AGENDA THE SOCIETY OF PROFESSIONAL JOURNALISTS EXECUTIVE COMMITTEE TIME: 9 A.M. DATE: JAN. 16, 2010 ALBUQUERQUE, N.M.

1. Call to Order – Smith

2. Roll Call – Lunsford a. Smith c. Ralston e. Lunsford g. Aeikens b. Limor d. Albarado f. McCloskey

3. Report of the SPJ President – Smith

4. Report of the SDX Foundation President – Geimann

5. Staff Report – Skeel [page 1]

6. Approve Executive Committee Meeting Minutes a. June 27, 2009, Minneapolis [page 6] b. Sept. 29, 2009, Conference Call [page 11] c. Nov. 18, 2009, Conference Call [page 12]

7. Discussion Items a. Update on 2010 convention (including sponsorship update) – Vachon b. Update on 2011 convention with RTDNA – Vachon c. Discussion on 2012 convention – Vachon d. Spring Conferences – Smith e. High School journalists as members – Ralston f. Grant/outside funding committee – Skeel g. Updated History Book – Leger h. Harper Memorial event – Skeel i. Annual Report/Star Rankings – Skeel

8. New Business

9. Adjournment

AGENDA SOCIETY OF PROFESSIONAL JOURNALISTS BOARD OF DIRECTORS MEETING TIME: 4 P.M. EST – CONFERENCE CALL MARCH 4, 2010

1. Call to Order – Smith

2. Roll Call – Lunsford a. Smith g. Koretzky m. Eckert s. Cooper b. Limor h. Puckey n. Rowell t. Ensslin c. Lunsford i. Seaman o. Steele u. Neuts d. Ralston j. Kopen Katcef p. Hansen v. Cleesattle e. Aeikens k. Daniels q. Theisen w. Albarado f. McCloskey l. Turmelle r. Edgell

3. Discussion items a. Membership growth and plans – Smith b. Budget – Smith/Skeel c. FCC – Smith d. Regional conferences – Smith e. Shield Law – Smith f. Ethics town hall meetings – Smith g. Ethics book– Smith h. Model bylaws – Smith i. SDX Monument cleanup – Smith/Vachon j. KnowledgeWebb partnership – Skeel

4. Adjournment

Page 1 of 1

AGENDA EXECUTIVE COMMITTEE SOCIETY OF PROFESSIONAL JOURNALISTS 9 A.M. JULY 24, 2010 WORLD WAR II MUSEUM, NEW ORLEANS

1. Call to Order – Smith

2. Roll Call – Lunsford a. Smith c. Lunsford e. Aeikens g. McCloskey b. Limor d. Ralston f. Albarado

3. Approve Executive Committee Meeting Minutes a. January 16, 2010, Albuquerque, N. M. [page 1] b. May 26, 2010, Conference Call [page 5]

4. Report of the SPJ President – Smith

5. Staff Report – Skeel [page 7]

6. Discussion Items a. 2010 Convention – Vachon b. 2011 Convention – Vachon c. 2012 Convention – Vachon

7. Qatar chapter approval – Smith [page 11]

8. Old/New Business a. Partnership with Bob Schapiro – Smith [page 14] b. Dot News – Skeel [page 21] c. Update on FCC – Smith d. Model Bylaws – Smith [page 37] e. Helen Thomas Lifetime Achievement Award – Smith [page 53] f. History book – Aeikens/Smith [page 62]

9. Awards [packet was shipped 6.23.10] a. D.L. Eshelmen Outstanding Campus Adviser b. Distinguished Teaching in Journalism c. Ethics in Journalism d. Fellows of the Society e. First Amendment f. Helen Thomas Lifetime Achievement g. Historic Site in Journalism h. Howard S. Dubin Outstanding Pro Member i. Julie Galvan Outstanding Graduate in Journalism j. Regional Director of the Year k. Sunshine l. Wells Key – officers only

10. Adjournment

AGENDA SOCIETY OF PROFESSIONAL JOURNALISTS BOARD OF DIRECTORS MEETING TIME: 9 A.M. – LOCATION: MELROSE 3 OCT. 3, 2010 PLANET HOLLYWOOD, LAS VEGAS

1. Call to Order – Smith

2. Roll Call – Lunsford a. K. Smith i. McCloskey q. Theisen b. Limor j. Puckey r. Edgell c. Lunsford k. Seaman s. Cooper d. Ralston l. Turmelle t. Ensslin e. Aeikens m. Eckert u. Neuts f. Kopen-Katcef n. Rowell v. Cleesattle g. George Daniels o. Steele w. Albarado h. Koretzky p. Hansen

3. Approval of Board Meeting Minutes – Smith a. April 17, 2010 [Page 1]

4. Report of the SPJ President – Smith

5. Report of the SDX Foundation President – Geimann [Page 6]

6. Fall Report of the ACEJMC – Geimann [Page 9]

7. Staff Report – Skeel [Page 14]

8. Convention updates – Vachon a. 2010 b. 2011 c. 2012

9. Discussion Items a. Taking SPJ International – Smith b. Online radio program (blogtalkradio) – Smith c. Dues discounts/installment billing – Smith d. History Book – Aeikens [Page 20]

10. Old/New Business a. Bylaws/board’s role as judiciary body – Smith b. Professional star ranking system – Smith c. Campus star ranking system – Ralston [Page 24]

11. Committee Reports a. Education Caucus – Ralston [Page 29] b. Ethics – Schotz [Page 31] c. Freedom of Information – Cuillier [Page 36] d. Digital Media – Fosdal [Page 39] e. Freelance – Green [Page 42] f. Public Outreach – Bartlett [Page 44] g. Journalism Education – South [Page 46] h. Professional Development – Wenger [Page 48] i. Government Relations – Taylor [Page 49] j. Awards and Honors – Frizzi [Page 51] k. Membership – Fisher [Page 53] l. Diversity – Vongs [Page 54] m. International Journalism – Lovler [Page 57]

12. Adjournment

AGENDA MEETING OF THE BOARD OF DIRECTORS SIGMA DELTA CHI FOUNDATION TIME: 9:00A.M. – LOCATION: WILSHIRE A OCT. 4, 2010 PLANET HOLLYWOOD, LAS VEGAS

1. Call to Order – Geimann

2. Roll Call – Gratz a. Geimann j. Cross s. Levins b. Leger k. Evensen t. Limor c. Gratz l. Gillman u. Lunsford d. Dubin m. Jones v. Maynard e. Aeikens n. Ketter w. McKerral f. Augherton o. Kirtley x. Porter g. Brewer p. Kopen Katcef y. Pulliam h. Brown q. Leeds z. Ralston i. Carlson r. Lehrman aa. Smith

3. Approval of Board Meeting Minutes – Geimann a. April 18, 2010 [page 1]

4. Report of the SDX Foundation President – Geimann [page 6]

5. Report of the SPJ President – Smith

6. Report of the Treasurer – Dubin a. Update from finance committee meeting

7. Grants Committee Report – Leger

8. Staff Report – Skeel [page 9]

9. Development Report – Posavac [page 15]

10. Officer and Director Elections – Geimann [page 17]

11. Discussion items a. Ethics book update – Skeel b. History book project – Leger/Aeikens [page 18] c. Access Across America recap – Geimann [page 22]

12. Old/New Business

13. Adjourn

AGENDA SOCIETY OF PROFESSIONAL JOURNALISTS BOARD OF DIRECTORS MEETING TIME: 9 A.M. – LOCATION: SUNSET 2 WEDNESDAY, OCT. 6, 2010 PLANET HOLLYWOOD, LAS VEGAS

1. Call to Order – Limor

2. Roll Call – Secretary-Treasurer a. Limor h. Student Rep. n. Rowell s. Region 8 b. President-elect i. Student Rep. o. Region 4 Director c. Secretary- j. Daniels Director t. Region 9 Treasurer k. Campus p. Region 5 Director d. Ralston Adviser At- Director u. Neuts e. Smith Large q. Theisen v. Cleesattle f. At-Large l. Region 1 r. Region 7 w. Albarado Director Director Director g. McCloskey m. Eckert

2. Welcome and Introduction of New Board Members – Limor

3. Executive Committee Elections – Limor The Executive Committee is comprised of the President; President-Elect; Secretary- Treasurer; Vice President, Campus Chapter Affairs; Immediate Past President; and two at- large members elected by the board of directors.

4. Appointments to Sigma Delta Chi Foundation Board – Limor The SPJ President may appoint as many directors to the Sigma Delta Chi Foundation as he/she desires so long as the number of independently elected directors is one more than the SPJ appointments.

5. Ratification of Sigma Delta Chi Foundation Board elections – Limor The SPJ board ratifies the independently elected officers and directors of the Sigma Delta Chi Foundation.

6. Committee Update – Limor

7. Finance Committee Appointments – Limor The Finance Committee is comprised of the President; President-Elect; Secretary-Treasurer; Vice President, Campus Chapter Affairs; Immediate Past President; and two at-large members appointed by the President and ratified by the board of directors.

8. Old/New business a. Introduction of 2010 SPJ Diversity Leadership fellows. b. Conflict of Interest Policy/Board Information sheets – Skeel

9. Board Orientation – Laurie Babinski

Page 1 of 2 The orientation session focuses on each officer and director’s responsibilities and duties while serving as a member of the SPJ board of directors.

10. Adjournment

Page 2 of 2 ANNUAL REPORT TO THE BOARD OF DIRECTORS OF THE SOCIETY OF PROFESSIONAL JOURNALISTS AND THE SIGMA DELTA CHI FOUNDATION

BAKER HOSTETLER LLP

Bruce W. Sanford Bruce D. Brown Laurie A. Babinski

October 3-5, 2010 Las Vegas, Nevada I. OVERVIEW

The Society is the closest to seeing a federal statutory reporters’ privilege become reality as it has been in the past five years of lobbying, but one crucial issue remains unresolved – the definition of a journalist. Agreement is very near on this one outstanding question, but efforts have been complicated by Wikileaks’ release this summer of documents related to the war in Afghanistan. Members of Congress who have long been on the fence about whether to support a federal shield law have expressed concern that such a statute could potentially extend a privilege to those who simply “dump” sensitive documents onto the Internet, and are now seeking to exclude such websites from the definition of a journalist. The Society has been working with other media groups to come to a workable compromise with the concerned Senators, and we are hopeful that the issue will be resolved quickly.

At the same time, the Society has won significant legislative victories on other fronts. In late summer, President Obama signed into law a bill that prohibits the enforcement of foreign libel judgments against American journalists and authors that do not comport with the First Amendment or the Due Process Clause of the Constitution. Bruce Brown testified in 2009 and 2010 before House and Senate committees to explain the need for the legislation, and we assisted Senate staff in drafting an effective remedy. And two weeks ago, the Society’s efforts to remove a (b)(3) exemption to the Freedom of Information Act that would have allowed the SEC to withhold records related to investigations proved successful. The bill to remove the exemption passed swiftly through the Senate and the House and currently awaits the President’s signature.

Moving from Congress to the courts, the Society continues to represent the interests of its constituency in amicus briefs on a variety of issues from to open records. This memorandum addresses all of these activities.

II. LEGISLATION

A. Federal Shield Law

The 111th Congress started with two federal shield bills pending in the Senate and in the House, S. 448 and H.R. 985, both of which were called the Free Flow of Information Act. H.R. 985 quickly passed the House and was sent to the Senate Judiciary Committee for consideration. The controlling bill, however, is S. 448, which passed out of the Senate Judiciary Committee in December 2009. Although most of the provisions in S. 448 were worked out before its passage out of committee including the national security exemptions, the definition of a journalist – which has long been a sticking point – was left unresolved with the understanding that a revised definition would be agreed on before the bill was brought to the Senate floor.

Under the definition that is currently on the books – that is, the definition that passed out of committee – a “covered person” is someone whose “primary intent” is to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, and who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes on such matters by 1) conducting interviews; 2) making direct observation of events; or 3) collecting, reviewing, or

2 analyzing original writings, statements, and communications. The person invoking the shield must have this intent at the inception of the newsgathering process and must also have intended to disseminate the news or information they gather by print, broadcasting, or mechanical, photographic, or electronic, or other means. In other words, a “covered person” is a journalist who intends to “commit acts of journalism” and does so with the intent to publish it to a broader audience.

The definition has undergone some change in form, though little in substance, since the bill passed out of committee. Attempts to agree on this final point, however, were slowed when the Wikileaks scandal erupted in August. The Society and other groups expressed confidence that the national security exception would prevent Wikileaks from being able to protect its sources, but several Senators are adamant about drafting an amendment to the bill that would make clear that the bill’s protections do not extend to websites like Wikileaks which “dump” sensitive documents onto the Internet without any “traditional” reporting. We are happy to provide additional information on the status of negotiations as they evolve.

In addition to resolving the definitional issue, a handful of Republican cloture votes are still needed before the bill can go to the floor. There will only be a few more opportunities to pass a bill this Congress – with the midterm elections looming, the hope is to resolve the outstanding issues and bring the bill up during the lame duck session before the close of the year. If the bill does not pass before the 111th Congress is gaveled out, we will have to start anew in the 112th Congress.

B. Open Government

Open government advocates scored a victory in late September when Congress passed a bill removing Section 929I from the Dodd-Frank Wall Street Reform and Consumer Protection Act. The President is poised to sign the bill into law. Advocates focused their attention on Section 929I, which allows the SEC to withhold records or information provided to the Commission, and any conclusions “based upon or derived from” such information, in furtherance of the SEC’s “regulatory or oversight activities” immediately after its passage.

On September 16, just before Congress passed the “fix” to Section 929I, Rick Blum testified before the House Committee on Financial Services on behalf of the Sunshine in Government Initiative to express concern over Section 929I, which he referred to as “just another” (b)(3) exemption. Throughout his testimony, he stressed journalists’ concerns that the language in Sec. 929I is broader than the SEC itself said that it needed to protect the investigatory information covered by the exemption. Mr. Blum also called for Congress to address not only the overbroad language of Sec. 929I but also the larger issue of (b)(3) exemptions under FOIA, an area which has long concerned the Society and the Sunshine in Government Initiative.

With Section 929I set for repeal, now is an opportune time for the Society and the Sunshine in Government Initiative to again focus on the proliferation of unnecessary (b)(3) exemptions and measures that Congress can take to highlight, if not reduce, their use.

3 C. Libel Tourism

On August 10, 2010, the Society scored a significant legislative victory when President Obama signed into law the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (the “SPEECH Act”), a bill passed by Congress in July 2010 aimed at curbing the problem of “libel tourism.” Libel tourism describes the phenomenon of foreign plaintiffs who file defamation suits overseas against U.S. authors or journalists after seeking out a foreign jurisdiction where a lower legal standard allows for easier recovery. After securing a judgment abroad, the foreign libel plaintiff then often tries to enforce the judgment in a U.S. court, effectively allowing the recovery of damages against a U.S. citizen while bypassing the protections afforded by the First Amendment.

The SPEECH Act attempts to stem the tide of libel tourism by protecting U.S. journalists and authors from libel tourism overseas by barring enforcement in U.S. courts of any foreign libel judgment that does not comport with both the First Amendment and the Due Process Clause of the Constitution. The Act also allows U.S. citizens sued for defamation overseas to bring an action for a declaratory judgment that the foreign court’s award of relief is repugnant to the Constitution. To help ensure that U.S. courts can bring a foreign libel plaintiff within their jurisdictional reach, the Act contains a nationwide service-of-process provision that allows a U.S. court to exercise personal jurisdiction over a foreign libel plaintiff to the fullest extent of the Due Process Clause notwithstanding any more limiting state long-arm statute. To ensure consistency in application of the law, the Act further provides for removal of any enforcement action from state to federal court. Finally, as a mechanism to deter potential libel tourists, the Act permits a U.S. court to award attorneys’ fees to a U.S. citizen (but not a foreign libel plaintiff) who prevails in an enforcement action.

Libel tourism drew the attention of legislators following the resolution of a 2004 lawsuit filed in the United Kingdom against American author Rachel Ehrenfeld by Saudi businessman for statements in her book “Funding Evil: How Terrorism is Financed and How to Stop It” that alleged bin Mahfouz had funded organizations with terrorist ties. The English courts permitted the suit to proceed despite the fact that only 23 copies of Ehrenfeld’s book made their way to the U.K. through an online distributor. The U.K.’s plaintiff-friendly defamation laws resulted in a $225,000 judgment against Ehrenfeld, who chose not to defend herself in . Instead, Ehrenfeld filed suit in federal court in New York seeking to have the foreign judgment declared unenforceable. The New York court, however, refused to exercise jurisdiction over bin Mahfouz, who had no ties to the U.S. and had not attempted to enforce the judgment.

In response to Ehrenfeld’s plight, the New York legislature in 2008 passed the Libel Terrorism Protection Act. The legislatures in Illinois, Maryland, California, Florida, and Utah soon followed with their own libel tourism statutes, but the SPEECH Act is the first federal statute to combat the problem of libel tourism. Bruce Brown testified before both the Senate and House Judiciary Committees in support of the legislation, and we worked closely with Senate staff to ensure that the law contained the strongest possible language to protect journalists. After the bill became law, a Senate staffer told Mr. Brown that other than the efforts of Ms. Ehrenfeld herself, his work on behalf of the Society was the most important factor in making the new protections possible.

4 D. Future of Journalism

The troubles of journalism industry, specifically the future of newspapers in the Internet age, have caught the interest not only of Congress, but also of government agencies such as the Federal Trade Commission. In December 2009, March 2010, and June 2010, the FTC held workshops to discuss a range of issues related to the future of newspapers. The workshops explored a wide range of topics including: 1) the economics of journalism on the Internet and in more traditional media; 2) how the business models of different types of news organizations may evolve in response to the challenges associated with the Internet; 3) innovative forms of journalism that have emerged on the Internet; 4) how competition may evolve in markets for journalism and advertising; and 5) changes in governmental policies that have been proposed as ways to support journalism.

As part of these workshops, Bruce Sanford appeared on an FTC panel titled “Current Copyright Issues In Journalism,” which examined whether changes to copyright law would be a viable solution to the problem of news aggregators who make money off of the original reporting of news organizations. Mr. Sanford suggested that changing copyright laws at the time was not the way to decrease unauthorized use of content, but instead called on the FTC to determine the extent of unauthorized use of news content and make legislative proposals including the federalization of the “hot news” doctrine. Over the past year, Mr. Brown has also participated in a number of panels on the future of journalism across the country, including discussions at Yale, Stanford and Harvard law schools. He will next speak on the subject at Columbia Law School in late October. Mr. Sanford and Mr. Brown, along with Laurie Babinski, continue to publish on potential legal solutions to the industry’s issues. In November, Mr. Sanford and Mr. Brown published an article titled “Google and the Copyright Wars” in the Wall Street Journal. In December, all three published an article titled “Saving Journalism with Copyright Reform and the Doctrine of Hot News” in Communications Lawyer magazine.

The latest round of debates surrounding the future of journalism continues to present a great opportunity for the Society weigh in on both the issues and solutions associated with the vexing problems facing newspapers.

III. AMICUS ACTIVITIES

A. Decisions within the past 12 months

U.S. v. Stevens, 130 S. Ct. 1577 (2010).

In July 2009, the Society joined an amicus brief drafted by the Reporters Committee for Freedom of the Press in U.S. v. Stevens, a case pending before the U.S. Supreme Court. The case involved a statute that criminalizes possessing “depiction[s] of animal cruelty.” The government asked the Supreme Court to find – for the first time in more than 25 years – that an entire category of speech is unprotected by the First Amendment.

Stevens was an important case with distasteful facts. The federal law at issue, 18 U.S.C.§ 48, provided for up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign

5 commerce for commercial gain.” Robert Stevens, the first defendant to go to trial under the 10- year-old statue, was prosecuted for distributing three documentaries that include footage of dog fighting. Stevens was sentenced to 37 months in prison, but the Third Circuit sitting en banc overturned the conviction on the grounds that the depictions were protected speech, the statute did not serve a compelling interest, and the restriction was not narrowly tailored.

On April 20, the Supreme Court affirmed the decision of the Third Circuit in an 8-1 decision written by Chief Justice Roberts. The Court held that the federal statute was substantially overbroad because depictions of animal cruelty were not, “as a class, … categorically unprotected by the First Amendment.” The Court also found that the law was overbroad because “entirely lawful conduct may run afoul of the ban if those depictions later find their way” from a state where the conduct – for example, hunting – is lawful to a state where the same conduct was unlawful. The Court notably rejected the government’s attempt to reassure the justices that the law would only be applied in the most extreme circumstances, with Chief Justice Roberts writing that “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

Securities and Exchange Commission v. Pirate Investor, LLC, et al., 580 F.3d 233 (U.S. Court of Appeals for the Fourth Circuit 2009), certiorari denied, 130 S. Ct. 3506 (June 28, 2010).

The Society supported several amicus efforts in this matter over the last year. Since Baker Hostetler represented Pirate Investor and Stansberry, we did not make a recommendation to the Board during any stage of this matter. The case stemmed from an e-mail and report circulated to its subscribers by the financial newsletter publisher in 2002. The e-mail offered subscribers who chose to buy the report a tip about a publicly-traded company that was poised to receive news about an international agreement that would boost the price of its stock. The report, which sold for $1000, named the company and gave additional details about the deal. The agreement did not take place on the date predicted in both the e-mail and report, but was announced three weeks later. The SEC sued the publisher and author for violations of securities laws. Pirate and Stansberry argued that securities laws did not cover speech about stocks by someone not trading in the stock who owes no fiduciary or other duties to its subscribers or the public at large.

The SEC prevailed in the trial court, and the publisher and author appealed to the Fourth Circuit on grounds that the SEC’s jurisdiction cannot constitutionally reach the speech of an author and publisher. To hold otherwise, they argued, would permit an end-run around the First Amendment any time someone makes a statement about a stock that turns out not to be true. The Society first joined an amicus brief in 2008 in support of that appeal. In September 2009, the appellate court ruled that the securities laws do indeed extend to publishers who do nothing more than publish information about public companies, and that the traditional protections of the First Amendment do not apply under the securities laws even though liability is based on pure speech. In addition, the appellate court affirmed a permanent injunction, which amounted to an unconstitutional prior restraint. Pirate Investor and Stansberry then filed a petition for rehearing, which was supported by an amicus brief written by the Thomas Jefferson Center for the Protection of Free Expression and joined by the Society among others.

6 The Fourth Circuit denied the petition, and Pirate Investor and Stansberry filed a petition for certiorari asking the Supreme Court to hear the case. The petition was supported by another round of amicus briefs, one of which was spearheaded by the Society and drafted by the Supreme Court Clinic at Harvard Law School and O’Melveny & Myers in Washington. In June 2010, the Supreme Court denied certiorari.

Rangra v. Brown, 566 F.3d 515 (5th Cir. 2009), petition for rehearing en banc granted, 576 F.3d 531, dismissed as moot, 2009 U.S. App. LEXIS 28615.

In September 2009, the Society joined an amicus brief in Rangra v. Brown, an open meeting case pending in the Fifth Circuit that raised the issue of whether an open meetings law can be struck down as an unconstitutional violation of the First Amendment right to free speech for requiring a quorum of members of a public body to conduct conversations and official business in public. The case arose when two city council members in Texas were indicted under the Texas Open Meetings Act for acting as a quorum when they exchanged e-mails about a public contract. The charges against the council members were dismissed, but they filed a civil rights suit challenging the Texas Open Meetings Act as an impermissible content-based speech regulation.

The district court dismissed the claims and held that speech pursuant to official duties does not receive First Amendment protection. The Fifth Circuit reversed, finding that the criminal provisions of the law were unconstitutional restrictions on free speech. The Texas Attorney General sought and was granted an en banc rehearing in front of the full Fifth Circuit bench. On rehearing, the Fifth Circuit dismissed the case as moot, allowing the earlier determination regarding the unconstitutionality of the provisions to stand.

Department of Defense v. ACLU, No. 09-160, 130 S. Ct. 777 (U.S. Supreme Court), remanded, No. 04 Civ. 4151 (AKH), 2010 U.S. Dist. LEXIS 6524 (S.D.N.Y. January 26, 2010).

In 2006 and again in September 2009, the Society signed amicus briefs in support of the efforts of the American Civil Liberties Union to secure the release of photos depicting alleged abuses of detainees at Abu Ghraib prison. In September 2008, the Second Circuit ordered that the photos be released. At the time, the government said it would not seek review of that order at the Supreme Court. Indeed, in spring 2009, President Obama stated that he supported the release of the photos and that they would be provided to the public by May 28, 2009. Just before the deadline, however, President Obama shifted his position and stated publicly that high-ranking military officials advised that it would be catastrophic to release the photos. The government then went back to the Second Circuit for permission to seek certiorari in the Supreme Court. It received that permission and filed the petition for certiorari.

In the Second Circuit, the government asserted that Exemptions 6, 7(C), and 7(F) to the Freedom of Information Act barred the release of the photos. It limited its argument in the Supreme Court to Exemption 7(F), which protects against harm to individuals. In its petition for certiorari, the government specifically asked the Court to consider whether Exemption 7(F) exempts from mandatory disclosure photographic records concerning allegations of abuse and mistreatment of detainees in United States custody when the government has demonstrated that the disclosure of those photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan. This argument sought an

7 unprecedented expansion of the reading of the exemption which would withhold information related to the identification of “any individual” who may face harm. Moreover, it sought a declaration that “any individual” need not be any identifiable individual or group, but should include U.S. troops at home and abroad, any individuals in Iraq and Afghanistan, and U.S. citizens anywhere in general.

In October, around the time the high court was scheduled to hear the case, Congress adopted the Protected National Security Documents Act of 2009 as part of a measure funding the Department of Homeland Security. The Act overrides FOIA to protect from disclosure any images that were taken between September 11, 2001 and President Obama’s inauguration if those images “relate[] to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States,” so long as the Secretary of Defense certifies that disclosure “would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.” Citing the change in federal law, the Supreme Court then vacated the Second Circuit’s ruling.

Hammer v. Ashcroft, No. IP 01-558-C-T/G, 2006 U.S. Dist. LEXIS 9306 (U.S. District Court for the Southern District of Indiana, February 23, 2006), rev’d and remanded, 512 F.3d 961 (U.S. Court of Appeals for the 7th Circuit 2008), petition for rehearing granted, 2008 U.S. App. LEXIS 18436 (Aug. 19, 2008), decided, 570 F.3d 798 (June 25, 2009), petition denied, 130 S. Ct. 1735 (March 8, 2010).

In November, the Society joined an amicus brief in support of a petition for certiorari in the U.S. Supreme Court in Hammer v. Ashcroft, an access-to-information case challenging a Bureau of Prisons policy banning face-to-face interviews with federal death row inmates. David Paul Hammer, who is serving death sentence in the federal prison in Terre Haute, Indiana, filed a lawsuit in federal court attacking the BOP policy as an infringement on his First Amendment rights. The district court granted summary judgment for the government, but the Seventh Circuit agreed to hear Hammer’s appeal and appointed a well-known Chicago law firm to represent him.

In August 2008, the Society signed onto an amicus brief filed in the Seventh Circuit. That brief argued that the in-person interview ban was implemented for impermissible reasons – the BOP enacted the policy after Ed Bradley’s interview with Tim McVeigh on 60 Minutes, which sparked outrage from various high ranking government officials, including then Attorney General John Ashcroft, who criticized the media for giving McVeigh “a platform.” The BOP’s stance, however, was that the restrictions had nothing to do with criticism it received about the McVeigh interview and that they were put in place for “security reasons.” The amicus brief advised the Seventh Circuit to reject the BOP’s justifications and allow face-to-face interviews of death row inmates. The Seventh Circuit agreed, reversing and remanding the decision. The government then filed a petition for rehearing en banc, pursuant to which the Seventh Circuit held that the ban on face-to-face meetings between reporters and prisoners did not violate the First or Fifth Amendments or the Equal Protection Clause because of differences in security needs and alternative means of communication that existed.

Hammer then petitioned the Supreme Court for certiorari and the Society once again stepped it to lend its support. The amicus brief reflecting the Society’s position framed the issue as an issue

8 critical to the press: whether the federal government may prohibit death row inmates from talking to the press about the abuse, mistreatment, and actions of other inmates; whether it may prohibit all in-person interviews with death row inmates; and whether such restrictions may be valid even where the officials responsible for the rules admitted they were motivated by a desire to keep disfavored viewpoints from reaching the public. The Court declined to hear the case in March 2010.

FP Publishing Group v. Toffoloni, petition denied, No. 09-625, 130 S. Ct. 1689 (March 1, 2010).

In December, the Society joined an amicus brief in support of LFP Publishing Group, the owner of Hustler Magazine, which filed a petition for certiorari in the Supreme Court the month before in defense of its decision to publish 20-year-old nude photos of Nancy Benoit, the former model and professional wrestler who was killed by her husband, wrestler Chris Benoit, in June 2007. Nancy Benoit’s family had sued Hustler arguing that the photos invaded her right of publicity, but Hustler argued that it could not be held liable because the photos were newsworthy. The federal trial court agreed with Hustler and dismissed the suit, but Benoit’s family appealed and the 11th Circuit reinstated the claim.

In holding that the photos were used for commercial gain and were not newsworthy, the 11th Circuit rendered a decision that reflected its confusion between the right of privacy, which survives death, and the right of publicity, which does not. The court also found that nude photos in general were not newsworthy while failing to take into account the circumstances surrounding Benoit’s death and Hustler’s independent editorial judgment. The amicus brief urged the Court to consider the First Amendment implications of the Eleventh Circuit’s ruling in the case, highlighting the broad definition to the right of publicity the Eleventh Circuit had applied, and pointed out that such a definition could have a chilling effect on reporting by allowing posthumous claims for all invasion of privacy torts. In March, the Supreme Court denied certiorari.

Doe v. Reed, 130 S. Ct. 2811 (June 24, 2010).

In March, the Society joined an amicus brief Doe v. Reed, a case involving the Washington state public records law which sought clarification as to whether the act of signing a referendum petition under Washington’s Public Records Act should be treated as pure speech under the First Amendment, a finding that would prevent the disclosure of the signatories’ names under the open records law. The individuals involved argued that signing a referendum is the act of a private citizen and should receive First Amendment protection as political speech and trigger privacy rights, which means that their names could not be disclosed under the open records law. The amicus brief argued that the signing of a referendum in this particular case is not the act of a private citizen, but rather one of a governmental actor because the citizens involved were engaged in the legislative process (a referendum, by definition, is a tool of direct governance by the people).

The Supreme Court heard oral arguments in the case in April 2010. In an 8-1 decision affirming the Ninth Circuit, the Court concluded that signatories of referendum petitions generally do not have a constitutional right – i.e., a right that would trump state open government laws – to keep their identities private. However, the Court held that courts should consider in any given case

9 whether a particular referendum presents sufficiently unique circumstances that anonymity is required. The Court remanded to the lower courts the question of whether disclosure was proper for the specific petition at issue which involved a referendum on gay rights.

Shepherdstown Observer Inc. v. Maghan, No. 35446 (West Virginia Supreme Court), decided September 23, 2010.

In April, the Society joined an amicus brief in support of a local West Virginia newspaper, the Shepherdstown Observer, involving the newspaper’s request for the signatures of those who signed state petitions under the West Virginia Freedom of Information Act. The case arose after a citizens’ group organized a petition drive and gathered signatures to force a ballot referendum on a non-traditional zoning ordinance. The group’s filing procedures complied with a West Virginia law which provides that a governing body of a county can replace a nontraditional zoning ordinance with a traditional zoning ordinance with a petition signed by at least 10 percent of voters in a certain district.

The Observer’s request for copies of all certification documents for the then-proposed zoning referendum, including the petition and the signatures thereon, was denied by an assistant prosecuting attorney for Jefferson County. The attorney said that the referendum petition could not be disclosed because the voter signatures contained in the petition were not public records and therefore not subject to the Act. The attorney provided a definition of “public record” under the state law which provided that “any writing containing information in relation to the conduct of the public’s business, prepared, owned and retained by a public body” would be public, and stated that the petition was not “prepared” by a public body.

The Observer’s subsequent civil complaint in state trial court was dismissed on the grounds that the petition was not a public record subject to disclosure under the state law. The circuit court concluded that the Act only requires disclosure of writings “prepared, owned and retained by a public body,” and because the petition (and signatures thereon) sought by the Observer was not prepared by the Clerk’s office, it was not a public record within the meaning of the Act. It also said that the First Amendment right to anonymity guaranteed the signatories of the petition secrecy and that disclosure would have a chilling effect on citizens’ ability to petition the government.

The state supreme court reversed, holding that under the Act a referendum petition filed with a public body is a public record that must be disclosed. There was “no question” in the court’s mind that the records at issue were subject to disclosure. The court also found no merit the county attorney’s argument that disclosure violated the First Amendment. Looking to the Supreme Court’s recent decision in Doe v. Reed, the court concluded that the trial court’s First Amendment analysis was also improper because “public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.” The court also trumpeted the importance of open government, stating that “disclosure of a referendum petition under the West Virginia Freedom of Information Act serves a vital function in protecting the integrity of the electoral process and in promoting transparency and accountability in the ‘conduct of the public’s business.” The case was remanded for further review.

10 Noonan v. Staples, No, 09-11605-WGY, 2010 U.S. Dist. LEXIS 33810 (U.S. District Court for the District of Massachusetts 2010) (“Noonan II”).

In April 2010, the Society once again provided its support for an amicus effort in Noonan v. Staples, a libel case pending in Massachusetts that raised an unusual legal question. The plaintiff, Noonan, claimed that one of the defendants, a Staples employee, announced during an internal conference call with regional vice presidents that Noonan, who was accused of stealing from Staples, had never denied the accusation. He also claimed that another employee subsequently wrote an e-mail highlighting the fact that he had not denied the accusation. Governing the dispute was a century old Massachusetts statute which provided that truth is a complete defense to a libel claim “unless actual malice is proved.”

In March 2009, the Society first joined an amicus brief in the case when it was pending in the First Circuit arguing that the statute was unconstitutional. The First Circuit held in a February 2009 opinion that in certain circumstances a party may be liable for publishing an indisputably true statement that discredits the plaintiff if the plaintiff proves that the defendant was motivated by “ill will” or “malevolent intent.” The amicus brief in Noonan II, this time submitted to the trial court, made a similar argument to the Noonan I brief.

In April 2010, the Massachusetts district court rendered a judgment on the pleadings in Noonan II. The court considered whether the statements at issue in the first decision were made with malice under Massachusetts statute. The court held that defendants were entitled to judgment on the pleadings unless the statements at issue were made with malice. The court found that the existence of malice was at least plausible given that plaintiff had caused the defendants a great deal of expense and some personal inconvenience. The court declined to address the constitutionality of the law in its opinion, stating that it would discuss the topic in a separate memorandum.

Lake v. City of Phoenix, 222 Ariz. 547 (Arizona Supreme Court 2009).

In July 2009, the Society joined an amicus brief which sought clarification as to whether metadata, which is the invisible data embedded into documents when they are created or modified (such as the name of the author, “last modified” date, etc.), falls under the definition of a public record in Arizona. The case began when a former Phoenix police officer filed public records requests to obtain evidence to use in his labor dispute with the police department. In addition to the documents themselves, he requested the metadata attached to the documents. The lower court refused to compel the production of the metadata. The former officer appealed to the Arizona Court of Appeals, which ruled 2-1 that metadata does not constitute a public record. The former officer appealed this decision to the Arizona Supreme Court.

The First Amendment Coalition of Arizona filed an amicus brief in the officer’s appeal to the Arizona Supreme Court. In October, the Arizona Supreme Court sitting en banc vacated the lower court ruling against disclosure. The high court held that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws. The court said it would be

11 “illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.”

The v. Canterbury, 688 S.E.2d 317 (Supreme Court of Appeals of West Virginia 2009).

In April 2009, the Society joined an amicus brief drafted by the Reporters Committee for Freedom of the Press in support of The Associated Press, which requested access to e-mail messages between a state supreme court justice and the CEO of Massey Energy. The e-mail messages involved a $50 million verdict against Massey Energy under appeal to the West Virginia Supreme Court. During the time the appeal was under consideration, the justice (who then lost his re-election campaign) and the CEO of Massey Energy went to Monte Carlo together and e-mailed back and forth. That justice later voted with the majority in a 3-2 decision overturning the verdict. Photos of the trip surfaced, and the next time the same case reached the West Virginia Supreme Court, the justice recused himself. The AP won access to about half of the e-mail messages it was seeking but the other messages were withheld because the trial court determined that they weren’t public records. The AP appealed the case to the state Supreme Court seeking access to all of the e-mail messages.

In November 2009, the Supreme Court of Appeals affirmed the part of the circuit court’s order which denied disclosure of eight of the e-mails. It reversed that part of the order which required disclosure of the remaining five e-mails. It made four key conclusions: 1) where disclosure is sought under the West Virginia public records law, a trial court may sua sponte order the production of the records withheld and hold an in camera review of the records in order to decide whether any of the records are subject to disclosure; 2) the definition of a “writing” contained in the public records law includes an e-mail communication; 3) a “public record” under the law is defined as “includ[ing] any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body”; and 4) a trial court’s determination of whether personal e-mail communication by a public official or employee is a public record subject to disclosure under the law is restricted to an analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record. The court remanded the case to the trial court.

Wilson v. McConnell, 586 F.3d 171 (U.S. Court of Appeals for the Second Circuit 2009).

In January 2008, the Society agreed to join an amicus brief in this well-known case, which arose when the CIA redacted the pre-2002 dates that Valerie Plame-Wilson served in the CIA from her memoir, Fair Game, that was published by Simon & Schuster. Simon & Schuster and Wilson sued the CIA in federal court for the redaction, claiming that the information had already become public through an unclassified letter the agency sent to Wilson, the text of which was subsequently published in the Congressional Record. (The letter is also available on the Internet.) The district court held that the redaction was proper because the information was properly classified and had never been declassified or “officially acknowledged,” which would constitute a waiver of classification, by the CIA.

12 The practical effect of the lower court’s decision was that any member of the public could legally access and publish those dates except for Wilson. On appeal, Wilson and Simon & Schuster argued that the district court was wrong in its determination that the information had not been “officially acknowledged.” Rather than focus on that discrete issue, the amicus brief argued more broadly on First Amendment grounds that the rationale for censoring Wilson was undermined when the information became public. It further argued that the district court should have required the CIA to demonstrate that the interest in imposing a prior restraint on the release of information already in the public domain outweighed the First Amendment rights of Wilson and Simon & Schuster. Failure to require such a showing, the brief implied, would allow for the possibility that unwarranted classification decisions could be used to hide information or perhaps censor government critics, all without appropriate level of judicial review.

In November 2009, the Second Circuit affirmed the lower court’s ruling and said that there had been no First Amendment violation. The court was unable to find support in the record for Wilson’s official disclosure argument because it was Wilson, as opposed to the Agency itself, that made the documents available to the public. Moreover, the court said that Wilson could not make an argument that the documents were already in the public domain because “public disclosure does not deprive information of classified status, and the Agency has demonstrated good reason for adhering to its classification decision.”

B. Pending cases

Snyder v. Phelps, No. 08-1026 (U.S. Supreme Court).

In July 2010, the Society joined an amicus brief in Snyder v. Phelps, a case with very unpleasant facts, awaiting oral argument in the Supreme Court. The case was brought by Mr. Snyder, the father of a fallen Marine killed in Iraq, against Mr. Phelps, a pastor of the Westboro Baptist Church, a fundamentalist Christian institution which holds the belief that God kills soldiers in Iraq and Afghanistan as punishment for America’s tolerance of homosexuality and for the presence of gays in the U.S. military. The church staged a protest near Mr. Snyder’s son’s funeral where they held signs that read “God hates fags” and “thank God for dead soldiers.”

The Snyder family won a verdict before a jury in federal trial court for invasion of privacy and intentional infliction of emotional distress, but that was overturned by the Fourth Circuit on the grounds that the signs were protected speech. The Church’s speech, no matter how offensive, was shielded under the First Amendment as speech pertaining to a national debate. In addition, the appeals court said that the signs could not reasonably be construed as referring directly to Mr. Snyder and his son and were “imaginative and hyperbolic rhetoric intended to spark debate about issues with which the defendants are concerned.”

The Supreme Court will consider a significant question of First Amendment law: whether a private plaintiff may recover for intrusion into seclusion and intentional infliction of emotional distress when the harm is based upon the publication of controversial speech about matters of public concern. The amicus brief submitted to the Court argued that a victory for Mr. Snyder threatens to expose the press to liability beyond defamation whenever it covers matters of public interest related to private and public figures. The case has been fully briefed and is scheduled for oral argument on October 6, 2010.

13 Milner v. Navy, No. 09-1163 (U.S. Supreme Court).

In September 2010, the Society joined an amicus brief in Milner v. Navy, a Freedom of Information Act case involving the plaintiff’s request for information about weapons stored on a Navy-run island in Washington state. During 2003 and 2004, the plaintiff made two document requests under FOIA for records related to activities on Indian Island, a small island near his home that is used to store and transship munitions, weapons, weapon components, and explosives for the Navy, U.S. Joint Forces, Department of Homeland Security, and other federal agencies and allied forces. He requested: 1) all documents on file regarding Explosive Safety Quantity Distance (“ESQD”) arcs or explosive handling zones at the ammunition depot at Indian Island; 2) all maps and diagrams of the ammunition depot at Indian Island which show ESQD arcs or explosive handling zones; and 3) documents regarding any safety instructions or operating procedures for Navy or civilian maritime traffic within or near the explosive handling zones or ESQD arcs at the ammunition depot at Indian Island.

The Navy complied with most of the requests; however, it withheld some of the documents on the grounds that disclosure could threaten the security of Indian Island and the surrounding community. The plaintiff filed suit under FOIA to compel disclosure of the remaining documents. Navy personnel filed affidavits explaining why disclosure would jeopardize safety. The federal trial court granted summary judgment to the Navy and the Ninth Circuit affirmed, focusing on the standard for disclosure under Exemption 2 and holding that the exemption shields materials that are “predominantly internal” and that present a “risk of circumvention of agency regulation.” The amicus brief argued that some of the federal appeals courts’ interpretations of the text and legislative history of Exemption 2, including those the Ninth Circuit relied on, make it no more effective for disclosure than the statute it was designed to replace. It also argued that the Ninth Circuit’s expansion of Exemption 2 documents will hinder the public’s access to such records. The case has been fully briefed and is scheduled for oral argument on December 1, 2010.

Entertainment Merchants Association v. Schwarzenegger, No. 08-1448 (U.S. Supreme Court).

In September 2010, the Society joined an amicus brief in support of the Entertainment Merchants Association in a case that asks whether the Supreme Court should carve out a new exception to the First Amendment for violent speech. The case arose out of a challenge to a California law that bans the sale of violent video games to minors. The law, which was enacted in 2005, imposes $1,000 fines on stores that sell violent video games to people under 18. It defines violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”

The lower courts found in favor of the Entertainment Merchants Association, applying the highest level of constitutional scrutiny to strike down the law because violent speech is protected by the First Amendment. The Ninth Circuit affirmed, finding that the state had not established a causal relationship between violent video games and the harm to minors the state was seeking to prevent. Citing the Supreme Court’s decision last term in U.S. v. Stevens where the Court said

14 that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” the amicus brief argues that the Supreme Court should not create any new categories of unprotected speech, particularly when challenges to violent speech have been repeatedly rejected on First Amendment grounds. The case is fully briefed and is scheduled for oral argument on November 2, 2010.

Prison Legal News v. Executive Office for U.S. Attorneys, Nos. 09-1511 and 09-1531 (U.S. Court of Appeals for the Tenth Circuit).

In March 2010, the Society joined an amicus brief in a Freedom of Information Act case in support of Prison Legal News after a federal district court decision denied PLN access to trial exhibits that were once part of the court record but had been given back to the U.S. Attorney at the time of the request citing FOIA’s privacy exemptions. The amicus brief argued that it is inconsistent to classify the records as exempt from FOIA simply because they were handed back to the prosecutor. The brief asked that application of the FOIA exemptions take into account both the public and the press’s interest in transparent proceedings. It said that the lower court erred in applying only a FOIA analysis, as opposed to a test examining the records as judicial records, which would require an analysis under both the First Amendment and the common law. These tests would have required disclosure because the documents would have been non-sealed court records. The case is pending before the Tenth Circuit.

Denver Post v. Ritter (Colorado Supreme Court).

In August 2010, the Society joined an amicus brief in support the Denver Post which sought access to the cell phone records of Colorado’s governor under Colorado’s open records law. The case began two years ago when the Denver Post sought access under the Colorado Open Records Act to the personal cell phone records of Colorado’s governor, Bill Ritter. Ritter had two phones: a state-issued blackberry and a personal smart phone. Although personal cell phone records are not normally subject to disclosure under the CORA, as the Colorado Court of Appeals noted, “substantially all of the cellular phone calls that the Governor place[d] and receive[d], while he [wa]s acting as Governor, during regular business hours, [we]re placed or received on [his] personal cell phone.”

After the Governor’s office refused to disclose the personal cell phone records on the grounds that they were not public records, the newspaper sought access in state trial court. The trial court, however, held that the paper had not made a threshold showing that the governor “made, maintained, or kept” the records for use in official functions as required by the CORA. On appeal, the intermediate court affirmed that records were not subject to disclosure because the Post had not shown that the bills were “made” by the governor in his official capacity because the telephone service provider, not the governor, had generated the phone bills. In addition, the court said that there was no factual basis for a finding that the governor “maintained” the records because he simply used them to pay his phone bills. Finally, the court stated that the records were not “kept” because no official duties required the governor to keep personal cell phone bills. The Denver Post petitioned the state supreme court to hear the case.

The Colorado Supreme Court granted certiorari in May 2010. The amicus brief argued, among other things, that the records should be disclosed because it would set a dangerous precedent to

15 shield from disclosure records that reflect official business just because the records appear on personal phone bills. Oral argument is scheduled for this fall.

Maryland State Police v. NAACP (Maryland Court of Appeals).

In September 2010, the Society joined an amicus brief in support of the National Association for the Advancement of Colored People. The case arose out of the NAACP’s 2007 request for documents related to the investigation of racial profiling allegations against the Maryland Department of State Police. Among other things, they requested “[a]ll documents obtained or created in connection with any complaint of racial profiling, including but not limited to any complaint filed with or investigated by the MSP’s Department of Internal Affairs, including all complaints filed, all documents collected or created during the investigation of each complaint, and all documents reflecting the conclusion of each investigation.” The police denied the request on the grounds that the complaints were personnel records of an individual that are exempt from disclosure under the Maryland Public Information Act.

The Maryland trial court agreed with the police department in classifying the records as “personnel records,” which are exempt under the open records law, stating that they “only exist because they represent the complaints of a citizen personally directed to a State Trooper [because of] misconduct, of being intimidated by racial bias, as opposed to legitimate reasons for stopping our motorists.” Maryland’s intermediate court reversed, concluding that the investigatory materials sought were not “personnel” records exempt from disclosure under the law. It reasoned that the Maryland public records law should be liberally construed, and that since the records involved “events occurring while the trooper is on duty and engaged in public service,” as opposed to details about the trooper’s private life, they were subject to disclosure.

The state’s highest court has now agreed to determine whether the records requested are personnel records that are exempt under the state open-records law even when they are related to an officer’s public conduct. The amicus brief argues that public officials, including police officers, have diminished general privacy rights when performing official duties. Concluding otherwise, they argue, would limit the public’s constitutional right to comment freely on an officer’s official duties. The brief also argues that there is very little support for the proposition that reports of police investigations related to police misconduct must remain confidential because there is “no substantial privacy interest in records pertaining to a police officer’s public actions to which a citizen’s right of access is subordinated.” Finally, the brief states that exempting the records at issue would significantly hinder journalists’ ability to fulfill their constitutionally-protected “watchdog” function and to ensure that citizens can hold police officials accountable for their actions. The Maryland Court of Appeals will hear oral argument in November 2010.

Illinois v. McKinney, No. 78 C 5267 (Circuit Court for Cook County, Illinois).

In January 2010, the Society signed onto an amicus brief in support of a motion to quash a subpoena brought against student journalists in the criminal division of the Cook County trial court in Chicago. The issue before the court is whether the Illinois Reporter’s Privilege Act privileges the work product of the student journalist who investigated the circumstances behind a death row inmate’s conviction.

16 At the center of the dispute is the work product of student journalists Northwestern University’s School of Journalism, published on the Medill Innocence Project website, which raised doubts about the legitimacy of McKinney’s conviction and helped win a new court hearing for McKinney, who was convicted in the shooting death of a security guard. The state’s subpoena sought: 1) a full account and production of all documents obtained during their investigation; 2) all info regarding the reliability of the evidence and other information the petitioner had submitted to the court as proof of exoneration; and 3) all information that may show bias, interest, or motive on the part of the private investigator. In their response to the motion to the motion to quash, the prosecutors argued that the student’s work fell outside the Illinois shield law because the students were conducting a criminal investigation as opposed to performing protected journalistic activities.

The amicus brief, which was written by the Student Press Law Center (and for which attorneys from Baker Hostetler’s Chicago office served as local counsel), argues that the student journalists are protected under the Illinois shield law. It contends that Illinois Reporter’s Privilege Act plainly was intended to apply to protect reporters so they can contribute to the public debate over controversial issues and help inform the public. The brief rejected the state’s contention that one must be either a “journalist” or an “investigator,” because the distinction is artificial. In February 2010, lawyers for McKinney announced that they did not plan to focus on three witnesses that had been interviewed by the student journalists. Members of the Innocence Project anticipated that the decision would moot the subpoena served on the students for their notes, interview tapes and other newsgathering materials. But in June 2010, the court held another hearing during which the lawyers on both sides agreed in court that prosecutors could see any materials turned over by the student journalists to Karen Daniel, a lawyer from Northwestern Law School’s Center on Wrongful Convictions who is working on McKinney’s case. In September 2010, the court held another hearing during which Daniel revealed all of the items that the students had given to her in connection with the case. The status of the subpoena is thus unclear. The next hearing date has been set for November 2010.

17