NYSE says trading floor trademark protected

The New York Stock Exchange sent the editors of Talking Points Memo a cease-and-desist letter to stop the online publication from using wire photos of the trading floor. The NYSE argues that the floor is trademarked, so any images of the floor are a violation of NYSE's trademark rights. Which is nonsense. TPM republished the photo that triggered the threat letter, alongside a sassy blog post from TPM Editor Josh Marshall.

Richard McKee, First Amendment activist, has died (*updated)

Richard McKee, the quiet chemistry professor who smiled as he chewed through walls of government secrecy, has died. He was 62.

Details of his death are murky. What little I know comes from a post written by Emily Francke at Californians Aware, a statewide First Amendment watchdog group McKee helped start:

It is with deep regret and a very heavy heart that I must report that our dear friend and colleague, Rich McKee, suddenly passed away today, April 23, 2011. I have no further details at this time, but I will share what I can as it becomes known to me in the coming days and weeks. 

Rich was one of our greatest champions throughout the years, and we truly could not have done any of this without him. I hope you will join me in sending support and prayers to his family and friends as they learn to cope with this incredible loss.

McKee fought every day to ensure California lived up to a simple and obvious idea. He believed the public has a right to know what the government it elected is doing. This meant more than reporting out a final vote after a closed door meeting, it meant giving the public the same information a legislative body relied on to come to a decision - before the decision was made. It meant giving the public the right to speak before government officials made up their minds. It meant taking officials to task when they tried to skirt the fundamental sunshine laws of the state. Control freaks in City Halls and County buildings across California buckled at his passion, because he knew what he was talking about, he was never demagogic, and he always had law on his side.

It was a simple idea, and yet McKee spent more than a decade fighting nearly identical battles in city after city, county after county, as craven government officials decided it was easier to conceal than to reveal. The salary scandal in the City of Bell - the one that won the Los Angeles Times a Pulitzer - shows what happens when people like McKee are not around. He not only fought his battles, but he fought countless battles on behalf of people who did not know they had rights.

Indeed, I would say that every City Hall reporter in California who has ever requested sensitive documents or emails in the last 13 years has Richard McKee to thank - either because he offered the reporter free advice, or because he fought at the reporter's side in court when officials said no, or because he left behind a legacy of court decisions that made the reporter's job easier. I know from experience.

He was genuine, he was good, and will be missed.

*Updated 4/25: The Daily Breeze has more on McKee's death, including the fact that he died of natural causes. The story also has a comment from Terry Francke, head of Californians Aware and former general counsel at the California First Amendment Coalition:

McKee died of natural causes Saturday at his La Verne home, according to Los Angeles County Assistant Chief Coroner Ed Winter. An autopsy is pending. Family members did not immediately respond to requests for comment.

Francke described McKee as an outspoken and dedicated advocate for public participation in local government.

"He was a big guy in personality, in generousness and in enthusiasm for opening up government to public participation," Francke said. "He was very good humored and very gentlemanly. He was a skilled persuader."

McKee fought for public access to government records and documents and educated public officials in more than 100 cities across the state about open-meeting laws and the California Public Records Act. He filed nearly 30 lawsuits against public agencies in the last 16 years, winning the vast majority.

Los Angeles Times rides the public document wave

The Los Angeles Times has launched an online public documents clearinghouse that offers readers a chance to learn more about what government documents are available under the California Public Records Act and how to obtain them. Readers are also asked to share records they've gotten from public agencies.

The project follows the Times reporting on the City of Bell salary scandal, which made use extensive use of such public records as executive employment contracts.

The Times, in my experience, has sought out public records in a public way. When I worked at the little Claremont Courier, the Times stepped in to sue for some public records denied to our paper. This obviously gave the Times reporters a crack at a story they might otherwise have missed, but the lawyers for the Times (Karlene Goller, Alonzo Wickers III, etc.) were extremely helpful and kept me, and by extension our readers, abreast of the case.

My hope is the Times expands the project to include the several nonprofits that do the heavy lifting when it comes to lobbying for more sunshine (CalAware, California First Amendment Coalition, CNPA, etc.) as well as other publications (at least nonprofits). Of course, the paper doesn't need to tell everyone what documents it's use for active stories, but once the stories are published, they can join the cloud-sourcing pile.

Ninth Circuit strikes down Stolen Valor Act

The Ninth Circuit Court of Appeals has struck down the 2005 Stolen Valor Act in reviewing a case brought against Xavier Alvarez for lying about winning the Medal of Honor during his made-up tour of Vietnam.

The law, which made it a felony, to claim an un-earned military medal, was used by prosecutors to charge Alvarez for statements he made in 2007 as a member of the Claremont-based Three Valleys Municipal Water District board of directors. Alvarez faced jail time and fines for violating the law.

The court ruled the law to be unconstitutional. From the LA Times:

"If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit," Kozinski wrote in defense of the 1st Amendment.

"Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes," Kozinski argued. "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship."

I'd argued back in 2008 that the prosecution was a waste of time.

U.S. government spies on reporter

In a troubling case for press freedom, federal investigators have probed New York Times reporter James Risen's credit card, telephone and bank records as they try to build a case against an alleged leaker who gave Risen information for his 2006 book "State of War." From a Politico report:

First Amendment advocates said the Justice Department’s use of business records to find out about Risen’s sources was troubling. Those records, they argue, could potentially expose a wide array of Risen’s sources and confidential contacts — information that might fall beyond the initial investigation that led to Sterling’s indictment.

“To me, in many ways, it’s worse than a direct subpoena,” said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. “Third-party subpoenas are really, really invidious…. Even if it is targeted, even if they’re trying to just look at the relevant stuff, they’re inevitably going to get material that exposes other things.”

We are all urban homesteaders now

The Dervaes family has garnered a good deal of favorable press for their family farm in Northwest Pasadena. But in 2006, the family farm, and its sustainable-living model, became The Dervaes Institute, and the "presiding officer," father Jules Dervaes, got trademark happy. Now the family is garnering bad press for the legal threat letters sent to anyone who uses "urban homestead" or "urban homesteading" without adding a registered trademark symbol - the circled R - and acknowledging the phrases are the institute's intellectual property.

Which is a bizarre tactic for a non-profit that wants good attention. Nevertheless, the institute has sent out 16 such letters, according to its own press release. Here's a key paragraphs from the letter sent to KCRW's Evan Kleiman, host of Good Food:

We realize that your use of Dervaes published words and/or trademarks may have been inadvertent. We are generally able to resolve any such uses without involving our legal counsel. This would require that you update your ____[webpage]____ to properly cite our works. For example, the writings of Jules Dervaes about sustainable living are original protected works in which Dervaes owns exclusive rights. Content from the Dervaes websites, including text and photographs, are also protected works.

To threaten a public radio show - a fellow nonprofit - for using the term "urban homestead" in a blog post promoting a free event seems, frankly, dumb (Good Food did comply and deleted the phrase). Dervaes has argued that these aren't cease and desist letters, but mentioning the possibility of legal action makes them so.

Of course, a Facebook page has sprung up to protest the attempt at word control.

Four in the afternoon

1. Using social media to report on Egypt. Mashable

2. The Burbank Leader has followed through on its pledge to sue the city of Burbank for merit-based bonuses paid to city employees. Burbank Leader

3. The nonprofit California Watch has launched a new partnership with several newspapers across the state. CFIR

4. Facebook is making an aggressive push to get in the comments game on media websites - especially startups. CNET

NYT editor opens up about relationship with WikiLeaks*

New York Times executive editor Bill Keller has written a long piece talking about how his paper came into possession of the WikiLeaks cables and battlefield dispatches, and its relationship with WikiLeaks's quirky, genius founder, Julian Assange. The story is here.

*Update: I should have noted that Keller's article is an introduction to a 2000-page e-book the NYT will publish Monday on the WikiLeaks affair. The first two chapters are profiles of Assange and the alleged source of the WikiLeaks material, Pfc. Bradley Manning. The rest appears to be a compilation of past stories, along with links to the cables that served as the basis for reporting. The book will sell for $5.99.

Feds charge ex-CIA officer in leak to NY Times

Former CIA officer Jeffrey Sterling, who worked on the agency's Iran desk, has been charged with 10 counts of disclosing classified information to New York Times reporter James Risen.

From the Associated Press story:

The indictment did not say specifically what was leaked but, from the dates and other details, it was clear that the case centered on leaks to Pulitzer Prize-winning journalist James Risen for his 2006 book, "State of War." The book revealed details about the CIA's covert spy war with Iran.

-snip-

The indictment is the latest move in an aggressive Obama administration campaign to crack down on leaks, even as the administration has supported proposed legislation that would shield reporters from having to identify their sources.

Cops can read your texts

A California Supreme Court ruled today law enforcement has the right to search text messages on your mobile phone if you're arrested, AP reports. The decision presumably gives cops the right to search through emails and any other data on your mobile phone or laptop if its in your possession at the time of the arrest.

This strikes me as a bad idea from a civil liberties standpoint, but is something that should be of concern to journalists as the use of mobile devices to capture images and record notes become more commonplace.

The Assange conundrum

The U.S. Department of Justice is tangled in knots - that's a good thing, and let's hope it stays that way.

Frustrated at the release of thousands of diplomatic cables on WikiLeaks, an impotent federal government desperately wants to punish Julian Assange and teach a scary lesson to all other would-be whistle blowers and leakers of sensitive information. The problems are the First Amendment and the fact that what Assange did, from all that's been reported, falls outside definitions of criminal behavior. Indeed, to criminalize Assange's actions would be to criminalize investigative journalism, which has a glorious tradition of convincing unhappy insiders to leak secret, sensitive and confidential information for publication.

The arguments that WikiLeaks has no editorial oversight or Assange has a non-journalistic agenda are interesting in the context of what makes good journalism, but have no bearing on the legality of what WikiLeaks did - the press doesn't have to be good to be free.

That said, it is undoubtedly true that professional journalists enjoy extra protection from prosecution because they can point to their editorial standards and oversight. Courts do not operate outside the realm of public pressure and politics. Indeed, prosecutors would be much more abusive of journalists if news institutions didn't have the resources to hire good lawyers to push back, or didn't have the leverage to convince legislators to pass shield laws, or a soap box to call out the abuse. But the WikiLeaks situation will demand the courts deal with fundamental questions about press freedom.

Glenn Greenwald at Salon has summarized what some media observers are saying about the potential for a government case against Assange, including the questionable treatment of Pfc. Bradley Manning, who is suspected of being the source of the cable leaks and others.

Wikileaks blocked by Library of Congress

The Library of Congress has blocked access to Wikileaks from its computers, Talking Points Memo reports. The U.S. government, miffed over CableGate, has put pressure on a number of private companies to chase Wikileaks off their servers, forcing the site to retreat to Switzerland.

Parachini says he was fired because the court didn't like his openness

Allan Parachini was a rarity in the world of government affairs: He was helpful. That very quality appears to be the thing that did him in as PIO for the Los Angeles County court system. While accusing Parachini of leaking information to the celebrity-gossip site TMZ (which embarrasses celebrities), court officials seem to have been more concerned with Parachini's efforts to make public information available to the public (which has the potential to embarrass court officials), according to today's Los Angeles Times story.

Parachini got fired this week after eight years on the job. The Times story indicates that court officials got fed up with him after he failed to find excuses to drag his feet in turning over documents related to contracts, salaries and court spending - all of which are supposed to be public.

A pro-am tool for getting public documents

Nieman Journalism Lab today profiles MuckRock, an online tool that's supposed to make it easier for anyone, including professional journalists, to retrieve public documents through from America's thicket of government agencies.

Not only does MuckRock help identify which agency has the record you might be looking for, but has a tracker to follow the grinding progress as that agency drags its feet in responding to your request.

From the Lab:

The idea was to build a service that anyone could use — a long-time journalist, a neighborhood blogger, or someone simply looking to get answers out of city hall. The value to bloggers or citizen journalists seems clear: Providing not just tools but guidance on the sometimes labyrinthian process of making document requests. But for journalists working at established media outlets, the pitch is a little more tricky. “We’ve kind of found our sweet spot right now is helping out anybody who’s at least that pro-am journalist or a community blogger,” said Morisy, who has written for the New York Daily News and Business 2.0. “But also the overburdened reporter who writes stories, blogs, tweets, and has to juggle investigations.” In theory, a new resource to help newsrooms expedite FOIA requests would be a help, particularly at a time when shrinking staff and rising demand on reporters may exclude investigative projects. In reality, experienced journalists are generally more comfortable undertaking FOIA requests themselves, if not for accuracy than to keep a story under wraps from competitors or the government itself.

Christine O'Donnell and what she didn't learn while not attending Claremont Graduate University*

For a constitutional scholar, Christine O'Donnell, the Republican Senate candidate in Delaware, made some strange statements today in her debate with Democratic rival Chris Coons about the contents of the First Amendment to the U.S. Constitution.

From the Associated Press:

The exchange came in a debate before an audience of legal scholars and law students at Widener University Law School, as O'Donnell criticized Democratic nominee Chris Coons' position that teaching creationism in public school would violate the First Amendment by promoting religious doctrine.

Coons said private and parochial schools are free to teach creationism but that "religious doctrine doesn't belong in our public schools."

"Where in the Constitution is the separation of church and state?" O'Donnell asked him.

When Coons responded that the First Amendment bars Congress from making laws respecting the establishment of religion, O'Donnell asked: "You're telling me that's in the First Amendment?"

It is in the First Amendment. In fact, it's the first line: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

A campaign spokesman later said O'Donnell was saying the phrase "separation of church and state" didn't appear in the Constitution. But she seemed extremely skeptical about the "shall make no law" bit, too.

O'Donnell also stumbled when asked about the 14th and 16th Amendments, which enumerate citizenship rights and federal powers to collect income tax, respectively.

Why the added scrutiny for O'Donnell? First, because she says her legislative priorities are based on her understanding of the Constitution. Second, because she claimed to have taken a graduate course in constitutional government from the Claremont Institute, a conservative think tank (that is not an accredited college and offers no graduate courses). Then there was the LinkedIn profile that claimed she'd studied constitutional government at Claremont Graduate University, a real college that she did not attend and that has nothing to do with the Claremont Institute.

*Update: Let's go to the video:

California targets paparazzi

Gov. Arnold Schwarzenegger, a former movie star, signed a bill into law that makes it a crime for paparazzi to drive recklessly to get a shot of a celebrity. The California Newspaper Publishers Association protested the legislation, saying it subjects photojournalists to special prosecution for what is already an illegal act.

CNPA general counsel Tom Newston explain in an interview with The Wrap:

We don't deny there’s a big problem, we just think that this particular bill is overly inclusive. I don't represent paparazzi, I represent photojournalists and these folks drive cars. Under this law though, if you harbor an intent to capture an image then it appears to us you could be subjected to enhanced criminal prosecution.

(h/t fishbowlLA)

Private enterprise more important than free press, Philly judge rules

A district court judge in Philadelphia has banned "the media" from covering next week's auction of the Philadelphia Daily News and the Philadelphia Inquirer. The auction is taking place in open court, meaning open to the public, but the judge said having reporters there would just be too disruptive - and the papers' creditors happily agreed.

The many ironies and contradictions are enough to buckle a rational mind: A free press being banned from an open court hearing, for starters. A free press being banned from covering a public event in a public facility that concerns the future of the free press, for another.

Want more?

A federal judge blithely employing prior restraint against a constitutionally protected practice. A federal judge choosing to limit a constitutionally protected practice in order to promote a business deal. A federal judge choosing the interests of private business over the public's right to know in a case when two entities established to maintain the public's right to know (the very thing that gives them value) are on the chopping block.

One further complication: The creditors' committee includes the Newspaper Guild, a union representing the news reporters. That puts a reporter in the courtroom. To ensure he maintains control, the judge said the reporter would have to forsake his identity and act only as a representative of the creditors.

Unless a smart attorney or First Amendment group gets Judge Stephen Raslavich to come to his senses, the story of what happens to these two newspapers will be told by wealthy businessmen.

"Nixonian dragnet" in L.A. County

Open-government activist and attorney Terry Francke has penned a blistering column chastising the L.A. County Board of Supervisors for launching an investigation into leaks to the L.A. Times about the county's troubled child welfare agency.

Francke writes:

...the state’s largest county, which may be doing the state’s worst job in child welfare, is reacting to newspaper reports on the heartbreaking results of its failures by loosing the hounds to find who in its ranks furnished reporters with the facts.  In blithe dismissal of the Brown Act, the board of supervisors majority even initially used an unlawful closed session to hear, discuss and approve top bureaucrats’ request for the witch hunt.

The pretext for this Nixonian dragnet is that laws for the protection of minors’ privacy have been violated. While that may or may not be the case, the question pales beside the issue of whether those laws are anything more but a pious cover for the most secretive and potentially destructive archipelago of government power in today’s society—the joined-at-the-hip realm of the juvenile dependency court and child welfare systems.

Censoring the news

Tracy Wilkinson, Mexico bureau chief for the Los Angeles Times, writes about the trend of "narco-censorship" among Mexico's reporters:

It's when reporters and editors, out of fear or caution, are forced to write what the traffickers want them to write, or to simply refrain from publishing the whole truth in a country where members of the press have been intimidated, kidnapped and killed.

Closer to home, the teachers' union in Los Angeles plans to boycott the Los Angeles Times over a story that linked teacher performance to student test scores:

"You're leading people in a dangerous direction, making it seem like you can judge the quality of a teacher by … a test," said A.J. Duffy, president of United Teachers Los Angeles, which has more than 40,000 members.

Riverside newspaper sues to open pension records

The Press-Enterprise of Riverside has sued the San Bernardino County retirement system to force the release of records for all former employees earning pensions of more than $90,000 a year.

From the story:

The action filed by The Press-Enterprise asks a judge to order the San Bernardino County Employees' Retirement Association to disclose the payments

The association initially "denied in whole" a California Public Records Act request from the newspaper for the "names, monthly payment, annual payment, job title, government agency and department" of all individuals receiving at least $90,000 in annual retirement benefits from the association.

The retirement association denied an initial request to turn over the records. The executive director cited privacy concerns, saying, "We are dedicated to preserving the confidence and trust of our members."

To newspaper contends that the records are public documents under state law. Attorney Alonzo Wickers, who represents the Press-Enterprise, had this to say: "Given the extraordinary public interest in this information and given the incredible burden pensions are placing on local governments in California, such as in Bell, there is really just a tremendous interest in access to this public information."