A Minnesota appeals court upheld an Harassment Restraining Order against a man for derisive blogs about his ex-girl friend.

The court found that the order was not prior restraint in that the man engaged in unprotected harassment rather than protected speech. -db

From the First Amendment Center, December 15, 2011. by David L. Hudson Jr.

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The Justice Department seized the assets of a popular music blog, Dajaz1, reportedly for violations of copyright, but did not give the blog a day in court to fight the action.

Writing in TechDirt, Mike Masnick says it was an outrageous act, “I suspect that nearly all of you [readers] would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.” After over a year, the government restored the blog’s domain. -db

From a commentary in TechDirt, December 8, 2011, by Mike Masnick.

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The three-judge U.S. Court of Appeals ruled last week that a Nebraska law keeping protesters 300 feet away from a memorial service was unconstitutional.

The Westboro Baptist Church from Kansas has been picketing military funerals around the country contending that war deaths resulted from America’s growing acceptance of such activities as same-sex marriage. -db

From The Reporters Committee for Freedom of the Press, October 24, 2011, by Kristen Rasmussen.

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The civil rights leader, Rev. Fred L. Shuttlesworth, who died last week, made a lasting contribution to First Amendment law in winning a judgment by the U.S. Supreme Court that Birmingham’s ordinance requiring a parade permit was prior restraint and unconstitutional. -db

From a commentary for the First Amendment Center, October 7, 2011, by David L. Hudson Jr.

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Q: The city has drafted a new ordinance that requires six days notice and a permit to picket or demonstrate on main drags, and two-to-four days on smaller ones. Is this a violation of free speech rights/

A: Public streets are generally considered public forums — in fact, they have been called “‘the archetype of a traditional public forum.’” Gaudiya Vaishnava Soc. v. San Francisco, 952 F.2d 1059, 1065 (9th Cir. 1991) (quoting Frisby v. Schulz, 108 S. Ct. 2495, 2499 (1988). This means that when public streets are at issue, “the government’s authority to restrict speech is at a minimum.” Gaudiya, 952 F.2d at 1065.

In order to restrict speech in a public forum, the restrictions must be content-neutral and narrowly tailored to serve a significant government interest, and they must allow ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).

Whether a permitting scheme for public demonstrations violates the First Amendment will generally depend on the specifics of the scheme. Because requiring a permit in advance of a demonstration entails restricting speech before that speech has occurred — which is known as a prior restraint — the constitutional scrutiny is particularly exacting. See, e.g., Service Employees Int’l Union, Local 660 v. Los Angeles, 114 F. Supp. 2d 966, 970 (C.D. Cal. 2000) (noting in context of analysis of demonstration permit ordinance review that “[g]overnment regulation of speech in traditional public for a is subject to the highest constitutional scrutiny” and that “[t]his is especially true where, as here, the government seeks to impose a prior restraint on speech”).

Permit schemes can run afoul of the constitution for many different reasons, including that the relevant regulations are over-broad or vague. For example, a federal court rejected a scheme for issuing permits for park use where permits were required for people who engaged in conduct “‘which has the effect, purpose or propensity to draw a crowd of onlookers.’” SEIU, 114 F. Supp. 2d at 973.

The court pointed out that “[b]y tying the permit requirement to the reaction of other park users, rather than the need for City services, the procedures necessarily discriminate against expressive speech generally and against certain types of speech specifically.” Id. at 974.

The court also said the language of the regulations was “insufficient to give any guidance to those who wish to exercise their First Amendment rights or those who seek to enforce the permit requirements” because, for example, there was no guidance as to how many people constituted a “crowd.” Id.

Relevant to one of the aspects of the proposed permitting scheme you reference below, courts have also rejected permitting schemes based on long advance notification requirements. “Procedures requiring advance notification have the potential to reduce speech drastically because they impose both a procedural hurdle of submitting an application and a temporal hurdle of waiting for a response. While certain demonstrations require notification so that the City may ensure peace and safety, a delicate balance must be reached to ensure that free speech is not unduly limited.” Id. at 973.

In that case, the court rejected a 40-day advance notice requirement. See also, e.g., NAACP, Western Region v. Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984) (rejecting 20-day advance notice requirement where “[t]he government [made] almost no attempt to prove that a 20-day advance notice requirement is the least restrictive means of achieving its interest in regulating traffic” and noting that “[e]mpirically, most cities are able to protect their interests in traffic control with advance notice periods of substantially less than 20 days. San Francisco requires only 24 hours advance notice of parades. Boston has required three-day advance notice. … The mean advance notice period [in one scholarly study] was New York City’s 36 hour requirement.”) (internal citations omitted).

Whether a particular permitting scheme violates the First Amendment is a highly fact-intensive question, but I hope this information gives you a starting point for thinking about this particular proposed system.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Renton, Washington police are seeking the identity of the creator of some videos critical of their department in what they describe as a cyberstalking investigation. Police are asking Google to reveal the name of the creator using the pseudonym “Mrfuddlesticks.”

The videos contain profanity and sexual content and name members of the department. The affadavit for a search warrant says, “Three individuals have came [sic] forward and have identified themselves as being persons targeted by embarrassing and emotionally tormenting comments about past sexual relationships or dating relationships that were discussed within some of these videos.”

Washington’s cyberstalking law outlaws the use of electronics to “harass, intimidate, torment, or embarrass” another person using “any lewd, lascivious, indecent, or obscene words, images, or language or suggesting the commission of any lewd or lascivious act.” -db

From The Reporters Committee for Freedom of the Press, August 8, 2011, by Aaron Mackey.

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An online newspaper The Daily is refusing to comply with a federal judge’s order to remove video clips of former British Petroleum CEO Tony Hayward testifying on the Deepwater Horizon oil spill in the Gulf of Mexico. The judge indicated she may rescind the order.

The court had issued a pretrial order forbidding the publication of video or audio records of Hayward’s deposition without the court’s permission. -db

From The Reporters Committee for Freedom of the Press, July 8, 2011, by Derek Green.

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A Kentucky high school principal has blocked publication of two stories for the school’s online publication on the arrest of a teacher caught half dressed in a car with a teen-ager.

Although the district’s code of conduct and student bill of rights says school publications are free from censorship and prior restraint, the school district spokesman said the principal acted appropriately to secure as district policy states, “the rights of others or the orderly operations of the school.” The principal claimed that one story went too far with “unsubstantiated allegations.”-db

From the Louisville Courier-Journal, May. 8, 2011, by Sean Rose.

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In a case of a man from Saudi Arabia alleged to have attempted to bomb targets in the U.S. including the house of ex-President George W. Bush, a journalist from Texas is asking for the federal appeals court to reverse a gag order issued by a trial court.

The reporter’s petition reads, “Any restriction on Constitutionally protected communication should be the least restrictive measure possible, should be narrowly tailored, should be a reasonable remedial measure, and should fall short of prior restraints.” -db

From The Reporters Committee for Freedom of the Press, May 3, 2011, by Kacey Deamer.

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A Nevada photojournalist is asking the federal appeals court in San Francisco to grant her access to wild horse roundups and warehouse facilities. She claims that the Bureau of Land Management had revoked permission for her to photo horse captures at close range.

The photojournalist, Laura Leigh, said,  “The case in a nutshell is about transparency. It’s about me, as a free press, being able to exercise my First Amendment right and inform the public of the actions of our government and the handling of wild horses.”

From The Reporters Committee for Freedom of the Press, February 18, 2011, By Rachel Costello.

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The federal appeals court in Atlanta ruled that plaintiffs could remain anonymous in suing video creator Joe Francis for filming them while they were underage engaging in nudity and sexual acts. -db

The Reporters Committee for Freedom of the Press
February 2, 2011
By Derek Green

Several women suing the creator of the “Girls Gone Wild” video series will be allowed to proceed anonymously in the case, after a panel of the U.S. Court of Appeals in Atlanta (11th Cir.) on Tuesday overturned a district court judge’s decision requiring disclosure.

But the court left open the issue of whether the plaintiffs’ request for restricted reporting at trial would serve as an unconstitutional prior restraint on speech.

Plaintiffs in the case, Plaintiff B v. Francis, sued video creator Joe Francis and his companies “for damages stemming from films the Defendants produced in which the Plaintiffs, while under the age of eighteen, exposed their breasts and engaged in sexually explicit acts,” according to the appellate court’s opinion. One plaintiff also alleged that she had been sexually assaulted by Francis. At issue was the trial court’s denial of the plaintiffs’ request to remain anonymous through the trial proceedings.

The district court initially allowed the plaintiffs to proceed anonymously through pre-trial proceedings, but later ruled that the plaintiffs could not proceed anonymously at trial. The appellate court disagreed with the trial court’s decision, noting that the lower court’s ruling rested on the conclusion that the presumption of openness in court proceedings outweighed the concerns expressed by the plaintiffs.

The appeals court’s analysis began by acknowledging a “strong presumption in favor of parties’ proceeding in their own names,” noting that defendants “have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not.”

But this rule is not absolute, the court said. Referencing cases involving issues such as abortion and religious beliefs, the court noted that the presumption against anonymity can be overcome when a party “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’”

The Eleventh Circuit concluded that this case involved such concerns. “The issues involved in this case could not be of a more sensitive and highly personal nature — they involve descriptions of the Plaintiffs in various stages of nudity and engaged in explicit sexual conduct while they were minors who were coerced by the Defendants into those activities,” the court stated.

The Eleventh Circuit ordered the district court to allow two of the four plaintiffs to proceed anonymously, concluding that the explicit and involuntary nature of the actions that they alleged and the potential harm they could suffer justified proceeding anonymously. The appellate court also ordered the trial court to reconsider whether the other two plaintiffs should also be allowed to remain anonymous.

Notably, the court’s opinion left open the issue of how to allow the plaintiffs to proceed anonymously at trial without creating an impermissible prior restraint on speech. Observing that the plaintiffs sought to restrict the press’s ability to report identifying information disclosed at trial, the appellate court ordered the trial court to address the issue on remand.

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KSBW.com
January 19, 2011

A Monterey County judge ruled that the ban be vacated on publishing photos and videos regarding the man accused of shooting three people at The Mucky Duck Bar in Monterey on New Year’s Day. -db

The district attorney in Roseville is asking a court for a gag order in an arson case. They claim the order is needed to ensure a fair trial whereas those against the order say it would prevent information from surfacing that would clear up misperceptions about the case. -db

The Reporters Committee for Freedom of the Press
December 15, 2010
By Derek Green

A California state court in Placer County heard arguments Tuesday on a motion from the local district attorney’s office for a controversial gag order in a shopping mall arson case. The attorney for the accused and the Sacramento Bee opposed the gag order, which, if granted as proposed, would apply not only to the parties and their attorneys, but also to investigating agencies and their employees as well.

The larger significance of the prosecution’s proposed “order prohibiting comment on the case” became apparent last week, when the City of Roseville decided to withhold public disclosure of an investigative report about the emergency response to the mall fire. Although the city had initially intended to release the report, it reversed that decision after the district attorney’s office sought the gag order.

The withheld findings were particularly noteworthy because they were expected to explain why the mall’s sprinkler system shut off during the fire, according to The Sacramento Bee.

In its briefing submitted before the hearing, the district attorney’s office asserted that the city’s findings, which the prosecution acknowledged the city had drafted “for public and media release,” should not be released to the public. The briefing argued that the release of such information “poses a substantial danger of tainting the pool of potential jurors, and endangers both the Defendant’s and the People’s constitutional right to a fair trial.”

Johnny Griffin III, representing the accused, opposed the gag order. Griffin asserted in his briefing that such a prohibition would do little to reduce publicity and could compromise his ability to comment on the case.

The Bee also opposed the proposed gag order, asserting that it would unconstitutionally impair newsgathering and also failed to meet the high standards necessary to justify restraining speech. Attorney Charity Kenyon’s brief also asserted that the order would not have the desired effect. “The proposed order would not prevent publication of information about the case pending and during trial, but it could result in the perpetuation of an error or misunderstanding already reported to the public,” Kenyon wrote.

News reports of the hearing indicate that the parties held to their positions at the hearing.

A decision by the trial court is expected later this week.

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The Electronic Freedom Foundation argues that in denying WikiLeaks access to its site, Amazon is doing what the government cannot legally do, engage in censorship. -db

Electronic Freedom Foundation
Commentary
December 2, 2010
By Rainey Reitman and Marcia Hofmann

The First Amendment to the Constitution guarantees freedom of expression against government encroachment – but that doesn’t help if the censorship doesn’t come from the government.

The controversial whistle-blower website WikiLeaks, which has begun to publish a trove of over 250,000 classified diplomatic cables, found itself kicked off of Amazon’s servers earlier this week. WikiLeaks had apparently moved from a hosting platform in Sweden to the cloud hosting services available through Amazon in an attempt to ward off ongoing distributed denial of service attacks.

According to Amazon, WikiLeaks violated the site’s terms of service, resulting in Amazon pulling the plug on hosting services. However, news sources have also reported that Amazon cut off WikiLeaks after being questioned by members of the staff of Senate Homeland Security Committee Chairman Joe Lieberman. While it’s impossible to know whether or not Amazon’s decision was directly caused by the call from the senator’s office, we do know that Lieberman has proposed “anti-WikiLeaks legislation” and that he has a history of pushing for online censorship in the name of “security.”

Importantly, the government itself can’t take official action to silence WikiLeaks’ ongoing publications – that would be an unconstitutional prior restraint, or censorship of speech before it can be communicated to the public. No government actor can nix WikiLeaks’ right to publish content any more than the government could stop the New York Times and Washington Post from publishing the Pentagon Papers, which were also stolen secret government documents.

But a web hosting company isn’t the government. It’s a private actor and it certainly can choose what to publish and what not to publish. Indeed, Amazon has its own First Amendment right to do so. That makes it all the more unfortunate that Amazon caved to unofficial government pressure to squelch core political speech. Amazon had an opportunity to stand up for its customer’s right to free expression. Instead, Amazon ran away with its tail between its legs.

In the end, it’s not just WikiLeaks that suffers from corporate policies that suppress free speech, here on matters of intense public importance. It’s also readers, who lose out on their First Amendment right to read the information WikiLeaks publishes. And it’s also the other Internet speakers who can’t confidently sign up for Amazon’s hosting services without knowing that the company has a history of bowing to pressure to remove unpopular content.

Today Amazon sells many things, but its roots are in books, which historically have been a lightning rod for political censorship campaigns. These campaigns tried and failed to suppress Allen Ginsberg’s Howl, Nabokov’s Lolita, and even Orwell’s 1984. And it’s the book industry – including writers, publishers, booksellers and libraries – that has championed the rights of readers and helped America maintain a proud history of free speech in the written word, even when faced with physical danger.

While it’s frustrating to think of any hosting provider cutting services to a website because it considers the content too politically volatile or controversial, it’s especially disheartening to see Amazon knuckle under to pressure from a single senator. Other Internet intermediaries should now expect to receive a phone call when some other member of Congress is unhappy with speech they are hosting. After all, it worked on Amazon.

Copyright 2010 Electronic Freedom Foundation     FAC Content Use Policy

Nevada citizens challenging Nevada’s “onerous” ballot qualification requirements for initiatives lost a round in federal appeals court as the court ruled that the measure did not violate their free speech rights. -db

Courthouse News Service
December 2, 2010
By Tim Hull

(CN) – Nevada’s requirements for getting initiatives and referendums on the ballot do not violate the U.S. Constitution, the 9th Circuit ruled Wednesday.

The PEST Committee, backer of a measure called Prevent Employers from Seizing Tips, joined two other citizen groups in a September 2008 lawsuit against the state. They argued that Nevada violated their constitutional rights with onerous ballot qualification requirements for initiatives and referendums.

Specifically, the groups objected to their opponents’ ability to challenge initiatives before the measures had qualified for the ballot. Ten of the 15 initiatives filed in 2008 were challenged, though none qualified for the ballot.

They also took issue with the state’s requirements that citizen groups limit each initiative and referendum to a single issue, describe the effect the measures would have if approved, and provide an affidavit stating that all collected signatures are of registered voters.

The PEST Committee, We the People and Citizens in Charge said the rules were not only vague and overbroad, but also discouraged free speech and amounted to prior restraint.

A federal judge sided with the state, and the three-judge appellate panel in San Francisco rejected the groups’ appeal.

Judge Arthur R. Alarcon said the challenged provisions “advance Nevada’s important interests in avoiding confusion, promoting informed decision-making, and preventing ‘logrolling,’” referring to the practice of couching a potentially unpopular initiative behind a more popular façade.

The groups argued that the lower court should have used a stricter test, because the initiative rules allow powerful opponents to undermine citizens’ ability to bring an issue before their fellow voters.

The three-judge appellate panel disagreed.

“The Nevada requirements are prerequisites to the circulation of initiative and referendum petitions,” Judge Arthur R. Alarcon noted (original emphasis). “They do not implicate protections for core political speech because they do not directly affect or even involve one-on-one communications with voters.”

Alarcon added that the PEST Committee failed to show that Nevada’s initiative requirements had been “applied in a discriminatory manner.” Thus, the lower court was right to use a more lenient test in determining that the rules serve the state’s interests, the court concluded.

“The provisions represent a permissible regulation of the mechanics of the electoral process,” Alarcon wrote. “They do not, in and of themselves, have the effect of limiting the overall quantum of speech available to the electorate.”

Copyright 2010 Courthouse News Service     FAC Content Use Policy

Public and private universities are increasingly limiting players’ use of social media that one expert says constitutes in most cases illegal prior restraint and a violation of their free speech rights. -db

Citizen Media Law Center
Commentary
November 9, 2010
By Eric P. Robinson

An exercise we did Friday at University of Nevada, Reno’s High School Journalism Day raised an interesting legal question: can a public university restrict its students’ use of social networking sites such as Facebook and Twitter?

It turns out that a number of public and private universities — including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina — have followed the lead of the National Football League, which imposes limits on players’ use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season. Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school’s coaching staff.

As private organizations, legally the NFL and the University of Miami can impose whatever restrictions they want on players. But the situation is more complicated for the public universities. As government entities, their ability to limit speech — including the speech via Twitter of football players — is limited by the First Amendment.

The U.S. Supreme Court famously declared in 1969 that “[neither] students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and that high school authorities could limit speech only when they foresee “substantial disruption of or material interference with school activities.” Id. at 514. In more recent cases, the Court has found a number of circumstances in which the possibility of such disruption allowed high school administrators to restrict speech, including a profanity-laden student speech (Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)) and a banner referencing drug use (Morse v. Frederick, 551 U.S. 393 (2007)).

The court has also held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities [such as a school-sponsored newspaper] so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). The court added that students would have more freedom in publications that have served as “public forums.” Id. at 267.

All of these cases involved high school students; for college students, the courts have been more protective of First Amendment rights. Thus a college’s refusal to give a particular student group the same recognition it gave to other groups was held to violate the First Amendment, when the college’s refusal was based on a generalized fear of disruption (Healy v. James, 408 U.S. 169 (1972)) or when the college refused to recognize or provide funds to religious groups while doing so for secular groups (Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995)). While most of these cases involved on-campus speech, some lower courts, and the Supreme Court in Morse, applied these rules to off-campus speech with a possible impact on campus.

Generally, public schools can limit students’ speech only if the limitations are content-neutral, further an important government interest, and are “narrowly tailored” to further that interest. U.S. v. O’Brien, 391 U.S. 367 (1968). In most of the cases, the cited governmental interest is the school’s interest in ensuring a safe, non-disruptive educational environment.

Some courts have held that, in the context of a school athletic team, this interest includes the ability to punish insubordination amongst team members. Thus both the Sixth Circuit and the Eighth Circuit have upheld the removal of public school athletes who created and signed petitions expressing general lack of confidence in their coaches. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), reh’g and reh’g en banc denied (6th Cir. Feb. 1, 2008), cert. denied, 129 S.Ct. 159, 172 L.Ed.2d 42 (U.S. Oct. 6, 2008); Wildman ex rel. Wildman v. Marshalltown Sch. Dist., 249 F.3d 768 (8th Cir. 2001).

But the Ninth Circuit found that a petition by athletes complaining of physical and psychologically intimidation by their coach was protected by the First Amendment. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 768 (9th Cir. 2006). And in Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000), the court reversed a lower court’s dismissal of First Amendment claims brought against a coach who allegedly removed a student who refused to apologize for complaining to school authorities and the police about a hazing incident.

The rule emerging from these cases seems to be that public schools can reprimand student athletes for insubordinately expressing dissatisfaction with their coaches, while they cannot punish athletes for serious — and specific — allegations. The Indiana University suspension, resulting from Tweets critical of the coaches, would probably be upheld under this rule.

But it would be difficult for the blanket rules imposed by the other schools on use of social media by football players — a total ban on Twitter or on all social media, applying either during the season, or at all times — to withstand First Amendment scrutiny. Schools may penalize students for specific Tweets or posts that are likely to lead “substantial disruption of or material interference” with the team and its activities, but cannot impose a prior restraint on athletes in mere anticipation of such a comment.

For failing to go through the First Amendment goalposts, the public colleges’ policies limiting athletes’ use of social networking sites should be sacked.

Eric P. Robinson is Deputy Director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He was previously a Staff Attorney at the Media Law Resource Center.

Copyright 2010 Citizen Media Law Center     FAC Content Use Policy

The Reporters Committee for Freedom of the Press is fining an amicus brief to ask the U.S. Supreme Court to hear a case in which an advocate for doctors who allegedly over-prescribe painkillers claims her First Amendment rights were threatened by subpoenas for information. -db

The Reporters Committee for Freedom of the Press
November 8, 2010
By Kristen Rasmussen

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief today in support of an outspoken pain relief advocate’s petition asking the U.S. Supreme Court to hear her case.

The case would ask the high court to decide when those exercising their First Amendment rights should be protected from overreaching subpoenas, and when a prosecutor’s demand for information could be found to be in less than “good faith.” It would also require the Supreme Court to address the issue of how much secrecy is tolerated in filings before the court.

Siobhan Reynolds, president of the Pain Relief Network, a national advocacy group that opposes the government’s crackdown on physicians who allegedly over-prescribe painkillers, asked the high court to shield her from a grand jury subpoena that she said punished her for her speech and other expressive activities she undertook on behalf of Dr. Stephen Schneider and his nurse-wife, Linda. The pair, which operated a Kansas medical practice specializing in pain management, was convicted in federal court in Wichita for conspiring to profit from the allegedly illegal prescription of painkillers.

The prosecution in the Schneiders’ case originally tried to issue a prior restraint against Reynolds. After the trial judge denied that motion, the government issued a sprawling grand jury subpoena that had nearly 100 subparts and “sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and ‘Facebook communications (including messages and wall posts)’ concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the [defendants] and a documentary film called … ‘The Chilling Effect,’ ” according to the Reporters Committee’s brief. Reynolds fought the subpoena and lost at the trial and appellate levels.

“Nearly 40 years ago in a case involving journalists, the U.S. Supreme Court said that while there was no First Amendment-based right to avoid subpoenas related to published news stories, journalists and others engaged in speech might be able to avoid testifying about their reporting if they can show the subpoena was not issued in good faith,” said Reporters Committee Executive Director Lucy A. Dalglish. “Since Branzburg v. Hayes was decided, the Supreme Court has never laid out the standard they would use in making that determination, so this case would be an outstanding opportunity for them to do so.”

The Reporters Committee argued that the Supreme Court should hear this case to determine what a prosecutor must show before he or she can issue a subpoena that targets activities protected by the First Amendment. Although the high court has emphasized that the government may issue a grand jury subpoena only pursuant to a “good faith” investigation, it has not indicated the specific type of conduct that would fall short of this standard, according to the brief.

“A number of factors in this case, including an unsuccessful attempt to obtain a prior restraint against the subject before subpoenaing her and an avoidance of the ‘good faith’ determination by reliance on the prosecutor’s mere assurances that she conducted the investigation ‘in good faith,’ are sufficient to raise concerns about whether the government met its burden,” the Reporters Committee’s brief said.

Also of concern in this case is the trial and appellate courts’ sealing of the entire case file, according to the brief. Such an across-the-board sealing conflicted with the precedent of other appellate courts, as well as the Supreme Court’s “established practice of deciding issues of constitutional importance in public.”

“The total secrecy mandated by the [appellate court] in the present case is at odds with this Court’s long history, and reflects an apparent misinterpretation of grand jury secrecy that must be addressed,” according to the brief.

The Supreme Court could make a decision about whether to hear the case by next week.

Copyright 2010 The Reporters Committee for Freedom of the Press     FAC Content Use Policy

A former intelligence officer says that all information censored by the Pentagon in his Afghan war memoir is available in unclassified and open-source documents. The man says the government violated his First Amendment rights. -db

Los Angeles Times
October 9, 2010
By Brian Bennett

REPORTING FROM WASHINGTON — The author of an Afghanistan war memoir bought and shredded under the supervision of the Pentagon says his free speech rights have been violated.

Former military intelligence officer Anthony Shaffer said that all of the information the military claimed was classified — and therefore barred from being published in his book — also is available in unclassified and open-source documents.

Pentagon officials oversaw the destruction of the first edition of the book on Sept. 20 after telling Shaffer and his publisher, St. Martin’s Press, that the version contained more than 250 examples of classified information.

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A revised edition of “Operation Dark Heart: Spycraft and Special Ops on the Frontlines of Afghanistan — and the Path to Victory”

was published Sept. 27 with large sections blacked out by Department of Defense censors. Shaffer contends the redactions were unnecessary and only were ordered to silence him.

“My 1st Amendment rights were sat on,” Shaffer said.

The government concluded days before the first edition was to go on bookstore shelves that the information was sensitive and stepped in to buy the entire first run from the publisher at cost.

“We have an obligation to prevent the unauthorized disclosure of classified information,” said Air Force Lt. Col. Rene White, a Pentagon spokeswoman.

News of the pulping of more than 8,000 of the first edition copies briefly shot sales of the book to No. 1 on Amazon.com. The book will be ranked No. 7 on the Oct. 17 New York Times hardcover nonfiction list, according to the publisher. Now in its fourth printing, “Operation Dark Heart” has more than 50,000 copies in circulation.

“Not only has the government turned the book into a bestseller, it has focused attention specifically on the information it wanted to conceal,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

Among other material, the Pentagon wanted details blacked out about a U.S. intelligence program that penetrated a North Korean black market arms network in the 1990s, the discovery of an Iranian intelligence plot against U.S. soldiers in Afghanistan and a claim that a retired Afghan general became a “ticket into the heart of Al Qaeda” for the United States.

Defense Department officials also asked Shaffer to remove descriptions of his involvement in a data-mining operation launched before 9/11 that Shaffer says turned up the name of Mohamed Atta, the ringleader of the Sept. 11 attacks. But Shaffer said his claim about Atta is in the congressional record; he refused to remove it.

The destruction of the books has brought attention to how the U.S. government protects its most closely guarded secrets and what obligation intelligence agents have to protect the information after they have left their posts.

Intelligence agencies such as the CIA and the Defense Intelligence Agency — where Shaffer was a senior officer from 1995 to 2004 — have procedures for working with authors to review manuscripts before they are published to ensure the nation’s secrets aren’t revealed.

Shaffer, a lieutenant colonel in the Army Reserves, said he spent months working with his superiors in the reserves to show that everything in his book could be found in unclassified sources.

But top echelons of the Department of Defense and its intelligence arm, the DIA, were not part of the initial review of the book. “We are conducting an inquiry to determine how and why that happened,” White said.

Shaffer wants the Pentagon to allow him to publish a version of the book with the text in the blacked-out sections restored. He says he is mulling his legal options because he believes the Pentagon stepped in to silence him.

“I’m sure there are lots of authors who would dearly love to be punished in the same way,” said security expert Aftergood.

Copyright 2010 Los Angeles Times     FAC  Content Use Policy

A superior court judge ruled that the Los Angeles Times could publish photos of a murder defendant taken with the court’s permission. The judge said the attempt to bar the photos was unconstitutional prior restraint. -db

Metropolitan News-Enterprise
August 20, 2010
By Kenneth Ofgang

A Los Angeles Superior Court judge’s order barring publication of photos that were taken of a defendant in the courtroom with the jurist’s permission is an unconstitutional prior restraint, the Court of Appeal for this district ruled yesterday.

Div. Five, in an opinion by assigned Los Angeles Superior Court Judge Sanjay T. Kumar, ordered that Judge Hilleri G. Merritt’s order barring publication of the photos of Alberd Tersargyan be vacated. Merritt revoked the order late yesterday in a minute order stating that both the order prohibiting the photography, and the order of the following day denying the motion of the Los Angeles Times to vacate the ban, were vacated “nunc pro tunc.”

Court counsel Frederick R. Bennett declined to comment as to why the nunc pro tunc language was included.

The appellate court rejected the public defender’s assertions that the photographer took the pictures unlawfully because a prior order—made by another judicial officer, at an earlier hearing, in response to a request by a different news organization—barred taking pictures of the defendant, due to identification issues.

Kumar pointed out in a footnote that Merritt stated in open court that she signed an order that permitted news cameras, before the prosecutor commented on the prior order.

Balancing Test

By engaging in a balancing test and concluding that defendant’s right to a fair trial overrode the media’s First Amendment right, Kumar said, the trial judge failed to follow the many U.S. Supreme Court, California Supreme Court, and California Court of Appeal cases holding that a strong presumption lies against prior restraints.

As for the defense’s asserted interest in protecting the defendant from prejudice resulting from being photographed in jail garb, Kumar wrote:

“Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint.

For example, the record is devoid of evidence that eyewitnesses expressed uncertainty over their identification, that they have not already seen photographs of the defendant in the media, or that their ability to accurately identify the perpetrator of the offenses would be threatened by the publication of the photographs. Indeed, given the fact that the media has previously published photographs of the defendant in connection with the charges in this case, it is not probable that defendant’s right to a fair trial would be threatened by the publication of additional photographs.”

Deputy Public Defender Albert Menaster, who argued the case for the defendant, complained that the compressed schedule set by the Court of Appeal—the alternative writ of mandate was issued Aug. 9, argument was held Aug. 10, the public defender was given until Aug. 16 to file a brief, and the Times was given until this past Wednesday to reply—did not allow the development of a full record.

Menaster lamented that “the court selected a newspaper’s right to publish photos over the defendant’s right to a fair trial,” but said he did not believe that any further remedies would be available, particularly in light of Merritt’s decision to vacate her order immediately, rather than wait for the appellate court’s order to become final, which takes three days under court rules.

Times Lawyers’ Statement

The firm of Davis Wright Tremaine LLP, which represented the Times, issued the following statement:
“We’re heartened that the Court of Appeal lifted the unconstitutional prior restraint against The Los Angeles Times. The Court reaffirmed the sound rule that restraining the press from publishing photographs that a photographer has taken in open court is a ‘classic prior restraint’ that violates the First Amendment. The interest asserted by the trial court and Mr. Tersargyan’s counsel—witness identification—cannot possibly justify censoring the press when photographs of the criminal defendant in connection with the charges already have been published on the Internet and on television.”

The unpublished opinion in Los Angeles Times Communications LLC v. Superior Court (People) appears in today’s Slip Opinion Supplement at 10 S.O.S. 4938.

Copyright 2010 Metropolitan News Company  FAC Content Use Policy

In a brief filed in court this week, the Los Angeles Times argued that their photographer acted with the court’s permission in taking photos of a defendant charged with murder, and that any attempts to prevent publication of the photos constituted prior restraint. -db

Metropolitan News-Enterprise
August 19, 2010
By a MetNews Staff Writer

A Los Angeles Times photographer who took dozens of photographs of a defendant in a downtown courtroom two weeks ago acted properly, in accordance with the court’s permission, the newspaper argued yesterday in a brief to the Court of Appeal.

Attorneys for the newspaper, in a reply to a brief filed Monday by the Public Defender’s Office, reiterated previous arguments that nothing in the conduct of the photographer, Al Seib, warranted Judge Hilleri Merritt’s subsequent order barring publication of the photographs. The Times has characterized the judge’s order as imposing an invalid prior restraint in violation of the First Amendment and the California Constitution.

The attorneys representing Alberd Tersargyan had argued in their brief that Seib violated an earlier order—issued by a different judicial officer in response to a request by a different news organization, related to a different proceeding in the case—that barred photographing the defendant, due to identification issues.

They further argued that the Judicial Council form order signed by Merritt did not authorize photographing Tersargyan because a box on the form indicating whether a request has been granted or denied was not checked, and defense attorneys were not notified that it had been entered.

The newspaper’s attorneys yesterday scoffed at those arguments, asserting that the prior order by Commissioner Alan Rubin was irrelevant to the Aug. 4 hearing before Merritt, that any imperfection in the form was irrelevant because Merritt repeatedly acknowledged in open court that she had granted permission for Seib to take the pictures, and that defense lawyers had notice because they were present and saw the photographer take the pictures.

The newspaper’s lawyers—Kelli L. Sager, Alonzo Wickers IV, and Jeff Glasser of Davis Wright Tremaine LLP and in-house counsel Karlene Goller—distinguished Marin Independent Journal v. Municipal Court (1993) 12 Cal.App.4th 1712, cited by the defense. The Court of Appeal in that case upheld the seizure of film from a photographer who did not have permission to photograph the proceedings.

The photographer claimed to have understood permission to be granted because “when she entered the courtroom, she was given a wink and a nod by the courtroom bailiff.”

The case is an “outlier,” the Times lawyers said, because no other case has found allegations of “unlawful” media behavior to warrant prior restraint. Nor are the facts analogous, they asserted, because Seib’s actions were entirely proper.

Merritt’s statements, both at the Aug. 4 hearing and at a hearing the next day on the Times’ motion to vacate the ban on publication, make clear that “there is no ambiguity and no dispute that she intended to grant, and did grant, permission for The Times to photograph the proceeding.”

The attorneys said it was “grasping and pointless” to argue about the contents of the form because it was undisputed not only that the judge said Seib could take the pictures, but that he confirmed this with the baliff and clerk, who checked back with the judge and obtained confirmation that she had approved the photography, “…Mr. Seib’s behavior exhibits a diligence that contrasts sharply with the inaction of Mr. Tersargyan’s lawyer, who said nothing to Respondent about a prior order despite knowing that Mr. Seib was present to photograph the proceedings, and did not object when Mr. Seib took 45 photographs during the first 11 minutes of the hearing,” the attorneys insisted.

Copyright 2010 Metropolitan News Company

The California Court of Appeal ordered a Superior Court judge to reverse her ban barring the Los Angeles Times from publishing the courtroom photos of a murder suspect. -db

Los Angeles Times
August 9, 2010
By Andrew Blankstein

The California Court of Appeal ordered a Los Angeles County Superior Court judge Monday to abandon her order barring the Los Angeles Times from publishing images of a man accused of a quadruple homicide or show a compelling reason by Tuesday why the images should not be printed.

Judge Hilleri G. Merritt allowed — then barred — L.A. Times photographer Al Seib from publishing several dozen images taken of defendant Alberd Tersargyan.

Jeff Glasser, an attorney representing The Times, argued in a hearing last week that neither the U.S. Supreme Court nor the California Court of Appeal has ever upheld a prior restraint even when faced with imperatives such as national security, or a competing interest such as the right to a fair trial. He also noted that images of Tersargyan had already been shown on television news broadcasts and on the Internet.

Despite decades of 1st Amendment precedent barring prior restraints, Merritt said she was concerned about issues involving the ability of witnesses to identify a suspect in the case, interfering with the defendant’s right to a fair trial.

Although images of Tersargyan had been made public, pictures showing him wearing a jail jumpsuit in the cage-like lockup area of her courtroom could be more prejudicial to potential witnesses, Merritt said.

Tersargyan is awaiting a trial in the killing of a woman in Los Angeles’ Little Armenia neighborhood in March. He was charged last week with the 2008 slaying of the woman’s husband and 8-year-old daughter, as well as a fatal sniper-style attack this year on a prostitute on Sunset Boulevard.

Before Tersargyan’s arraignment, Merritt had approved a written request by Times photographer Al Seib to take pictures of the suspect. Seib notified the court bailiff, the clerk and a spokeswoman for the Los Angeles County district attorney’s office.

During the hearing and after Seib had already begun photographing Tersargyan, Los Angeles County Deputy Dist. Atty. Eric Harmon reminded the judge about the prior order.

Harmon told the judge it was possible the pictures could affect witnesses’ testimony but also said he did not believe publishing the pictures would prejudice witnesses.

Tersargyan’s defense counsel argued that the pictures could prejudice witnesses although they did not provide concrete examples of the potential harm.

Allan Parachini, a spokesman for the L.A. County Superior Court, said no immediate decision had been made in response to the appeals court’s order

Copyright 2010 Los Angeles Times

A judge approved a written request to photograph a murder suspect but when reminded in court about a prior order banning photography ordered the photographer not to publish his photos. -db

Los Angeles Times
August 5, 2010
By Andrew Blankstein

A judge issued an unusual order Wednesday in which she told a newspaper photographer not to publish pictures after granting him permission to take them.

Legal experts said prohibiting publication of an image that a photographer had permission to take could violate the 1st Amendment.

The case involved Alberd Tersargyan, 60, who was in court for a scheduled arraignment on multiple murder counts in connection with the slayings of four people — including three members of the same family — from 2008 to 2010.

Judge Hilleri G. Merritt approved a written request by Los Angeles Times photographer Al Seib before the arraignment to take pictures of Tersargyan.

But during the hearing — after Seib had already begun photographing Tersargyan — Los Angeles County Deputy Dist. Atty. Eric Harmon reminded the judge about a prior order banning photography and video.

Harmon said it was possible the pictures could affect potential eyewitness testimony but didn’t object to the photographs.

Deputy Public Defender Patricia Mulligan told Merritt she objected to having her client photographed.

Merritt chastised both sides for not raising the issue earlier but then told Seib to immediately stop taking pictures and ordered him not to publish the images he had already taken.

Merritt would not comment on whether the ruling amounted to a prior restraint of the press in violation of the 1st Amendment.

“The record clearly reflects concerns expressed by Judge Merritt in the balance between a fair trial and free press issues,” said Los Angeles County Superior Court spokesman Allan Parachini.

But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said there was no legal reason why the judge should not have allowed the pictures to be published absent a demonstration of “direct, immediate, physical harm that is not speculative.”

“The judge has the ability at any time to order the photographer out of the courtroom,” Dalglish said. “What the judge does not have the ability to do, based on U.S. Supreme Court precedent, is bar the photographer from publishing the information he lawfully collected.”

“The U.S. Supreme Court has never, ever, not once, upheld a prior restraint on publication,” Dalglish noted.

Tersargyan, who is awaiting trial in the killing of a woman in L.A.’s Little Armenia neighborhood in March, was charged Tuesday with the 2008 slaying of the woman’s husband and 8-year-old daughter, as well as the fatal, sniper-styled attack on a prostitute on Sunset Boulevard this year.

Copyright 2010 Los Angeles Times

A judge took the unusual and possibly unconstitutional step of barring a Los Angeles Times photographer from publishing images she allowed him to snap at a hearing for a man charged with murdering a Hollywood family.

News

August 5, 2010

By The Associated Press

LOS ANGELES— Lawyers for the Times planned to ask the judge to reconsider the order, which a press group argued amounted to prior restraint that violates the First Amendment right to a free press.Superior Court Judge Hilleri G. Merritt had granted a written request from photographer Al Seib before Wednesday’s hearing. But after a defense lawyer objected during the hearing, she ordered him to stop taking pictures and not to use any he already had snapped.

There was no legal reason for Merritt to ban publication, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The order came during a hearing for Alberd Tersargyan, 60, who pleaded not guilty earlier this year to killing a Hollywood woman. Authorities say he was infatuated with her, but she rebuffed his advances.

He was scheduled for arraignment Wednesday on additional charges of killing the woman’s husband and 8-year-old daughter in 2008 along with a prostitute. However, that arraignment was postponed to Aug. 13.

The Times photographer was snapping photos when Deputy Public Defender Patricia Mulligan reminded Merritt that another judge previously barred photography and video.

Los Angeles County Deputy District Attorney Eric Harmon didn’t object to the photographs.

Merritt criticized the lawyers for failing to raise the issue earlier.

“The record clearly reflects concerns expressed by Judge Merritt in the balance between a fair trial and free press issues,” Superior Court spokesman Allan Parachini said.

Superior Court Judge took the rare step of ordering The National Law Journal not to publish information ahead of publication

The Washington Post Blog/ Commentary

July 26, 2010

By Mike Debonis

What should have been a boring trade-paper article about a pomegranate-juice company’s legal-fee dispute got a whole lot, er, juicier last week.

Superior Court Judge Judith Bartnoff took the rare step of ordering a newspaper not to publish information ahead of publication — a so-called “prior restraint.”

The story starts with National Law Journal reporter Jeff Jeffreyperusing court records and finding a lawsuit involving one of the city’s largest and best-known law firms — Hogan Lovells, formerly Hogan & Hartson. The firm in February sued POM Wonderful, makers of pomegranate juice, over $66,265 $666,265 in unpaid legal bills. Included in the court file were documents indicating why POM had run up those bills: The company had an “investigation or inquiry” pending with a regulatory agency.

But POM did not and does not want that fact publicized. The company’s lawyers moved to seal any documents referencing the investigation, which was granted. But the seal order, thanks to a clerical error, was not reflected to the court file that Jeffrey inspected, says NLJ editorDavid L. Brown. Jeffrey made copies of the documents in question and proceeded to report his story.

Then, last Thursday, NLJ learned that POM was asking Bartnoff to block publication of the sealed-but-not-sealed documents. So “we scrambled,” Brown says.

Bartnoff held a hearing Friday afternoon, just before NLJ’s deadline. The newspaper’s lawyer, Bruce D. Brown of Baker Hostetler (and a former reporter for NLJ precursor Legal Times), argued the case on First Amendment grounds. Though she did allow the paper to mention the existence of an investigation, Bartnoff wasn’t buying the broader constitutional concerns and ordered NLJ not to publish the agency’s name. “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” she said, according to NLJ’s account.

The result is the following editor’s note, appended to the top of Jeffrey’s story:

What appears here is not the full story. Minutes before our deadline Friday, [Bartnoff] signed a temporary restraining order against The National Law Journal enjoining it from publishing certain details that we legally obtained from court documents. Specifically, we are not allowed to name a government agency conducting a regulatory inquiry into one of the subjects of the article, POM Wonderful. We fought this order vigorously in court; we thought and continue to think that it is a violation of the First Amendment, and we are working on an appeal. Bartnoff, as she considered the order, said, ‘If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.’ She said the court’s interest in maintaining the ‘integrity’ of its docket trumped the First Amendment concern. We strongly believe Bartnoff’s action harms the integrity of the court by placing process concerns over fundamental constitutional rights. Sadly, however, because of Bartnoff’s order, we were forced to scrub this article of any reference to the agency. We apologize to our readers for being unable to provide the fullest report possible.

Brown says Bartnoff’s ruling is a “constitutional train wreck.”

“Our problem,” he said today, “is that we don’t believe the judge should be in the position of telling the press or public when they’ve gone in good faith into a courthouse and looked at a public filing to go back and say you shouldn’t have seen that.”

Brown says they plan to appeal the decision.

The irony for POM is that the original NLJ article wouldn’t have been particularly concerned with the underlying conflict, Brown says, but rather would have hewed to the fee dispute. But after the legal wranglings, NLJ’s journalistic curiosities have been piqued.

“We’re certainly interested in what’s going on now,” Brown says.

Although students in a Washington school district recently won a censorship ruling in federal court, they are still fighting their district’s media policy that permits the administration powers of prior review and prior restraint. -db

Student Press Law Center
May 20, 2010
By Josh Moore

PUYALLUP, Wash. — Student editors at three Puyallup School District high schools are pointing to a recent case of censorship as proof they need a publications policy without prior review.

The latest issue of JagWire at Emerald Ridge High School includes an empty space that simply declares, “This story has been censored,” according to a press release from Fight for the Right to Write, a group formed by student editors at three district high schools whose goal is to work with the school board to create a new student media policy without including prior review or prior restraint.

The absent story covered the school district getting a favorable jury verdict in a lawsuit in which four students had claimed they had not given consent to JagWire to print their names and “private information” in a February 2008 article about oral sex. Last month a Pierce County jury ruled that the newspaper had not violated the students’ privacy.

According to the group’s press release, JagWire reporter Allie Rickard decided to withhold her story about the lawsuit from print after it was prior reviewed by Mike Patterson, an attorney representing the district in the lawsuit. Patterson, an attorney with a Seattle law firm, insisted that Jagwire editors not publish the plaintiffs’ names, change a quote from another attorney with Patterson’s law firm, and rewrite an explanation of the meaning of a limited forum, the press release said.

Patterson was traveling outside of the country and could not be reached for comment by press time.

The student group e-mailed Superintendent Tony Apostle and school board members about their proposal to work together on a new policy. In an e-mail response, obtained from the school district’s Executive Director of Communications Karen Hansen, Apostle told the students that the board of directors did not have plans to change its publications policy, but he would be willing to work with the group on one condition: students and their parents agree to accept financial responsibility for the student publications.

Rickard, an editor at the JagWire and a member of the student group, said the students are willing to make that agreement if they can return to an open forum status, which would require a policy without prior review and prior restraint.

Mike Hiestand, a Student Press Law Center attorney who has been working with the students, said this latest incident focuses attention on the problem with the current policy and shows its need to be resolved.

“I think [the school district] understood pretty clearly what the students’ objections were and why they would be upset about not being able to report on very public information from a public trial,” he said.

Amanda Wyma, also an editor at JagWire and member of the Fight for the Right to Write group, said a policy without prior review would give reporters “the chance to cover the things that really matter.”

She said since the new policy of prior review was put in place, she has seen her fellow reporters shy away from covering more difficult topics because they think they might be censored. After she graduates in June, reporters at Emerald Ridge won’t know what it is like to cover those issues, Wyma said.

“When we leave, me and one of my co-editors are the last two who will have seen an open-forum structure in our newspaper,” she said.

The Fight for the Right to Write group organized a public meeting May 3 to educate the community about their goal of creating an open forum status for their publications. They have also used their website and a Facebook page to rally community support and have asked students and community members to sign a petition supporting their idea.

Rickard said they hope to meet with school officials before the school year ends on June 16.

“We want a policy in place by the time school starts next year so all of those starting in student journalism and continuing in journalism have a solid policy to work from,” she said.

Apostle was unable to comment for this article.

Copyright 2010 Student Press Law Center

The adviser of a high school newspaper in Orange County, California says a revised publication policy at the charter school, the Orange County High School of the Arts, is in conflict with a proposed state law inspired by alleged censorship problems at the school.-DB

The CIA did not violate Valerie Plame’s 1st Amendment rights the U.S. Court of Appeals in New York City (2nd Cir.) has ruled. Including dates of service in her memoir including them in her memoir would still violate the secrecy agreement she signed when she joined the CIA.

Reporter’s Committee for Freedom of the Press

New York · November 18, 2009

CIA legally censored ex-operative’s memoir, appeals court rules

Kirk Davis

The CIA did not violate the First Amendment rights of ex-undercover agent Valerie Plame Wilson when it refused to allow her to publish information about her work with the agency in her 2007 memoir, the U.S. Court of Appeals in New York City (2nd Cir.) has ruled.

The appellate court found that even though the dates of Wilson’s tenure with the agency are a matter of public record because they have appeared in letters from members of Congress, including them in her memoir would still violate the secrecy agreement she signed when she joined the CIA.

Although the CIA “may have been negligent in communicating personnel information to Ms. Wilson without proper classification, the information only became public when Ms. Wilson — knowing that the CIA was insisting on maintaining the secrecy of her service dates — nevertheless authorized a member of Congress to publish the CIA communication in the Congressional record,” wrote Judge Reena Raggi for the court.

Wilson’s memoir, “Fair Game: My Life as a Spy, My Betrayal by the White House,” detailed being outed as an uncover operative by syndicated columnist Robert Novak. Disclosure of a CIA operative’s identity is a federal offense, and senior White House staffer I. Lewis “Scooter” Libby was convicted of obstruction of justice and perjury related to his discussions of Wilson’s status.

As previously reported, the book’s publisher managed to include the information at issue in the case by hiring a freelance writer to pull the same dates from public sources while Wilson’s attorneys lodged their legal appeal.

Copyright 2009 Reporter’s Committee for Freedom of the Press

In a letter to the Southwestern College president, the American Civil Liberties Union of San Diego urged him to repudiate his actions restricting a peaceful demonstration on campus to protest budget cuts. -DB

A group of parents in a Las Vegas suburb are asking a county court to block “Rent” and “The Laramie Project” from opening November 16. They claim the plays portray gay characters and are not suitable for high school students. -DB

New rules governing journalists embedded in a military unit in Afghanistan prohibit photos or videos of U.S. troops killed in action. This revises early guidelines allowing images of death so long as the Department of Defense had notified  the troops’ family. -DB

The Reporters Committee for Freedom of the Press
October 9, 2009
By Amanda Becker

Administrators at the Orange County High School of the Arts censored the school newspaper for reporting that the cafeteria service provider was a Christian company, but legal experts say under state law that would not be sufficient reason for suspending publication. -DB

The Reporters Committee for Freedom of the Press filed a brief before the U.S. Supreme Court seeking to strike a federal law that makes it a crime to create or sell depictions of animal cruelty. –DB

Reporters Committee for Freedom of the Press
Press Release
July 24, 2009
By Rory Eastburg

The Reporters Committee for Freedom of the Press today filed a brief urging the U.S. Supreme Court to strike down a federal statute that criminalizes the possession, creation or sale of a wide variety of depictions involving animals. The Reporters Committee filed the brief on behalf of itself and 13 media organizations.

The case, U.S. v. Stevens, involves a statute which makes it a felony to create, sell or possess “a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” Congress passed the law in order to prohibit  “crush videos,” a type of fetish pornography involving the death of animals.

But the reach of the law is far broader, and the government asked the Supreme Court to rule that depictions of animal cruelty are without value and thus entirely unprotected by the First Amendment. It also claimed that Congress may categorically ban any speech it wishes, as long as the government’s interest suppression outweighs the value of the speech.

Though the press groups agreed that the “goal of preventing crush videos and other animal cruelty is certainly a worthy one,” they argued that it “is this very interest in protecting animals from abuse that makes speech about their treatment so valuable.”

Media outlets “often expose the abuse of animals, participate in the national debate over the proper treatment of them, and cover commonplace activities involving animals such as hunting and fishing,” the brief said. But the law “compromises the news media’s ability to perform any of these functions without fear of prosecution.”