Shield Laws

Blogger and Maryland Police Chief Settle Defamation Lawsuit

Sam Bayard — Mon, 04 Aug 2008 10:41:31 -0400

Last week, Salisbury, Maryland Police Chief Allan Webster and Joe Albero, operator of the Salisbury News blog, reached a settlement in Webster's defamation and false light lawsuit, just hours before the case was scheduled for trial. Albero reported on his blog that no money exchanged hands under the settlement, but the precise terms are not public.

Webster filed the lawsuit in May 2007 after Albero, who often takes local politicians to task, criticized Webster and posted information about him on the Salisbury News. The dispute revolved in part around Albero's posting of a third-party, anonymous letter addressed to Salisbury City Council Members, which expressed negative views about Webster.

In a pre-trial memorandum, Albero argued that he should not be compelled to disclose his source for the letter. He argued that the identity of the source was not relevant to the case, that Maryland's shield law protected him from having to identify his source, and that section 230 of the Communications Decency Act (CDA 230) immunized him from liability for posting the letter.

In April, a Maryland state court judge ruled that Albero could not take advantage of Maryland's shield law, which applies to individuals who are "employed" by the "news media" (which is defined as including any "electronic means of disseminating news and information to the public"). The court's rationale appears to have been that Albero is not "employed" by his bog, which hosts no advertising, because he does not earn revenue from it, but we haven't obtained a transcript of the oral ruling. The court decided on other grounds that Albero need not reveal the identity of his source.

For more information on the case, please see our database entry, Webster v. Albero. Hat tip to the Reporters Committee.

Citizen Journalist Invokes Oregon Shield Law to Fight Subpoena

Arthur Bright — Wed, 16 Jul 2008 17:20:43 -0400

Does Oregon's reporter shield law apply to an independent journalist who publishes online? That question looks set to be answered, thanks to the refusal of Tim Lewis to comply with a grand jury subpoena for his video of a May 30, 2008, demonstration in Eugene, Oregon, where police tasered an 18-year-old protester.

While covering the anti-pesticide protest for his YouTube channel Picture Eugene, Lewis filmed part of the police's arrest of Ian Van Ornum, a protester from the University of Oregon. According to The Register-Guard, a Eugene newspaper:

Lewis said he tried to begin recording when uniformed officers first approached Van Ornum. But he didn’t realize that he had previously protected the tape in his camera from being recorded over.

Lewis said he wasn’t able to slip in a new tape until after a Eugene officer used a Taser stun gun to subdue Van Ornum. Scenes of the teen laying on the ground while handcuffed are included in footage Lewis posted online on YouTube.

The Lane County District Attorney's office convened a grand jury to investigate whether Van Ornum should face criminal charges and subpoenaed Lewis for his video of the incident, including both the portion he published and any unpublished material. But Lewis, a self-described independent journalist and "a fixture in the Lane County anarchist/activist community" according to the Register-Guard, refused, claiming that Oregon's shield law protects him from compelled disclosure of his newsgathering materials. He told the Register-Guard, "I don’t have a whole bunch [on the tape] that would interest them. . . . But I can’t set a precedent by giving it to them."

In fact, Lewis's stance may set a precedent by not giving it to them. While Oregon's shield law is strong and offers nearly absolute protection to reporters, the courts have not yet applied it to bloggers and other online, independent journalists. Comments from Lane County District Attorney Doug Harcleroad suggest that he doesn't believe Lewis is protected by the law. Harcleroad told Eugune's KVAL: "We don't know the facts around whatever he does . . . . I don't know whether he's a journalist or not. We haven't actually looked at the law on that in any great detail."

Interestingly, Harcleroad stated eight years ago that Lewis was a journalist, according to The Register-Guard. In 1999, Lewis was arrested for disorderly conduct and interfering with an officer while he was filming at another protest for a cable access show. The state dismissed charges against Lewis, however, because "there were some problems" with charging him, according to a statement by Harcleroad in a February 2000 article in The Register-Guard. Elaborating at the time, Harcleroad added that "Mr. Lewis is a reporter, and he was reporting."

In any event, whether the label "reporter" applies to Lewis does not determine the outcome of the legal question. Oregon's shield law, Or. Rev. Stat. § 44.520, extends beyond the usual boundaries of professional reporting to protect all acts of reporting. Thus, what matters is whether Lewis's activities fall within the statute.

According to section 44.520(1)(b), "No person connected with, employed by or engaged in any medium of communication to the public" can be forced by the government to surrender unpublished material obtained and prepared "in the course of gathering, receiving or processing information for any medium of communication to the public." Thus, Lewis will have to show that (1) he is "connected with, employed by or engaged in" a "medium of communication," and (2) he obtained or prepared the unpublished portions of his video in the course of gathering or processing information for that medium.

Regarding "medium of communication," section 44.510 (2) states that the term "has its ordinary meaning" and "includes, but is not limited to" (emphasis added) a variety of media types, including newspapers, magazines, television broadcasters, and the like. YouTube would seem to be a "medium of communication" under the term's ordinary meaning. It is, after all, a means of disseminating video information to the public at large.

But is Lewis "connected with, employed by or engaged in" YouTube? Being "employed by" a medium is the most traditional relationship a reporter may have with a medium, but Lewis clearly was not "employed by" YouTube. "Engaged in" arguably describes a less formal financial relationship, like that a freelancer might have with a newspaper, but again, such a relationship didn't exist between Lewis and YouTube. So we're left with the broadest, least formal category: "connected with." It certainly seems feasible to describe Lewis as "connected with" YouTube. He produces videos which he uploads to the site, where he has his own channel. So Lewis ought to be able to show that he is "connected to" YouTube.

Satisfying the second aspect of 44.520(1)(b), that the unpublished portion of Lewis's video was prepared or obtained in the course of gathering, receiving or processing information for a medium of communication to the public, should be simple, as Lewis shot the video in anticipation of communicating it, or parts of it, to the public on his YouTube channel. What's more, the function he performed that day fits the traditional understanding of "newsgathering" -- he was recording information about current events for dissemination to and consumption by the viewing public. So, Lewis appears to satisfy 44.520(1)(b)'s criteria.

The District Attorney isn't apt to be able to offer a viable counterargument. He could say that Lewis was actually part of the protest, rather than gathering news about it, but that doesn't appear to have been the case as a factual matter. The District Attorney might also argue that being "connected with" YouTube requires something more than simple use of the website as a video host; rather, Lewis would have to show something more akin to the sorts of relationships that the other two categories entail. But that also seems unlikely - employment and engagement appear to exhaust the possible financial relationships that one might have with a medium, so the third option must mean something looser. Lewis's status as a YouTube user is a looser one, but still one that connects him with YouTube.

So it would seem that the court should rule for Lewis and quash the subpoena. Were I the judge, my only concern at this point would be that ruling this way might overexpand the shield law. Certainly, it should protect the materials of newsgatherers, but should it protect any kind of video at all that is posted to YouTube? If a college student, in the midst of making yet another Mentos-and-soda YouTube video, should happen to record a crime occuring, is it reasonable for the shield law to prevent law enforcement officials from subpoenaing her evidence? There's no newsgathering activity behind the student's video, but she is arguably "connected to" YouTube in the same way Lewis is, and the crime video was obtained in preparation of her video for publication on YouTube. Thus, she would have the shield law's full protection, despite her situation being a far cry from what the law was intended to protect: newsgathering.

Of course, the court may not worry about the possible overexpansion of the shield law's immunity. But the sorts of media publication available now were unimaginable in 1970s, when the Oregon shield law was largely written, and it seems unlikely that the shield law's authors meant to protect much of the material that users post on YouTube today. As a result, a ruling for Lewis could result in headaches down the line that either the courts or the legislature would have to deal with eventually. Lewis's conduct ought to be protected under the shield law, but the next case may not be so clear.

You can follow further developments about Oregon's subpoena of Lewis in our Legal Threats Database entry: Oregon v. Lewis.

Update: According to The Register-Guard, the District Attorney withdrew the subpoena after Lewis filed his intent to resist it under Oregon's shield law. While good news for Lewis (as he certainly should be protected by the shield law), this does leave the law's applicability to citizen journalists regrettably unresolved.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Hawaii Legislature Passes Shield Bill

Matt C. Sanchez — Thu, 01 May 2008 13:10:13 -0400

The Hawaii legislature passed a reporters' shield bill Tuesday that will protect both traditional and non-traditional journalists from compelled disclosure of their confidential sources and information and materials obtained or prepared during the newsgathering process. In one sense, this shield bill is a positive step forward, as it expressly contemplates that online publishers carrying out journalistic functions will take advantage of its protections. On the other hand, the bill places too many limitations on the ability of non-traditional journalists to invoke its protection.

Section 621(b) of the bill allows anyone to claim the protection afforded to traditional journalists if that individual can show that:

he or she has "regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of tangible or electronic media";
his or her role is similar or identical to that of a journalist or newscaster, taking into account the method of dissemination;
his or her interest in protecting sources and unpublished information is similar to that of a journalist; and
the public interest is best served by affording protection under the circumstances.

The first requirement is troubling because it potentially excludes online publishers who do not devote a substantial amount of time to journalistic activity, but do engage in isolated acts of journalism. Instead of recognizing that the Internet allows anyone to report on issues of public interest at any time, the bill appears to protect only those who act like traditional journalists on a regular basis. The second requirement compounds the problem by requiring that the person seeking protection play a role similar or identical to that of a journalist; this unnecessarily ties protection to a potentially outmoded concept of what a "real journalist" does. All this is unfortunate, given that the version of this bill originally passed in the Hawaii House of Representatives would have protected anyone who engaged in journalistic activities in the situation under dispute.

Like the shield law recently passed in Maine, the statute does not apply if the requested sources or information are necessary to a civil defamation lawsuit or the investigation, prosecution or defense of a felony, but only if all other means have failed to produce the information. The bill also precludes protection when the disclosure is found to be necessary to “prevent serious harm to life or public safety.”

The new shield bill will come into force as soon as Hawaii Governor Linda Lingle signs it into law.

(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)

Maine Enacts State Shield Law

Tuna Chatterjee — Tue, 22 Apr 2008 11:25:37 -0400

Last Friday, Maine enacted a state shield law to protect journalists from disclosing the identity of a confidential source or source material that the journalist obtained or received during the newsgathering process. See 16 Me. Rev. Stat. §61 (click on the "webpage" link under the "Final Disposition" section). However, the law does not give journalists an absolute privilege against disclosing this type of information. A court may order disclosure of covered information if a party seeking disclosure as part of a civil or criminal case can show the following things:

the information is "material and relevant" to the case;
the information is "critical or necessary" to the party's claim or defense;
the information cannot be obtained from "any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights"; and
disclosure satisfies an "overriding public interest.

Unfortunately the law left out language that appeared in an earlier version of the bill (click on the "Bill Text" link), which defined the term "journalist" to include non-traditional journalists and (potentially) other online publishers. The newly enacted law leaves out this definition "to allow the court to determine on a case-by-case basis whether a person claiming the protection from compelled disclosure is eligible for such protection." We'll have to wait for the courts to determine who is entitled to the shield law's protections.

Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation

CMLP Staff — Fri, 11 Apr 2008 16:42:18 -0400

We've been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project's Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech.

Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs, Lisa and Seth Sykes, seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent."

Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents. Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege."

Thankfully, the subpoena has received widespread coverage in the blogosphere (see here, here, and here, to start). But it still highlights the vulnerability many bloggers face because they simply don't have anywhere to turn when they recieve these sorts of legal threats. In fact, the more popular a blogger becomes, the more likely he or she may be the target of a legal threat. As Carolyn Elefant noted:

That Shoemaker felt compelled to intimidate Seidel with a subpoena is, as some bloggers have pointed out, a testament to her blog's influence. Says Law and More's Jane Genova: "Kathleen Seidel's blog "Neurodiversity," which deconstructs autism vaccine litigation, has influence. Why else would those she discusses have issued a subpoena for the documents used for her blog posts?" And Matt Johnston asks, "So what happens when a blogger becomes something of an expert? They get slapped with a subpoena for their research."

While Seidel is opposing this subpoena herself, she doesn't lack for supporters. We're behind you Kathleen. Keep up the fight.

(You can follow further developments in the case in our Legal Threats Database entry: Sykes v. Seidel.)

Highlights from the Legal Guide: Protecting Sources and Source Material

CMLP Staff — Tue, 18 Mar 2008 12:17:58 -0400

This is the sixth in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we began publishing in January. This past month, we rolled out the sections on Newsgathering and Privacy, which address the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information.

In this post, we highlight the section on Protecting Sources and Source Material, which discusses the legal challenges in maintaining the confidentiality of sources and source material and outlines the federal and state laws that may protect you from forced disclosure of your newsgathering materials. We also provide several practical tips for protecting your sources and source material.

Protecting Sources and Source Material

The ability to protect your sources and newsgathering materials is often critical to your being able to gather information and inform the public. In the course of assembling information for an article, post, podcast, or other work, you may obtain information that, for a number of reasons, you do not wish to make available to the public.

Ironically, confidentiality may be an essential part of bringing information to the public's attention because as a publisher, you may only be able to gather the information if you promise not to reveal the information's source. For example, reporting that involves the criticism of government and exposure of government and corporate wrongdoing often depends on the use of confidential sources.

Fortunately, the law provides tools with which to protect the information you obtain. Absent some kind of legal protection, a journalist or other individual gathering information for dissemination to the pubic may be compelled to identify his or her sources and produce documents in court and other governmental proceedings. Journalists and other citizens reporting the news have been asserting their right to keep their sources and materials confidential for longer than the United States has been an independent nation. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources.

These legal protections are vital to the free flow of information in society. If reporters (and we use that term broadly here) are seen merely as an investigative arm of the government, individuals with information of great public concern may be afraid to share that information. As a result, the public may be deprived of information of critical importance to the proper functioning of our society and our democratic form of government.

The following sections address the legal challenges facing online publishers in maintaining the confidentiality of sources and source material and discusses the federal and state laws that may protect them from forced disclosure of this information.

Promising Confidentiality to Your Sources: In this section, we explain when promises of confidentiality made to sources are legally binding.

Legal Challenges to Protecting Confidentiality and Source Material: In this section, we address the legal methods by which others can demand information and other newsgathering materials from you.

Legal Protections for Sources and Source Material: In this section, we outline the legal protections that you can use to protect your information from legal demands.

Practical Tips for Protecting Your Sources and Source Material: In this section, we provide practical tips on how to protect your sources and other materials collected in the course of newsgathering activities.

State Law: Legal Protections for Sources and Source Material: In this section, we provide state-specific information about protecting sources and source material for the fifteen most populous U.S. states and the District of Columbia.

Practical Tips for Protecting Your Sources and Source Material

When you gather and publish information, it may be important to you to protect the confidentiality of your sources or source material. You may not wish for your sources' identities to be revealed, and you may not want all of the information you have gathered to be public. Here are some practical tips for you to consider when seeking to protect your newsgathering information:

Be judicious about promising confidentiality: Promising confidentiality to your sources can provide benefits to you and your sources, but you should only offer it after you have carefully weighed the benefits and drawbacks. Review the section of this guide on Promising Confidentiality to Your Sources before making a decision. If your source demands confidentiality and your reporting requires the source, make sure you intend to maintain confidentiality if you agree. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you break your promise.

Keep secrets secret: Once you have obtained information from a confidential source, keep the source's identity secret. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. As a practical matter, the more people who know the information, the more likely it is to be revealed. Moreover, if you reveal some information about your source's identity, you may be precluded from protecting the information in the future.

Research whether you can assert a "journalistic privilege" to protect your sources and unpublished information: Many states offer protection for "journalists" who receive subpoenas requesting this information. These privileges arise from a number of different sources of law, including shield laws passed by state legislatures, the U.S. Constitution and state constitutions, and the common law. Check the Legal Protections for Sources and Source Material section of this guide before revealing any information about your sources.

Consider where you publish your work: Where you publish your work can have an impact on your ability to protect your sources and newsgathering information. For instance, in some states you can only invoke the privilege to protect your sources if you publish in traditional print or broadcast media. In other states, you need only publish through an entity that regularly distributes news. See the Legal Protections for Sources and Source Material section of this guide for more information.

CMLP Joins Other Media Organizations to Oppose Contempt Order Against Journalist in Anthrax Case

David Ardia — Wed, 12 Mar 2008 10:49:07 -0400

Earlier this week, the Citizen Media Law Project joined 28 of the country's leading news organizations, press associations, and nonprofits dedicated to preserving free speech rights in filing a brief in the United States Court of Appeals for the District of Columbia Circuit opposing the contempt citation issued against Toni Locy, a former reporter for USA Today. Locy, who wrote several articles back in 2003 about the FBI's investigation into the mailing of anthrax tainted letters, was one of five reporters Steven Hatfill subpoenaed while trying to uncover the anonymous government sources who had identified him as a "person of interest" in the investigation into the 2001 anthrax attacks.

On March 7, 2008, U.S. District Court Judge Reggie Walton issued an order holding Locy in contempt for refusing to reveal her confidential sources, ordering her to pay fines of $500 a day for seven days, $1,000 a day for the following seven days, and $5,000 a day for the seven days after that if she refused to comply. Judge Walton then denied Locy's request for a stay pending appeal and ordered that all fines must come out of her own pocket.

Gannett Co., USA Today's parent company, filed a motion for an emergency stay of the contempt citation with the D.C. Circuit on March 10, and the coalition of media companies and nonprofit journalism organizations, including the CMLP, CNN, NBC, New York Times Company and RCFP, filed an amici curiae brief in support of Locy that same day.

So what prompted us to oppose the contempt order and ask the D.C. Circuit to issue a stay pending Locy's appeal?

No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from his or her employer or anyone else. Locy risks personal bankruptcy simply for doing what she believes is right and what many journalists consider to be an essential part of their job: protecting confidential sources.

Locy has stated in a deposition that she can't remember who her specific sources were, so the judge has ordered her to reveal the names of all of the confidential sources she routinely relied upon in the Justice Department.

The fines, which rise to $5,000 a day, are punitive.

This case highlights the need for a federal shield law. I've written several blog posts on this topic arguing that we need a shield law that protects all acts of journalism. The House passed a bill back in October 2007, but a similar bill has been languishing in the Senate ever since.

Yesterday, the D.C. Circuit granted a stay of Judge Walton's contempt order while Locy's lawyers appeal the contempt ruling. The case isn't over, but at least Locy doesn't face the prospect of personal bankruptcy as she exercises her right of appeal.

UPDATE: The Associated Press (via the First Amendment Center) reported today on the D.C. Circuit's decision to issue a stay.

Highlights from the Legal Guide: Choosing a Business Form

CMLP Staff — Tue, 05 Feb 2008 12:22:13 -0500

This is the first in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we'll take up is choosing a business form for online publishing activities. There is increasing awareness that, especially if you publish content in collaboration with others, it may not be smart to simply leave the relationship "natural" or informal. But this realization raises other questions: What are my options? What are the benefits of legal formality? Will it be expensive to obtain these benefits? Will I have to sacrifice control?

Below is an excerpt from the legal guide giving a brief introduction to some of the most commonly adopted business structures and pointing out some of their most salient advantages and disadvantages. This page in the guide is just a jumping-off point for in-depth discussions on each of the business forms that you can find in the guide. In the end, the choice between business forms is a personal one. Our hope is that the legal guide will help you understand the issues and make a better-informed decision.

Choosing a Business Form

Whether you're already publishing material on your website or just getting started, the question of what business structure to operate under is an important one. Depending on whether you work alone or in conjunction with other content creators, you may face hard questions about ownership of assets, management structure, payment of taxes, splitting up of profits (if any), transfer of ownership, and dissolution of your working relationship. Additionally, as we address in detail in other parts of this guide, publishing material online exposes you to the risk of liability for defamation, invasion of privacy, copyright infringement, and other legal claims. What kind of business structure you choose to adopt can have a significant impact on these and other issues.

Before proceeding, a word or two of caution are in order. There is no magic business structure that will make all legal risks and problems go away. Each person or group of people must make the choice based on their goals and personal preferences. What's more, there is a great deal of uncertainty about how old-school business law applies to the online publishing context, so the guidance found here should be taken with a grain of salt.

So what are your options?

Sole Proprietor: You can carry on your online publishing activities, alone or in conjunction with employees, as a "sole proprietor." This form is only appropriate if you contemplate being the only owner of the business. There are some adverse liability consequences of this choice (which we'll discuss), but this form gives you direct control over management of your business and its assets, generally involves less up-front, out-of-pocket cost and hassle than the limited liability entities below, and is generally easier from a tax filing perspective because no separate income tax return is required.

Informal Group: You can carry on your online publishing activities in conjunction with others without a formal agreement or entity structure governing the terms of your relationship. In this case, your legal status is uncertain, and a court might view you and your collaborators as partners, as employers and employees, or as independent contractors. This may feel like the natural form for collaborators to adopt, and it is low on hassle and up-front, out-of-pocket costs, but it has potentially serious negative consequences in terms of liability and tax implications and can lead to major complications in managing and/or dissolving the enterprise. Under this section, we will discuss the usefulness of so-called "co-publishing" or "co-blogging" agreements as a mechanism for bringing some clarity to your group endeavor.

Partnership: You can carry on your online publishing activities in conjunction with others under the auspices of a formal partnership agreement. This choice generally only makes sense if you are carrying on your business for profit. There are some adverse liability consequences of this choice (which we'll discuss), but this form lets you order your group affairs contractually and generally involves less up-front, out-of-pocket cost and hassle than the limited liability entities below. In addition, this form can be advantageous for tax reasons because it allows for pass-through tax treatment (that is, there is generally no entity-level taxation).

Limited Liability Company: You can carry on your online publishing activities, alone or in conjunction with others, as a limited liability company. Limited liability companies (LLCs) offer limited liability for the debts and obligations of the company, with somewhat fewer operating formalities than corporations. LLCs are also advantageous because they combine the potential tax benefits of a partnership with the limited liability of a corporation. That said, they generally involve more up-front, out-of-pocket cost and hassle than getting started as and running a sole proprietorship, informal group, or partnership.

Corporation: You can carry on your online publishing activities, alone or in conjunction with others, as a corporation. Most big, publicly traded companies that are "household names" are corporations. This form of business has the benefit of limited liability, but forming and operating a corporation involves costly and burdensome filing and record-keeping requirements and observation of "corporate formalities." Forming a corporation can also have potentially adverse tax consequences because the corporation is taxed on its income at the entity level and the shareholders are also taxed on any dividends that are distributed (see the section on "double taxation" for information) in the case of a corporation classified under subchapter C of the Internal Revenue Code (a "C Corporation").

Nonprofit Organization: You can carry on your online publishing activities in conjunction with others as a nonprofit corporation. Those who operate a nonprofit corporation enjoy limited liability for the debts and obligations of the organization, and the organization is not subject to income tax on the federal and (usually) the state level. There are important restrictions involved in operating a nonprofit, however, including limits on the purposes of the organization's activities, a ban on personal benefit from those activities, and restrictions on political and lobbying activities, and the process of filing for tax-exempt status can be time consuming in contrast to the obligations imposed on other business forms discussed above. Also, keep in mind that a nonprofit has no owner(s) in the ordinary sense, and therefore creating one involves relinquishing control. In addition, nonprofits have strict dissolution requirements, they cannot pay dividends, and employees can only receive reasonable salaries. Nevertheless, this may be a good option for members of a collaborative venture that does not aim at making a profit, who want increased legal certainty about their status, and to enjoy limited liability and tax benefits.

For a chart synthesizing the major points identified above, please see our Business Form Comparison Chart.

Keep in mind that operating as a business (as opposed to as an individual or as part of an informal group) may provide certain legal and non-legal benefits. For example, operating as a business can give your enterprise an air of legitimacy, which may influence the reception of your work or make it easier for you to raise capital or obtain grants (some granting organizations only give money to qualified 501(c)(3) nonprofit organizations). It may also help you get press credentials.

Importantly, you may have a better argument for inclusion under some state shield laws if you are affiliated with a business, and you may have a better chance of invoking the reporter's privilege to avoid having to testify in a legal proceeding regarding your sources and/or information gathered in the course of your news gathering activities. You can refer to the State Shield Laws page for more information, and we will be dealing with the reporter's privilege in forthcoming sections of this guide.

Reconstructing the Journalists' Privilege

David Ardia — Fri, 11 Jan 2008 14:30:45 -0500

Eric Freedman, a law professor at Hofstra University School of Law, has an article entitled "Reconstructing Journalists' Privilege" coming out in the Cardozo Law Review. The article is part of a symposium issue that includes pieces by an impressive list of scholars, including Anthony Lewis, Max Frankel, Victor Kovner, Joel Gora, and Rodney Smolla.

The abstract of Freedman's article is very intriguing:

In the years since Branzburg v. Hayes, 408 U.S. 665 (1972), judicial protection of journalists' confidential sources has depended upon the case-by-case application of a three-part balancing test.

This qualified privilege approach is unsound in theory and unworkable in practice. Achieving the ultimate goal of enriching public dialogue requires an absolute privilege. This article (part of a symposium issue whose scheduled contributors include Anthony Lewis, Max Frankel, Victor A. Kovner, Joel M. Gora, and Rodney A. Smolla) supports that position with multiple lines of argument that include consideration of the lawyer-client analogy and build upon developments in law, history, journalism and public affairs in the years since Branzburg.

It argues that advocates for a federal shield statute who compromise this core principle in the interests of practicality are likely to do more harm than good. It urges them to return to the position in a favor of an absolute privilege that was taken by the press amici (but not parties) in Branzburg and by the media before Congress at the time.

All public and private mechanisms of accountability depend for their effectiveness upon the availability of information. Those who utilize such mechanisms - including law-makers, business executives who need to know about malfeasance in their organizations sooner rather than later, environmental and consumer advocates, and, yes, prosecutors - should be brought into the coalition of shield law supporters so that the journalistic privilege overcomes its current image as simply a legislative break for a favored industry and the issue is re-placed where it rightly belongs: on the pedestal of public empowerment.

You can download a draft of the entire article from the Social Science Research Network. And keep a lookout for the other articles in the forthcoming symposium issue of the Cardozo Law Review, they are bound to be worth reading.

(Thanks to Christine Corcos at the Media Law Prof Blog for the tip.)

Citizen Media Law Podcast #1: Federal Shield Bill; Co-Blogging and Legal Threats; Phoenix New Times Arrests

Citizen Media Law Podcast — Fri, 26 Oct 2007 09:00:40 -0400

Welcome to the first episode of the Citizen Media Law Podcast, providing practical knowledge and tools for citizen journalists. This week, David Ardia responds to the federal shield bill passed in the U.S. House of Representatives, Colin Rhinesmith talks about legal threats to co-bloggers, and Sam Bayard reflects on the Phoenix New Times arrests.

Download the MP3 (time: 7:00)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

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