Capitolbeat 2010 Registration is Open

As a reporter, you go to where the news is. That’s kind of the approach we took when planning Capitolbeat 2010. We wanted to go where the news is happening and will be happening when we set up shop Nov. 11 through Nov. 13.

Welcome to Arizona.

The state’s immigration debate has captured the nation’s attention and could be showing up in your very own state capitol.  (Newsweek says so!)

As you can well imagine, this year’s conference will include plenty of discussion of immigration policy. We’ll also have sessions you’ve come to rely on covering state budget and politics.

This year’s panel will also include hands-on sessions on multimedia and plenty of story ideas you can take back and start working on right away.

Interested? Then click here to head to our conference page to register and find a hotel room.

Capitolbeat and AAPOR webinar on polling

What: Capitolbeat and AAPOR polling webinar
When: July 29, 2010 12:00 PM – 1:30 PM EDT
Who: Anyone who wants help sorting through the vast array of polls and poll results.
Sign up: https://www2.gotomeeting.com/register/610975691

Capitolbeat members:

The fall general election campaigns are quickly approaching and anyone covering races for offices from the U.S. Senate on down to legislative seats knows they’re about to get hit with a bunch of poll results and analysis. But do all those numbers really mean anything and should you pass them along to your readers and viewers?

Capitolbeat in conjunction with The American Association for Public Opinion Research is offering a webinar July 29 to help answer your polling questions. Special thanks to the Pew Center on the States for making the webinar platform available.

The proliferation of public polls have made more numbers available but vastly increased the variety of ways in which polls are conducted. It is more important than ever for journalists to identify the strengths and weaknesses of polls, to understand how to interpret results and to know what questions to ask pollsters about transparency and integrity.

In this presentation by polling experts from the American Association for Public Opinion Research, Capitolbeat members will learn how to tell which poll results are reliable enough to report on. They’ll learn the differences between polls conducted by machines and those conducted by human interviewers; what qualifies as a random sample and what that means; how to weed out biased or cherry-picked results; and how to describe polling results in a way that is both accurate and easy to understand.

Speakers will include:

Cliff Zukin, Professor at Rutgers University and Senior Fellow at the John J. Heldrich Center for Workforce Development, former AAPOR president

Mike Mokrzycki, independent research consultant and former polling director at The Associated Press.

Ryan Rusak, State Government and Politics Editor at the Dallas Morning News and a Capitolbeat board member, will moderate.

To prepare for the call, participants are encouraged to look over AAPOR’s suggested list of questions for reporters writing about polls beforehand. The list can be found at:

http://www.aapor.org/Questions_to_Ask_When_Writing_About_Polls1/1505.htm

To sign up for the webinar, simply go to this link: https://www2.gotomeeting.com/register/610975691

Capitolbeat objects to NC General Assembly’s subpoena of a reporter

The Capitolbeat board today voted to voice our objections to a situation in North Carolina. Specifically, a legislative committee has subpoenaed testimony and unpublished work product from a television reporter. You can read more about this story here and here and here. Below is the letter that Capitolbeat President Laura Leslie sent on our organization’s behalf.

Senator Marc Basnight

President Pro Tempore of the North Carolina Senate

16 W. Jones St., Room 2007
Raleigh, NC 27601

Senator Fletcher L. Hartsell,

Chairman of the Senate Judiciary II Committee

300 N. Salisbury St., Room 5I8

Raleigh, NC 27603
Senator Basnight and Senator Hartsell:

This letter is on behalf of Capitolbeat, the national association of statehouse reporters and editors. We are profoundly concerned about the orders and subpoenas you recently issued to UNC-TV and Senior Legislative Correspondent Eszter Vajda, a member of our Board, in reference to her investigative report on Alcoa’s Yadkin River Dam.

We understand that this specific circumstance is complex and involves issues beyond those surrounding press freedoms. We also take note that UNC-TV is a state agency, and could therefore be construed to be subject to the same legislative reporting laws that apply to other agencies.  However, we strongly disagree with that interpretation.  Even though the station is part of state government, its journalists and its work products are still entitled to not only First Amendment protections, but the protection of the state’s shield law as well.

Whatever the larger circumstances of the case may be, we must object to the legislative use of a subpoena to compel a journalist to testify and produce her work. Such action is counter to our nation’s tradition of press freedoms, and noxious to the idea of a free press. Furthermore, it sets a dangerous precedent. Journalists should never be compelled to serve as the investigative arm of a government agency.

As your subpoenas indicate, North Carolina G.S. 120-19 gives the General Assembly the right to demand information from state agencies. If you truly believe UNC-TV to be subject to that law, then the subpoenas are superfluous.  But we believe that the shield law, G.S. 8-53.11, clearly supersedes both the orders and the subpoenas.

Senator Hartsell, you helped draft the shield law in 1999, and both of you supported the legislation when the General Assembly passed it.  We ask that you withdraw your orders and subpoenas immediately.

Respectfully,

Laura Leslie, President, Capitolbeat

Capitolbeat Takes a Stand for the “Greater Good”

Sometimes taking a stand for the First Amendment means you have to align yourself with some pretty unlikeable people.  The most recent amicus brief Capitolbeat has joined provides the perfect illustration of that statement.    The case, before the Supreme Court of New Jersey, is officially titled G.D. v. Bernard Kenny and the Hudson County Democratic Organization, Inc.  But the brief drafted by attorneys for the New Jersey Press Association and also joined by Capitolbeat, Advance Publications, Inc., the Associated Press, the ACLU of New Jersey, and  the American Society of News Editors steers clear of the facts of the particular case in favor of addressing the larger implications of overturning the appellate court’s decision.

The facts of the case are somewhat disturbing. During the 2007 New Jersey State Senate campaign, defendants mailed 17,000 fliers to more than 8,000 households in the state. These fliers  stated that the plaintiff, formerly a part time aide to one of the opposition candidates, was formerly a drug dealer who spent 5 years in jail for selling cocaine near a public school. 

In fact, the plaintiff was arrested in 1990 at age 18 and pled guilty for possession of a controlled substance with intent to distribute.  But there was no evidence he actually sold any drugs, there was no proximity to a public school and he did not spend 5 years in jail.  In fact, the arrest record was expunged in 2006.  Plaintiff sued for defamation, infliction of emotional distress, invasion of privacy and conspiracy.   Defendants, predictably, moved to dismiss the claims and moved for summary judgment in their favor.  The trial court dismissed both motions because discovery would be required to resolve the highly factual issues about the truth of the allegations and whether the plaintiff’s privacy rights were violated.  The appellate court reversed, holding that the expungment of the arrest record did not render the allegations substantially and materially untrue, nor did they give rise to an invasion of privacy or intentional infliction of emotional distress claim.

The plaintiff took the case to the New Jersey Supreme Court, where he made three main arguments:

1. An expunged criminal history cannot prove the “truth” of otherwise  defamatory communications without violating the NJ expungment statute
2. An  expunged criminal record is not a “matter of public record” that precludes causes of action for the privacy torts of false light, publication of private facts and invasion of privacy
3. An individual has a reasonable expectation of privacy in facts that are found in expunged criminal records

There was 100 percent agreement among the Board that the defendants who created and distributed these fliers were really not all that likeable. There was also uncertainty about the overtly political genesis of the case itself.  But all recognized the greater issues in play and agreed that the danger to journalism merited Capitolbeat’s participation; the board simply needed to be sure that the brief concentrated on those dangers to journalism, rather than the parties to this particular case.

In the end, the brief did just that.  You can read it in its entirety here, where you’ll see that our main arguments were

1. Expunging a record doesn’t erase the act giving rise to the criminal charges; it simply relieves the criminal from any further liability deriving from the existence of a criminal record. So writing that a criminal act once occurred must still be writing the truth and, thus, prevents any liability for defamation.   As the brief notes, courts – from the Supreme Court on down – have always held that publication of lawfully obtained truthful information cannot give rise to an invasion of privacy lawsuit (and, of course, truth is a defense to a defamation case).   There is a strong recitation of lower court and state court cases from around the country which support this proposition with regard to news reporting, with the conclusion that only the custodian who illegally released the record being liable for punishment.
2. The expunged criminal record is still a “public record” that precludes any invasion of privacy lawsuit.  While plaintiffs may claim a privacy right in the expunged criminal record, it is still a government record.  The government’s removal of any further criminal liability based on those actions should not and cannot be read as the government’s endorsement that the person is entitled to no further public discussion of his or her crime. Nor, again, does it change the fact that the person once actually committed a crime (in other words, it’s not a reversal of the original conviction). 
3. There can be no expectation of privacy in expunged records.  Again, the act itself still occurred.  Though there may be no criminal impact remaining and the government may not invoke the act against the criminal in the past, it has not simply disappeared.  This is especially true in the digital age, where a repository of information about the person and his or her actions is likely archived anywhere – and there’s nothing we can ever do to change that (in fact, to say that the expungment means a newspaper cannot discuss the criminal act might also be read to say that all references to the criminal act must be deleted from archives). 

We hope you agree that these issues (though perhaps not these facts) could be repeated in your state and that Capitolbeat’s participation is essential to providing reporters with the breathing room they need to publish all information available to them in such a controversial situation.   Feel free to let us know what you think.

Capitolbeat 2010 in Phoenix

What: Capitolbeat, the Association of Capitol Reporters and Editors, annual conference
When: Thursday, Nov. 11 through Saturday Nov. 13
Where: Wyndham Phoenix (50 East Adams Street)

There are still a few details that we’re tying to work out before opening registration. But aside from the fact that it will fabulous as always, here’s what we can tell you about Capitolbeat 2010 in Phoenix:

• Arizona’s new immigration law will be front-and-center for at least one session, and probably more. What better place to study the debate over states’ role in immigration than at ground-zero of one of the more talked about laws in the country?
• We’ll look ahead to the reporting of the census results, all the new data it will bring and the redistricting chore state legislatures now face.
• The new health care reform law and other places where federal law will have a great deal of impact on states will be top of mind for at least one panel. As many statehouse reporters are finding out, they have to follow the action in Congress as well as their own capitol in order to keep a handle on state budgets.
• We will pick through the aftermath of the 2010 midterm elections and try to divine what it all means for state government.
• More policy panels, hands-on technical panels and writing tips will also be on tap.

Check back in this summer as we roll out the schedule.

If you have questions, please e-mail Conference Chairman Peter Wong:  capitolwong@gmail.com

Update from Tennessee

We’re happy to report tonight that, according to TN Report’s Andrea Zelinski, House Speaker Kent Williams will NOT support a measure seeking to revoke the floor credentials of AP reporter and TN Capitol Press Corps President Erik Schelzig. For background, see our earlier post on the story.

Update: Zelinski also reports Rep. Joe Towns has withdrawn his resolution, HR 371.

Thank you, Mr. Speaker. We appreciate it.

- Laura

Capitolbeat letter to Tennessee

Many of you have no doubt been following the story of Tennessee statehouse reporter Erik Schelzig. He was ejected from the chamber for taking a photograph of House Speaker Kent Williams shortly after Williams collapsed last week. Following that, TN Rep. Joe Towns, Jr. filed HR 371, a resolution calling on the TN Capitol Press Corps to strip Schelzig of his floor credentials. Romenesko is collecting the coverage here.

(Ironically, Schelzig is president of the TN press corps, so that would be quite a conundrum. But that’s beside the point.)

This morning, Capitolbeat sent the following letter of concern to TN House Speaker Kent Williams.

The Hon. Kent Williams
Speaker of the House of Representatives
106th General Assembly
Office of the Speaker
19 Legislative Plaza, Nashville, TN 37243-0104

May 17, 2010

Mr. Speaker:

This letter is on behalf of Capitolbeat, the national association of statehouse reporters and editors. We are deeply concerned about your chamber’s treatment of AP reporter Erik Schelzig.

We understand that some in your chamber were upset by Mr. Schelzig’s attempt to photograph you after you collapsed. It was no doubt an alarming moment for many, and emotions were running high. But Mr. Schelzig was just doing his job, “despicable” or “distasteful” as some representatives found it. The Speaker’s health IS news.

If Mr. Schelzig had positioned himself in a way that obstructed medical assistance, it would have been appropriate for the Sergeants at Arms to direct him to move. But video of the scene and the angle of his photograph suggest that wasn’t the case.

We object to Mr. Schelzig’s removal from the chamber, as well as the reported name-calling and cursing he was subjected to in the course of performing his job. But we are even more concerned about HR 371, a resolution filed by Rep. Joe Towns, Jr., seeking to strip Mr. Schelzig of his floor credentials.

The resolution claims that Mr. Schelzig interfered with medical personnel. As we said, that doesn’t appear to have been the case. Instead, this looks like an attempt to punish a reporter for covering something a lawmaker didn’t want him to cover. It would set a very poor precedent if your chamber were to give this measure any consideration, let alone pass it. No reporter should ever be threatened with the loss of credentials for reporting a story that those in power don’t like. That may be the norm in dictatorships, but a functional democracy requires zealous reporting about public officials within the limits of the law.

We are relieved to hear that you’ve returned to good health, and that the incident wasn’t more serious. We ask that you talk to your Sergeants at Arms about appropriate procedures in such situations, reminding them that the First Amendment covers newsgathering activities as well as the reports we publish. And we urge you to take no legislative action on HR 371.

Sincerely,
Laura Leslie
President, Capitolbeat

Cc: Rep. Joe Towns, Jr
Mr. Erik Schelzig, president, TN Capitol Press Corps

We’ll let you know what if any response we get. And please let us know if anything of this kind ever happens in your statehouse.

Capitolbeat Joins Journalism Organizations in Calling for Openness in the Investigation of the Upper Big Branch Mine Disaster

Capitolbeat joined several journalism organizations in asking the Mine Safety and Health Administration (“MSHA”) to take measures which will ensure public oversight of the investigation into the recent Upper Big Branch Mine explosion.  We understand that the  MSHA will begin its investigation this week.  

It is still unclear whether the MSHA will conduct a fully open hearing or will default to a series of interviews with miners who worked in the mine and survived the disaster.  It has both options at its disposal.   Our letter, drafted and sent by the Reporters Committee for Freedom of the Press, requests that the investigation consist of public hearings, as requested by at least two families involved in the accident and as benefits the greater public interest in an investigation of this magnitude.  

The letter requests that, should it opt to use the less-open individual interview format, the MSHA should allow members of the press to attend or, at the very least, should immediately make transcripts available for public view.  This is necessary to ensure oversight of the government investigation. This is especially important and appropriate given the expected attendance of representatives of Massey Energy, the owner of the mines, at these interviews. We cite both legal and practical precedent for these requests, noting:  

“[T]he news media’s critical role in timely informing the nation about public safety concerns only serves to enhance MSHA’s mission of enforcing compliance with mandatory safety and health standards and promoting improved safety and health conditions in the nation’s mines.”

The Capitolbeat Board agreed that participation is important not only to ensure access to this investigation, but others which may occur across the country and are not limited to mine disasters.  Our members will unfortunately be called upon to cover the aftermath of tragedies of varying types which might require similar investigations in the future.  We need to ensure they can.

Another amicus effort — and this is a BIG one!

One of the more interesting cases to get to the Supreme Court in recent years — at least from a media perspective — has to be John Doe  # 1 v. Reed.  Many of you are familiar with the case. Those of you who are not are familiar with the issue, or may become very familiar with the issue in coming years, especially if the Court rules against our side.

The case originated in the state of Washington.  In May 2009, the Governor signed into law a bill commonly known as the “Everything but Marriage Act”, which expands the rights and responsibilities of state-registered, same-sex domestic partners.    Almost immediately, an organization known as “Protect Marriage Washington” filed notice of an intention to circulate a referendum petition in accordance with state law.  In July 2009, such a referendum petition was submitted with almost 140,000 signatures, though the state contended that only 122,000 signatures — still more than required to place the measure on the next election day ballot — were valid.   The effort failed on election day and the law remains in force.

Protect Marriage Washington filed suit in federal court to prevent disclosure of this public record, arguing that signers would be subjected to undue harassment and, potentially, harm.   The United States District Court agreed and issued an injunction preventing release of these lists.  The United States Court of Appeals for the Ninth Circuit reversed.  But then the Supreme Court issued a temporary injunction against release of these records, pending its final review and decision.

As with any open records case that gets the Supreme Court, this merits our attention and likely participation.  My only worry is that we tread a very narrow path here. While our members across the country clearly have an interest in the open records issue because any result will almost certainly affect similar situations – whether related to the gay marriage issue or referenda generally – that are certain to arise in every state,  likely legal arguments from the other side will rest on First Amendment grounds that we’d otherwise support wholeheartedly – the right to free association in a group without fear of government retribution.   I think this case could potentially affect Capitolbeat members more than just about any we’ve seen in recent years.  It certainly meets the standards we’ve agreed upon for joining an amicus brief.

Equally rapidly filed were the public records requests seeking copies of the referendum petition under Washington’s Public Records Act (“WPRA”).  Finding that none of the exemptions in the WPRA applied to this document, the Washington Secretary of State prepared to release it to the public.    Fearing harassment from the legislation’s supporters, the Plaintiffs (referred to herein as “Petitioners”) filed suit in United States District Court to enjoin the referendum’s release, alleging that release of the documents would violate the signers’ First Amendment rights to free association and anonymous speech.

The United States District Court agreed and issued an injunction preventing release of these lists.  The United States Court of Appeals for the Ninth Circuit reversed.  But then the Supreme Court issued a temporary injunction against release of these records, pending its final review and decision.

Capitolbeat was invited to join two separate briefs in this this case, both of which supported the state’s right — nay, obligation — to disclose this petition under the WPRA.  The Board discussed the issue after a summary of the case and recommendations from legal counsel and we eventually joined a brief filed by a Seattle-based law firm.  A copy of that brief can be found here, but I’m happy to provide you with a summary of our main arguments.

Our main concern to the Court  is that  the Petitioners are seeking to do something which has never been done by any court,  at any level:  declare that a Public Records Act violates the First Amendment rights of an individual who is named in an otherwise disclosable record.   We don’t believe the Washington Public Records Act implicates the First Amendment at all — certainly not in the way that Petitioners allege it does.  There is no compelled speech at issue.  The law is an administrative requirement imposed on government agencies.  Taken to its outer limit, this argument jeopardizes the existence of similar statutes in all 50 states and the federal FOIA.

The second argument is that there is no First Amendment right to anonymity or privacy in the state referendum process.  Our brief  explains that the referendum is not political activity of the same ilk as a public protestor; it is purely and simply legislative action which must be undertaken in the light of day.  There should be no expectation of privacy in such a legislative process.

The anonymous  leafletting and right to association cases that are the basis of Petitioners’ First  Amendment claims are distinguishable because they involve situations where the leafletter or organization member was seeking to be free from government intrusion, while the participants here are actively participating in government activities.

But, more important to refuting the privacy claims, the entire referendum process happens in public. There is no promise of confidentiality, nor is there any possibility of confidentiality,  given the ability of  many people to see other signatories’ names.  The brief engages in a thorough recitation of the historically open nature of referenda across the United States.

Finally, the brief notes that disclosure of referendum petitions does not violate the First Amendment. This is where the brief discusses the proper level of First Amendment “scrutiny” to be applied by the Court in this type of case.   Petitioners advocated strict scrutiny because the disclosure requirement is “content based”.  Most regulations are struck down when strict scrutiny is applied. But,  even applying strict scrutiny in this case, the Public Records Act should be upheld because there is a more compelling interest in access to government records and assuring transparency in government.  To accept Petitioners’ argument would result in constitutional challenges to public records requests whenever a record happens to mention an individual.  While Petitioners argue that “time, experience and studies have revealed the true costs inflicted by disclosure”, this brief argues that time and experience demonstrate the useful role of disclosure and open government.  It also cites the First Amendment right to receive information, which can only occur with strong public records laws. This section cites to the use of public records acts to uncover and report on issues of extreme importance.

We’ll let you know when a decision is issued in this case or any others in which Capitolbeat participates.  In the meantime, feel free to contact the Board or your legal counsel if you have thoughts about any of our public policy or advocacy efforts or know if a case that you think merits Capitolbeat participation.  Remember that we have certain standards that govern our participation, but we are looking to speak out as much as possible so that Capitolbeat remains a national voice on important free speech issues affecting our membership.

Our next webinar: 2010 Alzheimer’s Facts and Figures

Title: 2010 Alzheimer’s Facts and Figures
Date: Wednesday, March 24, 2010
Time: 12:00 PM – 1:00 PM EDT and 3 PM – 4 PM EDT
Request access: please e-mail director@capitolbeat.org

As a service to its members, Capitolbeat is offering a series of webinars to its members. The next one is coming up March 24, 2010 and will focus on Alzheimer’s Disease.

The Alzheimer’s Association’s Alzheimer’s Disease Facts and Figures annual report illustrates the impact of Alzheimer’s disease and related dementias on individuals, families, all levels of government, the health care system and the economy.

The 2010 report features state by state data on prevalence, cost and caregiver impact organized into individual charts and visuals for easy to understand reference.

Also in this year’s report is a specific focus on the impact of Alzheimer’s disease on diverse communities. During Wednesday’s briefings, the Alzheimer’s Association policy staff will:

• Share with you information from the 2010 Alzheimer’s Disease Facts and Figures.
• Discuss how the potential epidemic of Alzheimer’s will impact the economy as well as Medicare, Medicaid, and the retirement security of the baby boomer generation.
• Bring you up-to-date on the latest state based information about Alzheimer’s disease and your state government’s response.
• Answer your questions about Alzheimer’s disease.

Following each briefing, the Alzheimer’s Association will also provide graphics, contact information for local spokespersons in your state.

You can read “2010 Alzheimer’s Facts and Figures” online by clicking here (PDF).

Please contact Capitolbeat executive director Tiffany Shackelford for log in information.