Category Archives: First Amendment

SUMMARYNewswise In an article for JAMA Oncology, Tony Yang, a professor of health services and policy researcher at the George Washington University, and his co-authors at the Ohio State University argue that if the U.S. Food and Drug Administrations 2019 proposed rule on graphic tobacco warnings is finalized, the potential effect on consumer knowledge and understanding about the harms of smoking is likely to be high.

BACKGROUNDThe FDA proposed a rule in August 2019 to require 13 new warnings for cigarette packages and advertisements. The warnings would state that smoking causes various diseases and conditions, including cancer, heart disease, diabetes, erectile dysfunction, and cataracts. As required by law, the proposed warnings would also be accompanied by color images that cover the top 50% of front and rear panels of cigarette packages and at least 20% of the top of cigarette advertisements.

The new proposal follows a failed attempt in 2012 to place graphic warnings on cigarette packaging.

FAILED FIRST ATTEMPTIn 2012, a federal appeals court struck down the FDAs first attempt to require such graphic warnings, stating that the FDAs rule compelled speech in violation of First Amendment rights. The court argued that the FDA failed to provide evidence that the graphic warningswhich included images of a baby near a cloud of smoke, a man wearing an I QUIT shirt and a woman cryingwould lead to a reduction in tobacco use.

NEW ATTEMPTLearning from their previous attempt, the FDAs new proposed images are meant to educate consumers about the potential harms of smoking, not reduce tobacco use. The new images are more clear representations of the factual text-based content of the proposed required warnings, including a child wearing an oxygen mask, eyes with cataracts, diseased lungs and a man frustrated by impotence.

CONCLUSIONSDr. Yang and his co-authors believe the graphic warnings are a critical part of a larger multimodal strategy for reducing tobacco use, the leading preventable cause of cancer and cancer deaths in the United States.

EMBARGO INFORMATIONThe article, New Graphic Tobacco Warnings and the First Amendment will be published online in JAMA Oncology on Thursday, Feb. 13, 2020 at 11 a.m. EST.

Dr. Yang is available to discuss the 2019 proposed warnings and why he thinks they should survive constitutional scrutiny.

SEE ORIGINAL STUDY

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New Graphic Tobacco Warnings and the First Amendment - Newswise

Close up, a feedlot cow is a sight to behold: Its a hulking, broad-shouldered eating machine with a three-foot-long tongue and a jaw that never seems to stop chewing. At just 20 months old, one of them can weigh 1,300 pounds. And where you find one, youre bound to find others. In Deaf Smith County, a cluster of communities 45 minutes west of Amarillo, 720,000 cattle each year are packed side by side like sardines at feedlotsthe sprawling, treeless expanses where the penned animals are fattened en masse before being shipped to slaughterhouses.

This part of the western Panhandle, stretching from the Oklahoma border into West Texas, is a national cattle feeding powerhouse that supplies one-fifth of the countrys beef. Its also home to mountains of manure. Each year the regions feedlot cattle produce millions of tons of waste (just one large feedlot produces roughly 1.1 million tons of manure), which is dried by the sun, stomped by hooves, and carried by the wind to nearby communities.

The resulting fecal dust storms, some so thick they blot out the sun, make it difficult to breathe, residents say. Some people have reported persistent bouts of bronchitis and other respiratory problems as a result of living in close proximity to feedlots. A growing body of research indicates that living near concentrated animal feeding operations, or CAFOs, is associated with myriad health risks including increased infant mortality due to respiratory disease and a greater risk of developing asthma in children and adults. In the Panhandle, the fecal dust from cattle feedlots appears to present an important public health problem that has spent little time in the public eye.

To get a true sense of the Panhandles massive network of cattle feedlots, youve got to take a few steps backor rather, up. Its only from the sky that you can see it for what it is: Miles upon miles of milling, munching, pooping cattle spread out as far as the eye can see. Its a remarkable sight that few ever glimpse.

Thats why the Observer, in partnership with the Food and Environment Reporting Network, hired photographer George Steinmetz to capture this image. We decided to document the operations using a drone, which is safer and more cost-effective than chartering an airplane or helicopter. But after doing some homework, we found that simply photographing a feedlot with a drone could open us to lawsuits, fines, and even jail time.

In 2013, Texas legislators passed a bill prohibiting the use of drones to conduct surveillance of people and properties and making it a misdemeanor offense for possessing or distributing such an image. In subsequent legislative sessions, lawmakers took the prohibitions even further, making it illegal for drones to take pictures of prisons, sports venues, and cattle feedlots. The rationale was that drones would make it easier for bad actors to keep tabs on the facilities. (This is the same straw-man argument lawmakers have used to keep footage from the Capitols video cameras, along with other formerly public records, out of the public eye.)

Though photojournalists must abide by the ban, it doesnt apply to everyone. Real estate companies, engineering firms, and others are exempt, along with anyone feedlot operators permit to take pictures. In November, when I called approximately a dozen feedlot operators in Deaf Smith County to ask permission to take drone photographs for our story, none of them acquiesced.

That could change soon. The National Press Photographers Association is suing leaders of the Texas Department of Public Safety, the Texas Highway Patrol, and the district attorneys office in Hays Countywhere police warned a reporter not to continue using a drone to photograph a structure fireover the law. Plaintiffs say the prohibitions single out photojournalists, limit reporters constitutional rights, and fly in the face of federal airspace rules. These restrictions chill and criminalize speech and newsgathering activity protected by the First and Fourteenth Amendments, reads the lawsuits petition, which was filed September 26 in federal court. Defendants in the case have filed a motion to dismiss. There has been no ruling on the motion.

Theres that old cliche that a picture is worth a thousand words, said Jim Hemphill, who is trying the case and also represents the Observer in legal matters. Concentrated animal feeding operations pose potential hazards with regard to environmental pollution, with regard to treatment of animals, with regard to many things that may be in the public interest. There appears to be no compelling public interest in prohibiting [drone photography of CAFOs]. Brandon Wade, a professional freelance photographer in Dallas who has used drones extensively in his work, said that unmanned aircraft can give readers a unique view of newsworthy locationssuch as cattle feedlotsthat few other methods can. Aerial photography can show a sense of scale very quickly. With ground-based photography, its hard to get a sense of just how big these places are, he said.

In the end, our photographer still ended up nabbing some incredible shots of cattle feedlots in Deaf Smith Countyhe chartered a plane, at considerable expense, to get the images. But as the lawsuit notes, not all news organizations have the means to shoulder that additional cost, leaving their readers, listeners, or viewers without newsworthy information. If plaintiffs get their way, the problem will be fixed.

In the meantime, well just have to wait and not see.

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Its Illegal to Take Drone Photos of Cattle Feedlots in Texas. Press Groups Say That Violates the First Amendment. - The Texas Observer

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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COMMENTARY: Focus on when the First Amendment protects ... and when it doesn't - Crow River Media

Gene Policinski is president and chief operating officer of the Freedom Forum Institute.

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at[emailprotected], or follow him on Twitter at@genefac.

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FIRST FIVE: Focus on when the First Amendment protects and doesn't - hays Post

View this article online at https://www.fedsmith.com/2020/02/11/amend-hatch-act-restore-federal-workers-first-amendment-rights/ and visit FedSmith.com to sign up for free news updates

The Hatch Act, originally passed in 1939, substantially limits the political activity of most federal workers. The Supreme Court has ruled on more than one occasion that the Act is constitutional. Being constitutional does not necessarily make it the right thing to do.

Here are the basic restrictions that apply to most federal workers:

And here are the restrictions that apply tofurther restrictedemployees (those in intelligence or enforcement agencies, SES, ALJs and other highly paid employees):

While the intent of the Hatch Act provisions restricting federal workers may be sound, the result is, in effect, muzzling many federal workers and depriving them of their First Amendment rights.

Some of the restrictions as outlined Office of Special Counsel (OSC) guidance border on the absurd. Considerthis guidanceissued to a member or the Senior Executive Service whose wife was considering a run for Congress.

One question was, You first ask whether you can prepare food for fundraising events held at your home. The response? As a further restricted employee, you may not act in concert with a candidate for partisan political office. See 5 C.F.R. 734.402. The Hatch Act also prohibits further restricted employees from organizing, selling tickets to, promoting, or actively participating in a fundraising activity of a candidate for partisan political office. See 5 C.F.R. 734.410(b). Therefore, because you may not provide volunteer services to a candidate, you may not prepare food for, or otherwise help organize, any fundraising event. So he cannot make cookies for an event in his home. OSC also noted that there is no problem with his wife holding the event in their home, but he cannot make a welcoming speech. He is able to welcome them, however.

Does that do anything to protect our democracy? I think not. Does anyone assume this gentleman would not support his wifes candidacy? Does anyone think his direct reports or co-workers dont know that?

The Hatch Act restrictions serve to limit his right to speak and in the process reduce transparency. They also add confusion about what can and cannot be done. Many federal workers disciplined for Hatch Act violations had no intent to violate the law.

A far better approach is to retain limits on federal workers running for partisan office and absolute prohibitions on federal workers taking official action based on political views. A hiring manager makes a hiring decision based on politics? S/he should be fired. A federal employee awards contracts based on politics? S/he should be fired. A federal executive bakes cookies for his wifes fundraiser in their home? Who cares?

The way the Hatch Act is working now does nothing to protect our democracy, nor does it do anything to ensure electoral integrity. It prevents many employees from speaking out about the politicians whose decisions affect them, such as employees who are furloughed due to a lapse in appropriations. It drives political activity for many employees underground, and does nothing to limit the political activity of senior political appointees.

When Obama Administration Housing and Urban Development Secretary Julian Castro violated the Act in April 2016, nothing happened. The OSCissued a finding that he had, in fact, violated the Hatch Act, and that was it.

When Kellyanne Conway violated the Hatch Act at least twice, OSCissued a letterto President Donald Trump saying, If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the Merit Systems Protection Board.

In both of these cases, highly ranking political appointees violated the Hatch Act and got away with it. Both spoke in their official capacity in favor of the president they served in a manner that clearly violated the law.

OSCs letter to President Donald Trump was spot on any career employee who committed the same offense would be fired. One of the glaring weaknesses of the Hatch Act is that it is toothless with respect to an Administration in power. President Obama could ignore Julian Castros violation and President Trump can ignore Kellyanne Conways violation.

In 1973 the Supreme Court upheld the constitutionality of the Hatch Act. In his dissent, Justice William O. Douglas strongly disagreed with the decision. Justice Douglas said:

We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employees job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a privilege, then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized on a basis that infringes [the employees] constitutionally protected interests-especially, his interest in freedom of speech.If Government, as the majority stated inMitchell,may not condition public employment on the basis that the employee will not take any active part in missionary work, it is difficult to see why it may condition employment on the basis that the employee not take an active part in political campaigns. For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.Free discussion of governmental affairs is basic in our constitutional system.

I believe Justice Douglas was right, particularly when he said, In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.

What we have is a law that restricts speech of federal workers, but in practice does not restrict the speech of highly visible senior political appointees. It limits transparency by driving political activity underground, where it is less likely to be known to anyone.

I prefer to see transparency, and free exercise of the First Amendment rights of everyone, whether s/he works for the federal government or for Burger King. But at least we can take comfort in knowing that senior executives will not be baking cookies for their spouses political campaigns.

2020 Jeff Neal. All rights reserved. This article may not be reproduced without express written consent from Jeff Neal.

Tags: Hatch Act

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Amend the Hatch Act and Restore Federal Workers' First Amendment Rights - FedSmith.com

Christian students in Eugene dont attend school on Christmas and Easter, the holiest days of their religion. However, that same respect for holy days doesn't apply to other faiths.

The Eugene School Board finally is grappling with that inadvertent but blatant discrimination. We cannot expect schools to close on every religions holy days, but students should not be penalized for missing school in observance of those days.

Schools sometimes misinterpret the First Amendment's guarantee of freedom of religion. The First Amendment does not stop schools from dealing with religion. Rather, it requires neutrality. Schools and government must neither promote nor inhibit any religious belief or nonbelief.

Eugene school officials say the district recognizes seven religious holidays: Christmas, Easter, Rosh Hashanah, Yom Kippur, the first and last days of Passover and Eid (the last day of Ramadan).

Reflecting the traditions that have built up, Christmas and Easter Sunday never are school days. The Eugene School District, like many others, has not ensured that other religious holidays are taken into account when planning the school year. Many students have had to choose between attending school on those days often because of scheduled tests, field trips or other activities or prioritizing religious observances and thus missing those school events.

Consider what its like for a student or family to be placed in that position. For Johanna Seasonweins twin daughters in kindergarten, that meant not going on a field trip. "That was the first time I ever heard my kid say, Its not fair that were Jewish, and that really hurt," Seasonwein recounted.

Eugene prides itself on being an inclusive community, yet it has tacitly enabled such pain.

No more. The Eugene School Board should adopt strong policies and follow through. It is not enough to simply remind teachers, administrators and others not to schedule tests, assemblies, field trips, meetings or other major school activities on major holy days. The district must build a culture in which the full education system understands the family importance of religious holidays and does not put parents in a bind. Administrators must ensure such conflicts do not happen, and, if they do, that students are given adequate opportunity to make up work, tests or assignments.

The push for change primarily has come from Jewish parents. But the issue affects families of many faiths, including Islam. It is wrong to make students choose between honoring their religion or participating in a school activity. As children grow older, this dilemma becomes more palpable when test scores and participation in activities, such as marching band, become more demanding and have greater influence on a child's academic career.

No one should have to make those choices. No parent should hear their child say school makes me wish I werent Jewish or Muslim.

This is basic respect for our diverse community. Make it easy, just as the district does for major, federally recognized Christian holidays, for children to follow their faith and be fully included in school. Religion and education dont have to be at odds.

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Our View: Be more inclusive for all holy days - The Register-Guard

In most of the country, the kind of reporting I did in Narragansett no longer exists. Original, on-the-ground reporting the kind of reporting built on a deep understanding of people, places, and issues . . . the kind of reporting that requires time, resources, and the steadfast support of journalistic institutions (and sometimes their lawyers ) . . . the kind of reporting that provides the common facts that bind communities together and the oversight to hold leaders accountable. That kind of reporting is disappearing as the news industry continues its long, heartbreaking collapse.

Youve all felt the impact of that collapse. Youve felt it inside newsrooms, as friends and colleagues lose jobs they loved. Youve felt it in your hands, in ever-thinning local papers. And youve felt it in your communities, which are steadily more disconnected and divided.

We all know the two main factors behind this collapse one connected to how publishers fund news and one connected to how people find it. The advertising-based business model that supported American newsrooms buckled, causing the rapid loss of more than half the journalism jobs in the country and leaving news organizations struggling to pay for original reporting in the public interest. Meanwhile, the tech platforms became the most powerful distributors of news and information in human history, straining the direct relationship between journalist and reader that is essential for maintaining trust and loyalty. As a result, readers are increasingly unsure of what news is and where it comes from, making it easier for bad actors to unleash a flood of misinformation that has corrupted public understanding.

This is the moment when Im supposed to pivot and say that things are looking up. The truth is, theyre getting worse. Thats because theres another existential threat to journalism today, and far too few of us are talking about it.

Were losing popular support for the free press in this country. Over the past few years, weve witnessed the most sustained attack on the legitimacy of journalism in our history. Its an attack with catchphrases plucked from the mouths of tyrants and dictators. Fake news. Enemies of the people. Traitors. And a growing portion of the country believes these dangerous, misleading accusations.

Trust in independent news is evaporating and cleaving. A majority of Republicans now think the news media is better characterized as the enemy of the people than as an important part of democracy. More than 80 percent would rather get their news directly from President Trump than from the media. And there is evidence that skepticism of journalism is expanding across the political spectrum. A majority of Americans, regardless of party, do not trust the media to report the news fully, accurately, and fairly. And, perhaps as a result, nearly a third believe the government should be able to shut down news organizations.

With the news industry already struggling, this erosion of popular support for the press poses a threat not only to journalists and journalism but also to the very notion of truth and the health of our democracy. Weve already seen influential individuals, companies, and even nations exploit the trust vacuum to serve their own interests. Its the powerful, not the people, who benefit from a weakened press.

One of the lessons of the last few years is that our countrys institutions and norms are more fragile than we had assumed. And while law and precedent are valuable shields, public support for the principles of free expression and a free press is what gives them their enduring power. Look at Turkey or Hungary or India to see how quickly things can change when a society stops fighting for its democratic institutions.

So this is our task, all of us in this room. We must convince people that the free press is worth fighting for.

Its not enough to talk airily about holding power to account. We cant just assert the importance of bearing witness. It is time to stop talking about the First Amendment as an abstraction. Instead, we have to make powerful, practical arguments rooted in the lives of people and communities.

Heres a start. The free press lets you know how your tax dollars are spent. The free press makes sure that your kids health isnt jeopardized by contaminated water. The free press makes sure that the hospital you visit isnt spreading antibiotic-resistant germs.

The free press makes sure that the planes you fly in, the pharmacies you rely on, the banks that safeguard your savings are worthy of your trust. The free press shows how climate change may threaten your home and, if the worst happens, why your insurer may not be there to help.

The free press ensures you are protected by a justice system that jails the guilty and frees the innocent. The free press helps you make an informed decision about who to support for county clerk and who to support for president.

In a country with a free press, a new and deadly virus is promptly acknowledged and addressed, not hidden by the government until it becomes an international pandemic. No democratic country with a free press has ever suffered from a famine.

I think we can all agree that the press isnt perfect. We make mistakes, sometimes big ones. And when we do, we own up to them, and we strive to do better. But the imperfections of journalism make it no less essential.

At a moment when support for the press is fracturing along ideological lines, we must remind people why enshrining it in the First Amendment was one of the few areas of true consensus among the nations founders and why it remained so through our history. If youre a conservative, Id remind you that the free press protects against government corruption and overreach, provides businesses and entrepreneurs with the reliable information that fuels economic growth, and helps spread democracy around the world. If youre a liberal, Id remind you that the free press provides the scrutiny that keeps corporate power in check, interrogates the true impact of American interventions abroad, and makes sure that everyone, especially the little guy, has a voice.

A detailed, compelling accounting of the value of the free press is an essential message to share. But weve been delinquent messengers, taking far too long even to recognize that the message needs to be delivered.

Of course, as we make the popular case for the First Amendment, we have to keep fighting to fortify its legal framework. Across Democratic and Republican administrations, legal efforts have attempted to weaken safeguards for journalists and their sources. Activists, many politically motivated, are increasingly seeking to punish outlets for publishing unflattering information. These trends threaten decades of hard-won legal precedent. So we need to keep filing FOIA requests, battling libel lawsuits, pushing for whistle-blower protections, and doing all we can to defend the publics right to know.

To keep the First Amendment strong, we need to not only defend it in court but also convince our friends and neighbors why it matters to them on a personal level. They may not get a newspaper delivered to their doorstep, but the stakes of this struggle already reach inside their home.

If weve learned anything from the experience of the last few years and from the struggles of our colleagues reporting in repressive nations around the world its that we cannot take the free press for granted. And nothing is more perilous to a free society than when the public loses its reliable sources of information.

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How to save journalism - The Boston Globe

Q: Did House Speaker Nancy Pelosi break the law by ripping up the presidents State of the Union address?

A: Legal experts have widely dismissed the idea that Pelosis copy of the address would be subject to a criminal statute cited by some conservatives.

Did Nancy Pelosi tear up an official copy of the speech at the State of the Union Address? Is she liable for any legal penalty?

While House Speaker Nancy Pelosis supporters praised her decision to publicly rip up her copy of President Donald Trumps State of the Union address at the end of his Feb. 4 speech, conservatives lambasted the act, calling it partisan and childish. But some, including the president himself, went further by alleging that the act was illegal.

First of all, its an official document, Trump told reporters. Youre not allowed its illegal what she did.

The claim that Pelosi violated federal law circulated widely on social media before Trump himself made the suggestion it was advanced by Charlie Kirk, of the prominent conservative youth organization Turning Point USA, and by Republican Rep. Matt Gaetz, who called for an ethics investigation and said the act was a potential violation of law (18 USC 2071).

Readers asked us about the claim and about a viral story circulating online with the headline, Nancy Pelosi Fined $40K for Destruction of Government Property. That false story was first published on a website that calls its work satire.

Legal experts have widely dismissed the notion that federal prosecutors would try to apply the criminal statute cited by Gaetz which deals with concealment, removal, or mutilation of federal records to Pelosis ripping up a copy of the speech.

A saving grace of federal criminal law is that its applied by prosecutors, judges, and juries with common sense, Daniel Richman, a law professor at Columbia Law School, told us. Richman, who previously served as chief appellate attorney in the U.S. Attorneys Office for the Southern District of New York and was a legal adviser for former FBI Director James Comey, added: That approach makes it impossible to see the aggressive recycling of a non-unique document as anything more than that.

Similarly, George Washington University law professor Jonathan Turley, who served as an impeachment expert for House Republicans, concluded that it would not be considered a violation of the law.

The specific statute in question refers to someone who willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of anycourt of the United States, or in any public office, or with any judicial or public officer of theUnited States.

I am not convinced that this is a covered document. The law does not prevent the destruction of any government document in any form. If so, we would have nothing but warehouses from sea to sea, Turley wrote on his blog.

Turley opined that the copy is a historic document worthy of preservation as one of two copies hand delivered by the President to the Vice President and the Speaker of the House of Representatives and that it should be preserved. But, he said, It is a copy and a court would likely decline to read the law broadly to find a violation on the margins of the defined covered conduct.

Another provision of the statute applies to the destruction of such records by those with custody of the records generally those considered having responsibility for their maintenance. Turley said Pelosi wouldnt be considered a custodian of the copy she received.

Some law professors also have argued that the First Amendment, or the U.S. Constitutions free speech or debate clause, could be further protection for Pelosi.

Its worth noting that the National Archives and Records Administration will preserve a copy of the speech from the White House.

The National Archives and Records Administration (NARA) preserves and provides access to the permanent records of Federal Agencies and the President in accordance with laws and regulations that govern the disposition of those records, the agency said in a statement. NARA will receive the Presidents version for preservation as a permanent record in accordance with the Presidential Records Act.

NARA also said that while it holds the historical records of the House and Senate, those records remain the legal property of the respective Chambers [t]he rules governing those records are not determined by federal laws or overseen by NARA, but rather by each Chambers agreed upon rules. The agency said it does not have information about the record status of Speaker Pelosis copy of the speech.

The conflict reveals the fuzzy rules surrounding the Houses record status of the specific copy given to the speaker.

Turley, in his blog, said: I cannot find any source that stipulates the preservation of this document or even requires that it be given to the Speaker.

The day after the State of the Union address, House Minority Leader Kevin McCarthy and House Majority Leader Steny Hoyer debated the matter on the House floor. Hoyer argued that Pelosis conduct was protected by the First Amendment and McCarthy countered by saying Pelosi had no right to destroy this document. But the question of whether the specific, printed version of the speech given to the speaker constituted a document of the House went unanswered.

Gaetz, in a column on the website Townhall.com, argued that the signed versions handed to Vice President Mike Pence and Pelosi, as the leaders of the Senate and House respectively, are original documents that are not the personal property of the two recipients, but instead, the permanent record (and property) of the two chambers of Congress. When the document is received by the Speaker of the House, it becomes an official record of the House of Representatives.

We asked Gaetzs office to point us to documentation or evidence that stipulates that process and record-keeping protocol. His office told us that the information was relayed by Republican Rep. Mike Johnsons office and that Johnsons office gathered the information from officials in the House clerk and House parliamentarian offices.

A spokesperson for the House clerk, on the other hand, told us in a statement that the Congressional record of the State of the Union address is the transcribed remarks, as recorded by the Official Reporters of the House. The Clerk of the House has a duty to preserve documents transmitted to the Clerk, and a duty to publish the State of the Union address. The Clerk received the Presidents prepared State of the Union remarks electronically, which will be preserved for the National Archives.

Consistent with precedent and practice in prior Congresses, immediately after the Presidents address to the joint session of Congress, the House, without objection, ordered the Presidents remarks to be printed, the statement said. The Government Publishing Office has accordingly published the Presidents remarks as a presidential address before a joint session of Congress.

18 U.S. Code 2071. Concealment, removal, or mutilation generally. U.S. Code. Accessed 7 Feb 2020.

Gaetz, Matt (@RepMattGaetz). BREAKING: Im filing an ethics complaint against @SpeakerPelosi for destroying @realDonaldTrumps State of the Union speech. Her conduct was beneath the dignity of the House, and a potential violation of law (18 USC 2071). Nobody is above the law. She must be held accountable. Twitter. 5 Feb 2020.

Garvey, Todd. Understanding the Speech or Debate Clause. Congressional Research Service. 1 Dec 2017.

House of Representatives. Congressional Record. Vol. 166, No. 24. 5 Feb 2020.

Remarks by President Trump Before Marine One Departure. White House. 7 Feb 2020.

Richman, Daniel. Professor of law, Columbia Law School. Email to FactCheck.org. 10 Feb 2020.

Turley, Jonathan. No, Nancy Pelosi Did Not Violate Federal Law . . . Just Decades Of Tradition. JonathanTurley.org. 6 Feb 2020.

U.S. National Archives and Records Administration. Email sent to FactCheck.org. 7 Feb 2020.

Excerpt from:
Pelosi, a Ripped Speech, and the Records Debate - FactCheck.org

Norton is the Rothgerber chair in Constitutional Law at the University of Colorado Boulder.

When regular people lie, sometimes their lies are detected, sometimes they're not. Legally speaking, sometimes they're protected by the First Amendment and sometimes not, like when they commit fraud or perjury.

But what about when government officials lie?

I take up this question in my recent book, "The Government's Speech and the Constitution." It's not that surprising that public servants lie they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.

My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.

Consider, for instance, police officers who falsely tell a suspect that they have a search warrant, or falsely say that the government will take the suspect's child away if the suspect doesn't waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the Fourth, Fifth and Sixth Amendments.

If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government's critics. During the 1950s and 1960s, for example, the Mississippi State Sovereignty Commission spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency "harassed individuals who assisted organizations promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist."

And some lawsuits have accused government officials of misrepresenting how dangerous a person was when putting them on a no-fly list. Some judges have expressed concern about whether the government's no-fly listing procedures are rigorous enough to justify restricting a person's freedom to travel.

Can the Constitution stop the government from lying to the public? theconversation.com

When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.

But in other situations, it can be difficult to find a direct connection between the government's speech and the loss of an individual right. Think of government officials' lies about their own misconduct, or their colleagues', to avoid political and legal accountability like the many lies about the Vietnam War by President Lyndon Johnson's administration, as revealed by the Pentagon Papers.

Those sorts of lies are part of what I've called "the government's manufacture of doubt." These include the government's falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign's connections to Russia, Donald Trump claimed his predecessor that Barack Obama had wiretapped him during the campaign, even though the Department of Justice confirmed that no evidence supported that claim.

Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through outrageous and often unfounded claims that contributed to a culture of fear in the country.

When public officials speak in these ways, they undermine public trust and frustrate the public's ability to hold the government accountable for its performance. But they don't necessarily violate any particular person's constitutional rights, making lawsuits challenging at best. In other words, just because the government's lies hurt us does not always mean that they violate the Constitution.

There are other important options for protecting the public from the government's lies. Whistleblowers can help uncover the government's falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, Watergate's "Deep Throat" source for The Washington Post's investigation, and Army Sgt. Joseph Darby, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies.

Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led McCarthy's colleagues to formally condemn his conduct as "contrary to senatorial traditions and ethics."

In addition, the press can seek documents and information to check the government's claims, and the public can protest and vote against those in power who lie. Public outrage over the government's lies about the war in Vietnam, for example, contributed to Johnson's 1968 decision not to seek reelection. Similarly, the public's disapproval of government officials' lies to cover up the Watergate scandal helped lead to President President Richard Nixon's 1974 resignation.

It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Can the Constitution stop the government from lying to the public? - The Fulcrum

The Georgia First Amendment Foundations annual legislative breakfast in Atlanta is always enlightening, always thought provoking but this year it was more than a little bit scary.

Moderator Peter Canfield did a masterful job setting the stage and moving the conversations to the most meaningful discussions that lawyers, journalists and lawmakers could have relevant to the First Amendment and the publics right to know.

State Sen. Jen Jordan, State Rep. Josh McLaurin and journalist James Salzer are smart, intuitive and even funny at times.

But Tom Clyde, one the states top First Amendment attorneys, was more scary than funny Thursday morning.

Clyde gave a sober warning about the dangers of House Bill 734,Rep. Andy Welchs media ethics bill.

While the panel seemed to agree that Welchs ill-conceived bill is dead on arrival in its present form, Clyde warned that provisions contained in the bill could be tacked on to some other piece of benign legislation and sneak its way onto the floor.

Welch introduced the measure last year calling for state oversight of the media. He dropped the bill on the last day of the legislative session, and it remains alive for consideration this year.

The Atlanta Journal-Constitutions Salzer, offered some real insight at the GFAF legislative breakfast when he said he had talked to each person who signed on to the Welch measure, and they all recounted some bad experience they had with the media. That is telling.

This kind of assault on the media and attempt to squelch an open, free and unfettered press is an assault on freedom and the people of Georgia. Journalists must always be able to operatecompletely independent of and unrestrained by the government.

Journalists must always be free to operate as an independent watchdog, holding our public institutions accountable.Any attorney, including Welch should understand such basic, fundamental principles.

The First Amendment guarantees the freedom of the press and Welchs bill is simply unconstitutional.

Everyone agrees the media should operate in an above board, ethical manner but that does not mean that government should ever have a role in regulating the press.

The founders carefully enshrined the freedom of the press in the Bill of Rights and thismedia oversight bill flies in the face of that fundamental American liberty.

This legislation would create some official code of ethics and a policing mechanism to control the media, the very media that must hold government accountable.

Could anything be more unconstitutional?

CNHI Deputy National Editor Jim Zachary is the editor of the Valdosta Daily Times and president of the Georgia First Amendment Foundation.

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ZACHARY: First Amendment advocates warn of media oversight - Tifton Gazette