Shield Laws

Police Seize Gizmodo Reporter's Computers Over iPhone 4 Leak

Gizmodo announced this afternoon that California police seized computers and servers from the home of its reporter/

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Kansas Shield Law Awaits Governor’s Signature: Ripe Fruit From a Bewildering Tree

In an overwhelming vote of support, the Kansas Legislature Tuesday passed a media shield bill that, if signed by Governor Mark Parkinson (D), will protect reporters in most circumstances from having to disclose the identity of anonymous sources and other information obtained in the newsgathering process.

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I Feel Like I’m Taking Crazy Pills: EU’s Latest ACTA Proposal Outlaws the Internet

Sometimes a story is so insane that you can’t help but wonder if someone has slipped you some crazy pills.  See, for example, the Google prosecution in Italy.

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Why Are Bloggers Still Sitting at the Kids' Table? The Popularity of Online News and the Federal Shield Law

Well, it turns out this whole Internet thing is getting pretty popular. According to the Pew Internet and American Life Project, more Americans now get their news from the Internet than from old-fashioned newspapers.

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TSA v Chris Elliott and Steve Frischling

Date: 

12/29/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Chris Elliott; Steve Frischling

Type of Party: 

Government

Type of Party: 

Individual

Legal Counsel: 

Anthony N. Elia - The Law Office of Anthony N. Elia (for Elliott); Electronic Frontier Foundation (for Elliott); Mark Holsher, Francis DiScala, Jr.

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On December 29, 2009, agents of the Transportation Security Administration (TSA) interrogated and served subpoenas on two travel bloggers who had posted a TSA security directive put in place after the failed Christmas day "underwear bomber" attempt. The two bloggers, Steven Frischling and Chris Elliott, posted the text of the directive on December 27 after confusion arose over air travel procedures and restrictions in the wake of the failed terrorist attack.

Frischling, a freelance travel writer and photographer who publishes a blog for KLM Airlines and Flying With Fish, complied with the subpoena, in part because he did not know the identity of the source, there is no federal shield law to protect him, and he felt that he could lessen the ordeal by cooperating. According to Wired, agents went through his phone contacts and determined it was necessary to take an image of his hard drive. In the process of trying to copy files, agents damaged Frischling’s laptop. With Frischling’s permission, they seized the computer, departed, and later returned it.

Elliott, who publishes the blog Elliott and writes a column for the Washington Post and MSNBC, refused to divulge his source and retained counsel. The TSA then backed off and ultimately withdrew the subpoena on December 31.

That same day, the TSA notified Frischling that it was withdrawing the subpoena.  It is not clear whether the agency will compensate Frischling for damaging his laptop. 

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Is There a Mini Constitution in Sky Mall? How the TSA Forgets Citizens' Rights

In recent years, the American public seems to have fallen under the impression that providers and regulators of airline travel have extra-legal powers. These fictional powers typically mean that passengers can be treated like cattle.

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North Dakota v. Nodland

Date: 

09/17/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Chad "Chet" Nodland

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

North Dakota South Central Judicial District Court

Case Number: 

08-8-C-02354

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

During a lawsuit brought against North Dakota and the North Dakota's Workforce and Safety Insurance (WSI) by Dr. James Long , the State subpoenaed Chad Nodland, a blogger who maintains NorthDecoder.com. In the lawsuit, Long claimed that he had been unfairly dismissed after shedding light on what he believed to be illegal conduct by WSI.

According to Nodland's post about the subpoena he received, the subpoena asked Nodland to turn over any emails he exchanged with Long, cell phone records and notes that show or detail any coversations he may have had with Long, and blogs authored by Long. Nodland then sent a letter to the State's attorneys, objecting to the subpoena for various reasons, including the protection he had under North Dakota's shield law.

Nodland has yet to hear from the State's attorneys after sending his reply.

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1-High

Senate Puts Bloggers Back in the Federal Shield Bill

On Friday, Senators Arlen Specter (D-PA) and Charles E. Schumer (D-NY) released a revised version of the proposed federal shield bill (S. 448), which expands the bill's coverage to bloggers and other amateur journalists publishing on the Internet.

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Coweta County v. Newnan Times-Herald

Date: 

07/20/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Sarah Faye-Campbell; The Newnan Times-Herald

Type of Party: 

Individual
Government

Type of Party: 

Individual
Organization
Media Company

Court Type: 

Federal

Court Name: 

Unites States District Court for the Northern District of Georgia

Case Number: 

3:08-CV-021

Legal Counsel: 

David Hudson (for Newnan Times-Herald)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

During a sex discrimination lawsuit brought against Coweta County, Georgia by former county official Leigh Schlumper, the county subpoenaed Sarah Faye-Campbell, a reporter for The Newnan Times-Herald

According to an article in the Times-Herald, the subpoena asked Faye-Campell "to name the anonymous source that provided her with copies of letters written by disgruntled firefighters" that were at issue in the discrimination lawsuit. The Times-Herald objected to the subpoena on the ground that Georgia's shield law protected the source's identity, and Coweta County agreed to suspend the subpoena pending further developments in the case.

Ultimately, the parties to the discrimination lawsuit stipulated to dismissal of the case, making the subpoena issue moot. 

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CMLP Notes: 

EK editing (10/07/2009)

Priority: 

1-High

Senate Cuts Citizen Bloggers From Federal Shield Bill

For citizen journalists, the federal shield law front was looking good for a while.  Although the House of Representatives version of the bill, passed in April, only offered a shield to professional bloggers, the Senate version didn't differentiate between the pros and the amateurs.  So there was hope that amateur journalists might actually, eventually, get its protection.

No longer though.

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Vinogradov v. Bozeman Daily Chronicle

Date: 

05/26/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Bozeman Daily Chronicle; Montana State University

Type of Party: 

Individual

Type of Party: 

Organization
School

Court Type: 

State

Court Name: 

Gallatin County District Court

Case Number: 

DV-03-49

Legal Counsel: 

Mike Meloy

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Aleksandra Vinogradov, a professor at Montana State University, subpoenaed the Bozeman Daily Chronicle for information concerning comments made on the Chronicle's website in connection with two articles published in March and April 2009 regarding the trial in Vinogradov's gender discrimination suit against her employer, Montana State University.

Vinogradov sought this information to support a request for a new trial in her discrimination lawsuit against MSU, which ended in a jury verdict against her in April 2009. Her attorneys argued that one of the commenters to the April 2009 article who posted under the pseudonym “mbcomstock” was Brandon Comstock, one of the jurors in the case. The comment in question read: "Note that this was the third time this same woman has sued the university for discrimination, and her third loss. Maybe, just maybe, instead of everybody else being conspiring liars hiding a ‘big dirty secret,’ the problem is really her." In a May 2009 hearing, Comstock testified that he was not the author of the comment, but acknowledged that his father might have written it.

Vinogradov claimed this post proved the jury was improperly informed of her prior suits against MSU. She moved for a new trial based on jury misconduct and served a subpoena on the newspaper requesting that the Chronicle turn over:

"1) copies of all postings made to the Chronicle's website or blog relating to the two articles; 2) the names and identities off [sic] persons and organizations that posted such comments; 3) the IP addresses associated with each comment posted; 4) the IP addresses associated with each viewer of the two articles during the period of March 23, 2009 to April 3, 2009; 5) all computer logs generated in connection with the two articles; and 6) any and all e-mail communications and other written communications that the Chronicle and its website, its agents and its employees have received or sent on or after March 23, 2009 relating to the two articles." 
Ruling at 2. In addition, Vinogradov filed an emergency motion to perpetuate testimony pending appeal, so that information on the posting could be considered with her request for a new trial. 

On June 3, 2009, the Chronicle opposed Vinogradov's motions, arguing that the information and documents she sought "are protected under Montana's Media Confidentiality Act, specifically  26-1-902, MCA." Ruling at 3. The next day, MSU also opposed Vinogradov's motion to perpetuate, arguing that "the information she seeks is not relevant to the jury misconduct issue" and therefore did not satisfy procedural requirements. Id

On June 5, 2009, the court denied Vinogradov's motion to perpetuate testimony pending appeal on procedural grounds. The court did not address the newspaper's shield law argument or rule on its motion to quash the subpoena.  Later in June, the court denied Vinogradov's motion for a new trial. 

Vinogradov reportedly will appeal this result. 

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CMLP Notes: 

AVM-Nothing on WL as of 6/25/09

AVM- Nothing on WL as of 7/8/09

AVM - updated 7/16/09 - added link on judge denying mistrial

CMF - 7/21/09

Priority: 

1-High

State of New York v Democrat and Chronicle

Date: 

07/01/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Steve Orr; Democrat and Chronicle

Type of Party: 

Government

Type of Party: 

Individual
Organization
Media Company

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, Monroe County

Legal Counsel: 

Christopher Thomas

Publication Medium: 

Print
Website

Status: 

Pending

Disposition: 

Subpoena Enforced

Description: 

Assistant District Attorney Timothy L. Prosperi subpoenaed Democrat and Chronicle reporter Steve Orr to testify in the criminal trial of Kevin I. Vickers, who is charged with removing body parts from two Monroe County funderal homes in 2005.  The DA sought testimony about statements that Orr attributed to Vickers in a story that appeared on the Democrat and Chronicle's website in 2006.  He also sought Orr's notes from an interview with Vickers before the story was published.

On July 24, 2009, Justice Dennis M. Kehoe ruled that Orr must testify and turn over the notes, according to the Democrat and Chronicle.  The Democrat and Chronicle plans to appeal the court's ruling, and Justice Kehoe stayed his order pending appeal.

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New Jersey Court Says Blogger Shellee Hale Not Protected By Shield Law

In a June 30 decision, New Jersey Superior Court Judge Louis Locascio ruled that Shellee Hale, a blogger, private investigator, and "life coach," could not invoke New Jersey's journalist shield law to protect the identity of her sources in connection with postings she

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News Websites in Texas and Kentucky Invoke Shield Laws for Online Commenters

This week brings word of two new cases testing whether state shield laws apply to user comments posted on news websites.  In Texas, a Taylor County District Court judge ruled that the Abilene Reporter-News may refrain from disclosing the identities of commenters who posted comments to articles about a murder victim and the teenager charged in connection with his death.

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Berkman's Cyberlaw Clinic Submits Amicus Brief in Case Involving Prior Restraint and Reporter's Privilege

Today, Harvard Law School's Cyberlaw Clinic submitted an amicus curiae brief urging the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers news about the mortgage industry.

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NY Legislature Proactively Considering Whether Shield Law Applies to Bloggers? How Novel!

As anyone who's been faithfully reading the CMLP blog knows, the law hasn't been particularly good at dealing with the intersection of media shield laws and bloggers.  Although there seems to be a modest trend towards application of shield laws to anonymous commenters on news stories, the judiciary's application of shield laws to bloggers has been pretty

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Too Much Media, LLC v. Hale

Date: 

06/09/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Shellee Hale

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Monmouth County, New Jersey

Case Number: 

L2736-08

Legal Counsel: 

John Prindiville - Barry & Prindiville; Jeffrey Pollock, Joe Schramm - Fox Rothschild LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

Too Much Media, LLC ("TMM"), a software company that services the online adult entertainment business, sued Washington-based blogger Shellee Hale in New Jersey state court in June 2008, after she posted comments about a security breach in TMM's software product on Oprano.com, an online forum for those in the online adult entertainment industry.  The complaint includes claims for defamation, false light invasion of privacy, and trade libel. 

In March 2009, Hale moved to dismiss the complaint for failure to state a claim, arguing that counsel for TMM had withdrawn all claims but "slander per se" in a January hearing, and that slander only applies to oral statements.  TMM opposed the motion, arguing that it had not limited its claim to slander in the January hearing, and that it can recover for libel without showing proof of pecuniary loss. 

Also in March 2009, Hale filed a separate motion asking the court to rule that New Jersey's journalist shield law protected her from having to testify about the identity of her confidential sources in her upcoming deposition. In a certification accompanying the motion, Hale testified that she reports on Internet security issues through several blogs (www.camandago.com; www.shelleehale.net/blog; and www.shelleeland.com), as well as on electronic bulletin boards and websites, and that she has developed relationships with confidential sources as part of her reporting and investigative processes.  TMM opposed the motion, arguing that Hale is not a "newsperson" within the meaning of the shield law.

The court held hearings on these motions on April 17 and April 24, 2009 and reserved decision for a later date.

UPDATE:

7/02/2009- The court ruled that Hale's conduct was not protected by shield laws and that the defamation suit against her may continue. 

07/22/2009 - Hale filed a motion for reconsideration

09/2009 - Hale appealed the trial court's ruling.

04/22/10 - The appeals court ruled that Hale was not entitled to protection under New Jersey's shield law because she was not working as a journalist or a reporter when she posted comments about Too Much Media LLC, according to NJ.com.

06/7/2011 - The Supreme Court of New Jersey affirmed and remanded for further proceedings.  It held that New Jersey's shield law requires a party attempting to invoke the law to establish (1) a connection to news media; (2) a purpose to gather, procure, transmit, compile, edit, or disseminate news; and (3), that the materials sought were obtained in the course of pursuing professional newsgathering activities.  The Court noted that "news media" were defined to include both “newspapers, magazines, press associations, news agencies, wire services, radio, [and] television” and “other similar . . . means of disseminating news to the general public."  While the Court recognized that electronic communication could, in certain circumstances, be "similar" to the traditional media listed in the statute, it held that the online message board used by Hale was more a forum for conversation than a medium for dissemination of news and therefore did not satisfy the statute.

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CMLP Notes: 

7/5/09 - updated AVM, added the ruling denying shield law protection

New York v. Sherwood

Date: 

04/17/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Julie Sherwood; Canandaigua Messenger Post

Type of Party: 

Government

Type of Party: 

Individual
Media Company

Court Type: 

State

Court Name: 

Ontario County Court

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Michael J. Grygiel - Hiscock & Barclay LLP

Publication Medium: 

Print
Website

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Ontario County District Attorney R. Michael Tantillo subpoenaed Canandaigua Messenger Post reporter Julie Sherwood to testify at the DWI trial of Canandaigua Town Supervisor Lloyd Kinnear — the second such subpoena in the case.

Attorney Michael J. Grygiel, a partner with the Albany-based firm Hiscock & Barclay, LLP, represented the Messenger and Sherwood. He argued that the subpoena should be quashed because the testimony sought is not critical or necessary to the prosecution’s case, violates the constitutional privilege applied to journalists, and would impede the Messenger’s ability to gather and report news.

Kinnear was charged with felony DWI after he allegedly drove his car off the road in East Bloomfield on the night of September 5. Sherwood interviewed Kinnear on September 6 for a story that was published in the Messenger Sunday, September 7.

Tantillo first subpoenaed Sherwood last fall, when the case was presented to an Ontario County Grand Jury. Grygiel petitioned the court to quash the subpoena, citing arguments similar to those in the current case. On November 3, 2008, state Supreme Court Judge Thomas M. VanStrydonck granted that motion.

On April 20, 2009 Judge Stephen Sirkin ruled that Sherwood had to testify. Sirkin made his ruling based on written arguments from Tantillo and Grygiel. The judge declined to hear oral arguments in the case.

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Blogger Invokes New Jersey Shield Law To Protect Sources

NJ.com reports that blogger Shellee Hale is asking a Monmouth County Superior Court judge to protect the identity of her anonymous sources, claiming that she is entitled to the same protection as a professional journalist.

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New Hampshire Court Tramples on Constitution, Reporter's Privilege, Section 230, What Have You

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar.

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