Know Your Reporter Rights 2012

7/31/2019 Know Your Reporter Rights 2012

1/33

Reporter Rights:

Know Them,Learn Them,

Love Them!

Privilege, Access, FOIA, and More

Genelle Belmas, Ph.D.

California State University, Fullerton

JACC 2012


2/33

Lets start with a 10-question

true/false quiz

1) Judges can easily gag (prevent) mediacoverage of high-profile cases.

2) An open trial is the right of the public.

3) You should obey a gag order even if it

looks like it will be overturned.

4) California has a shield law to protect

reporters privilege.

5) You dont have to keep a promise of

confidentiality to a source.


3/33

Quiz, part two

6) You have the right to inspect the U.S.Presidents personal files.

7) Your newsroom can be searched for anyreason the administration wants.

8) Cameras are guaranteed in anycourtroom.

9) Reporters privilege is a guaranteed First

Amendment right.10) There are open meetings laws in

California.


4/33

Gag orders on media

Nebraska Press Assn. v. Stuart(1976):Sensational case: in October 1975,Erwin Charles Simants murdered sixmembers of the Henry Kellie family inSutherland, NE Restrictive order relating to matters that may or may not

be publicly reported or disclosed to the public, becauseof the mass coverage by news media and thereasonable likelihood of prejudicial news which would

make difficult, if not impossible, the impaneling of animpartial jury and tend to prevent a fair trial

Court declared gag orders a form of prior restraint,presumed unconstitutional on their faces

Three-part test is a tough standard


5/33

Three-part test in NPA

Govt has burden of proof to demonstrate that:1) nature and extent of pretrial publicity would impairdefendants right to fair trial

2) no alternative measures whichcould mitigate effects of publicity

3) prior restraint wouldeffectively prevent the harm

Judges must deal with mediaeffects without gagging media

Since this case, valid gag orders are rare; threejustices said prior restraints are alwaysunconstitutional

Simants original conviction was overturned but hewas found not guilty by reason of insanity on retrial and

still serves time in a state mental health center


6/33

Should you obey a gag order,

even one you think will be invalid?

Short answer: Yes, but two conflicting circuit views: U.S. v. Dickinson (5CA 1973): pretrial hearing gagged

reporters felt order invalid, published anyway; 5CA saidorder invalid but reporters must obey anyway; review of

gags must be fast In re Providence Journal(1CA 1986):

court decided that Journal entitled todisregard order prohibiting publicationof matl from FBI wiretaps about

murdermedia could ignore orderwhen failed on its face to satisfy testfor prior restraints

High court has not resolved, so best to be safe and

obey gag orders, and appeal them quickly!


7/33

Access to judicial proceedings

AfterNPA, judges couldnt gag, so judges triedother ways to control pretrial publicitycourtclosings rose after Court OKd them

But Richmond Newspapers v. Virginia (1980): Court

reversed itself: right of access to actual trial iscovered by the First Amendment Then the Press-Enterprise cases (Press-Enterprise v.

Riverside County Superior Court(1984 & 1986)):expanded right of access to voir dire in P-E I, andto pretrial proceedings inP-E II (eliminating RichmondNewspapers exceptions)


8/33

Closing the court today

Closure is occasionally allowed, but courts mustfollow precedent in the Press-Enterprise cases

Judge has burden of proof to establish compelling or

overriding need for closed courtroom

A case has been made underP-Ecases for nearly

every kind of judicial proceeding: plea hearings,

sentencing, motion hearings,

bail hearings If closure is allowed, must

be as limited and narrow

as possible


9/33

Cameras in

the courtroom

Not historically permitted Estes v. Texas (1965): Court said

TV coverage of trial violated defendants due process Overturned Billy Sol Estes conviction

Cameras in 1960s bright and obtrusive, interfered; Court alsoquestioned impact of coverage on jurors, quality of testimony oncamera, additional responsibilities of trial judge to monitorcameras, and adverse impact on defendant

Chandler v. Florida (1981): Moved away from Estescameras now are less intrusive, thus disruption is weaker

Criminal defendant must show that televising trial had prejudicialimpact on outcome

Generally up to judge whether to allow cameras in thecourtno 1A right of access for cameras, but states

are free to allow them without violating due process


10/33

Cameras in state/federal

courts

All states now permit somecameras

Usually no cameras in federalcourts

1991-94: U.S. Judicial Conferenceexperiment allowed cameras in twocircuit courts and six federal trialcourts, and only in civil trials

Increasing pressure from Congress andmedia

1996 rules permitted circuit courts todecide for themselves; trial courtsdiscouraged in civil and forbidden incriminal (only 2CA and 9CA permit)

NO cameras in Supreme Court!


11/33

Reporters privilege:

no guaranteed right

Before 1972: no special privilege betweenjournalists and sources; few shield laws

Branzburg v. Hayes (1972): no constitutional

privilege Three reporters refused to

testify before grand juriesabout criminal activities they

had covered But dissent by Justice

Potter Stewart set upstructure for privilege


12/33

Stewarts dissent: major test

In subpoenaing journalists,government has burden of proof,

and it must demonstrate:

1) Journalist has information critical to

decision in caseno fishingexpeditions

2) No reasonable alternative sources to

obtain informationno sources less

destructive of 1A rights3) Compelling and overriding public or

personal interest in disclosure of

informationessential to case to

have that particular information

1A


13/33

Shield laws 30+ states plus DC have shield laws

Alabama, Alaska, Arizona, Arkansas, California,Colorado, Delaware, District of Columbia, Florida,Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana,Maryland, Michigan, Minnesota, Montana, Nebraska,Nevada, New Jersey, New Mexico, New York, North

Carolina, North Dakota, Ohio, Oklahoma, Oregon,Pennsylvania, Rhode Island, South Carolina,Tennessee, Wisconsin

Some states have no shield law butrecognize a common law privilege;

Wyoming has neither a statute nor acommon-law privilege

Vary widely; many adoptStewarts test in Branzburgsome stronger than others

CA law part of CA constitution


14/33

CA shield law

Provides legal protections to journalists seeking tokeep confidentiality of unnamed source or

unpublished info obtained during newsgathering

Protects publisher, editor, reporter, or otherperson connected with or employed upon a

newspaper, magazine, or other periodical

publication, or by a press association or wire

service and a radio or television news reporter orother person connected with or employed by a radio

or television station

Also likely applies to stringers, freelancers, and perhaps

authors bloggers?


15/33

CA shield law

Info protected Source of any information, even

without assurance/ expectation of

confidentiality

Unpublished information

Specific information obtained during

newsgathering but not disclosed to

public

All notes, outlines, photographs,

tapes or other data of whatever sort

Newsgatherers eyewitness

observations in public place


16/33

Do you have to keep a promise of

confidentiality?

Cohen v. Cowles Media (1991): editors ofStarTribune and Pioneer Pressignored reporterspromises of confidentiality given to Dan Cohen andpublished name in connection with info about IR lt.

gov. candidate Cohen lost job, sued; said reporters

promise an enforceable contract

MN Supreme Court said enforcementof contract law would violate 1A

Court overturned onpromissoryestoppel: promise must be enforcedwhen someone has relied upon itlaw of general application


17/33

Newsroom searches

Zurcher v. Stanford Daily(1978): Court said

newsroom searches did not violate 1A

Privacy Protection Act of

1980, overruled Zurcher

Search OK only when

probable cause to believe

that individual involved in

crime, to prevent imminent death, reason tobelieve that subpoena would mean destruction of

materials, or materials not produced as result of

court order overturned on appeal

Outlawed most newsroom searches


18/33

Freedom of Information Act of

1966 (5 U.S.C. 552)

Unless specifically exempted under FOIA, publicrecords presumed to be open to public

Applies to agencies, departments and government-controlled corporations of the executive branch of

the federal government (not states) Examples: State Dept, FCC, FTC, SEC, FAA, FDA, Postal

Service, CIA, FBI

Not to President and

staff or consultants,Congress, federal courts,or private corporations

Nine major exemptions


19/33

How to exercise FOIA rights

Steps: Informal phone call: ask for

FOI officer, make request clearly

Written letter, requesting reply

within 10 days, by certified mailor fax

Appeal to agency head, requesting

reply within 20 days

File suit in federal court nearest your area if all else fails Be clear about how much you are willing to pay before

you order, and find out how much things cost

Reporters Committee for Freedom of the Press

http://www.rcfp.org: good resource
http://www.rcfp.org/http://www.rcfp.org/


20/33

The nine exemptions

1) National security: difficult to disputerelease of info mightcause harm to natl security or foreign policy of U.S. All agency must show is appropriate classification

2) Internal rules and practices: matl that might divulgeagencys investigatory/prosecutorial practices

3) Statutory exemptions: fed. statutes exempt classes ofinfocourts balance statutes to determine release Example: provision of the Tax Code prohibiting the public

disclosure of tax returns and tax law designating identifiablecensus data as confidential

4) Trade secrets: protects food formulas, etc.info supplied

by private firms for regulatory reasons that includes suchinfo exempt from disclosure (includes customer lists,market share information, profit/loss statements)

5) Executive privilege: inter- or intra-agency memos orletterspre-decisional documents not available; post-

decisional documents are


21/33

The nine exemptions

6) Personal privacy: personnel files, disclosure of which would

constitute invasion of privacy (medical exams, job evals)7) Law enforcement investigations: to extent releasing might:

a) interfere with law enforcement

b) deprive person of fair trial

c) be invasion of personal privacy

d) disclose identity of confidential source or of material in a casee) disclose guidelines for law enforcement or prosecutions

f) endanger life/physical safety of any individual

8) Banks: protects fed. agency reports about conditions ofbanks and financial institutions under federal regs

9) Oil wells: protects against speculation based on info onmaps and other geographical information that must be filedwith govt

More info withheld under Exemption 7 than any other!


22/33

Major amendments!

Electronic Freedom of Information ActAmendments of 1996: not only makinginfo available in electronic format! Requires agencies to make it easier to identify and access records

Facilitates computerization of FOI compliance

Reforms timetable and procedures agencies must follow

Openness Promotes Effectiveness in our National (OPEN)Government Act of 2007: signed by Pres. Bush on Dec. 31,2007 to overcome Ashcroft memo that encouragedagencies to lean against disclosure in areas implicatingnational security

Requires an online tracking system for requesters Creates a government-wide office to arbitrate disputes

Establishes penalties for FOIA offices that take longer than allottedresponse times

Clarifies the definition of news media status (to be more inclusiveof freelancers)


23/33

CA open meeting laws I

Ralph M. Brown Act: appliesto local government agencies

and their boards and

commissions

Counties, cities, school andcommunity college districts

and other special agencies

Section 54953: All meetings of the legislative body of a

local agency shall be open and public, and all personsshall be permitted to attend any meeting of the legislative

body of a local agency, except as otherwise provided in

this chapter

Public agendas and meetings are required!

Assemblyman Ralph M. Brown


24/33

Your rights under

the Brown Act

Non-discriminatoryfacilities (everyone may enter)

Right to not sign in

Right to testify (limited speaking) Right to record and to copy of recording

Right to insist on a public vote

Right to request greater access

Right to copy of the material

Right to distribute the Brown Act to legislators

(to familiarize them with provisions)


25/33

Your rights under

the Brown Act

Right to written and oralnotice of any closed session

Right to hear oral reports and receive

documentation of actions taken in closedsession

Right to complain about alleged violations

Right to seek relief (in superior court) Right to remain in the room even if the public

is asked to leave due to general disruption by

public attendees


26/33

Brown Act exceptions

Four major exemptions where

closed meetings are OK

Real estate negotiations

Personnel issues

Litigation Labor negotiations

Some other exemptions

Records documenting closed sessions (like votes

or final actions) are public, but not individual votes!

Misdemeanor for public official to participate in

closed meeting where action is taken OR he/she

has reason to know should be open


27/33

CA open meeting laws II

Bagley-Keene Open Meeting Act: applies toall state government agencies and their

boards and commissions, as well as CSU and

UC regents Requires advance notice, agendas as part of

public record, closed meeting justification,

public meetings except for 24 exceptions (similar

to Brown Act) Misdemeanor for public official to participate in

closed meeting he/she has reason to know

should be open


28/33


29/33

Exemptions

Personnel records

Preliminary drafts of final reports

Pending litigation (includingattorney-client privilege)

Deliberative process/executive privilege(documents can be withheld that would hinder theagencys decision-making if public)

Public interest (a balancing test)

Law enforcement records investigatory and arrest

records, incident reports, arrest reports, accidentreports, police or peace officer personnel records orcitizen complaints (dont forget that many of theseare available as public records through the courts!)

Other specific exemptions as described in the law


30/33

Requesting information

Make your request for information as clearly andspecifically as possible

Cite names, dates, locations or any other info that will

help the government worker locate the data you want

Fees: they must be reasonable Agencies are entitled to 10

working days if there is a

question on a documents

exemption (but this 10-day

period cannot be used to

intentionally delay obviously

open records)


31/33


32/33

Answers, part two6) You have the right to inspect the U.S.

Presidents personal files. False: FOIA does not apply to President

7) Your newsroom can be searched for any reasonthe administration wants.

False: Privacy Protection Act limits8) Cameras are guaranteed in any courtroom. False: Up to the judge, not guaranteed, but not

assumed to be abridgment of fair trial anymore

9) Reporters privilege is a guaranteed FirstAmendment right. False: Majority opinion ofBranzburgsays no

10) There are open meetings laws in California. True: Brown and Bagley-Keene Acts


33/33

Know YourReporter Rights

Questions? Comments?

If youd like acopy of this presentation,

please email me:[email protected]

Documents

Know Your Reporter Rights 2012