Newsgathering

DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted.

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The 'Mugshot Racket' II: A Commercial Purpose Exemption?

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct.

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Johns-Byrne Company v. TechnoBuffalo

Date: 

09/01/2011

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

TechnoBuffalo, LLC; Media Temple, Inc.; Google, Inc.; AT&T, Inc.

Type of Party: 

Organization

Type of Party: 

Organization
Large Organization

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois (Law Division)

Case Number: 

2011-L-009161

Legal Counsel: 

Dewey & LeBoeuf LLP (Attorney Elizabeth M. Bradshaw)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On September 1, 2011, Johns-Byrne Company filed a Rule 224 action in Illinois state court. Rule 224 allows a party to conduct limited discovery, before filing a lawsuit, in order to determine the identity of the party that allegedly caused the plaintiff's damages.

The action was based on an August 17, 2011 post on the tech-news site TechnoBuffalo. The post contained photographs of and information about an upcoming Motorola smartphone. Johns-Byrne's petition for discovery stated that the company had been involved in printing promotional material for Motorola, and that the images recieved and posted by TechnoBuffalo were of this promotional material. Johns-Byrne alleged that the photos disclosed a trade secret, and stated that the party that took the photos and sent them to TechnoBuffalo "may have been" a Johns-Byrne employee.

Johns-Byrne's petition sought discovery from TechnoBuffalo and its web-host Media Temple, as well as from Google (TechnoBuffalo's email service) and AT&T (because Johns-Byrne had reason to believe that the photos were taken with an iPhone and possibly sent over AT&T's network). Johns-Byrne hoped to discover the identity of the party that took and sent the pictures.

Court documents stated that Media Temple, Google, and AT&T all "agreed to comply" with the discovery request. On September 26, though, TechnoBuffalo opposed Johns-Byrne's petition. TechnoBuffalo asserted reporter's privilege, both under California law (where TechnoBuffalo is based) and under Illinois law (where Johns-Byrne is based, and where the discovery action was filed). TechnoBuffalo argued that under either state's law, it was protected from attempts to reveal the identity of a confidential source.

On October 17, Johns-Byrne responded to TechnoBuffalo's opposition. Johns-Byrne argued that Illinois, not California, law should apply, and that TechnoBuffalo's content did not qualify as "news." Instead, Johns-Byrne argued, TechnoBuffalo's coverage of technology "was nothing more than commercial hype intended to excite the blog's followers." Thus, TechnoBuffalo failed to "rise to the level of legitimate journalism."

On November 7, TechnoBuffalo filed a reply brief. TechnoBuffalo relied on O'Grady v. Superior Court, a 2006 California state court case in which two tech news websites successfully invoked California's reporter's privilege, and Mortgage Specialists v. Implode-Explode Heavy Industries, a 2010 New Hampshire case which ruled that a website could claim the state's newsgathering privilege. TechnoBuffalo also argued that Too Much Media v. Hale, among other cases cited by Johns-Byrne, was inapposite. In Hale, a New Jersey court ruled that a message-board poster could not invoke the state's shield law. TechnoBuffalo pointed to the Hale court's distinction between a "news-oriented website" and someone who "randomly comments" on public forums. 

On January 13, 2012, the Cook County Judge granted Johns-Byrne's petition for discovery. The judge used Illinois law to rule that TechnoBuffalo's reliance on the reporter's privilege was "misplaced." The judge stated that TechnoBuffalo's site "did not encourage a well-informed citizenry," and that the "anonymous 'tipster' is hardly an example of a 'source' of investigative journalism" deserving of protection. Thus, Johns-Byrne could begin discovery.

UPDATE:

On July 13, 2012, the Cook County Judge granted TechnoBuffalo's Motion to Reconsider, thereby denying John Byrne's Rule 224 petition for discovery. According to the court, "TechnoBuffalo is a news medium, its employees are reporters ... and TechnoBuffalo is protected by the Illinois reporter's privilege."

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CMLP Notes: 

1/30: JS creating

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Strong FOI Laws Expose More Than Just A Governor’s Diet

Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov.

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Milwaukee Police Dept. v. Kristyna Wentz-Graff

Date: 

11/02/2011

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Kristyna Wentz-Graff

Type of Party: 

Government

Type of Party: 

Individual

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Milwaukee Wisconsin Journal Sentinel photographer Kristyna Wentz-Graff was arrested by Milwaukee police while Wentz-Graff was photographing a protest by University of Wisconsin-Milwaukee students at the school's campus on Nov. 2, 2011. Wentz-Graff, a three-time Wisconsin "Photographer of the Year," was later released without charge.  She said she was never told why she was arrested.

Milwaukee Police Chief Edward Flynn later defended the arrest, reports the Journal Sentinel.  Flynn said that the officers arrested Wentz-Graff because they thought she was a protester, and that Wentz-Graff's status as a journalist was "not obvious to the officers."  The Journal Sentinel ran a photo of Wentz-Graff's arrest that showed her press badge clearly visible.  The paper also quoted Milwaukee Mayor Tom Barrett, who had seen video of Wentz-Graff's arrest, saying that "It appeared very clear to me that she was a photojournalist," and that he "very much support[s] her First Amendment right to be there."

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Antioch University v. The Antioch Papers

Threat Type: 

Correspondence

Date: 

02/29/2008

Party Receiving Legal Threat: 

Brian Springer, Tim Noble, TheAntiochPapers.org, theantiochpapers@gmail.com

Type of Party: 

School

Type of Party: 

Organization

Legal Counsel: 

Robert J. Fitrakis

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

The Antioch Papers, an investigative journalism and media arts website, maintains and "open archive for primary source materials that document the institutional life of Antioch College and by extension Antioch University."  Source materials have been gathered through publicly accessible archives and through submissions by institutional whistle blowers.

On February 29, 2008, Antioch University sent a letter to The Antioch Papers demanding the removal of documents that the University alleged included attorney/client privileged communications and proprietary business and financial planning documents.

The Antioch Papers responded in a letter dated March 12, 2008, asserting a First Amendment right to publish the materials at issue.

No further actions on this dispute have been reported; the operations of Antioch College were suspended in July 2008, apparently rendering this demand moot.

 

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Health Reporters Unite! How One Doctor's Complaint Turned a Public Database Private

Kansas City Star reporter Alan Bavley had a hunch. After years of investigating the health care industry, Bavley began to suspect that state medical boards did not adequately discipline doctors who committed malpractice. Physicians battling substance abuse, for example, were punished far more harshly.

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Milwaukee Police Dept. v. Clint Fillinger

Threat Type: 

Criminal Charge

Date: 

09/21/2011

Party Receiving Legal Threat: 

Clint Fillinger

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Broadcast

Status: 

Pending

Description: 

On September 21, 2011, Clint Fillinger, a photojournalist, was arrested for resisting and obstructing an officer after police confronted Fillinger while he was attempting to film at the scene of a house firm in Milwaukee, Wisconsin.  Fillinger, a 68-year-old journalist with 45 years of experience, was filming from outside the area that officers had cordoned off with police tape, where several members of the public had also gathered.

Fillinger's raw video of the incident was published by his employer, Fox6 Now. The raw video shows two officers approaching Fillinger and demanding that he step back.  The video appears to show Fillinger complying as he stated that he had a right to be there as a member of the public.  The officers tell him that he must move for his own safety.  Fillinger ultimately falls to the ground, dropping his camera, though the video does not show the cause. The Reporters Committee for Freedom of the Press reports that Fillinger was the only person asked to move away from the scene.

Milwaukee Police Chief Ed Flynn told Fox6 the next day that he felt Fillinger was to blame, saying, "If the cameraman had simply complied with the instructions to back off from a working fire, none of this hullabaloo would be taking place."  Fox6 posted the raw video of Flynn's statement on its website.

Several news associations – including the National Press Photographers Association’s Advocacy Committee, the Radio Television Digital News Association, and the Wisconsin News Photographers Association – have sent letters to Flynn demanding the charges be dropped and the officers involved be investigated and face disciplinary charges if necessary.

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Tell Us, Judge Posner, Who Watches the Watchmen?

In what is now their widely publicized exchange, U

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Righthaven's Copyright Trolling is a Bankrupt Idea

It’s been several months since we last checked up on Righthaven.  How is everybody’s favorite copyright troll doing?

Well, they might be going bankrupt:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday [September 9, 2011] it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

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A Victory for Recording in Public!

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news -- I urge you to read Justin's posts as well. 

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Newsgathering Law: A Guide for Reporting

I'm excited to announce the latest installment in a series of legal modules we are publishing in conjunction with Poynter's News University.

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Second Circuit Rules: "Hot News" Claims Preempted

In a narrow, fact-bound decision, the Second Circuit today held that a group of investment firms' claims against a news-aggregation company were preempted by federal copyright law. (PDF of the opinion here.) The court stopped well short of reaching any larger 1st Amendment issues, however.

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Announcing OpenCourt

It is a fundamental principle of the United States legal system that courts should be open to the public.  This principle is widely regarded as more aspirational than factual, because of numerous practical barriers to courtroom access -- not the least of which is that most of us do not have the time or ability to travel to the court to witness proceedings in person.  While the news media report on judicial proceedings,

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