Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can address your legal questions to him at goldberg@fhhlaw.com and he will answer them in a later issue.

Update: Legislation ASNE is watching in the 111th Congress

HOW WILL ASNE'S LEGISLATIVE PRIORITIES change with a new president and a new Congress?

A: The priorities are unlikely to change. ASNE's first priority is — nothing new here — the Free Flow of Information Act. There are other important issues, but they pale in comparison to bringing a federal shield law to fruition. Here's a bit on each of ASNE's top legislative priorities for 2009.

The Free Flow of Information Act

We came very close to getting a federal reporter's privilege during the 110th Congress and hope that even the slight changes in congressional composition are enough to put us over the top. The House and Senate each have reintroduced their versions of this legislation. The ASNE Web site, member alerts and electronic newsletter provide ample information on each version and the differences between them.

ASNE's modus operandi for 2009 will not change: We will explain to Congress that a shield law is not a handout to the press, but a key newsgathering protection that benefits the public by allowing reporters to cultivate and protect information on matters of public concern. ASNE's work remains crucial to this effort, resulting in e-mails from more than 70 other media organizations and companies in our “shield law coalition,” often after contact from a congressional staffer who has reacted favorably to an editorial.

We believe we have the votes to get HR 985 through the House (the identical HR 2102 passed by 398-21 in the 110th Congress). The House Judiciary Committee passed the bill March 25 on a voice vote, which clears HR 985 for a vote by the full House. We also hope that we now have more than 60 votes in support of S 448, the current version of last year's Senate bill (S 2035). President Obama signed on as a co-sponsor of S 2035 in the 110th Congress (shortly after speaking at the joint ASNE/NAA Convention in April). Attorney General Eric Holder has indicated support for a shield law as well.

If the bills pass, we will need to resolve the differences between them, which may not be as easy as it sounds. But that's the job for those of us in Washington. Yours is to continue to express your support in any way you feel comfortable.

Creation of the Office of Government Information Services

One of ASNE's earlier priorities was accomplished when the Open Government Act was signed into law in 2007. Several of that law's amendments to the Freedom of Information Act have already been implemented. But there is still work to do in activating a new “Office of Government Information Services” within the National Archives. We are attempting to ensure that the office is funded in fiscal year 2009 to an extent that it can fulfill its legislative mandate. Things are looking good, as the preliminary budget has allocated $1 million to OGIS. ASNE and other members of Sunshine in Government Initiative have suggested activities and responsibilities geared to promoting and coordinating open government among agencies and assisting the public in actually receiving requested records.

Free Speech Protection Act

This bill culminates years of litigation and legislation over the book “Funding Evil: How Terrorism is Financed — and How to Stop It,” by Rachel Ehrenfeld, which alleged that a Saudi Arabian billionaire named Khalid Salim a Bin Mahfouz funded terrorist activities. It was only published in the United States, but copies were bought in England via the Internet, leading Bin Mahfouz to bring suit under plaintiff-friendly defamation laws there. Rather than defend herself overseas, Ehrenfeld preemptively sued in U.S. District Court to prevent Bin Mahfouz from enforcing the foreign judgment here. Both the District Court and the U.S. Court of Appeals ruled that U.S. courts have no jurisdiction over a foreign national with no real contacts in the United States (ASNE joined an amicus effort supporting Dr. Ehrenfeld).

The state of New York passed legislation granting future authors in Ehrenfeld's situation jurisdiction to bring similar lawsuits in New York courts. Then opponents of “libel tourism” (a name given to the tactic of filing defamation lawsuits in a countries with decreased protections for free speech) took the fight to the federal arena. Three bills were introduced in the 110th Congress:

• Two were identical (S 2977 and HR 5814) and offered any U.S. citizen sued for defamation in a foreign court on the basis of content published in the U.S. the right to preemptively file in a U.S. court to obtain an order barring enforcement of the foreign judgment and their own judgment equal to the amount of the foreign judgment, plus any costs, attorneys' fees and harm caused. These damages can be tripled if the U.S. citizen can show that the foreign plaintiff has filed such suits as part of a scheme to suppress First Amendment rights by discouraging the publication of an author's work.
• A third bill (HR 6146) simply prohibited any state or federal court from recognizing or enforcing a foreign judgment about a public official or public figure plaintiff unless the foreign judgment is consistent with the First Amendment.

The Subcommittee on Commercial and Administrative Law of the House Judiciary Committee held a hearing on this topic in February. Sen. Arlen Specter, D-Pa., introduced S 449 the next day. It is identical to S 2977; similar legislation is expected in the House. ASNE supports the concept behind S 449, but worries that it overreaches, making it both potentially unconstitutional and a source for retribution by foreign countries that extend the reach of their dangerous laws, resulting in increased risk to U.S. citizens.

Fallen Heroes Commemoration Act

This is a response by Rep. Walter Jones, R-N.C., to the longstanding policy of restricting media access to military funerals, even where the families of the deceased are amenable to such coverage. Jones introduced HR 6662 in 2008. The bill would have granted access to both repatriation ceremonies and funerals. Introduced late in the 110th Congress, the bill did not gain much traction. Jones reintroduced his bill as HR 269, though this version only allows access to repatriation ceremonies. ASNE once again sent a letter to Jones expressing support, but also requesting that the bill be amended to its 2008 version, providing full access to all commemoration ceremonies. It remains to be seen whether this legislation will move forward now that Secretary of Defense Robert Gates has said that there will be media access to repatriation.

Federal Anti-SLAPP legislation

The most recent activity is ASNE's expressed support for a federal anti-SLAPP law. This type of legislation combats lawsuits that are filed in an attempt to prevent people from speaking out on an issue of public concern ("SLAPP"="Strategic Lawsuit Against Public Participation"). There's often no real case behind a SLAPP suit; it seeks to stifle criticism by tying up the critic in expensive and time-consuming litigation.

Anti-SLAPP statutes provide for expedited resolution of SLAPP cases, which allows a defendant to stop the discovery process while the motion to dismiss is pending and a greater likelihood of recovering sanctions when victorious against a frivolous suit. There is often the possibility of a fast-tracked appeal as well. Newspapers face fewer SLAPP actions than private citizens, but they have and will continue to benefit from anti-SLAPP statutes.

Twenty-eight states currently have anti-SLAPP statutes, but there is no uniformity among the state laws. We have only begun to explore the possibility of a federal anti-SLAPP statute that would allow the defendant in a SLAPP-type action to move the case to federal court and expedite the case to prevent it from taking a large financial and emotional toll.

So the new year clearly brings new but welcome challenges. While we are happy to be move forward, rather than defend, against constant attacks on newsgathering and publication, we are mindful that new threats always lurk around the corner and will continue to stay ahead of any proposed restrictions to a free press. We seek your input and help on these and all of our First Amendment and Freedom of Information efforts. *