Summer 2016 featured several events surrounding issues of top concern to the news media, such as source protection, newsworthiness, and government surveillance, and the murder of a journalist in Dallas. A New York state law enacted to protect the reporter-source relationship was put to the test twice in the context of jailhouse interviews, and leaked documents indicated that journalists' emails and phone calls are subject to FBI surveillance with minimal restrictions. The widely publicized Hulk Hogan litigation, funded by a billionaire, effectively shut down a popular online media company. These controversies raised several difficult balancing questions: privacy concerns balanced against matters of public concern; the threat of national security balanced against the threat of government surveillance; the need to investigate crimes against the need to protect reporter-source relationships.
Recent cases shed light on challenges that arise when government prosecutors subpoena journalists to testify in criminal cases and turn over notes from jailhouse interviews. In August, the Reporters Committee, joined by 57 news organizations including the IAPA, filed an amicus curiae brief urging a New York state appeals court to reverse a trial court order that required New York Times reporter Frances Robles to testify about a jailhouse interview and produce her notes to government prosecutors. In October 2013, Robles had interviewed a prison inmate who was convicted of raping and murdering a child. The inmate had confessed to the police, but told Robles that his confession was coerced, and the prosecutors thereafter sought information to defend against a potential claim from him.
The amicus brief argued that the New York Shield Law protections only allow subpoenas against reporters where the information sought is highly relevant, i.e., the evidence will determine the outcome of the case. This high standard is necessary, the brief argued, to protect reporter's relationships with their sources. Moreover, the need to protect these relationships is especially important in the context of jailhouse interviews, which are often the public's only opportunity to hear directly from criminal suspects and evaluate whether justice is being served. When journalists interview criminal suspects awaiting trial or defendants seeking post-conviction relief, there is a heightened risk that the government will subpoena the journalist as part of the prosecutorial strategy. This case is still pending before the New York court.
A similar case, People v. Bonie, also addressed the New York Shield Law's protections for testimony and materials related to jailhouse interviews. There, local cable news reporter Ray Raimundi conducted and videotaped a jailhouse interview with a defendant who had been indicted for murder on the basis of circumstantial evidence. In the broadcast portion of the interview, the defendant denied his guilt and claimed to have a positive relationship with the victim. The prosecutors argued that the defendant's statements during the jailhouse interview were "critical or necessary" to their effort to prove motive, intent, and consciousness of guilt because the statements contradicted what the defendant earlier told the police. The court found this argument persuasive, noting that in a circumstantial murder case, evidence that at first appears innocuous can later prove critical when viewed alongside other circumstantial evidence. The court found that access to the unpublished video was the only way for the prosecutors to evaluate the defendant's "actual words and his demeanor as he said them," even though there were non-media witnesses present during the interview who could presumably testify regarding the defendant's comments. Accordingly, the court ordered the disclosure of portions of the unpublished video concerning the defendant's relationship with the victim.
These cases illustrate the challenges journalists face in conducting jailhouse interviews and maintaining relationships with sources who are facing trial. The relevant portion of the New York Shield Law, which was enacted in 1990, is intended to protect a journalist's non-confidential material unless the litigant makes a "clear and specific showing" that the evidence will influence the outcome of the case and is not obtainable elsewhere. The law, however, is gutted where courts allow prosecutors to aggressively seek innocuous, unpublished jailhouse interview materials.
At the initiative of the Society of Professional Journalists (SPJ) a letter was sent in September to White House Press Secretary Josh Earnest in which 40 organizations, including the IAPA, declared that the federal government's level of transparency had worsened. The note responded to an op-ed article by Earnest published in The New York which highlights supposed advances in the matter of transparency and says the media should recognize these efforts. The organizations signing the note replied that transparency has in fact deteriorated. They give details, for example, of the fact that being blocked are requests by journalists to talk to White House staff, that there are excessive delays in responding to requests for interviews and that the federal agencies exclude critical reporters, among other points.
The body of journalist Jay Torres was found on June 13 in the back patio of a house that he was thinking of renovating in the Garland neighborhood of Dallas. Jacinto Torres Hernández, known as Jay Torres, was 57. He also worked as a real estate agent. During nearly two decades Torres was a stringer for La Estrella, the Spanish-language edition of the Fort Worth'Star Telegram, and he belonged to the National Association of Hispanic Journalists. Torres' family members had not known his whereabouts since June 10 and have not ruled out that the murder could be linked to his work as a journalist, as they declared in a press conference that he was investigating matters related to human trafficking and illegal immigration.
Retired American professional wrestler Terry Bollea, known professionally as Hulk Hogan, sued online media company Gawker Media and several employees and Gawker-affiliated entities in 2012, following Gawker's release of a 101-second video clip from a sex tape provided by an anonymous source. Bollea's claims included invasion of privacy, infringement of personality rights, and intentional infliction of emotion distress. After a federal court denied his request for an injunction, Bollea sued in Florida state court. Although his request was initially granted, it was then denied in 2014 by the state appeals court, which ruled that it would amount to a prior restraint on speech in violation of the First Amendment.
The case proceeded to trial in March 2016. During the two-week trial, Bollea asserted the theory of publication of private acts, claiming that Gawker's release of the video clip without his consent disclosed highly offensive private facts about himself. Gawker countered that the video was newsworthy, which is a bar to private-fact claims under the First Amendment, because Bollea had already put his private life into the public arena by, for example, discussing the video in public interviews. Bollea argued that he and Hulk Hogan were separate personas, and that it was Hulk Hogan—not Bollea—who existed in the public sphere; Bollea, however, had suffered the privacy invasion. Although this legal theory was scoffed by many in the media, the jury delivered a verdict in favor of Bollea, awarding him $140 million—$55 million for economic harm, $60 million for emotional distress, and $25 million in punitive damages. The judge refused the stay the $50 million bond payment pending appeal, so Gawker filed for bankruptcy protection in June and was purchased by Univision Communications Inc. in August for $135 million.
The case, while aberrational, demonstrates the risks to editorial independence of news sources that report on public figures. Although the U.S. Supreme Court has generally encouraged courts to take an expansive view of newsworthiness to encourage speech, states vary in their definitions of newsworthiness. What makes this litigation even more critical is that Silicon Valley billionaire Peter Thiel revealed to the New York Times in May 2016 that he had secretly provided about $10 million to fund Bollea's lawsuit. Thiel told the New York Times in 2016 that his decision to fund the Gawker litigation arose from his desire to enact "specific deterrence" on Gawker, which had published articles about Thiel as far back as 2007. Thiel, who has donated money to the Committee to Protect Journalists and considers himself a supporter of free speech, stated that he has not targeted any other media companies aside from Gawker. The involvement of Thiel in the Gawker litigation, however, raises concerns that the emerging practice of litigation finance will allow wealthy individuals to pressure and intimidate publishers.
In June, an online publication dedicated to government transparency released classified rules governing the FBI's use of national security letters ("NSLs"), which are law enforcement tools used to obtain information from communications service providers like phone companies and Internet Service Providers. Although it was no secret that the FBI was using these letters—organizations such as the Reporters Committee and the Electronic Frontier Foundation have been fighting in Congress for legislative reform of NSLs for over a decade—the recently released rules reveal the minimal constraints the FBI places on itself when using NSLs to access journalists' information.
The rules come from a classified appendix to the FBI's operating manual, called the Domestic Investigations and Operations Guide ("DIOG"). The released DIOG appendix, which dates from 2013, was previously released by the government in heavily redacted form. The newly released appendix, by contrast, shows that many of these initial redactions were improper. More importantly, they allow the FBI to obtain information about journalists' calls and emails without going to a judge or informing the target news organization. The rules only require signoff by the FBI's general counsel and the executive assistant director of the bureau's National Security Branch, and where the NSL is aimed at a journalist, the general counsel and executive assistant director must consult with the assistant attorney general for the Justice Department's National Security Division.
The released rules are particularly troubling because they undermine recent steps that the Obama administration has taken to safeguard journalists from government surveillance. The Obama administration brought a record number of leaks prosecutions, several of which involved journalists. News stories in May 2013 revealed that the Justice Department had secretly obtained phone and email records of journalists from the Associated Press and Fox News. As a result, then-Attorney General Eric Holder announced new policies to protect journalists, emphasizing that the Justice Department would seek information from journalists only as a "last resort." The Department and a News Media Dialogue Group, coordinated by the Reporters Committee, engaged in a dialogue in 2014 that resulted in revamped internal guidelines in early 2015. Those guidelines placed even greater emphasis on journalist protections.
These guidelines, however, did not apply to NSLs, which are instead governed by the DIOG appendix. That appendix confirms that despite the tremendous progress made in the past few years, there is still much work left to do before journalists' communications records, and consequently their sources, are protected from every avenue of law enforcement surveillance.
Similar concerns were raised in September when the Justice Department's Inspector General released a report regarding the FBI's impersonation of journalists (the "IG Report"). That report evaluated an FBI operation in 2007, during which agents created and published a fake AP news story to trick a criminal suspect into downloading surveillance software that enabled the FBI to track the suspect's location. The FBI's impersonation came to light in October 2014, and the Reporters Committee and 25 news organizations immediately sent a letter to the attorney general and FBI director calling it unacceptable. The Reporters Committee attorneys and AP reporters submitted detailed FOIA requests to the FBI seeking information about this and any other program in which agents posed as journalists or used false news articles to deliver surveillance software. In August 2015, the Reporters Committee and AP sued for these records in the U.S. district court in Washington, D.C.; that case is still pending. The recent IG Report found that the FBI agent who impersonated a journalist did not violate the agency's undercover policy, and the chairman of the steering committee of the Reporters Committee issued a statement urging the Justice Department to take seriously the need for reform and the importance of protecting the integrity of the newsgathering process.
According to the Internet security firm Verisign, cited by columnist Michael Hiltzik, the number of DDoS (distributed denial of service) attacks against news organizations increased 75% in the first half of 2016 compared to a year earlier, while the peak attack size increased 214%. One of those attacks referred to Brian Krebs, a journalist and cybersecurity expert, who suffered a DDoS assault and was off the Internet for several days.