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

In a decision that raises a host of legal and ethical questions, the Cleveland Plain Dealer today disclosed the identity of someone who had frequently posted anonymous commentary on the newspaper's web site.  According to the paper, the commenter, who used the name "lawmiss," was using the personal email account of local trial Judge Shirley Strickland Saffold and was commenting in harsh terms about cases involving Judge Saffold.

While the Plain Dealer quotes the judge's daughter as admitting to being "lawmiss," this story comes less than two weeks after Judge Saffold ordered the arrest of a Plain Dealer reporter who failed to appear at a hearing to determine how the newspaper obtained a psychiatric evaluation of a suspected serial killer on trial before the judge.  Another local judge later admitted to being the reporter's source.

In an explanatory story also published today, the newspaper claims that it began investigating "lawmiss" after he or she directed comments at the relative of a Plain Dealer reporter.  Once it connected "lawmiss" to Judge Saffold's email account, the newspaper made a public records request for details of her use of her government-provided computer.

Plain Dealer Editor Susan Goldberg argued that once the paper found out that the commenter was somehow connected to the judge, it had a duty to report the information.  She said:

What if it ever came to light that someone using the e-mail of a sitting judge made comments on a public Web site about cases she was hearing, and we did not disclose it? These are capital crimes and life-and-death issues for these defendants. I think not to disclose this would be a violation of our mission and damaging to our credibility as a news organization.

Journalism ethicist Bob Steele disagrees, saying: "It does raise the question of the wisdom and fairness of the newspaper using the registration system of the Web site for reporting purposes."

We have reported frequently over the past two years about newspapers' legal fights to prevent disclosure of anonymous commentary on its web site and about the developing trend towards protecting this category of speech.  While the Plain Dealer certainly should enjoy the journalistic discretion to investigate and report stories about possible ethical breaches by people in power, decisions such as this will only provide ammunition to prosecutors and other attorneys seeking information about anonymous commenters.  After all, how important can the First Amendment interest be to the newspaper if, when it suits the paper's own reporting needs, the paper will not hesitate to investigate and disclose these same people?

To be clear, there is no question that under the Plain Dealer's online registration system, it had the right to investigate and disclose the identity of "lawmiss."  And it certainly made for a good (and important) story, one that will no doubt draw readers.  Goldberg is also correct that it is hard to see how the paper could ignore the story, once it made the decision to investigate "lawmiss."

Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff's brief will almost certainly be this story.  And if the paper loses the motion to quash, it may have no one to blame but itself.

UPDATE: See below for a clarifying comment from John Kroll from the Plain Dealer.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

North Carolina media organizations won a significant victory in the U.S. District Court for the Middle District of North Carolina last week when a group of the state’s media outlets convinced a federal judge to quash subpoenas that sought from the media nearly two years’ worth of news coverage of the Eve Carson murder investigation and court proceedings.

Counsel for Demario James Atwater, the defendant in the federal criminal case, issued subpoenas to media organizations across the state generally seeking all publicly aired broadcasts or published news articles regarding the death of Eve Carson and the defendants, as well as all web articles and public comments posted to those web articles maintained by the news media. The defense counsel issued the subpoenas to the media to look for support for the defendant’s request to change the location of the federal criminal trial from the Middle District of North Carolina to a federal court in Virginia. The defense has argued to the court that Atwater cannot obtain a fair trial before an impartial jury in the state of North Carolina due to the media coverage of the murder and the defendant.

Seventeen media outlets fought the defendant’s subpoenas in court on March 10, 2010, rather than turn over the material willingly to the defense. Their oral argument mostly focused on Rule 17(c) of the Federal Rules of Criminal Procedure and the standards set forth in United States v. Nixon, 418 U.S. 683, 699-700 (1974). Each of the companies argued to the court that the defendant’s subpoenas were “overbroad,” “unreasonable,” and/or “unduly burdensome” because compliance would force the news media to cull through two years’ worth of news coverage—at the media’s expense. Complying with the request could take weeks or months and thousands of dollars in some cases, according to media attorneys.

The media attorneys also argued that the material sought by the defense was readily available on each company’s website or, in the case of newspapers, in the public library. In other words, the defense counsel has a readily available alternate means of obtaining the information without requiring the media to take on the burden of finding and delivering the material.

During the hearing, the defense counsel could not identify any inflammatory news story that might prejudice the jury pool and jeopardize Atwater’s federal criminal trial.  The only specific news coverage the defense attorney could point to was repeated images of the defendant going and coming from legal proceedings in a prisoner's jumpsuit---all factual occurences.

After hearing from the attorneys representing the 17 media companies and the defense, Chief District Judge James A. Beaty, Jr. ruled from the bench that the media would not be compelled to produce the material sought.  The judge would order the media to comply with the subpoena when the material sought could be obtained by the defense through publicly available sources, such as the internet and public library. During questioning, Judge Beaty seemed particularly concerned that honoring the subpoena would shift the defendant's burden to obtain material to support his case from the defendant to the media. 

The victory in this case is important because complying with a subpoena—especially a very broad one that covers a long period of time—costs time and money. With news rooms stretched as thin as they are in these difficult economic times, the media simply do not have the resources to devote personnel to reviewing video footage or website postings to comply with a subpoena. Subpoenas issued to the media divert precious human resources from newsgathering activities. And, in a case, like this one, where the criminal defendant cannot identify a single news story that is inflammatory or prejudicial to the defense, requiring the news media to participate in a “fishing expedition” is especially unfounded. 

The victory is also significant because the subpoenas were issued in a federal proceeding, which meant that North Carolina's reporter's shield statute was unavailable.  We've reported on the halting process by which media interests have pushed to have Congress pass a federal shield statute, to date without success.

The only issue before the court on March 10 was whether or not the media would be required to comply with the subpoena and be forced to turn over documents and video. Judge Beaty will rule on the defendant’s request to change venue of Atwater’s federal trial at later date.

The Carson murder has garnered significant local and national media attention. This is at least the second time the news media has become involved in the legal proceedings against the two people accused of the crime. We covered the media’s efforts to obtain access to sealed search warrants in the state court actions here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In late January, the Supreme Judicial Court of Massachusetts affirmed that the fair report privilege applied to information attributed to an anonymous source.  The 6-1 decision in Howell v. The Enterprise Publishing Company dismissing the plaintiff's complaint held that so long as the reporter accurately reported what the confidential source reported to him or her, the privilege applied.

As reported by the First Amendment Center, the case involved claims for defamation, intentional infliction of emotional distress and invasion of privacy brought by the former superintendent of the town sewer department who, the defendant reported, had been fired for having pornography on his work computer and for alleged conflicts of interest.

 The paper wrote a series of more than 10 articles about the scandal, many of which quoted anonymous sources who reported what happened at various closed-door meetings concerning the superintendent (Howell).  For example, the paper reported:

A town official close to the investigation who spoke on condition of anonymity said the allegations against Howell include improper use of town equipment for personal business. The source declined to specify the type of equipment that was used but alluded to a possible criminal investigation by Abington police.

 In a later article, the paper reported: 

"These were images you wouldn't want your children  to see," the commission member said. Commission members would not say who came forward with the allegations against Howell. "The point is, it happened. The board, acting on behalf of the town, was forced into action and would have been negligent if it had not acted. The potential is still very real for a sexual harassment lawsuit," the commission member said. The source added that Howell "thinks he did nothing wrong."

In dismissing Howell's claims, the Court engaged in a lengthy analysis of the history and policy considerations underlying the privilege.  The Court identified two key policies supporting broad recognition of the fair report privilege.  The first, the Court said, "protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves, that is, when it acts as the public's eyes and ears."  The second key policy is that of "public supervision," meaning the role of the media in serving as "a check on the power of government by giving the public the opportunity to be informed citizens and voters."

In the case of a report of government action (i.e., "official action") whose source is anonymous, the Court said

Reports of official statements are covered by the privilege so long as the reports fairly and accurately describe the statements, even though the statements themselves may contain defamatory material, or inaccurately report on official actions in a defamatory way. But an anonymous statement is not an official one. The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents. Consequently, the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.  It should be of no moment that a reporter's source is, in fact, a high official, a low official, or a mere witness who overheard the proceedings, so long as it is official action that is reported. If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory.

Thus, the Court established that so long as a news report of official action based on material from an anonymous source fairly and accurately reports what the source said, it will be privileged.

Given the increasing prevalence of off-the-record or "background" sources in news stories concerning issues of public concern, this decision may be an important landmark in protecting the media from otherwise baseless lawsuits.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings.  This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against.  The bill would exempt "Any recording of a request for emergency services or report of an emergency using an emergency communications E911 system" from the public disclosure requirements of Florida's public records laws, including Section 119.07(1) and Section 24(a) of Article I of the Florida State Constitution.  A 911 recording could be released pursuant to a court order finding good cause for disclosure.  Upon request, a person could obtain a transcript of a 911 call, after 60 days and with all personal identifying information redacted.

The Miami Herald has reported that the 911 bill is a top priority of the Speaker of the Florida House, Larry Cretul, who took the unusual step of stacking the Government Affairs Policy Committee meeting Wednesday with an extra Republican to ensure passage.  A powerful ally of Speaker Cretul has urged Cretul to secure passage of such a law after he lost his son and subsequently heard a recording of the 911 call on a news broadcast.

The Florida bill therefore follows a pattern we noted in other states where similar bills are under consideration -- anecdotal evidence of the broadcast of wrenching 911 calls is cited in support of sweeping measures that would eliminate access to 911 recordings in most cases.  These bills appear driven more by a misguided desire to exercise editorial control over the use of 911 recordings by news organizations than by any genuine problem associated with access itself.  In fact, the Florida bill recites as a policy basis the notion that "there are those persons, who, for personal, private gain or for business purposes, would seek to capitalize on individuals in their time of need."

This bill and others like it underscore a prominent person upset with the use of a public record in a particular circumstance can succeed in having legislative bodies consider wholesale changes to everyone's access to public records.  This is a troubling trend.

The Florida bill faces an uncertain fate, as it is opposed by Florida Democrats and Governor Crist, and it must pass by a supermajority vote.  We will continue to follow the progress of this bill.

• Email This
• Print
• Trackbacks
• Share Link