Reading Assignment: Reporter’s Privilege & Student Rights

Hello Everyone!  Next week, we will be discussing Reporter’s Privilege (or, as you’ll soon learn, the lack thereof).  For class, please read Hopkins chapters 15 & 18, Lisby chapter 6, and be prepared to discuss the following cases:

Plunkett v. Hamilton (1911)

Branzburg v. Hayes (1972)

Vaughn v. Georgia (1988) *Georgia case

Howard v. Savannah College of Art & Design (1989) *Georgia case

Atlanta Journal-Constitution v. Jewell (2001) *Georgia case

We’ll also be talking about the rights of students or student reporters.  Please read Hopkins chapter 7 and be prepared to present the following cases:

Tinker v. Des Moines Independent Community School Dist (1969)

Bethel School District No. 403 vs. Fraser (1986)

Morse vs. Frederick (2007)

Hazelwood School District vs. Kuhlmeier (1988)

Kincaid v. Gibson (2001)

Legal News: US Supreme Court Rejects Reporter’s Privilege Case

{Image from motherjones.com}

By Trevor Timm, Freedom of the Press Foundation, June 2, 2014

The Supreme Court today rejected New York Times reporter James Risen’s appeal of a 4th Circuit decision that ruled the government can compel him to reveal his source under oath. The case, one of the most important for reporter’s privilege in decades, means that Risen has exhausted his appeals and must now either testify in the leak trial of former CIA officer Jeffrey Sterling, or face jail time for being in contempt of court. Risen has admirably vowed to go to prison rather than comply. 

This is the latest victory of the Obama administration in their crackdown on sources, and in turn, investigative journalism. As the New York Times again reminded us today, they have “pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined.”

Make no mistake, this case is a direct attack on the press. The Justice Department has recently tightened its “guidelines” for subpoenaing reporters (which have no enforcement mechanism) and the Obama administration claims it supports a tepid journalist shield law, but this was the case where they could have shown they meant what they said about protecting journalists’ rights. Instead, they argued to the court that reporter’s privilege does not exist all, evencomparing journalists who invoke the privilege to criminals who have recieved drugs.

By going after Risen, the Obama administration has done more damage to reporter’s privilege than any other case in forty years, including the Valerie Plame leak investigation that ensnared Judy Miller during the Bush administration. The Fourth Circuit is where many national security reporters live and work, and byeviscerating the privilege there, the government has made national security reporting that much harder in an age where there has already been an explosion in use of surveillance to root out sources of journalists.

While the fight for reporter’s privilege will certainly continue, and is by no means dead in much of the country, this case is another reminder that reporters can no longer rely on the legal process to protect their sources. Surveillance has become the government’s go-to tool for rooting out a record number of sources and chilling all kinds of investigative journalism. Out of the eight source prosecutions under the Obama administration, the Sterling case is the only one where a reporter was called to testify. As an unnamed national security official reportedly once said a year ago, “the Risen subpoena is one of the last you’ll see. We don’t need to ask who you’re talking to. We know.”

[.... ] Despite the damage its already done to reporter’s privilege on the whole, the government can and should prevent Risen from going to jail by declining to call him to testify in the Sterling trial. Since the Attorney General has repeatedly stated that no reporter will go to jail for doing his or her job, that seems like the least they can do.

Legal News: City of Ferguson Demands High ORR Fees

{Image by USA Today}

By Jack Gillum, Associated Press, September 29, 2014

WASHINGTON (AP) — Officials in Ferguson, Missouri, are charging nearly 10 times the cost of some of their own employees’ salaries before they will agree to turn over files under public records laws about the fatal shooting of 18-year-old Michael Brown.

Missouri’s attorney general on Monday, after the AP first disclosed the practice, contacted Ferguson’s city attorney to ask for more information regarding fees related to document requests, the attorney general’s spokeswoman said.

The move to charge high fees discourages journalists and civil rights groups from investigating the shooting and its aftermath. And it follows dozens of records requests to Ferguson under the state’s Sunshine Law, which can offer an unvarnished look into government activity.

The city has demanded high fees to produce copies of records that, under Missouri law, it could give away free if it determined the material was in the public’s interest to see. Instead, in some cases, the city has demanded high fees with little explanation or cost breakdown.

In one case, it billed The Associated Press $135 an hour — for nearly a day’s work — merely to retrieve a handful of email accounts since the shooting. That fee compares with an entry-level, hourly salary of $13.90 in the city clerk’s office, and it didn’t include costs to review the emails or release them. The AP has not paid for the search because it has yet to negotiate the cost.

Price-gouging for government files is one way that local, state and federal agencies have responded to requests for potentially embarrassing information they may not want released. Open records laws are designed to give the public access to government records at little or no cost, and have historically exposed waste, wrongdoing and corruption.

Since Brown’s death and ensuing protests, news organizations, nonprofit groups and everyday citizens have submitted records requests to Ferguson officials, asking for police reports, records about Brown and the personnel files of Officer Darren Wilson, who shot Brown Aug. 9.

Legal News: IL Supreme Court Holds that Death Certificates ARE Public Records

By Marilyn Odendahl, The Indiana LawyerOctober 7, 2014

Taking what it called a “plain reading” of the state statute, the Indiana Supreme Court ruled death certificates which include the cause of death are public records and should be available to anyone who requests access.

The Supreme Court reversed the ruling from the Vanderburgh Circuit Court that limited access to cause of death information. The lower court held that a private citizen with no “direct interest in the matter or the information” could only inspect the “permanent record” at the local health department which does not list the reason for the death.

Disagreeing, the Supreme Court found the certificates of death that doctors, coroners and funeral directors file with county health departments are public records. Justice Mark Massa, writing for a unanimous court, acknowledged the balance between private personal information and the public’s right to know.

“In our society, death is an intimate and personal matter,” Massa wrote in Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, 82S04-1401-PL-49. “We recognize that public disclosure of the details of a decedent’s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private.”

The dispute began in June 2012 when the Vanderburgh County Health Department denied two requests from Rita Ward and the Evansville Courier & Press to review local death records from May 2012.

Both the trial court and the Indiana Court of Appeals agreed with the Vanderburgh County Health Department that the death certificates are not public records. Specifically, the department cited two statutes, Indiana Code 16-37-1-8 and -10, that it believed declare death certificates confidential.

In reaching the opposite conclusion, the Supreme Court pointed to a substantially similar case from 1975 where the Court of Appeals ruled death certificates were public records.

“We see no reason to reach a different conclusion today,” Massa wrote. “As we read the statute, the General Assembly has drawn a distinction between a certificate of death, which is intended to record cause of death data for use by health officials, and a certification of death registration, which is intended to authenticate the death for the purpose of property disposition. The former is a public record while the latter is confidential.”

For I.C. 16-37-1-10, the Supreme Court said a plain reading of the statute concludes that a member of the public cannot inspect or copy the record and files concerning vital statistics from the Indiana State Department of Health but can view that information at the local county health departments.

“…we cannot say with certainty that this madness has no method,” Massa wrote. “The General Assembly could have intended to distribute the administrative burden of record production among local health departments rather than letting it fall solely upon the State Health Department. Indeed, it has done likewise with regard to other public records; any citizen may obtain criminal records from a county clerk, Ind. Code 10-13-3-32 (2010), but he may not obtain those same records from the State Police unless he meets certain statutory criteria. Ind. Code 10-13-3-27(a) (2010 & Supp. 2013). Accordingly, we decline the Department’s invitation to ignore the plain language of the statute and second-guess the legislature’s judgment.”

The Supreme Court remanded the case for entry of summary judgment in plaintiffs’ favor. It also instructed the trial court to determine whether to award plaintiffs attorney fees.

Reading Assignment: Media and the Criminal Justice System

Hello Everyone!  For both the Mondays-only and Tuesday-Thursday class, next week we’ll be finishing up the Advertising and Commercial Law material, and then talking about The Media and the Criminal Justice System.  Please read Hopkins chapter 16, and Lisby chapter 5, and be prepared to present the following cases:

Sheppard v. Maxwell (1966)

Gannett Co. v. DePasquale (1979)

Richmond Newspapers v. Virginia (1980)

Press-Enterprise v. Superior Court I (1984)

Waller v. Georgia (1984)

Press-Enterprise v. Superior Court II (1986)

Cincinnati Gas & Electric Co. v. General Electric Co. (1988)

Craig v. Harney (1947)

Nebraska Press Association v. Stuart (1976) *revisiting

Zurcher v. Stanford Daily (1978)

Please let me know if you have any questions about these cases, or about your paper.  A reminder – please submit all papers to the D2L final draft folder prior to the start of class.  Thanks, and have a good weekend!

Legal News: Red Bull Energy to Pay $13M in False Advertising Case

red bull wings

By Lara O’Reily, Business Insider, 10/8/2014

“Red Bull gives you wings” has been the energy drink’s slogan for nearly two decades. Now the company has agreed to pay out more than $13 million after settling a US class action lawsuit that accused Red Bull of making false and misleading advertising claims, according to the drinks industry publication BevNet.  Red Bull does not, it turns out, give you wings — even in the figurative sense. Red Bull says in its marketing that the drink can improve concentration and reaction speeds, but the plaintiff in the case said these claims were false and lacked scientific support. While the suit did not allege that plaintiffs were disappointed that they didn’t suddenly sprout wings, it does say that Red Bull relies a lot on terms like “wings” and “boost” to give consumers the impression that the drink gives people some sort of physical lift or enhancement.

If the proposed settlement is passed by the US District Court of the Southern District of New York, where a hearing will take place in March 2015, Red Bull will be required to pay $6.5 million into a settlement fund within a week.

The settlement says Red Bull will reimburse customers disappointed the energy drink hasn’t lived up to their expectations with either a check for $10 or a voucher for $15 worth of Red Bull products. This could prove costly, as the class action suit covers the millions of people who have bought at least one can of Red Bull over the past 10 years.

The suit was brought about by a number of Red Bull drinkers, one of whom said he had been drinking the product since 2002 but had seen no improvement in his athletic performance.

The suit says of Red Bull’s marketing:

Such deceptive conduct and practices mean that [Red Bull’s] advertising and marketing is not just ‘puffery,’ but is instead deceptive and fraudulent and is therefore actionable.

Red Bull released this statement following the settlement:

Red Bull settled the lawsuit to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labeling have always been truthful and accurate, and denies any and all wrongdoing or liability.

While Red Bull denies wrongdoing, the company has voluntarily withdrawn and revised the marketing claims challenged in court, Bevnet says.