Citizen Media Law Project

We're Live, So Could Someone Please Wake Justice Ginsberg?

Arthur Bright — Thu, 09 Feb 2012 22:20:47 +0000

A bit of good news for those of us keen on open government: The Senate Judiciary Committee today voted 11 to 7 to allow television cameras into the Supreme Court.

The text of Senate Bill 1945 is short and sweet. It would insert into the U.S. Code the following line:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

Simple, and it could solve the gross misbalance in the importance-to-access ratio of the court. The Supreme Court is all but actively hostile to permanent fixations of its proceedings: no cameras, no television. Audio only became readily available in 2010. But it's also the court with the largest pool of potentially interested citizens - its rulings can affect every man, woman, and child in the country. So why is it easier to film a minor civil trial of no account in the Midwest than it is to record an earthshaking case in the Supreme Court of the United States?

It's time for the court to get in step with the times. I understand the discomfort that the justices might have, suddenly being on the nightly news. And the risk of showboating by lawyers and justices, or of becoming the butt of a Daily Show gag is real, no doubt. It's not hard to imagine what comedians might do with Justice Ginsberg's reported penchant for the occasional in-session nap. But Sen. Patrick Leahy is right: Even if "they do not want to be made fun of through an unflattering video clip or to be quoted out of context... that happens to the rest of us in public service all the time."

Justice Scalia apparently worries that televised proceedings might mislead the public. "For every ten people who sat through our proceedings gavel to gavel," he cautioned last October, "there would be 10,000 who would see nothing but a 30-second outtake from one of the proceedings, which I guarantee you would not be representative of what we do.” And that's not unreasonable. But the argument doesn't stand up in the modern era.

Thirty-second clips are an artifact of broadcast news, and were an understandable necessity to produce a comprehensive accounting of the daily news in 30 minutes. Now the media is shifting to an online world, where news is consumed on demand and there are no limits to the size and duration of what's accessed on the Internet. The solution for Scalia's concern is not less televised coverage, but more. If every case before the court is recorded and available online soup to nuts, those 10,000 people would have every moment of the proceedings at their fingertips, and would be far less likely to be misled.

(Another problem with Scalia's argument against televised proceedings: He feels a 30-second outtake on the news would mislead viewers, so instead he leaves the description of events up to the broadcasters. If you can't trust broadcasters to choose a 30-second clip that properly portrays the proceedings, why trust them to explain what happened with only their words and possibly untrustworthy memories?)

There's still a long, rocky path before this bill could become law, of course. An 11-to-7 vote indicates that getting through the whole Senate could be difficult, and the House could be even tougher to convince. And that's to say nothing about the separation of powers issue. Can Congress tell the Supreme Court to let the cameras in?

Nonetheless, the fact that the Senate Judiciary Committee has made this step is a positive sign. The use of technology to increase transparency is worth exploring, and the higher up the officials who are thinking about it, the more likely it is that the government will follow through.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image of Supreme Court in sunshine courtesy of Flickr user JillinMD licensed under a CC BY-NC 2.0 license.)

United States v. Megaupload Limited

CMLP Staff — Mon, 06 Feb 2012 21:48:00 +0000

See No Evil: Study Says Judges Don't Find Jurors Using Social Media

Eric P. Robinson — Mon, 06 Feb 2012 19:04:01 +0000

The Federal Judicial Center has released a study which concludes that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom," and implies that juror use of the Internet and social media during trial is not a growing problem.

Alison Frankel of Thompson-Reuters is skeptical about this conclusion, and I agree with her.

The FJC report was based on a survey e-mailed to all active and senior federal judges in October 2011. Of the 952 judges who received the survey, 508 responded – a response rate of 53 percent – from all 94 federal districts.

Of the 508 judges who responded, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. Most (23 judges) had seen this during trial, rather than deliberations (12 judges), and judges reported seeing such activity more often in criminal cases (22 judges) than in civil cases (five judges). Three judges had experience with jurors using social media during both criminal and civil cases. Only two had experienced this in more than two cases of either type.

Among the sites and services that the judges observed jurors using, use of Facebook and Google were the most common, both reported by nine judges. Use of instant messaging was noticed by seven judges, while use of Twitter or an Internet chat room was detected by three each. One judge reported juror use of an Internet bulletin board, while one reported juror use of MySpace.

Seventeen of the judges also reported the substance of the jurors' activities: Five said jurors had done research on the case; four said that they had shared information about the case, such as its progress; three judges found jurors "friending" trial participants; and the same number of judges discovered jurors otherwise communicating with trial participants.

Of the 30 judges who discovered social media use by jurors, 28 indicated how they learned of the activity. Thirteen heard of it from fellow jurors, five were told by attorneys, and five said they found out via post-trial motions or interviews. Three found out from court staff, and two observed it themselves.

As the report itself points out, "the data from the survey represent judges’ reported experiences and perceptions of jurors’ use of social media to communicate about proceedings in which they are involved. The data are not actual empirical measures of such behavior." Study at 2.

And it seems dubious that the usage judges observed is all the usage there is, given how widespread Internet use is among the larger community from which jurors are drawn. While there is "no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population," Taylor v. Louisiana, 419 U.S. 522, 538 (1975), the jury pool from which trial juries are selected must "reasonably reflect[] a cross-section of the population suitable in character and intelligence for that civic duty." Brown v. Allen, 344 U.S. 443, 474 (1953).

Two recent studies comparing juror and population demographics in New York reported on by the Cornell Journal of Law & Public Policy blog – one statewide, the other focused on Monroe County, which includes Rochester – found that generally jury pools generally reflect the demographics of the larger community, although the statewide report found racial and ethnic disparity in individual counties. Academics have given a number of reasons why racially-neutral jury pool selection processes can result in unrepresentative juror pools. See, e.g., Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 Vand. L. Rev. 353, 356 (1999) (discussing various impediments to adequate racial representation).

But the issue here is how the jury pool correlates with frequent users of the Internet and social media, and then whether jurors who are such users can be convinced – or compelled – to not use these services while serving jury duty.

According to the Pew Internet and American Life Project, overall 78 percent of adults use the Internet. (There are, however, some variations on usage based on age and education level.) About 77 percent of adults do so on a daily basis.

If a jury pool is representative of the adult population, it certainly includes these daily Internet users.

The fact that only two of the judges in the survey discovered the social media use on their own shows that such activity is hard to detect, both inside the courthouse and – especially – outside of it.

There are certainly numerous anecdotal instances in which jurors have been found to be using the Internet or social media during trial. The problem is that it may be impossible to really know how many jurors are doing this.

But that doesn't mean that it isn't happening.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.

(Image of courtesy of Flickr user alex.ragone under CC BY-NC-SA 2.0 license.)

Won't Somebody Please Think of the Children?: A Few Modest Thoughts on Mass. Senate Bill No. 785

Jeffrey P. Hermes — Thu, 02 Feb 2012 18:45:51 +0000

On February 7, 2012, the Joint Committee on the Judiciary of the Massachusetts Legislature will hold a hearing on Massachusetts Senate Bill No. 785, entitled "An Act relative to the protection of child witnesses." The bill would, among other proscriptions, make it a crime punishable by up to one year's imprisonment plus a fine for certain people to:

(i) disclose or release documents, which divulge the name or any other information, concerning a child or the information in them that concerns a child except to persons who, by reason of their participation in the proceeding, have reason to know such information; or (ii) disclose or release a picture of the child, except to persons who, by reason of their participation in the proceeding, have reason to possess such a picture.

A "child," under the bill, is "a person who is under the age of 18, who is a witness to a crime committed against another person." The categories of people affected by the bill are (1) all employees of the government connected with the case, including outside consultants hired by the government, (2) employees of the court, (3) the defendant, the defendant's employees, and the defendant's counsel, (4) jury members, (5) attendees at the trial, and (6) "members of the media, who come across such documents or information regardless of the source of such documents or information."

As with much proposed legislation designed to protect minors, S.B. 785 seems more like a political tactic designed to show that its supporters care about our children rather than a functional piece of legislation that actually has a chance surviving the first constitutional challenge that comes along. To borrow a turn of phrase from Lawrence Lessig, the bill "practically impale[s] itself on the First Amendment."

The U.S. Supreme Court has a long history of striking down court orders prohibiting the disclosure of newsworthy information about minors and legislative bans on publication of material about judicial proceedings. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 532 (1989) (First Amendment barred imposition of civil damages on newspaper for publishing rape victim's name); Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103-06 (1979) (First Amendment barred prosecution under state statute for publishing names of juvenile offenders without permission of court); Oklahoma Publ'g Co. v. District Court in and for Oklahoma Cty., 430 U.S. 308, 311-12 (1977) (court's injunction prohibiting attendees and media from publication of name and photograph of minor defendant violates First and Fourteenth Amendments).

Thus, S.B. 785's blanket ban on dissemination of court documents is facially unconstitutional on the basis of the speech that it is intended to prohibit. I am particularly impressed by the drafters' attempt to thumb their noses at an extra Supreme Court precedent by prohibiting publication of documents and photos by members of the media "regardless of the source of such documents or information." See Bartnicki v. Vopper, 532 U.S. 514, 527-28, 533-35 (2001) (First Amendment protects publication of newsworthy information by press even when information illegally obtained or released by journalist's source).

(Of course, if we're talking about the news media as intermediaries for content supplied by others, a news organization could simply allow third parties to post the prohibited documents and photographs to its website. The news organization would then receive immunity from state prosecution under federal law. See 47 U.S.C. § 230.)

But even if S.B. 785's intended effect were constitutional, the bill is so wildly overbroad that it would unconstitutionally criminalize a wide range of additional speech. Cf. U.S. v. Stevens, 130 S.Ct. 1577, 1587 (2010) (statute prohibiting depictions of animal cruelty unconstitutional under First Amendment due to overbreadth). By its literal terms, the parents of a child would violate the law if, after attending a trial at which their child testified, they sent a Christmas card with a family photo. If school officials testified at the same trial in which a student appeared, the class yearbook would need to be missing one picture.

Clearly, the drafters of the bill are most concerned about those pesky journalists, who are just waiting to ruin a child's life and get their kicks out of putting kids in danger (despite the fact that news outlets routinely exercise their editorial discretion to avoid putting minors at risk). The overkill approach of the bill to journalism is reflected in the fact that the definition of "attendees" explicitly, but entirely superfluously, includes members of the media who attend a trial; the media are already subject to the terms of the bill regardless of whether they are in attendance.

The odd focus of the bill on journalism is also reflected in the definition of "members of the media," a typically ham-fisted legislative attempt to restrict the definition of media in the digital age to "real journalists":

The term "members of the media" shall mean the group of journalists and others who constitute the communications industry and profession. "Members of the media" shall include, but not be limited to, those who work in the field of print or electronic journalism.

However, unlike shield laws and other laws intended to benefit the press where narrow definitions of the media might make logical sense (if not sound policy), using such a definition here to restrict press activity eviscerates the intent of the bill by exempting every amateur blogger and other non-professional user of electronic media, no matter how popular.

This is just one of the ways in which S.B. 785 is so poorly drafted that it cannot possibly achieve its intended goals. For another couple of examples, the bill applies to attendees at "trials," but not at other proceedings, and prohibits the release of documents, but not the separate release of the information contained in those documents or otherwise revealed in court. Not that the bill could be fixed by closing these loopholes, because doing so would violate the First Amendment rights of even a broader range of citizens.

It is possible that the drafters of the bill thought that by focusing on court records and documents instead of information, they were simply restricting access to material rather than imposing a categorical ban on speech. There is a significant difference, however, between preventing the media from obtaining access to the court and prohibiting them from publishing information that they have already obtained from the court. Compare Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 608 (1982) (requiring case-by-case evaluation of closure of courtroom, rather than automatic closure for testimony of minor rape victim) with Oklahoma Publ'g, 430 U.S. at 311-12 (where proceeding involving minor was open to the public, court was unable to issue prior restraint against media to limit reports of proceeding). Moreover, there is a First Amendment right of access to documents in criminal proceedings. See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 503-505 (1st Cir. 1989) (blanket closure of records in closed criminal proceedings implicates First Amendment).

It is small comfort that S.B. 785 is doomed to fail as unconstitutional even if it frightens enough legislators, worried about public perception of their position on children's rights, into voting for it. Defendants and prosecutors alike would be forced to go on a wild goose chase through the courts to strike down a law which should never have existed in the first place. Surely there are better ways for the legislature and the courts to spend their time.

Jeff Hermes is the Director of the Citizen Media Law Project and has a passing familiarity with the First Amendment.

(Image courtesy of Flickr user ell brown licensed under CC-BY 2.0 license)

Why Twitter's New Censorship Tool Isn't As Bad As It Seems

Arthur Bright — Mon, 30 Jan 2012 23:03:37 +0000

Last Thursday, Twitter announced that it would start censoring tweets by denying access to specific tweets in countries where those tweets would be illegal. Naturally, this has caused a lot of concern online.

Some see the announcement as a first step towards expanding into China in Twitter by complying with Beijing's compulsory, rigorous state censorship. (Twitter's general counsel has denied this, saying the announcement “has nothing to do with China.”)

Others fear that it is somehow tied to the recent $300 million investment in Twitter by Saudi Prince Al-Waleed, and that he was flexing his capital muscle to quiet Twitter, which helped facilitate the Arab Spring and continues to threaten the stability of the region's authoritarian governments. (But take this theory with a grain of salt: Waleed owns less than four percent of Twitter, hardly enough to wield the kind of influence needed to implement censorship.)

The government of Thailand, where lese majeste laws are still enforced and those who call King Bhumibol Adulyadej anything other than a great guy risk prison time, is rather pleased with the new policy. I wouldn't be surprised if some of the more vehemently anti-gay governments, for example Iran and Uganda, are warm to the idea too. The international gay community appears to be worried about the possibility, at least.

With all this potential censorship, the tweeting masses have been left wondering: What was Twitter thinking?

I've been chewing on this myself. My first response was much like that of the masses: alarm. But when you consider the ubiquity of censorship laws outside the U.S., Twitter's position is much more understandable.

After all, it's not just authoritarian countries in the Middle East and Asia that censor. While the First Amendment keeps the U.S. (mostly) censorship-free, laws against speech are quite common abroad, even in Western nations.

For example, in Germany, I could be subject imprisonment for up to five years for tweeting that Federal President Christian Wulff is a horrible person. In France, I couldn't tweet "I don't believe that the Holocaust happened" without running the risk of charges. In Britain, a tweet that violates a super-injunction could conceivably be cause for censorship.

As former Berkperson and current EFFer Jillian York writes on her blog:

...Twitter has two options in the event of a request: Fail to comply, and risk being blocked by the government in question, or comply (read: censor). And if they have “boots on the ground”, so to speak, in the country in question? No choice.

It seems unlikely that Twitter will be opening a Cairo office or a Beijing office any time soon. But London, Paris, or Berlin? In fact, Twitter's already in London, Paris would be a reasonable step, and a Berlin office is in the works. And thus those foreign offices give their host nations leverage, should they request tweets be censored.

And Twitter already does censor tweets, as the EFF's Eva Galperin points out, and this new country-specific censoring in fact allows them to censor less:

Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else.

Galperin also notes that tweeters can use proxies and anonymizer networks (like Tor) to end run around the censors.

I'm a little leery of Galperin's argument about the policy meaning less censorship. It's true that if Twitter uses exactly the same takedown criteria that it has before, but now tailored to the specific countries at issue, more people would see the tweets, therefore censorship would lessen.

But with the ability to tailor censoring, I worry that censorship might become less appalling to Twitter staffers. For example, if you've got a takedown request for a borderline tweet from Syria and a takedown would be worldwide, Twitter might be hesitant to censor it. But if they could censor it only in Syria, Twitter might lose that hesitation. Thus, Twitter might actually censor more often in frequency, if less broadly in scope.

I suspect such a concern may be why Galperin called upon Twitter users to "Keep Twitter honest." And Twitter is to be commended for giving the public a tool to do so: they've begun submitting takedown requests to Chilling Effects (a Berkman-affliated project), so we all can see who's asking for takedowns and why.

Further, as Matthew Battles at Harvard's MetaLab writes, the censored tweets won't just disappear – they'll be replaced by a notification that the tweet was taken down. That notification may inspire curiosity about the censorship, and could in turn bring greater scrutiny upon the government behind the takedown.

I think the best way to handle Twitter's censorship going forward is via the old Reagan chestnut of "Trust, but verify." As York writes, "the company is doing its best in a tough situation," but she promises "I’ll be the first to raise hell if they screw up." Given the rock and hard place between which Twitter finds itself, we should cut it some slack.

But if Twitter goes astray, all bets are off.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

CMLP ANNOUNCEMENT: Amicus Brief Filed Regarding Intersection of Trademark Law & Freedom of Speech

CMLP Staff — Fri, 27 Jan 2012 17:41:04 +0000

On January 18, 2012, the Citizen Media Law Project (under its new name, the Digital Media Law Project -- new website coming soon) filed an amicus brief in the Massachusetts Appeals Court in Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533.

The CMLP submitted its friend of the court brief to urge the Appeals Court to uphold several fundamental legal principles, including protecting critical speech online and preventing the misuse of trademark law in a distinctly non-trademark context to impede the free flow of information.

More information about the case and the amicus brief is available on the Berkman Center website.

Links:

Amicus Brief

Press Release

Case Entry in CMLP Database

Bloggers and Shield Laws II: Now, You Can Worry

Eric P. Robinson — Thu, 26 Jan 2012 18:25:34 +0000

A few weeks ago, I wrote that bloggers should not be too concerned about a decision by a federal judge in Oregon that blogger Crystal Cox is not protected by Oregon's reporters' shield law in a defamation suit.

But a new decision in Illinois reaching the same conclusion about another blogger is more problematic.

The Oregon ruling – which led to a $2.5 million verdict against Cox, that she is seeking to have vacated – concluded that a blogger is not “media.” Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H, 2011 WL 2745849, 2011 U.S. Dist. LEXIS 137548 (D. Or. Nov. 30, 2011).

This what got most of the attention in coverage of the case. But it was not the primary basis for the court's holding that she was not protected by the shield law. Instead, the judge denied Cox the protection of the shield law because she tried to use the existence of the source as evidence in her defense, while at the same time invoking the shield law to refuse to identify that source. This is known as using the reporter’s privilege as both a "sword and shield" and has been rejected by courts in many states. In addition, Oregon's shield law statute specifically prohibits it. See Ore. Rev. Stat. § 44.530(3).

The new Illinois decision more directly involved application of the state's reporters' shield law to an online news source: in this case, TechnoBuffalo.com, which consists of frequent blog posts on (excuse the pun) bits of technology news.

The question was whether the site falls under Illinois' reporter's shield law, 75 Ill. Comp. Stat. §§ 5/8-901 - 8-909, which provides that "No court may compel any person to disclose the source of any information obtained by a reporter except as provided in [the other provisions of the shield law]." (emphasis added)

The terms "reporter" and "source" are defined in the statute, as is the phrase "news medium":

(a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .

(b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

(c) "Source" means the person or means from or through which the news or information was obtained.

75 Ill. Comp. Stat. §§ 5/8-902.

According to news reports about the decision (here and here; I haven't been able to find the decision itself; UPDATE: The ruling and other documents and information about the case are here), Judge Michael R. Panter of the Cook County Circuit Court held that "TechnoBuffalo’s reliance on the Illinois reporter’s privilege is misplaced," because the site did not qualify as a "news medium" under the statute. "TechnoBuffalo’s anonymous 'tipster' is hardly an example of a 'source' of investigative journalism that requires protection of the Act."

Judge Panter's decision is contrary to a decision of a California court holding that a similar blog was covered by that state's reporters' shield provision. In O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App., 6th Dist. 2006), the California Court of Appeals held that the "O'Grady's PowerPage" blog was included in the shield provision language extending coverage to "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication ... ." See Cal. Const., Art. I, § 2(b) (shield provision in state constitution); see also Cal. Evid. Code § 1070 (statutory provision).

Given the numerous ambiguities presented by "periodical publication" in this context, its applicability must ultimately depend on the purpose of the statute. It seems likely that the Legislature intended the phrase "periodical publication" to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers, and monographs. The Legislature was aware that the inclusion of this language could extend the statute's protections to something as occasional as a legislator's newsletter. If the Legislature was prepared to sweep that broadly, it must have intended that the statute protect publications like petitioners', which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content.

O'Grady v. Superior Court, 44 Cal.Rptr.3d at 104-05 (citations omitted).

The New Hampshire Supreme Court faced a similar question in Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010), except that New Hampshire's journalist's privilege exists as a matter of common law, not statute. See Opinion of the Justices, 117 N.H. 386, 373 A.2d 644 (1977) (finding journalists' privilege under state constitution's free speech provision). Yet the New Hampshire high court also found that a blog news site was covered by the privilege.

The fact that Implode operates a website makes it no less a member of the press. In light of the trial court’s implicit findings, we conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.

Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 234, 999 A.2d 184, 189 (N.H. 2010).

The federal judge in Oregon reached the opposite conclusion in the Cox case. Without much discussion, he simply stated that the blog in that case was not covered by Oregon's shield statute, which provides that “[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required [to reveal confidential sources],” Ore. Rev. Stat. 44.520(1), and then provides that

"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.

Id.

Judge Marco A. Hernandez focused on the list, and found that Cox and her blog did not fit under any of these categories. In doing so, he ignored the statute's language that “medium of communication” includes not only the specific media listed.

On a related issue, Judge Hernandez observed that "Defendant cites no cases indicating that a self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim." Of course there are no such opinions, since blogs and social media are a new emerging medium.

Such a legalistic application of a journalists' shield law is reminiscent of the 11th Circuit's opinion in Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005), modified, 425 F.3d 1292 (11th Cir. 2005), which held that Sports Illustrated was not covered by Alabama's shield law, Ala.Code § 12-21-142, because "magazines" were not specifically mentioned in the list of media protected by the statute.

The rulings in Price and Obsidian Finance Group are worrisome and overly legalistic, and do not recognize that the purpose of reporters' privilege provisions is to facilitate the free exchange of information; and that blogs are certainly a new means of doing this, and should be covered by these shield provisions, as the courts found in O'Grady and Mortgage Specialists.

The Illinois court could – and should – have used the rationale in O'Grady and Mortgage Specialists to include the TechnoBuffalo blog in Illinois' reporters' shield law. Now, it will probably be left for an appellate court to do this, which will provide jurists like Judge Hernandez in Oregon an appellate ruling to cite for the logical conclusion that shield law protect bloggers as they protect other journalists.

(Image of Worried Eggs II courtesy of Flickr user Domiriel under CC BY NC 2.0 license.)

SOPA/PIPA Protest Day is Over, But the Battle is Not

Arthur Bright — Thu, 19 Jan 2012 22:36:17 +0000

The day of protest against the now (hopefully) infamous "Stop Online Piracy Act" (SOPA) and "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (PROTECT IP Act, or PIPA) has ended. Baffled students can once again access Wikipedia to do their homework; the Google doodle is no longer blacked out; and Jon Stewart can return to lampooning Republican presidential candidates rather than obtuse copyright bills.

Mission accomplished, right?

Actually, no. It's only just begun.

To be sure, the protest was incredibly successful at drawing attention to the threat that SOPA and PIPA pose to online speech. Google News tracked nearly ten thousand stories on the bills – a number far, far above average for a single news event. Wikipedia's users were shocked into awareness of SOPA and PIPA, thanks to the site's 24-hour blackout. And the tallies on ProPublica's snazzy SOPA Opera page, which tracks Congressional support and opposition for the bills, literally reversed overnight, as members of Congress stampeded from the pro-SOPA/PIPA camp to the anti- side.

But while the public's increased awareness of the bills (and the corresponding pressure they have placed on their Congressional representatives) is welcome, "We're not done yet," as Wikipedia said in a post-blackout statement. The actual legislative battle over the bills still lies ahead – PIPA comes up for debate in the Senate next week, and SOPA will follow next month in the House.

So netizens seeking to protect the Internet from this legislation must stay aware and active, and not rest easy just because the blackout was a media success. The bills' proponents are still out there (if fewer in number), and they're still "out there."

Former Connecticut Senator and now MPAA head lobbyist Chris Dodd criticized Wikipedia's blackout as an "abuse of power," adding – apparently without awareness of the irony – that "It's a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests." SOPA sponsor Representative Lamar Smith of Texas – and whose knowledge of copyright law is somewhat suspect – called the blackout a "publicity stunt," and claimed that the bill "will not harm Wikipedia, domestic blogs or social networking sites." PIPA sponsor Senator Patrick Leahy of Vermont, apparently not understanding what the protests are about, avers that "Protecting foreign criminals from liability rather than protecting American copyright holders and intellectual property developers is irresponsible, will cost American jobs, and is just wrong."

And there are still renowned legal sages out there, like the members of the Boston Herald editorial board for example, who are positive that SOPA is meant for "one purpose and one purpose only — to punish the theft of intellectual property on the Web by foreign sites," that "the bill is already heavily weighted on the due process side," and that "cyber-bullies" like Google and Wikipedia should stop throwing a "hissy-fit."

But despite the incisive arguments of these jurisprudential masters — who are in no way biased for being employed by Hollywood (Dodd), being recipients of $100k+ in media campaign contributions (Smith), or being part of the dead-tree media that's desperately scrabbling to recover any revenue it can in the Internet era (the Herald) — there are actually pretty good arguments that SOPA and PIPA are gross infringements of First Amendment rights.

The articles written by the bills' opponents are too numerous to summarize them all, but there are a number of good places to start if you want to know more. The Berkman Center (which itself does not endorse any particular policy re: SOPA/PIPA, though it encourages members of its community to speak their minds) has compiled a list of the personal responses to the legislation from various Berkfolk. Harvard Law professor and Constitutional expert Laurence Tribe also has offered a rigorous exposure of SOPA's First Amendment violations, and a veritable host of law professors (including several with Harvard and Berkman ties) have signed a letter critiquing PIPA and calling for its rejection.

So now is not the time for opponents of SOPA and PIPA to stand down. To paraphrase John Philpot Curran, the condition upon which the Internet hath given liberty to man is eternal vigilance. The blackout did what it was supposed to and drew attention to the legislation, but until the bills are actually torpedoed, we'll have to keep up the pressure.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image from anti-SOPA/PIPA protests in New York City courtesy of Flickr user mobius1ski licensed under a CC BY-SA 2.0 license.)

CMLP ANNOUNCEMENT: Resources on SOPA/PIPA

CMLP Staff — Wed, 18 Jan 2012 17:23:11 +0000

In light of today's internet blackouts, we have received numerous requests for information about the Stop Online Piracy Act ("SOPA") and the Protect IP Act ("PIPA"), as well as the reasons for today's protest of these two bills. In response to the demand for information, the Berkman Center for Internet & Society, the center at Harvard University that hosts the Citizen Media Law Project, has collected links to useful summaries, statements and commentary about SOPA and PIPA here. We invite you to visit Berkman's site and learn more about SOPA, PIPA and today's protest.

If you are wondering why the CMLP's own page did not go dark today, we made an institutional decision that we could best serve the public by remaining an accessible resource for information on media law and threats to online speech during the protest.

NewsRight: Rest Easy, We Won't be Righthaven 2.0

Victoria S. Ekstrand — Tue, 17 Jan 2012 19:45:11 +0000

Looking to make their brand “a little more memorable,” the News Licensing Group is now NewsRight – and is billing itself as an “easy rights clearinghouse for the best news reporting and original journalism on the Web.”

Earlier this month, the group announced that 29 major news and information companies have signed on as initial investors in the startup, a new independent digital-rights and content licensing venture led by former ABC News President David Westin.

(The initial investors in NewsRight are: Advance Publications, The Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications, Landmark Media Enterprises, The McClatchy Company, Media General, MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Company, Ogden Newspapers, Pioneer Newspapers, Schurz Communications, The E.W. Scripps Company, Stephens Media, Swift Communications, Times Publishing Co. and The Washington Post Company.)

For those skeptics who see NewsRight as some simple outgrowth of the Associated Press’ highly criticized News Registry project – or as some new form of Righthaven – Westin says that view largely underestimates the months of effort and planning to bring NewsRight to investors and to customers. And, he says, its underestimates their overall philosophy.

“The right solution is the business solution,” said Westin by phone last week. “We plan to go to a wide range of people and help them with their businesses. … We’ll start out slow. We’re going to do one deal at a time. And we’ll need to persuade them.”

Westin said NewsRight intends to target everyone from subscription aggregators, such as libraries and large corporations and governments, to the kinds of large and small independent aggregators on the Web causing concern for traditional news outlets.

In the short term, NewsRight is working to sign up subscription aggregators by providing them not only “clean content” with rights clearance, but also detailed analytics about how such content is being consumed. (That looks to be the value added part that TechDirt wondered about last week.)

Westin said that NewsRight will later approach general online aggregators, including Google, about content and clearance. “We’ll be going to Google when the time is right,” said Westin. “It’s important when we go into the market that we’re not asking for a wealth transfer.” Instead, Westin said, the arrangement has to be good for both sides.

Listening to Westin, I sensed he and NewsRight are realistic about the culture shift they will have to accomplish. The heavy-handedness of a Righthaven approach to the news industry’s woes is obviously not viable.

But will the aggregators and users of news and information be as willing as many music consumers are to pay for access? And what will NewsRight claim needs licensing that arguably might fall within the gray areas of fair use?

All questions still to be answered. But their progress and future announcements merit watching.

Victoria Smith Ekstrand is an associate professor at Bowling Green State University, where she teaches media law, public relations, and graduate courses in legal theory and pedagogy. She also worked for The Associated Press for nine years, and before that worked for the Arbitron Company and for radio stations in upstate New York, New York City, and Long Island.

(Image of teletype machine courtesy of Flickr user Rochelle, just rochelle licensed under a CC BY 2.0 license.)

Everybody's Public to Somebody?: Social Media and the Public/Private Divide

John Sharkey — Thu, 12 Jan 2012 18:41:36 +0000

First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.

I'm thinking of Fraley v. Facebook, one of the pending class-actions against our favorite blue friend. A few weeks back, the federal district court denied Facebook's motion to dismiss (full CMLP threat entry here, .pdf of the order here), and there's all kinds of interesting stuff going on (including some chin-stroke-worthy Section 230 stuff, but the Rule 12 stage is too early to say anything on that score). I'd recommend giving the threat entry a skim, but to briefly knock out the need-to-know for my purposes:

The lawsuit surrounds Facebook's introduction of a "Sponsored Stories" ad system, through which Liking companies on Facebook can appear as advertisements to your friends. (The Like shows up as it normally would in your timeline, and also appears verbatim in the right-hand-side ad bar under a "sponsored stories" header.) The plaintiffs are alleging a violation of California's commercial misappropriation statute, which protects against companies using your identity for commercial gain without your consent. Facebook, as you'd expect, has plenty of defenses lined up, but the one I'm interested in here is the "newsworthiness" defense.

The California statute has an exception for "newsworthy" content, which makes sense – news organizations are businesses, so any time they report on someone famous they're doing it for "commercial gain" (i.e. more readership and more money). At this point, for our purposes the statute more or less falls away: as the court says, the "newsworthiness" exemption exists for First Amendment reasons (i.e. the statute would be unconstitutional without it) and it "tracks the constitutional right to freedom of speech[.]"

Facebook raised two arguments as to why the newsworthiness exemption applied to the Sponsored Stories, and it's these, especially the first, that I want to think about here: 1) that Facebook users "are 'public figures' to their friends," and 2) that any "expressions of consumer opinion" are newsworthy in and of themselves. Roll that phrase over in your head for a second: "public figures to your friends." Even granting the ambiguity ("Facebook friends" vs. "actual friends"), the oxymoron-ish-ness of being public to my select group of friends is enough to send me spiraling into an existential crisis. If something is only public to some people, and not to others, what does "public" even mean any more?

The Fraley court (understandably) dodges the chance to call 40 years of public/private First Amendment doctrine into question. (Instead, the court falls back on 9th Circuit precedent saying that using people's identities purely for advertising purposes doesn't qualify for the exemption – also interesting, but that takes us on a detour into the land of Commercial Speech, and I'd prefer to avoid that road for now.) But that seems to be the implication of Facebook's argument: within the walls of Facebook, nothing you do is private.

And in a certain light, it sort of makes sense. Let's take defamation law, since that's the 900-pound gorilla whenever you're talking public/private stuff: your basic Sullivan tells you that public figures can only win defamation cases if they show "actual malice," not just negligence. So, play it out: Say you and I are friends on Facebook. I post something about you, and you know it's false. You feel defamed. You sue me. But if you're a "public figure" in the Facebook world, and that's where my post is seen (let's pretend it doesn't leak out into the real world), then you'd have to show that I posted about you with actual malice. (This hypothetical gets complicated quickly: Are you a public figure to your Facebook friends? Mine? The ones we have in common? For simplicity's sake, we'll say: To anyone who sees the post on Facebook.)

One of the classic justifications for "public figure" status, making it harder for famous people to win defamation cases, is that putting up with false statements about you is part of the deal. When you put yourself into the public light, you have to put up with the consequences – among them, people saying false stuff about you. Sometimes, you'll see people make the related claim that famous people can more readily fight falsehood by accessing mass media (e.g. it's easier for Jay-Z to disseminate his side of the story than it is for you and me (unless you are in fact Young Hov, in which case, thanks for reading; big fan)).

Notice that both of these justifications – basically, the "you asked for it" and "you have the ability to respond" arguments – could apply to Facebook users. Facebook is free and voluntary, so maybe putting up with people saying stupid things is part of the territory. And when I write something false about you, you can easily respond through the same channels and get your side of the story heard.

There's a tinge of this approach in the Fraley order. As part of showing that they have sustained economic harm, the plaintiffs argue that their endorsement of products – by, for example, clicking a Like button – has economic value, just like a celebrity endorsement would have. Facebook, by co-opting that value by selling the Sponsored Stories, thus vacuumed up money that the individual users could have gotten by exchanging their "endorsements" for compensation directly from the advertisers. The court bought this, at least enough to deny a motion to dismiss, and mentioned that "the distinction between a 'celebrity' and a 'non-celebrity' seems to be an increasingly arbitrary one."

Now, I don't mean to overstate the importance of one order in one case. And the motion to dismiss stage is still awfully early, where the plaintiffs get a lot of the benefit of the doubt. But Fraley at least highlights a problem that's only going to grow – the decay of the public/private divide. We're used to applying those categories pretty mechanically (so-and-so involved a matter of public concern, so protection; this guy's a public figure, so protection), but as we reach the point where everything is public, we're going to have to take a step back and ask the harder question: not "Is this public?" but "Is this something the First Amendment should be protecting?"

That's some heavy stuff, and I'm not going to pretend to have answers here. But we're going to need to figure out something workable if we want to preserve the protections we're so fond of. One of the big benefits of the public/private distinction, of course, is its clarity, which lets everybody know where they stand and keeps judges from over-reaching into speech rights in the name of "fairness." Once the fogginess creeps in, it's easier for courts to side with seemingly sympathetic parties against the more abstract speech rights. To fight that, we'll need to be able to present some kind of coherent framework for deciding what gets protected and what doesn't in a world where everything is "public" in one sense or another.

John Sharkey is a CMLP intern in his second year at Harvard Law. He is enjoying the Ricky Rubio experience.

(Photo courtesy Flickr user pshab, used under a Creatve Commons BY-NC 2.0 license.)

A New Heavyweight Steps in the Ring as Round 2 Begins in Obsidian v. Cox

Arthur Bright — Mon, 09 Jan 2012 21:25:38 +0000

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v. Cox case. That's the case where an Oregon federal judge rejected blogger Crystal Cox's contention that she was a member of the media, thus clearing the way for a $2.5 million verdict against her for defaming the plaintiffs.

The story resulted in much hooting and hollering online, particularly from bloggers outraged that the judge ruled that they were not protected under Oregon's shield law. Though as CMLP guest blogger Eric Robinson pointed out, the shield law issue was a sideshow to a much bigger problem in the ruling: that Judge Marco A. Hernandez had ruled that the Supreme Court's decision in Gertz v. Robert Welch, Inc. does not apply to Cox because she is not "media."

Gertz stands for the proposition that plaintiffs in a defamation case cannot recover any damages without proof that the defendant was at least negligent, and may not recovered presumed damages without proof of the defendant's "actual malice." In Cox, the judge ruled that Gertz only applies to media entities, and – using a rather arbitrary list of what defines the media – determined that Cox was not a member of the protected class. This in spite of several cases (of which the judge took no notice and Cox, acting pro se, did not cite) that state just the opposite.

Well, Cox now has filed a motion for a new trial challenging the court's reasoning on omitting Gertz, and this time she's got some help: Portland lawyer Benjamin Souede and First Amendment scholar Eugene Volokh. Volokh's addition is particularly significant: besides being a First Amendment expert, he's also a serious blogger himself, overseeing and writing for the eponymous Volokh Conspiracy. There aren't too many better lawyers than Volokh to fight this sort of fight, I suspect.

In the motion for a new trial, Volokh and Souede are arguing that precedent clearly establishes that Gertz applies whether or not Cox is a member of the media, thus entitling her to a jury instruction establishing the burdens on the plaintiffs to prove liability and recover damages. Further, they argue, the plaintiffs should be treated as public figures, thus invoking the "actual malice" standard of New York Times v. Sullivan. Finally, they argue that Cox is entitled to a new trial, or at least remittitur, because the evidence provided to the jury did not support an award of $2.5 million in damages. The motion is available on our legal threat database entry on the case.

Of course, this is just the first punch in a new round in Cox; we've got a long way to go before we see a winner. But this'll definitely be one to follow in the coming months, as it looks like some of the judge's dubious rulings might finally get the review that they deserve.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally at @NominallyBright.

(Image courtesy of Flickr user KWDesigns licensed under a CC BY-ND 2.0 license.)

Promoting Vetted News Content on Social Media (or, How Not to Give Your Lawyer a Heart Attack)

Jeffrey P. Hermes — Thu, 05 Jan 2012 19:32:26 +0000

By now, it is a given that many journalists have a regular presence on social networking services. The value of social media for gathering information, developing the journalist’s public persona, and promoting the journalist’s work is well-recognized. And although many news outlets have established guidelines and policies regarding behavior on social media, most outlets still permit journalists substantial discretion as to the tone and content of their tweets and posts.

Special concerns arise, however, when you use social media to promote articles that have been vetted by your attorneys. To understand these concerns, it helps to understand more about what media lawyers are looking for when we perform prepublication review of an article.

Although there are numerous issues that we might consider, media lawyers are primarily concerned with any statements in an article that might adversely affect the reputation of identifiable people or companies. Of course, a great deal of sound journalism can be damaging to reputation, including stories about political corruption, unfair business practices, or criminal activity. The lawyer’s concern is normally not whether such stories are newsworthy (that is up to you and your editor), but whether there is adequate factual support for the statements in your article. Thus, on the most basic level, our review involves identifying the individuals and companies at issue in an article and the factual support for statements about those people.

We give particular attention to people who are not the main focus of the article, because it is sometimes the case that less time is given to researching facts about secondary parties. Errors about these side players in a story can also generate legal claims, and sometimes your lawyer might suggest cutting references in your article to secondary parties if it seems that the facts about those people are underdeveloped.

On a deeper level, we are concerned with the overall context and gist of the article. Because defamation claims can arise not only from the explicit text of an article but also from reasonable inferences drawn from the text, we want to be sure that there are no inferences that an audience could draw from your article that you do not intend. To that end, we might suggest language changes or restructuring of the article to eliminate juxtapositions of fact and other contextual clues that make it appear that an article is suggesting more than it can actually support.

Our goal in this process is risk management: We try to enable you to publish everything that you want to publish while moderating any risks involved. Because it is not our function to act as censors who cut broad swaths out of your work, we instead try to resolve any issues we see in as narrow and tailored a method as possible – a change of word here, a swapping of sentences there. Often we make suggestions based upon nuances of legal doctrine that are not always intuitively obvious. The end result might look pretty much like the original, but there is always a reason for the specific selection and placement of words and sentences.

Frequently, the articles that media attorneys are asked to review involve important issues and high-profile individuals. Journalists who break these stories are justifiably proud of their work and have every incentive to promote and discuss it, including through social media. However, a journalist’s statements on social media are likely to be considered part of the context for the story, and can actually change how the story is interpreted.

Great care should therefore be taken in saying anything online about a vetted story, in order to avoid reviving any problems or issues that were addressed through the review process. The following are some guidelines to consider in collaboration with your editor when thinking about how to promote vetted stories on social media:

Never say anything about the story that you would not be comfortable publishing in the text of the story itself. No matter how limited you believe your audience to be, assume that anything you say is appearing on the screen of attorneys representing the people and companies you are writing about.
If any facts did not make it into the article (especially facts removed from the story during vetting), those facts should not appear through social media. It might be very tempting to reveal additional facts as an added value for your social media followers, or to answer questions from your followers that involve things you learned that did not make it into the article. However, nothing will cause your attorney to go into cardiac arrest faster than seeing material posted on Twitter that was carefully removed from the article itself the night before.
Do not suggest that there is more to the story that you were not allowed to reveal by your attorneys. We know that the vetting process can be frustrating, but comments like this tread perilously close to waiving attorney-client privilege. At the very least, such comments will lead to people begging you to reveal the inside scoop, and you might be tempted to say things that you shouldn’t (see the prior point).
Be circumspect about stating your personal opinions about people or companies referenced in the story. Your audience could reasonably assume that the point of the article is to support your opinion, leading them to read more into the article than you intend.
If you realize that you have made a mistake in an article, do not panic or rush to apologize through social media. Instead, follow your organization’s procedure for retractions and work on any further response with your editor. An apology can help in some cases, but it might also be used against you as an admission of negligence.

Social media websites generally encourage freewheeling, open, and casual communication, and that type of interaction can be of tremendous value to journalists and news organizations. But when speaking about an article on social media, it is wise to keep in mind all of the careful decisions that went into the publication of the article, whether those decisions were made by your attorney, your editor, or you yourself.

Jeff Hermes is the director of the Citizen Media Law Project. He is writing about general practices in this article, and not commenting on the conduct of any particular news outlet – or, for that matter, his own cardiac health. This article originally appeared on the Investigative News Network website.

(Image courtesy of Flickr user Mysha Islam under CC BY-NC 2.0 license)

Want to be the New Righthaven.com? Just Three Shopping Days Left!

Arthur Bright — Tue, 03 Jan 2012 21:27:25 +0000

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven.

When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn (who is represented by friend of the CMLP Marc Randazza). Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its ~~trolling~~ business.

It's certainly been eventful since then.

After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net. Among the highlights (as well documented by Steve Green of the Las Vegas Sun):

● In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: righthaven.com itself. And it's being auctioned right now! Yes, the domain name of the country's self-described "pre-eminent copyright enforcer" can be yours! (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.) But hurry, the bidding closes on Jan. 6, just a few days away!

● Righthaven has seen several of its cases tossed out for procedural reasons, most notably including its appeal to the Ninth Circuit of its lawsuit against Garry Newman. The Ninth Circuit apparently ordered Righthaven to file a mediation document within seven days, but Righthaven declined to do so. The Court then gave them seven more days. When Righthaven declined to do so again, the Court dismissed the appeal.

● And in the latest bit of news, Righthaven is being sued by its process server for lack of payment. And is facing a contempt motion filed by the Randazza Legal Group, after Righthaven CEO Steven Gibson and his wife Raisha "Drizzle" Gibson failed to obey a court order to turn over information about their resources in order to satisfy what Righthaven owes Hoehn. Oh, and a South Carolina Tea Party group is suing Righthaven and attempting to pierce their corporate veil. Good times in camp Righthaven!

So all in all, 2011 was a remarkable year for Righthaven, going from mass litigator supreme to on-the-ropes debtor. We can only hope that the soon-to-be owner of Righthaven.com will have better luck (and fewer dubious legal claims) in their business endeavors.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor. He tweets occasionally here.

(Image courtesy of Flickr user opensourceway licensed under a CC BY-SA 2.0 license. Image originally appeared in Going after a troll for barratry by Pam Chestek on opensource.com.)

A Look Back at 2011

CMLP Staff — Fri, 30 Dec 2011 00:23:59 +0000

As we approach the new year, the staff of the Citizen Media Law Project had the opportunity -- thanks to a kind offer from Student Press Law Center Legal Fellow (as well as CMLP friend and blog contributor) Rob Arcamona -- to take a look back at the biggest issues in media law over the past year in an article for PBS MediaShift. Jeff and Andy worked with Rob to identify 2011's top ten legal issues in professional and citizen journalism, so go check it out and see if you agree!

We hope you are all having a wonderful holiday season, and will see you again in 2012!

Bold Experiment in Los Angeles Pushes the Boundaries of Irony

Jeffrey P. Hermes — Fri, 23 Dec 2011 14:48:06 +0000

In a dramatic, last-minute effort to win the prize for “Most Obnoxious Law Enforcement Tactic of the Year,” the Los Angeles City Attorney’s Office has announced that many arrested Occupy L.A. protesters will, as an alternative to fines or jail, be given the opportunity to attend “free speech” school to learn what rights they don’t have.

Let’s reflect for a moment on this one, shall we? The City of Los Angeles wants to teach people about the First Amendment. I needed to check that they were actually talking about the First Amendment to the United States Constitution, because they have occasionally seemed to lack familiarity with that document. This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.” Yes, art cops.

One can only imagine what a First Amendment course sponsored by Los Angeles would look like; constitutional law is complex at the best of times, let alone in connection with protests that test the edges of doctrine. That being the case, I imagine the course probably won’t have time to cover protesters’ rights under 42 U.S.C. § 1983 to sue the city and the police for violations of their rights of assembly and expression. To round out the course materials, here’s a link to information on Section 1983 claims maintained at the Sacramento County Public Law Library.

But L.A. is not offering a public education to these poor misled souls who thought they had a right to express their beliefs – it turns out that the city wants to send the 99% to private school. The protesters are being offered the chance to attend a program offered by American Justice Associates, which bills itself as “a supportive arm of the Los Angeles City Attorney's Office since 1995.” The company is, however, a private entity and not a branch of the government.

The Occupiers will have the opportunity to pay $355 for the course, but it is tough to say whether they will get their money's worth. You know, if Los Angeles is bringing in outside help, maybe they could consider hiring someone like Marc Randazza to run the course – he should be done dismantling Righthaven soon and might have time to help. And it would be fun to see what Marc would do with the tuition fees.

Of course, some of the Occupiers will voluntarily go to the reeducation camp rather than face charges or spend more time in jail. I can’t say I’d blame them, really – but personally I'd rather learn about fair use from YouTube’s infamous Copyright School. Let’s just hope they remember that there are other folks willing to advise them on their rights – for free.

Jeff Hermes is the Director of the Citizen Media Law Project and has a passing familiarity with the First Amendment.

(Image courtesy of The Valley Library at Oregon State University under CC-BY-NC-SA 2.0 license)

Strong FOI Laws Expose More Than Just A Governor’s Diet

Justin Silverman — Thu, 22 Dec 2011 19:52:24 +0000

Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov. Paul LePage believes it’s none of the public’s business. When it comes to his meals, what’s eaten in the governor’s mansion stays in the governor’s mansion — the state’s Freedom of Access Act be damned.

“We have received requests for all grocery receipts from the Blaine House,” LePage wrote earlier this year. “I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

In a July letter to Maine’s right-to-know advisory committee, LePage expressed concern over a prying public interested in matters beyond government business and political foes making “incredibly broad requests” merely to overwork his staff. The committee responded earlier this month by approving a plan to exempt all the governor’s “working papers” from the state’s Freedom of Access Act. As critics of the proposal lament, it’s not clear what documents are considered “working papers” or how the exemption addresses the governor’s initial concerns over grocery receipts. Still, the proposal makes Maine the latest of several states to have recently considered narrowing their respective FOI laws.

According to the Sunshine Review, 12 states this year proposed a total of 39 bills that, if made law, would at least partially narrow their FOI statutes. Some of these bills died before passage, though many remain active and are just a governor's signature away from becoming law. One of those bills is Illinois HB 1716 which would significantly alter that state's Freedom of Information Act by increasing fees for certain record requests and by imposing less favorable deadlines and fees on repeat requesters. It would also entitle Illinois agencies to additional exemptions and redactions before disclosure.

"Instead of trying to limit FOIA, government agencies and municipalities throughout Illinois should be putting their time and energy into transparency efforts that make them more accessible to and candid with the taxpayers who are funding them," wrote Andy Shaw, president of the Better Government Association. "Limiting taxpayers’ access to information about their government, and deciding that some are more worthy of receiving the information than others, is simply bad policy."

Other examples of proposed legislation include House Bill 347 in New Hampshire that would exempt police reports of car crashes involving undercover police, House Bill 1 in Ohio that exempts the publicly-funded JobsOhio agency from all public records and open meeting requirements, and House Bill 883 in Missouri that could make violent crime scene photographs or videos confidential.

Unfortunately, for many state officials, transparency is just an election day pitch. Gov. LePage’s pre-election pledges are prime examples. According to the Reporters Committee for Freedom of the Press, LePage devoted an entire section of his campaign website to open government. LePage “will fight for stronger laws to protect and expand Maine citizens’ right to access information from state and local government,” the site advertised. “When Paul is governor, open government will be a reality, not a talking point.” Then, just months after being elected governor, LePage signed an executive order exempting a business advisory council from the state’s Freedom of Access Act.

LePage is not alone in breaking such promises. Fla. Gov. Rick Scott proclaimed that “without transparency, there is no accountability” and then, in the opinion of local media members, avoided the press more than any other governor before him. Ohio Gov. John Kasich said that his “bias is towards openness,” and then replaced his Department of Development with JobsOhio, the private non-profit group he intends to exempt from the state’s FOI laws. Wis. Gov. Scott Walker actually pledged to “run the most open, transparent gubernatorial administration in the history of the universe.” He later faced a lawsuit by members of Wisconsin media after refusing to release emails referred to in his speeches.

“What you see is people running for public offices, governors certainly among them, embracing transparency in a sort of abstract way when they are on the campaign trail, without probably giving much thought to what it means when you are governing," explained Charles Davis, the former executive director of the National Freedom of Information Coalition.

A study published last summer provides a timely lesson to these officials looking to cloud their state’s sunshine laws. Essentially, it quantifies what FOI advocates already know: The more open a government, the more deterrence of corruption. According to the study’s authors:

“One of the most important changes in the relationship between public officials and the press in recent years has been the widespread adoption of FOIA laws at multiple levels of government. These laws provide clear guarantees regarding the rights of individuals and organizations to access information about government activities, and they make it easier for members of the press and members of the public at large to hold those in power accountable for their actions.”

To find that accountability, the study examined the connection between states strengthening their FOI laws and the proceeding corruption convictions for state and local government officials. It found that conviction rates rise substantially after the change in law and then decline for as long as 15 years. In summary,

“[t]he enaction of a strong FOIA law leads to a substantial increase in the rate at which corrupt acts are convicted. Depending on the specification, the rate approximately doubles, or perhaps slightly more than doubles. If taken at face value, this obviously has important policy implications. States can substantially increase the probability that corrupt officials will be unmasked and prosecuted by enacting strong FOIA laws.”

It should be no surprise then that of the 12 states proposing bills this year to narrow their sunshine laws, only four were ranked in the top half of the Better Government Association’s 2008 Alper Integrity Index. That’s strong evidence to support the rhetoric most often used by FOI advocates. It goes to the heart of why sunshine laws are necessary: To prevent corruption.

Gov. LePage may be wary of the public inspecting his grocery bill, but it’s a small price to pay for the confidence of constituents. By griping over potential culinary oversight, he opened the door to far more dangerous FOI exemptions. Citizens of other states should take note. While some legislatures are preserving their sunshine laws — some even strengthening them! — many are not. That’s a troubling sign for accountability, a principle that deserves more than mere lip service by our elected officials.

Justin graduated from Suffolk University Law School in 2011. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of "Whoopie pies" used courtesy of Flickr user joyosity under a Creative Commons BY NC 2.0 license.)

Is It Enough to Tell Jurors Not to Tweet?

Eric P. Robinson — Mon, 19 Dec 2011 19:33:12 +0000

The Arkansas Supreme Court has reversed a murder conviction – and death sentence – in a case where one juror tweeted during trial, while another fell asleep. Both these problems, the court said, constituted juror misconduct requiring reversal and a new trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Dec. 8, 2011).

While the court said that the dozing juror alone required reversed of the conviction and sentence, the court added that the second juror's tweets also required a reversal.

The Supreme Court was particularly concerned about one of the juror's tweets, “Its over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror's Twitter feed – including, the court said, at least one journalist (with the online magazine Ozarks Unbound) – "had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court."

Dimas-Martinez's lawyers also pointed out that the tweeting juror tweeted during trial despite continued admonitions to the jury throughout the trial warning them not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet. (That one said, "Choices to be made. Hearts to be broken. We each define the great line.")

The case raises the question of whether admonishing jurors to not use the Internet and social media is effective. The Arkansas Supreme Court expressed its clear concern, and suggested that measures more drastic than admonitions may need to be taken:

[W]e take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case. Thus, we refer to the Supreme Court Committee on Criminal Practice and the Supreme Court Committee on Civil Practice for consideration of the question of whether jurors’ access to mobile phones should be limited during a trial.

Of course, one problem with such bans is that they are not effective once the jury goes home for the day. Another is that they are often unevenly applied.

It is worth noting that while the jurors in this murder trial were told not to tweet about the trial, it does not appear, based on the admonitions repeated in the Arkansas Supreme Court's decision, that they were told why. This is despite the fact that the state's model jury instructions for criminal cases includes a lengthy discussion of the subject: After stating that "You must decide this case only on the evidence presented in the courtroom," Ark. Model Jury Instr., Civil 101 (Dec. 2010), the model instruction goes on to state that:

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. The parties have entrusted their case to you and to no other person or entity. If you become aware of any violation of these rules you must notify court personnel of the violation.

Such full explanations of the possible consequences of jurors tweeting, texting, and using other social media and the Internet during trial are probably going to be the only way that the courts will be able to deal with this growing issue. Futile attempts to keep the electronic equipment out of the courthouse, or adopting unrealistic rules limiting their use, is not going to put the electronic genie back in the bottle.

(Image courtesy of Flickr user shawncampbell under CC BY 2.0 license.)

The Online Media Legal Network Celebrates its Second Birthday!

CMLP Staff — Thu, 15 Dec 2011 13:47:27 +0000

We are pleased to announce that the Online Media Legal Network, the Citizen Media Law Project's legal referral service, is now two years old!

The OMLN was started in Dec. 2009 as a way to help online journalism ventures and digital media creators find lawyers experienced in the sorts of legal issues media ventures face and to provide legal services on a pro bono or reduced-fee basis.

Now, two years later, the OMLN has a network of 232 lawyers in 49 states and the District of Columbia who are willing to offer their services to needy citizen journalists and online publishers. And help they have: as of Dec. 9, the OMLN has over 170 clients and has found counsel for 347 different legal matters, ranging from setting up a business to authoringwebsite terms of use to defending clients against defamation claims.

We commemorated the event with a talk this week as part of the Berkman Center's Tuesday Luncheon Series, where we discussed the history of the OMLN, how the OMLN works, and what we've learned from it. In-person attendees included attorneys from OMLN member firms Booth Sweet LLP and Hermes, Netburn, O'Connor & Spearing, P.C.; OMLN client and former Berkman fellow Tom Stites; and a host of citizen journalists, Berkman fellows, and other interested folks. Many thanks to all who attended!

And many thanks to the Open Society Foundations, John S. and James L. Knight Foundation, and The Harnisch Foundation, as well as the law firms who have made donations to the OMLN; without your generous financial support, the OMLN's success would not have been possible!

An archive of the talk is available online; for more information about the OMLN, please watch the archive of our presentation here.

(Image courtesy of Flickr user ateliertally licensed under a CC BY-NC-SA 2.0 license.)

CMLP Alert: Mass. SJC Rules on Impoundment of Inquest Materials in Amy Bishop Case

CMLP Staff — Wed, 14 Dec 2011 16:47:30 +0000

On December 13, 2011, the Supreme Judicial Court of Massachusetts ruled that a judge of the Superior Court followed the wrong standard when denying a request by the Boston Globe for access to the transcript and report of an inquest into the death of Seth Bishop, the brother of Amy Bishop.

In Massachusetts, an inquest is a form of special investigative proceeding initiated by a district attorney or the Attorney General in which a judge analyzes the circumstances and cause of a person's death -- including identification of any person whose "unlawful act or negligence appears to have contributed" to the death. Unlike other judicial proceedings, the judge does not act as a neutral arbiter; rather, the judge takes an active role in investigating the cause of death.

The transcript and report of the inquest constitute a record the process followed and conclusions reached by the judge. However, an inquest is not a prosecution: no criminal charges are brought in the proceeding; no legal defenses are considered; and the court's findings are neither evidence nor a determination of guilt on the part of any individual. Instead, the inquest procedure is used (sparingly) by prosecutors to investigate the cause of death, usually to determine whether criminal proceedings are appropriate.

The results of inquest proceedings are naturally of significant interest to the public because they represent an official evaluation of a deceased person's cause of death. There has been concern, however, that if prosecutors decide to bring charges after an inquest, the release of the results of the inquest before trial might prejudice the right of the accused to a fair trial.

The Bishop inquest was conducted in the Quincy Division of the District Court Department. and ended on May 25, 2010 with the filing of the judge's report and transcript. On June 16, 2010, a Norfolk County grand jury returned an indictment charging Amy Bishop with murder in the first degree in connection with her brother's death. That same day, the Globe filed a request to access to the inquest materials, which was denied by a judge of the Superior Court on June 18. In denying the Globe's request, the Superior Court followed a common law rule established by the SJC in 1969 with respect to inquest materials from another infamous case, the death of Mary Jo Kopechne. The earlier case, Kennedy v. Justice of the District Court of Dukes County, stated that in order "to protect the integrity, the investigatory character, and the effectiveness of inquests," inquest materials should be impounded automatically until such time as any criminal case resulting from the inquest is resolved,whether by a decision to terminate the prosecution, a grand jury's refusal to return an indictment, dismissal of the charges, or trial.

The Globe challenged the denial, and, after an appeal in which the Citizen Media Law Project filed an amicus brief, Massachuetts' highest court has now ruled that the Superior Court applied the wrong legal standard in denying the Globe's request. The Supreme Judicial Court held that the Massachusetts Legislature abrogated the common law rule set forth in the 1969 Kennedy decision with the enactment of Chapter 38, Section 10 of the Massachusetts General Laws in 1992. Section 10 states that the judge conducting the inquest must file the judge's report on the results of the inquest as well as the transcript of the inquest, which shall be impounded "until the district attorney files a certificate with the superior court indicating that he will not present the case to a grand jury, or files notice with the superior court that the grand jury has returned a true bill or a no bill after presentment by the district attorney."

In other words, the statute requires that impoundment of the inquest transcript shall last until (1) the district attorney decides not to pursue an indictment or (2) the grand jury rules upon the request for an indictment, whichever comes first. Looking another state statute with similar language (Chapter 276, Section 2B, governing materials filed in support of obtaining a search warrant), the SJC held that, by negative implication, the inquest transcript presumptively becomes a public record after the events described in the statute. In addition, although Chapter 38, Section 10, only discusses impoundment of the inquest transcript and does not mention the inquest report, the SJC held that the report also becomes a presumptively public record at the same time as the transcript.

In the Bishop case, because the grand jury had returned an indictment before the Globe made its request for the inquest materials, the SJC held that those materials should have been treated by the Superior Court as presumptively public. It therefore vacated the Superior Court's denial of the Globe's request.

However, the SJC did not direct that the materials be provided to the Globe. Because the inquest materials were only presumptively public, the SJC held that it was still possible that a party desiring that the materials be withheld from public view could overcome that presumption and show "good cause" why the materials should continue to be impounded. The "good cause" standard normally considers the potential impact of releasing materials on a defendant's fair trial rights and any privacy rights that might be implicated, balanced against the strong public interest in access to materials that reveal how the courts function.

The court must also consider less restrictive alternatives that protect the rights at issue. For example, to protect the defendant's right to a fair trial, it might not be necessary to withhold inquest materials; rather, in seating jurors for a trial, the court can ask whether potential jurors have learned about the content of such materials and remove anyone who says yes from the jury. Similarly, to protect privacy rights, it might be possible to redact specific information from the inquest materials rather than withhold them from public view entirely.

In order to allow interested parties time to file a motion showing good cause why the impoundment be continued, the SJC directed the Superior Court to wait ten days before providing the inquest report and transcript to the Globe. It remains to be seen whether such motions will be filed, and whether the Superior Court will decide that continued impoundment of the inquest materials is appropriate. We will continue watching this case closely.