“Press” vs. Public: Does It Matter? Yes, In The Minnesota House

A showdown is brewing between the Minnesota House of Representatives and nontraditional media regarding who gets to record House proceedings.  And if this goes to court, the case could be groundbreaking for helping to determine who is the “press” and who is the “public,” and does it (or should it) really matter anymore?

Here’s the deal.  The House is assigning authority to its “Sergeant At Arms” to determine who gets to make audio and video recordings anywhere our elected House members do “business.”  This would include not only the House chamber, but also committee rooms, and arguably, I would think, “press conferences” and anyplace an elected House member shows her or his face.

A copy of the “application” is here.  Predicably, it requires applicants to identify their employer, whether they’re a member of a recognized journalism group or association, and the “long-term nature of your assignment.”  In other words, it licenses existing and largely “mainstream” media.  Also, stunningly, it imposes a prior restraint by banning applicants from “videotaping audience members.”

The reason behind all this?  For the “safety and security of all.”  Really?  How in the world does restricting audio and video recordings in a publicly accessible place affect safety and security?

The current and evolving generation of citizens journalists are understandably going nuts over this.  My buddy Jason Barnett at The UpTake is helping to lead the charge.  He talked about it on Channel 4 recently, but at a time when most Minnesotans are either in church, at brunch, or sleeping in.  (Channel 4 video here.)

Consume The UpTake’s coverage and read their take on the issue here.  They’re right on point.

So what precisely are our elected representatives scared of?  It is not at all clear, and the purported concerns over “safety” and “security” are wholly speculative.  Warning: Time and time again, courts have invalidated laws based on speculative fears when, as here, freedom of expression is at issue.

This appears to be yet another attempt by Minnesota officials to restrain expression in the name of keeping order and upholding morals.  These were the reasons behind our Legislature’s nineteenth century ban on newspapers publishing true details of public executions, its World War I-era laws targeted at anti-war protesters, and the horrible Public Nuisance Law of 1925 that authorized the state to shut down “nuisance” newspapers.  Amazingly, it was the Public Nuisance Law and the Minnesota Supreme Court’s refusal to invalidate it that finally led the United States Supreme Court to say in Near v. Minnesota that enough was enough, that the First Amendment applied not only to the federal government but also to the states.

Think our state is a place where everyone is above average when it comes to free expression?  Think again.  Near v. Minnesota is the reason why we have freedom of expression (not just freedom of the press) from coast to coast.  In the words of a Lutheran confirmation student, this is most certainly true.

Is Minnesota on the cusp of another legal revolution, one that would be expensive for state taxpayers?  Stay tuned.

What’s In A Name?

It’s a story that no news editor can resist.

Two Iowans were caught having sex in a Metrodome restroom on Saturday as an intoxicated crowd egged them on and –gasp! – as their significant others stayed in the stands to watch football.  At least, those were the accusations, according to newspaper reports.  Name a better story in the last week!

Speaking of names …

The Star Tribune’s version of the story identified by name the Iowans who had been charged — but not convicted — of a misdemeanor.  The Pioneer Press’ story did not.  Funny, during my earlier years at the Pioneer Press, it was the other way around.  It was our newspaper that had a policy of publishing arrestees’ names, except when we didn’t.  And it was the newspaper across the river that had a policy of not publishing arrestees’ names, except when they did.

Mainstream Media always has struggled with this issue and has never been consistent.  The law is clear:  As long as a newspaper, TV station, or blog for that matter obtains information lawfully, it may publish it.  But should they?  And should there be policies — consistently followed policies — that guide whether to identify people who are arrested but who have not yet been convicted of a crime?

The problem is, even with a rule, there is always an exception.  For example, if a newspaper has credible information that identifying an arrested person in print would put someone’s life in danger, obviously the newspaper will not publish it.  Conversely, if, oh, I don’t know, an Idaho senator is charged but not yet convicted of a crime, obviously a newspaper will publish the name.  And it should.

There is no easy solution, but all media can help address this problem by making it absolutely clear in crime stories what it means to be charged with a crime (i.e., “indicted”) and what it means to be convicted of a crime (i.e., found guilty beyond a reasonable doubt).  And then, in an ideal world, reporters and editors should follow up on stories when an arrested person is exonerated.

For what it’s worth, the Metrodome story is now “moving on the wires” — in other words, is being distributed by the Associated Press.  The Des Moines Register, for one, published that version of the story, which has elicited nearly 100 reader comments.

Strib In The Middle

The proverbial fan blades have been encrusted with a nasty substance in the U.S. Senate race between Norm Coleman, Al Franken, and don’t forget Dean Barkley.  And the state’s largest newspaper is in the middle of it.

First, the latest.  The Star Tribune is reporting this morning that there are now two lawsuits alleging that a close friend of Coleman’s has “used a marine company in Texas” to pay money to the senator through a Minneapolis insurance company where Coleman’s wife works.  There also are signs that Franken, or at least his party, are using the revelations for political gain.  Says a note on the Strib web site:

The Democratic Senate Campaign Committee is running TV ads featuring a Star Tribune reporter questioning Sen. Norm Coleman about a lawsuit noted in this report. The video in the ad was filmed without the knowledge or consent of the Star Tribune.

Says Coleman, in a statement: “Each and every allegation in this lawsuit relating to me and my wife is false and defamatory.”  A spokeswoman further stats that the Strib “is actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Speaking of false and defamatory, Coleman also has filed a complaint with the Minnesota Office of Administrative Hearings alleging that Franken is to be blamed for ads claiming that Coleman is the fourth most corrupt senator in the country and gets too good of a deal on a Capitol Hill apartment.  I cannot find the petition online, but it must have been filed pursuant to Chapter 211B of Minnesota Stautes.  Take a read.

OK, some quick analysis from this journalist turned lawyer, with more to come later as developments warrant.    First, Coleman has an uphill battle if he wants to sue over a lawsuit.  Generally, a litigant can say whatever he wants in a lawsuit.  It is, in legalese, subject to an absolute privilege.  But of course, there are limits to everything, and someday a court might confront this precise issue.

Second, it’s ironic that the Star Tribune is concerned about video of its reporters taken without its “knowledge and consent.”  Newspapers take pictures of persons without their knowledge and consent all the time.  As long as the photos or video are taken on public property and are not used in a way that invades the subject’s privacy, it’s all fair game.

Third, Coleman’s claims.  I could start a blog just to discuss Chapter 211B of Minnesota Statutes and similar federal requirements.  Anyone who values free speech should scrutinize these laws.   And if you do, an intriguing revelation emerges. Chapter 211B makes it a crime –a gross misdemeanor — to actively “participate” in disseminating false campaign information.  Coleman’s spokeswoman says the Strib is “actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Umm.  Stay tuned.

Expect To See Exit Pollsters

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

Larry Craig Case: Not Too Appealing

Joe Kimball has a nice step-back-from-the sensationalism piece on MinnPost about the Larry Craig legal fiasco.  Craig, as any Minnesotan with at least one functioning eye or ear knows all too well, was the Idaho senator who got ensnared in a sex-solicitation sting in a men’s room at MSP airport.

Larry Craig

Craig, you will recall, mailed it in.  His guilty plea, that is.  When he tried to get the trial court to throw out the plea, the media circus at Hennepin County’s satellite courthouse across from Southdale was eclipsed only by the parade of Curious Georges and Georgettes who have made the bathroom next to Royal Zeno’s shoeshine a Minnesota tourist attraction.

This week, Craig’s case came before the Minnesota Court of Appeals.  Joe Kimball was there, along with about 20 other reporters, including one from the New York Times, which published a picture from inside the courtroom of Judge Natalie Hudson asking a question.  (Think cameras aren’t allowed in Minnesota courtrooms?  They are, particularly in appeals courts.)

As Kimball wrote, the media circus had left town, for the simple reason that Craig was not here.  Only non-salacious legal questions were before the court, such as whether a trial judge had to have reviewed the written guilty plea before it was accepted and whether it contained enough information to establish guilt beyond a reasonable doubt.  Boring stuff, when compared with the facts of the case involving wide stances and the claim that Craig had peered into the cop’s restroom stall with such intensity that the officer could see that he had blue eyes.

Even more boring is a fact that has not gotten play in the crush of media reports about this case.  The guilty plea was as much about contract law as criminal law.  We sign stuff all the time — sometimes with a pen when we refinance our houses, sometimes electronically when we click those ubiquitous “I have read and accept the legal terms” boxes.  Why should pleading guilty to this sort of crime be any different?

Be Patient and Read the Fine Print

Invasion of privacy cases rarely succeed in Minnesota.  A decision from the state Court of Appeals this week underscored that fact.

The case, Anderson v. Mayo Clinic, involved a patient who sued Minnesota’s most-famous medical facility as well as a television station owned by Fargo-based Forum Communications.  Apparently, Mayo videotaped the patient’s surgical procedure and the videotape aired on the news.  Perhaps understandably, Ms. Anderson sued for invasion of privacy.  Problem was, she had signed a one-page form giving the clinic permission to release “photographs, audiotapes, and/or films” of her procedure to any news outlet so Mayo could “disseminate health information to the general public.”

A trial court in Moorhead let the case go forward, but on Tuesday the Court of Appeals ordered its dismissal and rejected the idea that Mayo acted with any fraud.  Wrote the court:  “Consent is an absolute defense to an invasion-of-privacy claim.”

Invasion of privacy is something easy to feel but nearly impossible to sue over.  This is particularly true in Minnesota, where for decades the Supreme Court refused to even recognize invasion of privacy as a cause of action.  Eventually, in 1998, after photos of two young women showering together during their Mexico vacation somehow made their way from a Wal-Mart photo lab into the northwestern Minnesota populace, the Minnesota Supreme Court made Minnesota the 48th state to recognize the cause of action.  (Case here.)

So read the fine print.  And get a digital camera.