Category Archives: First Amendment

Obama (finally) does the right thing on press freedom

By Christopher B. Daly

It’s tempting to say “Better late than never” about the Obama administration’s recent flurry of decisions to stop trying to intimidate the news media. But they really should have known better and never embarked in the first place on the most sustained campaign to chill press freedom. Stopping an idiotic, wrong, and unconstitutional policy is not exactly cause for celebration. As Obama himself has described his policy in other arenas, “Don’t do stupid shit.”

In the case against a former CIA officer accused of leaking national security secrets to a reporter, the government decided to go after the reporter. That reporter, James Risen of the New York Times, has been living for years under the threat of being sent to jail unless he would swear under oath who his sources were. Recently, Attorney General Eric Holder announced that Justice Dept prosecutors would not demand in court that Risen name his source(s). Just this week, the defense in that case said the same. So, Risen is off the hook.

What Holder did not say is important too: he did not say he was sorry to James Risen (which he should do). Nor did he say that he would institute a policy under which no reporter who commits no other crime will be threatened with jail just for protecting the identity of confidential sources. This is still a matter of prosecutorial discretion.

Here is the Washington Post version.

In another matter involving the relationship between government and the news media, Holder announced just yesterday that he is putting in place a new policy under which he will forbid the government from secretly tapping journalists’ telephones or hacking their emails.

Here is the AP version. Here is the WaPo. Here are the AG’s new guidelines. (It takes more than two pages of single-spaced gobbledeegook to fall short of what the founders said in 11 words: Congress shall make no law abridging the freedom of the press.”)

These are the right things to do, as far as they go. But they don’t go nearly far enough. The fact is, presidents and attorneys general come and go; prosecutors and NSA agents follow policy or they don’t. What we need to ensure that policies endure past different administrations and have real consequences is a “shield law” passed by Congress that protects journalists nationwide. What we really need is for the Supreme Court to read the First Amendment properly and decide, once and for all, that press freedom extends to reporting.

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SCOTUS: If you make journalists criminals, then only criminals can be journalists.

by Christopher B. Daly 

It’s no surprise, I suppose, that the U.S. Supreme Court has rejected an appeal from a New York Times reporter who has been seeking to avoid being sent to jail for his refusal to testify about his sources. The ruling is a setback for reporter James Risen and for the entire enterprise of journalism as well. The reason: the high court cannot find protection for reporters in the U.S. Constitution.

The First Amendment famously says (in part): “Congress shall make no law . . . abridging the freedom of the press.” As I have written, I believe that the First Amendment goes beyond the right to disseminate news and includes the right to gather news. In some situations, that news-gathering function, also known as reporting, may require reporters to extend a promise of confidentiality to a source. I believe that they have a constitutionally protected right to do so. (Actually, to be precise: I believe that you and I and the rest of the American people have the right to learn what the journalist can learn — that is, we are entitled to information, especially controversial, secret information, that will enable us to make good decisions about powerful institutions.)

Many people disagree. They invoke the ancient legal doctrine which holds that justice demands every person’s testimony — no exceptions (oh, except for the “testimonial privilege” widely granted to clergy, attorneys, spouses and others — plenty of people enjoy the right not to testify with no deleterious effects on society). Superficially, this makes a certain amount of sense. But it overlooks the chilling effect on both sources and reporters if journalists can be dragged into court and ordered, under oath, to break their word and reveal the identities of their confidential sources. The fully predictable result of this doctrine will be that the people will not learn all that they might about difficult, hidden truths.

And a word here about criminal justice. Obviously, the investigation, prosecution, and punishment of crime is an important value in society. I would not want to live in a society that did not suppress crime. But we must bear in mind that law enforcement is not a transcendent value; it is not so important that it can be used to sweep away all other rights and values. It has to be balanced against other important priorities (like being secure in our persons and papers).

I maintain that it is better for a handful of prosecutors to miss out on the testimony of a handful of people than it is to impose blinders on the press. I don’t want to live in that kind of society, either. Prosecutors pursue justice; journalists pursue truth. Those are both important, and sometimes allied, enterprises. But they are not identical, and when they conflict, my default position would be to privilege truth-seeking.

Also, bear in mind: prosecutors have plenty of techniques and powers that journalists don’t have.

–They have the power to subpoena (non-journalist) witnesses and question them under oath.

–If witnesses lie, prosecutors can charge them with perjury.

–Prosecutors have the power to induce suspects to talk by negotiating plea-bargains.

–Prosecutors have the home-team advantage in every courtroom in the country.

–Prosecutors have the power to get a search warrant and spy on suspects.

If prosecutors can’t solve a particular crime with all those powers (which journalists don’t have), then maybe they’re just not trying hard enough.

One implication of today’s Supreme Court ruling: until there is a new array of justices on the high court who properly understand the Constitution, I guess the only remedy is to support legislation (S. 987) to create a federal shield law for reporters. Incidentally, most states already have shield laws that protect journalists in state courts, and we have not suffered any terrible crime wave as a result. All those state AGs and DAs somehow manage to live with laws that uphold press freedom and balance it against the imperatives of law enforcement.








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SCOTUS does not understand freedom from religion

By Christopher B. Daly 

Screen Shot 2014-05-06 at 10.05.51 AM

In its latest ruling on the role of religion in public life, the U.S. Supreme Court got it wrong (again). The court issued a ruling this week written by the narrow majority of five justices who often vote together as a bloc that seems dedicated to keeping things just the way they are. The opinion was written by Justice Kennedy, joined in whole or in part by justices Roberts, Alito, Scalia and Thomas — an enduring coalition of Republican-nominated originalists, textualists, conservatives, traditionalists. It’s also relevant in this connection that they are also all Catholics.

In their ruling in Greece v Galloway, the majority held that it was constitutional for a small town in upstate New York to open all its town board meetings with a prayer. Reading all the majority opinions, I find the following rationales for this wrong holding:

1. An appeal to tradition. Basically, the five conservatives believe that the practice is okay because “we have always done things this way.” On those grounds, Americans would still maintain slavery, jail homosexuals, criminalize birth control, prohibit the sale of alcohol, and deny women the right to vote.

2. A popularity contest. The five conservatives engage in a bit of sociology and observe that most folks in Greece, N.Y., are Christians, so it does not surprise or dismay them that when the town solicits local clergymen to offer the public prayer, the response comes every time from Christian clergy. That’s exactly why their ruling is so wrong and dangerous: it perpetuates the domination of the majority over the minority. In so doing, the conservatives give force of constitutional approval to the routine violation of the conscience of any person in Greece, N.Y., who is not a Christian. In order to conduct their public business, such people must bow to the coercion of their mostly Christian neighbors or risk small-town opprobrium.

3. Those prayers are just for officials, not the public. The conservatives assert (with no evidence) that the prayers at the start of the public meetings are for the benefit of the town officials and are not aimed at the members of the general public in attendance. If so, then why subject non-believers to this public ritual? The officials should move their pre-game prayers into the locker room.

4. It could be worse. At least, that’s Thomas’s view. In his concurrence, Thomas states his view that the Constitution imposes a ban on an official religion only at the national level. He cites the 10th Amendment for his view that the states — some of which had established religions at the time of the nation’s founding — retained their rights to establish religions (and presumably, allow those theocratic states to impose taxes on religious dissenters to support the religion preferred by the majority, so if Thomas, a Catholic, settled in Utah, he might have to support the LDS religion, which his pope would not approve). Thomas reads the First Amendment literally and emphasizes that when it says “Congress shall make no law respecting the establishment of religion. . .” that means Congress alone among the nation’s legislatures is restrained from doing so. While he’s at it, Thomas also waves off the 14th Amendment and tells American citizens that it doesn’t mean what they think it does.

So, there you have it. Five robed men have decided that every government meeting in the country may commence with a generically Christian prayer. What’s wrong with this?

In my view, the majority position shows a lack of understanding of what it means to live in a diverse society. The founders themselves recognized their differences and addressed a question that is fundamental to American society: how can people who are different live together in harmony?

How can the Jew and the Muslim support a common school system? How can the Catholic and the Protestant agree on eligibility for public office? How can the atheist, the Buddhist, and the druid all agree on which holidays to observe officially?How can the Baptist, the Mormon, and the agnostic all serve together in units of the armed forces? Can anyone use the power of government to favor one religion over another (or religion over non-religion)? If I can use government power to impose an outward show of loyalty by someone who does not believe as I do, am I not violating that person’s conscience? (It’s easy to see that a Catholic in colonial Massachusetts might object to supporting the Congregational Church, and it’s not that hard to see how an atheist with business to conduct at the Greece, N.Y., town meeting might feel coerced into listening without objection while a Christian clergyman opens the public’s business by asserting “the saving sacrifice of Jesus Christ on the cross.”)

For the five justices who made up the majority in this case, consider this thought experiment:

A robed man wakes up in a place that is new to him. He begins to observe his new neighbors. He is told that if he wants to remain unharmed in their midst, he must attend a meeting of the people. The meeting begins with a ritual that the people have observed for generations. They believe in the transforming power of the blood of a dove. So, an unrobed man begins the public meeting by cutting the head off a dove and swinging the bleeding corpse over the heads of the gathering on a long string attached to the bird’s feet. He swings the bird in a clockwise fashion so that all the people are sprinkled by the bird’s blood. (A few dissenters grumble privately that the man should be swinging the bird counter-clockwise, but they hold their tongues, because they know that at the next meeting, there will be a counterclockwise ceremony.) The robed stranger objects to this gruesome ritual and tries to shield himself from the bloody spattering. His new neighbors are horrified by this rejection of the ancient ways of their forbears and decide that whatever the robed man wants , he is not going to get it until he submits to the tradition of the majority.

So, Justices Kennedy, Scalia, Alito, Roberts and Thomas, I ask: what’s the problem in this scenario?


[Extra credit: here’s an introduction to the long history of this issue.]


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Trouble for oral history?

By Christopher B. Daly

As I like to tell my students: History keeps happening.

The past is always with us, and here’s a case in point: the arrest of Irish leader Gerry Adams as a result of an oral history project carried out at Boston College by researchers who promised their interviewees that the contents would remain confidential. As my friend and fellow journalism professor Dan Kennedy points out, the prosecution of this case represents just part of the Obama administration’s campaign to undermine the rights of reporters (and now, researchers too).

More reports keep coming in:


From today’s Boston Globe, stories about the impact on Boston College and on Adams himself, as well as a strong column by Kevin Cullen. (plenty of comments, too, naturally)

From today’s NYTimes, a good overview by Boston correspondent Kit Seelye.

And more, from the Irish Independent and the Irish Times.





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Cellphone searches: Any First Amendment issues?

By Christopher B. Daly 

It’s bad enough that some of the justices on the Supreme Court who are considering whether to authorize police searches of suspects’ cellphones are pretty clueless about this ubiquitous piece of technology. What really concerns me is that none of the justices expressed any concern about the First Amendment. (Or at least if they did, none of their questions broke though into the media coverage of this week’s arguments.) All the attention was focused on the Fourth Amendment, which says:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Now, don’t get me wrong. That is one fine amendment, and I don’t want to take anything away from its important safeguards. It says that police cannot just barge into your home or office and start grabbing documents. If they want to search your stuff, they have to get a warrant from a judge, and the warrant must “particularly describe” what the police expect to find.

When it comes to cellphones, there are no “papers” involved, but I think even this Supreme Court can figure out that a digital document like a text or a photo fits the meaning of what the Founders meant to protect.

Here’s where the First Amendment might enter the picture.

Consider this scenario:

A journalist is walking down the street and notices a political protest. She whips out her cellphone and uses it to make audio recordings of the natural sound as well as some interviews; she takes some photos; and she starts taking notes on the disturbance in the form of a draft email that she intends to send to herself and her editor later. Things heat up, and the police start beating protesters. Our journalist considers this newsworthy and begins taking close-up photos of police officers whaling away on protestors. A police officer orders her to stop. She refuses on First Amendment grounds and attempts to photograph his badge number and name tag. He slaps the cuffs on her and confiscates her cellphone.

What now?

Didn’t she have a First Amendment right to gather information and take photos in public? Doesn’t she have a First Amendment right to protect the identities of any confidential sources who are listed in her cellphone “contacts”? What if she has other photos, data, messages, texts and the like in her cellphone about stories in progress? Should the police, or the FBI, or the local prosecutor have the right to rummage through her cellphone without limits? Would she have a First Amendment right to remotely tell her cellphone to purge itself of all data? Would she then be committing the crime of destroying evidence, or would she be exercising her right to engage in news-gathering and dissemination?

Or, consider a second scenario:

A reporter is arrested on a DUI charge. (I know, most reporters can’t afford that much booze any more, but it could happen.) He fails a field sobriety test and the cuffs come out. Do the police have any business looking into the contents of his cellphone, since it has no bearing on the crime at issue?

Maybe if the justices on the high court used their cellphones a bit more often, they’d be more alert to these sorts of issues. Or maybe not. But I would bet that if they approve cellphone searches, something like one of these scenarios will occur pretty soon.



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Math for journalists (Koch edition): Free spending is not free speech

By Christopher B. Daly 

Kudos to The New Republic for this takedown of a recent Wall Street Journal editorial. The Murdoch newspaper was trying to gin up sympathy for the Koch brothers, the fossil-fuel billionaires who pour big money into the conservative Meme Factory and into political campaigns. The Journal tried to make the case that the Kochs have actually been outspent by organized labor — without noting that there are two Koch brothers and 14.5 million labor union members. When the Kochs are treated as individuals (as the Constitution would indicate), the TNR piece calculates that each Koch brother is exercising the same level of “political speech” as about half a million union members.

Can anyone really argue that amplifying those two voices by the millions of dollars they have to spend makes the country a better place? Does their wealth make their ideas more worth listening to? Does their wealth make them wiser? Does it mean they love their country more than others? Why should they have a megaphone that their neighbors do not have? If they want to speak, let them speak. If they want to publish, let them publish. And let them do so without limitation. But spending money is not protected by the First Amendment (and nor should it be).

As a First Amendment militant, I believe speech should be free. It shouldn’t be paid for.

[Note: the following graphic is merely suggestive. For it to be accurate, it would have to include hundreds of thousands of separate tiny images for union members.]



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Money & Politics: spending is not the same as speaking

By Christopher B. Daly

Today’s report about the influence of money in politics is the inevitable progeny of the 2010 Citizens United ruling. One of the worst parts of that ruling was the deep misconception at the heart of it: that spending money equals political speech. That flies in the face of common sense, human experience, and two centuries of constitutional interpretation. But we seem to be stuck with it, at least for now.

Today’s story in the Times also carries a whiff of “false equivalence,” because for every liberal zillionaire like Tom Steyer, there are probably dozens of conservatives like the Kochs. They are all seeking unaccountable ways to give unlimited amounts of money to shape our politics. It’s wrong, and we will regret it. Let these same people give all the speeches their throats can make. Let them write all the essays, pamphlets, and letters they like. As citizens, each of us is entitled to use our voices to persuade the others. But having a hundred million dollars does not make any citizen more virtuous, more patriotic, or wiser. It just makes you louder.

Spending ≠ speaking.



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