April 25, 2012

Roger Ailes may view “Fox Mole” Joe Muto as a disloyal, dishonest  ex-employee, but Muto may be entitled to the same legal protections that prevent the government from raiding the newsroom at Fox News.

If so, Muto, who was served with a search warrant Wednesday, would have something in common with another Gawker employee: Gizmodo’s Jason Chen, whose apartment was searched by police two years ago after he published photos of the iPhone 4 prototype.

The San Mateo County District Attorney later withdrew the search warrant for the evidence in its criminal investigation of the iPhone, which was legally considered stolen. Later, the DA decided there wasn’t enough evidence to indict Chen.

Like California, New York has a shield law that protects journalists from revealing sources and handing over newsgathering materials to law enforcement. Federal law also protects journalists from having their homes or offices raided by police bearing search warrants.

The Citizen Media Law Project’s legal guide says New York’s law should cover online publishing, as long as “such publication is carried out either as a business or to demonstrable professional standards; citizen journalists, as well as amateur reporting and blogging, are unlikely to be protected.”

Gregg Leslie, legal defense director for Reporters Committee for Freedom of the Press, said it covers journalists working online because it addresses “people who are gathering and disseminating news in all known ways at the time” that the law was passed.

In introducing “The Fox Mole,” Gawker said he was “our newest hire.” Forbes’ Jeff Bercovici reported that Gawker paid him $5,000. New York’s shield law law says a journalist must be be paid for his work in order to be covered.

Moreover, the courts have generally shied away from deciding what is considered news – say, revealing inane small talk between Sean Hannity and Mitt Romney or complaining about the low-rent bathrooms at the nation’s pre-eminent conservative news outlet.

Aside from things that are outrageously offensive, Leslie said, “courts should not be determining what qualifies as news … If it’s worth printing, it’s probably news.”

Complicating Muto’s situation is that he is both the journalist and the disgruntled source. So while the shield law may protect his newsgathering materials, it doesn’t protect him from being investigated for a crime or being sued for violating his employment agreement, Leslie said.

“You don’t overcome that contractual obligation by saying you were doing it as a journalist.”

Muto’s dual role as an employee and a journalistic source is similar to that of the ABC News reporters who got jobs at Food Lion for their undercover investigation into unsanitary food preparation in the early 1990s, Leslie said.

So if the shield law could apply to Muto, why did authorities raid his apartment?

Typically, a journalist is the third party in a civil or criminal case, having obtained materials or information for his story from another person, perhaps an employee of the company in question. Chen got the iPhone prototype from someone who found it in a bar.

But the New York County district attorney’s office probably sees Muto simply as an employee under investigation for taking something from his company, Leslie said. The search warrant states that authorities were looking for evidence of grand larceny, petty larceny and computer tampering.

Gawker Chief Operating Officer Gaby Darbyshire said by email Wednesday that she believes the shield law applies in this case, which means “the appropriate way to demand any information they want in this matter is by issuing us a subpoena, not raiding our offices. But then again, who knows? Fox might be able to persuade them to do it anyway.”

Federal law also could be in Muto’s favor, Leslie said. The Privacy Protection Act prevents state or federal authorities from seizing newsgathering materials unless they believe it’s about to be destroyed.

A key legal issue, Leslie said, is whether Muto is being investigated for breaking the law by taking something from Fox News or for publicizing what he obtained. “If they’re going after him solely because he went to Gawker, then … that’s when the privilege would kick in. The privilege would help him more if what he did wasn’t illegal per se, but they didn’t like that it was publicized.”

So it would be easier for Muto to argue for the protection of information he obtained while at Fox News – say, his knowledge of what it’s like to work with Hannity, or photos of the bathroom – than materials taken from the company without permission, such as videos. The search warrant says that Fox News believes that Muto accessed and edited more than 10 videos like the ones that were posted on Gawker. (Leslie doesn’t know what Muto’s employment agreement specified.)

Even so, Leslie said, “Fox should tread very lightly before saying someone who works for a private company or another organization has a duty to never disclose that.” Employees’ decisions “of when to disclose information is very beneficial to journalists, even Fox News journalists.”

Note: The Citizen Media Law Project’s guide originally stated that the law “covers only a narrow category of people,” but it was updated after this story was published. This story cites the updated version.

Correction: This post originally misspelled Gregg Leslie’s name.

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Steve Myers was the managing editor of Poynter.org until August 2012, when he became the deputy managing editor and senior staff writer for The Lens,…
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