The First Amendment and the Gay Marriage Decision

The Supreme Court's decision in Obergefell v. Hodges, recognizing marriage equality for same-sex couples, is an enormously important milestone on the road to full equality for the LGBTQ community.  Its detractors vow to resist the ruling, claiming in particular that vendors should be able to refuse to provide food, flowers, etc. at gay weddings, and that protesting officiants should be able to opt out of performing such marriages.

These challenges find little, if any, support in the First Amendment.  Forcing a rabbi or priest or other member of the cloth who opposes gay marriage for religious reasons to conduct a same-sex wedding would directly intrude on religion.  But, having a disagreeable county clerk officiate such a wedding would not violate the First Amendment. 

The continuing battle will be whether religion can serve as a justification for discrimination based on sexual orientation and gender identity under laws other than the First Amendment.  It cannot and should not, but there is more legal work to be done.

The First Amendment Is No Defense To A General Law

The First Amendment's Free Exercise Clause states that Congress (or, by extension, local and state governments) shall not prohibit the free exercise of religion.  The Free Exercise Clause does not, however, exempt people from following neutral laws of general applicability.  That means:  laws meant to apply to everyone do not give anyone a free pass simply because religion is invoked.

The rule comes from Employment Division v. Smith, a case where the Supreme Court held that Native Americans could not use peyote (a Schedule I controlled substance -- i.e., an illegal drug), even for religious rituals, and also claim unemployment benefits.  The Court ruled that, because no one was supposed to use peyote, and the individuals at issue were legitimately discharged from their jobs for using peyote (for religious reasons), the State could fairly deny them unemployment compensation.  Who wrote the decision for the Court in that landmark case?  Justice Scalia.

Following the logic in Justice Scalia's opinion, jurisdictions that disallow discrimination based on sexual orientation and/or gender identity (including in federal government contracting) cannot rely on the First Amendment's religious freedom guarantee as a defense to a discrimination claim.  For example, the New Mexico Supreme Court recently held, over First Amendment objections, that a photographer could not refuse to photograph a gay wedding because that State has a public accommodation law, a neutral law of general applicability, that forbids discrimination based on sexual orientation.

But not all jurisdictions in America bar discrimination based on sexual orientation.  Yesterday, the Los Angeles Times told the story of Katrina Martir, a teacher in Kentucky who was fired for revealing that she is lesbian, with no legal recourse because neither her county nor her State barred such discrimination.  In such unfortunate cases, the party discriminating needs no First Amendment "defense" because the law did not forbid the discrimination in the first instance.

Now, however, under Obergefell, it is not legal for the government to deny marriage licenses to same-sex couples anywhere in the U.S.  Thus, a pastor or other religious figure (i.e., not a government agent) could legitimately raise deeply-held religious objections to performing a gay wedding.  But, a county clerk or magistrate judge no longer has a such an argument.

Ken Paxton, the Attorney General of Texas defiantly vowed to resist Obergefell by telling government employees in Texas that they have a First Amendment right not to officiate same-sex marriages.  The Attorney General's edict fundamentally misunderstands the law.  Government employees who officiate marriage ceremonies are not members of the clergy nor are they random citizens entitled to exercise their religious rights.  They are on the job.  Their job includes following the law, and it is disgraceful for the highest-ranking law enforcement official in their state to instruct them otherwise.  A county clerk who officiates marriages is acting as the face of the government, not a religion and not their own personal perspective.  The First Amendment does not permit the government to refuse marriage licenses based on religion.  That would squarely violate another clause in the First Amendment, which forbids the establishment of religion. 

Religious Freedom Restoration Act 

In response to the Supreme Court's decision in Employment Division v. Smith, Congress (apparently very concerned about Native Americans' right to use peyote for religious reasons) passed the Religious Freedom Restoration Act, giving a statutory right to invoke religious freedom in response to otherwise generally applicable federal laws.  RFRA -- not the Free Exercise Clause of the First Amendment -- has later been used as a justification for allowing people, and even corporations, to avoid laws of general applicability.

The most recent, famous application of RFRA was in Burwell v. Hobby Lobby, when the Supreme Court, in a decision side-stepping the First Amendment, ruled that a closely-held (family owned) corporation with religious objections did not need to provide employees with insurance coverage to obtain contraceptive drugs despite Obamacare regulations.

In the Burwell v. Hobby Lobby decision, the Court addressed an important issue: would RFRA allow businesses to invoke religion to discriminate based on race?  Of course not, the Court wrote, in an opinion authored by Justice Alito and joined by Justice Scalia (author of Employment Division v. Smith) and Justice Kennedy (author of Obergefell v. Hodges): "Our decision today provides no such shield [against racial discrimination].  The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."  This rule barring racial discrimination, even for religious reasons, follows on decades of cases and laws ensuring that people of all races are permitted to participate in society equally.

As sweeping and monumental as the Obergefell decision is, it does not clearly resolve a lingering issue about whether the government has a compelling interest in stopping sexual orientation discrimination the way it does with racial discrimination.

But, it is quite clear from Obergefell, that, in the context of weddings at least, same-sex couples have equal rights to opposite-sex couples to government recognition, and that the First Amendment cannot be used as a justification to treat same-sex couples differently.  The Court explained that laws and other government actions banning same-sex marriage "abridge central precepts of equality" and are unconstitutional under the Equal Protection Clause of the 14th Amendment.  Apparently the Texas Attorney General missed that page in the opinion.

The Obergefell decision expressly acknowledges -- as it must -- that the First Amendment still protects vocal opposition to gay marriage; "The Constitution, however, does not permit the State to bar same sex couples from marriage on the same terms as accorded to couples of the opposite sex."  The decision also acknowledges that one of the bases for recognizing marriage as a fundamental right comes from the right of association, which is grounded in the First Amendment.

"It's certainly going to be an issue"

During oral argument in the Obergefell case, Justice Alito noted that a religious school lost its tax exempt status for opposing interracial marriage and asked if the same thing could happen to a religious school that opposed same-sex marriage.  Solicitor General Donald Verrilli (who was arguing in favor of gay marriage for the federal government) candidly responded:  "... It's certainly going to be an issue."  It is an issue because of the inconsistency in the law, nationwide, in disallowing discrimination based on sexual orientation.  As I noted, many states do not outlaw discrimination based on sexual orientation, and many states have their own versions of RFRA.

The So-Called "First Amendment Defense Act"

One week before the Court issued its decision in Obergefell,  Senator Mike Lee (R-UT) and Representative Paul Labrador (R-ID) introduced the "First Amendment Defense Act."  The law is meant to stop "discrimination" against people who believe (or act on their belief, whether religious or "moral") that marriage is limited to one man and one woman. In other words, the law basically says:  "Don't discriminate against people who discriminate." The proposed law would be unconstitutional.

First, this proposed law assumes that the First Amendment itself is no defense.  If this is really what the First Amendment meant, we wouldn't need a new law to "defend" it because the First Amendment is part of the Constitution, the supreme law of the land.   

Second, this proposed law would enshrine and essentially endorse discrimination against same-sex couples, contrary to the holding in Obergefell.  Imagine if it read:  the federal government will not deny taxpayer-funded government contracts or grants to anyone who, for religious or other "moral" reasons, acts on their opposition to interracial marriage.  Wrong.  Bad.  Now, replace the word "interracial" with "same-sex".  The proposed law simply cannot be squared with what the Court just held in Obergefell -- that the due process clause of the 14th Amendment to the Constitution protects "personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."  A contrary system would consign same-sex couples "to an instability many opposite-sex couples would find intolerable in their own lives."

What if a person who believes firmly in supporting gay marriage for religious or moral reasons refuses to help fund a government contract or grant award to a person who disagrees with gay marriage?  Under the proposed law, there would be no support in the law for the pro-gay marriage religious or moral conviction. Such a viewpoint-based law, like all viewpoint-based laws, would be presumptively unconstitutional, and could not survive First Amendment scrutiny.  Ironic, isn't it?  The "First Amendment Defense Act" would violate the First Amendment.

Final Thoughts

Obergefell was decided correctly.  I look forward to the day when the law will not countenance discrimination based on sexual orientation or gender identity in any context.  We are not there yet.

As strongly as I believe in full equality, I do have a problem with forcing members of the clergy to perform marriage ceremonies antithetical to their strongly-held beliefs.  That is a line I think is fairly drawn in favor of religion -- no matter how unfortunate I perceive those religious views to be.   I have no problem, however, with telling county clerks -- who are the face of the governments that employ them -- to perform gay marriages even if their religious beliefs (or their moronic Attorneys General) dictate otherwise.

In order to fully realize the equal dignity recognized in Obergefell, we need more laws making clear that discrimination against those who are LGBTQ has no place in our society or under our Constitution.

This is what self-censorship looks like

Two weeks ago, I explained how the NSA surveillance program threatens First Amendment rights, including the chilling of speech because of the fear of government surveillance. This week, two secure email providers shut down.  This morning, The Guardian revealed that, through a loophole in the law, the NSA can see your emails and listen to your phone calls without a warrant.  This afternoon, President Obama vowed to make changes to the NSA system. 

The part in the middle (about the secure email service providers shutting down) shows how this dramatic script evolves into a free speech snuff film.

Lavabit.com, a provider used by leaker Edward Snowden, shut down its secure email service yesterday.  The founder, Ladar Levison, explained his dilemma:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit ... I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests. ... I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

No more Lavabit means no more speech on Lavabit. 

So, why don't Lavabit's users just go somewhere else ... like Silent Circle, another secure email provider?  Oh, yeah, Silent Circle also announced its "preemptive" shut down this week:

Silent Circle has preemptively discontinued Silent Mail service to prevent spying.  ... the less of your information we have, the better it is for you and for us.  ... We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.

Another such provider, TorMail, is gone too.

I don't (I mean didn't) use any of these services, but I might like to.  I might like to think that maybe, just maybe, there is a way for me to communicate without warrantless spying by the NSA.  Sadly, I now have to catalog those wishes and hopes along with being a good basketball player and owning a Ferrari -- i.e., things that ain't too likely.

Taxing Lap Dances: A Risque Threat To Speech Everywhere

The U.S. Supreme Court is considering whether to take the case of 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from New York's highest court holding that the government may tax erotic dancing but not other forms of dancing.  

The government should not tax some forms of expressive conduct more than others.  The Supreme Court should take the case and reverse the New York court's decision.

The Supreme Court recognizes that nude dancing is "expressive conduct within the outer perimeters of the First Amendment."  And, the Supreme Court has held that "official scrutiny of the content of [speech] as the basis for imposing a tax is entirely incompatible" with the First Amendment.  Put these two rules together, and taxing authorities should not be able to discriminate between nude dancing and other forms of dancing.

The New York high court was sharply divided 4-3.  Although New York's tax scheme exempts "choreographic" and "dramatic or musical arts" performances, New York's tax authority decided to impose a tax on establishments where women perform private lap dances and pole dances.  The dissent said it was clear that dancing was exempted, and saw no constitutional distinction between "highbrow dance and lowbrow dance" because "a dance is a dance."  The dissent is right.  Such discrimination between expressive acts is not constitutional.

This issue is broader than just nude dancing.  Yesterday, Media Coalition, a conglomeration of media organizations, filed an amicus curiae brief encouraging the Supreme Court to take the case.  Media Coalition began its brief with the provocative question: "May a State impose a sales tax on tickets to the Broadway musical Mamma Mia, while exempting tickets to Rigoletto?”  That is a fancy way of saying: may the government tax speech based on its content -- whether that content is found in video games, the silver screen, books or a "gentleman's club"?  Nope ... not constitutional. 

This issue also is broader than just what happens in New York.  The Supreme Courts of Illinois, Utah and Texas also approve discriminatory taxes based on the content of speech, and a few other state legislatures are considering such laws.  A few weeks ago, Philadelphia decided to extend its "amusement tax" to lap dancing. 

Former Chief Justice John Marshall wrote nearly two hundred years ago that "the power to tax is the power to destroy."  Businesses featuring lap dances should not be unduly taxed for featuring their particular brand of free speech.  As the dissenters in New York's case found, it would not be constitutional to tax Hustler while leaving The New Yorker untaxed.  The bottom line is that taste and taxes do not mix.   
 
  

Pen vs. Sword a/k/a First Amendment vs. Second Amendment

How, you may think, can the First Amendment's free speech provision be in conflict with the Second Amendment's right to bear arms?  Look to the land of "stand your ground" plus televised trials.  Look to Florida.

In Wollschlaeger v. Florida, the Eleventh Circuit Court of Appeals is considering whether a Florida law preventing doctors from asking patients about gun ownership violates the First Amendment.  The district court enjoined the law, Florida Statute sec. 790.338, which provided that a health care practitioner "should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient" unless such information is "relevant" to medical care or safety.  

The State of Florida is defending its law in the "Docs vs. Glocks" case, claiming that a thoroughly undramatic series of anecdotes commanded the necessity of this obscure provision.  For example, doctors supposedly declined to treat at least two people who refused to say whether they owned guns.  Really?  Why would a doctor do that?  It seems hard to fathom.  Is it possible there is a little more back-story there?  

The law also states that doctors "should refrain from unnecessarily harassing a patient about firearm ownership during an examination."  Oh please.  Are we really supposed to believe there is an epidemic of gun-bashing doctors hell-bent on refusing to uphold their Hippocratic oath? 

Florida insists that its law allows doctors to counsel patients on gun safety.  The problem is the doctors are not supposed to ask if guns are even present in a patient's home, so that puts doctors in the position of either counseling everyone or no one about gun safety or making potentially inappropriate guesses about who needs a talking to about guns.

Another fundamental problem is that the law is vague, leaving doctors to guess whether the medical board -- which has the power to sanction doctors for violating this law -- will later agree that the questions were "relevant."

I understand that lots of people are fervently pro-gun rights, but it is not necessary to take away a doctor's First Amendment rights -- let alone interfere with a doctor's ability to counsel and advise patients -- in order to keep guns.  

Doctors should not be so micromanaged by the government concerning their examinations.  They should be able to ask questions about gun ownership in the confines of the doctor-patient relationship rather than be chilled from asking questions for fear of later disciplinary action.   

I side with the Docs.

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

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.

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.
  

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. 

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.

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.

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. 

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 ...