10.CommLaw.Newsgathering

This podcast episode discusses the relationship between news gatherers and the government, focusing on the Freedom of Information Act (FOIA), reporter privilege, and the conflict between the Fifth Amendment and the First Amendment. The FOIA requires federal agencies to respond to requests for information and release documents that are not exempt. Many states also have their own FOIA laws. Initially, there was widespread support for the FOIA, but interpretations and restrictions have become more prevalent over time. The Bush administration tightened restrictions on document release, while Obama's administration aimed for more openness. However, there have been protests regarding the lack of accountability and responsiveness from federal agencies. The FOIA has exemptions, including national security and law enforcement records. Similar exemptions exist at the state level, with over 100 loopholes in the law. It is important to challenge denials and seek support from state associations and Welcome to Media, Law, and Ethics, a podcast series from the School of Communication at Radford University. I'm Professor Bill Kovarik, and I'm serving as your guide through this course. This section involves the relationship of news gatherers with the government. It's an area that's especially important for those of you in journalism and public relations, but it's also significant as a general area for media law. We're going to briefly cover three things. First, the Freedom of Information Act. Secondly, the idea of privilege for reporters to protect their sources. And third, the concept of the Fifth Amendment right to a fair and public trial and how that sometimes conflicts with the First Amendment. Once again, I would refer you to the website www.billkovarik.com, B-I-L-L-K-O-V-A-R-I-K dot com, and click on the Media, Law link, and then to the schedule, and you'll see these areas. The Freedom of Information Act is a federal law requiring federal agencies to respond to formal requests for information and to release documents if they do not fall under exemption. Most states also have FOIA laws, as they're called, and nearly every agency at the state and federal level has a designated FOIA officer, which is usually someone in the agency's public affairs office. When federal FOIA laws were passed in 1966, nobody in Congress spoke against the idea, and in fact, the law passed unanimously in the House of Representatives. It was not controversial, in other words. One senator said it was a historic victory for the public's right to know what their government is doing. In signing the legislation on July 4th, 1966, President Lyndon Johnson said the bill, quote, springs from one of our most essential principles that democracy works best when the people have all the information that the security of the nation permits. The enthusiasm for freedom of information was by no means an exclusively federal thing. At the time, over half the states, in the 60s, over half the states had already passed FOIA bills and companion legislation about open meetings called Sunshine Laws. Since then, nearly all the states have adopted FOIA and Sunshine Laws. It's simply taken for granted, or at least it has been, that the American people have a right to know about the government, and that was considered a uniquely American thing, something that did not happen in Moscow or Beijing, obviously, but even in London or Paris. I came across this one article from 1966 that was about openness in government, and there's a quote here from Anthony Howard. The British government is quite openly, without shame, regarded by both civil servants and political ministers as a sacred mystery on no account to be explained to the uninitiated. This is a London Times reporter, Anthony Howard, writing about open government in 1966. He said, on the other hand, that Washington, D.C. was a town where all hearts are open, all desires are known, and no secrets are hidden, at least for long. It's a little bit over the top, actually, because there's always been some question of how the FOIA is to be interpreted. And by the 21st century, especially in the wake of the World Trade Center attacks on 9-11, the U.S. government moved to clamp down on openness. The Bush administration said documents should be withheld if there is a sound legal basis for doing so. And that change in wording from Bill Clinton's attorney general, Janet Reno, who said that documents should only be withheld if disclosure would be harmful, was seen as the switch from the Clinton to the Bush approach, was seen as a major blow to openness in government. However, in 2009, when Barack Obama took office, on his very first day, he signed an executive memo opening government documents saying that, in the face of doubt, openness should prevail. And even so, there have been many protests by news organizations and FOIA watchdog groups over the lack of accountability and responsiveness by federal agencies, even during the Obama administration, as well as those before it. The fact that many news reporters and photographers have been turned away from cleanup areas surrounding the BP Gulf of Mexico oil spill in the summer of 2010 was seen as cause for a good deal of protest from the media. There are many specific cases involving the FOIA that can be found in the website openthegovernment.org and also the Reporters Committee for Freedom of the Press, rcfp.org. There are exemptions to the Freedom of Information Act. I mean, initially the idea was to open all records except in circumstances that were exempt, and these would include national security, internal personnel issues, trade secrets, drafts of bankruptcy, drafts of interagency memos, excuse me, records on individuals like medical or personnel or IRS records, for example, law enforcement records in situations where there were criminal investigations and so on. The law enforcement exemptions also included anything that would deprive a person of a fair trial or unwarranted invasion of privacy or disclosed confidential sources. The list actually got longer and longer over the years. Now, at the state level, major exemptions were also similar. Although there's no national security, there is law enforcement personnel pending litigation, property purchase or sale. Information about toxic waste is actually exempt from a lot of state FOIA laws, and there's over 100 loopholes in the law. In Virginia, the law was overhauled in the year 2000, but routine requests for records in all kinds of areas were denied. There was a state survey in 1999 that found that requests for information about incidents involving the police were answered appropriately in only about 14% of the state's police jurisdiction. There was an incident in 1999 at Radford University that showed just how far the practice of the law had strayed from its original intended purpose. State police turned down a Radford University student newspaper request for a copy of a report that concerned a student that was run over by a reckless city policeman. In turning down the request, the state police did not take into account the existing FOIA law that said that the affairs of government are not intended to be conducted in an atmosphere of secrecy, but instead they turned down the request because another section of the FOIA law said that anyone involved in an accident was entitled to a copy of the accident report, and apparently the pretense was that this was an exclusive list. Well, the state legislature took a pretty dim view of the pretense, and there was a sweeping rewrite of the Virginia FOIA law undertaken in the year 2000, supported not only by the Virginia Press Association and the Society of Professional Journalists, but also the Virginia Library Association. And I think the moral of the story is fairly clear. When you run into a brick wall, you should ask why and then get in touch with other state associations and other people who are interested in making sure that government is open and accountable. Most people, conservative or liberal, have pretty strong interests along these directions. This is not a partisan issue by any means. Now, using the Freedom of Information Act on a state or federal level is pretty simple. All you do is you write a letter stating that you wish to see certain records and that you have a right to do so under the FOIA. A state agency has 10 days to respond usually, and a federal agency will usually take 20 working days. What usually happens is that they say they'll call you when they find the documents, and then they'll assess a charge for finding the documents or for copying them. And in those cases, you have to remember to, when you're asking for a lot of documents, include a request for a waiver from fees if you are in the media, because they will definitely sock it to you. I was once asked to pay $5,500 for a computer search of documents that related to air pollution NPDES permits, and I just wanted to know what the maximum allowable under the NPDES was, and that supposedly would have taken $5,000 worth of searching to find out. Obviously, that was designed to discourage me from getting that government information, and obviously, I found ways to appeal it and to get around it. Now, you can appeal locally in your circuit court or through the state. In Virginia, there's a Virginia Freedom of Information Advisory Council that hears questions and complaints directly from citizens. Many other states have the same sort of thing. And on the federal level, you can go to federal court and ask a judge by a letter simply to direct the agency to comply with your request. And usually, there's not a lot of expense involved in this. And if the agency wants to go to court, that's the time to get in touch with the Reporters Committee for Freedom of the Press, the ACLU, and other groups. Now, I want to mention Sunshine Laws in passing here, too. Those are similar to FOIA laws, but they require that local, state, or federal legislative or executive hearings take place in public buildings with adequate notification to the public. Executive sessions are possible under some circumstances, personnel, legal issues, that sort of thing. But all decisions have to be made in public sessions. Now, what this has meant in practice for a lot of reporters is that a city council might go into an executive session at, let's say, halfway through their public meeting, let's say 9 o'clock or so, not come out of the executive session until 11 o'clock at night, come out, quickly pass an ordinance or some kind of property decision, and then adjourn for the evening. So you will see late into the evening good reporters sitting around waiting for a city council to come out of public session. This is less and less common these days as there are fewer and fewer reporters being employed by the media, but it's one of the things that tells us that reporters can be pretty vital. Well, reporters certainly think that they're vital, and many of them have claimed that they have a privilege, and this is the second thing we need to talk about today. Reporter privilege involves confidential sources. Those are important to a society, and they help journalists exercise their constitutionally protected watchdog function over the government. And, of course, journalists are determined to protect their sources. Many have gone to jail to do just that, and, in fact, promises of confidentiality are considered to be contracts that may be enforced. So if you promise to protect a source and you don't, you can be sued, and there is precedent for the journalist or the organization having to pay to compensate someone whose identity was not shielded, according to this even verbal contracts flaw. There was an article by Stephen Bates who noted that the first incident where reporter sources were protected was in 1848 when a reporter from the New York Herald was jailed by Congress for refusing to reveal the source of a leak about a treaty with Mexico. And this has been happening really all through the time since. In the 1960s, one of the things that became very common among campus journalists as well as mainstream media, there would be stories about drug use among younger people, especially marijuana use, and reporters were often called in front of grand juries to testify about sources who said they smoked marijuana or took other drugs or perhaps were dealing marijuana. Usually the reporters would refuse to testify, and as a result, they would be fined or spend a small amount of time in jail. Those kinds of cases mixed together with a case involving refusal to testify to a grand jury on some other issues having to do with political issues in the Black Panther Party, all that came together in the Brandsburg v. Hayes case in 1972, where reporters for the Louisville Courier-Journal refused to give information about sources for an article on marijuana cultivation in Kentucky. And that case went to the U.S. Supreme Court, which was pretty evenly split on the question of whether reporters had privilege to shield their sources. That was four to four, with a fifth justice or the ninth justice actually concurring in part and dissenting in part. So reporters have always held that they did have Supreme Court-sanctioned reporter privilege, but it's always been up in the air. According to the Reporters Committee for Freedom of Information, courts have always recognized the concept of privileges allowing certain individuals to refuse to testify out of an acknowledgment that there are societal interests that can trump the demand for evidence. Still quoting here from the RCFP, journalists need to emphasize to both the courts and the public that they are not above the law, but instead they must be able to remain independent so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party, their credibility can be harmed. Potential sources come to see them as agents of the state or supporters of criminal defendants or as advocates for one side or the other in civil disputes. So in other words, the more reporters are called upon to testify, the less credibility they have. In recent years, there's been a number of relatively well-known incidents of reporters refusing to name their sources. For example, in 2004, New York Times reporter Judith Miller spent 12 weeks in jail for refusing to name a source in the Plame Affair. That involved the identity of a CIA agent. In 2006, there was a freelance videographer named Joshua Wolf who was jailed by a federal district court for refusing to hand over videotapes he had made during a demonstration in July of 2005 in San Francisco. He was jailed for 226 days, longer than any other journalist in U.S. history so far, beating the five-month record that had been set in 2001 by Vanessa Leggett. So there's three important cases from this area that I'd like to mention. One, of course, is Brandsburg v. Hayes, 1972, in which the court was evenly split four to four on the reporter privilege issue that I mentioned. Another one is Cohen v. Cowles Media from 1991. This involved a Republican public relations guy named Dan Cohen who sued Cowles Media, which is the Minneapolis newspapers, after being promised confidentiality by a Minneapolis Star Tribune reporter. The promise held as a contract. And Justice White said the First Amendment does not confer on the press a constitutional right to disregard promises that could otherwise be enforced under state law. So this, like many other cases, shows that freedom of the press is not freedom to behave badly in a business situation, but simply freedom of the content of the press. Another important case is Zucker v. Stanford Daily of 1976. This involved an issue of a newsroom search following a protest. Stanford University's Daily newspaper was searched. And the objection to a newsroom search is that that's a search warrant when issued by a judge is a one-party proceeding. It's an ex parte proceeding. And under the law, a subpoena is closer to the due process requirement. So subpoenas would be preferable because a news organization would have an opportunity to argue that the police already have the information or that they would turn over some of it but not all of it. But they would have an opportunity to make their case. Now, in Zucker, the Supreme Court said no. It's up to the courts entirely. And sorry, you guys in the newsroom aren't really comfortable, but if a court wants to issue a search warrant, that's fine. But Congress in 1980 overrode this by passing the Privacy Protection Act. And under the Privacy Protection Law, subpoenas are preferred to ex parte proceedings like search warrants, which are only supposed to be issued when a person holding information is suspect of a crime and there's no reason to believe the materials would be seized immediately to prevent or when there's reason to believe the materials have to be seized immediately to prevent death or injury or some kind of emergency. Now, in April of 2010 at James Madison University in Virginia, prosecutors ignored that law and searched a James Madison University newspaper called The Breeze after the newspaper covered a riot. And it was a pretty serious riot, a lot of glass being thrown, a number of people hurt, so you could see where they'd be concerned. And yet at the same time, the newsroom search was contrary to the law. The Washington Post editorial said that state courts have recognized that newspapers may withhold materials from the government unless officials make a compelling case to the contrary. And there's a process that's supposed to play out in court in response to a subpoena. But in this case at JMU in April of 2010, there was no subpoena, no court arguments, and no recognition that rating a newspaper actually makes a mockery of the First Amendment, or so they said at the Washington Post. It turned out in June the Commonwealth's attorney apologized to the JMU newspaper and the county paid $10,000 to cover the legal costs of the student newspaper. So I think we all learned a little lesson from that. Now the third area for this quick discussion involves free press and fair trial. The Sixth Amendment to the U.S. Constitution says that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. So the operative word here is public. And in some cases, the controversy over this has involved a court being closed to the public. And in other cases, the controversy has involved too much courtroom exposure to the press and public opinion in ways that disrupt the right of the accused to a fair and impartial trial. So for example, most experienced journalists have known district attorneys who have built their political careers on high conviction rates that in turn were fed by leaks to the press to create an adverse climate in advance of a trial. Most people in the media should know that this is not ethical, and it's certainly not ethical on the part of the prosecutors, but it does take place, unfortunately. What are some of the big cases that have come up in terms of pretrial publicity and publicity during trials? Of course, there was the O.J. Simpson trial, which was kind of a meltdown of the credibility of non-telegenic witnesses. Very disturbing. The television coverage of information involved stuff the jury never got to see, so the TV audiences found it a lot easier to reach conclusions that the jury did not. There have been riots in response to many trials, but the key case in the free press right fair trial area is the Shepard v. Maxwell case of 1966. Now, Sam Shepard was a doctor who was convicted of murder in 1954 after his wife was found stabbed to death in their home. He claimed, Shepard claimed, that a third person committed the crime, that he had fought with a person that had been knocked out and had not been able to call police until early in the morning, but no one believed him, and before the trial, newspaper headlines were in very bold print on the front pages screaming out, why isn't Sam Shepard in jail? During a coroner's five-day inquest, a magistrate dismissed Shepard's defense attorney and grilled him in front of a live audience that was televised. During the trial, the media more or less took over the courtroom. Shepard couldn't even whisper in his defense counsel's ear without being overheard, and for a complete account of the trial and the fight to clear Shepard's name, it's interesting to see the University of Kentucky Law School cite on famous trials. The Supreme Court reversed Shepard's conviction in 1966, saying that Shepard didn't get a fair trial, and they laid out guidelines to help judges keep the courtroom atmosphere impartial. Judges should set rules for in-court conduct by reporters. They could grant a continuance for a later trial if there had been a lot of pretrial publicity, or grant a change of venue to keep the prospective jury unbiased, or maybe admonish the jury to ignore the publicity, or at least sequester the jury to insulate them from publicity. They could also issue protective orders, also known as gag orders, for out-of-court statements by trial participants. Now, one of the things that came out of Shepard was that some of these protective orders, these gag orders, which were originally supposed to involve only officers of the court, such as even defense lawyers, prosecutors, and others directly connected with the case, were transferred over to a restraint of the media, actually a prior restraint of the media, and the courts were saying, in effect, don't print or air certain information about a pending case. About 50 media gag orders were issued between 1967 and 1976, and these were fairly troubling instances of prior restraint. In 1976, in the case Nebraska Press Association v. Stewart, there was a gag order following murder trial testimony, and the press was ordered not to mention the existence of a confession, but the Supreme Court struck down the order as an unconstitutional prior restraint, and went back and reiterated some of the Maxwell guidelines, the Shepard v. Maxwell guidelines for in-court conduct for the media. I think it's worth noting that this is the fugitive case from the movie and TV series called The Fugitive, the movie starred Harrison Ford, and the idea for The Fugitive movie was simply that an innocent person is convicted in court because of pretrial publicity, and then escapes and is on the run. That was the basic theme. It didn't really have much to do with the actual Shepard v. Maxwell trial, but that trial was the inspiration. Now, other fallout from Shepard involved closed courtrooms, and there was a set of cases that's a little bit unusual in the history of the Supreme Court, Gannett v. De Pasquale of 1979, and Richmond Newspapers v. Virginia in 1980. In Gannett, the Supreme Court allowed pretrial hearings to be closed, and said that courtrooms could be closed even during full trial sessions. In Richmond Newspapers, that seemed to have gone too far, and so it was overturned in Richmond Newspapers. The right to a public trial is a public right, the court said, and not solely a defendant's right, so this is an unusual case of a very rapid correction of a Supreme Court case. And just to wrap this up here in the end with something I think is terribly important, there's an ethical dimension to the free press fair trial issue, and as a reporter, I've seen this many times, where you have situations in which a prosecutor or police chief or detectives try very hard to let everyone know that they've got the right guy, and that he's confessed, and they've got the evidence, and this guy is going down. And reporters and others who are involved in this, especially public relations people for a city government or for a police department, need to be aware of the possibility of the tendency that the police and prosecutors have to brag about their work and to defend their work, and a lot of times they have to defend their work in a critical atmosphere, so it's not to say that this is not something that isn't more or less natural. However, the principles involved here are that there's a co-equal right to a free press and fair trial, and although the public is entitled to as much information as possible, accused people are entitled to be judged in an atmosphere free from passion and prejudice and sensationalism. In other words, we don't try people in the newspapers, or at least we're not supposed to. That's unethical. We don't try them on TV programs. The responsibility for assuring a fair trial rests primarily with the judge, not with the media, but the news media is equally responsible for following ethical guidelines. One thing to remember is that accused people are always presumed innocent until found guilty, and that all readers and listeners and viewers are potential jurors, and that no person's reputation should be injured needlessly. So under the Virginia Press Association Bar Association guidelines, an accused person's name, age, residence, employment, family status, and other factual background information should be made available and can be published. Certainly the substance of the text or the charge, a complaint, indictment, or information or charge, is a public fact, and there are no such things as secret arrests, and there are no such things as secret trials in this country, so those have to be made public. The identity of the investigating and arresting agency, the length of the investigation, time and place of arrest, circumstances, all of that is appropriate. What's not appropriate, okay, this is ethically wrong, statements, and you will see this in the media quite often, statements about the character or reputation of an accused person or of the witnesses to an upcoming trial, statements about confessions or admissions to wrongdoing on the part of the accused. How do we know that the confession is going to be entered into evidence in the court? We don't. Therefore, when the police say we've got a confession, it's not appropriate to print that. The performance of tests or refusal or failure to take tests, like a breathalyzer test, statements concerning the credibility or the testimony of prospective witnesses, and there's a list that goes on a little bit, but the general principle here is that we don't try the case, the courts try the case, and so attempting to weigh evidence, to present evidence in a newspaper or a TV program or radio program is unethical. The ethical thing to do is to present facts, to follow the trial and to see what evidence has been presented in the trial. Now, it's kind of interesting that this is more or less the legal approach that's taken in England, Canada, and many of the Commonwealth nations, Australia, that only the facts of the case, before case, are supposed to be legally supposed to be printed or aired. There was an arrest, a charge, who was it, that sort of thing. Only after a trial begins is the public supposed to learn about the details of the case. This has caused a number of international problems, especially along the U.S.-Canada border. Probably the most controversial example was the Robert Pickton case in 2006 and 2007 in Vancouver, British Columbia. The case involved some gruesome details about a pig farmer killing prostitutes, feeding their bodies to his livestock, and just sensationalistic stuff that Hearst would have loved, absolutely. While U.S. media was under no restraint at the time, the Canadian media was banned from publishing any details of the case before the trials began, so there was quite a conflict along the border. So, summing up here, reporters have ethical responsibilities, and yet there are also ongoing questions about reporter privileges and the public right to know about government. Cases to remember, Zerker vs. Stanford Daily, Bransford vs. Hayes, Cohen vs. Cowles Media, Shepard vs. Maxwell Bigwin, Nebraska Press vs. Stewart, Gannett vs. De Pasquale, and Richmond Newspapers vs. Virginia. So that's the main group of cases to remember, and I will see you next time. Thank you for watching.