Category Archives: First Amendment

As a journalism major in college, I learned a lot about the First Amendment and its importance. I don't have to like or agree with everything that is reported, discussed, aired, etc. However, it must be protected and not be restricted. So, I am very disappointed that the Tennessee Legislature is trying to pass a House Joint Resolution calling some news media outlets fake news and condemn them for denigrating our citizens. It is HJR 0779 and has been assigned to the Judiciary Committee after going to the Constitutional Protections and Sentencing Subcommittee.

As a journalism major in college, I learned a lot about the First Amendment and its importance. I dont have to like or agree with everything that is reported, discussed, aired, etc. However, it must be protected and not be restricted. So, I am very disappointed that the Tennessee Legislature is trying to pass a House Joint Resolution calling some news media outlets fake news and condemn them for denigrating our citizens. It is HJR 0779 and has been assigned to the Judiciary Committee after going to the Constitutional Protections and Sentencing Subcommittee.

This goes against the First Amendment. It is not right to single out certain media outlets that people dont like or dont agree with. If we start that, eventually every publication will have to go away since one side calls certain networks or publications bad, corrupt, or slanted against their cause/people. And, the other side does the same with different publications. And that just shouldnt happen.

Our founders knew the importance of a Free Press. The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In other words, the press is supposed to be free from government interference. The question might be: Does this apply to the Tennessee Legislature as it does to Congress and the federal government? I think that it does, but I am not a constitutional expert or attorney. That possibly is what the subcommittees will look into.

Even if this resolution is adopted (or passes, I am not sure which), I will not be told how or what to think about the media and media outlets. I will decide that for myself. I will continue to watch and read the media outlets that I decide upon. We all have to determine what we listen to, read, watch, and follow. No one should be telling us that, especially not the Legislature, the governor, or the Congress, or the president.

We may not like what they are writing or airing but they have a right to do so. If we dont like it, we should change the channel, stop reading the article, or write a Letter To The Editor. Instead, we tend to overreact as this resolution is doing, fan the flames of discord, and call the other side awful things cult like, the deep state, etc.

I read and watch both of the publications listed in HJR 0779 as fake news CNN and The Washington Post. I also watch/read/listen to: PBS News, ABC News, CBS News, NBC News, Associated Press, MSNBC, Fox News, NPR, Time Magazine, The New York Times, San Diego Union-Tribune, The Oak Ridger, The Knoxville News Sentinel, Oak Ridge Today, The Tennessean, and others.

I dont watch or read them all of the time, but do regularly tune in and do buy papers. The newspaper industry has changed so much in recent years, and fewer people are supporting it. I continue to do my part so local news and other print options continue to be available.

I know people who regularly watch news channels and shows that I totally disagree with. But, is it my right to tell them to stop watching it? No. And, is it their right to tell me to stop watching what I choose? Again, no.

I am passionate about this since my first job out of college was a general assignment reporter for a small, twice-weekly county paper. I covered county government, county agencies, county courts, county commission, county school board, as well as the fire department, police department, sheriff department and ambulance service.

It was fascinating to learn how things work at the local level. It is something that in my opinion needs to continue. We need to know what is going on in our local communities that affect our children, our families, our health, our schools, our business opportunities, our taxes that we owe and so much more.

There are so many platforms now that anyone can write, post, talk, etc. This does concern me if those writers, bloggers or pundits have certain agendas. There are ways to verify the facts of an article. Also just because you dont like an article or a slant, that doesnt mean its fake news.

Perhaps slanted news, or extreme opinion in some cases. Or they are actually printing the truth that you dont acknowledge or agree with. In journalism school, we learned to verify facts, that opinions had no place in a news article, and to take our time without rushing to judgment. So much has changed since then.

I remember the days when Walter Cronkite ended his newscast with And thats the way it is after briefing the audience on the news of the day. Occasionally, he or someone else on the show would air an opinion piece.

Now, there are different bots and sites on Facebook, Twitter, and numerous web sites that post fake news and try to pass it off as real news. These often are re-posted or retweeted without any regard for the truth or who is behind the writing. I keep my guard up for these sites.

And, I may not like what a publication reports or prints, but since we have the First Amendment, they must be allowed to air it or print it. I just dont have to have watch it or read it, since I, too, have a First Amendment right.

A lot could and probably should be improved in the media today. I for one, get sick and tired of the extreme opinions from both sides that are regularly broadcast in the evening. Both have their own slant. I think it is up to us as informed citizens to view both ends of the spectrum to see where the other side is coming from. And to see the difference in how the same stories are told.

To read more about HJR 0779, please click on http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HJR0779. The resolution itself can then be read by clicking on HJR 0779 by Van Huss on the left column of the screen or clicking on http://www.capitol.tn.gov/Bills/111/Bill/HJR0779.pdf.

Patti Truex Cates is an Oak Ridge resident.

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Guest Column: On the 1st Amendment and restrictive resolutions - Oak Ridger

This week, Sen. Ron Wyden (D-Or.) and Rep. Ro Khanna (D-Cal.) introduced what is only the second proposal to reform the federal Espionage Act since that law was enacted in 1917.

The Espionage Act read literally permits the government to prosecute anyone who discloses government secrets to others not authorized to receive them (including persons who have never agreed to protect government secrets as part of their work). It is the main federal law used to prosecute national security media leaks.

The Wyden-Khanna bill focuses on journalists and news organizations. It would make only modest improvements to the sections of the law that permit the government to prosecute journalistic sources who have agreed to protect secrets. But it also comes at a time when press freedom advocates fear that the chance of something that has until now been thought unlikely the prosecution of a journalist for publishing government secrets is significantly higher than in the past.

As detailed in the Reporters Committees comprehensive survey of federal news media leak cases throughout history, there has been a dramatic uptick in just the last decade in cases involving national security reporting.

Prior to 2009, the government had successfully prosecuted only one source under the Espionage Act, a naval analyst charged with leaking photographs of Soviet ships. President Bill Clinton pardoned that man, Samuel Loring Morison, in 2001 precisely because his case was so unusual. Never before had a journalistic source been prosecuted successfully as a spy.

That changed with investigations started under President George W. Bush, which led to prosecutions under President Barack Obama. Obama brought 10 cases against journalistic sources and one against a Navy contractor accused in part of sending classified documents to a public archive. These include a number of high-profile cases, including the Chelsea Manning court martial and the still-pending Espionage Act indictment of Edward Snowden.

That trend continues under President Donald Trump. To date, his administration has brought charges in eight journalistic source cases and in one that involves the public disclosure of classified information, that of WikiLeaks founder Julian Assange.

The Assange case is particularly concerning because prosecutors were able to secure an indictment against Assange under the Espionage Act based in part on the sole act of publishing government secrets. This is the first time in American history where the government has deployed this legal theory, and there is nothing in the text of the Espionage Act stopping the Justice Department from using the same theory against a member of the press.

How would the Wyden-Khanna bill narrow the Espionage Act?

The bill introduced this week would make two primary changes to the law.

Before detailing these reforms, its helpful to understand a basic concept in criminal law. Generally speaking, there are two different types of crimes. First, there are completed crimes that is, crimes that one has performed oneself (think pulling the trigger in a shooting). A defendant in these completed crimes is charged as the principal.

Second, there are incomplete crimes, like conspiracy, acting as an accomplice, aiding and abetting, accessory after the fact, and failing to report a crime. In other words, these are cases where one hasnt pulled the trigger, but where the defendant, say, buys the gun or lets the shooter hide out on their property.

Under the literal text of the current Espionage Act, even individuals who dont have a security clearance and havent promised to keep government secrets can be charged as a principal. The applicable section of the Espionage Act covers anyone who has access to national defense information, and who communicates, delivers, [or] transmits that information to someone not entitled to receive it. The Justice Department has consistently and repeatedly taken the position that communicates or transmits includes the act of publication.

The Wyden-Khanna bill would effectively eliminate this provision and would prohibit cases charging anyone other than individuals who have authorized access to classified material and who have signed a non-disclosure agreement. In other words, members of the general public, including journalists, could no longer be charged under the law as a principal as if they had pulled the trigger.

The bill preserves liability for agents of a foreign power as defined in the Foreign Intelligence Surveillance Act. The specific definition is complicated, but the basic concept is that individuals who are acting at the direction of a foreign power and who are assisting someone who has signed a secrecy agreement are much more likely to be engaged in what we would all consider traditional espionage, and should therefore be easier to charge with an incomplete crime.

For non-foreign agents who havent signed a secrecy agreement, the Wyden-Khanna bill would significantly narrow the potential scope of liability for those who havent themselves pulled the trigger, which is particularly important for journalists. Under current law, there is a significant concern that a national security reporter interacting with a source in a story involving the disclosure of classified information even if eminently newsworthy and in the public interest could be charged as a conspirator or abettor of the disclosure.

Conspiracy can be thought of as a meeting of the minds where two or more people agree to do the bad thing. If I contract out a hit, Im a conspirator, and I can be charged the same as the person who pulls the trigger. Abetting is even broader, and the word abet can encompass just encouraging someone to pull the trigger.

In the context of national security journalism, there is a significant concern that the act of soliciting, receiving, and agreeing to publish government secrets could be the basis of a conspiracy or abetting charge against a journalist.

Thats the basic theory behind most of the Assange charges: that Assange abetted Mannings violation of the Espionage Act by encouraging the leak and agreeing to publish the material. (The indictment prominently quotes Assange as saying curious eyes never run dry when Manning suggested there might not be more material to pull.) It was also the argument the FBI made in a 2011 search warrant for a national security reporters emails in a leak investigation.

The Wyden-Khanna bill would significantly limit the governments ability to charge a national security reporter under this theory.

First, it would require that the defendant directly and materially aid or pay for the commission of the underlying offense by the person who signed a non-disclosure agreement. Granted, the language here could be tighter. It should be read to require participation in the underlying acquisition of the classified information, like giving a source a key or a password. Nevertheless, even in its current form, it would be a significant improvement over current law.

Second, it would require that the defendant act with the specific intent to harm the national security of the United States or benefit any foreign government to the detriment of the United States.

Again, although this language could still be subject to misuse against, say, a columnist critical of U.S. foreign policy, it would significantly limit the scope of existing law and require prosecutors to introduce evidence at trial that the defendant was motivated to harm U.S. national security. National security reporting on newsworthy stories in the public interest particularly stories that reveal improper government actions would almost certainly not meet this intent standard.

Finally, the reform bill includes a provision that clarifies that direct and material aid cannot include counseling, education, or other speech activity or the provision of electronic communications services to the public, which is likely meant to protect news organizations that provide services like SecureDrop for the anonymous collection of potentially classified information.

But doesnt the First Amendment already protect journalists?

There is an argument that the bill actually authorizes a new crime that was until now hypothetical and potentially unconstitutional. In other words, its still up in the air as to whether the public disclosure of information in the public interest by someone who hasnt promised to protect secrets can constitutionally violate the spying laws. By passing this law, the argument follows, Congress is confirming to a court that it believes such activity can be punished under the First Amendment.

This concern should not be discounted, but there are a couple of responses.

One, every court that has addressed whether the existing Espionage Act can constitutionally apply to journalistic sources has found that it can. The arguments in that context are similar to the arguments one would advance in defense of a journalist. Things are, in other words, already quite grim under existing law.

Two, a constitutional challenge would still be available even under the Wyden-Khanna bills reforms. If an aggressive prosecutor attempted to try an opinion writer who merely expressed ideological disagreement with some specific U.S. foreign policy position or action while reporting on classified information, any defendant could still bring an as-applied challenge to the reformed Espionage Act. All laws have to comply with the First Amendment.

While it is true that the fact Congress has spoken on the issue could make a judge more likely to reject an as-applied challenge, the state of the law is so bad and the uptick in journalistic source cases over the last decade so concerning that the improvements proposed in the Wyden-Khanna bill are worth that risk.

Finally, contrary to a lot of conventional wisdom, there is no guarantee that a constitutional challenge to the post-publication punishment of a news organization for disclosing government secrets will succeed. The Pentagon Papers case, for instance, only held that the government cant restrain the publication of secrets, but at least five judges signaled they would uphold the post-publication punishment of a journalist for reporting secrets.

Additionally, the other line of cases news organizations would point to, which hold that a journalist who lawfully acquires information can publish that information without fear of prosecution, even if it has been unlawfully acquired by a source, have never addressed whether that rule applies to the Espionage Act. The most recent Supreme Court case on the question, Bartnicki v. Vopper, dealt only with whether a radio talk show host could be sued for broadcasting an illegally wiretapped conversation.

In sum, the concern that passing reform legislation could be counterproductive is valid, but, on balance, the Wyden-Khanna bill would probably result in stronger protections for journalists than currently exist even under the First Amendment.

What happens if the bill gets worse as it moves through Congress?

Many First Amendment advocates who work in this area have long feared that opening up the Espionage Act could actually make the law worse because national security hawks in both parties could seek to expressly criminalize the public disclosure of government secrets, much like the Official Secrets Act in the United Kingdom.

This concern is, again, well taken. As introduced, the Wyden-Khanna bill would significantly protect journalists from being treated as spies for reporting newsworthy government secrets. Were it amended in a way that would make existing law worse (or significantly decrease the viability of a First Amendment defense), press advocates would almost certainly oppose the bill. But the need for greater protections in this area is pressing and the bill would, if passed in its current form, make the world a better place.

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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Sen. Ron Wyden, Rep. Ro Khanna introduce bill to reform Espionage Act - Reporters Committee for Freedom of the Press

By ZACH MONTELLARO

03/05/2020 10:00 AM EST

Updated 03/05/2020 03:39 PM EST

Editors Note: Morning Score is a free version of POLITICO Pro Campaigns morning newsletter, which is delivered to our subscribers each morning at 6 a.m. The POLITICO Pro platform combines the news you need with tools you can use to take action on the days biggest stories. Act on the news with POLITICO Pro.

Rep. Henry Cuellar (D-Texas) holding off a tough primary challenge headlines the list of downballot Super Tuesday races that were called Wednesday, but many California races are still unresolved.

Mike Bloomberg formally ended his presidential campaign on Wednesday, winnowing the field further still. Meanwhile, Joe Biden was declared the winner in Maine, eeking out a narrow victory.

The Senate is poised to take action on President Donald Trumps Federal Election Commission nominee, which could give the embattled federal election watchdog a quorum. But many Democrats and money-in-politics groups are not happy with the prospective commissioner.

A message from the Partnership for America's Health Care Future:

American patients cant afford the higher taxes, longer wait times and lower quality care that would come with Medicare for All. Dont force American families into a one-size-fits-all government health insurance system. See why.

Good Thursday morning. Email me at zmontellaro@politico.com, and follow me at @ZachMontellaro.

Email the rest of the Campaign Pro team at sshepard@politico.com, jarkin@politico.com and amutnick@politico.com. Follow them on Twitter: @POLITICO_Steve, @JamesArkin and allymutnick.

Days until the March 10 primaries: 5

Days until the Phoenix Democratic debate: 10

Days until the March 17 primaries: 12

Days until the 2020 election: 243

Rep. Henry Cuellar narrowly beat out a primary challenger in a race that was called on Wednesday. | Getty Images

THE LATE CALLS Super Tuesday stretched well into weary Wednesday. I shamelessly stole a colleagues joke to highlight the fact that not all of the downballot races were called on Tuesday and some are still outstanding. Topping the list of races that were called on Wednesday: Cuellar holding off a primary challenge from Jessica Cisneros in TX-28.

A win that tight by Cuellar will likely do little to quell the liberal forces who had pegged the race as the next major opportunity to shake up the Democratic caucus, POLITICOs Ally Mutnick and Sarah Ferris wrote. Her near-miss is likely to embolden a score of liberal primary challengers hoping to take out House Democrats, including two later this month. In Illinois, Democrat Marie Newman is making another run at Rep. Dan Lipinski who, like Cuellar, also opposes abortion rights. And in Ohio, Rep. Joyce Beatty faces a stiff challenge from consumer advocate Morgan Harper. Cuellar, perhaps spooked by the rash of Democratic incumbents who fell last cycle, assembled a formidable campaign apparatus.

But that wasnt the only big race call on Wednesday. In Texas, the DSCC-endorsed MJ Hegar now knows her runoff opponent: Royce West, who edged out Cristina Tzintzn Ramirez for the second runoff spot for the Democratic Senate nomination. And heres the rest of the calls in the races we were watching:

AL-02: Former state Rep. Barry Moore will face businessman Jeff Coleman in the March 31 primary runoff for this safe, red seat.

CA-08: Republican Jay Obernolte secured a spot in November in the red seat. The second spot remains undecided between Democrat Chris Bubser and Republican Tom Donnelly.

CA-10: Freshman Democratic Rep. Josh Harder will face Republican Ted Howze in November.

CA-25: The simultaneous primary and special election remain muddled. Democrat Christy Smith won a spot in the special election runoff, but the other spot (and the two candidates who will face off in November in the regular election) remain uncalled, with Republicans Steve Knight and Mike Garcia battling.

CA-50: In this open, red-leaning seat, Democrat Ammar Campa-Najjar secured his spot in the November election. Republicans Darrell Issa and Carl DeMaio are dueling for the second spot.

CA-53: Democrat Sara Jacobs won a spot in the general election in November. Democrat Georgette Gomez and Republican Chris Stoddard are fighting for the second.

TX-23: Republicans Tony Gonzales and Raul Reyes are officially headed for a runoff in the GOP-held open seat. The winner will face Gina Ortiz Jones, who easily won her primary.

TX-24: Democrats Kim Olson and Candace Valenzuela are headed to a runoff, and the winner will face Republican Beth Van Duyne, who won her primary for the Dallas-area open seat.

TX-32: Republican Genevieve Collins won the Republican nomination outright, avoiding a runoff, and will face freshman Democratic Rep. Colin Allred in November.

SEE YOU LATER Bloomberg officially called it quits on Wednesday, ending his half-billion-plus presidential campaign with little to show for it. Bloomberg huddled early Wednesday morning with his closest advisers in one of his Manhattan offices. Alongside campaign manager Kevin Sheekey, chair Patti Harris and adviser Howard Wolfson, Bloomberg reviewed the final results from the biggest night of the Democratic primary, POLITICOs Sally Goldenberg and Chris Cadelago reported. They saw no path to success. He then opted to drop out of the race and throw his support and potentially his vast resources behind Biden.

More: Bloomberg aides said it was still unclear how hed be involved in Bidens campaign. Advisers on the all-staff call said they are working on a plan for how they'll wind down the campaign. The advisers stressed they built their massive operation to continue the fight against Trump in battlegrounds regardless of whether hes the nominee.

Elizabeth Warrens team is considering ending her campaign. An aide to Warren told POLITICOs Alex Thompson that she was spending Wednesday with her team to assess the path forward. [Campaign manager Roger] Lau wrote [in an email to staff] that [t]his decision is in her hands, and its important that she has the time and space to consider what comes next.

Top allies of Warren and Bernie Sanders are also discussing ways for their two camps to unite and push a common liberal agenda, with the expectation that Warren is likely to leave the presidential campaign soon, The Washington Posts Annie Linskey and Sean Sullivan wrote. Warren allies also talked with Bidenworld, Linskey and Sullivan reported.

TAKING STOCK After a rough Super Tuesday, Sanders is changing his strategy. The decades-long refusal to air negative TV ads is out. Spots highlighting former President Barack Obamas praise of him are in, POLITICOs Holly Otterbein wrote (heres the Biden attack ad, hitting him over social security, and heres the ad featuring Obama). After facing questions for weeks about whether Sanders would shift his message to broaden his base, Sanders campaign co-chair, Rep. Ro Khanna, said his candidate will work to appeal more to older voters and mainstream Democrats.

More from Holly: Sanders aides still very much see a path to victory, however. They believe he has a shot at winning five of the six states that vote next week, including Michigan and Washington, which have the days largest delegate hauls.

Team Bidens response to the change in tune from Sanders? Remember the last primary. Framing Sanders as a divisive party outsider who won't accept defeat, the Biden campaign pointed to his bitter Democratic primary fight four years ago with his party nemesis, Hillary Clinton. That ended with a chaotic nominating convention and Donald Trumps election months later, POLITICOs Marc Caputo and Natasha Korecki wrote.

NEXT ONE UP Michigan is the biggest prize in next Tuesdays primaries, both in terms of how many delegates are awarded and for its political value. It was Michigan where Sanders engineered a primary day miracle four years ago, upsetting Hillary Clinton and imprinting his populist agenda on the industrial Midwest, POLITICOs David Siders and Holly wrote. But Super Tuesday laid bare the full force of the momentum Biden drew from winning South Carolina, prompting moderate Democrats to coalesce around him and persuading many undecided voters to break his way.

HOW HE DID IT Bidens support on Super Tuesday was a primary coalition he and other Democrats have yearned to build for a year, fusing domination among black voters with strong support from whites that crossed over class lines, POLITICOs Laura Barrn-Lpez wrote. Latino voters were, however, a particularly strong group for Sanders.

WITH FRIENDS LIKE THESE Trumps relationship with Florida Gov. Ron DeSantis is souring in the crucial swing state. DeSantis is no verbal knife fighter, something Trump expects from his inner circle, and the onetime Fox News stalwart has ceased appearing on the cable channel, POLITICO Floridas Matt Dixon writes. And with Election Day just eight months away, his pick to lead the Republican Party of Florida resigned on Tuesday after failing to deliver crucial get-out-the-vote infrastructure. DeSantis defenders cast the chatter as a sour-grapes narrative.

DELEGATE HEADCOUNT Before Bloomberg (and Pete Buttigieg and Amy Klobuchar) dropped out, they did manage to win delegates to the national convention. So what happens to their delegates? It is a lot more difficult than simply adding their totals to Biden, I wrote but it is a complicated dance that will only really matter if someone else cant secure an outright majority.

WHAT GIVES? Bloomberg essentially ran out the clock on transparency for his financial records after he asked for (and was granted) extensions on filing his public disclosure forms, the Center for Public Integritys Dave Levinthal wrote, dropping out before submitting it.

ENDORSEMENT CORNER Congressional endorsements continue to pour in for Biden. Sen. Kyrsten Sinema (D-Ariz.) backed him, as did Florida Reps. Kathy Castor, Lois Frankel and Ted Deutch, Illinois Mike Quigley, Robin Kelly and Bill Foster and New Jerseys Andy Kim. (This is Kims third endorsement of the cycle, having previously backed Cory Booker and then Buttigieg.) Sarah and Heather Caygle also have more on the celebration among some House Democrats on Bidens surge (and Sanders speedbumps) on Super Tuesday.

THE ENFORCERS? The deadlock at the Federal Election Commission could soon come to an end. Trump nominated Texas attorney Trey Trainor to be a FEC commissioner. That itself is not new; Trainor has been nominated in the past, and the Senate has let his nomination languish. But this time, the Senate is poised to take action. The Senate Rules Committee will hold a hearing on Trainors nomination on March 10, the first step toward Trainor actually being confirmed (the movement was first reported by the CPIs Levinthal, who has been all over the FECs trials and tribulations for awhile now). Democrats are, however, furious at the break in tradition, which typically sees a bipartisan pair of nominees put forward, Roll Calls Kate Ackley wrote.

But if Trainors hearing goes smoothly, and he is eventually confirmed, there would once again be a quorum at the FEC. The countrys chief election watchdog has languished without one for more than six months, being unable to take action on a bevy of things (heres what I wrote back in December about the lack of a quorum). But some campaign finance-focused groups are not happy about the movement on Trainor. Reopening the Federal Election Commission with a nominee who does not think we should enforce the nations campaign finance laws will only make matters worse, Meredith McGehee, the executive director of Issue One, said in a statement. (Trainor, generally, has fought for less campaign finance regulation, having publicly questioned the value of disclosing donors.)

The Institute for Free Speech which was founded by former FEC commissioner Bradley Smith and argues against many campaign finance-related restrictions on First Amendment grounds praised Trainor as a well-qualified practitioner.

THE SENATE MAP Democrats are poised to land a major recruit in the battle for the Senate: Term-limited Montana Gov. Steve Bullock, who had previously (and adamantly) denied that he was going to run. In recent days, Democrats are starting to believe the two-term governor could jump in the race to challenge GOP Sen. Steve Daines, a move that would expand the Senate map for Democrats by giving them another battleground target in their bid to take back the chamber, POLITICOs James Arkin and Marianne LeVine reported. Bullock has not yet indicated publicly an interest in the race, and it is not a done deal that Bullock will run, according to multiple Democratic sources. (The New York Times Jonathan Martin first reported Bullocks apparent change of heart.)

We have some polling numbers in the Georgia special Senate election, with Rep. Doug Collins (R-Ga.) and Sen. Kelly Loeffler (R-Ga.) battling it out. The University of Georgia School of Public & International Affairs poll has Collins at 21 percent to 19 percent for Loeffler. Democrat Matt Lieberman is at 11 percent and the DSCC-endorsed Raphael Warnock is at 6 percent, with a handful of other candidates below him (1,117 likely general election voters; Feb. 24-March 2; +/- 2.9 percentage point MOE).

Sen. Rick Scott (R-Fla.) is raising some big cash for his new colleagues. The first-term senator is hosting three events Sunday and Monday, benefiting six Senate Republicans on the ballot this year and one GOP challenger, James reported.

We approached, but did not quite hit, former Attorney General Jeff Sessions worst nightmare as he hopes to return to the Senate in Alabama. Trump retweeted an AP tweet announcing that Tommy Tuberville, Sessions rival for the nomination, advanced to a runoff on Wednesday morning. He followed it up with a quote-tweet of the POLITICO story saying Sessions finished well short of a majority in a primary: This is what happens to someone who loyally gets appointed Attorney General of the United States & then doesnt have the wisdom or courage to stare down & end the phony Russia Witch Hunt. Thats not exactly a Tuberville endorsement, but it is getting awfully close to one.

THE GOVERNATORS A race I neglected to mention in Wednesdays Score, because the primary was entirely uncompetitive: North Carolina governor. Republican Lt. Gov. Dan Forest emerged from his primary fairly easily and will face Democratic Gov. Roy Cooper in whats expected to be one of the most hotly-contested gubernatorial races this year.

WAY DOWN BALLOT The Democratic Legislative Campaign Committee announced that it raised $2.6 million in February, its best February ever.

THE OUTSIDE GROUPS Tom Lopach, a former Bullock aide and former DSCC executive director, was named the president and CEO of the Voter Participation Center and Center for Voter Information.

A message from the Partnership for America's Health Care Future:

Creating a one-size-fits-all new government health insurance system like Medicare for All would mean serious consequences for patients. We cant afford to have everyones income taxes doubled to start over with a Medicare for All system that would put politicians in charge of health care. Get the facts.

CODA DYSTOPIAN HEADLINE OF THE DAY: Bloomberg attracted few votes but his ads still grabbed the attention of many kids, from The Washington Post.

CORRECTION: An earlier version of Morning Score misstated the DLCC's fundraising record. This February was the best February the committee has ever had.

The rest is here:
Cuellar holds off primary challenge, and other late calls - Politico

San Francisco is expected to pay Bryan Carmody $369,000 to settle a claim the freelance journalist filed last year after police raided his home as part of a leak investigation.

Last April, the San Francisco Police Department asked Carmody to reveal the source of a leaked police report concerning the death of public defender Jeff Adachi. Carmody refused, and a month later officers came to his home with search warrants, seizing computers, cameras and phones while FBI agents questioned the journalist.

All of the warrants were later nullified, deemed illegal under Californias shield law, which allows journalists to protect confidential sources and materials.

Filed last August, Carmodys claim against San Francisco is related to the illegal warrants and the conduct of the police department in carrying them out, according to San Franciscos resolution to settle. Courthouse News Service reported on Tuesday that the resolution is expected to head to the San Francisco Board of Supervisors Government Audit and Oversight Committee. If approved, it will then move to the full board for a vote.

The raid of Carmodys home made national news, sparking outrage among journalists and press freedom advocates.

Any search targeting a journalists confidential material is a particularly egregious affront to First Amendment rights and should be investigated thoroughly, Reporters Committee Executive Director Bruce Brown said in a statement last May. Mr. Carmodys devices and work product should be returned immediately.

When Carmody moved to have his equipment and materials returned, Reporters Committee attorneys gathered a coalition of 60 media organizations and sent a letter supporting his motion to the California Superior Court.

The Reporters Committee has also pursued records related to the presence of the FBI during the raid. Though FBI personnel did not participate in the search itself, the agency has confirmed that its agents were on site to question Carmody.

According to an FBI document obtained through a Freedom of Information Act lawsuit filed by the Reporters Committee in September, those agents knew that Carmody was a journalist. The Justice Department guidelines generally require authorization from the attorney general before a member of the news media can be questioned. But its unclear whether these guidelines were followed here.

The Justice Department policies were put in place to handle criminal investigations in a careful and thoughtful manner based on a particular set of circumstances and provide meaningful protections for newsgathering, policy analyst Melissa Wasser and Stanton Foundation National Security Fellow Linda Moon wrote in October. The public deserves to know whether these policies were followed, and if they werent, the FBI needs to provide public justification.

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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San Francisco expected to pay $369,000 settlement to Bryan Carmody - Reporters Committee for Freedom of the Press

A Fauquier County judge ruled Thursday, March 5 that the court proceedings involving Levi Norwood, the teen charged in the fatal shootings of his mother and brother, will remain closed for now, despite a Feb. 26 motion from the Washington Post to open them to the public.

Levi Norwood, 17, has been charged with two counts of murder in the Feb. 14 shooting deaths of his mother, Jennifer Norwood, and his 6-year-old brother Wyatt at their Midland home. The teen has also been charged with shooting his father, Joshua Norwood, 37.

The elder Norwood said he escaped from the house at about 6 p.m. Friday, Feb. 14, after he was shot in the forehead and had found the bodies of his wife and youngest son.

Fauquier County Juvenile and Domestic Relations Judge Melissa N. Cupp ruled Thursday that Norwoods defense attorney Ryan Ruzic showed good cause to keep Norwoods hearings closed. Ruzic and Commonwealths Attorney Scott Hook filed a motion Feb. 27 in response to the one from the Washington Post.

Cupp added, however, that the teens hearings might be open sometime in the future.

This court or another court may not find such restrictions are necessary as the case progresses to preliminary hearing or trial, she wrote.

Cupp also said the court has not yet been told whether Hook or Levi Norwood will request that the teens detention hearing, set for Monday, March 9, will be open or closed.

Mr. Norwood, having been advised of his right to a public hearing, may take the position that the next hearing should be open to the public, she wrote.

Normally, cases heard in juvenile and domestic relations court are not recorded or transcribed. In this case, however, Cupp ordered that a court reporter should be present at all future hearings so that in the event a future hearing is ordered closed, any party or intervenor can seek review of said order and request the release of the transcripts.

The Feb. 26 Washington Post motion asked the court to open Norwoods court proceedings to the public, arguing that the juvenile court improperly closed Norwoods Feb. 24 hearing.

The Post claimed that closing the proceeding violated the First Amendment of both the U.S. and Virginia constitutions. The Posts motion further asserted that Virginia Code 16.1-302 states: Proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile 14 years of age or older committed an offense, which would be a felony if committed by an adult, shall be open.

Ruzic, at the Feb. 24 hearing said the proceedings should remain closed to maintain the privacy of the juvenile defendant.

The motion makes mention of a catharsis for the community, Ruzic said, before arguing that the case has already appeared extensively in the press, and the alleged crime was not a matter for public consumption.

He added that the shootings did not take place in a public place and were confined to one family.

Ruzic further stated that in a small community like Fauquier, keeping the proceedings closed would be necessary to protect the pool of jurors from being compromised, and to protect any potential witnesses who are younger than 18. Hook agreed with the defense attorney.

Cupp explained in her March 5 order that these reasons represented good cause for keeping the hearings closed.

Reach Robin Earl at rearl@fauquier.com

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Judge: Hearings for Fauquier teen charged in fatal family shootings will remain closed - Fauquier Times

Carl Szabo, vice president and general counsel, NetChoice

What youre seeing is a misunderstanding of what Section 230 is, what it does and its necessity, Szabo said. None of the sponsors of this act have supported existing congressional efforts to explore the unintended consequences of SESTA, a bill passed in 2018 that amends Section 230 to include provisions waiving liability protections for online platforms that host illegal sexual content. They seem unwilling to recognize that SESTA has harmed the very victims it has tried to help. Until we understand the harm of the only other amendment to Section 230, it is premature to consider this legislation.

Patrick Trueman, president and CEO, the National Center on Sexual Exploitation

Tech companies dont do what is reasonable to do and what every parent would like them to do and what Congress would like them to do, Trueman said. Congress is giving them one last chance before they eliminate the immunities afforded by Section 230.

They can complain all they want about that, but they had their chance and this is their last best hope.

Emma Llans, director of the Center for Democracy and Technologys Free Expression Project

There are pretty conflicting messages today about how to address children sexual abuse materials online, Llans said, noting the Thursday release of voluntary principles from a coalition including a group of U.S. agencies, along with the governments of Britain, Canada, Australia and New Zealand, that were crafted in conjunction with several technology companies.

Its a bit hard to understand why the Graham bill would be necessary if there is in fact this recognition that there is a lot going on and, in fact, discussion already about what best practices are not only between the companies and the U.S. government but also the other countries.

India McKinney, director of federal affairs, the Electronic Frontier Foundation

Regarding the commission this bill creates, McKinney said: Giving the ability to create law to an unelected body is really problematic, and making best practices mandatory is also really problematic, and we think that runs into some First Amendment problems.

Some of the bill sponsors have said to us in the past that they arent necessarily interested in going out and looking at encryption, but its clear to us that the DOJ, and specifically the attorney general, are.

This story has been updated to include additional comments.

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EARN IT Act: Instant Reaction - Morning Consult

A bill that would direct Wyoming's Attorney General to sue the federal government over any federal infringements on the Second Amendment to the U.S. Constitution has passed a Wyoming Senate Committee and is now headed to the full Senate.

The bill lists several potential actions that it deems as infringements, including such things as gun registration or confiscation programs, special taxes on firearms and accessories that don't apply to other items, and other actions that would inhibit ''law-abiding citizens'' from possessing firearms.

The vote on House Bill 118 in the Senate Judiciary Committee was 4-1. Lisa Anselmi-Dalton [D-Rock Springs] was the lone vote against the bill.

But Sen. Brian Boner [R-Converse/Patte counties], who voted for the measure in committee, said he was concerned that a series of amendments attached to the measure in committee would weaken the bill by giving the Attorney General too much latitude in deciding whether to take court action against the bill.

Opponents of the bill, including the Wyoming Chapter of ''Moms Demand Action For Gun Sense In America" argued in committee that such bills increase the danger to the public. Some opponents also questioned whether the bill was constitutional. But bill co-sponsor Sen. Lynn Hutchings [R-Cheyenne] argued that under the constitution, governments can only act with the consent of the governed.

Another sponsor, Rep. Tim Salazar [R-Fremont County] ''I often hear people say 'I support the Second Amendment, but..'' He said he seldom hears such comments about the First Amendment or other such amendments."

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'Second Amendment Preservation Bill' Passes Wyoming Committee - Kgab

Mike Bloomberg appears before supporters after ending his campaign for president in New York City, March 4, 2020. (Carlo Allegri/Reuters)

The dragons of myth were not slain by fearless knights, but by reality. In the real world, there are no dragons, and so theres no need to send St. George to dispatch them.

Another myth died from reality last night: the myth that big spending buys elections.

Former New York City mayor Mike Bloomberg spent $500 million on his failed presidential campaign. Thats $500,000,000, by the way, with eight zeros.

His ads ran everywhere: No Virginian could load a YouTube video without seeing Hizzoners face. He bought time to playact as the president and update the country on the COVID-19 epidemic. He even bought ad time during Democratic presidential debates padding out his arguments with unchallenged praise for the Bloomberg agenda. He hired a veritable army of staff (at good wages) and sent them out to knock on doors, flood phone lines, and ensure that voters got wall-to-wall coverage: all-Bloomberg, all the time.

But as Super Tuesday ended, it became Hangover Wednesday for the Bloomberg brigades. Spending $500 million, or nearly as much as Hillary Clintons campaign spent in 2015 and 2016 combined, managed to buy Bloomberg a solitary win in the territory of American Samoa. There, Bloomberg won 175 votes (thats not a typo), edging out Rep. Tulsi Gabbard (D., Hawaii), a native of the territory, who picked up a whopping 103 votes.

Former vice president Joe Biden had almost no money to spend, but it didnt matter. Biden does not appear to have set foot in Minnesota during the campaign, yet he prevailed there in part on the basis of home-state senator Amy Klobuchars endorsement. He didnt run television ads in Massachusetts, yet he prevailed there and consigned the commonwealths senior senator, Elizabeth Warren, to third place in spite of Warrens recently blessing a big-money super PAC. The Biden campaign had one field office in all of Virginia, in a share office building just outside of Washington, D.C. Nevertheless, the former vice president swept through the state, carrying nearly every county from Tidewater to the Appalachian Plateau.

Even senator Bernie Sanders, while not as deep-pocketed as Bloomberg, still spent approximately $18 million in the Super Tuesday states. Joe Biden managed to pony up about a ninth of that $2.2 million. Yet Biden carried Texas, winning over 700,000 votes in that state alone.

Money helps you talk, but it does not guarantee that people will listen. Voters decide elections, not dollar signs or yard signs or $10 million Super Bowl ads. And voters absorb information from all kinds of sources, not just paid-for campaign rhetoric. Its true that YouTube ads or whoever the Honorable Judith Sheindlin (thats Judge Judy to you) campaigns for probably are some small factor. The inescapable media coverage and live debates that come with a presidential campaign, however, make it very difficult to control public perception through advertising and retail politics alone. Voters consider press coverage and signals from the institutional party structure. Perhaps its not surprising that Democratic voters turned out and voted for the lifelong Democrat on the ballot, the one the media said could win, and the one that trustworthy party leaders and former presidential opponents all agreed was the right choice. Bidens advantages cant be bought.

Regulating any singular channel of electoral information will put a thumb on the scale. Indeed, one cannot help but note that campaign-finance laws are, by definition, almost always written by self-interested incumbent politicians and typically disadvantage their challengers. Voters should have the opportunity to absorb, engage with, and reflect on many sources of information before deciding to cast a vote.

The press should go unregulated. The party should be able to signal its support to its partisans. And super PACs for Elizabeth Warren and the personal bank accounts of Michael Bloomberg ought to be able to disburse whatever amount of money they wish even if its the functional equivalent of yelling at voters like peripatetic street preachers (another group protected by the First Amendment). Instead of trying to tie down paid spending with red tape and regulations, as the campaign-finance-reform groups would have us do, we should let a hundred flowers bloom. Americans can receive, review, and decide what information is relevant to their voting decisions and then to act on it.

The dragon has been slain. The village is safe.

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Bloomberg Slayed the Myth That Money Buys Elections - National Review

(Roman Genn)Sanders and the Democrats are birds of a feather

In 2016, there was a groundswell of conservative and Republican opposition to Donald Trump, led in no small part by this magazine. In 2020, there is not much sign of a comparable movement among Democrats in opposition to Senator Bernie Sanders, the socialist from Vermont from Brooklyn who is running for the presidential nomination of a party to which he does not belong as a confessing socialist calling for revolution.

Why is there no Never Bernie movement to speak of?

The New York Post went looking for one in early February and did not come up with much: some rumors of discontent, but only vague ones. Democratic activist Jim Kessler of Third Way was exemplary: Ill still put a Bernie Sanders bumper sticker on my car, he told the Post, but a lot of people wont. Who? Donna Brazile, the former DNC chair, denied that there was any effort from any high-level Democrats to stop Sandersonly a few moody donors.

There is a purely strategic anti-Sanders effort, to be sure, typified by the Big Tent Project, which works to promote less radical candidates (it helped Joe Biden in South Carolina) and warns Democrats that nominating Bernie means we reelect Trump. There is a very large difference between worrying that a candidate will lose and believing that he does not deserve to winthat he is, as many conservatives said of Trump in 2016, fundamentally unfit for the office he seeks. Which Senator Sanders manifestly is. Democrats may be concerned that his radicalism is likely to be a political loser, but there is not much intellectual or moral pushback against the radicalism itself.

To the extent that one exists at all, the supra-strategic Never Bernie tendency consists of 7,844 nobodies on Twitter and David Brooks, a conservative-leaning New York Times columnist who interned for William F. Buckley Jr. and who has been an ex-Republican for about as long as Donald Trump has been a Republican. The Twitter nobodies are mostly disappointed partisans of the campaigns of other Democratic-primary contenders who cannot forgive Senator Sanderss often brutish supporters for their abuses, e.g., field director Ben Moras mockery of Amy Klobuchar and Elizabeth Warrens looks (chunky and looks like sh**, respectively) and Pete Buttigiegs sexuality, threatening violence at Joe Biden events, etc. Tom Watson, a Democratic strategist, reports a level of pure antipathy Ive never seen before among anti-Sanders Democrats, but other than the desultory social-media stuff, it is not much in evidence.

If you want to see pure antipathy, consider the Democratic response to Brookss column arguing that Sanders, with his socialism and his calls for revolution, is illiberal, something like a left-wing Donald Trump. In a hysterically stupid but terribly typical response, Paul Waldman complained in the Washington Post that Brooks wrote as though Sanders has proposed herding us all into collective farms, starving half the population and establishing a gulag where hell send his political enemies butget this!failed to produce a single quote from Sanders calling for that.

Well.

As it turns out, Lenin did not publicly advocate starving millions of Ukrainians to death, Castro did not publicly advocate murdering librarians and imprisoning homosexuals, Chvez did not publicly advocate turning Venezuela into a basket case . . . Senator Sanders says that what he has in mind is Denmark, but the policies he proposes are nothing like Danish policies, which he evidently knows absolutely nothing about, and he has spent his life as an apologist for the Soviet Union (where he vacationed), Castros brutal regime (literacy programs!), Chvezs Venezuela (his Senate website posted an article praising that socialist backwater as the new home of the American dream), etc. In fact, if you listen to Kim Jong-un talk about his philosophy of government, it turns out to besurprise!rather different from how things actually work in North Korea. I have yet to find a single quotation from the Dear Leader in which he argues that his fellow countrymen should be starved until they are reduced to cannibalism.

Progressives in general rallied to Senator Sanders in defending him against criticism of the agenda that he himself describes as socialism. Tom Scocca of Slate dismissed Brookss column as a grotesque pack of lies, while Jonathan Chait of New York insisted that Bernie is an economic socialist but a political liberal. Senator Sanders proposes, among other things, to gut the First Amendment in order to put political speech under direct federal controlthat is not liberalism, but its opposite. Brookss characterization of Sanderss populist demagoguery and the mode of politics it impliesmajoritarian dominationnot only is apt and accurate, it is precisely what Senator Sanders himself promises: a revolution that will leave his political opponents unable to oppose his agenda because they will be regulated into silence or politically bullied into acquiescence.

Dont expect to see an anti-Sanders movement comparable to the anti-Trump movement of 2016, for at least four reasons.

First, there is no principled anti-Sanders movement because Democrats principles are Sanderss principles. Whereas Republicans in 2016 had good reason to doubt Trump on everything from abortion to the Second Amendment to taxes, Democrats have no such qualms about Sanders. Sanders calls himself a socialist, Warren insists that she is a capitalist, but they come down pretty close together on health care, business regulation, taxes, and much more. (With capitalists like these, who needs socialists?) Sanders wants a monopoly health-care system, punitive taxation, a (further) weaponized regulatory state, and a radical expansion in federal spending and federal power. Democrats may quibble, but they simply are not in the position of 2016 Republicans who doubted Trumps reliability on their core issues.

Second, Democrats do not actually believe socialism to be outside the boundaries of respectable opinion. They may worry about it as a marketing matter, but Sanderss enthusiasm for left-wing autocrats from Moscow to Havana to Caracas is not, from the progressive point of view, morally comparable to disreputable right-wing enthusiasmsfor Pinochet or Franco, once upon a time, or for Orban or Alternative fr Deutschland today. They are committed to their belief that Alger Hiss and the Rosenbergs were on the right side of history, that those who opposed them were monsters, and that those who rallied to the flag of Lenin, Stalin, and Mao were only humanitarians with excessive enthusiasmliberals in a hurry, as they used to say.

Third, unlike 2016 Republicans, 2020 Democrats do not believe that Sanderss performative outrage, rhetorical incontinence, facile extremism, defects of judgment, etc., disqualify him from the office. They only worry that voters might think this and punish his campaign and their partywhich, let us remember, are not the same thingfor these excesses. Trump abominates CNN, and Democrats see a would-be censor and a threat to the First Amendment. (Never mind that every single Democrat in the Senate voted to effectively repeal the First Amendment only a few years ago.) Democrats complain about Fox Newsand Senator Sanders complains more generally about the corporate mediaand progressives hear only a call to arms. Both Senator Sanders and Senator Warren have taken the lead in outlining repressive new measures curbing political speech in the name of campaign-finance reform, but practically every major Democrat accepts these or similar measures enthusiastically.

Fourth and finally for this discussion, the Democratic Partys transformation into the Party of Oberlin is, if not quite complete (see South Carolina and the resurgence of Joe Biden), then very far along. When James Carville warns about driving away blue-collar and rural voters, Democrats in Brooklyn hear that Southern accent and quietly whisper, Good riddance. The Democrats are in the mood for culture war, not for coalition-building and reconciliation. They do not wish to win with moderation and compromise, because they do not wish to govern with moderation and compromise. They feel themselves to have been humiliated by the Trump administration, and they have set upon Sanders as the instrument of their vengeance. That Senator Sanders has so much in common with Trumpan outsider to the party who loathes the party leadership, a demagogue who detests compromise and bipartisanship, who has a funky outer-boroughs accent and zany hair, who until the day before yesterday voiced remarkably Trumpian views on immigration and trade, etc.is no accident, and it is not something that Democrats are having to hold their collective nose and swallow. Democrats speak in public as though the Republican Party has been ruined by Donald Trump, but in truth their detestation is larded with envy. Trump has given the Republicans something the Democrats want for themselves.

For better and for worse, the Trumpiness of Senator Sanders is the sizzle and the steak, and not only for the hardline left-wingers. They could have had a Buttigieg or a Klobuchar, and they may yet nominate Biden as a kind of placeholder and caretaker. But Senator Sanders, a man with the freshest ideas from the 1930s and the cultural affect of the 1970s, is the future of the Democratic Party.

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Negligible 'Never Bernie' - National Review

The Pentagon. Photo: Adobe Stock

On the eve of the Trump administration presenting its budget proposals to Congress, the Wall Street Journal reported that the Pentagon plans to cut back its funding of Stars and Stripes, a government-ownedyet editorially independentnewspaper covering military matters.

That was news to the papers top management, which wasnt officially informed of the planned cut until Monday morning. Initially, the extent of the cut wasnt totally clear, though Terry Leonard, the papers editorial director, told NPR that it could amount to more than a third of the papers budget. On Wednesday, the Pentagon confirmed that it wants to cut the subsidy in its entirety.Like any newspaper, Stars and Stripes draws revenue from subscriptions, sales, and advertisingbut, it says, it also depends on the Defense Department subsidy to cover the expensive and sometimes dangerous task of overseas reporting and distribution.

Why is the Pentagon targeting Stars and Stripes now? Officially, the decision stems from a wide-ranging review ordered by Mark Esper, the defense secretary, in a bid to free up extra funds. But Elaine McCusker, the Pentagons acting comptroller, also said the department had decided that in the modern age, running a newspaper is probably not the best way we communicate. That remark elicited pushback. Barbara Starr, Pentagon correspondent for CNN, noted that the print edition of Stars and Stripes serves troops overseas who cant use their phones for security reasons. Leonard pointed out, on NPR, that Stars and Stripes isnt just a dead-tree product, but has a digital presence, including a podcast. And Ernie Gates, the papers ombudsman, took issue with McCuskers use of the word communicate. Stars and Stripess mission is not to communicate the DOD or command message, he tweeted. So we communicate misses the mission.

Instead, Gates wrote, Stars and Stripes is an independent, First Amendment publication. I asked him what that looks like in practice, given the operational and financial involvement of the federal government. He told me, in an email, that the arrangement does entail some limitations. Stars and Stripes journalists are Pentagon employees, and are barred from revealing classified information and running editorials (though they can publish secrets revealed by other outlets, as well as outside opinions). Nonetheless, Gates said, Stripes is part of a free pressfree of censorship, free of command interference, free of prior restraint or prior review. Its reporting on the military, he added, is analogous to the freedom a commercial news organization should have to report on its business side or ownership.

The proposed funding cut to Stars and Stripesand Gatess invocation of the First Amendmentreminded me of a story I wrote in 2018 about the Bay Journal, a newspaper that covers environmental issues on the Chesapeake Bay. The Bay Journal grew out of the Clean Water Act, which included provisions to keep the public informed about efforts to clean up the Bay. The Journal has performed that functionfirst as a newsletter, then as a full-fledged newspaper.

Like Stars and Stripes, the Journal is editorially independent but receives significant state fundingin its case, from the Environmental Protection Agency. In 2017, the EPA moved to cut the Journals funding. Its official reasoning was vague, but internal emails clearly suggested that the decision was linked to the papers coverage. As a result, the Journal sued the government on First Amendment grounds, claiming that the cut amounted to discrimination based on viewpoint, and thus was unconsitutional. It also argued that it had been denied due process. In the end, the EPA backed down and restored the grant.

At the time, the Journals plight intrigued me: how could the governmentwhich, after all, is elected to make funding decisionsbe constitutionally bound to fund certain types of speech? Experts I spoke with differed on the merits of the Journals case. But broadly speaking, the question boils down to whether or not a state-backed outlet has been designed as a government mouthpiece. If a Republican administration, for example, created a newspaper explicitly to push anti-abortion views, a subsequent administration with different priorities would likely have a right to change course. When it comes to papers with independent journalistic mandates, however, thats less clear-cut.

McCuskers use of communicateand Gatess objection to itthus goes beyond semantics. I would argue that Stars and Stripes, as an editorially independent organization, is a designated public forum under the First Amendment, Jonathan Peters, a professor at the University of Georgia and CJRs press-freedom correspondent, told me in an email. The First Amendment doesnt require the government to subsidize expression, but if the government does, it may not then discriminate based on the viewpoints of the organization whose speech its subsidizing.

At present, there is no clear indication that the Pentagon wants to cut Stars and Stripess funding for reasons relating to its reporting. There is some evidence, however, of tensions between the paper and military brass. Leonard told NPR this week that while the Pentagon hasnt tried to interfere with its coverage, it has imposed restrictions elsewhere. Were finding that in the current atmosphere, access is getting tighter and tighter, Leonard said. You cant help but see that theres people that resent the fact that were not playing ball with the team. (Leonard and a Pentagon spokesperson did not respond to requests for comment.)

While Stars and Stripes stresses its First Amendment mission, the First Amendment does not, as things stand, look sufficient to protect it against cuts to its funding. But it may not need it. With Congress divided, the Trump administrations budget, as a whole, is more a wish list than a viable legislative blueprint. The Stars and Stripes proposal could be ratified individually, but in the past, lawmakersincluding Republicans on the House Armed Services Committee (one of whom, Martha McSally, is now a US senator)have opposed cuts to its subsidy.

Being zeroed out in the presidents budget is not the best starting point, but Im sure Congress will have its own ideas, Gates told me. I wouldnt try to predict the outcome, but Im hopeful.

The Bay Journal, for its part, has been left alone by the EPA since its legal fight, and continues to do what any independent newspaper shouldscrutinize the government. On the Journals radar right now: Trumps budget proposing, for the fourth year in a row, to decimate environmental protections for the Chesapeake Bay.

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Stars and Stripes and the First Amendment - Columbia Journalism Review