Background.

In its 1996 decision State v. Turner the Minnesota Supreme Court conclusively determined that the state’s shield law statute (officially known as the Minnesota Free Flow of Information Act) afforded no protection whatsoever for unpublished materials, but covered only confidential sources. This capped a three-year slide toward the precipice that had begun with a 1993 Minnesota Court of Appeals decision, which had also read the statutory language narrowly. Before that time, no case directly dealing with the application of the shield law to unpublished information – notes, outtakes, a reporter’s knowledge or memory of events – had ever reached the Minnesota appellate courts, even though the statute had been passed in 1973. But over the years, several state trial court judges had concluded that unpublished materials were protected, and so for two decades the privilege in Minnesota was relatively robust. That is why the Supreme Court’s Turner decision was a shock to Minnesota journalists.

The prospect of an ever-increasing number of subpoenas from civil and criminal attorneys was chilling. In response, news organizations and individual journalists from across the state came together, coordinated by the Minnesota Joint Media Committee, and sketched out a legislative campaign. Its goal would be to amend the shield law. Two major obstacles loomed: money, and the Legislature’s perceived coolness toward journalists. The two were closely related because the more difficult and controversial a bill, the more it costs lobbyists and lawyers.

The first obstacle was overcome easily when the Minnesota Newspaper Association, the Star Tribune, and the Minnesota Broadcasters’ Association pledged more that $20,000. The Society of Professional Journalists contributed another $2,000. Attention then turned to hiring a professional lobbyist, as well as deciding on the exact language of amendments to be proposed. The latter issue was tricky. There was concern that asking for too much could cause the whole effort to fail.

Early in the fall of 1997, the Joint Media Committee (JMC) chose Bob Hentges to lead the lobbying effort. Mr. Hentges had many years of experience at the Capitol, was widely respected, and had once been a reporter himself. Through the fall, the JMC met regularly to coordinate the campaign. Sen. Dick Cohen and Rep. Matt Entenza (both DFL-ST. Paul) agreed to sign on as chief authors of the legislation. Rep. Entenza replaced Rep. Bill Macklin (R–Lakeville), who had introduced a preliminary version of the bill very late in the 1997 session, mainly to call attention to the problem. Rep. Macklin graciously agreed to Rep. Entenza’s substitution, recognizing that the chances for success would increase greatly if the principal House author were a member of the majority party.

Although early in the discussion about the bill, it had seemed best to use the "half a loaf" approach, out of concern that an extreme position would diminish the prospects for passage, the JMC eventually decided that the principle represented by the shield law was too important to be compromised voluntarily. As a result, the amendments introduced in the 1998 session were very aggressive, stating clearly that the privilege covered all unpublished information, and that it could be defeated only if the party seeking the information demonstrated compelling reasons.

Through the fall of 1997, a group of journalists, lobbyists, and media attorneys met with as many leading legislators as possible, attempting to explain the reasons why a strong shield law was good not only for news organizations but for the public as well. At these meetings, the regular media representatives were Bob Hentges, SPJ president Rick Kupchella, and MNA attorney Mark Anfinson. A number of others also helped periodically, including media attorney John Borger and Star Tribune reporter Bob Franklin.

As one meeting after another concluded, an unexpected and almost remarkable pattern began to emerge. Nearly all of the legislators listened to the media representatives and agreed to support the bill. In fact, many were enthusiastic. At first, this caused skepticism – media representatives thought they might be missing something. However, as the number of legislative supporters continued to grow, far outnumbering the opponents, the prospects for the bill started to appear much stronger than originally predicted. By the time the 1998 session began in February, a great deal of groundwork had been laid through the meetings with legislators. Sen. Cohen and Rep. Entenza also worked at persuading their colleagues of the value of the bill.

On the second day of the session, the Senate Judiciary Committee held a hearing on the bill – its first public test. For nearly two hours the Committee debated the legislation. Several objections were raised, and the critics tried to amend the bill. But Sen. Allen Spear (DFL– Minneapolis) offered an eloquent explanation of its importance. With that the opposition evaporated, and the Committee approved the bill unanimously. A few days later, it reached the Senate floor. As he had done in the Judiciary committee, Sen. Cohen ably presented the reasons supporting it, and on a vote of 67-0, the Senate approved the bill – a result that had been completely unimaginable only a few months earlier.

Over the next several weeks, efforts focused in the House. Unexpectedly, Speaker Carruthers, who in previous sessions had been a stalwart media supporter, raised concerns that the bill went too far. He may have been influenced by his service in private life as a prosecutor, whose subpoenas the bill was in part aimed at thwarting. However, Rep. Entenza persisted, and eventually the Speaker accepted a few minor changes and agreed the bill could move forward.

All along, supporters said that the House would present the biggest challenge, and media representatives made intense efforts to get the bill through the House Judiciary Committee, which approved it in late March. By this stage of the session, Sandy Neren, long-time chief lobbyist for MNA, had also become part of the campaign. In early April, the bill finally reached the House floor, and although there was some suspense as amendments were attempted, when the vote was taken it favored the bill 123-6.

Then the legislation went to Gov. Ame Carlson’s desk. The Governor’s dislike for many members of the media was well known, and a veto was definitely a possibility. But after sitting on the bill for three days of building anxiety, Gov. Carlson allowed it to become law on April 6. He issued a petulant statement denouncing media irresponsibility, but the result was the same. The overwhelming House and Senate majorities had been too great to give a veto credibility. Minnesota again had one of the strongest shield laws in the nation.

The answer is not entirely clear. To a far greater degree than anticipated, however, the legislators accepted the argument that a weak reporter’s privilege can greatly diminish the amount of important information the public receives. Legislators also appreciated the fact that working reporters had showed up to make their case. And money was a big factor – the total cost to media organizations exceeded $40,000. The experience shows how the media can achieve good results on major items brought before legislative bodies.

Cases throughout the 1990s, such as the Minnesota Daily case, State v. Knutson, which was resolved in January, 1996,* demonstrated Minnesota courts’ increasing willingness to narrowly interpret the shield law as it stood, even though journalists thought that the protection outlined in the law extended to their unpublished notes and photos. Minnesota media organizations such as the Society of Professional Journalists and the Minnesota Newspaper Association worked tirelessly to educate the legislature about the importance of this protection and should be commended for their dedication.

The most important change comes in section 595.023. This section was amended to protect unpublished information "whether or not" it would identify a source, although exceptions are allowed if that information is clearly relevant and cannot be obtained elsewhere, and if there exists a compelling and overriding interest requiring disclosure. This addendum is intended to protect journalists from subpoenas for unpublished material.

So how might this change affect working journalists in Minnesota? Bob Franklin, reporter for the Minneapolis Star Tribune and SPJ Freedom of Information Act director, said that the new shield law will actually help reporters avoid having to make sweeping modifications in the way they do their jobs. The change to the shield law "will avoid prompting journalists to make large changes in the way they do their day-to-day work," Mr. Franklin said. "And it will prevent some of the non-day-to-day experiences of being hauled into court to testify."

However, Kate Parry, senior editor for Enterprise, Investigations and Politics at the St. Paul Pioneer Press, said that the shield law alteration will result in changes in newsrooms precisely because subpoenas will be reduced. She noted that subpoenas for journalists’ unpublished information occur with increasing frequency and are a serious drain on newsroom resources. This law will help reduce the number of subpoenas and thus prevent the huge diversion of staff time and money. And although journalists try to source on the record as often as possible, "the law protects our ability to do that digging-deep journalism that’s got risks associated with it – we need to assure sources that we can keep their anonymity shielded within the scope of the law," Ms. Parry said. This change will help journalists do that when necessary and reduce the amount of time and resources needed to answer subpoenas, she added.

From a legal perspective, media attorney Paul Hannah claimed that the change will reduce the number of subpoenas in civil cases. (Journalists might still have to answer subpoenas in criminal cases if the relevance issue is met). "First, journalists covering contentious issues won’t be dragged into the middle of them because of what they’ve written," Mr. Hannah said, "Second, the law will benefit small and large community newspapers because there will be a marked decrease in the number of lawyers trying to use journalists to provide elements of their cases."

In her 1996 masters’ thesis, former Minnesota Daily editor-in-chief Michele Ames wrote about the dangers associated with the courts’ interpretations of Minnesota’s shield law: "If the trend toward increasing news media involvement as information providers in the court system is not halted...news organizations may find themselves more tentative in covering events likely to place them in the line of fire for subpoenas." The protection of unpublished materials made explicit in the Minnesota Free Flow of Information Act is one step closer to the goal of ensuring that journalists can conduct investigations without fear of courts requiring them to act as an arm of law enforcement through the subpoena process.

GENELLE BELMAS

Silha Research Fellow

In his new book Good News, Bad News: Journalism Ethics and the Public Interest (Westview Press, 179 pp., $55 cloth, $17.50 paper), Jeremy Iggers argues that journalism’s "institutionalized conversation" about ethics avoids confronting crucial issues facing today’s media, including their public interest and civic responsibilities. Bulletin Editor Jack Breslin interviewed Mr. Iggers about his book and views on the current state of journalism ethics. This article is an excerpt from that interview. Mr. Iggers earned his doctoral degree in philosophy from the University of Minnesota and is currently a staff writer at the Minneapolis Star Tribune.

Silha Bulletin (SB): Good News, Bad News – that’s an interesting title. What’s the good news in today’s journalism, especially about ethics, and what’s the bad news?

Jeremy Iggers (JI): That’s a good question. Part of what it’s saying is that sometimes the good news is the bad news. Sometimes the emphasis on good news, or on giving people the kind of news they want to hear, is bad news, because it’s failing to give people what they need to know. On another level, good news is news that is presented to people in a way that’s useful for them – news that they act on. And bad news is sort of the news that sensationalizes or panders.

SB: In your book, you mention that sometimes today’s media are a little too passive in getting people to become good citizens. What can we do to fix that?

JI: The first thing that the media can do to fix that is to recognize that the world has changed. Newspapers always operated as part of a system where you first read the newspaper, and then you’d go to the local cafe and talk about what you’d read with your neighbors. People’s lives have changed and so newspapers have to respond to that by creating environments where people can talk about the newspaper, and creating new kinds of forums. They may be electronic forums where people can process the information. Putting out the information is only one part of the process. The next part is people sharing information and talking about what needs to be done. That’s where there aren’t as many opportunities as there once were.

SB: You talk about providing information and the conflict between serving the customer and serving the readers. Is there a happy medium?

JI: Oh, sure. Journalists have always had to strike the balance between telling people what they need to know and telling people what they want to hear. Again, especially in broadcast, we still do a surprisingly good job a lot of the time, at least at this newspaper [Star Tribune]. In broadcast especially that balance has been totally lost. It has kept shifting, sort of like a seesaw, a little bit more year after year. Lately, the balance has gotten almost completely lost.

SB: You mention the social responsibility theory, which deals with journalism’s role in fostering democracy. How can you get journalists, particularly management, concerned about social responsibility and issues such as quality, giving more access, or corporate ownership changes?

JI: It’s hard because people have to believe that it’s in their bottom-line interest. It’s very clear that quality journalism is in the long-term, bottom-line interest of newspaper and maintaining a loyal readership to cultivate the next generation of newspaper readers. The long-term [interest] is more important than grabbing them today. What’s unfortunate is that a lot of owners, especially in television, feel that they can’t think about the long term. Unless they keep ratings up this quarter, this sweeps period, they’re not going to be around next year to worry about next year or the next generation.

SB: What has to be done to get this generation to become newspaper readers? Or are newspapers going to so radically change in the next 20 years that the newspaper as we know it now may no longer exist?

JI: The real future of the newspaper depends on whether people perceive it as something that’s useful in their lives, that improves their quality of life, not just by entertaining them, but by helping them to achieve their goals. The other part is that newspapers have a particular niche. A newspaper is a mass medium, and unless it addresses its readers as members of a large community, it can’t compete against the publication which addresses them as members of a small community.

SB: Are you saying that traditional journalism dying? If it is, what can we do to revive it?

JI: There are still a lot of people out there who are very interested in creating lines of communication between people in a community. Unfortunately, they’re not often the owners of broadcast licenses or of large metropolitan newspapers. They’re often people who own community newspapers. That’s where some of the best journalism is going on. If journalism is in trouble, it’s because people no longer think of themselves as citizens. The media has had a lot to do with that because they no longer address their audience as citizens; they address them as consumers. The way to reinvigorate journalism is to use the media to reinvigorate people – give them sense of themselves as citizens. That sounds like really dry, boring civics class stuff. But there are lots of things which newspapers can do that are innovative, creative and fun, which can revive a sense of citizenship.

SB: Is public/civic journalism part of the answer?

JI: I think so. That term gets used in so many different ways. It’s misused, abused, and defined in so many different ways that it’s tricky to say that. One definition of public journalism, I think [New York University professor] Jay Rosen’s definition is that it’s journalism that is motivated by a concern for the vitality of public life. That’s a good definition of public journalism. All journalists should be motivated by that concern and see that they have a role to play in insuring that vitality.

The issue of online pornography has been talked to death. Obviously, we all want to protect children from exposure to lewd images on the Internet. At the same time, we want to preserve online freedom of speech. On a larger scale, nation-states are concerned with the protection of public morals in their jurisdictions – an almost impossible task in the border-free cyberspace environment. In legal battles between online freedom and online control, cyberporn serves the values of free speech very poorly. It creates bad judicial precedent.

An immediate objection to this statement is the case of Reno v. ACLU, 117 S. Ct. 2329 (1997), where the Supreme Court declared unconstitutional the government’s attempt to regulate indecent speech online. However, many free-speech battles are fought in other legal arenas, such as copyright, privacy, and cases involving the liability of Internet service providers. There, courts often use a balancing approach, which is, by definition, very subjective. Moreover, copyright litigation is not content-neutral. This creates the possibility that judges who preside over cases involving online pornography may feel that the material at issue does not deserve protection. As copyright expert Niva Elkin-Koren noted, "Providing a forum for exchanging sexually explicit materials... may be perceived by some as worthless." Thus, subjective decisions in particular cases may create a line of judicial precedents unfavorable to the principle of the online freedom of speech.

Judicial alarm bells first rang when it turned out that the principle of "community standards" did not apply in the world of the Internet. This principle helped courts avoid uniformity in their definition of "obscenity" by considering the standards of local communities. However, in the landmark case of United States v. Thomas, 74 F.3d 701 (6^th Cir. 1996), the federal district court in Tennessee obtained jurisdiction over California residents who operated an adult computer bulletin board from their home. A San Francisco couple was brought to trial in Memphis on obscenity charges and subsequently convicted. This case illustrates how communities with stricter speech regulation can dictate what is allowable on computers in other jurisdictions.

On an international scale, a similar case occurred in 1995 in Munich, Germany, where Bavarian police raided a local CompuServe office and forced the network to shut down online access to more than 200 allegedly pornographic sites. Among the closed sites were ones devoted to the culture of sexual minorities – sites not deemed illegal by many countries. This incident prompted Floyd Abrams, former counsel to the New York Times in the Pentagon Papers case, to conclude that in the future countries that afford less protection to the freedom of speech may be "the ones that really rule in terms of what is ultimately posted or carried at all by other forms of media." This rationale may apply not only to online pornography, but to hate speech and political debates as well.

For many citizens of totalitarian regimes, the only way to express their beliefs in political discussions is to seek privacy in the online forum. Many political dissidents, abuse victims, and recovering alcoholics turn to the services of anonymous remailers. These services strip all identification from e–mail messages and forward them to their intended destinations anonymously. However, anonymity is also sought by people with much less laudable motives – namely, online pornographers.

Consequently, law enforcement agencies seek to curb services of anonymous remailers in an effort to expose child pornographers on the Internet. For example, in the fall of 1996, Penet, a popular free-of-charge remailer service maintained by a Finnish volunteer, closed after the London Observer accused it of facilitating online communication among pornographers. The Internet community termed the service’s demise "a sad day for the Net," because it took away "a certain free-wheeling spirit." Online privacy helps to ensure free online discussions.

Cyber-freedoms depend largely on entities that provide users with online access – namely, Internet service providers (ISPs) and operators of bulletin board services (BBSs). Companies such as Netscape and Microsoft take on "the color of the state" by monopolizing Internet access service and regulating online activities. If courts hold ISPs and BBS operators directly responsible for illegal activities of their users, the latter may start censoring online speech in fear of costly litigation.

However, when it comes to cases involving explicit adult–oriented material, the heavy aura of moral wrongdoing that is often present around them could sway the opinion of any reasonable person, including a judge. Just put yourself in the shoes of a Texas federal judge presiding over the case Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F. Supp. 1171 (N.D.Tex. 1997). Playboy sued operators of the adult-oriented "Neptics" site for reproduction, distribution and display of its copyrighted images. However, just weeks prior to the trial, all "Neptics" equipment was seized by police on charges of child pornography. Knowing this fact, which has little to do with the copyright litigation at issue, could you stay completely impartial? The Texas court found the site operators directly and vicariously liable for unauthorized use of Playboy images.

In its decision, the Webbworld court relied on another case involving display of adult-oriented images, Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fla. 1993). The Frena case was one of the first cases involving liability of BES operators for illegal activities of their users. It dealt with the unauthorized display of nearly 170 adult images from Playboy and Playmate publications by a private BBS. The federal district court in Florida found the BBS operator, George Frena, directly responsible for the acts of his subscribers despite the fact that Frena claimed he was unaware of any illegal conduct on his network.

This case had two major consequences. First, it set a troublesome precedent: ISPs can be held directly liable for illegal acts of their users. Since then, the Frena decision has been cited by most of the courts dealing with the issue of ISP liability. Among those cases are Central Point Software v. Nugent, 903 F.Supp. 1057 (E.D. Tex. 1995), Sega Enterprises v. Sabella, US Dist. LEXIS 20470 (N.D.Cal. 1996) and Marobie-FL, Inc. v. NAFED, US Dist. LEXIS 18764 (N.D. Illinois 1997). Thus, the Frena rationale extended to other materials, such as computer clip art and electronic video games.

Second, George Frena set the example for ISPs when, upon Playboy’s notification, he voluntarily took from the network all allegedly infringing images. Soon thereafter, courts developed a standard holding ISPs liable for activities of their users if they "know or have reason to know" about infringing acts. Usually; this requirement can be satisfied by notifying the online providers of allegedly infringing conduct on their network. However, what appears to be a copyright infringement may very well be a fair use. Determining what are fair and unfair uses of someone’s work is a complex process involving careful balancing of multiple factors. ISPs may not be reasonably expected to know the nuances of copyright law, and come to a sound conclusion in each case whether a certain use qualifies for a fair-use exemption. As a result, another limitation on the freedom of communication has emerged – only now by private online service companies and not by government.

When defending speech "extremes," such as pornography on the Internet, we should remember that there is much at stake. The judicial precedents from cases involving pornography will apply in the future to other materials, more "worthy" of First Amendment protection.

IRINA DMITRIEVA

SJMC Masters Student