Present editor and FOI advocate extraordinaire David Cuillier has moved into the leadership role at Florida's Brechner Center, so he needs someone new at the helm of the journal. The associate editorship is a three-year gig with a $2,500 annual stipend.
I serve on the Journal's Editorial Board. So you know it's a worthy cause.
The deadline for application is October 1, 2023.
Deteriorating grammar and style conventions signal the crumbling of western civilization.
I'm a grammar-and-style curmudgeon, so take my declaration with a grain of salt. Still, I feel pretty confident about it.
When I was in journalism school, in what was then still called the "print" program, I and my cohort were allowed to make one technical mistake in a story without penalty.
A freebie. One. Of whatever kind: spelling, grammar, style. After that, the grade plummeted precipitously. I tested the system with carelessness just once, and it was damage enough to deprive me of an A for the semester.
Nowadays I find I have to give student papers separate reads for technical and substance. There are so many technical problems in the average draft that I can't focus on the substance at the same time. I give separate grades for tech and substance, too, before I combine them in a formula weighted in favor of substance.
In fairness, most of my students did not go to journalism school. As American legal education is open to all majors, some students have not written since grade school. Our ranks include accounting majors who took only math-oriented tests in non-liberal arts bachelor's programs. (How is that even a thing?) Where they are on tech is not their fault, but a failure of American K16 education. My foreign students who speak English as a second language usually exhibit better tech skills than the average American 1L—notwithstanding telltale struggle with the confounding rules of definite and indefinite articles.
I'm proud of my daughter, who went to a public school that, exceptionally, emphasized writing. We chose where we live for the school. She didn't love the heavy writing emphasis at the time, and fair enough. But when she went to arts school for university, she was shocked by how poorly prepared her peers were in writing, including those who wished to build careers writing creatively for TV and film. Her skill in writing set her apart, as it continues to in the workforce.
Many students who struggle initially, to their credit, embrace my feedback, readily extrapolate appropriate rules, and greatly improve their writing. Some students masochistically seek out my writing tutelage because they know they've been cheated in their education and want to improve. Of course, a few resent and resist the feedback. The quality of legal writing in the everyday practice of law suggests that they're not wrong about where the norm falls.
Just spend a few hours in the briefs at any courthouse, and you'll see what I mean. When I started teaching legal writing in 1998, I went to the courthouse in Little Rock, Arkansas, to compile some model practice documents for my students' reference. I found almost nothing I could hold up as exemplary. That was disappointing but educational.
As my reputation precedes me, my 1L students sometimes worry over whether I'll knock them down for grammar on final exams. I won't, I tell them, unless a misusage creates ambiguity or otherwise impedes the reader's understanding. That does happen. But even I have now and then mistyped a "your" instead of "you're" when writing under time pressure, phonetic ideation direct to fingers. Timed exams are not research papers or practice documents.
UCLA Law Professor Eugene Volokh wrote ably for Reason earlier this week on the use of "they" as a singular pronoun. Like his academic legal writing, his Academic Legal Writing is superb, and I routinely recommend it. Like he, apparently, I have long counseled students on ways to avoid singular constructions that invite the problem of generic gendered pronouns. When working over the text doesn't work—sometimes, the difference between singular and plural is required by legal precision—I recommend "he or she," however cumbersome.
Nowadays the problem of singular "they" bleeds into the issue of gender identity. I am sympathetic with how that "they" emerged amid the failure of "ze" or another creative alternative. When that "they" is used, it is treated grammatically as a plural, even if the person is singular. I'm not here opining on that issue. Professor Volokh gave the best advice, anyway: essentially, know your audience.
I give students the same advice generally. Maybe the judge in your case was an accounting major and will be satisfied as long as you can string sentences together into recognizable paragraphs. But maybe your judge is a curmudgeon. If a student needs a better reason to know the rules than because they're the rules, then it serves to know that it might pay, literally, to be highly fluent in the lingua franca.
I've been thinking about this not only because of Professor Volokh's item, but because I returned to my home state of Rhode Island last week to be confronted with two curiosities on newspaper fronts at my local grocery store. Here's the Barrington Times of August 13:
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| Barrington Times, Aug. 16, 2023: "'None of these fields are getting rest.'" |
This headline is not necessarily wrong, for a couple of reasons. But it gave me pause, frozen for a time in the grocery store portico.
The conventional wisdom is that the word "none" is a contraction of "not one." So, like "one," usually, "none" should take a singular subject. The line should be, then, "None of these fields is getting rest."
At the same time, what we might call "linguistic originalists" point to a long history of English-language usage tolerating both singular and plural treatment of "none." The rule oft recited today is that "none" should be treated as a plural when it reads as "not any," or when the range of things to which it refers is plural. So if the subject of the headline is "not any of these fields," then "are" is suitable.
I find that rule profoundly unhelpful, because there is no real difference between "not one" and "not any." "Not one" almost invariably refers to a range of multiple candidates. Many sources on grammar give examples in which plural usage pertains to the subject structure "none of [them/these/etc.]," but that's not a sensible distinction either. The headline statement here is wholly equivalent to "none is getting rest," were the line to appear in a context in which the adjectival phrase "of these fields" were unnecessary for clarity.
Other sources use a flexible rule in which the writer chooses based on emphasis. Treating the subject as singular emphasizes the singularity. That's hardly a rule. But if it pertained, I would contend that the above usage is wrong. For if one field were rested at any given time, there would be no newsworthy assertion that a new field is needed.
I recognize, too, by the way, that the headline is a quote. According to my old-school journalistic rules, a quote can be changed to make it grammatically correct, as long as the grammatical error is not salient to the story. The theory behind the rule is that the ethic of truthfulness yields to the principle of doing no harm (embarrassment) to persons identified in stories. At some point, that approach presents policy challenges around dialect, cultural vernacular, and education policy. But none of those reasons here would preclude changing the quote.
Regardless of where one comes down on the Barrington Times headline, I contend that the treatment of "none" as plural is now widely reflexive. And legal writers do themselves a forensic disservice by failing to consider the choice. If "not one" is the salient concept, then the treatment should be singular. A writer in argument, especially, might be served best by the singular, or even by regressing "none" to its ancestor: for example, "Not one of the bystanders was capable of aiding the plaintiff" is a more potent declaration than "none were," because the former usage emphasizes the existence of multiple counterfactuals.
Here's another front page, from The Rhode Island Wave:
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| The Rhode Island Wave, Aug. 2023: "Liquor World: Now Open In It's Newest Location." |
The subhede on this ad reads: "Now Open / In It's Newest Location."
This is an easy one, and it's definitely wrong. "It's" is a contraction for "it is." The headline does not say, "In It Is Newest Location." The "it's" is rather a possessive and should be "its."
I recognize that the Wave is a free advertiser, and the copy in question appears (horrifically, atop the front page) in an ad. In my book, which, we've established, is unrelentingly curmudgeonly, that doesn't let the editor off the hook. (Just ask The New York Times.) The fact that the Wave is a free advertiser might, though, explain the quality of the journalistic editing.
I see "its"/"it's" errors all the time. It's disheartening. I get that "it's" is initially confusing, because, especially in formal writing, we are accustomed to apostrophes appearing in possessives more often than in contractions. But then you learn the rule, you turn six, and life moves on.
At risk of exceptionalism, I believe that the American model of law as graduate education, open to a full range of undergraduate majors, is a strength of the American legal system. Our bar is populated by a gratifying diversity of knowledge bases, skill sets, and life experiences that are little known in the five-year LL.B. model.
At the same time, and as long as our four-year higher ed system permits disciplinary focus to the exclusion of liberal arts, we in legal education bear a burden to teach American law students how to speak and write in what is for most of them their native tongue.
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| Age 16, Morris S. Arnold wields a TV camera in 1954. Photo owned by Judge Arnold. |
KTAL started broadcasting in Texarkana, Ark., Judge Arnold's home town, in 1953, as KCMC, using the call sign of its sister radio station that had broadcast since 1933. Born in 1941, a young Judge Arnold was captivated by the newly prevalent medium. At age 14, he got his first job at the station, a go-for for election returns. Four to five decades later, the once TV go-for and camera operator earned a reputation for libertarian interpretation of the First Amendment.
Though, notwithstanding three decades on the federal bench, it's "just a regular ol' tort case, like a slip and fall," in diversity or supplemental jurisdiction, that gives Judge Arnold the "most joy," he told the Arkansas Democrat-Gazette in a 2013 profile.A polymath, Arnold—full disclosure: a cherished friend—studied engineering and classics and had an illustrious academic career before his appointment to the federal bench. With an S.J.D. from Harvard University, he served, inter alia, as professor and dean at the Indiana Maurer Law School and as a vice president and law professor at the University of Pennsylvania. President Ronald Reagan appointed Arnold to the district bench in his home jurisdiction of western Arkansas in 1985, and President George H.W. Bush appointed him to the Eighth Circuit in 1992.
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| Judge Arnold Wikimedia Commons |
The latter, a fascinating insight into the conflicted and delicate position into which the Revolution cast indigenous leaders in America—I caught up on my reading earlier this summer—was especially well received in critical circles.
Judge Arnold is the author of five books on American history in the once territory of the Louisiana Purchase, and he is a co-editor of Arkansas: A Narrative History (2d ed. 2013). The most critically acclaimed of Judge Arnold's books is the oft cited
Accident, Mistake, and Rules of Liability in the Fourteenth-Century Law of Torts, Arnold challenged the conventional wisdom of the renowned Oliver Wendell Holmes, Jr., who had posited that modern culpability doctrine was the achievement of a gradual common law evolution dating to medieval England.
It's often struck me that Judge Arnold has earned a remarkable legacy in both author and subject indices of historical research.
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Pres. Trump leaves Marietta, Georgia, in January 2021. Trump White House Archives via Flickr (public domain) |
Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.
I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.
The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.
More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.
For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).
The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.
The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.
In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.
In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.
Taricani worked closely with the Reporters Committee for Freedom of the Press (RCFP). A superb RCFP series on "Secret Justice" in 2004 included a now dated but still highly informative brief on grand jury secrecy, and the RCFP has online a multi-jurisdictional survey on grand jury access.
Brookings has a report on the Fulton County, Georgia, investigation, last updated (2d ed.) November 2022.
Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.
Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.
Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West. The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.
Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.
Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.
Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy."
The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.
Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."
Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.
Students and citizens alike are entitled to a free press so that we can make informed decisions.
A free press is the cornerstone of our democracy.
We must fight against censorship and the criminalization of journalism.
We must show "Brave Advocacy" to end the prosecution of Julian Assange!
Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.
Students are invited so kindly share this event with your students!
Community Church of Boston's YouTube.
People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.
An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....
Guest speakers:
- Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine
- Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
- Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
- Tarang Saluja, Student, Activist, Journalist
Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:
[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.
The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.
No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.
(Paragraph breaks added.)
Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.
Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.
While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.
Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience.
Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.
Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.
Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."
The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.
A number of virtual educational events are open to the public:
There also are pre-recorded events on school media policies, op-ed writing, and student press freedom.
Many moons ago, I had the privilege of interning at the Student Press Law Center when I was a law student, and then of representing student journalists pro bono when I was in practice in Maryland. Censors never tire, so there is always opportunity for practicing attorneys to engage with this rewarding and challenging work.
HT @ the Free Expression Legal Network (FELN).
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| #IStandWithUkraine |
The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."
The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions." RT agents are allowed to continue reporting in the EU through research and interviews.
By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications."
I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.
I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.
Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime.
In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.
The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.
For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?
Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.
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| RT.com via VPN based in Dublin |
It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.
Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.
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| Worcester, Mass., City Hall (Mass. Office of Travel & Tourism CC BY-ND 2.0 via Flickr) |
In 2018, GateHouse Media, owner of the Worcester Telegram & Gazette and a subsidiary of Gannett, filed a Massachusetts freedom of information act (FOIA) request for files related to investigations of Worcester police in civil rights matters. The Telegram's interest was spurred by Worcester attorney Hector E. Pineiro, who was upset by police interaction with his son.
The city resisted production of the records because, it argued, they were part of ongoing litigation involving police officers. The Massachusetts FOIA has no litigation exemption per se, but officials shield some records under the deliberative process exemption, relating to policy positions still in development. The city grossly over-relied on that strategy, the court concluded in June 2021 after a rare FOIA trial.
GateHouse Media persisted with its case even after shaking lose the records, demanding that the city be permanently enjoined from similar baseless argument in the future and be charged with punitive damages. In January, the Superior Court, per Justice Janet Kenton-Walker, substantially sided with GateHouse, finding that the city had acted in bad faith and needlessly protracted the litigation and costs for years.
Not only did the city rely erroneously on the text of statute, Justice Kenton-Walker opined, it "cherry-picked certain language from ... cases, taking it out of context." And the city had an ugly history with the same issue. The court explained:
[T]he court cannot ignore that [the city] originally took [its] position in spite of the fact that the city was one of the parties to, and thus aware of, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester (Mass. App. Ct. 2003). In that case, the Appeals Court held that materials in a "Worcester police department internal affairs file ... compiled during an investigation of a citizen complaint," were public records. That court stated explicitly that "[i]t would be odd, indeed, to shield from the light of public scrutiny as 'personnel [file] or information' the workings and determinations of a process whose quintessential purpose is to inspire public confidence" (emphasis added).
The court declined to award an injunction, reasoning that the threat of litigation should provide sufficient deterrence. "Simply put, the court expects the city to follow the law now and in the future," the judge wrote.
But the court did order the city to pay $5,000 in "punitive damages." That's at the top of a range allowed by state law when public officials act in bad faith. The money goes to the state Public Records Assistance Fund, rather than to the plaintiff.
According to the Telegram in February, Pineiro said that "he believes the city fought 'tooth and nail' to avoid producing the records because it did not want the public to see a police internal disciplinary process he labeled a 'sham.'"
The city wrote in a statement, the Telegram reported, that it would "move on" and not appeal.
The case is GateHouse Media, LLC v. City of Worcester, No. 1885CV1526A (Mass. Super. Ct. Jan. 26, 2022).
I was privileged to contribute updated articles on Copyright (previous edition draft) and the Freedom of Information Act (FOIA) (previous edition draft).
A lot has changed since the first edition more than a decade ago. I am grateful for the editorial leadership of Professor Gregory A. Borchard at the University of Nevada, Las Vegas, for his direction and feedback on redrafting the content for the new edition.
Here is the description of the project from Sage.
Journalism permeates our lives and shapes our thoughts in ways that we have long taken for granted. Whether it is National Public Radio in the morning or the lead story on the Today show, the morning newspaper headlines, up-to-the-minute Internet news, grocery store tabloids, Time magazine in our mailbox, or the nightly news on television, journalism pervades our lives. The Encyclopedia of Journalism covers all significant dimensions of journalism, such as print, broadcast, and Internet journalism; U.S. and international perspectives; and history, technology, legal issues and court cases, ownership, and economics. The encyclopedia will consist of approximately 500 signed entries from scholars, experts, and journalists, under the direction of lead editor Gregory Borchard of University of Nevada, Las Vegas.
Here is the first paragraph of Copyright.
Copyright is a legal protection of expressions that are fixed in tangible media. Copyright describes, for example, an author’s right to reproduce a book manuscript, an artist’s right to duplicate his painting, or a musician’s right to perform an original score. Copyright is part of a family of legal interests loosely termed intellectual property, which also includes trademarks, patents, and trade secrets. This entry examines the origins of copyright as well as related theory and criticism. The entry also discusses copyright law, the fair use doctrine, and legal issues connected to copyright law. The entry concludes with a discussion of copyright within the context of journalism.
And here is the first paragraph of the Freedom of Information Act (FOIA).
The Freedom of Information Act (FOIA) is an information disclosure statute that provides the principal means of access to records of the executive branch of the United States federal government. The FOIA, codified at 5 U.S.C. section 552, was enacted in 1966 and has been amended since, significantly by the Electronic FOIA Amendments of 1996 and the OPEN Government Act of 2007. This entry discusses the history of the FOIA, its use today by journalists and others, variations in its interpretation, its influence on other governments, and related laws in the United States.
Broadcast news continues from an underground parking garage, where Ukrainians take refuge from Russian attack, Western media have reported widely.
A worship leader at my church today highlighted a line from the Newsboys' "He Reigns" (2003):
It's all God's children singin'
"Glory, glory, hallelujah"
"He reigns, he reigns"Let it rise above the four winds
Caught up in the heavenly sound
Let praises echo from the towers of cathedrals
To the faithful gathered underground
I cited the other day a link to fundraising for The Kyiv Independent. GQ two days ago wrote about other ways to give. "Send Relief" is a Christian mission organization with a Ukraine crisis fund.
For anyone wanting a primer on Ukraine-Russian history, the multi-talented Mo Rocca published a superb piece this morning on CBS Sunday Morning, informed by an interview with Anne Applebaum, whose November Atlantic cover story has proven to be the gold standard of prescience in the present crisis.
Flight from Ukraine is creating a refugee crisis in Poland. Men age 18-60 are not permitted to leave Ukraine, so families are separating with the hope of sparing children from the war. With their usual quiet relentlessness, Poles are stepping up in big numbers. My friends there report taking in families. Poland will need our support, too.
Calling for prayer, my pastor this week quoted Jesus in John 16:33: "I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world."
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| Maidan Nezalezhnosti in 2013. RJ Peltz-Steele CC BY-NC-SA 4.0. |
Russia is attacking Ukraine. We are staying on the ground and bringing you the news you can trust.
— The Kyiv Independent (@KyivIndependent) February 25, 2022
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I find this ad,* "Because Journalism Matters," below, which I saw on my local morning news, troubling.
One could certainly get the impression that the advertiser is a business concerned principally with what the words say: access, accountability, objectivity, and journalism. So I was pretty excited to see what journalistic outfit made this sleek sales pitch for all that I hold sacred.
The Trade Desk, it turns out, is not a journalistic outfit at all. It's a media advertising buying platform. The kind of outfit, I presume, that uses aggregated personal data obtained under the weak American consent regime to target advertising for viewers like me.
But the commercial motive hardly equates to the public interest that drives journalism. The ad opens with images of working journalists. This is misappropriation, in my estimation. The selection of words, access, accountability, objectivity, and journalism, doubles down on a misleading impression.
The company's website is a bit more honest, inserting between "because" and "matters": trust, reach, measurement, and innovation. In descriptions, those words are contextualized in commerce. Trust means transparency to the ad buyer about the ads, not the public's trust. Reach and measurement plainly are about advertising efficacy. And innovation, "[f]rom privacy to identity," "focuse[s] on the interests of the entire industry" (my emphasis), not innovation in journalism, and certainly not innovation in the protection of personal privacy and identity from industry.
Those priorities don't sync in my mind with what looks like a journalist running down a street with a camera and a press badge in one of the opening stills. Unless he's in a hurry to invade someone's privacy.
I don't know the answer to our woes in journalism, whether nonprofits, public funding, etc. But if The Trade Desk, however laudable a model in the advertising business, marks the way forward for journalism, then the craft that I learned in j-school will soon be a quaint anachronism comprising only words.
* I realize that by drawing attention to this ad, I'm giving the
advertiser exactly what it wants, in a no-publicity-is-bad-publicity
way. I decided that sharing the ad with commentary was only fair. You decide, as the saying goes.
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| Pixabay by Bruce Emmerling |
I wrote about the original U.S. District Court decision here at The Savory Tort in 2019. As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information. Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.
But developments in media technology have dimmed the once bright line between information acquisition and expression. In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission. Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.
Accordingly, civil liberties advocates applauded the district court holding "that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions." Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.
In December 2020, the First Circuit mostly affirmed. U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."
The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces." In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."
However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis). That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability. Precedent suggests such extension. But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."
The First Circuit ruling thus nudges the First Amendment forward in the access arena. Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.
At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private. There are public-figure and public-interest exceptions. But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.
The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate. My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law. A private company, Twitter does not have to contend with the First Amendment. But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.
Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law. Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021. Hat tip to Brian Dowling at Law360. Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.
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| Andrew Jennings testifies in a Brazilian legislative probe of the national football federation (photo by Waldemir Barreto/Agência Senado CC BY 2.0). |
Jennings was a tireless and cantankerous thorn in the side of Big Sport. It would be difficult to overstate the role he played in precipitating the sea-changing revelations of corruption in the administration of the Olympics and international football. He broke new ground with his books, The Lord of the Rings (1992) and Foul! The Secret World of FIFA (2006). The "fall of the house of FIFA" and boss Sepp Blatter in the 2015 corruption scandal probably would not have happened had Jennings not sewed the seeds a decade earlier.
Jennings was a prolific writer across media, his many books besides. Notwithstanding a more-than-fair share of earned global acclaim and enmity, Jennings also was a tirelessly supportive colleague in his crusade. Email to his blog's contact address went directly to him; he personally and kindly answered a query of mine when I was researching on sport accountability. He penned a foreword and praise for Whatever It Takes: The Inside Story of the FIFA Way, the book (reviewed) by Australian whistleblower (and friend of The Savory Tort) Bonita Mersiades.
Andrew Jennings has been widely memorialized, e.g., Sports Illustrated. His death leaves a gaping hole in the agencies of accountability for the quasi-corporate behemoths of transnational sport. But his work has shown the world irrevocably that corruption thrives in the dark soil of secrecy.
Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.
Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October. The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.
Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact. Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work." Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.
In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle. A key plank in the new-ethics platform was its essentiality to resist regulation. In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us. Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.
In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent. In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy. Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression.
Courts, too, are struggling with novel problems. For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers. Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law. The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.
On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation. Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment. On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.
In my own education, I found the contrast in approaches to ethics perplexing. In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals. In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.
With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States. Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation. American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now. Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.
The present ICO consultation closes on January 10, 2022.
With her usual incisive writing, Applebaum compared contemporary cancellation with the summary imposition of the scarlet letter on Hester Prynne and described how today's mob justice is dangerously empowered by social media.
What's missing from Applebaum's tale is recognition that the threat to academic freedom is not new. Workplace mobbing has been studied since the 1980s ("ganging up"), and, as I have written before, sociologist Kenneth Westhues wrote about the threat to academic freedom in a 2004 book. I know of what I speak (2005-10, 2017-19).
The following lines struck me as most salient in Applebaum's analysis.
A journalist told me that when he was summarily fired, his acquaintances sorted themselves into three groups. First, the "heroes," very small in number, who "insist on due process before damaging another person's life and who stick by their friends." Second, the "villains," who think you should "immediately lose your livelihood as soon as the allegation is made." .... But the majority were in the third category: "good but useless. They don't necessarily think the worst of you, and they would like you to get due process, but, you know, they haven't looked into it."
This observation is spot on. My heroes once were two in number, another time zero. One of my heroes paid a price for his chronic condition of character. Villains are rewarded by employers. But I respect honest villains more than I respect the "good but useless," who are the vast majority of academic colleagues, for their hypocrisy is galling. That this group is the majority is precisely what makes "ganging up," or "mobbing," possible; the villains, otherwise, are too few in number to get away with it. Especially in legal education, I have been horrified repeatedly by the selfish indifference to wrongs in their midst borne by people who hold themselves out as champions of civil rights.
Sometimes advocates of the new mob justice claim that these are minor punishments, that the loss of a job is not serious, that people should be able to accept their situation and move on.
Indeed, in my experience, I vividly remember one colleague acknowledging the wrongfulness of the persecution, but advising that I "just wait five years" for people to forget the false allegations. Never mind the opportunity cost to career, nor providing for my family in the interim, nor the uncertainty that five years would be enough, nor the inference of guilt that would derive from acquiescence.
"I wake up every morning afraid to teach," one academic told me: The university campus that he once loved has become a hazardous jungle, full of traps.
Check. My classroom students are both my greatest motivation and my greatest fear. I think of both every single time a class is about to begin. It is a difficult and stressful dissonance to manage.
[T]he protagonists of most of these stories tend to be successful.... They were professors who liked to chat or drink with their students, ... people who blurred the lines between social life and institutional life.... [Yale Law Professor Amy Chua:] "I do extra work; I get to know them," she told me. "I write extra-good recommendations." ....
It's not just the hyper-social and the flirtatious who have found themselves victims of the New Puritanism.... Others are high achievers, who in turn set high standards for their colleagues or students. When those standards are not met, these people say so, and that doesn't go over well. Some of them like to push boundaries, especially intellectual boundaries, or to question orthodoxies.
First, yes. Westhues long ago identified jealousy, revenge, and schadenfreude as mob motivators. Hard work and success make one a target. Second, also yes. To be fair, early in my academic career, work probably was too much my life: too much overlap between co-workers and social life. In my defense, that's not unusual for an ambitious young person, especially after relocating to a new city for a new career.
I've been disabused of that ethic. Co-workers willing to sacrifice you to save or glorify themselves are not your friends. Workplaces and schools design social events with the intent to mislead, imbuing senses of belonging and community that only serve the master's interests. At today's university, students and faculty rather should be forewarned explicitly that if they find themselves on the wrong side of the groupthink, they will be devoured by the mob.
Workplaces once considered demanding are now described as toxic. The sort of open criticism, voiced in front of other people, that was once normal in newsrooms and academic seminars is now as unacceptable as chewing gum with your mouth open.
Just so. The kind of hard-nosed, openly aired editorial critique that was a staple of my education as a journalism student, and which conditioned me to take heat and to be stronger for it, I wouldn't dare administer in today's classroom. Some of my law students understand the new game and read between the lines, and they'll be OK. Some will be shocked the first time they are across the table from an adversary or in front of a judge who wasn't schooled to coddle.
Students and professors ... all are aware of the kind of society they now inhabit. That's why they censor themselves, why they steer clear of certain topics, why they avoid discussing anything too sensitive for fear of being mobbed or ostracized or fired without due process.
True. I have resisted modestly on this front, refusing to purge sensitive content from class materials. But I do prioritize-down the sensitive, choose materials strategically, and exert tighter control of student discussion. As usual, this decades-old practice in the academic trenches became a point of public concern only when Yale and Harvard professors started talking about it, as if they discovered the problem.
If nothing is done, Applebaum concluded,
[u]niversities will no longer be dedicated to the creation and dissemination of knowledge but to the promotion of student comfort and the avoidance of social media attacks.
The article is Anne Applebaum, The New Puritans, The Atlantic, Oct. 2021, at 60.
