2/17/11

-govt in the sunshine

-govt is transparent – we can all watch govt in action
-informal title of a law passed in 1976
-intent was to break open agencies that were generally closed to the public
-calls for open meetings for an agency that has 2+ appointees from pres
-for exec agencies, does not count Cong or courts
-must issue a sunshine notice = an agenda
-in practice: not being observed anymore, public meetings are like plays
-commissioners are meeting informally to decide vote, not discussing at meeting
-defeats whole point of govt in sunshine
-can a political figure refuse to talk to a reporter? can an elected official refuse?
-no b/c reporters have same rights as avg citizen
-key: Sun was not frozen out entirely, just those two reporters; not a blanket ban, so OK
-didn’t go to SC, so does not have federal standing
-related to sunshine law
-confidentiality
-reporter’s privilege
-should the press be treated differently than the public at large?
-dealt w/ in All the President’s Men
-idea that news media exist BTWN public and govt, play a representative role in getting info
from govt  should media have a privilege bc of that role?
-no such thing in national law
-shield laws
-reporters represent citizens
-reporters become experts about certain areas
-term privilege – to encourage more communication, maybe not official comm.
-confidential sources that would approach reporters to tell what’s going on
-All the Pres Men: deep throat met w/ Woodward, Bernstein; vowed not to tell his name
-would not have been able to report story w/out secret source
-only 3-4 people knew who he was
-notion: we need to give reporters a shield law to encourage confidential sources
-Branzburg v. Hayes
-Branzberg wrote about marijuana sales in Kentucky
-issued a subpoena to give up all his sources/info
-he refused
-went to SC: yes, reporters must provide info for grand jury
-grand jury: diff from regular jury
-KEY: Branzberg test
-reporters can withhold info unless govt can show all of following:
1) probable cause to believe that reporter has info that is clearly relevant to a
specific violation of law
2) info sought cannot be obtained by alternative means less destructive of 1st
Amend rights
 3) there is a compelling and overriding interest in info: info can’t be tangential
to case
-lower courts have all basically accepted
-shield law – provides some protection to reporters to, in turn, protect their confidential sources
-36 states and DC have some sort of shield law
-first one in 1896
-Md. law: prevents compelled disclosure of source or info
-DC law: qualified shield law – cannot compel a reporter to talk unless
-does this apply only to published material?
-can you be called in to testify about info you have but didn’t publish?
-notes, things on cutting room floor
-What is a journalist? Who is a journalist?
-Madden test (martin madden case in 1998)
-Madden was an employee of wrestling channel
-refused to reveal info
-case decision: he’s an entertainer, not a journalist
-can receive reporters privilege only if:
1) engaged in investigative reporting
2) you’re gathering news
3) you possessed the intent at the inception of the news gathering
process to disseminate the news to the public
-BUT case was before Internet
-appears (but not officially stated in any courts yet) a blogger is a journalist if a
blogger has done investigative work and intends to disseminate info
-law applies in state where you create the blog
-you cannot nor should you ever, promise to keep a source’s identity a secret
-can try your best, but court can force you to talk
-promissory estoppel -
-Cohen v. Cowles Media (1991)
-Cohen acted as anonymous source, asked papers not to reveal name
-but papers did anyway
-Cohen was fired next day
-promissory estoppel – requires liability when a promise is broken, and the
broken promise results in injury
-does not have to be a written promise
-cuts across all of law, not just media
-must have injury
-how to prove a promise was made?
-all about context: depends on court, judge, details
-SC: prom estop is generally applicable; media can be liable for breaking
promises
-key: can seek redress if you have been harmed
-what does the plaintiff have to show?
-defendant made a clear and definite promise
-that was intended to protect person (induce plaintiff’s reliance on that
promise)
-plaintiff did rely on that promise to his or her detriment (harm exists)
-promise should be enforced in the interest of justice