[Politech] Clinton Fein on his court experiences as an online journalist [fs]

From: Declan McCullagh (declan@private)
Date: Thu Jan 20 2005 - 10:22:19 PST

-------- Original Message --------
Subject: RE: [Politech] Matt Deatherage, John Gale, bloggers, 
journalists, Armstrong and Apple -- One Debate!
Date: Sun, 16 Jan 2005 13:32:35 -0800
From: Clinton D. Fein <clinton.fein@private>
To: Declan McCullagh <declan@private>

Hi Declan:

It get interesting and interestinger to badly paraphrase Lewis Carroll.

As much as I disagree with John Gale's assessment that reporters, as
distinct from bloggers, restrict themselves to "reporting stories,
viewpoints, and other non-protected insider information," I also
disagree with Matt Deatherage about the fact that the Apple lawsuit and
subpoenas are not *this* debate.

 >From Secretary of Defense, Donald Rumsfeld's outrage when word was
"leaked" that his nifty Office of Strategic Influence was "developing
plans to provide news items, possibly even false ones, to foreign media
organizations" in an effort "to influence public sentiment and policy
makers in both friendly and unfriendly countries," to Robert Novack's
seeming immunity (versus Judith Miller's or Matt Cooper's) relating to
the Valerie Plame fallout, not to mention Armstrong Williams' $240,000
federal propaganda fee, the notion of what constitutes "professional" is
what really is at stake here, as well as what constitutes the "public

Even the attempt by the United States to prevent the New York Times
represented, an "impermissible prior restraint" against publication of
Pentagon Papers even though majority of the Supreme Court justices
believed that publication would probably be harmful to national

Why then, would an Apple "trade-secret" warrant a more egregious First
Amendment violation than a Pentagon produced document with national
security implications?

If one can rely on The New York Sun, the fact that even a First
Amendment icon like Floyd Abrams is considering credential-based First
Amendment protection hierarchy for the press that can only ultimately
determined by a revenue structure, is disappointing and frightening. "If
everybody's entitled to the privilege, nobody will get it," he is
quoted. So which privileged few should get it, one wonders, as did Ethan
Lindsey on Politech.

Armstrong Williams' defense of his illegal and unethical propaganda
scandal is that he is a pundit or commentator, not a journalist. Is
Daily Show's Jon Stewart, as a comedian, entitled to the same First
Amendment protection as Paula Zahn, an actress turned anchor on CNN?

When the University of Houston attempted to subpoena names from me,
without proving that the John Doe in question had committed a crime, I
refused. When they continued, this time at the behest of the United
States, I successfully fought to prevent turning over the anonymous
identity of someone of whom there was no evidence had committed a crime.

The gag order that was imposed along with the subpoena was predicated on
the fact that, although a "publisher" who specifically dealt with these
issues on Annoy.com -- for what it's worth it was the U.S. government in
ApolloMedia v. Reno that first deemed Annoy.com a "journalistic entity"
-- the gag, they posited, was constitutional because I would never have
come across the information had I not been subpoenaed in the criminal
investigation. At the end of the day, that government argument obviously
did not wash with the Fifth Circuit, where the case was ultimately
resolved, and the gag removed.

What would have happened if someone had emailed Think Secret's Nicholas
Ciarelli an Apple trade secret by mistake? Would he be legally compelled
to keep it a secret?

In 1995, the United States Navy attempted to prohibit me from publishing
a 1976 recruiting poster on a CD-ROM based on the book "Conduct
Unbecoming," by investigative journalist Randy Shilts. It was the first
time the publisher of an electronic content mechanism was threatened
with a First Amendment violation. To make my point, I sent the image I
was expressly forbidden to publish to major media outlets, including
Reuters and Associated Press, both of whom published the image, which
appeared on the front page of countless newspapers the following day. In
a letter to the Navy by my attorney, Michael Traynor, he wrote:

"The Supreme Court of the United States has stated emphatically that
'the press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion.' [Lovell
v. Griffin, 303 U.S. 444, 452 (1938)]. As the United States Court of
Appeals for the Ninth Circuit recently held in the context of
investigative reporting, 'The journalist's privilege is designed to
protect investigative reporting, regardless of the medium used to report
the news to the public.'" (I published the image on the CD ROM in spite
of the Navy's threats).

The entire debate, complex and multi-pronged as it is, really boils down
to technological innovation confusing the most basic of premises. A
blog, like a handbill, protest sign, leaflet or media empire is
deserving of the same First Amendment protection, regardless of the
content focus.

For an editorial on this very Politech debate and some frightful
examples of "professional" media blunders, see "A Midwinter Night's
Scream" (http://www.annoy.com/editorials/doc.html?DocumentID=100679 )

Happy New Year!



Clinton Fein
Editor & Publisher
555 Florida Street, #407
San Francisco, CA  94110

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