National Security and the Press: The Government's Ability to Prosecute Journalists for the Possession or Publication of National Security Information

In 2006, then Attorney General Alberto R. Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. In addition, the federal government's prosecution of two former lobbyists for the American Israel Public Affairs Committee (AIPAC) for possessing and disseminating national security information has been called an attempt by the government to prosecute individuals who behave like journalists. This article identifies existing laws under which the press could be criminally prosecuted for the possession and/or publication of national security information and describes how the courts have addressed those laws. The article concludes that while there is support for Constitutional protection for journalists in these cases, the Supreme Court of the United States is unlikely to interpret the First Amendment as protecting journalists from prosecution for possessing and/or publishing national security information. Therefore, the article contends that Congress should amend the statutes outlined herein to limit prosecution to instances when there is evidence of intent to harm the United States.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

The United States Supreme Court and the death penalty since Furman: The settlement of basic issues

In 1972 the United States Supreme Court in Furman V. Georgia found that the death penalty as it was then being applied was cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Furman provided few constitutional guidelines, but states reinacted their death penalty statutes.In 1976 the Court began to receive appeals from death sentences imposed under the reinacted statutes. In its decisions the Court began to establish guidelines. It found the death penalty was not per se cruel and unusual punishment. Before the death penalty can be imposed the court must take into consideration any mitigating circumstances and the case must be reviewed by the state supreme court. A mandatory death sentence is unconstitutional.Other issues including proportionality, due process and finality of judgment will be examined in the next segment of this study.     

The interaction of truthful and deceptive information

ABSTRACT

Research consistently shows that truthful accounts are richer in detail than deceptive accounts. It is unknown, however, how interviewees strategically regulate the information they provide when their accounts contain both truthful and deceptive information. This study examined how truths and lies interact, and whether interviewees’ self-reported strategies reflect such interactions. Participants (n?=?144) provided one statement consisting of two elements. We manipulated the veracity of these elements, with participants allocated to either both truthful, both deceptive, or one truthful and the other deceptive conditions. Results indicated that interviewees calibrate the richness of detail provided in the first element of their statement based on the veracity of the following element. Moreover, our exploratory tests revealed that lies become more detailed when they are flanked by truthful information relative to when they are flanked by other deceptive information. The finding that truthful and deceptive information interacts to influence detail richness provides insight into liars’ strategic manipulation of information when statements contain a mixture of truths and lies. Strategic manipulations of this kind could potentially threaten the reliability of commonly used verbal lie detection tools. This study also offers insight to legal practitioners who rely on baseline deviations to assess credibility.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

Child abuse and neglect:A National Summary Of State Statutes

Effective court improvements must be based on comprehensive, baseline analysis of state child abuse and neglect statutes. This information will provide policy makers with improved tracking and evaluation opportunities as significant statutory changes are contemplated in pending federal initiatives and state court improvement activities. This article provides excerpts of a comprehensive national study undertaken to determine the level of uniformity or variance in statutes since the initiation of federal legislation attempting to improve state practice in the handling of child abuse and neglect cases. The state-by-state information is designed to provide diverse jurisdictions with an opportunity for comparative statutory analysis. The complete, 50 state Matrix of State Statutes Pertaining to Child Abuse, Neglect and Dependency is scheduled for publication later this year.     

Keeping the Family Together: Why New York Must Amend Evidence Rules to Protect a Parent's Right to be a Parent

In New York, hearsay statements made by children may be admissible in a child protective proceeding. Under Article 10 of the Family Court Act, an out‐of‐court statement only requires corroboration to support the statement's reliability. The Family Court has the choice to determine what evidence will be sufficient for corroboration. In comparison to other statutes from different states, New York's statute is very broad. This Note proposes amending the current evidence statute under Article 10 of the Family Court Act to strengthen the standard for admitting hearsay statements in child protective proceedings.     

Offenders' lies and truths: an evaluation of the Supreme Court of Sweden's criteria for credibility assessment

Abstract

The criteria used by Swedish courts for assessing credibility of plaintiffs' accounts were for the first time scientifically evaluated. Furthermore, unlike much previous deception detection research, we used offenders as participants instead of college students. False and truthful confessions by 30 offenders were analysed, and few significant effects were obtained. Truthful confessions were rated as having a higher degree of clarity than false confessions. Women's truthful confessions were rated as more credible than their false confessions. The offenders who were most experienced in being interviewed by the police gave a stronger impression of talking about something self-experienced in their false than in their truthful confessions; hence, it seems that offenders with more police interview experience have developed a kind of expertise in telling a convincing lie about crime. Overall, the criteria for credibility assessment used by Swedish courts had very limited usefulness in discriminating truthful and false confessions. A critique of the current status of evaluating statements in Swedish courts is provided.     

Recent New Zealand efforts to combat environmental crime

Conclusion The question is what legal tools are the most effective to deal with significant and continued attacks on finite environmental resources. Is there a risk that environmental statutes and monetary sanctions imposed thereunder will be seen merely as tiresome regulations carrying nominal penalties, the payment of which is no more than a legitimate cost of doing business? Will the fact that such statutes include, as an ultimate sanction, imprisonment alter this perception? Will resort to prosecution under the traditional criminal law of fraud on the public provide a substantial disincentive to environmental offending, where corporate officers can anticipate a criminal conviction and the loss of liberty in the event of detection?If the statement of the Court of Appeal in Walters is a guide, then the trend in New Zealand is likely to be imprisonment of offenders convicted of environmental crimes. Prosecutions under the Crimes Act will brand transgressors as criminals, and not as risk-taking entrepreneurs. The tools are available--which will the community use, a traditional criminal prosecution of environmental criminals, or prosecution under specific environmental statutes?This note is a revised version of a paper originally presented at the eighth international conference of the Society for the Reform of Criminal Law, Hong Kong, December 4–8, 1994.LL.B., Victoria University of Wellington 1971.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

How about me? The scope of personal information under the Australian Privacy Act 1988

A recent Australian Federal Court decision has raised the issue of the scope of information protected under the Australian Privacy Act 1988. The Court failed to adequately address this question, leaving Australians unsure as to whether sections of their information, such as the IP addresses allocated to their mobile devices, will be considered personal information under the Act. The main consideration the Court dealt with was what it means for information to be “about” an individual. In this paper I address two questions: a) how is information determined to be “about” an individual under the Act; and b) how should this determination be made in the future? I conclude that currently available guidance from the courts, the Australian Information Commissioner and scholarly commentary are inadequate to enable individuals, organisations and agencies to consistently make such determinations. Accordingly I draw on approaches to this question taken in Canada, New Zealand, the European Union and the United Kingdom to argue that the definition should be broadly interpreted in a technologically-aware manner. This will help to ensure that personal information is more comprehensively protected under the Privacy Act.     

The European Court of Justice in Bolagsupplysningen: The Brussels I Recast Regulation's jurisdictional rules for online infringement of personality rights further clarified

In the European Union the Brussels Ibis Regulation governs the jurisdiction of Member State courts in civil and commercial matters. The reference for a preliminary ruling coming from the Estonian Supreme Court in the Bolagsupplysningen case offered the European Court of Justice another opportunity to develop its interpretation of the special ground for non-contractual obligations (article 7.2). The European Court of Justice's Grand Chamber ruled that legal persons, like natural persons, have the option of bringing a claim based on the infringement of personality rights by an online publication before the courts of the Member State where their centre of interests is located. It laid down that the centre of interests of a legal person pursuing an economic activity is determined by reference to the place where the company carries out the main part of its economic activities. The victim of a tortious internet publication can only seek an order for rectification and removal of the incorrect information in the courts that have jurisdiction over the entirety of the harm sustained and not before the courts that only enjoy jurisdiction with regard to the damage suffered in their territory.     

First amendment values and government participation in the marketplace,fifty years after the Hutchins report

The Hutchins Commission took a favorable view of government speech; Its report recommended that government act as a supplementary news source for the public. This article asserts that the commission was “fighting the last war” by focusing on government restraints on the press, while failing to propose limitations on the government's ability to circumvent the press. With the advent of new forms of telecommunications technology, the government might one day replace the private sector press as the public's primary source for news. This article asserts that the Supreme Court should recognize that the Press Clause of the First Amendment guarantees the existence of the private sector press as an independent, nongovernmental branch of our governance system. Based on a “separation of powers” view of Press Clause values, the article argues that the Court should create a First Amendment “right of reply” to any government dissemination of information to the American public in a manner that circumvents the traditional role of the private sector press.     

Presbyterian Hospital of Dallas v. Harris: a dubious consequence of piecemeal health care legislation

For almost forty years, legislators have advocated comprehensive measures designed to assure Americans quality health care. Instead of implementing an integrated health care plan, Congress has intermittently enacted statutes which address specific health care delivery problems. At times the judiciary has stretched the ambit of existing health legislation in response to particular plaintiffs' urgent claims. This Case Comment examines the dilemma of piecemeal legislation and judicial policymaking as exemplified by Presbyterian Hospital of Dallas v. Harris, a Fifth Circuit Court of Appeals health care financing decision whose outcome Congress has flatly rejected.     

A decade on the court: The First Amendment jurisprudence of Justice Antonin Scalia

After a decade on the United States Supreme Court the time is ripe to examine Associate Justice Antonin Scalia's First Amendment jurisprudence, especially as it relates to freedom of expression and freedom of the press. This article analyzes Justice Scalia's opinions as a judge and justice as well as his scholarly writings. Collectively they reveal a clear pattern of a justice who follows a judicial approach grounded in originalism, textualism, majoritarianism, deference to the legislative branch, and traditionalism. While this approach sometimes produces opinions Seemingly in conflict with Justice Scalia's “conservative” image, close analysis reveals the consistent and close application of a coherent judicial philosophy.     

Reflections of an octogenarian on criminal law and criminology

The U.S. Supreme Court has declared that capital punishment is not unconstitutional per se, in part because the high degree of public support for the death penalty indicates that the American public does not consider it to be cruel and unusual punishment. According to the Court, the public's desire for retribution is an appropriate basis for determining that the death penalty is an acceptable criminal sanction. This paper examines the degree of public support for the death penalty and the basis for that support. It also explores the differences between retribution as just deserts and retribution as revenge, and concludes by asking whether a public desire for revenge is an appropriate, enlightened basis for our capital punishment policy.     

Pondering personal privacy: a pragmatic approach to the Fourth Amendment protection of privacy in the information age

As technology with surveillance capacities has advanced, the debate over the rights of the citizenry to be free from governmental breaches of personal privacy has intensified. Within the United States, government actions legally challenged as intrusions into personal privacy have been analyzed under the Fourth Amendment, but Supreme Court rulings in such cases lack a clear and consistent rationale. Additionally, while more than a dozen federal privacy statutes have been enacted, each piece of legislation pertains to a specific type of information (e.g. driver’s license information, education records, and financial records). There is no overarching federal legislation which protects the individual’s private affairs from warrantless government inspection. A key issue underlying the scope of the debate and the variation in court decisions and public policies pertinent to invasions of privacy by government agencies is the lack of a clear and cogent definition of ‘privacy.’ By means of a review of the evolution of legal protections of privacy under the Fourth Amendment and a review of the evolution of technology with surveillance applications, it is suggested that there is a need for a sound operational definition of privacy. As a starting point for an informed and pragmatic dialogue on this matter, an operational definition of privacy built upon extant case and statutory law is provided.     

The supreme court and police practices: The unusually busy 2003–2004 term

The 2003–2004 term of the Supreme Court was the most important term of the Court for the law enforcement community in the last decade. The Court decided 11 cases dealing with issues concerning actions taken by police officers, the largest number of “police practices” cases decided by the Court in the last nine years. In addition, several of these cases are among the most important of the 49 police practices cases decided during this time period. The Court: 1) upheld the arrest of all the occupants of a car when drugs are found in it; 2) permitted police roadblocks seeking information from the public in certain circumstances; 3) refused to suppress physical evidence obtained from Miranda violations; 4) expanded the availability of warrantless car searches incident to arrest to include arrests of recent occupants of the car; and 5) upheld statutes requiring persons stopped on reasonable suspicion to identify themselves.     

Clashing Over Conversion: “Who is a Jew” and Media Representations of an Israeli Supreme Court Decision

Religion-state issues are particularly contentious in the Israeli context and they are often resolved by litigation before the Supreme Court in its capacity as the High Court of Justice. A recent controversy that reached Israel’s High Court of Justice in 2005 involved a petition to recognize the validity of non-Orthodox conversions to Judaism. This paper examines the role of the press in constructing the controversy and the image of the High Court of Justice by analyzing all the reports and editorials in both an elite and in a popular newspaper, published from a week before the decision was issued until to 1 month afterwards. It looks at the visual, inter-textual and linguistic features of the articles and analyzes the frames used in representing the Court, the petitioners, and the controversy. We found that two distinct frames were used by the papers to convey the essence of the controversy in the Tushbeim case. While the organizing idea in Haaretz, the elite newspaper, was one of Israel as a civic state, Yediot, the popular newspaper, emphasized the religious dimension of Israeli nationhood. Moreover, contrary to widespread perceptions of the popular press, it presented a wider range of views than did the elite newspaper, which tended to praise the Court and to support the decision. However, both papers avoided challenges to the basic issue of whether religious authorities should control the definition of the character of Israel as a Jewish State. Thus, the media in effect defined the terms of the struggle over the Jewish identity of the state within consensual boundaries.     

Examining the “virtual”; publication as a “newspaper of record”;

Newspapers as a record of the day's events and chronicle for public business have been part of the United States' unofficial governing system for several hundred years. The expression “newspaper of record”; has specific meaning and import for librarians, historians and lawyers. This article compares the statutory characteristics of “newspapers of record”; with the qualities of modern electronic newspapers delivered by on‐line delivery services. The article concludes that the definitions of “newspapers of record”; used by librarians, historians and statutes may not be met yet by electronic editions of newspapers. Thus, on‐line newspapers may not be able to carry legal notices.