FAN 197 (First Amendment News) Congressional Committee Holds Hearing on Proposed Free Flow of Information Act

[T]he potential chilling effect occasioned by the current state of affairs in the federal courts cannot be overstated. The ongoing drum beat of subpoenas, coupled with the lack of clear guidance concerning the recognition and scope of a reporters’ privilege in the federal courts, has impaired the ability of the American public to receive information about the operation of its government and the state of the world in which we live. There is, therefore, now a palpable need for congressional action to preserve the ability of the American press to engage in the kind of important, public-spirited journalism that is often possible only when reporters are free to make meaningful commitments of confidentiality to their sources.Lee Levine

* * * * 

Committee: Joint Hearing of the Subcommittee on Intergovernmental Affairs and the Subcommittee on Healthcare, Benefits, and Administrative Rules of the United States House of Representatives Committee on Oversight and Government Reform  (video of hearing here)

Date: 24 July 2018

  • To discuss H.R. 4382, the Free Flow of Information Act, a shield law that conditions the federally compelled disclosure of information by journalists.
  • In November 2017, Rep. Jamie Raskin (D-MD) and Rep. Jim Jordan (R-OH) introduced the Free Flow of Information Act to protect the exercise of freely reporting critical information to the American public by establishing federal protection from compulsory disclosures for journalists.
  • Most states have enacted laws to shield journalists from being compelled to reveal their confidential sources. However, this patchwork of protection at the state level does not fully protect journalists as the federal government increasingly seeks to seize records belonging to journalists.

What the Bill Does

Representative Jamie Raskin (credit: Jewish Insider)

The Free Flow of Information Act would for the first time enshrine a journalist-source protection into federal law. It would prevent journalists or news organizations from being forced to reveal to the government any sources or documents related to their investigations.

Such information could only be compelled under subpoena if several separate conditions are all met:

  1. The federal government can prove it has exhausted other options for obtaining the information.
  2. The information sought is “critical” to the investigation at hand, rather than tangential.
  3. “The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”

This last requirement in particular is subject to considerable interpretation on the part of the judicial system. It’s possible — even likely — that certain courts or judges would almost always rule in favor of the government rather than news organizations, even if this bill became law.

Representative Jim Jordan (credit: Toledo Blade)

So how would that work in the real world? Take the famous example of the NYT’s Miller from 2005, who was imprisoned for refusing to reveal her source in a grand jury case investigating the leak of the identity of an undercover CIA officer. Presumably Miller would have been significantly less likely to have been jailed under this law, with its much higher burden of proof.

But as even the bill’s sponsors concede, it’s almost impossible to say she “wouldn’t” have been jailed, as a court may still have ruled that the public interest in compelling disclosure may have outweighed any other considerations.

Wittnesses & Testimonies 

Name Title Organization Panel Document
Lee Levine Senior Counsel Ballad Spahr, LLP Document
Sharyl Attkisson Investigative Correspondent FullMeasure Document
Rick Blum Policy Director Reporters’ Committee for Freedom of the Press Document

Dershowitz on “Trump’s bid to silence dissent”

Professor Alan Dershowitz (credit: The Harvard Crimson)

Alan Dershowitz, Trump’s bid to silence dissent violates spirit of First Amendment, Boston Globe, July 25, 2018

“President Trump recently threatened to strip the security clearances of top former government officials who criticized his performance at Helsinki with regard to Russian president Vladimir Putin. Were Trump to carry out this threat, he would be violating the spirit, if not the letter, of the First Amendment. Such a decision, directed only at those who exercised their First Amendment rights to criticize Trump, might be seen by the courts as punitive government action directed at the content of speech. Even threatening to do so might deter critics from exercising their free speech rights.”

“Trump’s threat is reminiscent of the decision by General Lewis B. Hershey, who was the director of the Selective Service System during the Vietnam War, to selectively draft critics of the war. In both cases, the government has the authority to act generally by cutting off security clearances or drafting individuals. But it may not have the constitutional power to act selectively against critics who are exercising their rights under the First Amendment. . . .”

→ Related: Jennifer Rubin, Trump is attacking the First Amendment again, Washington Post, July 23, 2018

Dorf on FDA Plan to Censor “Milk” in Plant-Based Food Names

Professor Michael Dorf

“The Trump administration has made deregulation a top priority, scrapping environmental protections, abandoning net neutrality, and gutting the Affordable Care Act. Yet last week, the administration finally took a stand to protect American consumers from the dire threat of … wait for it … wait for it … milk derived from soybeans, nuts, and other plant sources rather than from the ‘lacteal secretion’ of a cow. The term ‘lacteal secretion’ is not the invention of an animal rights organization attempting to turn the public off of dairy but the Food and Drug Administration’s (FDA’s) own definition of ‘milk.'”W

“Last week, FDA Commissioner Scott Gottlieb leaned into that definition when he announced the start of a process to prevent producers of what are now labeled as soy milk, almond milk, hemp milk, and the like from using the m-word. Gottlieb pronounced that “an almond doesn’t lactate,” which is undeniably true, but that hardly justifies banning terms like ‘soy milk’ and ‘almond milk.’ . . . .”

Woodhull Freedom Foundation Files Suit Challenging Online Sex Trafficking Act

After filing a federal lawsuit challenging the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), the Woodhull Freedom Foundation  joined other plaintiffs before U.S. District Judge Richard Leon in a motion for preliminary injunction. (Re a summary of Woodhull’s brief to support this preliminary injunction, published by XBIZ, click here).

Feminism & the First Amendment 

Professor Mary Anne Franks

Professor Mary Anne Franks has recently posted an article titled “Beyond ‘Free Speech for the White Man’: Feminism and the First Amendment.” The article is from a forthcoming work titled Research Handbook on Feminist Jurisprudence (Cynthia Bowman & Robin West, eds., Elgar’s Legal Theory Research Encyclopedia Series, 2018, Forthcoming). Below is an abstract of her article:

According to First Amendment orthodoxy, we must protect the thought we hate in order to protect the speech we love. Defending the free speech rights of neo-Nazis, pornographers, and cross-burners – the speech of white male supremacy – supposedly secures the free speech rights of women and minorities. Free speech orthodoxy thus urges women and minorities to see themselves, quite literally, in white men.

Feminist theory demonstrates, however, that protecting free speech for white men, far from protecting women and minorities, sacrifices and silences them. If free speech for all is the desired outcome, a dramatic reorientation of free speech theory and practice is required. Rather than urging women and nonwhite men to see themselves in white men, white men should be urged to see themselves in women and nonwhite men. When women’s free speech if protected, everyone’s free speech is protected.

Chesney & Citron on “harmful lies”

Professor Robert M. Chesney

Abstract: Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.

Professor Danielle Keats Citron

While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.

Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.

Media Institute’s Essays on Free Expression

I just discovered this Media Institute stash of essays from 2017 & 2018. It’s from their blog First Amendment Trends. So, as the saying goes, better late than never.  In that spirit, I am happy to alert others similarly situated to the following essays:

→ Related: Oct. 24, 2018 — Chris Wallace of ‘FOX News Sunday’ and Cathy Hughes of Urban One To Receive Honors at Media Institute Friends & Benefactors Awards Banquet

Justice Department & Campus Speech

Hans von Spakovsky

“In the face of Orwellian speech codes on campus—and with the help of advocacy groups like Speech First Inc.— college students have been fighting to defend their First Amendment right to free speech.”

“Now, they can count the Justice Department as one of their strongest allies.”

“Earlier this year, the University of Michigan passed a policy that could punish students for making their peers feel offended. The Justice Department decided to weigh in, showing just how different the Trump administration is from the one that preceded it. . . .”


New & Forthcoming Books by Zick, Heins & Lai  

Abstract: The right to free speech intersects with many other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights, ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. This book examines the relations between the U.S. Constitution’s Free Speech Clause and other constitutional rights. Free speech principles and doctrines have brought about constitutional rights including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has often dominated rights discourse and has subordinated or supplanted free press, assembly, petition, and free exercise rights.

Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. While examining the dynamics that have brought free speech and other rights together, the book assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Abstract: This collection of the best writing from the Free Expression Policy Project, or “FEPP” (2001-2017) highlights events and controversies that continue to resonate in American culture and law. Topics range from loyalty oaths, the Muhammad cartoons, and junk science to the FCC’s censorship of “indecency” on the airwaves, legislative efforts to restrict violent video games, Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl, the Walt Disney Company’s suppression of a Michael Moore film, the “Mickey Mouse” law extending the term of copyright, and other copyright issues involving James Joyce, Tennessee Williams, and Fantasy Baseball.

From basic questions about the meaning of the First Amendment to specific issues of art censorship, copyright, “harm to minors,” and the structure of the media industry, FEPP’s news reports and commentaries provide lively narratives along with basic grounding in the ironies and complexities of free expression politics and law.

New & Forthcoming Scholarly Articles

Last Term: 2017-2018 Term — First Amendment Free Expression Cases

Four Cases Decided with Opinions* 

  1. Lozman v. City of Riviera Beach, Florida
  2. Minnesota Voters Alliance
  3. Janus v. American Federation of State, Municipal and County Employees
  4. National Institute of Family and Life Advocates v. Becerra

*Masterpiece Cakeshop v. Colorado Civil Rights Commission(First Amendment Free Exercise holding)

*   Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)

Harris v. Cooper (affirmed, without any written comment)

Vacated & Remanded 

  1.  A Woman’s Friend Pregnancy Resource Clinic v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
  2. Livingwell Medical Clinic, Inc. v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas(dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota

Free-Speech Related Case: Decided 

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
  • MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)

Last Scheduled — FAN #196Special Issue: 20 New or Forthcoming Books

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1 Response

  1. A Song of Ice and Watergate says:

    How would this work with the equal protection clause?
    Does the equal protection clause allow laws that discriminate based on occupation–like journalism? Or would it simply require that all americans be considered journalists?
    If not, who would be considered a journalist–does Trump get to decide who gets journalist credentials and who’s denied? That is, would a journalist permit be may-issue—like a concealed carry permit—or would everyone who requests a journalist permit be required to be given one?
    If whites were issued journalist permits more often than blacks, would giving journalists special protections in the law have a disparate-impact on blacks?