February 24, 2005
Judge Blocks DOJ's Attempt to Obtain Phone Records from New York Times
Judge Robert Sweet has refused to dismiss a 2004 lawsuit that the New York Times filed against the U. S. Department of Justice to prevent DOJ from obtaining records of phone calls placed between two of its reporters, Judith Miller and Philip Shenon, and some of their sources after the September 11, 2001 terrorist attacks. Judge Sweet cited his concerns that government secrecy seems to be rising. He also pointed out that the government failed to meet the relevant test--that the information it seeks is not only relevant to its case but is also material and is not obtainable through another route. He also likened the phone records to testimony by the reporters. Read the judge's lengthy ruling.
One of the reporters named, Judith Miller, is one of the journalists involved in the Valerie Plame Wilson case. According to an article in today's Times, Floyd Abrams, attorney for the paper in both cases, plans to use Judge Sweet's decision in the request for a rehearing before the full court in the Miller/Cooper case. Meanwhile, DOJ's Patrick Fitzgerald, unhappy with today's ruling, is considering an appeal.
February 23, 2005
DC Circuit Hears Oral Argument In Broadcast Flag Case
An appellate panel consisting of Judges Edwards, Sentelle and Rogers heard oral argument yesterday in American Library Association et al. v. Federal Communications Commission, et al., the "broadcast flag" case. According to observers, the questioning directed at the agency was particularly hot from Judge Harry Edwards, who told the FCC's attorney his client exceeded its authority in promulgating its rule. However, the other judges had reservations about the ALA's standing to contest the agency's rule. Read the ALA's brief here and the FCC's brief here. Read the ALA's reply brief here. Brooks Boliek writes about yesterday's arguments for the Hollywood Reporter here. Even the BBC is covering the story. Declan McCullagh's article on c/net has helpful links for the technology impaired as well as for those wishing to review the history of the FCC rule.
February 22, 2005
Shield Laws Proposed at State and Federal Levels
In the wake of the controversy over the refusal of Judith Miller of the New York Times and Matthew Cooper of Time Magazine to reveal the sources who provided information about CIA operative Valerie Plame Wilson, state and federal legislators have introduced bills to protect journalists in similar situations. Connecticut State Representative James Spallone introduced House Bill 5385 on January 19, which provides "[t]hat the general statutes be amended to establish a news reporter shield law providing that, with certain exceptions, a news reporter may not be compelled to reveal confidential sources in civil or criminal proceedings or investigations."
New York's State Senator Balboni introduced Senate Bill 1921 on February 7 to amend the Civil Rights Law to protect book publishers. Section 1(6) also defines the term "professional journalist."
Section 1. Paragraph 6 of subdivision (a) of section 79-h of the civil rights law, as amended by chapter 468 of the laws of 1981, is amended to read as follows:
(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
Section 2. Subdivision (a) of section 79-h of the civil rights law is amended by adding a new paragraph 9 to read as follows:
[A> (9) "BOOK PUBLISHER" SHALL MEAN A CORPORATION, COMPANY, PARTNERSHIP OR SOLE PROPRIETORSHIP THAT ROUTINELY PREPARES OR ISSUES FOR PUBLIC DISTRIBUTION OR SALE BOOKS, WHETHER WRITTEN OR AUDIO, AND WHETHER IN PRINT, ON TAPE, ON DISK, OR IN ANY ELECTRONIC OR OTHER MEDIUM, CONCERNING LOCAL, NATIONAL OR WORLDWIDE EVENTS, OR OTHER MATTERS OF PUBLIC INTEREST OR AFFECTING THE PUBLIC WELFARE. <A]
Section 3. Subdivision (b) of section 79-h of the civil rights law, as amended by chapter 33 of the laws of 1990, is amended to read as follows:
(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.
Section 4. Subdivision (c) of section 79-h of the civil rights law, as added by chapter 33 of the laws of 1990, is amended to read as follows:
(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, [A> BOOK PUBLISHER, <A] news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature, or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.
Section 5. This act shall take effect immediately.
U. S. Senator Richard Lugar (R-Indiana) has introduced Senate Bill 340 which would provide federal protections for journalists. Called the Free Flow of Information Act of 2005, it reads:
SEC. 2. CONDITIONS FOR COMPELLED DISCLOSURE.
(a) Conditions for Compelled Disclosure. No Federal entity may compel a
covered person to testify or produce any document in any proceeding or in
connection with any issue arising under Federal law unless a court
determines by clear and convincing evidence, after providing notice and an
opportunity to be heard to the covered person--
(1) that the entity has unsuccessfully attempted to obtain
such testimony or document from all persons from which such testimony
or document could reasonably be obtained other than a covered person;
(A) in a criminal investigation or prosecution, based on information
obtained from a person other than a covered person--
(i) there are reasonable grounds to believe that a crime has occurred;
(ii) the testimony or document sought is essential to the investigation,
prosecution, or defense; or
(B) in a matter other than a criminal investigation or prosecution,
based on information obtained from a person other than a covered person, the
testimony or document sought is essential to a dispositive issue of
substantial importance to that matter.
(b) Limitations on Content of Information. The content of any testimony
or document that is compelled under subsection (a) shall, to the extent
(1) be limited to the purpose of verifying published
information or describing any surrounding circumstances relevant to
the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of time
SEC. 3. COMMERCIAL OR FINANCIAL INFORMATION.
The provisions of section 2 do not apply to a request by a Federal
entity for any testimony or document that consists of only commercial or
financial information unrelated to newsgathering or news and information
dissemination by a covered person.
SEC. 4. COMPELLED DISCLOSURE PROHIBITED.
Notwithstanding any provision of section 2, in any proceeding or in
connection with any issue arising under Federal law, no Federal entity may
compel a covered person to disclose--
(1) the identity of a source of information--
(A) from whom the covered person obtained information; and
(B) who the covered person believes to be a confidential source; or
(2) any information that could reasonably be expected to lead
to the discovery of the identity of such a source.
SEC. 5. COMPELLED DISCLOSURE FROM THIRD PARTIES.
(a) Conditions for Compelled Disclosure. The provisions of sections 2,
3, and 4 shall apply to any testimony or document that a Federal entity
seeks from a third party if such testimony or document consists of any
record, information, or other communication that relates to a business
transaction between such third party and a covered person. Such record,
information, or other communication includes any telephone record or other
record held by a telecommunications service provider, Internet service
provider, or operator of an interactive computer service for a business
(b) Notice and Opportunity Provided to Covered Persons. A court may
compel the testimony or disclosure of a document under this section only
after the party seeking such a document provides the covered person who is a
party to the business transaction described in subsection (a)--
(1) notice of the subpoena or other compulsory request for
such testimony or disclosure from the third party not later than the
time at which such subpoena or request is issued to the third party;
(2) an opportunity to be heard before the court before the
time at which the testimony or disclosure is compelled.
(c) Exception to Notice Requirement. Notice under subsection (b)(1) may
be delayed only if the court determines by clear and convincing evidence
that such notice would pose a substantial threat to the integrity of a
SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.
The publication or dissemination of any testimony or document (or
portion of such testimony or document) sought under section 2 shall not
waive the requirements of such section. The publication or dissemination of
any testimony or document (or portion of such testimony or document),
identity, or information described in section 4 shall not waive the
prohibition described in such section.
SEC. 7. DEFINITIONS.
In this Act:
(1) Covered person. The term "covered person" means--
(A) an entity that disseminates information by print, broadcast, cable,
satellite, mechanical, photographic, electronic, or other means and that--
(i) publishes a newspaper, book, magazine, or other periodical;
(ii) operates a radio or television broadcast station (or network of
such stations), cable system, or satellite carrier, or a channel or
programming service for any such station, network, system, or carrier; or
(iii) operates a news agency or wire service;
(B) a parent, subsidiary, or affiliate of such an entity; or
(C) an employee, contractor, or other person who gathers, edits,
photographs, records, prepares, or disseminates news or information for such
(2) Document. The term "document" means writings, recordings,
and photographs, as those terms are defined by Federal Rule of
Evidence 1001 (28 U.S.C. App.).
(3) Federal entity. The term "Federal entity" means an entity
or employee of the judicial, legislative, or executive branch of the
Federal Government with the power to issue a subpoena or provide other
(4) Third party. The term "third party" means a person other
than a covered person.
Representative Michael Pence (R-Indiana) has introduced for himself and Representative Rick Boucher (D-Virginia) the same bill (H. R. 581) in the House. As of February 14, six other Congresspersons were co-sponsors of the legislation.
February 21, 2005
Court Allows Unsealing of Records in Safeway Case
In State v. Safeway Judge George King has allowed the unsealing of some records that may show that the defendants in that case, three supermarket chains, agreed to "mutual assistance" in order to outlast strikers during a lengthy labor union dispute during 2003/2004. The Los Angeles Times was an intervenor in the proceeding. Considering only the classification of the particular documents in an earlier proceeding as confidential, Judge King found that the public right of access outweighed the defendants' right to keep the materials private, particularly since the matter involved a lengthy strike (141 days), and also recognized the press' historic role in serving "as a monitor of both the State and the courts". He nevertheless stayed the order to release the materials until February 4th, pending the defendants' appeal to the 9th Circuit. On February 5th, the documents, called collectively a mutual aid agreement, became public, and the L. A. Times published an extensive article discussing them.