Archive for the ‘First Amendment’ Category


Progress on shield bill

Good news on the Shield Law front over the past week.

On Wednesday (7/17), a bipartisan group of senators led by New York Democrat Charles Schumer and South Carolina Republican Lindsay Graham said they’re going to push for a Shield Law that enshrines revisions to Justice Department policies announced by Attorney General Eric Holder on July 12.

Holder’s revisions to DOJ guidelines would make it harder for prosecutors to obtain journalists’ phone records without advance notice.

The bill Schumer, Lindsay and their colleagues announced Wednesday would go a bit further, ensuring that an impartial judge reviews government attempts to compel journalists and news agencies or third parties, such as phone companies and internet providers, before the Justice Department tries to obtain them.

“In many ways, our bill is tougher than the new [DOJ] guidelines,” Schumer said at a press conference, “but the DOJ has smartly proposed new ideas that would offer additional protections to journalists while carefully balancing that need against national security.”

Holder’s policy changes came after various journalism groups, including SPJ, voiced concerns about the Justice Department’s seizure of the AP’s phone records and a Fox News reporter’s emails. In a letter to Holder in June, SPJ expressed serious concerns that the DOJ wasn’t following its own guidelines for dealing with demands for information from journalists in the government’s investigations of leaks.

After meeting with and hearing from a slew of journalism groups, Holder surprised me and actually strengthened the guidelines.

Of particular note was the Attorney General’s statement of principles: “As an initial matter, it bears emphasis that it has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities.”

The policy changes Holder outlined seek to strike “the appropriate balance between two vital interests,” he said in his report to the President: “protecting the American people by pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability and an open society.”

Schumer, Lindsay and shield bill co-sponsors Sens. Amy Klobuchar, D-Minn., Richard Blumenthal, D-Conn., Jon Tester, D-Mont., Roy Blount, R-Mo., and Jonny Isakson, R-Ga., echoed that sentiment in Wednesday’s press conference announcing their intent to submit a “tougher bill” than either the previous bill that languished in the Senate three years ago or Holder’s revised guidelines.

“We’ve struck the right balance here between national security and protecting those who cover government,” Graham said after noting that “guidelines are not gonna cut it in the 21st century.

“We need a statute, a law that transcends administrations.”

Other societies wish they had the kind of reporting on government that Americans have, Graham said.

“We have it, we need to protect it, and quite frankly, cherish it,” he said.

Amen.

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On “fundamental” rights

During a local SPJ discussion about legislation affecting Arkansas’ Freedom of Information Act in March, state Sen. Eddie Joe Williams (R-Cabot) told the gathered journalists that FOI is not a right but a privilege.

Members of the audience objected to Williams’ characterization of FOI laws as a privilege. One young journalist said it disturbed her to hear freedom of information described as a privilege, “when it’s a tool that protects a variety of rights.”

But it seems Williams may have just been presaging the retrograde thinking evident in Monday’s U.S. Supreme Court ruling in McBurney v. Young, a case that challenged a provision of Virginia’s open-records law that limits access to citizens of that state.

Justice Samuel Alito, writing for a unanimous court, declared Virginia’s citizens-only restriction constitutional. Much of the opinion unfortunately focused on the commercial uses of public data, but it’s the section on the history of public records that offends open-government sensibilities.

Justice Alito and the court show skilled reasoning in noting that, although Virginia’s public-records law denies access to nonresidents, it does allow nonresidents access to its courts and other data in a way that provided most of the documents that had been sought by the two non-Virginian petitioners, Mark McBurney and Roger Hurlbert.

But when Justice Alito’s opinion veers into a peevish recounting of the blighted history of public-records jurisprudence, he and the court show how out of touch with Americans they are.

Does it really matter that “[m]ost founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them,” as Justice Alito wrote? Or that 19th century American cases tracked a similar philosophy?

He could just as easily have noted that American law once considered only white male property owners eligible to vote, and been just as relevant.

It’s alarming that Justice Alito asserts repeatedly that access to public records is not a “fundamental” right and that the country was just fine without FOI laws before the 1960s and will be fine without them in the future

Yes, Justice Alito and friends, the federal FOI law is only 47 years old and similar state laws about as recent. Open-government advocates fought hard-won battles to make local, state and federal governments more transparent to the citizens they serve.

Maybe “the Constitution itself is [not] a Freedom of Information Act,” as you wrote, but your opinion in McBurney gives regressive legislators safe cover to start closing access doors that are now open.

Only a half dozen states, including Arkansas, have public records laws that allow agencies to deny out-of-staters access to state and local documents. Let’s hope the number of states limiting access to residents remains at six after this ruling because the ability of Americans to figure out what is going on in their country – not just their state – will be severely diminished..

Without access to public records from many states, the Columbus Dispatch in 2009 could not have demonstrated that excessive secrecy exists at public universities nationwide because of abuse of the Family Education Rights and Privacy Act.

Without access to multiple jurisdictions, the Kansas City Star in 1997 might not have revealed lax safety measures nationwide that allowed college athletes to die.

Without access to a broad range of data, ProPublica’s Robin Fields in 2010 would have been hampered in showing wide disparities nationally in dialysis care.

That is scary, particularly at a time when the world is becoming more open. Americans don’t need more bunkering and secrecy. We are one nation, extremely mobile, and information is more portable and important than ever.

If we want to remain a beacon of freedom and justice, of progressive modernism, of advanced thinking, then we need to stand up against thinking that it’s OK to restrict or inhibit access to our governments, no matter where we live.

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Talking free speech from outside a ‘free-speech zone’

OK. I understand a university’s need to curb “disruptive behavior.” So I suppose it’s acceptable to tell someone using a bullhorn near classrooms that he should stop doing so.

But it’s outrageous and downright asinine to come back later and tell that same person he not only can’t stand on a taxpayer-funded sidewalk at a taxpayer-funded institution of higher education and talk to fellow students but has to get a permit to talk in a “free-speech zone.”

That’s how I feel after reading this report from the Student Press Law Center about an incident at Georgia Perimeter College in Atlanta.

If the report is accurate, the administration acted ham-handedly and with censorship in mind.

I’ll be investigating further in hopes there’s more to this than meets the eye.

My opinions are my own until I tell you otherwise.

– Sonny Albarado, free speech advocate.

 

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ATLANTA TO DROP CHARGES

Word from Atlanta Mayor Kasim Reed that charges will be dropped against two student journalists and an intern for Creative Loafing who were all arrested last November while photographing and recording Occupy Atlanta protests. I hope SPJ’s letter, along with letters from other journalism organizations, may have played a small part in this outcome.

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Occupied by outrage over arrests of journalists at protest events

Robert Stolarik, Julia C. Reinhart, John Bolger, Nathan Heustis, John Knefel, Jacob Roszak, Alisen Redmond, Judith Kim.

All of these journalists were doing their jobs on public sidewalks or streets when they were arrested or detained or harassed by police.

Two of them —Redmond and Kim — are scheduled to be tried in Atlanta City Court this Friday, Oct. 12, on misdemeanor “obstruction of traffic” charges. Both women are student journalists: Ms. Redmond at Kennesaw State University and Ms. Kim at Georgia State University.

Both were arrested last November while covering an Occupy Atlanta demonstration, apparently singled out by police while the two were taking photos and video of the protests alongside other journalists. They spent 14 hours in jail before being released.

SPJ, the National Press Photographers Association, the Student Press Law Center and others have sent letters to Atlanta officials condemning continued prosecution of this case and arguing that student journalists are no less journalists than those who work for the Atlanta Journal Constitution or CNN.

The arrest and lengthy detention of Redmond and Kim were outrageous enough, but to hold a dubious “obstruction of traffic” charge over their heads for nearly a year seems an abuse of prosecutorial privilege and authority.

Most of the other journalists I named above were arrested while covering the anniversary demonstrations of Occupy Wall Street in New York City in mid-September. You can read more about them in this Storify story. (Kudos to Josh Stearns of Free Press for all the works he’s done over the last year tracking these arrests.)

One — Stolarik, a New York Times photographer — was arrested in August in the Bronx while taking pictures of an arrest that was part of the NYPD’s controversial “stop-and-frisk” program. Charges of obstruction of governmental administration and resisting arrest remained lodged against Stolarik as of September 30, according to a letter to NYC Police Commissioner Raymond Kelly by NPPA general counsel Mickey Osterreicher.

The OWS anniversary arrests and the police assault on Stolarik indicate a ramped up police practice of preventing journalists from bearing public witness to public events — despite clear legal precedent that protects journalists who are observing and recording such events and despite an NYPD memo sent out after last year’s raid on Zucotti Park that reminded officers of the right of journalists to be present.

Although the NPPA and SPJ (through our local chapter, the New York Deadline Club) expressed dismay and concern over the NYPD’s actions against journalists last month, the groups extended an offer to Kelly to meet with him and his administrators “to improve police-press relations and to clarify the ability of credentialed and non-credentialed journalists to photograph and record on public streets without fear of intimidation and arrest,” as NPPA’s Osterreicher put it.

As of Oct. 10, NPPA and SPJ had not heard back from Kelly.

 

 

 

 

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Stolen Valor Act vs. free speech: A First Amendment victory

A significant victory for the First Amendment drew scant attention last week, lost amid the barrage of well-deserved coverage given to the Supreme Court’s decision to uphold the Affordable Health Care Act.

On the same day, the court, in the case U.S. v. Alvarez, struck down the Stolen Valor Act, which made it a federal crime for someone to falsely claim to be a recipient of military honors, especially the Congressional Medal of Honor.

This was a case in which SPJ and a number of media organizations filed a friend of the court brief urging the justices to do exactly what they did in the name of protecting free speech.

This may seem like an odd place for us to be, defending the rights of someone accused of being a liar, but as so often happens in First Amendment cases, the people on the cutting edge of the law are not exactly role models.

Such is the case with Xavier Alvarez, a California man prosecuted after he described himself at a public meeting as a retired Marine who had won the Medal of Honor.

“Lying was his habit,” observed Justice Anthony Kennedy, who wrote the majority opinion. Kennedy noted that Alvarez also falsely had claimed to be a former Detroit Red Wing hockey player and that he had lied about marrying a starlet from Mexico.

But when he claimed to be a Medal of Honor recipient, that’s when Alvarez ran afoul of the law, and that’s where the slippery slope of a free-speech problem began.

There are forms of lying that are not protected by the First Amendment, the court noted. (Read the full opinion and related documents and friend of the court briefs, collected by SCOTUSblog.)

Perjury on a witness stand, for example, is a crime because otherwise it would threaten the integrity of any court proceeding.

And making false statements in a defamation case is not protected under the First Amendment.

But here there was no claim that Alvarez defamed anyone or spoke a falsehood under oath. He was prosecuted simply because he falsely claimed to have a medal.

That kind of content-based definition of speech as a crime was troubling to those of us who saw it as a dangerous precedent. What if the next set of laws criminalized falsehoods about some other topic?

Fortunately, a 6-3 majority of justices also saw the problem at the heart of this law.

“Permitting the government to decree this speech to be a criminal offense whether shouted from the rooftops or made in a barely audible whisper would endorse governmental authority to compile a list of subjects about which false statements are punishable,” Kennedy wrote.

“That governmental power has no clear limiting principal,” Kennedy said, conjuring up the image of “The Ministry of Truth,” from George Orwell’s novel “1984.”

Justice Stephen Breyer also saw another problem in his concurring opinion when he wrote, “the threat of criminal prosecution for making a false statement can  inhibit the speaker from making true statements thereby “chilling” a kind of speech that lies at the First Amendment’s heart.”

Kennedy also pointed out there are remedies to counter such lying that don’t require criminalizing speech.

That’s where SPJ, journalists and other media advocates come in. There are quite a few reporters out there who have exposed the lies of individuals who have fabricated military records and honors.

There are also databases out there that seek to list the true Medal of Honor winners such as this one compiled by The Congressional Medal of Honor Society.

Whenever someone describes himself or herself in public as a decorated war hero, it should be a our habit to check out the claim.

That way we’re exercising our First Amendment rights to seek and report the truth while protecting the valor of those who rightfully earned that honor.

SPJ Notes….And speaking of true military heroes, be sure to tune in when you have a moment, to the two most recent podcasts of Studio SPJ. Host Holly Fisher has been interviewing winners of our Sigma Delta Chi Awards, both of whom profiled soldiers.

Here’s the link to a segment she did with Corinne Reilly of the Virginian-Pilot, who wrote about an Army medical unit in Afghanistan.

And here is a link to Holly’s interview with Sara Stuteville, who won for a story she did for Pacific Northwest magazine on a marine’s return to Iraq.

On a day when we celebrate our independence, I think it’s important to remember the sacrifices of those who fought to protect those freedoms. Have a safe and happy Fourth of July.

 

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Nobody asked me, but… On Alec Baldwin, Carl Kasell and other important SPJ and journalism topics

1) Alec Baldwin needs to take a chill pill, judging by his altercation with a New York Daily News photographer on a public sidewalk outside New York City Hall last week.

In the chatter that followed the incident, Baldwin tried to describe the photographer as a papparazzi, those folks who follow celebrities around snapping pictures of their every move.

But in fact, the photographer in question is a veteran photojournalist who was on assignment that day outside City Hall where Baldwin was picking up a marriage certificate.

As for Baldwin, I think my friend and colleague Mickey Osterreicher, the general counsel for the National Press Photographers Association, did a great job of airing out the issues in this open letter to the actor.

2) Eddye Gallagher deserves a tip of the fedora this week. Recently, she agreed to fill a vacancy on our national board and on June 16 the SPJ board appointed her as interim Region 8 Director after Scott Cooper resigned.

I first got to know Eddye when she attended the Scripps Leadership Institute a few years ago. If you talk with folks in our Fort Worth chapter, they describe her as a human dynamo who is responsible for many good things the chapter has accomplished in recent year.

Me, I’m just glad to have Region 8 represented again and to welcome Eddye onto the board.

3) Politics should not trump programming in public television. 

I understand that people should have the ability to have their say about what goes out on the air. That’s why it’s called “public” broadcasting.

But still, it was disturbing to read this report recently about a controversy involving Alabama Public Television.

It’s hard to say with precision what happened, because the station’s former director is not saying much. But this is certainly a situation that deserves a close watch going forward.

4) Who says there are no heroes anymore? I met three of mine in one evening recently while attending our Washington, D.C. Pro Chapter’s Hall of Fame banquet.

-Sander Vanoucur is a journalist I’ve admired all my life, from when he served as one of the panelists in the first Kennedy-Nixon debates through the Watergate era, when he wound up on President Nixon’s enemies list. He’s a bit frail now, but sharp as ever when you talk to him.

-Carl Kasell is a National Public Radio rock star for his role in the popular news  quiz program “Wait Wait Don’t Tell Me.” But I came to admire him for all those years in which he delivered my first of news each day NPR’s top-of-hour newscasts.

-Brian Lamb revolutionized public access broadcasting when he created CSPAN. But for me, I’ve long admired his deadpan and thorough interviewing style. His program, “Booknotes,” served as a template for much of the programming I’ve done with SPJ through the years.

5) Another tip of the fedora to Michael Koretzky, our Region 3 Director, for helping kickstart our SPJ webinar series earlier this month.

Michael put together a great program called “Weird Careers in the Media” which was an updated version of a talk he gave at one of our national conventions a few years ago.

Now as then, the “virtual” room was packed with more than 100 people tuning in from around the country to listen and watch the webcast.

I fielded several emails from attendees who said they found Michael’s talk incredibly useful to their own job hunting strategies.

So stay tuned, we’ll be producing more webinars in the months ahead.

6) Holly Fisher is an excellent interviewer, doing a series of interviews with journalist who won this year’s SDX Awards. Here’s a link to a podcast, a recent conversation with Corinne Reilly about an award-winning story she wrote for the Virginian-Pilot.

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Police erasing evidence: Men in black (and blue)

What is up lately with a few of the men (and women) in blue acting like they are the Men in Black?

SPJ is tracking the outcome of an internal affairs investigation in Memphis where a local photojournalist contends police tried to prevent him from taking photos and video of a local businessman being arrested in a case that started with a parking violation.

See the story here, as reported by Memphis television station ABC24.

I sent a letter to the Memphis Police Director earlier this month expressing our deep concerns over the allegations.

What’s more troubling though is that this isn’t the first instance where police have been accused of erasing photographs or video of officers making an arrest.

In Baltimore, there is a case making its way through the courts involving a citizen who made a similar complaint about police deleting video he took of a police encounter with his friend at near a race track in 2010.

The U.S. Justice Department last month intervened in a civil rights lawsuit brought by the Baltimore man and stood up for a citizen’s right to record police actions in public places.

“The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution,” the Justice Department stated“They are consistent with our fundamental notions of liberty, promote the accountability of our government officers, and instill public confidence in the police officers who serve us daily.”

These two incidents are hardly a trend, and in my view, most law enforcement officers are professionals who know better than to destroy images that could be considered private property or perhaps even evidence.

But they remind me of the running gag in “Men in Black,” where Will Smith and Tommy Lee Jones keep using their flash pen to erase the memory of what an eyewitness has seen.

It’s no laughing matter when a police officer goes beyond simply impounding a camera and takes the extraordinary step of deleting its contents.

Rightly or wrongly, such an action leaves the public with the impression that the officers have something to hide.

We live in a world where so many people have the capability of taking a picture or video with the cell phone in their pocket.

This is good when it comes to breaking news events. For law enforcement, it can also provide valuable evidence when a crime occurs.

We will monitor how the Memphis case turns out. We’ve also offered our help in starting dialogue with police on the First Amendment issues involved.

Whatever comes of  these cases in Baltimore and Memphis, let’s hope this is more an aberration than a trend.

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A Valentine for journalism – ‘This I Know’

Our SPJ colleagues in Colorado have produced a video that I’d like to bring to your attention.

It’s a 60-second valentine to the power of journalism called “This I Know.”

The video was born out of the frustration many of us felt after coming so tantalizing close to passage of a national Shield Law for journalists in late 2010.

But then came Wikileaks and the bipartisan support we had won came unglued. At the end of that debate you might have thought that the whole point of the Shield law was to deal with Julian Assange.

Lost in that debate was the simple fact of the people whom a Shield Law was meant to protect, hard-working journalists whose work shines a light on those dark or unnoticed corners of society. It’s work that vital to the health of a democracy.

So last spring, a group of volunteers set out to remind people of the real beneficiaries of a Shield Law – not just the journalists who produce this valuable work – but the readers, viewers and listeners who depend upon it.

To drive home this point, we assembled a cast of mostly non-journalists. They included a lawyer, a hospice director, a public relations professional, a bartender, a gadfly and a law student.

The only journalist in the bunch was a 16-year-old crusading editor of a high school newspaper.

The one common denominator of the group was their appreciation of the work that journalists do.

Under the direction of my SPJ colleague Cynthia Hessin and the camera work of my friend Jerome Ryden, we gathered one Saturday morning in the Denver studio of Rocky Mountain PBS.

They took turns reading lines that began with the refrain, “Because of a journalist…”

“Because of a journalist…I know who used steroids in baseball.”

“Because of a journalist…I know who covered up the Watergate break-in.”

“Because of a journalist…I know about the torture at Abu Ghraib.”

I’ll be the first to admit that this is not a slick video. The people speaking these lines are clearly not polished actors or spokespeople.

They are just regular folks who happen to believe that the work we do matters.

That’s why I screened this video on the night I took my oath as SPJ president in New Orleans.

That’s also why I’m asking chapter leaders if they would consider screening this video at the start of their next SPJ event or posting it to their chapter website.

Will any of this move us one bit closer to a national Shield Law? Not likely.

But in these tough times, I think it’s important to remind people of the value journalism has to the people who rely upon us for the work we do.

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The state of SPJ – remarks to the Greater Charlotte chapter

While the SPJ Executive Committee visited with members of our Greater Charlotte chapter in North Carolina on Jan. 27, I gave a talk on the State of the Society.

Below is a copy of my remarks (although not an exact transcript.) Or watch the video, uploaded by the Charlotte chapter:

I’d like to take a moment here to share a few thoughts on the state of SPJ — on where we are and where we’re going.

First off, tonight we’ve reached another milestone in SPJ’s long and storied history. We’re celebrating the 100th anniversary of Quill, our signature magazine.

What started as a fraternity newsletter in January 1912 has evolved into an outstanding magazine that helps our members stay current with what going on in journalism and within the Society.

And think about it. How many magazines in America have survived a century or more? Well, there’s Scientific American at 167 years old and Harper’s at 162. But there aren’t a lot more, and as I like to tell our editor, Scott, we’re older than Time.

The pages of Quill tell the history of journalism in America, and later this year, we’re going tap into some of the magazine’s images to tell our history as well. SPJ member Jennifer Peebles is building an interactive timeline of significant events in SPJ history. So, watch for that.

Looking ahead in that history, I’m hoping we can increase our online version of Quill so it’s something members can turn to every day instead of six times a year.

SPJ has a long history of advocating for journalists and the public’s right to know, and this year that has certainly been true. We protested the arrests of several journalists who were wrongfully detained or arrested while covering various “Occupy” demonstrations across the county.

We’ve committed $1,000 from our Legal Defense Fund for a freelance photojournalist who was arrested while covering an Occupy Wall Street demonstration.

We’ll continue to fight these good fights and to stand with journalists who are in that often lonely place of taking fire for simply doing their jobs.

Another thing SPJ is known for is its ethics code, which some folks have called the gold standard for our industry.

Last year, we reached an important goal with the publication of the 4th edition of a textbook of ethics case studies. This year, we’re taking that a step further by writing a series of white papers on various ethics topics.

I’d urge you to take a look at these essays. They are posted on our website, spj.org. They show that for us, journalism ethics is not just a textbook on a shelf, but an on-going set of values that are useful when doing our jobs every day.

SPJ is also about to do something we’ve never done before: be a landlord.

Thanks to some hard work by our Executive Director, Joe Skeel, we are on the verge of signing a lease with a global recruitment firm that wants to rent the underutilized second floor of our headquarters in Indianapolis.

This will require us to invest some funds into renovating that part of the building, but in the long run, it will create a new stream of revenue.

Now you would be right to ask: What does this have to do with journalism? Nothing really. But at time when other journalism organizations are struggling just to stay afloat, we’re doing something that will help stabilize SPJ’s finances and ensure our future.

And finally, I have some good news about SPJ’s membership.

For the first time since 2008, we are starting the year with more members than we had the year before. Not a lot — just about 200 to 300 more — but it has been that way consistently for more than two months.

Part of that increase may be due to an increase in the number of entries were seeing for our annual Mark of Excellence college journalism awards.  But I think some of the credit also goes to our membership committee, which has been reaching out to lapsed members and talking them into sticking with SPJ.

I hope you’ll help us continue to build on this small trend. I’m asking that every chapter, student and pro, do one membership-building event in the month of March.

We’re calling it our own March Membership Month. You’ll be hearing more about it in the next few weeks, and when you do, please do what you can to ensure that our Society continues to grow in the year ahead.

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