The BLT: The Blog of Legal Times

Justice Dept. Defends Holder Testimony on Leaks

The U.S. Justice Department today defended the accuracy of Attorney General Eric Holder Jr.’s testimony about his role in leak prosecutions, refuting the notion among critics that he misled members of Congress and opened himself up to a potential perjury charge.

The dispute centers on whether Holder lied when he told the House Judiciary Committee on May 15 that he had never taken part in the potential prosecution of a journalist for the disclosure and publication of classified information. Holder said then that the prosecution of a journalist “is not something that I have never been involved in, heard of, or would think would be a wise policy."

DOJ, however, later acknowledged that Holder approved a search warrant in 2010 targeting the emails of Fox News reporter James Rosen. Prosecutors charged a government contractor, Stephen Jin-Woo Kim, with leaking information about North Korea to Rosen. The reporter, however, identified in a search warrant affidavit as a "co-conspirator," was never charged.

In a letter sent today to House Judiciary Committee members, a Justice Department lawyer said Holder's testimony was "accurate and consistent" with the facts of the investigation and prosecution of Kim, who is set to appear in court Tuesday morning in Washington for a status conference in the leak case.

Huffington Post Moves to Dismiss Lawyer's Defamation Lawsuit

The Huffington Post moved yesterday to dismiss a defamation lawsuit filed by a Panama-based lawyer, arguing that the site is an "interactive computer service provider" and can't be held liable for third-party content.

Juan Carlos Noriega sued The Huffington Post in December in U.S. District Court for the District of Columbia. Noriega claimed he'd had nothing to do with an article posted on the site in August under his name, and that the company had wrongfully refused to take it down.

The Huffington Post argued in its motion to dismiss (PDF) yesterday that it was immune to Noriega's claims under the federal Communications Decency Act. Even if The Huffington Post contributed to editing or promoting the post in any way, the media company argued that it's protected as long as a third-party provided the actual content.

Feds: Fired TSA Air Marshal Disclosed 'Sensitive' Information

A federal air marshal in Miami named Jose Lacson says he was just venting when he posted information on a website dedicated to law enforcement issues. The information, he later told investigators, was "fictitious." The content, he said, was "made up" and not based on facts.

Transportation security officials concluded Lacson disclosed "sensitive security information" in four comments on the web site Officer.com. An air marshal since 2002, Lacson was fired in 2011 for making unauthorized disclosures. Investigators determined the comments were detrimental to transportation security.

Does it matter, as Lacson claims, that he fabricated the content of the Internet posts? That's the question the U.S. Court of Appeals for the D.C. Circuit will confront at a hearing Thursday. Lacson contends the Transportation Security Administration can't label something "sensitive" if the information is false. DOJ lawyers argue the accuracy of the statements is beside the point.

The substance of the Internet posts is blacked out in court documents in the D.C. Circuit, but the comments, according to the government, are personnel-related. U.S. Justice Department lawyers said Lacson's posts "specifically referenced the number, deployment and attrition rate of Federal Air Marshals hired at various times and deployed at various duty stations."

DOJ Asks Appeals Court to Uphold Dismissal of Hiring Practices Suit

The U.S. Justice Department doesn't dispute that significant misconduct marred the review of candidates for a coveted slot in the department's Honors Program in 2006.

Department lawyers, however, want a federal appeals court to uphold the dismissal of a lawsuit that alleges senior DOJ officials improperly used candidates' political and ideological information as the basis of dismissal from the interview process. The suit in Washington's federal trial court flowed from an internal DOJ report in 2008 that criticized the politicization of DOJ hiring under Attorney General Alberto Gonzales.

DOJ on Friday told the U.S. Court of Appeals for the D.C. Circuit that the plaintiffs—three unsuccessful Honors Program candidates who were deselected for interviews—do not have evidence that DOJ officials ever created improper records about their personal lives. The Screening Committee had authority to destroy candidate records when DOJ officials no longer needed them, Daniel Tenny of the Civil Division appellate staff said in DOJ's submission in the appeals court.

The issue in the case, Tenny said, isn't the merits of the conduct of the screening committee. The intentional removal of a "liberal" candidate based on First Amendment activity, DOJ said, would have been improper. The plaintiffs must show that the screening committee created "irrelevant records" and that DOJ officials used that information to remove the candidate from the interview pool. DOJ lawyers argue in the brief that the plaintiffs can do neither such thing.

D.C. Circuit: Cigarette Graphic Warning Labels Violate First Amendment

A divided federal appeals court today struck down as unconstitutional proposed graphic warning labels that government officials wanted to slap on cigarette packs to deter smoking.

The U.S. Court of Appeals for the D.C. Circuit voted 2-1 against the U.S. Food and Drug Administration graphic labels that tobacco companies assailed and public health groups heralded. R.J. Reynolds Tobacco Co. and other companies sued the government in Washington's federal trial court to block enforcement of the FDA label rules.

"These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers," Judge Janice Rogers Brown wrote for the majority. "They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting."

Brown also wrote: "FDA failed to present any data—much less the substantial evidence required under the (Administrative Procedure Act)—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates."

Federal Courts Cracking Down on Social Media Use by Jurors

The federal judiciary released new model jury instructions (PDF) this week aimed at deterring jurors from using social media while they're hearing a case.

As reported by sibling publication the New Jersey Law Journal, the guidelines can be used in civil or criminal trials. The model instructions explicitly warn jurors against using sites such as Twitter or Facebook to look up information about a case, or to communicate about it.

The instructions were crafted by the Federal Judicial Center, at the request of the Judicial Conference Committee on Court Administration and Case Management, in response to a national survey of federal trial judges that found most are concerned about jurors' social media use and have acted to guard against it.

The full story is available on the New Jersey Law Journal's website.

Baker & Hostetler Partner to Lead Reporters Committee for Freedom of the Press

Updated at 3:19 p.m.

Bruce Brown, a former journalist and partner with the Washington office of Baker & Hostetler, is the new executive director of the Reporters Committee for Freedom of the Press. The organization announced its selection in a press release today.

Brown's practice at Baker has spanned all areas of media law, from libel and freedom of press cases to copyright and invasion of privacy matters. He'll remain of counsel at the firm after he begins his tenure with the committee on Sept. 10, according to the release.

In an interview this afternoon, Brown said that the committee "is really a great platform because it is the one organization that speaks to the courts, to Congress, to the public, within the journalism community all about the legal issues that affect the free press. For someone interested in journalism and someone interested in law and media law, it really provides a unique opportunity to work in this area."

Court: Any Partnership Between Google and NSA Can Remain Secret

A federal appeals court in Washington today said any communication about cybersecurity and encryption between Google Inc. and the National Security Agency can remain secret.

The U.S. Court of Appeals for the D.C. Circuit upheld the dismissal of a public records suit that an advocate for online privacy rights, the Electronic Privacy Information Center, filed in Washington's federal trial court. EPIC was exploring any partnership between Google and the NSA following a cyber attack against Google in 2010.

Writing for a unanimous three-judge panel, Judge Janice Rogers Brown rejected the argument that any partnership between Google and the NSA should be officially disclosed through a records request because the company and the agency's connection was earlier revealed in news articles.

“The fact that limited information regarding a clandestine activity has been released does not mean that all such information must be released,” said Brown, on the appellate panel with Judge Brett Kavanaugh and Senior Judge Douglas Ginsburg.

The Morning Wrap

Blackout: Many popular sites on the internet - including Google, Wikipedia, Reddit and Fark - went dark yesterday in protest of two internet legislation bills that opponents say would cripple free speech and the internet. The Hill reports that many lawmakers have withdrawn their support within the past 24 hours.

Keystone XL: President Barack Obama rejected plans to move forward with the controversial Keystone XL pipeline. Politico reports that the decision is a win-win for both parties.

Copyright: Just because something was in the public domain, doesn't always means it will stay there. The U.S. Supreme Court ruled yesterday that the Constitution doesn't prevent Congress from granting copyright protection to previously free, foreign works. The National Law Journal's Marcia Coyle reports.

Monument: A Bethesda billionaire will donate $7.5 million toward the repair costs of the Washington Monument. The Washington Post is reporting that government officials will make the announcement today.  

Alternate-side: New York City Council voted to ban the sanitation department from pasting stickers on vehicles that failed to move for street cleanings. The council argued the stickers violated the right to due process. The New York Times is there with a razor blade, rubbing alcohol and a jar of peanut butter to help you scrape it off.

McKenna Long Launches New Public Policy Blog

McKenna Long & Aldridge has a new forum to share insights on state and federal politics and public policy debates.

The firm launched the Politics, Law and Policy Blog on Tuesday to focus on topics that include energy, infrastructure, health care, transportation, taxes, cyber security and campaign and election compliance, as well as the 2012 elections. The blog, run by Eric Tanenblatt, head of McKenna's national government affairs practice, has contributions from the firm's public policy and regulatory affairs attorneys and advisers, including former state and federal officials.

“Our goal for this blog is that it serve as a non-partisan, informational forum focused on policy topics, debates, and developments across a wide spectrum of areas,” Tanenblatt wrote on the blog. “We’ve chosen to launch this blog at the start of 2012 for a clear reason. In this election year, we believe that coverage of public policy issues that is reasoned, thoughtful, and helpful is valuable now more than ever.”

The blog already contains posts from McKenna senior strategic adviser and independent consultant Howard Dean, the former Democratic National Committee chairman and Vermont governor, and McKenna managing director Cindy Gillespie, who was an aide to Republican presidential candidate Mitt Romney when he was the governor of Massachusetts.

Dean, who mounted a bid for president in 2004, takes a look at the Iowa caucuses and the battle ahead for the Republican presidential candidates, while Gillespie, with the assistance of Atlanta-based McKenna trial and appellate lawyer Bruce Brown, gives “A Lay Person’s Guide to Following Health Care Reform’s Supreme Court Challenge.”

The Politics, Law and Policy Blog is the third blog from McKenna. The firm also publishes Climate Change Insights, which focuses on topics that include renewable energy and energy efficiency, and the Pay to Play Law Blog, which examines state and federal legislative developments that impact the influence industry.