Tag Archives: First Amendment

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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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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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.

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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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