FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case


UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

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The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful’: The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

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Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted 

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

This past March 30th the First Amendment Salon in association with the Floyd Abrams Institute For Freedom of Expression hosted an exchange between Yale Law Professor Jack Balkin and Northwestern University Law Professor Martin Redish. The discussion was held at the Abrams Institute at Yale Law School and was moderated by Mr. Abrams. The evening’s topic: “Is the First Amendment Being Misused as a Deregulatory Tool?” The event was videocast live to designated venues in Washington, D.C., and New York City.

Some of those in the audience at the various venues included: Joan Bertin, Robert Corn-Revere, Heather Dietrick, Justin Dillon, George Freeman, Laura Handman, Adam Liptak, Margaret McPherson, Tamara Piety, Dean Ringel, David Savage, Ilya Shapiro, Paul Smith, and Katie Townsend.

→ A video of the event has just been posted and can be found here.

Coming this summer: The next salon, the fifth one, will be held in Los Angeles and will involve an exchange between UCLA Law Professor Eugene Volokh and UC Irvine Dean Erwin Chemerinsky on the topic of “The Roberts Court and the First Amendment.” The discussion will be moderated by Kelli Sager of the Davis Wright Tremaine law firm.

Piety: “Commercial Speech & the Corporate Civil Rights Movement”

Yesterday Professor Tamara Piety delivered a lecture at Yale Law School as part of the Thomson Reuters Speaker Series.

Abstract: In recent years in cases like Hobby Lobby and Citizens United, the Supreme Court has been employing rhetoric that suggests that distinctions between people and corporations or between types of corporations (for-profit vs. not-for-profit) constitute some form of invidious discrimination. Freedom of speech and exercise of religion, the Court admonishes us, do not depend upon the identity of the speaker. Yet much of the public disagrees with this characterization. Corporate “personhood” is one of the most controversial aspects of these decisions. Many legal scholars tell us that personhood is actually not very controversial, that it is important to legal functioning and that the public is mistaken in objecting to it. Piety argues that this view is mistaken, that expropriating the language of civil rights is an attempt to make these decisions seem self-evidently correct when they are not. Indeed, this “corporate civil rights movement” presents substantial challenges to many existing regulatory regimes with perhaps deleterious impacts on the public welfare.

The Thompson Reuters Initiative: In 2011 the Yale Law School and the Thomson Reuters Corporation announced the establishment of the Thomson Reuters Initiative on Law and Technology at the Yale Information Society Project (ISP), which aims to foster research and intellectual community in the burgeoning area of information law. The initiative was made possible by a grant from the Thomson Reuters Corporation, which is a major multinational mass media and information company founded in Toronto and based in New York City and Toronto.

Volokh Joins Board of Thomas Jefferson Center

UnknownThe Thomas Jefferson Center for the Protection of Free Expression has just added a new member to its board of trustees — UCLA Law Professor Eugene Volokh.

“Eugene Volokh is one of the most respected and influential legal scholars in the country,” says Josh Wheeler, director of the Thomas Jefferson Center. “His law review articles have been cited in over a hundred court opinions, including seven from U.S. Supreme Court Justices, and his work is among the most frequently cited by other legal scholars.”

“This year marks the Thomas Jefferson Center’s 25th anniversary,” says Wheeler. “The fact that our Board of Trustees continues to attract individuals of Professor Volokh’s stature ensures that the Center will continue to play a significant role in protecting the right of free expression well into the future.”

UnknownCPJ Report: 10 Most Censored Countries

The Committee to Protect Journalists has just released its list the ten “Most Censored Countries.” It is part of CPJ’s annual publication, Attacks on the Press, which will be released in full on Monday, April 27th. Here is the list of the ten countries where the press is most restricted:

  1. Eritrea
  2. North Korea
  3. Saudi Arabia
  4. Ethiopia
  5. Azerbaijan
  6. Vietnam
  7. Iran
  8. China
  9. Myanmar, and
  10. Cuba

UnknownPBS Censorship Flap

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Coming this May: New Snowden Book

UnknownThis May 19th Thomas Dunne Books will release After Snowden: Privacy, Secrecy, and Security in the Information Age (320 pp), which is edited by Ronald Goldfarb. Here is the publisher’s abstract:

Just how far do American privacy rights extend?
And how far is too far when it comes to government secrecy in the name of security?
These are just a few of the questions that have dominated American consciousness since Edward Snowden exposed the breath of the NSA’s domestic surveillance program.
In these seven previously unpublished essays, a group of prominent legal and political experts delve in to life After Snowden, examining the ramifications of the infamous leak from multiple angles:

Washington lawyer and literary agent Ronald Goldfarb acts as the book’s editor and provides an introduction outlining the many debates sparked by the Snowden leaks. The contributors are: Hodding Carter, III, David Cole, Barry Siegel, Thomas Blanton,  Jon L. Mills, and Edward Wasserman.

New & Notable Blog Posts

  1. Rick Hasen, “Federal District Court Rejects Challenge to Federal Contribution Limits,”Election Law Blog, April 21, 2015 (re Holmes v. FEC)
  2. Eugene Volokh, “‘Nonmedia’ speakers don’t get full First Amendment protection, rules a Texas Court of Appeals panel,The Volokh Conspiracy, April 20, 2015
  3. Eugene Volokh, “Federal Circuit: no trademark registration for Asian-American band called “The Slants”; one judge argues such denials violate the First Amendment,” The Volokh Conspiracy, April 20, 2015
  4. Rick Hasen, “Ex-Candidate O’Donnell Challenges Rules Barring Personal Use of Campaign Money,” Election Law Blog, April 20, 2015

New & Forthcoming Scholarly Articles

Michael H. LeRoy, “#AcademicFreedom: Twitter and First Amendment Rights for Professors,” Notre Dame Law Review Online (2015)

  1. Kristian Stout, “Terrifying Trademarks and a Scandalous Disregard for the First Amendment: §2(A)’s Unconstitutional Prohibition on Scandalous, Immoral, and Disparaging Trademarks,” Albany Law Journal of Science and Technology (forthcoming 2015)
  2. Enrique Armijo, “The ‘Ample Alternative Channels’ Mistake in First Amendment Doctrine,” SSRN (April 18, 2015)
  3. Daniel Ortner, “The Terrorist’s Veto: Why the First Amendment Must Protect Provocative Portrayals of the Prophet Muhammad,” SSRN (April 8, 2015)
  4. Avlana K. Eisenberg, “Criminal Infliction of Emotional Distress,” Michigan Law Review (2015)
  5. Zachary J. Phillipps, “The Unavoidable Implication of McCullen v. Coakley: Protection Against Unwelcome Speech is not a Sufficient Justification for Restricting Speech in Traditional Public Fora,” Connecticut Law Review (2015)
  6. Deven R. Desai, “Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding,” Notre Dame Law Review (2014)

News, Editorials, Op-eds & Blog Commentaries

 Ruthann Robson, “Federal District Judge Finds First Amendment Requires Anti-Muslim Adverts,” Constitutional Law Prof Blog, April 22, 2015 (case: American Freedom Defense Initiative et al v. Metropolitan Transportation Authority et al)

 Jonathan Stempel, “Judge orders NY transit agency to run ‘Killing Jews’ ad,” Reuters, April 21, 2015

Victor Morton, “Anti-jihad, anti-sharia ads protected by First Amendment, federal judge rules,” Washington Times, April 21, 2015

  1. Myron Magnet, “Free Speech in Peril — Trigger warning: may offend the illiberal or intolerant,” City Journal, Spring 2015
  2. Jon Seidel, “Lawyer: First Amendment protects teen accused of trying to join terrorists,” Sun Times, April 21, 2015
  3. Samuel Sommer, “Protected or Not? Washington Redskins and Free Speech,” Brown Political Review, April 20, 2015
  4. Michael Beckel, “Campaign finance system is broken says GOP super-lawyer Jim Bopp,” The Center for Public Integrity, April 20, 2015
  5. Mark Kennedy, “Tom Stoppard calls it a ‘frightening time’ for free speech,” Denver Post, April 20, 2015
  6. Virginia’s Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons,” TechDirt, April 20, 2015
  7. Gene Policinski, “Don’t fear First Amendment’s tools,” Des Moines Register, April 18, 2015
  8. Katherine Bagley, “Climate censorship gains steam in red states,” Inside Climate News, April 18, 2015
  9. Editorial: “Eisgruber and hate speech,” The Princetonian, April 16, 2015
  10. Ashley Fantz, “Tobacco companies’ lawsuit: New FDA guidelines violate free speech,” CNN, April 16, 2015

Screen Shot 2015-04-21 at 11.01.40 AMNew YouTube Postings

Conversations, Dennis Miller interviewing Jay A. Gertzman, author of new book on Samuel Roth, April 21, 2015  

  1. Larry King, “Ex CBS Reporter Spineless Media Bosses Eroding Our First Amendment,” Politicking, April 21, 2015
  2. Fairness Doctrine To Return Under FCC,” InfoWars, April 21, 2015
  3. Dakota Peak, “The First Amendment,” West Virginia Department of Education, April 21, 2015
  4. City Club of Portland, “Censorship in the Arts,” Speech by Marjorie Heins, Sept. 17, 1993 (posted April 21, 2015
  5. Josh Blackman, “ConLaw Class 26 – The First Amendment Speech II,” April 21, 2015
  6. Geneva Overholser on her Censorship Story and When to Speak Up,” Active Voice, April 20, 2015
  7. Secular Talk, “Fox Guest Rips Bernie Sanders: ‘Money Is Free Speech,” Fox News, April 20, 2015
  8. AZMP, “The Hitch’ Part Five: The First Amendment Is My Life” (with dramatic video clips & music added to a speech by the late Christopher Hitchins + more)


[last updated: 4-21-15]

Review Granted & Cases Argued

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)
  5. Central Radio Co., Inc. v. City of Norfolk

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. on 8 v. Bowen
  6. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell

LAST SCHEDULED FAN POST, #56: “Floyd Abrams Signs Contract to do Third Book on Free Speech

NEXT SCHEDULED FAN POST, #58, Wednesday, April 29, 2015

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