First Amendment and open government news
Vol. 15, No. 7, March 7, 2005
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COMMENTARY
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In an era when anyone with a computer and modem can publish information that reaches thousands, who is a "journalist"? The answer matters like never before.
By Peter Scheer
The California Highway Patrol recently announced that it will no longer issue press credentials to reporters. Numerous sheriffs and local police departments have followed suit. And who can blame them?
No one wants to be in the position of having to decide who is a bona fide journalist and who is not. In a world in which Internet bloggers compete with 24-hour cable newscasts which compete with newspapers, radio and television, any definition of journalist will be seen as unfairly exclusive by some, overly inclusive by others.
And yet the answer to the question -- who is a journalist? -- is more consequential today than ever before.
Congress, faced with the prospect of New York Times and Time magazine reporters going to jail for refusing to reveal their confidential sources to a federal grand jury, is considering three versions of a federal "Shield Law." Two of the three bills extend their protection to traditional media only (including web sites, but only if owned by a traditional media organization); bloggers are conspicuously excluded.
Closer to home, Apple Computer has filed suit in Santa Clara Superior Court against three web sites that published the contents of Apple corporate documents. Apple is demanding that the web sites, and the sites' email provider, disclose information that will identify the source of the leaked documents.
(Disclosure: CFAC is assisting the lawyers for the web sites in this litigation.)
There is little doubt that if the Apple documents had been leaked to, say, the Orange Country Register, Apple would have no chance of forcing the paper to out its confidential sources. California's Shield law is an all-but-insurmountable barrier in such cases.
But Apple's prospects against nontraditional media are less clear. The trial judge in the Apple case on Friday ruled "tentatively" in favor of Apple, but this is one of those seminal legal issues that will be unresolved until decided by the California Supreme Court.
The "who's a journalist?" issue is as much about ethics as about law. While lawyers and legislators battle about the legal aspects, it's important that the journalism profession have a voice -- indeed, the loudest voice -- on the ethical aspects of this issue, no matter how divisive.
So, what should the rule be? If the law affords special privileges and protections to "journalists," who gets to legitimately claim that label?
Here, for what it's worth, is my view:
A journalist is someone who distributes information, news or commentary and, in so doing, exercises editorial judgment.
Under this definition, the technology of information delivery is irrelevant. Bloggers are not excluded categorically; nor are all traditional media necessarily covered. The essence of the definition is the requirement of an editorial function.
The editorial requirement would exclude a publication that is a mere bulletin board, on which unscreened visitors can post anything they want. Persons who post to a bulletin board are not without rights as individual speakers, but the owner of the bulletin board is not a "journalist."
Also excluded are publications that knowingly publish fiction as fact, or purport to distribute mere rumor, without knowing or trying to determine the accuracy of the information or the reliability of their sources.
This would apply to some bloggers, who make a point of publishing unchecked rumor. Although such sites can serve a valuable purpose--merely reporting the existence of rumor, even if wrong, can be of value, at least on the Internet --journalism it is not.
Ditto for a fair number of the articles one reads in supermarket tabloids. Accounts that the author knows to be fundamentally false (even though erected atop a few minor, but accurate, facts) may be commendably imaginative fiction. But it is not journalism, in my view.
Of course, to say that a piece of writing is journalism under this definition, and its author a journalist, is hardly an endorsement. The proposed bar for legal protection under shield laws is set deliberately low.
Our standards for good journalism -- for publications, online or in print, that take seriously their obligation to uncover the truth -- are, one hopes, much, much higher.
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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San
Jose Mercury-News:
Court weighs public access to some juvenile proceedings
San Francisco Chronicle:
Apple seeks blogger records in information leak case
Daily Journal:
Court orders DA to produce King/Drew tapes
San
Diego Union-Tribune:
Newspaper sues to view hospital district records
North
County Times:
Questions raised on government policies for retaining and deleting email
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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, Ed Davis, Katherine Keating, Joshua Koltun , 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.
Stolen college newspapers
Q: I am a staff member of a public college newspaper in California. We are dealing with a problem right now that we need some legal advice on.
We have had problems with newspapers getting stolen off our campus racks. We are working on developing a policy with the College on preventing this from occurring again and to take disciplinary action against students who violate this policy.
The problem is we don't know where to start and whether public colleges like ours have policies that protect the paper. And if so we need to get copies or outlines that will help us get started. We believe that the college hopes that we drop this matter, but it is important to protect our paper.
A: As a former editor of a student newspaper, I feel your pain.
As you probably already know, yours is not the first student newspaper to face this problem, and in several cases universities have taken disciplinary action against students who stole newspapers. In 2003, the Student Press Law Center reported that three students at the University of Wisconsin at River Falls received non-academic probation for stealing more than 2,000 copies of the student newspaper. At Framingham State College in Massachusetts, three football players and one female student were disciplined for stealing 1,000 copies of the student paper. And two students at South Dakota State University were disciplined for stealing 2,325 copies of The Collegiate in what editors said was an attempt to stifle an editorial endorsement of a candidate for student government.
It would seem to make sense that colleges should have a policy of disciplining students for stealing student newspapers because stealing even free newspapers is a violation of both criminal and civil law. We have addressed this issue in the past on behalf of another of our clients, The Daily Californian at UC Berkeley. When The Daily Cal learned that Student Action, a campus student political group, was interfering with distribution of the newspaper, we sent the organization a letter explaining that such action "constitutes trespass, among other things, and interference with [the newspaper's] relations with its advertisers, all in violation of state law. Such actions are subject both to civil litigation, see Coming Up, Inc. v. City and County of San Francisco, 857 F. Supp. 711, 714-16 (N.D. Cal. 1994) (publisher may sue for interference with distribution of free newspaper), and criminal prosecution. See M.L. Stein, "Man Arrested for Pilfering Newsracks," Editor & Publisher, April 22, 1995 (Berkeley man criminally prosecuted for taking free papers and selling them to recycling company)."
A recent federal Court of Appeals decision also held that government officials may be sued under 42 U.S.C. section 1983 for violating a newspaper's First Amendment rights by intentionally suppressing the dissemination of that newspaper to its intended readership. Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003). It is less clear whether government officials -- such as public college officials, for example -- could be sued for allowing such First Amendment violations to continue by refusing to take steps to curb the violations.
I hope this is helpful. You might also want to contact the Student Press Law Center directly, at www.splc.org, as it may be able to provide you copies of policies that other colleges have instituted.
School officials' resumes
Q: Can I request under public information access laws the resume and application for employment of a school district Superintendant and Assistant Superintendant. I have an interest only in the prior employment history and will assume the private data (address etc ) . will be blocked out. My interpretation of 6254(c) is that prior work history is a public record. Please let me know
A: Under section 6254(c) of the California Public Records Act,
certain personnel files are protected from disclosure under the personal
privacy exemption.
However, with respect to public employees such as a school district superintendent
and assistant superintendent, the kind of information that would be included
in a resume, curriculum vitae or job application to demonstrate a person's
fitness for his or her job, in terms of education, training, or work experience,
is not a matter of personal privacy. The California Court of Appeal has
held in Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788,
794 (1982) that "information as to the education, training, experience,
awards, previous positions and publications of the (employee) . . . is
routinely presented in both professional and social settings, is relatively
innocuous and implicates no applicable privacy or public policy exemption."
As a result, you should be able to obtain the information you seek. However,
your right to do so (particularly, with respect to the job applications)
is not unequivocal. The governing body might raise an argument under Wilson
v. Superior Court, 51 Cal. App. 4th 1136 (1997) that the job applications
are protected from disclosure under the deliberative process exemption
(section 6255 of the California Public Records Act) on the grounds that
the job applications are predecisional documents whose purpose is to aid
the School District in selecting appointees. Depending on the information
sought in the job applications, the applications may also contain information
protected by the constitutional right of privacy.
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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Associated Press:
Leno, gagged by Jackson judge, has surrogate tell Jacko jokes
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CFAC IN THE NEWS
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San
Jose Mercury-News:
Court weighs public access to some juvenile proceedings
North
County Times:
Questions raised on government policies for retaining and deleting email
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