Archive | Journalism

Senate Judiciary Committee Meets to Discuss Federal Shield Law, S.987

By on September 12, 2013 in Journalism, Privacy

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Natasha Duarte contributed to this post.

The Senate Judiciary Committee is scheduled to meet with lawmakers today to discuss the federal reporter shield bill proposed by Senator Schumer (D-NY) in May of this year. Tune in to a live webcast of the meeting beginning at 10:00am.

The Free Flow of Information Act, S.987, includes some protection for reporters who are ordered to divulge confidential sources as part of a federal investigation. The public push for a federal shield law has gained traction over recent months as the public reacted to governmental invasions into journalist organizations like the Associated Press.

Although the bill seems to be a positive step towards granting journalists protection, critics have noted one troublesome section of the bill that limits the definition of who constitutes a “journalist” or a “covered person.” Senator Dianne Feinstein (D-Calif.) has proposed an amendment to S.987 that would limit the classification of a journalist to a salaried agent of an organization that “disseminates news or information.”

The Electronic Frontier Foundation outlined Feinstein’s proposed amendments to the definition of ”covered person”:

  • A person working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”
  • either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or
  • working as a student journalist “participating in a journalistic publication at an institution of higher education.”

Senator Feinstein cites a need to limit the bill’s protection from including those “who aren’t really reporters at all, who have no professional qualifications” and says she believes the bill should be applied to “real reporters.”

Critics of the proposed amendments have argued that a narrow definition of what it means to be a journalist doesn’t fit the ever-evolving model of reporting. Technological developments over the last two decades have resulted in a shift away from the traditional definition of what it means to be a “journalist.” Reporting is increasingly being done by citizen journalists, bloggers, and independent reporters who are not employed by traditional media outlets.

This model will no doubt continue to evolve along with new technology. Critics of the bill suggest that reporting is an act rather than a status and that those engaged in reporting should be protected from having to reveal their confidential sources regardless of medium, employer, or salary.

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Amicus brief argues NSA surveillance violates freedom of the press

By on September 11, 2013 in First Amendment, Journalism, Privacy

The Reporter’s Committee for the Freedom of the Press filed an amicus brief in ACLU v. Clapper arguing that government collection of call records violates the First Amendment freedom of the press by impeding reporters’ ability to maintain confidential sources.

The brief supports the ACLU’s motion for a preliminary injunction to stop the NSA from collecting logs of the time and duration of phone calls made within the United States. The ACLU’s complaint includes a First Amendment claim based on the freedom of association — the right to organize and express political ideas as a group — but RCFP’s brief focuses on the right of the press to gather news.

The brief argues that mass surveillance makes sources more wary of contacting journalists and emphasizes that confidential sources are critical to accurate reporting on important issues.

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New York Court Orders Fox News Reporter to Comply With Colorado Subpoena to Appear in Holmes’ Criminal Trial

By on August 24, 2013 in Journalism

Gavel-300x225This week, the Appellate Division of the New York Supreme Court affirmed a decision by a lower court that a Fox News reporter must comply with a Colorado subpoena to testify as a witness — and possibly divulge her confidential sources — in the criminal trial against James Holmes, the alleged gunman of the Colorado movie theater shooting.

In July 2012, Jana Winter released an article that claimed Holmes sent a notebook to his psychiatrist that contained details of his planned attack. Holmes’ defense attorneys, concerned that the notebook leak came from a Colorado law enforcement official and that such information may affect their client’s constitutional right to a fair trial, sought sanctions against fourteen law enforcement officials who knew of the notebook. When none of the officials admitted to leaking information to the media, on January 17, 2013, Holmes’ defense attorneys moved to compel Winter to testify and produce notes from the unnamed sources cited in her article. The Supreme Court of New York County enforced the Colorado District Court subpoena and Winter appealed.

Majority Opinion

On Wednesday, the New York Supreme Court Appellate Division held 3-2 that Winter is required to testify in Holmes’ criminal case. The opinion, written by Justice Clark, cited the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), which requires a witness to testify in another state. The court held that the petitioner complied with its burden of proof under CPL 640.10 when it secured a certificate from an out-of-state Colorado judge showing that Winter’s testimony was “material and necessary” and that the compulsion to testify would not cause Winter undue hardship as the petitioner would pay for her expenses.

The court held that New York’s shield law does not grant Winter protection from the Colorado subpoena to testify in Holmes’ case. The majority opinion held that Winter will be required to testify in Colorado and that she be subject to any testimonial privileges available under Colorado’s shield law rather than those privileges granted under New York’s shield law. The majority held that “the inquiry into admissibility and privilege remains the province of the demanding State [of Colorado] rather than the sending State [of New York].”

As for the substance of Winter’s testimony, the majority decision emphasized the distinction between compelling Winter to testify and compelling her to divulge her confidential sources, saying that the record does not establish with “absolute certainty” that the Colorado District Court will require Winter to disclose her confidential sources.

The majority opinion also ordered that the court record in New York be unsealed, citing a strong public interest in open access to court proceedings.

Dissenting Opinion
Two Justices dissented. The dissenting opinion written by Justice Saxe argued that Winter is protected from appearing in another state where there is a “substantial possibility” that the court will require her to identify her confidential sources. The dissent cited the protection granted to Winter under New York’s state shield law, Civil Rights Law Section 79-h[b].

In response to the majority’s CPL 640.10 discussion, Justice Saxe challenged the majority’s analysis of the “undue hardship” requirement of CPL 640.10. The opinion referenced the initial subpoena for Winter, saying that the January 2013 certificate to compel Winter to testify was ordered to identify who disclosed the notebook contents to the journalist.

Citing New York’s public policy of providing absolute protection for reporters, the dissent argued that the majority is incorrect in its analysis of what constitutes “undue hardship.” The dissent argued that the analysis is not limited to the costs and time of travel and missing work but should also acknowledge that the ordered disclosure of Winter’s confidential sources may affect her career as a journalist. The dissent stated that the majority ignored the “practical reality” of Winter’s situation, and therefore erred in holding that Winter’s testimony would not necessarily require her to divulge confidential sources.

Looking Ahead

The court battle is far from over. On Wednesday, Fox News filed an appeal notice with the New York Court of Appeals. The appeal will ask New York’s highest state court to reject the lower court’s decision that Winter must comply with the Colorado subpoena.

Samantha Scheller is a 2L at the University of North Carolina School of Law.

(Photo courtesy of Flickr user steakpinball pursuant to a Creative Commons CC BY-SA 2.0 license.)

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Center Staffer’s Book on Shield Laws Published

By on June 24, 2013 in Center for Media Law and Policy, Journalism

shield-lawsUNC Center for Media Law and Policy Research Fellow Dean Smith is the author of a new book, “A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism,” published in June by LFB Scholarly Publishing.

In his book, Smith shows how the debate over confidential sources evolved over the 115-year history of statutory shield laws, and he examines how First Amendment values drove the debate in both the courts and in legislative bodies.  He corrects some long-standing errors in the historical record.

The book also is a textual analysis of enacted and proposed shield laws and cases that tracks the evolution in thinking on the journalist-privilege issue. Finally, it is a reappraisal of Branzburg v. Hayes that suggests a fresh way of seeing that familiar Supreme Court case: as neither a beginning nor an end, but as a midway point in a conversation the courts are having with the American people.

His use of the emerging concept of popular constitutionalism as a theoretical framework led Smith to new and important insights about this area of law, including the fact that legislative and judicial decision-making were intimately intertwined. Drawing on contemporary legal scholarship, Smith used the reporter’s privilege issue to test constitutional-law scholar Michael Gerhardt’s theory of “non-judicial precedents,” and he has shown how, true to the theory, people acting outside the courts help give meaning to constitutional principles such as freedom of the press over time.

Smith earned his Ph.D. from the UNC School of Journalism and Mass Communication in 2012.  He has presented award-winning papers at academic conferences and published in scholarly journals.  Smith also has written two white papers for the media law center.  The first paper summarized the findings of a center-sponsored conference on how to meet the information needs of communities. The second report described the benefits of state public affairs networks (SPAN systems) that cover state government.

Smith spent the past academic year teaching media law and newswriting at N.C. State University and High Point University. This fall he will begin work as an assistant professor at High Point University.

Before coming to UNC, Smith worked for The Charlotte Observer (1990-2004) and The (Raleigh) News & Observer (2004-2006) as a copy editor, reporter, and editor.

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