Category Archives: First Amendment

Covering the Black Panthers


A Turning Point in America

By Christopher B. Daly

Recently, the New York Times observed the 50th anniversary of the founding of the Black Panther Party, which took place in Oakland in October of 1966. In one of those historical twists, it is remarkable to recall that the Panthers built their reputation on their response to police harassment of black motorists. Panther members “patrolled” the streets of Oakland, on the lookout for routine police stops. Before those stops could escalate, the Panthers would roll up and pull out their own weapons (which were then legal to carry in California). With weapons in full view, they would then “observe” the police while they interacted with black citizens.

In its look back at the Panthers, the Times examines its own coverage of the movement and its leaders. It’s a worthy effort, but I believe the Times actually slights one of its own reporters – Earl Caldwell, a pioneer in the movement by African-American reporters and editors to desegregate the newsrooms of mainstream, white-owned newspapers and magazines.

In hopes of giving Caldwell his due, I present the following excerpt from my 2012 book Covering America: A Narrative History of a Nation’s Journalism. In my view, Caldwell did an exemplary job of not only covering the Panthers but also in standing up to the FBI, when the Bureau tried to pressure Caldwell into cooperating. His work is at the heart of the landmark 1972 Supreme Court ruling known as Branzburg, a case that lamentably drew the erroneous conclusion that American journalists have no constitutional right to protect their sources from the government.

Caldwell had grown up in Pennsylvania coal country and made his way into sportswriting, then approached the New York Times.


[From Covering America]

. . . The Times was famous for having plenty of black elevator operators, but when Caldwell started in March 1967, he was just the second black in a newsroom position at the Times (following Tom Johnson).

On his first day, Caldwell wore a Brooks Brothers suit and declared that he wanted to write like Gay Talese. For the first few weeks he did what most newly hired reporters did at the Times: cover New York City. On occasion, he served as something like a foreign correspondent, exploring Harlem for the Times’ white readers and describing the sights, sounds, and folkways of people who lived only a few blocks away. Once a Times editor asked Caldwell for James Baldwin’s telephone number, evidently assuming that all black people knew all other black people.

Soon, though, cities across America began erupting in race riots, and the Times tapped the new guy to help out, often teaming him with Gene Roberts, an experienced white reporter who was the paper’s chief Southern-based civil rights correspondent in the late 1960s.

In the spring of 1968, Caldwell traveled to Memphis to cover the strike being waged by the city’s sanitation workers, supported by the Reverend Martin Luther King Jr. Caldwell was in the Lorraine Motel on April 4 when a loud shot rang out.

10.75 x 7.22 inches jericho

New York Times reporter Earl Caldwell (at left) trails Rev. Martin Luther King Jr. up stairs in the courtyard of the Lorraine Motel in Memphis, shortly before King’s assassination on April 4, 1968. Caldwell was the only reporter in a position to provide an eyewitness account.          (Photo: Memphis Commercial Appeal.)

 The only journalist present at the scene, Caldwell immediately called the Times newsroom and began dictating details of the King assassination, which the editors spread across the top of page one. According to Caldwell, King had spent most of the day in his room, then emerged around 6 p.m. onto the balcony, wearing a black suit and a white shirt. Caldwell’s report continued:

                  Dr. King, an open-faced genial man, leaned over a green iron railing to chat with an associate. . . .

The Rev. Ralph W. Abernathy, perhaps Dr. King’s closest friend, was just about to come out of the motel room when the sudden loud noise burst out.

Dr. King toppled to the concrete second-floor walkway. Blood gushed from the right jaw and neck area. His necktie had been ripped off by the blast.

King’s murder touched off a fresh round of violence in cities across America, and Caldwell returned to the “riot beat” for much of the summer.


That fall, Caldwell went to San Francisco to become a West Coast correspondent for the Times. Through his contacts among the few black reporters in the Bay Area, he gained access to Black Power advocate Eldridge Cleaver, and by the end of 1968, Caldwell was the most knowledgeable reporter in the mainstream press about the emerging Black Panther Party, based across the bay in Oakland. As it turned out, the Panthers were shrewd enough about the media to want coverage in the New York Times, and they gave Caldwell access, as well as what reporters call “color” (atmospheric details), on-the-record interviews, just about anything he might want. His stories established that the Panthers were heavily armed and were talking about violent revolution. Caldwell worried about how Cleaver and the other Panthers would react to his reporting, but he didn’t need to. “The Panthers wanted people to know what they were doing. They wanted me to write in the paper about them having guns.”

His reporting also attracted the attention of the FBI, which was waging a nationwide campaign of surveillance and intimidation against radical groups both black and white. That attention would develop into one of the landmark Supreme Court rulings affecting reporters and their ability to protect confidential sources.

The legal case began when FBI agents paid a visit to Caldwell and told him that they wanted a lot more information about the Panthers. Caldwell told the agents that everything he knew was right there in the newspaper, including the fact that the Panthers were armed and that they were threatening to kill the president.

Even so, the government wanted more from Caldwell. He refused to talk, however, believing that any appearance in secret before a grand jury would make him look like an informant and dry up his sources. The agents were not satisfied, and the Bureau turned up the pressure, warning him that he would be forced to testify in court—a step that would not only destroy his relationship with the Black Panthers but jeopardize his value as a reporter on any other beat as well. Facing a possible court appearance, Caldwell destroyed most of his Panther files, but there was still the matter of his testimony. In February 1970 he was served with a subpoena ordering him to appear before a federal grand jury investigating the Black Panthers. The subpoena did not name the Times, but the newspaper hired a prestigious San Francisco law firm to represent Caldwell. Their advice: cooperate.

Hearing that, Caldwell tapped his network of black journalists, who steered him toward a Stanford law professor, Anthony Amsterdam, a brilliant defense lawyer, who agreed with Caldwell’s decision not to testify and offered to represent him pro bono. After he continued to refuse to testify about his news sources, Caldwell was found in contempt of court and ordered to jail, but he was allowed to remain free while his case went to the Ninth U.S. Circuit Court of Appeals. The higher court sided with Caldwell, but then the federal government appealed that ruling. En route to the U.S. Supreme Court, Caldwell’s case was combined with two others and filed under the heading Branzburg v. Hayes. Paul Branzburg was a reporter for the Louisville Courier-Journal who had been an eyewitness to a drug crime. (Thus he was not, strictly speaking, protecting a confidential source.) Paul Pappas was a television news photographer working for a TV station in New Bedford, Mass., who had gone to nearby Providence to cover the local Black Panthers chapter and spent several hours inside their headquarters. Like Caldwell, Branzburg and Pappas were both journalists who had been ordered to testify before grand juries; like Caldwell, they had refused on professional grounds.

In all three cases, the issue was not a classic instance of protecting the identity of a confidential source. It was more a matter of preserving the journalists’ access to sources, which would be destroyed if the people who were being reported on suspected that the reporters had cooperated with law enforcement. All three cases involved a constitutional claim that the First Amendment includes not only the right to publish (and withhold) information freely but also the right to gather news freely.

Recognizing the stakes, news executives threw their institutional weight behind Caldwell and the other reporters. Supporting briefs were filed by the Washington Post Company, the Chicago Tribune Company, the American Newspaper Publishers Association, the American Society of Newspaper Editors, the American Newspaper Guild, the Radio and Television News Directors Association, the Press Photographers Association, and the ACLU—along with affidavits from such respected journalists as Anthony Lukas, Walter Cronkite, and Marvin Kalb.

In a decision handed down on June 29, 1972, the Supreme Court narrowly ruled against the journalists. Writing for the 5–4 majority, Justice Byron White held that the First Amendment had to be balanced against the Fifth Amendment, which guarantees criminal defendants the right to have their cases presented to a grand jury before indictment. In his opinion White invoked the ancient legal doctrine that “the public . . . has a right to every man’s evidence.” The only exceptions, he said, are those instances in which the states have adopted laws specifically granting certain categories of people a legal privilege against having to testify.

Such a “testimonial privilege” might protect a wife from testifying about her husband, a doctor about a patient, or a priest about a penitent. In such cases, legislatures determined that some other social good was worth the cost of allowing the privileged category of people to avoid the grand jury. But, White said, the Court could not take seriously the idea “that it is better to write about crime than to do something about it.” If reporters know things that prosecutors want to find out, they must tell what they know. Besides, the justice wrote, if the Court created a special privilege for journalists, it would soon have to define who is (and is not) a journalist — a task that raised the specter of government licensing of journalists, which would be far more murky than determining who is a doctor or a priest. “Almost any author may quite accurately assert that he is contributing to the flow of information to the public,” White wrote, warning that just about anybody could claim to be a journalist of one variety or another. Finally, White observed that the U.S. attorney general had written a set of guidelines governing the issuance of subpoenas to reporters, which the high court thought ought to suffice for the bulk of cases. The majority opinion also included an invitation to legislatures to create a “testimonial privilege” for reporters, and many state legislatures went ahead and passed versions of what are known as “shield laws.”

In a brief concurring opinion, Justice Lewis Powell, though voting with the majority, very nearly came down on the other side. He warned prosecutors that “no harassment of newsmen will be tolerated,” and he wrote that if reporters feel they are being abused by overzealous prosecutors seeking the names of confidential sources, then those reporters should go to court and seek a protective order. “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” Powell wrote, saying it is up to the courts to handle such claims on a case-by-case basis. Nevertheless, his joining with the majority had the effect of denying journalists’ claims to a constitutional privilege.

Among the dissenters, Justice William O. Douglas wrote one of the most eloquent statements of press freedom in history. Having staked out a position as a First Amendment fundamentalist, Douglas saw the Caldwell and related cases in clear-cut terms. “My belief is that all of the ‘balancing’ was done by those who wrote the Bill of Rights,” he said, adding that “by casting the First Amendment in absolute terms, they repudiated timid, watered-down, emasculated versions of the First Amendment. . . .” The key to understanding the First Amendment, Douglas argued, is to recognize that it exists for the benefit of the American people as a whole. If the people are to govern themselves, they must have reliable, independent sources of information. “Effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination,” he wrote.

In Douglas’s view, the free press cases that come before the Court are not really about the press per se; they are about the rights of the American people, the ultimate sovereigns of our system. The press, which serves as the agent of its audience, is incidental to the greater purpose of self-government. Douglas continued:

         The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring to fulfillment the public’s right to know. . . . There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.

He concluded by warning that the Court’s majority opinion would reduce journalists to stenographers, and that without the right to protect confidential sources, “the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.”

The majority, however, did not see it that way. As a result of the Court’s 5–4 ruling against the journalists, reporters and their sources have operated in legal jeopardy ever since, at least in federal courts. On the state level, the Branzburg ruling had the effect of spurring many legislatures around the country to enact shield laws to protect reporters in state courts, but Congress has steadfastly refused to recognize the same right on the federal level.

Ironically, the Branzburg ruling also had another impact: it dried up what was probably the FBI’s greatest source of information about the Black Panthers—the reporting that anybody could read in the pages of the New York Times. Of course, by the time Caldwell’s case was resolved, the Justice Department had lost much of its interest in the Black Panthers. Most of Caldwell’s contacts were in jail, in exile, or dead.


*       *       *



See Earl Caldwell’s oral history in Wallace Terry’s Missing Pages, as well as Caldwell’s book Black American Witness; also Caldwell’s 2006 interview with PBS’s Frontline series for the program “News War.” In addition, his own account of his beginnings can be found at the Maynard Institute’s history project page.

Also see “The Caldwell Journals.”

As for Caldwell, after the Supreme Court case, he left the Times to become a columnist, first at the Washington Star, then at the New York Post. He also served as host of a long- running weekly radio program on WBAI radio in New York. In 1977, Caldwell co-founded the Institute for Journalism Education, which trains minority journalists. It is now known as the Maynard Institute for its other co-founder, Robert C. Maynard.

Leave a comment

Filed under First Amendment, Journalism, New York Times, Uncategorized

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.

Leave a comment

Filed under First Amendment, Journalism, shield law

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.








1 Comment

Filed under blogging, First Amendment, Journalism, journalism history, leaks, media, publishing, Supreme Court

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.]


Leave a comment

Filed under First Amendment, Supreme Court

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.





Filed under First Amendment, history, Journalism

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.



Filed under computers, First Amendment, Journalism, media, Supreme Court

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.]



Filed under First Amendment, Journalism, Politics