Should a media defendant be able to keep sources confidential in a libel suit?

Everett Square circa 1905. Photo is in the public domain.

Adam Gaffin has a wild story in Universal Hub about a lawsuit filed against the Everett Leader Herald and the city clerk by Everett Mayor Carlo DeMaria. There are all kinds of entertaining details. Among other things, we learn that the Leader Herald “has referred to DeMaria as ‘kickback Carlo,’ said he is ‘on the take,’ and referred to ‘DCF,’ or ‘DeMaria’s Crime Family.’”

What caught my eye, though, was that the Leader Herald has agreed to go along with a court order to identify 10 of 12 confidential sources. The names had previously been given to Superior Court Judge James Budreau, who ruled that their claim to anonymity was weak. In the following excerpt from Budreau’s opinion, Resnek is a reference to Joshua Resnek, the publisher and editor.

A threshold question facing the Court is whether Defendants have insufficiently supported their claim that the 12 sources used by Resnik [sic] in the articles core to this litigation were given a promised [sic] of confidentiality in exchange for their information…. Defendant Resnek subsequently filed an affidavit which states that all the sources at issue had “provided information to me based on the promise/understanding that their names/identities would not be revealed and would be kept confidential.” Not only does this averment lack specificity for each of the 11 [?] alleged confidential sources, but it’s unclear whether each source was promised or merely understood or believed that their identities would not be disclosed. If they understood, what was the basis of their understanding?

In other words, the judge concluded that Resnek failed to make a strong case that the sources had been granted confidentiality in the first place. Perhaps that will take the sting out of Resnek’s decision to go along with the judge’s order and allow those sources to be publicly identified.

The problem of keeping sources confidential in a libel case is reminiscent of a dilemma that The Boston Globe faced in 2002, when the paper was sued by Dr. Lois Ayash for incorrectly identifying her as the “leader of a team” that signed off on an overdose of an experimental chemotherapy drug that was given to two patients at Dana-Farber Cancer Institute. One of those patients was Globe reporter Betsy Lehman, who died as a result of the overdose.

In that case, the Globe refused an order by Superior Court Judge Peter Lauriat to reveal his confidential sources. Lauriat ruled that, because Ayash did not have the evidence she needed to pursue her suit — evidence to which she was entitled as a matter of law — then she should win her case by default.

“The Boston Globe, long a champion of the freedom of information and of unfettered access to public (and even not-so-public) records, has unilaterally and unnecessarily interrupted the free flow of information that may be critical to Ayash,” Lauriat wrote, according to an account by the Reporters Committee for Freedom of the Press. A jury awarded her $2 million, a judgment that was upheld by the state’s Supreme Judicial Court in 2005.

Richard Knox, the Globe reporter whose story was at issue in Ayash’s libel suit, thought the court should have respected his promise not to identify his confidential sources. “I’m disappointed that the courts don’t understand that honoring commitments to sources goes to the heart of what journalists do every day,” he was quoted as saying.

But though Knox and the Globe may have acted out of principle, they were mistaken to think that should have come without a cost. In fact, there is no ironclad legal right for journalists to protect their confidential sources. I’d say that Judge Lauriat made the right call in demanding that the Globe give up its sources; after all, Ayash was entitled to make her best case. The Globe also made the right call, expensive though it was, by saying no.

The situation in Everett, by contrast, is weird and hard to parse. Is Resnek really breaking a promise of confidentiality if the guarantees he made to his sources were not plainly stated, as Judge Budreau suggests? Needless to say, it will be interesting to see what those sources have to say.

Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

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As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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At GateHouse, as elsewhere, the rich get richer

Kirk Davis

Seems like it’s been ages since I last wrote about GateHouse Media, the financially challenged Fairport, N.Y.-based company that owns about 100 community newspapers in Eastern Massachusetts.

Things may be more quiet than they were a year ago, but rumblings of dissension persist. Several anonymous employees sent this along, detailing some mighty nice bonuses top GateHouse officials paid themselves to publish understaffed newspapers run by overworked, low-paid journalists.

Leading the parade is chief executive Michael Reed, who got $500,000. Taking the silver, with $250,000, was president and chief operating officer Kirk Davis, a top GateHouse official in Massachusetts before decamping for upstate New York last year.

It’s an old story. Ordinary people work hard for short money while the folks at the top reward themselves. Reed and Davis are managing a difficult situation, and it may well be that they deserve to be compensated handsomely just for keeping GateHouse alive. Then, too, their situation is hardly unique.

Just a few days ago we learned that Joseph Lodovic IV, president of Dean Singleton’s MediaNews chain, was receiving a $500,000 bonus for the bang-up job he did putting together a structured-bankruptcy plan. That may be the way of the world. But such tidbits can be pretty hard to swallow for those who actually cover late-night meetings and give up their weekends to photograph local events.

In other GateHouse news, here is a weird story involving a reporter for the company’s Dodge City Daily Globe, in Kansas, who was fired in the midst of a legal dispute over whether she should testify about her confidential source in a murder case.

I’m going to have to side with management on this one. The reason: Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, tells the Topeka Capital-Journal that the reporter, Claire O’Brien, refused to show up in court to answer the subpoena she’d received.

“What she did was really stick a thumb in the judge’s eye today,” Dalglish is quoted as saying. “Even if you’re not going to answer questions, you still have to go to court.”

Media Nation Rule No. 57: If Lucy Dalglish doesn’t stand up for you on a freedom-of-the-press issue, then you’re wrong.

Tuesday evening update: Dalglish takes a rather different stance on the RCFP Web site, saying she finds O’Brien’s termination “unusual” and “quite disturbing.” An Associated Press account of what happened is worth reading, too.