Media Law Final: Access and Protecting Sources

Houchins v. KQED

United States Supreme Court case in which the Court refused to recognize a "right of access", under the First Amendment, to interview particular prisoners.

On the state level, a violation nullifies everything done at that meeting and subjects the government officials to...

fines and in rare cases jail time.

Branzburg v. Hayes:

actually three cases

Freedom of Information Act applies ONLY to...

federal government

Supreme Court has said the purpose of FOIA is...

"to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."

What is the recourse if request is not dealt with in a timely fashion or denied?

- Appeal to the agencies - Sue

Who said, "Journalism is the professional practice of collecting and publishing the best evidence of the newsworthy truth,"

----Watson

Valerie Plame (what happened to her was unethical)...she was

....a former operations officer who worked at the United States Central Intelligence Agency (CIA), a writer, and a spy novelist. As the subject of the 2003 Plame affair, also known as the CIA leak scandal, Plame had her identity as covert officer of the CIA leaked to the press by members of the George W. Bush administration and subsequently made public. In the aftermath of the scandal, Richard Armitage in the State Department was identified as one source of the information, and I. Lewis "Scooter" Libby, Chief of Staff to Vice President Dick Cheney, was convicted of lying to investigators. After a failed appeal, President George W. Bush commuted Libby's sentence, and in 2018 President Donald Trump pardoned him. No one was formally charged with leaking the information.

U.S. Department of Justice v. Reporters Committee for Freedom of the Press...

...decision that greatly affects the protection of personal privacy under the Freedom of Information Act. The Court unanimously ruled that any criminal history record (known as a "rap sheet") maintained by the FBI on a certain individual alleged to have had connections with organized crime and a corrupt congressman is "categorically" exempt from disclosure under Exemption. The Supreme Court's decision sets forth several important FOIA principles, based upon the Act's underlying policy objectives, which clarify the law in this area and should significantly strengthen the protection of personal privacy interests. These new privacy-protection principles have the combined effect of altering the basic "public interest" balancing process required to be employed in all Exemption 6 and Exemption 7(C) decisionmaking.

Response to FOIA must come in ____________________ days.

20

How many exemptions are there to FOIA?

5-National security, confidential business information, personnel, medical and similar files, law enforcement investigations

The truth versus the provable truth

A journalist needs the provable truth in order to publish.

Journalists live or die (professionally) by their sources. Why journalists would "die" for a source.

Because journalists rely on sources in order to do their jobs.

If lawyers, doctors, priests and husbands have confidentiality rights, why can't journalists? Public relations people too

Because they don't have any more rights than the average person. Doctor-patient, lawyer-client and priest-penitent relationships have long been privileged. However, the reporter's privilege is much less developed, and journalists are frequently asked to reveal confidential sources and information they have obtained during newsgathering to attorneys, the government and courts. Most states and federal circuits have some sort of reporter's privilege -- the right to refuse to testify -- or -- a shield law to protect their source.

Explain civil contempt vs. criminal contempt

Civil contempt is wilful disobedience to any PROCESS of a court. Criminal contempt is BEHAVIOR that is disobedient or open disrespect for the court. It punishes conduct that violates a court's rule.

If reporters are allowed at a news scene, is their equipment also permitted (cameras, pens).

Currently a reporter's equipment can go where she goes to cover any news sites she is permitted to access, unless it interferes with police or government activity. But remember there is no blanket First Amendment right to cover news, except in a criminal court room. But in federal courts and DC courts, cameras and other electronic recording devices are not permitted even when reporters are. News sites that are outside where the general public has access are also off limits to journalists.

Documentary materials are much less protected. These are raw materials that do not include the application of the reporter's ideas. Give examples...

E.g. raw videotape, photographs, tangible records or documents.

DOES FOIA apply to Congress, federal courts? State legislatures, state courts?

FOIA does NOT apply to Congress

What does Congress say is the purpose of FOIA?

For citizens to make sure the FEDERAL government is doing its job.

Access to war zones, access to prisons

Limited constitutional protection for news gathering means officials are generally NOT required to grant reporters access to news events in war zones and prisons.

Are response and compliance the same thing?

No

Do people have a First Amendment right of access to information?

No

Does the First Amendment in and of itself protect source confidentiality?

No.

Can journalists be arbitrarily excluded from news sources, (favoring one news organization over another) Borreca v. Fasi

No. Court ruled that Fasi had to open his news conferences to all reporters. (but granting individual interviews to some reporters is okay.)

What are some statutory limitations on disclosure of records:

Privacy Act of 1974, Buckley Amendment, Drivers Privacy Protection Act.

Supreme Court permitted use of search warrants in newsroom. In response, several states and the federal government created the...

Privacy Protection Act, which is particularly protective of "work product materials" when a search warrant is requested.

Example...Univ of Virginia Rolling Stone case .

Sometimes an important story that you know to be true cannot be published because you do not have on the record evidence that it is true...

Federal courts have established a three-part test to determine when journalists must testify, reveal sources or turn over their notes to the government.

The information the journalist has must be: 1) Relevant and specific 2) not available anywhere else and 3) the government has a compelling need for the information.

Subpoena duces tecum

a writ ordering a person to attend a court and bring relevant documents.

why are journalists the best witnesses at trial --

They are trained observers, (reluctant and trained to be unbiased)

What is a reverse FOIA suit?

When a company asks the government to NOT release information.

Consequences of hiding sources in libel cases

When a journalist faces a defamation suit based on information provided by a confidential source, however, the promise of anonymity to that person may prevent the reporter from relying on certain defenses. For example, because falsity is a key element of a defamation cause of action, the truthfulness of the allegedly defamatory statement is a complete defense to the claim. But proving the material in question is true becomes exceedingly difficult when the person who provided it must remain anonymous. Likewise, a source's identity could go a long way in helping to negate an allegation that a publisher acted with reckless disregard when relying on the source's information. In these situations, courts are likely to take one of several approaches in attempting to balance the rights and interests of a defamation plaintiff with those of a reporter

FOI does not apply to...

White House, Congress or federal courts.

Does FOIA apply to agencies in the executive branch?

Yes

A First Amendment right of access to Court?

Yes, but it's presumptive. Access may be restricted if there is a compelling interest and the restriction is narrowly tailored. The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings,

Can judges legally use civil contempt to force journalists to reveal sources.

Yes.

What is surrender of skepticism?

You work to support the credibility of the source instead of continually challenging it.

Subpoena ad testificandum

a court summons to appear and give oral testimony

Zurcher v. Stanford Daily is...

a major case in search warrant-subpoena area.

In criminal cases the defendant has the support of the Sixth amendment's right to question....

all witnesses against him.

Sunshine Acts exist in every state and require government meetings to be open to the public (and therefore the press) and the time and place must be...

announced in advance and published in a newspaper of record.

Who qualifies as "any person" under FOIA.

any person

The best witnesses (most credible and likely to remember details) are...

aw enforcement officers and (print) journalists.

State press shield laws are most effective in...

civil cases and less effective in criminal cases, particularly when the defendant needs the information held by the journalist.

The records must be capable of...

copying or other means of reproduction. E.g. taping

Claims of privacy are often used to ____________ media access.

deny

Twenty-day deadline to determine if records will be released ---

due diligence for delivery

It's not about publishing what is true... it's about publishing when you have sufficient.....

evidence to show that indicates it is true.

FOIA provides access to records!!! not...

information

Journalists resist subpoenas because they do not want to be seen as...

investigators for the police or the government.

A First Amendment right of access to state legislature meetings?

no....Access to legislative sessions and committee meetings are generally covered by a state's open meeting law, the state constitution or legislative rules. Which law applies and how the right of access is written can make a huge difference for reporters and the public when trying to get information about how states are run.

First Amendment has prevented restrictions on news gathering when there is no reasonable basis for it

or if the restrictions are too broad or too vague,

Requests can be made by any _______________________, including foreign nations.

person

An agency subject to FOIA must...

possess and control records in order for them to be available under FOIA

Journalists usually have to testify when they are witnesses to a crime despite...

press shield laws.

40 states and D.C. have press shield laws that....

protect journalist sources and prevent journalists from having to testify in court and before grand juries or turn over their notes in most instances.

The Supreme Court ruled in Cohen v. Cowles that the First Amendment does not...

protect journalists from lawsuits filed by a source when they decide to burn that source.

Branzburg v. Hayes, (minority opinion)....

spawned the state press shield laws.

Branzburg v. Hayes rule is a minority rule and produced a...

spawned the state press shield laws; three-part test

Quashing, not squashing a

subpoena

Journalists prefer subpoenas duces tecum over search warrants when the government is seeking information journalists may have because...

the former is less invasive and provides time for the press to fight the matter in court.

The Privacy Protection Act requires...

the government to meet one of the following three conditions 1) there is probable cause to believe the reporter has committed a crime 2) the material sought is necessary to prevent injury or death 3) the material sought relates to the national defense or is classified.

Comparative access rights of the press and average person

the same

The Favish case:Nara V. Favish (Vince Foster autopsy photos) indicates that in FOIA cases, privacy rights extend beyond death and to the surviving family members. Usually, most privacy rights die with...

the targeted person. The court declared that a requester must "establish a sufficient reason for the disclosure" when privacy concerns are being weighed against public interest in the material. (CASE)

It is fundamentally ______________to not identify a source cited in a news article,

unethical

A statutory right of access to information - state/ federal?

yes