Circuit her computer after school in order punish him for the Chief Judge Anthony J. Scirica to vacate to punish him for the expressive expressive conduct that both decisions on April 9, 2010. (For conduct that he engaged in there.” he engaged in there.” more on the 3rd Circuit panel decisions, Layshock v. Hermitage see “3rd Circuit Issues Confl icting — Chief Judge Theodore McKee School District, No. Rulings on Student Internet Speech” in 3rd Circuit U.S. Court of Appeals 07-4465, 2011 U.S. App. the Winter/Spring 2010 issue of the Silha Layshock v. Hermitage School District LEXIS 11994 (3rd Cir., Bulletin.) The entire 3rd Circuit reheard June 13, 2011) the cases on June 3, 2010. The court disagreed Both cases involved Pennsylvania he/she participates in school sponsored with the school district’s reasoning that students who used off-campus home activities.” rather than apply the Tinker standard, computers and the website MySpace to J.S. v. Blue Mountain School District it should use U.S. Supreme Court’s create fake and vulgar online profi les involved two Blue Mountain Middle 1986 ruling in Bethel School District of their school principals. Layshock v. School eighth graders — identifi ed in No. 403 v. Fraser, 478 U.S. 675 (1986) Hermitage School District arose after the opinion as J.S. and K.L. — who as guidance. In Fraser, the court ruled Hickory High School senior Justin used home computers in March 2007 to that a school could punish a student’s Layshock used his grandmother’s home create a MySpace page that described “lewd, indecent, [and] offensive” speech, computer in December 2005 to create their principal, James McGonigle, as a delivered at a school assembly, even if it a fake MySpace profi le of Hickory sex addict and pedophile. The profi le did not create a substantial disruption, High Principal Eric Trosch. Layshock did not identify McGonigle by name, because the First Amendment does included a photograph of Trosch from but included his photograph from the not prevent schools from encouraging the school district’s website and wrote school district’s website and listed his the “fundamental values of habits and that Trosch said he was a “big steroid interests as “being a tight ass,” “f***ing manners of civility” and punishing freak” and a “big whore” who smoked in my offi ce,” and “hitting on students students who do not abide by them. a “big blunt.” The Hermitage School and their parents.” Administrators at the However, the 3rd Circuit highlighted a District of Hermitage, Pa., suspended Orwigsburg, Pa., school suspended the distinction the Supreme Court made in Layshock for 10 days. Initially, he was students for 10 days. J.S.’s parents fi led Morse v. Frederick between offensive also prohibited from participating in all suit under 42 U.S.C. § 1983 in the U.S. speech on campus and off campus: extracurricular activities for the rest of District Court for the Middle District “had Fraser delivered the same speech the school year, including his graduation of Pennsylvania. The District Court in a public forum outside the school ceremony, and placed in an alternative upheld the punishment, and the Circuit context, it would have been protected.” education program typically reserved for Court panel affi rmed. In its Feb. 4, 2010 Even assuming that Layshock’s profi le students with behavioral and attendance ruling, which was also vacated, the court was “unquestionably vulgar, lewd and problems, but the school district later applied a Tinker analysis, saying that offensive,” as the school district argued eliminated all but the suspension. although the profi le did not substantially it was, the 3rd Circuit said that following Layshock’s parents fi led suit under 42 disrupt school activity, the suspensions the reasoning of Morse v. Frederick, the U.S.C. § 1983 in U.S. District Court for could be upheld because “the profi le Fraser standard for such speech does the Western District of Pennsylvania, presented a reasonable possibility of a not apply to off-campus speech such as claiming Layshock’s First Amendment future disruption” if McGonigle did not Layshock’s. rights were violated. The District Court punish its creators. The court also said its decisions in entered summary judgment in favor of In two opinions issued on June 13, Layshock and Blue Mountain were Layshock, and the 3rd Circuit panel, in its 2011, the 3rd Circuit ruled unanimously Student Speech, continued on page 32 31 Student Speech, continued from page 31 distinguishable from the 2nd Circuit’s to cause a disruption because they could causing a panic,” Jordan wrote, “it is 2008 decision in Doninger because in lead the school district to investigate hard to see how words that may cause Doninger there was more evidence Principal McGonigle, undermined the pandemonium in a public school would that the student’s off-campus online school’s authority, and could induce be protected by the First Amendment speech was likely to cause a disruption psychological harm for McGonigle and simply because technology now allows at school, and because the school’s his wife, Debra Frain, a school counselor the timing and distribution of a shout to punishment was more narrowly targeted who was also targeted by the profi le. be controlled by someone beyond the at Doninger’s role as class secretary. Although the 3rd Circuit found campus boundary.” However, the court also suggested that that the U.S. Supreme Court’s Fraser Lawyers representing Avery Doninger it might disagree with the 2nd Circuit’s standard does not apply to students’ off and Blue Mountain School District holding, stating in Layshock that “in campus speech, the court did not directly announced plans to seek U.S. Supreme citing Doninger, we do not suggest that address the broader question of whether Court review of their cases. The First we agree with that Court’s conclusion the Tinker standard should apply to off- Amendment Center reported July 29 that that the student’s out of school campus speech. However, four judges Doninger fi led a petition for certiorari expressive conduct was not protected by concurred in the Blue Mountain decision arguing that the case “presents important the First Amendment there.” specifi cally to argue that it could not, and compelling fi rst amendment issues The court’s decision in J.S. v. Blue and that “the First Amendment protects which impact millions of students Mountain School District relied on students engaging in off-campus speech and thousands of school offi cials.” reasoning substantially similar to the to the same extent it protects speech The petition highlights the difference Layshock opinion, following the Tinker by citizens in the community at large.” between the Doninger, Layshock, and standard. However, the judges differed If Tinker applied to off-campus speech, Blue Mountain cases, adding that in their opinions about whether school Judge D. Brooks Smith wrote, it could “the lack of guidance by this Court to offi cials had “reason to anticipate” a essentially lead to punishment for any address students’ internet speech, or substantial disruption of the school, student who engages in any speech, indeed any kind of off-campus speech, leading six to dissent. In the majority anywhere, any time — including political combined with school offi cials’ infl ated opinion, Judge Michael Chagares wrote or religious speech — that results in a fears of school violence, have resulted in that “because J.S. was suspended from disruption at school. This could chill improper punishment of many students school for speech that indisputably student speech off campus, and could for otherwise protected off-campus caused no substantial disruption in even mean that the rule would extend to speech.” school and that could not reasonably adults. “Adults often say things that give The Pottsville, Pa. Republican Herald have led school offi cials to forecast rise to disruptions in public schools. … reported on June 24 that the Blue substantial disruption in school, the Of course, the prospect of using Tinker Mountain School District authorized its School District’s actions violated J.S.’s to silence such speakers is absurd. But law fi rm on June 23 to prepare an appeal First Amendment free speech rights.” the absurdity stems not from applying to the U.S. Supreme Court in J.S. v. Blue The Blue Mountain School District, like Tinker to off-campus speech uttered by Mountain School District. The district Hermitage, argued that it could punish adults and students alike, but from the has until September 13 to do so. J.S. under Fraser because the profi le antecedent step of extending Tinker was “lewd, vulgar, and offensive [and] beyond the public school setting to Kowalski v. Berkeley Co. Schools had an effect on the school and the which it is so fi rmly moored,” Smith On July 27, 2011 a three-judge panel educational mission of the District.” The wrote. of the 4th Circuit U.S. Court of Appeals court disagreed, however, saying that In a concurrence to Layshock, ruled that administrators at Musselman the argument “fails at the outset because however, two of the dissenters in the High School in Berkeley County, W.Va., Fraser does not apply to off-campus Blue Mountain case argued that focusing did not violate the First Amendment speech.” J.S. v. Blue Mountain School on whether a speaker is on campus or off rights of senior Kara Kowalski when District, No. 08-4138, 2011 U.S. App. campus “obscures [the] central dilemma, they suspended her for fi ve days for LEXIS 11947 (3rd Cir. June 13, 2011) which is how to balance the need for creating a MySpace page that ridiculed a The majority said that the punishment order in our public schools with respect fellow student. Kowalski was punished did not meet the Tinker standard for free speech.” Judge Kent Jordan when administrators learned of her because the profi le, “though indisputably wrote that there is no need to consider online group, “S.A.S.H.” or “Students vulgar, was so juvenile and nonsensical whether an interpretation of Tinker that Against Sluts Herpes,” which encouraged that no reasonable person could take included off-campus speech would chill students to post comments and images its content seriously, and the record student or adult speech because that about a particular student who they clearly demonstrates that no one did.” standard applies only to speech that has claimed had herpes. However, the dissenters argued that the “a reasonable nexus to school.” Drawing The Circuit Court affi rmed the lower profi le’s references to improper behavior an analogy to Justice Oliver Wendell court’s grant of summary judgment to such as “f***ing in my offi ce,” “hitting on Holmes’ statement in Schenck v. United the school district, ruling that Kowalski’s students and their parents,” and the site’s States, 249 U.S. 47 (1919) that the First “targeted attack on a classmate … web address, http://www.myspace.com/ Amendment “would not protect a man was suffi ciently connected to the kidsrockmybed, were suffi ciently likely in falsely shouting fi re in a theatre and school environment as to implicate the 32 School District’s recognized authority wrote. “Regretfully, she yet fails to School district offi cials contacted to discipline speech which ‘materially see that such harassment and bullying the police, who went to Mardis’ house, interfere[es] with the requirements of is inappropriate and hurtful and that interviewed him, and took him into appropriate discipline in the operation of it must be taken seriously by school custody. He spent more than a month in the school and collid[es] with the rights administrators in order to preserve an juvenile detention and at a psychiatric of others’” under the Tinker standard. appropriate pedagogical environment.” hospital. After Mardis was placed in Kowalski v. Berkeley Co. Schools, No. juvenile detention, school administrators 10-1098, 2011 U.S. App. LEXIS 15419 (4th D.J.M v. Hannibal Public School suspended him for the remainder of the Cir. July 27, 2011) District #60 school year. Mardis’ parents appealed Citing the U.S. Supreme Court’s On August 1, 2011, the 8th Circuit U.S. the suspension to the school board, ruling in Morse, which held that Court of Appeals ruled that Hannibal, which upheld it, and then sued the school administrators can punish Mo. public school administrators did not school district in U.S. District Court for on-campus student speech when the violate the First Amendment rights of a the Eastern District of Missouri under speech advocates illegal drug use 42 U.S.C. § 1983, which because it is within administrators’ “School administrators must be able granted summary responsibility to protect students from judgment to the school those messages, Judge Paul Niemeyer to prevent and punish harassment district. wrote for the unanimous panel that and bullying in order to provide a In affi rming the “schools have a duty to protect students safe school environment conducive District Court’s ruling, from harassment and bullying in the to learning.” the 8th Circuit applied school environment.” He added, “far both a “true threat” from being a situation where school — Judge Paul Niemeyer analysis, following authorities suppress speech on political 4th Circuit U.S. Court of Appeals Watts v. United and social issues based on disagreement Kowalski v. Berkeley Co. Schools States, 394 U.S. 705 with the viewpoint expressed, school (1969), where a administrators must be able to prevent criminal conviction for and punish harassment and bullying student they suspended for using online threatening the president was reversed in order to provide a safe school instant messages to discuss bringing a because the court did not consider the environment conducive to learning.” gun to school and shooting students. The statement to be a true threat, as well The court said that it did not need to court ruled that the messages constituted as the “substantial disruption” analysis reach the question of whether, because a “true threat” and that the punishment under Tinker. Judge Diana Murphy, Kowalski’s speech “originate[d] outside was reasonable under the Supreme in writing for the three-judge panel, the schoolhouse gate,” the school could Court’s ruling in Tinker. observed that although no Supreme punish her. “We are satisfi ed that the The case arose in fall 2006, after Dylan Court case has dealt with “a situation nexus of Kowalski’s speech to [the J. Mardis, a student at Hannibal High where the First Amendment question school’s] pedagogical interests was School, conversed via online instant arose from school discipline exercised in suffi ciently strong to justify the action message with a schoolmate, Carly response to student threats of violence taken by school offi cials in carrying Moore, about bringing a gun to school or for conduct outside of school,” lower out their role as trustees of the student and shooting other students because courts have addressed such cases, body’s well-being,” Niemeyer wrote. Mardis was angry about having been applying the “true threats” and Tinker Because the MySpace group Kowalski spurned by a student in whom he had a standards. D.J.M v. Hannibal Public created was “targeted” and “defamatory” romantic interest. In the chat, Mardis and School District #60, No. 10-1428, No. in nature, the court said, it created a Moore discussed which people Mardis 10-1579, 2011 U.S. App. LEXIS 15799 likelihood of disruption that it called would “have to get rid of,” naming which (8th Cir. Aug. 1, 2011) “actual or nascent.” The court cited the students “would go” or “woudl be going” In its “true threat” analysis, the court fact that the targeted student missed [sic]. According to Moore’s later email applied a standard derived from a 2002 school to avoid further abuse and said to Hannibal High School Principal Darin 8th Circuit case, Doe v. Pulaski County that, “had the school not intervened, the Powell, Mardis also named a friend that Special School District, 306 F.3d 616 potential for continuing harassment of had a “357 magnum” that he thought he (8th Cir. 2002), under which it said the [the student] as well as other students could use, said he “wanted Hannibal to school did not violate Mardis’ First was real.” be known for something,” and that he Amendment rights by calling the police Niemeyer concluded the opinion by intended to kill himself after shooting and suspending him if he intended to chiding Kowalski for her bullying and the other students. In a later chat, Mardis communicate the statements at issue for suing her school for suspending her. said “anyways I’m not going to do that[.] to another person and if a “reasonable “Rather than respond constructively to not anytime soon i feel better than i did recipient” of the statements “would the school’s efforts to bring order and earlier today.” Moore shared the instant have interpreted [them] as a serious provide a lesson following the incident, messages with an adult she knew and expression of an intent to harm or cause Kowalski has rejected those efforts later with Powell after she became injury to another.” and sued school authorities,” Niemeyer concerned about what Mardis had said. Student Speech, continued on page 34 33 Student Speech, continued from page 33 Mardis argued that his statements court concluded, “it was reasonably had assigned to the cadaver on which could not be on considered true threats foreseeable that D.J.M.’s threats about she was working. She later posted that because Moore did not appear to shooting specifi c students in school she “realized with great sadness that my take them seriously (she typed “lol,” would be brought to the attention of best friend, Bernie, will no longer be with shorthand for “laughing out loud”), and school authorities and create a risk of me as of Friday next week. […] Now because Mardis did not communicate substantial disruption within the school where will I go or who will I hang with them directly to any of the potential environment.” when I need to gather my sanity? Bye, targets, had no history of violence, and In an August 1, 2011 story on the bye Bernie. Lock of hair in my pocket.” said he would not act “anytime soon.” Student Press Law Center (SPLC) According to the court’s opinion, The court disagreed, however, fi nding website, SPLC Executive Director Frank another mortuary science student “no genuine dispute of material fact LoMonte said the court went beyond the reported concerns about Tatro’s regarding whether his speech could be Facebook posts to the reasonably understood as a true threat” “The First Amendment did not program’s director, because he specifi cally identifi ed targets require the District to wait and see who on December in “hate-fi lled” language, “expressed 14 met with other access to weapons,” admitted in whether D.J.M.’s talk about taking a faculty, fi led a report later psychiatric evaluation to being gun to school and shooting certain with university police, depressed, and stated that he wanted students would be carried out.” and suspended Tatro Hannibal “to be known for something.” from class. University Murphy also wrote that “the reaction — Judge Diana Murphy police concluded of those who read his messages” — 8th Circuit U.S. Court of Appeals that no crime had Moore had contacted both a trusted D.J.M v. Hannibal Public School District #60 been committed, and adult and the school principal, who Tatro was allowed to in turn contacted the police; after return to class. But the which a juvenile court judge ordered a law it needed to consider in its decision, university’s Offi ce for Student Conduct psychiatric evaluation — “is evidence and that “the much more complex and and Academic Integrity submitted a that his statements were understood as delicate Tinker issue … doesn’t appear formal complaint against Tatro on true threats.” Under the true threat test, to have gotten adequate consideration.” December 29, alleging violations of Murphy wrote, “the First Amendment did LoMonte said, “once the court realized the university’s student-conduct code. not require the District to wait and see that the case could be fully decided on After conducting a hearing, the Campus whether D.J.M.’s talk about taking a gun the basis of the true threat standard, Committee on Student Behavior issued to school and shooting certain students that’s where they should have stopped.” a written decision April 2, 2010 fi nding would be carried out.” Tatro guilty of the rule violations, giving In the court’s application of the Minnesota Appeals Court Rules her a failing grade in her anatomy- Tinker standard, Murphy observed College Student Can be Punished for laboratory class, requiring her to enroll that although “school offi cials cannot Facebook Posts in a clinical ethics course, requiring her constitutionally reach out to discover, On July 11, 2011, a Minnesota state to write a letter to mortuary science monitor, or punish any type of out of appeals court ruled that University of department faculty addressing the school speech,” the situation is different Minnesota mortuary science student issue of respect within the department “when a report is brought to them Amanda Tatro’s First Amendment rights and profession, and requiring her to about a student threatening to shoot were not violated when the university complete a psychiatric evaluation. Tatro specifi c students at school.” The court punished her for posts on her Facebook was also placed on academic probation noted that, in Tinker, the U.S. Supreme page that it considered “threatening, for the remainder of her undergraduate Court “explained that ‘in class or out of harassing, or assaultive” and in violation career. Tatro appealed to a provost’s it,’ conduct by a student which ‘might of various university policies. appeal committee, which upheld the reasonably have led school authorities In one of her Facebook posts in sanctions and issued a fi nal decision to forecast substantial disruption of November and December of 2009, Tatro emphasizing that Tatro’s Facebook posts or material interference with school said that she wanted to “stab a certain “were disrespectful, unprofessional, and activities’ is not ‘immunized by the First someone in the throat with a trocar” — a reasonably interpreted as threatening.” Amendment.’” The school district said trocar is a sharp instrument used during Tatro sued the university in state that after Mardis’ statements became embalming to aspirate fl uids and gases court, challenging its authority to known about in the community, parents out of the body — and that she might punish her over the Facebook posts and students contacted administrators “spend the evening updating my ‘Death and claiming that it violated her First with concerns and questions about safety List #5’ and making friends with the Amendment right to freedom of speech. and asking about a rumored “hit list.” crematory guy.” In another post she said, She asked the court to reverse the School offi cials spent “considerable time “Give me room, lots of aggression to be committee’s decision and instruct the dealing with these concerns and ensuring taken out with a trocar.” In another she university to dismiss all charges, remove that appropriate safety measures were said she “gets to play, I mean dissect, her from probation, expunge the record in place,” Murphy wrote. Therefore, the Bernie today.” Bernie was the name Tatro of discipline from her academic fi le, and 34 restore her passing grade in the anatomy- Circuit U.S. Court of Appeals applied a uses violence as a metaphor, then I guess laboratory course. She also said her Tinker analysis in striking down Temple a university or college can discipline posts did not constitute a “true threat” University’s sexual harassment policy. them,” Kushner said. “If some sensitive as defi ned by Doe v. Pulaski County The 3rd Circuit ruled the policy was person from the university — and there Special School District, 306 F.3d 616 (8th unconstitutionally overbroad because are a lot of sensitive people in academia Cir. 2002) and the court should reverse it extended beyond speech that the — reads it and feels threatened, then that the punishment under that analysis, since university reasonably believed would person can conceivably be kicked out of it was the appropriate standard to apply cause a material disruption. Bjorkman school.” University of Minnesota General to a university. wrote, “we observe, as the Third Circuit Counsel Mark Rotenberg told City Pages The court ruled that Tatro’s did in Dejohn, that what constitutes that the university has a responsibility punishment did not violate her to protect students and First Amendment rights because “We observe … that what constitutes staff, and would be her Facebook posts “materially and “utterly derelict” if it substantially disrupt[ed] the work and a substantial disruption in a primary ignored statements like discipline of the university.” Writing for a school may look very different in a the ones Tatro posted. unanimous three-judge panel which also university. But these differences do SPLC Executive included Judge Jill Halbrooks and Judge not per se remove the Tinker line of Director Frank Natalie Hudson, Judge Louise Bjorkman LoMonte, in a July said that “in a long line of cases, cases from the analysis.” 13 story on the SPLC beginning with Tinker, the Supreme website, called the — Judge Louise Bjorkman Court has held that schools may limit court’s application of Minnesota Court of Appeals or discipline student expression if the Tinker standard Tatro v. University of Minnesota school offi cials ‘reasonably conclude “worrisome.” LoMonte that it will materially and substantially said, “it’s not at all disrupt the work and discipline of the a substantial disruption in a primary certain to think that Tinker is the correct school.’” The court concluded that school may look very different in a legal standard here and, in fact, there’s because students and faculty “expressed university. But these differences do not good reason to think it’s not the correct concern that Tatro’s post discussing per se remove the Tinker line of cases standard.” On August 1, Kushner told the a ‘Death List’ and wanting to ‘stab’ from the analysis.” Bulletin he planned to appeal the case to someone constituted real threats of Tatro also contended that because the Minnesota Supreme Court. physical violence, prompting a police her Facebook posts were not created investigation,” the posts created a on campus and were not related to a Second Circuit: High School Can material and substantial disruption of university-sponsored activity, she should Censor ‘Lewd’ Cartoon in Student the university. The court also noted that not be subject to school discipline for Newspaper Tatro’s posts about “Bernie” reached them. The court dismissed this argument, On May 18, 2011, a three-judge panel family members and other participants however, because the university’s student of the 2nd Circuit U.S. Court of Appeals in the university’s program for donating conduct code “expressly authorizes the ruled that school administrators in cadavers, prompting them to contact university to apply the code to students Ithaca, N. Y. did not violate the First the school with concerns about “the whose alleged off-campus conduct Amendment rights of student journalists professionalism of the program in has an adverse effect on a substantial when they censored the publication and general — a program that relies heavily university interest and indicates potential distribution of a cartoon depicting stick on the faith and confi dence of donors danger or threat to the student or fi gures engaged in various sex acts. The and their families to provide necessary others.” court based its ruling on a fi nding that laboratory experiences for medical and The court did not apply the true the student newspaper, where students mortuary-science students.” Tatro v. threat analysis. “We decline to depart fi rst tried to publish the cartoon, was a University of Minnesota, A10-1440, 2011 from the standard set forth in Tinker “limited public forum,” and that when Minn. App. LEXIS 87 (Minn. St. App., July and its progeny,” Bjorkman wrote. “As students later tried to distribute the 11, 2011) the university observes, this is not a cartoon in an independent publication As to whether the U.S. Supreme criminal case. … And most courts hold created off campus, the school could Court’s rulings on student speech in that student expression need not reach prevent them from doing so under public high schools could be extended the true-threat threshold before a public Fraser. to a public university, Bjorkman wrote, school may take appropriate disciplinary Student editors of the Ithaca High “we discern no practical reasons for action in the interest of protecting the School student newspaper, The Tattler, such a distinction and note that other work and safety of its community.” tried to include the cartoon — which courts have acknowledged Tinker’s In a July 12 City Pages story, Tatro’s depicted a “Health 101” class with a broad applicability to public-education lawyer, Jordan Kushner, expressed teacher pointing to a chalkboard showing institutions.” Bjorkman cited DeJohn concern about the possibility of a broad the stick fi gures in a variety of sexual v. Temple University, 537 F.3d 301 impact for the court’s ruling. “If someone poses and carrying the announcement: (3rd Cir. 2008) a case in which the 3rd decides to tell a joke on Facebook … that Student Speech, continued on page 36 35 Student Speech, continued from page 35 “Test on Monday” — in two successive speech, there is no evidence that the beyond the facts of that case … we have issues in January and February of 2005. school permitted ‘indiscriminate use not interpreted Fraser as limited either The fi rst time the cartoon accompanied a by the general public,’ as is required to regulation of school-sponsored speech story by a former student titled “Alumni to create a traditional public forum or or to the spoken word.” Advice: Sex is fun!” The second time designated public forum.” Cabranes SPLC Executive Director Frank it accompanied a more serious story wrote that “in a limited public forum, the LoMonte said the court misapplied examining the school’s approach to government may restrict speech in a way Fraser as well as the limited public teaching sex education. that is viewpoint-neutral and reasonable forum doctrine. In a May 18 SPLC press The Tattler’s adviser rejected both the in light of the forum’s purpose.” release, LoMonte said neither The cartoon and “Sex is fun” story for the The court ruled that because the Tattler nor The March Issue should January issue, but approved the more cartoon was “unquestionably lewd,” be subject to a Fraser analysis. “The serious story — without the cartoon — the school could censor it in The Fraser ‘lewd speech’ standard grew out for the February issue. The following Tattler without violating students’ of a mandatory school assembly before month, student editors included the First Amendment rights following the a captive audience, and it should have cartoon in a publication called The U.S. Supreme Court’s ruling on “lewd, nothing to do with an independently March Issue, which they fi nanced and indecent, [and] offensive” student produced and independently fi nanced produced independently of the school, speech in Fraser. Moreover, the student newspaper that readers can but Ithaca City School District (ICSD) court said, because The Tattler was pick up or discard at their own choice,” Superintendent Judith Pastel refused to a school-sponsored publication, the LoMonte said. He added that the allow The March Issue to be distributed school has broad authority to regulate Supreme Court’s reasoning in Fraser on school grounds. its content under the U.S. Supreme was partly based on the idea that The students sued the school district, Court’s decision in Hazelwood School schools should be able to “disassociate” Pastel, and Ithaca High School Principal District v. Kuhlmeier, 484 U.S. 260 themselves from lewd or offensive Joseph Wilson in June of 2005, claiming (1988). In Hazelwood, a school principal student speech when it might otherwise that the censorship of the cartoon removed two stories from a Missouri be considered school- sponsored. violated their First Amendment rights. student newspaper about pregnancy The March Issue “was very clearly The U.S. District Court for the Northern and divorce because he believed the unaffi liated with the school,” LoMonte District of New York granted summary stories dealt with issues too mature for said. judgment in favor of the school district the newspaper’s reading audience and In a May 22 post on the SPLC blog, and offi cials, and the 2nd Circuit because he believed they did not meet LoMonte also said the 2nd Circuit affi rmed. R.O. v. Ithaca City School journalistic standards of professional “entirely skipped” a step in the limited District, 645 F.3d 533 (2nd Cir. May 18, ethics. The Supreme Court ruled in public forum analysis, based on its own 2011) favor of the principal, fi nding that public ruling in the 2002 case Hotel Employees Writing for the unanimous three-judge school administrators can censor school- & Restaurant Employees Union, Local panel, Judge Jose Cabranes defi ned The sponsored student speech when they can 100 v. City of New York Department Tattler as a “limited public forum,” as show a legitimate pedagogical purpose of Parks & Recreation, 311 F.3d 534 opposed to a “traditional” or “designated for doing so and when the forum has not (2nd Cir. 2002), which requires the public forum,” such as a public sidewalk been established, by policy or practice, court to apply a heightened standard of or town square where the government as an open forum for student expression. First Amendment protection — strict can almost never censor speech, As to the censorship of the cartoon scrutiny — if the speech “falls within the or a “non-public forum,” where the in the independently produced March designated category for which the forum government may censor speech as long Issue, the Circuit Court disagreed with has been opened.” In effect, LoMonte as it does so in a way that is not based the lower court’s fi nding that the school said, the court applied the same standard on a speaker’s viewpoint. The Tattler could censor it under Tinker’s “material to a limited public forum that it would was “precisely” a “limited public forum,” and substantial disruption” standard. apply to a non-public forum. LoMonte Cabranes explained, because “the state Instead, Cabranes wrote, “we need not said the case should “be heard, and open[ed] a non-public forum but limit[ed] reach the question of whether ICSD’s reversed, by the full Second Circuit.” the expressive activity to certain kinds of conduct was lawful under Tinker, He observed that it is rare for a case to speakers or to the discussion of certain because its conduct was lawful under be granted a hearing by a full Circuit subjects.” Cabranes wrote that “while Fraser. Although the Supreme Court Court, “but then, it is rare that judges ICSD apparently opened the newspaper has not clarifi ed the extent to which misstate binding legal precedent quite to some — or even many — types of the Fraser doctrine applies in contexts this obviously.” – PATRICK FILE SILHA BULLETIN EDITOR

36 Update: Colorado Prosecutor Violated Student Editor’s Rights with Criminal Libel Search Warrant Latest Decision in Long- tech bubble of the nineties like a $20 prosecutorial immunity, ruling that whore and make a fortune,” as well as although prosecutors receive absolute Running Howling Pig Case by opinions and articles about UNC, immunity when working in their role deputy district attorney Greeley, and Northern Colorado that as advocates, that immunity does not violated Thomas Mink’s Peake said could be attributed to him. extend to their role as administrators Fourth Amendment right After a police detective researched the or investigative offi cers. Because the to be free of unreasonable website and determined that Mink was court found Knox was acting in the latter search and seizure when its author, he submitted a search warrant capacity when she approved the search Ashe authorized Greeley, Colo. police to affi davit for Mink’s residence and warrant, it instructed the lower court search his house and seize his computer property, including his computer, to then- to consider Knox’s claims of qualifi ed pursuant to a Deputy District Attorney Susan Knox, immunity. Mink v. Suthers, 482 F.3d. CRIMINAL criminal libel who read and approved it. A magistrate 1244 (10th Cir. 2007) LIBEL complaint, judge later approved the warrant. The Silha Center, together with the according to a In executing the warrant on Dec. 12, Student Press Law Center, fi led an federal district court ruling on June 3, 2003, police searched the house Mink amicus brief in Mink’s appeal to the 2011. shared with his mother, who was not 10th Circuit. (The brief is available on The ruling is the latest in an eight- home at the time, and confi scated the the Silha Center website at http://www. year legal sage arising out of Mink’s computer they shared and some of his silha.umn.edu/resources/. For more publication of an online and print writings. Mink also claimed police told on the case up to the 2007 ruling, see newsletter called The Howling Pig, him he was in “big trouble” and warned “Tenth Circuit Declines to Strike Down which he launched in 2003 while he was him that resuming publication of The Colorado’s Criminal Libel Law After a student at the University of Northern Howling Pig would “only make things Finding Student’s Challenge Moot” in the Colorado (UNC). He wrote that he worse” for him. In early 2004, however, Spring 2007 issue of the Silha Bulletin intended the newsletter to be “a regular a federal district court ordered his and “Silha Center Joins Student Press bitch sheet that will speak truth to possessions returned, and the district Law Center in Amicus Brief” in the power, obscenities to clergy, and advice attorney’s offi ce said it planned to Winter 2005 issue.) to all the stoners sitting around watching close the fi le after deciding it could not In 2008, the District Court granted Scooby Doo,” and “a forum for the pissed constitutionally prosecute Mink under Knox’s motion to dismiss based on off and disenfranchised in Northern the libel statute. qualifi ed immunity, but the 10th Circuit Colorado, basically everybody.” The site Mink proceeded with a lawsuit against reversed on appeal in July 2010, is online at http://webspace.webring. the Colorado attorney general, the local concluding that Mink had plausibly com/people/jt/thehowlingpig/. district attorney, and Knox, claiming his alleged that Knox violated his clearly At The Howling Pig, Mink wrote constitutional rights had been violated established constitutional rights. Mink irreverent editor’s notes under the under the Fourth Amendment by the v. Suthers, 613 F.3d 995 (10th Cir. 2010) pseudonym “Junius Puke” alongside an search and seizure and under the First In the June 3, 2011 ruling, Judge Lewis altered photo of then-UNC economics Amendment by the “imminent threat” Babcock of the U.S. District Court for professor Junius Peake. In November of being charged with criminal libel. He the District of Colorado addressed 2003, Peake contacted the Greeley police also challenged the constitutionality of Mink’s motion for summary judgment claiming to be the victim of criminal libel the Colorado criminal libel statute. In under 42 U.S.C. § 1983 and Knox’s cross- by The Howling Pig. Under Colorado’s fall 2004, the District Court dismissed motion for summary judgment claiming criminal libel statute, Colo. Rev. Stat. Mink’s suit in its entirety, fi nding that she was entitled to qualifi ed immunity. § 18-13-105, it is a class 6 felony to he lacked standing to challenge the Following much of the reasoning in knowingly publish any statement tending constitutionality of the statute and that the 10th Circuit’s July 2010 opinion, to “impeach the honesty, integrity, his claims against Knox were barred by Babcock ruled that pursuant to the virtue, or reputation or expose the the doctrine of absolute prosecutorial doctrine of qualifi ed immunity, Mink had natural defects of one who is alive, and immunity. In April 2007, the 10th Circuit established that Knox’s actions violated thereby to expose him to public hatred, U.S. Court of Appeals declined to rule his constitutional right to be free from contempt, or ridicule.” Peake said he was on Mink’s constitutionality claims, unreasonable search and seizure, a right criminally libeled by the website’s use of fi nding that because the district attorney which was “clearly established such that his photograph and statements that Puke had decided not to prosecute Mink a reasonable person in [Knox’s] position “gambled in tech stocks” in the 1990s and and had closed the fi le, Mink no longer would have known that their conduct wore glasses to avoid being recognized had standing to sue. However, the violated the law.” Mink v. Knox, No. by his colleagues on Wall Street where Circuit Court sent the case back to the 84-cv-08023-LTB-CBS, 2011 U.S. Dist. “he managed to luck out and ride the District Court on the question of Knox’s LEXIS 59380 (D. Colo. June 3, 2011) Howling Pig, continued on page 38

37 Ninth Circuit Overturns Conviction for Threat niggar, he will have a 50 cal in the head line “Re: And so it begins” and discussing against Obama soon,” posted at 1:15 a.m., and “shoot “shoot[ing] the nigga’s car.” Court Finds Federal the nig country fkd for another 4 years+, On July 28, 2009, Judge Marilyn Statute Does Not Apply to what nig has done ANYTHING right???? Huff of the U.S. District Court for the long term???? never in history, except Southern District of California found Incitement sambos,” at about 1:35 a.m. According to Bagdasarian guilty of two counts of n July 19, 2011, the 9th the opinion, a retired Air Force offi cer violating 18 U.S.C. § 879(a)(3), which Circuit U.S. Court of reported the “shoot the nig” comment makes it a felony to “knowingly and Appeals reversed the to the Secret Service’s fi eld offi ce in Los willfully threaten to kill, kidnap, or infl ict conviction of a man Angeles, providing it with Bagdasarian’s bodily harm upon … a major candidate charged with making username: “californiaradial” and the URL for the offi ce of President or Vice Oonline threats against the life of a major address for the message board. President, or a member of the immediate presidential candidate, fi nding that the Yahoo! provided the Secret Service family of such candidate.” On appeal, First Amendment with the subscriber information for however, a three-judge panel of the 9th FREEDOM OF protected his the email address californiaradial@ Circuit reversed the conviction in a 2 SPEECH racist, violence- yahoo.com as well as the account’s to 1 ruling, fi nding that the prosecution tinged rants about Internet Protocol history, which allowed failed to suffi ciently establish beyond then-candidate Barack Obama. investigators to identify Bagdasarian a reasonable doubt that Bagdasarian’s The case arose after Walter as the user who posted the comments. “pure speech” constituted a “true threat” Bagdasarian, who the court described Two Secret Service agents visited against a presidential candidate and as “an especially unpleasant fellow,” Bagdasarian’s home in La Mesa, Calif., was therefore protected speech under made several comments on a Yahoo! on Nov. 21, 2008, where he admitted the First Amendment. United States v. Finance message board early on the to posting the comments and also that Bagdasarian, No. 09-50529, 2011 U.S. morning of Oct. 22, 2008 that alarmed he owned fi rearms. Executing a search App. LEXIS 14684 (9th Cir. July 19, 2011) other message board users and prompted warrant a few days later, agents found The majority opinion by Judge one user to alert the U.S. Secret Service. a .50 caliber muzzle-loading rifl e and Stephen Reinhardt explained that The two particular comments that led ammunition among Bagdasarian’s six in order for an individual to be guns, as well as email messages from to the charges were “Re: Obama fk the Threat, continued on page 39 the day of the election with the subject

Howling Pig, continued from page 37

Babcock agreed with the 10th Circuit’s detective, she should be granted media law attorney who represented a conclusion that “no reasonable reader” immunity. “The defense of qualifi ed number of media organizations as amici of The Howling Pig “would believe that immunity would be extended beyond curiae contesting the constitutionality the statements in that context were said all reason if a prosecutor could avoid of the Colorado criminal libel statute by Professor Peake in the guise of Junius liability for an unconstitutional search in an earlier iteration of the case, said Puke, nor would any reasonable person and seizure by not reviewing the the ruling was a victory for freedom of believe that they were statements of supporting documents,” Babcock wrote. speech but it also should have addressed fact as opposed to hyperbole or parody.” Moreover, the description of the website the constitutional question. The Circuit Court concluded that “no in the affi davit “should have alerted Ms. “The fact that there’s still any reasonable prosecutor could therefore Knox to the fact that [the website] might question for a prosecutor dealing with believe that it was probable that constitute satire protected by the First free speech issues shows again why publishing such statements constituted a Amendment and that she should review the statute should be stricken from the crime warranting the search and seizure the actual content of the website as set books,” Zansberg said. “In our view, no of Mr. Mink’s property.” forth in the attachment even if she was speech of any kind should be subject to Knox argued that because her otherwise inexplicably not inclined to do prosecution based on a statute that is review of the affi davit did not include so,” Babcock wrote. facially unconstitutional.” looking at the actual website or copies According to the Reporters – PATRICK FILE of the newsletter that were attached Committee for Freedom of the Press SILHA BULLETIN EDITOR to the affi davit submitted by the police on June 3, Steve Zansberg, a Denver

38 Threat, continued from page 38 convicted under 18 U.S.C. § 879(a) “suffi cient to prove beyond a reasonable speech that incites illegal action, the (3), the prosecution must provide doubt that Bagdasarian intended to make government must prove that the action evidence beyond a reasonable doubt a threat.” Reinhardt argued that because will be carried out imminently, and not that meets both an “objective” and his October 22 message board comments just “at some indefi nite future time.” “subjective” standard. In other words, “fail to express any intent on his part Judge Kim McLane Wardlaw the prosecution must demonstrate to take any action, the fact that he concurred in the majority’s reasoning both that people reading Bagdasarian’s possessed the weapons is not suffi cient insofar as it held that both an objective comments understood them in context to establish that he intended to threaten and subjective standard were required to be “a serious expression of an intent Obama himself.” to uphold a prosecution under § 879(a) to kill or injure” Obama, as well as that Moreover, the court ruled that (3), but she dissented on the ground Bagdasarian intended his statement to be that she believed understood as a threat. “Not for the fi rst time, a loathsome the government met Applying the objective standard, its burden on both the court rejected the government’s individual has benefi ted standards. “There is argument that the fact that Bagdasarian from a robust — and correct suffi cient evidence to posted the comments under a — interpretation of the 1st fi nd Mr. Bagdasarian pseudonym supported a fi nding that Amendment.” guilty of threatening a reasonable person would consider harm against then- them to be a serious threat. “We grant — Los Angeles Times presidential candidate that in some circumstances a speaker’s July 25, 2011 Barack Obama,” anonymity could infl uence a listener’s Wardlaw wrote. perception of danger,” Reinhardt wrote. Wardlaw argued “But the Government offers no support because the emails “simply provide that the majority “fail[ed] to consider the for its contention that [Bagdasarian’s additional information … that ominous backdrop of America’s history comments] would be more rather than Bagdasarian may have believed would of racial violence, the uniquely racial less likely to be regarded as a threat tend to encourage the email’s recipient and violent undercurrents of the 2008 under circumstances in which the to take violent action against Obama,” presidential election, the entirety of Mr. speaker’s identity is unknown.” The court they did not provide support to the Bagdasarian’s postings on October 22 … also observed that the message board prosecution. The court explained that and the listeners who not only perceived was a “non-violent discussion forum” “incitement to kill or injure a presidential the posts as threatening when they were of fi nancial matters, which it argued candidate does not qualify as an offense made, but who acted on that perception.” “would tend to blunt any perception that under § 879(a)(3).” The court based With these contextual factors in mind, statements made there were serious its reasoning on Roy v. United States, along with “our country’s collective expressions of intended violence.” 416 F.2d 874 (9th Cir. 1969), where experience with internet threats and The court also found the fact the 9th Circuit found that incitement postings that presaged tragic events” that several other forum users were was not a punishable offense under 18 such as school shootings, a reasonable apparently alarmed by Bagdasarian’s U.S.C. § 871, a statute which applies person could have objectively considered comments did not support a fi nding to threats against the president or Bagdasarian’s comments to constitute that a reasonable person would successors to the presidency. The court threats punishable under § 879(a)(3), consider them to be a true threat. “We also said it concluded that incitement Wardlaw wrote. fail to see why the fact that several is not punishable under § 879(a)(3) Wardlaw also cited the case of New people had negative reactions to the “on the basis of the plain language of Jersey blogger and Internet radio host messages should be taken to mean that the statute,” which does not mention Hal Turner, who was convicted in they or others interpreted them as a incitement. Therefore, the court said, August 2010 of threatening to kill three threat,” Reinhardt wrote, adding that even if Bagdasarian’s comments could Chicago-based federal judges after he it was “more signifi cant that among reasonably be interpreted as a prediction wrote that they “deserve to be killed” and the numerous persons who read that Obama would be killed or as that “their blood will replenish the tree Bagdasarian’s messages, the record encouragement to others to kill him, of liberty” and would be “a small price reveals only one who was suffi ciently they would not qualify as an offense that to pay to assure freedom for millions.” disturbed to actually notify the could be prosecuted under § 879(a)(3). Wardlaw observed that a district judge authorities.” Moreover, the court explained, even if had declined to dismiss the case on the In considering whether Bagdasarian incitement was punishable under the grounds that Turner’s physical distance had the subjective intent that his statute, neither Bagdasarian’s statement from Chicago diminished his threat, comments be considered true threats “shoot the nig” or that Obama “will have stating that “in an era when physicians against the life of candidate Obama, the a 50 cal in the head soon” would satisfy have been murdered in their places of court found that neither the fact that he the requirement under the U.S. Supreme worship; families of Judges have been owned a .50 caliber gun nor his Election Court’s holding in Brandenburg v. Ohio, slain; a Judge of the Eleventh Circuit Day email reference to using such a 395 U.S. 444 (1969) that, in order to Court of Appeals and State Court Judges weapon to “shoot the nigga’s car” was remove constitutional protection from Threat, continued on page 40 39 Legal and Ethical Issues Arise when bin Laden Dies

News Media, Advocacy Media Organizations File FOIA fact of the matter is this is somebody Groups Seek Documentary Requests for bin Laden Raid who was deserving of the justice he Evidence; Critics Discuss Evidence received.” MSNBC reported May 5 that In a May 3 interview on “NBC Nightly White House Press Secretary Jay Carney Coverage News,” then-CIA director Leon Panetta said the administration had concerns he death of al-Qaida leader told anchor Brian Williams that a photo about releasing any bin Laden death Osama bin Laden on May 2, proving bin Laden’s death “would be images because they could be gruesome 2011 quickly raised issues presented to the public.” Panetta added, and because their release could be of access to information “the bottom line is that, you know, we infl ammatory. and ethics for media got bin Laden and I think we have to Reuters reported May 10 that the CIA organizationsT seeking to report the story reveal to the rest of the world the fact made post-mortem photos of bin Laden fully and independently. that we were able to get him and kill available to members of the Senate News media organizations and him.” However, the White House said the Intelligence Committee and Senate advocacy groups sought access to following day that no fi nal decision had Armed Services Committee, who could information about the Navy SEAL raid been made regarding the release of any make appointments with the CIA to view in Abbottabad, bin Laden death photos, and none has them. According to a May 12 Politico. Pakistan that been released to date. com report, Freedom of Information Act MEDIA ETHICS resulted in In an interview broadcast May 4, (FOIA) requests for photos and video bin Laden’s President Barack Obama told Steve of bin Laden and the raid began “piling death, especially post-mortem photos. Croft of CBS’s “60 Minutes” he would up” at the Defense Department and the Government offi cials fi rst indicated that not authorize the release of post-mortem CIA in the hours after bin Laden was they would release photos, but later images of bin Laden. “It is important to reported killed. A May 9 report by The reneged on that promise. Meanwhile, make sure that very graphic photos of Atlantic Wire, a website associated with media analysts offered suggestions on somebody who was shot in the head are The Atlantic magazine, listed media how to handle the photos if they were not fl oating around as an incitement to organizations including The Associated released, and examined coverage of the additional violence or as a propaganda Press (AP), Politico.com, Fox News, raid and bin Laden’s death. tool,” Obama said. He added, “we don’t and National Public Radio (NPR) as well trot out this stuff as trophies. The bin Laden, continued on page 41

Threat, continued from page 39 have been blown up or shot; a Federal a solicitation to harm the juror, and that to fi nancial matters tended to “blunt” Courthouse ripped apart by homemade the posts were protected by the First a perception that they were serious. explosives, all in the name of political Amendment. United States v. White, No. “That he posted on a fi nancial message dissent or religious fanaticism, it cannot 09-2916, 2011 U.S. Dist. LEXIS 42026 (N. board does not diminish the nature of be said that Defendant’s statements Dist. Ill., April 19, 2011) The April 2011 the threats,” Wardlaw argued, “just as are unlikely to incite imminent lawless ruling was the second time Adelman they would be no less diminished had action.” United States v. Turner, No. 09- addressed the White case. He dismissed he shouted them on the fl oor of the New 00650, 2009 U.S. Dist. LEXIS 131244, (E. the charge against White in July 2009, York Stock Exchange.” Dist. N.Y., 2009) (For more on the Turner ruling that it failed to allege a solicitation In a July 25 editorial, the Los Angeles case see “Turner Convicted for Online and violated the First Amendment, but Times praised the ruling, saying that Threat against Federal Judges” in the a three-judge panel of the 7th Circuit “not for the fi rst time, a loathsome Summer 2010 issue of the Silha Bulletin Court of Appeals reversed Adelman’s individual has benefi ted from a robust and “Blogger White Convicted; Two decision in June 2010. (For more on — and correct — interpretation of Mistrials for Turner” in the Winter/Spring the case, see “Blogger Charged with the 1st Amendment.” Peter Scheer, 2010 issue.) Inciting Attacks on Judges, Lawmakers,” executive director of the California First In a similar case, however, on April 19, under the subhead “Blogger Acquitted Amendment Coalition, told the Times 2011, U.S. District Judge Lynn Adelman of Soliciting Harm to Juror, Remains in for a July 20 article that although he overturned a federal jury’s conviction Custody” in the Summer 2009 issue of thought the majority “got it right,” the of white supremacist blogger William the Silha Bulletin and “Turner Convicted ruling “pushes it to the limit” and “I only White, who was indicted in 2009 for for Online Threat against Federal feel comfortable saying that having 20- “soliciting a crime of violence” against Judges” in the Summer 2010 issue, under 20 hindsight in knowing that the threat the foreman of a Chicago federal jury. the subhead “Charge Reinstated against wasn’t carried out.” Adelman ruled that the government Blogger William White.”) – PATRICK FILE failed to present suffi cient evidence to Wardlaw’s dissent also argued against SILHA BULLETIN EDITOR meet either an objective or subjective the majority’s fi nding that the fact standard that White’s posts constituted that the message board was devoted 40 bin Laden, continued from page 40 as advocacy groups Judicial Watch and theories about whether bin Laden News, a publication of the Federation Citizens United as having fi led FOIA was actually killed, but added that he of American Scientists, told Politico. requests related to the raid. Politico.com had no doubt that the al-Qaida leader com he doubts that the post-mortem reported that then-Defense Secretary was killed by U.S. soldiers in the raid. photos are properly classifi ed. “To do so Robert Gates said he and Secretary of “There’s not a question of that. There is would require a determination that their State Hillary Clinton recommended just a question of providing information disclosure would somehow ‘damage against releasing the photos in part required by the rule of law,” Fitton said, national security,’ which seems far- because they were worried that adding a criticism of Obama’s record fetched,” he said. people would use Photoshop or other on transparency: “the gaps between NBC News reported that a poll technology in “outrageous” ways that the president’s rhetoric and his actions, conducted the week of bin Laden’s death could incite violence against U.S. troops. especially in this historic instance is [sic] revealed nearly two-thirds of Americans The AP reported May 18 that the astonishing.” agreed with the president’s decision to Defense Department had refused the withhold the photos wire service’s request for an expedited “It is important to make sure that and only 29 percent review of its FOIA request, which very graphic photos of somebody favored releasing them. Politico.com was fi led less than 24 hours after bin who was shot in the head are not Laden’s reported death and asked for reported that editors records including contingency plans fl oating around as an incitement seeking the photos for bin Laden’s capture, reports on the to additional violence or as a say that they want to performance of equipment during the propaganda tool.” pursue all avenues of mission, copies of DNA tests confi rming information about the bin Laden raid. “We bin Laden’s identity and video and — President Barack Obama photographs taken from the mission, have always come including any photos made of bin Laden down on the side of after he was killed. The May 12 Politico.com story said more information and transparency,” The AP reported that it appealed experts are divided on whether the said Bill Hamilton, a Politico deputy the refusal for speedy review, arguing groups seeking disclosure are likely to managing editor. AP Senior Managing that bureaucratic delays harm the succeed. Dan Metcalfe, an American Editor Michael Oreskes said the AP public interest and allow U.S. offi cials University law professor and former fi led its request on the morning of the to selectively and anonymously leak co-director of the Justice Department raid, but did not necessarily intend to details of the mission. According to the offi ce overseeing FOIA policy, told publish any photos or documents it AP, the Defense Department said the AP Politico.com “there’s a much better than obtained. “We have a long history of failed to demonstrate a compelling or 50-50 chance the government would looking at complicated, diffi cult, literally urgent need to review records or show not prevail” in lawsuits over the photos. explosive material and deciding what is that the particular value of information However, Alan Morrison, co-founder of and isn’t appropriate to use. We think would be lost if it was not provided in an Public Citizen Litigation Group and a those judgments belong in the hands of expedited fashion. Judicial Watch fi led lawyer with decades of experience in journalists in most cases,” Oreskes told a lawsuit in U.S. District Court for the seeking access to government records, Politco.com. District of Columbia seeking to force said the chances of obtaining the records NPR said its FOIA request was the Justice Department and the Central are “between slim and none,” Politico. not meant to indicate it was “at all Intelligence Agency (CIA) to release com reported. “No court is going to dismissive” of the government’s concerns the post-mortem bin Laden photos. On overturn a presidential decision on this about national security and that it would July 27, Federal District Judge James E. matter,” Morrison said. The lawyers seriously discuss publishing the photos if Boasberg approved a briefi ng schedule said the government could use various it obtained them, according to a May 11 under which the government agreed to arguments to withhold the records, with story on The Atlantic Wire website. NPR fi le its motions for summary judgment national security being the most likely. Executive Editor Dick Meyer told The explaining their rationale for withholding Under 5 U.S.C. § 552 (b)(1), Atlantic Wire that it was diffi cult for him the material by Sept. 26, 2011. Politico. FOIA’s “national security” exemption, to see how any of the reasons Obama com blogger Josh Gerstein reported May government agencies can refuse to gave for withholding the photos would 13 that Judicial Watch President Tom disclose records that are “specifi cally outweigh the public’s right to see them. Fitton said in a news conference that he authorized under criteria established “If the pictures were grotesque because did not understand why the material was by an executive order to be kept secret they showed a body shot multiple “being considered a state secret.” Fitton in the interest of national defense or times, that would also have news value countered arguments about the release foreign policy and are in fact properly wouldn’t it? That would inform us of the photos inciting violence, saying, classifi ed pursuant to such an executive about what happened in the mission,” “the infl ammatory act … was killing bin order.” Steven Aftergood, an expert on Meyer said, adding, “I can’t imagine [the Laden.” Fitton said that releasing the government classifi cation of documents pictures’ grotesque nature] trumping the photos might also help quell conspiracy and publisher of the blog for Secrecy news value of the image.” Meyer said in bin Laden, continued on page 42 41 bin Laden, continued from page 41 the interview that one potential reason White House Correspondent and now Wolf Blitzer, who were on the air before the photos may not be released is if University of South Carolina College of Obama announced in a press conference any of the Navy SEALS involved in the Mass Communications and Information that bin Laden had been killed. Barrett mission are identifi able. Studies Dean Charles Bierbauer said, observed that Rivera was willing to In a May 3 report by Al Tompkins “There’s a certain test of journalistic speculate freely with his in-studio of journalism think tank the Poynter faith here. When the President of the analyst, Ret. Gen. Thomas McInerney, Institute, Bob Steele, a journalism ethics United States comes out and says Osama about what the president would say professor at DePauw University, said that bin Laden is dead, it’s such a straight before the press conference began. CNN, if the bin Laden photos were released declarative sentence. There’s no reason Barrett wrote, was much more careful or leaked to the press, newsrooms for him to say it if there were an iota in what it reported. She said Blitzer was should keep two things in mind when of uncertainty.” Hochberg said some so cautious in his predictions about the making decisions about how to use media organizations were more cautious contents of Obama’s speech that he was them: “verifi cation and accountability.” “ultimately scooped Steele said, “we are hearing specifi cs “We have a long history of looking by his colleague, John that he was shot in the head and that King.” is how he died. There is an argument at complicated, diffi cult, literally Poynter associate by some that he was assassinated as explosive material and deciding what editor Mallary Jean opposed to killed in a fi refi ght. A photo is and isn’t appropriate to use. We Tenore focused on adds one more piece to a large puzzle in think those judgments belong in the techniques used by helping us fi gure out what happened.” newspaper designers Steele also stressed that journalists help hands of journalists in most cases.” to capture bin Laden’s keep government offi cials accountable death on newsprint in — Michael Oreskes for their actions. “No matter what one a May 6 website post. Senior Managing Editor, believes about the right or wrong of what One of the most popular Associated Press took place, the administration, the CIA, photos of bin Laden and the military should be accountable showed him looking for what happened,” he said. about reporting bin Laden’s death as off to the side, Tenore reported. Tamara fact in their initial reports. “The banner Dunn, a copy editor for The Citizens’ Ethics and Professionalism in bin headline in [the May 2] New York Times Voice, a Wilkes-Barre, Pa. newspaper, Laden Coverage print edition attributed to President said she was confi dent that she would In a May 3 website post, Poynter Obama the claims that bin Laden had use the photo of bin Laden looking to reporter Adam Hochberg observed that been killed. Stopping short of confi rming the side for the cover. “That was the one although “most of what President Obama the terrorist leader’s death, the Times photo that was always so striking and says is questioned by the media and the conspicuously noted that he had been menacing,” she said in a phone interview blogospere,” most news reports appeared ‘reported dead.’” Other publications that with Tenore. “Whenever I think of bin to readily accept the president’s timeline explicitly noted the White House report Laden, I think of that photo.” Tenore of events regarding the bin Laden raid. as a source were The Gadsen (Ala.) observed that many newspapers also “Obama’s speeches are parsed for Times, where the page one headline said, used short, bold headlines like “Payback” factual errors and exaggerated claims, “Obama: Bin Laden is dead,” and The and “No more.” Tenore reported that his budget plans are analyzed for Fayetteville (N.C.) Observer, Hochberg Brownsville (Texas) Herald Managing over-optimistic predictions and fuzzy said. “We got our information through Editor Ryan Henry said he looked for a math, and — of course — questions Administration sources and then through headline that relayed “anger and justice” about his birth have swirled through the President directly, and that was in designing the May 3 front page. He cyberspace for years despite evidence refl ected in our headline,” New York ultimately decided on “Retribution.” debunking the conspiracy theories,” but Times spokeswoman Eileen Murphy CJR’s Linette Lopez reported that news organizations celebrated as they told Hochberg in an interview. She said state-funded television throughout the reported the news of bin Laden’s death, the headlines attached to online stories world covered the news of Osama bin Hochberg wrote. Headlines like “DEAD,” became defi nitive as Times editors Laden’s death in various ways. For on Huffi ngtonPost.com and “We got “became more comfortable” leaving out example, Russia’s RT network did not him!” from the Fort Worth Star-Telegram the White House attribution. interrupt programming to bring viewers showcased the excitement of the media. Liz Cox Barrett of the Columbia “the actual president, announcing Hochberg said news organizations did Journalism Review (CJR) compared his momentous news,” Lopez wrote; not have independent sources confi rming how Fox News and CNN covered the the news eventually appeared in a bin Laden’s death, but rather relied breaking news in a May 2 post on ticker on screen. Iran’s Press TV was only on information provided by the the CJR website. Barrett looked at skeptical about when bin Laden was White House and the Pentagon. In an transcripts of reports by Fox News actually killed, Lopez reported, with one interview with Hochberg, former CNN anchor Geraldo Rivera and CNN anchor interview suggesting he had been killed

42 years ago and that the news was only that he spoke with them directly.” But 11 report about the controversy, wrote being announced to bolster Obama’s Schmidle and New Yorker Editor David that there are ways for journalists to be popularity. CCTV, a global English Remnick dismissed criticism. In an transparent about their sourcing without language channel based in China, did email to Women’s Wear Daily columnist bogging down a narrative piece with not question the president’s credibility Zeke Turner, which Turner quoted in attributions. Tenore cited the way the St. and congratulated the U.S. on a “major an August 8 column, Remnick said “the Petersburg Times handled attribution accomplishment,” Lopez reported. piece does not say that Nick interviewed for its Pulitzer Prize-winning story, “The France 24, a government-funded channel, the SEALs. In all, he interviewed offi cials Girl in the Window.” The story included included social media in its coverage, with direct access both in the military, a source box that explained that parts Lopez wrote, by following reactions intelligence and in the White House; of the story were reconstructed from on Twitter and Facebook and using some of those offi cials are quoted by interviews and “hundreds of pages of Google maps. Al-Jazeera had some of name, some not — hardly unusual. All police reports, medical records and court the most comprehensive coverage with documents.” Tenore said eyewitness accounts of the events at “There’s a certain test of journalistic The New Yorker could the compound, its own footage, and faith here. When the President of have done something commentary about what the death similar for the bin Laden would mean, Lopez reported. the United States comes out and piece. Schmidle’s narrative An article in the August 8 edition says Osama bin Laden is dead, it’s said the story was based of The New Yorker magazine detailing such a straight declarative sentence. on SEALs’ “recollections,” the bin Laden raid drew criticism There’s no reason for him to say it if which Tenore called “an over its use of sources. Washington interesting way of putting Post reporter Paul Farhi observed in there were an iota of uncertainty.” it” since he had not spoken an August 2 report that New Yorker personally to any SEALs — Charles Bierbauer freelance journalist Nicholas Schmidle involved in the Abbottabad Dean, University of South Carolina College did not obtain the details in his 8,000- raid. Schmidle responded of Mass Communications and Information word “Getting bin Laden” story from that recollections can be Studies any of the Navy SEALs involved in the relayed in different ways raid, but rather from others who had — fi rst hand interviews, debriefed them after the raid. However, but also transcripts Farhi wrote, “a casual reader of the of these sources were known to Nick’s and other types of recordings and article wouldn’t know that; neither the editors and spoke extensively with two documents. “There are multiple ways to article nor an editor’s note describes experienced New Yorker fact-checkers.” access someone’s experience besides the sourcing for parts of the story. … Turner called it “reasonable” to interviewing them,” he said. “That’s Schmidle, in fact, piles up so many inquire why the story did not explicitly part of the challenge — and excitement details about some of the men, such note that no SEALs were interviewed — of reporting and writing narrative as their thoughts at various times, that when it contained details of SEALs’ nonfi ction.” the article leaves a strong impression individual thoughts. Tenore, in an August – HOLLY MILLER SILHA RESEARCH ASSISTANT

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