A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | WINTER/SPRING 2018 Special Series We devote the fi rst three articles of this issue of the Silha Bulletin to the ethics of covering President Donald Trump, President Trump’s supporters, and the “altright.” We examine the media ethics concerns that arise when news organizations cover a presidency that many individuals, from a variety of viewpoints, consider unconventional. The Ethics of Covering President Donald Trump n the winter and spring of 2017 and 2018, media “reveals what happened behindthescenes in the fi rst nine organizations and experts grappled with ethical and legal months of the most controversial presidency of our time.” questions regarding the coverage of President Donald The book covered several topics, including the fi ring of Trump and his administration. In early January 2018, Federal Bureau of Investigation (FBI) director James Comey journalists and other observers raised ethical concerns and the White House staff’s thoughts and comments on Iabout author Michael Wolff’s methodology in his book Fire and President Trump. The book also contained several controversial Fury, which described behindthescenes details of President quotes attributed to Steve Bannon, the former White House Trump’s White House. The Trump administration’s cease and Chief Strategist, including that the Special Counsel investigation desist letter, and the publisher’s decision to publish the book led by Robert Mueller into possible collusion between President anyway, also raised legal concerns. On January 12, President Trump’s administration and Russia would “crack [Donald Trump Trump reportedly called Haiti, El Salvador, and African nations Jr.] like an egg on national TV.” “shithole countries,” leading media outlets to weigh whether to According to Politico on January 4, Wolff described himself publish or broadcast the word, again citing both ethical and legal in the book as a “constant interloper,” who was able to “observe issues. the chaos around him” because there was no one imposing order. He added, “Some of my sources spoke to me on socalled Book About the Trump Administration’s White House deep background, a convention of contemporary political books Raises Ethical and Legal Questions that allows for a disembodied description of events provided by On Jan. 3, 2018, The Guardian and New York magazine an unnamed witness to them.” published leaked portions of Fire and Fury: Inside the Trump After The Guardian and New York magazine leaked portions White House, a book describing behindthescenes details about of Fire and Fury, and following the publication of the book President Donald Trump’s White House and administration. The on January 5, observers raised ethical concerns about Wolff’s book raised several ethical concerns about the methodology methodology. First, several news organizations pointed out of the book’s author, Michael Wolff. Additionally, the Trump that Wolff’s credibility had been questioned in the past. Politico administration’s effort to stop the publication of the book in noted on January 4 that Michelle Cottle of The New Republic, a a January 4 cease and desist letter, and the publication of the liberal magazine, wrote in a 2004 profi le of Wolff that “the scenes book by publisher Henry Holt and Company despite the letter on in his columns aren’t recreated so much as created — springing January 5, led to several legal questions, including whether Wolff from Wolff’s imagination rather than from actual knowledge of had defamed President Trump. events.” She added that instead of using conventional reporting, On Jan. 3, 2018, The Guardian reported that author Michael Wolff “absorbs the atmosphere and gossip swirling around him Wolff, who previously contributed to USA Today, The Hollywood at cocktail parties, on the street, and especially during those Reporter, and other outlets, had reportedly conducted more long lunches at Michael’s.” than 200 interviews dating back to mid2016 with President In a 2008 review of Wolff’s biography of Fox News mogul Trump, his cabinet and inner circle, and several other individuals Rupert Murdoch, The Man Who Owns the News, the late New in and around the administration for his new book Fire and York Times media columnist David Carr wrote that “historically Fury. Henry Holt and Company is a subsidiary of Macmillan one of the problems with Wolff’s omniscience is that while Publishers, which stated on its website that Fire and Fury he may know all, he gets some of it wrong.” The full review is Inside This Issue Winter/Spring 2018: Volume 23, No. 2

1 The Ethics of Covering President Donald Trump 34 Judge Orders Certain Files from Wetterling Investigation Special Series Be Returned to FBI, Allows Release of Remaining State Documents 7 The Ethics of Covering President Trump’s Supporters Privacy Special Series 37 D.C. Circuit Finds FBI Failed to Conduct a “Reasonable”

9 The Ethics of Covering the “Alt-Right” Search of Records Regarding Media Impersonation Special Series FOIA

39 Minnesota Legislature Seeks to End Use of Cameras in 11 Federal Government Targets a Leaker and Backpage.com Courtrooms Federal Prosecutions Cameras in Courtroom 15 FCC Repeals Net Neutrality, Prompts Legal and Legislative 41 Jesse Ventura Reaches Settlement in American Sniper Responses Defamation Lawsuit Net Neutrality Defamation 19 Parkland Shooting Raises Ethical Questions about Covering 42 Minnesota Legislature Introduces an “Ag-Gag” Law; Federal Mass Shootings, Sparks Proliferation of Fake News and Appeals Courts Strike Down Two States’ Laws Conspiracy Theories Ag-Gag Laws Media Ethics 46 Special Report: Silha Center Interview with Panama Papers 23 Undercover Video Maker James O’Keefe Continues Attacks Journalist Kevin Hall on the News Media, Faces Setbacks in Some Legal Disputes Special Report Data Privacy 48 Spring Symposium Marks the 30th Anniversary of Hustler 28 Sinclair Broadcasting Group’s “Must-Run” Segment Raises Magazine, Inc. v. Falwell , Discusses History, Purpose, and Ethical Questions Impact of Political Cartoons Media Ethics Silha Center Events

30 Canada Passes Federal Shield Law; Courts Deny Requests to Compel a Journalist and Internet Media Company to Disclose Sources and Information Reporter’s Privilege

SILHA C ENTER S TAFF

JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW

SCOTT M EMMEL SILHA BULLETIN E DITOR

BRITTANY R OBB SILHA R ESEARCH A SSISTANT

ELAINE H ARGROVE SILHA C ENTER S TAFF 2 Trump, continued from page 1 This is a very interesting read but in terms of the way he available online at: https://www.nytimes.com/2008/12/28/books/ processed them, he admits in the author’s note that he let review/Carrt.html. people tell their own stories and he printed them.” She added, In a January 9 Slate book review, staff writer Isaac Chotiner “[I]t sounds like Michael Wolff’s modus operandi was to let wrote that Wolff “has been known to make lazy mistakes; he the people he interviewed spin yarns.. . . And then he didn’t tells stories that prompt eyerolls because something about necessarily factcheck them.” them just doesn’t ring true.” On January 9, PolitiFact reported that it had found seven In an author’s note, Wolff acknowledged that some of the errors in Wolff’s book, such as its claim that thenSpeaker of the stories in his book may be inaccurate. “Many of the accounts House John Boehner resigned in 2011 when it was actually 2015. of what has happened in the Trump White House are in confl ict However, PolitiFact argued that the “bigger problem with Fire with one another; many, in Trumpian and Fury . . . is that by any standard of sound journalism it has SPECIAL fashion, are baldly untrue,” he wrote. big problems with transparency and sourcing” and that it “hardly seems a move in the right direction for wellsourced, evidence SERIES “Those confl icts, and that looseness with the truth, if not with reality itself, are an based journalism. Instead it’s a stew of mysteriously sourced elemental thread of the book. Sometimes I have let the players dramatic scenes.” For example, PolitiFact noted that it was offer their version, in turn allowing the reader to judge them. In unclear whether Wolff interviewed Jared Kushner and Ivanka other instances I have, through a consistency in accounts and Trump, and whether he was actually the witness to certain through sources I have come to trust, settled on a version of events, such as an alleged confrontation between Ivanka Trump events I believe to be true.” and Bannon. Second, several news outlets alleged that Wolff had used On January 4, Politico contended that Wolff “appear[ed] to interviews that were conducted “off the record” or that the have mastered a journalistic skill that allows him to suck up interviewee did not realize was a formal interview, according one moment and then, when seated at the keyboard, to spit to The Washington Post on January 7. The Post concluded that out.” The following day, CJR differentiated Wolff’s methodology “the lesson is there for the taking but certain to be ignored again from reporting by traditional outlets. According to CJR, Wolff and again: Let the speaker beware.” practiced “access journalism,” which “does not replace other Jim VandeHei and Mike Allen, the cofounders of the news forms of journalism—it augments it,” but requires “prioritizing website Axios, called Wolff's “liberties with offtherecord access over accountability.” Conversely, traditional outlets comments . . . ethically unacceptable to nearly all reporters” in a “[play] a different game. Yes, they occasionally produce gossipy January 5 story. They continued, “In the past year, we have had accounts of the president’s diet, both media and culinary, and many of the same conversations with the same sources Wolff they work to maintain relationships that will allow for sitdowns used. We won’t betray them, or put on the record what was with principals. But they also probe beyond the surface of off.” Nevertheless, they conceded that Wolff’s alleged tactics backstabbing and palace intrigue to unearth scoops.” “have the effect of exposing Washington’s insider jokes and In a March 26, 2018 interview with Vassar College’s The secret languages, which normal Americans fi nd perplexing and Vassar Political Review , Wolff conceded, “I’m not a political detestable.” journalist. I’m not, frankly, all that much interested in politics.” In a January 4 tweet, Bloomberg View columnist Joe Nocera He added, “I’m a writer. I’m barely a journalist, actually. I am a wrote, “I wonder how many [White House] staff told Wolff writer.. . . All I do is look and write what I see and what I hear, things off the record that he then used on the record.. . . He’s and my job — which has nothing to do with truth — is to take never much cared about burning sources. Can’t imagine that what I see and what I hear and write that in a way that readers many of those quotes were meant for publication.” Editor of the can come [as close] as possible — as close as I came — to the Bloomberg View opinion columns Jonathan Landman agreed in experience of doing this.” an interview with the Post. “My personal practice is to speak on Despite the ethical concerns raised regarding Wolff’s the record or keep my mouth shut,” he said. methodology, several journalists defended him. In a January 4 However, in an interview on NBC’s “Today” show on January tweet, Hollywood Reporter copresident Janice Min wrote that 5, Wolff denied using material taken “off the record.” “Whether “every word [she’d] seen from the book . . . [was] absolutely [they] realized it was an interview or not, I don’t know, but accurate” regarding a discussion of a dinner party hosted by it certainly was not off the record,” he said. But when asked Bannon and the late Roger Ailes, who was previously CEO of whether he misled anyone while in the West Wing, Wolff Fox News and Fox Television Stations Group. Jonathan Weber, asserted, “I said whatever was necessary to get the story.” the global technology editor at Reuters, posted a tweet in which On January 4 and 5, Politico and the Columbia Journalism he explained that he “once had the pleasure of editing [Wolff’s] Review (CJR) noted that Wolff had previously criticized the columns at the Industry Standard” and that “[n]othing ever led media in order to gain access to the White House and gain me to doubt his reporting.” the favor of President Trump. CJR wrote that Wolff “played a Fire and Fury also raised several legal concerns. On Jan. nefarious role in discrediting real reporting by hardworking 4, 2018, an attorney for President Trump sent a ceaseand journalists through his selfinterested critiques,” even though desist letter to Steve Rubin, the president of Henry Holt and Wolff “never could have written his book without the hard Company, as well as to Wolff, “demand[ing] that [the publisher] work of journalists over the past year; the fi re he catalogs was immediately cease and desist from any further publication, often fueled by stories from mainstream reporters.” Politico release or dissemination of the Book, the Article, or any concluded that Wolff knew that the “greater the criticism from excerpts or summaries of either of them, to any person or entity, the press . . . the greater likelihood the Trumpies would embrace and that [it] issue a full and complete retraction and apology to him.” In a February 5 interview on CNN, Wolff admitted that he [President Trump] as to all statements made about him in the was “sucking up a bit to get access.” Book and Article that lack competent evidentiary support.” Finally, several observers contended that Wolff was not The letter contended that the false statements made about practicing conventional journalism. On January 5, CNN “New President Trump in the book, as well as excerpts in an article Day” cohost Alisyn Camerota said, “This isn’t really journalism. Trump, continued on page 4 3 Trump, continued from page 3 interference with the [a]greement, and to McNamara, a “claim that the privacy inducement of Mr. Bannon to breach of of the President of the United States in New York magazine written by Wolff the Agreement.” [had] been violated by a book reporting (article), gave rise to several legal claims. The letter provided a series of on his campaign and actions in offi ce” First, the letter contended that Wolff and instructions in order to comply with the (emphasis in original) was “patently the publisher were liable for libel and demand that Wolff and the publisher ridiculous.” libel per se. The letter explained that “preserve, and not delete, destroy, hide or Finally, McNamara argued that Bannon New York law defi nes libel “as a written misplace, all documents, communications “had already communicated with Mr. statement of fact regarding the plaintiff and materials of all types, in both Wolff freely and voluntarily well before published by the defendant that is false physical and electronic form, that refer to the ‘notice’” provided by Harder’s letter and causes injury to the plaintiff.” Libel or relate to in any way to [Fire and Fury] regarding Bannon’s agreement with per se “involves a false allegation that . . . the [a]rticle, . . . Mr. Trump, any/all President Trump. She claimed that it was a person is engaged in a crime, or that of his family members, and/all of their Bannon’s responsibility, not Wolff’s or otherwise tends to injure a person in his businesses, and/or the Donald J. Trump the publisher’s, “to honor any contractual or her trade, business, or profession” and for President campaign.” obligations.” Such a use of private means the statement is defamatory “on The letter was signed by Charles contracts to “act as a blanket restriction its face.” Harder of Harder, Mirell, and Abrams on members of the government speaking Second, the letter argued that the LLP, who is best known for his victorious to the press” is a “gross violation of statements in the book and article lawsuit against media gossip website the First Amendment,” according to constituted false light invasion of privacy, Gawker on behalf of former professional McNamara. meaning they were “public statement[s] wrestler Hulk Hogan, as well as his more The New York Times reported on about a person that either is false or recent legal attacks on technology news January 4 that Fire and Fury would places the person in a false light, is highly website TechDirt and women’s website offi cially go on sale the following day offensive to a reasonable person, and is Jezebel. (For more information on Harder due to high demand, and despite the made in reckless disregard of whether and his lawsuits against media outlets, cease and desist letter. In a January 8 the information is false or would place see “Attorney Charles Harder Continues email to employees, Macmillan CEO the person in a false light.” The letter Attacks on News Websites by Filing John Sargent defended the publication explained that false light invasion of Defamation Suits” in the Fall 2017 issue of the book, calling President Trump’s privacy includes “embellishment,” the of the Silha Bulletin, “Gawker Shuts attempt to block it “unconstitutional,” addition of false material to an otherwise Down After Losing Its Initial Appeal of according to Time magazine the same true story, and “distortion,” the arranging $140 Million Judgment in Privacy Case” day. He wrote, “[A] demand to cease of truthful information in a way that in the Summer 2016 issue, and “Gawker and desist publication — a clear effort creates a false impression about the Faces $140 Million Judgment after by the President of the United States subject. Losing Privacy Case to Hulk Hogan” in to intimidate a publisher into halting Third, the letter asserted that the Winter/Spring 2016 issue.) The full publication of an important book on President Trump and his counsel letter is available online at: https://www. the workings of the government — is could prove actual malice, a standard politico.com/f/?id=00000160c1d4dcd4 an attempt to achieve what is called established by the U.S. Supreme Court a96bf5fd89f70001. prior restraint. That is something that in New York Times v. Sullivan that In response to the letter, Elizabeth no American court would order as it public offi cials have to show that an A. McNamara, a partner at Davis Write is fl agrantly unconstitutional.” Sargent individual or organization had knowingly Tremaine representing Henry Holt and continued, “We need to respond strongly published false information or acted Company, fi rst addressed Harder’s for Michael Wolff and his book, but also with reckless disregard for the truth. claims of libel and libel per se. She wrote for all authors and all their books, now 376 U.S. 254 (1964). The letter cited that the ceaseanddesist letter did not and in the future. And as citizens we must Wolff’s author’s note in which he identify “a single statement in the book demand that President Trump understand admitted that the book contained untrue that is factually false or defamatory.” and abide by the First Amendment of our statements. Additionally, the letter McNamara contended that the letter Constitution.” contended that the book “appear[ed] to instead appeared “to be designed to As the Bulletin went to press, no legal cite to no sources for many of its most silence legitimate criticism. This is the action had been announced against Wolff, damaging statements about Mr. Trump” antithesis of an actionable libel claim.” Henry Holt and Company, or Macmillan. (emphasis in original) and that many She continued, “We have no reason to of Wolff’s alleged sources had denied doubt — and your letter provides no Media Organizations Face Ethical and speaking to him or making the statements reason to change this conclusion — that Legal Questions Following President attributed to them. Mr. Wolff’s book is an accurate report Donald Trump’s Use of Profanity Finally, the letter alleged that Wolff on events of vital public importance.” In a January 2018 meeting with several and Henry Holt and Company were Furthermore, McNamara explained that lawmakers regarding immigration, liable for “inducement of breach of Wolff’s author’s note did not admit that President Donald Trump reportedly Mr. Bannon’s written agreement” with the book contained untrue statements, asked “Why do we want all these people President Trump that prevented Bannon but instead that he had probably been from shithole countries coming here?” from “[d]isclosing any confi dential told falsehoods, and, as a result, did not in reference to Haiti, El Salvador, and information to anyone of or about Mr. necessarily report them as true. African countries. The comment raised Trump,” among other provisions. The Second, McNamara contended that the ethical and legal concerns for media letter contended that because Wolff and false light invasion of privacy claim was organizations about whether to publish or the publisher were now aware of the “meritless” and “nonexistent” because broadcast the word “shithole.” agreement, the publication of the book “New York does not recognize such a On Jan. 11, 2018, The Washington Post would “give[] rise to claims of tortious cause of action.” Even if it did, according reported that President Trump, while 4 discussing protecting immigrants from Washingtonian , a Washington, D.C. as defi ned by a three pronged test Haiti, El Salvador, and African countries magazine, tracked how different media established by the U.S. Supreme Court as part of a bipartisan immigration deal, outlets covered President’s Trump’s in Miller v. California: Such content “grew frustrated” and asked, “Why are comments in their headlines. Numerous must appeal to an average person’s we having all these people from shithole print and online media outlets published prurient interest; depict or describe countries come here,” according to “shithole” in their headlines, including sexual conduct in a “patently offensive” several people briefed on the meeting, Time magazine, BuzzFeed, the Los way; and, taken as a whole, lack serious including Sen. Dick Durbin (DIll.). Angeles Times, the Huffi ngton Post, and literary, artistic, political or scientifi c President Trump then suggested that The Washington Post. value. 413 U.S. 15 (1973). Broadcast the United States should bring more Other print outlets chose to use stations are prohibited from broadcasting immigrants from countries like Norway, asterisks or other means of editing the profane or indecent material between while immigrants from Haiti should be word, such as “shole,” including The the hours of 6 a.m. and 10 p.m., with left out of the new immigration plan, Hill and the Daily Beast, among others. the remaining time referred to as “safe which included four immigration bills, According to the Poynter Institute harbor.” In order for the FCC to take each of which ultimately failed in the (Poynter) on January 12, some outlets action against a radio or television Senate, according to Vox on February 15. chose to keep the word in their story, station, it must fi rst receive a complaint President Trump denied using the but not in the headline. The New York from a member of the public. language in a January 12 tweet, which Times used “Trump Alarms Lawmakers Prohibition of such material fi rst read, “The language used by me at the With Disparaging Words for Haiti and appeared in the 1927 Radio Act, which DACA meeting was tough, but this was Africa” in its headlines, but kept the word provided that “[w]hoever utters any not the language used.” He added in in its story. The Pittsburgh Post-Gazette obscene, indecent, or profane language a second tweet, “Never said anything tweeted on January 11 that its publisher by means of radio communication shall derogatory about Haitians other than had requested that the paper “remove be fi ned under this title or imprisoned Haiti is, obviously, a very poor and [President Trump’s] ‘vulgar language’ not more than two years or both.” The troubled country.” In an interview from the lede in [its Associated Press] prohibition is now found under 18 U.S.C. on ABC’s “This Week,” Sen. David story about his vulgar language,” with § 1464. Perdue (RGa.) said the president did which the paper complied. In 1978, the U.S. Supreme Court not use the word, calling it a “gross Broadcast radio and television established the FCC’s authority to misrepresentation.” However, Sen. outlets not only faced ethical questions regulate indecency over airwaves. FCC v. Durbin maintained that President Trump about reporting on President Trump’s Pacifi ca, 438 U.S. 726 (1978). The Court had used the word. Additionally, Sen. Tim comments, but also faced legal questions, upheld the FCC’s decision that George Scott (RS.C.) told the Post and Courier such as whether they could be penalized Carlin’s famous “seven dirty words” on January 12 that Sen. Lindsey Graham by the Federal Communications monologue was indecent when carried (RS.C.) had told him the media reports Commission (FCC) for profanity or on the radio during times when children were “basically accurate.” indecency. According to The Washington could hear it. The remarks drew signifi cant criticism, Post on January 12, CNN and MSNBC However, the case left open the including from Rep. Mia Love (RUtah), used the word in capital letters in their question of whether the FCC could whose family is from Haiti. She said in a headlines appearing on the lower part of regulate the occasional swear word, statement that President Trump’s remarks the television screen. Conversely, Fox rather than the more systemic indecency were “unkind, divisive, elitist, and fl y News edited the word with asterisks. in Carlin’s case. During the 2003 Golden in the face of our nation’s values. This Lester Holt on “NBC Nightly News” Globe Awards, U2 singer Bono said after behavior is unacceptable from the leader warned viewers that the story would not receiving an award, “this is really, really, of our nation,” according to the Post. In a be appropriate for younger viewers, while fucking brilliant. Really, really great.” In statement condemning President Trump’s “ABC World News Tonight” anchor David response to complaints, the FCC said for remarks, Haiti’s ambassador to the United Muir said the president used “a profanity the fi rst time that a “single, nonliteral use States, Paul G. Altidor, said that “the we won’t repeat.” In a January 12 opinion of an expletive . . . could be actionably president was either misinformed or piece, National Public Radio (NPR) indecent.” On April 28, 2009, the Supreme miseducated about Haiti and its people.” ombudsman Elizabeth Jansen explained Court upheld the new “fl eeting expletives” White House spokesman Raj Shah that NPR initially did not use the word, standard, fi nding that the order was defended President Trump’s position but later changed its guidance to using not “arbitrary and capricious.” But on in a January 12 statement. “Certain the word on the air and spelling it out remand, the U.S. Court of Appeals for the Washington politicians choose to fi ght online following the January 12 Morning Second Circuit ruled that the standard for foreign countries, but President Edition, providing a brief warning to was unconstitutional, with which the Trump will always fi ght for the American listeners about the language. Supreme Court agreed in 2012, fi nding people,” he said. “Like other nations that The FCC defi nes profane content that the FCC retained its authority from have meritbased immigration, President as “grossly offensive language that is Pacifi ca to regulate indecency, but that Trump is fi ghting for permanent solutions considered a public nuisance.” Indecent the current regulatory implementation that make our country stronger by content is that “portray[ing] sexual or was invalid. welcoming those who can contribute excretory organs or activities in a way In April 2013, the FCC proposed a new to our society, grow our economy and that does not meet the threeprong enforcement approach for “egregious assimilate into our great nation.” test for obscenity.” Neither profanity situations.” The FCC issued a Public Amidst the backlash from President nor indecency rules apply to cable or Notice seeking comment on whether the Trump’s comments, media outlets satellite television channels, such as full Commission “should make changes to grappled with ethical and legal questions CNN, MSNBC, or Fox News, so long as its current broadcast indecency policies about using the word “shithole.” the content does not constitute obscenity, Trump, continued on page 6 5 Trump, continued from page 5 although news editors “often err on the determine how objectionable the side of decorum, cleaning up obscene word is. The second quadrant asks the or maintain them as they are.” As the language that could be offputting or organization to consider the news value Bulletin went to press, the FCC had not offensive to readers,” the consideration of the word, such as by determining fi nalized the rulemaking process. (For changes “when that language comes from “why does the public need to know the more information about the Pacifi ca the president of the United States.” Post unveiled truth of what was said.” The decision, the fl eeting expletive standard, executive editor Marty Baron said, “When third quadrant takes into account the and the egregiousness standard, see FCC the president says it, we’ll use it verbatim. “social and political contexts that will Reviews Policy on Indecent Speech in That’s our policy. We discussed it, quickly, infl uence the reception of the message.” “Busy FCC Reviews Indecency Policy, but there was no debate.” Clark continues, “The traditional phrase Rules on Mobile Data Privacy” in the to describe the Summer 2013 issue of the Silha Bulletin context of social and Supreme Court to Hear Arguments “In the context of this huge immigration acceptability was in FCC “Fleeting Expletives” Case in discussion . . . the newsworthiness is ‘good taste.’ If some “FCC Defends Regulatory Regimes in photo, image, or Court; U.K. Explores CrossOwnership absolutely clear . . . and is informing the language was in Regulations” in the Fall 2011 issue.) public.. . . [C]learly the use of this term ‘bad taste,’ it meant CBS News reported on April 4, 2018 would have political value because it tells that whatever that it had fi led a Freedom of Information good came from Act (FOIA) request that revealed media us something about what the president publication would coverage of President Trump’s remark is saying.” be neutralized had prompted 162 FCC complaints. 5 by the violation U.S.C. § 552. Tom Hollihan, a professor — Jane Kirtley, of community at the University of Southern California Silha Center Director and Silha Professor of standards. That’s who studies political communication, Media Ethics and Law why many editors called the number of complaints are guided by what “extraordinarily high” in an interview to publish — or with CBS News. The majority of the The Post also quoted Ben Zimmer, a not publish — in the context of a ‘family complaints targeted CNN, though NPR, linguist and lexicographer who writes newspaper.’” The fi nal quadrant takes NBC, and CBS were also named. As the a language column in The Wall Street into account the traditional “standards Bulletin went to press, the FCC had not Journal, who said, “It was incumbent and practices” of the news outlet, which announced whether any broadcast station on media outlets to present what he said should “not be ignored.” However, Clark would be fi ned or other action would be without expurgation or euphemization.” contends that “in the news crunch of taken. He added, “Certainly over the last 50 dramatic deviation from cultural, social In a January 12 interview with years, profanity or taboo terms have and political norms, a news organization Minnesota Public Radio (MPR), Silha gained more mainstream acceptance than is wise to reexamine its traditional Center Director and Silha Professor actually seen or printed in places, where values, being attentive to those rare of Media Ethics and Law Jane Kirtley they previously wouldn’t be considered moments and cases when those values said she would be “shocked if the FCC allowed.” fail to serve what the public needs.” did anything [in this case]” for several In an emailed statement published by In a January 16 story, Vox argued that reasons, including that the FCC “looks the Post, its associate managing editor the media should continue to adapt to at the context” of the use of the word, for standards explained that the “specifi c, the public’s shifting ideas about profanity such as whether it is newsworthy. Kirtley vulgar language the president was and language norms. The article, by contended that “[i]n the context of this reported to have used was really central John McWhorter, an associate professor huge immigration discussion, . . . the to the news here.” He continued, “So it of English and comparative literature newsworthiness is absolutely clear seemed pretty clear to all of us that we at Columbia University, suggested that . . . and is informing the public.” She should quote the language directly. We President Trump’s comments were a continued, “[C]learly the use of this term wanted to be sure readers would fully “teaching moment” in which the media would have political value because it tells understand what the story was about.” could “come to understand that some us something about what the president is On January 12, Poynter republished people’s conception of what profanity is saying.” However, Kirtley cautioned that a 2017 stepbystep guide for journalists has become disconnected from the reality because there was no evidence beyond to help determine whether they should of our times.” He suggested the media fi rsthand accounts about the actual publish a “dirty word.” Roy Peter Clark, should be less concerned about President words used by President Trump during who has taught writing at Poynter since Trump’s comments than uses of the the meeting, the media still took a risk 1979, wrote that he had adapted “The “nword” or “fword.” by publishing or broadcasting the word. Potter Box,” a fourquadrant model SCOTT M EMMEL She also warned against “gratuitous developed by Ralph B. Potter of Harvard SILHA BULLETIN E DITOR repetition” of the word beyond basic Divinity School to help communications newsgathering and journalistic purposes. professionals make ethical decisions in a On January 12, The Washington systematic way. Post explained that many newspapers The fi rst quadrant of Clark’s box and television stations were not editing recommends that organizations fi rst President Trump’s comments because,

6 The Ethics of Covering President Trump’s Supporters edia coverage of President page, including those regarding President reader who writes in to the Times editorial Donald Trump’s supporters Trump’s actions and policies related to ISIS, page, paired with Greens, neverTrump has prompted several ethical Israel, and tax reform, among other topics. conservatives, and everyone in between.” dilemmas in the year since Several letters were also critical of In a January 17 tweet, Amanda Litman, his election, including President Trump’s opponent during the the author of Run For Something: A Mcriticism that the coverage “normalizes” 2016 presidential campaign, Hillary Clinton. Real-Talk Guide to Fixing the System the ideas promoted by the president’s most Jason Peck from Holtsville, N.Y. wrote Yourself , a book encouraging young ardent supporters. On Jan. 17, 2018, The that he “voted against Hillary Clinton more progressive individuals to run for offi ce, New York Times than [he] voted for Donald Trump,” but wrote, “When’s the page full of letters from SPECIAL devoted its opinion also added that “President Trump ha[d] Dreamers? Or letters from young women of SERIES section exclusively exceeded [his] wildest expectations.” David color thinking about running for offi ce, or to letters from MacNeil from Chatham, N.J. wrote, “I voted from kids who are standing up to bullying, individuals who for Donald Trump and, considering the or Muslims who are enduring the rampant had voted for and continued to support alternative, I would do so again. Newsfl ash: Islamophobia?” In a tweet on the same President Trump. Several observers Not all Trump voters are Hillary Clinton’s day, Jamelle Bouie, Slate magazine’s chief criticized the content of the letters, as well ‘deplorables.’” The full series of letters is political correspondent, wrote, “[I]n the as the newspaper’s decision to reserve available online at: https://www.nytimes. interest of fairness the new york times [sic] the space for only President Trump’s com/2018/01/17/opinion/trumpvoters gave its editorial page over to republican supporters. Meanwhile, beginning with a supporters.html. partisans, a few racists, and people you can column on June 7, 2017, Gary Abernathy, On January 18, the Times ran a series of fairly describe as delusional.” the publisher and editor of Ohio’s Hillsboro letters from Trump voters who expressed In a January 18 piece, Salon writer Times-Gazette , was hired as a contributing regret and disillusionment after the fi rst Gabriel Bell asserted the Times “has a columnist for The Washington Post in order year of Trump’s presidency. The series of Trumpvoter fetish. Invested deeply in to represent and provide a voice to the letters, titled “The Furor Over a Forum for sharp, considered resistance to his policies roughly 46 percent of Americans who voted Trump Fans,” included a letter to the editor and behavior, the broadsheet has devoted for President Trump, drawing criticism by Sydney Cohan from Westwood, N.J. much ink to attempting to capture and from some readers and observers. who said she “vote[d] for Donald Trump, understand the mindset of the people on and I regret it.” Lawrence Rosencrantz of the other side of that particular coin, in The New York Times Publishes Full Portland, Ore., addressed a segment of the the useless pursuit of equal time.” Bell Page of Letters from President Trump’s editor’s note accompanying the letters. “As categorized the editorial board’s move Supporters to ‘helping readers who agree with us better not as a means to give voice to Trump’s On Jan. 17, 2018, The New York understand the views of those who don’t,’ supporters, but rather to “turn over” the Times dedicated its editorial page to 14 we need you to focus on solving the threats page to them entirely. She also called the letters submitted by President Donald to our democracy rather than focus ad compilation of letters a “poor replacement Trump’s supporters. The series of letters, nauseam on the supporters of the threats,” for serious commentary and valuable titled “‘Vision, Chutzpah and Some he wrote. analysis of why people actually support Testosterone,’” raised several ethical On the same day, the Times published Trump, why they believe he’s a worthy questions as well as criticism from several letters from readers both supporting leader, what brought them to this place” observers. However, James Bennet, the and criticizing the Times ’ decision to In response to the criticism, Bennet editorial page editor at the Times , defended publish the letters from President Trump’s told CJR on January 18 that the paper the decision to publish the letters, arguing supporters. One reader wrote, “I wanted to “consciously solicited input from Trump that “invit[ing] outside voices — often ones express my appreciation for these letters, supporters, in part to address a shortage of our readers disagree with . . . is what we and in particular to the people who came ready proTrump sentiment in its inbox.” do.” forward to express their views. I hope that Bennet added the editorial board was In a note at the beginning of the opinion these thoughtful voices can be the seed seeking Trump supporters to regularly page, the editorial board wrote that it had for real dialogue in what has too often write for the opinion section, but said previously been “sharply critical of the become a vicious shouting match in which “there’s a short supply of writers who Trump presidency, on grounds of policy both sides fl ing invectives at each other.” would live up to the rigorous standards the and personal conduct” and intended to use Conversely, a different reader wrote, “Dear section demands.” the fullpage spread “[i]n the spirit of open New York Times, Please don’t ever do that In a January 18 interview with The Daily debate” to “let Mr. Trump’s supporters make again.” Beast, Bennet explained that the 14 letters their best case for him as the fi rst year of The New York Times’ decision to run published by the Times were selected his presidency approaches its close.” the letters raised several ethical questions from nearly 100 responses to the paper’s In the titular letter, Steven Sanabria, a from observers. Jon Allsop, a Columbia solicitation of President Trump’s voters reader in Oakdale, Calif., contended that Journalism Review ( CJR) Delacorte asking whether they still supported him. President Trump “has succeeded where Fellow, questioned the decision to isolate He also defended the decision to publish [President] Barack Obama failed.” He proTrump sentiments from the rest of the the letters. “I thought what we got back continued, “The economy is up, foreign opinion section. “Partisans for the president was a really interesting group of letters tyrants are afraid, ISIS has lost most of its shouldn’t be given a special platform with from people who still support Trump, territory, our embassy will be moved to a chosen few perfectly composed, black making in some cases complicated and Jerusalem and tax reform is accomplished.” and white — and 100% white — portraits nuanced arguments about why,” Bennet Sanabria’s sentiments were largely shared alongside,” Allsop wrote. “Instead, they told The Daily Beast. “A lot of our readers by the other contributors to the opinion should be treated just like any other Supporters, continued on page 8 7 Supporters, continued from page 7 In an Aug. 1, 2017 column, Abernathy people—not just somebody inside the explained that his columns would also Beltway—who can write with some are baffl ed that anybody could still be “keep trying to represent . . . the people intellectual rigor and insight in a proTrump supporting this guy. And our readers tell and regions whose continued support for way, but also to refl ect the part of the us that they are interested in encountering the president seems such a mystery to so country that’s not very well represented in challenging opposing views. We were many, and from time to time touch on other our pages,” she said. presented with this opportunity to give subjects that might help explain the people, Abernathy’s columns in the Post have them unmediated, clear access to what infl uences and issues from Trump country.” drawn criticism from some readers these stillloyal Trump supporters think of He added, “Many of us will never agree on and observers. Two letters to the editor the guy. It seemed interesting to me.” politics. But if we try harder to understand published by the Post on Oct. 31, 2017 Bennet continued, “Look, I don’t for a each other, we might realize that we are on criticized Abernathy’s suggestion that moment dismiss the real sense of anxiety the same page more often than we think, leading media outlets “require a signifi cant that a lot of people have during this period,” and that our commonalities are greater internal overhaul” to “restore the majority he said. “There are people out there who than our differences — even among those of Americans’ faith in them.” One letter feel understandably scared. But I think it’s who enthusiastically support, and those contended that “Abernathy tied himself because people don’t understand where who aggressively resist, the presidency of in knots noting a few platitudes on the the support [for Trump] is coming from, Donald J. Trump.” importance of the administration deserving and part of our job is to inform them and In several of his other columns for close scrutiny from the press, while help explain it. And we invited outside the Post, Abernathy regularly called on claiming the media has devolved into an voices — often ones our readers disagree “big media,” his term for national news opposition party that is simply too tough with.. . . This is what we do.” organizations he alleges are biased against on the White House.” The second letter President Trump, to heed warnings and defended the press and argued that “the Outlets in Conservative Regions invitations from his columns. Abernathy’s mainstream media has a duty to call it Respond to Demand for Conservative March 12 column “Journalists should as they see it” and stated the author was Viewpoints look less at Trump and more in a mirror” “grateful that they fulfi ll their obligation to In 2017, The Washington Post tapped addressed Sunshine Week – created by keep the public informed of the unfortunate Gary Abernathy, the publisher and editor the American Society of News Editors state of our nation.” of Ohio’s Hillsboro Times-Gazette, as a (ASNE) to remind the public of the press’ On Dec. 31, 2017, the Post published contributing columnist providing a voice crucial role in ensuring open government another series of letters to the editor to the Americans who had voted for, and – by criticizing other outlets for their criticizing several of Abernathy’s other continued to support, President Donald categorization of Trump’s presidency as a viewpoints, such as his attribution Trump. The move prompted criticism from threat to such an ideal. “This [Sunshine] of gun violence to Western fi lms and some observers, who particularly took week, for the second straight year, the video games, as well as his defense of issue with Abernathy’s characterization presidency of Donald Trump is being used President Trump calling African countries of the mainstream media as being biased as a bogeyman to suggest that the media’s “shithole countries,” which also raised against President Trump, among other efforts are more endangered than ever,” several legal and ethical questions. (For claims. Abernathy wrote. more information on President Trump’s Following the election of President Additional columns by Abernathy comment, see “The Ethics of Covering Trump, newspapers in areas of explained “[w]hy [he] supported Donald President Donald Trump” in this issue of predominantly Trump supporters and Trump . . . and still do,” and why he will the Silha Bulletin.) voters recognized a gap in their opinion not “abandon” President Trump, among A separate letter to the editor on pages, according to the Columbia other topics. A full list is available online at: April 20, 2018 called into question the Journalism Review ( CJR) on April 10, https://www.washingtonpost.com/people/ Post’s handling of Abernathy’s political 2018. One such paper was the Tulsa World . garyabernathy/?utm_term=.3b831d6b9dfc. background. “Citing Abernathy merely In an interview with CJR, Wayne Greene, Ruth Marcus, deputy editorial page as the editor and publisher of a small the editorial editor for the Oklahoma editor for the Post, explained in an April circulation newspaper is inadequate and newspaper, explained that the newspaper 10 interview with CJR that Abernathy’s misleading,” the letter read. “The Post wanted to provide an avenue for discourse inclusion was one step in the paper’s effort should regularly note that Abernathy had amongst Trump supporters following his to diversify the offerings of the opinion served as communications director of election win. “We were struggling, he said. section. “He’s not just a proTrumpish the Ohio Republican Party, as executive “We were getting negative feedback from voice,” Marcus said. “He’s more of a Trump director of the West Virginia Republican readers who didn’t feel represented on our voter voice. He’s a different kind of voice Party and on the staff of several Republican oped page.” than we’ve had on our pages. We are, as congressmen. Full disclosure demands On June 7, 2017, The Washington other news organizations, other oped that such background be revealed so Post published Abernathy’s fi rst column, pages, really wanting to fi nd the diverse that readers can judge his opinions which contended that the Times-Gazette ’s viewpoints expressed in the election.” appropriately.” endorsement of Donald Trump for According to CJR, Abernathy’s columns In an interview with CJR, Abernathy president “seemed innocuous enough” are distributed to approximately 600 local contended that he is not “just another but was “being reported – and often newspapers through The Washington Post conservative writer,” but was “representing ridiculed – far and wide” by other media News Service, though not all of them run rural America” by writing from the outlets. Abernathy also promised that his columns. perspective of a Trump voter. As the the “negativity that permeates Trump Marcus added that readers have Bulletin went to press, Abernathy remained coverage [would be] a frequent subject of generally reacted well to Abernathy’s a contributing columnist for the Post. conversation” of his ensuing columns for columns. “It was our intention to fi nd the Post. BRITTANY R OBB SILHA R ESEARCH A SSISTANT 8 The Ethics of Covering the “Alt-Right” n Nov. 25, 2017, New York too did counterprotesters, many of separated and that the Holocaust’s death Times reporter Richard whom were members of anti-fascist total estimates were “overblown.” The Fausset wrote a profi le of Tony groups, local church groups, and civil Huffi ngton Post article, written by reporter Hovater, a white nationalist rights organizations. According to the Carla Herreria, also noted that critics felt and Nazi sympathizer, after Post, a “self-styled militia” of about 40 the profi le was “an attempt to normalize Oviolence erupted during an August 2017 members also arrived at the rally, carrying Hovater’s white nationalist views, fascism march by white nationalists and other semiautomatic rifl es and pistols. There and the neo-Nazi movement,” rather than farright individuals in Charlottesville, Va., were generally only small skirmishes and the story’s supposed purpose of discussing bringing the “alt yelling until two dozen counterprotesters how an average American could “adopt SPECIAL right” to the national blocked the path of the marchers, who such radical and hateful views.” Herreria SERIES forefront. The story charged forward swinging sticks and contended that “[t]here is a problem with drew signifi cant spraying chemicals. making a man who believes that races criticism contending Several media outlets circulated a video should be separated seem likable. It it had normalized neoNazi views and on the afternoon of August 12 showing a suggests that Hovater’s politeness and all- behavior. The Times defended its reporting car speed down a Charlottesville street American love for ‘Seinfeld’ can make his while other media outlets and experts and hit a group of protesters, killing hateful views more tolerable.” provided solutions or advice for covering 32-year-old Heather Heyer and injuring In a November 25 tweet, Bess Kalb, white supremacists. several more. CNN reported that the crash a writer for “Jimmy Kimmel Live,” took The “Alternative Right,” or “altright,” was committed by James Alex Fields Jr., particular issue with Fausset’s insistence is defi ned by the Southern Poverty Law who was depicted in some photographs that Hovater is polite. In her tweet, Kalb Center as a “set of farright ideologies, marching alongside the alt-right marchers quotes a line from the story, “In person, groups and individuals whose core the previous day. In total, the clashes his Midwestern manners would please belief is that ‘white identity’ is under between the opposing groups and the car anyone’s mother,” but also adds, “Quick attack by multicultural forces using attack injured 35 people. reminder: It’s about a . . . Nazi. A Nazi. Nazi. ‘political correctness’ and ‘social justice’ The Charlottesville protests brought It’s a sentence about a Nazi.” to undermine white people and ‘their’ alt-right organizations, ideologies, and In a November 26 post on The civilization.” The term has drawn criticism protests to the forefront of national Washington Post ’s “Erik Wemple” blog, from some observers, including The attention, and prompted The New York Wemple argued that a problem with the Associated Press ( AP ) Stylebook, which Times to attempt to uncover “Who are story was that The New York Times did cautions that the term is a “public relations these people?” On November 25, the Times not use additional sources. He wrote, device to make its supporters’ actual beliefs published a story titled “A Voice of Hate in “Perhaps Hovater himself wasn’t the less clear and more acceptable to a broader America’s Heartland” in which 29-year-old best authority on his own radicalization. audience.” Nevertheless, coverage of the Ohio native Hovater was profi led. He Perhaps family members would have been numerous farright groups generally falling was labeled “the Nazi sympathizer next more forthcoming on the matter, or former under the “altright” label raises several door, polite and low-key at a time the old classmates, neighbors — someone else.” ethical questions for media organizations. boundaries of accepted political activity Also on November 26, BuzzFeed News On Aug. 11, 2017, multiple media can seem alarmingly in fl ux.” According reporter Charlie Warzel argued that the outlets reported that about 250 white to the Times , Hovater helped found the story was missing a discussion of the supremacists, white nationalists, neo Traditionalist Worker Party, which aimed to internet. “[W]hile there’s journalistic value Confederates, Klansmen, neoNazis, and “fi ght for the interests of White Americans” in illustrating the banality of hate, the various militias gathered on the University and was one of the extreme right-wing Times’ profi le falls short in that it largely of Virginia (UVA) campus, carrying tiki groups that marched in Charlottesville. The fails to adequately address a crucial torches and most wearing khaki pants story attempted to explain the background element in the rise of the far right: the and white polo shirts. The purpose of the and pretext for Hovater’s ideology as a internet,” he wrote. “[T]he Times piece “Unite the Right” rally was to protest plans “white nationalist,” including that “the does little to describe the online ecosystem to remove a Confederate statue and to federal government is too big, the news that has helped white nationalists, neo- unify the white nationalist movement in the media is biased, and that affi rmative action Nazis, and the alt-right organize, amplify its United States, according to Time magazine programs for minorities are fundamentally message, and thrive in recent years. And, on August 12. The marchers made their unfair.” simply put, any attempt to answer what way towards a statute of Thomas Jefferson, The story also talked about several more exactly led Hovater to ‘gravitate toward yelling slogans such as “Blood and soil!” mundane aspects of his life, including going the furthest extremes of American political “You will not replace us!” and “Jews will to dinner at Applebee’s with his wife, Maria discourse’ is incomplete without it.” not replace us!” The marchers were met Hovater, his love of the show “Seinfeld,” In response to the criticism, Fausset by a group of about 30 UVA students who and his job as a welder, among other published a story titled “I Interviewed a locked arms around the base of the statute, details. The full story is available online at: White Nationalist and Fascist. What Was I leading to violence, including several https://www.nytimes.com/2017/11/25/us/ Left With?” in which he acknowledged that thrown punches and the use of chemical ohio-hovater-white-nationalist.html. there was “a hole at the heart” of his profi le irritants. The publication of the Times story was of Hovater. Fausset explained that the As reported by The Washington met with immediate criticism. According purpose of the article was to answer “Why Post on August 14, the following day to the Huffi ngton Post on November 25, did this man — intelligent, socially adroit “would be much worse.” As the alt-right some readers felt Fausset’s profi le was and raised middle class amid the relatively protesters arrived with nationalist not critical enough of Hovater’s views on banners, shields, clubs, and guns, so race, namely that different races should be “Alt-Right,” continued on page 10 9 “Alt-Right,” continued from page 9 precise language as there are differences, remain a dilemma for journalists. The for example, between white nationalists article cited Sophie Bjork-James, a well-integrated environments of United and white supremacists. Second, Tompkins Vanderbilt University anthropologist, States military bases — gravitate toward and McBride suggested reporters “[b]ring who said, “A lot of journalists are facing the furthest extremes of American political context to the video and still photos this huge dilemma right now around how discourse?” [they] select” and to choose only images to cover this resurgent white nationalist However, he explained that very little “that accurately refl ect the events as they movement without normalizing it or giving from his conversations with Hovater unfolded.” Finally, they urged reporters it a broader audience.. . . Journalists don’t actually explained his “radical turn,” with to “put the events in context,” such as want to have their own ideology shape how which an editor at The New York Times explaining that the “Unite the Right” rallies they portray [issues], but most do believe agreed and suggested Fausset speak with began over the removal of confederate there are values we can agree on in a Hovater again. Fausset conceded that even statutes across the nation. democracy.” after speaking with Hovater again, he “still On Aug. 21, 2017, CJR contended Frank LoMonte, the director of [didn’t] think [he] had really found [the that white supremacy should be covered the Brechner Center for Freedom of answers].” He added, “But even if I had Information at called Mr. Hovater yet again . . . I’m not sure “A lot of journalists are facing this the University of it would have answered the question. What Florida and former makes a man start fi res?” huge dilemma right now around executive director Wemple pointed out in his November how to cover this resurgent white of the Student Press 26 blog post that although Fausset felt he nationalist movement without Law Center (SPLC) did not fi nd “answers,” even after calling in Washington, Hovater after their discussions in Ohio, normalizing it or giving it a broader D.C., agreed in the Times “published the story anyhow.” audience.. . .Journalists don’t want to an interview with Wemple added, “That makes little sense: the Christian This is a newspaper, after all, that prides have their own ideology shape how they Science Monitor. itself on giving its reporters the time and portray [issues], but most do believe “The question resources to place fully realized pieces there are values we can agree on in a [of how to cover of journalism into print.. . . In this case, the rise of white however, Fausset & Co. decided they’d democracy.” nationalism in the done their best.” US] really is . . . an The New York Times national editor — Sophie Bjork-James, existential dilemma Marc Lacey also responded to the criticism Vanderbilt University anthropologist for journalism,” he of the Hovater profi le in a separate article said. “Do you treat on November 26. Lacey fi rst explained that similarly to the way news outlets cover ISIS certain issues as being settled beyond the Times had chosen Hovater because he and other foreign terrorist organizations. the point of litigating? Is the full respect, “was a few years older than another Ohio CJR argued that “[t]he topic is important regard, and recognition for the rights of man, James Alex Fields Jr.” Second, Lacey enough to merit dedicated beat reporting, minorities really such a settled proposition asserted that Fausset and his editors had with the level of rigor and scrutiny that in America? It feels like it should be, but “agonized over the tone and content of the entails.” The article further contended we know that there is some segment of the article.” Finally, he defended much of the that in the aftermath of the events in population that is still prepared to litigate reporting. “The point of the story was not Charlottesville, many Americans were that question.” to normalize anything but to describe the “either grossly misinformed or in denial On August 15, Wired magazine degree to which hate and extremism have about America’s racial history.” Covering explained the “conundrum” faced by become far more normal in American life “white supremacy with the intensity it reporters: “Ignore these groups and risk than many of us want to think,” he wrote. deserves,” CJR contended, would have allowing a potential public threat to go “We described Mr. Hovater as a bigot, meant “fewer white people might have been unreported; shine too bright a light on a Nazi sympathizer who posted images surprised by the events in Charlottesville.” them and risk amplifying their message — on Facebook of a Nazi-like America full Finally, the Christian Science Monitor or worse, attracting new acolytes to the of happy white people and swastikas on Dec. 28, 2017 contended that it is cause.” everywhere.” He added, “We understand especially important for journalists to Nevertheless, the Christian Science that some readers wanted more pushback, practice fact-checking when researching Monitor maintained that it was still and we hear that loud and clear.. . . We and writing stories related to “the necessary to cover the alt-right and it regret the degree to which the piece pathology of hate.” The article quoted Bill would be “more dangerous to ignore them.” offended so many readers.” Morlin, a Washington state-based reporter Lacey agreed. “[The New York Times] The Poynter Institute (Poynter), the who is known for chronicling the crimes of recognize[s] that people can disagree on Columbia Journalism Review ( CJR), and extremists, including white supremacists. how best to tell a disagreeable story,” he several media experts proposed solutions Morlin asserted that the problem with wrote. “What we think is indisputable, or advice to news outlets covering white covering such individuals and organizations though, is the need to shed more light, nationalist or supremacist individuals and is that journalists “sometimes . . . let not less, on the most extreme corners of organizations. In an Aug. 12, 2017 article, people involved in the extremist movement American life and the people who inhabit Al Tompkins, senior faculty at Poynter, defi ne what it is that they are talking about them. That’s what the story, however and Kelly McBride, the vice president of without fact-checking them.” imperfectly, tried to do.” the journalism think tank, offered several The Christian Science Monitor also SCOTT M EMMEL recommendations to reporters because contended that the ethical questions SILHA BULLETIN E DITOR “[t]he events in Charlottesville are likely around covering far-right groups would to repeat.” First, they recommended using 10 Federal Government Targets a Leaker and Backpage.com n the spring of 2018, the federal FBI Special Agent Matthew Pietropola Third, Pietropola asked that the government took separate outlined the DOJ’s case against Albury. search warrant cover Albury’s home, his actions against a former federal The affi davit, which was fi led in the vehicle, his offi ce at the Minneapolis- special agent and Backpage.com United States District Court for the St. Paul International Airport, and (Backpage). In late March 2018, District of Minnesota, stated that Albury Albury’s person. Finally, Pietropola IMinnesota Public Radio (MPR) and the was hired in August 2001 as a full-time concluded that he had a “probable cause Minneapolis Star Tribune reported that FBI employee “conducting surveillance for a warrant” based on the evidence the U.S. Department of Justice (DOJ) had operations.” In April 2005, he became an provided. fi led charges under FBI Special Agent and was assigned to In the application for a search the Espionage Act FEDERAL the Minneapolis Field Offi ce. As part of warrant, Pietropola stated that the against a former PROSECUTIONS his work, Albury had access to “various federal government would seize Minneapolis systems that contain[ed] classifi ed “[a]ll documents and records related Federal Bureau of information.” In 2000 and 2001, he signed to violations of [the Espionage Act],” Investigation (FBI) agent, marking the a “Classifi ed Information Nondisclosure including “[n]otebooks or documents, second such criminal leak prosecution Agreement” and an “Employment records, or papers containing under President Donald Trump’s Agreement,” according to the affi davit. information related to the national administration. 18 U.S.C. § 793 et seq. Pietropola alleged that in late defense and/or other classifi ed On April 6, the FBI seized and shut March 2016, an individual representing information,” as well as “[c]omputer down Backpage, an online classifi ed “an online media outlet” fi led two hardware, computer software, advertising website that previously separate Freedom of Information passwords and data security devices, faced several legal battles over claims Act (FOIA) requests for specifi c FBI cameras[,] telephones, handheld devices, it facilitated online sex traffi cking and documents. 5 U.S.C. § 552. Between [and] computer related documentation,” prostitution. April 2016 and February 2017, the among other information and materials. FBI identifi ed “approximately 27 FBI The application and affi davit were DOJ Charges Former Minneapolis and U.S. Government documents signed by U.S. Magistrate Judge David FBI Agent under Espionage Act; published online” by the unnamed Schultz on Aug. 28, 2017. The full Second Such Action by the Trump news outlet, 16 of which were marked affi davit and application for the search Administration “classifi ed.” The FBI determined that warrant are available online at: https:// On March 28 and March 29, 2018, the classifi ed documents had been www.mprnews.org/story/2018/03/29/ Minnesota Public Radio (MPR) and the leaked by “someone with direct access document-search-warrant-application- Minneapolis Star Tribune reported that to them,” which included Albury, who for-minneapolis-fbi-agent-records. prosecutors for the U.S. Department had electronically accessed over two- On March 29, the Star Tribune of Justice (DOJ) National Security thirds of the 27 documents through reported that the unnamed media outlet Division had fi led charges under the FBI information systems. Pietropola in the application and affi davit was Espionage Act against Terry James provided a detailed timeline showing The Intercept, which had published Albury, a former Minneapolis Federal when Albury had accessed each of the a series of stories based on FBI Bureau of Investigation (FBI) agent. 18 documents, including those published internal guidelines during the same U.S.C. § 793 et seq. The charges against by the news outlet, and that Albury time period that Albury had possessed Albury mark the second prosecution had either copied and pasted them to a and shared the information. The of an alleged leaker of government separate document, or had downloaded, Intercept also published several FBI documents by President Donald Trump’s printed, or photographed the documents internal documents, including the administration. before sharing them with the news “Confi dential Human Source Policy According to MPR and the Star outlet. Guide,” which detailed how the agency Tribune , Albury was charged with Second, Pietropola cited the DOJ’s handles informants, and the “Domestic one count of “knowingly and willfully” statutory authority in executing the Investigations and Operations Guide,” disclosing information related to national search warrant, including Section 793(e) a rulebook governing FBI agents’ security and one count of retaining of the Espionage Act, which provides activities. The Washington Post reported national defense information. The that “[w]hoever having unauthorized on April 9 that the document outlined charges were not outlined in a complaint, possession of, access to, or control over how the FBI could access journalists’ but instead in a two-page felony any document, writing, code book, signal phone records without search warrants information, a charging document that book, sketch, photograph, photographic or subpoenas approved by a judge, generally signals an imminent guilty plea, negative, blueprint, plan, map, model, among other FBI rules. According to the according to MPR. On April 17, several instrument, appliance, or note relating Star Tribune, another document leaked news outlets reported that Albury had to the national defense, or information to The Intercept was “relat[ed] to threats pled guilty in the case. The AP reported relating to the national defense which posed by certain individuals from a that Albury faced a sentence of between information the possessor has reason to particular Middle Eastern country.” The 37 and 57 months in prison, but the believe could be used to the injury of the fi ll list of documents and news stories is decision would be up to U.S. District United States or to the advantage of any available online at: https://theintercept. Court Judge Wilhelmina Wright. As the foreign nation, willfully communicates, com/series/the-fbis-secret-rules/. Bulletin went to press, Wright had not delivers, transmits or causes to Albury’s attorneys released a set a sentencing date. be communicated, delivered, or statement on March 29 explaining In an August 2017 affi davit in support transmitted” shall be fi ned or imprisoned of an application for a search warrant, not more than 10 years. DOJ, continued on page 12 11 DOJ, continued from page 11 opportunity to protect valid national investigations compared to the number security secrets.” that were ongoing at the end of the last Albury’s actions. “Terry Albury served In an interview with Kopplin, Trevor administration.” Sessions added that the U.S. with distinction both here at Timm, executive director of the Freedom the Trump administration had created home and abroad in Iraq.. . . He accepts of the Press Foundation, argued that the an FBI counterintelligence unit for full responsibility for the conduct set FBI should end this practice. “It is quite managing leak cases, and was “reviewing forth.. . . We would like to add that as the disturbing that [the FBI] are scrutinizing its policies” regarding subpoenas for only African-American FBI fi eld agent FOIA requests in an attempt to root out members of the news media who publish in Minnesota, Mr. Albury’s actions were whistleblowers,” he said. leaked information. Sessions said during driven by a conscientious commitment The prosecution of Albury under the press conference, “This culture of to long-term national security and the Espionage Act marked the second leaking must stop.. . . I strongly agree addressing the well-documented criminal leak case under President with the president and condemn in the systemic biases within the FBI.” Donald Trump’s administration. On June strongest terms the staggering number of The Intercept’s editor-in-chief Betsy leaks.” Reed released a statement on March “[We] condemn prosecutions Sessions’ 28 criticizing the charges against comments led Albury. “We understand that there is an under the 1917 Espionage Act that to widespread Espionage Act prosecution underway criminalize the release of information criticism against an alleged FBI whistleblower in of government wrongdoing. The misuse from media Minnesota, who is accused of leaking organizations and materials relating to the FBI’s use of of the Espionage Act chills truth tellers, experts, including confi dential human sources,” she wrote. impedes investigative reporting, and Silha Center “News reports have suggested that the compromises the democratic process.” Director and prosecution may be linked to stories Silha Professor published by The Intercept. We do of Media Ethics not discuss anonymous sources. The — Press Freedom Defense Fund and Law Jane use of the Espionage Act to prosecute Kirtley, who said whistleblowers seeking to shed light 9, 2017, Reality Leigh Winner, a National in an interview with Yahoo! News on matters of vital public concern is an Security Agency (NSA) contractor that the targeting of journalists who outrage, and all journalists have the right who leaked a classifi ed report to The publish sensitive information was “a under the First Amendment to report Intercept in May 2017, pled not guilty reality that we have to prepare for.” these stories.” after being indicted by a federal grand Kirtley continued, “We knew the Trump In a March 29 statement, the jury on one count of “willful retention administration was going to take on the Press Freedom Defense Fund, which and transmission of national defense issue of leaking.. . . We’ve never had supports journalists, fi lmmakers, information.” a prosecution of journalists for being whistleblowers, and news organizations The NSA document detailed the recipient of leaks. This could be through the charitable organization two cyberattacks by Russia’s Main the fi rst time that happens.” (For more First Look Media, criticized the use Intelligence Agency (GRU) on a U.S. information on Sessions’ comments of the Espionage Act to prosecute voting software supplier during the 2016 and criticism from media organizations individuals who release information presidential election. According to Ars and experts, see U.S. Attorney General detailing government wrongdoing. The Technica on June 6, 2017, by handing Announces New Efforts in Search statement “condemn[ed] prosecutions over a copy of the document to the NSA for Leakers, Including Subpoenaing under the 1917 Espionage Act that to verify its authenticity, The Intercept Reporters in “Reporters and Leakers criminalize the release of information had exposed Winner as the source. (For of Classifi ed Documents Targeted of government wrongdoing. The misuse more information on the Winner case, by President Trump and the DOJ” in of the Espionage Act chills truth tellers, see Department of Justice Arrest of NSA the Summer 2017 issue of the Silha impedes investigative reporting, and Leaker Marks First Such Prosecution Bulletin.) compromises the democratic process.” under Trump Administration in In an April 9 article for The “Reporters and Leakers of Classifi ed FBI Shuts Down Backpage.com, Washington Post , Zack Kopplin, Documents Targeted by President Trump Agents Raid Founder’s Home an investigator at the Government and the DOJ” in the Summer 2017 issue On April 6, 2018, multiple news Accountability Project, a whistleblower of the Silha Bulletin.) outlets reported that support nonprofi t, argued that the Winner faces 10 years in prison Backpage.com (Backpage), an online DOJ had “crossed a red line that will and/or a $250,000 fi ne if convicted under classifi ed advertising website, had been sour relationships with journalists the Espionage Act. On March 15, 2018, shut down by the Federal Bureau of and whistleblowers, with negative Bloomberg reported that Winner’s trial Investigation (FBI) in connection to a consequences for everyone” by “us[ing] had been delayed until October 2018. As 93-count indictment charging Backpage as evidence against Albany the FOIA the Bulletin went to press, Winner’s trial and seven individuals with money requests made by the Intercept.” Kopplin had not commenced. laundering and facilitating prostitution. continued, “If news organizations have Attorney General Jeff Sessions Additionally, The Arizona Republic to worry about the federal government previously discussed the Trump reported that FBI agents had raided the prosecuting, fi ring and harming their administration’s desire to crack down home of Backpage’s co-founder, Michael sources because of a FOIA request they on leakers. In an Aug. 4, 2017 press Lacey. Meanwhile, on March 21, the U.S. sent, they will obviously start publishing conference, Sessions said the DOJ had Senate passed H.R. 1865, a bill aimed at them without giving the government the “more than tripled the number of leak cracking down on online sex traffi cking

12 and prostitution, as well as hold websites On Jan. 9, 2017, Backpage announced AP reported that Texas Attorney General liable for hosting sex traffi cking content. it was removing its adult content section Ken Paxton had announced the company Founded in 2004 by Lacey and Jim following the several legal battles it pleaded guilty to human traffi cking. Larkin, Backpage allowed users to post had faced. Nevertheless, The New York In an interview with the Post, classifi ed ads online. The website offered Times reported on April 7, 2018 that Sen. Amy Klobuchar (D-Minn.) said, users with a variety of categories, adult listings were simply moved to “[W]ebsites like Backpage.com facilitate including “automotive,” “rentals,” sections that were dedicated to dating. sex traffi cking across Minnesota and “dating,” and “jobs,” among others. The (For more information on Backpage’s our country. The announcement by the website also provided an “adult section” legal battles and decision to close its FBI that they have seized this website where users could post advertisements adult content section, see “Backpage and affi liated sites is long overdue, but under subdivisions, such as “escorts,” Closes Adult Content Section after another positive step forward in the “body rubs,” “strippers & strip clubs,” Government Scrutiny” in the Winter/ fi ght against human traffi cking. We must “dom & fetish,” and “male escorts,” Spring 2017 issue of the Silha Bulletin.) keep working to bring perpetrators to among others. In 2010, Backpage shut On April 6, 2018, federal law justice and get victims the support they down its sex advertising section in the enforcement authorities seized and deserve.” face of pressure from federal and state shut down Backpage, replacing In an April 6 statement, Sen. John authorities. the content of the website with the McCain (R-Ariz.) praised the law Backpage was then confronted with message, “Backpage.com and affi liated enforcement action. “The seizure of the several legal challenges to its adult websites have been seized as part of malicious sex marketplace Backpage. content section, including whether it an enforcement action by the Federal com marks an important step forward was facilitating sex traffi cking. In June Bureau of Investigation, the U.S. Postal in the fi ght against human traffi cking,” 2015, Cook County (Illinois) Sheriff Tom Inspection Service, and the Internal he wrote. “This builds on the historic Dart attempted to cut off the website’s Revenue Service Criminal Investigation effort in Congress to reform the law revenue stream by sending letters to Division.” According to The Arizona that for too long has protected websites Visa and MasterCard demanding that Republic, the FBI seized the website like Backpage from being held liable the companies stop processing any because it was allegedly being used to for enabling the sale of young women transactions made through Backpage’s “facilitate crime.” and children. Today’s action sends website. After the companies complied, The Arizona Republic also reported a strong message to Backpage and Backpage fi led a complaint in the that FBI agents had raided the home any other company facilitating online U.S. District Court for the Northern of Lacey as part of “law enforcement sex traffi cking that they will be held District of Illinois against Dart seeking activity.” The Washington Post reported accountable for these horrifi c crimes.” a preliminary injunction and a court on April 6 that the search stemmed The legislation referred to by Sen. order requiring the sheriff to retract his from an investigation by a Phoenix, McCain was passed on March 21 by letter. The U.S. Court of Appeals for the Az. grand jury regarding allegations the U.S. Senate in a 972 vote. H.R. Seventh Circuit ultimately ruled against that Backpage had facilitated sex 1865 combined elements of the Allow Dart, fi nding that his actions amounted traffi cking and prostitution. Newsweek States and Victims to Fight Online Sex to government censorship in violation and Reuters reported on April 7 that Traffi cking Act (FOSTA) and the Stop of Backpage’s First Amendment rights. seven individuals had been charged by Enabling Sex Traffi ckers Act (SESTA) Backpage.com v. Dart, 807 F.3d 229 (7th the grand jury with 93 criminal counts in an effort to crack down on online Cir. 2015). in a sealed indictment, including money sex traffi cking and prostitution, as well In October 2015, the U.S. Senate laundering and facilitating prostitution. as hold websites liable for hosting sex Homeland Security Permanent On April 9, the Post reported that the traffi cking content. Subcommittee on Investigations (PSI) indictment had been unsealed and The bill, previously passed by the began investigating online sex traffi cking indicated that seven top offi cials at U.S. House of Representatives on and issued a subpoena to Backpage Backpage, including Lacey and Larkin, February 27, amended Section 230 and CEO Carl Ferrer, ordering that had been arrested. The indictment cited of the Communications Act of 1934, they appear before the committee. 17 victims traffi cked on Backpage and also known as the Communications Ferrer refused to comply, but a federal alleged that the company had laundered Decency Act (CDA), which provides that district court eventually granted PSI’s at least $500 million in prostitution- “No provider or user of an interactive request to require Ferrer to testify. related advertising revenue, according to computer service shall be treated as the Senate Permanent Subcommittee on the Post. The full indictment is available publisher or speaker of any information Investigations v. Ferrer, 2016 WL online at: https://www.documentcloud. provided by another information content 4179289 (D.D.C. 2016). However, the org/documents/4434358-Backpage.html. provider.” 47 U.S.C. § 230. According Associated Press (AP) reported on On April 12, the AP reported that to the Electronic Frontier Foundation Jan. 10, 2017 that Backpage executives Ferrer had pleaded guilty to one count (EFF), Section 230 means online entities refused to answer questions during of conspiracy and three counts of money that “host or republish speech are the PSI’s committee hearing, invoking laundering in California. Under the April protected against a range of laws that their Fifth Amendment rights against 5 plea agreement, Ferrer would serve might otherwise be used to hold them self-incrimination. PSI later published no more than fi ve years in prison, but legally responsible for what others say a report alleging that Backpage had agreed to testify in ongoing prosecutions and do.” The protected entities include actively worked to conceal prostitution against others at Backpage, according Internet Service Providers (ISPs), as well and child sex traffi cking advertised to the AP. Ferrer also agreed to make as any “online service that publishes on the website. The 53-page report is the company’s data available to law thirdparty content.” available online at: https://www.hsgac. enforcement as investigations and senate.gov/imo/media/doc/Backpage%20 prosecutions continue. Additionally, the DOJ, continued on page 14 Report%202017.01.10%20FINAL.pdf. 13 DOJ, continued from page 13 March 21, 2018, Motherboard argued EFF also asserted that the DOJ that the bill makes the internet a more already had the power to prosecute The bill amended the hostile place for sex workers, victims an internet company that “knowingly Communications Act of 1934 to of sex traffi cking, and fans of internet engages in the advertising of sex include language that “nothing in freedom.” traffi cking” because Section 230 has an [Section 230] . . . shall be construed to In a March 21 letter to Congress, the “express exemption for federal criminal impair or limit” federal or state civil Center for Health and Gender Equity law, meaning that Internet intermediaries or criminal prosecutions “related to (CHANGE) and the International can be prosecuted in federal court.” sex traffi cking.” Such prosecutions Women’s Health Coalition advocated for In a March 8 blog post, the Center may include a federal civil claim for the legislation to be “shelved” because for Democracy & Technology (CDT), a conduct that constitutes sex traffi cking, it put sex workers in more danger, Washington, D.C. non-profi t promoting a federal criminal charge for conduct rather than “protect[ing] sex workers an open internet, contended that that constitutes sex traffi cking, or a from violence.” The letter quoted Serra another consequence of H.R. 1865 is state criminal charge for conduct that “an unambiguous promotes or facilitates prostitution in chilling of violation of this bill.” Previously, the “To mitigate liability risks [under speech.” The exceptions to Section 230 included FOSTA/SESTA], platforms will err CDT wrote, “To “only federal criminal law, intellectual on the side of removing potentially mitigate liability property laws, and the Electronic risks, platforms Communications Privacy Act,” according questionable speech rather than leaving will err on the to Lawfare on March 28. it up. Inevitably, a moderator doing side of removing H.R. 1865 also “expresse[d] the sense his/her job will over-censor, catching potentially of Congress that section 230 of the questionable Communications Act of 1934 was not up lawful speech protected by the speech rather intended to provide legal protection Constitution in an attempt to be as than leaving it to websites that unlawfully promote comprehensive as possible.” up. Inevitably, a and facilitate prostitution and websites moderator doing that facilitate traffi ckers in advertising his/her job will the sale of unlawful sex acts with sex — Center for Democracy & Technology over-censor, traffi cking victims,” which would include catching up lawful Backpage. speech protected Additionally, the bill created a new Sippel, president of CHANGE, who said, by the Constitution in an attempt to be section in the federal criminal code that “By removing online platforms for sex as comprehensive as possible.” provides “[w]hoever, using a facility or workers, the legislation eliminates an The Daily Beast pointed out on means of interstate or foreign commerce important tool to screen clients and April 4 that the bill had already chilled or in or affecting interstate or foreign negotiate safe working conditions, speech, citing Craigslist’s March commerce, owns, manages, or operates exposing sex workers to violence and 23, 2018 decision to shut down its an interactive computer service or putting their lives at risk. The legislation “personals” section and replace it with conspires or attempts to do so, with not only harms sex workers, it will also an explanation that “US Congress just the intent to promote or facilitate the undermine the U.S. government’s own passed HR 1865 . . . seeking to subject prostitution of another person shall be goal of ending traffi cking.” websites to criminal and civil liability fi ned under this title, imprisoned for On February 22, EFF contended when third parties (users) misuse online not more than 10 years, or both.” It also that Section 230 “strikes an important personals unlawfully.. . . Any tool or established enhanced penalties — a fi ne, balance for when online platforms can service can be misused. We can’t take a prison term of up to 25 years, or both be held liable for their users’ speech” such risk without jeopardizing all our — for an individual who “(1) promotes and that H.R. 1865 would “force online other services, so we are regretfully or facilitates the prostitution of fi ve or platforms to police their users’ speech taking craigslist personals offl ine. more persons, or (2) acts with reckless more forcefully than ever before, Hopefully we can bring them back some disregard that such conduct contributes silencing legitimate voices in the day.” to sex traffi cking.” process.” Furthermore, EFF argued On April 11, several news outlets that the bill “would chill innovation and SCOTT M EMMEL reported that President Trump had competition among Internet companies” SILHA BULLETIN E DITOR signed the bill into law. because while Google and Facebook H.R. 1865 was criticized by a variety “may have the budgets to survive the of groups, including advocates for sex massive increase in litigation and liability workers and victims of sex traffi cking, that FOSTA would bring . . . Small as well as open internet advocates. On startups don’t.”

14 FCC Repeals Net Neutrality, Prompts Legal and Legislative Responses n Dec. 14, 2017, the “telecommunications service” under Title expressed their support or criticism of Federal Communications II of the Communications Act, providing the net neutrality repeal. Commission (FCC) voted the FCC the authority to regulate ISPs. On December 14, several news outlets to repeal the net neutrality Formerly, broadband internet access reported that the FCC had voted 32 rules put in place in 2015, was classifi ed as an “information to repeal its net neutrality rules in a Owhich prohibited Internet Service service,” which made it immune to FCC Declaratory Ruling, a Report and Order, Providers (ISPs) from blocking or regulations similar to those applied and an Order tilted “Restoring Internet “throttling” websites, or charging for to “common carrier” communication Freedom” (collectively “Order”). WC higher-quality services, like telephones. The Open Docket No. 17108, FCC 17166, 83 service or access Internet Order enforced net neutrality Fed, Reg, 7852 (Feb. 22, 2018). FCC NET NEUTRALITY to certain content. through a variety of provisions, including Chairman Ajit Pai, Commissioner After the FCC three “brightline” rules prohibiting ISPs Brendan Carr, and Commissioner published the new from blocking and throttling lawful Mike O’Reilly voted in favor of repeal. rules in the Federal Register on Feb. 22, internet content, as well as prohibiting Commissioners Mignon Clyburn and 2018, state attorneys general, several paid prioritization for internet content Jessica Rosenworcel were opposed. companies and organizations, the U.S. delivery, which would allow ISPs to The Order fi rst “[r]estor[ed] the Senate, and state legislatures took a favor some internet traffi c over others. classifi cation of broadband Internet variety of actions in response to the net On June 14, 2016, the U.S. Court of access service as an ‘information neutrality repeal. On Feb. 22, 2018, 23 Appeals for the D.C. Circuit upheld the service’” as it had been classifi ed prior state attorneys general fi led a lawsuit Open Internet Order in a 21 decision, to the 2015 Open Internet Order. In so against the FCC, claiming that the fi nding that the FCC had the authority doing, the FCC argued, it would “end agency’s repeal of net neutrality was to implement the Order and that ISPs utility style regulation of the Internet “arbitrary, capricious, and an abuse are utilities and should provide equal in favor of the marketbased policies of discretion,” as well as in violation access to all users. U.S. Telecom Assoc. necessary to preserve the future of of federal law and the FCC’s statutory v. Fed. Comm. Comm’n , 825 F.3d 674 Internet freedom.” The FCC further mandates. Several technology and (D.C. Cir. 2016). (For more information argued that reclassifi cation would internet companies, as well as multiple about the background of net neutrality allow for “lighttouch” regulation public interest organizations, fi led and the D.C. Circuit ruling, see “D.C. meant to “promote investment and petitions seeking review of the FCC’s Circuit Upholds ‘Net Neutrality’ Rules” innovation better than applying costly action. On Feb. 27, 2018, Sen. Edward J. in the Summer 2016 issue of the Silha and restrictive laws of a bygone era to Markey (DMass.) formally introduced a Bulletin, “New FCC Rules Spur Heated broadband Internet access service.” resolution of disapproval in an attempt Debate about Net Neutrality Regulation” Second, the Order “[adopted] to overturn the net neutrality repeal in the Winter/Spring 2015 issue, transparency requirements that ISPs under the Congressional Review Act “D.C. Circuit Strikes Down FCC ‘Net disclose information about their (CRA), which allows Congress 60 days Neutrality’ Rules” in the Winter/Spring practices to consumers, entrepreneurs, to challenge new rules passed by an 2014 issue, and “Debates Continue Over and the Commission,” including network independent agency, such as the FCC. Net Neutrality as FCC Nears Decision on management practices, performance, Finally, on March 6, 2018, Washington ‘Open Internet’” in the Fall 2014 issue.) and commercial terms of service. became the fi rst state to pass a statute As the Bulletin went to press, the U.S. The FCC contended that increased protecting net neutrality after Gov. Jay Supreme Court had not announced transparency would allow consumers Inslee signed House Bill 2282 into law. whether it would grant certiorari in the to “choose what works best for them,” Net neutrality is the principle that U.S. Telecom case. rather than having the government make ISPs should treat all data on the internet such a determination. the same, regardless of the source. This FCC Votes to Repeal Net Neutrality Finally, the FCC eliminated its principle prevents discrimination or Rules, Publishes Vote in Federal conduct rules for ISPs, including the censorship of certain types of online Register brightline rules preventing blocking, data based on content, source, or On Dec. 14, 2017, the Federal throttling, and paid prioritization. The platform. Proponents of net neutrality Communications Commission (FCC) FCC contended that the costs of such include technology fi rms, consumer voted along party lines to repeal the rules – decreasing of innovation and advocates, and internet companies, net neutrality rules it had adopted investment – outweighed any benefi ts. such as Twitter and Amazon. ISPs are in the 2015 Open Internet Order and The full Order, as well as a Fact Sheet the major opponents of net neutrality set out new policies reclassifying published by the FCC, are available because they want to retain control over broadband internet and discarding rules online at: https://apps.fcc.gov/edocs_ their data delivery standards. against blocking, throttling, and paid public/attachmatch/DOC347927A1.pdf. In February 2015, the FCC adopted prioritization. On Feb. 22, 2018, the FCC Over two months after the vote, on the 2015 Open Internet Order, published the new rules in the Federal Feb. 22, 2018, the FCC made the repeal Protecting and Promoting the Open Register, the government’s offi cial of net neutrality offi cial by publishing Internet, 80 Fed. Reg. 19,738 (Apr. 13, record of all administrative actions, the new rules in the Federal Register. 2015) (codifi ed at 47 C.F.R. 1), which making the new rules offi cial. During and However, The Washington Post reported implemented rules that reclassifi ed following the vote and publication of the on February 22 that it was unclear when broadband internet access as a new policies, the FCC commissioners Net Neutrality, continued on page 16 15 Net Neutrality, continued from page 15 next step in handing the keys to the 2018). Additionally, multiple technology and internet companies, including the FCC’s new net neutrality policy internet over to billion-dollar broadband Mozilla Corporation (Mozilla) and would go into effect. The copy of the providers by publishing the Destroying Vimeo, Inc., as well as public interest order published in the Federal Register Internet Freedom Order in the Federal organizations, including Free Press and stated the repeal would take effect on Register. I am both disappointed and Public Knowledge, fi led similar lawsuits April 23, according to CNN on February hopeful. Disappointed that this is one against the FCC. 22. As the Bulletin went to press, a more anti-consumer notch on this The coalition of 23 attorneys general, majority of the provisions had not taken FCC’s belt, but hopeful that the arc of led by New York Attorney General effect. history is bent in favor of net neutrality Eric Schneiderman, fi led the petition The FCC vote and publication in the protections.” for review. The attorneys general Federal Register set off widespread, In a separate February 22 statement, were from New York, California, renewed debate about net neutrality, Commissioner Rosenworcel agreed Connecticut, Delaware, Hawaii, Illinois, including between the fi ve FCC that the FCC had ignored millions Iowa, Kentucky, Maine, Maryland, commissioners. At the hearing prior to of consumer comments about net Massachusetts, Minnesota, and the initial vote on net neutrality rules, neutrality. “The FCC’s net neutrality Mississippi, as well as New Jersey, Chairman Pai defended the repeal. decision is a study in just what’s wrong New Mexico, North Carolina, Oregon, “Within a generation, we have gone from with Washington,” she wrote. “This Pennsylvania, Rhode Island, Vermont, email as the killer app to high-defi nition agency failed the American public. It Virginia, Washington, and the District of video streaming,” Pai said, according failed to listen to their concerns and gave Columbia. to The Washington Post on Dec. 14, short shrift to their deeply held belief In their petition, the attorneys general 2017. “Entrepreneurs and innovators that internet openness should remain asked the D.C. Circuit to rule that the guided the Internet far better than the the law of the land. It turned a blind eye FCC’s “Restoring Internet Freedom” heavy hand of government ever could to all kinds of corruption in our public Order (Order), WC Docket No. 17108, have.” According to National Public record—from Russian intervention to FCC 17166, 83 Fed, Reg, 7852 (Feb. Radio (NPR) on the same day, Pai added fake comments to stolen identities in our 22, 2018), was “arbitrary, capricious, after the vote, “What is responsible for fi les. As a result of the mess the agency and an abuse of discretion within the the phenomenal development of the created, broadband providers will now meaning of the Administrative Procedure Internet? Certainly wasn’t heavy-handed have the power to block websites, Act, 5 U.S.C. § 701 et seq.” The petition government regulation.. . . [There] was throttle services, and censor online also asserted that the Order violated no problem to solve. The Internet wasn’t content. This is not right.” federal law, including “the Constitution, broken in 2015, we were not living in Jack Nadler, a partner at the law the Communications Act of 1934, some digital dystopia.. . . It is time for fi rm Squire Patton Boggs, asserted as amended, and FCC regulations us to bring faster, better and cheaper in a December 14 interview with The promulgated thereunder.” Additionally, Internet access to all Americans.” Washington Post that the future remains the petition contended that the Order During the vote, Commissioner Carr unclear for net neutrality. “For the last “confl ict[ed] with the noticeand said it was a “great day,” according to decade, we’ve been on a regulatory comment rulemaking requirements of The New York Times, and dismissed roller coaster.. . . We are likely looking at 5 U.S.C. § 553.” warnings about the “apocalyptic” effects two or three more years of uncertainty. The petition further explained that of the vote. He added, “I’m proud to And then there is the 2020 presidential the attorneys general were fi ling the end this two-year experiment with election, which could lead to yet another petition for review within 10 days of the heavy-handed regulation.” In a Jan. 4, policy upheaval,” he said. publication of the Order so the request 2018 statement, Commissioner O’Rielly Further uncertainty is created by could be included in the “judicial lottery wrote that he was “not persuaded lawsuits against the FCC by state procedure.” As The Washington Post that heavy-handed rules are needed to attorneys general, internet freedom reported on February 22, this procedure protect against hypothetical harms” of organizations, and technology and determines which federal appeals ISPs blocking, throttling, or practicing internet companies; a bill introduced court hears the case(s) brought against paid prioritization. He continued, in the U.S. Senate; and state actions the FCC. According to the Post, the “In all this time, I have yet to hear to adopt net neutrality laws or issue output of the lottery, which is handled recent, unquestionable evidence of executive orders. by the Judicial Panel on Multidistrict demonstrable harms to consumers Litigation, “is determined by which that demands providers be constrained Twenty-Three State Attorneys courts have received a lawsuit on the by this completely fl awed regulatory General, Several Companies and issue.” Gizmodo added on February intervention. I still cannot endorse guilt Organizations Sue the FCC 22 that the lottery selections are made by imagination.” On Feb. 22, 2018, multiple media randomly by computer. On March 8, During the vote, Commissioner outlets reported that 22 state attorneys 2018, Reuters reported that the Judicial Clyburn accused the Republican general and the attorney general of Panel on Multidistrict litigation had commissioners of defying the wishes Washington, D.C., in an effort to preserve randomly selected the U.S. Court of of the American people. “I dissent, the net neutrality rules passed in the Appeals for the Ninth Circuit to hear the because I am among the millions 2015 Open Internet Order, had formally consolidated challenges to the FCC’s outraged.. . . Outraged, because the refi led their petition for review in the repeal of net neutrality. However, on F.C.C. pulls its own teeth, abdicating U.S. Court of Appeals for the District of March 28, 2018, multiple news outlets responsibility to protect the nation’s Columbia Circuit against the FCC after reported that the Ninth Circuit granted broadband consumers.” She added in the Commission published the new rules an unopposed motion to send the a February 22 statement, “Today it is in the Federal Register on the same day. consolidated cases to the D.C. Circuit, offi cial: the FCC majority has taken the New York v. FCC, No. 181055 (D.C. Cir. 16 which had heard the two previous and the Telecommunications Act of On February 27, Sen. Markey posted appeals related to net neutrality in 2011 1996, and FCC regulations promulgated a tweet, which read “Today, we are and 2015. The full petition for review thereunder.” Mozilla Corp. v. Fed. offi cially introducing the [Congressional is available online at: https://ag.ny.gov/ Comm. Comm’n, No. 18-1051 (D.C. Review Act] resolution, which would sites/default/fi les/petition.pdf. Cir. 2018). Mozilla also contended reverse the @FCC’s actions and restore In a January 16 statement after the that the Order violated the FCC’s #NetNeutrality. And when we take this attorneys general had fi led their initial statutory mandates and was “arbitrary, vote on the Senate fl oor, every one of petition, Schneiderman explained why capricious, and an and an abuse of my colleagues will have to answer this the group had chosen to do so. “An discretion within the meaning of the simple question: Whose side are you on? open internet – and the free exchange Administrative Procedure Act, 5 U.S.C. § #OneMoreVote.” of ideas it allows – is critical to our 701 et seq.” Thus, the petition for review The resolution of disapproval was democratic process,” Schneiderman called on the court to “hold unlawful, proposed under the Congressional wrote. “The repeal of net neutrality vacate, enjoin, and set aside the Order, Review Act (CRA), which allows would turn internet service providers and that it provide additional relief Congress 60 days to challenge new into gatekeepers – allowing them to put as may be appropriate.” Mozilla’s full rules passed by an independent agency, profi ts over consumers while controlling petition for review is available online such as the FCC, according to The what we see, what we do, and what we at: https://ffp4g1ylyit3jdyti1hqcvtb- Washington Post on February 22. The say online. This would be a disaster for wpengine.netdna-ssl.com/wp-content/ Senate can pass the resolution with a New York consumers and businesses, uploads/2018/02/as-fi led-Mozilla-Petition- simple majority vote, which requires and for everyone who cares about a for-Review-WC-Docket-No.-17-108- 51 Senators. According to The Verge on free and open internet. That’s why I’m 22Feb2018.pdf. Feb. 27, 2018, the resolution fi rst goes proud to lead this broad coalition of In a February 22 blog post on The to committee for consideration, but 30 22 Attorneys General in fi ling suit to Mozilla Blog, Mozilla Chief Business senators can force the Senate to put it on stop the FCC’s illegal rollback of net and Legal Offi cer Denelle Dixon the calendar after 20 days. neutrality.” that the company was “not taking On Jan. 15, 2018, Senate Democrats According to Gizmodo, the Internet any chances with an issue of this announced that they were one vote Association (IA), a trade and lobbying importance.” She continued, “That is away from passing the resolution. In group representing 40 of the country’s why today, immediately after the order addition to all 49 Republican Senators, biggest tech companies, including was published, Mozilla re-fi led our suit they also had the support of Republican Google, Amazon, and Facebook, challenging the FCC net neutrality order. Sen. Susan Collins (R-Maine), according announced in January 2018 that it was We won’t waste a minute in our fi ght to to The New York Times on January planning to intervene in the case against protect net neutrality because it’s our 16. In a February 27 editorial in Wired the FCC, allowing it to demonstrate to mission to ensure the internet is a global Magazine, Senate minority leader Chuck the court that the new Order may injure public resource, open and accessible Schumer (D-N.Y.) called for more its member companies. In a January to all. An internet that truly puts people Republican support. “All 49 senators statement, IA CEO Michael Beckerman fi rst, where individuals can shape their in the Democratic caucus are united in wrote, “IA intends to act as an intervenor own experience and are empowered, support of our CRA to stop the FCC from in a judicial action against this order safe and independent.” destroying the free and open internet,” and, along with our member companies, On March 12, 2018, Ars Technica he wrote. “We also have the backing will continue our push to restore strong, reported that the lawsuits fi led by the of senator Susan Collins . . . who has enforceable net neutrality protections state attorneys general, technology fi rms, pledged to vote with us. That leaves just through a legislative solution.” and advocacy organizations had been one more vote to ensure the internet The attorneys general were not merged into one suit. Gizmodo reported remains free and accessible to all. That alone in fi ling lawsuits against the FCC. on April 24 that INCOMPAS’s lawsuit vote must come from the ranks of the Several companies and organizations, would also be merged into the suit. As Republicans, who so far have sided including Free Press, Public Knowledge, the Bulletin went to press, no further with internet service providers, the Mozilla, and Vimeo, Inc., among others, announcements had been made on the only group that is clamoring to remove fi led separate lawsuits against the lawsuit. the important consumer protections FCC. Additionally, Gizmodo reported enshrined in net neutrality” (emphasis in U.S. Senate Introduces Resolution to on April 24 that INCOMPAS, a trade original). Protect Net Neutrality association whose members include However, The New York Times on On Feb. 27, 2018, Sen. Edward J. streaming services, edge providers, and January 16, among other news outlets, Markey (D-Mass.) formally introduced a competitive carriers, such as Facebook, pointed out that even if the resolution resolution of disapproval in an attempt Google, and Netfl ix, had also fi led a passed the Senate, it faced an uphill to overturn the FCC’s repeal of net lawsuit. battle in the Republican-controlled neutrality. Previously, in January 2018, Mozilla was the fi rst to formally House of Representatives, where passing Democratic Senators announced that re-fi le its complaint after the FCC the resolution required 150 out of 218 they were only one vote away from the published its new rules in the Federal votes. The Times reported that Rep. simple majority of 51 senators necessary Register on February 22. In its petition Mike Doyle (D-Pa.), who was leading the to pass the resolution. However, for review, Mozilla asserted, like effort in the House, had gained support multiple media outlets observed that the attorneys general, that the FCC from only 80 Democrats, and that it it still had an uphill battle because the “depart[ed] from its prior reasoning and was also possible that Speaker Paul resolution would have to be passed in precedent” and, therefore, “violate[d] D. Ryan (R-Wis.) could refuse to bring the Republican-controlled U.S. House of federal law, including, but not limited the resolution to a vote, which would Representatives and signed into law by to, the Communications Act of 1934, President Donald Trump. Net Neutrality, continued on page 18 47 U.S.C. §§ 151 et seq., as amended, 17 Net Neutrality, continued from page 17 the purchase and use of such services because the FCC has decided not to and [to enable] entrepreneurs and other promulgate substantive rules on [net then require 218 signatures to bring the small businesses to develop, market, and neutrality],” Michalopoulos said. “This resolution to the fl oor in the form of a maintain internet offerings.” makes it a little more diffi cult for this petition. Second, the law prohibits any kind of preemption to succeed.” Additionally, the resolution would “person engaged in the provision of According to the National Conference have to be signed by President broadband internet access service in of State Legislatures on February 23, the Trump, which experts predicted was Washington state” from “(a) Block[ing] governors of Hawaii, New Jersey, New unlikely because White House press lawful content, applications, services, York, Vermont, and Montana each issued secretary Sarah Sanders told reporters or nonharmful devices, subject to executive orders in response to the on December 14, “The [Trump] reasonable network management; FCC’s repeal of net neutrality. In Hawaii, administration supports the FCC’s (b) Impair[ing] or degrad[ing] lawful Gov. David Y. Ige’s Executive Order efforts and at the same time the White internet traffi c on the basis of internet No. 18-02 directed all state government House certainly has and always will content, application, or service . . . or agencies to contract only with ISPs “who support a free and fair internet.” (c) Engag[ing] in paid prioritization.” demonstrate and contractually agree The New York Times speculated that The law does not apply in cases where to support and practice net neutrality Senate Democrats may have pushed for internet service providers (ISPs) have an principles where all Internet traffi c is the resolution, even though it was a “long obligation or authorization “to address treated equally.” He further directed state shot,” in order to “turn net neutrality the needs of emergency communications agencies to add contractual language into a bigger political issue ahead of the or law enforcement, public safety, or that “suppliers of telecommunications, 2018 midterms. The efforts to overturn national security authorities” or in cases Internet, broadband, and data the F.C.C. order are aimed to raise in which the ISP regulates unlawful communication services shall abide awareness about an issue that has broad content, such as copyright infringement. by net neutrality principles,” which interest, particularly among younger Finally, the law covers practices and include “providing access to all lawful voters.” Politico added on February 27 matters “vitally affecting the public content and applications regardless that Democrats “sa[id] a Senate vote interest for the purpose of applying of the source,” “treating all data fairly will put Republicans opposed to the the consumer protection act, chapter [and] . . . the same,” and refraining from regulation on the record as favoring 19.86 RCW.” Thus, the statute provides the practices of “throttling, restricting, internet service providers like Comcast that any violation “is not reasonable or prioritizing internet content, and Verizon over consumers.” in relation to the development and applications, or certain data streams.” As the Bulletin went to press, no preservation of business” and also New Jersey Gov. Philip D. Murphy, further action on the resolution had been constitutes “an unfair or deceptive act in in Executive Order No. 9; New York, announced. trade or commerce and an unfair method Gov. Andrew M. Cuomo, in Executive of competition” in violation of 19.86 Order No. 175; Montana Gov. Steve Washington Enacts First State Net RCW. USA Today reported on March 6 Bullock, in Executive Order, No. 3-2018; Neutrality Law; Other Governors that the bill would take effect on June 6, and Vermont Gov. Philip B. Scott, in Sign Executive Orders 2018. Executive Order No. 2-18, also required On March 6, 2018, Washington Gov. Before signing the bill, Inslee state entities award future contracts Jay Inslee signed House Bill 2282, explained the reasoning for enacting it. only to ISPs that adhere to these “net making Washington the fi rst state to “We know that when D.C. fails to act, neutrality principles,” which generally pass a law protecting net neutrality. Washington state has to do so,” he said, prohibit blocking, throttling, and paid The law was passed after governors according to the Associated Press (AP) prioritization of lawful internet content from fi ve other states had previously on March 5. “We know how important by ISPs. issued executive orders also aimed at this is.” According to Wired magazine on Jan. protecting net neutrality. Governing magazine pointed out 23, 2018, it is likely that more states and HB 2282 was passed by the that the law “would almost certainly cities will take action to maintain net Washington House of Representatives on be subject to lawsuits by broadband neutrality within their jurisdictions. The February 9 by a vote of 93-5 and by the companies arguing that it violates the article cited former FCC enforcement state Senate on February 27 by a 35-14 FCC’s December order [because the] chief Travis LeBlanc, who contended vote. The new law fi rst requires “[a]ny FCC made clear that it would preempt that state and local action probably has person providing broadband internet any state or local government that tried the best chance of making an impact in access service in Washington state [to] to enact net neutrality regulations of its the short term. publicly disclose accurate information own.” However, telecommunications SCOTT M EMMEL regarding the network management law expert Pantelis Michalopoulos told SILHA BULLETIN E DITOR practices, performance characteristics, Governing in a January 23 interview and commercial terms of its broadband that the FCC would have a diffi cult time internet access services.” The purpose of proving their case. “Here, we have an the requirement is to “enable consumers attempt to preempt state laws based on to make informed choices regarding nothing, or virtually nothing, precisely

18 Parkland Shooting Raises Ethical Questions about Covering Mass Shootings, Sparks Proliferation of Fake News and Conspiracy Theories n Feb. 14, 2018, 17 adults and Coverage of Teenagers Distinguishes national business reporter, agreed that teenagers were killed and Parkland Shooting from Other Mass the news coverage of the Parkland 17 more were injured after Shootings shooting was different. She quoted a gunman opened fi re at In February and March of 2018, Jane Hall, a professor at American Marjory Stoneman Douglas several media outlets and observers University’s School of Communication, OHigh School (Stoneman Douglas) in noted that the Parkland shooting, and who said, “I think that this has been Parkland, Fla., garnering signifi cant the ensuing media coverage, were building as a story.. . . What has media coverage. Several elements of the distinct from previous mass shootings happened with the Parkland story is Parkland shooting because the victims and survivors were the eloquence of the young people coverage set it teenagers and students, many of whom coming forward immediately after this MEDIA ETHICS apart from the would gain national prominence for happened, speaking for themselves, and coverage of other their statements regarding the shooting speaking with anger and saying, ‘It is mass shootings. and gun control. As a consequence of time for the grown-ups to do something They included the media coverage of this coverage, the Parkland shooting about this.’” the teenage survivors, students, and remained on the national consciousness Siegel also highlighted statistics activists; the proliferation of fake news longer than other mass shootings. found by the Post in partnership with and conspiracy theories in the aftermath However, many observers also criticized researchers from Media Cloud, an open- of the shooting; a conservative talk show the news media for not adequately source archive collecting content from host’s controversial comments about covering black individuals, including 60,000 digital publications each day. one of the survivors, leading to the loss students from Marjory Stoneman They found that there were 7,900 stories of several sponsors; and commentary Douglas High School, and the black by U.S. media outlets about the Parkland focusing on how local and national community as a whole in their coverage shooting in the two weeks following media should cover mass shootings. of the Parkland shooting. The National the incident. In comparison, there were On Feb. 14, 2018, 19-year-old Nikolas Rifl e Association (NRA) also criticized 4,200 about the Las Vegas shooting and Cruz opened fi re at Stoneman Douglas. the media, claiming they “love” mass 4,500 about the San Bernardino shooting Cruz, who had previously stated on shootings because of the boost in in which a married couple carried out social media his aspiration to become ratings, leading several reporters to a mass shooting at the Inland Regional a “professional school shooter,” was defend their practices. Center in San Bernardino, Calif. in subsequently charged with 17 counts of On Feb. 22, 2018, CNN reported that 2015. The only shooting that prompted premeditated murder and 17 attempted one possible reason for the continuing more stories was the mass shooting murders. Details of the shooting were coverage of the shooting was that at Pulse nightclub in Orlando, Fla. in revealed through numerous media Parkland’s survivors and their supporters June 2016, though most of the stories reports, as well as social media images, “[were] old enough to organize, were published in the immediate days audio, and videos during and following tweet, stage walkouts and protest . . . following the incident. the shooting, many of which depicted prompting even more media coverage.” Siegel cited her interview with Sasha students hiding with rapid gunshots This was in contrast to the shooting at Costanza-Chock, an associate professor in the background, overturned chairs, Sandy Hook Elementary School in 2012, of civic media at the Massachusetts blood-stained fl oors, and more. where the survivors were “too young Institute of Technology, who contended In the aftermath of the shooting, to mobilize.” CNN also differentiated that the media savvy of teenage activists several students from Stoneman the Parkland shooting from the Oct. 1, was a major reason the shooting Douglas founded Never Again MSD, a 2017 shooting in Las Vegas, Nev. where received continuing media coverage. gun control advocacy organization. The a gunman opened fi re on a country “They have organizational support initial co-founders of the group were music concert, killing 58 and wounding from existing organizations, as well as Cameron Kasky, Alex Wind, and Sofi e at least 500 who came from a variety personal experience,” Costanza-Chock Whitney. Additional students joined of locations. Unlike in the Las Vegas said. “And they grew up with social prior to and after a gun-control rally in shooting, the Parkland survivors are part media. They’ve given hundreds of Fort Lauderdale, Fla. on Feb. 17, 2018, of “the same tight knit community.” interviews to print and TV journalists, including Emma González and David According to TVEyes, a media so within a couple days they learned Hogg. Several of the students were monitoring program, in the week how to do that, and how do you use featured in national media interviews following the Parkland shooting, there talking points with a reporter.” Timothy and town hall meetings. The group were 1,024 mentions of “gun control” Johnson, the guns and public safety used the hashtags #NeverAgain and on CNN, Fox News, and MSNBC, and program director for Media Matters for #EnoughIsEnough on multiple social more than 200 mentions on ABC, CBS, America, also credited the students, media platforms. On March 24, 2018, and NBC broadcasts, most of which saying that there was much more talk Never Again MSD led a nationwide stemmed from the coverage of Never about an assault-weapons ban than after protest called “March for Our Lives,” Again MSD and the survivors of the other mass shootings. during which millions of people marched Parkland shooting. However, the media coverage of across 800 sites in the United States and In a March 2 post on The Washington the teens also raised concerns from internationally in support of tighter gun Post’s “Wonkblog,” Rachel Siegel, a Parkland, continued on page 20 control regulations and solutions. 19 Parkland, continued from page 19 At a press conference on March 29, hall event, an assertion that was later some observers. One particular area of several black students from Stoneman debunked. criticism was that the media coverage Douglas pointed out that the media On Feb. 22, 2018, the Washington largely ignored black individuals and coverage did not refl ect the fact that Examiner, a conservative website communities, including students at their school is 11 percent black, and weekly magazine, reported that Stoneman Douglas. Online publishing according to Vox the same day. Student Colton Haab, a survivor of the Parkland platform Medium contributor Aditi Tyah-Amoy Roberts said, “I am here shooting, had claimed that CNN provided Juneja contended that the media today with my classmates because we him a list of “scripted questions” in coverage of the Parkland shooting have been thoroughly underrepresented advance of a televised town hall meeting appeared to demonstrate “a colorism in and, in some cases, misrepresented.” on February 28. He told the local ABC who the media chooses to cover.” She In an interview with CNN on March 29, affi liate, WPLG-TV, “I expected to be continued, “The faces that we have seen Kai Koerber, a junior, said, “I would say able to ask my questions and give my are either White or White-passing. This that our voices were not intentionally opinions on my questions.. . . CNN had choice is particularly odd given that excluded, but they were not intentionally originally asked me to write a speech more than half of kids killed in fi rearm included.. . . Now more than ever, it is and questions, and it ended up being all homicides are Black.” time to represent the diversity of our scripted.” According to Business Insider Juneja cited a 2017 study by the school, and the diversity in the world.” on February 23, Haab’s father, Glenn medical journal Pediatrics, which Another organization critical of the Haab, provided CNN with a lengthy found that black youth were killed in 56 media coverage of the Parkland shooting speech he wanted his son to read, and percent of fi rearm homicides between was the NRA. On February 22, Politico pulled his son out of the town hall after 2012 and 2014, the highest of any reported that NRA spokeswoman Dana CNN refused to let him read it. demographic. Additionally, black male Loesch said at the annual Conservative CNN denied the allegations in a teenagers were 10 times more likely Political Action Conference that “[m]any February 22 statement, claiming that to be killed in gun violence than their in legacy media love mass shootings. You there was “absolutely no truth to this. white counterparts. Juneja provided guys love it.” She added, “Now, I’m not CNN did not provide or script questions some potential explanations for the saying that you love the tragedy. But I am for anyone in last night’s town hall, nor lack of coverage of the black students saying that you love the ratings. Crying have we ever.” from Parkland, such as events are most white mothers are ratings gold to you The following day, CNN released a newsworthy “when they are unusual and many in the legacy media.” series of emails between the Haabs and and unexpected” or that the media “has In a February 28 story, USA Today producer Carrie Stevenson in order to become desensitized to gun violence quoted several of its reporters who demonstrate that the family provided in communities of color and only takes refuted Loesch’s claims, including Rick doctored emails to media outlets as notice when it happens in wealthier, Jervis who wrote, “No, the media doesn’t their evidence that CNN provided Whiter communities.” She also suggested love mass shootings. But we love the Colton a scripted question. The fi rst that it is perhaps “a refl ection of who humanity that inevitably shines through email was Colton sending his proposed is in our newsrooms and whose stories each event.” Trevor Hughes described questions to Stevenson, who approved they relate to and deem worth telling.” the diffi culty for journalists to cover one of the questions. Glenn then One of the survivors of the shooting, mass shootings and other tragedies. “The provided Stevenson with the speech he David Hogg, also criticized the media reality is that some days, the hardest wanted Colton to read, several pages of for not providing more coverage not thing a reporter must do is pick up “background” points contextualizing his only of the black students at his school, the phone to call a grieving family,” he question. but also of the black community more wrote. “But that’s what we do. We seek Stevenson’s response to the speech broadly. In a live Twitter Q&A on March primary sources and hold an honest was the email in question. In both 19, Hogg said that there was “a lot of mirror up to our communities. We don’t versions of the email provided by the racial disparity in the way that this have the luxury of conspiracy theories or Haabs and CNN, Stevenson wrote that [shooting] is covered.” He continued, parroting talking points. We report. We the notes were “way too long. There “If this happened in a place of a lower cry. And we wrestle with our coverage are quick questions so that we can get socioeconomic status or . . . a black decisions through sleepless nights and to as many as possible.” In a version of community, no matter how well those broken relationships and a seemingly the email distributed by the Haabs to people spoke, I don’t think the media unending parade of grief.” several media outlets, Stevenson wrote, would cover it the same.. . . We have to “This is what Colton and I discussed on use our white privilege now to make sure Fake News and Conspiracy Theories the phone. He needs to stick to this.” that all of the people that have died as a Spread in the Aftermath of the However, CNN’s version included three result of [gun violence] and haven’t been Parkland Shooting additional words: “This is what Colton covered the same can now be heard.” In the days and months following and I discussed on the phone that he Another survivor, Cameron Kasky, the Parkland shooting, fake news and submitted. He needs to stick to this” agreed with Hogg. During the same conspiracy theories spread rapidly (emphasis added). In both versions, Q&A, Kasky said, “We’re an affl uent across social media and from some Stevenson then provided a condensed community ― that’s why initially conservative commentators. Perhaps version of the notes Colton could read. everybody followed this [shooting] the most notable example, among many In a February 23 post on The so closely.. . . There are communities others, involved allegations by one Washington Post’s “Erik Wemple” that . . . have to deal with [gun violence] of the survivors of the shooting who blog, Wemple explained that the Haabs on a much more regular basis and have claimed that CNN had provided him had cut off the portion of the email to feel a lot less safe than we do.” “scripted” questions to ask during a town demonstrating that Stevenson was

20 insisting that Colton use a question On March 26, conservative website are a “self-protective mechanism he had already “submitted.” The RedState falsely reported that Hogg, was people have.” In a 2017 interview with released emails are available online not actually at school on the day of the Resnick, van Prooijen added that at: https://www.washingtonpost.com/ Parkland shooting. The author of the education level, political ideology, and blogs/erik-wemple/wp/2018/02/23/ article, Sarah Rumpf, relied on what she personality characteristics are all factors scripted-controversy-cnn-releases- believed were two confl icting interviews determining how susceptible one is to emails-of-correspondence-with-fl orida- with Hogg, according to Mediaite, a believing conspiracy theories. student/?utm_term=.757e34e0e597. news and opinion blog, on March 26. On February 23, The New York The same day it released the emails, In an interview with Time , Hogg said Times contended that part of the CNN issued an additional statement, he was hiding in a closet during the problem was that Facebook, YouTube, which said in part, “It is unfortunate that shooting. In a CBS documentary, Hogg and other social media sites, although an effort to discredit CNN and the town said that on the day of the shooting, they promised to remove false or hall with doctored emails has taken any he got on his bike and rode as quickly conspiratory content related to the attention away from the purpose of the to the school as possible. Rumpf later Parkland shooting, were unable to event. However, when presented with issued two updates after cellphone video eradicate much of the content. In an doctored email exchanges, we felt the showed Hogg, was, in fact, hiding in a interview with the Times , Jonathon need to set the record straight.” closet during the shooting. Additionally, Morgan, founder of New Knowledge, The Haabs’ claims were not the several news outlets clarifi ed that Hogg, a company that tracks disinformation only prominent examples of fake news a student journalist, was riding his bike online, said Facebook and YouTube circulating in the aftermath of the to school, but it was hours after the “[are] not able to police their platforms Parkland shooting. In a Feb. 27, 2018 shooting in order to take photographs when the type of content that they’re interview with National Public Radio and interview people at the scene. promising to prohibit changes on a (NPR), Miami Herald reporter Alex Finally, in late March, a photo too-frequent basis.” Harris discussed how several witnesses circulated of survivor Emma González, and survivors seemed to be upset with which appeared to show her tearing a Conservative Radio Show Host her when she was trying to arrange copy of the U.S. Constitution. However, Criticizes Parkland Shooting interviews in the aftermath of the on March 24, director of the La Follette Survivor, Loses Sponsors shooting. She explained that they had School of Public Affairs at the University On March 28, 2018, conservative seen a screenshot of a doctored version of Wisconsin Don Moynihan posted a television and radio talk show host Laura of one of her tweets from earlier in tweet demonstrating that the photo was Ingraham posted a tweet criticizing the day, which was altered to say that fake and was based on an image and Parkland shooting survivor David Hogg she was requesting photos or videos of Graphics Interchange Format (GIF) of for “whining” about being rejected by dead bodies, rather than interviews. A González ripping a gun-target poster four universities, leading to immediate second screenshot altered a separate in a Teen Vogue feature. Nevertheless, criticism on Twitter. Although Ingraham tweet to indicate that Harris wanted to the images were shared by several apologized, at least nine sponsors pulled know whether the shooter was white, prominent conservative fi gures, their advertisements from her show, a which Harris said seemed to show that including actor and commentator consequence for controversial actions she had “some sort of agenda” or that Adam Baldwin, who defended it as and statements previously faced by she was “race-baiting.” Harris said in the “political satire,” according to the Daily Fox News hosts Bill O’Reilly and Sean interview with NPR, “This is obvious Intelligencer on March 25. He later Hannity in 2017. fake news. It is obviously a hoax. And deleted his tweet of the image. On March 28, Ingraham posted a it is obviously being sent out there so On February 26, Vox science tweet, which read “David Hogg Rejected people can harass me and target me with reporter Brian Resnick offered two By Four Colleges To Which He Applied abuse.” reasons why conspiracy theories and whines about it. (Dinged by UCLA On February 14, the No. 1 trending and fake news “fl ourished” after the with a 4.1 GPA...totally predictable given video on YouTube contained the false Parkland shooting. First, he explained acceptance rates.)” According to The allegation that Parkland shooting that conspiracy theorizing is a type of Washington Post the following day, the survivor David Hogg was an “actor.” The politically-motivated reasoning in which tweet received immediate backlash, with video showed a clip of him speaking individuals seek to protect the groups many criticizing Ingraham for attacking on camera for a Los Angeles local and worldviews to which they adhere. the survivor of a school shooting. Hogg news segment in 2017, suggesting that Resnick quoted Texas Tech University tweeted, “Soooo @IngrahamAngle what he followed the cameras to different psychologist Asheley Landrum, are your biggest advertisers ... Asking for newsworthy events. The New York who wrote in an email to Vox , “To a friend. #BoycottIngramAdverts.” Times reported on February 20 that counteract the kids’ powerful speech, a On March 29, multiple news outlets other YouTube videos falsely alleged conspiracy narrative arises that allows reported that Ingraham had apologized that the students were “crisis actors” or individuals to dismiss or ignore [the kids’ in two tweets that said, “Any student “FBI plants.” YouTube eventually took perspectives]” without having to actually should be proud of a 4.2 GPA —incl. down many of the videos, according to engage with their arguments. [Hogg]. On refl ection, in the spirit of Vox on February 26. However, right-wing Second, Resnick contended that Holy Week, I apologize for any upset commentators Alex Jones and Rush conspiracy theories are “a tool to cope or hurt my tweet caused him or any of Limbaugh continued to push the false with a painful, uncertain world.” He cited the brave victims of Parkland. For the “crisis actors” allegation, among other the work of Jan-Willem van Prooijen, a record, I believe my show was the fi rst conspiracy theories, according to Media social and organizational psychologist to feature David . . . immediately after Matters on March 4. at Vrije Universiteit Amsterdam, that horrifi c shooting and even noted who found that conspiracy theories Parkland, continued on page 22 21 Parkland, continued from page 21 regarding NBA players discussing their parents, while CNN, in each interview, political opinions, “Must they run their told the student that she did not have how ‘poised’ he was given the tragedy. mouths like that? . . . Keep the political to talk about anything she did not want As always, he’s welcome to return to commentary to yourself, or as someone to, even if the network had received the show anytime for a productive once said, shut up and dribble.” consent. Washington Post Managing discussion.” The Post said that the On April 3, Fortune magazine Editor Cameron Barr said the paper Ingraham’s quick apology “showcase[d] reported that Fox News had defended did not have a specifi c policy, but that the power that the Parkland survivors Ingraham. In a statement, Fox News it required that its journalists “use the have, not just in organizing rallies but in copresident Jack Abernethy said, “We utmost compassion and sensitivity spurring corporate America to act.” cannot and will not allow voices to be in interviewing children in such However, NBC News and National censored by agendadriven intimidation circumstances.” Public Radio (NPR) reported on March efforts. We look forward to having Laura In an interview with the Post, Bruce 30 that Ingraham had lost several Ingraham back hosting her program next Shapiro, executive director of the Dart advertisers, including TripAdvisor, Monday when she returns from spring Center for Journalism and Trauma, a Expedia, Hulu, Johnson & Johnson, vacation with her children.” Ingraham Columbia Journalism School project Wayfair, Nestlé, and Nutrish. Wayfair, and Fox News had previously claimed that focuses on disaster and violence an ecommerce company, said in a that the vacation was preplanned, reporting, criticized NBC’s subsequent statement, “The decision of an adult according to Fortune. decision to post the interview with to personally criticize a high school Grady on social media. “Whatever student who has lost his classmates in Media Outlets Grapple with the mistakes of the interview itself, an unspeakable tragedy is not consistent Covering Mass Shootings, Raise that tweet is clearly exploitative of a with our values.” Nutrish, a pet food Particular Issues with the Parkland teenager’s grief,” he said. “If the segment brand, said in a separate statement that Shooting is ‘absolutely heartbreaking’ [as NBC’s “[t]he comments [Ingraham] made are Following the Parkland shooting, tweet describes it] it is because Kotb and not consistent with how we feel people media organizations grappled with Guthrie were ignorant of her loss. NBC should be treated.” ethical questions about how to report should be apologizing for its mistake, not In a March 29 tweet, Hogg wrote that on mass shootings. The Washington selling that girl’s tears like reality TV.” he would “accept [Ingraham’s] apology Post and Columbia Journalism Review On February 16, CJR published an only if [she] denounce[d] the way [Fox (CJR) each discussed particular issues essay about what stories journalists News] has treated [his] friends and raised by the Parkland shooting, namely should be writing about the Parkland [himself] in this fi ght. It’s time to love covering and interviewing minors in shooting. More specifi cally, Meg thy neighbor, not mudsling at children.” the aftermath of tragedies, and digging Kissinger, an investigative reporter for In an interview the same day with The into the failures of law enforcement and the Milwaukee Journal Sentinel and New York Times, Hogg added that he healthcare in the case of the shooter, instructor at Columbia University’s was not impressed by the apology. “She Nikolas Cruz. Graduate School of Journalism, urged only apologized after we went after her On Feb. 15, 2018, The Washington journalists to avoid the “quick, easy advertisers. It kind of speaks for itself,” Post discussed how the media should story of carnage or swayed by the cheap he said. cover cases such as the Parkland opportunism of those looking to advance The New York Times noted that shooting where the survivors are minors. their own political agendas.” Instead, Ingraham was not the fi rst Fox News The Post fi rst provided the example Kissinger called on reporters to “[f]ollow host to lose sponsors, or at least face the of NBC’s February 15 “Today Show” the money,” especially regarding the risk of losing sponsors, after consumers interview of Samantha Grady, a student Parkland shooting because “[e]very red on social media demanded that at Marjory Stoneman Douglas High fl ag was there” but the school and law advertisers address controversial actions School who had witnessed the shooting enforcement “did [not do] anything” or comments by the hosts. In April 2017, of her best friend and classmate. When regarding the mental health of the 50 brands pulled advertisements from cohost Savannah Guthrie asked how shooter, Nikolas Cruz. “The O’Reilly Factor” after host Bill her friend was doing, Grady cried and Media outlets and observers also O’Reilly reportedly reached settlements responded “Yeah, unfortunately, she reaffi rmed several recommendations with several women who had accused didn’t make it,” which was followed by made after previous mass shootings, him of sexual harassment or other silence before cohost Hoda Kotb said, including to refrain from focusing inappropriate behavior. He was later “We’re so sorry about that, Samantha, so on the shooter, but instead on the fi red by Fox. In November 2017, similar sorry.” The Post explained that although survivors; to be empathetic and make calls were made regarding host Sean the question of balancing informing the sure survivors feel safe, as well as Hannity after he seemed to justify then public and mining a tragedy for ratings interviewing a range of survivors; and Republican nominee for the U.S. Senate was not new, the Parkland shooting to practice introspection and self Roy Moore’s alleged sexual advances and subsequent media coverage, such criticism, especially in cases when toward teenage girls when he was in as that by the “Today Show,” raised a they make mistakes, among other his early 30s as “consensual.” However, secondary concern about interviewing recommendations. For more information according to the Times , the calls against minors: whether a teenager, especially and resources about media coverage Hannity were less effective, with several one who has so recently experienced of mass shootings and other tragedies, brands initially stating they would trauma, can provide informed consent to visit the Dart Center for Journalism & drop advertising for his show, but later be interviewed. Trauma’s website at https://dartcenter. deleting those statements. According to the Post, various media org/topic/homicidemassshooting. The Times also noted that Ingraham outlets handled the issue differently. SCOTT M EMMEL had been the center of controversy NBC sought permission from Grady’s in February 2018 when she said, SILHA BULLETIN E DITOR 22 Undercover Video Maker James O’Keefe Continues Attacks on the News Media, Faces Setbacks in Some Legal Disputes n October 2017, political activist edited, according to the Columbia collusion of the Trump administration James O’Keefe, who is known for Journalism Review ( CJR) on March 15, with Russia during the 2016 presidential publishing controversial hidden 2011. The New Yorker magazine reported campaign “a nothingburger,” according camera videos on his website, on May 20, 2016 that the videos “raised to The Hill on June 30, 2017. Following Project Veritas, targeted The serious questions about [O’Keefe’s] the posting of the videos, several media INew York Times in his latest operation methods and ethics — questions that members and scholars once again intended to target the mass media. In have trailed him ever since.” O’Keefe and criticized O’Keefe’s methods and called December, O’Keefe obtained a legal Giles eventually settled with ACORN for into question the legitimacy of the videos. victory after a $100,000 on a wire-tap claim after losing (For more information on the CNN federal judge a motion for summary judgment. (For videos, see Political Operatives Target DATA PRIVACY lifted a restraining more information on the ACORN videos Hidden Camera Videographer in Civil order that had and the resulting lawsuit, see “ACORN Lawsuit in “Controversial Undercover barred Project Videos Provoke Media Debate, Trigger Video Makers Face Legal Action and Veritas from disclosing videos and other Lawsuit” in the Fall 2009 issue of the Ethical Concerns” in the Summer 2017 information obtained in an operation Silha Bulletin). issue of the Silha Bulletin.) against the Michigan chapter of the In 2010, two of O’Keefe’s accomplices American Federation of Teachers (AFT were criminally charged after they Project Vertias Targets The New York Michigan). disguised themselves as telephone Times However, in the winter of 2017/2018, repairmen in an attempt to enter the On Oct. 10, 2017, The New York O’Keefe also encountered two setbacks. offi ces of then-U.S. Senator Mary Times reported that James O’Keefe had On Nov. 27, 2017, The Washington Post Landrieu (D-La.). The accomplices published a video on the Project Veritas published an extensive report describing allegedly tampered with the offi ce’s website, https://www.projectveritas.com/, how a woman who had made several phone system, according to The which allegedly depicted a junior Times false claims about then-Republican Washington Post on Jan. 27, 2010. editor, Nick Dudich, mocking the idea of U.S. Senate candidate Roy Moore in The accomplices, O’Keefe, and an acting as an objective journalist. Dudich, interviews with the Post was actually an additional employee of Project Veritas who joined the Times in the spring of operative from Project Veritas seeking pled guilty to one count each of entering 2017 as an audience strategy editor, to discredit the newspaper. Amidst federal property under false pretenses. did not know he was being recorded, signifi cant criticism from journalists O’Keefe was sentenced to three years according to the Times . and advocates, O’Keefe eventually of probation, 100 hours of community In a statement in response to the admitted to being behind the operation, service, and a $1,500 fi ne. video, Times spokeswoman Danielle but maintained that Project Veritas’ In 2011, O’Keefe targeted senior Rhoades Ha said, “Based on what we’ve intention was not to plant a fake story. vice president of National Public Radio seen in the Project Veritas video, it On Jan. 4, 2018, a federal judge allowed a (NPR) Ron Schiller, who was depicted appears that a recent hire in a junior lawsuit brought by Robert Creamer, co- in a Project Veritas video making position violated our ethical standards founder of Strategic Consulting Group, negative comments about the “Tea and misrepresented his role.” She NA, Inc., a member organization of Party” political movement. Schiller was continued, “In his role at The Times, Democratic National Committee vendor also shown saying that NPR would be he was responsible for posting already Democracy Partners, LLC, to proceed. “better off in the long run without federal published video on other platforms and O’Keefe fi led two motions seeking to funding.” The video ultimately led to the was never involved in the creation or dismiss the lawsuit, which arose after he resignation of Schiller and NPR Chief editing of Times videos. We are reviewing published a series of videos to Project Executive Offi cer Vivian Schiller. (For the situation now.” Veritas following a “sting operation” into more information on O’Keefe’s stings The following day, Project Veritas Democracy Partners LLC. in 2010 and 2011, see NPR Executives posted a second heavily edited O’Keefe has a long history of posting Resign after Hidden Camera Sting in video depicting Dudich in which he undercover videos on the Project Veritas “Prank Phone Call, Hidden Camera Spur allegedly discussed how he serves as a website, https://www.projectveritas. Ethical Controversies for News Media” in “gatekeeper . . . choos[ing] what goes out com/, that raise several legal and ethical the Winter/Spring 2011 issue of the Silha and what doesn’t go out.” On October questions. In 2009, O’Keefe fi rst gained Bulletin.) 17, O’Keefe posted a tweet in which notoriety after releasing a series of In the summer of 2017, O’Keefe he claimed that Dudich had been fi red, undercover videos on Project Veritas released a series of videos targeting CNN. though as the Bulletin went to press, the depicting a community organizing In one video, a CNN producer can be Times had not announced whether this group, the Association of Community heard saying the coverage of President was the case. Organizations for Reform Now (ACORN), Donald Trump’s possible collusion with The videos depicting Dudich were the advising a couple posing as a pimp and a Russia during the 2016 presidential fi rst two in a four-part series targeting prostitute on how to make their business election was “mostly bullshit” and all the Times, titled “American Pravda, legal. The couple was later revealed to about “ratings.” In another video, CNN NYT.” The third video depicted homepage be O’Keefe and his associate Hannah contributor and host of “Messy Truth” Giles. The videos appeared to be heavily Van Jones is heard calling the possible O’Keefe, continued on page 24 23 O’Keefe, continued from page 23 alleges that Jorge repeatedly accessed releasing to the public or otherwise editor Desiree Shoe criticizing Vice other staff members’ computers, disclosing information pertaining to or President Mike Pence. The fourth video gaining access to more proprietary and relating to the Plaintiff AFT Michigan, showed Todd Gordon, an IT consultant confi dential information. its offi cers, employees or affi liated for the Times , stating that bias against The complaint’s fi rst claim was that location unions until the further President Donald Trump was part of the Jorge fraudulently misrepresented “(a) order of the Court.” Sullivan ruled company culture. her identity; (b) her purpose for seeking that it appeared Jorge had “secured As the Bulletin went to press, no an internship; (c) her interest in public access to private, confi dential and further videos had been posted and the education or the labor movement” in proprietary information” and that Times had not responded to the new order to disparage AFT Michigan and Project Veritas intended to “publish videos. generate economic contributions to this information . . . which . . . [was] Project Veritas. The second claim was taken without authority or consent.” Federal Judge Lifts Temporary that Jorge trespassed in order to gain He added that it appeared that “the Restraining Order Against Project access to AFT Michigan members, publication of private, confi dential and Veritas computers, fi les, and records. The proprietary information will result in On Dec. 27, 2017, Politico and The complaint stated that AFT Michigan an irreparable injury to [AFT Michigan] Washington Post reported that U.S. would not have given access to their because information released to the District Court for the Eastern District offi ces had it known Jorge’s truth identity public cannot be recalled or the privacy of Michigan Judge Linda Parker had and purpose. of the information restored.” The full lifted a temporary restraining order Third, the complaint contended that order is available online at: https://www. (TRO) against James O’Keefe and Jorge eavesdropped on AFT Michigan aft.org/sites/default/fi les/tro_aftmi_ Project Veritas related to an undercover employees by “interrogating” them veritas_092917.pdf. operation into the Michigan affi liate of and reviewing proprietary physical However, on December 27, Judge the American Federation of Teachers and electronic fi les and records. Parker vacated the TRO and denied AFT (AFT Michigan). AFT Michigan v. Additionally, AFT Michigan alleged that Michigan’s request for a preliminary Project Veritas, No. 17-cv-13292 (E.D. Jorge may have surreptitiously recorded injunction. Parker ruled that AFT Mich. 2017). Parker also denied a request interactions in the AFT Michigan offi ces Michigan, despite producing 221 for a temporary injunction brought by the because she often wore “adornments documents as evidence, failed to meet teachers union, citing First Amendment which are capable of hiding a camera or the criteria for issuance of a preliminary concerns. recording device.” The complaint stated injunction because the documents On Sept. 27, 2017, AFT Michigan fi led that because Project Veritas had a history did not provide adequate evidence to a complaint and demand for trial by jury of “creating false and misleading stories, demonstrate violations of the Michigan in the Third Judicial Circuit of Michigan which . . . [have] taken comments out of Uniform Trade Secrets Act (MUTSA), against Project Veritas and Marisa Jorge context, have materially misrepresented Mich. Comp. Laws § 445.1903(1), the seeking “redress for the fraudulent, the words of persons interviewed[, and Michigan Eavesdropping Act, Mich. unauthorized and unlawful surveillance have] cast organizations in a false light Comp. Laws § 750.539d, and breach of [Project Veritas] and its staff and the for the purpose [of] bringing harm to of fi duciary duty. Parker concluded fraudulent, unauthorized and unlawful these entities,” the court should intervene that AFT Michigan would “not suffer gathering of information.” According to avoid irreparable harm. irreparable harm” because there was “no to the complaint, Jorge, who used the Fourth, the complaint alleged that factual support that [Jorge or Project pseudonym Marissa Perez, was a political Jorge secured her internship “by trick,” Veritas] violated either the MUTSA or the operative who had previously attempted which resulted in larceny, the “taking Eavesdropping Act,” as well as because to infi ltrate Disrupt J20, an organization of valuable material for personal gain.” there was “no certainty that what could that opposed the election of President Finally, the complaint alleged that Jorge be published could harm AFT Michigan].” Donald Trump. The complaint also stated and O’Keefe conspired together to Parker also said that granting a that Jorge perhaps shared a residence infi ltrate the AFT Michigan offi ces for the preliminary injunction “raises First with O’Keefe and was likely employed by purpose of casting the organization in a Amendment concerns” because it would Project Veritas. false light. be a prior restraint. In such cases, The complaint alleged that in the Among the remedies sought by AFT courts must consider whether the spring of 2017, Jorge approached AFT Michigan were orders “enjoining and publication “threaten[s] an interest more Michigan seeking to work as an intern restraining . . . Jorge, [Project Veritas,] fundamental than the First Amendment for the organization. She claimed to be a and any organization associated with itself and to forego the prerequisites student at the University of Michigan and [it] from disseminating, publishing, from the realm of everyday resolution of wanted to teach second grade students, displaying or otherwise releasing to civil disputes governed by the Federal both of which were later revealed to be the public information obtained in Rules. Only if a plaintiff can meet this untrue. AFT Michigan accepted Jorge violation of the law.” The full complaint substantially higher standard can a as an intern in May 2017 and assigned is available online at: https://www.aft. court issue an injunction prohibiting her various projects. According to the org/sites/default/fi les/complaint_aftmi_ publication of pure speech,” as stated in complaint, Jorge often engaged with veritas_092717.pdf. the Eastern District of Michigan’s 1999 AFT Michigan staff, seeking confi dential On Sept. 29, 2017, the Detroit Free case Ford Motor Co. v. Lane. 67 F. Supp. and proprietary information outside the Press reported that Judge Brian Sullivan 2d 745, 749 (E.D. Mich. 1999). Parker scope of her projects, such as grievances had issued a temporary restraining concluded that AFT Michigan had “not related to employee discipline stemming order (TRO) against Project Veritas, persuaded the Court that its commercial from inappropriate sexual contact with which prevented the organization, its interests are more fundamental than the students. Additionally, the complaint employees, and Jorge from “publishing, Defendants’ First Amendment right.” 24 AFT Michigan had contended that Washington Post Uncovers Alleged help our movement. I was laid off from because Jorge and Project Veritas Failed Sting Attempt my mortgage job a few months ago and unlawfully obtained private and On Nov. 27, 2017, The Washington came across the opportunity to change proprietary information, they should not Post published an extensive report my career path.” These details largely be able to benefi t from First Amendment describing how a woman had falsely matched a March Facebook post by protections. However, Parker cited claimed in several interviews with the Project Veritas advertising an opening for the U.S. Court of Appeals for the Sixth newspaper that then-Republican U.S. 12 new “undercover reporters.” Circuit’s ruling in Proctor & Gamble Senate candidate in Alabama Roy Moore Meanwhile, Phillips also met with v. Bankers Trust Co . in which the had impregnated her as a teenager. The another Post reporter, Stephanie court held that “allegedly improper Post reported that the woman, Jaime T. McCrummen, who had co-authored the conduct in obtaining the information is Phillips, was from Project Veritas, after story about Corfman with Reinhard. insuffi cient to justify imposing a prior she was seen entering the New York However, in this case, Post video restraint.” 78 F.3d 219, 225 (6th Cir. 1996). offi ces of the organization. Following reporters accompanied McCrummen, Therefore, Parker concluded that “in light the Post’s report, several media scholars who confronted Phillips about the of the potential First Amendment issues, praised the work of the Post, while GoFundMe.com page. Phillips claimed a preliminary injunction most certainly also criticizing the tactics of James she was going to work for the Daily will infringe upon Defendants’ First O’Keefe and employees of Project Caller, a conservative news outlet Amendment right.” Veritas. Although O’Keefe admitted to founded by political commentator Tucker However, Parker also said that AFT being behind the operation in an email Carlson and Neil Patel, former adviser Michigan had “a likelihood to succeed on to his supporters, he later contended in to Vice President Dick Cheney, and was the merits of its breach of duty of loyalty interviews with the Post and the Observer interviewed by a woman named “Kathy claim” because Jorge “fraudulently that his intention was not to plant a fake Johnson.” However, when the Post misrepresent[ed] herself, misusing and story. emailed Paul Connor, executive editor of mishandling confi dential information, According to the Post, on Nov. 10, the Daily Caller, he responded that no and failing to disclose that she worked 2017, Phillips fi rst met with reporter such person worked for the publication. for an organization whose interests Beth Reinard, who co-authored an After the Post determined that confl icted with [AFT Michigan].” As the article published the day before about Phillips lived in Stamford, Conn., just Bulletin went to press, no further legal allegations that Moore had initiated a 16 miles from Project Veritas’ offi ces in proceedings had been announced. sexual encounter with 14-year-old Leigh Mamaroneck, N.Y, it positioned video Following the ruling, AFT President Corfman. The Post explained that Phillips reporters nearby. Additionally, two Randi Weingarten and AFT Michigan shared a dramatic story about an alleged reporters followed Phillips from her President David Hecker published a sexual relationship with Moore in 1992. home to Project Veritas’ offi ce. The Post joint statement, which said, “Today, a In the series of interviews that lasted concluded that she worked for Project judge made clear to Project Veritas that over two weeks, she also claimed that the Veritas after she was seen entering the its unlawful tactics have a price. We relationship led to her getting an abortion building and her car remained in the understand that Judge Parker chose to at age 15. Frequently, Phillips asked if her parking lot for more than an hour. show deference to free speech in lifting account would lead to Moore being taken The Post subsequently decided to the injunction that has been in place off the ballot or lose the U.S. Senate race. report on Phillips’ previously off-the- for three months, but she made crystal The Post stated that it did not publish record comments to Reinhard and clear that the AFT’s claim about Project the article because her account was McCrummen. In the Post’s November Veritas violating Michigan law when it unsubstantiated and contained several 27 story, Martin Baron, the newspaper’s infi ltrated our confi dential operations inconsistencies. For example, Reinhard executive editor, is quoted as saying, is likely to succeed.” They added that found that although Phillips had said she “We always honor ‘off-the-record’ while they “believe strongly in the lived in Alabama for only one summer agreements when they’re entered into in First Amendment,” they were pleased while a teenager, she had a cellphone good faith.. . . But this so-called off-the- that Parker’s decision “supports [their] number with an Alabama area code. record conversation was the essence position that [AFT Michigan has] a right Reinhard also found that the company of a scheme to deceive and embarrass of action the moment Project Veritas Phillips claimed to work for, NFM us. The intent by Project Veritas clearly publishes anything illegally obtained Lending, had no records of anyone by was to publicize the conversation if by its operative Marisa Jorge. Today’s that name having worked there. we fell for the trap. Because of our decision gives clear warning that Project Additionally, Alice Crites, a Post customary journalistic rigor, we weren’t Veritas and the people working on its researcher who was looking into fooled, and we can’t honor an ‘off-the- behalf . . . will be held liable for their Phillips’s background, found a webpage record’ agreement that was solicited in actions.” that suggested Phillips was tied to maliciously bad faith.” Project Vertias spokesman Stephen Project Veritas. The webpage, which Shortly after the Post published its Gordon issued a statement, in which he was under the name Jaime Phillips, report about Phillips, O’Keefe tweeted said the organization was “particularly was on the website GoFundMe.com, a video, which he described as a happy that the court . . . removed this a platform for personal fundraising “confrontation” with Aaron Davis, one restraint to our First Amendment rights.” efforts. According to the Post, Phillips of the authors of the Post’s investigation. He added that AFT Michigan “obviously was using the page to request money When Davis and another Post reporter, ha[s] something they don’t wish for because she was “moving to New York.” as well as two video reporters, went to the citizens of Michigan or even the The page further stated, “I’ve accepted the Project Veritas offi ces to determine entire country to fi nd out about.” As the a job to work in the conservative media whether Phillips worked for the Bulletin went to press, Project Veritas movement to combat the lies and deceipt organization, they were approached had not published any material from [sic] of the liberal MSM. I’ll be using my O’Keefe, continued on page 26 Jorge’s undercover operation. skills as a researcher and fact-checker to 25 O’Keefe, continued from page 25 also called for donations to pay for journalists do their jobs and how they by O’Keefe who initially declined to the “expensive work” that goes into don’t get taken in by hoaxes,” she said. answer questions, according to the Post “review[ing] dozens of hours of footage, “It’s such an important lesson.” She on November 27. Later the same day, edit[ing] it down, fact check[ing] with continued, “Good journalists don’t just O’Keefe agreed to meet with Davis. [Project Vertias’] series of investigative take information that is given to them O’Keefe later posted a heavily edited techniques and then get[ting] the story at face value.. . . They question it. They video of the meeting, and tweeted “The out to the public.” check it. They go behind the scenes. Washington Post sends a reporter to However, on Jan. 24, 2018, The Things don’t drop into your lap, and question me, but take a look. Who’s Washington Post ’s “Erik Wemple Blog” I think that’s how some people think interviewing who?” reported that O’Keefe, in an interview journalists work.” O’Keefe’s video focused on Davis with the blog, had denied the claim that Dan Kennedy, a professor at declining to comment on Project Veritas’ he and Project Veritas had intended Northeastern University, agreed. “It was release of a surreptitiously recorded to plant a false story. “Let me make such an amazing piece of journalism,” he conversation with Dan Lamothe, a staff something very clear to you.. . . We never told the AP. “One can only imagine the writer for the Post, in which he allegedly intended to plant a fake story,’ he said. world of hurt we’d all be in journalism if discussed the paper’s “hidden agenda” He argued instead that Project Veritas’ the Post had been taken in [by the ruse].” and alleged bias against President intention was the same as it has always Brent Bozell, founder of Media Donald Trump. Lamothe posted a series been: conducting undercover operations Research Center, an organization that of tweets on November 27 criticizing in order to record candid comments from denounces alleged liberal bias in the the video, saying it “was likely recorded individuals within a media or political media, criticized Project Veritas and months ago, and obviously without my organization. Later in the interview, O’Keefe, calling the act “shameful” and knowledge.” He added that the video he characterized the goal of Project “do[ing] nothing but hurt the cause of “does unleash a secret,” but that it is that Veritas as the use of “deception as a conservative journalism.” his “own politics are hard to pin down.” means to gain access to people.” O’Keefe Lamothe praised the Post and said he continued, “We posed as a rape victim in Federal Judge Allows Lawsuit was “grateful” to cover stories from “at order to draw the reporter out in order to Against O’Keefe to Proceed least 12 countries and the Arctic Ocean” extract comments.” In 2017, James O’Keefe published in 2017. In an interview with the Observer on another series of videos to the Project In its November 27 story, the Post February 2, O’Keefe further argued that Veritas website, following an undercover included the full video of the encounter The Washington Post had falsely accused investigation by two employees of between Davis and O’Keefe, which, him of attempting to plant a fake story. Project Veritas into Robert Creamer, unlike the Project Veritas version, “If you actually trace back the facts and co-founder of Strategic Consulting depicted O’Keefe refusing to answer read the article, you’ll see they didn’t Group, NA, Inc., a member organization Davis’ questions about Phillips and her actually state it as fact,” he said. “They of Democratic National Committee affi liation with Project Veritas, which deduced it.” O’Keefe added that he was vendor Democracy Partners, LLC. The he repeated several times. At one point, speaking with his lawyers about “suing operation, which began in April 2016, led Davis asked, “Your employee [Phillips], The Washington Post for defamation” to a lawsuit against O’Keefe, claiming she’s your employee? If you’re not going because the newspaper’s claims that that his accomplices had trespassed on to answer that, I’ll assume she is your he attempted to plant a fake story are private property, among other claims. employee. Is that correct?” O’Keefe “grounds for a defamation lawsuit.” As After O’Keefe fi led two unsuccessful responded, “So I’m actually going to talk the Bulletin went to press, O’Keefe had motions to dismiss the lawsuit, a federal to you about . . .” before Davis interjected not fi led a lawsuit against the Post. judge on Jan. 4, 2018 allowed the lawsuit and asked about Project Veritas’ In his January 24 blog post, Erik to proceed, fi nding that the complaint methodology of using fake employment Wemple pointed out that there is a “very had plausibly asserted several claims, information and inaccurate accounts surface-level problem with O’Keefe’s including trespassing and wiretapping. about interactions with Moore. The full protestations,” which is that “[w]hen you Democracy Partners v. Project Veritas video ended with Davis getting into deploy an operative to send in a false Action Fund, No. 17-1047 (D.D.C. 2017). his car after O’Keefe further refused to tip to a newspaper, you are, in effect, In the summer of 2017, O’Keefe answer questions regarding Phillips. attempting to plant a fake story.” Wemple posted a series of videos following CNN reported on November 28 continued, “O’Keefe rebuts this notion a “sting operation” in which Project that O’Keefe admitted that Phillips by arguing that if The Post had been Veritas employee Allison Maass posed worked for Project Veritas in an ramping up to publish such an account, as an intern and infi ltrated Democracy email to his supporters, which read he would have taken some preemptive Partners’ private offi ces. The infi ltration “Following months of undercover action.. . . Ironic that O’Keefe appears began on June 24, 2016 when Creamer work within The Washington Post, to have trusted that The Post wouldn’t met “Charles Roth,” who claimed he our investigative journalist embedded just run straight to the presses with the was a potential donor to Americans within the publication had their cover explosive allegations about Moore. That, United for Change (AUFC), a non-profi t blown.. . . This is how undercover work after all, is the very stereotype of the organization for which Creamer worked. goes. This isn’t the fi rst time that has mainstream media that O’Keefe and his Roth’s real name was Daniel Sandini, an happened, and it won't be the last time.” brethren have sold for years.” employee of the Project Veritas Action Slate magazine reported that the same In an interview with the Associated Fund (Project Veritas Action), which email asked for donations so Project Press (AP), Silha Center Director and was created to “[i]nvestigate and expose Veritas could “launch [its] latest series Silha Professor of Media Ethics and corruption, dishonesty, self-dealing, exposing another so-called pillar of Law Jane Kirtley praised the work of waste, fraud and other misconduct.” the Establishment Media.” The email The Washington Post. “This is how good According to the complaint, on July

26 15, 2016, Sandini told Creamer that his breach of fi duciary duty, wiretap claims, lawsuit pursuant to the D.C. Anti- niece, “Angela Brandt,” was interested in and civil conspiracy. Huvelle walked Strategic Lawsuits Against Public volunteering for Democratic candidates through each claim, determining Participation (Anti-SLAPP) Act. or organizations. whether each should be dismissed. For D.C. Code §§ 16-5501-5505. Anti-SLAPP Brandt, who in reality was Maass, example, Huvelle ruled that although laws are meant to provide a remedy eventually began an internship at Maass obtained her job, and was for defendants against meritless Democracy Partners, during which therefore provided “consent” to enter claims brought by plaintiffs involving she recorded numerous private the Democracy Partners’ offi ce, she was publications regarding matters of public conversations, and acquired several still liable for trespass and that the claim concern or the defendant’s right to free private messages and documents, all “can proceed even if there are no actual speech, right to petition the government, of which were later used by Project damages.” or right of association. The D.C. Veritas in four separate videos posted As reported by Politico, Huvelle Anti-SLAPP Act imposes a heightened on the website between October 17 and also left open the possibility that the pleading standard for claims related October 24. Project Veritas Action also defendants’ conduct violated the D.C. to “act[s] in furtherance of the right of published the videos on its website under wiretap statute, D.C. Code § 23-542, even advocacy on issues of public interest” the heading “VeritasLeaks” on Oct. 26, though Maass appeared to have been by requiring plaintiffs to show that their 2016. The Washington Post reported present during the recordings, with D.C. claims are “likely to succeed on the on October 19 that the videos appeared law generally requiring consent from only merits.” to be heavily edited, often combining one person involved in a conversation Huvelle found that recent court statements in a way that did not make in order to record it. Huvelle ultimately precedent “foreclose[d] application sense or suggested that something was declined to dismiss any of the liability of D.C.’s Anti-SLAPP Act in [a] federal missing from the video. This style of claims brought by Creamer. court” that is exercising diversity production was consistent with past Huvelle next turned to the jurisdiction, which Huvelle argued was videos by Project Veritas, according to defendants’ attempt to dismiss most the case in the present legal dispute. the Post. of the plaintiffs’ claims for damages, Deripaska v. The Associated Press, No. In light of the information and specifi cally reputation damages, lost 17-cv-0913 (D.D.C. 2017). recordings published by Project Veritas, contract damages, and damages for the Following the ruling, Stephen Creamer and Scott Foval, another “diminishment of the economic value of Gordon, a spokesman for Project Veritas, Democratic political operative, left their confi dential and proprietary information.” criticized Creamer’s lawsuit. “Our belief jobs. In June 2017, Creamer, Democracy O’Keefe contended that the damages is that this is a carefully crafted lawsuit Partners, and Strategic Consulting Group were not the result of trespassing or which may have survived the motion to fi led a civil complaint against Project other alleged illegal actions, but by the dismiss but will fail in the end,” Gordon Veritas, Project Vertias Action, O’Keefe, underlying conduct that was exposed. said in an interview with Politico. “As the Maass, and Sandini. The complaint Regarding reputational damages in case proceeds, our attorneys will show alleged that various actions during the particular, the defendants cited the the entire case is nothing more than an course of their undercover operation Supreme Court’s ruling in Hustler attempt to retaliate against Veritas for violated federal and District of Columbia v. Falwell , 485 U.S. 46 (1988), which exposing Democracy Partners’ dirty law, including trespassing, among other established that reputation damages are political operation.” claims. (For more information on the not recoverable without pleading a viable Joseph Sandler, a lawyer for the Democracy Partners sting and the defamation claim, according to Huvelle. plaintiffs, praised the ruling. “We are subsequent lawsuit fi led by Creamer, (For more information on the case, see pleased that the court has decided to let including the claims against Project “Spring Symposium Marks the 30th this important case to proceed and to Veritas included in the complaint, see Anniversary of Hustler Magazine, Inc. allow our clients, who were really injured Political Operatives Target Hidden v. Falwell , Discusses History, Purpose, by the tactics and actions of Project Camera Videographer in Civil Lawsuit and Impact of Political Cartoons” on Veritas, to pursue all of their claims,” in “Controversial Undercover Video page 48 of this issue of the Silha Bulletin. Sandler said. “We look forward to Makers Face Legal Action and Ethical The case was a main topic discussed proving that Project Veritas’ tactics were Concerns” in the Summer 2017 issue of in the Silha Center’s spring symposium not merely dishonest and underhanded the Silha Bulletin.) titled, “The State of Our Satirical Union: but violated the legal rights of the people On Jan. 4, 2018, Politico reported Hustler Magazine, Inc. v. Falwell affected — people who were doing that U.S. District Court for the District at 30.”) However, Huvelle ruled that nothing more than participating in the of Columbia Judge Ellen Huvelle had because the plaintiffs were “not seeking political process by legitimately helping denied two motions by Project Veritas, damages based on the publication of candidates and causes in which they Project Veritas Action Fund, and O’Keefe the videos, . . . Hustler does not bar believed.” (defendants) to dismiss the lawsuit. their claim for reputation damages.” As the Bulletin went to press, no Huvelle began with the fi rst motion, She continued, “Whether plaintiffs will further legal proceedings had been which sought to dismiss the case “for ultimately be able to show that the PV announced. failure to state a claim pursuant to defendants’ non-expressive conduct SCOTT M EMMEL Federal Rule of Civil Procedure 12(b)(6).” resulted in damage to their reputation SILHA BULLETIN E DITOR Huvelle turned to the defendants’ remains to be seen, but the Court contention that there was “at least one cannot prematurely deprive them of that problem with the ‘legal theory of liability’ opportunity.” for each claim in the complaint,” which Huvelle also rejected the second included misrepresentation, trespass, motion, which sought to dismiss the

27 Sinclair Broadcasting Group’s “Must-Run” Segment Raises Ethical Questions n March 31, 2018, Deadspin, had demonstrated a rightleaning agenda. its conservative deregulatory agenda. an alternative sports blog In 2004, the company announced it would Additionally, Feldstein claimed that that also provides political televise a documentary critical of then Sinclair was “notorious for the draconian commentary, posted a video Democratic presidential candidate John legal contracts it forces its journalists to depicting news anchors from F. Kerry, but ultimately decided against it sign, which impose fi nancial penalties Ovarious local broadcast television outlets amidst signifi cant political pressure and for quitting and gag exemployees from repeating the same scripted lines about criticism. Also in 2004, Sinclair pulled an speaking out against the company.” fake news and fair reporting. Several media ABC “Nightline” episode from its affi liates Feldstein called these practices, and those outlets reported in eight cities. The 40minute program, listed by the Post, “a dramatic departure that Sinclair titled “The Fallen,” included host Ted from traditional newsroom norms, which MEDIA ETHICS Broadcasting Koppel reading the names of 721 Americans try to maintain at least the appearance of Group (Sinclair), a who have lost their lives in the war with neutrality.” television station Iraq, and showed pictures of the deceased. In a video posted on March 31, 2018, owner that observers assert has a right- Sinclair’s decision drew signifi cant Deadspin video director Timothy Burke leaning agenda, had mandated that the criticism, including from Sen. John McCain pieced together several broadcasts by local script be read by anchors at each of its (RAriz.) who wrote in a letter to Sinclair, television stations owned by Sinclair. The local stations, referred to as a “must-run” “Your decision to deny your viewers an video, along with a similar version created segment. Deadspin’s video prompted opportunity to be reminded of war’s terrible by leftleaning news outlet ThinkProgress, widespread criticism of Sinclair, with costs, in all their heartbreaking detail, is depicted what Burke called a “forced several observers arguing that it was a gross disservice to the public, and to read” in which Sinclair executives required ethically problematic for a national the men and women of the United States that anchors or reporters at their various corporation to dictate what local stations Armed Forces. It is in short . . . unpatriotic. stations repeat the same script, which should say and cover. I hope it meets with the public opprobrium contained a warning about fake news and Baltimore-based Sinclair owns or it most certainly deserves.” (For more a promise to report fairly and accurately, operates 193 stations across the United information on Sinclair’s decision to pull as well as criticism of members of the States, making it the largest television the “Nightline” broadcast, see “ABC’s mainstream media for biased or false station owner in the nation. In a May ‘Nightline’ Honors Iraqi War Dead Despite coverage. 8, 2017 press release, Tribune Media Protests” in the Spring 2004 issue of the The script read in part, “[W]e’re Company (Tribune) reported that it was Silha Bulletin.) concerned about the troubling trend of being acquired by Sinclair for $3.9 billion. During the 2012 presidential campaign, irresponsible, one sided news stories The Baltimore Sun reported that the deal Sinclair mandated that several of its plaguing our country. The sharing of would give Sinclair control of 233 television stations in battleground states air a half biased and false news has become all too stations across 108 markets, reaching 72 hour news “special” criticizing President common on social media.. . . Unfortunately, percent of U.S. households. According to Barack Obama’s healthcare policies, as some members of the media use their CNN on Nov. 10, 2017, the merger requires well as his administration’s handling platforms to push their own personal bias approval by the Federal Communications of the economy and the 2012 terrorist and agenda to control ‘exactly what people Commission (FCC), which delayed its self attack on a U.S. installation in Benghazi, think.’. . . This is extremely dangerous imposed 180day deadline for review of the Libya, according to the Post. During the to a democracy.” The full script and the deal in order to allow for additional public 2016 presidential campaign, Sinclair was Deadspin video are available online at: comment. As the Bulletin went to press, the criticized for reportedly mandating that https://theconcourse.deadspin.com/how FCC had not announced whether it would its stations air favorable news coverage americaslargestlocaltvownerturnedits approve the merger. of Trump on a mandatory, “mustrun,” newsanc1824233490. According to The New York Times on basis. The Post also noted that Sinclair In a March 31 story accompanying April 2, Sinclair “regularly sends video hired President Trump’s former aide Boris his video, Burke explained that he had segments to the stations it owns,” known as Epshteyn to be its chief political analyst, uncovered the “mustrun” segment after “mustruns,” that can include content such and required that its local stations air CNN’s Brian Stelter reported on March 7 as terrorism news updates, commentators several of his commentaries. that Sinclair executives were passing down speaking in support of President Donald In an April 10 article for The Washington a “mandate” requiring an “anchor delivered Trump, or speeches from company Post, Mark Feldstein, the Richard Eaton journalistic responsibility message.” Burke executives. In an April 10 article for The chair of broadcast journalism at the contended that the result of the mandate Washington Post , a former video editor at University of Maryland, asserted that in was “dozens upon dozens of local news KHGI in Kearney, Neb. asserted that when the past, journalists applying for jobs anchors looking like hostages in proofof Sinclair purchased the station in 2016, at Sinclair were questioned by Sinclair life videos, trying their hardest to spit out “[i]t didn’t take long for the [“mustrun”] executives “about their views on abortion words attacking the industry they’d chosen segments our new parent company said we and other hotbutton political issues — as a life vocation.” had to air during our local news broadcasts and [were] turned down if they were ‘too On April 2, President Trump tweeted his to arrive.” Critics have claimed that Sinclair liberal.’” He added that Sinclair executives support for Sinclair while also criticizing uses its stations to advance a mostly right had also solicited donations in February other media outlets. “So funny to watch leaning agenda, according to the Times . 2018 from its news directors for the Fake News Networks, among the most On February 10, The Washington Post company’s political action committee, dishonest groups of people I have ever provided several instances in which Sinclair which fi nances candidates that support dealt with, criticize Sinclair Broadcasting 28 for being biased,” he wrote. “Sinclair is far schools had signed the letter, including the content of Sinclair’s script in an April superior to CNN and even more Fake NBC, from the University of Oregon, New York 3 interview on KARE 11 in Minneapolis. which is a total joke.” University, and Elon University. “These words really couldn’t offend any David D. Smith, the chairman of Sinclair, The letter read in part, “While news principled journalist. You look through this defended his company’s decision in an organizations have historically had and statement, which I think was painstakingly April 3 email correspondence with The used the prerogative to publish and vetted, and you can’t fi nd anything in New York Times, contending that other broadcast editorials clearly identifi ed as there to oppose. So the content of this media companies “do exactly the same opinion, we believe that line was crossed commentary is not the issue.” However, promotional things that we do” and that at Sinclair stations when anchors were Libin explained why Sinclair’s mandate such segments were “standard practice in required to read scripts making claims was still “icky” to a lot of people. “[First,] the industry,” according to the Times on about ‘the troubling trend of irresponsible, it does echo the president’s even broader April 4. When asked about the widespread one-sided news stories plaguing our brush smear of journalists,” he said. “But criticism following the Deadspin video, country.’” The full letter is available online secondly, and maybe even more powerfully, Smith wrote, “You can’t be serious! Do at: https://www.poynter.org/news/13- it indicates these anchors, that viewers you understand that as a practical matter j-school-deans-and-chairs-issue-letter- want to think of as their neighbors, every word that comes out of the mouths concern-sinclair. people they trust, are being told what to of network news people is scripted and In an April 3 interview on Wisconsin say by some distant, faceless, centralized approved by someone?” Public Radio (WPR), Silha Center corporation that maybe they don’t trust.” In an April 7 statement, Scott Livingston, Director and Silha Professor of Media When asked whether it was ethical Sinclair’s senior vice president of news, Ethics and Law Jane Kirtley explained for Sinclair to compel its anchors to questioned the reasoning behind the that although Sinclair’s message seemed read scripted messages, Kirtley told criticism of the “must-run” segment. benign on the surface, it was actually more “AirTalk” host Larry Mantle, “What I think “We aren’t sure of the motivation for problematic. “On the face of it, it seems is Orwellian about this is giving to these the criticism, but fi nd it curious that we okay until you start thinking about how it anchors in diverse markets essentially the would be attacked for asking our news is essentially an attack on . . . journalistic exact same script that they have to read people to remind their audiences that independence,” she said. “Ultimately, if and . . . with the exact same intonation. unsubstantiated stories exist on social you are going to undermine the public The idea that news organizations that media, which result in an ill-informed trust in the independent news media, are engaged in legitimate reporting are public with potentially dangerous you are really doing something that’s concerned about fake news is legitimate consequences,” Livingston wrote. “It much more important than just trying and the notion that the public should is ironic that we would be attacked for to gain a competitive advantage.. . . You develop media literacy is legitimate. messages promoting our journalistic are undermining something that I think But . . . the problem for me is that the clear initiative for fair and objective reporting, is central to our system, our democratic implication of this is that the mainstream and for specifi cally asking the public to republic, which is that you have to be able media are lying to you and you shouldn’t hold our newsrooms accountable.” to turn to the news media for truthful, believe them.” On April 10, CNN reported that in a accurate information.” On April 9, Sinclair allowed an memo to staffers, Sinclair CEO Chris However, Kirtley argued that the main advertisement critical of its coverage and Ripley apologized not for the controversial problem of the “must-run” segment was “must-run” segment to air on some of its “must-run” segment, but for the “politically not the content, but how it was mandated stations, according to The Washington Post motivated attacks” that followed. “For and delivered. “Packaged content in and of and CNN on the same day. The ad, which having to fi eld nasty calls, threats, personal itself is not new,” she said. “The main issue was created and paid for by the liberal confrontations and trolling on social media, I have is when it is basically being palmed watchdog group Allied Progress, said in I am truly sorry you had to endure such an off to the viewer as locally created.. . . [I]t a voiceover “What happens when your experience,” Ripley said. “However, as an is an issue of deception.” Kirtley added, “It local news isn’t local? This.” and depicted organization it is important that we do not is turning away from something that during Deadspin’s video. However, Sinclair ran let extremists on any side of the political the Obama administration the [FCC] really 15-second disclaimers before and after the fence bully us because they do not like supported, which was the idea of localism, ad, which said that Sinclair was airing the what they hear or see.” that is, that if you are going to have a ad because it was “proud to present both On April 6, 2018, the Poynter Institute broadcast license in a particular area, you sides of the issues,” according to the Post. (Poynter) reported that deans and really do have an obligation to be sensitive The disclaimers continued, “The misleading department chairs from 13 universities to the needs and interests of the people in ad you just saw focused on a brief had sent a letter to Sinclair condemning your community.” promotional message that simply said we’re the company’s “must-run” segment. In an April 3 interview on KPCC radio’s a source for truthful news.. . . It ignored The letter was signed by the heads of “AirTalk,” Jeffrey McCall, a professor of thousands of hours of local news we journalism schools at the University of communication at DePauw University, produce each year to keep you informed. Maryland, Syracuse University, Louisiana agreed with Kirtley. “I’m a big believer The ad was purchased by a group known State University, University of Georgia, in localism.. . . So I’m really opposed for its liberal bias and we hope you won’t University of Mississippi, Temple philosophically on having big media buy into the hysteria and hype.” University, Ohio University, University corporations in a corporate headquarters of Arizona, University of Southern trying to dictate what should happen at a SCOTT M EMMEL California, University of California- local station.. . . Having the script dictated SILHA BULLETIN E DITOR Berkeley, University of Illinois, The George by the corporate offi ce is a problem.” Washington University, and Morgan State University of Minnesota Hubbard School University. On April 9, Poynter reported of Journalism and Mass Communication that three additional heads of journalism senior fellow Scott Libin largely defended 29 Canada Passes Federal Shield Law; Courts Deny Requests to Compel a Journalist and Internet Media Company to Disclose Sources and Information n the fi nal months of 2017, the Gruenke v. Her Majesty The Queen, The law also amended section Parliament of Canada, as well 3 S.C.R. 263 (1991). In order for 488 of the Canadian Criminal Code, as a state and federal judge in communications to be deemed requiring that an applicant for a warrant, the United States, supported a privileged, “the communications must authorization, or order must “know that reporter’s privilege to protect originate in a confi dence that they the application relates to a journalist’s Iconfi dential sources and information. will not be disclosed; this element of communications or an object, document On Oct. 4, 2017, the Parliament of confi dentiality must be essential to the or data relating to or in the possession Canada unanimously passed the full and satisfactory maintenance of the of a journalist,” and must “make an Journalistic Source relation between the parties; the relation application to a judge of a superior court REPORTER’S Protection Act must be one which in the opinion of of criminal jurisdiction or to a judge (JSPA), providing the community ought to be sedulously as defi ned” in a different section of the PRIVILEGE protection for fostered; [and] the injury that would Criminal Code. The JSPA states that journalists’ inure to the relation by the disclosure the judge has “exclusive jurisdiction to confi dential sources, documents, and of the communications must be greater dispose of the application” and may only information. On Dec. 13, 2017, an Illinois than the benefi t thereby gained for the issue a warrant, authorization, or order Circuit Court judge quashed a subpoena correct disposal of litigation.” if “he or she is satisfi ed that “(a) there is seeking the testimony of Jamie Kalven, a In November 2016, Conservative Sen. no other way by which the information freelance journalist who uncovered the Claude Carignan (Mille Isles), former can reasonably be obtained; and (b) 2014 police cover-up of the shooting of Leader of the Opposition in the Senate, the public interest in the investigation teenager Laquan McDonald. Three years introduced the JSPA. Both houses of and prosecution of a criminal offence after his initial reporting, Kalven was Parliament, the House of Commons and outweighs the journalist’s right to subpoenaed by the police offi cer charged the Senate, unanimously passed the bill privacy in gathering and disseminating with fi rst-degree murder in McDonald’s in 2017. The law defi nes a journalist as information.” death. Finally, on Dec. 21, 2017, a Florida an individual “whose main occupation The JSPA also includes a provision magistrate judge ruled against Russian is to contribute directly, either regularly stating that if an offi cer “becomes businessman Aleksej Gubarev, who or occasionally, for consideration, to aware” that he or she is dealing with a claimed BuzzFeed must reveal its source the collection, writing or production journalist’s communications, objects, for the “Steele Dossier,” a 35-page memo of information for dissemination by documents, or data, the offi cer must compiled by former MI6 intelligence the media, or anyone who assists such make an “ex parte application to the offi cer Christopher Steele, which the a person.” “Journalistic source” is [appropriate] judge[;] . . . refrain from internet company published in January defi ned as a “source that confi dentially examining or reproducing, in whole or in 2017. transmits information to a journalist part, any document obtained pursuant to on the journalist’s undertaking not to the warrant, authorization or order; and Journalistic Source Protection Act divulge the identity of the source, whose place any document obtained pursuant Passed by Canadian Parliament anonymity is essential to the relationship to the warrant, authorization or order On Oct. 19, 2017, Canada’s new between the journalist and the source.” in a sealed packet and keep it in a place federal shield law took effect. The law amended the Canada to which the public has no access.” The Unanimously passed by the Parliament Evidence Act to allow a journalist to JSPA does not apply in cases in which of Canada, the Journalistic Source “object to the disclosure of information a warrant or order is made “in relation Protection Act (JSPA), Bill S-231, or a document before a court, person or to the commission of an offence by a amended the Canada Evidence Act body with the authority to compel the journalist.” and Criminal Code to provide legal disclosure of information on the grounds In such an instance, the JSPA protection for a journalist’s promise of that the information or document states a judge may take one of four confi dentiality to a source. Following identifi es or is likely to identify a actions. First, the judge may confi rm its passage, media experts praised the journalistic source.” In order for a court the warrant, authorization, or order, JSPA as providing important protections to compel the disclosure of a confi dential if he or she “is of the opinion that no for Canadian journalists, though some source, information, or document, it additional conditions to protect the argued it did not go far enough. must be proven that “(a) the information confi dentiality of journalistic sources Prior to the passage of the JSPA, or document cannot be produced in and to limit the disruption of journalistic journalists in Canada were required evidence by any other reasonable activities should be imposed.” Second, to convince a court that their sources means; and (b) the public interest in the judge can choose to amend the were worthy of protection. According the administration of justice outweighs warrant, authorization, or order “to to the Canadian Journalism Project, the public interest in preserving the impose any conditions that the judge in such a situation, the court would confi dentiality of the journalistic source, considers appropriate to protect the decide whether or not to shield the having regard to, among other things, (i) confi dentiality of journalistic sources source’s identity based on the “Wigmore the importance of the information to a and to limit the disruption of journalistic Test,” a four-part test proposed by central issue, (ii) freedom of the press, activities.” Third, if the judge “considers American jurist John Henry Wigmore and (iii) the impact of disclosure on the it necessary to protect the confi dentiality and established in Adele Rosemary source and journalist.” of journalistic sources,” he or she 30 may order any documents obtained Canada's modern media landscape and lying about what happened the night of to be placed under seal and be kept the emergence of newer practitioners of McDonald’s death. in the custody of the court. Finally, journalism such as bloggers.” The CJFE Kalven was the fi rst journalist to the judge may revoke the warrant, press release noted New Democratic report on inconsistencies in the Chicago authorization, or order if he or she Party member of the House of Commons Police Department’s offi cial reports believes the applicant “knew or ought Matthew Dubé (ChamblyBorduas) of McDonald’s death, according to the reasonably to have known that the introduced an amendment to expand Chicago Tribune on Dec. 13, 2017. application . . . related to a journalist’s the defi nition, but it was defeated in Following the shooting, Kalven had communications[, object, document, committee. fi led an Illinois Freedom of Information or data].” The full text of the JSPA is Act request seeking to obtain the Chicago Freelance Journalist available online at: http://www.parl.ca/ autopsy report, which detailed the Not Required to Reveal Sources DocumentViewer/en/42-1/bill/S-231/ precise number of times Van Dyke shot in Laquan McDonald Homicide royal-assent. McDonald, which previously had not Investigation In an October 2017 Ryerson Review been released. 5 ILCS 140/1 et seq. On On Dec. 13, 2017, Circuit Court of of Journalism “Pull Quotes” podcast, Feb. 15, 2015, Slate magazine published Cook County (Illinois) Judge Vincent Sen. Carignan said the new law will Kalven’s story detailing how the autopsy M. Gaughan ruled that Jamie Kalven, provide whistleblowers more confi dence told a different story than what had an independent journalist based in when they take the risk of revealing been provided by police offi cials. Chicago, would not have to testify vital information about matters of public Kalven reported interest. “It’s sending a message to the the “clear case of population that they will be protected “[Canada’s new shield law is] sending selfdefense,” as if they ask for the protection from the a message to the population that portrayed by the journalist,” he said. “It will probably help they will be protected if they ask for Chicago police, did the media to receive more information not align with the to keep the government and public protection from the journalist.. . . It will physical evidence authorities accountable.” probably help the media to receive more of the shooting. In the same podcast, Toronto-based information to keep the government and A key element media lawyer Iris Fischer praised of Kalven’s the JSPA as an important step for public authorities accountable.” investigation journalism. “I think this this bill goes a and reporting very long way in protecting confi dential — Sen. Claude Carignan was information sources,” she said. “This issue of sources obtained by an has been a big one (for journalism) and anonymous source who revealed the about his reporting on the fatal shooting it’s great to see that being addressed.” existence of dash camera footage of the of 17yearold Laquan McDonald by a Mark Bantey, a media lawyer in shooting. Kalven wrote in his February Chicago police offi cer in 2014. Illinois v. Montreal, agreed in an October 4 2015 story, “A source close to the case Dyke, No. 17 CR 4286 (2017). Gaughan interview with Vice News . “It’s a great confi rmed to me that the dashboard ruled the subpoena issued to Kalven step for democratic society,” he said. camera in one of the squad cars on the by Jason Van Dyke, the offi cer charged “It’s a little late in coming, but who’s scene captured the incident.. . . And it’s with shooting and killing McDonald, was going to complain? Now we have some clear from both the police narrative and “not suffi ciently specifi c and [sought] protections for confi dential sources, the witness account that at least one of irrelevant and privileged material,” and and it’s a very well-drafted piece of the squad cars on the scene had a clear that Kalven’s sources were protected legislation.” perspective on the sequence of events.” by the Illinois Reporter’s Privilege Act, In an Oct. 4, 2017 press release, Kalven’s full report is available online at: which generally prohibits a court from Canadian Journalists for Free https:llperma.cc/X5BNKQQ6. compelling “any person to disclose the Expression (CJFE) executive director On Nov. 19, 2015, NBC Chicago source of any information obtained by a Tom Henheffer also expressed approval reported Cook County Judge Franklin reporter.” 735 ILCS 5/8907 (2001). of the passage of the law. “We applaud Valderrama had ordered the Chicago On Oct. 20, 2014, Chicago police parliamentarians for taking this Police Department to release the dash responded to a 911 call reporting a man historic step to protect press freedom camera footage of the shooting, with with a knife trying to break into vehicles in Canada,” he said. “This bill is the which police offi cials complied on in a trucking yard. Offi cers approached beginning of full legal recognition for the November 24. The U.S. Department McDonald, who was holding a folding role that journalists play in serving the of Justice (DOJ) later opened an knife, and told him to drop it. According public and protecting democracy.” investigation into the Chicago Police to offi cers, McDonald refused and began However, Henheffer also cautioned Department and published its fi ndings in jogging down a fourlane road. Two the law has limitations, specifi cally its January 2017. offi cers followed him on foot and in a car defi nition of a journalist. “Though this is At a December 2017 hearing, Daniel for several blocks before Van Dyke, one a signifi cant and important bill, it is only Herbert, an attorney for Van Dyke, of the six police offi cers at the scene, a fi rst step to addressing the many issues alleged the journalist had received fi red his weapon and struck the teenager facing journalists in Canada today,” he leaked documents from the nowdefunct 16 times. Van Dyke pled not guilty to said. “Many of the defi nitions are still Independent Police Review Authority fi rstdegree murder charges in the case. too restrictive, including who can legally (IPRA), which contained protected Three other offi cers were indicted on call themselves a journalist. Further statements made by Van Dyke following state felony charges of conspiracy, reforms will be required in future so offi cial misconduct, and obstruction of these protections refl ect the reality of Shield Laws, continued on page 32 justice, as well as fi ling false reports and 31 Shield Laws, continued from page 31 confi dential source protections are RCFP Executive Director Bruce the shooting, according to the Chicago necessary. Without them, the public may Brown praised the ruling. “Jamie Sun Times on December 6. Herbert have never known how McDonald died, Kalven’s reporting in this case was additionally alleged Kalven “used that depriving it of the opportunity to hold essential to telling the full story of information to aid him in interviewing the government and law enforcement Laquan McDonald’s death, and we’re a witness, thus infl uencing that witness’ accountable.” pleased that the court quashed the statements to authorities and tainting the In his December 13 ruling, Gaughan subpoena for his testimony, which could case against Van Dyke,” according to the found Van Dyke’s subpoena was have forced him to reveal information Chicago Tribune on December 13. “not suffi ciently specifi c and seeks about his confi dential sources,” he According to the Chicago Sun Times, irrelevant and privileged material.” He wrote in a December 13 press release. Kalven’s lawyer, Matt Topic, called Van continued, “[T]o uphold the subpoena “Reporters must be able to protect their Dyke’s subpoena a “fi shing expedition” of Jamie Kalven would be nothing more sources in order to bring important and cited the Illinois Reporter’s Privilege than a fi shing expedition in search of information, in this case the truth about Act, which prohibits a court from how McDonald compelling “any person to disclose the “Jamie Kalven’s reporting in this case died, to the public.” source of any information obtained was essential to telling the full story of Florida by a reporter” except where no other Magistrate Judge law prevents the disclosure, “all other Laquan McDonald’s death, and we’re Rules BuzzFeed available sources of information have pleased that the court quashed the Does Not Have been exhausted,” and such disclosure is subpoena for his testimony.. . . Reporters to Reveal Trump “essential” to protect the public interest. Dossier Source On Dec. 5, 2017, a coalition of 18 must be able to protect their sources in On Dec. 21, media organizations, headed by the order to bring important information, in 2017, U.S. District Reporters Committee for Freedom Court for the of the Press (RCFP), fi led an amicus this case, the truth about how McDonald Southern District of brief supporting Kalven’s motion to died, to the public.” Florida Magistrate quash the subpoena. The brief fi rst Judge John argued compelling Kalven’s testimony — Bruce Brown, Executive Director, O’Sullivan ruled would violate the Illinois Reporter’s Reporters Committee for Freedom of the Press against Russian Privilege Act, which was “adopted to businessman protect precisely the types of reporter- Aleksej Gubarev, information that the timeline of events, source communications at issue in this who, as part of a defamation lawsuit, discovery documents, and testimony case - those that shed light on matters attempted to compel BuzzFeed News suggest simply does not exist.” Gaughan of critical public importance, such as to disclose how it obtained the “Steele added Kalven could have obtained his how police shootings of civilians are Dossier,” a 35-page memo compiled information from multiple legitimate investigated and resolved.” Furthermore, by former MI6 intelligence offi cer sources. “Without evidence that Kalven the brief contended protection of Christopher Steele detailing ties ever obtained Van Dyke’s protected reporters’ confi dential sources “serves between the Russian government and statements, the source of the reporter’s the health of our democracy by ensuring then-Republican presidential candidate information was irrelevant,” he wrote. that citizens have access to information Donald Trump’s campaign. Gubarev v. Additionally, Gaughan ruled Kalven’s needed ‘to make informed political, BuzzFeed, No. 1:17-cv-60426-UU (S.D. source of information was “protected social, and economic choices’” and is Fla. 2018). O’Sullivan found BuzzFeed by the [Illinois] Reporter’s Privilege “crucial to effective reporting, since and its editor-in-chief Ben Smith qualifi ed [Act].” He wrote that his decision was reporters often rely on confi dential for protection under Florida’s shield law, largely based on the inadequacies of sources to publish news stories that Fla. Stat. § 90.5015 (2006), and that such the subpoena, not Kalven’s status as inform the public of sensitive and protection had not been overcome by the a reporter, though he noted reporters important issues.” plaintiffs. can only be compelled to testify Second, the brief asserted the During the course of the 2016 U.S. about sources under “extraordinary Illinois shield law cannot be “overcome presidential campaign, Steele compiled circumstances.” The full order is by speculative arguments,” such as the dossier as part of opposition available online at: http://www. allegations that Kalven “may have research against Trump, initially for chicagotribune.com/ct-laquan-mcdonald- passed along [this] information to Republicans during the primary process, reporter-20171213-htmlstory.html. witnesses of the shooting, infl uencing and subsequently for Democrats after Following the ruling, Kalven told their accounts to investigators” Trump won the Republican nomination. reporters his work spoke for itself. (emphasis in original). Finally, the brief The dossier contained several claims “The whole effort was to fi nd out argued the “public policy of [Illinois’ suggesting, among other things, that what happened to Laquan McDonald,” shield law] weighs decisively in favor Russia had information which could he said. “I think if you look at the of quashing Van Dyke’s subpoena” be used to blackmail President Trump, consequences of the reporting and not because the public interest of protecting as well as allegations of cooperation just my reporting . . . it’s contributed to a confi dential sources was “particularly between Russia and the Trump campaign moment, an opportunity in Chicago for compelling in this case . . . [as] Kalven’s during the course of the general really fundamental change, police reform reporting exposed misconduct by the presidential election. The dossier stated and I think even more broadly a kind Chicago Police Department and an Gubarev was a “signifi cant player” in an of social change around basic issues of offi cial cover-up.” The brief continued, operation in which his companies, XBT race.” “This story illustrates precisely why and Webzilla, as well as their affi liates, 32 “had been using botnets and porn traffi c Florida’s shield law because it is “not a Finally, O’Sullivan dismissed the to transmit viruses, plant bugs, steal data ‘newspaper, news journal, news agency, plaintiffs’ assertion that BuzzFeed and conduct ‘altering operations’ against press association, wire service, radio should not be permitted to continue the Democratic Party leadership.’” or television station, network, or news asserting a “fair reporting privilege,” On Jan. 10, 2017, BuzzFeed published magazine’ and, as such . . . is not covered which would provide the media the 35-page dossier in its entirety. by the statute.” Conversely, BuzzFeed company with immunity from liability in Although it fl agged the allegations “maintain[ed] that the Florida Shield Law a defamation lawsuit. Gubarev claimed contained within the documents as applies to online news publications.” the privilege would not apply because “unverifi ed, and potentially unverifi able,” In his December 2017 ruling, BuzzFeed did not obtain the dossier BuzzFeed explained it published the O’Sullivan determined that BuzzFeed via a government offi cial. However, document in full “so that Americans qualifi ed for protection under the O’Sullivan found that limiting BuzzFeed’s can make up their own minds about Florida shield law, which provides “[a] and Smith’s arguments and defenses allegations involving the president- professional journalist has a qualifi ed was “premature” because “[d]iscovery is elect that have circulated at the privilege not to be a witness concerning, ongoing in this matter.” The full decision highest levels of the US government.” and not to disclose the information, is available online at: https://www. (For more information about the including the identity of any source, that politico.com/f/?id=00000160-7a86-dcd4- dossier and BuzzFeed publication, the professional journalist has obtained a96b-7fafb9290000. see “Ethical Questions Debated After while actively gathering news.” Under Politico noted on December 21 that BuzzFeed Publishes Dossier Containing the statute, this privilege can only O’Sullivan’s ruling did not determine Controversial Unverifi ed Claims About be overcome by a “clear and specifi c outright that Gubarev would never be President Trump” in the Winter/Spring showing” that “(a) The information is successful in compelling BuzzFeed to 2017 edition of the Silha Bulletin.) relevant and material to unresolved provide its source, but that his legal team On Feb. 3, 2017, CNN reported issues that have been raised in the had not taken suffi cient steps to obtain Gubarev had fi led a defamation lawsuit proceeding for which the information the information from other sources, against BuzzFeed and Smith in the U.S. is sought; (b) The information cannot something a litigant must do before District Court for the Southern District be obtained from alternative sources; seeking confi dential information from of Florida, contending that he and his and (c) A compelling interest exists for a news organization under the Florida companies had been severely damaged requiring disclosure of the information.” statute. by the unsubstantiated accusations in O’Sullivan ruled there is “nothing BuzzFeed spokesman Matt Mittenthal the dossier. Gubarev criticized BuzzFeed in the statute that limits the privilege praised the decision in a statement in his complaint, alleging “[a]lthough to traditional print media. Because following the ruling. “We’re pleased the BuzzFeed and Mr. Smith claim that they BuzzFeed writes stories and publishes judge has reaffi rmed the right of news had the dossier in their possession for news articles on its website, it qualifi es organizations to safeguard the identities weeks prior to its publication . . . neither as a ‘news agency,’ ‘news journal’ or of sources - a right that is protected BuzzFeed nor Mr. Smith contacted the ‘news magazine,’ which are included under both state and federal law,” he Plaintiffs to determine if the allegations under the statute’s defi nition of wrote. “And we continue to stand by our made against them had any basis in ‘professional journalist.’” He also ruled decision to publish the dossier, which fact.” As the Bulletin went to press, the the plaintiffs “failed to make a clear and was being circulated at the highest levels defamation litigation remained ongoing. specifi c showing that the information of government and is the subject of As part of the lawsuit, Gubarev cannot be obtained from alternative multiple federal investigations.” “propounded document requests on sources.” He wrote, “It is possible BRITTANY R OBB the defendants,” asserting that, as a that through third-party discovery, the SILHA R ESEARCH A SSISTANT Web-based news outlet, BuzzFeed plaintiff may ultimately learn the identity did not qualify for protection under of the defendants’ source.”

Did you miss “The State of Our Satirical Union”?

If you were unable to attend “The State of Our Satirical Union,” a symposium held April 2021, 2018, cosponsored by the Silha Center for the Study of Media Ethics and Law, the Association of American Editorial Cartoonists, the Minnesota Journalism Center, and the Hubbard School of Journalism and Mass Communication, videos are posted on the Silha Center‛s YouTube channel at: https://www.youtube.com/channel/UCottXCU5zGzUSZjODjlzig/videos

33 Judge Orders Certain Files from Wetterling Investigation Be Returned to FBI, Allows Release of Remaining State Documents n the spring of 2018, a district judge contended that such information “is to intervene in the case, arguing that ruled on two separate motions protected from disclosure by the state the FBI documents did, in fact, need for summary judgement regarding and federal constitutions,” rather to be returned to the agency under the release of the contested Jacob than the Minnesota Government Data federal law. (For more information Wetterling murder investigation Practices Act (MGDPA), Minn. Stat. § on the background of the Wetterling Icase fi les. On March 29, 2018, Stearns 13.01 et seq., which classifi es documents investigation and previous motions and County (Minnesota) District Court Judge and information from closed or inactive hearings in the ensuing litigation, see Ann Carrott granted the U.S. federal investigations as “public data,” except “Media Groups Allowed to Join Lawsuit government’s in circumstances in which “the release over Access to Documents in Wetterling motion for of the data would jeopardize another Investigation; Dispute Expands to over PRIVACY summary pending civil legal action, and except for Half the Case File” in the Fall 2017 issue judgement, those portions of a civil investigative fi le of the Silha Bulletin and “Media Groups requiring the that are classifi ed as not public data by and Transparency Advocates Challenge Stearns County (Minnesota) Sheriff’s this chapter or other law.” Minn. Stat. § Family’s Lawsuit, Judge’s Ruling Halting Offi ce to return the portion of the fi les 13.39. the Release of ‘Personal’ Information” in originating from the Federal Bureau of On the same day as the Wetterlings the Summer 2017 issue.) Investigation (FBI), rather than release fi led the lawsuit, Judge Carrott issued Judge Orders the Return of them under Minnesota law. On April 19, a TRO enjoining Stearns County from Investigative Files to the FBI Carrott granted a motion for summary “disseminating or disclosing the personal On March 29, 2018, District Judge judgement fi led by a coalition of 10 information contained in the Jacob Ann Carrott granted the federal media and advocacy groups, including Wetterling criminal investigative fi le to government’s January 17 motion for the Silha Center for the Study of Media any person.” However, Carrott also stated summary judgement, ordering Stearns Ethics & Law, which had intervened that the fi les created by the FBI over the County offi cials to return thousands in the case. Carrott ruled that Stearns course of the investigation may belong of pages of investigative documents to County could release the state’s portion to the federal agency and could not be the FBI, which had compiled the fi les of the investigative fi le, fi nding that the released by Stearns County. during the Jacob Wetterling investigation. Wetterlings’ claim for a constitutional On June 27, 2017, ten media Wetterling v. Stearns County , No. 73-CV- right of informational privacy “does organizations and transparency 17-4904 (March 29, 2018). In accordance not apply to prohibit the disclosure of advocates, including the Silha Center with the ruling, the records would government data classifi ed as public by for the Study of Media Ethics & Law become subject to the federal Freedom [a] state statute.” (media-intervenors), fi led a “complaint of Information Act (FOIA), 5 U.S.C. § 552, The litigation stems from the in intervention,” arguing for the release rather than the Minnesota Government projected release of documents related of the documents under the MGDPA, Data Practices Act (MGDPA), Minn. Stat. to the 1989 abduction and murder of contending that there was no exception § 13.01, et seq. 11-year-old Jacob Wetterling in St. in the Act preventing the release of the On January 16, Carrott had issued Joseph, Minn. On Sept. 1, 2016, Danny contested records. The organizations an order permitting the federal Heinrich, who was already jailed on sought to intervene “for the purpose government to intervene in the federal child pornography charges, of challenging plaintiffs’ claim that Wetterling documents litigation. The confessed to kidnapping and killing there is a right of privacy arising under following day, U.S. Attorney Gregory Jacob in October 1989. The 27-year the state or federal constitutions that G. Brooker fi led a motion for summary investigation by local, state, and federal takes precedence over the public judgement, contending that “as a matter authorities, including the Federal Bureau access requirements of the MGDPA.” of law, Stearns County must return of Investigation (FBI), amounted to more In a September 22 hearing, Carrott criminal investigative documents that than 56,000 pages of information and allowed the ten media and transparency had been compiled by the FBI and 10,000 total documents, which were set organizations to become part of the legal loaned to the county” and that Stearns to be released in June 2017. proceedings, according to Minnesota County offi cials were prohibited from On June 2, 2017 the Wetterlings fi led Public Radio (MPR) on the same day. disseminating those records to the a lawsuit in the Minnesota District On November 10, Mark Anfi nson, a public, except pursuant to federal law. In Court for the Seventh Judicial District, Minneapolis media lawyer representing a memorandum in support of its motion, requesting a temporary restraining the media-intervenors, fi led a motion for Brooker fi rst contended that there “can order (TRO) to halt the release of some summary judgment, asking that Carrott be no question the records created by documents in the investigative fi le. deny the Wetterlings’ requested relief, the FBI and loaned to the County during Patty Wetterling and Jerry Wetterling contesting the Wetterlings’ constitutional the Wetterling investigation are federal v. Stearns County , No. 73-CV-17-4904 arguments. The motion also opposed records.” The memorandum asserted that (2017). The Wetterlings alleged that the Stearns County being required to return the FBI’s records “do not cease being investigative documents include “highly the documents compiled by the FBI federal records when they are loaned personal details about the Plaintiffs, their during the investigation. On December to a State” and that the MGDPA “works minor children, and the inner working 5, the Star Tribune reported that the alongside and defers to federal law as to of the Wetterling family.” The complaint federal government had fi led a motion federal records.” 34 Second, the memorandum argued exchange.” Carrott also noted that the Carrott fi rst ruled that the documents that the disclosure of the FBI’s records MGDPA presumes that all “government could be released by Stearns County is governed by FOIA, not the MGDPA, data” is public unless there is a “federal because the MGDPA allows for the and that any requests for the documents law, a state statute, or a temporary disclosure of data from an inactive law are handled by the FBI’s Records classifi cation of data that provides that enforcement investigation. Minn. Stat. Management Division. Third, Brooker certain data are not public” (emphasis § 13.82. Carrott found that because asserted that the media-intervenors did in original). Minn. Stat. § 13.01 subd. 3. the MGDPA classifi es documents and not have standing to dispute the federal She added that a state law that “actually information from closed or inactive government’s claim to possession and confl icts with federal law is preempted” investigations as “public data” and that control of the FBI records. Finally, under the Supremacy Clause of the U.S. the Wetterlings had “not identifi ed a Brooker argued that the federal Constitution. federal or state statute that creates an government was “entitled to injunctive Carrott concluded that the exception to the public classifi cation relief in the form of an Order prohibiting MGDPA “works in concert with 28 of the challenged documents,” the the County from disseminating any FBI U.S.C. § 534 to allow for the sharing documents in question “are public.” records and requiring the return of those of information during coordinated Prior to Carrott’s ruling, some records to the [federal government].” criminal investigations.” She continued, members of the Minnesota legislature The memorandum stated that an “Consequently, because 28 U.S.C. § had expressed concern that the MGDPA injunction was necessary “to address 534(b) clearly provides for a conditional protects the disclosure of inactive the fundamental harm of dissemination loan of federal documents and that the investigative data, including “sensitive” of FBI records being disseminated other documents are not to be disseminated and “personal” data, like that related to than in accordance with federal laws by outside the state agency, the federal the Wetterlings. On March 7, 2018, Sen. the FBI.” documents are not public under the Richard Cohen (DFL-St. Paul) introduced Despite a January 26 motion by the MGDPA.” Carrott granted injunctive relief SF 3137, a bill to amend section 13.82 of media-intervenors, Carrott ruled in favor to the federal government to prevent the MGDPA governing law enforcement of the federal government on March 29, the release of the FBI documents, which data to provide that “[u]pon request fi nding that the FBI’s records fall “under Stearns County had previously stated of the subject of the data, inactive federal law and can be distributed only it “intend[ed] to release . . . unless investigative data are private data on by the FBI pursuant to federal law” and prohibited by court order.” She added individuals if the law enforcement that Stearns County was “enjoined from that the documents would be subject to agency reasonably determines that the possessing, using, disseminating, or FOIA, which “provides a comprehensive data were not relevant to the preparation distributing in any form the FBI’s records means through which the public can gain or prosecution of the case for which the and must return all FBI records to the access to federal records.” data were collected or created and: (1) FBI immediately.” Mark Anfi nson, who represented the the interest of the subject of the data Carrott fi rst found that the media- media-intervenors, told the Minneapolis in not releasing the data outweighs the intervenors had standing to object to Star Tribune following the ruling that he interest of the public in disclosure; or the motion because they had become was “disappointed but not surprised.” He (2) release of the data would constitute a party to the litigation before the continued, “When the federal government an unwarranted invasion of the privacy federal government intervened. Second, comes into a state district court and of the subject of the data.” On March Carrott ruled that federal law prohibits says the foundations of the republic are 22, Reps. Jeff Howe (R-Rockville) and disclosure of the FBI documents. going to be shaken if you rule against Mike Freiberg (DFL-Golden Valley) She found that the FBI has a “right us, it’s tough to ignore that. And the introduced the companion bill, HF 4166, to control its own law enforcement judge, understandably, is going to be in the House of Representatives. As the records,” citing two cases in which the deferential to a federal agency’s claim.” Bulletin went to press, no hearings had U.S. Court of Appeals for the Eleventh As the Bulletin went to press, Anfi nson been held in either body of the Minnesota Circuit and the U.S. District Court of the had not announced whether the media- legislature on the bills. Southern District of Iowa ruled that the intervenors would appeal the ruling. The second fi nding by Carrott in her government may “retrieve documents, April 19 ruling was that “a constitutional Judge Orders Release of State which it owns and . . . possesses.” United right of informational privacy does Investigative Documents Pursuant to States v. Napper, 887 F.2d 1528 (11th Cir. not apply to prohibit the disclosure of MGDPA 1989); United States v. Story County, government data classifi ed as public by On April 19, 2018, District Judge Ann Iowa, 28 F. Supp. 3d 861 (S.D. Iowa state statute.” She explained that the Carrott granted the media-intervenors’ 2014). Minnesota Supreme Court had previously November 10 motion for summary Carrott further held that the MGDPA, found that the MGDPA recognizes two judgement regarding the state documents although it “governs data collected, types of privacy, including “the right in the Wetterling fi le not belonging to the received, or maintained by a Minnesota not to divulge private information FBI. Wetterling v. Stearns County , No. state agency,” does not control federal to the government and the right to 73-CV-17-4904 (April 19, 2018). Carrott records because “[f]ederal law clearly prevent the government from disclosing held that the Minnesota Government establishes that loaned FBI documents information.” In re Agerter, 353 N.W.2d Data Practices Act (MGDPA), Minn. Stat. are federal property and must be 908, 913 (1984). The Wetterlings § 13.01, et seq., allowed for the release of returned.” She cited 28 U.S.C. § 534, titled contended that the second type of “inactive law enforcement investigative “Acquisition, preservation, and exchange privacy should be applied in the current fi le documents” and that “a constitutional of identifi cation records and information; case and that Carrott should conduct right of informational privacy does appointment of offi cials,” which allows a balancing test weighing their privacy not apply to prohibit the disclosure of the FBI “to exchange records with local interests against the public interest government data classifi ed as public by law enforcement and to cancel that state statute.” Wetterlings, continued on page 36 35 Wetterlings, continued from page 35 case law . . . are dispositive and lead the members of the media from seeing in disclosure asserted by the media- Court to conclude that the Plaintiffs do the case fi le in its entirety. “From the intervenors. not have a legally cognizable claim of beginning, we have witnessed fi rsthand However, citing the Minnesota Court informational privacy in the identifi ed the integrity and accuracy of the of Appeals case Mpls. Fed. Of Teachers, contested documents in the Stearns Minnesota news media,” the statement AFL-CIO, Local 59, 512 N.W.2d 107 County investigative fi le.” She added, said. “They have set the bar very high (1994), Carrott found that section “The [Wetterlings’] family tragedy and have always treated our family with 13.82 of the MGDPA indicates that the had a profound effect on the people respect and dignity. We trust that this Minnesota legislature “has already of Minnesota. In many ways, Jacob high level of reporting will continue. conducted a balancing of the rights Our hope is that of individual subjects of government “The [Wetterling] family tragedy had beyond the media, whoever reads data against the public’s right to obtain a profound effect on the people of information from the government in the fi le will also crafting the statute.” She wrote that it Minnesota.. . . While the court has great have a discerning was “[e]vident in the classifi cation of personal empathy for the Wetterlings, eye and will the law enforcement investigative data treat information as confi dential or protected nonpublic the Court must impartially apply the law, respectfully.” during an active investigation but public unswayed by emotion. To do otherwise Mark Anfi nson, when the investigation is completed or would result in an unfair application of who represented deemed inactive.” the media- Carrott also found that the U.S. the law.” intervenors, told Supreme Court “has not extended the the Pioneer Press constitutional right of privacy to include — Stearns County District Court Judge on April 20 that the right to prevent the disclosure of Ann Carrott Carrott’s ruling personal information.” Additionally, she was “a thoughtful, noted that the U.S. Court of Appeals careful decision, for the Eighth Circuit — which reviews Wetterling’s kidnapping on a dirt road in which is all you can ask for from a federal court rulings in Minnesota, a small rural town in Minnesota made us judge.” He added, “Of course, I’m Arkansas, Iowa, Missouri, Nebraska, all fee less safe. While the court has great gratifi ed with the decision, but what is and the Dakotas — has recognized personal empathy for the Wetterlings, more gratifying is how she approached no basis to “support the conclusion the Court must impartially apply the law, this important issue.” that an individual can claim a right of unswayed by emotion. To do otherwise In a statement following the ruling, informational privacy to prevent the would result in an unfair application of the Stearns County Attorney’s Offi ce government from disclosing information the law.” Carrott’s full ruling is available announced it was awaiting notice on an classifi ed as public by state statute. The online at: https://cbsminnesota.fi les. appeal before releasing the Wetterling Eighth Circuit has ruled that a right to wordpress.com/2018/04/order-other- investigation documents. As the Bulletin privacy exists in initial non-disclosure granting-media-intervenors-summary- went to press, the Wetterlings had not of personal information to a government jdgmnt-motion.pdf. announced whether they would fi le an agency, but it has never held that this In a statement following Carrott’s appeal. decision, the Wetterlings said that right not to give personal information to BRITTANY R OBB although they were saddened to hear the the government bars the disclosure of SILHA R ESEARCH A SSISTANT information once it was obtained.” ruling, they were thankful for Carrott’s Carrott concluded by stating that “careful consideration” of their concerns the “applicable Minnesota statutes and in the case and never intended to prevent

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36 D.C. Circuit Finds FBI Failed to Conduct a “Reasonable” Search of Records Regarding Media Impersonation n Dec. 15, 2017, the U.S. Offi cers Impersonating Journalists” in were not unreasonable even though Court of Appeals for the the Winter/Spring 2016 issue.) it failed to follow internal protocols. D.C. Circuit ruled in favor In response to the revelations, the (For more information on the records of the Reporters Committee RCFP and AP fi led three FOIA requests released by the FBI, see Records Reveal for Freedom of the Press seeking information about the FBI’s that FBI Broke Internal Rules when O(RCFP) and the Associated Press (AP) policies governing media impersonation, Impersonating the Associated Press in in their Freedom of Information Act the use of such tactics during the “Canadian and U.S. News Organizations (FOIA) , 5 U.S.C. § 552, lawsuit against Timberline investigation, and any other Raise Complaints over Law Enforcement the Federal Bureau occasions on which the FBI had used Offi cers Impersonating Journalists” in of Investigation fake news links to deliver malware. (For the Winter/Spring 2016 issue of the Silha FOIA (FBI) and the more information on the FOIA requests, Bulletin.) U.S. Department see Records Reveal that FBI Broke Despite the disclosures, the RCFP of Justice (DOJ). Internal Rules when Impersonating the maintained that the FBI’s search efforts Reporters Committee for Freedom Associated Press in “Canadian and U.S. were insuffi cient. U.S. District Court for of the Press v. Federal Bureau of News Organizations Raise Complaints the District of Columbia Judge Richard Investigation, No. 17-5042 (D.C. Cir. over Law Enforcement Offi cers Leon disagreed and granted summary 2017). The court found that the FBI Impersonating Journalists” in the Winter/ judgment to the FBI and DOJ on Feb. failed to demonstrate that it “conduct[ed] Spring 2016 issue of the Silha Bulletin.) 23, 2017. Reporters Committee for a search for the requested records, According to the D.C. Circuit’s rul Freedom of the Press v. Federal Bureau using methods which can be reasonably ing, the FBI responded to one request of Investigation, 236 F.Supp.3d 268 expected to produce the information by the RCFP and AP, declaring it had (D.D.C. 2017). Leon found that the FBI requested,” overturning a district court found no responsive records. After the “conducted a good faith, reasonable ruling. agency failed to respond to the other two search of the systems of records likely to In October 2014, the FBI admitted FOIA requests, the RCFP and AP fi led possess records responsive to plaintiffs’ that in 2007 it had created a fake AP a lawsuit against the FBI and the DOJ, requests.” He added, “Nothing in these news article in order to lure a bomb claiming that the agency had conducted [FBI documents and reports] persuades threat suspect into downloading an inadequate records search, among me that plaintiffs’ arguments are malware onto his computer. Seattle-area anything more than ‘[m]ere speculation other claims. During the litigation, the Timberline High School had received that as yet uncovered documents may FBI eventually located and released several anonymous bomb threats in exist.” As a result, Leon concluded that some responsive records, most pertain 2007, prompting local law enforcement the FBI had “carried its burden to show ing to the Timberline investigation and to call in the FBI’s Seattle Division that its search was adequate.” cybercrime experts. An FBI agent none identifying any other instances of On Dec. 15, 2017, the D.C. Circuit subsequently identifi ed himself as an AP media impersonation. overturned Leon’s summary judgement “Staff Publisher” in order to convince the One document released by the FBI order, ruling that the FBI failed to suspect to click on the link to the fake contained portions of the Attorney demonstrate that it “conduct[ed] a AP story, which enabled the FBI to track General’s Guidelines on FBI Undercover search for the requested records, using the suspect’s location, ultimately leading Operations (AGGUCO), which outlined methods which can be reasonably to an arrest. the process for approving undercover expected to produce the information ThenFBI Director James Comey operations involving 15 categories requested.” Judge David Tatel, defended the agency’s actions in a Nov. of “sensitive circumstances,” which writing the unanimous opinion, fi rst 6, 2014 New York Times letter to the could include allowing an undercover explained that FOIA, “[d]esigned ‘to editor. “That technique was proper and agent to pose as a member of the news facilitate public access to Government appropriate under Justice Department media. The FBI also produced one documents,’ requires federal agencies and F.B.I. guidelines at the time,” heavily redacted document indicating to disclose information to the public Comey wrote. “Today, the use of such that the FBI’s Seattle fi eld offi ce did upon reasonable request unless the an unusual technique would probably not follow the agency’s internal rules records at issue fall within specifi cally require higherlevel approvals than in when the agent posed as an AP reporter. delineated exemptions.” Tatel clarifi ed 2007, but it would still be lawful and, The record, called a “Situation Action that none of the exemptions under FOIA in a rare case, appropriate.” (For more Background” report, was drafted by were at issue in the appeal. The lone information on the investigation, see the Seattle offi ce’s Cyber Division in issue before the court was “whether the “Federal Investigators’ Deceptive Use October 2014 and reviewed the FBI’s FBI responded to the [RCFP’s and AP’s] of Media Raises Concerns” in the Fall 2007 investigation using the false AP FOIA requests by conducting a search 2014 Silha Bulletin and Records Reveal story. The report found that “although adequate to support summary judgment that FBI Broke Internal Rules when an argument can be made the reported in the government’s favor,” he wrote. Impersonating the Associated Press in impersonation of a fi ctitious member Next, Tatel explained that in order “Canadian and U.S. News Organizations of the media constituted a ‘sensitive to prevail on summary judgement in Raise Complaints over Law Enforcement circumstance’” under the required processes, the Seattle offi ce’s decisions FOIA, continued on page 38 37 FOIA, continued from page 37 divisions “completed” the searches burden. Otherwise, according to the they were directed to carry out, with no D.C. Circuit precedent, a FOIA requester FOIA cases, a federal agency must records being provided for Group 1 and would not have an opportunity to demonstrate that it made a “good faith some records being provided for Group challenge the adequacy of the search. effort” to search for requested records, 2. Before concluding, Tatel cited “two doing so “using methods which can be The second phase was a limited additional aspects of the FBI’s search reasonably expected to produce the index search by the Records Section that concerned [the court].” First, he information requested,” a standard of the FBI’s agency-wide Central agreed with the RCFP and AP that the developed in the D.C. Circuit’s 1990 Records System, which “index[es] FBI had “failed to justify its decision case Oglesby v. U.S. Department of to limit its search for Group One the Army. 920 F.2d 57, 68 (D.C. Cir. terms in fi les that are useful to a particular investigation or that are records” to only the FBI’s Operational 1990). Such methods could include Technology Division. Second, the RCFP submitting “[a] reasonably detailed deemed potentially useful for future investigative/intelligence retrieval and AP contended that the search affi davit, setting forth the search terms was inadequate because the records and the type of search performed, and purposes, such as names of individuals, organizations, companies, publications, contained “lead[s] that [are] both clear averring that all fi les likely to contain and certain” that the FBI should have responsive materials (if such records activities, or foreign intelligence matters (or programs).” The Records Section searched additional offi ces, including exist) were searched.” Tatel also cited the FBI Director’s Offi ce, additional fi eld initially declined to search the records Founding Church of Scientology v. NSA offi ces outside Seattle, and the offi ces system, but the FBI later conducted in which the D.C. Circuit held in 1979 responsible for assisting with a 2016 the search using the search terms that if “a review of the record raises Offi ce of the Inspector General (OIG) “media impersonation” and “Computer substantial doubt” as to the search’s report concerning Timberline and the adequacy, “particularly in view of ‘well and Internet Protocol Address Verifi er FBI’s media impersonation policies. The defi ned requests and positive indications (CIPAV),” the name of the malware used court agreed that the Director’s Offi ce of overlooked materials,’” summary in the Timberline investigation. However, should have been included in the search judgement is inappropriate. 610 F.2d 824, the search yielded no results. because it was “intimately involved in 837 (D.C. Cir. 1979). Tatel then discussed why the Hardy coordinating the Bureau’s response.” Tatel next described how the FBI declarations “fail[ed] to carry the However, the court disagreed that conducted the search for relevant government’s burden of showing that references to other fi eld offi ces and the records, citing two declarations it conducted an adequate search under OIG report “constitute ‘clear and certain’ submitted by David M. Hardy, Section this circuit’s standards,” as required indications that additional, unsearched Chief of the FBI’s Record/Information by Oglesby. Tatel explained that the offi ces held responsive records,” as Dissemination Section (Records declarations’ “principal fl aw [lay] in their required by Kowalczyk v. DOJ, 73 F.3d Section), which describe a two-phase failure to ‘set[] forth the search terms 386, 389 (D.C. Cir. 1996). The court search. The fi rst phase was made up of and the type of search performed’ with remanded the case to the district court so-called “targeted searches,” in which the specifi city our precedent requires.” for further proceedings. As the Bulletin the Records Section identifi ed the FBI Tatel argued that the declarations went to press, no further legal action had divisions that would be “reasonably claimed that the targeted divisions been announced. likely” to hold appropriate records. The “completed” the searches requested by Katie Townsend, litigation director targeted searches were divided into the Records Section, but the declarations for the RCFP, praised the ruling in two groups. “Group One” records were did not indicate how the divisions the organization’s December 15 story those “concerning the FBI’s utilization of did so. He continued, “[Regarding the about the decision. “This decision is links to what are, or appear to be, news fi rst phase of the search], the Hardy a signifi cant victory in our effort to media articles or news media websites declarations are utterly silent as to help reporters and the public better to install” certain malware. For these which fi les or record systems were understand law enforcement practices documents, the Records Section ordered examined in connection with the for impersonating the news media,” a targeted search of only the FBI’s targeted searches and how any such she said. “These practices undermine Operational Technology Division. “Group searches were conducted, including, the media’s credibility and could make Two” records included Timberline- where relevant, which search terms were sources wary of trusting journalists in specifi c documents and media-related used to hunt within electronically stored the future. The public has a right to this policy and training materials, as well materials.” He compared this “defect” information.” She continued, “The Court as “[a]n accounting of the number of with the declarations’ “far more specifi c agreed with our position that the FBI times . . . the [FBI] has impersonated description of the [second phase of] should have — but did not — search media organizations or generated media- search the Records Section conducted the FBI Director's Offi ce for records in style material” to deliver malware. For for Timberline records,” in which the response to the FOIA requests submitted these records, the Records Section FBI explained the search terms used and by the Reporters Committee and the ordered targeted searches of several how the agency conducted a “page-by- AP.. . . The FBI will now have to conduct internal divisions, including the FBI’s page review” of the results. that search, and it will have to explain Seattle Division, the Offi ce of General Tatel concluded that an affi davit and justify the limited search it did Counsel, the Operational Technology containing “no information about the conduct when this case returns to the Division, the Behavioral Analysis Unit, search strategies” and no “indication district court.” the National Covert Operations Section, of what each [component’s] search and the Training Division. According to specifi cally yielded” is inadequate to SCOTT M EMMEL the Hardy declarations, these internal carry the agency’s summary-judgment SILHA BULLETIN E DITOR

38 Minnesota Legislature Seeks to End Use of Cameras in Courtrooms n March 8, 2018, Minnesota Minnesota Coalition on Government added that cameras in courtrooms Rep. Jim Knoblach (R-St. Information (MNCOGI), explained serve an important public interest by Cloud) introduced HF that the bill had been further amended providing “a window into the often 3436, a bill seeking to to require only the consent of the impenetrable world of the courts.” restrict the use of cameras defendant and victims, not lawyers or Minnesota Newspaper Association Oin Minnesota courtrooms, citing the witnesses, for cameras to be allowed in lawyer Mark Anfi nson agreed at necessity of protecting defendants, criminal proceedings. the March 21 House hearing. He victims, and witnesses during court Rep. Knoblach said during the March said the coverage inside courts proceedings. Press 21 hearing that the purpose of the bill “provides a reassurance, a catharsis, CAMERAS IN and transparency was to protect victims and defendants, a demonstration of how the justice advocates system works.” He added, “[T]hat has COURTROOM according to the Duluth News Tribune. criticized the bill, “People do have compassion for the enormous value to the people whose contending that court system it is, there is a signifi cant public interest in after all,” according allowing audio and video recording “[The legislation is] really . . . a sneaky to the Duluth in courtrooms. Other observers way to control media coverage of the News Tribune. criticized the bill on the grounds that courts.. . . [Cameras in courtrooms] Davis added the judicial branch should determine at the hearing, the appropriate use of cameras in provide a window into the often “Such coverage courtrooms, not the legislative branch. impenetrable world of the courts.” provides the public On March 21, 2018, the Associated with information Press (AP) reported that the Minnesota — Jane Kirtley, vital to its role House of Representatives Public Safety Silha Center Director and Silha Professor of in a functioning committee had unanimously approved Media Ethics and Law democracy and HF 3436 in a voice vote. The committee helps ensure that also voted to lay the bill over for the information possible inclusion in a larger omnibus victims and what they are going through disseminated is more complete and bill, according to the Duluth News in a trial and don’t want to make things accurate.” Tribune the same day. As introduced, even harder on them,” he said. Scott Libin, a senior fellow at the the bill prohibited the use of “state Rep. Debra Hilstrom (DFL-Brooklyn University of Minnesota Hubbard funds in fi scal years 2018 and 2019 to Center), the co-sponsor of the bill, said School of Journalism and Mass the Supreme Court or district courts” during the hearing that defendants Communication told the Star Tribune from being “used to expand or amend and victims should have “a substantive that the bill was counter to the tradition the use of audio and video coverage of right” to decide whether cameras are of transparency in Minnesota. “We are criminal proceedings.” used, according to the Minneapolis Star a state that prides itself in forward- However, the committee approved Tribune on March 21. Caroline Palmer, thinking and openness and in this one an amended version of HF 3436, which legal affairs manager for the Minnesota area we can’t seem to drag ourselves stated that “no person may record Coalition Against Sexual Assault, out of the 20th century,” he said. or broadcast any criminal matter, called cameras “just another barrier” Other critics of the legislation argued including a trial, hearing, motion, or to survivors’ willingness to report that it was not up to the Minnesota argument, absent the express consent crimes and testify. “We also know, legislature to determine whether courts of the defendant, the victim, the unfortunately, that so many survivors should allow audio and video recording. prosecutor, and any witness under when they come forward kind of get As reported by Minnesota Public Radio subpoena or other compulsory process, dragged through the mud,” she said, (MPR), Minnesota State Bar Association and the permission of the presiding according to WCCO, the Twin-Cities’ president Sonia Miller-Van Oort said judge.” The amended bill applied to CBS affi liate. at the hearing that the organization “the use of television, radio, audio, Charles Hempeck, executive director opposed the bill on separation-of- photographic, or other recording of Anna Marie’s Alliance, a St. Cloud, powers grounds. “What the legislation equipment,” but excluded “the use Minn. nonprofi t that shelters battered seems to be suggesting is that it would of electronic, photographic, or other women and their children, agreed. He be appropriate for the Legislature to recording equipment approved by contended at the March 21 hearing dictate to the separate branch of the the court for purposes of making the that there is no need to broadcast “the Judiciary how it should conduct its court record, including closed-circuit trauma that women might have to relive business,” Miller-Van Ooert said. “It’s in interactive television.” The amended bill in the courtroom.” that way that we have a concern.” is available online at: http://www.house. However, media and transparency Sen. Ron Latz (DFL-St. Louis leg.state.mn.us/comm/docs/ff4a9b24- advocates argued that audio and video Park) said he did not support the 34ab-4cca-9a7f-c3a7efde60d2.pdf. recording in courtrooms serves an “tactic” of the bill “due to separation According to an April 26 email important public interest. Kirtley told of powers issues.” On March 23, the to Silha Center Director and Silha the Star Tribune that the legislation Star Tribune Editorial Board wrote, Professor of Media Ethics and Law was “really . . . a sneaky way to control “Legislators would rightly take umbrage Jane Kirtley, Hal Davis, a member of the media coverage of the courts.” She Cameras, continued on page 40 39 Cameras, continued from page 39 Courts Consider Proposals to Permit Orders/ADM09-8009-and-ADM10-8049- Cameras in Trial Proceedings” in the Order-Establishing-Public-Comment- if the courts sought to control which Fall 2010 issue, “Battles to Gain Camera/ Period-12418.pdf. legislative proceedings could be aired Audio Access to State and Federal On April 25, the Star Tribune or recorded. They should see that Courtrooms Continue” in the Fall 2011 reported that the Supreme Court their attempt to control the judicial issue, “Minnesota Senate Expands had held an hour-long hearing about branch is just as offensive, and stand Floor Access; State Supreme Court whether to extend the pilot program. down.” As the Bulletin went to press, Approves Cameras” in the Winter/Spring Six justices heard arguments for and no further announcements had been 2011 issue, “Silha Spring Ethics Forum against the use of cameras in Minnesota made regarding HF 3436. Additionally, a Focuses on Cameras in the Courtroom, courtrooms. According to MPR, some senate hearing had not been scheduled Status of Minnesota Pilot Project” in the justices seemed opposed to extending for the Senate version of the bill, SF the program. 1882, sponsored by Sen. Jerry Relph “We are a state that prides itself in Justice Natalie (R-St. Cloud). Hudson said that The Star Tribune Editorial Board forward-thinking and openness and in she shares former also noted that Minnesota rules for this one area, we can’t seem to drag “Justice [Alan] cameras in the courts “have been ourselves out of the 20th-century.” Page’s concern painstakingly developed by the courts that . . . it would with much testing and public input.” over-represent — Scott Libin, University of Minnesota Hubbard In 2011, Minnesota launched a two- particularly year pilot project, which permitted School of Journalism and Mass Communication young African cameras in most civil proceedings, senior fellow American men as but prohibited cameras in criminal violent.” Justice proceedings, child custody, family law Spring 2012 issue, “Minnesota Supreme Anne McKeig expressed concern of and juvenile proceedings, and petitions Court Approves Use of Cameras in Civil an “unintended consequence” that for protective orders. Cases, Considers Expansion to Criminal television coverage could stigmatize In 2015, the Minnesota Supreme Cases” in the Fall 2013 issue, Minnesota the families and children of criminal Court issued an order authorizing Supreme Court Eases Restrictions defendants. a two-year pilot project relaxing on Courtroom Cameras in Criminal Conversely, the Star Tribune restrictions on camera usage in Cases in “Updates to State Laws Create reported that Judge Michelle Larkin, courtrooms during limited portions of Challenges, New Benefi ts for News who had served as the chairwoman of criminal cases, including sentencing. Organizations” in the Summer 2015 the committee that studied the pilot The order declared that the media need issue; and “Minnesota Supreme Court project, asserted that allowing the use only a judge’s approval to broadcast Begins Livestreaming Video of Oral of cameras has not led to negative or take pictures in certain limited Arguments” in the Fall 2017 issue.) consequences as opponents of the circumstances, whereas the previous In January 2018, the Minnesota program contended. “People said this rule required all parties in a case to Supreme Court Advisory Committee is what is going to happen, this is why consent prior to recording. Chief Justice on the Rules of Criminal Procedure, we shouldn’t do this . . . and it didn’t Lorie Gildea was a main supporter and which was tasked by the Supreme happen,” Larkin said. “The sky has reason for the pilot program, writing Court to provide “recommendations not fallen.. . . We simply did not see for the court, “We conclude that there for continuation, abandonment, or anything infl ammatory. It was pretty is good reason to lift the blanket modifi cation of the [2015] pilot project,” dry actually.” Justice Margaret Chutich exclusion of electronic coverage of fi led a report recommending that the supported the idea that coverage of public criminal proceedings so that procedures for audio or video coverage crimes should go beyond “crime scene we can study the impact of electronic of criminal proceedings be permanently videos and mug shots taken during coverage of those proceedings.” (For codifi ed under Rule 4 of the Minnesota arrests,” according to MPR. more information about the evolution General Rules of Practice. The report The full video of the hearing of cameras in Minnesota courtrooms, also recommended several amendments is available online at: http://www. see “Court Access: Federal Law Would to the rule in order to address issues mncourts.gov/SupremeCourt/ Allow Cameras in U.S. Courts,” in the raised during the pilot, such as OralArgumentWebcasts/ Fall 2007 issue of the Silha Bulletin, clarifying that coverage of domestic ArgumentDetail.aspx?vid=1202. As the “Minnesota Supreme Court Holds violence cases is only prohibited when Bulletin went to press, the Court had Hearing on Cameras in Courts” in the “victim is a family or household not announced its ruling. the Summer 2008 issue; “Minnesota member.” The full text of the report and Advisory Committee Resists Cameras SCOTT M EMMEL the proposed amendments are available in Courts” in the Winter 2008 issue, online at: http://www.mncourts.gov/ SILHA BULLETIN E DITOR “Minnesota High Court Approves mncourtsgov/media/CIOMediaLibrary/ Cameras in-Court Pilot Program” in the News%20and%20Public%20Notices/ Winter 2009 issue, “Federal and State

40 Jesse Ventura Reaches Settlement in American Sniper Defamation Lawsuit n Dec. 1, 2017, the search of his name resulted in millions of in the outcome of the case because it Minneapolis Star Tribune hits restating Kyle’s alleged falsehoods, was handling the Kyle estate’s legal fees. reported that former injuring Ventura’s reputation. The majority ruled that the Kyle estate Minnesota Gov. Jesse Ventura In February 2013, Kyle was shot and received an unfair trial and remanded had reached a settlement in killed by a military veteran suffering the defamation claim for a new trial. Ohis defamation lawsuit against American from posttraumatic stress disorder. The court also unanimously ruled to Sniper author and former Navy SEAL Nevertheless, in July 2014, the trial vacate the $1.3 million award for the Chris Kyle’s estate. Ventura, who was began, with Kyle’s wife, Taya, serving unjust enrichment claims. (For more governor from as the defendant as executrix of Kyle’s information about the Eighth Circuit’s 1999 to 2003, was estate. Ventura, because he was a public decision, see “Eighth Circuit Overturns DEFAMATION initially awarded fi gure, was required to prove that Kyle Jesse Ventura’s Victory in Libel and $500,000 for had acted with actual malice, which is Unjust Enrichment Suit” in the Summer defamation and knowledge of falsity or with reckless 2016 issue of the Silha Bulletin.) $1.35 million for “unjust enrichment” disregard for the truth, as required by the On Nov. 2, 2017, the Associated Press in a federal jury trial, before the U.S. U.S. Supreme Court in New York Times (AP) reported that a settlement was Court of Appeals for the Eighth Circuit v. Sullivan , 376 U.S. 254 (1964). pending in the case. According to the overturned the decision. Ventura v. During jury deliberations, the AP, a court docket entry indicated that Kyle, 2016 825 F.3d 876 (8th Cir. 2016). attorneys for both sides agreed to accept an upcoming pretrial conference and Although the terms of the settlement a divided decision by the jury, after deadline for written statements had were not disclosed, Ventura said he felt members had expressed doubt that they been cancelled “based on the pending “vindicated” by the settlement. could reach a unanimous decision. On settlement of this matter.” The following The dispute between Ventura and July 29, 2014, the jury reached an 82 month, Ventura reached a settlement Kyle began in January 2012 when William verdict in favor of Ventura, awarding him with the Kyle estate, ending the fi veyear Morrow, an imprint of HarperCollins $500,000 in damages on the defamation legal dispute. The fi nancial terms of the Publishers, published American Sniper: claim. Additionally, the jury awarded settlement were not released; however, The Autobiography of the Most Lethal $1,345,477 to Ventura, fi nding that the court documents showed that the Sniper in U.S. Military History, by Kyle estate had been unjustly enriched parties agreed to dismiss the case with Kyle. One subchapter in the book due to Kyle’s fabrication. (For more prejudice, meaning Ventura cannot sue recounted an alleged 2006 incident at information about the background of the Kyle estate again on the same claim, a California bar between Kyle and an Ventura’s claims and the jury trial, see according to a December 2 CBS News older celebrity Navy SEAL, identifi ed “Jesse Ventura Awarded $1.8 Million report. only as “Scruff Face.” Kyle claimed that for Libel and Unjust Enrichment” in the In a December 4 meeting with he punched Scruff Face after the older Summer 2014 issue of the Silha Bulletin.) reporters at the offi ces of the Henson SEAL had made disparaging remarks On June 13, 2016, the Eighth Circuit Efron law fi rm in Minneapolis, Ventura about the SEALs. Kyle also alleged that overturned the jury’s decision. Judge said he felt “vindicated” after settling rumors had spread saying Scruff Face William Riley, writing the 21 majority the lawsuit, according to Minnesota had a black eye while speaking at a opinion, declined to dismiss Ventura’s Public Radio (MPR) the same day. The SEAL graduation event the next day. In defamation claims as a matter of law. AP reported that Ventura called Kyle subsequent interviews and appearances, However, he ruled that the jury decision an “American Liar” and said that the Kyle identifi ed Scruff Face as Ventura, must be overturned because Ventura’s money he received in the settlement did leading the latter to fi le a complaint in attorneys had made improper statements not come from Taya Kyle or from Kyle’s the United States District Court for the about HarperCollins’ insurance estate. District of Minnesota, alleging defamation coverage related to American Sniper. SCOTT M EMMEL and “unjust enrichment,” among other The attorneys had suggested that the SILHA BULLETIN E DITOR claims. Ventura contended that a Google publisher had a direct fi nancial interest

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41 Minnesota Legislature Introduces an “Ag-Gag” Law; Federal Appeals Courts Strike Down Two States’ Laws uring the fall and winter One such agriculture disparagement Stone, Daily Mail, and ABC Settle High- of 2017 and 2018, so-called law that recently received national Profi le Defamation Lawsuits” in the “ag-gag” laws, which generally coverage is South Dakota’s Agricultural Summer 2017 issue of the Silha Bulletin prohibit individuals from Food Products Disparagement Act and “Pink Slime” Case to Be Heard in conducting undercover (AFPDA), SDCL § 20-10A, which played a South Dakota State Court in “Defamation Dinvestigations into agricultural operations signifi cant role in the litigation between Round-up: Recent Decisions and Pending or from criticizing agricultural products, American Broadcasting Company (ABC) Cases Put Defamation in Spotlight, Have were the focus of state legislatures and and Beef Products Inc. (BPI), which Potential to Reshape Media-Friendly federal courts. became known as the “Pink Slime” case. Laws” in the Summer 2013 issue.) On Feb. 20, 2018, The case dated back to 2012 when AG-GAG LAWS the Minnesota ABC and ABC News reporter Jim Avila Minnesota House of Representatives legislature repeatedly referred to BPI’s signature Considers Agriculture Disparagement considered HF product, Lean Finely Textured Beef Law 2880, which aims to establish “a cause of (LFTB), as “pink slime” in a series of On Feb. 20, 2018, Minnesota Reps. Tim action for disparagement of agricultural news reports and tweets. In September Miller (R-Prinsburg) and Paul Anderson food products.” Meanwhile, the appellate 2012, BPI, as well as BPI Technology Inc. (R-Starbuck) introduced HF 2880, a courts for the Ninth and Tenth Circuits and Freezing Machines, Inc., brought a bill largely identical to South Dakota’s both addressed the constitutionality of civil action in the Circuit Court of Union Agricultural Food Products Disparagement ag-gag laws. On Sept. 7, 2017, the Tenth County in South Dakota against ABC, Act (AFPDA), SDCL § 20-10A. The main Circuit, although it did not decide the ABC News, Avila, anchor Diane Sawyer, purpose of HF 2880 was to establish “a constitutionality of Wyoming’s ag-gag correspondent David Kerley, USDA cause of action for disparagement of laws, held that the First Amendment microbiologist Gerald Zirnstein, food agricultural food products.” The bill stated applied to the expressive or investigative scientist Carl Custer, and former BPI that “[a]ny producer of an agricultural activities at issue in the statutes. The quality assurance manager Kit Foshee. food product who suffers damage as a court remanded the case back to the In its complaint, BPI alleged that result of another person's disparagement district court, which had initially found the reports by ABC News contained of the agricultural food product has a that the First Amendment did not protect disparaging statements about LFTB cause of action for damages and any other those activities. On Jan. 4, 2018, the Ninth and each plaintiff, citing the AFPDA. appropriate relief in a court of competent Circuit ruled that two portions of Idaho’s The statute defi nes disparagement as jurisdiction.” Under the bill, “[a]ny person Interference with Agricultural Production “dissemination in any manner to the public who disparages an agricultural food law, Idaho Code § 18-7042, violated the of any information that the disseminator product with intent to harm the producer First Amendment. knows to be false and that states or is liable to the producer for triple the Ag-gag laws take different forms in implies that an agricultural food product damages caused.” different states. However, the general is not safe for consumption by the public The bill defi ned “disparagement” purpose of these laws is to criminalize or that generally accepted agricultural and as “dissemination in any manner to or hold civilly liable individuals “who management practices make agricultural the public any information that the expose patterns of animal abuse or food products unsafe for consumption disseminator knows to be false and that food safety violations on factory farms,” by the public.” BPI claimed $1.9 billion states or implies that (i) an agricultural according to The Humane Society of in damages, though the total could have food product is not safe for consumption the United States. These laws often tripled to $5.7 billion under South Dakota’s by the public, or (ii) generally accepted prohibit recording undercover videos AFPDA. agricultural and management practices of agricultural operations, raising First On June 28, 2017, ABC and BPI make an agricultural food product Amendment concerns from animal rights announced that they had reached a unsafe for consumption by the public.” and food activist groups, as well as media settlement in the case, though the terms “[G]enerally accepted agricultural and organizations, who argue undercover were not disclosed. First Amendment management practices” was defi ned investigations should be allowed to expose attorney Thomas Julin told Law360 as “agronomic and animal husbandry unsafe and unsanitary farming conditions. on June 28, 2017 that the high level of practices commonly used by farmers Ag-gag laws can also take the form of damages claimed by BPI may have played in the production of an agricultural agriculture disparagement laws, which a role in the settlement. “[I]t is worrisome, commodity including tillage options, establish a cause of action for damages whenever there’s a confi dential settlement fertilizers, crop protection practices, and arising from disparaging statements or of a billion-dollar case, you don’t know the feeding, transporting, housing, and dissemination of false information about what the terms are; that can be as health practices for livestock.” the safety of food products. (For more on encouraging to plaintiffs as anything According to the Minneapolis Star the confl ict between journalism and ag- else.. . . There will be many plaintiffs and Tribune on Oct. 27, 2016, the Minnesota gag laws, see Journalists Face Evolving, many lawyers that will look at this as a legislature previously attempted to pass Uncertain Legal Landscape, in “‘Drone case that will show you media will settle an ag-gag bill in 2011, but it died and was Journalism’ Presents Possibilities But these claims.” (For more information on not re-introduced in subsequent legislative Faces Legal Obstacles” in the Fall 2014 South Dakota’s agriculture disparagement sessions. As the Bulletin went to press, issue of the Silha Bulletin and “States law and the Pink Slime case, see ABC the current bill remained in the Minnesota Consider Banning Undercover Recording Reaches Settlement with Beef Products House of Representatives Agriculture at Agricultural Operations” in the Summer Inc. in “Pink Slime” Lawsuit in “Rolling Policy Committee. 2011 issue.) 42 Tenth Circuit Rules Wyoming Ag-Gag failed to state a Supremacy Clause or to private property,” as stated in the Laws Regulate Protected Speech preemption claim; and (5) failed to state subsection. On Sept. 7, 2017, the Associated Press a claim against Defendant Governor Lucero next discussed the broad (AP) reported that the U.S. Court of Matthew Mead.” defi nitions which prohibited numerous Appeals for the Tenth Circuit had ruled Following the issuance of the order, lawful actions on public land, such that Wyoming’s two “Data Trespass Wyoming amended the two statutes, as “collecting water samples, taking laws,” which were modeled after ag-gag eliminating references to “open lands.” handwritten notes about habitat laws in other states, regulated protected The revised statutes included three conditions, making an audio recording expressive activities under the First proscriptive subsections. Subsection of one's observation of vegetation, or Amendment. Western Watersheds Project (a) stated that an individual is guilty of photographing animals.” v. Michael , No. 16-8083 (10th Cir. 2017). trespassing or commits a civil trespass He found that the plaintiffs’ collection Although the court did not rule on the to unlawfully collect resource data from of resource data constituted “protected constitutionality of the laws, it remanded private land if he or she: “(i) Enters onto creation of speech.” He cited several cases the case to the district court to determine private land for the purpose of collecting as precedent, including the 2001 U.S. what level of constitutional scrutiny resource data; and (ii) Does not have: (A) Supreme Court case Sorrell v. IMS Health should apply and whether the laws will An ownership interest in the real property Inc. in which the Court explained that “the survive that review. or statutory, contractual or other legal creation and dissemination of information In 2015, Wyoming enacted a pair of authorization to enter the private land to are speech within the meaning of the First statutes that prohibited individuals from collect the specifi ed resource data; or (B) Amendment.” 564 U.S. 552, 570 (2011). entering “open land for the purpose of Written or verbal permission of the owner, He also cited the Eleventh Circuit’s 2015 collecting [or recording] resource data” lessee or agent of the owner to enter ruling in Buehrle v. City of Key West in without permission from the owner and the private land to collect the specifi ed which the court held that if the creation of with the intention of submitting the data resource data.” Subsection (b) included speech did not warrant protection under to a government agency. The laws were similar language, but applied to a person the First Amendment, the government largely identical except that one imposes who not only has the purpose of collecting could bypass the Constitution by “simply criminal punishment, Wyo. Stat. §§ 6-3- resource data, but actually does so. proceed[ing] upstream and dam[ming] the 414 (2015), while the other imposes civil Of signifi cance in the Tenth Circuit’s source” of speech. 813 F.3d 973, 977 (11th liability, Wyo. Stat. §§ 40-27-101 (2015). decision, subsection (c) still stated that Cir. 2015). The Tenth Circuit concluded The bills defi ned “resource data” an individual is guilty of trespassing that an individual “who photographs as “data relating to land or land or commits a civil trespass to “access animals or takes notes about habitat use, [including] . . . air, water, soil, adjacent or proximate land” if he or conditions is creating speech in the same conservation, habitat, vegetation or animal she: “(i) Crosses private land to access manner as an individual who records a species.” The term “collect” was defi ned adjacent or proximate land where he police encounter.” as taking a “sample of material” or a collects resource data; and (ii) Does not Finally, the court agreed with the “photograph,” or “otherwise preserv[ing] have: (A) An ownership interest in the real plaintiffs that “such activities are information in any form” that is “submitted property or, statutory, contractual or other indispensable to their participation in the or intended to be submitted to any agency legal authorization to cross the private formation of public policy” and that their of the state or federal government.” land; or (B) Written or verbal permission speechcreating activities “further public Violations of the criminal statute carried of the owner, lessee or agent of the owner debate.” Lucero cited Ariz. Free Enter. a maximum prison term of one year and a to cross the private land.” Club’s Freedom Club PAC v. Bennett in $1,000 fi ne for fi rst-time offenders. Repeat The plaintiffs amended their complaint, which the Supreme Court held that there offenders faced a mandatory minimum contending that even as revised, the is “practically universal agreement that sentence of 10 days in prison, a maximum statutes were unconstitutional as applied a major purpose of the First Amendment of one year, and a $5,000 fi ne. The civil and on their face. The amended complaint was to protect the free discussion of statute imposed liability for proximate presented two constitutional causes of governmental affairs.” 564 U.S. 721, 755 damages and “litigation costs,” including action: Free Speech and Equal Protection. (2011). attorney’s fees. However, Judge Skavdahl granted the Accordingly, the court concluded that After the passage of the two laws, defendants’ motion to dismiss the case, the statutes regulated protected speech. advocacy organizations led by Western fi nding that there was no constitutional However, because the district court did Watersheds Project, an environmental right to trespass on private land and that not determine the appropriate level of watchdog organization, fi led a lawsuit the statutes did not regulate protected First Amendment scrutiny, and therefore challenging the statutes, arguing that they First Amendment activity. Western did not determine whether the statutes violated the Free Speech and Petition Watersheds Project v. Michael , 196 would “survive the appropriate review,” Clauses of the First Amendment, as F.Supp.3d 1231 (2016). the court remanded the case so the district well as the Equal Protection Clause of On Sept. 7, 2017, the Tenth Circuit court could consider those issues in the the Fourteenth Amendment, and were reversed and remanded the case. Judge fi rst instance. preempted by federal law. On July 6, 2016, Carlos F. Lucero wrote for the unanimous Following the ruling, Western U.S. District Court for the District of threejudge panel and fi rst addressed Watersheds Project’s Director for Wyoming Judge Scott W. Skavdahl issued a whether the amended statutes still Wyoming, Utah, and Colorado Jonathan written order, which held the plaintiffs “(1) prohibited activity on public property. Ratner praised the decision in an had standing to challenge the civil statute; Lucero found that although subsections interview with the National Resources (2) stated a plausible First Amendment (a) and (b) now only applied to private Defense Council (NRDC) on September Free Speech and Petition claim; (3) stated property, subsection (c) regulated activity 7. “This is a victory for citizen science a plausible Equal Protection claim; (4) on public property because such public and for conservation groups who enforce areas may be “adjacent or proximate Ag-Gag Laws, continued on page 44 43 Ag-Gag Laws, continued from page 43 According to the Ninth Circuit’s ruling, Animal Legal Defense Fund v. Otter, 118 Idaho enacted its law in February 2014 F.Supp.3d 1195 (D. Idaho 2015). environmental protection standards in order to prohibit “interference with On appeal, the Ninth Circuit when agencies turn a blind eye, and agricultural production” and protect determined whether any of the four a resounding defeat for the State of Idaho farmers. The statute included provisions of the ag-gag statute violated Wyoming’s efforts to shield special four provisions for when an individual the First Amendment, explaining that the interests from public scrutiny, oversight, “commits the crime of interference appeal “highlight[ed] the tension between and accountability.” with agricultural production,” including journalists’ claimed First Amendment right David Muraskin, the Food Project that “the person knowingly: (a) Is not to engage in undercover investigations Attorney at Public Justice, a nonprofi t employed by an agricultural production and the state’s effort to protect privacy legal advocacy organization, agreed with facility and enters an agricultural facility and property rights in the agricultural Ratner. “Today’s decision sends a clear by force, threat, misrepresentation industry.” message to other state legislatures that or trespass; (b) Obtains records of Judge Margaret McKeown wrote the attempts to stifl e free speech and shield an agricultural production facility by majority opinion, which fi rst cited the 2012 polluters from accountability,” he said. force, threat, misrepresentation or U.S. Supreme Court case United States “This is the third time a court has held trespass; (c) Obtains employment with v. Alvarez , in which the court examined those laws will be scrutinized because an agricultural facility by force, threat, the Stolen Valor Act, 18 U.S.C. § 704, they silence speech. The laws are being or misrepresentation with the intent to which criminalized false claims that the pushed by lobbyists looking to provide cause economic or other injury to the speaker had received the Congressional cover for some of the worst corporate facility’s operations, livestock, crops, Medal of Honor. 567 U.S. 709 (2012). actors. The court’s ruling today is a win owners, personnel, equipment, buildings, The plurality opinion, written by Justice for transparency, free speech and citizen premises, business interests or customers; Anthony Kennedy, and Justice Stephen science.” [or] (d) Enters an agricultural production Breyer’s concurrence both “reject[ed] Mickey Osterreicher, general counsel facility that is not open to the public the notion that false speech should be in for the National Press Photographers and, without the facility owner’s express a general category that is presumptively Association (NPPA), a plaintiff in the case, consent or pursuant to judicial process unprotected.” However, the plurality held praised the ruling for protecting the media or statutory authorization, makes audio that false speech may be criminalized if and undercover investigations. “Censoring or video recordings of the conduct of made “for the purpose of material gain” the press runs counter to the protections an agricultural production facility’s or “material advantage,” or if such speech embodied in First Amendment. The operations[.]” “Agricultural production” infl icts a “legally cognizable harm.” (For government should not be allowed to chill broadly covered “activities associated more information on the Supreme Court’s that right by criminalizing the media’s with the production of agricultural ruling in Alvarez, see “Supreme Court role of gathering and disseminating products for food, fi ber, fuel and other Strikes Down Stolen Valor Act” in the information and images on matters of lawful uses,” and other activities such Summer 2012 issue of the Silha Bulletin.) public concern,” he said to the NRDC. as “[p]reparing land for agricultural McKeown turned fi rst to subsection The AP reported on the same day production” and “[h]andling or applying (a) of Idaho’s ag-gag law, which she as the ruling that Wyoming Attorney pesticides.” “Agricultural production determined regulated speech protected General Peter Michael was reviewing the facility” was also defi ned broadly and by the First Amendment because “it ruling and preparing for the next phase covers “any structure or land, whether criminalizes innocent behavior, . . . the in the litigation, according to Gov. Matt privately or publicly owned, leased overbreadth of th[e] subsection’s coverage Mead spokesman David Bush. As the or operated, that is being used for is staggering, and . . . the purpose of the Bulletin went to press, Wyoming had not agricultural production.” statute was, in large part, targeted at announced whether it would fi le a petition In March 2014, the Animal Legal speech and investigative journalists.” for certiorari to the Supreme Court. Defense Fund (ALDF), along with several Regarding criminalizing innocent other organizations including People behavior, McKeown asserted that the Ninth Circuit Strikes Down Two Idaho for the Ethical Treatment of Animals statute, like the Stolen Valor Act in Ag-Gag Law Provisions (PETA) and the American Civil Liberties Alvarez, “[sought] to control and suppress On Jan. 4, 2018, the Ninth Circuit ruled Union (ACLU) of Idaho, fi led a lawsuit all false statements in almost limitless that the portion of Idaho’s Interference against Lawrence G. Wasden as Attorney times and settings. And it [did] so entirely with Agricultural Production law, General of Idaho. The complaint alleged without regard to whether the lie was Idaho Code § 18-7042, criminalizing that the purpose and effect of the statute made for the purpose of material gain.” misrepresentations committed in order was to “stifl e political debate about McKeown provided an analogy to to enter a production facility could not modern agriculture by (1) criminalizing demonstrate that a lie, including a survive First Amendment scrutiny, fi nding all employment-based undercover “misrepresentation” under the ag-gag that the subsection criminalized innocent investigations; and (2) criminalizing law, can be “pure speech” in the context behavior, was overbroad, and targeted investigative journalism, whistleblowing of trespass and does not necessarily lead speech and investigative journalists. by employees, or other expository efforts to material gain. Her example imagined Animal Legal Defense Fund v. Wasden, that entail images or sounds.” The ALDF a teenager who, in order to impress No. 1:14-cv-00104-BLW (9th Cir. 2018). asserted that the statute therefore violated his friends by obtaining a reservation The court also found that the clause the First and Fourteenth Amendments. at an exclusive restaurant, may make prohibiting an individual from making The U.S. District Court for the District the reservation in the name of his audio or video recordings of the “conduct of Idaho struck down all four provisions famous mother, therefore constituting a of an agricultural production facility’s of Idaho’s ag-gag law, granting the ALDF’s misrepresentation. Under Idaho’s ag-gag operations” was “a classic example of motion for summary judgment on its First law, McKeown explained, the teenager a content-based restriction that cannot Amendment and Equal Protection claims. would be subject to punishment of up to survive strict scrutiny.” 44 one year in prison, a fi ne not to exceed the First Amendment because they which damages are presumed to fl ow $5,000, or both, even for just entering the “protect[] against a ‘legally cognizable naturally,” meaning subsection (a) would restaurant. Because the entry alone “does harm associated with a false statement’ survive First Amendment review under not constitute material gain,” the lie is and therefore survive constitutional Alvarez. Bea otherwise concurred with the pure speech under the Alvarez standard. scrutiny under Alvarez. She differentiated majority opinion. McKeown next wrote that the court subsections (b) and (c) from (a) in that As the Bulletin went to press, Idaho “was unsettled by the sheer breadth of “acquiring records by misrepresentation had not announced whether it would fi le this subsection given the defi nitions of results in something defi nitively more than a petition for certiorari to the Supreme ‘agricultural production facility’ and does entry onto land—it wreaks actual and Court. ‘agricultural production.’” She explained potential harm on a facility and bestows Following the ruling, ALDF Senior that under these defi nitions, the material gain on the fi bber.” Attorney Matthew Liebman told the subsection applies to misrepresentations McKeown then turned to subsection Capital Press, an agriculture weekly “not only in the context of a large- (d), the “Recordings Clause” which publication, that the decision was a victory scale dairy facility or cattle feedlot, but prohibited a person from entering a for First Amendment advocates. “I think also grocery stores, garden nurseries, private agricultural production facility and, the whole point behind this law was to restaurants that have an herb garden or without express consent from the facility stop recordings coming out and now that grow their own produce, llama farms that owner, making audio or video recordings that recording ban is unconstitutional, produce wool for weaving, beekeepers, of the “conduct of an agricultural that’s a major victory as far as we’re a chicken coop in the backyard, a fi eld production facility’s operations.” She concerned,” he said. producing crops for ethanol, and hardware fi rst refuted Idaho’s claim that the act of Institute for Defense Analyses (IDA) stores, to name a few.” creating an audiovisual recording is not attorney Dan Steenson contended in an Finally, McKeown asserted that a speech protected by the First Amendment. interview with the Capital Press that the scenario like that regarding the teenager McKeown considered this argument statute still afforded strong protection to was also possible for investigative “akin to saying that even though a book agricultural producers after the ruling. “We reporters who trespass as part of the is protected by the First Amendment, the believe the statute still provides signifi cant newsgathering process. She wrote, “We process of writing the book is not.” Next, protection for agricultural production are sensitive to journalists’ constitutional the majority held that subsection (d) is facilities from wrongful interference,” he right to investigate and publish exposés an “obvious” example of a contentbased said. “[Each of the provisions] address on the agricultural industry. Matters regulation of speech because it prohibits different types of interference that related to food safety and animal cruelty recording on a defi ned, specifi c topic, in agricultural facilities might experience.” are of signifi cant public importance.” this case, all audio and visual recordings In a Jan. 26, 2018 commentary, Bryan McKeown cited Food Lion, Inc. v. of agricultural operations. Cave LLP attorney Merrit Jones and Capital Cities/ABC, Inc., 194 F.3d Because the Recordings Clause partner Jennifer Jackson predicted that 505 (1999), and Desnick v. American constitutes a contentbased regulation, the Ninth Circuit’s ruling would not be the Broadcasting Companies, Inc., 44 F.3d McKeown applied strict scrutiny, end of litigation related to aggag laws. 1345 (7th Cir. 1995), in which the courts meaning the restriction of speech must They wrote, “If anything, the opinion invalidated trespass claims predicated on be “necessary to serve a compelling provides a framework to assist aggag law misrepresentations because “the entry state interest” and “is narrowly drawn to drafters in navigating the constitutional was not invasive in the sense of infringing achieve that end.” She fi rst found that the labyrinth. One thing is for sure, aggag the kind of interest of the plaintiffs that subsection was underinclusive because litigation is far from over.” the law of trespass protects; it was not it prohibited audio and video recordings, In fact, in 2017 and early 2018, three an interference with the ownership or but made no mention of photographs. federal district courts also ruled on possession of land.” McKeown also found that the clause aggag laws in Iowa, North Carolina, Because subsection (a) constituted was overinclusive and suppressed more and Utah. On Feb. 28, 2018, U.S. District a restriction on speech, McKeown ruled speech than necessary to protect property Court for the Southern District of Iowa that it must be “actually necessary” to and privacy because there were “various Judge James E. Gritzner denied Iowa’s achieve a compelling government interest, other laws at [Idaho’s] disposal that would motion to dismiss a lawsuit brought by a and that there must be a “direct causal [have] allow[ed] it to achieve its stated coalition of public interest groups, which link between the restriction imposed interests while burdening little or no argued that Iowa’s ag gag law, Iowa Code and the injury to be prevented.” The speech,” such as laws regarding invasion § 717A.3A, violated the First Amendment. majority found that the subsection did of privacy and defamation. She concluded Animal Legal Defense Fund v. Reynolds, not survive such review. McKeown wrote, that “[t]he remedy for speech that is false No. 4:17cv362 (S.D. Iowa 2017). Gritzner “Even assuming Idaho has a compelling is speech that is true,” citing Alvarez, “and allowed the coalition’s First Amendment interest in regulating property rights and not, as Idaho would like, the suppression arguments of the aggag law being a protecting its farm industry, criminalizing of that speech.” content and viewpointbased restriction access to property by misrepresentation Judge Carlos Bea fi led an opinion of speech, as well as being overbroad, to is not ‘actually necessary’ to protect those dissenting in part and concurring in part. continue. As the Bulletin went to press, rights.” She added that Idaho had other Bea disagreed with the majority’s fi nding no further announcements had been alternatives to addressing this interest, that entry upon land without consent is announced regarding the case. such as utilizing its existing prohibition not a “legally cognizable harm” where On July 7, 2017, U.S. District Court for against trespass that does not implicate it “merely allows the speaker to cross the District of Utah Robert Shelby ruled speech, or narrowing the subsection by the threshold of another’s property.” He that Utah’s aggag law, which criminalizes requiring specifi c intent of the individual argued that as a matter of the applicable both lying to gain access to an agricultural using misrepresentation. Idaho law, “such an unconsented entry operation and fi lming once inside, violated Turning to subsections (b) and (c), constitutes a common law trespass, which Ag-Gag Laws, continued on page 46 McKeown ruled that they did not violate is a legally cognizable harm—one from 45 Special Report: Silha Center Interview with Panama Papers Journalist Kevin Hall n Jan. 16, 2018, Silha drug traffi ckers, and others, as reported by stories involving massive data leaks more Center Director and Silha The Guardian on April 3, 2016. generally. This special report includes Professor of Media Ethics The BBC reported on April 6, 2016 questions asked by Kirtley and Memmel, as and Law Jane Kirtley and that the Panama Papers had revealed that well as by Dave Beal, a longtime business Silha Bulletin Editor Scott Mossack Fonseca clients were able to columnist for the St. Paul Pioneer Press, OMemmel met with Kevin Hall, the Chief launder money, dodge sanctions, and avoid who also attended the meeting, and Economics Correspondent for McClatchy tax payments. According to an April 3, excerpts from Hall’s responses. Newspapers, Inc., which operates 29 daily 2017 story by ICIJ reporter Will Fitzgibbon, newspapers in the investigation led to over 150 separate Q: “Can you speak about your involvement with the Panama SPECIAL the United States, investigations, inquiries, audits, and including the probes in more than 70 countries, such as Papers?” REPORT Miami Herald and an investigation into Mossack Fonseca, A: “I was the lead on the McClatchy the Sacramento which led to the detention of Jürgen side of things. McClatchy was the U.S. Bee. Hall was also a member of the global Mossack and Ramón Fonseca, the fi rm’s newspaper partner [for the project].. . . We team that won a Pulitzer Prize for its work founders, on money laundering charges were a good fi t for [working with ICIJ] on the “Panama Papers,” a collection of in February 2017. Another notable impact because of language skills; the Miami 11.5 million fi les, totaling 2.6 terabytes of of the Panama Papers was the April 2016 Herald, our paper, focuses on Latin data involving offshore accounts linked to resignation of Icelandic Prime Minister American and the Caribbean.. . . We prominent fi gures and to criminals around Sigmundur Davíð Gunnlaugsson, though certainly didn’t have the weight of The the world. he remained a member of parliament. Washington Post or The New York Times, In 2015, an anonymous individual For more information about the Panama but I think the calculation on ICIJ’s part leaked the documents to Suddeutsche Papers investigation, as well as several [was] we would be more inclined to Zeitung, a German newspaper, likely reports stemming from the project, see collaborate and what they were after marking the largest leak in history, https://panamapapers.icij.org/. on a project this big was collaboration.. according to Wired magazine on April In 2017, ICIJ began a separate . . In my case, I spent 15 months on 4, 2016. Beginning on April 3, 2016, a investigation into a new leak of 13.4 this, probably the fi rst eight before team of over 300 journalists and 100 million fi les from a combination of publication.” media partners, working under the offshore service providers and several Q: “Why do you feel these umbrella of the International Consortium countries’ company registries. Known disclosures, this whole process, . . . is of Investigative Journalists (ICIJ), as the “Paradise Papers,” the documents important?” sifted through the documents, which include loan agreements, fi nancial A: “The whole database is not public revealed that more than 214,000 offshore statements, emails, trust deeds and other because you have bank records, bank companies were connected to people in paperwork largely tied to political leaders, accounts, passports, licenses, marriage more than 200 countries and territories, fi nanciers, and wealthy individuals, licenses, divorce papers; everything according to ICIJ’s Panama Papers according to ICIJ. As the Bulletin went under the sun is in the private material. website. The fi les were taken from the to press, some data had been released in I think that’s another reason ICIJ had to database of the world’s fourth largest November 2017, but the Paradise Papers be very careful who it brought in. It was offshore law fi rm, Mossack Fonseca, and investigation remained ongoing. a contractual relationship, we had to sign included emails, fi nancial spreadsheets, The meeting with Hall provided off on a lot of privacy stuff and a lot of passports, and corporate records valuable expert insight into the journalistic teamwork stuff. They took great steps containing information related to offshore responsibilities, as well as legal and ethical because of that privacy angle because one holdings of twelve current or former world concerns, related to the Panama Papers misstep there could be a huge lawsuit for political leaders, celebrities, fraudsters, project in particular and investigative everybody.”

Ag-Gag Laws, continued from page 45 in court documents that they were not wrote that the lawsuit “contain[ed] not planning to challenge the ruling. a single allegation” that the defendants, the First Amendment rights of the People But, on May 3, 2017, unlike in the which included the state and the for the Ethical Treatment of Animals rulings by the other federal district and University of North Carolina, “had ever (PETA), the ALDF, and Amy Meyer, the appellate courts, U.S. District Court for the sued or threatened to sue PETA or [the] fi rst individual charged under the law. Middle District of North Carolina Judge ALDF for investigatory conduct.” PETA, Animal Legal Defense Fund v. Herbert, Thomas D. Schroeder ruled against the the ALDF, and other plaintiffs appealed the No. 2:13-cv-00679-RJS (D. Utah 2017). organizations challenging North Carolina’s case to the Fourth Circuit, which held oral Shelby found that the law did not survive ag-gag law. He dismissed the lawsuit arguments in January 2018. As the Bulletin strict scrutiny, which requires that the brought by PETA and the ALDF, among went to press, the Fourth Circuit had not state has a compelling interest and that the others, because they could not show an released a ruling in the case. restriction on speech is narrowly tailored “injury in fact” and, thus, did not have SCOTT M EMMEL to achieve that interest. On Sept. 9, 2017, standing to bring the case. People for the the Associated Press (AP) reported that Ethical Treatment of Animals v. Stein, SILHA BULLETIN E DITOR the Utah Attorney General’s Offi ce wrote No. 1:16cv25 (M.D.N.C. 2017). Schroeder

46 “I think the reason it was important Commission] violations, hedge funds who sense is that they had the data in multiple is now self-evident, that it showed what defrauded their investors, the kind of places where they would avoid having people had long suspected: that here’s people . . . we expected to be in there were to turn it over to a U.S. court or, in the how bad guys are hiding their money in there.” case that they did, they would not lose and how they are using shell companies.. it either.. . . My recollection is when we Q: “How much of this [lack of . . We showed how people were using signed onto the deal that ICIJ would be the prosecutorial or Congressional action] the United States to camoufl age assets voice should there be legal challenge.” would you say is a product of lack of abroad just like Americans might do in “[I]in Ecuador the journalists were public outrage?” the Cayman Islands. We showed how drug threatened with jail, they were threatened A: “I think a part of that goes to the money got cleaned through a process of to be brought in front of the congress, diminishing reach of newspapers to some offshore accounts and businesses. We the president gave out their cell phone extent. But [President Barack] Obama had showed how tax evasion happened. We numbers and asked people to harass them. a platform to do something with this. He showed how politicians hid their sources He was trying to force the release of the went the path of least resistance . . . I think of wealth. [Former British Prime Minister names of people, he wanted to go after his he could have gotten something through David] Cameron had family wealth that political opponents with it, and he wanted, [Congress], but they had other things on he was hiding in offshores that he had to as we reported later, he was trying to fi nd their plate. It did hurt that there wasn’t a own up to. So, all those reasons for public documents that were implicating him and big obvious person on there. The Russians disclosure [are] important.” his brother.” were the biggest part of that story [related “Was it stolen material as some to the Islandic Prime Minister]; are Q: “Was there anything in suggest? It certainly wasn’t public people gonna fall on their sword here for particular that really surprised or material. We know enough about it that we something that happened over there?” shocked you when you were working felt we didn’t have concerns about motives with this partnership [on the Panama [for the leaks].. . . We wanted to know Q: “Do you anticipate [Robert] Papers]?” what we were dealing with.” Mueller’s investigation [into Russian A: The shock was that the Argentines interference in the 2016 presidential Q: “When you say you weren’t [journalists on the Panama Papers team] election and potential involvement concerned about motives . . . what were able to keep it quiet because they by President Donald Trump’s kinds of concerns about motives had information that would have changed administration] is going to touch on would be concern[ing] to you? Besides the outcome of their election and it was any of this?” authenticating the documents . . . killing them not to be able to report this. A: “I sure hope so. Our independent what difference does it make why [But] we had all agreed that everyone reporting this year has given him a lot somebody [leaked] it to you?” publishes at the same time, no exceptions. to work with.. . . The answer is yes. The A: “From an ethical standpoint, one of And they had lots of ways that could have [Panama Papers] overlap with Trump our biggest concerns [was] is this a public leaked out, but it didn’t happen. Then SoHo [a luxury hotel in Manhattan], Trump person or not? We had a number of cases they took a bit hit after the fact because Moscow, [a dropped plan to build a Trump where we found Americans who were in now they were accused of covering up Tower in Russia], and Miss Universe . . . these documents for wealth protection. We information, and they weren’t because [as well as] Trump’s real estate rings.” didn’t bother them, we didn’t call them, we we can vouch for them.. . . Everybody didn’t publish them because they weren’t Q: “Can you talk about how you did great work. Your job was to fi nd stuff public people, there was no obvious deal with instances when [President] and put it into a collective space, and wrongdoing that happened. But there Trump’s name comes up?” everybody did that. Everybody’s stories were others that we focused on that we A: Well in the Panama Papers, we were were informed by stuff that someone else had to get over our own internal hurdle, looking for Trump and Clinton, and people had found and put in a common thread. that are they a suffi ciently public person in their orbits, so we did two separate Q: “What would be your takeaways or involved in suffi ciently questionable stories, one on each of them showing how for journalism students about this enterprises, that we can justify using donors of the Clinton Foundation were in project?” this [private] information.. . . In this new there.. . . Trump appeared like 3,450 times A: “I think the biggest takeaway is it digital era, we are having to confront some . . . and we read every single one of [those is okay to collaborate. The old model interesting ethical questions.” documents and contracts].. . . [There was] of you having to be fi rst and exclusive a lot of insight into how he negotiates. Q: “What immediately comes to still is the case for a lot of stuff . . . [but] What was in there was very interesting.. . . mind about your experience with the collaboration is the way to go deep on There was a lot of useful material. I think Panama Papers project?” stuff.. . . It’s given me the freedom to work we’ve learned as much about the Trump A: “I think there’s a sense of with non-journalists who have overlapping empire as anywhere.” disappointment that more hasn’t been research specialties. There are ways you done in terms of prosecution in the U.S. Q: “In contemplating legal can collaborate with people who never Our reporting did lead to changes in ramifi cations of all this investigation, appear in print, but you have to do your Wyoming and Nevada, the two places we you mention [editorial] privacy as due diligence, you have to know who they focused on. It did not lead to any national one concern . . . did you, individually are.” change.. . . There has been reaction in or collectively, worry about being SCOTT M EMMEL lots of places in the world, but . . . there subpoenaed in legal cases? And what SILHA BULLETIN E DITOR were no big fi sh in the Panama Papers was your collective position?” from the United States. There were a lot of A: “Yeah. I think the idea was to fi ght fi nancial fraudsters, a lot of guys with SEC it. We structured it in a way that the data [Securities and Exchange Commission] was always with ICIJ so if anyone had and CFTC [Commodity Futures Trading to respond, it was going to be them. My 47 Spring Symposium Marks the 30th Anniversary of Hustler Magazine, Inc. v. Falwell, Discusses History, Purpose, and Impact of Political Cartoons elivering the unanimous lampoon public fi gures. The symposium, its duties as a ‘watchdog’ on the powerful, ruling of the U.S. Supreme titled “The State of Our Satirical Union: satire often emerges. It emerges as an Court in the 1988 case Hustler Magazine, Inc. v. Falwell at 30,” important site of resistance, a mechanism Hustler Magazine, Inc. included six panels and two speeches for inventive pushback, and also for v. Falwell , Chief Justice in which political cartoonists and First creative criticism,” she said. DWilliam Rehnquist wrote, “Despite their Amendment scholars discussed different sometimes caustic nature, from the early aspects of the Hustler case, including Panel #1: The Power of Satire from cartoon portraying George Washington as Chief Justice Rehnquist’s opinion, the Gillray to Trump an ass down to the impact of the case, old and new forms of Silha Center Director and Silha present day, graphic satire and political cartoons in society, Professor of Media Ethics and Law Jane SILHA CENTER depictions and and threats to satire in the United Kirtley and Roslyn Mazer, who served as EVENTS satirical cartoons States and abroad, among other topics. counsel to the AAEC et al. in the Hustler have played a The event took place at the Courtyard case and wrote a pivotal amicus brief, prominent role in public and political Marriott in Minneapolis on April 20 and introduced the April 20 panel, which debate.. . . From the viewpoint of history, the University of Minnesota’s Cowles included Steve Sack, the Minneapolis it is clear that our political discourse Auditorium on April 21, with over 150 Star Tribune’s editorial cartoonist, Ann would have been considerably poorer people in attendance over the course of Telnaes, The Washington Post’s editorial without them.” 485 U.S. 46 (1988). the two days. cartoonist, and Michael Kahn, senior On April 20 and 21, 2018, the Silha On April 20, Elisia Cohen, the director counsel at Crowell & Moring, LLP in San Center for the Study of Media Ethics and of the Hubbard School of Journalism and Francisco, who served as the moderator Law, the Minnesota Journalism Center, the Mass Communication at the University of the panel. Hubbard School of Journalism and Mass of Minnesota, welcomed everyone Kahn, co-author of Puck: What Fools Communication, and the Association of to the symposium and stressed that Them Mortals Be!, described how American Editorial Cartoonists (AAEC) “understanding how satire functions political cartoons have been a “powerful co-sponsored a symposium marking the in a free and democratic society with force in our western civilization for 30th anniversary of the Hustler case, the free press is profoundly important. hundreds and hundreds of years.” He which affi rmed the First Amendment right Historically, when elected offi cials work provided several examples, including of editorial cartoonists and satirists to to limit the ability of the press to perform Martin Luther, who produced woodcuts A Brief Overview of Hustler Magazine, Inc. v. Falwell ustler Magazine, Inc. v. Falwell arose following the publication of the November 1983 issue of Hustler magazine, which featured a parody of a Campari liqueur advertisement on the inside front cover. The ad was titled “Jerry HFalwell talks about his fi rst time,” playing on the double entendre meaning of one’s fi rst sexual experiences. The ad purported to be an interview with Jerry Falwell, a nationally known minister who had frequently commented on politics and public affairs, in which he states his “fi rst time” was a “drunken, incestuous rendezvous with his mother in an outhouse.” The bottom of the ad included a disclaimer that it was an “ad parody” and was “not to be taken seriously.” Immediately following the publication of the ad, Falwell fi led a lawsuit in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, the publisher of the magazine, and his distribution company, Flynt Distributing Co., Inc. (“petitioners”). Falwell sought to recover damages for libel, invasion of privacy, and intentional infl iction of emotional distress. The district court granted a directed verdict to the petitioners on the privacy claim, and the jury found in favor of the petitioners on the libel claim, fi nding that the ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” However, the jury found in favor of Falwell on the intentional infl iction of emotional distress claim, stating that he should be awarded $100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners. In an 8-0 decision, the Supreme Court ruled in favor of the petitioners, reversing a ruling by the U.S. Court of Appeals for the Fourth Circuit. Chief Justice Rehnquist found that “[a]t the heart of the First Amendment is the recognition of the fundamental importance of the free fl ow of ideas and opinions on matters of public interest and concern” and that sometimes the “sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public offi ce or those public fi gures.” Chief Justice Rehnquist held that public offi cials and public fi gures may only recover damages for the tort of intentional infl iction of emotional distress by “showing . . . that the publication contains a false statement of fact which was made with “actual malice,” the standard created in New York Times v. Sullivan requiring plaintiffs to prove that the defendants knowingly made false statements or made statements with reckless disregard for their truth or falsity. 376 U.S. 254 (1964). Chief Justice Rehnquist also explained the necessity of protecting political cartoons. “Were we to hold [differently in this case], there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject.”

48 during the 16th-century Reformation in During a Q&A session, the panel also “surprised” not only that that the Court Western Europe attacking the Catholic discussed the 2015 Charlie Hebdo attack was unanimous, but that Chief Justice Church for granting indulgences. Another in Paris, France in which brothers Said Rehnquist, who generally had a poor example was Thomas Nast, a political and Cherif Kouachi forced their way track record on First Amendment cases, cartoonist who waged a campaign in the into the offi ces of the satirical French wrote the opinion. However, Mazer stated 1870s against William Magear Tweed, newspaper and opened fi re with assault that Chief Justice Rehnquist’s ruling was often referred to as “Boss” Tweed, who rifl es, killing 12 people and injuring 11 perhaps less surprising after biographer operated as the “boss” of Tammany Hall, more. Among the victims were Charlie Roger Newman uncovered Rehnquist’s the infl uential Democratic Party political Hebdo editor and cartoonist Stephane Shorewood (Wis.) High School yearbook machine, and was frequently accused of Charbonnier, as well as cartoonists from 1942. The entry next to Rehnquist’s corruption until his arrest in 1873. Kahn Jean Cabut, Bernard Verlhac, Georges portrait stated that his “favorite pastime, explained that Tweed had once said “I Wolinski, and Philippe Honore. (For more in and out of school, [was] cartooning.” don’t care what the newspapers say about Mazer concluded me, I don’t like those damn pictures “It is our job through satire and ridicule, by stating that the (Nast’s cartoons) because my constituents humor and pointed caricatures, to case was signifi cant can’t read, but they can look at pictures.” because it “has Telnaes addressed the question “Is criticize leaders and governments who been cited in many, satire still relevant and powerful in are behaving badly. It is our purpose many cases since the age of [President Donald] Trump?” 1988 and [is] . . . one She contended that President Trump’s to hold the politicians and powerful of the most ringing comments calling news organizations institutions accountable to the people endorsements the “fake news media” and the “enemy of they are supposed to serve.” for the First the American people” were “a signifi cant Amendment.” choice of words, and dangerous to Mike Peters, — Ann Telnaes, the role of a free press in democracy, creator of the which includes the editorial cartoonist.” Washington Post editorial cartoonist internationally She continued, “It is our job through syndicated satire and ridicule, humor and pointed information on the attack, see “Charlie comic strip Mother Goose and Grimm, caricatures, to criticize leaders and Hebdo Attack Leaves Several Dead, contended that prior to and during the governments who are behaving badly. Sparks International Debate on Limits of Hustler litigation, “satire was truly It is our purpose to hold the politicians Free Speech” in the Winter/Spring 2015 under attack.” He asserted that the and powerful institutions accountable to issue of the Silha Bulletin and “Journalists broad protection granted by Hustler is the people they are supposed to serve.” Abroad Face Uncertain Legal Challenges; “something we live with and we sort of (For more information on President U.S. Television News Reporters Slain take for granted.” Trump’s relationship with the press as a During Live Report” in the Summer 2015 Sargent concluded by observing that presidential candidate and as president, issue.) “the media environment . . . is fundamentally see “Reporters and Leakers of Classifi ed and substantially different from the Documents Targeted by President Trump Panel #2: Reverend Falwell Goes to seemingly long-ago world of 1988.” But, and the DOJ” in the Summer 2017 issue Court he added that “[h]owever things play out of the Silha Bulletin, “Media Face Several On April 21, Pat Bagley, editorial in the new media environment, for now Challenges During President Trump’s cartoonist at the Salt Lake Tribune we can trust that the hardline protections First Months in Offi ce” in the Winter/ and president of the AAEC, welcomed from the First Amendment’s long history Spring 2017 issue, and “2016 Presidential everyone to the second day of the are still in place, and we should be Candidates Present Challenges for Free symposium. He stated that the event was vigilant to ensure that they are defended, Expression” in the Summer 2016 issue.) taking place “because freedom of thought strengthened, and expanded. Speech is Steve Sack asserted that “the most matters [and because of] freedom of the still speech and liberty is still liberty.” obvious power [of political cartoons] press.” is the power to provoke.” He also Kirtley then introduced the panel, Panel #3: The Hustler Decision and its explained that the ability for viewers to which discussed the background of the Impact complain about political cartoons had Hustler case and the ruling by Chief The second panel on April 21 included changed over time. “When I began, like Justice Rehnquist. Ben Sargent, editorial four media law scholars, including Len all cartoonists, I got a lot of hate mail and cartoonist at the Texas Observer and Niehoff, a professor at the University of angry calls.. . . Those were really the only president of the AAEC during the Hustler Michigan Law School; Jonathan Peters, an ways for readers to give us feedback,” he case, explained the AAEC’s role in the assistant professor at the Grady College said. “And then came along the internet. litigation, saying it was “proud to be of Journalism and Mass Communication As newspapers built websites, suddenly part of it.” Sargent contended that the at the University of Georgia; Erica Salkin, our work was accessible all over the ruling “still stands as a bulwark for free an associate professor of communication world.. . . And as easily as the world could expression in these very perilous times.” studies at Whitworth University; and see our cartoons, the world had email Mazer explained that the mainstream George Freeman, the executive director access to us.. . . And then social media, media had been “perplexed” about of the Media Law Resource Center, who Facebook, the wonderland of comment the case, namely whether they should served as the moderator. The panel also sections, and, of course, Twitter. With support a petition for certiorari to the included Steven Breen, the editorial all these outlets to complain . . . people Supreme Court after the Fourth Circuit cartoonist at the San Diego Union. had a smorgasbord of places to react to a ruled against Flynt and Hustler magazine. cartoon.” Mazer said she and the AAEC were Symposium, continued on page 50 49 Symposium, continued from page 49 about the important role satire plays today” and that cartoonists should be in the United States. She identifi ed “brutal when truth is threatened, but Freeman asked what the panelists the necessary elements “for a healthy nice, like Minnesotans.” During the viewed as the signifi cance of Chief Justice democracy,” including citizens who are Q&A, Ohman added that being a political Rehnquist’s ruling in the Hustler case. “active,” “informed,” and “engaged,” as cartoonist “is not a drawing job, it is a Salkin explained that the case has “a wide well as a thriving news media, community writing job . . . an editorial job.” application to a wide variety of speech,” action, the public sphere, and satire. including student speech in which courts McClennen then argued that satire Panel #4: Old and New Forms of have “embraced the protection of satire “helps remind us of the actual story” and Satire [and] echo[ed] the language of Hustler.” “emerges in force in moments of crisis.” The next panel was moderated by Breen argued that “what’s great about She added that satire also “expos[es] Kirtley and consisted of both media [the case] is [editorial cartoonists and faulty thinking” and “point[s] out stupidity scholars and political cartoonists, who members of the press] don’t have to worry anywhere it can fi nd it, on the left, on the collectively focused on older forms of about [censorship and other attacks on right, it doesn’t matter.” “Every human satire, including woodcuts and magazine political cartooning].” He added that culture has satire. Every community will parodies, and newer forms, such as the protection of satire was important produce it when it’s being told that it is Twitter parody accounts. Signe Wilkinson, because the practice of cartooning “is not allowed to think, when it is being told editorial cartoonist for the Philadelphia looking at something, whether it is a that it’s supposed to just get in line and Media Network, explained that Flynt person or idea, and you’re basically saying follow whoever is in power,” she said. and Hustler magazine had followed ‘you’re not as important as you think you As a result, she asserted that satire “had in the footsteps of Martin Luther and are’ and there’s different ways where you a measurable impact not only on public his use of the printing press. She also could knock that person or that thing off opinion, but on things that happened contended that “religious fi gures are the pedestal.” in politics,” citing several examples granted more deference than political Niehoff argued that “[a] lot of the including actress Tina Fey’s portrayal of fi gures,” therefore making the Hustler power here for First Amendment vice presidential candidate Sarah Palin case “even more important” because it purposes comes from the fact that satire on “Saturday Night Live” during the 2008 protected cartoonists who depict religious is counterfactual. That it invites you presidential campaign. fi gures. She added, “When people into this imaginative process where the McClennen concluded by arguing that claiming to represent a religion enter the world just looks different. What it invites satire is closely tied to the millennial political fray, cartoonists should have you to do is compare this alternative generation, social media, and social the freedom to cartoon them in the same reality to our lived reality . . . and it does action, and is “constantly part of the way they cartoon every other actor on the it effi ciently, it does it quickly, it does it public sphere,” citing the example of signs American stage.” through a variety of devices like words at recent marches or protests “competing” Cullum Rogers, a freelance editorial and images and humor, [and] it cuts to be the most “witty or ironic.” cartoonist, provided a series of historical across socioeconomic lines,” he said. examples of parodies of advertisements Niehoff also contended that one legacy Keynote Address: Speaking Freely in and periodicals. One example was “The of the Hustler ruling was that it set the the Age of Trump Philistine: A Periodical of Protest,” stage for the 2011 Supreme Court case In the symposium’s keynote address, a “little” magazine published from Snyder v. Phelps in which the Court ruled Jack Ohman, the editorial cartoonist at 1895 to 1915 by Elbert Hubbard, who that the First Amendment protects the The Sacramento Bee, began by discussing wrote about philosophy, religion, “hurtful” picketing of military funerals by his background, including as a cartoonist politics, literature, business, and self- the Westboro (Kan.) Baptist Church. 562 at the Minnesota Daily, the student improvement, among other topics. Rogers U.S. 443 (2011). (For more information on newspaper at the University of Minnesota. then pointed to Bert Leston Taylor, the case, see “In Snyder’s Wake, Protests Alluding to earlier statements that a Chicago Tribune columnist, who Continue to Test Boundaries of Protected the number of cartoonists working for published “The Bilioustine: A Periodical Expression, Spark Regulatory Efforts” in daily newspapers had fallen to between of Knock” in 1901. Rogers explained that the Fall 2011 issue of the Silha Bulletin, 30 and 50, he turned to the “importance the magazine’s style and content were a “Supreme Court Ruling Protects Funeral of [his] shrinking, but hearty craft.” parody of “The Philistine,” and that it is Picketers” in the Winter/Spring 2011 issue, “The cartoonists are the rebels,” he said. often referred to as the country’s fi rst full- and “U.S. District Court Rules against “Cartoonists are not just here to amuse, length magazine parody. Rogers argued Funeral Protesters” in the Winter 2008 although we do. Cartoonists are not here that such parodies were the predecessors issue.) solely to draw Trump’s . . . hair. We are of the National Lampoon, The Onion, and Finally, Peters explained that “[w]e here . . . to hold him accountable.” other satirical publications. protect some false speech because we are He continued, “We are not portraitists Genelle Belmas, an associate professor afraid that if we held public offi cials and of the absurd. We are looking for an at the William Allen White School of public fi gures to a lower standard [than honest man or woman and we have the Journalism and Mass Communication at actual malice], it would be easier for them ability to hold that lantern and shed light, the University of Kansas, and Bastiaan to sue and to win and that would have a not throw shade. Every single person on Vanacker, an associate professor and chilling effect on the public discourse.” the podium today does that professionally. program director at the Center for Digital But it’s not just that, we are not just gag Ethics and Policy at Loyola University Speech: Why Satire is Good for Our writers of the apocalypse, we are part of – Chicago, each discussed portions of a Democracy the vanguard of the return of the value of collaborative research paper regarding Sophia McClennen, a professor of truth in our democracy.” legal questions around parody accounts comparative literature and international Ohman concluded that “these times on Twitter, which Vanacker called a “new affairs at Penn State University, spoke demand the people on the stage here form” of satire. He provided several 50 examples, including a parody account in the United States.” Pritchard asserted efforts to censor or remove hate speech, of Jim Ardis, the mayor of Peoria, Ill. that the Hustler ad was an example of and the shouting down of speakers at Vanacker explained that although Ardis “speech through images.” He contended college campuses, a practice known as disliked the parody account, which that the ad was “offensive” not because the “heckler’s veto.” Bok, who was the depicted him as drunk and vulgar, he of “literal words that were written, but 2000 Silha lecturer, concluded by saying could not fi nd a legal basis to have the the picture they conjure up, it’s the image “Our job isn’t to make people feel safe, it account removed. As a result, Ardis and that appears in my mind when I read is to make them feel uncomfortable.” But the city of Peoria attempted to have the the words that happened in that famous he added that cartoonists do not have to parody account removed under a false outhouse.” Second, Pritchard argued that risk their lives in the United States as they impersonation statute found under Article the ad was “speech about religion” and might do in other countries. 17 of the Illinois Criminal Code. 720 ILCS that Falwell was not only a public fi gure, Joel Pett, editorial cartoonist at 5/17-2. However, the statute only applied but a “sacred” fi gure because he was a the Lexington Herald-Leader, further to government individuals who had been religious leader. Therefore, according elaborated on the dangers for cartoonists defrauded, leading the city to drop the to Pritchard, the ad could be argued abroad. He discussed the Cartoonists case against the man behind the account, to constitute a form of “blasphemy” or Rights Network International (CRNI), according to Vanacker. “profan[ing] the sacred.” which aims to “defend political Vanacker then turned to right of Carstens explained that in “most” cartoonists on the front lines of free publicity statutes, a “property right in countries, these two characteristics of speed.” Pett, who serves as president one’s personality and provides individuals the ad “would create some serious legal of the board of directors of CRNI, with causes of action when their likeness problems” because of “blasphemy” and provided several examples of cartoonists is being used for commercial purposes “defamation of religion” laws. However, abroad being detained, arrested, jailed, without their consent.” Vanacker she contended that the United States took or physically harmed, as well as their contended that individuals behind parody a different course related to offensive offi ces being “ransacked.” Pett said accounts are “pretty well protected” from religious speech, concluding that religion these examples demonstrate “how good such arguments and that artistic value and is part of the public sphere in the United [cartoonists] have it here [in the United expressive elements may prevail over the States, whereas it is a “private practice” in States]” and added in the Q&A session commercial interests of plaintiffs. Western and Central Europe. that American cartoonists “don’t have Belmas discussed the copyright Ritu Khanduri, an associate professor to be courageous” like those in other and trademark issues raised by parody of anthropology at the University of Texas countries. He added, “The only award Twitter accounts, providing the example – Arlington discussed her research paper you don’t want to win in cartooning is the of parody accounts using Graphics titled “Hustling Free Speech in a Global international courage award because it Interchange Formats (GIFs) previously World,” in which she contended that basically means you are in big trouble.” published by other individuals or offensive cartoons depicting other races organizations. Balmas contended that and ethnicities “can be deeply fraught” Symposium Wrap Up: What Did We such uses of these moving images because they can “give a new lease on Learn? would “probably [be] fair use” under life to the colonial imagination and its The symposium concluded with a the Digital Millennium Copyright Act, troubling representation of ‘natives’ and session in which Matt Wuerker, editorial which states that “use by reproduction in unwittingly mobilize deeply conservative cartoonist and founding staff member copies or phonorecords or by any other politics.” at Politico, along with Pett, displayed means . . . for purposes such as criticism, Chip Bok, an editorial cartoonist at cartoons drawn by several of the comment, news reporting, teaching Creators Syndicate, an independent cartoonists during the event. The purpose (including multiple copies for classroom media and syndication company founded was to “memorialize the symposium . . . use), scholarship, or research, is not an in 1987, discussed how “nowadays, hurt [using] cartoons about the proceedings.” infringement of copyright.” 17 U.S. Code feelings seem to be very important and Some depicted the panels and speeches, § 107. we tend to steer away from unfortunate while others provided commentary on the physical traits.” He provided an example topics discussed during the symposium. Panel #5: Threats to Satire Here and of a cartoon he drew for the Clearwater One such cartoon by Bok is featured on Abroad Sun in 1982 lampooning a Largo, Fla. the back cover of this issue of the Silha The fi nal panel, moderated by city council candidate who had been Bulletin. The fi nal session was followed Giovanna Dell’Orto, an associate seen “stacking dimes” in his driveway by by closing remarks by Mazer and Bagley, professor at the Hubbard School of a Sun reporter. Refl ecting the nature of who both thanked everyone for attending. Journalism and Mass Communication, the activity, Bok depicted the candidate Videos of the symposium are available also included both cartoonists and with the “typical” cartoon element of a on the Silha Center’s YouTube channel, scholars, who focused on the potential fl y coming out of his ear and included available online at: https://www.youtube. dangers and threats faced by satirists the caption, “Alright, alright. So I’m not com/channel/UCottXCU5zGzUSZjO- and cartoonists in the United States, and insane. I still have other qualifi cations for Djlzig/videos. Silha Center activities, around the world. Andrew Pritchard, an the Largo Commission.” Bok stated that including the symposium and annual Silha assistant professor at the Greenlee School the man killed himself later that week, Lecture, are made possible by a generous of Journalism and Mass Communication but that, even in such circumstances, endowment from the late Otto and Helen at Iowa State University, and Courtney cartoonists should not stop drawing Silha. Carstens, the editor-in-chief of Veritas , cartoons simply because they are a student-run magazine at Iowa State, “offensive,” adding that “whatever SCOTT M EMMEL each discussed aspects of their research happens is whatever happens.” He then SILHA BULLETIN E DITOR paper looking at the “pros and cons of turned to threats to free speech in the immense protection for religious speech United States, including Facebook’s 51 Silha Center for the Study of Media Ethics and Law Non-profi t Org. Hubbard School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID Twin Cities, MN 111 Murphy Hall Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625-3421

This cartoon by Chip Bok, an editorial cartoonist with Creators Syndicate, was one of many drawn by cartoonists attending “The State of Our Satirical Union,” a symposium held April 2021, 2018 in Minneapolis. The event was cosponsored by the Silha Center for the Study of Media Ethics and Law, the Association of American Editorial Cartoonists, the Minnesota Journalism Center, and the Hubbard School of Journalism and Mass Communication. For more on the symposium, see page 48 of this issue of the Silha Bulletin.