Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

In a new twist in a matter we have been following closely, a federal judge in Michigan issued a written ruling today ordering Detroit Free Press reporter David Ashenfelter to sit for a second deposition.  The judge released his decision just over two weeks after conducting a hearing on a motion to hold Ashenfelter in contempt for refusing to testify at his deposition in a civil lawsuit about a confidential government source who divulged information to him about the plaintiff.

As we first reported in December, this case is particularly interesting because Ashenfelter invoked the Fifth Amendment privilege against self-incrimination in an effort to maintain his source's confidentiality.  Traditionally, reporters rely upon state shield statutes or the First Amendment to protect their sources.  However, in this case no shield law was available to Ashenfelter because the matter is pending in federal court (a problem that will be remedied if Congress passes the federal Free Flow of Information Act this year), and the judge had previously rejected Ashenfelter's invocation of a First Amendment privilege against being compelled to disclose the identity of a confidential source.

The basis of Ashenfelter invocation of the Fifth Amendment -- and his response to the plaintiff's motion to hold him in contempt for refusing to answer questions under oath about his source -- was his fear that he could face criminal prosecution related to his source's actions.  The plaintiff had argued that the source violated the federal Privacy Act by disclosing information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to name the source.

After hearing the parties' arguments earlier this month -- including hearing from Justice Department officials who demurred as to whether Ashenfelter might face criminal prosecution -- the presiding judge ruled that he needs further testimony before he can resolve Ashenfelter's Fifth Amendment claim.

In his written decision, the judge explained that Ashenfelter should clarify the basis of his fears of criminal prosecution -- under oath.  According to the judge, when a question asked does not patently seek information that would tend to incriminate a witness (such as a question whether the witness committed a crime), then

the witness must present sufficient evidence such that the "court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution."  Above all, it is the witness's claim of the Fifth Amendment which controls, and therefore it is the witness who "must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution."

The court concluded that Ashenfelter had not carried his burden under this standard because he had refused to provide any testimony at all that would substantiate the basis of his claim of privilege.  In fact, in a footnote the Court stated that the transcript of Ashenfelter's deposition contains "many questionable invocations of the Fifth Amendment," as Ashenfelter had invoked the privilege in response to all but four questions he was asked.  Nor had Ashenfelter provided any other evidence concerning the nature of the criminal charge he feared.

As a result, the court could not "either validate or reject his asserted fear of prosecution" on the record as it currently stands.  The judge therefore ruled that Ashenfelter must re-appear for a deposition or give a personal statement under oath with respect to each question asked to indicate the nature of the criminal charge he fears.  The judge also ordered that the deposition take place in the federal courthouse "at a time that the undersigned judge is readily available to review and decide disputed objections."  The court also noted that in lieu of a second deposition, the parties could negotiate a solution, such as a detailed affidavit or an ex parte in camera review of Ashenfelter basis for asserting the Fifth Amendment privilege against self-incrimination.

We will continue to monitor the progress of this matter.

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We previously reported that Vicki Iseman, a Washington lobbyist, filed a defamation lawsuit in December against the New York Times over an article published during the 2008 presidential campaign.  In particular, Iseman contended in her complaint that the article falsely implied that she and then-candidate John McCain had carried on an illicit and inappropriate romantic relationship while Iseman worked for clients before a Senate committee chaired by McCain.

Yesterday Iseman and the Times announced that her claims had been resolved and the lawsuit dropped.  The terms of the settlement were somewhat unusual in that the Times neither paid money to Iseman nor retracted the article, which remains available on its website.  Instead, the Times permitted Iseman's lawyers, including noted First Amendment scholar Dean Rodney Smolla, to express their views about Iseman and the article on the Times' website.  Her lawyers' statement appears here.

The Times and Iseman also issued a joint statement, which stated in part:

The Times has maintained that the article was an accurate, important examination of the record of Mr. McCain, then the presumptive Republican presidential nominee, as an ethics reformer who was at times blind to potential conflicts of interest; the section of the article referring to Ms. Iseman focused on the fact that some top McCain advisers had confronted the senator with their concerns that the relationship had become romantic.

To resolve the lawsuit, Ms. Iseman has accepted the Times’ explanation, which will appear in a Note to Readers to be published in the newspaper on February 20, that the article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.  Several of Ms. Iseman’s clients and others state that she is respected, professional and effective in representing her clients’ interests.
 

The "Note to Readers" referenced in the joint statement appears here. 

Settlement spares the Times the time and expense of litigating several knotty legal issues we identified in our previous post.  As James Rainey of the Los Angeles Times reports, the extent of the Times' success in the legal arena over the disputed article is clear; the degree of its journalistic success in publishing the article as written in the first place remains open to debate.  In addition, the flurry of statements issued in connection with the settlement, including from Times executive editor Bill Keller, has sparked its own commentary.

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After a number of years in which proposed federal shield statutes have stalled in Congress, news media interests are optimistic that this time will be the charm.  Last week bills were introduced in both the House of Representatives and the Senate that would create a qualified privilege for journalists subject to federal subpoenas akin to the protections journalists currently have under many state shield statutes.

Dubbed the "Free Flow of Information Act of 2009," Senators Specter, Shumer, Lugar, and Graham introduced S. 448 last Friday.  The bill mirrors H.R. 985, which was also introduced in the House last week.  The House bill provides that:

In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person [that certain enumerated provisions have been met].

The House bill provides that the party seeking material from a journalist may overcome the privilege by demonstrating that: (1) alternative avenues to obtain the information have been exhausted; (2) the information sought is critical to the investigation or proceeding; (3) the public interest favors disclosure of the information; and (4) if the information would reveal the identity of a source of information, disclosure is necessary to prevent an act of terrorism, to prevent imminent bodily harm, to identify a person who has disclosed a trade secret or other confidential information, or to identify a person who has disclosed classified information that may harm national security.  The House bill also contains exceptions for journalists who are eyewitnesses to or who commit a crime.

The Senate bill is comparable, as were the bills introduced in the last session of Congress.  In connection with introducing S. 448, Senator Shumer issued the following statement: 

A truly free press is the lifeblood of our democracy.  This compromise bill takes a reasonable and balanced approach to keeping us free and safe.  We have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens.  In a free and democratic country, we should be able to do both – and this bill does.

The change in Presidential administrations has given The Reporters Committee for the Freedom of the Press and other organizations that have advocated for a federal shield law cause for optimism.  President Bush and his Justice Department opposed prior federal shield bills, and President Bush threatened to veto such a bill if it passed Congress.  In contrast, both President Obama and Attorney General Holder have voiced their support for a federal shield law.  We will follow closely the progress of the Free Flow of Information Act of 2009 as it wends its way through Congress.

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As we reported in December, reporter David Ashenfelter of the Detroit Free Press refused to answer questions about a confidential source during his deposition in a civil lawsuit.  The move was noteworthy because Ashenfelter, who was not a party in the lawsuit, invoked the Fifth Amendment privilege against self-incrimination in refusing to give testimony.  His earlier attempt to protect his source under the First Amendment had been rejected by the federal judge presiding over the case.

The grounds for Ashenfelter's invocation of the Fifth Amendment privilege was his fear that he could be prosecuted criminally if his source were revealed.  The plaintiff in the lawsuit, who had sued the Justice Department under the federal Privacy Act, contended an unnamed Justice Department official committed a crime when he disclosed information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to identify the source.  The plaintiff does not contend the article Ashenfelter wrote about him was inaccurate, only that the government should not have shared information about him.

At the time, the plaintiff's attorney indicated he was considering asking the court to hold Ashenfelter in contempt for refusing to testify.  He in fact did so, and the court held a hearing Wednesday on that motion.  The plaintiff's attorney asked that Ashenfelter be fined up to $5,000 per day and that the Free Press be prohibited from reimbursing Ashenfelter for his payment of the fines.

In recent years, a number of reporters have been held in contempt for refusing to comply with subpoenas, with some incurring substantial fines and others spending time in jail.  Highly publicized cases involving contempt sanctions against reporters include the Valerie Plame investigation, the Wen Ho Lee lawsuit, and the Hatfill lawsuit. 

In the Hatfill case, USA Today reporter Toni Locy (and others) were subpoenaed in connection with a lawsuit Steven Hatfill -- like the plaintiff in the Ashenfelter matter -- brought under the Privacy Act against government agencies and officials for identifying him to journalists as a "person of interest" in the anthrax investigation.  Locy was found in contempt for refusing to reveal her source, but the case settled while that ruling was under appeal.

At the hearing on Wednesday, the presiding judge heard argument from Ashenfelter's attorney and the plaintiff's attorney.  He also requested that Justice Department officials appear and comment on the likelihood that Ashenfelter would be prosecuted for a crime.  When asked, these officials told the judge they could not say one way or the other whether Ashenfelter would face prosecution if he testified and revealed his source.

The judge did not rule on the contempt motion at the close of the hearing but rather will issue a written ruling in the coming days.  We will monitor closely the outcome in this matter.

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 A bill introduced this session in the North Carolina General Assembly would take the regulation of speech on the Internet in a troubling new direction.  Indeed, the negative response to Senate Bill 46, introduced by Senator Steve Goss, has spanned the political spectrum, ranging from North Carolina's Civitas Institute, which termed it the "bad bill of the week," to the BlueNC blog.  The bill has several components.

First, the bill would criminalize defamatory statement made over the Internet.  In particular, the bill declares it to be "unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous."  The offense would be punishable as a Class 2 misdemeanor and, notably, the State of North Carolina would have jurisdiction "if the transmission that constitutes the offense either originates in the State or is received or viewed in the State."  The bill defines "electronic medium" to include "the Internet and any computerized or electronic information service," including "a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group."

Thus, as drafted, the bill would create a new class of criminal libel in North Carolina.  In response to criticism of this move -- particularly given that states have generally moved away from criminal libel statutes and those with criminal libel statutes on the books (such as North Carolina) generally have let them lie fallow -- Senator Goss apparently told local press outlets in North Carolina that the inclusion of criminal penalties in the bill was "an oversight."  There is a serious question whether the enforcement of criminal libel statutes would violate the First Amendment to the U.S. Constitution in the wake of the New York Times v. Sullivan and Garrison v. Louisiana cases.

Second, a particularly troubling aspect of the bill appears in subsection (e) of section 2.  It provides:

The person who administers or provides the facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory.

This provision would make websites and web hosts liable for third-party content if they were found "negligent" in allowing a defamatory statement to be posted or to remain posted after a complaint or some other form of notice was received.  This effort to hold website operators responsible for third-party content runs headlong into Section 230 of the Communications Decency Act, a federal statute that expressly provides that websites and web hosts are not responsible for defamatory or most other actionable content (the prime exception being posts amounting to copyright violations) created by third-party users.  So long as the website operator -- or "interactive service provider" -- is not deemed an "information content provider" with respect to the statement at issue, the website operator cannot be treated as the publisher of the statement for liability purposes.

Congress passed Section 230 in an effort to encourage website operators to police content on their sites without running the risk of being held responsible for objectionable content they miss.  Senate Bill 46 would turn that approach on its head by creating an incentive for website operators not to learn about objectionable posts made to their blogs or message boards.  Because of this direct conflict with Section 230, this provision of Senate Bill 46 would be preempted and unenforceable under the Supremacy Clause, Article VI, Section 2, of the U.S. Constitution.

Third, Senate Bill 46 would make significant changes to North Carolina's retraction statute.  The second section of the bill would require a plaintiff seeking to bring a lawsuit in response to defamatory material conveyed through an electronic medium first to give notice to the person accused of making the statement and then to allow that person 5 days to correct the statement at issue and post an apology.  The request could be made through traditional means or "by placing the request at one of the locations in the electronic medium known . . . where the libelous or slanderous material was placed."  Once the person receives the notice, he or she must post the apology and correction within 10 days, to the extent possible, in the same location and for the same time period that the challenged statement was posted.

If a trier of fact concludes that the statement at issue was made in good faith, was due to an "honest mistake," was posted without the prior knowledge or approval of the person "who administers the facilities for the electronic medium," or, even if the post was made with approval of the administrator, there were "reasonable grounds for believing that the communications were true" and a timely correction and apology is posted in compliance with the statute, then the plaintiff would be limited in the lawsuit to recovery of his or her actual damages.

A final note worthy of mention is that the changes to the retraction statute and the proposed liability for negligent website operators "shall not apply to anonymous communications."  This provision creates a questionable incentive -- website operators would be protected from the section's liability so long they require users to post content anonymously, a move unlikely to inspire restraint among would-be Internet defamers.

In short, Senate Bill 46 as drafted is problematic in a number of ways.  It appears to run afoul of both Constitutional and federal law, and the incentives it would create would likely do little to accomplish the stated objectives of the bill's sponsors, namely to reduce defamatory content in emails, message board posts, and blogs.  Nevertheless, the introduction of Senate Bill 46 in North Carolina is a signal that state legislatures may become more active in attempting to curb what they view as the excesses of Internet speech.  Because many news organizations operate websites that allow users to post content, the news media across the country should be on the lookout for analogues to this bill in their own states.

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A few months ago, we reported about access to search warrant materials and the Eve Carson case in North Carolina.  In the Carson case, the trial court released the search warrant materials under the common-law right of access once the police investigation of Carson’s death had been completed. 

In November 2008, the U.S. District Court for the District of Columbia recognized a qualified First Amendment right of access to search warrant materials related to the completed 2001 anthrax attack investigations.  Specifically, the district court ordered search warrants materials related to Dr. Stephen J. Hatfill and Ms. Peck Chegne (Hatfill’s girlfriend at the time of the searches) to be unsealed.

As has been well reported by the news media, the federal government in 2002 identified Dr. Hatfill as a “person of interest” in the anthrax mailings.  Investigators conducted a search of his residence in August 2002, and the search garnered significant media attention.  The investigation of Hatfill went on for some time, but ultimately the government determined Hatfill was not the anthrax mailer.  Then, in July 2008, the government announced that it believed Dr. Bruce Ivins was responsible for the anthrax attacks after Dr. Ivins committed suicide.  Following this announcement, several media organizations filed papers with the court to unseal the search warrant materials related to Hatfill, Chegne, and Ivins—the Ivins materials were unsealed by the court in September 2008, but the Hatfill and Chegne materials remained under seal.

The question before the district court in this case was whether the public has a common-law right of access to post-investigation search warrant materials (a right the government conceded in the case) or a qualified First Amendment right of access. The court recognized the distinction between a right of access based on the common law or on the First Amendment as significant because different legal standards apply to each.

The common law right of access test is a multi-factor balancing test. If the First Amendment qualified right of access applies, however, the government has the burden of demonstrating that a compelling interest is advanced by denying access to the documents and that the denial of access is narrowly tailored to serve that interest.

In other words, it would be much more difficult to justify keeping the search warrants sealed under a First Amendment analysis than a common-law analysis.

To decide this matter of first impression in the D.C. Circuit, the district court applied a well established two-part test to determine whether a First Amendment right of access should apply to search warrant materials related to investigations that have concluded.  Under the “‘experience’ and ‘logic’ test,” the court analyzes two factors:

(1) whether the place and process have historically been open to the press and general public, and (2) whether ‘public access plays a significant positive role in the functioning of the particular process in question.’

The district court found that factor one of the test weighed in favor of a First Amendment qualified right because, according to the court, the post-investigation search warrant materials sought in the case are of a kind that have historically been available to the public.  Warrant applications and returns are routinely filed with the clerk of court without seal.  Moreover, federal courts have recognized a common-law right of access to judicial records and documents for well over 100 years, clearly establishing a tradition of access.

Factor two of the test likewise supported a First Amendment based right of access. In considering the second factor, the court first stated that it would start with the “proposition” (not explicitly a “presumption”) that the press and the public have a right of access to court proceedings and documents unless there is some compelling justification for closure.  According to the court, such openness ensures that established procedures are followed or, if not, that irregularities are corrected.  It also boosts the public’s confidence in the judicial process.

Regarding search warrant materials, in particular, the court stated:

[W]ith respect to warrants, openness plays a significant positive role in the functioning of the criminal justice system, at least at the post-investigation stage. As noted by the Times, warrant materials are often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures. Public access to warrant materials serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police.

With both factors of the “‘experience’ and ‘logic’ test” met, the court found that the public has a qualified First Amendment right of access to post-investigation search warrant materials.  Because the First Amendment right of access is qualified and not absolute, the search warrant materials at issue in the anthrax case would remain sealed if the government was able to show a “compelling interest” in keeping the materials from public view.  Of course, demonstrating a compelling interest favoring closure after an investigation has been completed is generally more difficult than when an investigation is still under way. 

In the case of the anthrax investigation, the government first attempted to justify keeping the search warrant materials secret to protect Hatfill’s privacy, but the court did not find this interest sufficient to justify keeping the materials sealed.  According to the court, Hatfill’s association with the anthrax case was already well known, so there was no risk that the identify of some “innocent third person” would be disclosed to the media for the first time.  Also, as the court noted, Hatfill filed a lawsuit against the Department of Justice (now settled) and, therefore, “placed some details of the searches in the public eye.”

The government also argued that there was a compelling interest in keeping the search warrant materials secret to protect the identities of confidential informants.  The court agreed that protecting confidential informants constitutes a compelling interest; but, according to the court, there are less restrictive means to protect the identifies of informants than outright denying access to the materials.  The court wrote:

Under the First Amendment qualified right of access test, the government must demonstrate that total restriction of the right of access is narrowly tailored to accomplish its compelling interests. In this case, the Court agrees that the government has demonstrated a compelling interest—promoting effective law enforcement—in keeping the identity of informants secret. However, that interest can be accomplished by simply redacting the identity and personal identifiers of the informants, which the Court will direct the government to do in this case.

The court ordered that the search warrant materials concerning Hatfill and Chegne should both be disclosed, subject to limited redactions to protect the identities of confidential informants.  Even though Chegne was “an innocent party and [had] not put any of the details regarding the searches in the public eye,” her identity and the fact that her residence was searched during the anthrax investigation had already been reported by the media and disclosed by Hatfill in his lawsuit.

Although the court found that the media applicants prevailed on the basis of the First Amendment qualified right of access, the court also analyzed the case under the common law and found that media would prevail under the common law.

This case is a definite victory for media organizations, but it should be noted that the court was careful to point out that its ruling was narrow.  The court clarified that it did not recognize a First Amendment right “as robust” as that recognized in the Eighth Circuit, which recognizes a right of access to search warrant materials while an investigation is still open.  The court also stated that its holding did not conflict with decisions of the Fourth and Ninth Circuits, which have both declined to recognize a First Amendment qualified right of access to warrant materials while an investigation is still ongoing—neither the Fourth or the Ninth Circuits have decided whether there is such a right once an investigation has concluded.

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On January 29, 2009, a panel of the New York Supreme Court, Appellate Division, reversed a trial court’s order denying a motion to dismiss a plaintiff’s libel complaint, holding that the allegedly libelous statements constituted non-actionable opinion.  A copy of the decision is linked here.

In Bonanni v. Hearst Communications, Inc., No. 505007 (N.Y. App. Jan. 29, 2009), the plaintiff, a member of the City of Albany Police Department, sued the owner of the Times Union newspaper (actually the Hearst Corporation, not Hearst Communications) over the content of two articles that were labeled as “commentary.” 

In the first article, the author wrote that the plaintiff should be dismissed from the police force because the plaintiff had allegedly reported for work intoxicated and also had a history of disciplinary actions taken against him for “a series of serious incidents.”  The incidents mentioned in the article included the beating of a college student while not on duty and the accidental shooting of a suspect during a police chase.  The article did not mention that another officer fired the shot that killed the suspect in the car chase.

The second article mainly criticized the police officer’s union because it evidently opposed the Albany police chief’s “zero-tolerance alcohol policy.”  However, the commentary mentioned that the union supported the plaintiff in an arbitration proceeding.  The commentary discussed again that the plaintiff allegedly reported for duty under the influence of alcohol and restated the plaintiff’s history of disciplinary actions.  Once again, the writer called for the plaintiff’s ouster.

The plaintiff filed his complaint alleging that the defendant newspaper had defamed him by stating (among other things) that he had been intoxicated at work and was unfit to serve as a police officer.  He further alleged that the defendant had acted with actual malice (which, as a public official involved in a matter of public concern, he would be legally required to prove).  The defendant filed a motion to dismiss for failure to state a valid cause of action based in part on the fact that the allegedly defamatory statements were non-actionable opinion.

On review, the Appellate Division determined as a matter of law that the statements were opinion and, therefore, could not serve as the basis for a libel complaint.  In reaching its conclusion, the Appellate Division considered three factors to determine whether the statements constituted actionable fact or non-actionable opinion:

(1) whether the language of challenged statements has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether, considering the context in which the statements were made, readers are likely to understand the statements to be opinion, rather than fact.

When applying the test, the court stated that the immediate context of the statement and the “broader social context and surrounding circumstances” must be considered.

Applying the test for fact versus opinion, the Appellate Division found that the content and the context of the articles and their tone and purpose would lead a reasonable reader to understand that the articles were the writer’s opinion, not statements of fact about the plaintiff.  The clear identification of the articles as “commentary” in the print version of the newspaper and the articles’ location in the “opinion” section of the online version of the publication were persuasive (although not determinative) to the court.  The “tenor” of the articles also “signaled to the reader that [the author] was expressing his opinion.”  For example, the writer used colorful, subjective language such as this:  “’At long last, [plaintiff] is going to be shown the street instead of pounding it.  The city’s patience is exhausted, and so is the public’s, and radical action is way overdue.’”

Additionally, the Appellate Division found language in the articles qualifying the nature of the charges and disciplinary actions supported a finding that the articles constituted opinion.  For example, the first article characterized the accusation that the plaintiff arrived at work intoxicated as an “allegation.”  The second article qualified disciplinary charges stemming from that same accusation as “pending.”  According to the court, the discussion of the pending charges was not intended to convince readers of the plaintiff’s guilt but, rather, to encourage the union to support the police chief’s zero-tolerance alcohol policy.

Given the overall context of the articles and the broader social context in which the articles were published, which apparently included what the court characterized as “years of widespread television and print media coverage of the allegations of misconduct by plaintiff,” the court determined that a reasonable reader would understand that the author was expressing his opinion, not engaging in “objective news reporting.”  Therefore, the Appellate Division reversed the trial court and granted the defendant’s motion to dismiss.

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