CFAC's FLASH for 10/4/05

First Amendment and open government news

Vol. 15, No. 16, October 4, 2005

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COMMENTARY
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Give NYT reporter Judy Miller a break.
After 12 weeks in jail to protect her source, she's earned it.

By Peter Scheer

(CFAC, October 4) -- Judith Miller, the New York Times reporter who was jailed for civil contempt for 85 days because she refused to comply with a federal judge's order to testify about confidential sources, just can't get a break.

While still incarcerated, she was variously attacked as a First Amendment martyr, whose unwillingness to compromise on journalistic principles would ultimately harm press rights; and as a First Amendment whore, whose silence served to protect high-level administration figures who were using her to advance their political agenda.

Now free under an agreement with special prosecutor Patrick J. Fitzgerald on the scope of her testimony to the "Plame" grand jury investigating the leak of a CIA operative's identity, Miller testified Friday about her conversations in 2003 with I. Lewis Libby, Vice President Dick Cheney's chief of staff. She did so following a phone conversation with Libby in which he made clear that he did not wish to hold her to her pledge of confidentiality.

Miller's critics lost no time in accusing her of selling out. One line of attack is that Miller, facing the prospect of vastly more jail time--either because she would be indicted for criminal contempt or because Fitzgerald would impanel a new grand jury to extend her incarceration for civil contempt another 18 months-panicked and cut a face-saving deal that she could have had at any time in the last year.

Bolstering this view, at least superficially, is Libby's lawyer, Joseph Tate, who was quoted last week as saying that Libby had always intended his generic "waiver"--a written document that White House officials were required to sign (or lose their jobs)-- as giving Miller a green light to testify. Tate also claims that he made that point directly to one of Miller's lawyers, Floyd Abrams, in a conversation months before Miller went to jail.

But wait a minute. Is it really clear that, prior to Miller's incarceration, Fitzgerald would have agreed to a deal under which Miller would testify about just one of her sources, Libby, and would turn over to the grand jury her reporter's notes redacted to exclude conversations with other confidential sources?

The answer is no.

Fitzgerald's public comments before last week's agreement never suggested that he was interested in hearing only about Libby. Moreover, Abrams says that a year ago he tried unsuccessfully to negotiate a settlement with Fitzgerald; the sticking point at that time, says Abrams, was the prosecutor's unwillingness to limit Miller's testimony to Libby.

The difference between then and now is that Fitzgerald's position changed, not Miller's. A likely explanation is that the prosecutor narrowed the investigation based on new evidence given by Time Magazine and Time's reporter Mathew Cooper, and perhaps other reporters about whose cooperation with Fitzgerald much less is known (for example, Robert Novak)--all provided after Miller entered jail.

That other reporters, at the Washington Post, Los Angeles Times and elsewhere, were apparently able, early on, to negotiate agreements for limited grand jury testimony does not necessarily mean that Miller could have done the same. Miller has a history with Fitzgerald that the other reporters do not. She was the focus of a separate leak investigation, also led by Fitzgerald, involving an FBI operation against charities suspected of funneling money to terrorists--the subject of a news article by Miller. Fitzgerald's efforts to get evidence from Miller and the New York Times in that matter have been thwarted by federal courts in New York.

Even if last week's deal springing Miller from jail could have been made months ago, it's certainly not clear that Miller had her source's permission to break her promise of confidentiality.

The claim by Tate that Libby meant what he said in his generic waiver is, of course, exactly what you'd expect from the lawyer of a potential grand jury target. How could he say otherwise? ("Actually, Mr. Libby signed the waiver only to save his skin and he sure hopes Ms. Miller doesn't tell the grand jury what Mr. Libby really told her.") Abrams, moreover, remembers the private conversation with Tate as being much more ambiguous--not the kind of conversation through lawyers intended to send an unmistakable signal that Miller was relieved of her promise of silence.

Finally, Miller is also attacked for not persisting in her refusal to testify even after receiving Libby's I-really-mean-it waiver in September. (This sentiment was captured in a Saturday New York Times article headlined, "Journalists Fear Impact on Protecting Sources"). But if Libby's waiver is genuine-and no one argues otherwise-then Miller has no choice but to leave jail and testify.

The privilege not to testify belongs to the confidential source, not to a reporter. Just as an attorney cannot claim the attorney-client privilege if his client chooses to testify, so a reporter in Miller's situation can't refuse to testify if her source frees her from her promise of confidentiality. Remember the reason for the privilege is to enable reporters to obtain information from sources who would not cooperate without an assurance of confidentiality. That purpose is not served when the source, for whatever reason, chooses to be identified.

Instead of assuming only the worst about Miller, it's time she was given the benefit of the doubt. Her 85 days in jail have earned her at least that much.

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POWER TO THE PEOPLE: UNLOCKING GOVERNMENT FOR
THE PUBLIC, PRESS, AND THE BLOGS

featuring
* FLOYD ABRAMS as keynote

* a special honor to MARK FELT (aka "Deep Throat")

* panel discussions on blogging, Prop 59 and everything in between

CFAC's annual free speech assembly
October 14 and 15

Cal State Fullerton

More information

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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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The Recorder:
Lawyers Tangle Over Sealing of Transcript in criminal case.
Grand Jury Transcript Contains Attorney-Client Communications.

Reporters Committee for Freedom of the Press:
Pentagon ordered to release more Abu Ghraib photos.
Judge Rejects argument that Photos will Generate Violence against Americans.

North County Times:
Oceanside Pays Officers, but Delays Announcing Settlement of Threatened Litigation.

Palo Alto Online News:
Weekly sues Palo Alto for records of investigation of Utilities Department.
City says records contain attorney-client communications and confidential employee files.

Reporters Committee for Freedom of the Press:
Court: Litigation-related documents exempt from disclosure under
Public Records Act.

Inland Valley Daily Bulletin:
Supervisor wants to stop notification of officials when their records are
requested under Public Records Act.

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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Brooke Beros, Isela Castaneda, James Chadwick, Katherine Keating, Joshua Koltun, Rachel Matteo-Boehm, Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.

Have a legal issue? Submit your question here.

Closed session to replace police department with county Sheriff with an unreported outcome

Q: I recently covered a meeting where the City Council voted to replace the city's police department with county Sheriff's services. A number of opponents to this move have suggested that the Brown Act was violated when the council met in closed session to call for the Sheriff's proposal under the heading of labor negotiations, and did not report the outcome of the closed session. The Council also added the vote to an already called special meeting the night before. It appears that there was 24 hours notice, but not all the council members may have received the notice in writing. I am trying to find out if the opponents have a case. Thank you.

A: Your email questions whether a City Council violated the Brown Act by meeting in a closed session to discuss replacing the police department with the county sheriff's department. Apparently the council did so under Govt. Code s. 54957.6, which governs closed sessions for labor negotiations. Based on the facts provided in your email, it is plausible that the council had to meet in a closed session to discuss the contract negotiation aspects of making the switch from the police force to the sheriff's force. Moreover, unlike with Govt. Code s. 54957.9 (pending litigation exception), there is no obligation on the part of the council to provide additional detail on the closed session.

Your email also mentions that not all council members may have received notice of the special meeting. If that is the case, then the city may have violated Govt. Code s. 54956, which governs rules of notice for special meetings. That code section specifies that each member of the legislative body (in this case the City Council) must receive written notice of the special meeting at least 24 hours before the meeting.

Use of city facilities for a religious agenda

Q: I have a city council member using city council chambers, on private time, to hold an event for her non-profit - which is dedicated to putting the motto "In God We Trust" into council chambers across California and the nation. She is being charged a fee.

I wonder if this is appropriate us of taxpayer funded facilities to promote a personal controversial issue that challenges church and state separations.

A: The situation you have described does not necessarily constitute a violation of the Establishment Clause of the First Amendment. The Supreme Court has ruled that where a government body makes its facilities available for use as a public forum, it cannot discriminate against groups that seek to use the facilities for religious purposes.
See Widmar v. Vincent, 454 US 263 (1981) and Lamb's Chapel v. Center Moriches Union Free School 508 US 384, 392-93 (1993).

Thus, if the city has a general policy of renting out the facility for public use, they cannot discriminate against a group that wants to rent out the facility on the grounds that the content of that party's speech will be "religious" (or any other basis based on the content of the speech, for that matter). A more difficult situation might be presented if the facility is not generally available to the public for a fee.

School Trustee recording closed session for personal use

Q: As an elected Trustee for a local school district, may I record closed ession for my personal use (note taking)?

A: If you are going to seek to record the proceedings, you should disclose to everyone present (who is being recorded) that you are doing so. You should be aware that if you make such a recording, a member of the public may argue that it is a "public record" under the Public Records Act. Thus it may be subject to a request that it be disclosed and/or copied under the Public Records Act. You and/or the School District may be able to prevent disclosure of the tape under various exemptions under the Public Record Act, but if such a request were made you might not be able to destroy the record. As a "public record," other regulations and/or bylaws of the school district may prevent you from destroying the record (even if there is an applicable exemption that would prevent you from having to disclose it).

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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Stockton Record:
Meetings raise Brown Act questions

Malibu Times:
Court says Council's closed-session vote on housing development violated Brown Act.

Santa Cruz Sentinel:
Scotts Valley school board trustees admit Brown Act gaffe

Stockton Record:
Tracy City Council considers going live

San Luis Obispo Tribune :
Los Osos board unsure of status

North County Times:
Schwarzenegger signs law limiting paparazzi pursuits

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CFAC IN THE NEWS
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Recent news stories about CFAC courtesy of Google.

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EDITORIALS
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Inland Valley Daily Bulletin:
Online access to San Bernardino County info good for voters

Contra Costa Times:
Bill would allow bridge oversight group to meet in secret

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