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Search for True North Believe it. The Colonel has taken on a life of his own though Twitter and other social media sites where he can be found. He routinely gets news tips from some readers, hears from others about corrections and typos in stories, and he is offered story ideas. One example: The Colonel was notified via Twitter about a bomb threat and building evacuation downtown. The tip was checked out by a reporter, and the story was posted on chicagotribune.com. Through Twitter and Facebook, we’ve invited people to meet-ups at a local bar. They showed up in num- In late September 2008, a California state appeals court struck down a gag order that forbade The Orange County Register to report by “all means and manner of communication, whether in person, electronic, through audio or video recording, or print medium” testimony by any witness appearing in a class action wage-and-hour suit brought by its newspaper carriers. The trial judge—whose ruling was overturned—had concluded that the injunction was necessary to prevent future witnesses from being influenced by others’ testimony. But this gag order violated just about every precedent establishing the strong presumption against prior restraints going all the 54 Nieman Reports | Winter 2008 bers that surprised us—and even paid homage to the Colonel by wearing his trademark hat. The goal for Project O was one million page views a month. By June, at its peak, it was doing more than six times that number. And so our project continues with permanent funding. Can a mainstream news site become way back to 1931’s Near v. Minnesota and 1971’s Pentagon Papers case, New York Times v. United States. As the appellate panel ruled, there was no way that the risk that witnesses in this civil case might be influenced by news reports was sufficient to justify this kind of censorship. Other, less restrictive alternatives—such as simply admonishing the witnesses not to read the paper—would accomplish the same goal. Was this appeals court’s ruling a great victory for freedom of the press? Well, yes and no. Yes, because the appeals court got it right. But no, because the trial judge thought his order was the right thing to do, despite nearly 70 years of unbroken precedent to part of the social media scene? Absolutely, yes. But be warned. To do this requires having the same kind of great team I had: Facebook-savvy youth, an innovative Web staff, and an extremely supportive newsroom. Even then, it will be essential to become immersed in the various communities and to reach out in ways that create interactive relationships. Like friendships, these are ones that come only with time, trust and hard work. For us, we had a Colonel to help. � Bill Adee is editor of digital media for the Chicago Tribune. Web v. Journalism: Court Cases Challenge Long-Held Principles ‘… courts and legislatures, reluctant to apply different rules to the “old” and “new” media, are rethinking the basic constitutional principles that have protected a free press for generations.’ BY JANE KIRTLEY the contrary. Unfortunately, that trial judge is not alone in seeming to be First Amendment-challenged. It’s not that they hate the press, exactly. But they don’t really understand the unique role the news media play in a democratic society. They reject the idea that “the press” should enjoy any special privileges. Nor do they seem to know what to do about those legions of unidentified and ungovernable bloggers and other online journalists out there who, in their eyes, do little except spread false rumors, violate copyright laws, and identify rape victims with impunity, all the time hiding behind the anonymity that the Web permits. As a consequence, courts and legis-
latures, reluctant to apply different rules to the “old” and “new” media, are rethinking the basic constitutional principles that have protected a free press for generations. Web Restrictions The Orange County Register case is similar to recent examples of judges issuing gag or “take down” orders against Web site operators who have had the temerity to report details about Paris Hilton’s personal life or the names and statistics of Major League Baseball players without authorization from the league. The difference is that some of these orders have actually been upheld. Although in the past it was accepted law in the United States that the remedy for invasion of privacy was to sue for damages, not enjoin the speech, for many judges the immediacy and ubiquity of publishing on the Internet changes the balance, justifying more draconian measures. Copyright law presents a slightly different challenge. The owners of intellectual property have always had the legal right to demand that violators “cease and desist” publishing and distributing infringing works. But the advent of the Internet means that copying others’ work without permission is easier than ever before. Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998 to address this situation without also stifling protected speech. As an incentive to encourage Internet Service Providers (ISPs) to continue to offer untrammeled access to the Web, the DMCA’s “safe harbor” provision protects them from liability when their subscribers upload infringing material, as long as they “act expeditiously” to remove the material once notified that it has been posted. The problem is that a prudent ISP will be inclined to take down the content and leave the subscriber and the copyright owner to sort out their respective rights later. To facilitate that process, the DMCA permits copyright holders to use “administrative subpoenas” to compel the ISP to disclose the identity of the subscriber. Although the New Venues Police use pepper spray to break up a group of protesters during a rally at the Republican National Convention in Saint Paul, Minnesota. Kentucky Kernel photographer Ed Matthews, left with camera, documented the rally and was later arrested on charges of felony riot according to the Ramsey County Adult Detention Center. Matt Rourke, who took this photograph, was also arrested. Photo by Matt Rourke/The Associated Press. subpoenas are supposed to be strictly limited to curtailing infringing activity, they can also be used to circumvent well-established First Amendment principles protecting the right to engage in anonymous speech. A similar threat arises in the context of defamatory publications. Many bloggers and other posters engage in vituperative commentary online without identifying themselves. In a provision similar to the DMCA safe harbor, section 230 of the Communications Decency Act grants ISPs immunity from liability for libelous speech posted by their subscribers. But again, the ISP can be compelled to reveal the individual’s identity if a judge concludes that a plaintiff has a valid claim. Those who might be affected by this ruling include newspapers and other media, which could be forced to unmask readers who post anonymous comments on their Web sites, leaving them vulnerable to retaliation or retribution. Confidential Sources The question of whether journalists should have the right to protect their confidential sources is being affected by the Internet, too. The existence and extent of any reporter’s privilege has been an unsettled and volatile issue in the courts ever since the Supreme Court’s narrow decision in Branzburg v. Hayes in 1972 determined that the First Amendment did not create one. Despite that opinion, however, most states and federal circuits recognized some kind of protection, at least in certain circumstances. But after a series of rulings to the contrary in several influential federal appeals courts, most notably in the recent Judith Miller case, media groups lobbied Congress to pass a federal shield law. Although attracting bipartisan support, the bill remains stalled in the Senate. A major point of contention with this legislation is the question of how to determine who would be covered by the law. Attempts to adopt a broad functional definition to include anyone who is “doing journalism,” regardless of medium or platform, was rejected by those who feared the law would be used to protect individuals “linked to terrorists or other criminals,” or who are merely “casual bloggers,” presumably unbound by traditional Nieman Reports | Winter 2008 55
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4 N ieman Reports THE NIEMAN FOUNDA
Page 5 and 6: Curator’s Corner Clear Direction
Page 7 and 8: SEARCH FOR TRUE NORTH | Spiking the
Page 9 and 10: Digital Road Where the Monitor Is G
Page 11 and 12: Digital Road To Prepare for the Fut
Page 13 and 14: Journalism as a Conversation ‘Tod
Page 15 and 16: of the more intriguing new digital
Page 17 and 18: At the International Symposium on O
Page 19 and 20: eddit or Digg where “communities
Page 21 and 22: emember less from the traditional n
Page 23 and 24: expertise. This passion and experti
Page 25 and 26: onto one kind of phone, it should i
Page 27 and 28: the 30-year trend. I met with poor,
Page 29 and 30: Mark, an informatics professor at t
Page 31 and 32: astronomically. This is, in part, b
Page 33 and 34: things, and they don’t want to ju
Page 35 and 36: Engaging Young Staffers in Newsroom
Page 37 and 38: Youthful Perspectives Using E-Reade
Page 39 and 40: Mapping the patterns of how people
Page 41 and 42: oken, its role as an honest broker
Page 43 and 44: digital tools bring journalists clo
Page 45 and 46: increase the number of participatin
Page 47 and 48: when everyone seemed to agree that
Page 49 and 50: The Wisdom of the Crowd Resides in
Page 51 and 52: uption in a sewage utility in a tow
Page 53 and 54: Kingdom respondents dominated, but
Page 55: The other 60 percent? That traffic
Page 59 and 60: New Venues Ethical Values and Quali
Page 61 and 62: Engaging the Public in Asking Why W
Page 63 and 64: could not provide as much of an ont
Page 65 and 66: we launched one of the most ambitio
Page 67 and 68: How Spot.Us Works Spot.Us accepts m
Page 69 and 70: But no one entity—be it a wire se
Page 71 and 72: ceed across platforms without creat
Page 73 and 74: the conversation that evolved on he
Page 75 and 76: ently moves into video, it is incum
Page 77 and 78: Rethinking Video News: The Videojou
Page 79 and 80: can and do record the destruction t
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