Court Fines Patch Editor $300 Per Day For Not Revealing Sources

from the chilling-effects dept

The war on journalism isn't coming from just the federal government. Over in Illinois, a judge has fined Joseph Hosey, an editor for the AOL-owned hyperlocal news site, Patch, $1,000 plus court costs, plus $300 per day for refusing to reveal his sources on a certain story. This is pretty important. Having a journalist reveal sources basically ends that reporter's career as a serious investigative reporter because no source will trust that their information will be secret again. By definition, having the government require someone to do so certainly seems like a First Amendment violation, as it's a clear restriction on the freedom of the press. In addition, while we're skeptical of journalism shield laws (and how they can be used to exclude journalists, rather than include them), Illinois does have a shield law. Thankfully, Patch is appealing this ruling.

Filed Under: joseph hosey, shield law, sources
Companies: aol, patch

Sen. Feinstein During 'Shield' Law Debate: 'Real' Journalists Draw Salaries

from the protection-based-on-exclusivity...-what-a-wonderful-idea dept

Legislators are still trying to put together a national "shield" law for journalists (this is the third such effort at a national level) and, as usual, are bogged down in a semantic debate about who should qualify for these protections. Despite "freedom of the press" being hardwired into the system and the fact that a government effort to protect journalists from its own actions (seeking to identify whistleblowers and sources in order to punish them or shut them up) lies somewhere between "ironic" and "disingenuous," the pursuit of a credible "shield" law continues.

The bill's definition of "journalist" seems straightforward enough.

The bill defines a journalist as a person who has a "primary intent to investigate events and procure material" in order to inform the public by regularly gathering information through interviews and observations.

It also adds this stipulation, which is a bit more troublesome.

The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.

I can see this stipulation working against whoever the government feels is worthy of the title "journalist." News develops. It seldom has a distinct starting point. Of course, if someone is a journalist, it stands to reason that they're always "planning" to publish their findings. But that might be a lot harder to prove when the government starts slinging subpoenas.

If someone sends a tip to a journalist, it may not be immediately evident that it is newsworthy. It might be some time before it's determined to be important, newsworthy and its source in need of protection. It's a strange stipulation and one that seems to poke some compromising holes in the "shield."

But onto the "who's really a journalist" argument. Some elected officials feel the language in the bill isn't specific enough. One in particular, Dianne Feinstein, repeated the stupid but inevitable phrase that always accompanies discussions related to shield laws:

Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to "real reporters."

This is nothing new for Feinstein, who's (along with Sen. Dick Durbin) previously made the argument that acts of journalism can only be performed by major news agencies, cutting everyone else out of the protective loop. This is a protective move based partially on ignorance and partially on the reality that major news networks are easier to control, seeing as most aren't willing to give up access to the Beltway by pissing off its residents.

Sadly, this sort of reactionary ignorance isn't limited solely to government representatives. This same sort of statement has been made by published authors to demean the self-published and by old school journalists to demean bloggers, serial Tweeters and pretty much everyone not associated with a sinking masthead. Whenever someone assumes they're capable of determining who is or isn't a real whatever, they're usually speaking from a position of privilege, one that can only be maintained as long as the status remains quo.

The same goes for government officials arguing over the definition of "journalist." It's someone who performs the act of journalism. It's as simple as that. But if you accept this definition, then you put the government at a greater "risk" of not being able to pursue and punish those who expose its wrongdoing. Feinstein makes this governmental fear explicit in another comment.

Sen. Dianne Feinstein, D-Calif., wondered whether it could be used to provide protections to employees of WikiLeaks, an organization that allows anonymous sources to leak information to the public.

"I’m concerned this would provide special privilege to those who are not reporters at all," she said.

Two things to note: One, the government would hate to see people like Snowden or Manning go unpunished because someone at Wikileaks was able to deflect subpoenas and court orders with these protections. Second, this isn't just a government push -- the news industry itself has expressed a willingness to sacrifice Wikileaks in order to expedite passage of a shield law.

It seems rather unlikely the government would extend this protection to entities like Wikileaks (especially not with major news agencies on board with selling out Wikileaks, etc.), but at least Sen. Schumer pointed out that Feinstein's belief that "real" equals "drawing a salary" was a very ignorant take on the current reality.

"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."

If this bill is ever going to provide real protection for journalists, it will first have to recognize that journalism isn't defined by the journalist's employer, paycheck or association with a large media company. It's an act and it can be performed by nearly anyone. More importantly, the bill should be equally as concerned with building in strong consequences for government actions that undermine this protection. Without these, entities like the DOJ will hardly be dissuaded from using "unofficial channels" to seize phone records or trace email conversations in order to hunt down protected sources.

Filed Under: dianne feinstein, journalism, journalists, shield law

DOJ's New 'Less Likely To Spy On Press' Rules Only Apply To Whoever DOJ Feels Is Really 'News Media'

from the seems-like-a-big-loophole dept

We recently mentioned that the DOJ has put out its revamped guidelines in which the organization promises to be a little more careful before spying on journalists and their sources (and friends, colleagues and family...). However, as some are pointing out, the guidelines appear to be pretty careful about defining "the press" to only mean "people who work for big media organizations." Everyone else is fair game.

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

This kind of issue keeps coming up with the discussions around a "media shield" law, in which politicians keep suggesting that we need an official designation for who is and who is not a journalist. Of course, as we've been saying for years, that's silly and antiquated. You could easily write such a shield law to be about protecting journalism rather than journalists. That's because, these days, almost anyone can do journalism, if the opportunity presents itself. If someone is trying to bring important information to the public, that's a journalism role, and those actions should be protected, no matter who the employer might be.

The government's continued insistence that it somehow needs to define who is and who is not a journalist seems like it's not just a mistake from a policy perspective, but also something that (perhaps on purpose) leaves open a giant loophole to spy on lots of people the government probably shouldn't be spying on.

Filed Under: doj, guidelines, journalism, journalists, shield law

DOJ: Now That We've Been Embarrassed For Spying On Journalists, We'll Be A Little More Careful

from the until-congress-says-otherwise dept

Right before the Snowden leaks came out, you may recall there were some other controversies, involving the DOJ spying on reporters, including claiming that reporter James Rosen was an "aider, abettor or co-conspirator" in order to get access to his emails and phone records. In response to this controversy, President Obama... put Attorney General Eric Holder in charge of investigating these efforts, despite the fact that it was under Eric Holder's watch that these things happened.

In response, the DOJ is apparently revamping its guidelines to make it slightly more difficult for them to do what they already did:

The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.

They would also make it harder — though not impossible — for prosecutors to obtain a journalist’s calling records from telephone companies without giving news organizations advance notice...

According to that report at the NY Times, the DOJ also said that it can't do any more unless laws are changed:

“This is as far as the department can go on its own until Congress passes the media shield legislation,” the Justice Department official said

That's simply not true. The DOJ's guidelines are just that: guidelines. They can set pretty clear guidelines for themselves that make it clear that the DOJ will not spy on reporters' communications with sources. But they're choosing not to do so. Either way, all of this seems (yet again) like a reaction to them being called out on questionable behavior. They made no effort to fix these guidelines until what they were doing came out in the news. It's difficult to take the DOJ seriously when they promise to change after they've been caught.

Filed Under: doj, eric holder, guidelines, james rosen, journalists, privacy, shield law, spying

Senator Lindsey Graham Apparently Not Sure If Bloggers Deserve 'First Amendment Protection'

from the well,-that's-interesting dept

Senator Lindsey Graham made an interesting slip of the tongue recently, saying that he's not sure if bloggers deserve first amendment protection:

"Who is a journalist is a question we need to ask ourselves," he said. "Is any blogger out there saying anything—do they deserve First Amendment protection? These are the issues of our times."

Now, as many people will rightly point out, within the context it's pretty clear that he spoke imprecisely. He was discussing a potential shield law for journalists. He wasn't really suggesting that bloggers might not deserve any First Amendment rights. I'm pretty sure he'd agree that they do, in fact, have the right to free speech. Instead, he's referring to another part of the First Amendment, which guarantees freedom of the press.

But, I'll argue that even in that context, the statement is really no less ridiculous. For years, Congress has debated a shield law for journalists, which basically allows them to protect their sources without legal liability. And each time it's debated, this issue comes up, with some in Congress seeking to carve out "new media," always using the same bogus rationale, arguing that if "bloggers" get shield law protection, then it means anyone can refuse to give up information on anyone else, by claiming to be a blogger.

This is hyperbolic and untrue.

As we've pointed out, there's a simple way to solve that problem: just make the shield law cover acts of journalism rather than target journalists. Many people may not be journalists by profession, but still, at times, perform journalism. And it's not that difficult to figure out which is which. Otherwise, you're carving out a special class of people in an arena in which people doing the exact same thing would face different rules.

And the problems of trying to carve out "journalists" instead of acts of "journalism" become pretty clear, pretty quickly. The last time the shield law concept was being debated, Senators Chuck Schumer and Dianne Feinstein tried to add a carve out that made it clear that Wikileaks should not be protected by the law. And that should scare people. Because when the government can magically decide that this kind of journalism is protected, while that kind of journalism which embarrasses the government is not protected, then you no longer have freedom of the press. At all.

So Senator Graham's question is quite ridiculous. The "Freedom of the press" needs to cover all acts of journalism, not just those who qualify as "journalists" under an amorphous standard, which is likely to be whether or not a court believes a certain publication is "legit" enough.

Filed Under: bloggers, free speech, journalists, lindsey graham, shield law

Ridiculous Timing: Obama Administration Responds To Spying On AP By Pushing Journalist Shield Law That Wouldn't Matter

from the oh-come-off-it dept

There was one odd side note in all of the attention last week to the DOJ spying on the AP under questionable circumstances. Right after being confronted about it, the Obama administration released some talking points about how they support a reintroduction of a reporter's shield law. There have been various attempts to pass a special shield law for journalists for a few years now, though in the past it's been blocked each time. Also, we've been fairly skeptical about the whole process, because different politicians always seek to carve out key parties, whether it's bloggers or Wikileaks. Frankly, it's always seemed to us that a shield law should protect acts of journalism. That is, it should apply to specific situations, rather than specific people.

In the past, the Obama administration has claimed to support such a shield law, but with serious limitations, such as not having that law apply when the administration decides (by itself) that it's a matter that involves "significant" harm to national security. Given that Eric Holder has already argued that this case involved such a situation (even if the evidence suggests otherwise), it seems likely that any such shield law for journalists wouldn't have mattered in the AP case. There may have been some procedural differences, but the end result would have likely been pretty much the same.

But, really, using this story as a nail to hang their support for a shield law seems pretty ridiculous. "Oh, yeah, you caught us spying on reporters -- here's a bill that we want that wouldn't have stopped that, but if you're really concerned about a pretend level of privacy for journalists and their sources, it's something, sorta."

Filed Under: eric holder, journalism, president obama, reporters, shield law, surveillance

NJ Supreme Court Can't Comprehend That Everyone Can Be A Journalist

from the journalists-are-special dept

We've covered the case of Shellee Hale for a few years now. She was sued for defamation over some comments she left in an online forum concerning a software company for the porn industry, Too Much Media LLC. Hale claimed that she got the information from a source as part of an investigation she was doing for a website which she had not yet opened. However, she posted some of that info on this forum, and upon being sued, tried to claim journalistic privilege in protecting her sources under New Jersey's journalist shield law. Both the district court and the appeals court ruled against her, suggesting that because the online forum was not an appropriate venue for journalism, there was no journalism shield. She appealed to the New Jersey Supreme Court, which has tragically upheld the lower court rulings, once again taking issue with the venue:

We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.

But I don't think that's what anyone was trying to claim. This isn't about the venue, but about the action. Journalism is not a venue, it's a process. If the information was acquired in the course of journalism, it shouldn't matter where it was published. Yet all three courts seemed to miss this key point and focus mainly on the venue issue. So, even if you're doing journalism, but publish it somewhere the judges don't like, suddenly, you're not doing journalism. This is quite strange and I don't buy the court's explanation here. They even note that the law itself is written broadly to protect "all significant news-gathering activities." And yet it still says that venue of publication is a key factor in determining what is journalism. This is an outdated and, frankly, troubling view of journalism. The court even goes on a bit of a screed about "unfiltered, unedited" forums as being this anarchy of the internet that does not resemble journalism.

Once again, that's totally irrelevant. What others do on forums is meaningless. The entire question should have been whether or not Hale was engaged in the action of journalism. The court warns that if Hale's argument is accepted than "anyone with a Facebook account, could try to assert the privilege." But, what's wrong with that? If the person is actually engaged in journalism, than what's the problem? Nothing in what Hale was claiming would mean that everyone with a Facebook page was automatically protected by the shield law. The person would still need to prove that they were engaged in journalism. It's really too bad that the New Jersey Courts couldn't see this.

Filed Under: journalism, new jersey, shellee hale, shield law

Shameful News Industry Willing To Sacrifice Wikileaks To Get Shield Law

from the bad-precedent dept

A few weeks ago, we noted, with some disappointment, that the politicians who had been pushing for a much needed federal shield law for journalism, Senators Chuck Schumer and Dianne Feinstein, were taking the politically expedient route of adding a specific amendment designed to keep Wikileaks out of the bill's protections. Apparently, a bunch of newspaper folks have stepped forward to support this move. Douglas Lee, at The First Amendment Center has an opinion piece calling those people out for sacrificing their overall principles just to get the shield law approved. The whole thing is a great read, but a few key snippets:

It doesn't seem all that long ago that representatives of the newspaper industry would have recoiled from working with Congress to deny legal protection to anyone who leaked confidential or classified documents. Today, however, they seem happy to be doing so.

Lee then goes on to quote various industry reps distancing themselves from Wikileaks and putting it down as "not journalism." He also quotes them admitting that they feel they have to throw Wikileaks under the bus, or the law won't get passed. He then calls them out on the impact of that decision, hinting at the fact that at least some of this might be due to traditional journalists simply not liking new upstarts that are changing the game -- like Wikileaks.

As comforting as it might be to "real" journalists to incorporate editorial oversight into a shield law and to use it to distinguish further between the "us" who are entitled to the law's protections and the "them" who are not, at least two dangers exist in that approach.

First, does anyone -- including the most mainstream of traditional journalists -- really think it a good idea that Congress and judges define, analyze and evaluate what is appropriate "editorial oversight"? For decades, news organizations have struggled to resist those efforts in libel cases and, so far, those struggles have succeeded. If those same organizations now invite legislators and judges into their newsrooms to see how worthy their reporters are of protection under a shield law, they shouldn't be surprised if the legislators and judges decide to stay.

Second, is the free flow of information really served if the act's protections are denied to those who don't have or practice editorial oversight? As Schumer acknowledged in his statement, the act already contains language that would limit or deny protection to those who provide or publish classified military secrets. Specifically exempting WikiLeaks and other organizations that might otherwise qualify for protection under the act in at least some cases seems designed not to enhance the free flow of information but to channel that information to mainstream sources.

It is the nature of politics today to compromise principles to get things through, but this move certainly seems unfortunate -- and one that I imagine many news organizations will regret down the road.

Filed Under: journalism, shield law
Companies: wikileaks

Latest Attempt To Create Federal Journalism Shield Law May Carve Wikileaks Out Of The Protections

from the petty,-much? dept

With so much attention getting paid to Wikileaks lately -- and with some politicians insisting that the site is guilty of treason, it should come as little surprise that no US politician wants to be seen proposing a law that somehow helps Wikileaks. We've written in the past about the (very much needed) effort to create a federal shield law for journalists, allowing them to protect their sources. Of course, part of the issue is who counts as a "journalist." In the past there's been a lot of back and forth and back and forth over whether or not "amateur" journalists could qualify -- but one thing that the folks working on the bill now want to make sure: it won't apply to Wikileaks (sent in by paperbag).

Apparently Senators Chuck Schumer and Dianne Feinstein are quickly drafting a special amendment that says the law wouldn't apply to "websites that serve as a conduit for the mass dissemination of secret documents." That's obviously targeted directly at Wikileaks, but it certainly could impact other sites that store documents as well, and that could create problems. I understand the political reasoning behind this, but it seems silly and only likely to cause more problems. And, of course, it won't have any real impact on Wikileaks anyway. Not only is the organization not based in the US, but it designed its system to act as a technological shield law, anyway. So, the law won't impact Wikileaks, but will almost certainly end up creating unintended consequences for other sites. All for political capital. Wouldn't it be nice if we had politicians who did what's right for once, rather than what's politically expedient?

Filed Under: journalism, shield law, wikileaks

Canadian Supreme Court Says Press Have No Right To Hide Sources

from the freedom-of-the-press dept

While we're still fighting for a federal press shield law in the US (various states have them, but it's not universal), the Supreme Court in Canada has ruled that a journalist could be compelled to give up his or her sources if the court thinks it's worthwhile. The court did say that it really does depend on the circumstances, but if a court decides that it's of greater public interest to reveal the source, then the court can require it. Of course, there could be some serious unintended consequences that come with such a ruling -- including making sources and whistleblowers less willing to come forward, knowing that the journalists they speak to may not be able to protect their anonymity. I don't know how the Canadian political setup works, but couldn't this issue be solved with Canada passing a shield law? Hell, they can talk to their counterparts down south who are working on the same thing...

Filed Under: canada, press, shield law