First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Wednesday, July 31, 2013

Prominent blogger is told Congressman's staff threatened him with a defamation lawsuit

Yesterday afternoon, Mike Masnick, editor of the Techdirt blog, stated that staffers for Rep. Mike Rogers (R-MI) told a Michigan-based reporter that Rogers, "could sue [Masnick] for defamation concerning things [he'd] said about Rogers."  On Twitter, Masnick stated that Rogers' office was "telling reporters that they want to sue me for defamation."

I asked Rogers via Twitter to confirm whether his office threatened Masnick, and, if so, what the basis for that threat was.  I got no response.  I also called Rogers' DC and Michigan offices after 9am local time this morning, but did not reach anyone who was able to answer my questions.  If the threat is genuine, it sure is tough to figure out what it could be based on.  Nevertheless, I tried to figure it out ...

Michigan has a one year statute of limitations for defamation claims.  So, I went through Masnick's Techdirt posts in the past year that concerned Rogers.  To me, they look like constitutionally protected opinion, or, to the extent they reflect any statements of fact, Rogers (as a public official) would have a very difficult time proving the requisite actual malice (knowledge of falsity or reckless disregard for the truth) even assuming any underlying factual assertions were false, which he would also have to prove. 

The most recent Masnick post about Rogers was an opinion piece from July 25 excoriating Rogers, who is Chair of the House Intelligence Committee, for his stance against the Amash Amendment that would have defunded sweeping portions of the NSA surveillance program, and for concluding a speech with what Masnick called the "obnoxious" suggestion that those in support of the Amash Amendment were only voting that way because of "Facebook likes."  I see no potential defamation claim there.  Instead, I see constitutionally protected opinion and some statements of fact tied back to a video of Rogers' speech embedded in the post.

Another story from a few months ago highlighted Rogers' purported conflict of interest in pushing for legislation that supposedly would benefit his wife's former company.  Saying a politician has a conflict of interest is, unless based on false information, protected opinion.  Saying it in the context of a heated debate about the merits of proposed legislation gets even further protection as the First Amendment's highest purpose is to protect political speech.  Furthermore, Rogers (a public official) and his wife (a public figure by virtue, at a minimum, of her marriage to Rogers) would have a hard time proving actual malice (as all public figures do) even if they could show that underlying statements were false. 

In another post, Masnick recounted the extraordinary backlash Rogers received from scores of people on Twitter when Rogers suggested that the only people opposed to the enormously unpopular CISPA cybersecurity legislation he championed were "14-year-olds in their basement."  Masnick also wrote an opinion piece deriding Rogers for that same comment.

Finally, Masnick shuddered at the thought that Rogers might be named the next director of the FBI.  Opinion.  Full stop.

I don't know whether Rogers endorsed any threats (veiled or otherwise) to sue Masnick for defamation, but the prospect that he did is disturbing.  Rogers is a powerful man.  He is in charge of the House Intelligence Committee in a time where more and more people are afraid of the power their Government holds over intelligence gathering methods. 

The threat of a defamation suit often stops speakers cold in their tracks.  It doesn't seem like Masnick has had that reaction, but it also looks like he has tougher skin than most (perhaps tougher than Rogers and/or his staff anyway).  In a tweet this morning, Masnick emphasized that the Rogers staff only said they "*could* [sue] likely knowing it would get back" to Masnick, but Masnick "doubts they're serious."

Let's hope: (a) there was some miscommunication about a threat to sue; or (b) any such threat was not serious.  It would be unbecoming for Rogers or his staff to threaten Masnick with a defamation suit.  To actually sue would be unseemly.

Tuesday, July 30, 2013

To Alpha, NJ: Cities cannot bring defamation suits. So cut it out.

Dear Borough of Alpha, New Jersey:

I've never visited you, but from your website, you look like a lovely Garden State enclave.  Now, please show some respect for the First Amendment.

Last week, you sued a few anonymous online commentators for defamation.  The suit claims that "Save Alpha" and others slandered the "good name, reputation and public standing" of the "Borough of Alpha."  Your suit wants to end future criticism and interference with borough business.

Here's the problem:  government bodies (like you) cannot sue for defamation. 

There used to be laws to prevent criticism of the King of England.  Then we had a Revolution.  Remember that?  Your State played an honorable role in challenging the royal prerogative to be free from critical examination.

Then, in 1798, Congress made the mistake of passing the Sedition Act, which made it a crime to publish "any false, scandalous and malicious writing ... against the government ... with intent to defame ... or to bring [it] ... into contempt or disrepute, or to excite against [it] ... the hatred of the good people of the United States."  That law, which expired hundreds of years ago, is deep in the dustbin of history.

Nearly fifty years ago, the US Supreme Court held that, "although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history," due to a "broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment."

Your suit claims that your Borough was defamed by citizens' comments concerning the way Alpha functions (or fails to function).  But, I don't care what you think defamed you.  It really doesn't matter because the rule is clear.  In this country, the King cannot sue for defamation.  Neither can the US Government.  Nor can you.  You simply don't have a "reputation" that can possibly outweigh the First Amendment.

I know some of your city council members also sued.  As public officials, they have a low probability of success because of the high burdens they must satisfy in a defamation case.  I highly doubt that their suit will work out for them, but there is no question your suit is garbage.

Yours truly,
Jean-Paul Jassy

Thursday, July 25, 2013

The NSA surveillance program's threats to the First Amendment

Yesterday, the House voted 217-205 not to stop the NSA's Internet surveillance program that collects vast amounts of phone and email communications from millions of Americans.  The program has many folks worried about threats to privacy rights and the Fourth Amendment.  But, the program threatens First Amendment rights, too.  Here's how:

(1)   No more anonymous speech

The First Amendment protects America's rich tradition of anonymous speech.  Benjamin Franklin and Thomas Jefferson used pseudonyms.  Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers, which advocated the ratification of the Constitution itself, under fictitious names.  

It is often because of an overbearing government that individuals rightly choose to keep their identities veiled.

But, that choice is removed when the Government asserts the authority to gather everything transmitted over the Internet.  Imagine if the Redcoats could find Junius, a still unidentified but highly influential, pamphleteer whose treasonous columns were widely reprinted in pre-Revolutionary War newspapers. 

So long as we all keep using phones, email and social media -- and we will -- our speech is not truly anonymous, at least not from the eyes and ears of the NSA. 

(2)   Chilling speech and the receipt of speech

I put the words "al Qaeda" in a previous post.  And I just used those words again.  I am probably on a list somewhere now, and so are you for reading this.  Don't bother leaving.  I'm sure it's too late.

Reports show that some people already are more careful about what they say and how they use the Internet because of the NSA program.  That means speech is being chilled, and when speech is chilled it also is not being heard or read.  Chilled speech is bad for the First Amendment because it is bad for a society that prides itself on open dialogue.

The law in this area is less than ideal.  The Supreme Court recognizes the dangers of chilled speech, but a closely-divided (5-4) decision from 1972, Laird v. Tatum, held that an Army surveillance system designed to control civilian protests did not violate the First Amendment.  In the 21st Century, the Ninth Circuit held that a class action could proceed against the Government for warrantless wiretapping, while the Sixth Circuit held that plaintiffs in a similar case could not proceed. 

(3)   Threats to a free and independent press

I'm going to lump a few government overreaches together for this part.  First, reporters undoubtedly are caught up in the NSA dragnet.  But, we also know now that the Department of Justice was spying on Associated Press and Fox News reporters, getting their emails and phone records and who knows what else. 

A democracy depends on an independent press serving as a watchdog on government.  It is one thing for agencies to operate in secret (we know that has to happen to get certain things done), but secretly spying on the press is another story.  If the Government is spying on the press -- even as part of a broader program -- it is compromising the independence and freedom of the press to gather and report on a host of important matters, particularly the functioning of the Government itself.

(4)   Infringing on the right of association
In 1958, the Supreme Court rejected Alabama's effort to get the membership rolls for the NAACP, establishing a right to association rooted in the First Amendment:  "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the ... freedom of speech."

Today, the NSA could figure out the NAACP's membership rolls by accessing listervs, phone records, emails or whatever else might be available as part of its surveillance program.  And here's the really scary part: the NAACP would never know. 

At least Alabama's strong arm tactics were transparent.

Monday, July 22, 2013

Climate change on trial in a defamation case

A modern-day Scopes Monkey Trial is unfolding in a District of Columbia defamation case.

In 1925, two of the most famous lawyers of the time, Clarence Darrow and William Jennings Bryan, argued over whether John T. Scopes should have been prosecuted for teaching evolution in public school.  Scopes was convicted and fined $100, although the conviction was later overturned on a technicality.

Now, Pennsylvania State University climatology professor Michael Mann, a prominent researcher in the study of global warming, is in a legal fight with the Competitive Enterprise Institute (CEI) over his climate change research.  As today's article from Onward State explains, CEI accused Mann of manipulating data regarding the connection between human behavior and global warming.  Penn State investigated the allegations and exonerated Mann, as did British authorities and the EPA.

In an editorial published just after the release of the Freeh report on the Sandusky sexual abuse scandal at Penn State, CEI labeled Penn State's internal investigation of the Mann issue "hogwash," called for a new investigation, and stated that "Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he molested and tortured data."

Then, an online National Review piece by Mark Steyn, linked to the CEI editorial and wrote that he was "not sure" he would have "extended that metaphor all the way into the locker-room showers with quite the zeal" as the CEI editorial, but that the CEI piece "has a point" as Penn State's internal investigation was a "joke."  The National Review post also states that Mann "was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus."  (The "hockey stick" refers to the sharp rise in global temperatures, when represented on a graph, over the past 150 years.)

Mann sued CEI and National Review for defamation in the District of Columbia.

On Friday, July 19, the Court denied National Review's special motion to dismiss Mann's case under D.C.'s anti-SLAPP statute.  In its ruling, the Court rejected arguments that the National Review piece was constitutionally protected opinion, rhetorical hyperbole or fair comment because, according to the Court, it was "something more than brutally honest commentary." 

The Court held that "to call [Mann's] work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff's work has been investigated and substantiated on numerous occasions)."

The Court went on to hold that National Review's statements were "based on provably false facts," which means Mann's case must proceed, presumably so the truth or falsity of the facts can be "proven."

Setting aside that the text and tenor of the National Review article smells strongly of opinion (i.e., that the Court's decision was simply wrong), the ruling begs the question:  is the evidence supporting climate change going to get its day in court?  And, is this how it happens ... in a defamation case?  Yes, that's what we're looking at.

In 2009, the US Chamber of Commerce demanded that the EPA hold a "trial" on climate change,  conjuring up the ghost of Mr. Scopes by labeling it, "the Scopes monkey trial of the 21st century."  The EPA didn't bite; but, the Chamber may now get its wish.

The case could be narrowed to whether National Review and CEI falsely stated that Mann distorted data and their respective states of mind at the time of the purportedly defamatory publications, but both sides seem poised to tackle the broader issues of climate change in order to bolster their positions.

That's what happened in 1925:  it wasn't simply whether Scopes taught evolution, it was whether there was a real basis for doing so.

This could be a lot more than just a run-of-the-mill defamation case ...

Thursday, July 18, 2013

Playwright Threatened With Bogus Suit Re "Killing Fields" Actor

An article today in the Los Angeles Times reports that playwright Henry Ong is being threatened with a lawsuit by the estate of Academy award winning actor Haing S. Ngor.  The threatened suit has no merit and Ngor's estate should give it up.

Ngor, a gynecologist, survived the dictatorship of Pol Pot in Cambodia and later won an Oscar for his role portraying a journalist in "The Killing Fields," a 1984 movie about the Khmer Rouge regime.  Ong wrote a play, "Sweet Karma," about a "Dr. Vichear Lam" that is based on Ngor's life.  Promotions for the play avoid using Ngor's photographic likeness.

In the play, "Dr. Lam" is depicted as, among other things, an adulterer who has sex with a patient.  Ong says the play is based on published accounts about Ngor and interviews with people close to Ngor.

Without providing details, a representative of Ngor's estate told the LA Times that "legal action" against Ong is "imminently pending."

Bad idea.

Dead people -- or, rather, the estates of dead people -- cannot sue for defamation.  That is well-established in the law, particularly in California.

A more likely scenario is a suit alleging a violation of Ngor's right of publicity.  Dead people -- I mean the heirs of dead people -- can sue for that in California, but the law permitting such suits expressly excludes plays. 

Plays are fully protected by the First Amendment, particularly when they recount facts.  Setting aside defamation concerns, the First Amendment also protects references to real persons in fictional stories.  For example, the California Supreme Court held that the use of Rudolph Valentino's name in a fictionalized film was protected.   The law also protects the use of real persons in works that blend fact and fiction for dramatic impact.

The show must go on for "Sweet Karma".

Bad News for Bradley Manning Means Bad News For First Amendment

This morning, a military judge refused to dismiss the charge against Bradley Manning for "aiding the enemy" when he disclosed classified information to WikiLeaks  That is bad news for Manning.  It is also bad news for the First Amendment.  Here's why ...

A New York Times article gives a good account of this morning's events.  The Government's argument boils down to this:  Manning was "aiding" al Qaeda because he disclosed information to WikiLeaks, which is on the Internet, and al Qaeda has access to the Internet.  That's it.  That's flimsy.

Under military regulations, "aiding the enemy" applies to “any person who ... gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly,” whether or not the "intelligence" is classified.  That means any time anyone in the military with any information shares that information on the Internet in any context, that person could be prosecuted because the information might be accessed by the enemy. 

On the other hand, it also might be accessed by the public and press, leading to needed changes in our system.

Manning's defense lawyers argued that Manning was not "aiding the enemy" because he was trying to share information with a media outlet (WikiLeaks) and "spark" debate and reform.  Well, the former certainly happened.  The jury is still out on the latter.  See my previous post on the subject. 

The bar should be higher -- e.g., proof that harm was imminent or actually occurred (see another post of mine on a related subject) or at least some proof that the enemy actually received/accessed the material.

According to an excellent blog post by Ben Wizner of the ACLU, over a thousand active duty members of the military maintain blogs.  What is happening to Manning better be a wake up call to those members not to discuss anything that has anything to do with the military because whatever they say might be accessed by the enemy.

The military traditionally has a lot of control over its members' speech.  This makes sense in the heat of battle, but when it comes to retrospective looks at policy positions and simply embarrassing information (i.e. most of what Manning disclosed), it makes much less, if any, sense at all.

Wednesday, July 17, 2013

Asiana decides NOT to sue KTVU

According to a report from Reuters this morning, Asiana Airlines has come to its senses.  

Asiana executives have changed their minds, and will not sue KTVU for its report on July 12 that erroneously identified the pilots of Asiana Flight 214 with offensive names.  

Reuters reports that Asiana's statement reads:  “Asiana Airlines has decided not to proceed with the case since KTVU has issued a formal apology and in order for us to focus all our efforts on managing the aftermath of the accident."

KTVU did the right thing by promptly apologizing for its erroneous report.  Asiana threatened to sue after KTVU apologized.

Today, Asiana did the right thing by deciding not to sue ... even though it should never have made the threat in the first place because it had no basis to sue and KTVU had already apologized.  See my post of July 15. 

Tuesday, July 16, 2013

What Results of Today's First Amendment Survey Mean

Earlier today, the First Amendment Center put out its excellent annual report on the State of the First Amendment.  Let's take a look at some of its results and what they mean in real world terms.

When over 1,000 American adults were asked about "the single most important" freedom we have, 47% said freedom of speech (with freedom of religion coming in second at 10%).  Great!  But, 34% believe "that the First Amendment goes too far in the rights it guarantees."  This is a big jump from last year when only 13% agreed with that statement.  Not great; although, it is not clear from the Report what "going too far" really means.

The report notes that, in the past 15 years of polling, there have been two marked jumps in the view that the First Amendment "goes too far": after the September 2001 terrorist attacks and now (this year's survey was conducted in May 2013, shortly after the Boston Marathon bombings).  This is a potent reminder that the value Americans place on even our most cherished freedoms may fluctuate because of fear.  

This fear may be reflected in other ways.  As compared with five years ago, more Americans (44% today vs. 37% in 2008) believe that journalists should "be required to reveal their confidential sources to make America safer."  A majority (51%) of Americans still disagree with forcing journalists to reveal their sources under such circumstances.  This poll was conducted in May 2013, before Edward Snowden asked to be revealed on June 9 as the source of massive NSA leaks. 

Although only 1% identified freedom of the press as the right they hold most dear, the Report shows the perceived level of bias in the media is at its lowest point since 2004.  That is encouraging, but surprising considering how often we hear about alleged bias in the media.

And, it is tempered by another statistic: a whopping 74% of Americans get "most" of their news from media sources whose "views" are in line with their own.  Perhaps that means Americans perceive less bias simply because they exercise their own bias in choosing their unbiased news sources.

Monday, July 15, 2013

Honking and flashing headlights = free speech

Two cool articles published today raise an offbeat First Amendment issue: can you exercise First Amendment rights with your car?  Yes, you can.

Emily Foxhall of the Los Angeles Times wrote today about an incident yesterday where a motorist, Nick Silverman, was ticketed by the Los Angeles Police Department for honking his horn to show his support for people protesting the verdict in the George Zimmerman trial.  Apparently, the ticket actually states that Silverman was "honking to support protestors."  It also states that he honked "excessively," but he says he only honked once. 

In 2011, the Washington Supreme Court struck down an overbroad law that restricted honking, holding that honking can be a form of protected speech under the First Amendment.  That kind of precedent makes sense as the U.S. Supreme Court consistently recognizes conduct that communicates (e.g., flag burning) as a form of speech.  Silverman's honk in support of protestors is protected as well.

In another piece published today, Amy E. Feldman of Constitution Daily reports that individuals in Utah, Florida and Tennessee successfully disputed citations for obstructing justice when they flashed their headlights to warn oncoming drivers of a speed trap ahead.  These courts found that the flashing headlights were a form of speech. 

Asiana's absurd threat to sue TV station for defamation

Asiana Airlines announced this morning that it will sue KTVU, a San Francisco Bay Area television station, for incorrectly reporting the names of the pilots of Asiana Flight 214 that crashed July 6.  A lawsuit would be beyond ridiculous and has no basis in the law.

On Friday, July 12, an anchor on KTVU reported, while showing a graphic onscreen, that the names of the pilots on Asiana's Flight 214 were "Sum Ting Wong", "Wi Tu Lo," "Ho Lee Fuk," and "Bang Ding Ow."  It is not clear how KTVU got these fake and offensive names, but they were actually confirmed by an intern at the National Transportation Safety Board (NTSB).  The station and NTSB have already apologized for the error.

Asiana now threatens to sue for defamation, claiming that its reputation was harmed by the broadcast.  Twitter is bursting with comments that carry the same basic theme:  it was the plane crash that hurt your reputation, not KTVU's broadcast.

The names were offensive, and someone was playing a prank, but let me be very clear:  Asiana has no lawsuit here.

First, there is no harm, at least none Asiana would ever be able to show in court.  The broadcast was promptly corrected.  People are not going to stop flying Asiana because it supposedly employs a captain named "Sum Ting Wong," but they may well stop because of a crash landing.  Asiana would have to prove that they suffered harm because of KTVU's broadcast separate and apart from the crash.  No chance that will work.

Second, Asiana -- which is undoubtedly a public figure because, among other things, it advertises extensively and is heavily regulated by governments across the globe -- would have to prove actual malice (i.e., that KTVU knew or had reckless disregard for the truth or falsity of its broadcast).  Asiana will not satisfy that burden, which requires clear and convincing evidence.  KTVU confirmed the names with the NTSB and then promptly corrected the error.  Those two things alone gut any possible showing of actual malice.

Third, a prank is not a statement of fact and a defamation claim requires a statement of fact.

There is more that could be written, but let's wait and see if Asiana follows through on its threat before wasting more time on this nonsense.

Sunday, July 14, 2013

Cameras in courtrooms, like in Zimmerman's trial, should be the norm

The trials of George Zimmerman, Casey Anthony and Ted Bundy, as well as the 2000 election saga ... what do they all have in common?  They were televised in the Florida state courts.  Whatever you think of the outcomes in those matters, the Sunshine State, true to its name, leads the way in shedding light on its judicial proceedings.

More than once, I have worked to convince a judge that having cameras in the courtroom is a good thing.  "But it will disturb the decorum of the courtroom."  No, cameras now are unobtrusive and silent, and often media companies will pool resources to use just one camera.  "It will turn the courtroom into a circus."  No, your honor, I'm sure you won't let that happen.  "It will make the witnesses feel uncomfortable."  Studies show that witnesses forget the cameras are there after a few minutes.  "It will make the lawyers grandstand."  That will or won't happen either way, and your honor can keep that in check.

The basic point:  the First Amendment gives a right for the public to attend trials in person, so why not extend that right to a broader audience via cameras?  Florida takes this approach, and attracts a lot of attention for its cases.

And, we watch right?  So many folks want to see what happens next.  As they do, the public learns about our justice system from watching, and also from listening to pundits who have actually seen the proceedings.

In California, there is a 19 factor test a state court judge must consider before a camera comes into the courtroom.  Yes, you read that right ... 19 factors.

In federal court, aside from a handful of pilot programs, judges have even less discretion.  Judge Vaughn Walker wanted to televise the Prop. 8 trial, but the US Supreme Court stopped him.  So much for giving judges control over their own courtrooms.

Meanwhile, C-SPAN reports that a majority of the Supreme Court refuses to allow cameras in the Supreme Court itself. 

Get over it.  Cameras in the courtroom inform and educate.  They teach us about the triumphs and failings in our justice system.  They are consistent with a free press and a free society.

Further reading:  For an excellent and scholarly look at cameras in the court, read this article by Mickey Osterreicher of the National Press Photographers Association.

Saturday, July 13, 2013

Reaffirming Need for a Federal Reporter's Shield Law

One of the bright spots in yesterday's DOJ report on how it will be nicer to the media was the Obama Administration's reaffirmation of the need for a federal reporter's shield law.  Why is this important? 

A federal reporter's shield law will provide protection for reporters when they are investigated by federal agencies and called upon to testify or produce their materials in the federal courts. 

In order to have a truly free press that is able to keep its eye on the government and report on public affairs, reporters should not be made a tool of the government (via subpoenas or otherwise) and their sources, processes and unpublished work should remain confidential except in the rarest of circumstances.

Forty states plus the District of Columbia have a codified shield law (i.e., a written statute) and another nine states have case law recognizing at least some protection for reporters.  Most federal circuit courts also recognize at least some protections for journalists, rooted in a proper understanding of the First Amendment, but some federal courts do not recognize such protections. 

What does this mean?

Here is an illustration ... picture a reporter who is subpoenaed to reveal a confidential source before a state courthouse in one case and is simultaneously subpoenaed to reveal the same information in a federal courthouse in another case.  Even if those courthouses are across the street from one another, the reporter could lawfully resist the disclosure of subpoenaed information in the state courthouse; but be required to testify under the threat of being held in contempt of court in the federal courthouse.

Does that make sense when the reporter's shield is rooted in First Amendment principles?  No, it does not.  

It is time for every journalist to have at least some protection in every courthouse throughout the country.

Kudos to the Obama Administration for reaffirming the need for Congress to pass a federal reporter's shield law.  Previous iterations of such a bill passed the House overwhelmingly (398 to 21) as well as the Senate Judiciary Committee.  Now it is time for Congress to kick into gear a stalled effort on a federal shield law to protect reporters nationwide.

Further reading: a good analysis of the degree to which the DOJ Report is moving generally in the right direction was put together by Brian Fung of the National Journal and can be found here.

Friday, July 12, 2013

DOJ's New Guidelines for Snooping on Reporters

A few hours ago, the US Department of Justice issued its revised report on news media policies.  The report comes after recent revelations that the DOJ was spying on reporters and after closed door meetings between Attorney General Eric Holder and media advocates.

A few bullet points and highlights from the Report:
  • "It remains the Department's policy that members of the news media will not be subject to prosecution based solely on newsgathering activity."  
  • DOJ "views the use of tools to seek evidence from or involving the news media as an extraordinary measure ... [and] a last resort."
  • The Administration will continue to support efforts to pass a federal reporter's shield law that would provide protection for the media from having to reveal sources and unpublished material.
  • DOJ will give notice to the media before seeking access to their records "in all but the most exceptional cases," and such cases could include "a clear and substantial threat to the integrity of the investigation."
  • It will further limit the already very limited circumstances where the government can search newsrooms.
  • There is a vague reference to double-checking that there really is a potential harm before "media-related records" are sought in "investigations of unauthorized disclosures of national defense information."
BUT, there are ironies and problems:
  1. The DOJ's brazen spying on reporters came during the administration of President Obama, a former professor of constitutional law.
  2. The secret investigation of reporters may never have come to light had it not been for ... good investigative journalism.
  3. When discussing the issues that led to this Report, Attorney General Holder wanted to have the discussion behind closed doors, rather than on the record before the media.
  4. The new policy leaves open a big loophole for the Attorney General to forgo notice if he or she determines that telling the media about the investigation would interfere with the investigation of the media. Sound circular?  I think so too.
  5. A new pseudo-independent "News Media Review Committee" will be formed to advise the Attorney General, but the Committee is composed entirely of DOJ officials.
  6. When the DOJ does get its hands on the media's "communications records" it promises to keep them confidential.  Hopefully, another Edward Snowden type won't be getting those records.

The First Amendment protects the media when disclosing classified material

Last month, U.S. Representative Peter King (R-NY), who sits on the House Committee on Homeland Security, made clear on CNN and Fox News that he believes members of the media should be criminally prosecuted for disclosing confidential information in the course of reporting the news. 

Should the First Amendment protect the mainstream and not-so-mainstream media (e.g., WikiLeaks) from criminal prosecution for the disclosure of classified material?  Yes, it should and it does.

Unless you read the First Amendment literally ("Congress shall make no law ..."), the reasons why the First Amendment protects the media for disclosing classified information are not yet set out in a formal test.

I propose one here.

In order to prosecute a reporter for disclosing classified information, the government should be required to prove all of the following beyond a reasonable doubt:
  1. A bad faith intent
  2. To cause direct, immediate and irreparable injury 
  3. That is inevitable or that has already occurred
This is, and should be, a heavy burden to satisfy.  It is the government's job to figure out how to keep truly classified information secret.  It is the media's job to inform the public.

The "bad faith intent" element comes from Gorin v. U.S., where the Supreme Court held that the Espionage Act of 1917 (the law that would most likely be used to prosecute the media) requires the government prove the defendant acted "in bad faith".  It is hard to imagine the mainstream American media acting with a "bad faith" intent to damage the United States.  After all, American reporters live here, too.

The second two elements are derived from the Pentagon Papers case and Bartnicki v. Vopper.  In the Pentagon Papers case, Justice Brennan came the closest to articulating a test for stopping the publication of supposedly classified reports: such reports may only be enjoined with "proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea."

And, in Bartnicki, the Court held that, absent a need of the highest order, an individual may not be punished for publicly disseminating newsworthy information even where the underlying material was obtained unlawfully by a third party.

How is this applied in, for example, the Bradley Manning case?  There is no there there. Former Secretary of Defense Robert Gates called the concerns over the Manning/WikiLeaks disclosures "overwrought," adding "is this embarrassing?  Yes. Is it awkward?  Yes.  Consequences for U.S. policy?  I think fairly modest?" 

And as for the material leaked by Edward Snowden ... so far there is a lot of yelling, but no evidence -- and certainly none beyond a reasonable doubt -- of bad faith, or inevitable, direct, immediate and irreparable injury from media reports. 

Thursday, July 11, 2013

Is WikiLeaks legitimate media? Would that help Bradley Manning?

Yesterday, Pfc. Bradley Manning's defense team rested in his court martial trial for releasing a trove of classified information to WikiLeaks, a website designed to accumulate and disperse confidential information.  Manning's lawyers called to the stand Harvard Law Professor Yochai Benkler, an expert on Internet journalism, who testified that WikiLeaks is a legitimate news operation.  Could that really help Manning?  It might.

Charlie Savage of The New York Times reports that Manning's lawyer David Coombs aimed to have Benkler establish that Manning was not trying to "aid the enemy," which could carry a life sentence. 

Instead, Benkler insisted that Manning was feeding information to an outfit that was designed to accumulate and disseminate newsworthy information.  Although there is significant debate about WikiLeaks and its methods and motivations, isn't that what most media outlets are designed to do?  Benkler acknowledged that not every document of the thousands transmitted by Manning was newsworthy, but the point is that the database contains matters of public interest.

If WikiLeaks is a legitimate media outfit, would that relieve some of the pressure on Manning?  Could it be that Manning was trying to educate the public and also give "aid" to the enemy?  Knowing that the enemy might see what you are sharing could be understood to give "aid" in a raw sense.  And, it is well-established that neither the press nor the public are above laws of "general applicability" (that gets fuzzy sometimes -- more on that in a later post). 

There may, however, be something special about the fact that Manning released the information to WikiLeaks, at least as an intermediary, rather than doing what we imagine most alleged traitors doing -- i.e., spying for the enemy and giving away state secrets for something else in return.

All told, the government has an easier road to pursue the leaker (i.e., Manning), as compared with a media outlet receiving the material.

But, what if the next target for prosecution is WikiLeaks or the mainstream media for publishing material provided by the likes of Manning or leaker-du-jour Edward Snowden?

Upcoming posts will explore the legal basis (really the lack thereof) for any such prosecutions in the modern era, and why it would be scary and bad for all of us if the media came under such attack.

First things first

Here is how I start each course I teach on the First Amendment:  "We are going to spend an entire semester studying one sentence. ... It is the most important sentence in the history of the law."

The First Amendment is the backbone of every other freedom we hold dear.   It is America's most profound contribution to liberty.

Without the First Amendment's protections for free speech, a robust and independent press and religious liberty, our society would not -- could not -- be the same.  There would be no voting as we know it and no freewheeling discussions about government surveillance.  Religious strife would make this country barely recognizable.

This blog is a tribute to the First Amendment, especially as it relates to the world's greatest invention for the dissemination of free thought and information: the Internet.  

And, here's hoping that someone besides my Mom and closest friends think anything I say in here is remotely interesting ...