Archive for the ‘Shield law’ Category


FOI Update: Federal appeals court rules against reporter’s privilege in James Risen case

A federal appeals court ruled July 19 that the First Amendment does not protect reporters from being forced to testify against confidential sources suspected of sharing unauthorized information with them, according to The New York Times.

This decision against the so-called reporter’s privilege came from the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The court ruled James Risen, an author and a national security reporter for the Times, must testify against a former Central Intelligence Agency official charged with giving him classified information. Risen said he’s willing to go prison to protect his source, according to the Times.

The information was not for an article in the Times. It was for a chapter in Risen’s 2006 book, “State of War,” that portrays efforts by the CIA. under the Clinton administration to trick Iranian scientists as “reckless and botched in a way that could have helped the Iranians gain accurate information,” The Times said.

Chief Judge William Byrd Traxler Jr. justified the ruling by writing: “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.”

The 118-page decision comes one week after Attorney General Eric Holder announced new guidelines for leak investigations to supposedly tighten the circumstances for obtaining reporter’s records.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, told the Times.

For more information about the case, read The New York Times article.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Shield law counterpoint: ‘I opposed the federal shield then, and I oppose it now’

Like any complicated issue, the proposed shield law has its pros and cons, and not every journalist agrees it’s the best approach to protecting press rights. The Society of Professional Journalists supports transparency and encourages a robust discussion to bring the best ideas to light. Mac McKerral, former SPJ president and an associate professor of journalism at Western Kentucky University, has opposed a federal shield for a decade and explains why in this column. Members are encouraged to continue the discussion, and from this discussion we can all be better informed and heard.

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FOI Daily Dose: More sunshine in Florida, NY shield law saves reporter from testifying

More Sunshine in the Sunshine State

There’s a little more sunshine in the Sunshine State after the 2013 legislative session passed an unusually high number of bills supported by Florida’s First Amendment Foundation (FAF). The FAF announced June 14 that the legislature passed 10 bills they supported, including a bill three years in the making that guarantees citizens the right to speak at government meetings and a transparency bill that requires Florida’s chief financial officer to post agency contacts online.

But the battle for more open government rages on as the legislature also passed 14 bills the FAF opposed and a dozen new exemptions limiting access to public records and open meetings. The running total of exemptions is now “well over 1,000,” according to the FAF.

New York shield law saves reporter from the stand

Thanks to the strong New York shield law, a New York Times freelancer will not be forced to testify about his personal observations involving the arrest of two Occupy Wall Street protesters.

Times freelancer Colin Moynihan wrote a blog post about the Jan. 10 arrest of two protesters who refused to leave Zuccotti Park. When the protesters said they were arrested without warning, city officials subpoenaed Moynihan to determine if the arrest was wrongful, according to the Reporters Committee for Freedom of the Press (RCFP). They claimed Moynihan was an “unbiased” witness, unlike other bystanders who would had an allegiance with either the police or the protesters.

But U.S. District Court Judge Jed S. Rakoff of New York ruled in an 8-page opinion on June 11 that a reporter’s personal observations are protected, like his notes, and a journalist cannot be forced to testify unless there are no alternative sources, according to RCFP.

Rakoff wrote: “Exempting firsthand observations from the scope of the reporter’s privilege would severely chill journalists from engaging in valuable firsthand reporting, such as performed by Moynihan here.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: Fox News reporter uses NY shield law to fend off subpoena; Dems and GOP criticize Snowden, NSA director speaks about leaks

New York shield law may fend off subpoena

A Fox News reporter is seeking protection from being forced to reveal her sources in Colorado court under New York’s shield law, according to the Reporters Committee for Freedom of the Press.

Fox News reporter Jana Winter was subpoenaed in January for a July 25 story she wrote about the Colorado movie theater massacre last summer involving two anonymous law enforcement sources.

A five-judge panel heard the case on June 12 when Winter’s attorney argued that she should not be forced to reveal her sources because even though she was reporting in Colorado, she lives and works in New York, and is therefore protected under New York’s shield law, which provides “absolute privilege for journalists’ confidential sources and reporting materials,” RCFP said.

The attorneys for the accused shooter James Holmes subpoenaed Winter, saying the law enforcement sources violated Holmes’ right to a fair trial by telling Winter about his notebook allegedly filled with drawings of the planned shooting.

With the help of a Colorado judge in January, the attorneys got Justice Larry Stephan of Manhattan to sign-off on a subpoena, and Winter’s attorney, Dori-Ann Hanswirth, filed papers to appeal Stephan’s decision to sign, according to Fox News.

Since Stephan signed, Winter had to attend a Colorado hearing in April to determine whether Holmes’s notebook qualifies as evidence in the case. Winter is scheduled to reappear before the court in August, and if the notebook is ruled a “substantial issue,” she will be ordered to reveal her sources lest she face time in jail for contempt of court, according to RCFP.

But the New York court’s decision from Wednesday’s hearing may save her if they rule that Stephan should not have signed-off on the subpoena in the first place. Hanswirth told RCFP she is hopeful the New York court will decide before August.

Snowden under fire from both sides of party lines, NSA director speaks out

National Security Agency whistle-blower Edward Snowden received criticism from Republicans and Democrats on June 13 after closed briefings with top administration officials, according to Yahoo News.

Two senior Republican lawmakers raised vague, yet alarming concerns that terrorists are already changing their tactics now that the NSA surveillance programs are unveiled.

Rep. Mike Rogers (R-Mich) said there are “changes we can already see being made by the folks who wish to do us harm, and our allies harm,” and Sen. Saxby Chambliss (R-Georgia) of the Senate Intelligence Committee said those “changes” might even cost American lives, according to Yahoo.

“His disclosures are ultimately going to lead to us being less safe in America because bad guys will be able to figure out a way around some of the methods we use, and it’s likely to cost lives down the road,” Chambliss said.

Rep. C.A. Dutch Ruppersberger (D-Maryland), the committee’s ranking Democrat, expressed concerns and questions about Snowden’s choice of a Hong Kong hideout since it’s part of China, “a country that’s cyberattacking us every single day.”
NSA director Gen. Keith Alexander also spoke out for the first time, sharing concerns about terrorists changing their plans in response to the leaks and saying he hopes to bolster support for the programs by declassifying “dozens of attacks” they have helped disrupt, according to the Los Angeles Times.

Alexander defended NSA’s intelligence programs as legal and necessary. But he did admit concern that junior employees like Snowden can access so many national security secrets and said that issue needs to be addressed.

“This individual was a system administrator with access to key parts of the network,” he said. “This is something we have to fix.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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FOI Daily Dose: NY shield law blocks casino tycoon’s subpoena against Wall Street Journal

Fans of the proposed federal shield law, the Free Flow of Information Act, will be happy to hear that the New York state shield law protected a Wall Street Journal reporter’s rights to keep her email messages and notes concealed from a casino tycoon in trial court last week.

Sheldon Adelson of Las Vegas Sands Corporation wanted records from Wall Street Journal reporter Kate O’Keeffe for an article she wrote in December detailing the wrongful termination of employee Steve Jacobs, former head of Adelson’s Macau casino operations in China.

Jacobs filed a wrongful termination suit in the Nevada court in 2010, and in June 2012, he issued a court filing saying Adelson had “personally approved” a prostitution strategy on Macau properties, according to the Wall Street Journal.

After O’Keeffe published Jacobs’ story, Adelson filed a libel lawsuit Feb. 22 against O’Keeffe. Adelson’s lawyers subpoenaed The Wall Street Journal’s parent company, News Corp., asking for all the newspaper’s communications and documents with Jacobs, as well as O’Keeffe’s phone records with Jacobs since Jan. 1, 2010.

Apparently, they thought O’Keeffe’s records could serve as evidence in Adelson’s defamation suit against Jacobs, according to the Reporters Committee for the Freedom of the Press.

But a four-page opinion by Judge Donna M. Mills on May 31 squashed the subpoena, saying Adelson failed to prove that the material he was seeking was highly relevant, critical to his claim and not obtainable through another reasonable method, which the state shield law requires.

Even so, the decision could be appealed to a higher New York state court, according to the Reporters Committee for the Freedom of the Press.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Help us make a splash with weekly FOI profiles

Are you a reporter who goes above and beyond expectations to hold your elected and government officials accountable? Or how about a citizens group working behind the scenes to make public records more accessible in underprivileged neighborhoods?

I’d like to talk to you. Here’s why:

I didn’t know much about press freedoms until I went to a small private college in Indiana where the campus newspaper was bound by chains of censorship. As a freshman I remember flipping through the paper and finding articles that read more like press releases.

It didn’t take a trained eye to notice. Most of my friends called the paper “a joke,” and bugged me about my decision to join the staff near the end of sophomore year.

Sure, I saw the newspaper’s flaws. But I couldn’t pull myself away from conversations with some of our college reporters who felt unable to print the words they desperately wanted to say, lest the black ink on their pages turn to black marks on their records or worse, an untimely end to the paper all together.

You see, at private universities that pay for their student newspapers’ operating costs (rent for the building, computers for production), administrators technically have the final say about what can and cannot be printed and whether the paper can even exist.

But during my four years at college, my campus newspaper made a turnaround. We started conversations that leveled a campus apartment complex and renovated an out-of-code athletic facility, and just to toot our own horn once more, we were named “Journalism Website of the Year” by the Society of Professional Journalists my senior year.

All of this to say that my time as a college reporter taught me a valuable lesson. When you’re on staff at one of these private schools, you’re privy to a perspective on the free press and the First Amendment that (in my humble opinion) most journalists don’t realize until they have their first run-in with the law some ten-years into their career.

Anyway, when you’re on staff, you realize you’re working under an administration that’s always going to try to tip the scales in their favor and stop you from finding flaws in the system. (Sound familiar?) Well, as a reporter, you either dive into the deep waters and learn to swim on your own, or you stay in the shallow end of the reporting pool and print press releases. There’s really no room to wade in the waters in-between.

Now that U.S. news outlets are waking up to a similar reality with the federal government, I can only wonder: Will we reporters learn to swim on our own, or will we stay in the shallow end, clinging to our petty arguments and political ideologies like water floaties?

I’d like to think the former, but a recent article by Glenn Greenwald in the Guardian has me wondering: What is it that we— journalism junkies, First Amendment freaks and open government advocates — are actually doing to lead the grassroots fights for the free press? Are we diving into the deep end of pool, and if we are, are we sinking or swimming?

Sure, we could have a federal shield law in our favor soon. Consider that the government tossing us a water-logged noodle. We’ll still have to kick to keep our heads above water, and Greenwald says that so far we’re not really holding our own weight. We’re not claiming control of the press on our own terms, that is. Instead, we’re waiting around for the government to pull us ashore, slide water wings up our slippery arms again and help us back into the shallow end where they can keep an eye on us.

So I’m out to prove Greenwald wrong — just like I was out to show my college classmates that a private school newspaper doesn’t have to be an administrative PR tool.

As SPJ members, journalists and free press advocates, let’s not grant our government the right to decide how we report the news. Let’s ban together and claim our freedoms for ourselves.

I know from firsthand experience that it is possible. And maybe you do, too.

The rest of this summer, I’m going to write weekly profiles about ordinary reporters and citizens making extraordinary strides for free information around the country. But I’m only one person with a limited number of contacts, so to make this blog successful, I’m going to need your help.

If you know anyone (or any group) diving in and creating grassroots change or kicking against the repressive norm, share their story with me at khackett@spj.org.

Let’s make a splash to show Greenwald and our government what American journalism is really about.

Cannon balls away!

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Greetings, FOI FYI readers

Attention open government advocpicates, First Amendment martyrs and citizens who support the free press as our fourth pillar of democracy.

My name is Kara Hackett, and I’m SPJ’s Pulliam/Kilgore Freedom of Information intern this summer.

I’ll be updating the FOI FYI blog with freedom of information-related news, and I’ll act as your guide through what may be one of the most turbulent seasons of FOI and press freedom history in recent memory.

For example: After the Justice Department subpoenaed more than  20 Associated Press phone lines and the FBI accused a Fox News reporter of criminal activity, Congress is reconsidering the Free Flow of Information Act. It’s a long-awaited federal shield law to protect reporters from intrusive government investigations that threaten to jail journalists and silence whistle-blowers. (See SPJ’s shield law info page here to learn more about how you can help the cause.)

So how will it all play out? What does the future look like for reporters or for anyone who witnesses federal wrongdoing and wants to influence change?

Stay tuned for the latest updates, and tell me what you think about the ongoing controversy.

I’m always interested in story ideas, suggestions, snide remarks and long chats about anything FOI-related (preferably over warm cups of coffee or chai tea), so contact me at khackett@spj.org. You can also find me on Twitter: @KaraHackett. Heck, we even have phones in our offices: 317-927-8000 ext. 213.

Oh, and I’ll be at our national headquarters in Indianapolis this summer, so I’ll meet you at any coffee shop in a 20-mile radius.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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Judge: Oregon shield law doesn’t cover blogger in defamation suit

In a defamation case, a judge for the U.S. District Court in Oregon has ruled that blogger Crystal Cox does not qualify as a journalist and does not get protection under the state’s shield law (ORS 44.510).

Seattle Weekly reported on the ruling Dec. 6.

State shield laws generally protect journalists from revealing sources, among other press protections. The Oregon statute protects any “person connected with, employed by or engaged in any medium of communication to the public” from being required to disclose any sources, unpublished information, papers, or work premises.

Cox, who represented herself, has been dealt a fine of $2.5 million for defamatory statements against Obsidian Finance Group. She claims the post in question was factual and invoked the Oregon shield law to protect her from revealing her source. However, one important exception to the shield law is in cases where defamation has been alleged and the defendant (Cox) uses the information as part of his or her defense.

In ruling that Cox is not covered by the shield law, the judge’s opinion cites the statute’s definition of a “medium of communication”: “published or broadcast in a newspaper, magazine, other printed periodical, or by radio,television, or motion picture.”

The opinion goes on to say:

…Although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the [shield] law.

However, the shield law (read it in the State Code here) offers this definition of “medium of communication” (emphasis added):

“Medium of communication” has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

The shield law in neighboring Washington would most likely have included Cox’s activities, according to that statute’s author, Bruce E. H. Johnson.

Cox plans to appeal, according to Seattle Weekly.

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FOI DAILY DOSE: NYT reporter may be forced to testify, whistleblowers ask Congress to help protect them

NYT reporter James Risen may not be able to quash subpoena

The third time may not be a charm for New York Times reporter James Risen, who may not be able to quash yet another subpoena from the Justice Department.

Risen filed a motion to quash a subpoena last week that would require him to testify in a criminal court case against ex-CIA agent Jeffrey Sterling, who is accused of leaking information to the reporter about a CIA operation to harm Iran’s nuclear program.

The information on the program was reportedly published in Risen’s 2006 book “State of War.”

A November 2010 ruling by U.S. District Judge Leonie Brinkema, which was made public Tuesday, said that the second subpoena against Risen would be quashed.

But Brinkema also said in the ruling that the longtime NYT reporter may have a tough time escaping a subpoena requiring him to testify in the case, according to the Reporters Committee for Freedom of the Press.

With a criminal trial like Sterling’s, Brinkema said in the ruling that the government may fulfill the legal standard needed to beat Risen’s motion to quash.

If the subpoena holds up, Risen – who has said he won’t reveal any confidential sources – could go to jail for refusing to testify.

 

Whistleblowers ask Congress for more protections

More than 30 whistleblowers signed an open letter promoting the need for President Obama and Congress to provide better whistleblower protections.

The Whistleblower Protection Enhancement Act of 2010 passed in both the House and the Senate, but was kept from becoming law by an anonymous hold that killed the bill at the end of the congressional session in Dec. 2010.

As of this week, it’s been six months since the bill – then in its third version – died in Congress.

The letter calls for Congress to quickly bring back a reincarnated version of the whistleblower protection bill and finally get it enacted into law, according to a Project on Government Oversight blog post.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email (mwatkins@spj.org) or connect with her on Twitter (@morganwatkins26).

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FOI DAILY DOSE: NYT reporter subpoenaed in CIA leak case and Wisconsin voting issues

NY TIMES REPORTER SUBPOENAED

A New York Times reporter and Pulitzer Prize-winner, James Risen, was subpoenaed by the U.S. Department of Justice for the trial of a suspected government whistleblower.

The accused leaker, Jeffrey Sterling, was indicted in December 2010 by a federal grand jury in Virginia. He is on trial for allegedly providing national defense information to Risen that appeared in a 2006 book called “State of War: The Secret History of the CIA and the Bush Administration.”

No federal law exists that exempts journalists from testifying. Risen’s lawyer told The Associated Press he would attempt to have a judge override the subpoena.

The Society of Professional Journalists has, with other journalism groups and news outlets, pushed for a federal shield law in recent years. The proposed Free Flow of Information Act would protect journalists like Risen from turning over confidential sources and notes in federal cases, though there would be certain national security exceptions.

WISCONSIN

In Wisconsin, Media Trackers investigated voting practices during the April 5 election using open records requests.

From a small sample of registrations in 15 wards, Media Trackers found evidence of incomplete voter registrations and possible voter registration abuses.

Providing proof of residence for voters was a major problem uncovered by the records request. In one instance, a voter provided an acceptance letter from the University of Minnesota as a proof of residence, which wouldn’t be deemed acceptable under the guidelines by the Wisconsin Government Accountability Board.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email (mwatkins@spj.org) or connect with her on Twitter (@morganwatkins26).

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