The News Media and the Law (Online)

Articles

Vol. 40, No. 3, Summer

Clinton Historically Wary of the Press
In March, Democratic presidential candidate Hillary Clinton told CNBC that she has been "the most transparent public official in modern times, as far as I know." Some observers may disagree.As Election Day nears, there are questions about how accessible...
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Trump's Record Troubles First Amendment Advocates
In some ways, Donald Trump may be one of the most accessible presidential candidates in recent history. But his record on press freedom and transparency has raised serious alarm among journalists and open government advocates.The Republican nominee frequently...
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Pence's Transparency Record Provokes Mixed Reactions
Although Mike Pence has won praise for championing a proposed federal shield law to protect journalists' sources, the Indiana governor's overall First Amendment record is mixed.When he was in the U.S. House of Representatives, Pence several times was...
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Kaine Emails Reveal Little More Than a Careful Governor
Email issues may be causing headaches for Hillary Clinton, but a look through the more than 145,000 email records publicly available online from Democratic vice presidential candidate Tim Kaine's term as governor of Virginia show little more than a politician...
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What the FOIA Reform Act Means to You
In late June, President Obama signed the FOIA Improvement Act of 2016. bringing important changes to the 50-year old federal transparency law. The measure brings some changes to the FOIA process, notably in exemptions, that will affect requests filed...
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Anatomy of a Brief: Reporters Committee Supports Challenges to "Ag-Gag" Statutes
In June, the Reporters Committee filed friend-of-the-court briefs in two federal courts asserting a similar argument - laws criminalizing the recording of agricultural production facilities, known as "ag-gag" statutes, are unconstitutional under the...
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The Right of Access to Juror Names and Addresses
Since before the nation's founding, the idea that the identities of jurors would be known not just to the parties before a court but also to the community at large has been a fundamental principle of the American judicial system. "When the colonists...
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Vol. 40, No. 2, Spring

The Finger and the Football Star
Medical privacy and the right to publish took opposite ends of the legal field when New York Giants defensive end Jason Pierre-Paul squared off against ESPN and reporter Adam Schefter after Schefter tweeted photos of a medical report about injuries to...
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Litigation Frustration
Leading editor s ar e wor r ied that the news industr y's ability to fight for First Amendment rights in cour t is waning, a r ecent r epor t found.In a survey of top editors from pr int and online newspaper s, 65 per cent said that news or ganizations...
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Anatomy of a Brief: Mendez V. City of Gardena
The fight over access to video of police shootings is nothing new. The news media have always wanted to see the best evidence when there's a public controversy, and as more and more police departments integrate dash cams and body cams into their operations,...
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Courtroom Camera Pilot Program Grounded
A pilot pr ogr am that put camer as in 14 feder al tr ial cour ts for four year s has ended with a decision to maintain the ban on video r ecor dings of pr oceedings, despite r epor ts that par ticipating judges and attorneys were in favor of it.The...
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Impersonating the News Media
The FBI recently released documents, apparently for the first time, that set out the rules and procedures the agency must follow when it impersonates the media during undercover investigations. The documents were released in response to a FOIA lawsuit...
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Convention Coverage
As it has done for the political conventions over the last 40 years, the Repor ter s Committee will maintain jour nalist hotlines dur ing the upcoming Republican and Democratic national conventions this summer. The Republican convention will be held...
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Champions of First Amendment Honored
The Reporters Committee for Freedom of the Press hosted its 2016 Freedom of the Press Awards Dinner at The Pierre in New York City on May 17, honoring Eve Burton and the Office of General Counsel at Hearst, and Alberto Ibargüen and Eric Newton of the...
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Police Policies a Mixed Bag
The Washington, D.C., Metr opolitan Police Depar tment r ecently r eleased 12 police bodycam videos in r esponse to a public r ecor ds r equest fr om the Reporters Committee for Freedom of the Press. The release of about 23 total minutes of video comes...
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Vol. 40, No. 1, Winter

When Five Became Four
He was a moving force in constitutional and statutory law and in the interpretation of legal documents generally. In that area he was more than a man; he was a movement. In oral arguments, he was spirited and disputatious, a force with which to reckon....
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Florida Forecast Cloudy, but Now with a Chance of Sunshine
Until recently Florida's Public Records Law, widely regarded as one of the strongest in the nation, looked to be in danger of losing one of its most important enforcement mechanisms.Two bills introduced in the legislature would have eliminated mandatory...
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FixFOIAby50 Gains Momentum
The federal Freedom of Information Act will turn 50 in July, and some members of Congress are pushing to mark the date with a birthday present for the public by passing legislation to streamline access to public records.Half a century after its enactment,...
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Near at 85: A Look Back at the Landmark Decision
This year marks the 85th anniversary of Near v. Minnesota, the milestone U.S. Supreme Court decision that created the presumption that prior restraints - government restriction of speech prior to publication - are unconstitutional.Although a lifetime...
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Private Email, Government Business
A pending decision by the U.S. Court of Appeals for the District of Columbia Circuit on whether the federal Freedom of Information Act applies to agency records held in nongovernmental email accounts could set an important precedent in favor of access...
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Quashing a Prior Restraint
In late December of last year, the Florida Fourth District Court of Appeal, in the case Palm Beach Newspapers v. State, overturned a trial court's order prohibiting The Palm Beach Post from publishing transcripts of a prisoner's recorded telephone conversations.Since...
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Six Degrees of Antonin Scalia
As legal scholars and friends remember the late U.S. Supreme Court Justice Antonin Scalia so, too, does the Reporters Committee recall an exchange in 2004, when a letter of concern over erasure of reporters' recordings of remarks by the Justice garnered...
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Stopping an End-Run around the Reporter's Privilege
The ability to maintain the confidences of a reporter-source relationship is a cornerstone of journalism. Reporters often rely on the safeguards of state shield laws and reporter's privilege to preserve the trust. But these protections are not absolute...
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Vol. 39, No. 4, Fall

Courts Wrestle with Defining Newsworthiness in Privacy Cases
Michael LambertWhat is newsworthy?When deciding whether to publish certain content, members of the news media answer this question on a daily basis.But when courts attempt to define newsworthiness, the inquiry can be more complicated and could dictate...
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A Dancing Baby Redefines DMCA Orders
Jennevieve FongThe recent decision by the U.S. Court of Appeals (9th Cir.) to require copyright owners to consider "fair uses" of their work before requesting takedowns may be a double-edged sword for journalists and bloggers who work with online content.In...
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Camera Access, Anti-SLAPP Laws Introduced in Congress
Michael LambertU.S. Supreme Court Justice Stephen Breyer fielded a bevy of questions this fall during a whirlwind media tour promoting his new book, "The Court and the World."Among the multitude of responses given by Breyer, he appeared to soften his...
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Challenging Classification: A Third Option
Hannah Bloch-WehbaLast month OpenTheGovernment.org filed a complaint seeking the release of information related to the Central Intelligence Agency's Detention, Rendition, and Interrogation Program that, they argue, has been wrongfully classified. But...
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Identifying the Jury
Kevin DelaneyIn the midst of the high-profile criminal trial of Nathaniel Fujita, a man eventually found guilty of first degree murder in the death of his former high school girlfriend, The Boston Globe made a motion for post-verdict access to the jury...
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The Delayed Flight of the News Drones
The Federal Aviation Association missed its deadline for the integration of drones into the nation's airspace, leaving unresolved the issue of how and when the news media might be able to use drones in newsgathering.Congress mandated this Sept. 30, 2015,...
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Turning on Body-Worn Cameras
With strong financial support from the federal government, police body-worn cameras are quickly becoming an essential tool for police accountability across the country. Debates about who should get access to bodycam recordings and when are raging across...
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When Does the Public Get Public Records?
In early July, the Reporters Committee reported that several federal agencies had launched a pilot "release to one, release to all" program for records processed under the Freedom of Information Act. Throughout the six-month pilot, seven agencies or...
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White Paper: Anonymous Civil Litigants
Last June, a jury in Fairfax County, Va., awarded $500,000 to a medical patient who alleged that, while he was undergoing a colonoscopy, two doctors disparaged and defamed him to each other and to the medical staff in the operating room. The patient,...
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Vol. 39, No. 3, Summer

Shall I Compare Thee to a Newspaper?
Last week the D.C. Circuit released its opinion in Cause of Action v. FTC, a Freedom of Information Act case that will have far-reaching and beneficial implications for journalists and organizations seeking fee waivers and reductions when making records...
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Charges against Reporters in Ferguson Highlight Continuing Problems
This article first appeared on the blog of the American Constitution SocietyThe unrest in Ferguson, Mo., concerns civil rights issues of the most fundamental nature. And the concerns of journalists who get arrested covering that unrest seem to pale in...
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Closed Doors
Usually, lobbyists stay as far away as possible from investigative reporters. But this lobbyist was so fed up, he made an exception. His problem was also unexpected for a lobbyist: being denied access at the Maine Statehouse.His job was to look out for...
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Taking the Fifth to Protect a Source
A former Detroit Free Press reporter has finally won an eleven-year fight with a former federal prosecutor over the identity of an anonymous source, and his use of the Fifth Amendment to protect his newsgathering may have repercussions for other journalists...
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Thwarting Walker's Wishes
Wisconsin Governor Scott Walker again found himself on the opposite side of transparency advocates after admitting to an attempt to sneak in language to a late night omnibus motion to substantially limit the Wisconsin open-records law.As many prepared...
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Unreasonable Restriction
A subpoena issued to Reason.com in June for the identities of six of its commenters raised eyebrows when it was revealed that the U.S. Attorney's Office followed the subpoena with a highly restrictive gag order on the news organization.While no authorization...
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Vol. 39, No. 2, Spring

Bodycams: Seeing, but Not Being Seen
Reporters face challenges in obtaining police body camera videosFeature Page Number: 9Police departments across the nation are implementing bodyworn cameras (also called BWCs, or bodycams) in an effort to improve community relations and create a more...
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Anti-SLAPP Statutes Face Setbacks
Congress may again consider an anti-SLAPP bill, but Washington state loses its lawFeature Page Number: 2Not long after a federal anti-SLAPP bill with bipartisan co-sponsors was introduced in the U.S. House of Representatives last month, the Washington...
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Anatomy of a Brief: Merrill V. Holder et Al
A detailed look at a recent Reporters Committee amicus briefFeature Page Number: 5In March, the Reporters Committee filed a friend-of-the-court brief in the United States District Court for the Southern District of New York weighing in on the right to...
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Cybersecurity Legislation Raises Concerns for Journalists
Feature Page Number: 8President Obama's 2015 State of the Union address urged Congress to pass legislation to address cyber threats: "If we don't act, we'll leave our nation and our economy vulnerable."After years of proposed, but ultimately unsuccessful,...
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The Clash of Ethics and Law
The Rolling Stone report, and how professional journalism standards get mixed up in libel casesFeature Page Number: 1As controversy swirled around Rolling Stone in the wake of its story about rape at the University of Virginia, the magazine quickly sought...
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The Dangers of Doxxing
Threatening journalists over their reporting is not a new concept, but the age of electronic media has brought a new method of intimidation and harassment known as doxxing.Doxxing - named for docs or documents and also called doxing or d0xing - starts...
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Those Who Paid the Price
Going to jail to protect a source, whether for a weekend or several months, comes with a heavy price for journalists - and the unpleasantness of the experience can last for years.At the largest gathering to date of journalists jailed in the U.S. for...
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Tweeting from Courts Still Slow in Catching On
In April, the Pennsylvania Supreme Court rejected a proposal that would have banned real-time reporting - including tweeting and live-blogging from cell phones, tablets or laptops ?- from inside state courtrooms. Without the ban, Pennsylvania judges...
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White Paper: Access to Divorce Court Proceedings
This is a condensed version of a white paper on access to family court proceedings, which will be published soon on our web site.Davis Wright Tremaine media lawyer Alonzo Wickers IV likes to point out that access battles for divorce-court records helped...
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Vol. 39, No. 1, Winter

"Citizenfour" Filmmakers Move to Dismiss Federal Lawsuit
Feature Page Number: 8The makers of Citizenfour, the Oscar-nominated documentary film about Edward Snowden, have moved to dismiss a federal civil lawsuit that alleges they aided and abetted the "illegal and morally wrongful acts" of Snowden.Filmmaker...
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An Injunction Remains, One Year and Counting
The ban on "Innocence of Muslims" from Garcia v. Google continues to violate the First AmendmentCommentary Page Number: 6On December 15, the Ninth Circuit reheard oral argument en banc in a case that has odd facts and has made terrible law. In Garcia...
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Revising the Attorney General's Guidelines
Further changes on federal regulations on subpoenaing reporters follow dialogue with reportersFeature Page Number: 1Kimberly ChowKimberly ChowA year after the Department of Justice began a dialogue with representatives of the news media, it issued a...
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Glomar Surfaces in State Courts
Feature Page Number: 4On March 1, 1968, a catastrophic incident aboard Soviet submarine K-129, sailing approximately 1500 miles northwest of Hawaii, led to the loss of all people and three ballistic nuclear missiles as the ship sank to the bottom of...
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Grand Jury Secrecy Comes at a Cost
Two new lawsuits are challenging the continued secrecy of the grand jury investigations related to the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. The suits demonstrate just how secret the information gathered by...
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Lynch Hearing Touches on FOIA Issues
Issues of compliance with the Freedom of Information Act received some attention during Loretta Lynch's eight-hour confirmation hearing on Wednesday.Lynch said she will work with Congress to improve public access to open records, and described the Freedom...
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Protecting Anonymous Commenters
This is a condensed version of a white paper on available means of protecting the identities of anonymous commenters on news web sites, which will be published in the near future.By opening their web pages to anonymous online commentary, news organizations...
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The Creeping "Right to Be Forgotten"
The European Union has claimed the authority to regulate search results that appear on American servers in a November proposal regarding the 'right to be forgotten,' a proposition that is worrisome to U.S. journalists.Under the current European privacy...
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The Failures of the Information Security Infrastructure
In an age of big data and mass state surveillance, the rapid expansion of interconnected networks without secure infrastructure is causing concern among many information security experts, lawyers, privacy advocates, and journalists.To address these challenges...
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Fall

The Encryption Decision
With all the relevations in the last few years about the government's snooping on communications data, what should the responsible journalist do to protect their confidential sources?That question was the central focus of a conference organized by The...
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Encryption: Is It Enough, or Too Much?
Journalists worldwide are turning to enhanced operational security to safeguard their communications from surveillance. But panelists at the "News Organizations and Digital Security" conference on Nov. 7 emphasized that encryption-based tools, while...
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Beyond PGP
The main impediment to implementing digital security in traditional newsrooms may be that reporters avoid learning about it and news organizations don't dedicate appropriate resources to it, according to panelists at a November 7 conference cosponsored...
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Sidebar: The Tools of Data Security
There were several breakout sessions at the conference devoted to exploring a variety of encryption technologies and tools. These sessions were devoted to Tor (an internet anonymity and security network), Tails (a secure operating system), PGP (used...
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Standard Practices
Before trading in the park bench for a Gmail account, journalists must decide if technology companies' terms of service are enough to protect their sources from government surveillance.Online service providers Apple, Dropbox, Facebook, Google, Microsoft,...
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Open & Shut
Edward Snowden makes an appearance by webcam at the digital security conference.Edward Snowden made an appearance by webcam at the "News Organizations and Digital Security" conference to talk about his experiences and what needs to happen with digital...
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Ferguson and the Right to Photograph Police
Protesters march on Nov. 23 in St. Louis, before the grand jury returned a decision.While the country awaited a grand jury decision in Ferguson, Missouri, in late November, the protests following the death of Michael Brown in August served as an early...
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First Step in Unsealing Court Records: Try Asking
Sometimes, it's amazing what you can get if you ask nicely.Last month, judges in two different courts unsealed records in response to informal letter requests from journalists - not formal motions prepared by lawyers. The Reporters Committee for Freedom...
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Asked & Answered
Q: I submitted an open records request, but now the (federal/state/local) government entity says it's going to cost a lot of money for me to get the records. Is there anything I can do?A: The best way to avoid paying fees for an open records request...
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Agencies Want to Know: Are You Still Interested?
Before we begin the time-consuming review process, we want to ensure that you are still interested in continuing the processing of this request. Please indicate your continued interest in pursuing these records within 7 days from the date of this letter,...
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Summer

Criminal Justice & Secrecy
Limits on access to court and police records are not in the public interestThis issue examines a few different ways that the criminal justice system limits access to records, often in the name of the public good. But in the end, the limits end up hurting...
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Expunging Criminal Records
The Alaska legislature passed a bill this spring that would have denied access to criminal case documents if the accused is acquitted or the case is dismissed, but Gov. Sean Parnell vetoed the proposed law in late August.Alaska is not alone in trying...
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Access to Mug Shots Gets Close Look across the Country
In response to the increased posting of mug shots online, particularly on websites that charge individuals to remove the photos from the site, state and federal officials have been working to limit public access to mug shots. Some of these efforts have...
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Sexual Assault and Military Secrecy
Chicago Tribune investigative reporter Karisa King called the military the most closed institution that she has ever covered.Getting information from the armed forces is "like trying to squeeze blood out of a rock," she said at a panel on covering sexual...
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Clearing the Past
One of the most powerful and prominent Internet companies must shoulder a new responsibility: increased editorial control.Within the European Union, Google and other search engines now must make thousands of decisions to remove links that would appear...
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"We Need to Be Ready to Fight"
Mauro is a member of the Reporters Committee Steering Committee and U.S. Supreme Court correspondent for The National Law Journal.Lawyer Theodore Boutrous Jr. may be best known these days for his winning ways in headline-making cases on issues ranging...
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Defending James Risen: Circuits Split
When the Supreme Court in June denied reporter James Risen's request for an appeal of his contempt order for refusing to name a source, it left a bleak outlook for the reporter's privilege in criminal cases in the Fourth Circuit. Unfortunately, many...
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Smartrecordings
Reporters frequently cite mobile apps that record phone calls as among their favorites, according to David Ho. The Wall Street Journal's editor for Mobile, Tablets & Emerging Technology, who has trained some 1,500 journalists on how to use tech tools...
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Mining for Data
Two miners died in a sudden expulsion of coal and rock during a mining operation at a West Virginia coal mine in May, and the reporter covering the event still does not have the inspection records of the previously-cited mine.The Charleston Gazette's...
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Anatomy of a Brief: Berger V. New York City Department of Health and Mental Hygiene
In late June, the Reporters Committee filed a ffiend-of-the-court brief in an intermediate appellate court in New York addressing the difficult balancing of public interests and personal privacy in freedom of information cases.Public interest vs. privacyMost...
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Republication in the Internet Age
One question that has troubled members of the legal community for decades is how the law should treat one who does not create, but rather repeats, a defamatory falsehood?In most jurisdictions, one who repeats a defamatory falsehood is treated as the...
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Tweeters Beware
At George Zimmerman's trial last summer, Orlando Sentinel reporter Rene Stutzman wrote traditional stories but also tweeted courtroom highlights, sometimes more than 50 times a day."It provided pieces of information to followers of Twitter who wouldn't...
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Spring

Openness in Executions
This issue of The News Media &The Law touches on many questions about the future of newsgathering: the cover story looks at the increasing efforts to keep information about executions secret, and others cover escalating fees for FOIA requests, continuing...
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Lethal Secrecy
After months of fighting for information about the drugs Oklahoma intended to use to kill them, Clayton Lockett, a man convicted of murdering a 19-year-old woman in 1999, and Charles Warner, on death row for raping and murdering an 11-month-old in 1997,...
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Paying for Public Access
Public records are fundamental to understanding how the government works, and officials typically acknowledge that people are entitled to them as a matter of right. But when government offices can charge requesters for finding, copying and redacting...
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The Basics: Using Freedom of Information Laws
Freedom of information laws are invaluable resources to reporters covering any beat. The laws provide access to a wide range of government documents, from budgets to emails, and contracts to crime reports.There are two ways to incorporate freedom of...
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Holding out against Cameras at the High Court
It was pouring rain the last day the Supreme Court heard oral argument this spring, but that didn't stop James Armstrong from waiting in a line more than 50-yards long to try to get a seat in the courtroom.He wanted to see the case, a patent dispute,...
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Rethinking Hyper Linking
Media scholars have noted for years that news outlets lag significantly behind blogs in their use of hyperlinks. But recent court cases suggest that news media may want to increase their use of hyperlinks as a way of defending against defamation lawsuits.Three...
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Anatomy of a Brief: Scholz V. Boston Herald
In early May, the Reporters Committee filed a Mend-of-the-court brief with the highest court in Massachusetts, weighing in on a central tenet of libel law: opinion."Opinion" has a broad meaning in libel law"Opinion" in libel law can encompass more types...
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Asked and Answered - FOIA Exemption Waivers
Q: Can the government withhold information under a FOIA exemption if the same information has already been released?A: In general, the federal government can withhold any information that falls within one of the nine exemptions to FOIA. However, there...
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Baseball Fans, Podcasts, and the First Amendment
This article first appeared in Full Court Press, a blog on sports and the First Amendment by Levine Sullivan Koch & Schulz, LLP. Used with permission.Last week the blogosphere and Twitter erupted following reports that several podcasts created by...
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Vol. 38, No. 1, Winter

Guidelines Help, but We Need a Shield Law
Reporters Committee EditorialThe Department of Justice has released its long-anticipated updated policy on obtaining information from the news media. The guidelines require, among many other things, that department officials - which includes U.S. attorneys...
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Spills and Chills
On the morning of Jan. 9, about 10,000 gallons of chemicals leaked from a storage tank into a river in Charleston, W.Va., contaminating water supplies for more than 300,000 people. More than a month later, journalists are still struggling to get information...
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Taking Your Shield with You
Journalist Jana Winter's win in New York's highest court in December was undoubtedly a victory not just for her but for journalists everywhere. But just how will the court's decision affect journalists, both inside and outside New York?All shield laws...
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The NSA's Shadow
"What remains after the president's speech is a fairly robust freedom to do data collection," New York Times Assistant General Counsel David McCraw said.Though President Obama pledged reforms of National Security Agency programs in a January speech,...
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At Guantanamo, Showing Up Counts
Unlike most beat reporters, the Miami Herald's Carol Rosenberg doesn't have the luxury of moseying on downtown to ply her sources at City Hall or the local courthouse.Rosenberg's beat is the Guantanamo Bay detention center, which means that she gets...
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Ninth Circuit Begins Live Video Streaming En Banc Proceedings
The U.S. Court of Appeals in San Francisco (9th Cir.) announced in December that it would become the first federal appeals court in the country to live stream video coverage of its major cases. The court began providing streaming arguments over the Internet...
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Bloggers and the 'Institutional Press'
Online writers have the same defamation protections on matters of public concernThe Ninth Circuit ruled on Jan. 17 in Obsidian Finance Group v. Cox that bloggers -and other members of the public - are governed by the same decades-old defamation jurisprudence...
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Do We Have a Right to Online Anonymity?
The Edward Snowden leaks have forced Americans to question whether the government monitors their online activities. But intelligence gathering is not the only government threat to Internet privacy: plaintiffs in defamation cases are using court subpoenas...
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Libel Immunity Up in the Air?
On Monday, Jan. 27, 2014, the Supreme Court unanimously reversed a $1.2 million Colorado defamation verdict in the case of Air Wisconsin Airlines Corp. v. Hoeper - a notable decision for a court that rarely accepts libel cases. The Court interpreted...
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Filling in the Background
On January 8, Maryland became the latest state to require criminal background checks for journalists covering the state house. The new credentialing requirement is part of an ongoing movement across the country of state and local jurisdictions, including...
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Asked and Answered
The Reporters Committee attorneys discuss questions about recent issues in media law.Answers are not meant to be relied upon as legal advice specific to any reader's situation, but are for informational purposes to help journalists understand how the...
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"Open & Shut"
A collection of notable quotations"I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."-...
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