Media Sphere

On Thursday, David Hazinski posted a column on the Web site of the Atlanta Journal-Constitution suggesting that "unfettered 'citizen journalism' (is) too risky." He points out that the online medium creates an opportunity for anyone to provide informational content, but that this new venue is prone to inaccuracies and hearsay. He argues that so-called citizen journalism "isn't journalism at all, and it opens up information flow to the strong probability of fraud and abuse."

In his article, Hazinski suggests that unless the news industry acts now to regulate amateur-professional journalism, it will be "just a matter of time before something like a faked Rodney King beating video appears on the air somewhere." In his defense, a similar scenario did play out over three years ago when Benjamin Vanderford, a San Francisco resident, produced a fake video depicting his own beheading at the hands of Islamist extremists; then again, it was a publisher from the establishment press, William Randolph Hearst, who is credited with helping catalyze the Spanish American War through manufactured news. Hearst told a reporter, "You furnish the pictures, I'll furnish the war," and history indicates that he may have done just that.

... Read more

The news that home run record holder Barry Bonds had been indicted came as a shock to much of the bay area yesterday. For several years, Bonds' legal struggle has made headlines and helped shed a light on the use of performance-enhancing drugs in professional sports, but after such a prolonged saga, it seemed unlikely that the Giants star would go down. His personal trainer Greg Anderson (whom I met while at the Federal Detention Center in Dublin, CA), spent over a year in custody for refusing to cooperate with the grand jury and many believed that Bonds' indictment hinged on the testimony Anderson had refused to provide.

Anderson is out today, but there is no reason that he caved and testified. The grand jury was due to expire next month and its extraordinarily unlikely that he would give up now. Former US Attorney Kevin Ryan confirmed on a radio news program this morning. Anderson's attorney Peter Garagos stated, Law.com, "Frankly I'm aghast. It looks like the government misled me and Greg as well, saying this case couldn't go forward without him."

There are many unanswered questions about why the government brought the indictment when they did, but what's just barely been mentioned is how this turn-of-events will affect Mark Fainaru-Wada and Lance Williams, whose coverage of the story for the San Francisco Chronicle and their book, Game of Shadows, led to the reporters being subpoenaed and later found in contempt for not revealing their anonymous sources.

... Read more

We've all heard the story of Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints who was recently convicted of two counts of rape and is facing life in prison, but there is another legal saga that originated in that same case which hasn't garnered much national attention.

Katie Baker was covering Jeffs case for the Salt Lake City television station KUTV. She interviewed a number of individuals involved in the case, including Mo Webb, a potential juror. Unfortunately for Baker, her interview with Webb violated a decorum order issued by Judge James Shumate that Baker was only vaguely familiar with.

Upon realizing that she violated the order, Baker apologized to the Court's public information officer and explained that she was unaware of the details of the order. In an October 23 written ruling, (PDF), Shumate found Baker in contempt, arguing that her ignorance of the prohibition is no excuse: "The Court's order would be meaningless if the 'I forgot to read it all' excuse was accepted."

In what Shumate would likely consider a moment of kindness, he did not send Baker directly to jail, nor did he assess an astronomical fine for her mistake. Instead the judge stayed his sentence for 90 days stating that, "Ms. Baker may purge her contempt if, within the said ninety (90) day period she produces a newscast addressing a public need." The ruling goes on to explain that Baker's assignment from the judge does not need to be broadcast at the station, but that she must submit a DVD copy of the newscast to the court.

Baker's attorney David Reymann plans to appeal Shumate's ruling and has asked the judge to grant a stay pending the appeal.

As highlighted in the judge's own ruling, "the elements of contempt of the Court's order are "a party must have (1) known of the duty imposed by the Court's order, (2) had the ability to comply with the order, and (3) willfully and knowingly refused to comply." It seems quite likely that the court of appeals will vacate the contempt order. After all, even Shumate acknowledges that Baker was unaware that her interview with Webb was prohibited.

Whether Baker's actions can be considered contemptuous is obviously central to her appeal, but it is actually Shumate's remedy: that Baker can submit a story addressing a public need of the community, which has ignited the anger of first amendment advocates.

On October 31, the Society of Professional Journalists sent an open letter to Judge Shumate urging him to vacate the contempt ruling against Baker. In the letter, SPJ president Clint Brewer and FOI Chair David Collier argue that it is their belief that "it is unconstitutional to punish Ms. Baker by ordering her to create a public service story."

Gene Policinski, the executive director of the First Amendment Center agrees. In the Tucson Citizen Policinski writes, "when government speaks, we ought to know it's the government talking - not a press under duress, and certainly not the government pretending to be the press."

I'd certainly agree that the order is a scary proposition, and the notion that judges can order reporters to cover certain stories is a blow against democracy on so many levels, but in this case, I'm uncertain that Shumate's alternative to contempt rises to the First Amendment assault that others allege.

If the judge had given Baker an opportunity to erase her contempt by feeding the homeless or volunteering at a local non-profit would that have created the same sort of an uproar? Probably not. She might have still chosen to refuse the settlement and fight the contempt through the appellate process, but I don't think the alternative provision would have drawn any red flags.

By the same token, KUTV is not required to broadcast Baker's report, and it also appears that KUTV is not mandated to use their resources to help Baker either. So, it is not the news media who are being commanded by the judge's strange request, so much as it is Baker herself.

Shumate should certainly reverse his order; everyone acknowledges Katie Baker did not mean to violate the judge's decorum order. I also think that Shumate's offer to purge Baker's contempt was rather short-sighted, but I'm still not convinced that it rises to the level of offense that others have suggested. Either way, I'm glad to see that Baker is seeking to fight the judges ruling and I hope her legal battles are successful.

Ever since Napster found its way into every college dorm room in 1999, the defenders of intellectual property have been perplexed at how to best deal with peer-to-peer file transfer. Last week's news that Comcast's servers were interfering with BitTorrent traffic may have come as a surprise to some, but given that few companies have been willing to acknowledge the legal uses for P2P, it shouldn't be too much of a shock.

What strikes me is the fact that in the United Kingdom, it is actually the ISPs who are opposed to banning file-sharing and the lawmakers who have been pushing it. According to Broadband Reports, a representative from the service providers union suggested that, "ISPs are no more able to inspect and filter every single packet passing across their network than the Post Office is able to open every envelope." While this argument seems somewhat weak given Comcast's ability to infiltrate BitTorrent, it is true that file-sharers will always be one step ahead of the regulators, and I support their commitment toward an open internet.

... Read more

An open government is central to democracy; most people would argue that certain information must be kept secret to protect national security and to preserve privacy rights, but the government should not be able to remove important details simply because they might make them look bad. In Higazy v. Templeton, a recent case before the U.S. Court of Appeals 2nd circuit, the decision was posted on the web last Thursday, but removed almost immediately.

During the brief time the opinion was online, Howard Bashman from How Appealing managed to save a copy that he has posted online.

After being asked to remove the original opinion Bashman updated his blog:

Catherine O'Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe's telephone call was to ask me to take down this blog's posting of the decision to the internet.

Bashman refused to take down the court's original decision stating, "No one from the Second Circuit has attempted to explain to me the so-called security concerns," and indeed when the opinion was republished the material omitted seems to have been removed simply because it makes the FBI look bad.

Steve Bergstein summarizes the case:

An Egpytian national, Abdallah Higazy, was staying in a hotel in New York City on September 11 and the hotel emptied out when the planes hit the towers. The hotel later found in the closet of his room a device that allows you to communicate with airline pilots. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States.

So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back. This is like something out of the movies. The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Higazi was innocent! He next sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

The courts opinion runs 44 pages, and what's been redacted follows:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother "live in scrutiny" and would "make sure that Egyptian security gives [his] family hell." Templeton later admitted that he knew how the Egyptian security forces operated: "that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don't advise people of their rights, they don?t ? yeah, probably about torture, sure."

Higazy later said, "I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I'm screwed and my family's in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine."

Higazy explained why he feared for his family:

The Egyptian government has very little tolerance for anybody who is -- they're suspicious of being a terrorist. To give you an idea, Saddam's security force -- as they later on were called his henchmen -- a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word 'torture' comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn't imagine them doing anything to my sister.

And Higazy added:

[L]et's just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be ?might try to get to them and somebody might actually make a connection. I wasn't going to risk that. I wasn't going to risk that, so I thought to myself what could I say that he would believe. What could I say that's convincing? And I said okay.

After reading the redacted material, it become clear that not only was Bashman's decision to leave the material online justified, but that the court's revised opinion serves only to prevent the public from learning that the confession was coerced by the FBI's threats to his family.

The fact that the court would attempt to cover this up is alarming. Higazy was a completely innocent man who was persecuted by the US government, and such tactics need to be brought to light so that the both the public and the media can weigh in on them. The government claims to not torture suspects but has stated that they use aggressive interrogation techniques. If such techniques are to include threats to innocent family members then the court has a legal duty to bring these matters to light and they have neglected their responsibilities by redacting this information.

It isn't often legal nightmares are resolved quickly. In fact, anything pertaining to the law tends to drag on tirelessly.

But for the two executives at Village Voice Media who spent a night in jail last week, their legal woes were abated before the weekend arrived. On Friday afternoon, I wrote about how Michael Lacey and Jim Larkin were incarcerated after they published details in the Phoenix New Times about a subpoena they received. Hours later, Maricopa County Attorney Andrew Thomas, dropped all the charges against Lacey, Larkin and the paper.

Dennis Wilenchik, the special prosecutor assigned to the case, was removed from the investigation by Thomas the same day. Wilenchick has denied any wrongdoing, stating that "his investigation was not 'grossly mishandled or mismanaged,'" and he will not stand to have his reputation tarnished.

While it's not entirely clear what prompted the county attorney to drop the charges and remove Wilenchick, The Arizona Republic points out, that "Thomas' announcement came just hours after the State Bar Association confirmed that it had received multiple complaints and had launched an internal investigation into Thomas and special prosecutor Dennis Wilenchik for their actions in the New Times case and an unrelated one."

... Read more

Just days after the House of Representatives passed the Free Flow of Information Act, The New York Times reports that two executives from Village Voice Media were arrested in Phoenix, Arizona, for revealing "grand jury secrets".

Michael Lacey, the executive editor, and Jim Larkin, chief executive, were arrested at their homes after they wrote a story that revealed that the Village Voice Media company, its executives, its reporters and even the names of the readers of its website had been subpoenaed by a special prosecutor. The special prosecutor had been appointed to look into allegations that the newspaper had violated the law in publishing the home address of Maricopa Sheriff Joe Arpaio on its website more than three years ago.

The two have since been released, but the reverberations of this blatant assault on the press and of Arpaio's retaliatory behavior will likely resonate for some time. Although the original investigation stems from a column written by John Dougherty about Arpaio's real estate investments, the impetus for yesterday's arrest appears to be this week's Phoenix New Times cover story, "Breathtaking Abuse of the Constitution". In the article, Lacey and Larkin acknowledge the fact that the story may generate a legal backlash, and imply that civil disobedience had become their last option.... Read more

33 States plus the District of Columbia have some form of shield law to protect the forced disclosure of information obtained by journalists, but there are no such protections when it comes to federal court. That may be change soon, but will the law be strong enough to actually protect journalists or will its broad exceptions do more to hurt press freedoms than help them?

... Read more

Update: After writing this blog post, I spoke to The League of Women Voters, and SFGTV and the City Attorney's office. After making these phone calls, I was assured that the public would in fact be able to videotape the debate and on Thursday night, I did see plenty of cameras in the audience. To the best of my knowledge, everybody was provided full access to the debate.

In the city of San Francisco, a dozen people are running for mayor of San Francisco. I am one of them. Most of us are serious candidates pushing real issues and innovative solutions to the city's problems though you might not think so reading the local newspapers or watching the television.

In fact, many people in San Francisco don't even know there is an election next month. Of those who do, many are unaware that Gavin Newsom, the incumbent, is not running unopposed. By all accounts the mayor is running a very quiet campaign, and has refused to participate in any candidate forums or debates. Except one.

Almost all of the candidates, including Newsom, will be taking part in a candidate forum tonight. It's sponsored by the League of Women Voters and will take place at 6:00PM in the Koret Auditorium at the main branch of the public library. The event will be taped by SFGTV, the local government television station, and according to an e-mail I received from Jolinda Sim, the Candidate Forums chair for the League of Women Voters, "no videotaping or flash photography [will be] allowed due to the fact that SFGOV TV is taping this forum for broadcast."

Given that this is a public event being held on city property and pertaining a to government election, the mere suggestion that the media not be granted full access to the event is deeply troubling. The fact that the government is actually involved in taping the forum means that the city is complicit in denying the media access. This is not only alarming, it may even be illegal.... Read more