Category Archives: First Amendment

In response to the COVID-19 pandemic, the Reporters Committee for Freedom of the Press has published new resources outlining recommendations for journalists, legislators, and courts to ensure the press and publics right of access to government information and proceedings is protected while entities take necessary steps to stop the spread of the coronavirus.

Press freedom and government transparency during COVID-19 addresses frequently asked questions that journalists and others may have about court access, public records and open meetings, and the impact of measures implemented under governments emergency powers in response to the coronavirus. Specifically, it provides guidance on:

The Reporters Committee will continue to update these resources and others as the situation around COVID-19 and how federal, state, and local governments respond to it evolves. Anyone who has information about government responses to COVID-19 that impact newsgathering rights or public access should submit them to media@rcfp.org. The Reporters Committee will use this material for addditional updates as conditions warrant.

Journalists who have questions about or need assistance with their legal rights, or who encounter issues while reporting on COVID-19, can contact the Reporters Committees hotline by filling out an online form, emailing hotline@rcfp.org, or calling 1-800-336-4243.

View Press freedom and government transparency during COVID-19.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent 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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COVID-19: Press Freedom and Government Transparency - RCFP - Reporters Committee for Freedom of the Press

An important reform that was removed from the bill would have allowed the amicus to directly petition the Foreign Intelligence Court of Review to examine a FISA Court ruling the amicus disagreed with. This is a commonsense measure. Currently, if the FISA Court sides with the amicus, the Justice Department can appeal to the review court, but the amicus does not have the same option if the FISA Court sides with the Justice Department. But instead, the final bill only permits the amicus to ask the FISA Court to submit a petition to the Foreign Intelligence Court of Review, requesting that it review the case on appeal. The effect is that the amicus essentially must ask FISA Court judges to facilitate an effort to get their own opinions overruled. The bill does require the judges to provide a written explanation (which will then become public) if they refuse the amicuss request, which will hopefully limit bad-faith refusals of petitions for review. But there is no practical reason for the FISA Court to serve as a gatekeeper for petitions to the review court, which already has the authority to choose to accept or refuse cases.

In a positive, but too-limited step, the House bill also expands the amicuss ability to participate in cases involving First Amendment-protected activities. The bill requires the amicus to be brought in for cases that present exceptional concerns to First Amendment-protected activities; in contrast, a previous version of the bill contained a broader provision that would have allowed the amicus to participate in cases involving significant concerns. While the final language is a positive expansion of the amicuss role, it is indefensible to cut the amicus out of situations that present significantbut not necessarily exceptionalconcerns to First Amendment-protected activities.

The bill provides some improved access to information for the amicus. It allows the amicus to request the FISA Court provide access to any particular materials or information (or category of materials or information) that are relevant to the amicuss duties, which will aid the amicus in participating effectively in proceedings. And including category of materials or information is especially important to prevent a situation where the amicus wouldnt know what materials to ask for without seeing what materials exist. Its worth noting, though, that this provision was watered down from a previous version of the bill, which included a requirement for the FISA Court to disclose basic information, such as applications, certifications, petitions, and motions.

Given the recent concerns about the veracity of claims the government makes in FISA Court proceedings, its disappointing to see such limited reforms to the role of the amicusparticularly in the wake of the inspector general report on government misrepresentations of fact related to surveillance of former Trump campaign aide Carter Page. Experts have highlighted how the amicus should serve as a watchdog against this type of abuse, and a bill introduced by Republicans on the House Intelligence Committee included a thoughtful proposal to involve the amicus in surveillance applications targeting U.S. persons. (Several minor provisions of that bill were incorporated into the USA FREEDOM Reauthorization Act, but its expansion of the amicus role was not.)

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PATRIOT Act Morass: Gains and Stalled Reforms - Project On Government Oversight

Donald Trump at the NBC Universal 2015 Winter TCA Press Tour. (Joe Seer / Shutterstock)

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Every month, it seems, brings a new act in the Trump administrations war on the media. In January, Secretary of State Mike Pompeo exploded at National Public Radio reporter Mary Louise Kelly when he didnt like questions she askedand then banned a colleague of hers from the plane on which he was leaving for a trip to Europe and Asia. In February, the Trump staff booted a Bloomberg News reporter out of an Iowa election campaign event.Ad Policy

The president has repeatedly called the press an enemy of the peoplethe very phrase that, in Russian (vrag naroda),was applied by Joseph Stalins prosecutors to the millions of people they sent to the gulag or to execution chambers. In that context, Trumps term for BuzzFeed, a failing pile of garbage, sounds comparatively benign. Last year, Axios revealed that some of the presidents supporters were trying to raise a fund of more than $2 million to gather damaging information on journalists at The New York Times, The Washington Post, and other media outfits. In 2018, it took a court order to force the White House to restore CNN reporter Jim Acostas press pass. And the list goes on.

Yet it remains deceptively easy to watch all the furor over the media with the feeling that its still intact and safely protected. After all, didnt Richard Nixon and Ronald Reagan rail against the press in their presidencies? And dont we have the First Amendment? In my copy of Samuel Eliot Morisons 1,150-page Oxford History of the American People, the word censorship doesnt even appear in the index; while, in an article on The History of Publishing, the Encyclopedia Britannica reassures us that in the United States, no formal censorship has ever been established.

So how bad could it get? The answer to that question, given the actual history of this country, is: much worse.

Though few remember it today, exactly 100 years ago, this countrys media was laboring under the kind of official censorship that would undoubtedly thrill both Donald Trump and Mike Pompeo. And yet the name of the man who zestfully banned magazines and newspapers of all sorts doesnt even appear in either Morisons history, that Britannica article, or just about anywhere else either.

The story begins in the spring of 1917, when the United States entered the First World War. Despite his reputation as a liberal internationalist, the president at that moment, Woodrow Wilson, cared little for civil liberties. After calling for war, he quickly pushed Congress to pass what became known as the Espionage Act, which, in amended form, is still in effect. Nearly a century later, National Security Agency whistle-blower Edward Snowden would be charged under it, and in these years he would hardly be alone.

Despite its name, the act was not really motivated by fears of wartime espionage. By 1917, there were few German spies left in the United States. Most of them had been caught two years earlier when their paymaster got off a New York City elevated train leaving behind a briefcase quickly seized by the American agent tailing him.Current Issue

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Rather, the new law allowed the government to define any opposition to the war as criminal. And since many of those who spoke out most strongly against entry into the conflict came from the ranks of the Socialist Party, the Industrial Workers of the World (famously known as the Wobblies), or the followers of the charismatic anarchist Emma Goldman, this in effect allowed the government to criminalize much of the Left. (My new book, Rebel Cinderella, follows the career of Rose Pastor Stokes, a famed radical orator who was prosecuted under the Espionage Act.)

Censorship was central to that repressive era. As the Washington Evening Star reported in May 1917, President Wilson today renewed his efforts to put an enforced newspaper censorship section into the espionage bill. The Act was then being debated in Congress. I have every confidence, he wrote to the chair of the House Judiciary Committee, that the great majority of the newspapers of the country will observe a patriotic reticence about everything whose publication could be of injury, but in every country there are some persons in a position to do mischief in this field.

Subject to punishment under the Espionage Act of 1917, among others, would be anyone who shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States.

Who was it who would determine what was disloyal, profane, scurrilous, or abusive? When it came to anything in print, the Act gave that power to the postmaster general, former Texas Congressman Albert Sidney Burleson. He has been called the worst postmaster general in American history, writes the historian G. J. Meyer, but that is unfair; he introduced parcel post and airmail and improved rural service. It is fair to say, however, that he may have been the worst human being ever to serve as postmaster general.

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Burleson was the son and grandson of Confederate veterans. When he was born, his family still owned more than 20 slaves. The first Texan to serve in a cabinet, he remained a staunch segregationist. In the Railway Mail Service (where clerks sorted mail on board trains), for instance, he considered it intolerable that whites and blacks not only had to work together but use the same toilets and towels. He pushed to segregate Post Office lavatories and lunchrooms.

He saw to it that screens were erected so blacks and whites working in the same space would not have to see each other. Nearly all Negro clerks of long-standing service have been dropped, the anguished son of a black postal worker wrote to the New Republic, adding,Every Negro clerk eliminated means a white clerk appointed. Targeted for dismissal from Burlesons Post Office, the writer claimed, was any Negro clerk in the South who fails to say Sir promptly to any white person.

One scholar described Burleson as having a round, almost chubby face, a hook nose, gray and rather cold eyes and short side whiskers. With his conservative black suit and eccentric round-brim hat, he closely resembled an English cleric. From President Wilson and other cabinet members, he quickly acquired the nickname The Cardinal. He typically wore a high wing collar and, rain or shine, carried a black umbrella. Embarrassed that he suffered from gout, he refused to use a cane.

Like most previous occupants of his office, Burleson lent a political hand to the president by artfully dispensing patronage to members of Congress. One Kansas senator, for example, got five postmasterships to distribute in return for voting the way Wilson wanted on a tariff law.

When the striking new powers the Espionage Act gave him went into effect, Burleson quickly refocused his energies on the suppression of dissenting publications of any sort. Within a day of its passage, he instructed postmasters throughout the country to immediately send him newspapers or magazines that looked in any way suspicious.

And what exactly were postmasters to look for? Anything, Burleson told them, calculated tocause insubordination, disloyalty, mutinyor otherwise to embarrass or hamper the Government in conducting the war. What did embarrass mean? In a later statement, he would list a broad array of possibilities, from saying that the government is controlled by Wall Street or munition manufacturers or any other special interests to attacking improperly our allies. Improperly?

He knew that vague threats could inspire the most fear and so, when a delegation of prominent lawyers, including the famous defense attorney Clarence Darrow, came to see him, he refused to spell out his prohibitions in any more detail. When members of Congress asked the same question, he declared that disclosing such information was incompatible with the public interest.

One of Burlesons most prominent targets would be the New York City monthly The Masses. Named after the workers that radicals were then convinced would determine the revolutionary course of history, the magazine was never actually read by them. It did, however, become one of the liveliest publications this country has ever known and something of a precursor to the New Yorker. It published a mix of political commentary, fiction, poetry, and reportage, while pioneering the style of cartoons captioned by a single line of dialogue for which the New Yorker would later become so well known.

From Sherwood Anderson and Carl Sandburg to Edna St. Vincent Millay and the young future columnist Walter Lippmann, its writers were among the best of its day. Its star reporter was John Reed, future author of Ten Days That Shook the World, a classic eyewitness account of the Russian Revolution. His zest for being at the center of the action, whether in jail with striking workers in New Jersey or on the road with revolutionaries in Mexico, made him one of the finest journalists in the English-speaking world.

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A slapdash gathering of energy, youth, hope, the critic Irving Howe later wrote, The Masses was the rallying centerfor almost everything that was then alive and irreverent in American culture. But that was no protection. On July 17, 1917, just a month after the Espionage Act passed, the Post Office notified the magazines editor by letter that the August issue of the Masses is unmailable. The offending items, the editors were told, were four passages of text and four cartoons, one of which showed the Liberty Bell falling apart.

Soon after, Burleson revoked the publications second-class mailing permit. (And not to be delivered by the Post Office in 1917 meant not to be read.) A personal appeal from the editor to President Wilson proved unsuccessful. Half a dozenMassesstaff members including Reed would be put on trialtwicefor violating the Espionage Act. Both trials resulted in hung juries, but whatever the frustration for prosecutors, the countrys best magazine had been closed for good. Many more would soon follow.

When editors tried to figure out the principles that lay behind the new regime of censorship, the results were vague and bizarre. William Lamar, the solicitor of the Post Office (the departments chief legal officer), told the journalist Oswald Garrison Villard, You know I am not working in the dark on this censorship thing. I know exactly what I am after. I am after three things and only three thingspro-Germanism, pacifism, and high-browism.

Within a week of the Espionage Act going into effect, the issues of at least a dozen socialist newspapers and magazines had been barred from the mail. Less than a year later, more than 400 different issues of American periodicals had been deemed unmailable. The Nation was targeted, for instance, for criticizing Wilsons ally, the conservative labor leader Samuel Gompers; the Public, a progressive Chicago magazine, for urging that the government raise money by taxes instead of loans; and the Freemans Journal and Catholic Register for reminding its readers that Thomas Jefferson had backed independence for Ireland. (That land, of course, was then under the rule of wartime ally Great Britain.) Six hundred copies of a pamphlet distributed by the Intercollegiate Socialist Society, Why Freedom Matters, were seized and banned for criticizing censorship itself. After two years under the Espionage Act, the second-class mailing privileges of 75 periodicals had been canceled entirely.

From such a ban, there was no appeal, though a newspaper or magazine could file a lawsuit (none of which succeeded during Burlesons tenure). In Kafkaesque fashion, it often proved impossible even to learn why something had been banned. When the publisher of one forbidden pamphlet asked, the Post Office responded: If the reasons are not obvious to you or anyone else having the welfare of this country at heart, it will be uselessto present them. When he inquired again, regarding some banned books, the reply took 13 months to arrive and merely granted him permission to submit a statement to the postal authorities for future consideration.

In those years, thanks to millions of recent immigrants, the United States had an enormous foreign-language press written in dozens of tongues, from Serbo-Croatian to Greek, frustratingly incomprehensible to Burleson and his minions. In the fall of 1917, however, Congress solved the problem by requiring foreign-language periodicals to submit translations of any articles that had anything whatever to do with the war to the Post Office before publication.

Censorship had supposedly been imposed only because the country was at war. The Armistice of November 11, 1918 ended the fighting and on the 27th of that month, Woodrow Wilson announced that censorship would be halted as well. But with the president distracted by the Paris peace conference and then his campaign to sell his plan for a League of Nations to the American public, Burleson simply ignored his order.

Until he left office in March 1921more than two years after the war endedthe postmaster general continued to refuse second-class mailing privileges to publications he disliked. When a U.S. District Court found in favor of several magazines that had challenged him, Burleson (with Wilsons approval) appealed the verdict and the Supreme Court rendered a timidly mixed decision only after the administration was out of power. Paradoxically, it was conservative Republican President Warren Harding who finally brought political censorship of the American press to a halt.

Could it all happen again?

In some ways, we seem better off today. Despite Donald Trumps ferocity toward the media, we haventyetseen the equivalent of Burleson barring publications from the mail. And partly because he has attacked them directly, the presidents blasts have gotten strong pushback from mainstream pillars like The New York Times, The Washington Post, and CNN, as well as from civil society organizations of all kinds.

A century ago, except for a few brave and lonely voices, there was no equivalent. In 1917, the American Bar Association was typical in issuing a statement saying, We condemn all attemptsto hinder and embarrass the Government of the United States in carrying on the war. We deem them to be pro-German, and in effect giving aid and comfort to the enemy. In the fall of that year, even the Times declared that the country must protect itself against its enemies at home. The Government has made a good beginning.

In other ways, however, things are more dangerous today. Social media is dominated by a few companies wary of offending the administration, and has already been cleverly manipulated by forces ranging from Cambridge Analytica to Russian military intelligence. Outright lies, false rumors, and more can be spread by millions of bots and people cant even tell where theyre coming from.

This torrent of untruth flooding in through the back door may be far more powerful than what comes through the front door of the recognized news media. And even at that front door, in Fox News, Trump has a vast media empire to amplify his attacks on his enemies, a mouthpiece far more powerful than the largest newspaper chain of Woodrow Wilsons day. With such tools, does a demagogue who loves strongmen the world over and who jokes about staying in power indefinitely even need censorship?

The rest is here:
Trump Isn't the First President to Attack the Press - The Nation

Operating Engineers Local 701 parked its giant inflatable rat in front of the Vancouver, Washington, office of General Labor & Industrial Staffing Services (GLISS) on March 5. Union members were there to inform the public about GLISS paying subpar wages and benefits to workers and doing so without providing any apprenticeship opportunities. Holland Residential recently contracted with GLISS to provide workers on its new construction project at SW 6th and Washington in downtown Vancouver. According to the union, those workers earn less than half the established area standard wage. Temp agencies like GLISS often pocket 30 to 50% of the wages earned by the worker while providing fewer benefits and offering no employment protections, Local 701 said in a press release. GLISS responded to the rats arrival by calling the police and threatening legal action.

Displays and public appeals like this one are protected by both the First Amendment and the National Labor Relations Act, according to several federal court cases and National Labor Relations Board decisions, said Local 701 Business Manager Jimbo Anderson. Were exercising out First Amendment rights to raise awareness about family wage jobs and apprenticeship programs.

Local 701, which represents heavy equipment and stationary operators in Oregon and Southwest Washington, has had an increased presence in the region recently, touring with a new outreach and education trailer and encouraging women and people of color to apply for union apprenticeship programs so that everyone can earn a fair days wage for a fair days work.

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Rat spotted in Vancouver, Washington - Nwlaborpress

This episode features a lively (andfair warninglong) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford Universitys Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users speech online, and pretty much no one has both authority and an interest in fostering free-speech values. Conservatives may be discriminated against, but so are Black Lives Matter activists. I serve up one solution to biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing, and the government may have a constitutional problem forcing them to disclose how they make their moderation decisions. Competition law? A long haul, and besides, most users like a moderated Internet experience. Regulation? Only if we take the First Amendment back to the heyday of broadcast regulation. As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the Europe Court of Justices insufferable decision encouraging the export of European defamation law to the U.S.with an extra margin of censorship to keep the platform from any risk of liability. I offer to risk my Facebook account to see if thats already happening.

In the news, the FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F bias test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers Chinas ever-spreading censorship regimenow reaching Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the U.S. name and shame campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banksthats where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview and its facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants. Nick gives drug dealers a lesson in how not to store the codes for 53.6 million in Bitcoin; or is he offering a lesson in what to say to the police if you want that 53.6 million waiting for you when you get out of prison?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a GPS tracking device from your car isnt theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is taking it slow in its investigation of mobile carriers for selling customer location data; now we know wholl be charged (pretty much everyone) and how much it will cost them ($200 million), but we still dont know the theory or whether the whole inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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The Cyberlaw Podcast: Will the First Amendment Kill Free Speech in America? - Lawfare

When we talk about the First Amendment and freedom of expression in higher education, our analysis typically focuses on individual rights. We talk about the rights of unpopular speakers to express their views, the rights of students to invite such speakers, the rights of protesters to respond to or disrupt those with whom they disagree, and the rights of faculty members to say or teach without interference. But what about the First Amendment rights of the college or university itself, as an institution? Does a college or university have First Amendment rights in cases like these?

The traditional answer in these cases is no. While university speakers, students and faculty members have First Amendment rights, the university is a mere neutral forum. The university provides the setting, the context, in which individuals seek to express, protect and vindicate their rights, but it is not itself viewed as a significant First Amendment actor. The university can be sued for lack of neutrality, but in free expression cases, it basically serves as the arena, not as a player with its own unique values and interests.

I believe this is wrong, both as matter of law and of fundamental principle. I believe that colleges and universities have strong First Amendment rights as institutions, and that those institutional rights are so important to a free society, they may, in some instances, trump the rights of many individuals who seek to speak in the university setting.

The foundation of this robust idea of institutional First Amendment rights lies in Justice Frankfurters famous concurrence in the case of Sweezy v. New Hampshire, 354 U.S. 234 (1957). In Sweezy, a state attorney general sought to question an economist and magazine editor who had delivered a lecture on Marxism at the University of New Hampshire. Sweezy refused to answer, was held in contempt and ultimately took his case to the U.S. Supreme Court, where his contempt conviction was overturned.

The Sweezy decision is often cited as the foundation of the individual First Amendment right of faculty members to teach free from government interference, but a careful reading of Frankfurters opinion reveals that it is really the university, not the individual, that possesses the most important rights under the First Amendment. Frankfurter noted that the existence of our free society depends on free universities. This means, he continued, the exclusion of governmental intervention in the intellectual life of a university.

How can we protect universities from unconstitutional intervention? By respecting what Frankfurters opinion, quoting a South African study on academic freedom, called the four essential freedoms of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. In Frankfurters view, Sweezy had a right to speak at the University of New Hampshire not because of his own right to free expression, but because the university has a right to control its own intellectual environment, and thus the right to choose who will and who will not speak in its halls, free from government dictates.

Justice OConnor reasserted this strong view of university rights and university autonomy in the landmark affirmative action case Grutter v. Bollinger, 539 U.S. 306 (2003). In Grutter, OConnor noted that in the United States, universities occupy a special niche in our constitutional tradition. The Supreme Court, she wrote, has long recognized that universities have a right of educational autonomy that is grounded in the first amendment. This includes, she wrote, quoting Justice Powell in Bakke, the freedom of a university to make its own judgments as to education.

These basic constitutional principles have never been questioned, but their implications have long been ignored. If, as Sweezy, Bakke and Grutter recognize, universities occupy a special and protected place in First Amendment jurisprudence, with a right to autonomy and to control their own educational and intellectual environments, the implications are profound. On this reading, universities do not have to be a passive neutral forum. They may, instead, exercise a strong First Amendment right to define for themselves the appropriate educational and intellectual setting for learning, free from interference by legislatures and courts. This means that universities may, contrary to current practice, exclude some speakers whose views have no place in an intellectual setting devoted to science, rational argument and the creation of a proper learning environment.

How might this robust First Amendment institutional right to autonomy play out in specific cases? Imagine a white supremacist is invited by a student group to speak at a public university. Under traditional neutral forum analysis, the university does not have a right to exclude him or her. But if, as Sweezy, Bakke and Grutter suggest, the university has a right to control its intellectual and educational environment, it may exclude a speaker it believes will harm the academic environment it seeks to maintain. If the university believes the speaker will undercut the seriousness of intellectual discourse or the right to students to study free from harassment, they do not need to provide a forum for that person to speak.

This notion of strong institutional rights under the First Amendment has not been tested in the courts. It may be that when push comes to shove, the courts will insist on content neutrality even if it interferes with a universitys autonomous right to create a proper intellectual and learning environment. But we wont know this, of course, until universities try to assert and protect what Justice OConnor called their right to educational autonomy based on their special niche in our constitutional tradition.

John Kroger served as the president of Reed College and as attorney general of Oregon.

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The University's First Amendment Rights | Leadership in Higher Education - Inside Higher Ed

WASHINGTON D.C. (WTNH) Connecticut Senator Richard Blumenthal is set to receive the First Amendment Defender Award from the Radio Television Digital News Foundation Thursday evening.

Blumenthal will be honored at the 30th annual recognition of First Amendment champions.

The award is presented to an individual or an organization that takes a public stand in support of press freedom.

At a time when press freedoms and access have been under attack, Sen. Richard Blumenthal from Connecticut has stood tall for the rights of journalists to do their jobs and inform the public. He has an impressive record of fighting for the truth and defending the publics need to know.

Sen. Blumenthal is currently serving his second term in the U.S. Senate representing Connecticut. Previously he served five terms at CTs Attorney General, fighting for individuals against large and powerful special interests. Among other things, he is being honored for his relentless work eradicating corruption in state government and making state contracting accountable, fair, honest, and transparent.

Blumenthal joins such honorees as the news show 60 Minutes, David Muir of ABC News, Steve Andrews of WFLA-TV, Lori Montenegro of Telemundo, Barbara Maushard of Hearst Television, and Robert (Bob) Horner of NBC News.

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Sen. Blumenthal to receive the First Amendment Defender Award - WTNH.com

This episode features a lively (and fair warning long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University's Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users' speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn't think it's the victim of biased content moderation would be well advised to scream as loudly as possible about censorship anyway for fear of losing the victimization sweepstakes.

Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing to allow real transparency, and the government may have a first amendment problem forcing companies to disclose how they make their moderation decisions. Competition law as a way to encourage multiple curators? It might require a "magic" API, and besides, most users like a moderated Internet experience. Regulation? Only if we want to take First Amendment law back to the heyday of broadcast regulation (which is frankly starting to sound pretty good to me).

As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the CJEU's insufferable decision encouraging the export of European defamation law to the US with an extra margin of algorithmic censorship to keep the platform from any risk of liability. Turns out, that speech suppression regime is not just an end run around the first amendment; it's protected by the first amendment. I offer to risk my Facebook account to see if that's already happening.

In the news, FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers China's ever-spreading censorship regime which now reaches Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the US "name and shame" campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banks that's where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview AI's facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google, and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants.

Nick gives drug dealers a lesson in how not to store the codes for 53.6 million in Bitcoin; or is it a lesson in what to say to the police if you want that 53.6 million waiting for you when you get out of the clink?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a police tracking device from your car isn't theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is doing a slow striptease in its investigation of mobile carriers for selling customer location data; now we know who'll be charged (pretty much everyone) and how much it will cost them ($200 million), but we still don't know the theory or whether the inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

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Will the First Amendment Kill Free Speech in America? - Reason

from the opening-up-our-libel-laws dept

It appears whatever modest amount of restraint that our President had regarding his early promise to "open up our libel laws" have gone away. As you may recall, during the campaign he made such a promise, perhaps not realizing that defamation laws are not under the purview of the federal government -- and any changes at the state level are limited by the 1st Amendment of the Constitution (not something he can write away with an executive order). Right before he was inaugurated, he seemed to back down a little on that promise -- telling the NY Times that someone had pointed out to him that with more open libel laws, he was more likely to get sued as well.

Over the first three years of his Presidency, while constantly lashing out ridiculously at the press, and the Washington Post and the NY Times in particular -- including his constant authoritarian attack of calling them "the enemy of the people" -- he had not sued. Until last week when he tapped lawyer Charles Harder (who, we'll remind you, was the lawyer in the lawsuit against us), to represent the Trump Campaign (rather than Donald directly) to sue the NY Times over an opinion piece. Trump and Harder have now done so again, this time suing the Washington Post over two opinion pieces.

The complaint -- like the one against the NY Times -- is laughable and will be thrown out of court. Again, opinions are not defamatory, and the articles were opinion pieces. The statements they make, that the Trump campaign declares defamatory are basically all ones based on disclosed facts. The complaint is short and not very detailed. It highlights just a single line in each post that it claims is defamatory:

On or about June 13, 2019, The Post published the article entitled Trump just invited another Russian attack. Mitch McConnell is making one more likely (the June 13 Article), by Greg Sargent, which contained the defamatory claim that Special Counsel Robert Mueller concluded that the Campaign tried to conspire with a sweeping and systematic attack by Russia against the 2016 United States presidential election.

The statement in the June 13 Article is false and defamatory. In fact, Special Counsel Muellers Report on the Investigation into Russian Interference in the 2016 Presidential Election released on or about April 18, 2019 (the Mueller Report), nearly two months before the June 13 Article, came to the opposite conclusion of the June 13 Article, namely, the Mueller Report concluded there was no conspiracy between the Campaign and the Russian government, and no United States person intentionally coordinated with Russias efforts to interfere with the 2016 election.

On or about June 20, 2019, The Post published the article entitled Trump: I can win reelection with just my base (the June 20 Article), by Paul Waldman, which contains the defamatory statement who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?

The statement in the June 20 Article is false and defamatory. There has never been any statement by anyone associated with the Campaign or the administration inviting Russia or North Korea to assist the Campaign in 2019 or beyond. There also has never been any reporting that the Campaign has ever had any contact with North Korea relating to any United States election.

These are both issues that are subject to interpretation, and neither piece comes anywhere even remotely close to the necessary standard for defamation of a public figure (which, uh, the President absolutely is). On the first one, Harder is leaning heavily on the "conspiracy" word. While the Report did not show direct coordination between the campaign and the Russians, it did show multiple connection points. Indeed, the report itself says:

The investigation alsoidentified numerous links between the Russian government and the Trump Campaign. Althoughthe investigation established that the Russian government perceived it would benefit from a Trumppresidency and worked to secure that outcome, and that the Campaign expected it would benefitelectorally from information stolen and released through Russian efforts, the investigation did notestablish that members of the Trump Campaign conspired or coordinated with the Russiangovernment in its election interference activities.

So this comes down to interpretation. The Mueller report showed links between the Russians and the Campaign, but did not find enough evidence to prove a conspiracy -- which is not definitive evidence of no conspiracy. Indeed, the report shows multiple situations in which members of the Trump Campaign appeared interested in working with the Russian government -- but not enough evidence of an actual conspiracy was found. But to say that's evidence of no effort to conspire is just silly. The opinion piece's summary of that as "tried to conspire" is... not anywhere near defamatory, in which case the Post would have to have believed this was false or published it with reckless disregard for the truth. That's... not the case.

On the second one, I'll note, with amusement, that the final sentence only mentions North Korea as a government that the Trump Campaign has not discussed the election with and leaves out Russia. Interesting. But, more to the point, the article in question was discussing a Trump interview with George Stephanopoulos in which Trump is asked if he'd accept damaging information on election opponents from foreign nations, and Trump replied:

"I think you might want to listen, there isn't anything wrong with listening," Trump continued. "If somebody called from a country, Norway, [and said] we have information on your opponent' -- oh, I think I'd want to hear it."

That is easily, and fairly, turned into the statement in the Post opinion piece that the Campaign was "inviting" foreign help. There is no way that such a statement could or would be seen as defamatory.

In the meantime, I feel the need to remind both Harder and Trump that not too long ago, in defending Trump against a defamation lawsuit in which Trump was the defendant, Harder wrote a stirring statement in support of the 1st Amendment and warned that:

A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

I wish the two of them would remember that sometimes.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, donald trump, free speech, slappCompanies: washington post

Here is the original post:
Donald Trump And Charles Harder Continue Their Assault On The 1st Amendment, Suing The Washington Post - Techdirt

There is an ongoing dust up involving the First Amendment, allegations of prohibited viewpoint discrimination and legislative immunity in the Texas Senate. Its fascinating stuff for political scientists, political practitioners, and journalists.

It started on Thursday, February 27, when a man testified at a Texas State Senate hearing wearing a t-shirt that said, F**K the POLICE, (but his shirt featured all the letters) and, to drive the sentiment home, accompanied by an image of a hand with the middle finger outstretched.

After learning about the hearing, Texas Lieutenant Governor Dan Patrick tweeted out:

Outraged to see this T-shirt at a Senate Hearing Thur.Future witnesses beware. No one will ever be allowed to wear such a vulgar shirt in a Senate hearing again-especially one that denigrates the brave men & women of law enforcement. Want to take me to court? Ok. Make my day.

Texas Lieutenant Governor Dan Patrick tweeted out his disapproval of people wearing vulgar shirts ... [+] while testifying before the Senate.

His tweet was met with a volley of criticism by First Amendment advocates who maintained that Lieutenant Governor Patrickand the Legislature in generaldoesnt have the right to abridge speech or pick and choose between types of speech.(Note to readers outside of Texas: the lieutenant governor in Texas is the most powerful lieutenant governor in the nation in that the person in that office actually runs the State Senate, not unlike how the Speaker of the House runs the House.)

Common in the citations to make their point was a U.S. Supreme Court decision from the Vietnam era. In Cohen v. California, the court ruled on the case of a 19-year-old man who was arrested for wearing a jacket that read, F**k the Draft, Stop the War, into a California courthouse. The court overturned his arrest and conviction on a 5-4 decision that determined that Californias law that prohibited the display of offensive messages was a violation of the freedom of expression as protected by the First Amendment.

Cohen v. California, decided in 1971, was often cited as the case that would prevent viewpoint ... [+] discrimination in a legislative body - but it likely doesn't as legislative bodies aren't public spaces and they're immune from interference by other branches of government.

It is interesting to note that in the Cohen case, the appellant did wear his offensive jacket in the courthouse hallways but removed it upon entering a judges courtroom, folding it over his arm. He was only arrested after leaving the courtroom for having worn the jacket in the public hallways of the courthouse. Had the reverse been true, and the judge ordered him ejected from his courtroom for wearing the jacket, and he resisted, the ruling likely would have gone the other way.

Of course, judges to this day enforce rules of decorum in their courtroomslook at any jury summonsit will instruct the prospective juror on the acceptable attire and conduct in a courtroom.

First Amendment advocates will admit to this but are quick to add that judges should not engage in viewpoint discriminationthough many still do today.

Which brings up back to Lieutenant Governor Patricks tweet. Lets break it down to its chief components.

First, that the shirt in question was vulgar and has no place in a Senate hearing.

Second, that the shirt was especially offensive in that it denigrated the brave men & women of law enforcement.

Third, that if you dont like it, you can take the lieutenant governor to court.

To the first question, while most analysts would admit that, just as a judge can set rules for their courtroom, so to can a legislative body set rules for decorum in the deliberative portions of their chambers, such as the floor and in hearing rooms. These are seen as different than public places, for example, the rotunda in a state capitol building or a public sidewalk.

Even so, Ari Cohn formerly a director at the Foundation for Individual Rights in Education (FIRE), a group that brings many successful free speech lawsuits against educational institutions, insisted that there is no decent enforceable legal definition of vulgar. So, even if the Texas Senate were to uniformly enforce a ban on offensive clothing, it wouldnt stand, presumably if any clothing with a message were allowed, even something as innocuous as a shirt that read Lake Travis High School.

Well return to this question in a moment.

The second issue is that the vulgar shirt in question was particularly offensive as it denigrated law enforcement officers. This is where the accusation of viewpoint discrimination focused. The lieutenant governor cannot, his critics claimed, pick and choose between messages he likes and those he doesnt likeeither take them all or ban them all.

And, lastly, if you dont like Lieutenant Governor Patricks actions, you can take him to court.

Butand heres the big questionis the Legislature in the course of its official business, subject to any restraint by the courts?

I would argue that, in its internal operations, the answer is an emphatic No!unless specifically proscribed by the Constitution or a state constitution.

First of all, the U.S. Supreme Court held in Minnesota State Bd. for Community Colleges v. Knight in 1984 that there is no constitutional right to force officers of the State acting in an official policymaking capacity to listen to the views of the public. Secondly, in Curnin v. Town of Egremont, decided by the First Circuit Court of Appeals with the U.S. Supreme Court allowing the ruling to stand in 2008 (denying certiorari), that The First Amendment does not give non-legislators the right to speak at meetings of deliberating legislative bodies and that

The Supreme Court has never extended First Amendment forum analysis to a deliberating legislative body or to the body's rules about who may speak. While no Supreme Court case is directly on point, the Court has addressed the underlying issue of the public's ability to address government policymakers:

The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices.

The court goes on to note that, Under the Speech or Debate Clause of the U.S. Constitution, Article I, section 6, there are constitutional separation of powers protections for Congress. Further, that The purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently. That This immunity extends to injunctive relief. And finally, that, while, No explicit federal constitutional protections cover state or local legislative bodies. there are still federalism and separation of powers concerns, which have led to the adoption of similar immunities for state legislators, citing the Knight decision.

Turning to the Texas Constitution, we see in Article III, governing the Legislative Department, Section 15, that disrespectful or disorderly conduct by any person not a member in the presence of the a house conducting its business can result in imprisonment for up to 48 hours. Given that this action would not involve executive branch law enforcement or judicial branch court proceedings, its likely that such an imprisonment would not accrue to someones arrest record or criminal record as the violation would be unique to the Legislature.

Lastly, going to the heart of the matter of viewpoint discrimination, is it permissible, under the any rules of a legislative body, that a committee chairman might only accept testimony from all Democrats or all Republicans? Yes, of course. As the federal courts have noted, Public officials daily make policy decisions based only on the advice they decide they need and choose to hear.

Id argue that a hearing where ten Republicans testify with no Democrat witnesses is a far more egregious form of viewpoint discrimination than is banning an offensive shirt, yet, its perfectly acceptable, legal, and constitutional for a legislative body to decide to do so and theres nothing the courts can do about it. Its done in the U.S. Congress all the time. Its an internal matter of that legislative body. The legislative function must be performed independently. Anything less would admit to judicial supremacy. Dont like it? Win the majority and run the house as you will.

Of course, if the courts did try to meddle in the internal affairs of the Legislative branch, that branch has the tools to fight back: they can impeach and remove judges, if they muster the political will to do so. They can also use their budgetary powers in creative ways so as to concentrate the minds of an overambitious co-equal branch.

While such actions are constitutional, whether they should be done or not crosses into ethical behavior and considerations of political prudence. Just because a legislative majority can do something, doesnt mean that they should or that there might not be consequences come election time.

Bottom line: Texas Lieutenant Governor Dan Patrick and other officers of the Texas Legislature are free to order the official and internal affairs of their respective legislative chambers as they wish, in accordance with the will of that body and free from interference of either the judicial or executive branches.

Continue reading here:
Do Non-Lawmakers Have A First Amendment Right To Speak Before A Legislative Body? Its A Question In Texas After A Man Testified Wearing A Profane...