Category Archives: First Amendment

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.]

koch2-article

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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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Partisanship in journalism: a discussion

By Christopher B. Daly

For readers’ convenience, I am posting some material that airs out the issue of partisanship in the news media. In sequence, here are:

1. A NYTimes invitation to a Sunday Dialogue, a feature of the paper’s Sunday Review section in which readers are asked to respond to a short essay.

2. My reply as published on Dec. 7, 2013.

3. A thoughtful email that I got from a reader, who gave me permission to post his ideas here.

4. The Sunday Dialogue replies by people other than me.

5. The original author’s reply to the replies.

6. My reply to that reply.

08letters-articleLarge

 

How Fox News, MSNBC and others present the news.

 To the Editor:

An autobiography gives an intimate account of a life, but to get the larger picture, you also need the biography.

The same goes for news. Relying on one source, or even on several sources with the same bias, will leave you with only part of the story.

That’s why the much maligned right-wing media is just as important as the so-called mainstream press. Fox News and others on the right certainly have a deeply embedded conservative bias, but the liberal bias on the other side is just as pervasive. Taken together, they roughly fill each other’s omissions.

Fox, for example, spent a good part of the past year digging into the Benghazi attack and I.R.S. tax-exempt status stories and talking hopefully about smoking guns, while the mainstream press was determined to take the Obama administration’s word for it that it did nothing wrong in either case.

More recently, when the president’s pronouncement about keeping your health insurance proved false, it was reported as a lie by the right and as a simple misstatement by the left.

And when the Obamacare website failed so miserably that not even the mainstream press could cover for it, the networks were obliged to sound like Fox for a while, although noticeably lacking was the appetite for pursuit that characterizes their coverage of Republicans.

Fairness in journalism requires not that every story or point of view receive equal weight but that every valid position receive equal respect. Thus the pro-life position should be treated with the same validity as pro-choice; small-government conservatives with the same respect as tax-and-spend liberals; Republicans as more compassionate than they sound and Democrats as less omniscient than they think.

But since journalists and news organizations are partisan at heart, one must sift through the best reporting and punditry from each side of the journalistic divide and take all the biases and agendas into account to arrive at an informed understanding of any story.

MARK R. GODBURN
North Canaan, Conn., Dec. 2, 2013

The writer is an antiquarian bookseller.

Here’s my comment:

In his lament about bias in the news media, Mr. Godburn assumes that unbiased journalism is possible and desirable. History suggests otherwise.

In the 18th and early 19th centuries, American journalism was highly political, often polemical and openly biased. That was the kind of journalism in which the likes of Sam Adams and Thomas Paine gloriously argued for liberty, and it was the form of journalism that was on the founders’ minds when they enshrined the doctrine of a free press in the First Amendment.

Only later, beginning with Benjamin Day’s Sun newspaper in 1833, did American journalists begin to develop a strong tradition of factual reporting. In part, this was the result of Day’s ambition to sell his paper to every reader (“It Shines for All”) and not limit his audience to members of any one political party.

In the 20th century, the major broadcast network news divisions, first in radio and then in television, reinforced this idea. They not only wanted the highest possible ratings, but were also operating as publicly traded corporations and were regulated by the Federal Communications Commission.

Nowadays, from within the turbulence of the digital age, we can begin to see that the years when big media companies were purveying what they described as nonpartisan, factual reporting were actually a historical period that is already fading into the past. The Internet has reinvigorated the “advocacy tradition” in journalism, and it has also made possible new forms of reporting such as crowd-sourcing, reporting that enlists the audience and the like. The spirit of innovation lives.

CHRISTOPHER B. DALY
Boston, Dec. 4, 2013

The writer is a professor of journalism at Boston University and the author of “Covering America: A Narrative History of a Nation’s Journalism.”

Here’s the email I got from blogger Steve Claflin:

Professor Daly:

Thank you for “Partisanship in the Media” in the December 8 New York Times letters.

The revived “advocacy tradition” problem you mention might be easier to manage if we had a form of majority rule that allows the general public to have more influence.

In the old days, the House was able to vote on any bill and the majority would prevail. Until an important bill recently passed by a wide margin, a Tea Party minority could usually intimidate other members, especially the Speaker, and prevent legislation that would easily pass from even getting to the floor. The minority party in the Senate can routinely block action on bills, because minority rule is built into Senate procedures. 60 votes are needed, with the help of a fickle minority, to pass legislation.

Is there anything more vital to democracy than majority rule? Is this what distinguishes democracy from autocracy? Is this what a democracy needs in order to succeed? We have the elections we normally associate with a democratic process. We reassure ourselves by going through the motions.

But the active ideological minorities in Congress, and the members who are owned and operated by special interests that donate large sums of money, are repeatedly able to slow or block or derail changes those few oppose and the rest of us generally favor. As such repeated occurrences so rudely remind us, we can have the structure, the trappings, the proceedings, the appearance of democracy without having majority rule.

Here are the other comments published in the Times:

Readers React

In an ideal world, graced by Enlightenment ideals, Mr. Godburn’s recommendation that citizens sift through biases of diverse news media outlets to form a complete perspective would be warmly endorsed. However, in this far-from-ideal world, individuals live in media echo chambers, selecting out viewpoints that agree with their own and sometimes avoiding conflicting ones.

Research finds that conservatives gravitate to Fox News and liberals to MSNBC — as well as to like-minded websites. A Pew Research Center study reported that from August to October of 2012, just 6 percent of Fox News’s election stories about President Obama were positive, while only 3 percent of MSNBC stories about the Republican presidential candidate Mitt Romney were positive.

Exposure to biased media strengthens partisan biases, exacerbating political polarization rather than producing the more informed understanding that Mr. Godburn desires.

RICHARD M. PERLOFF
Cleveland, Dec. 4, 2013

The writer is a professor of communication at Cleveland State University.

I read The New York Times every morning. I also watch more MSNBC than I like to admit. Occasionally, for entertainment, I’ll wander to Fox for a Bill O’Reilly moment or two.

Mr. Godburn’s thesis is an example of false equivalence. The Times is real journalism. But even The Times sometimes stretches too far in the service of “journalistic objectivity.” When one perspective is true and the other is propaganda, they should not be presented as equally valid.

As to MSNBC and Fox: The MSNBC host Rachel Maddow, for example, is surely dramatic. But I have never encountered an instance in which she was fundamentally dishonest. On the other hand, Fox is frequently and outrageously untethered from the truth, and its talking heads are attack dogs. Anyone consuming equal doses of this “news” will have intellectual indigestion.

If you bend over too far in the effort to be balanced, you’ll fall flat on your face.

STEVE NELSON
New York, Dec. 4, 2013

Well said, Mr. Godburn. Political correctness and a pervasive left-wing media bias are corrosive and do immense harm to the democratic process. People eventually find out that they have been misled. This breeds cynicism and mistrust. The left and the right learn to develop their own separate versions of the “truth.”

But while most right-wing news sources acknowledge their bias, those on the left deny their bias. Left-wing news sources are suffering a fallout in ratings because people are waking up to these facts and don’t like being manipulated.

FRANK COOK
Wayne, Pa., Dec. 5, 2013

Mr. Godburn makes a telling point, but he doesn’t go nearly far enough. His assertion that liberal and conservative news outlets “roughly fill each other’s omissions” assumes that there are exactly two reasonable points of view toward any given social issue; that these viewpoints are locked in a zero-sum game whereby each one can be validated only to the degree that the opposing one is impeached; and that they happen to correspond to the platforms of our two leading political parties.

Both parties are only too eager to promote this theory themselves, since it implies that together they have a monopoly on the truth. So a responsibility of both a free press and its readers is to examine both contrary viewpoints critically and consider other viewpoints — a third, fourth or fifth perspective — that have not been embraced by either side.

THOMAS LEITCH
Newark, Del., Dec. 4, 2013

Balanced news media is essential in any democracy. But let’s remember what brought us to the present situation — the 1987 repeal of the Fairness Doctrine, which required the airing of contrasting views on public issues, and the loosening of regulations on media concentration, allowing many media outlets to fall under the control of a few corporate-owned conglomerates.

Both have created a situation in which media is not only biased and unbalanced, but overwhelmingly influenced by the opinions and wishes of its corporate masters.

DOMINIC QUINTANA
Astoria, Queens, Dec. 4, 2013

Having recently returned from a trip to Brussels, I found the evening news there to be refreshing and professional. One subject wasn’t beaten to death 24/7 as it is here. You didn’t have to flip from channel to channel to see the “whole” picture, and the news was international in nature. In the United States you rarely hear about what is going on in Africa, Australia and, actually, most of the world.

It is a shame.

BONNIE CHALEK
Ridgewood, N.J., Dec. 4, 2013

I agree with Mr. Godburn that we need different perspectives. I would like to point out that Fox News is the No. 1 news source in America. Surely, that should qualify Fox as “mainstream.”

Studies have also shown that, for many Americans, Fox News is their only source of news. Those viewers are getting a slanted perspective — not balance. Defenders of Fox News often portray it as an underdog struggling to have a voice in the crowd of “mainstream” outlets, but that depiction simply isn’t consistent with its ratings.

I commend Mr. Godburn for admitting that news outlets he identifies as left-leaning did report on the problems with Obamacare. I find that so-called left-leaning news outlets, including The New York Times, are frequently critical of Democrats and their policies.

Mr. Godburn would have a much more difficult time finding comparable examples of Fox News criticizing the G.O.P. — except perhaps when it criticizes moderate Republicans for not being in lock step with the rest of their party.

TOBY PLEWAK
Easton, Mass., Dec. 4, 2013

It may be a fool’s errand to think that we can overcome media bias. The media is ultimately a collection of voices of various people, who generally stick to certain biases and opinions. The answer instead may be to encourage media outlets to be more forthcoming about their biases.

If we, as media consumers, know that a mainstream news outlet typically holds a certain viewpoint, then we can take in the news with a better understanding of what information may be missing or may be shaded one way or another. As it is, given the rather obvious political positions held by certain newspapers and television news divisions, many of us have already begun interpreting the news in this way.

MATTHEW K. KERFOOT
New York, Dec. 4, 2013

Here is Godburn’s last word:

The Writer Responds

Professor Perloff reinforces my point by noting that conservatives gravitate to right-leaning news sources and liberals to left-leaning ones, often without being exposed to contrary views or inconvenient facts.

But then he says that going to such biased sources only exacerbates the problem, as if he thinks there are reliably unbiased sources that one can go to instead. There are not, and that is why it is necessary to mine a variety of biased ones.

Mr. Nelson engages in the cheap liberal tactic of Fox-bashing. If Fox’s talking heads are attack dogs, they are poodles compared with the pit bulls he favors at MSNBC. Simply calling one’s favored sources true journalism and the other side propaganda doesn’t make it so. And if too much news causes intellectual indigestion, too little causes intellectual blinders.

Mr. Leitch is correct that there are more than two points of view. And examining all of them will not necessarily allow one to arrive at some desired middle ground. Just because you have one foot in hot water and the other in cold doesn’t mean you’re comfortable.

Professor Daly’s claim that I assume unbiased journalism is possible and desirable may have been a good lead-in for his journalistic history lesson, but that’s not what I said. The problem is not that journalists are biased — it’s that they claim they aren’t.

MARK R. GODBURN
North Canaan, Conn., Dec. 5, 2013

And, of course, since this is my blog, here’s my final, final word:

I will grant that maybe I misread his original post. When he wrote that all journalists and news organizations are partisan at heart, I thought he considered that a flaw. Perhaps inevitable, perhaps correctable (by reading multiple sources from different perspectives) but still a problem. If he says he doesn’t think so, then who am I to argue? I would say that many people (including a lot of journalists) do consider partisanship some kind of original sin of journalism.

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Surveillance state: The rationale for secrecy is, of course, SECRET

By Christopher B. Daly

top-secret-stampYou may think you are a sovereign citizen of a free country. You may think that “we, the people” rule through elected representatives who are accountable to us. But that would be wrong.

The latest affront to self-government is a ruling issued by a federal appeals court on Friday (beware of Friday rulings). Here’s the background:

Thanks to accused leaker Edward Snowden, we know that the U.S. government runs a secret program in which the government calls on the telephone companies to hand over information about you without a court order or subpoena, even if you are not suspected of any wrongdoing. You were not supposed to know about it, but that cat is now out of the bag.

So, you might want to know where the government gets off concocting such a scheme and how it could possibly square such massive, secret, peacetime spying on law-abiding citizens with the Constitution. Well, too bad. The Obama administration’s lawyers, who wrote a memo in 2010 attempting to justify the whole thing, decided that the memo itself should be kept secret, and President Obama agrees.

The Electronic Frontier Foundation and others filed suit seeking to get access to the memo. The government refused. On Friday, Judge Harry T. Edwards said no. EFF can’t see it and neither can we, the people. According to a link-rich story in today’s Times by the redoubtable Charlie Savage, the ruling seems likely to stand.

This is just the latest cause for disappointment in President Obama when it comes to transparency and press freedom. If he wanted to really serve those great causes, he could:

–stop prosecuting and issuing subpoenas to reporters at an unprecedented pace

–stop over-classifying new material as “secret”

–begin reducing the backlog of classified materials that can be de-classified with no harm

–adopt the common-sense reforms recommended by his own task force on surveillance issues.

There are many things to admire about Barack Obama, but his record in this area is not one of them Perhaps it confirms that the Founders were right to be suspicious of executive power per se, regardless of the individual wielding that power. They saw, rightly, that power is by its very nature aggressive, always seeking to expand and never yielding unless forced to do so.

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NY court issues a major ruling for press freedom

By Christopher B. Daly 

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here are versions by the New York Times (which should have put this on page 1, not inside the business section) The New Yorker, TVNewser, and Poynter. (Even Fox News had to come down on the side of press freedom in this case.)

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 image-crown-zenger-tryal-pageseditious libel case against the printer John Peter Zenger  established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

 

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

 

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

0      0       0       0       0       0

 

Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

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Hitting “Like” on Facebook gets free-speech protection

By Christopher B. Daly 

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History keeps happening. Now, a U.S. appeals court has ruled that the activity of hitting “Like” on a Facebook is a form of expression that deserves free-speech protections under the First Amendment.

An earlier ruling in a lower federal court went the other way. But on Wednesday (9/18), the 4th Circuit Court of Appeals in Richmond reversed and said an employee who “liked” a political candidate was engaging in political speech and therefore cannot be punished by his employer.

From the AP story in today’s Boston Globe:

Facebook and the American Civil Liberties Union, which filed friend of court briefs in the case, applauded Wednesday’s ruling.

‘‘The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally,’’ said Ben Wizner of the ACLU .

This ruling seems not only common-sensical, but it also seems to right a terrible wrong: when the Supreme Court said that spending equals speaking, that gave rich Americans a tremendous advantage in the competition to make points in the public sphere. This ruling says that using Facebook is a form of speaking, too, so it deserves protection.

The First Amendment lives. Let’s keep it going.

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