Just how free should a free press be to report on the illness and condition of a sitting president during a national health emergency?

And how free are we to publicly offer our thoughts on the matter?

Both questions have the same legal answer: The First Amendment places no limits on what journalists, bloggers or others might report, and what we might say or speculate about the health of the president.

So, whats left are the First Amendment-ish concerns for reporters from longstanding national security concerns to a possible zone of personal privacy.

And given our fractured, polarized and politically divided society, the rise of social media puts all of us in that kind of -ish situation balancing our right to speak out in any way we choose against the social norms we should consider and the fact that theres no First Amendment insulation for us from the reaction to what we say.

The news that President Trump was infected with the COVID-19 virus came first in his own tweet, not through the news media, just after midnight on Friday, Oct. 2. Within minutes, news organizations relayed that dramatic news. Social media began firing up, with comments, forecasts and to put it gently sharp examples of the nations political divide.

To top it all off, a whirlwind of announcements, reports and commentary some contradictory on Trumps illness, brief hospitalization and now his ongoing treatment at the White House is unfolding in the midst of the final weeks of the 2020 presidential campaign.

For the record, U.S. history offers any number of examples of non-disclosure, image manipulation, complaints about White House transparency and press coverage of presidential health and public debate over the public comments about it all.

After President James Garfield was shot in 1881 at a Washington, D.C., railroad station, official statements reported his condition as good or stable despite the reality that he suffered for two months from a bullet that could not be removed, before dying. With the bulletins distributed nationwide by telegraph, published in the nations newspapers and followed closely by the public, the story of Garfields fight to survive could be considered Americas first live media event, historian Robert Mitchell writes in The Washington Post.

President Woodrow Wilson collapsed from exhaustion in 1919 during a national speaking tour, and we now know he suffered a stroke a month later that left him partially paralyzed. Americans didnt learn even basic facts about Wilsons health until he left office.

Not only were there no White House announcements, some historians now dub his wife Edith as the first female president given the 17-month stint in which she consulted with him on virtually all presidential business and screened all contacts and correspondence.

As USA TODAY noted in a story this week, in 1944 a similar scene played out when President Franklin Delano Roosevelt was diagnosed with acute congestive heart failure that forced him into seclusion for months. The report noted that the country was in the midst of World War II and the U.S. military was in the final stages of preparing for the D-Day invasion that opened the second front in the war.

Similar national security concerns have been raised about press reports of the details on Trumps condition. Would terrorists or hostile nations seek advantage or perhaps plan an attack in the U.S. or abroad knowing the commander-in-chief of U.S. forces remained on the job even as we learned from journalists that he was hospitalized, or facing medication and treatment for high fever and low blood oxygen levels that could have reduced his ability to converse or process information?

There are two unique circumstances with Trumps illness that werent present even as recently as when President Ronald Reagan was wounded in a 1981 assassination attempt, or underwent colon surgery: A global, instantaneous, 24/7 news environment, coupled with todays pervasive social media.

Beyond the national security concerns, are there some health matters that should remain private and not placed openly before the planet either out of personal consideration or to avoid becoming distorted as election-year fodder?

And there is the often-harsh tenor and frequently unsourced/unverified content of social media. Even a brief sampling showed posts ranging from conservative speakers making unsupported claims that journalists were hoping Trump would die, to Trump opponents posting images comparing Trumps balcony salute as he returned from Walter Reed National Military Medical Center to similar poses struck by dictators such as Stalin, Hitler, Mussolini and Juan Peron. To be fair, there also were great numbers of well wishes, too.

Again, while the First Amendment save for actual physical threats protects what we could say online, even as it provides no limits or advice on what we should say.

A free-press issue of a different sort has erupted. On Monday, White House Press Secretary Kayleigh McEnany revealed she had tested positive for the virus. Various press reports said correspondents were angry they had been exposed during briefings and other meetings with her and other officials over the previous few days.

An unnamed reporter was quoted in Vanity Fair online saying, People are livid. There are a lot of us, like dozens of reporters, who feel its unsafe to be doing it the way its being done. CBS News Ben Tracy commented on Twitter: I felt safer reporting in North Korea than I currently do reporting at The White House. This is just crazy.

As of Tuesday, three journalists in the White House press pool had tested positive. In the Vanity Fair report, White House Correspondents Association President Zeke Miller, a reporter for The Associated Press, said that journalists at the White House have been mindful of these risks for months. At the end of the day, were there to keep the American people informed and to be their eyes and ears. That job needs to get done. Were assuming some of these risks, were there to do the job.

In the final analysis, performing that First Amendment job of being a watchdog on government even during a pandemic by reporting the facts, fairly and accurately, as they can be found, is the best medicine for a healthy democracy.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org.

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Image Courtesy of Civics-Online

By Franchetta Groves

A recent study from the Annenberg Public Policy Center (APPC) at the University of Pennsylvania found that American citizens are becoming more knowledgeable of their First Amendment rights and civics of the American government. The APPC puts out this survey every year on September 17 for Constitution Day as a way to increase civics education. The study found that American citizens are more aware of all five rights protected by the First Amendment as well as the three branches of government.

A promising fact from the data was the increase in American citizens who were able to correctly name freedom of speech as one of the rights protected by the First Amendment. Along with this over half of the 1,109 participants were able to accurately name all three branches of government, which is up from 39% last year. It has been a positive trend that over the years more American citizens have been able to correctly name the five rights of the First Amendment since the Annenberg Public Policy last asked the question in 2017.

The study points to the trend that American citizens are also becoming more aware and knowledgeable about the three branches of government and their ability to name all three branches of government. When questioned in this survey 51% of participants could name all three branches as compared to 39% when last questioned in the 2019 survey. Interestingly the APPC survey also found that 56% of respondents believed that Supreme Court Justices should rule by setting aside personal opinions and instead should make rulings based on the Constitution, the law, and the facts of the case. As the country approaches the possible appointment of Supreme Court Justice Amy Coney Barrett, who would fill the seat of the late Ruth Bader Ginsburg, this data could indicate the publics reaction.

The survey also looked at if the participants could correctly answer that the Supreme Court has a final say when deciding if an action of a president is constitutional or not. Only 51% of the respondents were able to answer correctly that the Supreme Court has the final say as opposed to the 61% who responded correctly to this question in 2019.

The final question of the survey asked the respondents what percent of a majority is required in both the House and the Senate to overturn a presidential veto. Only 47% of participants were able to answer this question correctly which is the lowest it has been since 2007. An interesting correlation is that there have been no attempts to override the veto this year.

Im really pleased with the results and hopeful for the future. It is often said, and the evidence now demonstrates, that the 2016 election and the Trump administration have had a unique effect on American political life and civic engagement, said sophomore Blayne Clegg-Swann. Regardless of political affiliation, a reverence for the founding documents and an understanding of the freedoms they bestow us with are critical to our continued success as a country.

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Do Americans Know More about Their Rights in 2020? - Catholic University of America The Tower

Attorneys for the Reporters Committee for Freedom of the Press and representatives of Fundamedios, as well as U.S. government officials, condemned the press freedom violations committed by law enforcement at nationwide protests during a hearing on Wednesday before the Inter-American Commission on Human Rights.

The commission, which is part of the Organization of American States and promotes the observance and protection of human rights in the Western hemisphere, heard testimony from Reporters Committee attorneys Sarah Matthews and Gabe Rottman, as well as Frank LaRue, advocacy and legal director for Fundamedios and former U.N. special rapporteur for the promotion and protection of the right to the freedom of opinion and expression, about the dramatic increase in arrests of and the use of force against journalists sparked by the protests against police brutality and systemic racism. Representatives of both the U.S. Mission to the Organization of American States and the U.S. State Department also addressed the IACHR.

Matthews, who serves on the advisory board for the U.S. Press Freedom Tracker, which documents aggressions against members of the U.S. news media, testified that while protests are historically some of the most dangerous places for journalists, the number of attacks and arrests against journalists at protests has increased markedly compared to previous years.

She reported that, since a Minneapolis, Minnesota, police officer killed George Floyd on May 25, sparking a wave of protests across the United States, journalists have reported more than 850 total press freedom incidents to the Press Freedom Tracker. In 2019, the Tracker documented 152 total press freedom violations.

Attacking and arresting journalists simply for reporting the news is not acceptable in a free society, Matthews told the commission.

In his testimony, LaRue expressed concern that these persistent attacks on journalists at protests in the United States have been encouraged by rhetoric from President Donald Trump. By repeatedly denouncing the news media, he testified, Trump has created an atmosphere in which law enforcement may feel emboldened to use excessive force against the press at protests.

Gustavo Martnez, a reporter for the Asbury Park Press in New Jersey, shared details of his own arrest during a recent protest. Martnez described how police officers tackled him to the ground, knocked his phone out of his hand and detained him in a van with other people even though he said he repeatedly identified himself as a member of the press and wore his press badge around his neck.

A press badge should not be a bulls-eye, Martnez said. Charges against Martnez were later dropped.

Rottman, director of the Reporters Committees Technology and Press Freedom Project, mentioned in his testimony that federal courts in the United States have recognized a First Amendment right to document police activity in public, and about half of the federal appeals courts have found that the right to record is clearly established.

He also offered recommendations for reform for law enforcement at all levels of government in the United States that would help deter future press freedom violations, including increased police training, transparency and discipline.

To be clear, Rottman testified, while we understand the challenges that officers face in policing during protests challenges that journalists face as well in covering public demonstrations the bedrock American ideal of a free press demands that we protect First Amendments rights even more zealously in times of challenge.

Bradley Freden and Andrew Stevenson, representatives of the Organization of American States, and U.S. State Department attorney Thomas Weatherall each condemned violence against journalists as an infringement on their First Amendment rights.

When asked by the Commission about investigations into the attacks and arrests of journalists at recent protests, Freden responded that, while they would not address specific incidents, they will be investigating and seeking accountability when law enforcement violates the law.

Weatherall similarly declined to talk about what law enforcement is currently doing to address press freedom violations during protests.

Watch the full IACHR hearing.

The Reporters Committee regularly files friend-of-the-court briefs and represents journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP, Fundamedios testify before Inter-American Commission on Human Rights - Reporters Committee for Freedom of the Press

Charter Communications may have just helped literally thousands of TCPA defendants snatch victory from the jaws of defeat.

As our regular readers know, the Supreme Court recently held in Barr v. AAPC that a recent addition to the TCPAspecifically, an exemption for calls to collect federal debtswas a content-based regulation of speech that violated the First Amendment. It then severed that exception from the rest of the statute, and in doing so dashed the hopes of defendants that had advocated for invalidating all of the statutes restrictions on automated telephone equipment.

Many quickly turned their attention to Facebook v. Duguid, which the Supreme Court agreed to hear just a few days later. And understandably so, as the Facebook case has the potential to provide much-needed and long-overdue clarity on the interpretation of the TCPAs autodialer definition.

But the Barr decision all but ignored the practical consequence of its holdingthat is, can there be liability for calls that were made before the Supreme Court remedied the statutes constitutional defect? Put differently, can there be liability for calls made between November 2, 2015 (when the exception took effect and the statute become unconstitutional) and July 6, 2020 (when the exception was severed and the statute became constitutional again)?

Incredibly, only two of the Courts four opinions even acknowledged that this might be an issue. Making matters worse, neither of them agreed with the other or commanded a majority of the Court. Justice Kavanaugh relegated the issue to a footnote. In his view, while no one should be penalized or held liable for trying to collect a federal debt while the debt-collection exception was on the books, the Court could not negate the liability that would arise from other kinds of calls that were covered by the robocall restriction. But the irony of that was not lost on Justice Gorsuch. A holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would, he wrote, wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate.

Enter Judge Feldman of the Eastern District of Louisiana. In what appears to be the first decision of its kind, Judge Feldman found that there can be no liability for calls that were made while the TCPA was unconstitutionali.e., between the time the debt-collection exception took effect and was later stricken.

Judge Feldman began by reviewing the various opinions in Barr and finding nothing on this point other than the few lines of nonbinding dicta that are quoted above. [C]onfronted with genuine issue of first impression, and with little more to guide it than passing Supreme Court dicta of no precedential force, he then concluded that Justice Gorsuchs is the better argument as a matter of law and logic.

Judge Feldman cited several decisions that stand for the timeless principle that [a]n unconstitutional law is void, and is as no law. He then reasoned that, in the years in which 227(b)(1)(A)(iii) permitted robocalls of one category of content (government-debt collection) while prohibiting robocalls of all other categories of content, the entirety of the provision was, indeed, unconstitutional. Because the plaintiff was asking the court to enforce the unconstitutional amended version of 227(b)(1)(A)(iii), and because courts may not enforce such laws, Judge Feldman found that the Barr decision necessarily compels dismissal of such claims.

It remains to be seen whether the plaintiffs will try to take an appeal from this ruling, or whether other courts will follow Judge Feldmans lead. For the time being, however, TCPA defendants now have another arrow in their quivers. And that is always a welcome development.

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First-of-its-Kind Decision Rejects Liability for Calls Made Before Supreme Court Cured TCPA's Unconstitutionality by Invalidating Debt-Collection...